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ly fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office."
In 1866 the Lake Superior & Mississippi Railroad Company filed a map of the definite location of its road, from which it appeared that the land in dispute was outside of the place, indemnity, and terminal limits of that road as thus located.
In 1882 the Northern Pacific Railroad Company filed its map of definite location, which showed that the particular lands here in dispute were in the place limits indicated by that map.
In 1883 the latter company filed in the proper office a list of lands which it asserted were covered by the grant made to it on July 2d, 1864, and on that list, among other lands, were those here in dispute.
In 1901 the Commissioner of the Land Office refused to approve, and rejected, the list so far as the lands now in question were concerned, upon the ground that, although they appeared, after the definite location of the Northern Pacific Railroad, to be within the primary limits of the grant made for that road by the act of July 2d, 1864, they "were excepted from the operation of said grant, because they were, at the date of the passage of said act, within 10 miles of the probable route of the Lake Superior & Mississippi Railroad, in aid of the construction of which a grant was made by the act of May 5th, 1864, and were embraced within the withdrawal of May 26th, 1864, made on account of the last-mentioned grant." The question was taken on appeal to the Secretary of the Interior, and he also rejected the above list, rendering a decision under date of July 16th, 1901, affirming the decision of the Commissioner,-the Secretary ruling that, as these lands were, at the date of the grant to the Northern Pacific Railroad Company, already "included within an existing and lawful withdrawal made in aid of a prior grant," they were not to be deemed "public lands" when the Northern Pacific grant of 1864 was made, and, consequently, were not embraced by that grant. The Secretary held that the fact that a right under a prior grant did not eventually attach to the lands here in question was immaterial; "first, because the act of July 2, 1864, was a grant in præsenti, and second, because a reservation on account of a prior grant will defeat a later grant like that of July 2, 1864, whether the lands are needed in satisfaction of the prior grant or not." Re Northern P. R. Co. 31 Land Dec. 33. Under that decision the above list filed by the Northern Pacific Railroad Company was formally and finally canceled, and these lands were never assigned to it by the Land Department.
Although the stipulation of the parties as to the facts is very lengthy, those here stated are sufficient to present the point upon which, it is agreed, the decision of the case depends.
We have seen that, at the date of the grant of July 2d, 1864, to the Northern Pacific Railroad Company, the particular land in dispute was within the lines designated by the accepted map of the general route of the Lake Superior & Mississippi Railroad; and that the grant for the Northern Pacific Railroad was of "public land." Was the land here in dispute public land at the date of the passage of that act? If, by reason of its having been then withdrawn by the Land Department from pre-emption, settlement, and sale, it was not, at the date of the Northern Pacific grant, to be deemed public land, did that grant attach to it when the Northern Pacific road was definitely located in 1882? These questions were answered in the negative by both thecircuit court and the unanimous judgment of the circuit court of appeals. 134 Fed. 303, 139 Fed. 614.
It has long been settled tnat the grant to the Northern Pacific Railroad Company by the act of 1864 was one in præsenti; that is, the company took a present title, as of the date of the act, to the lands embraced by the terms of the grant; the words "that there be, and hereby is, granted" importing "a transfer of present utle, not a promise to transfer one in the future." In St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 5, 35 L. ed. 77, 79, 11 Sup. Ct. Rep. 389, 390, the court said that "the routenot being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as to such sections as were specifically reserved. It is in this sense that the grant is termed one in præsenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route. This is the construction given to similar grants by this court, where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44, 60, 22 L. ed. 551, 554; Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. ed. 634; Missouri, K. & T. R. Co. v. Kansas P. R. Co. 97 U. S. 491, 24 L. ed. 1095; St. Joseph & D. C. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 578." The same principle was reaffirmed in Bardon v. Northern P. R. Co. 145 U. S. 535, 543, 36 L. ed. 806, 810, 12 Sup. Ct. Rep..
