219 U.S. 380

31 S.Ct. 300

55 L.Ed. 258

FREDERICK WEYERHAEUSER and John A. Humbird,Appts.,

v.HERBERT H. HOYT.

No. 24.

Argued April 27, 28, 1910.Ordered for reargument December 19, 1910.

Reargued January 19, 20, 1911.Decided February 20, 1911.

[Syllabus from pages 380-382 intentionally omitted]

Messrs. Charles W. Bunn and F. B. Kellogg for appellants.

Messrs. M. H. Stanford and Herbert H. Hoyt for appellee.

Mr. Chief Justice White delivered the opinion of the court:

1 Conflicting claims to 40 acres of land in the state of Minnesota is thecontroversy which this case involves. Both parties assert title derived from theUnited States, the appellants in virtue of a patent issued under a land grantmade to the Northern Pacific Railroad Company, and the appellee as the resultof an alleged purchase under the timber and stone act. The facts are these:

2 The Northern Pacific Railroad Company in 1883 filed in the Land Department alist of indemnity selections which embraced the land in question. In 1893 arearranged list was filed, differing from the previous one, in that it specified theparticular tract of land lost in the place limits for which each described selectionwithin the indemnity limits was made. The Land Department having ruled thatthe eastern terminus of the Northern Pacific Railroad Company was not atAshland, but at Duluth, a point west of Ashland, the selections, so far as theyrelated to lands east of Duluth, among which was the land in controversy, werecanceled by order of the Secretary of the Interior. Following this, in December

of that year, Richard B. Jones applied to purchase the land under the timber andstone act. A few months after, on February 28, 1898, the Secretary of theInterior made an order formally withdrawing from entry the selected land eastof Duluth in order, as was declared, to preserve the right of the railroadcompany, if any, resulting from the selections previously filed, pending thedecision by this court of cases involving whether the eastern terminus was atDuluth or at Ashland. About nine months after this withdrawal, in December,1898, Jones made his final proof and paid the purchase money, $100. Thereceiver of the local land office, however, recited in the receipt issued to Jonesthat his rights were 'subject to any claim the Northern Pacific RailroadCompany may have to the lands herein described.'

3 In 1900 (177 U. S. 421, 44 L. ed. 830, 20 Sup. Ct. Rep. 677; 177 U. S. 435, 44L. ed. 836, 20 Sup. Ct. Rep. 706), it was decided that the eastern terminus ofthe Northern Pacific road was at Ashland, and therefore that the LandDepartment had erred in holding that such terminus was at Duluth. TheSecretary of the Interior then formally reinstated the list of selectionspreviously filed by the railroad company, the entry of Jones was canceled, andthe selections were approved and patents issued to the Northern PacificRailway Company as entitled to all rights under the selections. The railwaycompany conveyed the tract in controversy to Weyerhaeuser and Humbird, thepresent appellants.

4 This suit was then begun by Hoyt in a court of the state of Minnesota, againstWeyerhaeuser and Humbird, to compel a conveyance of the land, and torestrain the cutting or removal of timber during the pendency of the suit, on theground that the title was held by the defendants in trust for complainant. Theright to relief was principally based upon the contention that the purchase byJones under the timber and stone act was paramount to the indemnity selectionpreviously made by the railroad company, and hence that the Land Departmenthad fallen into an error of law in patenting the land to the company. In additionthere were numerous other grounds upon which the right to relief waspredicated, but we do not deem it necessary now to detail them, as we shallcome to state and dispose of them after we have passed upon the contentionconcerning the paramount nature of the timber and stone entry. The case,having been removed into a circuit court of the United States upon the groundthat on the face of the bill it involved the construction of acts of Congress, wasin that court tried and a decree was entered dismissing the bill. The circuit courtof appeals, whose action is now under review, reversed the decree of the circuitcourt, and remanded the cause, with directions to enter a decree for thecomplainant, granting the relief prayed. 88 C. C. A. 404, 161 Fed. 324.

5 The decision of the court was based upon the conclusion that the application topurchase, made by Jones, although subsequent in date to the filing by therailroad company of its list of indemnity selections, was paramount to suchselections, even although they had been subsequently approved by theSecretary of the Interior. This was not, however, the result of an interpretationoriginally considered of the granting act, but was exclusively caused, as shownby the opinion of the court, by what was held to be the authoritative andcontrolling operation of a decision of this court,—Sjoli v. Dreschel, 199 U. S.564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154. The soundness of this view lies at thethreshold of the case; since, if it be that the rights of the parties areauthoritatively concluded by the ruling in the Sjoli Case, it will not benecessary to further consider the subject. Coming at once to analyze the rulingin the Sjoli Case in order to fix its true import, we think it is apparent that thecourt below was mistaken in holding that the decision was here authoritativelydecisive. This is said because we see no escape from that conclusion when theissues in the Sjoli Case are accurately ascertained and are compared with thosehere presented.

6 The Sjoli controversy, succinctly stated, thus arose: A homestead settler went in1884 upon land within the indemnity limits of the grant to the Northern PacificRailroad Company. He erected a dwelling house and moved into it with hisfamily and cultivated a portion of the land, all prior to the filing in 1885 of a listof selections by the railroad company, embracing the tract settled upon by Sjoli.Although the settler had thus, prior to the filing of the list of selections, enteredupon and improved the land with the intention of perfecting title under thehomestead laws, his application to enter, for reasons which need not be hereadverted to, was not made until subsequent to the filing by the railroadcompany of its list of selections. Relying upon this fact, the railroad companyopposed the application of Sjoli, and the proceedings which took place in theLand Department simply required the Department to determine whether therailroad company, by the filing of its list of selections, could deprive the settlerSjoli of his rights, despite the fact that his settlement and improvement of theland had occurred prior to the filing by the company of its list of selections.The Land Department decided in favor of the settler, and a patent was issued tohim.

7 The matter decided by this court in the Sjoli Case arose from the bringing of asuit by Dreschel, as assignee of the rights of the railroad company, assertingthat Sjoli held the land in trust for him as the grantee of the railway company,because the Land Department had, as a matter of law, erred in deciding that therights of the settler Sjoli were paramount to the subsequent selection by therailroad company, since, at the time of the filing of such list of selections, no

record evidence existed in the Land Department of the asserted settlement bySjoli, or of his intention to avail of the benefit of the homestead laws. Theaction of the Land Department in maintaining the paramount right of the settlerwas sustained. As it is manifest from the statement we have made that thecontroversy in this case involves no question whatever concerning the rights ofa settler initiated prior to the filing by the railroad company of its list ofselections, but simply calls upon us to determine whether the Land Departmenterred in deciding that a filed list of selections was, after approval, paramount toa subsequent application to purchase, it is at once demonstrated that thequestion here involved is wholly different from that which was decided in theSjoli Case. This difference is as wide as that which would exist between aruling that one who was prior in time was prior in right, and a directlyantagonistic decision that one who was subsequent in time was yet prior inright. And the broad distinction which obtains between the matter which wasinvolved and decided in the Sjoli Case and the question presented on this recordis made, if need be, more apparent when it is considered that, in the Sjoli Case,the action of the Land Department in issuing the patent to the settler, becausehe was prior in time, was sustained, while to hold that decision applicable herewould reverse the action of the Land Department in issuing a patent to therailway company because it was prior in time. While, in view of this differencebetween the issues involved in the Sjoli Case and those here arising, we areconstrained to the conclusion that the former case cannot be held to be hereauthoritatively decisive, of course, the due persuasive force of the reasoning ofthe opinion in the Sjoli Case, if here applicable, remains, and must beconsidered when we come, as we now do, to pass upon the controversy herearising, enlightened by the true interpretation of the granting act, as elucidatedby the applicable decisions of this court.

8 It is beyond dispute on the fact of the granting act of July 2, 1864 (13 Stat. at L.365, 367, chap. 217), and of the joint resolution of May 31, 1870 (16 Stat. at L.378), extending the indemnity limits, that it was the purpose of Congress inmaking the grant to confer a substantial right to land within the indemnitylimits in lieu of lands lost within the place limits. It is also beyond dispute that,as the only method provided by the granting act for executing the grant in thisrespect was a selection of the lieu lands by the railroad company, subject to theapproval of the Secretary of the Interior, that a construction which woulddeprive the railroad company of its substantial right to select, and would rendernugatory the exertion of power of the Secretary of the Interior to approvelawful selections when made, would destroy the right which it was the purposeof Congress to confer. That the effect of holding that lands lawfully embracedin a list of selections duly filed and awaiting the approval of the Secretary of theInterior could, in the interim, be appropriated at will by others, would be

destructive of the right of selection, is not only theoretically apparent from themere statement of the proposition, but has, moreover, in actual experience, beenfound to be the practical result of carrying that doctrine into effect. See 25 Ops.Atty. Gen. 632. Considering the language of the granting act from a narrowerpoint of view, a like conclusion is in reason rendered necessary. The right toselect within indemnity limits was conferred to replace lands granted in placewhich were lost to the railroad company because removed from the operationof the grant of lands in place by reason of the existence of the rights of othersoriginating before the definite location of the road. The right to select withinindemnity limits excluded lands to which rights of others had attached beforethe selection, and hence simply required that the selection, when made, shouldnot include lands which, at that time, were subject to the rights of others. Therequirement of approval by the secretary consequently imposed on that officialthe duty of determining whether selections were lawful at the time they weremade, which is inconsistent with the theory that anyone could appropriate theselected land pending action of the Secretary. The scope of the power toapprove lists of selections, conferred on the Secretary, was clearly pointed outin Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 511, 33 L. ed. 687, 694,10 Sup. Ct. Rep. 341, where it was said that the power to approve was judicialin its nature. Possessing that attribute, the authority therefore involved not onlythe power, but implied the duty, to determine the lawfulness of the selections asof the time when the exertion of the authority was invoked by the lawful filingof the list of selections. This view, while it demonstrates the unsoundness of theinterpretation of the granting act which the contrary proposition involves,serves also at once to establish that the obvious purpose of Congress inimposing the duty of selecting and submitting the selections when made to thefinal action of the Secretary of the Interior was to bring into play theelementary principle of relation, repeatedly sanctioned by this court anduniformly applied by the Land Department from the beginning up to this time,under similar circumstances, in the practical execution of the land laws of theUnited States. Without attempting to cite the many cases in this courtillustrating and applying the doctrine, a few only which are aptly pertinent andhere decisive are referred to. Gibson v. Chouteau, 13 Wall. 92, 100, 20 L. ed.534, 536; Shepley v. Cowan, 91 U. S. 330, 23 L. ed. 424; St. Paul & S. C. R.Co. v. Winona & St. P. R. Co. 112 U. S. 720, 733, 28 L. ed. 872, 877, 5 Sup.Ct. Rep. 334; Oregon & C. R. Co. v. United States, 189 U. S. 103, 112, 47 L.ed. 726, 730, 23 Sup. Ct. Rep. 615; United States v. Detroit Lumber Co. 200 U.S. 321, 334, 50 L. ed. 499, 504, 26 Sup. Ct. Rep. 282, and cases cited.

