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Opinion of the Court.

question that the preëmption entry by the heirs of Robinson, the payment of the sums due to the government having been made, as the law allowed, by them after his death, took the land from the operation of the subsequent grant to the Northern Pacific Railroad Company, if the preëmption entry had not been subsequently cancelled. But such cancellation had not been made when the act of Congress granting land to the Northern Pacific Railroad Company was passed; it was made more than a year afterwards. As the land preëmpted then stood on the records of the Land Department, it was severed from the mass of the public lands, and the subsequent cancellation of the preëmption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court.

In Wilcox v. Jackson, 13 Pet. 498, 513, this court þeld that whenever a tract of land has been legally appropriated to any purpose,

from that moment it becomes severed from the mass of public lands, and no subsequent law, or proclamation, or sale will be construed to embrace it, or to operate upon it, although no reservation of it be made. The validity and effect of the appropriation do not depend upon its not being subjected afterwards to cancellation because of the omission of some particular duty of the party claiming its benefit.

In Witherspoon v. Duncan, 4 Wall. 210, 218, this court held that if a party entitled by law to enter land at the land office does so, when the certificate of entry is given to him, a contract is executed between him and the government, and thereafter the land ceases to be a part of the public domain. The court considered the question whether there was any difference in such case between a cash and a donation entry, the one being complete when the money was paid, and the other not until it was confirmed by the General Land Office and a patent issued. There, it is true, the question was as to the power of a State to tax the land before the patent issued, and the court said if the law on the subject is complied with and

Opinion of the Court.

the entry conforms to it, it is difficult to see why the right to tax does not attach as well to the donation as to the cash entry. In either case, when the entry is made and a certificate is given, the particular land is segregated from the mass of public lands and becomes private property.

In Hastings &c. Railroad Co. v. Whitney, 132 U. S. 357, 361, this court, in commenting upon the decision in the case last cited, said: “The fact that such an entry may not be confirmed by the land office on account of any alleged defect therein, or may be cancelled or declared forfeited on account of non-compliance with the law, or even declared void, after a patent has issued, on account of fraud, in a direct proceeding for that purpose in the courts, is an incident inherent in all entries of public lands.” And it added : “In the light of these decisions, the almost uniform practice of the department has been to regard land, upon which an entry of record valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, preëmption, settlement, sale or grant until the original entry be cancelled or declared forfeited ; in which case the land reverts to the government as part of the public domain, and becomes again subject to entry under the land laws."

The case of Leavenworth, Lawrence & Galveston Railroad v. United States, 92 U. S. 733, well illustrates this doctrine. It was here at October term, 1875, and was elaborately argued. It was a suit in equity brought by the United States to establish their title to certain tracts of land, and to enjoin the railroad company from setting up any right or claim to them. A grant had been made by the act of Congress of March 3, 1863, to the State of Kansas of certain tracts of land lying in what is known as the “ Osage country,” to aid in the construction of certain railroads and telegraph lines in that State. Within the limits of the Osage country there had been reserved by treaty with the Great and Little Osage tribes of Indians certain described tracts of land in that State so long as they might choose to occupy the same. (7 Stat. 240.) The act contained words of conveyance similar to those used in other grants by Congress to aid in the construction of rail

Opinion of the Court.

roads, without a specific exception of any lands as being subject to the use of the Indians. The only exceptions to the granting clause were : 1st, that in case it should appear that the United States had, when the lines or routes of the road and branches were definitely fixed, sold any section or any part thereof granted, or that the right of preëmption or homestead settlement had attached thereto, or the same had been reserved by the United States for any purpose whatever, then it should be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to tiers of sections above specified, so much land, in alternate sections or parts of sections, designated by odd numbers, as should be equal to such lands as the United States had sold, reserved or otherwise appropriated, or to which the right of preëmption or homestead settlements had attached as aforesaid ; and, 2d, that lands previously reserved to the United States by an act of Congress, or in any other manner by competent authority, for the purpose of aiding in any internal improvement, or for any other purpose whatsoever, were reserved from the operation of the act, except so far as it might be found necessary to locate the routes of the road and branches through such reserved lands, in which case the right of way only should be granted, subject to the approval of the President of the United States. After the granting act was passed the Indian title or right of occupancy was extinguished.

On the argument of the case the United States maintained that the granting act, though not mentioning the claim of the Indians, did not affect their lands, and was not intended to do so. The railroad company, on the contrary, contended that although the grant did not operate upon any specified lards until the road was located, it covered the lands in controversy, and by the extinction of the Indian title they had, in the proper sense of the term, become public lands. But the court answered that the grant was made for the purpose of aiding a work of internal improvement, and did not extend beyond that intent; that the grant was one in presenti ; and that the words “there be and is hereby granted” were those of absolute

Opinion of the Court.

donation. “They vest,” said the court,“ a present title in the

. State of Kansas, though a survey of the lands and a location of the road are necessary to give precision to it and attach it to any particular tract."

The lands granted were designated by odd-numbered sections within certain definite limits, and only the public lands, said the court, owned absolutely by the United States were subject to survey and division into sections, and to them only was the grant applicable. It embraced, therefore, only such as could at the time be sold and enjoyed, and not those which the Indians, pursuant to treaty stipulations, were left free to enjoy. In affirmance of its views the court added that since the land system was inaugurated the grants of the government, either to individuals or to aid in works of internal improvement, had always been recognized as attaching only to so much of the public domain as was subject to sale or other disposal, although the roads of many subsidized companies passed through Indian reservations, observing that such grants could not be otherwise construed, for Congress could not be supposed to have thereby intended to include land previously appropriated to another purpose, unless there was an express declaration to that effect. A special exception of it was not necessary, because the policy which dictated them confined them to land which Congress could rightfully bestow without disturbing existing relations and producing vexatious conflicts.

In Buttz v. The Northern Pacific Railroad, 119 U. S. 55, a portion of the land granted was in the occupation of certain Indian tribes, and the act provided that the United States should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands falling under the operation of the act and acquired in the donation to the road - a provision which distinguished the grant from the one in The Leavenworth Case. In The Buttz Case, the grant passed the land, therefore, to the railroad company subject to the Indians' right of occupancy, which could only be interfered with or determined by the United States.

In The Leavenworth Case, the appellant, the railroad com

Opinion of the Court.

pany, 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, 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 absolutely or cum onere. “For all practical purposes, 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 which would pass the property subject to the liens and claims of others. The latter construction would open a wide field of litigation between the grantees and third parties.

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