United States v. Curtner

• Decision Date: 04 February 1889
• Citation: 38 F. 1
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES v. CURTNER et al.

38 F. 1

UNITED STATES v. CURTNER et al.

United States Circuit Court, N.D. California.

February 4, 1889

Syllabus by the Court

The congressional acts of 1862 and 1864 granting aid in the construction of a railroad and telegraph line to the Pacific ocean, etc., operated as a present grant of land to the railroad company, upon conditions subsequent, which could only be defeated by breach of conditions, and divestiture of title thereupon, by proper legal proceedings on behalf of the United States.

The lands granted were the odd-numbered sections within 20 miles of the line of the road, such as were public lands at the date of the act, not sold, reserved, or otherwise disposed of by the United States; and such odd-numbered sections within the same limits as were public lands, to which a pre-emption or homestead claim had not attached at the time the line of the road was definitely fixed.

No right other than that of the railroad company could be acquired or initiated in any of said odd sections of land after the filing in the local land-office of the district, on January 30, 1865, of the order of withdrawal provided for in section 7 of the act of July 1, 1862.

The filing of the map of the general route and the withdrawal thereupon protected the lands against the acquisition of any right by any other parties until the line should become 'definitely fixed,' when the grant became specific by attaching itself to every odd section within the prescribed limits.

State selections of lieu lands for school purposes made upon lands unsurveyed by the United States are utterly void.

All the state selections shown in the bill being upon lands unsurveyed by the United States at the date of selection, in townships 2 S., 1 E., and 3 S., 3 E., Mt. Diablo B. and M were therefore void.

Lands are not surveyed lands by the United States until a certified copy of the official plat of survey has been filed in the local land-office.

The state selections in question were also void, for the reason that the act of 1853, under which these selections were made excepted from selection by the state in lieu of school sections lost, 'lands reserved by competent authority" and, 'lands claimed under any foreign grant or title,' and 'mineral lands.'

No right of any kind had attached to these lands when they were withdrawn for the purposes of the railroad grant on January 30, 1865, that, under the recent decision of the United States supreme court, in U.S. v. McLaughlin, 8 Sup.Ct.Rep. 1177, could prevent that grant from attaching. It was, therefore, the first grant to attach, and by performance of the conditions subsequent the title of the company became absolute.

The selections in question were excepted from confirmation by the act of 1866, (14 St. 218;) but had it been otherwise, it was not in the power of congress at that time to divest the right of the company.

The act of March 1, 1877, (19 St. 267,) for like reasons, cannot affect the rights of the railroad company. At the date of this confirmatory act, seven years after the title of this company became perfect, the United States had no interest whatever in the land upon which the act could operate.

Parties purchasing under state locations in township 2 S., 1 E., since June 10, 1865, had official record notice of the right of the railroad company; for the map filed in the office of the register of the local land-office had distinctly indorsed upon it in red ink the following, viz: 'The odd-numbered sections on this plat are granted to the Western Pacific Railroad.'

The statute of limitations does not run against the United States; and the cause of action here was not stale, the company having been, from the first, active in pursuing its right before the department of the interior.

The government is not without interest in this action, being responsible to the company for the land or its full value, by reason of the statutory grant and contract in the congressional acts of 1862 and 1864.

The Mexican grant called 'Las Pocitas,' was a float,-- a grant of two leagues within exterior boundaries embracing ten or more leagues, which two leagues so granted were confirmed and patented to the claimants, and the odd-numbered sections outside of the two leagues granted and confirmed, but inside of the exterior boundaries, passed to the railroad company.

The prior decision, in Newhall v. Sanger, 92 U.S. 761, by the United States supreme court, materially limited in its operation by the recent decision in U.S. v. McLaughlin.

Benjamin Harris Brewster, Atty. Gen., S. G. Hilborn, U.S. Dist. Atty., Shafter, Parker & Waterman, and J. W. Harding, for the United States.