856, and in many other cases which are familiar to the profession and need not be cited.
judgment of the court, said: "In the Leavenworth Case, supra, the appellant, the railroad company, contended that the fee of the land was in the United States, and only a right of occupancy remained with the Indians; that, under the grant, the state would hold the title subject to their right of occupancy; but, as that had been subsequently extinguished, there was no sound objection to the granting act taking full effect. The court, however, adhered to its conclusion, that the land covered by the grant could only embrace lands which were, at the time, public lands, free from any lawful claim of other parties, unless there was an express provision showing that the grant was to have a more extended operation,-citing the decision in Wilcox v. Jackson, 13 Pet. 498, 10 L. ed. 264, to which we have referred above, that land once legally appropriated to any purpose was thereby severed from the public domain, and a subsequent sale would not be construed to embrace it, though not specially reserved. And of the Indians' right of occupancy it said that this right, with the correlative obligation of the government to enforce it, negatived the idea that Congress, even in the absence of any positive stipulation to protect the Osages, intended to grant their land to a railroad company, either absolute
Again, no lands passed that were not, at the date of the grant, public land; that is, lands "open to sale or other disposition under general laws;" not lands "to which any claims or rights of others have attached." Bardon v. Northern P. R. Co. supra. At the time of the grant of 1864 to the Northern Pacific Railroad Company the lands here in dispute were, as we have seen, among those withdrawn by the Land Department from pre-emption, settlement, and sale, and were held specifically under the grant of May 5th, 1864, for the Lake Superior & Mississippi Railroad. They were not, therefore, public lands embraced by the later grant to the other company. The grant of the Northern Pacific Railroad Company spoke as of the date of the act of July 2d, 1864; and that company did not acquire any title to these lands, then withdrawn, by reason of the fact that when its line, at a subsequent date, was definitely located, they had become freed from the grant made by the act of May 5th, 1864, to the state of Minnesota. Being at the date of the grant of July 2d, 1864, under the operation of an order of withdrawal by the Land Department, they were not in the category of lands embraced by that grant of "public lands." When the with-ly or cum onere. 'For all practical purdrawal order ceased to be in force the lands so withdrawn did not pass under the later grant, but became a part of the public domain, subject to be disposed of under the general land laws, and not to be claimed under any railroad land grant. There is no escape from this conclusion under the adjudged cases.
poses,' the court added, 'they owned it; as the actual right of possession, the only thing they deemed of value, was secured to them by treaty, until they should elect to surrender it to the United States,' Three justices, of whom the writer of this opinion was one, dissented from the majority of the court in the Leavenworth Case; but the decision has been uniformly adhered to since its announcement, and this writer, after a much larger experience in the consideration of public land grants since that time, now readily concedes that the rule of construction adopted, that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both to the government and to private parties, than the rule
In Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. 566, in which the attempt was made to include within a railroad grant lands to which a homestead claim had previously attached, but which claim had ceased to exist when the line of the railroad was definitely fixed, the court, speaking by Mr. Justice Miller, said: "No attempt has ever been made to include lands reserved to the United States, which reservation afterwards ceased to exist, with- which would pass the property subject to in the the grant, though this road, and others with grants in similar language, have more than once passed through military reservations, for forts and other purposes, which have been given up or abandoned as such reservations, and were of great value. Nor is it understood that, in any case where lands had been otherwise disposed of, their reversion to the government brought them within the grant."
In Bardon v. Northern P. R. Co. supra, Mr. Justice Field, delivering the unanimous
the liens and claims of others. The latter construction would open a wide field of litigation between the grantees and third parties."
