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tion, the lands of this pueblo and mission were abandoned, it would seem that they thus became a part of the public domain of the nation, and that as such the only laws appli cable to their disposal were the laws of the nation in relation to its vacant public lands, to which the proceedings in this instance do not purport to have conformed or to have been made under them.

We concur with the court of private land claims that in either view there was a fatal[200] want of power in the departmental treasurer to make the sale, and it is not asserted in the petition, nor was any evidence introduced to show that his action was participated in or ratified by the governor, or by the national government in any manner. And this is not The titulo refers to some lands acquired by a case in which the sale and grant can be purchase, though the record leaves that mat-treated as validated by presumption. ter entirely vague and uncertain, and declares Decree affirmed.

aving decided these points, thereupon to exercise the sole power of sale.

Tumacacori, Calabazas, and Huebabi are said to have been originally separate and distinct pueblos and missions, of which the two latter were abandoned as early as December, 1806, when the native Indians of Tumacacori and the governor of said Indians presented petitions to the governor and intendente conde to give them title in accordance with the royal instructions of October 15, 1754, and of article 81 of the royal ordinances of December 4, 1786 (alleging the loss or destruction of their old title papers), of the lands embraced in the fundo legal and the estancia of each pueblo and mission, whereupon the grant of 1807 was made.

the grant to be made to the pueblo and na-
tives of Tumacacori, that they may "enjoy

the use and freely possess at will and for their NORTHERN PACIFIC RAILROAD COM.

PANY et al., Plffs. in Err.,

own benefit in community and individually, and for the decent support of the church of said mission, but under the condition that in no case and in no manner shall they alienate at any time any part of said lands which are adjudicated and assigned to them, since they Grant to railroad company-extent of occu [259]are all *to be considered as belonging to the

0.

(See S. C. Reporter's ed. 260–276.)

pation.

Republic and community of natives alone, for

their proper use, as well for sowing purposes. The occupation and survey of lands with in as for stockraising and the increased prosperity of the same."

This was in accordance with the general rule that the missionaries and Indians only acquired a usufruct or occupancy at the will of the sovereign. United States v. Cervantes, 18 How. 553 [15: 484].

tent to locate a town site thereon, but without filing a plat or obtaining the adoption of the town site or a patent therefor until after a railroad is located thereon, does not prevent the land from being a part of the public domain for the purposes of a grant to the railroad company.

PATRICK R. SMITH.

Prior to 1829, the tribunal of the inquisi-2. tion had been abolished by the Cortes, and the monastic and other religious orders suppressed, and on the 10th of May of that year it was ordered, through the department of the treasury, that "the property in which consist the funds of the temporalities of the ex-Jesuits and monastics and the rural and urban estates belonging to the inquisition" be sold at public sale to the best and highest bidder. 2 Mex. Laws, 108. May 31, 1829,

the commissary general of Mexico published

IN ERROR to the United States Circuit Court of Appeals for the Eighth Circuit to re

a "list of the urban and rural estates relating to the temporalities of the ex-Jesuits and suppressed monastics with a statement of their values, the burdens they carry, and annual revenue" (Ibid. 117), which did not include the lands in question. The depart-view a judgment of that court affirming the mental treasurer did not claim, and manifest- judgment of the Circuit Court of the United ly did not acquire, the power to sell these States for the District of North Dakota, in lands under the order of May 10, 1829, or the favor of the plaintiff, Patrick R. Smith, in an regulations of July 7, 1831, bearing on that action brought by him against the Northern subject. Pacific Railroad Company to recover the pos

By a decree of April 16, 1834 (2 Mex. Laws, 689), the missions of the Republic were secularized, that is to say, converted from sacred to secular uses, and so far as these lands could have been regarded as temporalities, that is, profane property belonging to the church or its ecclesiastics, that decree changed their condition.

And, as many years before the sale in ques- 28: 794.

The fact that only 25 feet in width of its right of way has been occupied for railroad purposes, under a grant of 200 feet on each side of the track, does not prevent a railroad company from claiming the full width of the grant as against persons who had occupied the premises for the purpose of making a town site location thereof, but had not acquired a right thereto as against the railroad company when the road was built.

[No. 93.]

Argued November 4, 5, 1897. Ordered for

Reargument January 10, 1898. Reargued
March 21, 1898. Decided May 31, 1898.

NOTE. As to pre-emption rights, see note to
United States v. Fitzgerald, 10: 785.

That patents for land may be set aside for fraud, see note to Miller v. Kerr, 5: 381.

