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after Miller made his entry. It is argued that until this was done Miller's right of entry remained unaffected. But we are of opinion that the duty of filing this map, as required by the act, like that of the line of definite location, is performed by filing it in the general land-office, which is filing it with the secretary of the interior, and that whatever rights accrue to the company from the act of filing it accrue from filing it there. What are those rights ? This action does not, like the filing of the line of definite location, vest in the company a right to any specific piece of land. It establishes no claim to any particular section with an odd number. It authorizes the secretary to withdraw certain land from sale, pre-emption, etc. What if he fails to do this? What if he makes an order, as in this case, withdrawing a limit of 25 miles from sale, yet permits a party to enter and obtain a patent on some of this land? Without answering these general questions, we proceed to show that, by the statutes under which the company claims the land, the act of filing this map did not withdraw the land from homestead entry.
By the act of 1862 it is “provided that within two years after the passage of this act said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the department of the interior, whereupon the secretary of the interior shall cause the lands within 15 miles of said designated route to be withdrawn from pre-emption, private entry, and sale; and when any portions of said route shall be finally located, the secretary shall cause the said lands hereinbefore granted to be surveyed and set off, as fast as may be necessary, for the purposes herein named." At the time of the passage of the amendatory act of 1864, the general route of the road had not been designated, and therefore the fifth section of that act says “that the time for designating the general route of said railroad, and of filing the map of the same, and the time for the completing of that part of the railroads, required by the terms of said act, (of 1862,) of each company, be, and the same is hereby, extended one year from the time in said act designated.” It appears that in the year 1866, though the time for the designation of the general route had expired a year before, it had not yet been done or completed. To relieve the company from this failure to comply with the law, congress enacted, July 3, 1866, "that the Union Pacific Railway Company, Eastern division, (which is the branch now called the Kansas Pacific Railway Company,) is hereby authorized to designate the general route of their said road and file a map thereof, as now required by law, at any time before the first day of December, 1866, and upon the filing of said map, showing the general route of said road, the lands along the entire line thereof, so far as the same may be designated, shall be reserved from sale by order of the secretary of the interior.” It is under this latter statute that the railroad, company, now plaintiff in error, filed its map of the general designation of the-route in the department of the interior, July 11, 1866, 15 days before Miller's entry.
It will be observed that by the act of 1862, upon the filing of the company's map of designation of its general route, the secretary was required to withdraw the lands within 15 miles of said designated route from "pre-emption, private entry, and sale.” In the terminology of the laws concerning the disposition of the public lands of the United States, each of these words has a distinct and well-known meaning in regard to the mode of acquiring rights in these lands. This is plainly to be seen in the statutes we are construing. In the third section or granting clause, there are excepted from the grant all lands which, at the time the definite location of the road is fixed, had been sold, reserved, or otherwise disposed of, and to which a pre-emption or homestead claim had attaclied. Here sale, pre-emption, and homestead claims are mentioned as three different modes of acquiring an interest in the public lands, which is to be respected when the road becomes located, and the words are clearly used because they were thought to be necessary. But a sale for money in hand, by an entry made by the party buying, is, throughout the whole body of laws for disposing of the public lands, understood to mean & different thing from the establishment of a pre-emption or homestead right where the party sets up a claim to a definite piece of land, and is bound to build on it, make fences, cultivate and reside on it for a period of time prescribed by law.
In the act of 1866, after the company had neglected for four years to make this designation of their general route, they were allowed six months longer, and no more, to file their map. The statute did not give the secretary the same directions when this should be done which the original act of 1862 gave him, but this act declared that the lands along the entire line, so far as the same may be designated, shall be reserved from sale by order of the secretary of the interior. The lands were, therefore, to be reserved from sale only, and not from pre-emption or homestead claims. The dropping of these words in the later enactment, when they had been carefully inserted both in the ex. cepting clause of the original grant and in the direction for withdrawal in the same act, on filing the designation of the general route, is sufficient of itself to show a purpose in leaving them out of the reserving clause of the act of 1866. There is, however, a very obvious reason for it. The company had been negligent about filing this map. It was asking further time to do so as a favor. Congress said: We will grant you six months more, and when your map is filed the mere purchaser for money shall not be permitted to buy within the limit of your general route. He may be buying for speculation on the rise in value produced by the construction of your road. But we will no longer prevent the actual settler who resides upon and improves this land from locating on it and establishing a right, either under the preemption or the homestead law. You have it in your power to put an end to this as soon as you will by filing the map of your definite location of the road in the land-office. Until you do this, the actual settler shall not be excluded from these lands. We are, therefore, of opinion, in view of all the legislation on this subject, that the homestead claim of Miller had attached to the land in controversy when the line of the company's road was definitely fixed.