Again, in the same case, where the contention was that the Northern Pacific grant embraced lands to which a pre-emption claim had previously attached, but which claim was canceled after the date of that grant, the court said: "That pre-emption entry remained of record until August 5, 1865, when it was canceled; but this was after the date
of the grant to the Northern Pacific Railroad Land Department ordered that lands the Company, and also after the dates of the several grants made to the state of Wisconsin to aid in the construction of railroad and telegraph lines within that state. The cancelation, as already said, did not have the effect of bringing the land under the operation of the grant to the Northern Pacific Railroad Company; it simply restored the land to the mass of public lands, to be dealt with subsequently in the same manner as any other public lands of the United States not covered by or excepted from the grant."
whole length of the river within the state should be withdrawn from sale. In the course of subsequent litigation it was decided by this court that the grant terminated at the mouth of the Raccoon river. But in the case cited it was held that the withdrawal by the Land Department of lands above the mouth of the Raccoon river was valid, and that a subsequent railroad grant, with the ordinary reservation clause in it, did not operate upon lands so with drawn." So, in Northern P. R. Co. v. Musser-Sauntry Land, Logging, & Mfg. Co. 168 In United States v. Southern P. R. Co. U. S. 604, 607, 611, 42 L. ed. 596, 597, 599, 146 U. S. 570, 606, 36 L. ed. 1091, 1101, 13 18 Sup. Ct. Rep. 205, 206, 207: "But a sinSup. Ct. Rep. 152, 160, this court, speaking gle question is presented in this case, and by Mr. Justice Brewer, said: "Indeed, the that is whether the withdrawal from sale intent of Congress in all railroad land by the Land Department in March, 1866, of grants, as has been understood and declared lands within the indemnity limits of the by this court again and again, is that such grant of 1856 and 1864 exempted such lands grant shall operate at a fixed time, and from the operation of the grant to the shall take only such lands as at that time plaintiff. It will be perceived that the are public lands, and, therefore, grantable grant in aid of the defendant railway comby Congress, and is never to be taken as a pany was prior in date to that to the plainfloating authority to appropriate all tracts tiff, and that before the time of the filing within the specified limits which, at any of plaintiff's maps of general route and defsubsequent time, may become public lands." inite location the lands were withdrawn for In Whitney v. Taylor, 158 U. S. 85, 92, 39 the benefit of the defendant. The grant to L. ed. 906, 908, 15 Sup. Ct. Rep. 796, 799, the plaintiff was only of lands to which the Mr. Justice Brewer, again speaking for the United States had 'full title, not reserved, court, said: "That when, on the records of sold, granted, or otherwise appropriated, the local land office, there is an existing and free from pre-emption, or other claims claim on the part of an individual under or rights, at the time the line of said road the homestead or pre-emption law, which is definitely fixed.' The withdrawal by the has been recognized by the officers of the Secretary in aid of the grant to the state of government, and has not been canceled or Wisconsin was valid, and operated to withset aside, the tract in respect to which that draw the odd-numbered sections within its claim is existing is excepted from the op- limits from disposal by the land officers of eration of a railroad land grant containing the government under the general land laws. the ordinary excepting clauses, and this The act of the Secretary was in effect a resnotwithstanding such claim may not be en-ervation. Wolcott v. Des Moines Nav. & R. forceable by the claimant, and is subject to cancelation by the government at its own suggestion or upon the application of other parties. It was not the intention of Congress to open a controversy between the claimant and the railroad company as to the validity of the former's claim. It was enough that the claim existed, and the question of its validity was a matter to be settled between the government and the claimant, in respect to which the railroad company was not permitted to be heard." In Spencer v. McDougal, 159 U. S. 65, 40 L. ed. 77, 15 Sup. Ct. Rep. 1026, the court referred to Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689, in which the question arose whether a grant of public lands on each side of Des Moines river, in aid of navigation, terminated at the mouth of Raccoon fork or extended along the whole length of the river to the northern boundary of the state, and said: “The
Co. 5 Wall. 681, 18 L. ed. 689; Wolsey v.