As to errors in surveys and descriptions in patents for lande; how construed, see note to Watts v. Lindsey, 5: 423.

As to land grants to railroads, see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co.

session of land in the city of Bismarck and territory of Dakota, now state of North Dakota. Judgments of the Circuit Court of Appeals and of the Circuit Court reversed, and cause remanded to the latter court with directions to enter a judgment in favor of the defendants.

See same case below, 19 U. S. App. 131, 58
Fed. Rep. 513, 7 C. C. A. 397.

The defendant for amended answer to the[262] complaint herein:

"First. For a first defense, alleges-
"That the land mentioned in the complaint
is situated within two hundred feet of the
center line of the roadbed of its line of railroad
constructed through the state of North
Dakota, and has been for more than twenty
years in its lawful possession as its right of
way, roadbed and depot grounds, and that the
same was granted to it as a right of way by
the act of Congress described in the com-
plaint.

Statement by Mr. Justice Shiras: This was an action brought by Patrick R. Sinith on the 28th day of December, 1891, in the circuit court of the United States for the district of North Dakota against the Northern Pacific Railroad Company. The complaint and answer were as follows: "The complaint of the above-named plain- fendant is a corporation created by the said [261]tiff respectfully shows to this court and act of Congress. Denies each and every alalleges that the plaintiff is, and ever since legation in the complaint not herein before the organization of the state of North Dakota specifically admitted, and it specifically denies has been, a citizen thereof and that prior that by reason of any of the allegations or thereto he was during all the time hereinafter things in the said complaint set forth the mentioned a citizen of the territory of plaintiff has been damaged in any sum whatDakota.

ever.

"Admits that at all times mentioned in the complaint the plaintiff was a resident of the city of Bismarck in the state of North Dakota, and further admits that the de

"That during all the time hereinafter mentioned the above-named defendant has been and still is a corporation created by and existing under and in virtue of an act of the Congress of the United States of America, entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from Lake Superior to Puget Sound on the Pacific Coast, by the Northern Route,' approved July 2, 1864.

"That on the 14th day of September, A. D. 1876, the plaintiff became and ever since has been and still is duly seised in fee simple and entitled to the possession of the followingdescribed real property situated in the city of Bismarck, in the county of Burleigh and territory of Dakota (now, and since the organization thereof under a state government, the state of North Dakota), to wit: Lots numbered five, six, seven, eight, nine, ten, eleven, and twelve, in block number eight, according to the recorded plat of the city of Bismarck, Dakota Territory, together with the hereditaments, privileges, and appurtenances thereof and thereto belonging.

"Wherefore, the defendant demands judg ment: 1st. That the complaint be dismissed. 2d. For its costs and disbursements in this action."

*The findings of fact and law made by the[263] trial court were as follows:

"That said defendant more than six years prior to the commencement of this action wrongfully and unlawfully went into possession of the premises above described. That "The property in controversy, the same besaid defendant ever since said entry has ing eight lots in the city of Bismarck in wrongfully and unlawfully retained and with- North Dakota, described as lots five (5) to held, and still does wrongfully and unlawfully twelve (12) both inclusive, in block eight (8), retain and withhold, the possession thereof in the city of Bismarck, which was formerly from the plaintiff. And that the use and oc- known as Edwinton, and the name of which cupation thereof during said time was worth was changed by act of the legislature of the at least five thousand dollars a year. That territory of North Dakota to 'Bismarck' the damage to the plaintiff by the wrongful was part of an eighty (80) acre tract of land withholding of the possession of the premises which was entered by John A. McLean as as aforesaid is the sum of thirty thousand mayor of the city of Bismarck, in behalf of dollars. its inhabitants, under the town-site act (Re"Wherefore the plaintiff demands judgment vised Statutes, § 2387), and was patented to against said defendant for the possession of him thereunder July 21, 1879. said premises and for the sum of thirty thousand dollars, his damages as aforesaid, together with his costs and disbursements nerein."

"The corporate authorities of that city subsequently and more than six years prior to the commencement of the action conveyed these lots to Patrick R. Smith, the plaintiff.

"Second. For a second defense

"That on the ninth day of May, 1889, the plaintiff impleaded the defendant in the district court within and for the county of Burleigh, in the sixth judicial district for the territory of Dakota (now the state of North Dakota), for the same cause of action for which he has impleaded it in this action.

"That at the time of the commencement of this action, said action was pending in said court and is still pending therein.

