retary of the Interior. September 28, 1891, on the trial of the cause, is reported in 66
the Secretary of the Interior reversed the Fed. Rep. 450, and that of the circuit court
ruling of the Commissioner of the General of appeals in 44 U. S. App. 257.
Land Omice, and awarded the land in contro-
versy to the railroad company.

Messrs. C. W. Bunn and James B. Kerr “December 13, 1892, letters patent of the for plaintiff in error. United States, regular in form, were issued, Messrs. W. H. Pritchard, A. W. Bal. conveying the land in controversy to the lard, and H. F'. Norris for defendant in erplaintiff.”

“XIX. Flett's declaratory statement was Jr. Charles W. Russell, Assistant Atnot formally canceled upon the records until torney, Department of Justice, filed a brief December 23, 1891.

for the United States by leave of the court. "XX. The defendant is in possession of the land and withholds such possession from *Mr. Justice Peckham, after stating the[626] the plaintiff.”

facts, delivered the opinion of the court: It also appeared that the railroad com

The grant of lands to aid the construction pany on May 10, 1879, transmitted to the of- of that portion of the main line of the rail. fice of the Secretary of the Interior a map road of the plaintiff in error, between Portshowing its relocated line of general route, land and Puget sound. dates from the joint which map was on June 11, 1879, sent to the resolution of May 31, 1870, and prior to that Commissioner of the General Land Office by time there was no land grant in aid of the the Secretary for filing, with instructions to construction of that portion of the road. withdraw the lands coterminous therewith United States v. Northern Pacific Railroad from sale, pre-emption, or entry for the ben. Company, 152 U. S. 284, 292 (38: 443, 447]. efit of the railroad company, and the map At the time of the adoption of the resolu. was duly filed on that day. The land in tion of 1870 there had been filed, April 9, controversy is within the line as relocated. 1869, in the local land office the statement of

The conclusions of law of the circuit court John Flett, declaring his intention to pur. were in favor of the railroad company, and chase the lands in dispute under the laws of the court held that prior to June 11, 1879, the United States authorizing the pre-empwhen the map of general route as relocated tion of unoffered lands, and that entry being was filed, and after the abandonment of the unforfeited and uncanceled, operated to exland by John Flett, the same was public land cept the lands from that grant. We may of the United States, not reserved, sold, therefore confine our attention to the grant granted, or otherwise appropriated, and free under the act of July, 1864, and the subsefrom pre-emption or other claims or rights; quent proceedings which relate to that grant.

snd that from that date (June 11, 1879) the At the time of the passage of that act the (625?land was reserved from sale.* pre-emption, or United States owned the land in question as

entry, except by the railroad company, by vir- public land, and as to that land it had, as tue of fixing the line of general route of the specified in the third section thereof, "full branch line coterminous therewith; that this title, not reserved, sold, granted, or otherreservation became effective from and after wise appropriated, and free from pre-empthe receipt of the order of the Commissioner tion, or other claims or rights,” and no por. at the United States district land office on tion of this land had at that time been July 19, 1879.

"granted, sold, reserved, occupied by homeJudgment in favor of the plaintiff for the stead settlers, or pre-empted, or otherwise dis. recovery of the possession of the land was posed of.” On the 26th of March, 1884, the duly entered. Upon appeal by the defendant plaintiff had filed its map of definite loca. to the circuit court of appeals for the ninth tion in the office of the Commissioner of the circuit, that court reversed the judgment General Land Office, which map embraced and remanded the cause to the circuit court the land in controversy. for further proceedings not inconsistent with The filing of such a map of definite locathe views expressed in the opinion of the tion of a railroad determines the right of the court of appeals. Judgment in accordance railroad company to the land under the land with the opinion of 'that court was subse-grant acts of Congress. Kansas Pacific Rail. quently entered by the circuit court, dismiss- way Company v. Dunmeyer, 113 U. S. 629 ing the plaintiff's complaint, and awarding [28: 1122]; šioux City & I. F. Town Lot & costs to the defendant. This was under ob- | Land Company v. Griffey, 143 U. S. 32 (36: jection of plaintiff, which claimed the right 64), a grant similar in its nature to the one to a new trial, and exception was taken under consideration. thereto.