Many cases are called to our attention which are supposed to militate against the views we have here expressed. We have ex
erates to except the withdrawn lands from the scope of such later grant." The doctrines of these cases were recognized in the recent case of Northern P. R. Co. v. De-amined those referred to and do not perceive Lacey, 174 U. S. 622, 43 L. ed. 1111, 19 Sup. Ct. Rep. 791.
that any one of them decided the particular question now before us. No one of them holds that a grant, in præsenti, of public lands, with the ordinary reservations, embraces lands which, at the date of such grant, are under the operation of a formal
In view of these decisions it is clear that, as the lands in dispute were, at the date of the grant to the Northern Pacific Railroad Company, withdrawn, of record, for the benefit of the Lake Superior & Mississippi Rail-order of the Land Department, of record, road, under a prior grant, they were not public lands within the meaning of the later grant, and did not come under it, when or because it was subsequently ascertained that they were without the line of the definite location of the road of the Lake Superior Railroad Company, and within the place limits of the Northern Pacific, as defined by its map of definite location. When freed from the operation of the accepted map of general route filed by the Lake Superior & Mississippi Railroad Company, they did not come under the operation of the later grant to the Northern Pacific Railroad, but became a part of the public lands constituting the public domain, and subject only to be disposed of under the general laws relating to the public lands. If, by the act of July 2d, 1864, or before the line of the Northern Pacific Railroad was definitely located, Congress had, in terms, appropriated, for the benefit of that road, any of the lands embraced in the general route of the other road, a different question would be presented. But it did not do so. It only granted for the benefit of the Northern Pacific Railroad lands which then, July 2d, 1864, were public lands, and no lands were public lands, within the meaning of Congress, which, at that time, were withdrawn by the Land Department; that is, reserved for the purposes of a grant prior, although such reservation turned out to have been a mistake.
The suggestion is made in this connection that the order of the Land Department was too uncertain and indefinite to have any legal force, because the direction of the local land office was to suspend from pre-emption, settlement, and sale "a body of land about 20 miles in width." We deem this suggestion without merit. The order for withdrawal referred to the diagram or map showing the road's probable route; and it is agreed that the lands in dispute are coterminous and within 10 miles of the line of the general route of the Lake Superior & Mississippi Railroad, as defined by the above diagram or map. The map, however indefinite, was intended to cover these lands. It sufficiently indicated these lands and the probable route of the road, and that was enough.
withdrawing them for the benefit of a prior grant in the event they should be needed for the purposes of such grant. Nor does any of them hold that the subsequent cancelation of such withdrawal order had the effect to bring them under the operation of a later grant of public lands. It is said that United States v. Oregon & C. R. Co. 176 U. S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 261, and Wilcox v. Eastern Oregon Land Co. 176 U. S. 51, 44 L. ed. 368, 20 Sup. Ct. Rep. 269, should be regarded as controlling and deci sive of this case for the appellant. We do not think so. The principal point decided in those cases was that nothing in the act of 1864 prevented Congress by legislation from appropriating for the benefit of other railroad corporations lands that might be or were embraced within the general route of the Northern Pacific Railroad; and this for the reason that an accepted map of general route only gave the company filing it an inchoate right, and did not pass title to specific sections until they were identified by a definite location of the road. Besides, in neither case was there in force, at the date of the later grant, an accepted, effective order lands there in dispute pursuant to an acof the Land Department withdrawing the cepted map of the general route of the Northern Pacific Railroad. If there had been an order of that kind, it would still have been competent for Congress to dispose of the lands within such general route, as it saw proper, at any time prior to the definite location of the road under the later grant. In conformity with prior decisions it was so adjudged in the two cases above cited. Those cases did not adjudge that a grant of "public land," with the usual reservations, embraced any lands which, at the time, were formally withdrawn by the Land Department from pre-emption, settlement, or sale, for the benefit of a prior grant.
We are of opinion that the Circuit Court and the Circuit Court of Appeals correctly interpreted the decisions of this court and did not err as to the law of the case. The judgment below must, therefore, be affirmed. It is so ordered.