Another question of no little importance arises from the fact found in the record, that, while Miller made his homestead entry July 25, 1866, and entered upon the land within the time prescribed by law, erected a house on it and brought his family to live on it, and made the tract his home until the spring of 1870, he afterwards abandoned his homestead claim, and bought the land of the railroad company, and paid for it, and sold the land and transferred the certificate of sale to Dunmeyer, who obtained the conveyance from the company. After all this Miller's homestead entry was canceled, no doubt with Dunmeyer's consent, and G. B. Dunmeyer made a homestead entry which the land department held to be valid. It is argued by the company that, although Miller's homestead entry had attached to the land, within the meaning of the excepting clause of the grant, before the line of definite location was filed by it, yet when Miller abandoned his claim,*80 that it no longer existed. the exception no longer operated, and the land reverted to the company; that the grant by its inherent force reasserted itself, and extended to or covered the land as though it had never been within the exception. We are unable to perceive the force of this proposition. The land granted by congress was from its very character and surroundings uncertain in many respects until the thing was done which should remove that uncertainty, and give precision to the grant. Wherever the road might go, the grant was limited originally to 5 sections, and, by the amendment of 1864, to 10 sections on each side of it within the limit of 20 miles. These were to be odd-numbered sections, so that the even-numbered sections did not pass by the grant. And these oddnumbered sections were to be those “not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead right had
not attached at the time the line of said road is definitely fixed." When the line was fixed, which we have already said was by the act of filing this map of definite location in the general land-office, then the criterion was established by which the lands to which the road had a right were to be determined. Topographically this determined which were the 10 odd sections on each side of that line where the surveys had then been made. Where they had not been made, this determination was only postponed until the survey had been made. This filing of the map of definite location furnished also the means of determin. ing what lands had previously to that moment been sold, reserved, or other. wise disposed of by the United States, and to which a pre-emption or homestead claim had attached; for, by examining the plats of this land in the office of the register and receiver, or in the general land-office, it could readily have been seen if any of the odd sections within 10 miles of the line had been sold, or disposed of, or reserved, or a homestead or pre-emption claim had attached to any of them. In regard to all such sections they were not granted. The express and unequivocal language of the statute is that the odd sections not in this condition are granted. The grant is limited, by its clear meaning, to the other odd sections, and not to these.
No attempt has ever been made to include lands reserved to the United States, which reservation afterwards ceased to exist, within 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. Why should a different construction apply to lands to which a homestead or pre-emption right had attached? Did congress intend to say that the right of the company also attaches, and whichever proved to be the better right ob tained the land? The company had no absolute right until the road was built, or that part of it which came through the land in question. The homestead man had five years of residence and cultivation to perform before his right became absolute. The pre-emptor had similar duties to perform in regard to cultivation, residence, etc., for a shorter period, and then payment of the price of the land. It is not conceivable that congress intended to place these parties as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and the government as to the performance of their obligations.
The reasonable purpose of the government undoubtedly is that which it expressed, namely, while we are giving liberally to the railroad company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a pre-emption or homestead right to attach. No right to such land passes by this grant. No interest in the railroad company attaches to this land or is to be founded on this statute. Such is the clear and necessary meaning of the words that there is granted every alternate section of odd numbers to which these rights have not attached. It necessarily means that, if such rights have attached, they are not granted. Though the precise question here presented may not have been previously decided by this court, we are of opinion that the principles which should govern it have been acted on in other cases.
In Newhall v. Sanger, 92 U. S. 761, the Western Pacific Railroad Company, which by subsequent legislation of congress became entitled to the benefits of the acts of 1862 and 1864, already discussed, having filed a map of definite lo cation, obtained from the United States a patent for land supposed to be included in its grant. The land in controversy, however, was within the boundaries of a claim under a Mexican grant, which had been regularly presented and prosecuted by appeal, and was finally rejected February 13, 1865. The line of the route of the company's road had been filed before this, and the order withdrawing the land from private entry had been made. The argument in favor of the company was that the decision that the Mexican claim was invalid restored the land to the operation of the grant to the railroad company, and that the patent issued to the company was valid. But the court held that the land never became subject to the grant, and that the holder of a subsequent patent from the United States had the superior title. A similar decision was made at the same term in the case of Leavenworth, L. & G. R. Co. v. U. 8. 92 U. S. 733, to the effect that the purchase by the United States of Osage lands of the Indians, after a similar grant to that company, did not make it subject to the grant of 1863 of every alternate section along the line of the road.
