225 U. S.

Argument for Appellants.

20 Id. 90; Nor. Pac. R. Co. v. Maclay, 26 Id. 43; Nor. Pac. R. Co. v. Clark, 5 Id. 138; Whitney v. Nor. Pac. R. Co., 1. Id. 343; Phelps v. Nor. Pac. R. Co., 1 Id. 368; William P. Maclay, 2 Id. 675; Atl. & Pac. R. Co., 13 Id. 373; Atl. & Pac. R. Co. v. Tiernan, 17 Id. 587.

The construction given to a statute by those charged with its execution has much weight and ought not to be overruled without cogent reasons. The decisions of the Department of the Interior in regard to the construction and effect of statutes relating to congressional grants of the public domain, especially when followed consistently for many years, will be accepted by the courts as correct, unless obviously wrong. United States v. Hammers, 221 U. S. 220; United States v. Moore, 95 U. S. 760; Edwards v. Darby, 12 Wheat. 206; United States v. Burlington R. R. Co., 98 U. S. 334; Brown v. United States, 113 U. S. 568; Hewitt v. Schultz, 180 U. S. 139; St. Paul, &c. R. Co. v. Phelps, 137 U. S. 528; Hastings, &c. R. Co. v. Whitney, 132 U. S. 357; McFadden v. Mountain View Min. Co., 97 Fed. Rep. 670.

The predecessors in title of the appellee accepted the benefits of the act of July 1, 1862, and thereby became subject to its limitations, as well those upon the original grant of July 1, 1862, as those upon the grants contained in the amendatory act itself. See Humbird v. Avery, 195 U. S. 480; Heydenfeldt v. Davey G. & S. Mining Co., 93 U. S. 634.

By accepting an additional grant of powers or franchises, a corporation becomes subject to new restrictions imposed by the granting act. St. Paul Ry. Co. v. Chadwick, 6 Land Dec. 128; St. Paul R. Co. v. Moling, 7 Id. 184; St. Paul R. Co. v. Thompson, 10 Id. 507.

By "Government reservation" is obviously meant any public land reserved by the Government for any special use. Indian reservations are undoubtedly included within the meaning of the term. Leavenworth, L. & G. R. Co. v.

Argument for Appellee.

225 U. S.

United States, 92 U. S. 733; Hot Springs Cases (Rector v. United States), 92 U. S. 698; A. & P. R. Co. v. Mingus, 165 U. S. 413; Cohn v. Barnes, 5 Fed. Rep. 326, 331; Rio Verde Canal Co., 27 Land Dec. 421.

Mr. Maxwell Evarts for appellee:

At the time of the Pacific Railroad Act of July 1, 1862, the Delaware Indians were the wards of the Nation and had only a right of occupancy to the lands in the Delaware Reservation, and such lands were at the time public lands of the United States within the meaning of the second and ninth sections of said act of 1862.

Moreover, the policy of the General Government has always been that the United States, and the United States alone, should have dealings with the Indians-its wards. Neither the railroads nor individuals were permitted to extinguish, by purchase or in any other way, any right of occupancy which the Indians might have in the lands of the United States. For this reason, therefore, such lands must be deemed to be public lands, so far as the people of the United States are concerned, with the right in the Government alone to extinguish the Indian title whenever such lands were necessary for purposes other than the occupancy thereof by the Indians. Johnson v. M'Intosh, 8 Wheat. 543, 585; Cherokee Nation v. Georgia, 5 Pet. 1, 17; Jones v. Meehan, 175 U. S. 1, 8.

The expression "Indian title" is perhaps misleading, and was not intended to convey the idea that the Indians had title to their lands in the usual meaning of the term, but only a right to live on them, subject to whatever disposition the United States might see fit to make of them. Veale v. Maynes, 23 Kansas, 1, 23; Cherokee Nation v. Georgia, 5 Pet. 1.

To understand the peculiar relations of the United States and of the Indians to the wild lands of the country, the treaties with the Delawares must be considered. See

225 U. S.

Argument for Appeliee.

treaties of January 21, 1785, 7 Stat. 16, 17; of January 9, 1789, 7 Stat. 28, 29; of 1795, 7 Stat. 49; of September 29, 1817, 7 Stat. 160; of September 17, 1818, 7 Stat. 178; of October 3, 1818, 7 Stat. 188; of September 24, 1829, 7 Stat. 327; May 6, 1854, 10 Stat. 1048; May 30, 1860, 12 Stat. 1129.