If there had been a pre-emption claim at It appearing that the plaintiff, the North the time of the passage of the act of 1864, ern Pacific Railway Company, had subse the land would not have passed under that quently to the hearing acquired the rights of grant. Bardon v. Northern Pacific Railroad the original plaintiff to the property de Co. 145 U. S. 535 [36: 806]. scribed in the complaint, it was substituted *It is contended that at the time (March (627) as plaintiff in this action. A writ of error 26, 1884) when the map of definite location was then taken to the United States circuit was filed, the declaratory statement of Flett, court of appeals for the ninth circuit, where filed in the local land office in 1869, remained the judgment of the circuit court was af- there as a record, and was an assertion of a prefirined. The plaintiff by writ of error emption claim, and the defendant maintains brought the case here for review.

that under the case of Whitney v. Taylor, 158 The opinion of the circuit judge, given up-'U. S. 85 [39: 906), the land described in that

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declaratory statement was excepted from the was so amended as to exclude that land. It grant to the railroad company, and that the was not excluded. The fact that no claim company therefore never acquired title to existed at the time the act of 1864 was passed the land by filing its map of definite location remained notwithstanding the adoption of under the grant contained in the act of 1864. the resolution of 1870, and the question there

The learned judge, in delivering the opin- fore still recurs whether in 1884, when the ion of the circuit court of appeals in the case map of definite location was filed, there was at bar, quoted the following language from any claim upon this land which excepted it the opinion of this court in Whitney v. Tay from the grant by virtue of the act of 1864. lor, supra, p. 92 (39: 908].

It is well to examine the statutes relating "That when on the records of the local land to the right of pre-emption under which the office there is an existing claim on the part declaratory statement of Flett was filed in of an individual under the homestead or pre-order to determine the rights, if any, which emption law, which has been recognized by he had at the time when the company's map the officers of the government and has not of definite location was filed. been canceled or set aside, the tract in respect That statement, filed by Flett in 1869, was to which that claim is existing is excepted to the effect that he intended to purchase the from the operation of a railroad land grant land which he described, "under the laws of containing the ordinary excepting clauses, the United States, authorizing the pre-empand this, notwithstanding such claim may not ion of unoffered lands." By the term “unbe enforceable by the claimant, and is subject offered lands” is meant those public lands of to cancelation by the government at its own the United States which have not been *of-[629) suggestion or upon the application of other fered at public sale. By section 3, chapter parties. It was not the intention of Con- 51, of the act of Congress making further gress to open a controversy between the provision for the sale of public lands, apclaimant and the railroad company as to the proved April 24, 1820 (3 Stat. at L. 566), validity of the former's claim; it was enough the price for which public lands should be that the claim existed, and the question of its offered for sale after the first day of July, validity was a matter to be settled between 1820, was fixed at $1.25 an acre, and it was the government and the claimant, in respect provided that at every public sale the highest to which the railroad company was not per- bidder, who should make payment as premitted to be heard."

scribed, should be the purchaser, but no land The circuit judge then stated that the con- was permitted to be sold at either public or trolling fact in this case was "that at the private sale for a less price than $1.25 an time of the definite location of the plaintiff's acre; and it was further provided in that road, opposite which the land in controversy section that "all the public lands which shall is situated, there was on the record of the have been offered at public sale before the local land office Flett's declaratory statement first day of July next, and which shall then which had not been altered, amended, can remain unsold, as well as the lands that shall celed, or set aside; and that fact operated to thereafter be offered at public sale, according except the land in respect to which the claim to law, and remain unsold at the close of existed from the grant to the railroad com such public sales, shall be subject to be sold pany.”

at private sale, by entry at the land office, at (628) *The single question in this case is, there one dollar and twenty-five cents an acre, to

fore, whether the proceedings in the case of be paid at the time of making such entry as
Flett were of such a nature as to prevent aforesaid ; with the exception," etc.
the grant to the company under the act of After the passage of this act the public
1864 from taking effect at the time of the lands came to be spoken of as "unoffered
Siling of its map of definite location, March lands," or those which had not been exposed
26, 1884.