H. F. Crane, Mich. Mullany, L. D. Latimer, Thos. D. Carneal, Rothschild & Baum, and J. C. Martin, for respondents.

Before FIELD, Justice, and SAWYER, Circuit Judge.

SAWYER, J., (FIELD, concurring.)

This is a bill in equity, filed by the attorney general on behalf of the United States, at the request of the secretary of the interior, to obtain a decree of the court vacating and annulling the listing over to the state of certain lands selected by the state, in lieu of sections 16 and 36, as was supposed, in pursuance of the act of congress on the subject, adjudging such listing to be unauthorized and void, annulling and vacating the patents issued to purchasers by the state, after such selecting and listing, and decreeing that no title to the lands passed thereby to the patentees. The grounds of the bill are, that the listing over to the state was by mistake and without authority of law; the lands having been granted to the Central Pacific Railroad Company before any right could have attached in favor of the state, and were therefore, not subject to selection by the state under the said acts. After a contest continued for many years, the secretary of the interior has finally decided that the lands in question belong to the railroad company, and that it is entitled to a patent, that they were listed to the state by mistake, without authority of law, and that the listing is void. But the department refuses to complicate matters by issuing patents. According to the view of the secretary of the interior, the United States are under obligation to convey a clear title to the railroad company, and they are unable to do so by reason of the mistake of the officers of the government, in unlawfully listing the lands to the state; and, consequently, that it is the duty of the government to have the prior listing to the state annulled, and the patents issued thereon declared to be unauthorized and void by a decree of the court, before issuing patents to the party entitled. For these reasons, and upon these grounds, this bill has been filed by the attorney general, at the request of the secretary of the interior.

The lands in question are odd sections, lying within the 20-mile limit of the grant of lands made to the Central Pacific Railroad Company, to aid in the construction of its road, by the act of congress of July 1, 1862, and the act of 1864 amending said act. 12 St.p. 492, § 3; 13 St.p. 358, § 4. Part of the lands lie in township 3 S., range 3 E., Mt. Diablo Base and Meridian, and a part in township 2 S., range 1 E. The lands in township 3, range 3, were surveyed in the field in August, 1862, and sectionized, and a plat thereof was made and approved by the surveyor general of California, December 24, 1862, but a duly-certified copy of the plat was not filed in the land-office of the district till June 4, 1869. The certified copy of the plat then filed is regarded by the department as the official plat, and the date of its filing, June 4, 1869, as the date of the survey. On December 28, 1865, a plat of the township, approved by the surveyor general December 18, 1865, was filed in the district land-office, but this plat is not regarded by the department as official, or as indicating the date of the official survey. Township 2 S., range 1 E., was first surveyed in the field in March, 1865, and an approved plat thereof first filed in the district land-office June 10, 1865. In accordance with the provisions of said acts of 1862 and 1864, the railroad company filed in the department of the interior, on December 8, 1864, its map designating the general route of the road, and on December 23, 1864, the secretary of the interior, in pursuance of the provisions of said acts, issued an order withdrawing the said lands for the distance of 25 miles on each side of the line of said road so designated, 'from sale, location, pre-emption and homestead. ' A map, showing distinctly the lands so withdrawn, accompanied said order. Said order of withdrawal and map were received and filed in the district land-office, and went into effect, at latest, on January 30, 1865. This action was before any of the lands in township 2, range 1, had been surveyed in the field, and before any plat recognized by the department as official, of the lands surveyed in township 3, range 3, had been filed, but after this latter township had been actually surveyed in the field. The road having been fully completed and accepted by the president, the railroad company filed its map of definite location on February 1, 1870. In 1839 the Mexican governor, Alvarado, made a grant of land called 'Las Pocitas,' to one Livermore and another, who presented it to the board of land commissioners for confirmation, and it was confirmed by the board, February 14, 1854. The decree is in the words following, to-wit:

'The lands of which confirmation are hereby made of 'Las Pocitas,' are bounded and described as follows, to-wit: On the north by the Lomas de las Cuevas; on the east by the Sierra de Buenos Ayres; on the south by the dividing line of the establishment of San Jose; and on the

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