Payne v. Central Pac Ry Co, 17

• Citation: 41 S.Ct. 314,65 L.Ed. 598,255 U.S. 228
• Decision Date: 28 February 1921
• Docket Number: No. 17,17
• Parties: PAYNE, Secretary of Interior, et al. v. CENTRAL PAC. RY. CO
• Court: United States Supreme Court

255 U.S. 228

41 S.Ct. 314

65 L.Ed. 598

PAYNE, Secretary of Interior, et al.

v CENTRAL PAC. RY. CO.

No. 17.

Argued Oct. 6, 1920.

Decided Feb. 28, 1921.

Mr. Assistant Attorney General Nebeker and Messrs. Charles D. Mahaffie and C. Edward Wright, both of Washington, D. C., for appellants.

[Argument of Counsel from pages 229-231 intentionally omitted] Messrs. A. A. Hoehling, Jr., of Washington D. C., Frank Thunen, of San Francisco, Cal., and C. F. R. Ogilby, of Washington, D. C., for appellee.

Mr. Justice VAN DEVANTER delivered the opinion of the Court.

This is a suit to enjoin the Secretary of the Interior and the Commissioner of the General Land Office from canceling a selection of indemnity lands under a railroad land grant. The trial court dismissed the bill, and the Court of Appeals reversed that decree and directed that an injunction issue. Central Pac. Ry. Co. v. Lane, 46 App. D. C. 374, Ann. Cas. 1918C, 1002. An appeal under section 250, par. 6, of the Judicial Code (Comp. St. § 1227) brings the case here.

The allegations of the bill were admitted by a motion to dismiss, upon which the defendants announced their purpose to stand; and the case as thus made is as follows:

By the Act of July 25, 1866, c. 242, 14 Stat. 239, a grant of public lands in California and Oregon was made 'for the purpose of aiding in the construction' of a line of railroad from a point in Sacramento Valley to Portland, 'and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores' over such line. The part of the grant in California was made to the California and Oregon Railroad Company, its successors and assigns, and the part in Oregon to another company. The grant was in present terms—'there be, and hereby is, granted'—and was of 'every alternate section of public land, not mineral, designated by odd numbers,' within designated limits on each side of the line. With this was coupled a provision that——

'When any of said alternate section or parts of sections shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, other lands, designated as aforesaid, shall be selected by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and not more than ten miles beyond the limits of said first-named alternate sections.'

The line of the road was to be definitely located by filing a map with the Secretary of the Interior; and the work of construction was to be completed in sections of twenty miles within a time named, which was extended to July 1, 1880, by an amendment of June 25, 1868. 15 Stat. 80, c. 80. The completion of each section was to be ascertained and reported by commissioners appointed by the President, whereupon patents for the lands coterminous therewith were to be issued. The railroad was to be and remain 'a public highway for the use of the government of the United States, free of all toll or other charges' for the transportation of its property or troops. An assent to the act on the part of each grantee was to be filed within one year after its passage.

The California and Oregon Railroad Company duly assented to the act, definitely located its part of the line by filing the required map, and constructed, completed and equipped that part of the railroad within the extended time. The completion was duly reported by the commissioners and was recognized by the President. In addition, that company and its successors have complied with the act in all other respects. The Central Pacific Railway Company, the plaintiff, became the legal successor of that company in 1899, and holds its rights, title and interest under the grant. The part of the road in Oregon also was completed, but that is not of present concern.

In the process of adjusting the grant it has developed that many of the designated sections in the place limits were lost to the grant by reason of other disposals, homestead settlements and pre-emption claims antedating the definite location of the line of the road, thereby making it necessary to resort to the indemnity limits to satisfy the grant. The present ascertained losses amount to thousands of acres, and it is certain that further substantial losses will develop as the adjustment proceeds. As yet it is impossible to determine even approximately the total losses, because a material part of the grant is still unsurveyed; and this makes it uncertain whether all can be made good from the lands available for indemnity.

The lands in question were selected by means of an indemnity list filed in the local land office February 24, 1910, and the selection was in lieu of losses specified in the list which were actual and entitled the plaintiff to indemnity. The lands selected are in the indemnity limits and admittedly nonmineral, and at the time of selection were such as could be selected to supply the losses specified. The list was accompanied by the requisite sustaining proofs and conformed in all respects to the regulations embodying the directions of the Secretary of the Interior upon the subject. The plaintiff paid the fees collectible thereon, and the local land officers approved the list and promptly forwarded it and the accompanying proofs to the General Land Office with the usual certificates and indorsements. It remained pending in that office until January 16, 1915, when the Commissioner ordered its cancellation solely on the ground that in the meantime the selected lands had been included in a temporary executive withdrawal for a water power site under the Act of June 25, 1910, c. 421, 36 Stat. 847 (Comp. St. §§ 4523-4525). The plaintiff appealed to the Secretary of the Interior, and he affirmed the Commissioner's action. A reconsideration was sought and denied, and the plaintiff then brought this suit.

It is not questioned that, had the selection been reached for consideration before the withdrawal, it would have been the duty of the Commissioner and the Secretary to approve it and pass the lands to patent; nor that, if the withdrawal be not an obstacle, it still is their duty to do so. But it is insisted that so long as the selection was without the Secretary's actual approval it gave no right as against the government, and that the withdrawal made while it was as yet unapproved became a legal obstacle to its approval. In this there is an obvious misconception of the office and effect of the selection, and the misconception is particularly shown in the brief for the appellants, where the selection is treated as only a preliminary land application or filing. Counsel there say:

'What is the effect then of the mere filing of an indemnity selection? Its only effect, we submit, is to give the selector a preference right to the land as against one tendering a filing thereafter.'

Rightly speaking, the selection is not to be likened to the initial step of one who wishes to obtain the title to public land by future compliance with the law, but rather to the concluding step of one who by full compliance has earned the right to receive the title. Referring to a similar grant and the relative obligations of the government and the grantee, it was said in Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 679, 680, 34 Sup. Ct. 907, 911 (58 L. Ed. 1527):

'The act did not follow the building of the road, but preceded it. Instead of giving a gratuitous reward for something already done, the act made a proposal to the company to the effect that if the latter would locate, construct and put into operation a designated line of railroad, patents would be issued to the company confirming in it the right and title to the public lands falling within the descriptive terms of the grant. The purpose was to bring about the construction of the road, with the resulting advantages to the government and the public, and to that end provision was made for compensating the company, if it should do the work, by patenting to it the lands indicated. The company was at liberty to accept or reject the proposal. It accepted in the mode...