9 In Shepley v. Cowan, there was conflict between a pre-emption claim and aselection on behalf of the state of Missouri under an act of Congress conveyingto the state a large quantity of land to be selected by the governor, the act

providing that if the selection should be approved by the Secretary of theInterior, patents were to issue. The court said (p. 337):

10 'The party who takes the initiatory step in such cases, if followed up to patent,is deemed to have acquired the better right, as against others, to the premises.The patent which is afterwards issued relates back to the date of the initiatoryact, and cuts off all intervening claimants. Thus, the patent upon a stateselection takes effect as of the time when the selection is made and reported tothe land office; and the patent upon a pre-emption settlement takes effect fromthe time of the settlement, as disclosed in the declaratory statement or proofs ofthe settler to the rigister of the local land office.'

11 On page 338, after distinguishing Frisbie v. Whitney, 9 Wall. 187, 19 L. ed.668, and Yosemite Valley Case (Hutchings v. Low) 15 Wall. 77, 21 L. ed. 82,the court said:

12 'But whilst, according to these decisions, no vested right as against the UnitedStates is acquired until all the prerequisites for the acquisition of the title havebeen complied with, parties may, as against each other, acquire a right to bepreferred in the purchase or other acquisition of the land when the UnitedStates have determined to sell or donate the property. In all such cases the firstin time in the commencement of proceedings for the acquisition of the title,when the same are regularly followed up, is deemed to be the first in right.'

13 In St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 28 L. ed.872, 5 Sup. Ct. Rep. 334, one of the questions arising for decision was which oftwo railroad companies was entitled to certain tracts of lieu lands situatedwithin overlapping indemnity limits of certain grants made by an act ofCongress to the territory of Minnesota, to aid in the construction of the roads ofthe contesting companies. The selections were to be made by the governor, andrequired the approval of the Secretary of the Interior. The Winona Companyfiled a list of selections. The St. Paul Company made no selections, butnevertheless, on grounds which need not be stated, the Secretary of the Interiorcertified the lands to the state for the use of that company. The WinonaCompany brought suit in the state court to have a declaration of its rights in theland, and to restrain the St. Paul Company and others from receiving a patent orother evidence of title to the lands from the governor of the state. The statecourt decreed in favor of the Winona Company, and this court affirmed itsaction. In the course of the opinion it was said (page 731):

14 'The time when the right to lands becomes vested, which are to be selected

within given limits under these land grants, whether the selection is in lieu oflands deficient within the primary limits of the grant or of lands which, forother reasons, are to be selected within certain secondary limits, is different inregard to those that are ascertained within the primary limits by the location ofthe line of the road.'

15 After referring to prior decisions, the conclusion was reached that, as to thelands to be selected, 'priority of selection secures priority of right;' and that, asthe Winona Company alone had made selection of the lands, and that selectionwas lawful, the right to the land as against third parties vested in the WinonaCompany as of the date of the filing of its lists of selections. In concluding theopinion it was said (p. 733):

16 'It is no answer to this to say that the Secretary of the Interior certified theselands to the state for the use of the appellant. It is manifest that he did so undera mistake of the law; namely, that appellant, having made the earlier locationof its road through these lands, became entitled to satisfy all its demands, eitherfor lieu lands or for the extended grant of 1864, out of any odd sections within20 miles of that location, without regard to its proximity to the line of the otherroad. We have already shown that such is not the law, and this erroneousdecision of his cannot deprive the Winona Company of rights which becamevested by its selection of those lands. Johnson v. Towsley, 13 Wall. 72, 80, 20L. ed. 485, 486; Gibson v. Chouteau, 13 Wall. 92, 102, 20 L. ed. 534, 537;Shepley v. Cowan, 91 U. S. 330, 340, 23 L. ed. 424, 427; Moore v. Robbins, 96U. S. 530, 536, 24 L. ed. 848, 851.'

17 So, also, in Oregon & C. R. Co. v. United States, 189 U. S. 103, 47 L. ed. 726,23 Sup. Ct. Rep. 615, the court said (p. 112):

18 'Now, it has long been settled that while a railroad company, after its definitelocation, acquires an interest in the odd-numbered sections within its place orgranted limits,—which interest relates back to the date of the granting act,—therule is otherwise as to lands within indemnity limits. As to lands of the latterclass, the company acquires no interest in any specific sections until a selectionis made with the approval of the Land Department; and then its right relates tothe date of the selection. And nothing stands in the way of a disposition ofindemnity lands, prior to selection, as Congress may choose to make.'

19 The doctrine thus affirmatively established by this court, as we have said, hasbeen the rule applied by the Land Department in the practical execution of landgrants from the beginning. Porter v. Landrum, 31 Land Dec. 352; Re Southern

P. R. Co. 32 Land Dec. 51; Re Santa Fe P. R. Co. 33 Land Dec. 161; Eaton v.Northern P. R. Co. 33 Land Dec. 426; Santa Fe P. R. Co. v. Northern P. R. Co.37 Land Dec. 669. The well-settled rule of the Land Department on the subjectwas thus stated by the then assistant attorney general in the department, nowMr. Justice Van Devanter, as follows:

20 'Under this legislation the company was, by the direction or regulations of theSecretary of the Interior, required to present at the local land office selections ofindemnity lands, and these selections, when presented conformably to suchdirection or regulations, were to be entertained and noted or recognized on therecords of the local office. When this was done the selections became lawfulfilings; and while, until approved and patented, they would remain subject toexamination, and to rejection or cancelation where found for any reason to beunauthorized, they, like all other filings, were entitled to recognition andprotection so long as they remained undisturded upon the records.

21 'There is no question in this case as to the sufficiency of the loss assigned, or asto the formality and regularity of the selection.

22 'What effect has been given to a pending railroad indemnity selection?

23 'Prior to 1887 the rights of a railroad company within the indemnity belt of itsgrant were protected by executive withdrawal; but on August 15, that year,these withdrawals were revoked, and the land restored to settlement and entry;but such orders, although silent upon the subject, were held not to restore landsembraced in pending selections. Dinwiddie v. Florida R. & Nav. Co. 9 LandDec. 74. In the circular of September 6, 1887 (6 Land Dec. 131), issuedimmediately after the general revocation of indemnity withdrawals, it wasprovided that any application thereafter presented for lands embraced in apending railroad indemnity selection, and not accompanied by a sufficientshowing that the land was for some cause not subject to the selection, was notto be accepted, but was to be held subject to the claim of the company undersuch selection. In fact a railroad indemnity selection, presented in accordancewith departmental regulations, and accepted or recognized by the local officers,has been uniformly recognized by the Land Department as having the samesegregative effect as a homestead or other entry made under the general landlaws.' [32 Land Dec. 53.]

24 Despite the doctrine of this court, as expounded in the cases previously referredto, the unbroken practice of the Land Department from the beginning in theexecution of land grants, impliedly sanctioned by Congress during the many

years that administrative construction has prevailed, and the destructive effectupon rights conferred by land-grant acts which would result from applying thecontrary view, it is yet urged that this must be done because of decisions of thiscourt which it is insisted constrain to that conclusion. One of the decisions thusreferred to is Sjoli v. Dreschel, to which we have previously referred, andothers are cited in the margin.1

25 What we have already said as to the Sjoli Case would suffice to dispose of thesuggestion concerning that case, but we shall recur to it. As to the other cases, itwould be adequate to say that not one of them involved the question here underconsideration, nor even by way of obiter was an opinion expressed on suchquestion. Indeed, all the cases relied upon may be placed in one of threeclasses: (a) those involving the nature and character of the right, if any, toindemnity lands prior to selection; (b) whether such lands, after the filing of alist of selections, and before action by the Secretary of the Interior thereon,could be taxed by a state to the railroad company as the owner thereof; and (c)those which were concerned with the nature and character of acts which wereadequate to initiate a right to public land which would be paramount to a list ofselections when the acts were done before the filing of the list of selections. Innone of the cases, moreover, was the wellsettled doctrine of this court as torelation, even by remote implication, questioned. Indeed, in most of the casesrelied upon, the previous decisions to which we have referred, expounding thedoctrine of relation, were approvingly cited or expressly reaffirmed.

26 The Sjoli Case, from the facts we have already stated, is clearly hereinapplicable, because it falls in the third of the above classes. If it be concededthat general language was used in the opinion in that case which, whenseparated from its context and disassociated from the issues which the caseinvolves, might be considered as here controlling, that result could not beaccomplished without a violation of the fundamental rule announced in Cohenv. Virginia, 6 Wheat. 399, 5 L. ed. 290, so often since reiterated and expoundedby this court, to the effect that 'general expressions in every opinion are to betaken in connection with the case in which those expressions are used. If theygo beyond the case, they may be respected, but ought not to control thejudgment in a subsequent suit when the very point is presented for decision.'The wisdom of the rule finds apt illustration here when it is considered that noteven an intimation was conveyed in the Sjoli Case of any intention to overrulethe repeated prior decisions of this court concerning the operation and effect ofthe doctrine of relation upon the approval, by the Secretary of the Interior, of alawful list of selections. That the general expressions in the Sjoli Case are notpersuasive here clearly results from the demonstration which we havepreviously made, that to apply them would be in effect to destroy the indemnity

provisions of the granting act. Moreover, that serious general injuriousconsequences would arise from treating the expressions relied upon in the SjoliCase as persuasive is clear (a) because to do so would result in the overthrow ofthe uniform rule by which the Land Department has administered land grantsfrom the beginning,—a rule continued in force after the decision in the SjoliCase, because of the administrative conclusion that that case should beconfined to a like state of facts, and not be extended to other and differentconditions (25 Ops. Atty. Gen. 632); (b) because of the destructive effect uponrights of property and the infinite confusion which would now arise fromextending, under the circumstances stated, the observations in the Sjoli Case tothe wholly different state of facts presented upon this record.

27 While the foregoing disposes of the main propositions which the case presents,there are additional contentions which it is necessary to pass upon. Irrespectiveof any question as to the paramount nature of a list of selections, it is contendedon behalf of appellee, contrary to the ruling of the Secretary of the Interior: (a)that the selection by the railroad company of the tract in controversy was voidand it could not lawfully be approved; (b) in any event, that he was entitled tothe land by virtue of the provisions of an act approved July 1, 1898 (30 Stat. atL. 620, chap. 546); and (c) the Northern Pacific Railway Company did notsucceed to the rights of the Northern Pacific Railroad Company in the land, ifany right thereto became vested in the latter company.