to public sale, and "offered lands," or those
The defendant contends that the land in which had been so exposed and remained un-
controversy was excluded by operation of sold, and under the statute regulating the
law from the grant of 1864 by the resolu- sales of public lands it would seem that un-
tion of May 31, 1870. Herein he assumes offered land could not be purchased at any
that the effect of that resolution was to blot price or in any manner in advance of the
out the grant under the act of 1864. The public sale, while offered lanii was at all
resolution did not have that effect. It was times subject to purchase by the first appli-
not an amendment to the third section of the cant at a fixed price. Johnson v. Tousley,
act of 1864 which granted the lands. If at 13 Wall. 72, 88 (20: 485, 488).
that time (1870) certain claims had been By the act approved September 4, 1841,
filed against this land by reason of which it entitled "An Act to Appropriate the Pro-
was excepted from the grant of 1870, such ceeds of the Sales of the Public Lands, and
fact has no bearing upon the provisions of to Grant Pre-Emption Rights” (5 Stat. at
the act of 1864, at which time there was no L. 453, chap. 16), there was granted, by the
claim upon this land, and if none existed tenth section thereof, to every person being
when the map of definite location was filed the head of a family, etc., "who since the
in 1884, the grant included the land. The first day of Joine, A. D. eighteen hundred and
assertion that when the grant of 1864 was forty, has made or who shall liereafter make
made there was a pre-emption claim in ex- a settlement in person on the public lands
istence is not borne out in law or fact by as. to which the Indian title had been at the
serting the existence of such a claim when time of such settlement extinguished, and
the grant of 1870 was made, and that by which has been, or shall have been, surveyed
speration of that resolution the grant of 1864 ' prior thereto, and who shall inhabit and im-

prove the same, and who has or shall erect a cal office, as stated in section 15 of the act dwelling thereon, shall be, and is hereby, au- above quoted.

thorized to enter with the register of the By the fifth section of the act approved (630]land office *for the district in which such land March 3, 1843 (5 Stat. at L. 619, chap. 86),

may lie, by legal subdivisions, any number it was provided that settlers under the pre of acres not exceeding one hundred and six- emption act of 1841, upon unoffered land, ty, or a quarter section of land, to include the should "make known their claims, in writresidence of such claimant, upon paying to ing, to the register of the proper land office, the United States the minimum price of such within three months from the date of this land, subject, however, to the following lim- act when the settlement has already been itations and exceptions," etc.

made, and within three months from the time By this section it will be seen that the of the settlement when such settlement shall right of pre-emption was extended equally hereafter be made, giving the designation of to unoffered and offered lands.

the tract and the time of settlement; other. By section 14 it was provided, however, wise his claim to be forfeited and the tract that the selection of unoffered lands should awarded to the next settler, in the order not delay the sale of such lands beyond the of time, on the same tract of land, who shall time which might be appointed by the proc. have given such notice and otherwise comlamation of the President, nor should the plied with the conditions of the law." provisions of the act be available to any per: Taking, these two acts of 1841 and 1843 son who should fail to make the proof and and reading them together, it is seen that payment and file the affidavits required, un. there was a difference between unoffered and der section 13 of the same act, before the day offered lands by reason of the fact that on appointed for the commencement of the unoffered lands the right or privilege to sesales.

cure land by a pre-emption filing continued In regard to the so-called offered lands, up to the commencement of the public sale it was provided by section 13 of the act as whenever that might be, and if that right follows:

or privilege had not been exercised and the “Sec. 15. And be it further enacted, That land was offered at public sale and not sold, whenever any person has settled or shall set. it then became subject to private entry by tle and improve a tract of land. subject at the the first applicant, while on otfered lands the time of settlement to private entry, and right or privilege to secure them hy a pre shall intend to purchase the same under the emption #ling continued for twelve months provisions of this act, such person shall in after the date of the settlement, and if the the first case, within three months aft- pre-emptor failed to file the declaratory stateer the passage of the same, and within ment or make the proper affidavit within the the last thirty days next after the date twelve months, "the tract of land so settled of such settlement, file with the register and improved shall be subject to the entry of the proper district a written state of any other purchaser.” ment, describing the land settled upon, and

