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acre tract of land brought by a landowner within 200 feet of the track of the railroad
against a railroad company, which had con as actually constructed, and that the rail-
structed its road over said tract. It seems road company was in actual possession
that the plaintiff, as one of the directors of thereof by its tenants. The precise charac-
the railroad company, had known that the ter of the business * carried on by such tenants[276]
company was constructing its road across his is not disclosed to us, but we are permitted
lands and had remained quiet. The court to presume that it is consistent with the pub-
said:

lic duties and purposes of the railroad com-
"It is true that under the Constitution and pany; and, at any rate, a forfeiture for mis
laws of this state the assessment of damages user could not be enforced in a private ac-
and payment or deposit of the amount is a tion.
condition precedent to the vesting of the title These views dispose of the case, and ren.
or of any right of the company to construct der it unnecessary to determine whether the
their road. But these conditions are suscepti- trial of the title of lots eleven and twelve,
ble of being waived.

Whatever in the action between the railroad company
right the plaintiff may have against the rail- and Smith, as a tenant of Browning &
road company, growing out of this right of Wringrose, resulting in a final judgment,
way question, and whether he is estopped in was well pleaded as res judicata in the pres. .
pais to assert any and all of them, it seems ent action.
clear that he is not entitled to a judgment The judgment of the Circuit Court of Ap-
that would enable him to sever a line of compeals is reversed; the judgment of the Cir.
merce which by his assent, if not through his cuit Court is also reversed, and the cause re-
active agency in part, was constructed over manded to that court with a direction to en-
this same property, and has enjoyed free ter a judgment in favor of the defendants.

passage over it for at least seven years.” 1275] *The same conclusion was reached in Lex

Mr. Justice Gray and Mr. Justice Whito ington & Ohio R. R. Co. v. Ormsby, 7 Dana, concur in the judgment of the court only on 276; Harlow v. Marquette, A. &0. R. R. Co. the ground first stated in the opinion of the 41 Mich. 336; Cairo and Fulton R. R. Co. v. court, that is, the sufficiency of the title of Turner, 31 Ark. 494; Pettibone v. La Crosse the railroad company. and Milwaukee R. R. Co. 14 Wis. 443; Chicago and Alton R. R. Co. v. Goodwin, lll Ill. Mr. Justice Harlan dissents. 273 (53 Am. Rep. 622) ;Kanuga v. St. Louis, L. & W. Ry. Co. 76 Mo. 207; Dodd v. St. Louis

Brewer, J., concurring specially: I con. & H. Ry. Čo. 108 Mo. 581; Evansville & T. H. cur in a reversal of the judgments below but Ry. Co. v. Nye, 113 Ind. 223.

not in all the conclusions reached in the foreThis subject was fully considered by this going opinion, nor in the direction to enter court in the case of Roberts v. Northern Pac. judgment for the defendant. I think the R. R. Co. 158 U. S. 1 [39: 873), where, upon estoppel relied on goes only to the ground the foregoing authorities and others, it was actually occupied by the railroad company held that if a landowner, knowing that a with its tracks, station houses, and other railroad company has entered upon his land buildings used exclusively for railroad purand is engaged in constructing its road with poses, and does not extend to the entire 400 out having complied with a statute requiring feet of the right of way which the company either payment by agreement or proceedings claims under the congressional grant. It to condemn, remains inactive and permits it may be that a large portion of this tract is to go on and expend large sums in the work, in only the constructive possession of the he is estopped from maintaining either trespass or ejectment for the entry, and will be not used exclusively for railroad purposes,

company, or it may be occupied by buildings regarded as having acquiesced therein, and and as to all such ground I do not think any will be restricted to a suit for damages.

estoppel extends. Upon principle and authority we there

I am also of the opinion that the legal fore conclude that neither the city of Bis: title conveyed by the town-site patent and marck, as owners of the town site, nor its the deed to plaintiff must prevail in this acgrantee Smith, can, under the facts and cir- tion at law over any equities the company, cumstances shown in this record, disturb the possession of the Northern Pacific Railroad may have acquired by occupancy. Company in its right of way extending 200 feet on each side of its said road. The find. ing of the trial court, that only 25 feet in JUAN PEDRO CAMOU, Appt., (277) width has ever been occupied for railroad purposes, is immaterial. By granting a

UNITED STATES. right of way 400 feet in width, Congress must be understood to have conclusively de (See 8. C. Reporter's ed. 277-291.) termined that a strip of that width was necessary for a public work of such importance, Authority of Mexican states to sell vacant and it was not competent for a court, at the public lands-decree of Santa Anna. suit of a private party, to adjudge that only 25 feet thereof were occupied for railroad 1. The several states in Mexico had in 1833 aupurposes in the face of the grant and of the

