Southern Pac. R. Co. v. Ambler Grain & Milling Co.

• Decision Date: 06 September 1933
• Docket Number: No. 6953.,6953.
• Citation: 66 F.2d 670
• Parties: SOUTHERN PAC. R. CO. v. AMBLER GRAIN & MILLING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

66 F.2d 670 (1933)

SOUTHERN PAC. R. CO. v. AMBLER GRAIN & MILLING CO.

No. 6953.

Circuit Court of Appeals, Ninth Circuit.

July 27, 1933.

Rehearing Denied September 6, 1933.

Frank Thunen, of San Francisco, Cal., for appellant.

Arch. H. Vernon, of Los Angeles, Cal., for appellee.

Before WILBUR, SAWTELLE, and MACK, Circuit Judges.

SAWTELLE, Circuit Judge.

An action was brought by the appellant against the appellee to remove a cloud on the appellant's title to a strip of land in Los Angeles county, Cal., claimed by the appellant to be part of the 200-foot right of way granted to it by an act of Congress approved March 3, 1871 (16 Stat. 573).

It is admitted that William M. Tileston, predecessor in interest of the appellee, filed a homestead entry upon the subdivision embracing the strip in controversy on August 5, 1870, improved and cultivated the land and resided upon it, and on May 6, 1871, commuted his claim to a cash entry, upon which a patent to Tileston was issued on November 10, 1874.

The cause was submitted upon a stipulation of facts and upon briefs of counsel. The court below entered a judgment declaring the appellee to be the owner in fee simple of the strip in question, and decreeing that the appellant had no right or title therein. From that judgment was taken the present appeal.

The appellant challenges the adverse conclusion of the court below upon two grounds:

(1) The inchoate right of the homestead entryman did not withdraw the land from the operation of the right of way grant, even though it did withdraw it from the adverse entry under the general land laws.

(2) Whatever the effect of the homestead entry as a withdrawal from the public domain, the fee was in the government on March 3, 1871, and passed by the grant. The commutation from homestead to cash entry on May 6, 1871, was in law an abandonment of the homestead claim and the initiation of a new right, subject to the intervening right of way grant of March 3, 1871.

We turn first to the Act of March 3, 1871, by the terms of which the rights of the appellant to the strip in controversy are to be partly, but not entirely, measured.

Section 23 of the Act, at 16 Stat. 579, reads as follows: "That, for the purpose of connecting the Texas Pacific railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa sic Pass, by way of Los Angeles, to the Texas Pacific railroad at or near the Colorado river, with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions as were granted to said Southern Pacific Railroad Company of California, by the act of July twenty-seven, eighteen hundred and sixty-six: Provided, however, That this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company or any other railroad company."

It next becomes necessary to examine the Act of July 27, 1866, referred to in the foregoing section. Section 18 of that act provides as follows: "* * * That the Southern Pacific Railroad, * * * is hereby authorized to connect with the said Atlantic and Pacific Railroad, formed under this act, at such point, near the boundary line of the State of California, as they shall deem most suitable for a railroad line to San Francisco, and shall have a uniform gauge and rate of freight or fare with said road; and in consideration thereof, to aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic and Pacific Railroad herein provided for." 14 Stat. 299.

Section 2 of the same act provides: "Sec. 2. And be it further enacted, That the right of way through the public lands be, and the same is hereby, granted to the said Atlantic and Pacific Railroad Company, its successors and assigns, for the construction of a railroad and telegraph as proposed; and the right, power, and authority is hereby given to said corporation to take from the public lands adjacent to the line of said road material of earth, stone, timber, and so forth, for the construction thereof. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary grounds for station-buildings, workshops, depots, machine-shops, switches, side-tracks, turn-tables, and water-stations; and the right of way shall be exempt from taxation within the Territories of the United States. The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act."

Finally, in searching the act of 1866 for the conditions and limitations therein provided, we find the following reservations contained in section 3 of the act: "* * * That there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes 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 designated by 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, and not including the reserved numbers. * * *"

The pivotal question in the present controversy is whether or not the filing of an "inchoate" homestead entry upon public land so withdraws the land embraced by such entry that it is no longer part of the public domain, and is not included in a subsequent grant of a right of way to a railroad that, but for such homestead entry, would embrace such land.

An unbroken line of Supreme Court decisions leads us irresistibly to an affirmative answer to the above proposition.

The leading case on the subject is Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S. 629, 641, 642, 644, 5 S. Ct. 566, 567, 28 L. Ed. 1122. That case was a suit for breach of covenant of warranty of title to a tract of land in Kansas. The railroad's title was derived from grants of public land under various statutes. The tract in controversy was within the location of the railroad grants, but was excepted from those grants by reason of a homestead entry and possession. Subsequently to this entry and possession, the party so in possession took the title from the railroad company, and the homestead entry was canceled. The alleged paramount adverse title was derived from a patent from the United States, issued on a homestead entry made subsequently to those proceedings. The Supreme Court of Kansas found that there was a breach of the warranty, and rendered judgment accordingly.

The land was sold by the railroad to George W. Miller, to whom a certificate of sale was given, which afterwards came by assignments to Lewis Dunmeyer, to whom the railroad made a deed purporting to convey a good title. On that covenant for good title Dunmeyer brought his action, alleging that the railroad never had any title, and that the covenant was therefore broken.

The Supreme Court of the United States regarded the railroad's title to the land at the time it made the conveyance to Dunmeyer as being perfect, "unless it came within some of the exceptions contained in the language of the grant." The Supreme Court of Kansas based its decision on the ground that the tract did come within the language of such an exception. That language was as follows: "* * * That there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed." 12 Stat. 492, § 3.

The record showed that on July 25, 1866, Miller made a homestead entry on the land that was in every respect valid, if the land was then public land subject to such entry. The line of definite location of the railroad was first filed with the Commissioner of the General Land Office at Washington on September 21, 1866. The Supreme Court held that this entry of Miller's brought the land within the language of the exception in the grant as...