FRANCOEUR fI, NEWHOUSE.
(Circuit.Oourt, N.D. OaU!orn4a. December 9, 1889.)
L',PuBLIO WNDS-GRANT .TOPU:mB.AL PAOIFIO RAIUlO4DCOJl(pANy-GRANT IN 1'R&f!l!;!'iTI. ' , . . '
"The grant of lands to the Central Pacifio Railroad Company to aid in the oon· '8truction of its road, under the act of of. July 1, 1862, and the amendatorx act,of.I8M, is a graJ;lHn prt;88enti, ,wlnch can only be defeated by the failure (to' perform t!J.e oonditionnubsequent; a,nd'appropriate jndicial proceedings to de- ' r ,ciare a fOrfeIture. '; ,, , "
BEPoRlIl PA'rIllNT !s$.tms.
The title Which ves.tB the congressional and, the Pllrformance of the , ,prleaCribed conditions, is' 'alegaJ. title, upon which an actionot ejectment may be :Il!Il8intained befpre the patent i1$8U8S. .,,: .' . (.' '
Oll\ PA'i'JIIN'l'. , "
.i" , '.' " '., '. , · ,
,: " Tb,e patent issued.under'1;he grant is only a convenient instrument , 'of eVidence that the conditions ha've'beeii'perforlned and the title vested.
:., ',. 'nl.,f&l,lure to expense, of: surveying, under section 21 of the act of 1864, ,oni;V prevep,ts'the issue of the 'It.does not prevent the, title attaching un,del" the congressional grant.· ,.,,' " ' ': " '
. " .'" '
Go "" , ,
. An 'exception iliserted in apatent,which is not authorized by' the statute to be
· ' : i"
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'7. S,.W:Il-4-P!.ln:RT ·f(lIiti LAliIDs: AL11111:.UlY JGM'NTIllD"-COLLATlIllUL ATTAOK,
> : to ether parties, , '
actsiwithOllt jhrlst\iotion, there;being·nothing in the United States to grant, and the
void,andmay be .\follaterally irnpel.\Ched.
.., ,:w81'<lJ51i4l, ente,'l'UvOn,th.e.land and.proepeetfof'gold. . N01'ight. have'noright aftertd otherpal'tles , beinit.iated bya
" ' ,
. : ';
13, town17 ,M .}W': E. Mt. ,m,eridian., :.T1;le plaintitl' claims It is alleged in the complaint that the land is part of an odd-numbered section lying within the 10-mile limit of the grant made to thEl Central Pacific Railroad Company, to aid in the construction of a railroad, by the act of congress passed July 1, 1862, (12 St. 489;) that the said corporation filed its assent to said act l and a'map designating the general route ()f said railroad, ,with the secretary of the interior within two months after the passage of the act; that on August 2, 1862, the secretary of the interior caused all the lands within 15 miles of said route, including the land in question, to be withdrawn from pre-emption, private entry, and sale; that the line of said road was definitely fixed, said road fully constructed and accepted py the president, from the western terminus, to
of lot 52; Qf
a point more than 25 miles east of the tdwns1!lip;irt which said land, is situated, prior to September 29, 1866; and the whole of said road was definitely located, constructed., by the and in operation to the east line of state prior to July 2, ,in the year i866 the secretary of the interior caused all the lands 17 north to be surveyed, and on March 2, 1867, surveyor general made return of the official plat of said survey, and filed the same in the ,generalland-qffice at W on .rune 2, 1867, tlQd the same: was soon after regularly filed in ,the local, land,.office, at" ;Marysville" that 1:>eing the district in which said, land was situated; "that, ,by said survey the description of all lands township was ,ascertained, and' charactel1 thereof determined. to be agriculturallancis, and mineral or, swamp in character, nor covered by any governmental rellervation; the pll,ltsfiIed as aforesaid, so reported and showed the said lands; and that said determination, report, and showing remain,ed. and still remain, Qf full force and effect;" that said section 13, township 17, is within the limits of five miles of /'laid railroad I along.the line thereof, aod, .with other lands, was granted ,io said Central Pacific Railroad' Company of California by said act of congress; that at the date o(the pasfflige of sajd tl.Qt .of cOngress; at tbe date when said line of said railroad definitEllyfixed,an\l at the date when the sai4..railrOlld was actually Qs>n7 structed through and beyond said ,township, all of said section 13 was returned as agricultural land, and no part of the same was known minerallaQd, or ret\:irned or deoomillllted as .minerallahd, nor had of the Saillie been sold, reseryeQ,,qr :othe,fwise <;lisposed of by the States, nor had any ,pre-emption or ,homestea? claim attached tA the same; nor was any part of said land