NOTE.—A8 to Missouri private land claims, inding that the entire land in dispute was see note to Les Bois V. Bramell, 11 : 1051.

thority to make sales of vacant public lands the Free, Independent, and Sovereign State of
within their limits, which sales must be rec Sonora, Greeting:
ognized by this government under the treaty Inasmuch as article li of the sovereiga
of 1853.

decree number 70 of the general congress of 2. The decree of Santa Anna on November 25, the union, dated August 4th of 1824, concedes

1853, while he was temporary dictator, and
shortly before the Gadsden treaty was 'made to the states the revenues which in said law
with him by the United States, whereby he it did not reserve for the federation itself, and
declared that alienations of public lands by one of them being that derived from the lands
the several states without approval of the within their respective territories, which in
general government are null, will not preclude consequence belongs to them, for the disposi-
the recognition of such a claim which had tion of which the honorable constitutive con-
become a vested right at the time of his de-
cree, when the grantee was never disturbed gress of the state that used to be joined of
la his possession, nor any adjudication made Sonora and Sinaloa enacted the law No. 30 of
of the nullity of his grant on account of such May 20th of 1825, as well as the decrees rela-
decree.

tive thereto passed by other succeeding

legislatures, and the citizen Rafael Elias, a [No. 28.)

resident of this capital, having made due apArgued March 16, 1898. Decided May 31, plication on the 12th of March of 1827, at the 1898.

treasury general that was then of the United

States, for the lands named San Rafael del APPEAL from a decree of the Court of sidio of Santa Cruz, which was allowed ac

Valle, located in the jurisdiction of the prePrivate Land Claims in behalf of the United cording to law on the date of July 1st a States, defendant, dismissing the petition of the same year, and the petition of entry, the Juan Pedro Camou, plaintiff, to have con order for the commission, and the act of acfirmed to him a tract of land in the county cepting the charge being as follows, to wit of Cochise in the territory of Arizona, known (and after reciting the various steps in the as the San Rafael del Valle grant, and ad-sale closes with the granting clause] : judging the petitioner's claim and title in

In which terms I issue the present title of ralid. Reversed, and case remanded for fur- grant in due form in favor of the citizen ther proceedings.

Rafael Elias, his heirs and successors, deliver.

ing it to them for their protection, previous Statement by Mr. Justice Brewer: memorandum of the same being entered in

On December 3, 1891, the appeilant filed in the proper book. the court of private land claims his petition Given at the capital of Arispe on the praying to have confirmed to him a certain twenty-fifth day of the month of December of tract of land situate in the county of Cochise, one thousand eight hundred and thirty-two. in the territory of Arizona, known and desig. Attested and signed by me, sealed with the nated as the San Rafael del Valle grant. seal of the treasury general, before the underSubsequent proceedings resulted in a trial and signed witnesses of my assistance, with whom a decree in behalf of the government, dismiss- I act in default of clerk, there being none, acing the petition and adjudging petitioner's cording to law. claim and title invalid. The title papers

Jose Maria Mendoza. show that on March 12, 1827, Rafael Elias Assistant: Louis Carranco. made application to the treasurer general of Assistant: Bartolo Miranda. the state of Sonora for the purchase of "pub- [Seal of the Free State oi Sonora, Treasury lic lands adjacent to the ranch of San Pedro, General.] within the jurisdiction of Santa Cruz, as far as the place called Tres Alamos.” On July *The amount of land within the tract as(279) 1 of that year the treasurer general directed now surveyed, according to the testimony, is that proceedings be had in accordance with 20,034.62 åcres. The petition did not state law under the supervision of the alcalde of the area applied for, but as has been seen the Santa Cruz. The proceedings appear to have survey and appraisement called the tract four been regular. The survey was of a tract re- sitios, or 17,353.85 acres. ported by the surveyors to contain four sitios. The property was appraised at $60 a Mr. Rochester Ford for appellant. sitio, or $240 altogether. The fiscal attorney Messrs. Matthew G. Reynolds and approved the proceedings and advised that John K. Richards, Solicitor General, for apthey "be continued to adjudication according pellee. to the forms and requisites in use." At the third auction, on April 18, 1828, the property Mr. Justice Brewer delivered the opinion was struck off to Don Rafael Elias, the peti- of the court: tioner, for the sum of $240. On April 21 the This grant was made in the name of the petitioner paid this cum into the treasury. state of Sonora and by the proper officer of Nothing further was done until April 29, that state, if it had power to make the grant. 1833, at which time the then treasurer general The first question, therefore, is as to the of the state of Sonora issued the expediente, power of the state. We held in United or title papers. This expediente opens with States v. Coe, just decided, 170 U. S. 687 [42: this preamble:

