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March 2, 1885


The opinion of the court was delivered by: Miller, J.

J. P. Usher and John F. Dillon, for plaintiff in error.

[Argument of Counsel from pages 630-632 intentionally omitted]

No appearance for defendant in error.

This is a writ of error to the supreme court of Kansas. The action was brought in that court on a covenant of warranty of title to two pieces of land in a deed of conveyance made by the company to Dunmeyer. The land was sold by the company to George W. Miller, to whom a certificate of sale was given, which afterwards came by assi nments to Lewis Dunmeyer, to whom the company made a deed purporting to convey a good title. On this covenant for good title Dunmeyer brought the present action, alleging that the railroad company never had any title, and that the covenant was therefore broken. On this issue the case was tried. Several other defenses were set up; among them, that the covenant was not broken, because Dunmeyer was in possession when he bought the certificate issued to Miller and when he took his deed, and has never been disturbed or ousted; that Miller was in possession when he bought of the company and transferred possession to Dunmeyer, and that this has been held ever since; and that Miller's purchase was a compromise of disputed rights, and he and Dunmeyer are therefore estopped to maintain this action. But these and perhaps other points, decided against plaintiff in error, do not present questions of federal law which this court can review in a judgment of a state court.

Two such questions are presented by this record, which are said to be of great importance as covering controverted titles to many thousand acres of valuable land. The sum involved in this suit is but little over $300, and while the plaintiff in error has been represented here by able counsel and by oral arguments at two different hearings, we have no aid from the defendant, either by counsel or brief. This is very much to be regretted, but is without remedy, and only devolves on the court the duty of more than ordinary care in its own examination of the case. The claim of title of the railroad company, which the supreme court of Kansas held to be no title, arises under two acts of congress granting land to the Union Pacific Railroad Company and its branches, namely, the act of July 1, 1862, (12 St. 489,) and the amendatory act of July 2, 1864, (13 St. 356,) and another act of July 3, 1866, (14 St. 79.) The land, the title to which is in controversy in this suit, is part of an odd-numbered section, and lies within 10 miles of the company's road, and the title of the company to it when it made the conveyance to Dunmeyer was perfect, under the grant found in the acts of congress mentioned, unless it came within some of the exceptions contained in the language of the grant. The supreme court of Kansas based its decision on the ground that it did come within the language of such an exception. That language is as follows:

'Sec. 3. And be it further enacted, that there be, and hereby is, granted to said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure speedy transportation of the mails, troops, and munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five sections per mile, on each side of said railroad, on the line thereof, within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed.'

An exception of mineral lands follows in a proviso which does not affect the present question.

The record shows that on July 25, 1866, Miller made a homestead entry on this land which was in every respect valid, if the land was then public land subject to such entry. It also shows that the line of definite location of the company's road was first filed with the commissioner of the general land-office at Washington, September 21, 1866. This entry of Miller's, therefore, brought the land within the language of the exception in the grant as land to which a homestead claim had attached at the time the line of said road was definitely fixed. For we are of opinion that under this grant, as under many other grants containing the same words, or words to the same purport, the act which fixes the time of definite location is the act of filing the map or plat of this line in the office of the commissioner of t e general land-office.

The necessity of having certainty in the act fixing this time is obvious. Up to that time the right of the company to no definite section, or part of section, is fixed. Until then many rights to the land along which the road finally runs may attach, which will be paramount to that of the company building the road. After this no such rights can attach, because the right of the company becomes by that act vested. It is important, therefore, that this act fixing these rights shall be one which is open to inspection. At the same time it is an act to be done by the company. The company makes its own preliminary and final surveys by its own officers. It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or, rather, in his office. The line is then fixed. The company cannot alter it so as to affect the rights of any other party. Of course, as soon as possible, the commissioner ought to send copies of this map to the registers and receivers through whose territory the line runs. But he may delay this, or neglect it for a long time, and parties may assert claims to some of these lands, originating after the company has done its duty– all it can do–by placing in an appropriate place, and among the public records, where the statute says it must place it, this map of definite location, by which the time of the vestiture of their rights is to be determined. We concede, then, that the filing of the map in the office of the commissioner is the act by which 'the line of the road is definitely fixed' under the statute. Van Wyck v. Knevals, 106 U. S. 360; S. C. 1 SUP. CT. REP. 336.

It is strongly argued, by counsel for plaintiff in error, that the language of the excepting clause in the third section of the act of 1862 is modified or repealed by certain expressions found in section 4 of the amendatory act of 1864. That section is intended to imcrease the grant of land made by the act of 1862 to double the quantity then granted. It does this by very peculiar language. It was evidently designed that the new grant should relate back for its date to that of the original grant, whereby it became retrospective as to all the lands added by the new act. It says that 'five' in the old act shall read 'ten,' where the number of sections is mentioned; that 'ten' shall read 'twenty,' where the limits within which the section may be found are described by miles. And it says that the term 'mineral lands,' in the exception in the grant, shall not be construed to mean coal or iron lands. Seeing, however, that this retrospective grant might affect rights already accrued or initiated, it is said in immediate connection, and in the same section, that 'any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp-land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler, or any lands returned and denominated as mineral.' It is difficult to see how this language, the main purpose of which was to prevent this retroactive grant from harming any kind of a claim to the lands granted which had taken effect before the statute was passed, can be construed as repealing the fundamental clause of the original act, in which the character of the grant and of its exceptions are fully defined. This new provision may make other exceptions while enlarging the grant, and was undoubtedly intended to add further safeguards to the settler and further protection to the public. But how the clause be supposed to narrow the original exception, or to be a substitute for that exception, or to repeal it, is not readily to be seen. It had no such purpose. It had a very different purpose, and clearly leaves the original section, which it changes as to the limit of the grant, to stand as to the exception, save as further exceptions are ad ed.

Another argument, which at first blush appears to rest on a stronger foundation, requires examination. The record shows that while the company did not file its line of definite location until about two months after Miller made his homestead entry, it did designate the general route of said road, and file a map thereof in the general land-office, July 11, of the same year, 1866, which was 15 days before Miller's homestead entry. This latter map was filed in the office of the register and receiver on the twenty-sixth of July, one day after Miller made his entry. It is argued that until this was don 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 en ry, 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 attached. 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 a 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 excepting 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 pre-emption or the homestead law. You have it in your power to put an ...

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