within any exception froID said grant; nor did thegrahting thereof to said cOInpany defeat or impair any pre-emption, homestead, or 'swamp, ,or other lawful claim to the same, or to any part thereof. ' . That during thayedr 1883 a vein or lode of quartz-bearing gold, in paying quantities' was discovered within lot 53 of section 13, tbe:prem. ises in question; that on April' 20, 1885, the Eagle Gold Mining Com" panyfiled in the proper oUice its application for a. patent to said lot 53, from the United States, under. the mining laws passed by congress; .that onl\1ay5, 1887, pursuant to said application, the land department is.sued to said Eap;le Gold Mining Company a patent to said lot 53, the Eagle Bird Quartz Mine. 'l'bat>said application was made and patent issued without authority of law,and said patent is void, and, that aaid defendant is in possession, claiming underJsaid patent through mesne conveytinces fromsnid patentee. I . That tbe Central Pacific RailroadCompany has tendered to tbe treasurytheamount of money required by the, statute, and demanded a ,patent, but' it bas been refused, although all acts required by the law to entitle it tOa patenthavebeeu fully performed, and the title to said premises has vested in it. A. L.Han andGeo. H. M-ancoeur; for plaintiff. ' <t EiBnerand Jame.M. :SeweU, for defendants·.
Before SAwYER, Circuit J udget and
, ,SAW'YER, J., (after Btating thefact8a8 above.) It has been so often decided that the grant to the railroad company under this, and similar grapt in prmsenti, passingll-nd vesting a present title, only to be defeatea by a failure. to perform conditions subsequent, and suitproceedings on the parfof the United States, to forfeit them, that it only necessary to without further discussing theQtt6stion. RuilraadOo. v. Railroad 00., 97 U. S.496; Schulenberg v. HariJ,man,21 Wall. 44; Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. 9t. Rep. 336. "i There be and is hereby .granted' are' words of absolute donation,,!and import a grant inprl£8enti. This court has held that they have' no othel; meaning." Railroad Co. v. U. S., 92 U. S. 741; lf1:igJitV. Rpseberii;, 121 U. S. 500, 7 Sup. Ct. Rep. 985; Railroad Co. cited,' 6 Sawy.198j Mr. Justice FIELDwent over the 32, Fed. Rep. 899, inwhich he belfl that not metely the title, but the legal title to the land Vksse,?)by,the legislative grant 'in pritsenti, in such sense that an action of ;could: be maintained upOn 'it'-that the patent provided for, was rfy,cessllty but was only a convenient instrument of evia passage from the opinjon of the supreme court, in LangV'.Jianes, 21 Wall. 521; as follows: , ' . .
; of oongres.s a pll,tent hasa double is aeonveyancebythe When the'llovernmenthas any interest to convey, bUt, where'it is Issued upon the confirmation of a claim of a previOUSly existing title,it ill documental')" e"idence, having tile dignity of a record, of the existenaeofthat title, or of such equities respecting the claim, as justify its rec()gnition.81nd confirmation. The is not the less efficacious as eVidenCeiQfpreviously existing righti!! becl\use it also embodies words of release or transfer from the government." 'Denny v. lJodson, 32 Fed. Rep. 904.
, The provision of section 21 of the act of 1864 requiring the railroad the expenses of surveys and conveyance', does not affect the question of the vesting ofthe title under the grant. It oilly applries td the issue Ofaiconvenient instrument of evidence. But ,inthiscase·the.titlehad already vested and passed beyond :the authority of congress, cbefore' the passage of the act of 1864, .wl!ieh could only the prior act so far as to etrect its future operation as a Ill, W. " A title, tberefore,veste'd, by the grant, and performance of the conditions,tipQhuwhich an action of ejectment can be maintained. , The is, did th(il land in question pass, by the grant of 1862 perfected in 1866-67 in which a gold mine was disoovered.in 1883, 21 years: after the. grant· attached by the. filing of a of thep;eneral of 'tha"railroad, and the withdrawal of thelal1ds in pursuance of the statute,1by secretary' of the. interior; and more. than ,17 y(lal'$ after the'Qompletion of the road" and its acceptance by the preElident, and more than 16 years after the final survey, and report of the lands, ·as agricultural, and not mihi:iral? to tbiagI'6nt,both the United States, and the gmntoo, must be presumed: to have ,contemplated a grant
ftA;NOOEUR t7. NEWHOUSE.