1195], that from and after the adoption of

the Constitution of 1836 no such power was [278) *Jose Maria Mendoza, Treasurer General of vested in the separate states. But that case

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called for no determination of the authority of obligations and rights which the states
those states possessed prior thereto, and in possess in point of law.” 1 White, p. 393.
respect to that matter no opinion was ex And enumerating in article 50 the powers
pressed. We have in this case, and that im- possessed by the general congress, subdivi.
mediately following, Perrin v. United States, sion 31 reads:
171 U. 8. 292 [post, 169]), elaborate discus "To dictate all laws and decrees, which
sions by counsel as to the title to the public may conduce to accomplish the objects spok-[281)
lands within the limits of Mexico and the re en of in the forty-ninth article, without in.
spective righte thereto of the general govern lermeddling with the interior administration
ment and the separate states. On the one hand of the states.” I White, p. 395.
it is insisted that, as in the case of the thirteen Article 137, defining the attributes of the
colonies that formed the United States of supreme court, names among others:
America, the vacant lands were the property "1. To take cognizance of disputes which
of the states; that as no express cession was may arise between the different states of the
made by any Mexican states to the general union, whenever there arises litigation in re-
government the title to those lands remained lation to the same, requiring a formal decree,
in the states until at least the formation of and that arising between a state and one or
the Constitution of 1836, and that each state more of its inhabitants, or between individ.
had therefore the absolute right to dispose of uals in relation to lands under concessions
all within its own limits. On the other hand, from different states, without prejudice to
it is said that, prior to the separation of the right of tue parties to claim the conces-
Mexico from Spain, the lands were the prop- sion from the party which granted it.” i
erty of the King of Spain, that the separation White, 403.
created a new national government which It cannot of course be pretended that these
succeeded to all the rights of the prior provisions either operated to transfer the titlo

sovereign, including therein the ownership of to vacant public lands from the nation to the (280]all vacant lands. We deem "it unnecessary to respective states or amount to a declaration

review this discussion or attempt to settle that the title to such lands is vested in the the disputed question as to the location of the states. All that can fairly be inferred from title. In this expediente the treasurer them is that the supremacy of the several general refers to “article 11 of the sovereign states in matters of local interest was recog. decree number 70 of the general congress of nized, and further, that conflicting cessions of the union," as conceding to the states the lands from different states might be expectrevenues derived from the sale of lands within ed and that the settlement of disputes retheir respective limits, and upon that and specting them should be by the supreme court law number 30 of the congress of the state of the nation. These inferences are by no relies as the sources of his power to make the means determinative of the question here conveyance. The state having undoubtedly presented, and yet it must be conceded that vested its authority in the treasurer general, they at least point to some control by the the inquiry comes back to the effect of said states over vacant lands within their limits, article 11.

and suggest the exercise by those states of
Preliminary thereto we must notice these the right to make concessions of those
matters:

lands.
The constitutive act of the Mexican federa Two prominent laws of the Mexican nation
tion, adopted January 31, 1824, in articles are the colonization law of August 18, 1824
5 and 6 declares:

(1 White, 601; Reynolds, p. 121), and the law
"Art. 5. The nation adopts for the form of in respect to general and special revenues, of
its government a popular representative and August 4, 1824. Reynolds, p. 118. White's
federal republic.

translation of articles 1, 2, 3, 10, 11, and 16 "Art. 6. Its integral parts are free, sovercf the colonization law, differing slightly eign, and independent 'states, in as far as from that given by Reynolds, is as follows: regards exclusively its internal administra "Art. 1. The Mexican nation offers to for. tion, according to the rules laid down in this eigners, who come to establish themselves act, and in the general Constitution.” White, within its territory, security for their per. New Recopilacion, p. 375.

sors and property; provided they subject On October 4, 1824, a Constitution was es- themselves to the laws of the country. tablished. In it article 49 reads:

"Art. 2. This law comprehends those lands
“The laws or decrees, which emanate from of the nation, * not the property of individu.[282)
the general congress, shall have for their ob-als, corporations, or towns, which can be col-
ject:

onized.
“. To sustain the national independence, "Art. 3. For this purpose the legislatures
and to provide for the preservation and se- of all the states will, as soon as possible, form
curity of the nation in its exterior relations. colonization laws or regulations for their re-

2. To preserve the federal union of the spective states, conforming themselves in all
states, and peace anu public order in the in- things to the constitutional act, gereral Con.
terior of the confederation.

