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ly fixed, and a plat thereof filed in the of- Although the stipulation of the parties fice of the Commissioner of the General Land as to the facts is very lengthy, those here Office.”

stated are sufficient to present the point In 1866 the Lake Superior & Mississippi upon which, it is agreed, the decision of the Railroad Company filed a map of the def- case depends. inite location of its road, from which it ap- We have seen that, at the date of the peared that the land in dispute was outside grant of July 2d, 1864, to the Northern Paof the place, indemnity, and terminal limits cific Railroad Company, the particular land of that road as thus located.

in dispute was within the lines designated In 1882 the Northern Pacific Railroad by the accepted map of the general route Company filed its map of definite location, of the Lake Superior & Mississippi Railwhich showed that the particular lands here road; and that the grant for the Northern in dispute were in the place limits indicat- Pacific Railroad was of "public land.” Was ed by that map.

the land here in dispute public land at In 1883 the latter company filed in the the date of the passage of that act? If, by proper office a list of lands which it assert- reason of its having been then withdrawn. ed were covered by the grant made to it by the Land Department from pre-emption, on July 2d, 1864, and on that list, among settlement, and sale, it was not, at the date other lands, were those here in dispute. of the Northern Pacific grant, to be deemed

In 1901 the Commissioner of the Land public land, did that grant attach to it Office refused to approve, and rejected, the when the Northern Pacific road was deflist so far as the lands now in question were initely located in 1882? These questions concerned, upon the ground that, although were answered in the negative by both the they appeared, after the definite location of circuit court and the unanimous judgment the Northern Pacific Railroad, to be within of the circuit court of appeals. 134 Fed. 303, the primary limits of the grant made for 139 Fed. 614. that road by the act of July 2d, 1864, they It has long been settled tnat the grant to were excepted from the operation of said the Northern Pacific Railroad Company by grant, because they were, at the date of the the act of 1864 was one in præsenti; that passage of said act, within 10 miles of the is, the company took a present title, as of probable route of the Lake Superior & Mis the date of the act, to the lands embraced sissippi Railroad, in aid of the construction by the terms of the grant; the words “that of which a grant was made by the act of there be, and hereby is, granted” importing May 5th, 1864, and were embraced within “a transfer of present uitle, not a promise the withdrawal of May 26th, 1864, made on to transfer one in the future.” In St. Paul account of the last-mentioned grant.” The & P. R. Co. v. Northern P. R. Co. 139 U. question was taken on appeal to the Sec- s. 1, 5, 35 L. ed. 77, 79, 11 Sup. Ct. Rep. retary of the Interior, and he also rejected 389, 390, the court said that “the route the above list, rendering a decision under not being at the time determined, the grant date of July 16th, 1901, affirming the de- was in the nature of a float, and the title cision of the Commissioner,--the Secretary did not attach to any specific sections until ruling that, as these lands were, at the date they were capable of identification; but, of the grant to the Northern Pacific Rail. when once identified, the title attached to road Company, already "included within them as of the date of the grant, except asan existing and lawful withdrawal made in to such sections as

to such sections as were specifically reaid of a prior grant,” they were not to be served. It is in this sense that the grant deemed “public lands” when the Northern is termed one in præsenti; that is to say, it . Pacific grant of 1864 was made, and, con- is of that character as to all lands within sequently, were not embraced by that grant. the terms of the grant, and not reserved The Secretary held that the fact that a from it at the time of the definite locationright under a prior grant did not eventual of the route. This is the construction given ly attach to the lands here in question was to similar grants by this court, where the immaterial; "first, because the act of July question has been often considered; indeed, 2, 1864, was a grant in præsenti, and second, it is so well settled as to be no longer open because a reservation on account of a prior to discussion. Schulenberg v. Harriman, grant will defeat a later grant like that of 21 Wall. 44, 60, 22 L. ed. 551, 554; LeavJuly 2, 1864, whether the lands are needed enworth, L. & G. R. Co. v. United States, in satisfaction of the prior grant or not." 92 U. S. 733, 23 L. ed. 634; Missouri, K. Re Northern P. R. Co. 31 Land Dec. 33. & T. R. Co. v. Kansas P. R. L. 97 U. S. Under that decision the above list filed by 491, 24 L. ed. 1095; St. Joseph & D. C. R. the Northern Pacific Railroad Company was Co. v. Baldwin, 103 U. S. 426, 26 L. ed. formally and finally canceled, and these | 578.” The same principle was reaffirmed in lands were never assigned to it by the Land Bardon v. Northern P. R. Co. 145 U. S. Department.

535, 543, 36 L. ed. 806, 810, 12 Sup. Ct. Rep.