28 a. This contention is predicated upon the claim that the selecting company hadnot sustained a legal loss of the tract in lieu of which the land in controversywas selected and that if it had sustained the loss, the selection was not lawful,because the tract selected was not on the same side of the railroad as the tractlost, and was not the nearest unappropriated land to it. These contentions wereconsidered at much length by the Secretary of the Interior in the opinion,copied in the record, affirming the cancelation of the entry of Jones (34 LandDec. 105),2 and were found not to be meritorious. The reasons advanced by theSecretary in support of his rulings upon the legal propositions involved seem tous convincing, and we therefore hold the contentions untenable. Cognate to thecontentions just disposed of is a claim made in argument that the filed list ofselections was void for the reason that the joint resolution of May 31, 1870,establishing the second indemnity limits, required certain facts to appear inorder to entitle the railway company to the land, and that in selecting the landthose requisites were not complied with. The claim substantially embodiesmerely criticisms directed to the form or regularity of the selection list, and isnot, in any view, of such a character as to render void the filed list. The matterbeing within the jurisdiction of the Secretary of the Interior, we must assumethat the facts necessary to establish the right to approve the selections were

shown to his satisfaction.

29 b. This contention asserts that complainant is entitled to the land by virtue ofcertain provisions relating to the Northern Pacific land grant contained in thesubdivision entitled, 'Surveying the Public Lands,' embodied in the sundry civilappropriation act of July 1, 1898. The provisions are copied in the opinion inHumbird v. Avery, 195 U. S. beginning at page 485, 49 L. ed. 292, 25 Sup. Ct.Rep. 123, and need not be here repeated. As there said, they 'disclose a schemeor plan for the settlement of the disputes arising out of the conflicting rulings inthe Land Department in reference to the eastern terminus of the railroad, and itsaction in reference to the public lands between Duluth and Ashland.' It isargued that the Secretary of the Interior erroneously decided that the land couldnot be claimed under the act of 1898 by Jones or his grantee, because, prior toJanuary 1, 1898, Jones had done nothing more than to file his application forthe land, and was consequently not a purchaser entitled to the benefits of thestatute. In our opinion no error was committed by the Secretary in so deciding.Because we reach this conclusion we must not be considered as intimating anyopinion whatever regarding the soundness of the contention made on behalf ofthe appellants, to the effect that, in any event, the act of 1898 can have noapplication to one who purchased land under the timber and stone act.

30 c. It is contended that the Northen Pacific Railway Company, under its charter,had no power to purchase the tract of land here in controversy, and that forvarious reasons the legal proceedings under which the railway companyasserted it had acquired the rights of the Northern Pacific Railroad Company inthe land were ineffective to produce any such result. On this record, however, itis not necessary to pass upon these contentions. As the object of the bill is toseek to charge the defendants as trustees of the land for complainant, plainly, ifa valid selection was made, proof that their grantor never acquired title to theland would not estabish a right to it in the complainant.

31 It follows that the decree of the Court of Appeals must be reversed, and that ofthe Circuit Court affirmed. And it is so ordered.

32 Mr. Justice Harlan, with whom concurred Mr. Justice Day, dissenting:

33 This case is of sufficient importance to justify a full statement of the facts, aswell as the grounds upon which we feel constrained to dissent from the opinionand judgment of the court.

34 By the final decree under review, the circuit court of appeals for the eighth

circuit unanimously reversed the judgment of the circuit court, with directionsto give the plaintiff Hoyt, now appellee, the relief asked in his bill.

35 The general object of the suit was to have it adjudged that the presentdefendants, Weyerhaeuser and Humbird, now appellants, should hold the legaltitle to certain lands in Minnesota in trust for the plaintiff, and be enjoined,during the pendency of the cause, from selling, disposing of, or removing, orfrom attempting to create any charge upon the timber standing or lying uponthe premises in question.

36 Many questions have been discussed by counsel. But there is one which seemsto require special examination. The facts out of which that question arises maybe thus stated:

37 The land in question is the southwest quarter of the southeast quarter of section7, township 54, of range 14 west, principal meridian. It contains 40 acres, andis situated in St. Louis county, Minnesota. It is unfit for cultivation, is valuablechiefly for its timber, has no valuable deposit of gold, silver, cinnabar, copper,or coal upon it, was at the time mentioned in the record uninhabited, andcontained no mining or other improvements.

38 For the purpose of availing himself of the act of Congress relating to the sale oftimber land in California, Oregon, Nevada, and Washington territory, approvedJune 3d, 1878 (20 Stat. at L. 89, chap. 151, U. S. Comp. Stat. 1901, p. 1545),—which act was amended August 4th 1892, and its benefits extended to all thestates (27 Stat. at L. 348, chap. 375, U. S. Comp. Stat. 1901, p. 1434),—oneRichard B. Jones, a citizen of the United States, and admittedly, in all respectsqualified under the laws of the United States to enter land, filed, December17th, 1897, with the register and receiver in the land office at Duluth, a verifiedwritten duplicate statement, in due from, indicating his desire to purchase theland in dispute under the homestead laws of the United States. One of thesestatements was promptly transmitted by the receiver to the General Land Officeat Washington.

39 The receiver, in conformity with law, at once posted in his office, for therequired time, the fact of such application, describing the lands by legalsubdivision, and furnishing Jones a copy of such notice. That notice was dulypublished in the newspaper nearest to the land. On the 27th day of March,1898, no adverse claim to the land having been filed in the land office, theapplicant, Jones, after furnishing to the local register satisfactory proofs of thepreliminary facts required by law, paid to the receiver the full purchase price of

the land, together with all fees legally due to those officers. Thereupon he waspermitted, December 10th, 1898, to enter, and did enter the land, the receiverexecuting and delivering to him at the time an official receipt and certificate ofpurchase. In December, 1898, all the papers and testimony in the matter ofJones's application, including his certificate of purchase, were transmitted bythe register and receiver to the General Land Office at Washington, and by thatoffice were received and filed. On December 19th, 1898, Jones and wife soldand conveyed the land to Minnie Stewart, by deed properly recorded onOctober 3d, 1902. Stewart and wife conveyed to Hoyt, the present plaintiff,now appellee, and that deed was also duly recorded October 3d, 1902.

40 On the 2d day of December, 1901,—nearly three years after Jones got hiscertificate of purchase, and after he had sold the land,—the Commissioner ofthe General Land Office made a decision, holding for cancelation the entrymade by Jones, as above stated, declaring it to be void on the ground that thisland (using the words of the Commissioner) 'was selected by the NorthernPacific Railroad (now Railway Company) October 17th, 1883, for the secondindemnity, per list, rearranged list 15 B, in lieu of land in Section 11, T. 46 R.16 W., in the primary limits disposed of between date of grant and definitelocation of the road, which selection has not since been abandoned or the basisotherwise used. The selection was canceled, however, by letter of March 22,1897, because the land is east of Duluth, the then [supposed] eastern terminalof the grant under departmental ruling; but said cancelation was rescinded andthe selection restored by letter of May 26, 1900, under the decision of the U. S.Supreme Court (177 U. S. 435, 44 L. ed. 836, 20 Sup. Ct. Rep. 706), that thegrant extends to Ashland, wisconsin. December 17, 1897, Richard B. Jonesapplied to purchase said tract under the timber and stone law, and after duepublication and proof made entry thereof December 10, 1898. Cash certificateNo. 14,812. Under the decision of the court, the selection of the company is avalid selection, and the claim of Jones not having been perfected prior toJanuary 1, 1898, his claim is not within the act of July 1, 1898 [30 Stat. at L.597, chap. 546, U. S. Comp. Stat. Supp. 1909, p. 1503], (departmental decisionof May 22, 1900, Salter v.

41 'It might well be assumed that very likely the Atlantic & Pacific Companywould be called upon to select from the indemnity lands a portion sufficient tomake good the deficiency in the granted limits. That right of section was aprospective right, and if it was to be fully exercised, no adverse title could becreated to any lands within the indemnity limits. Suppose, for instance, itshould turn out that only half of the indemnity lands were necessary to makegood the deficiency, and that one half of such lands were well watered andvaluable, while the remainder were arid and comparatively valueless; obviously

the right of selection would be seriously impaired if it were limited to only thearid and valueless tracts.'

42 In that case the court had under consideration the prospective right of theAtlantic & Pacific Railroad Company to oddnumbered sections within theindemnity limits of its grant made by act of July 27, 1866 (14 Stat. at L. 292,chap. 278), which grant has the same indemnity provisions as the NorthernPacific act of 1864, with the exception that indemnity for losses to the grant onaccount of mineral lands is limited to 'odd-numbered sections nearest to the lineof said road and within 20 miles thereof.' With regard to this latter provision itwill be noticed that the selection is limited to odd-numbered sections within theprimary limits of the grant, as those limits are 20 miles on each side of the roadin territories, thus, in effect, nullifying the provision, because the sections fromwhich selections are to be made were specifically granted in place.

43 The resolution of May 31, 1870, supra, providing for a second indemnity belt tothe Northern Pacific grant, before quoted from, merely limits the place ofselection to a belt '10 miles on each side of said road, beyond the limitsprescribed in said charter,' etc.

44 The act of 1864 and the resolution of 1870 each, therefore, establish a limitbeyond which the company cannot go on making its general indemnityselections, but in neither is there any requirement limiting such selections to thelands nearest the sections in which the losses to the grant occur, and to so limitsuch selections would attach a condition or limitation upon the right of selectionnot found in the granting acts.

45 That the right of selection conferred by these acts cannot be restricted by theSecretary of the Interior seems clear. His duty in the premises is to supervisethe administration of the grant, but this authority does not permit him to abridgeor enlarge the laws of Congress. We should see that the selection made insatisfaction of the grant are confined to the lands described in the granting act;but, as between different sections, equally within the description containedtherein, he cannot say which may or which may not be selected, for in so doinghe would be denying the railroad company the right to make the selection. SeeWillamette Valley & Cascade Mt. Wagon Road Co. v. Bruner, 26 Land Dec.357.

46 Attention has been called to the circular of August 4, 1885 (4 Land Dec. 90),relating to railroad indemnity selections, and requiring a designation of a loss asa basis for all indemnity selections, in which circular it is said that 'where

deficiencies exist, for which indemnity is allowed by law, the lieu selectionsmust be made from vacant, unappropriated land within the proper sections andlimits nearest the granted section in which the loss occurred.'

47 This circular was issued before the opinion of the Attorney General or thedecision of the court referred to. Its main purpose was to require thespecification of a loss as a basis for the selection, thereby aiding the adjustmentof the grant; for it required the designation of a loss as a basis for all selectionspreviously approved and certified as well as for those then pending orthereafter to be made. Company). Said entry is therefore hereby held forcancelation for conflict with the prior valid selection of the company subject toappeal. Notify him hereof; the company will be informed by this office.'

48 It does not appear that Jones, or anyone claiming under him, had any previousnotice of this order, or that there was any trial or regular hearing of the matter inthe General Land Office.