stitution, and the regulations established in "3. To maintain the independence of the this law.” states among themselves, so far as respects "Art. 10. The military who, in virtue of their government according to the constitu- the er nade on the 27th of March, 1821, tive act and this Constitution.

have a right to lands, shall be attended to “4. To sustain the proportional equality by the states, in conformity with the di

1

plomas which are issued to that effect by the have been maintained by two or more of what supreme executive power.

were formerly provinces, are at the disposal "Art. 11. If, in virtue of the decree alluded of the government of the federation. lo in the last article, and taking into view “11. The revenues not included in the the probabilities of life, the supreme execu- foregoing articles belong to the states." tive power should deem it expedient to alien- The 8th article gives to the national governate any portion of land in favor of any officer, ment all the revenues derived from the terwhether civil or military, of the federation, ritories. Obviously the entire management of it can do so from the vacant lands of the ter- the affairs of the territories was reserved to ritories."

the general government, and any revenue de "Art. 16. The government in conformity rived therefrom passed into the general with the provisions established in this law treasury. will proceed to colonize the territories of the The 9th article is indefinite in that it fails Republic.”

to define what is national property. It asIt is not pretended that the grant in ques- sumes that certain things pass within the tion was made under this colonization law, description of national property, and affirmaand we only refer to it as showing a recognitively includes within that description the tion by the general government of some au- property taken from *the clergy. The lan-[284 thority on the part of the states in reference guage used is broad enough to include all pubto the vacant lands. It will be seen that lic lands within the limits of the nation, and while article 2 speaks of "the lands of the yet if it was intended to include such lands it nation,” article 3 directs the states to enact would seem scarcely necessary to add the colonization laws in conformity to the gen. clause, including those taken from the clergy. eral provisions of the Constitution. So that certain is it that according to our methods of the actual management of colonization affairs legislation, and our use of language, this was put within the control of the states, sub-article would not be considered as defining the ject, of course, to the superior dominion of property the revenues from which it assigns the general government. Article 10 provides to the national government. The 10th that military rights to lands, though created article seems to have little significance in this by the nation, shall be attended to by the connection, and refers obviously to public states, thus implying at least that, for con buildings and the grounds attached, and not venience, administration of the vacant lands to vacant public lands. While the llth was intrusted to the states. Obviously the article concedes to the states revenues not inthought here was that there should not be cluded in the foregoing articles, it does not detwo places in which the administration of fine those revenues, and depends for its scope the public lands should be carried on, and upon the significance and force of the prior

so in article 11 it was provided that if in the articles. If these articles were all that called (283 ljudrinent of the nation it was *expedient to for consideration it would be difficult to infer

grant to a military or civil officer any public from them that the vacant public lands were lands, it was to be made from vacant lands given to the states for purposes of sale or for in the territories. And, finally, in article 16, appropriation of the proceeds of such sales. as though to separate the administration of But in the same statute is a provision that the public lands in the states from those in the sum of $3,136,875, estimated as the defithe territories, it is distinctly declared that cit in the general expenses, shall be appor. the national government will colonize the tioned among the states of the federation," territories of the Republic. As heretofore said, and following that is the apportionment. all this, of course, amounts only to assigning | Other sections required delivery by the states to the states the alministration of the va- every month of their part of the above ap cant lands for purposes of colonization.

portionment and the final adjustment of the The other act to which we have referred, amount thereof between the government and the one which is relied upon by the treasurer the states. Of course this implies that within general as giving authority for this ex: the limits of the state there were cerpediente, is that in reference to general and tain matters of revenue reserved, out of which special revenues. It commences with the the states were to collect the sums appordeclaration that the following belong to the tioned to them, and to return the same to the general revenues of the federation, and then general treasury. Subsequent legislation in ten articles are named revenues derived throws light upon the meaning of this revenue from different sources, such as import and law. Thus, on April 6, 1830, a decree was export duties, tobacco, and powder, etc. The passed, the third article of which is as fol8th, 9th, 10th, and 11th articles are as follows: lows (Reynolds, p. 118):

“The government shall have power to ap "g. That from the territories of the federa- point one or more commissioners to visit the tion.

colonies of the frontier states, to contract “9. National property, in which is included with their legislatures for the purchase, in that of the inquisition and temporal property the name of the federation, of the lands they of the clergy, or any other rural or urban may consider suitable and sufficient for the property that belongs, or shall hereafter be establishment of colonies of Mexican and long, to the public exchequer.

of other nations, to enter into such arrange“10. The buildings, offices, and the landsments with the colonies already establisbed <85 attached thereto, which belong or have be- as they may deem proper for the security of longed, to the general revenues and those that the Republic, to see to the exact compliance

with the contracts upon the entry of new col. cree the following provisional law for the pur. onists, and to examine as to how far those chase of the lands of the state.” Subsequent already entered into have been complied with. legislation of the state is in the same line.

