Northern Pac Ry Co v. Wismer 28, 29 1918
| Decision Date | 04 March 1918 |
| Docket Number | No. 152,152 |
| Citation | 62 L.Ed. 716,38 S.Ct. 240,246 U.S. 283 |
| Parties | NORTHERN PAC. RY. CO. v. WISMER. Argued Jan. 28, 29, 1918. Decided, |
| Court | U.S. Supreme Court |
Mr. Charles Donnelly, of St. Paul, Minn., for plaintiff in error.
Mr. Assistant Attorney General Kearful and Mr. John W. Davis, of Washington, D. C., for defendant in error.
This suit is one in ejectment by the Northern Pacific Railway Company to recover possession of 80 acres of land (the title to 64,000 acres depends upon the decision), and it is here on writ of error to review the judgment of the Circuit Court of Appeals, affirming that of the District Court in favor of the defendant.
The principles of law applicable to the case are few and well settled and the decision of it depends upon the interpretation to be given to stipulated facts.
The plaintiff in error is the successor in interest to the Northern Pacific Railroad Company, and the defendant in error, substituted for the deceased defendant, George F. Wismer, claims to own the land in controversy by virtue of a homestead entry made in 1910, upon which a patent was issued in 1913.
By act of Congress dated July 2, 1864 (13 Stat. 365, c. 217) there was granted to the Northern Pacific Railroad Company, for the purpose of aiding in the construction of its line to the Pacific Coast, 20 alternate odd-numbered sections of land per mile on each side of the railroad line, which it should locate and adopt, within the boundaries of any territory and 10 alternate odd-numbered sections per mile on each side of the railroad line, which it should adopt, within the boundaries of any state. The grant embraces only lands to which '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.'
On October 4, 1880, the Railroad Company definitely located the position of its line opposite the land in controversy and filed a plat thereof, as required by law, and it is claimed that upon the filing of this plat the company became entitled to the lands granted, including those of the defendant in error, as of July 2, 1864, the date of the granting act of Congress.
The claim of the defendant in error, which prevailed in each of the lower courts, is that the land in controversy was reserved or otherwise appropriated, within the meaning of the terms of the grant to the railroad company of 1864, quoted above, at the time this part of the line of the railroad was definitely located, for the reason that it was then within an Indian reservation, or was subject to an Indian claim, which prevented the grant attaching to it, by virtue of the following facts, which we condense from the stipulation between the parties.
Prior to August 16, 1877, bands of Indians of the Spokane and other tribes occupied, for hunting and fishing, the extensive territory now comprising the eastern part of the state of Washington, in which they had not then ceded to the United States any part of their rights. In the spring of that year certain of these Indian tribes commenced hostilities against the white settlers which resulted in war with the United States, in which they were urging the Spokane tribe, then at peace, to join.
On May 7, 1877, the Commissioner of Indian Affairs directed Col. E. C. Watkins, an Indian inspector, in charge of all agencies in Washington Territory, to give his 'special attention' to the subject of gathering the roving Indians 'upon permanent reservations,' with the result that on August 16, 17, 18, 1877, a council was held at Spokane Falls, Washington, between the chiefs and headmen of the Spokane tribe of Indians and Col. Watkins, acting and Gen. Frank Wheaton and Capt. M. C. Wilkinson, of the United States Army, representing the Department of War.
It is expressly stipulated 'that for the purpose of collecting the said Indians belonging to the said tribe (the Spokane tribe) on a reservation,' and of inducing them to establish homes and to engage in agricultural pursuits, to extinguish their title 'to all other lands not within the said reservation' and to remain at peace with the United States, the agreement following was signed by the representatives of the government of the United States and the chiefs and headmen of the tribe who attended the council, viz.:
'In Council at Spokane Falls, W. T 'We, the undersigned chiefs and headmen of the Spokane tribe of Indians for ourselves and our people hereby agree to accept the following described land for our reservation: Beginning at the source of...
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