49 Upon appeal to the Secretary of the Interior, the above order of December 2d,1901, was affirmed, and subsequently, but not until October, 1905, a patent wasissued to the Northern Pacific Railway Company. 34 Land Dec. 105.

50 When Jones entered and purchased the land, paying the government price forit, and receiving a certificate of his purchase,—which purchase was made andwhich certificate was given nearly seven years before a patent was issued tothe railroad company,—there was in the Land Office a list of selections allegedto have been filed by the railroad company on October 17th, 1883. But the listdid not assign each selection to specific land in the granted limits, which it wasasserted had been lost by the company. That list was received at the local landoffice, and transmitted to the General Land Office, But on the 11th of April,1893, the railroad company, acting under the direction or suggestion of theSecretary of the Interior, 'rearranged' its list so as to specify the particular tractlost in the primary limits. In such list the lands in dispute here were set oppositeto particular lands lost in those limits. The lands mentioned in the company'slist, whether we take the original or rearranged list, were, it must beremembered, within the indemnity limits of the grant made by Congress in1864, in aid of the construction of the Northern Pacific Railroad. That is notdisputed.

51 The principal assignment of error is that the entry and purchase by Jones—under whom Hoyt claims—of the lands in question were subordinate to therights acquired by the mere filing of the list of selections by the railroad

company, followed as that was by the approval of the Secretary of the Interiorand by a patent, although such approval was not given, nor, as we have seen,the patent issued to the railroad company, until many years after Jonesreceived his certificate of purchase from the government.

52 Upon final hearing in the circuit court, the bill was dismissed. But upon appealto the circuit court of appeals, all the judges concurring, that judgment wasreversed, and the case sent back with directions to enter a decree for the reliefasked in the bill. Rec. 214, 88 C. C. A. 404, 161 Fed. 324. The principles in thelatter case were accepted and applied by the supreme court of Minnesota inNorthern P. R. Co. v. Wass, 104 Minn. 411, 116 N. W. 937.

53 Section 3 of the charter of the Northern Pacific Railroad Company of July 2d,1864 [13 Stat. at L. 369, chap. 217], provided: 'and be it further enacted thatthere be, and hereby is, granted to the 'Northern Pacific Railroad Company,' itssuccessors and assigns, for the purpose of aiding in the construction of saidrailroad and telegraph line to the Pacific coast, and to secure the safe andspeedy transportation of the mails, troops, munitions of war, and public stores,over the route of said line of railway, every alternate section of public land, notmineral, designated by odd numbers, to the amount of twenty alternate sectionsper mile, on each side of said railroad line, as said company may adopt, throughthe territories of the United States, and ten alternate sections of land per mile oneach side of said railroad whenever it passes through any state, and whenever,on the line thereof, the United States have full title, not reserved, sold, granted,or otherwise appropriated and free from pre-emption or other claims or rights,at the time the line of said road is definitely fixed, and a plat thereof filed in theoffice of the Commissioner of the General Land Office; and whenever, prior tosaid time, any of said sections or parts of sections shall have been granted, sold,reserved, occupied by homestead settlers, or pre-empted, or otherwise disposedof, other lands shall be selected by said company in lieu thereof, under thedirection of the Secretary of the Interior, in alternate sections, and designatedby odd numbers, not more than 10 miles beyond the limits of said alternatesection. . . .'

54 But Congress afterwards broadened or extended the limits into which therailroad company, under the direction of the Secretary, might go in order tosupply deficiencies in the granted limits. By the joint resolution of May 31st,1870 (16 Stat. at L. 378), amending the above act of 1864, 'second indemnitylimits' were created. The resolution provided: 'And in the event of there notbeing in any state or territory in which said main line or branch may be located,at the time of the final location thereof, the amount of lands per mile granted byCongress to said company, within the limits prescribed by its charter, then said

company shall be entitled, under the directions of the Secretary of the Interior,to receive so many sections of land belonging to the United States, anddesignated by odd numbers, in such state or territory, within 10 miles on eachside of said road beyond the limits prescribed in said charter, as will make upsuch deficiency on said main line or branch, except mineral and other lands, asexcepted in the charter of said company of 1864, to the amount of the lands thathave been granted, sold, reserved, occupied by homestead settlers, pre-empted,or otherwise disposed of subsequent to the passage of the act of July two,eighteen hundred and sixty-four. . . .'

55 The fundamental inquiry in the case is whether Jones's entry, occupancy, andpurchase of the lands were subject or subordinate to the previous filing of thelist of selections by the railroad company, the Secretary of the Interior nothaving approved such list until after such entry, occupancy, and purchase byJones. The judgment below proceeded upon two principal grounds: 1. That therailroad company did not acquire any right or interest in the lands selectedwithin indemnity limits by the mere filing of its list of selections. 2. That aftersuch list was filed, and while it was unapproved by the Secretary, the landsremained fully open to entry and purchase by homesteaders and pre-emptorsunder the laws of the United States; that, in the absence of the approval of theSecretary of the Interior, the mere filing of the lists put no obstacle whatever inthe way of homesteaders or pre-emptioners seeking to acquire public lands notalready appropriated or sold under the laws of the United States; and that by anentry or purchase in conformity with the homestead or pre-emption laws a rightattached to those lands in favor of the entryman which could not be destroyedor overridden by any subsequent approval by the Secretary of the Interior of theoriginal or rearranged list of selections made by the railroad company.

56 There grounds were sustained by a wellreasoned opinion delivered by JudgeSanborn on behalf of the circuit court of appeals. In view of the elaboratediscussion by counsel and by the majority of my brethern, it will be instructiveto make a liberal extract from that opinion. After observing that lands withinindemnity limits did not cease to be public lands open to settlement under thehomestead laws, simply because of their having been embraced in a list ofselections filed by the railroad company to supply losses within place limits,the circuit court of appeals (the italics being ours) said: "The company'sunapproved selections did not, therefore, stand in the way of the lands beingoccupied and entered under the homestead laws. The mere filing of its lists ofselections of indemnity lands did not have the effect to exclude them fromoccupancy under the preemption or homestead laws.' . . . The question here isnot the jurisdiction but the legality of the decision of the Land Department, andespecially of the Secretary [of the Interior], its head, whereby he awarded this

land to the railway company. The facts and the law warranted and required itsaward and sale to Jones. When he presented his application to purchase it underthe timber and stone act, the railway company's selection of it was unapprovedby the Secretary, and that company was without equitable right to it. The LandDepartment had jurisdiction to accept the application of Jones and to sell theland to him, or to approve the selection of the company and to award the landto it. It exercised this jurisdiction, accepted the application of Jones, permittedhim to enter the land, to prove up his claim to it, sold it to him, took his $100 inpayment for it, and issued to him his receiver's receipt, and it did all this beforethe selection of the company was approved, and before the company couldacquire any right to the land. Jones's equitable title to the tract had then vested,and while the jurisdiction of the Land Department continued until the patentissued, its power was neither arbitrary, unlimited, nor discretionary, and itsaction was subject to judicial correction for error of law, fraud, or clear mistake.The jurisdiction and power of disposition which the Land Department has ofthe lands of the United States, like the power of every other department of thegovernment is subject to the laws of the land, and the Land Department'sviolation or disregard of them is remediable in the courts. Its power 'cannot beexercised so as to deprive any person of land lawfully entered and paid for. Bysuch entry and payment the purchaser secures a vested interest in the propertyand a right to a patent therefor, and can no more be deprived of it by order ofthe Commissioner, than he can be deprived by such order of any other lawfullyacquired property. Any attempted deprivation in that way will be correctedwhenever the matter is presented so that the judiciary can act upon it.'Cornelius v. Kessel, 128 U. S. 456, 461, 32 L. ed. 482, 483, 9 Sup. Ct. Rep.122; Germania Iron Co. v. James, 32 C. C. A. 348, 354, 355, 61 U. S. App. 1,89 Fed. 811, 818; James v. Germania Iron Co. 46 C. C. A. 476, 481, 107 Fed.597, 602; Black v. Jackson, 177 U. S. 349, 357, 44 L. ed. 801, 804, 20 Sup. Ct.Rep. 648; Orchard v. Alexander, 157 U. S. 372, 383, 39 L. ed. 737, 741, 15Sup. Ct. Rep. 635; Brown v. Hitchcock, 173 U. S. 473, 478, 43 L. ed. 772, 774,19 Sup. Ct. Rep. 485. . . . Finally counsel involved the familiar rule that thedecisions of officers of other departments of the government upon questionswithin their jurisdiction are cogent and persuasive and should be followed bythe courts unless they are clearly erroneous; and he reminds us that theSecretary of the Interior and the Commissioner of the General Land Officehave carefully considered the questions in this case, and have decided thatJones was without legal or equitable claim to this land, and that the right of therailway company to it was superior. But Jones was a qualified entryman. Theattempted withdrawals and selections of the land by the Secretary prior to hisapproval of the company's selection were unauthorized by law and withoutlegal effect. The land was open to entry and purchase until he approved theselection. Jones entered, bought, and paid for it before any such approval wasmade. And the decisions of the Supreme Court which have been cited leave no

doubt that the Secretary and the Commissioner fell into a plain error of lawwhen they took the land which Jones had lawfully purchased from him or fromhis grantees and gave it to the railway company. Erroneous decisions ofquestions of law by the officers of the Land Department cannot be permitted todeprive the equitable owner of his vested right to lands which he has lawfullypurchased from the United States. Johnson v. Towsley, 13 Wall. 72, 80, 20 L.ed. 485, 486; Gibson v. Choteau, 13 Wall. 92, 102, 20 L. ed. 534, 537; Shepleyv. Cowan, 91 U. S. 330, 340, 23 L. ed. 424, 427; Moore v. Robbins, 96 U. S.530, 536, 24 L. ed. 848, 851; St. Paul & S. C. R. Co. v. Winona & St. P. R. Co.112 U. S. 720, 733, 28 L. ed. 872, 877, 5 Sup. Ct. Rep. 334. The conclusion isthat by his entry and purchase, Jones acquired the entire beneficial ownershipand the equitable right to the land in controversy, and that the railway companyand its successors in interest obtained nothing under the patent but the nakedlegal title, which they held in trust for him and for his successors in interest.This conclusion renders the other questions presented in this case immaterial.The decree must accordingly be reversed, and the case must be remanded to thecourt below, with directions to enter a decree for the complainant for the reliefprayed in the bill; and it is so ordered.'

57 Many cases, among which was the recent case of Sjoli v. Dreschel, 199 U. S.564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154, were cited by the circuit court ofappeals to sustain its conclusion. Attention is specially directed to that casebecause it was only recently decided, after full consideration. The facts in itdiffer, in some respects, from those in the case now before us, but the principlesannounced in the Sjoli Case were clearly the result of previous cases. Theydirectly bear upon the question now under consideration.