MONTANA MINING COMPANY, Limited, against Mayger in the district court of the
Plff. in Err.,
ST. LOUIS MINING & MILLING
Certiorari to circuit court of appeals.
third judicial district of Montana. For the purpose of settling and compromising that COM-action on March 7, 1884, a bond was execut
1. Certiorari to the circuit court of ap peals will be allowed by the Federal Supreme Court, where the importance of the case demands it, to avoid any question as to the jurisdiction of the Supreme Court of a writ of error duly allowed, where an application for certiorari was made after a motion to dismiss the writ of error was filed.*
Mines-conflicting lode locations-effect of compromise.
ed by Mayger to the other parties, in which he agreed to proceed as rapidly as possible deliver to Robinson a good and sufficient to obtain a patent, and then to execute and deed of conveyance of a tract described as "comprising a part of two certain quartz lode mining claims, known as the St. Louis lode claim and the Nine Hour lode claim, and particularly described as follows, to wit." Then follows a description of what is known as the compromise ground,-a tract including an area of 12,844.5 square feet, 2. An adjustment of subsurface rights, together with all the mineral therein conand not merely the establishment of a surtained." Mayger proceeded to obtain a patface boundary line between two conflicting ent for the St. Louis claim, including the lode mining claims, was accomplished by compromise ground, as did also Robinson an agreement to compromise adverse pro- and his associates, a patent to the Nine Hour ceedings, followed by the execution of a claim, omitting the compromise ground. bond by the locator of one of such claims, Thereafter the plaintiff in error acquired the by the terms of which he was to obtain a interest of Robinson and his associates and patent, and was then to execute a deed of the defendant in error the interest of Maycertain of the disputed territory, "together with all the mineral therein contained," ger. The former company demanded a conwhich deed, when executed, pursuant to a veyance of the compromise ground in acdecree for specific performance, conveyed cordance with the terms of the bond executthe tract described in the bond with "alled by Mayger, which being refused, suit was the mineral therein contained," together with "all the dips, spurs, and angles, and also all the metals, ores, gold and silverbearing quartz rock and earth therein."
brought in a district court of the state, which rendered a decree in its favor. That decree having been affirmed by the supreme court of the state, the St. Louis company brought the case to this court, and on October 31, 1898, the judgment of the supreme
Argued December 10, 11, 1906. Decided Jan- court of Montana was affirmed. 171 U. S. uary 14, 1907.
650, 43 L. ed. 320, 19 Sup. Ct. Rep. 61. In pursuance of the decree the St. Louis comN ERROR to the United States Circuit pany deeded the tract described in the bond, Court of Appeals for the Ninth Circuit giving its boundaries, the number of square to review a judgment which affirmed a judg-feet contained therein, and adding, "together ment of the Circuit Court for the District of with all the mineral therein contained. ToMontana in favor of plaintiff in an action together with all the dips, spurs, and angles, recover damages for the removal of ore from certain disputed territory. Certiorari allowed to avoid the question of jurisdiction of writ of error, and the judgment of the Court of Appeals reversed and the case remanded to the Circuit Court for a new trial. See same case below, 147 Fed. 897.
and also all the metals, ores, gold and silver-bearing quartz rock and earth therein, and all the rights, privileges, and franchises thereto incident, appended, or appurtenant, or therewith usually had and enjoyed; and also all and singular the tenements, heredit aments, and appurtenances thereto belonging or in anywise appertaining, and the rents, issues, and profits therein, and also all and every right, title, interest, property, possession, claim, and demand whatsoever, as well
the first part, of, in, or to the said premises and every part and parcel thereof, with the appurtenances."
Statement by Mr. Justice Brewer: The litigation between these parties has been protracted through a series of years. A brief history will help to an understand-in law as in equity, of the said party of ing of the present questions. Prior to 1884 Charles Mayger had located the St. Louis lode claim in Lewis and Clarke county, Montana territory, and William Robinson and others had located, adjoining thereto, the Nine Hour lode claim. These claims conflicted. Mayger made application for a patent. Thereupon adverse proceedings were commenced by Robinson and his associates *Ed. Note.-For cases in point, see vol. 9, Cent. Dig. Certiorari, §§ 12, 13.
Prior explorations, the exact date of which is not shown, but apparently long after the compromise agreement, had disclosed the fact that beneath the surface of this compromise ground there was a large body of ore which, it was claimed, belonged to a vein