"4. The executive shall have the power to Further, 88 8 and 9 of article 161 of the take the lands he may consider suitable for national Constitution of 1824 made it the fortifications and arsenals, and for new col. duty of each Mexican state: onies, and shall give the states eredit for their "To present annually to each one of the value on the accounts they owe the federa- houses of the general congress a minute and tion.” Reynolds, p. 148.

comprehensive report of the amounts that The language of this decree is very signifi. are received and paid out at the treasuries cant, and clearly recognizes some title in the within their limits, together with a statement states, for why should commissioners be au- of the origin of the one and the other, and thorized to contract with the legislatures of touching the different branches of agricul. the states for the purchase of lands which be ture, commercial and manufacturing induslonged to the nation. It also clearly recog. tries,” etc. nizes the right of the states to sell these va And also, cant lands and apply the proceeds in settle “To forward to the two chambers (of tho ment of the demands made against them by federal government, and when they are in re the general apportionment of the revenue law cess, to the council of the government, a cer. of 1824. It declares that the executive may tified copy of their constitutions, laws, and take the lands he considers suitable for forti decrees." fications, arsenals, and for new colonies, and It may be assumed that these require at the same time provides that he shall give ments of the national Constitution were comthe states credit on the amount they owe the plied with, and that the constitutions, laws confederation. But why should any credit and decrees of the state and the proceedings be given if these lands so taken by the ex. had in reference to these several sales of land ecutive where the property of the nation, and were reported to the congress of the nation. the states without authority to sell them or We find no act of that congress setting aside receive the proceeds of sales? If during *such legislation or sales. This is significant,[287] all these years the lands were the property of and it is not inappropriate to refer to Clinton the nation, were to be held and sold only by v. Englebrecht, 13 Wall. 434, 446 [20:659, the nation, and the proceeds thereof to be ac- 662), in which it was said: counted for directly to the nation, why should "In the first place, we observe that the law it be decreed that if the nation takes any part has received the implied sanction of congress. of them for arsenals and other public pur. It was adopted in 1859. It has been upon poses, credit for the value thereof is to be en- the statute book for more than twelve years. tered upon the amounts due by the states to It must have been transmitted to congress the nation? We find it difficult to escape the soon after it was enacted, for it was the duty force of this decree of 1830. It indicates that of the secretary of the territory to transmit although the language of the revenue decree to that body copies of all laws, on or beforo of 1824 is indefinite, and does not in terms the first of the next December in each year. name vacant public lands, yet both the nation The simple disapproval by congress at any and the states understood that its effect was time would have annulled it. It is no unto grant authority to the states to sell such reasonable inference, therefore, that it was lands and appropriate the proceeds in settle approved by that body."

ment of the amounts charged against them We are not insensible of the fact that the (286]by the nation. We see no other way in which provisions of the act of September 21, 1824,

to give reasonable force to the language of creating the office of commissary general, an this decree of 1830, and it must be held to be act which we had occasion to consider in a national interpretation of the revenue de Ely's Administrator v. United States, 171 U. cree of 1824.

S. 220 [ante, 142) seem to make against the But we are not limited to this authoritative idea of the administration of vacant lands by national exposition of the meaning of the rev- the states, and it is difficult to work out from enue law of 1824. The testimony in the sev- all the statutes a consistent, continuous, and eral cases of a similar nature now before us, harmonious rule. We must in each case en. including therein the reports of the officers deavor to ascertain what the Mexican govo of this government sent to examine the ernment recognized as valid, and when that archives of Mexico, discloses that the state is done the duty of respecting and enforcing of Sonora at least assumed that the revenue the grant arises. Other matters are referred act of 1824 authorized its disposal of the va- to by counsel in their briefs, but it would cant public lands, and acting on that as- needlessly prolong this opinion to refer to sumption did in a multitude of cases make them. Our conclusion is that at the time of sales thereof. In this connection it may be these transactions the several states had observed that the Constitution of the state authority to make sales of vacant public of Sonora, or State of the West, declares, ar- lands within their limits, and that such sales, ticle 47, that the right of selling lands be- unless annulled by the national government, longs to the state. This Constitution bears must be considered as grants to be recognized date May 11, 1825. Law No. 30 of that by this government under the terms of the state, of May 20, 1825, the law referred to by treaty of 1853. the treasurer general in the expediente, re We pass, therefore, to a consideration of ates that “the congress has seen fit to de- the effect of the decrees of Santa Anna. The

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