Morton v. Nebraska

• Decision Date: 01 October 1874
• Citation: 22 L.Ed. 639,21 Wall. 660,88 U.S. 660
• Parties: MORTON v. NEBRASKA
• Court: U.S. Supreme Court

88 U.S. 660

22 L.Ed. 639

21 Wall. 660

MORTON v. NEBRASKA.

October Term, 1874

ERROR to the Supreme Court of Nebraska.

Morton sued certain tenants of the State of Nebraska in ejectment to recover three hundred and twenty acres of salt land salines—in the said State; a State formed, as every reader of these volumes is aware, out of that vast region formerly known as the Territory of Louisiana and purchased in 1803 by us from France. The land in question was palpably saline, so incrusted with salt as to resemble snow-covered lakes. The salines in question were noted on the field-books, but these notes were not transferred to the register's general plats. The State intervened in the suit, and by its own request was made a defendant.

The plaintiff based his title under locations of military bounty-land warrants at the land office in Nebraska City, in September, 1859. These warrants were issued by virtue of the Military Bounty-Land Act of September 28th, 1850, which declared that such warrants might be located at any land office of the United States upon any of the public lands in such district then subject to private entry. The locators of the warrants, it appeared, before they made their entries, were told that the lands were salines. The State now set up that the locations were without authority of law, because the lands being saline lands were not subject to such entry.

The question thus was whether, in Nebraska, saline lands were open to private entry; or more strictly, whether they were so under circumstances such as those above stated.

It was not denied by the plaintiff that the practice of the Federal government, as exhibited by many acts of Congress (which being referred to in the opinion of the court, need not here, by the reporter, be particularized), from an early date had been to exclude this sort of land, with certain other sorts, from public sale, generally. It had done so confessedly from the Northwestern Territory and from the Territory of Orleans, the now State of Louisiana. But the defendants conceived—and such was their position—that under the statutes regulating the matter in Nebraska this was not so.

The matter was to be settled by certain acts of Congress, standing perhaps by themselves; or if their language was not clearly enough applicable to the district of Nebraska, by such acts, read by the light of the policy of the government and its numerous enactments on the main subject.

The first act which bore directly upon the matter was an act of March 3d, 1811,¹ 'providing for the final adjustment of claims to lands and for the sale of the public lands in the Territories of Orleans and Louisiana.' This act created a new land district, and authorized the President to sell any surveyed public lands in the Territory of Louisiana, with certain exceptions named;

'And with the exception also of the salt springs and lead mines, and lands contiguous thereto.'

Next came an act, approved July 22d, 1854,² more immediately bearing on the matter: 'An act to establish the offices of surveyor-general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes.'

This was an act of thirteen sections, and, as its title shows, relating to three different Territories.

The first three sections related, without any question, exclusively to the Territory of New Mexico.

The first of them authorized the appointment of a surveyor-general for that Territory, with the usual powers and obligations of such officers.

The second made a donation of a quarter-section of land to all white males residing in it, who had declared an intention, prior to January 1st, 1853, to become citizens; and also (on condition of actual settlement, &c.) to every white male citizen above twenty-one years of age who should remove or have removed there between January 1st, 1853, and January 1st, 1858.

The third authorized a patent for such land to issue.

Then came in a fourth section, in these words:

'None of the provisions of this act shall extend to mineral or school lands, salines, military or other reservations, or lands settled on or occupied for purposes of trade and commerce, and not for agriculture.'

This fourth section, as the reader will observe, does not in terms refer to the Territory of New Mexico, but says none of the provisions of this act, &c.

However, the fifth section enacts 'that sections 16 and 36 in each township, shall be, and the same are hereby reserved for the purpose of being applied to schools in the said Territory;' that is to say, the Territory of New Mexico; and the sixth reserves a quantity of land equal to two townships, for a university there.

The fourth section, therefore, as the reader will have noted, is interposited between sections which relate exclusively to the Territory of New Mexico; though it, itself, does not in terms so exclusively relate. The fifth section also, as he will have noted, makes a reservation for schools; a matter which the fourth section in some way apparently had also legislated upon.

