Southern Pac. R. Co. v. Wiggs

• Decision Date: 23 June 1890
• Citation: 43 F. 333
• Court: U.S. District Court — Northern District of California
• Parties: SOUTHERN PAC. R. CO. v. WIGGS et al.

43 F. 333

SOUTHERN PAC. R. CO. v. WIGGS et al.

United States Circuit Court, N.D. California.

June 23, 1890

Syllabus by the Court

The act of congress of July 27, 1866, granting lands to the Southern Pacific Railroad Company, was a grant of quantity; and the grantee, upon accepting the grant, filing its map of location and building and equipping its road in the time and manner prescribed by the act, was entitled to its full complement of land to the amount of 10 alternate sections per mile on each side of the road so constructed, provided the same could be found either within the specified present grant, or indemnity limits.

The Southern Pacific Railroad Company filed its map of definite location on the 3d of January, 1867, in the office of the commissioner of the general land-office, showing the present granted and indemnity limits thereon, which granted and indemnity limits are clearly defined in the act of congress and the indemnity belt is particularly limited to specified boundaries outside of the granted limits. Held, that upon filing the map of definite location, and upon the secretary of the interior issuing his order withdrawing all the lands within 40 miles of the line of the road, the odd-numbered sections both within the present granted and indemnity limits were withdrawn from pre-emption, homestead entry or any other disposition by the government. Furthermore held, that the statute itself in terms provides that the odd sections shall not be liable to sale or entry or pre-emption other than to the company. Congress intended to withdraw from sale, entry or pre-emption all those lands set apart within specifically defined limits, as well those authorized to be selected as lieu lands, as those absolutely granted, in which the title itself presently vested. The right of selection indefeasible by pre-emptioners vested upon filing the map of definite location, and withdrawal, as provided by the statute although the title to the land itself did not vest till the selection.

The secretary of the interior had no authority, while a deficiency existed, to allow a pre-emption to be made upon an odd section within these indemnity limits. While such deficiency existed, the secretary could not throw open the odd sections within the indemnity limits to pre-emption, or homestead entry. The right of selection, in the company, to these lands, is given in the statute itself, and the secretary cannot revoke it.

This joint resolution of 1870 (16 St. 382) conferred no new rights upon a pre-emptor going upon these lands subsequent to the order of withdrawal. It only saved, and reserved, such rights as he had already acquired before its passage.

A patent issued in the name of the United States to a pre-emptor, entering upon these lands subsequent to the order of withdrawal, is, erroneously, issued, without authority of law, and is void. The existence of such a patent is a cloud upon the complainant's title. It embarrasses the assertion of complainant's rights, and prevents it getting a patent to the same land to which it is entitled. These circumstances constitute ground for equitable relief. A patent so issued to a pre-emptor is void, and the using of it should be perpetually enjoined.

Where the secretary of the interior, acting upon a known and recognized state of facts, draws therefrom an erroneous conclusion of law, and, in pursuance of such erroneous conclusion, issues a patent to a party not entitled thereto his action is not conclusive, but, is subject to review and reversal by the courts.

The complainant filed its map of definite location in the proper office on January 3, 1867, and a subsequent map on September 3, 1871, covering substantially the same lines. A letter of the secretary of the interior, accompanied by a plat showing the 30-mile limit, withdrawing the lands from sale, entry or pre-emption, and so forth, in accordance with the statute, within the said 30-mile limits, was filed in the Stockton land-office on May 3, 1867, which plat and withdrawal included the lands in question. This withdrawal does not appear to have ever been revoked, or attempted to be revoked, either by congress or the interior department. The plat of the township embracing the land in dispute was filed in the proper land-office on March 19, 1881.

On May 19, 1881, the respondent, Wiggs, filed in the said land-office at Stockton, his pre-emption declaratory statement for the said land, claiming a settlement thereon on May 15, 1868, which date is more than a year after complainant filed its map of definite location. He made final proofs of said pre-emption on February 19, 1884, and received the patent therefor, now in question, on June 12, 1885. There was a contest in the land-office from the beginning, between the complainant and defendant Wiggs, over the latter's right to pre-empt the land, which being decided in favor of respondent was taken before the department at Washington on appeal; and in a decision rendered by the commissioner on January 28, 1882, respondent's right to pre-empt was affirmed.

This decision was affirmed by the secretary of the interior on November 27, 1883; and, in accordance with the determination of the secretary, the patent in question was issued to respondent on June 12, 1885. On July 9, 1885, the duly-authorized agent of complainant, having selected the lands so far as it could make a selection, without the concurrence of the department, presented in the Stockton land-office list No. 7 of lands selected by the Southern Pacific Railroad Company to make up deficiency, under and in pursuance of said statute of July 27, 1866, and tendered the full amount of fees receivable thereon, the full costs and expenses of survey having been paid, said list being in the usual form in use in such cases; and the register and receiver of said land-office rejected said list and selection, not on the ground that there was no deficiency, or of any irregularity in the form of proceeding, or in the selection, or that they were not otherwise subject to selection, but 'for the reason that, as appears by the records of this office, said land was patented to Walter Wiggs, June 12, 1885. ' This was the sole objection assigned. Said list of said selected land embraced the land in question. The said patent is the patent issued as hereinbefore stated.

The complainant had, before said selection, built and completed its line of road opposite and beyond the said lands within the time, and in all respects in the manner, as required by law, and it had been accepted by the proper officers of the government.

Joseph D. Redding, for complainant.

Joseph H. Budd, for defendants.

Before SAWYER, Circuit Judge.

SAWYER J., (after stating the facts as above.)

Upon the facts stated, the question arises, whether the lands, under the statute, were open to pre-emption by the respondent, at the time he settled upon them, for the purpose of acquiring a pre-emption right, and whether the patent, upon fulfilling the other conditions, was lawfully issued to him; or whether, on the contrary, the complainant, by the acceptance of the land grant, filing its map of definite location and building the road in all respects in accordance with the requirements of the act of congress, did not from the date of filing its map of location acquire a right indefeasible by pre-emption claimants under the existing laws, to select this land in lieu of lands within the 20-mile limit, lost by reason of any of the causes enumerated in the statute. In Ryan v. Railroad Co., 5 Sawy. 261, affirmed in 99 U.S. 382, it was held that, in a similar grant, the grant attached and title vested to the specific alternate sections designated by odd numbers within the 40-mile limit of that grant, on the filing of the plat of the surveyed line of the road with the secretary of the interior; and the withdrawal of the land from sale by him; but that the title did not vest in any particular division of land that might be selected outside the limit to make up a deficiency until said deficiency had been ascertained, and the selection in lieu thereof had been actually made. This decision has been repeatedly recognized since.

It is insisted on the part of the respondent that these decisions must control the cases, as the lands are in the belt of lands liable to be selected as lieu lands only, and were not selected to supply a deficiency till after the settlement for the purpose of pre-empting, at which time the title under the decision had not vested. But I am of the opinion, that those decisions are not broad enough to reach this case. The...