"Third. For a third defense

"That on the 31st day of January, 1878, the defendant recovered judgment against the plaintiff for the possession of a portion of the property described in the complaint, to wit, that portion thereof described as lots eleven and twelve, for six cents damages and for $ costs, and that said judgment was rendered upon the cause of action mentioned in the complaint, which judgment is in full force, unreversed, and unsatisfied.

"In the year 1877 the defendant commenced an action in the district court of Burleigh county, territory of Dakota (now the state of North Dakota), in which county the premises next hereinafter described were and are situated, against certain parties, including the plaintiff herein, to recover the possession of part of the premises here in question, which portion is particularly described as follows: Commencing at the southeast corner of Main[265] and Third streets in the city of Bismarck, the same being the northwest corner of block eight (8), running thence east along the south line of said Main street, a distance of

"The eighty (80) acre tract, on which these lots were situated, was selected as the location of a portion of this town site, and surveyed prior to June 20, 1872. In the year 1872 the attorney of the Lake Superior & Puget Sound Land Company-the company that first made this selection-commenced and thereafter continued to sell lots upon this town site according to a plat thereof, which was then made, and subsequently, on February 9, 1874, recorded in the office of the register of deeds of the county in which the land was situated. By the first of January, 1873, thirty buildings had been erected on the town site, and from that time until the patent was issued the population of the city and the improvements in it continued to in- fifty (50) feet; thence south, parallel with crease. It was upon the town site thus the east line of said Third street, a distance selected and the plat thus made, which of seventy-five (75) feet to said east line of was afterwards adopte! as the plat and site said Main street, a distance of fifty (50) feet, of the city of Bismarck, that the patent to Mc-to said Third street; thence north, along said Lean was based, and this patent contained no east line of said Third treet, a distance of reservation of any right of way to the North- seventy-five (75) feet to the place of beginern Pacific Railroad Company. ning. Anu such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the parties and subject-matter of said action) that the defendant in the action herein (the plaintiff in the action last above referred to) duly recovered in said action a judgment against the defendants in that action including the plaintiff in this action, for the possession of the premises last above described and for nominal damages for the withholding thereof. "That the value of the use and occupation of the premises in question, for six years prior to December 28, 1891, the date of the commencement of the action, is the sum of twenty-six thousand dollars.

"From the foregoing facts I find, as conclusions of law, that the plaintin is entitled to the possession of the premises above described, and to recover from the defendant the sum of twenty-six thousand dollars with interest thereon from the 28th day of December, A. D. 1891, at the rate of seven per cent per annum, and his costs and disbursements."

"The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof filed in the General Land Office in March, 1873.

"On February 21, 1872 the Northern Pacific [264]Railroad Company filed in the Department of the Interior the map of its general route east of the Missouri river. This route passed about three quarters of a mile south of this eighty-acre tract. On May 26, 1873, it filed with the Secretary of the Interior, in the of fice of the Commissioner of the General Land Office, and he accepted, its map fixing the definite location of its line. The Interior Department thereupon designated such line upon its record maps for its use, and copies of such record maps were forwarded to and remain on file in the office of the register and receiver of the land office at Bismarck, having jurisdiction of that part of the public domain embracing the premises in question. The line thus fixed passed about two miles south of this eighty-acre tract. During the year 1872 grading was done by the company on this line extending in a continuous line from its grading east of the township in which this tract was located to a point onequarter of a mile west of the west line of this eighty-acre tract extended south to its intersection with the grading. During the year 1872 there was a line staked out across this tract substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the year 1873 the railroad was constructed across this tract and has since remained and been operated upon it. The grading on its line of definite location two miles south was abandoned. The lots in question are within two hundred feet of the main track of this railroad as actually constructed and more than two miles from its line of definite location as shown on its map filed to definitely fix this line, and have been occupied by the defendant, through its tenants, during the period in question; but no part of the same,

except the rear twenty-five feet thereof, has ever been occupied for railroad purposes.

[blocks in formation]

road was constructed across this tract, and has since remained and been operated upon it. The lots in question are within 200 feet of the main track of this railroad as actually constructed, and have been occupied by the defendant during the entire period since the construction of the road, excepting lots eleven and twelve, which during about three years were in the adverse possession of the firm of Browing & Wringrose and of Patrick R. Smith, the defendant in error, as the tenant of said firm.

