Northern Lumber Co. v. O'Brien

• Decision Date: 26 July 1905
• Docket Number: 2,219.
• Citation: 139 F. 614
• Parties: NORTHERN LUMBER CO. v. O'BRIEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

139 F. 614

NORTHERN LUMBER CO. v. O'BRIEN et al.

No. 2,219.

United States Court of Appeals, Eighth Circuit.

July 26, 1905

Syllabus by the Court.

The words 'public land' have long had a settled meaning in the legislation of Congress, and, when a different intention is not clearly expressed, are used to designate such land as is subject to sale or other disposal under general laws, but not such as is reserved by competent authority for any purpose or in any manner, although no exception of it is made.

Where a withdrawal of public lands along the route of a railroad, in aid of which a grant of lands has been made by Congress, is made by the chief officers of the Land Department in advance of the definite location of the route of such road, in order that the lands may be preserved for the ultimate satisfaction of the grant, such withdrawal, if not made in opposition to the terms of the grant or other congressional enactment, is a reservation made by competent authority. The reservation during its continuance, removes the lands embraced therein from the category of public land, and excludes them from subsequent railroad land grants containing no clear declaration of an intention to include them, even though it subsequently transpires that the withdrawal was ill-advised or that the lands are not required for the satisfaction of the prior grant.

The grant to the Northern Pacific Railroad Company made by the act of July 2, 1864, c. 217, 13 Stat. 365, was one in praesenti, and was in terms confined to public land. Land not public at the date of the grant was not granted, even though it subsequently became of that character. Bardon v Northern Pacific Railroad Co., 12 Sup.Ct. 856, 145 U.S 535, 36 L.Ed. 806, followed; United States v. Oregon & California Railroad Co., 20 Sup.Ct. 261, 176 U.S. 28, 44 L.Ed. 358, distinguished.

This is a suit in equity, brought by the appellant to obtain a decree perpetually enjoining the appellees from cutting or removing the timber standing on part of an odd-numbered section of land in Northern Minnesota. The land is vacant and unoccupied, and the timber thereon gives it its principal value. The appellant claims full title, under the grant of public lands made to the Northern Pacific Railroad Company by Act Cong. July 2, 1864, c. 217, 13 Stat. 365. When the suit was brought the appellees were asserting a right to cut and remove the timber, under a claim to the land initiated under the forest reserve lieu land provision in Act Cong. June 4, 1897, c. 2, 30 Stat. 11, 36 (U.S. Comp. St. 1901, p. 1541). The claim under the grant to the railroad company had been presented to and rejected by the Land Department of the government prior to the initiation of the claim under the act of June 4, 1897. 31 Land Decisions, 32. The latter claim was initiated prior to the bringing of the suit, and, as shown by the supplemental bill and the answer thereto, was perfected into full title by the issuance of a patent thereon during the pendency of the suit. At the date of the grant to the Northern Pacific Railroad Company the land was withdrawn from pre-emption, settlement, and sale in order that it might be ultimately available for the satisfaction of a prior grant of lands made by Congress May 5, 1864 (13 Stat. 64, c. 79), in aid of the construction of a railroad from St. Paul, Minn., to the head of Lake Superior, which came to be known as the Lake Superior & Mississippi Railroad. This withdrawal was made by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, May 26,1864, after the filing and acceptance of a map of the general route of the Lake Superior & Mississippi Railroad, which indicated that the land would fall within the place limits of the grant made in aid of that road. The land was public in the full sense of the term at the date of the grant of May 5, 1864, and at the date of the withdrawal. The route of the Lake Superior & Mississippi road as definitely located September 25, 1866, by the filing and acceptance of the required plat, departed so far from the line provisionally indicated upon the map of the general route that this land fell entirely without the limits of the grant. The prior withdrawal was then impliedly, if not expressly, revoked as to all lands falling without the limits of the grant as adjusted to the line of definite location. It was during the existence of the withdrawal for the benefit of the Lade Superior & Mississippi Railroad that the grant of public land was made to the Northern Pacific Railroad Company by the act of July 2, 1864, supra. This land is within the place limits of that grant, and the portion of that company's railroad opposite thereto was definitely located July 6, 1882. At that time this land was public land, not mineral, to which the United States had full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights. The Circuit Court held that land which at the date of the grant to the Northern Pacific Railroad Company was included within a withdrawal like that made for the benefit of the Lake Superior & Mississippi Railroad did not come within the description of 'public land' granted to the Northern Pacific Railroad Company, and entered a decree dismissing the bill and supplemental bill. 134 F. 303.

The grant to the Northern Pacific Railroad Company is expressed in the third section of the act of July 2, 1864, supra, and reads as follows:

'Sec. 3. And be it further enacted, that there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph like to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections: provided, that, if said route shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: provided, further, that the railroad company receiving the previous grant of land may assign their interest to said 'Northern Pacific Railroad Company,' or may consolidate, confederate, and associate with said company upon the terms named in the first section of this act: provided, further, that all mineral lands shall be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd numbered sections, nearest to the line of said road may be selected as above provided: and provided, further, that the word 'mineral,' when it occurs in this act, shall not be held to include iron or coal: and provided, further, that no money shall be drawn from the treasury of the United States to aid in the construction of the said 'Northern Pacific Railroad." 13 Stat. 367.

James B. Kerr, for appellant.

J. N. Searles, for appellees.

Before VAN DEVANTER, Circuit Judge, and CARLAND and POLLOCK, District Judges.

VAN DEVANTER, Circuit Judge, after stating the case as above, .

The grant to the Northern Pacific Railroad Company was one in praesenti and was in terms confined to 'public land.' St. Paul & Pacific R.R. Co. v. Northern Pacific R.R Co., 139 U.S. 1, 5, 11 Sup.Ct. 389, 35 L.Ed. 77. Land not public at the date of the grant was not granted, even though it subsequently became of that character. Bardon v. Northern Pacific R.R. Co., 145 U.S. 535, 539, 12 Sup.Ct. 856, 36 L.Ed. 806; Northern Pacific Ry. Co. v. De Lacey, 174 U.S. 622, 626, 19 Sup.Ct. 791, 43 L.Ed. 1111; United States v. Southern Pacific R.R. Co., 146 U.S 570, 594, 606, 13 Sup.Ct. 152, 36 L.Ed. 1091. The words 'public land' have long had a settled meaning in the legislation of Congress, and, when a different intention is not clearly expressed, are used to designate such land as is subject to sale or other disposal under general laws, but not such as is reserved by competent authority for any purpose or in any manner, although no exception of it is made. Bardon v. Northern Pacific R.R. Co., supra; Wilcox v. McConnell, 13 Pet. 498, 513, 10 L.Ed. 264; Leavenworth, etc., R.R. v. United States, 92 U.S. 733, 741, 745, 23 L.Ed. 634; Newhall v. Sanger, 92 U.S. 761, 23 L.Ed. 769; Doolan v. Carr, 125 U.S. 618, 630, 8 Sup.Ct. 1228, 31 L.Ed. 844; Cameron v. United States, 148 U.S. 301, 309, 13 Sup.Ct. 595, 37 L.Ed. 459; Mann v. Tacoma Land Co., 153 U.S. 273, 284, 14 Sup.Ct. 820, 38 L.Ed. 714; ...