It is said that the case of the Water & M. Co. V. Bugbey, 96 U. S. 165, should control the decision of this, and undoubtedly there are some analogies between them. That case grew out of the act of congress of March 3, 1853, (10 St. 244,) which, in providing for the system of surveying and disposing of the government lands in California, gave to that state, as it had done to others, every sixteenth and thirty-sixth section of a township for school purposes. No public surveys had at that time been made, and there was no probability that they could be made as fast as the tide of immigration would fill the country with settlers on these lands. To encourage these settlers and protect them against this grant of the school lands, it was provided in that act “that where any settlement by the erection of a dwelling-house, or the cultivation of any portion of the land, shall be made on the sixteenth or thirtysixtlı sections before the same shall be surveyed, or where such sections may be reserved for public uses, or taken by private parties, other lands shall be selected by the proper authorities of the state in lieu thereof." Bugby had made a settlement on one of these sections, and was there when the survey of the land was completed, May 19, 1866, but he never made any declaration of that fact, or sought to establish any right by reason of this settlement under the act of 1853, or under the general pre-emption law, and the register of the land-office certified to the state land-office, on the twenty-eighth of September, 1866, that no claim had been filed to this section 16, except by one Hancock, afterwards abandoned. On the twenty-second of April, 1867, Bugby purchased of the state the part of the section on which the premises in con. troversy in that suit were situated, and took a patent for it.
An act of congress of July 26, 1866, gave the right of way for ditches and canals in all public lands, when they were recognized by local customs, laws, and decisions of the courts, and the water and mining company, having run their canal through this land, asserted the right to do so under this statute, which Bugby resisted. This court said that if the title to the land was in the United States at the passage of the act of July 26, 1866, it conferred the right claimed as against Bugby, who purchased of the state in 1867. But it further held that the title was then in the state of California, for the reason that Bugby had never asserted any claim as a pre-emptor, but had recognized the right of the state, and purchased of the state, and was then relying on its patent. * The reasoning of the court was not elaborated, but it is clear, by its reference to the case of Sherman v. Buick, 93 U. S. 209, which it distin. guishes from Bugbey's Case by showing that Buick had prosecuted his right of pre-emption by asserting and perfecting his claim in the United States land-office, that Bugby's failure to assert, at any time or in any place, any right growing out of his settlement on the land prevented the mining company from asserting that the title was in the United States when the act of July 26, 1866, was enacted. It passed, by the statute of 1853, to the state, and was ascertained to be a sixteenth section by the survey, the filing of which perfected the title to the state, unless a right of pre-emption was asserted and proved to be in existence at that time. No such claim was ever made, and the title passed to the state.
In the case before us a claim was made and filed in the land-office, and there recognized, before the line of the company's road was located. That claim was an existing one of public record in favor of Miller when the map of plaintiff in error was filed. In the language of the act of congress this homestead claim had attached to the land, and it therefore did not pass by the grant. Of all the words in the English language, this word "attached” was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land-office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do. The right of the homestead having attached to the land, it was excepted out of the grant as much as if, in a deed, it had been excluded from the conveyance by metes and bounds. The difference in the two cases is obvious.
The judgment of the supreme court of the state of Kansas is affirmed.
(118 U. 8. 408) Hyatt and others, Partners, etc., 0. VINCENNES NAT. BANK and others.
(March 2, 1885.) EXECUTION SALE-LEASE OF COAL LAND WITH RIGHT TO MINE-INTEREST IN REAL Es.
In 1874 B. conveyed to H., for a term of 50 years, all the mineral coal upon and under a described tract of land in Knox county, Indiana, with the exclusive right to enter on the land to dig for the coal, and remove it, and to occupy, with constructions and buildings, as might be necessary and useful for the full development and enjoyment of the advantages of the coal; H. to have the right to remove all buildings or fixtures placed on the land when the agreement should expire, and to pay a fixed royalty for the coal mined. Under a judgment against H. the sher. iff of Knox county sold on execution, to the judgment creditor, at the court-house door, in that county, in the manner prescribed by statute for the sale of real estate, the interest of H. in the term of years, and certain buildings and articles belonging to hiin, which were & part of the structures and machinery for operating a coal mine on the land, and which were firmly attached to the land. In à suit in equity brought by the purchaser against another judgment creditor and the sheriff, to enjoin interference with the property so purchased, held that, under the Revised Statutes of Indiana of 1852, (2 Rev. St. pt. 2, c. 1; Act June 18, 1852, vol. 2 Davis' Ed. 1876, art. 24, 526, p. 232, and article 22, 22 463, 466, 467, as amended February 2,
1855, pp. 215, 217,) the sale of the property as real estate was valid. Appeal from the Circuit Court of the United States for the District of Indiana.
W. H. Calkins and A. C. Harris, for appellants. F. W. Viehe, for appellees.
BLATCHFORD, J. The Vincennes National Bank, of Vincennes, Indiana, and the Washington National Bank, of Washington, Indiana, having severally recovered judgments against William Helphenstine and others, composing the firm of William Helphenstine & Co., issued executions thereon, under which, and under an execution on another judgment, the sheriff of Knox county, Indiana, at the court-house door, in Vincennes, in that county, on a notice advertised for three weeks successively in a weekly newspaper, and notices posted as required by law for 20 days, offered at public sale the rents and profits, for a term not exceeding seven years, of certain real estate and chattels real on which he had levied, and, having received no bid for such rents and profits, exposed to public sale the fee-simple of the*real estate and chattels real and the improvements thereon, to-wit: “one engine and boiler