*Congress by an act approved May 20, 1862 632) declaring the intention of such person to (12 Stat. at L. 392, chap. 75), provided for claim the same under the provisions of this the sale of public lands for homesteads, and act; and shall, where such settlement is al. since that time the practice of disposing of ready made, within twelve months after the the public lands at public sale has gradualpassage of this act, and where it shall here ly been abandoned, although the authority after be made, within the same period after lic sales resulted in giving to those who had

remained. The abandonment of these pubthe date of such settlement, make the proof, made pre-emption filings upon unoffered affidavit, and payment herein required; and land an uncertain time within which to if he or she shall fail to file such written prove or complete their proof and payment, statement as aforesaid, or shall fail to make because their time lasted until the day of the such affidavit, proof and payment, within public sale proclaimed by the President. As the twelve months aforesaid, the tract of these public sales were abandoned, the reland so settled and improved shall be sub- sult was that these claimants were not under ject to the entry of any other purchaser." any obligation to make proof and payment

The result of the passage of this act was at all.

to grant the right to pre-empt 160 acres of By the second section of the act approved [631 Jeither offered or unoffered land, and *that as July 14, 1870 (16 Stat. at L. 279, chap. 272),

to the unoffered lands the filing of a pre- it was provided that “all claimants of pre-
emption declaratory statement was not re-emption rights shall hereafter, when no
quired, and the right of the pre-emptor to shorter period of time is now prescribed by
make due proof and payment remained until law, make the proper proof and payment for
the time fixed by the proclamation of the the lands claimed, within eighteen months
President for the public sale of lands, at after the date prescribed for filing their
which time (if the proper proof and pay declaratory notices shall have expired:
ment had not been made) the lands might Provided, That where said date shall have
be offered and sold to the higließt bidder, and elapsed before the passage of this act, said
if not sold they would become subject to pri- pre-emptors shall have one year after the
vate entry by the first applicant at the min. passage hereof in which to make such proof
imum price. As to the offered lands, the and payment.”
right of the pre-emptor was dependent upon That act was amended by resolution No.
his filing a declaratory statement in the lo '52, approved March 3, 1871 (16 Stat. at L.

601), by which twelve months in addition to utes, "there was no period within which a pre-[684)
that provided in the act were given to claim- emptor was compelled to prove up and pay
ants to make proof and payment. Adding for his claim, except that it should be done
the twelve months given by this resolution before the land was offered at public sale
to the eighteen months given by the act of by the proclamation of the President. The
1870 all claimants of pre-emption rights tract in dispute had not been so offered at
were given thirty months to make the proper the date of the definite location of the road,
proof and payment for the lands claimed. and it was held that J.'s time to make proof

These various provisions are found in the and payment had not expired at the time of
United States Revised Statutes froin section the filing of the map of definite location, and
2257 to and including section 2267, the lat- that consequently his was an existing claim
ter section giving the thirty months as of record at that date.

The citation from the opinion of the court We thus find that since 1871 all claimants in Whitney v. Taylor shows that the state of pre-emption rights lost those rights by ment was made with reference to that im. operation of law, unless within thirty portant and material fact; that it was an months after the date prescribed for filing existing claim on the part of the claimant at their declaratory notices they made proper the time of the filing of the map of definite

proof and payment for the lands claimed. location. Whether that claim were an en[633]The filing of their declaratory statement *and forceable one or whether there were facts