In 1877 an action of ejectment, to recover possession of said lots eleven and twelve, was brought by the Northern Pacific Railroad Company, in the district court of the territory of Dakota against Browing & Wring rose and said Patrick R. Smith, which action resulted, on January 31, 1878, in a final judgment, still subsisting, against said Smith and the other defendants.

road Company a right of way through the public lands, to the extent of 200 feet in width on each side of said railroad; that, in pursuance of said grant, the railroad company had constructed its road in 1873, including in its right of way the land in dispute; that, on November 24, 1873, commissioners, appointed under the 4th section of said act, reported that they had examined the Dakota division of said railroad (including that portion of the same which cov ered the land in controversy) and that they had found its construction and equipment throughout to be in accordance with the instructions furnished for their guidance by the Interior Department, and accordingly recommended the acceptance of the road by the government; that said report had been, on December 1, 1873, approved by the President; and that the company had maintained and operated said railroad since its said conOn the trial of the present action, which struction to the time of trial, undoubtedly was brought in the circuit court of the Unit-*there was thus disclosed a prima facie title(268) ed States for the district of North Dakota and right of possession of the disputed tract. in 1893, and which brought into question the To overthrow the railroad company's case title and possession of lots five, six, seven, the plaintiff depended on an alleged conveyeight, nine, and ten, as well as of lots eleven and twelve, the plaintiff, Patrick R. Smith, set up, as the basis of his title and right of possession, a deed of conveyance by the corporate authorities of the city of Bismarck of the said lots as part of a town-site plat patented to John A. McLean, as mayor of eaid city, on July 21, 1879. The record does not disclose a copy of such deed to Smith, nor its date. In his complaint Smith alleged that "on the fourteenth day of September, A. D. 1876, he became and ever since has been and still is duly seised in fee simple and entitled to the possession" of the property in 267]dispute. *In the findings it is stated that the city authorities conveyed these lots to Pat rick R. Smith, the plaintiff, subsequently to the granting of the patent to the mayor on July 21, 1879.

The defendant, the Northern Pacific Railroad Company, at the trial relied on its grant of right of way from the United States on June 2, 1864, on its possession of lots six, seven, eight, nine, and ten since the construction of the railroad in 1873, and of lots elever and twelve since their recovery under the action and judgment in 1878, and the company likewise put in evidence the record of said suit and recovery as constituting res judicata.

The learned judge of the circuit court, af ter stating the foregoing facts, and some others not necessary to be here mentioned, entered judgment that the plaintiff was en titled to recover the possession of all of said lots and the sum of $26,000, as the value o the use and occupation of the premises in question, for six years prior to December 28, 1891, the date of the commencement of the action; and that judgment was affirmed by the circuit court of appeals. 32 U. S. App. 573.

When it was made to appear that, by the 2d section of the act of June 2, 1864, there was granted to the Northern Pacific Rail

ance made to him after July 21, 1879, by the city authorities of the city of Bismarck, of the lots in dispute in tms suit, and gave evidence that the 80-acre tract on which these lots were situated was selected as a portion of a town site and surveyed prior to June 20, 1872, by the Lake Superior & Puget Sound Land Company, and that said land company made and, on February 9, 1874, recorded, a plat thereof, and that said town site and plat was afterwards adopted as the town site of the city of Bismarck under the town site act of the United States (§ 2387, Rev. Stat.) and was patented as such town site to John A. McLean, mayor of said city, on July 21, 1879. The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof was filed in the General Land Office in March, 1873.

It is evident that when in 1873 the Northern Pacific Railroad Company took possession of the land in dispute, as and for its right of way, and constructed its road over and upon the same, if the tract so taken was then part of the public lands, only the United States could complain of the act of the company in changing the location of its tracks from that previously selected. But, so far as this record discloses, the United States did not object to such change of location, but rather, by having, through the commissioners and the President, approved and accepted this part of the road when constructed, must be deemed to have acquiesced in the change of location as properly made.

But was the land in question part of the public domain in the spring of 1873? It certainly was, unless the occupation, at that time, of those who afterwards, in 1879, obtained a patent for a tract of 80 acres, including the land in question as part thereof, for a town site, deprived it of that character.

It has frequently been decided by this court that mere occupation and improvement

[269]on the public lands, with a view to pre-a tenant of other parties, and that he was ousted therefrom by a final judgment in an action of ejectment at the suit of the railroad company on January 31, 1878.