58 It appears from the report of the Sjoli Case that he settled on the land there indispute in 1884, and his original application was in 1889; whereas, the railroadcompany filed its list of selections of lands within indemanity limits to supplydeficiencies in place limits in 1885, Sjoli then being in the actual occupancy ofthe land, and having the intention, by a formal application, to perfect his claimunder the homestead laws. Dreschel claimed under the railroad company. Sjoligot a patent in 1901, based primarily on his prior occupancy. That was after thecompany filed its selections. The essential question in the case was as to therights of the homestead settler as against the railroad company, which had filedits list of selections of the lands after the homesteader settled on the lands withthe intention to acquire them, but before he made his formal application forthem. Summing up the doctrines previously established, this court declared inthe Sjoli Case that, from its previous cases, the following propositions were tobe deduced: 'That the railroad company will not acquire a vested interest inparticular lands, within or without place limits, merely by filing a map of

general route and having the same approved by the Secretary of the Interior,although, upon the definite location of its line of road, and the filing andacceptance of a map thereof in the office of the Commissioner of the GeneralLand Office, the lands within primary or place limits, not theretofore reserved,sold, granted, or otherwise disposed of, and free from pre-emption or otherclaims or rights, become segreagated from the public domain, and no rights insuch place lands will attach in favor of a settler or occupant who becomes wuchafter definite location; that no rights to lands within indemnity limits will attachin favor of the railroad company until after selections made by it with theapproval of the Secretary of the Interior; that up to the time such approval isgiven, lands within indemnity limits, although embraced by the company's listof selections, are subject to be disposed of by the United States, or to be settledupon and occupied under the pre-emption and homestead laws of the UnitedStates; and that the Secretary of the Interior has no authority to withdraw fromsale or settlement lands that are within indemnity limits which have not beenpreviously selected with his approval, to supply deficiencies within the placelimits of the company's road.' The words in the Sjoli Case, 'that up to the timesuch approval [by the Secretary] is given, lands within indemnity limits,although embraced by the company's list of selections, are subject to bedisposed of by the United States, or to be settled upon and occupied under thepre-emption and homestead laws of the United States,'—were cited withapproval in the very recent case of Osborn v. Froyseth, 216 U. S. 571, 578, 54L. ed. 619, 623, 30 Sup. Ct. Rep. 420 and were really the basis of the decisionin that case.

59 But the defendants insist that as Jones's occupancy of an application for theland were made while there was pending in the Land Office an unapproved listof selections of lands (including the land in question), which the railroadcompany desired to appropriate in order to supply deficiencies in its primarylimits, the subsequent approval by the Secretary of the company's list—although such approval did not in fact occur until 1905—overrode and annulledany right previously acquired by the homesteader Jones, although he applied,paid for, and got his certificate of purchase more than six years prior to theactual approval by the Secretary of the Interior of the original or rearrangedselection of these lands. We do not concur in this view. This view cannot besustained without entirely disregarding the doctrines announced upon fullconsideration in many other cases, prior to the Sjoli Case.

60 As counsel have made an earnest and extended argument in support of thecontrary view, it may be well to recall a few leading cases on the subject, andsee just what has been adjudged.

61 In Ryan v. Central P. R. Co. 99 U. S. 382, 25 L. ed. 305, the court construedthe 2d section of the act of July 25th, 1866 (14 Stat. at L. 239, chap. 242),granting to a company, for the purpose of aiding in the construction of arailroad and telegraph line, alternate odd sections of public land, for 10 mileson each side, subject, however, to the conditions that the railroad companymight, under the direction of the Secretary, select alternate odd sections, within10 miles on each side, nearest the place limits, to supply deficiencies in landsfound to have been granted sold, reserved, occupied by homestead settlers, pre-empted or otherwise disposed of. As to lands in the place limits, the court saidthat the right of the company to the odd sections became fixed and absolutewhen the road was located and the maps of such location were filed. But, saidthe court, speaking by Mr. Justice Swayne, 'with respect to the 'lieu lands,' asthey are called, the right was only a float, and attached to no specific tracts untilthe selection was actually made the company was approved by local landofficers and confirmed by the Secretary of the Interior, when there was noclaim upon it. The court further said, in reference to the land actually selectedunder the direction of the Secretary, that 'the railroad company had not andcould not have any claim to it until specially selected, as it was for that purpose.It was taken to help satisfy the grant to the extent that the odd sectionsoriginally given failed to meet its requirements. When so selected there was noMexican or other claim impending over it.' In the same case, referring to thedeficiency alleged to exist in the place limits, the court said: 'It was within thesecondary or indemnity territory where that deficiency was to be supplied. Therailroad company had not and could not have any claim to it until speciallyselected, as it was for that purpose.' This language was quoted with approval inOsborn v. Froyseth, 216 U. S. 578, 54 L. ed. 624, 30 Sup. Ct. Rep. 420. So, inthe present case, when Jones entered and purchased there was no claim uponthese lands that gave the railroad company any right or interest whatever inthem which could be asserted in opposition to the entryman, whose rights hadattached before any approval of the selections.

62 A similar question under another land grant act arose in Kansas P. R. Co. v.Atchison, T. & S. F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208.The claim in that case was under an act of Congress of 1862 (12 Stat. at L. 489,chap. 120), which made a grant of lands designated by odd numbers on eachside of the railroad, 'which were not sold, reserved, or otherwise disposed of bythe United States, and to which a pre-emption or homestead claim had notattached at the time the line was definitely fixed.' This court, speaking by Mr.Justice Field, said: 'A right to select them [lands] within certain limits, in case ofdeficiency within the 10-mile limit, was alone conferred, not a right to anyspecific land or lands capable of identification by any principles of law or rulesof measurement. Neither locality nor quantity is given, from which such lands

could be ascertained.'

63 In Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 639, 641, 644, 28 L. ed. 1122,1125, 1127, 5 Sup. Ct. Rep. 566, which involved rights under the act of July 2d,1864, granting lands to a railroad company (13 Stat. at L. 365, chap. 217), thecourt, speaking by Mr. Justice Miller, said: 'The reasonable purpose of thegovernment undoubtedly is that which it expressed; namely, while we aregiving liberally to the railroad company, we do not give any lands we havealready 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 thisgrant. No interest in the railroad company attaches to this land or is to befounded on this statute.' This case was followed in Hastings & D. R. Co. v.Whitney, 132 U. S. 357, 366, 33 L. ed. 363, 367, 10 Sup. Ct. Rep. 112,Whitney v. Taylor, 158 U. S. 85, 92, 93, 39 L. ed. 906, 908, 909, 15 Sup. Ct.Rep. 796, and Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17Sup. Ct. Rep. 671.

64 In Wisconsin C. R. Co. v. Price County, 133 U. S. 496, 512, 33 L. ed. 687, 694,10 Sup. Ct. Rep. 341, the court speaking by Justice Field, in determining theeffect of the mere filing of the list of selections, said: Until the selections wereapproved, there were no selections in fact, only preliminary proceedings takenfor that purpose; and the indemnity lands remained unaffected in their title.Until then the lands which might be taken as indemnity were incapable ofidentification; the proposed selections remained the property of the UnitedStates. The government was, indeed, under a promise to give the companyindemnity lands in lieu of what might be lost by the causes mentioned. But suchpromise passed no title, and, until it was executed, created no legal interestwhich could be enforced in the courts.'

65 'The mere filing of lists of selections after the acceptance of the map of definitelocation of the railroad line between Duluth and Ashland gave the company nosuch title as could be enforced by the courts in a suit between private parties. Itis true, the government was under a promise to give the railroad company landsin the indemnity limits to supply losses in place limits. But, as adjudged in theabove cases, that promise passed no title.' Humbird v. Avery, 195 U. S. 480,507, 49 L. ed. 286, 298, 25 Sup. Ct. Rep. 123, in which it was said that 'no titleto indemnity lands is vested until a selection be made by which they aredefinitely ascertained and the selection made approved by the Secretary of theInterior. This principle is firmly established,' citing Wisconsin C. R. Co. v.Price County, and other cases.

66 In United States v. Missouri K. & T. R. Co. 141 U. S. 359, 374, 375, 35 L. ed.

766, 771, 12 Sup. Ct. Rep. 13, which case related to a railroad land grant, it wasobserved that certain even numbered sections within the indemnity limits of theparticular railroad concerned could, under the statute there in question, havebeen legally selected as indemnity lands if no rights had attached to them beforetheir selection, with the approval of the Secretary of the Interior. The courtthen proceeds: 'We say, prior to such selection and approval, because as tolands which may legally be taken for purposes of indemnity, the principle isfirmly established that title to them does not vest in the railroad company, forthe benefit of which they are contingently granted, but, in the fullest legalsense, remains in the United States, until they are actually selected and setapart, under the direction of the Secretary of the Interior, specifically forindemnity purposes,'—citing, among other cases, Sioux City & St. P. R. Co. v.Chicago M. & St. P. R. Co. 117 U. S. 406, 408, 29 L. ed. 928, 929, 6 Sup. Ct.Rep. 790, in which the court, speaking by Mr. Justice Miller, said: 'No title toindemnity lands was vested until a selection was made by which they werepointed out and ascertained, and the selection made approved by the Secretaryof the Interior.'

67 In New Orleans P. R. Co. v. Parker, 143 U. S. 42, 57, 36 L. ed. 66, 70, 12 Sup.Ct. Rep. 364, the language of the court was: 'As to lands within the indemnitylimits, it has always been held that no title is acquired until the specific parcelshave been selected by the grantee, and approved by the Secretary of theInterior,'—citing numerous cases.

68 A full discussion of the rights of parties in respect of lands in indemnity limitswill be found in Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct.Rep. 309, which was determined after great deliberation in 1901. In that casethe question arose whether it was competent for the Secretary of the Interior,after receiving from a railroad company its map of the definite location, to atonce withhold or withdraw from sale or entry the odd-numbered sections withinthe indemnity limits, to which the company, with the assent of the Secretary,might be permitted to resort in order to supply deficiencies in place limits.Referring to the opinions of Secretaries Lamar, Vilas, and Smith, and approvingtheir views, the court held such withdrawal to be unauthorized, indeed,forbidden, by the statute in respect to lands within the indemnity limits, leftopen by Congress for homesteaders or pre-emptioners while the title remainedin the United States. The opinions of those Secretaries proceeded upon theground taken in previous decisions of this court that a right to select landswithin indemnity limits 'was alone conferred, not a right to any specific land orlands capable of identification by any principle of law or rules of measurement;'but that until selection was made, 'the right of selection became a barren right;for, until selection was made, the title remained in the government, subject to

its disposal at its pleasure.' In the opinion of Secretary Vilas, approved by thiscourt in the Hewitt Case, it was said: 'It [the act of Congress] gave to anyperson entitled under the pre-emption or homestead laws to take any such landsthe absolute right to acquire any proper quantity thereof, in accordancetherewith; and this right on executive officer could not deprive the settler of.'

