Northern Lumber Company v. William Brien

• Decision Date: 14 January 1907
• Docket Number: No. 121,121
• Citation: 51 L.Ed. 438,204 U.S. 190,27 S.Ct. 249
• Parties: NORTHERN LUMBER COMPANY, Appt., v. WILLIAM O'BRIEN, Albert J. Lammers, and Mary E. Coffin
• Court: U.S. Supreme Court

204 U.S. 190

27 S.Ct. 249

51 L.Ed. 438

NORTHERN LUMBER COMPANY, Appt.,

v WILLIAM O'BRIEN, Albert J. Lammers, and Mary E. Coffin.

No. 121.

Argued and submitted December 7, 1906.

Decided January 14, 1907.

Messrs. Charles W. Bunn and James B. Kerr for appellant.

[Argument of Counsel from pages 190-192 intentionally omitted]

Mr. J. N. Searles for appellees.

[Text intentionally omitted]

Mr. Justice Harlan delivered the opinion of the court:

This suit involves the title to the south half of the southeast quarter of section twenty-seven, township fifty-two north, range fifteen west, in the state of Minnesota.

The principal question in the case is whether the land in dispute was embraced by the grant of public lands made by Congress July 2d, 1864 (13 Stat. at L. 365, 367, chap. 217), to the Northern Pacific Railroad Company, in aid of the construction of a railroad and telegraph line from Lake Superior to Puget sound. If it was not, then the decree of the circuit court dismissing the bill was right, as was that of the circuit court of appeals, affirming that decree.

By the act of May 5th, 1864 (13 Stat. at L. 64, chap. 79), Congress made a grant of public lands to the state of Minnesota in aid of the construction of a railroad from St. Paul to the head of Lake Superior. This grant was vested in the Lake Superior & Mississippi Railroad Company, and that company, on the 7th day of May, 1864, filed its map of General route. This map was accepted by the Land Department, and a copy was transmitted May 26th, 1864, to the proper local land office, which was informed of the approval by the Secretary of the Interior of a withdrawal of lands for the Lake Superior & Mississippi road, and that office was ordered to suspend, and it did suspend, 'from pre-emption, settlement, and sale a body of land about 20 miles in width,' as indicated on the above map. The land in dispute was within the exterior lines of this general route of the Lake Superior & Mississippi road, as defined by its map, and was part of the land so withdrawn.

After the acceptance of the map of general route of the Lake Superior & Mississippi Railroad, and after the withdrawal by the Land Department, for the benefit of that company, of the lands covered by that map, Congress, by the above act of July 2d, 1864 (13 Stat. at L. 365, 367, chap. 217), declared '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 line 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.'

In 1866 the Lake Superior & Mississippi Railroad Company filed a map of the definite location of its road, from which it appeared that the land in dispute was outside of the place, indemnity, and terminal limits of that road as thus located.

In 1882 the Northern Pacific Railroad Company filed its map of definite location, which showed that the particular lands here in dispute were in the place limits indicated by that map.

In 1883 the latter company filed in the proper office a list of lands which it asserted were covered by the grant made to it on July 2d, 1864, and on that list, among other lands, were those here in dispute.

In 1901 the Commissioner of the Land Office refused to approve, and rejected, the list so far as the lands now in question were concerned, upon the ground that, although they appeared, after the definite location of the Northern Pacific Railroad, to be within the primary limits of the grant made for that road by the act of July 2d, 1864, they 'were excepted from the operation of said grant, because they were, at the date of the passage of said act, within 10 miles of the probable route of the Lake Superior & Mississippi Railroad, in aid of the construction of which a grant was made by the act of May 5th, 1864, and were embraced within the withdrawal of May 26th, 1864, made on account of the last-mentioned grant.' The question was taken on appeal to the Secretary of the Interior, and he also rejected the above list, rendering a decision under date of July 16th, 1901, affirming the decision of the Commissioner,—the Secretary ruling that, as these lands were, at the date of the grant to the Northern Pacific Railroad Company, already 'included within an existing and lawful withdrawal made in aid of a prior grant,' they were not to be deemed 'public lands' when the Northern Pacific grant of 1864 was made, and, consequently, were not embraced by that grant. The Secretary held that the fact that a right under a prior grant did not eventually attach to the lands here in question was immaterial; 'first, because the act of July 2, 1864, was a grant in proesenti, and second, because a reservation on account of a prior grant will defeat a later grant like that of July 2, 1864, whether the lands are needed in satisfaction of the prior grant or not.' Re Northern P. R. Co. 31 Land Dec. 33. Under that decision the above list filed by the Northern Pacific Railroad Company was formally and finally canceled, and these lands were never assigned to it by the Land Department.

Although the stipulation of the parties as to the facts is very lengthy, those here stated are sufficient to present the point upon which, it is agreed, the decision of the case depends.

We have seen that, at the date of the grant of July 2d, 1864, to the Northern Pacific Railroad Company, the particular land in dispute was within the lines designated by the accepted map of the general route of the Lake Superior & Mississippi Railroad; and that the grant for the Northern Pacific Railroad was of 'public land.' Was the land here in dispute public land at the date of the passage of that act? If, by reason of its having been then withdrawn by the Land Department from pre-emption, settlement, and sale, it was not, at the date of the Northern Pacific grant, to be deemed public land, did that grant attach to it when the Northern Pacific road was definitely located in 1882? These questions were answered in the negative by both the circuit court and the unanimous judgment of the circuit court of appeals. 134 Fed. 303, 139 Fed. 614.

It has long been settled that the grant to the Northern Pacific Railroad Company by the act of 1864 was one in proesenti; that is, the company took a present title, as of the date of the act, to the lands embraced by the terms of the grant; the words 'that there be, and hereby is, granted' importing 'a transfer of present title, not a promise to transfer one in the future.' In St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 5, 35 L. ed. 77, 79, 11 Sup. Ct. Rep. 389, 390, the court said that 'the route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific section until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in proesenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route. This is the construction given to similar grants by this court, where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44, 60, 22 L. ed. 551, 554; Leavenworth, enworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. ed. 634; Missouri, K. & T. R. Co. v. Kansas P. R. Co. 97 U. S. 491, 24 L. ed. 1095; St. Joseph & D. C. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 578.' The same principle was reaffirmed in Bardon v. Northern P. R. Co. 145 U. S. 535, 543, 36 L. ed. 806, 810, 12 Sup. Ct. Rep. 856, and in many other cases which are familiar to the profession and need not be cited.

Again, no lands passed that were not, at the date of the grant, public land; that is, lands 'open to sale or other disposition under general laws;' not lands 'to which any claims or rights of others have attached.' Bardon v. Northern P. R. Co. supra. At the time of the grant of 1864 to the Northern Pacific Railroad Company the lands here in dispute were, as we have seen, among those withdrawn by the Land Department from pre-emption, settlement, and sale, and were held specifically under the grant of May 5th, 1864, for the Lake Superior & Mississippi Railroad. They were not, therefore, public lands embraced by the later grant to the other company. The grant of the Northern Pacific Railroad Company spoke as of the date of the act of July 2d, 1864; and that company did not acquire any title to these lands, then withdrawn, by reason of the fact that when its line, at a subsequent date, was definitely located, they had become freed from the grant made by the act of May 2th, 1864, to the state of Minnesota. Being at the date of the grant of July 2d, 1864,under the operation of an order of withdrawal by the Land Department, they were not in the category of lands embraced by that grant of 'public lands.' When the withdrawal order ceased to be in force the lands so withdrawn did not pass...