United States v. Central Pac. R. Co.

• Decision Date: 29 January 1886
• Citation: 26 F. 479
• Court: United States Circuit Court, District of California
• Parties: UNITED STATES v. CENTRAL PAC. R. CO.

26 F. 479

UNITED STATES v. CENTRAL PAC. R. CO.

United States Circuit Court, D. California.

January 29, 1886

S. G Hilborn, for complainant.

Bennett & Wigginton, for respondent.

SAWYER J.

This is a suit on the part of the United States to vacate three patents, alleged to have been improperly issued, by mistake to respondent, for lands, under the congressional grant to the California & Oregon Railroad Company, to aid in the construction of a railroad under the act of July 25, 1866. 14 St. 239. The patents cover, in the aggregate, something over 20,000 acres. It is alleged that, at the time the grant attached by the definite location of the road, the lands were within the exterior limits of a Mexican grant, a claim for confirmation of which was then pending and undetermined in the courts; and, being sub judice, they were not public lands, and therefore not within the terms of the grant. The dates of the patents, respectively, are March 5 1872, March 17, 1875, and December 20, 1875. The plat of definite location provided for under the act was filed on July 1, 1867. The alleged Mexican grant to Dias was presented for confirmation, August 31, 1852, and rejected by the board of land commissioners, as invalid, October 30, 1854. The district court affirmed the decision rejecting the grant, March 15, 1858. On July 1, 1857, the claim was again rejected by the circuit court, and the decree of the circuit court was affirmed on appeal, and the grant finally rejected by the United States supreme court, March 3, 1873. The grant, therefore, never had the approval of any one of the four tribunals through which it passed, and the original decree of 1854, rejecting it, was affirmed by each; showing that there never was any merit in the claim under the alleged grant.

It thus appears that the first patent sought to be vacated was issued before the final rejection of the grant; and the other two, more than two years, and two years and nine months, respectively, after its final rejection. It is insisted, on the part of the complainant, that the grant attached to the specific lands on the filing of the map of definite location, in 1867, before the final rejection of the Mexican grant, and that the lands being then sub judice, they were not public lands, and not within the terms of the grant, as held in regard to the Moquelemos grant in Newhall v. Sanger, 92 U.S. 761. But these lands occupy a position entirely different from those involved in that case, and are not within that decision. None of these lands are within the 40-mile limit of the grant, to the specific odd sections of which the grant, by virtue of the act, ipso facto attaches by the filing of the plat of definite location. The act grants 'every alternate section of public land, not material, designated by odd numbers,' to the number of 10 on each side of the road, or within a limit of 40 miles, or 20 miles on each side, and then provides that 'when any of said alternate sections, 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 10 miles beyond, the limits of said first-named alternate sections;' that is to say, within 10 miles outside of the 40-mile limit. The grant, in such cases, does not attach to the specific sections of outside lands on the filing of the plat, but it remains a mere 'float' until it is ascertained that there is a deficiency within the limits of the specific grant, and until the selections outside are in face made under the direction of the secretary of the interior.

The grant does not attach to the specific alternate sections of lieu lands, until the selection is so made by the company which has the right of selection, and recognized and adopted by the secretary. If, at the time the selection is so made, recognized, and adopted, the lands have ceased to be sub judice, and are subject to grant, the rights of the company vest, and are valid. This point is settled in the case of Ryan v. Central Pac. R. Co., arising under the same grant to the Oregon & California Railroad Company, and affected in precisely the same way by the claim under the same alleged Mexican grant to Dias, (5 Sawy. 260,) affirmed on appeal by the United States supreme court, (99 U.S. 383;) also affirmed in St. Paul, etc., R.R. v. Winona R.R., 112 U.S. 731; S.C. 5 S.Ct. 334; see, also, Grinnell v. Railroad Co., 103 U.S. 739; Cedar Rapids R. Co. v. Herring, 110 U.S. 27; S.C. 3 S.Ct. 485; Kansas P.R. Co. v. Atchison, T. & S.F.R. Co., 112 U.S. 414; S.C. 5 S.Ct. 208. The land involved in that case was embraced in one of these very patents,-- that of March 17, 1875,-- and the case is therefore decisive on the identical question now presented. Both the circuit and supreme courts distinguished that case from Newhall v. Sanger, on the principle hereinbefore stated. The lands covered by the last two patents set out in the bill are situated precisely as the lands in Ryan's Case were, under the same grants and judicial proceeding. They are all lieu lands, situate outside the 40-mile limit, and required to be selected before the congressional grant attached. The lands were selected and patented after the rejection of the Dias grant, and after they had ceased to be sub judice. The title is therefore perfect as to the lands covered by the two patents issued in 1875, as is settled by the cases cited. The patents were therefore properly issued, and as to those two patents the bill must be dismissed.

The only difficulty I have in the case relates to the first patent issued in 1872, before the final rejection of the claim under the Dias grant, and while the lands so selected and patented were still sub judice, and for that reason only at the time, not subject to selection under the decision of Newhall v. Sanger. The lands embraced in this patent were also all lieu lands, situated outside the 40-mile limit of the specific grant. They are therefore in an entirely different position from those inside the 40-mile limit. Those inside the 40-mile limit, under the decision of Newhall v. Sanger, being sub judice at the time the grant attached to the specific odd sections, were not within the terms of the grant at all, but were regarded, in a certain sense, as otherwise disposed of, and the subsequent removal of the cloud over them did not bring them within the grant; but being reserved, or so otherwise disposed of as to prevent the attaching of the congressional grant, congress provided for supplying the deficiency, not out of these same lands after the claim should be rejected, but out of other outside lands that should be open to grant when the selection should be made. Congress intended that the company should have its 10 sections of land to a mile of the road, and provided that all lands outside might be selected in lieu of those already appropriated inside. In Ryan's Case, the supreme court held that the deficiency may be made up by selections made outside, at any time after any lands covered by a pending claim are released from that claim,-- after they cease to be sub judice, and become, in every sense, public lands, open to other...