Northern Pac. R. Co. v. Sanders

• Decision Date: 08 September 1891
• Citation: 47 F. 604
• Parties: NORTHERN PAC. R. CO. v. SANDERS et al.
• Court: U.S. District Court — District of Montana

47 F. 604

NORTHERN PAC. R. CO. v. SANDERS et al.

United States Circuit Court, D. Montana.

September 8, 1891

KNOWLES J.

The motion for a rehearing in this case by consent was granted and upon the point as to whether the alternate odd sections of land, non-mineral, to which the government of the United States had full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the general route of plaintiff's road was fixed, to the width of 40 miles on each side of the said general route in Montana, by virtue of section 6 of the act in which is found the grant of land to plaintiff, was reserved from sale, entry, or pre-emption, was reargued. I have determined to adhere to my former ruling and to hold that said section 6 should not be construed to have this effect, although it must be confessed that the able counsel for plaintiff presented many new and persuasive authorities upon this point. He urges that the point was presented in the brief of counsel to the supreme court for its consideration in Buttz v. Railroad Co., 119 U.S 55, 7 S.Ct. 100. In the statement of the case and of the points presented on the part of the appellant, Buttz, in the official report of this case no such point is presented. The court in that case found without reservation that the agreement between the Indian tribes, who held the right of occupancy to the land in dispute, which agreement extinguished this right of occupancy, was not in force until approved by the secretary of the interior. It says, on page 60 of opinion, (page 106, 7 S.Ct. Rep.:) 'This modified agreement must be considered as accepted on the part of the United States when it was approved by the secretary of the interior. ' This was on the 19th of June, 1873. The map of the definite location of plaintiff's road was filed with the commissioner of the general land-office on the 26th day of May of the same year. The court having fully shown that the right of pre-emption could not attach to government land until after the Indian title of occupancy had been extinguished, and that, notwithstanding the Indian title of occupancy, the grant to plaintiff attached to the land in dispute as soon as the definite route of plaintiff's road was fixed, and a map thereof filed in the office of the commissioner of the general land-office, there was no ground upon which appellant, Buttz, could rest. The court did not find as a fact that the agreement to cede the Indian title of occupancy took effect at the time the Indians consented to the proposed agreement. The judgment of a court is res adjudicata when based upon facts found. Certainly the construction of section 6 of said act, and the effect of fixing the general route of plaintiff's road, was not required for a determination of the case. The supreme court in Barney v. Railroad Co., 117 U.S. 228, 6 S.Ct. 654, said of the decision of an important point, when it was previously before it:

'The statement was not at all material to the decision, which was that a deduction should have been made by reason of the intersection of two grants, so far as the prior grant was located within the extension. We recognize the rule that what was decided in a case pending before us on appeal is not open to reconsideration in the same case in a second appeal upon similar facts. The first decision is the law of the case, and must control its disposition; but the rule does not apply to expressions of opinion or matters, the disposition of which was not required for the decision.'

Here was an opinion in the same case, and undoubtedly the court of original jurisdiction felt bound by it; but the court, in substance, held that it was error to follow it in that particular wherein the supreme court expressed an opinion upon a point not required for the decision. If the court had found that the agreement for the relinquishment of the Indian title mentioned in the case of Buttz v. Railroad Co. went into effect when the Indians consented to the modified agreement, then there would have been a necessity for deciding the point at issue. To suppose a fact to exist which a court has held was not a fact with the view of expressing a legal opinion upon it does not seem to me to be required for the decision of a case. In the case of St. Paul & P.R. Co. v. Northern Pac. R.Co., 139 U.S. 1, 11 S.Ct. 389, claimed by plaintiff to support the case of Buttz v. Railroad Co., supra, the supreme court, on page 17 (page 394, 11 S.Ct. Rep.) of the opinion said, in speaking of the grant to plaintiff:

'The new rights were to vest with the release of the old rights. The transfer was to be mutual and simultaneous. There was, therefore, no operative grant until there was an effective release; and, whichever date be taken, whether December 13th or 19th, it was subsequent to the definite location of the Northern Pacific Railroad Company in Minnesota. A map of that location, approved by the secretary of the interior, was filed, as stated above, in the office of the commissioner of the general land-office on the 21st of the previous November. No grant was in existence of any lands to any other company which are claimed by the plaintiff in this suit at the time of the definite location of its route.' Again:

'But, independently of this conclusion, we are of opinion that the exception in the act making the grant to the Northern Pacific Railroad Company was not intended to cover other grants for the construction of roads of a similar character, for this would be to embody a provision which would often be repugnant to and defeat the grant itself.'

It would seem that the above rulings were sufficient to have disposed of that case, and that there was no occasion for deciding the point at issue in this case upon the construction of said section 6. But, in addition thereto, the court said:

'The Northern Pacific act directed that the president should cause the lands to be surveyed forty miles in width on both sides of the entire line of the road after the general route should be fixed, and provided that the odd sections granted should not be liable to sale, entry, or pre-emption before or after they were surveyed, except by the company. They were therefore excepted by that legislation from grants independently of the withdrawal by the secretary of the interior. His action informally announcing their withdrawal was only giving publicity to what the law itself declared.'

Now, it should be observed that the court was considering in this case two acts of congress, making grants to two different railroad companies, to aid them in constructing their road. The language in said section 6 is:

'And the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after such survey, except by said company.'

The term 'grant' does not occur among these terms. The terms are, 'sale,' 'entry,' and 'pre-emption.' The supreme court, in speaking of these terms in the case of Railway Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, said:

'In the terminology of the law concerning the disposition of the public lands of the United States each of these words has a distinct and well-known meaning in regard to the mode of acquiring rights to these lands. This is plainly to be seen in the statutes we are construing. In the third section, or granting clause, there are excepted from the grant all lands which at the time the definite location of the road is fixed had been sold, reserved, or otherwise disposed of, and to which a pre-emption or homestead claim had attached. Here sale, pre-emption, and homestead claims are mentioned as three different modes of acquiring an interest in the public lands, which is to be respected when the road became located; and the words are clearly used because they were though to be necessary. But a sale for money in hand by an entry made by the party buying is throughout the whole body of laws for disposing of the public lands understood to mean a different thing from the establishment of a pre-emption or homestead right, where the party sets up a claim to a definite piece of land, and is bound to build on it, make fences, cultivate, and reside on it for a period of time prescribed by law.'

Let us consider these terms, 'sale,' 'entry,' and 'pre-emption.'

'Sale' is a transmutation of property or a right from one man to another in consideration of a sum of money, as opposed to barter, exchange, and gifts. Rap. & L. Law Dict. Benjamin on Sales, in considering the term 'sale,' says of the element of price, (section 2:)

'It must be money, paid or promised accordingly as the agreement may be for a cash or a credit sale; but, if any other consideration than money be given, it is not a sale.' See, also, Chit. Cont. 373; Story, Cont. Sec. 778; Tied. Sales, Sec. 12. This point has been considered by the supreme court in the case of Williamson v. Berry, 8 How. 495. In it the court said:

'Upon the first of them, relating to the premises having been parted with by Clark to De Grasse upon a consideration other than cash, we remark that 'sale' is a word of precise legal import, both at law and in equity. It means at all times contract between two parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold.'

In the Five Per Cent. Cases, 110 U.S. 471, 4 S.Ct. 210, the supreme court made a distinction between public lands disposed of in satisfaction of military land-warrants and those sold for money, and said:

'A sale, in the ordinary sense of the word, is a transfer of property for a fixed price in money or its equivalent.'

If we turn to the statutes of the United States, we find special provisions for the sale...