Northern Pac Co v. Sanders

• Decision Date: 19 April 1897
• Docket Number: No. 12,12
• Citation: 41 L.Ed. 1139,17 S.Ct. 671,166 U.S. 620
• Parties: NORTHERN PAC. R. CO. v. SANDERS et al
• Court: U.S. Supreme Court

166 U.S. 620

17 S.Ct. 671

41 L.Ed. 1139

NORTHERN PAC. R. CO.

v SANDERS et al.

No. 12.

April 19, 1897.

[Syllabus from pages 620-621 intentionally omitted] A. B. Browne, for plaintiff in error.

W. F. Sanders and S. S. Burdett, for defendants in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

This action was brought by the Northern Pacific Railroad Company to recover from the defendants in error (the original defendants) the possession of section 21, township 10 N., of range 3 W., in the county of Lewis and Clarke, in the state of Montana.

The railroad company claims title under the act of congress of July 2, 1864 (13 Stat. 365, c. 217), granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the northern route.

The defendants do not assert title in themselves, but resist the claim of the railroad company upon the ground that at the time of the definite location of the Northern Pacific Railroad, and of the filing of the plat thereof in the office of the commissioner of the general land office, such 'claims' were made of record upon the lands in dispute as excluded them from the grant to the Northern Pacific Railroad Company.

Congress granted to the Northern Pacific Railroad Company every alternate section of public land, 'not mineral,' designated by odd numbers, to the amount of 20 alternate sections per mile on each side of the railroad line, as the company might adopt, through the territories of the United States, and 10 alternate sections per mile on each side of the railroad whenever it passed 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 ten miles beyond the limits of said alternate sections. * * * Provided, further, that all mineral lands 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 and coal.' Section 3.

The sixth section directed the lands to be surveyed for 40 miles in width on both sides of the entire line of the road after the general route was fixed, and as fast as was required by the contruction of the railroad, and provided that 'the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.' Section 6.

The amended complaint alleged that the railroad company duly accepted the terms and conditions of the act of congress; that the general route of the railroad extending through the state of Montana was duly fixed February 21, 1872; that the land in dispute was on and within 40 miles of such general route, and at that date was 'public land, 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'; that at the date of the passage of the act of 1864, as well as when said general route was fixed, no part of the land in controversy was 'known mineral land,' and was not mineral land, nor was any part of said last-described land within any exceptions from said grant'; that on July 6, 1882, the railroad company definitely fixed the line of its railroad, extending opposite to and past said section 21, township 10 N., range 3 W., and filed a plat thereof in the office of the commissioner of the general land office; that 'said land is on, and within forty miles of, said line of railroad so definitely fixed'; that thereafter the company duly constructed and completed that portion of its railroad and telegraph line extending over and along its line of definite location, whereupon the president of the United States appointed three commissioners to examine the same, who reported that that portion of the line had been completed in a good, substantial, and workmanlike manner; that the president of the United States duly accepted said line of road and telegraph so constructed and completed; that at the date of so definitely locating the line of railroad, and at the time of the filing of the plat thereof in the office of the commissioner of the general land office, as above stated, the land in dispute was 'not known' to be mineral land, but was agricultural land, 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 defendants, in their answer, 'confessing that said premises did not contain gold or other precious metals in paying quantities, or in such quantity as to make the same, or any part thereof, commercially valuable therefor, nevertheless say, as to the northeast quarter of section 21: That heretofore, to wit, on the second day of August, 1880, Theodore H. Kleinschmidt, Edward W. Knight, Henry M. Parchen, Charles K. Wells, George P. Reeves, David H. Cuthbert, Cornelius Hedges, and Stephen E. Atkinson, each being then and there a citizen of the United States, and each having theretofore filed upon a certain separate twenty acres on the northeast quarter of said section according to the laws of the territory of Montana, and the mining usages and customs then in force in the unorganized mining district in which said land was situated, and being then in all respects qualified to enter mineral land under the laws of the United States, did enter into the possession of, and did enter in the United States land office, and did file upon the said quarter of said section in the land office of the United States, at Helena, Montana, in which district said land was situate, as mineral land, and did apply for a patent therefor, and did then and there, and in due form, file an application to purchase said premises as such mineral land, and did then and there make oath before the register and receiver of said land office that they had discovered mineral thereon, and had located the said quarter section as mineral lnad, and claimed the same as such for the valuable mineral deposits therein, and that they had complied with chapter 6 of title 32 of the Revised Statutes of the United States, which said application was so filed in the land office at Helena, Montana, under the oath of the said applicants, showing that they had complied with the law aforesaid, and describing the same by legal subdivisions; and they did then and there, prior to filing said application, post in a conspicuous place on the claim embraced therein a copy of said application and notice hereinafter mentioned, which said notice did then and there remain conspicuously posted on said premises during the period of publication hereafter mentioned; and they did then and there file with their said application in said land office an affidavit of two persons that such notice had been so duly posted, and did then and there file a copy of said notice in the land office, with the register and receiver thereof; and by said application they requested to be permitted to purchase the same as mineral land; and they then and there undertook and offered to maintain by proof that the said premises were valuable for the gold contained therein, and were mineral lands of the United States, to which they were entitled under the laws thereof, and that they had done the requisite amount of work thereon, to wit, work of the value of five hundred dollars, and were entitled to a patent therefor, which said application and affidavit and notice were then and there entered of record in said United States land office by the register and receiver thereof, and the said application was set for a hearing upon their said proofs to be produced; and notice of such hearing in due form of law was given by the register and receiver in the proper newspaper designated for that purpose, and was duly published therein, which said entry, application, affidavits, and notice were in all respects formal according to law; and the said application was set down for a hearing in said land office by the register and receiver thereof at the expiration of the period of time prescribed in said notice, and at the date at which the same was so set, the said plaintiff having theretofore filed a protest against the perfection of the said entry, for the reason, as claimed by said plaintiff, that the same were not mineral lands, or commercially valuable for the gold or other precious metals therein contained. That said application was continued thereafter, by the consent of parties or otherwise, from time to...