Apart from the legal effect of that judg ment as res judicata, it is thus quite appar ent that Smith thereby was visited with notice of the claim of the railroad company.

emption, do not confer a vested right in the land so occupied; that the power of Congress over the public lands, as conferred by the Constitution, can only be restrained by the courts in cases where the land has ceased to be government property by reason of a right vested in some person or corporation, that such a vested right, under the pre-emption laws, is only obtained when the purchase money has been paid, and the receipt of the proper land officer given to the purchaser. Frisbie v. Whitney, 9 Wall. 187 [19: 668]; The Yosemite Valley Case, 15 Wall. 77 [21: 82]; Buxton v. Traver, 130 U. S. 232 [32: 920]; Northern Pac. R. R. Co. v. Colburn, 164 U. S. 383 [41:479].

But suppose it be conceded, for the sake of the argument, that the Lake Superior & Puget Sound Land Company made the first entry, and that the city of Bismarck and Smith as its grantee could avail themselves of such entry, still the proof is that the railroad company completed its road over the land before the town site was patented, and before Smith obtained his conveyance. To acquire the benefit tendered by the act of 1864 nothing more was necessary than for the road to be constructed. The railroad company by accepting the offer of the gov ernment obtained a grant of the right of way, which was at least perfectly good as against the government. And be it further conceded, but not decided, that the railroad company when it changed its route, after the filing of its map of definite location, lost its priority of right under the grant of the act of 1864 as against subsequent grantees of the United States who obtained title before the actual construction of the railroad, and that the railroad company could only legally proceed under the exercise of its right of eminent domain, it still remains, as we think,[271] It is one of the findings of fact that, in the under the facts of this case, that Smith could year 1872, the Lake Superior & Puget Sound not maintain his present action seeking to Land Company occupied a tract of land, in- oust the company from possession of its cluding within its boundaries the land in dis-right of way and railroad constructed therepute, but it is also founà tnat no plat thereof on.

If, then, one seeking to appropriate to himself a portion of the public lands cannot, no matter how long his occupation or how large his improvements, maintain a right of possession against the United States or their grantees, unless he has, by entry and payment of purchase money, created in himself a vested right, is one who claims under a town-site grant in any better position?

No cases are cited to that effect; nor does there seem to be any reason, in the nature of things, why rights created under a town site settlement should be carried back, by operation of law, so as to defeat the title of a party who had, under color of right, taken possession and made valuable improvements before the entry under the town-site act.

was filed in the register's office until Feb- There is abundant authority for the proporuary 9, 1874, a year after the railroad com-sition that, while no man can be deprived of pany had gone into possession and con- his property, even in the exercise of the right structed its road, and that the patent was not of eminent domain, unless he is compensated granted to the mayor in behalf of the city of therefor, yet that the property holder, if cogBismarck till July 21, 1879. It is also one of nizant of the facts may, by permitting a railthe findings that the corporate authorities road company, without objection, to take did not convey these lots to Patrick R. Smith possession of land, construct its track, and till after the grant of the patent. operate its road, preclude himself from a remThe record contains no copy of the deed to edy by an action of ejectment. His remedy Smith, nor statement of any consideration must be sought either in a suit in equity, or paid by him, nor of the date when, if ever, he in a proceeding under the statute, if one be went into actual possession. provided, regulating the appropriating of [270] *In such a state of facts will the law over-private property for railroad purposes.

Such were the facts in the case of McAulay v. Western Vermont R. R. Company, 33 Vt. 311 [78 Am. Dec. 627], and where Chief Justice Redfield delivered the opinion of the court, a portion of which we quote:

turn the title of the railroad company by imputing to Smith the antecedent possession of the Lake Superior & Puget Sound Land Company? Whatever may be his rights to the land outside of that in possession of the railroad company, must it not be inferred "It being admitted, as it seems to be, that that he bought subject to the public high- the plaintiff had full knowledge of the proway? It is found that in the month of June, ceedings of the company to construct and lo1873, the railroad had been constructed cate their road upon his land, before and duracross this tract, and has since remained ing all the time of the construction, and that and been operated upon it; and it is hard to he did not interfere in any way to prevent imagine what notice more distinct and act- the occupation of the land for the purposes ual could be given than that afforded by the of the road otherwise than by forbidding the operation of a railroad. Moreover, this rec-hands working on the road until his damages ord discloses that Smith on or about Novem- were paid, and that only on one occasion, it ber 1, 1876 (more than three years after the becomes an important inquiry whether he completion of the railroad), went into posses- can maintain ejectment for the land by reasion of a portion of the land in dispute as son of the nonpayment of his damages. 171 U. S. U. S., Book 43.

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