Missouri Ry Co v. Roberts

• Decision Date: 05 March 1894
• Docket Number: No. 230,230
• Citation: 152 U.S. 114,38 L.Ed. 377,14 S.Ct. 496
• Parties: MISSOURI, K. & T. RY. CO. v. ROBERTS
• Court: U.S. Supreme Court

152 U.S. 114

14 S.Ct. 496

38 L.Ed. 377

MISSOURI, K. & T. RY. CO.

v ROBERTS.

No. 230.

March 5, 1894.

James Hagerman and T. N. Sedgwick, for plaintiff.

Nelson Case, for defendant.

Mr. Justice FIELD stated the case and delivered the opinion of the court.

This is an action of ejectment to recover possession of certain lands situated in section 16 of township 34, in the county of Labette, state of Kansas, occupied and used by the Missouri, Kansas & Texas Railway Company as part of its right of way, to which it claims title under the act of congress of July 26, 1866, granting lands to the state of Kansas to aid in the construction of a southern branch of the Union Pacific Railway & Telegraph Company from Ft. Riley, Kan., to Ft. Smith. Ark. 14 Stat. c. 270, p. 289.

The act declares that, for the purpose of aiding the Union Pacific Railway Company, southern branch, that being a corporation then organized under the laws of Kansas, to construct and operate a railroad from Ft. Riley, in that state, or near that military reservation, thence down the valley of the Neosha river to the southern line of the state, with a view to the extension of the same through a portion of the Indian Territory to Ft. Smith, Ark., there was thereby granted to that state, for the use and benefit of the railroad company, 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 its road, and not exceeding in all ten sections per mile; provided that, in case it should appear that the United States had, when the line of the railroad was definitely located, sold any sections, or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement had attached to the same, or that it had been reserved by the United States for any purpose whatever, then it should be the duty of the secretary of the interior to cause to be selected for the purposes stated, from the public lands of the United States nearest to the sections specified, so much land as should be equal to the amount of the lands sold, reserved, or otherwise appropriated, or to which the right of a homestead settlement or pre-emption had attached. But to the said act a proviso was attached that any and all lands 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 any other purposes whatever, were reserved and excepted from the operation of the act, except so far as it might be found necessary to locate the route of said road through such reserved lands, in which case the right of way, 200 feet in width, was thereby granted, subject to the approval of the president of the United States.

The Union Pacific Railway Company, southern branch, the corporation designated in the act of congress, was organized by the legislature of Kansas, and incorporated on the 25th day of September, 1865, under an act providing for the incor- poration and regulation of railroad compainies; and on the 3d day of February, 1870, its name was changed to that of the Missouri, Kansas & Texas Railway Company, under which designation it is one of the defendants herein.

Certain lands within the present state of Kansas were reserved while it was still a territory, and long previously, by the United states, for the use and occupation of the Osage Indians. Such reservation was made by treaty between them and the United States, concluded as far back as June 2, 1825, and proclaimed in December following. 7 Stat. (Indian Treaties,) 240. From that time, and continuously thereafter, the reserved lands were occupied by those Indians until the treaty ceding the lands, or parts thereof, to the United States, concluded in 1866 and proclaimed in January, 1867, (14 Stat. 687,) except such portion thereof as was appropriated and used as a right of way by the Missouri, Kansas & Texas Railway Company for its road under the grant of July 26, 1866. Prior to June 6, 1870, that company located its railroad through these reserved lands in Kansas, with the approval of the president, and constructed its road in substantial conformity with the act of congress. The right of way for its road, 200 feet in width, was granted to the company unconditionally, subject only to such approval. The title to the land for the 200 feet in width thus granted vested in the company, either upon the passage of the act of congress, July 26, 1866, or upon the construction of the road, and, so far as the present case is concerned, it does not matter which date be taken.

The United States had the right to authorize the construction of the road of the Missouri, Kansas & Texas Railway Company through the reservation of the Osage Indians, and to grant absolutely the fee of the 200 feet as a right of way to the company. Though the lands of the Indians were reserved by treaty for their occupation, the fee was always under the control of the government; and when transferred, without reference to the possession of the lands, and without designation of any use of them requiring the delivery of their possession, the transfer was subject to their right of occupancy; and the manner, time, and conditions on which that right should be extinguished were matters for the determination of the government, and not for legal contestation in the courts between private parties. This doctrine is applicable, generally, to the rights of Indians to lands occupied by them under similar conditions. It was asserted in Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. 100, and has never, as we are aware, been seriously controverted. In that case, the lands were within what is known as Indian country, where the right of the Indians to the occupancy of their lands was recognized; and in grants by the government of portions thereof for works of internal improvement there usually was a stipulation for its extinguishment as rapidly as might be consistent with public policy and the welfare of the Indians. Such a stipulation was given when the grant under consideration in the case cited was made, showing that the government intended the grant to take effect notwithstanding any existing right of occupancy by the Indians, and it was deemed a sufficient expression of its intention to that effect. No such stipulation was made when the grant of the right of way through the Osage reservation was made, but the uses to which the lands were to be applied necessarily involved their possession. That grant was absolute in terms, covering both the fee and possession, and left no rights on the part of the Indians to be the subject of future consideration. Though the law as stated, with reference to the power of the government to determine the right of occupancy of the Indians to their lands, has always been recognized, it is to be presumed, as stated by this court in the Buttz...