69 In Oregon & C. R. Co. v. United States, 189 U. S. 103, 47 L. ed. 726, 25 Sup.Ct. Rep. 615, the court said: 'Having regard to the adjudged cases, it is to betaken as established that, unless otherwise expressly declared by Congress, noright of the railroad company attaches or can attach to specific lands withinindemnity limits until there is a selection under the direction, or with theapproval, of the Secretary.'

70 Many other cases to the same effect might be cited.

71 It is, however, contended that the approval by the Secretary of the Interior ofthe selection of these lands to supply deficiencies in place limits had relationback to the date when the railroad filed its original list of selections, and hadthe effect to override any rights acquired by the homesteader after that list wasfiled, and before such approval. This view, if sustained, would practicallydestroy the rights given to homesteaders and pre-emptioners by the acts ofCongress, as uniformly interpreted by this court. Even after the filing of a list ofselection of lands by the beneficiary under the act of Congress, Jones wasentitled, of right,—prior to the actual approval by the Secretary of the proposedselections,—to apply for the lands in dispute, pay for them, get a certificate ofhis purchase, and in that way acquire them. That right attached to the landswhen he entered upon and applied for them under the homestead laws, and hecould not be arbitrarily prevented from paying the government price, andobtaining a certificate of purchase and perfecting his claim under those laws.

72 Now, if it it be true, and all the cases so hold, that, after the filing of a list ofselections by the railroad company of lands within indemnity limits, such landsnevertheless remained fully open to entry, occupancy, and purchase byhomesteaders; if, as held in Hewitt v. Schultz, above cited, the Secretary of theInterior himself could not, immediately upon the filing of a list by the railroadcompany of selections of indemnity lands, withdraw such lands from entry ofsale, and thus prevent their being entered, occupied, and purchased byhomesteaders, prior to the Secretary's actual approval of such selections; and ifthe mere filing of the list did not, in itself, in advance of any approval by theSecretary, give the land-grant beneficiary any right or claim whatever, legal orequitable, in or to any particular lands specified in the list,—then there is nobasis whatever for the contention that the Secretary's approval of the selection

of indemnity lands, after the homesteader's claim attached to them, can bereferred back to the day on which the railroad company filed its list of landswithin indemnity limits, sought to be taken by it,—an act on his part which, allthe cases agree, did not give it any enforceable interest in particular lands.That would be using the doctrine of relation, which is a mere fiction of law, todefeat the manifest will of Congress. To state the proposition in another way: Ifthe lands embraced by the company's list of selections were, under the statute,fully open, after the filing of that list, to entry, occupancy, and sale, for thebenefit of homesteaders,—and that cannot be disputed,—how is it possibleupon any sound principle, or consistently with the policy adopted by thegovernment to encourage settlements, that the right thus given to thehomesteader could be annulled by any action of the Secretary occurring afterthat right accrued and became attached to the lands in behalf of thehomesteader? A preference cannot be given in this way to the railroad companyover the homesteader if regard be had to the purpose of Congress to keep theunappropriated public domain effectively, fully, and completely open to settlersso long as the legal title remained in the United States, or until some right of thecompany actually attached to the lands settled upon. A different view cannotbe sustained except upon the theory that the mere application of a railroadcompany to take particular lands to supply loses in place limits had the effect totake those lands out of the public domain and prevent their occupancy byhomesteaders until it suited the Land Department—which might postpone itsruling for many years—to take up the application and pass upon it; and this,notwithstanding indemnity lands were fully open to be settled upon byhomesteaders so long as the title remained in the United States.

73 At a very early date in the administration of the public lands this court,speaking by Mr. Justice Campbell, in Clements v. Warner, 24 How. 394, 397,16 L. ed. 695, 696, said: 'The policy of the Federal government in favor ofsettlers upon public lands has been liberal. It recognizes their superior equity tobecome the purchasers of a limited extent of land comprehending theirimprovements, over that of any other person. By the act of 1841 (5 Stat. at L.453, chap. 16), the pre-emption privilege in favor of actual settlers wasextended over all the public lands of the United States that were fitted foragricultural purposes and prepared for market. Later statutes enlarged theprivilege, so as to embrace lands not subject to sale or entry, and clearly evincethat the actual settler is the most favored of the entire class of purchasers.' Inthe recent case of Ard v. Brandon, 156 U. S. 537, 543, 36 L. ed. 524, 526, 15Sup. Ct. Rep. 406, the court, speaking by Mr. Justice Brewer (after referring toShepley v. Cowan, 91 U. S. 330, 338, 23 L. ed. 424, 427), said that 'the lawdeals tenderly with one who, in good faith, goes upon the public lands with aview of making a home thereon. If he does all that the statute prescribes as the

condition of acquiring rights, the law protects him in those rights, and does notmake their continued existence depend alone upon the question whether or nohe takes an appeal from an adverse decision of the officers charged with theduty of acting upon his application.' The court, in that case, then referred withapproval to the observations above cited from Clements v. Warner, andproceeded: 'There can be no question as to the good faith of the defendant. Hewent upon the land with the view of making it his home. He has occupied itever since. He did all that was in his power in the first instance to secure theland as his homestead. That he failed was not his fault; it came through thewrongful action of one of the officers of the government.' See also Northern P.R. Co. v. Amacker, 175 U. S. 567, 44 L. ed. 275, 20 Sup. Ct. Rep. 236.

74 In support of the contrary view much reliance is placed upon the general rule'that where there are divers acts concurrent to make a conveyance, estate, orother thing, the original act shall be preferred; and to this the other acts shallhave relation.' (Viner, Abr. title 'Relation,' 190); or, as stated by Cruise (5 RealProp. 510, 511), that 'all the several parts and ceremonies necessary to completea conveyance shall be taken together as one act, and operate from thesubstantial part by relation.' This rule may well apply where the inquiry relatesto rights asserted in lands expressly granted in the place limits of a road; forsuch grants are in proesenti. So, perhaps, it might be applied where the contest,under a railroad grant, is between the government and its grantee, who wasauthorized to make selections of lands within indemnity limits to supply losesin place limits occuring before a specified time. As in United States v.Anderson, 194 U. S. 394, 399, 48 L. ed. 1035, 1038, 24 Sup. Ct. Rep. 716,where the court said: 'But even though it be conceded, arguendo, that thedoctrine in question would allow rights to be acquired by third parties to theinjury of the applicant after the making of the selections, and pending approvalthereof by the government, it does not follow that it controls the controversyhere presented. This results because on this record the rights of third parties arenot involved, since the controversy concerns only the right of the United Statesto retain, as against its grantees, the proceeds recovered by it as the result of atrespass upon land after an application for the selection of such land, andpending action thereon by the proper officers of the government. Under thesecircumstances the case is one for the application of the fiction of relation bywhich, in the interest of justice, a legal title is held to relate back to theinitiatory step for the acquisition of the land.' But clearly the rule should not beapplied in a land-grant case in which the mere filing by the railroad beneficiaryat the outset of a list of selections of indemnity lands does not affect the title ofthe United States, and has not, in and of itself, any such efficacy as to becomethe basis of a right or interest in the particular lands mentioned in such list;especially when, as here, those lands, being within indemnity limits, remain

open, according to all the authorities, to entry, occupancy, and even purchase byhomesteaders to the same extent they would have been had no list of selectionsever been filed. In both a practical and legal sense the filing of such list wasnothing more than the expression of a desire or a request that the Secretary ofthe Interior permit the company to have certain indemnity lands to supplylosses in the place limits. The Secretary might unduly delay his decision, mightnever act on such request, and thereby, for an unreasonable time, delaysettlement on the public lands by those who seek homes on them, and arealways dealt tenderly with by the United States. Before such request was actedon in this case, rights of the homesteader intervened and became lawfullyattached to the lands. If the homesteader acquired a right in these indemnitylands by entry, occupancy, and purchase under the homestead laws, as heundoubtedly did, it is inconceivable that such right could, under any properapplication of the doctrine of relation, be affected or overthrown by referring toan antecedent act performed by a different person, but which, at the time it wasperformed, did not give any right or interest whatever in the lands, andinterposed no legal obstacle that would prevent homesteaders from entering,occupying, or purchasing them. In support of the railroad company's positionseveral cases are cited, to some of which we will refer.

75 The first of these cases, in point of time, is Campbell v. Doe, 13 How. 244, 14L. ed. 130. But that case has no bearing on the precise point underconsideration. That was the case of a contest under an act of Congress givingschool lands to townships, the selection to be made by the Secretary of theTreasury. One Hamilton made, as he supposed, a selection of certain landsunder that act, in conformity with regulations prescribed by the Secretary. Buthis selection was made while the lands were legally reserved from sale, and hehad prior notice of that fact. The land was consequently not then open toselection, except pursuant to the act of Congress and the regulations of theSecretary. After alluding to some minor views advanced in the case, this courtsaid: 'But in whatever light this may be viewed, we are clear that the Secretaryof the Treasury had the power, under the act of Congress, to make theselection; and his decision, declaring the entry of Hamilton invalid, was, underthe circumstances, conclusive.' Referring to the argument that what was doneby Hamilton was with approval of the Land Office, through whom theSecretary executed the power conferred upon him, the court said: 'Yet wherethe Secretary has interposed and decided the matter, as in the case underconsideration, his decision must be considered as the only one under the law.'

76 The opinion in Campbell v. Doe closes with the suggestion that 'under thecircumstances no right became vested in him [Hamilton] by reason of his entryof the land, which could be regarded or enforced by a court of equity.' The

court did not refer, although counsel did, to the rule about the relation of time asbetween two acts, each of which is, in itself, efficacious to give somesubstantial right, and was performed by different persons, at different times. Itwas adjudged in that case—and it was the only point that need have beendetermined—that the court could not go behind the decision of the Secretary ofthe Treasury, and that in no view of the case presented could the relief asked begranted by a court of equity; whereas, in the case now before us it must beadmitted, in view of the act of Congress and the cases determining its scope andeffect, that when Jones occupied and entered, as well as when he purchased theland in dispute, it was part of the public domain, subject to the control of theUnited States, and open to homesteaders and pre-emptioners, under the laws ofthe United States, although there may have been at the time, on file, a list ofunapproved selections by the railroad company.