Then came a seventh section, enacting 'that any of the lands not taken under the provisions of this act' are subject to the operation of the Pre-emption Act of 4th September 1841³ an act which by its tenth section authorizes certain persons to enter one hundred and sixty acres at the minimum price, and enacts——

'That no lands on which are situated any known salines or mines shall be liable to entry under and by virtue of the provisions of this act.'

Section eight authorizes the surveyor-general to ascertain the origin, nature, character, and extent of all claims to lands under the laws, usages, and customs of Spain and Mexico; and lands covered thereby are to be reserved from sale.

Section nine gives the Secretary of the Interior power to 'issue all needful rules and regulations for fully carrying into effect the several provisions of this act.'

Then comes, for the first time, in a section ten, a specific reference to Nebraska. This tenth section authorizes the appointment of surveyors-general for Nebraska and Kansas, with the usual powers and obligations of such officers. It authorizes them to locate their offices at certain places, &c.

The eleventh section directs surveys in the said Territories.

The twelfth subjects 'all the lands to which the Indian title has been or shall be extinguished within said Territories of Kansas and Nebraska to the operations of the Pre-emption Act of 4th September, 1841;' the Pre-emption Act mentioned above in the seventh section. And the thirteenth makes two new land districts, authorizes for these two districts the appointment of registers and receivers, and concludes the statute with an enactment thus:

'And the President is hereby authorized to cause the surveyed lands to be exposed to sale, from time to time, in the same manner and upon the same terms as the other public lands of the United States.'

Whether, therefore, this section four, interposited as it is between sections relating exclusively to New Mexico, did notwithstanding its general language, bear on the Territory of Nebraska, was one question raised by the plaintiff in the case, who denied that it did or could. He asserted that it meant 'none of the foregoing provisions,' &c. that is to say, the provisions in section two about the donation of land.

The State, on the other hand, insisting that it did apply to the other two Territories mentioned in subsequent sections of the act, asserted also that whether it did or did not was unimportant, since by the twelfth section the lands in Nebraska were subjected to the provisions of the Pre-emption Act of 1841, which exempted 'all known salines;' within which class, as it happened, those in question came.

The State, however, relied also on two other acts subsequent to that already set forth, of July 22d, 1854. The acts were thus:

1st. An act of the 3d of March, 1857,⁴ 'to establish three additional land districts in the Territory of Nebraska.'

This act rearranged the land districts of Nebraska, authorized the appointment of officers for them, and by one section enacted——

'That the President is hereby authorized to cause the public lands in said districts to—with the exception of such as may have been or may be reserved for other purposes—be exposed to sale in the same manner as other public lands of the United States.'

2d. An act of the 19th April, 1864,⁵ 'to enable the people of Nebraska to form a constitution and State government, and for the admission of such State into the Union,' &c.

This act enacts——

'SECTION 11. That all salt springs within said State, not exceeding twelve in number, with six sections of land adjoining, or as contiguous as may be to each, shall be granted to said State for its use; the said land to be selected by the governor thereof,' &c.

Under this act (after the admission of Nebraska as a State into the Union), its governor made a selection of twelve salt springs, the ones now in question being of the number.

This act, however, contained a proviso which the plaintiffs conceived covered the present case and destroyed the value to the State (if it had any) of the main enactment. The proviso was thus:

'Provided that no salt spring or lands, the right whereof is now vested in any individual or individuals, shall by this act be granted to said State.'

It may here be remarked that the plaintiffs had obtained certificates of entry for the lands in controversy, and patents for them had been issued. The patents were transmitted from the General Land Office at Washington to the local office in Nebraska. Before their delivery, however, the Commissioner of the General Land Office, ascertaining that the lands patented were saline lands and not agricultural, recalled the patents and cancelled the location.

The court below gave judgment for the State. From that judgment the other side brought the case here.

The case was thoroughly well argued by Mr. Montgomery...