the record made in pursuance of that filing which when brought to the attention of the became without legal value if within the government might induce it to cancel it, or time prescribed by the statute proper proof the fact that the government might at its and payment were not made. Whether such own suggestion cancel the claim, were held proof and payment were made would be mat- not to affect the question. The material fact ter of record, and if they were not so made that it was an existing claim was the fact the original claim was canceled by operation upon which the case was decided. of law and required no cancelation on the In this case, such fact does not exist. records of the land office to carry the forfeit. There was no existing claim at the time of ure into effect. The law forfeited the right the filing of the map of definite location by and canceled the entry just as effectually as the plaintiff herein. It had expired and be if the fact were evidenced by an entry upon come wholly invalid by operation of law. the record. The mere entry would not cause The thirty months had expired years before the forfeiture or cancelation. It is the pro- the filing of this map. vision of law which makes the forfeiture, and In Northern Pacific Railroad Company the entries on the record are a mere acknowl. v. Colburn, 164 U. S. 383, 388 [41: 479, 480), edgment of the law, and have in and of it was stated in the course of the opinion themselves, if not authorized by the law, no that there were "other questions in this case, effect. The law does not provide for such a such as the significance of an expired filing," cancelation before it is to take effect. The which were not considered by the supreme expiration of time is a most effective can- court of the state or noticed by counsel, and celation.

which were left for cousideration thereafter. In such a case as this, where the forfeit. This shows that the case of Whitney v. Tay. ure occurs by the expiration of the thirty lor was not regarded by the court, or by the months within which to make proof and pay- justice who wrote the opinion therein, as ment, the record shows that the claim hås having a controlling bearing upon the ques. expired; that it no longer exists for any pur- tion as to the effect of an expired filing unpose, and therefore iť cannot be necessary der circumstances such as are developed in in order that the law shall have its full this case. operation that an acknowledgment of the

If claims which were of such a nature as fact should be made by an officer in the land to be described as "existing” were made in office. The law is not thus subject to the regard to any of the lands which *otherwise[635] act or the omission to act of that officer. might be included in the grant to the railroad

The case of Whitney v. Taylor, 158 U. S. company, we reiterate what was said in the 85 [39: 906), cited in the opinion of the cir. Dunmeyer Case (supra)--that it is not concuit court of appeals as decisive of the case ceivable that Congress intended to place those at bar, we think has not the effect given to parties, the railroad company and the vari. it by the learned court below. The land in ous claimants to the land, in the attitude of that case was within the granted limits of contestants, with the right in each to require the grant to the Central Pacific Railroad proof from the other of complete performance Company by the act of July 1, 1862. 12 of its obligations. On the contrary, we would Stat. at L. 489, chap. 120. That company say that if there were at the time of the fil. filed its map of definite location March 26, ing of the map of definite location an actual 1864. It was held that the tract being sub- existing claim, even though it might turn ject to the pre-emption claim of one J., at out to be wholly unfounded, the land thus the time when the grant to the railroad com- claimed would not pass by the grant. This pany took effect, was excepted from the oper. has been decided as lately as Northern Pacific ation of that grant. It was subject to the Railrond Company v. Sanders, 166 U. S. 620 claim of J. because in May, 1857, he had filed [41: 1139). In the case under consideration his statement, paid the fees required by law, there was, at the time of the filing of the map and the filing was duly entered in the prop- of definite location, no claim within the meaner government record; and at that time, as ling of the statute. has been seen by the above review of the stat- The right of Flett, obtained by the filing

of his statement, was the right of pre-emp. | what is termed an “expired filing” of the na-
tion only. In other words, the right of pur ture of the one in suit has not been uniform.
chase before any other person, and by the law It was in substance held in some cases that
of Congress that right ceased at the expira- such expired filing amounted to a claim with.
tion of thirty months from the filing of that in the meaning of the statute, and that the[637)
statement. Thereafter there was no claim, land did not pass under the grant to the
for it had ceased and determined, and with railroad company. Emerson v. Central Pa-
reference to the right it was of no more va- cific Railroad Company, 3 Land Dec. 117;
lidity after the expiration of that time than same case on motion for a rehearing, 3 Land
if the statement had never been filed. After Dec. 271; Schetka v. Northern Pacific Rail-
the filing of a statement and while the time road Company, 5 Land Dec. 473; Allen v.
is running within which to make proof, there Northern Pacific Railroad Company, 6 Land
is an inchoate right on the part of the pre- Dec. 520; Fish v. Northern Pacific Railroad
emptor which the government recognizes, as Company, 21 Land Dec. 165; same case on
in Frisbie v. Whitney, 9 Wall. 187 (19: 668]. mction for a rehearing, 23 Land Dec. 15. On