856, and in many other cases which are judgment of the court, said: "In the Leavfamiliar to the profession and need not be enworth Case, supra, the appellant, the railcited.

road company, contended that the fee of Again, no lands passed that were not, at the land was in the United States, and only the date of the grant, public land; that is, a right of occupancy remained with the Inlands "open to sale or other disposition un-dians; that, under the grant, the state der general laws;” not lands "to which any would hold the title subject to their right claims or rights of others have attached.” of occupancy; but, as that had been subsePardon v. Northern P. R. Co. supra. At the quently extinguished, there was no sound time of the grant of 1864 to the Northern objection to the granting act taking full Pacific Railroad Company the lands here in effect. The court, however, adhered to its dispute were, as we have seen, among those conclusion, that the land covered by the withdrawn by the Land Department from grant could only embrace lands which were, pre-emption, settlement, and sale, and were at the time, public lands, free from any held specifically under the grant of May 5th, lawful claim of other parties, unless there 1864, for the Lake Superior & Mississippi was an express provision showing that the Railroad. They were not, therefore, public grant was to have a more extended operalands embraced by the later grant to the tion,-citing the decision in Wilcox v. Jackother company. The grant of the Northern son, 13 Pet. 498, 10 L. ed. 264, to which we Pacific Railroad Company spoke as of the have referred above, that land once legally date of the act of July 2d, 1864; and that appropriated to any purpose was thereby company did not acquire any title to these severed from the public domain, and a sublands, then withdrawn, by reason of the sequent sale would not be construed to emfact that when its line, at a subsequent date, brace it, though not specially reserved. was definitely located, they had become freed And of the Indians' right of occupancy it from the grant made by the act of May 5th, said that this right, with the correlative ob1864, to the state of Minnesota. Being at ligation of the government to enforce it, the date of the grant of July 2d, 1864, un- negatived the idea that Congress, even in der the operation of an order of withdrawal the absence of any positive stipulation to by the Land Department, they were not in protect the Osages, intended to grant their the category of lands embraced by that land to a railroad company, either absolutegrant of “public lands." When the with-/ ly or cum onere. 'For all practical purdrawal order ceased to be in force the lands poses,' the court added, "they owned it; as so withdrawn did not pass under the later the actual right of possession, the only thing grant, but became a part of the public do- they deemed of value, was secured to them main, subject to be disposed of under the by treaty, until they should elect to surgeneral land laws, and not to be claimed render it to the United States, Three jusunder any railroad land grant. There is tices, of whom the writer of this opinion no escape from this conclusion under the was one, dissented from the majority of the adjudged cases.

court in the Leavenworth Case; but the In Kansas P. R. Co. v. Dunmeyer, 113 U. decision has been uniformly adhered to since S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. its announcement, and this writer, after a 566, in which the attempt was made to in- much larger experience in the consideration clude within a railroad grant lands to of public land grants since that time, now which a homestead claim had previously readily concedes that the rule of construcattached, but which claim had ceased to ex- tion adopted, that, in the absence of any ist when the line of the railroad was defi- express provision indicating otherwise, a nitely fixed, the court, speaking by Mr. Jus- grant of public lands only applies to lands tice Miller, said: “No attempt has ever which are at the time free from existing been made to include lands reserved claims, is better and safer, both to the govto the United States, which reserva- ernment and to private parties, than the rule tion afterwards ceased to exist, with which would pass the property subject to in the

the grant, though this road, and the liens and claims of others. The latter others with grants in similar language, have construction would open a wide field of litmore than once passed through military igation between the grantees and third parreservations, for forts and other purposes, ties.” which have been given up or abandoned as Again, in the same case, where the consuch reservations, and were of great value. tention was that the Northern Pacific grant Nor is it understood that, in any case where embraced lands to which a pre-emptio. claim lands had been otherwise disposed of, their had previously attached, but which claim reversion to the government brought them was canceled after the date of that grant, within the grant.'

the court said: “That pre-emption entry reIn Bardon v. Northern P. R. Co. supra, mained of record until August 5, 1865, when Mr. Justice Field, delivering the unanimous l 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 whole length of the river within the stato several grants made to the state of Wiscon should be withdrawn from sale. In the sin to aid in the construction of railroad course of subsequent litigation it was de. and telegraph lines within that state. The cided by this court that the grant termi. cancelation, as already said, did not have nated at the mouth of the Raccoon river. the effect of bringing the land under the But in the case cited it was held that the operation of the grant to the Northern Pa- withdrawal by the Land Department of cific Railroad Company; it simply restored lands above the mouth of the Raccoon river the land to the mass of public lands, to be was valid, and that a subsequent railroad dealt with subsequently in the same man- grant, with the ordinary reservation clause ner as any other public lands of the United in it, did not operate upon lands so withStates not covered by or excepted from the drawn." So, in Northern P. R. Co. v. Mus. grant.”