77 Another case much relied on in this connection by the appellants is Shepley v.Cowan, 91 U. S. 330, 337, 23 L. ed. 424, 426. That case arose under the act ofCongress of September 4th, 1841, granting lands to certain states, includingMissouri, for purposes of internal improvement, saving such as were or mightbe reserved from sale by any act of Congress or the proclamation of thePresident. The plaintiffs claimed title under a patent issued to one McPhersonby the state, and purporting to be for lands selected by the state under the aboveact of 1841. The defendants claimed title under a patent issued by the UnitedStates to the heirs of one Chartrand, based on an alleged pre-emption rightacquired by a settlement of their ancestor. McPherson paid for the lands indispute, and got a certificate showing such fact. The selections authorized to bemade were subject to the approval of the Sccretary of the Treasury. That officergave such approval. This court, referring, however, to the facts and to certainacts of Congress, held that the state could not legally select the lands in disputeas part of those granted by act of 1841, because they were 'legally reservedfrom sale,' consequently nothing could be claimed under the selection ofMcPherson. This view was sufficient to dispose of that case. Nevertheless, thecourt proceeds to consider another view which was held to be fatal to the claimmade under the patent issued to McPherson. 'If,' the court said, 'the land outsideof the survey as retraced by Brown in 1834 could be deemed public land, opento selection by the state of Missouri from the time the survey was returned tothe land office in St. Louis, it was equally open from that date to settlement,and consequent preemption by settlers. The same limitation which was imposedby law upon settlement was imposed by law upon the selection of the state. 'Ineither case the land must have been surveyed, and thus offered for sale orsettlement. The party who takes the initiatory step in such cases, if followed upto patent, is deemed to have acquired the better right as against others to thepremises. The patent which is afterwards issued relates back to the date of the

initiatory act, and cuts off all intervening claimants. Thus, the patent upon astate selection takes effect as of the time when the selection is made andreported to the Land Office; and the patent upon a pre-emption settlement takeseffect from the time of the settlement, as disclosed in the declaratory statementor proofs of the settler to the register of the local land office. The action of thestate and of the settler must, of course, in some way be brought officially to thenotice of the officers of the government having in their custody the records andother evidences of title to the property of the United States before theirrespective claims to priority of right can be recognized. But it was not intendedby the 8th section of the act of 1841, in authorizing the state to make selectionsof land, to interfere with the operation of the other provisions of that act,regulating the system of settlement and pre-emption. The two modes ofacquiring title to land from the United States were not in conflict with eachother. Both were to have full operation, that one controlling in a particular caseunder which the first initiatory step was had. . . . But whilst, according to thesedecisions, no vested right as against the United States is acquired until all theprerequisites for the acquisition of the title have been complied with, partiesmay, as against each other, acquire a right to be preferred in the purchase orother acquisition of the land, when the United States have determined to sell ordonate the property. In all such cases, the first in time in the commencement ofproceedings for the acquisition of the title, when the same are regularlyfollowed up, is deemed to be the first in right. So in this case, Chartrand, theancestor, by his previous settlement in 1835 upon the premises in controversy,and residence with his family, and application to prove his settlement and enterthe land, obtained a better right to the premises, under the law then existingthan that acquired by McPherson by his subsequent state selection in 1849. Hisright, thus initiated, could not be prejudiced by the refusal of the local officersto receive his proofs upon the declaration that the land was then reserved, if inpoint of fact the reservation had then ceased.' It thus appears that the generalrule determining the rights of parties under two different acts, performed atdifferent times, was referred to and applied in a case where each act was ofsuch a substantial character as in itself to give a right, enforceable by law. Inthe case referred to, the selection by the state was wholly void, and could not bemade the basis of any right acquired in opposition to the rights of the settler,although it was prior to the act performed by the settler. The 'initiatory step'referred to in Shepley v. Cowan was necessarily a step which, in itself, gavesome interest in the particular land involved. In the present case, the subsequentact of the homesteader was confessedly in accordance with law, gave him asubstantial interest in the land, and was not defeated by reason of the prior actof the railroad company in merely filing its list of selections. We say this forthe reason that such filing, according to the adjudged cases, could not be madethe basis of any right or interest in these particular lands. Within the truemeaning of the rule as to the relation of time between two acts of a substantial

character, performed at different times, the initiatory step was that taken byJones when he entered and purchased; for there was no previous step whichhad, in or of itself, any efficacy whatever to confer a right in the lands orprevent him from acquiring them.

78 Substantially the same comments may be made about the case of McCreery v.Haskell, 119 U. S. 327, 330, 30 L. ed. 408, 409, 7 Sup. Ct. Rep. 176, which isalso much relied on by the appellants. The dispute in that case was aboutcertain public lands which, from the date of the grants, were equally open toselection by the state and by homesteaders and pre-emptioners under an act ofCongress relating to land titles in California. By its selection the state couldacquire by the act of Congress a right or interest in the lands; by settlement, thepre-emptioner could also acquire a right in them. That being the case, this courtsaid: 'The land lying outside of this survey thus became, in the language of theact, 'subject to the general land laws of the United States.' It was open tosettlement with other public lands, and consequent pre-emption by settlers, andto selection by the state in lieu of the school sections within the confirmedMexican grant. . . . As between the settler and the state, the party which firstcommenced the proceedings required to obtain the title, if followed up to thefinal act of the government for its transfer, is considered as being entitled to theproperty. In such cases, the rule prevails that the first in time is the first inright.'

79 In the present case the railroad company, as we have seen, acquired no interestwhatever by merely requesting that it have certain indemnity lands to supplylosses in place limits; whereas, in the California case, the prior act to which thesubsequent act was referred—the selection by the state—would have given tothe state a substantial interest in the lands, provided the lands had been open toselection by it at all. Proceeding on the basis that the selection was valid, thestate court held that such selection was a prior, substantial, effective act towhich the subsequent act may be referred under the rule stated in former casesas to relation of time.

80 Further citation of authorities would seem to be unnecessary. In our opinion, thefiling by the railroad company of a list of lands within indemnity limits, whichit desired to obtain in order to supply deficiencies in place limits, gave thecompany no interest in any particular lands, and Jones had the right, under thehomestead laws of the United States, after that list was on file, and before itwas approved by the Secretary, to enter upon and occupy the indemnity landsso specified, with the intention to acquire them under the laws of the UnitedStates; and by such entry and occupancy, with such intention, acquire asubstantial interest or right in them which could not be affected or impaired by

Sjoli v. Dreschel, 199 U. S. 564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154; Ryan v.Central P. R. Co. 99 U.S. 382, 25 L. ed. 305; Kansas P. R. Co. v. Atchison, T.& S. F. R. Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208; Kansas P. R.Co. v. Dunmeyer, 113 U. S. 629, 639, 644, 28 L. ed. 1122, 1125, 1127, 5 Sup.

the subsequent approval of such list by the Secretary of the Interior; that themere filing of the list did not and could not, in itself, be made the basis for anyclaim that would be inconsistent with Jones's legal rights as resulting from hisentry and occupancy with the intention stated; consequently, the appellee,claiming under Jones, had the better right. To make the approval by theSecretary of the Interior relate back to a date when the railroad companyconfessedly did not have and could not have acquired any, even an inchoate,interest in these lands, and thus cut off and destroy the intervening rightsacquired by the homesteader before the Secretary's approval, would be to makea new and dangerous application of the doctrine of relation discussed at the bar.A subsequent act cannot properly be used to give legal effect to a prior act, asof a time when such prior act was performed, if the prior act had no efficacywhatever to confer an interest in the lands to which the two acts related. Noadjudged case really holds to the contrary. These views do no injury to therailroad company, for if the homesteader is adjudged to have the better right,the company can, under the direction of the Secretary, go into the whole bodyof indemnity lands and pick out other lands to supply any loss in place limits;whereas, if the homesteader loses the land he has settled upon and occupied, hewill lose the benefit of his improvements, and must abandon the place he hadfixed upon as his home.

81 One other matter should be referred to. Across the certificate of purchase issuedto Jones these words were written: 'This receipt is issued under the order of theSecretary of the Interior, dated February 28th, 1898, subject to any claim theNorthern Pacific Railroad Company may have to the lands herein described.' Ofcourse, the Secretary had no authority to do this, and his act had no legalefficacy. If the railroad company had rights superior to those acquired by Jones,those rights could have been protected despite the certificate issued to Jones. Ifit had none, then the indorsement across the face of the certificate is to beregarded simply as a warning to Jones that he might have in the future a contestwith the railroad company. The indorsement that Jones's purchase was subjectto any claim the company 'may have' neither added nor took away rights thatbelonged at the time to either the company or to Jones.

82 In our opinion the judgment of the Circuit Court of Appeals should be affirmed.

1

Ct. Rep. 566; Wisconsin C. R. Co. v. Price County, 33 U. S. 496, 511, 33 L. ed.687, 694, 10 Sup. Ct. Rep. 341; United States v. Missouri, K. & T. R. Co. 141U. S. 359, 374, 375, 35 L. ed. 766, 771, 12 Sup. Ct. Rep. 13; New Orleans P. R.Co. v. Parker, 143 U. S. 42, 57, 6 L. ed. 66, 70, 12 Sup. Ct. Rep. 364; Hewitt v.Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309.

RICHARD B. JONES.

v.

NORTHERN PACIFIC RAILROAD CO.

This is an appeal of Richard B. Jones from your office decision of December 2,1901, holding for cancelation his cash entry allowed under act of June 3, 1878(20 Stat. at L. 89, chap. 151), as amended by the act of August 4, 1892 (27 Stat.at L. 348, chap. 375, U. S. Comp. Stat. 1901, p. 1545), for the S. w. 1/4 of theS. E. 1/4 of Section 7, Township 54 N. R. 14 W., Duluth Land District.

The land in controversy lies within the second indemnity limits of the grantmade in aid of the construction of the Northern Pacific Railroad, east of the cityof Duluth, provision for which is found in the joint resolution of May 31, 1870(16 Stat. at L. 378), and was selected by the Northern Pacific Railroad Co.October 17, 1883. This selection remained of record until march 22, 1897,when it was canceled pursuant to departmental decision in the case of theNorthern Pacific Railroad Co. (23 Land Dec. 204), holding Duluth to be theeastern terminus of the company's grant, but was reinstated by your office letterof May 26, 1900, under the decision of the Supreme Court of the United

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States in the case of Doherty v. Northern P. R. Co. 177 U. S. 42, 44 L. ed. 830,20 Sup. Ct. Rep. 677, holding the eastern terminus of the grant to be atAshland, Wisconsin. Between the date of cancelation of the selection andbefore it had been reinstated, to wit, on December 17, 1897, the said Richard B.Jones applied to purchase the tract under the timber and stone acts, supra, andafter due publication and proof made entry thereof, December 10, 1898. At thedate of the purchase, but not at the date of the application, the tract incontroversy, with others, was withdrawn from entry by virtue of thedepartmentel order of February 28, 1898 (26 Land Dec. 265), but there was aprovision in the order permitting the completion of all entries theretoforeallowed.

It is contended upon the appeal, in substance:

2

1. That the Northern Pacific Railway Company has no legal or equitable claimupon the United States to be considered the successor in interest to the land-grant rights of the Northern Pacific Railroad Company, and that there istherefore no authority of law for the patenting of lands to the named company.

