Kansas City v. Brewster

• Decision Date: 08 November 1886
• Parties: KANSAS CITY, L. &. S. K. R. Co. v. BREWSTER, Atty. Gen., etc
• Court: U.S. Supreme Court

118 U.S. 682

7 S.Ct. 66

30 L.Ed. 281

KANSAS CITY, L. &. S. K. R. Co. v. BREWSTER, Atty. Gen., etc.

November 8, 1886.

James Hagerman, Geo. W. McCrary, A. T. Britton, A. B. Browne, and John F. Dillon, for appellant, Kansas City, L. & S. K. R. Co. Atty. Gen. Garland,

[Argument of Counsel from pages 683-684 intentionally omitted] Asst. Atty. Gen. Watson, and Wm. Lawrence, for appellees.

MILLER, J.

This is an appeal from the circuit court of the district of Kansas. The suit is brought by B. H. Brewster, attorney general of the United States, for and on behalf of the United States. The object of it is to set aside certain instruments in writing which, if they are valid, are supposed to convey title from the United States for a considerable quantity of land in southeastern Kansas.

An act of congress approved July 26, 1866, granted to the state of Kansas 'every alternate section of land or parts thereof designated by odd numbers, to the extent of five alternate sections per mile on each side of the road, and not exceeding in all ten sections per mile, * * * for the purpose of aiding the Union Pacific Railroad Company, Southern Branch, the same being a corporation organized under the laws of the state of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near that military reservation, thence down the valley of the Neosho river to the southern line of the state of Kansas, with a view to an extension of the same through a portion of the Indian Territory to Fort Smith, Arkansas. * * *'

There is the usual clause in this grant providing that if 'it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached as aforesaid; which lands thus indicated by the direction of the secretary of the interior shall be reserved and held for the state of Kansas, for the use of said company, by the said secretary, for the purpose of the construction and operation of said railroad, as provided by this act.'

This railroad company, for whose benefit the grant was made to the state of Kansas, afterwards changed its name, by a valid procedure, into that of the Missouri, Kansas & Texas Railroad Company. Under this latter name it built the road contemplated by this grant, which was completed in due time, and asserted a claim before the commissioner of the general land-office for the lands now in question as indemnity for others lost by the previous sale, appropriation, or other disposition of them, under the clause above cited in the act of 1866. These lands were, on that demand, certified to the state of Kansas, and by the state patented to the railroad company. The Missouri, Kansas & Texas Railroad Company afterwards, for a valuable consideration, conveyed them to the appellant in the present case, the Kansas City, Lawrence & Southern Kansas Railroad Company.

The object of this suit is to vacate and declare void the certification of the lands by t e secretary of the interior to the state of Kansas, as well as the patents issued by that state to the railroad company. There is no allegation of fraud, accident, or mistake, except as the alleged want of authority or power in the officers of the United States to certify these lands to that state may be a mistake in law. Unquestionably, if there was no such power, the government has a right by this proceeding to have those instruments declared void and set aside as a cloud upon its title. The authority of the commissioner of the general land-office and the secretary of the interior to make this certification of the lands to that state for the benefit of this company depends upon the true construction of this act of 1866, and of certain other statutes on the same subject.

Since the railroad company has constructed the road as contemplated by the statute, and has received the patents for the lands found in place along the line of this road,—that is to say, every alternate section, of odd numbers, which had not been previously disposed of,—and as the officers of the government have certified the lands now in controversy to be properly selected in lieu of such as were not found in place, it would seem to devolve upon the plaintiffs to show some reason why this authority has not been properly exercised, for the statute declares that the secretary shall indicate these indemnity lands. It was his primary duty, and that of the commissioner of the general landoffice, to ascertain whether any lands, and, if so, what amount, were not found subject to the act by reason of previous disposition under the homestead or pre-emption laws or reservations, and to select the indemnity lands. They have accordingly, both in the bill and in argument, set up the facts which they suppose to show the invalidity of these transfers.

The first of these, and the most important, is that by an act of March 3, 1863, and a supplementary act of July 1, 1864, these lands became appropriated to the building of another road through the same region of country, and through the same lands, the grant being to the state of Kansas for the purpose of building that road. It is argued that these grants, instead of being made by congress in aid of one and the same road, are different and conflicting grants, and that the earlier grants of 1863 and 1864 prevent the Missouri, Kansas & Texas Railroad Company from realizing the bounty of congress on that subject, because there is in the grant to the state for the benefit of the Union Pacific Railroad Company, Southern Branch, an express reservation of any lands granted previously for railroad purposes. The language of the act of 1866 on this subject is as follows: 'Provided, that any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operations of this act, except so far as it may be found necessary to locate the routes of said road and branches through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the president of the United States.'

As the lands granted by the prior acts of 1863 and 1864 had, by the act of the legislature of Kansas, been granted to the Atchison, Topeka & Santa Fe Railroad Company, a then existing corporation of that state, for the purpose of building a road, with the same general description as to its course down the valley of the Neosho river, which might have run through these same lands if it had been built by the latter company, it is argued with great earnestness that these lands were necessarily reserved, under this clause of the act of 1866, from the grant, as being reserved by the authority of congress for the purpose of aiding in that object of internal improvement. If the Atchison, Topeka & Santa Fe Railroad Company had built a line of road along the same general course, and through the same lands, 20 miles in width, that the Missouri, Kansas & Texas Railroad Company has occupied with its road, and asserted a claim to these lands, or to any of them, the argument would be almost irresistible

If, at the time that the act of 1866 was passed, the Atchison, Topeka & Santa Fe Railroad Company, or any other company than the one to which the grant of 1866 was made, was intending to build a road, or expected to build one, or had any authority from the state of Kansas to build one, under the acts of 1863 and 1864, the argument would have force. But on the ninth day of March, 1866, which was four months prior to the act of 1866, the Atchison, Topeka & Santa Fe Railroad Company entered into an agreement with the Union Pacific Railroad Company, Southern Branch, (afterwards known as the Missouri, Kansas & Texas Railroad Company,) by which the latter company assumed all the obligations of the former, in regard to building the road, which that company had assumed in accepting the grant by the state of Kansas, in consideration of which the Atchison, Topeka & Santa Fe Railroad Company...