ser-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 whicì, 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 enervation. Wolcott v. Des Moines Nav. & R. forceable by the claimant, and is subject Co. 5 Wall. 681, 18 L. ed. 689; Wolsey v. to cancelation by the government at its Chapman, 101 U. S. 755, 25 L. ed. 915, and own suggestion or upon the application of cases cited in the opinion; Hamblin v. Westother parties. It was not the intention ern Land Co. 147 U. S. 531, 37 L. ed. 267, 13 of Congress to open a controversy between Sup. Ct. Rep. 353, and cases cited in the opinthe claimant and the railroad company as ion. It has also been held that such a with. to the validity of the former's claim. It drawal is effective against claims arising unwas enough that the claim existed, and the der subsequent railroad land grants.

St. question of its validity was a matter to be Paul & P. R. Co. v. Northern P. R. Co. 139 settled between the government and the U. S. 1, 17, 18, 35 L. ed. 77, 83, 84, 11 Sup. claimant, in respect to which the railroad Ct. Rep. 389; Wisconsin C. R. Co. v. Forcompany was not permitted to be heard.” sythe, 159 U. S. 46, 54, 40 L. ed. 71, 73, 15 In Spencer v. McDougal, 159 U. S. 65, 40 Sup. Ct. Rep. 1020; Spencer v. McDougal, L. ed. 77, 15 Sup. Ct. Rep. 1026, the court 159 U. S. 62, 40 L. ed. 76, 15 Sup. Ct. Rep. referred to Wolcott v. Des Moines Nav. & 1026.

All that we here hold is, that R. Co. 5 Wall. 681, 18 L. ed. 689, in which when a withdrawal of lands within indemnithe question arose whether a grant of pub- ty limits is made in aid of an earlier land lic lands on each side of Des Moines river, grant, and made prior to the filing of the in aid of navigation, terminated at the map of definite location by a company havmouth of Raccoon fork or extended along ing a later grant,—the latter having such the whole length of the river to the north- words of exception and limitation as are ern boundary of the state, and said: “The I found in the grant to the plaintiff,-it op

erates to except the withdrawn lands from Many cases are called to our attention the scope of such later grant.The doc- which are supposed to militate against the trines of these cases were recognized in the views we have here expressed. We have exrecent 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. that any one of them decided the particular Ct. Rep. 791.

question now before us. No one of them In view of these decisions it is clear that, holds that a grant, in præsenti, of public as the lands in dispute were, at the date of lands, with the ordinary reservations, emthe grant to the Northern Pacific Railroad braces lands which, at the date of such Company, withdrawn, of record, for the ben. grant, are under the operation of a formal efit of the Lake Superior & Mississippi Rail-order of the Land Department, of record, road, under a prior grant, they were not withdrawing them for the benefit of a prior public lands within the meaning of the later

grant in the event they should be needed for grant, and did not come under it, when or the purposes of such grant. Nor does any because it was subsequently ascertained that of them hold that the subsequent cancelation they were without the line of the definite lo- of such withdrawal order had the effect to cation of the road of the Lake Superior Railroad Company, and within the place limits bring them under the operation of a later of the Northern Pacific, as defined by its grant of public lands. It is said that United map of definite location. When freed from States v. Oregon & C. R. Co. 176 U. S. 28, the operation of the accepted map of general 44 L. ed. 358, 20 Sup. Ct. Rep. 261, and route filed by the Lake Superior & Missis- | Wilcox v. Eastern Oregon Land Co. 176 U. sippi Railroad Company, they did not come S. 51, 44 L. ed. 368, 20 Sup. Ct. Rep. 269, under the operation of the later grant to the should be regarded as controlling and deci: Northern Pacific Railroad, but became a sive of this case for the appellant. We do part of the public lands constituting the not think so. The principal point decided in public domain, and subject only to be dis- | those cases was that nothing in the act of posed of under the general laws relating to 1864 prevented Congress by legislation from the public lands. If, by the act of July 2d, appropriating for the benefit of other rail1864, or before the line of the Northern Pa- road corporations lands that might be or cific Railroad was definitely located, Con-were embraced within the general route of gress had, in terms, appropriated, for the the Northern Pacific Railroad; and this for benefit of that road, any of the lands em- the reason that an accepted map of general braced in the general route of the other road, route only gave the company filing it an ina different question would be presented. But choate right, and did not pass title to speit did not do so. It only granted for the cific sections until they were identified by a benefit of the Northern Pacific Railroad definite location of the road. Besides, in lands which then, July 2d, 1864, were public neither case was there in force, at the date lands, and no lands were public lands, with of the later grant, an accepted, effective order in the meaning of Congress, which, at that time, were withdrawn by the Land Depart-Llands there in dispute pursuant to an ac

of the Land Department withdrawing the ment; that is, reserved for the purposes of a grant prior, although although such® reservation cepted map of the general route of the

Northern Pacific Railroad. If there had been turned out to have been a mistake.