It was held in Johnson v. Towsley, 13 Wall. the other hand, we have been referred to the 72, 90 [20: 485, 489), that in case the pre-cases of Northern Pacific Railroad Company emptor failed to file his declaration of in- v. Stovenour, 10 Land Dec. 645; Meister v. St. tention within three months from the time of Paul etc. Railroad Company, 14 Land Dec. settlement, as provided for in the fifth section 624; Union Pacific Railroad Company v. of the act of 1843 (5 Stat. at L. 620, chap. Hartuich, 26 Land Dec. 680; Wighé y Cen. 86), he nevertheless would have the right tral Pacific Railroad Company, 27 Land Dec. after the expiration of the three months, 182; Central Pacific Railroad Company v. being in possession, to then make and file his Hunsaker, 27 Land Dec. 297. The last two declaration, provided no other party had cases cited touch the question very remotely, made a settlement or had given notice of his it at all. intention to make one and no one would be in

The latest decision of the land office to jured by the delay. But the case is far from holding that after the declaration has been which our attention has been called is that of

filed and the time in which to prove up and Union Pacific Railroad Companyv. Fisher, de [636] make payment*upon his claim has wholly ex- cided February 1, 1899. 28 Land Dec. 75. In

pired, that the claim nevertheless still ex- that case the Secretary refers to the cases ists in sufficient force to prevent the transfer which have been cited above, holding that an of title to the company under the act of Con expired filing excepted the land from a grant gress, simply because the officer of the land to the railroad company, and he gives his reaoffice has failed to perform a mere ministerial sons for the decisions of the department in duty by canceling of record a claim which has those cases, which he thinks render them not really ceased to exist by operation of law. altogether in conflict with the other decisions A claim is not an existing one where by the of the department. record it appears that the right to make proof Although these decisions are somewhat inand payment has expired under the terms of harmonious, it would seem that the practice the statute.

of the department not to enter as canceled an It appears that it has not been the prac- expired filing has been uniform, and the tice of the Interior Department to enter any record has been left to speak for itself.. formal cancelation of an expired pre-emption For the reasons which we have already filing upon the books of the office; its practice given, we think it was unnecessary to enter has been to take no action concerning them. the cancelation on the record of the office in They hare simply been treated as abandoned order to permit the law of Congress to have claims. State of Alabama, 3 Land Dec. 315, its legal effect. That effect should not be 317.

dependent upon the action or nonaction of Reference is made in the briefs to the cir- any officer of the land department. When cular of Commissioner Drummond, dated Sep no proof and no payment have been made tember 8, 1873, in which he says:

within the time provided for by the law, the “By the operation of law limiting the period record will show that fact, and that the right within which proof and payment must be of the claimant has expired and the claim made in pre-emption cases, such claims are itself has ceased to exist. constantly expiring, the settler not appear. A case of this kind, which simply necessi. ing within such time to consummate his en- tates a reference * to the record to ascertain(638) try. These expired filings are classed with whether the filing had expired and with it those actually abandoned or relinquished.” the rights of the claimant, differs from the

And again in the circular of November 8, case where a filing may have become subject 1879, the Commissioner said:

to cancelation; but the record does not show "Where application is made by a railroad it, and the right to cancel depends upon evi. company to select lands on which pre-emp. dence to be found dehors the record. In such tion filings have heretofore been made and case, while the facts might invalidate the canceled, or where the same have expired by claim, yet as they are not of record and relimitation of law, no other claim or entry ap- quire to be ascertained, the claim itself, pearing of record, you will admit the selec- though possibly not enforceable, is still an tions, in accordance with the rules governing existing claim within the meaning of the lait, in the premises herein communicated. No and it would remain such until cancelation proofs by the companies concerning such had taken place or some other act done le claims will hereafter be required.”

gally terminating the existence of the claim. The effect given by the land department to l'pon the facts as found in this case, it

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