2. That the company's selection was and is void because no valid basis isassigned.

3. That the selection is irregular and void because the selected land was not, atdate of selection, the nearest available public land to the section alleged to havebeen lost in place.

4. That the timber and stone application of Jones, having been presented at atime when the tract in controversy was unappropriated public domain, hisapplication was the equivalent of an entry, and that he thereafter, in accordancewith the terms of the order of suspension of February 28, 1898, supra, had theright to complete the same by making proof and payment thereon.

5. That such application having been presented, and such proof and paymenthaving been made, he had, prior to January 1, 1898, in contemplation of law,and within the meaning of the act of July 1, 1898 (30 State. at L. 597, 620,chap. 546, U. S. Comp. Stat. Supp. 1909, p. 1503), purchased the land directlyfrom the United States, that he had an entry prior to January 1, 1898, within themeaning of departmental instructions of February 14, 1899 (28 L. D. 103), andthat therefore he is entitled to an adjustment of his claim under said act.

The question of the successorship of the Northern Pacific Railway Company tothe land-grant rights of the Northern Pacific Railroad Company was consideredby Attorney General Harmon, February 6, 1897 (21 Ops. Atty. Gen. 486), andreferring to certain mortgage foreclosure proceedings this Department was thenadvised that it should act upon applications for patents by the railway companyupon the same considerations which should govern it in case there had been noforeclosure and the applications had been made by the old company.

It was but recently urged before this Department that said opinion was ill-advised and unsound, both in law and fact. The matter was again submitted tothe Attorney General, and April 12, 1905, Attorney General Moody consideredthe question, concluding as follows: 'It seems to me that the decision of mypredecessor was correct, and accordingly have to advise you, the Secretary ofthe Interior, that, in my opinion, you should continue to be governed by the rulethere laid down.'

This question is not, therefore, open for further consideration by thisDepartment. Ferguson v. Northern P. R. Co. 33 Land Dec. 364.

Appellant's second contention, that the company's selection herein is voidbecause of invalid basis, rests rests upon the allegation that the basis

assigned lies within the overlapping limits of the grant to the state ofMinnesota, to aid in the construction of a railroad from St. Paul to LakeSuperior, made by the acts of May 5, 1864 (13 Stat. at L. 64, chap. 79), andJuly 13, 1866 (14 Stat. at L. 93, chap. 178), afterwards conferred by the stateupon the Lake Superior & Mississippi Railroad Company, and the grant to theNorthern Pacific Railroad Company, made by the act of July 2, 1864 (13 Stat.at L. 365, chap. 217); that Congress did not make a double grant within theseoverlapping limits, and the date of the grant to the Lake Superior & MississippiRailroad Company being prior to the grant to the Northern Pacific RailroadCompany's road opposite the tract, and the tract having been approved to theformer company prior to the definite location of the last-named company'sroad, it was not granted to it, and therefore not lost to that company's grant.

The third, or granting section of the act of July 2, 1864, supra, grants to theNorthern Pacific Railroad Company 'every alternate section of public land, notmineral, designated by odd numbers, to the amount of twenty alternate sectionsper mile, on each side of the said railroad line, as said company may adoptthrough the territories of the United States, and ten alternate sections of landper mile on each side of said railroad whenever it passes through any state, andwhenever on the line thereof the United States have full title, not reserved, sold,granted, or otherwise appropriated, and free from pre-emption or other claimsor rights at the time the line of said road is definitely fixed, and a plat thereoffiled in the office of the Commissioner of the General Land Office, andwhenever, prior to said time, any of said sections or parts of sections shall havebeen granted, sold, reserved, occupied by homestead settlers, or pre-empted orotherwise disposed of, other lands shall be selected by said company in lieuthereof, under the directions of the Secretary of the Interior, in alternatesections, and designated by odd

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numbers, not more than ten miles beyond the limits of said alternate sections.'

December 7, 1887, the question as to whether selections could be made withinthe first indemnity belt of the Northern Pacific land grant for losses outside ofthe particular state or territory in which the same occurred was submitted to theAttorney General for opinion, and in consideration thereof, Mr. AttorneyGeneral Garland, in his opinion dated January 17, 1888 (8 Land Dec. 14, 17),after referring to the clause of the section above quoted providing forindemnity, says:

'The conditions of this indemnity, set forth in detail, under which the right orprivileges of selection rests in the company, are: lands shall have been lost outof the amount granted; selections must be made by the company of other landsin lieu of them; whose selections must be made under the directions of theSecretary of the Interior; selections shall only be of alternate odd-numberedsections, and they must not be more than 10 miles beyond the limits of thegranted sections. These are all the limitations or conditions provided for by theact of 1864, subject to which the right to select is granted. Interpretation willnot warrant the adding of another limitation, that the lieu lands must be selectedin the same state or territory in which the lands were lost. To annex such anadditional limitation to the words of the grant would be legislation, and notconstruction.'

It is further provided by said § 3 of the act of 1864:

'That all mineral lands be, and the same are, hereby excluded from theoperations of this act, and in lieu thereof a like quantity of unoccupied andunappropriated agricultural lands, in odd-numbered sections nearest to the lineof said road, may be selected as above provided.'

It will be noted that this provision limits the selection of indemnity for losses tothe grant on account of mineral lands, to 'odd-numbered sections, nearest to theline of said road,' etc.

There could be no good reason for attaching an additional condition uponselections made in lieu lands lost to the grant because mineral in character, andit might therefore be urged that it was intended to enlarge the limits withinwhich such selections could be made. Thus, for general indemnity, selectionswere to be made from 'alternate sections, and designated by odd numbers, notmore than 10 miles beyond the limits of said alternate sections,' being thegranted sections, and for losses on account of mineral lands, to 'odd-numberedsections, nearest to the line of said road.'

Be this as it may, the lands made the basis for the selection in question werenot lost to the grant because mineral in character, and the limitation 'nearest tothe line of said road' differs widely from a requirement that the selection mustbe nearest the tract lost and made the basis for the selection.

In the case of United States v. Colton Marble & Lime Co. 146 U. S. 615, 618,36 L. ed. 1104, 1105, 13 Sup. Ct. Rep. 163, it was said by the court:

In respect to the portion of the said circular above quoted, in the manner ofproximity between loss and selected tract, in view of what has been said, itcannot be considered as a limitation upon the right of selection, but rather as

suggesting a manner of designating the losses so as to aid in adjusting the grant.It might also be stated that it is learned upon inquiry at your office that, at leastas to lands within the second indemnity belt, a strict adherence thereto has notbeen enforced.

In the case of Re Hickey, 26 Land Dec. 612, it was held (syllabus):

'Indemnity selections are made under the direction of the Secretary of theInterior, and the enforcement of any requirement in the matter of a specificationof a loss is only for his information and as a bar to the enlargement of the grant,and may be waived whenever he deems such course advisable.'

The conclusions hereinbefore reached answer appellant's fourth

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contention. The railway company's selection was improperly canceled; theapplication of Jones initiated no right as against the company, and his purchaseno claim which can be recognized by the Land Department, unless it isprotected by the provisions of the act of July 1, 1898, supra; and this questioninvolves consideration of the fifth and last specification of error on appeal.

If Jones had purchased this land from the United States prior to January 1,1898, or if he had, prior to that time made an entry thereof within the meaningof the act of July 1, 1898, he is entitled to an adjustment thereunder. It isbelieved that he had done neither of these things. While the application topurchase was presented prior to the date named, proof and payment were notmade until after that date. There was no purchase prior to January 1, 1898. Butit is contended that the application of Jones was the equivalent of an entry. Novested right is acquired by a timber and stone application. While such anapplication, if presented in accordance with the law and for land subject thereto,reserves the land from other disposition by the Land Department, no right isinitiated as against the government, and prior to the submission and acceptanceof final proof and the payment of the purchase price, the Secretary of theInterior may suspend the same from disposition and sale under the public landlaws. Board of Control, Canal No. 3, State of Colorado v. Torrence, 32 LandDec. 472.

This is precisely what was done in this case. The tract was withdrawn fromentry by the order of February 28, 1898, and the purchase of Jones, allowed inviolation of that order, initiated no right falling within the remedial provisionsof the act of July 1, 1898. Eaton v. Northern P. R. Co. 33 Land Dec. 426.

The decision appealed from is affirmed.

This contention is unsound. This base land is not within the limits of thewithdrawal drawal of May 26, 1864, made on account of the grant of May 5,1864, and the case does not, therefore, fall within the ruling of the Departmentin the case of Northern P. R. Co. v. Rooney, 30 Land Dec. 403. It is true thebase land was certified under the grant of May 5, 1864, but it was because ofthe fact that it fell within the indemnity limits of that grant as adjusted to theline of definite location, and was selected after the date of the Northern Pacificland grant, but prior to the definite location of the line of road. No questionarises, therefore, in this case, of the right of the Northern Pacific Company tosatisfy its loss from its second indemnity belt where the base land was in lawand fact lost prior to the grant of July 2, 1864. In the case of Re Northern P. R.Co. 23 Land Dec. 204, it was held that because of a proviso in the act of July 2,1864, supra, said company would not be entitled to receive indemnity for anyof the losses sustained on account of the grant to the Lake Superior &Mississippi Railroad Company, made by the act of May 5, 1864, betweenThomson's junction and Duluth. This decision was fundamentally wrong. Itheld that, because of an agreement, amounting to a consolidation between thetwo companies, whereby the Northern Pacific Company was authorized to usethe other company's tracks between Thomson's Junction

and Duluth, it thereby adopted this as its line of road between these points; thatDuluth, being on Lake Superior, the eastern point named in the company'scharter, that point was therefore the eastern terminus of its grant, and that ittherefore, between these points, being 'upon the line of another railroad route,to aid in the construction of which lands' had been therefore granted by theUnited States, was, because of the proviso above referred to, not entitled toindemnity for lands lost because of the prior grant. This view was declarederroneous by the Supreme Court of the United States in the Doherty Case,supra, which recognized the extension of the road eastward from Thomson'sJunction to Ashland, Wisconsin, as part of the landgrant road, and it followsthat, as the route of the Northern Pacific Railroad is in no sense upon the samegeneral line as that of the Lake Superior & Mississippi Railroad, the proviso inquestion is without application, and the contention that the Northern PacificCompany is not entitled to indemnity for this tract must fail.

With regard to the regularity of the indemnity selection of this land there can beno question but that, as originally presented, it was a proper selection underexisting departmental regulations, the company at that time being relieved fromthe specification of a basis for its selections. It is claimed, however, that thisselection should not receive departmental approval, because there are, or were,at the time said selection was perfected by the assigning of a basis in 1893,available lands nearer to the loss then specified, and the question is thereforepresented, whether, admitting the same to be true, the selection is a proper one

under the terms of the granting act.