The suggestion is made in this connection an order of that kind, it would still have that the order of the Land Department was been competent for Congress to dispose of too uncertain and indefinite to have any le- the lands within such general route, as it gal force, because the direction of the local saw proper, at any time prior to the definite land office was to suspend from pre-emp-location of the road under the later grant. tion, settlement, and sale "a body of land In conformity with prior decisions it was about 20 miles in width.” We deem this sug. so adjudged in the two cases above cited. gestion without merit. The order for with. Those cases did not adjudge that a grant of drawal referred to the diagram or map show- "public land,” with the usual reservations, ing the road's probable route; and it is embraced any lands which, at the time, agreed that the lands in dispute are coter- were formally withdrawn by the Land Deminous and within 10 miles of the line of partment from pre-emption, settlement, or the general route of the Lake Superior & sale, for the benefit of a prior grant. Mississippi Railroad, as defined by the above We are of opinion that the Circuit Court diagram or map. The map, however in and the Circuit Court of Appeals correctly definite, was intended to cover these lands. interpreted the decisions of this court and It sufficiently indicated these lands and the did not err as to the law of the case. The probable route of the road, and that was judgment below must, therefore, be affirmed. enough.

It is so ordered.

V.

MONTANA MINING COMPANY, Limited, against Mayger in the district court of the Plff. in Err.,

third judicial district of Montana. For the

purpose of settling and compromising that ST. LOUIS MINING & MILLING COM-action on March 7, 1884, a bond was executPANY OF MONTANA.

ed by Mayger to the other parties, in which

he agreed to proceed as rapidly as possible Certiorari to circuit court of appeals. 1. Certiorari to the circuit court of ap deliver to Robinson a good and sufficient

to obtain a patent, and then to execute and peals will be allowed by the Federal Supreme Court, where the importance of the deed of conveyance of a tract described as case demands it, to avoid any question as “comprising a part of two certain quartz to the jurisdiction of the Supreme Court of lode mining claims, known as the St. Louis a writ of error duly allowed, where an ap- lode claim and the Nine Hour lode claim, plication for certiorari was made after a and particularly described as follows, to motion to dismiss the writ of error was wit." Then follows a description of what is filed.*

known as the compromise ground,-a tract Mines-conflicting lode locations-effect of including an area of 12,844.5 square feet, compromise. 2. An adjustment of subsurface rights, tained.” Mayger proceeded to obtain a pat

"together with all the mineral therein conand not merely the establishment of a sur. face 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 May. certain 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 brought in a district court of the state, with "all the dips, spurs, and angles, and which rendered a decree in its favor. That also all the metals, ores, gold and silver- decree having been affirmed by the supreme bearing quartz rock and earth therein."

court of the state, the St. Louis company [No. 402.]

brought the case to this court, and on Octo

ber 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 and also all the metals, ores, gold and silcertain disputed territory. Certiorari al- ver-bearing quartz rock and earth therein, lowed to avoid the question of jurisdiction and all the rights, privileges, and franchises of writ of error, and the judgment of the thereto incident, appended, or appurtenant, Court of Appeals reversed and the case re or therewith usually had and enjoyed; and manded to the Circuit Court for a new trial. also all and singular the tenements, hereditSee same case below, 147 Fed. 897. aments, and appurtenances thereto belonging

or in anywise appertaining, and the rents, Statement by Mr. Justice Brewer:

issues, and profits therein, and also all and The litigation between these parties has every right, title, interest, property, possesbeen protracted through a series of years. sion, claim, and demand whatsoever, as well 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 the first part, of, in, or to the said premises Charles Mayger had located the St. Louis and every part and parcel thereof, with the lode claim in Lewis and Clarke county, Mon-appurtenances." tana territory, and William Robinson and Prior explorations, the exact date of which others had located, adjoining thereto, the is not shown, but apparently long after the Nine Hour lode claim. These claims con compromise agreement, had disclosed the flicted. Mayger made application for a pat- fact that beneath the surface of this comproent. Thereupon adverse proceedings were mise ground there was a large body of ore commenced by Robinson and his associates which, it was claimed, belonged to a vein

*Ed. Note. -For cases in point, see vol. 9, Cent. Dig. Certiorari, $$ 12, 13.

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