Red River & Lake of the Woods Railroad Company v. Sture

• Decision Date: 16 May 1884
• Citation: 20 N.W. 229,32 Minn. 95
• Parties: Red River & Lake of the Woods Railroad Company v. Andrew Sture
• Court: Minnesota Supreme Court

20 N.W. 229

32 Minn. 95

Red River & Lake of the Woods Railroad Company v. Andrew Sture

Supreme Court of Minnesota

May 16, 1884

Condemnation Proceeding.

Appeal by the railroad company from a judgment of the district court for Polk county, Stearns, J., presiding:

Judgment affirmed.

Ives & Hatlestad, for appellant.

Leo & Steenerson, for respondent.

OPINION

Mitchell, J. ^[1]

This railroad company was organized in April, 1882, as a corporation, under the provisions of Gen. St. 1878 c. 34, title 1. In June of the same year, upon its petition, commissioners were appointed to assess damages and fix the compensation to be paid to the persons therein named including Sture, through whose lands its road was located. These commissioners having made and filed their report, Sture appealed from their award of damages to him as owner or occupant of 160 acres, a part of which was proposed to be taken for right of way. On the trial Sture testified (and this was undisputed) that he had resided on and occupied this land since the first day of May, 1879, as a homestead settler under the laws of the United States, and had improved it. We understand this to imply that he had entered it under the act of congress commonly known as the homestead law, by making and filing the proper affidavit, and paying to the register or receiver the sum of $ 10, in compliance with the provisions of U.S. Rev. St. § 2290, but that no patent had been issued, five years from the date of such entry not having expired.

Under these facts the company claims that it had the right of way over the premises, under U.S. Rev. St. § 2477, which reads as follows: "The right of way for the construction of highways over public lands not reserved for public uses, is hereby granted." This act was passed in 1866. We are strongly of opinion that the term "highways," as here used, never included railways, but refers only to the common highways of the country, as generally understood. But, however this may be, the act of March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States," (18 U.S. St. 482; Supp. to U.S. Rev. St. 187,) covers the whole subject-matter, and is intended to prescribe the only rule governing the right of way for railroads over public lands, and is the only law applicable to the case. This act of March 3, 1875, is in the nature of a grant or offer to any and all railroad companies which may see fit to accept its terms and avail themselves of its benefits. It prescribes the terms or conditions upon which any company desiring to secure its benefits may do so. The fourth section requires it, within a certain time, to file with the register of the land-office for the district where such land is located, a profile of its road; and upon approval thereof by the secretary of the interior, that it shall be noted on the plats in the land-office; "and thereafter all such lands over which such right of way shall pass, shall be disposed of subject to such right of way." This is not in the nature of an absolute grant in proesenti to a designated company, as in the case of Railroad Co. v. Baldwin, 103 U.S. 426, where it was held that, as soon as the route is definitely fixed, the title attaches from the date of the act. This act is in the nature of a general offer to the public, which takes effect and becomes operative as a grant to a particular company only when it accepts its terms by a compliance with the conditions precedent prescribed in the act itself. This proposition rests on elementary principles. A grant, like any other contract, must have two parties, -- a grantor and grantee, -- and an offer not accepted constitutes no contract. This is clearly the theory on which the act is framed. It merely offers or proposes to give any railroad company, upon compliance with its terms, the right of way over public lands to which private rights have not attached at or before the date of such compliance. This is clearly implied in the third section, which provides for the manner in which possessory claims on the public lands may be condemned, and in the fourth section, which provides that thereafter (i. e., after the company has complied with the provisions of the act) all such lands over which such right of way shall pass, shall be disposed of subject to such right of way. This is also the construction placed upon it by the interior department. 2 Copp, Pub. Land L. 816-823.

It is claimed, however, that an entry under the homestead law gives the settler no vested rights in the land until the issue of the patent. To this we cannot assent. We are aware that it has been authoritatively decided in Frisbie v Whitney, 9 Wall. 187, 19 L.Ed. 668, and the Yosemite Valley Case, 15 Wall. 77, 21 L.Ed. 82, that occupation and improvement on public lands with a view to pre-emption do not confer any vested right in the land as against the United States; that this is only obtained when the purchase-money has been paid and the receipt of the land-office given to the purchaser. This is put upon the ground that until such time the proposed pre-emptor has merely a right to be preferred in the purchase over others, provided a sale is made by the United States. But a homesteader, after entry, occupies an entirely different position. He has in fact purchased. ...