The treaties in Veale v. Maynes, (23 Kansas) with the Pottawatomie Indians were substantially the same as the treaties with the Delaware Indians, and the question then before Mr. Justice Brewer was precisely the question which is now presented to this court.

The Pottawatomie Treaty of 1867, 15 Stat. 531, is practically similar to the Delaware Treaty of 1866, 14 Stat. 793.

Mr. Justice Brewer held that the allotment of the land to the Pottawatomie Indians under the Treaty of 1861 made no change in the relation of the Indians of that Tribe to the land in controversy, except that the land instead of being held in tribal occupancy was to be held in personal or individual occupancy, and that no enlargement of the right of the Indians to occupy the land was to be found until the right to a patent in fee simple was given to them under the treaty of 1867.

The argument of Mr. Justice Brewer in the Veale Case is precisely the argument of appellees, that the Delaware Indians had no other, further or greater right to their lands by reason of the Treaty of 1860 than they had before.

The treaties with the Delaware Tribe show that up to the time of the Pacific Railroad Act of 1862 the Delawares had no claim whatever to the land in question except a right of occupancy at the will of the United States. See Ninth Article, Treaty of July 4, 1866, 14 Stat. 793, 796.

The question, however, of the right of the Leavenworth Company and its successors to the right of way across the lands of the Delawares is no longer open for determination

under the language of the treaties, but has long since become an established rule of property in the State of Kansas, under the decisions of its highest court. Grinter v. Kan. Pac. Ry. Co., 23 Kansas, 642; State v. Horn, 34 Kansas, 556; S. C., 35 Kansas, 717; Union Pacific Ry. Co. v. Kindred, 43 Kansas, 134, 135.

The Indians to whom the allotments were made under the treaty of 1860, 12 Stat. 1129, have already been paid for the right of way granted to the Leavenworth Company and they and their successors in title have no claim of any kind to the lands in question. See Art. 3 of Delaware Treaty of 1860; act of July 1, 1862, supra; act of July 13, 1892, 27 Stat. 120, 126; United States v. Un. Pac. Ry. Co., 84 Fed. Rep. 1022; United States v. Un. Pac. Ry. Co., 168 U. S. 505.

No right of way by adverse possession has been acquired by the appellants or any of them to any portion of the right of way granted to the Leavenworth Company under the act of July 1, 1862.

Congress alone was the judge of the width of the right of way required by the grantee corporation. Nor. Pac. R. R. Co. v. Smith, 171 U. S. 260, 275; Nor. Pac. Ry. Co. v. Townsend, 190 U. S. 267, 272.

Equity has jurisdiction to protect a railroad company in the use and enjoyment of its right of way. Louis. & Nash. R. Co. v. Smith, 128 Fed. Rep. 1; Cairo, V. & C. Ry. Co. v. Brevoort, 62 Fed. Rep. 129; Pennsylvania R. R. Co. v. Freeport Borough, 138 Pa. St. 91.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

The ultimate question to be decided on this appeal is, whether the appellee, the Union Pacific Railroad Company, has a right of way 400 feet in width across certain lands in the State of Kansas, formerly within the Delaware

Diminished Indian Reservation. The facts out of which the question arises are these:

By the treaty of 1829, 7 Stat. 327, with the Delaware Indians it was provided that certain lands in the fork of the Kansas and Missouri rivers should be "conveyed and forever secured" to those Indians "as their permanent residence." By the treaty of May 6, 1854, 10 Stat. 1048, parts of the reservation so established were relinquished and the remainder retained for a "permanent home." Article 11 of this treaty declared that at the request of the Delawares the diminished reservation should be surveyed and each person or family assigned such portion as the principal men of the tribe should designate, the assignments to be uniform; and Art. 12 provided that railroad companies, when their lines of railroad necessarily passed through the diminished reservation, should have a right of way on payment of a just compensation. The treaty of May 30, 1860, 12 Stat. 1129, after reciting such a request as was contemplated by the preceding treaty, provided that 80 acres of the diminished reservation should be assigned and set apart for the exclusive use and benefit of each Delaware and his heirs; that the tracts assigned should not be alienable in fee, leased or otherwise disposed of, except to the United States or to other members of the tribe, and should be exempt from levy, taxation, sale or forfeiture until otherwise provided by Congress; and that if any Delaware should abandon the tract assigned to him the Secretary of the Interior should take such action in respect of its disposition as in his judgment might seem proper. Article 3 of this treaty gave to the Leavenworth, Pawnee & Western Railroad Company, a Kansas corporation, a preferred right to purchase the unassigned lands in the reservation, and declared: "It is also agreed that the said railroad company shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compen