in view of 'the condition of the lands as they were known, or appeared to be, at the time the grant took effect. In the exception of "mineral lands" from the grant, congress must have meant not only lands mineral, in fact, but, lands known to be mineral, or, at most, such as were, ap,parently, mineral, and, generally, recognized as such. Congress could not have contemplated that the discovery of a paying mine, 15 or 20 years after the making of the grant, and the performance of all the conditions by the grantee, required to perfect the title, and render it irrevocable, should vitiate the grant. If so, then such a discovery 50, or 100 years after, would effect the same result. In granting the public lands, congress must be presumed to deal with them in view of the conditions as tbeyare known, or supposed to be, at the time. Exceptions must be presumed to refer to matters that are readily apparent upon inspection, Any others would be altogether too indefinite to be valid. The conditions constituting the exception ought, certainly, to be ascertainable at the time the grant takes effect, or they ought not to be operative; otherwise the greatest confusion and inconvenience, public and private, must, necessarily, result. The grant should point out what is granted, in such certain terms, that the grantee Inay be able to ascertain by inspection and know at the time the location is definitely fixed, and it becomes operative, what spe'Cific tracts of land are granted, and what are excepted from the grant. These lands soon after the grant, were conveyed, in trust, under authority of the law, as security for the bonds issued, out of the proceeds ofwhich, the road was constructed; and the proceeds of these sales are devoted by the trustees to the redemption of the bonds. Is this security to be impaired, or destroyed, by taking from the operation of the grant all lands in which at any future tinle gold or other valuable metals may be discovered? .If so, all of the lands may sooner or later revert to the United States, and these bondholders, and those who, in good faith have purchased the lands of the company without being aware of the mines secluded in their lower depths, will be largely injured. These words "mineral lands," used in the act, must be construed in a practical sense-as practical men would use them. in contracting about them-must be construed with reference to their present known, or at least, obviously apparent condition. I had occasion to express my views in a general way upon this subject in Cowell v. Lammers, 10 Sawy. 246, 21 Fed. Rep. 206. In that caseit is said, "by tbJ words' mineral lands' must be understood lands known to be such, or which there is a satisfactory reason to believe are such, at the time of the grant, or patent. " In that case, it was not necessary to go behind the date of the patent, which was issued to the company in accordance with, and in pursuance of the grant,and not to atrespasaer in vpp08'ition to the grant, as in this instance. Those who make or take subsequent must see that there is something to grant. It is not enough to know, that the lands contain minerals, at the date oj the issue ojthepatem, in order to grant them as mineral bmds. It must be known, alsQ, Jhatthere has no prior divestment of tjtle. I am satisfied that the
iands ought not, only;·'tbbe'Ininerat, fI:\ct, but, also, to n;lineral, or there should satisfactory reason to believe them to be such, at the' date W hen the takes effect; in order to fall within the tion mineral lands, in' !moh sense, as to defeat the grant. And this evidently, the viewdfthe supreme court, as there 'is no case, so far aslam aware, wherein, that court has 8ustained an exception, erallanqs,ll in these grants unless they were known to be mineral, at the time of ,the grant. ,This point is very'fully bon.sidered by the court in Ooal(Jo. v. 'U. S., 123 U. S. 326, 327, Sup. Ct. Rep. 131. Says the cpurt in that case, quoting frbril a prior decision:
"W'e,say, ',land known at the time, to be valuable for its minerals,' as there are of public lliond in which minerals of different kinds are found, but not,in,l3uch to justify expenditures in the effort to extract them., 'ilt 'ill not to such' lands, that the term' minetal,' in the sense of statute is applicable. We, alsoi say lands known at the time of their sale to be thua"altmble, in orae1' to avoid any possible conelusiO? against the tty of title8 ,Which mall' blJ\ UlUed for other "-inds of land in years afterwards rich deposits of mineral may be di.seovered. It is qUite possible that lands set#ed upon. 80S suitable, only, for agriCUltural pUrpOtl6S, entered by the settler, and patented by the government, under the pre-emption laws, IDay be fonnd years after the patent has been issued, to contain valuable minerals. Indeed this has, often, happened. We, therefore. use the term' known to be "aluable' at ,the ti-me ofsale' to pretmlt any doubt being C(J8t 'Upon title.9 to land,i aJ't.erwards founa to; be aijferent in their mineral character from what wa,lltipposed when the entry of them ,was made ana the patent issued." 123 U. S. 827, 8 Sup. Ct. Rep. 141. ' affirming similar views before expressed in Deffeback v. U. S. 404. 6 Sup. Ct. Rep. 95. In this case, the supreme theviewoftbe circuit court expressed in Cowell v. Lamthat an exception inserted in a patent, in express terms, by the secretary of the interior, not required or authorized by the statutes, is void. :Now this case, according to the allegations of the complaint, after the ,grant 'hnd been Diade, and all the conditions fully performed by the road acceptooby the president, and the title irrevocably "'estad' 'ih the grantee, and, before there was any authority at all to vey. as in. the case of (JoweU v. Lammers, the townshi p and the landsin question, were surveyed, as agricultural lands, and returned and represented to the land-officej and they were sO regarded until the discovery of gold-bearing quartz, many years afterward, in' '1883, when a. patent was refused the railroad company, aud issued to defendant's grantor. This discovery, in our judgment, was too 'late. ,There was at the 'date ,of the legislative grant, and for many years 'afterwards, nothing appearing in the nature of a valid exception to take the preinisesin contrdversy out ofthe operation of the grant. partmf3nt,'in lS,suirigthe 'patent to defendant's grantor, instead of to the railroad company, seems to have acted in view ofthe condition of things, as they appea.red, after the discovery of the quartz, in 1883, andnritasthet appeared, 'and were known',at the time of the
TM,s Was but
FB,ANCOEUR ". NEWHOUS;B.
of the congressional grant; the performance of the conditions of the grant by the grantee; and the subsequent survey made by the governin 1866-67, as agricultural lands. , It is further objected, ,that the patent thus issued to dp.fendant's grantor, , cannot be, collaterally, attacked, in an action of ejectment-that it can onlybeimpeached by a direct proceeding in equity to declare it void, or control whatever title passed by it for the benefit of the party equitably entitl,ed. This, it appears to us, would have been the better course, and .at first we were disposed to think it was the only course. But upon further consideration, and an examination of the authorities, we think the Case does not fall within that rule. In recognizing the rule insisted upon in a proper case, the supreme court, in Smelting Co. v. Kemp, 104 U. 8. 641, add:
hadjUl;isdiction to act and'execute it; that is to say. in a case where the lands be1ongedto the United States, and provision had been made by law fOl" ,their ,sale.' lftbey never were public property, or had been disposed of, had made nopro,vision for t,heir sale, or had reserved them, the department toould ha'Oe no jurisdiction to transfer them" and its attempted conveyance of would be inoperative and void, no, matter with wbat seeming regulal'lty the forms of law may have been observM. The action of -the department would in,that event btl like:that of any other special tribunal ,not Jlavingjurisdiction of-II, case which it W!,d assumed todecide. Matt,ersof this kind, disclosing a want of jurisdiction, may be 1)y a conrt ,of :law.ln, such cases the objection to the patent reaches beyond the actio'n of , the special tribunal, and goes to the eroistence of a aubject upon. tohiah it 'was ,competent to act." -
ent for lands, we assume that it was issued ina case wberethe department
"Of course, when we speak olthe conclusive presumptions attending a pat-
And in 'Wrightv. Roseberry, 121 U. 8.519, 7 Sup. Ct. Rep. 985, the -',supreme court quote, and approve the foregoing, and further quote and approve lIiuo,ther passage, as follows:
"A patent JXlay be collaterally impeached'in any action, and its 'as a cQn"ey:ance defeated, by shOWing that the department bad no' jnrisdiction to dispose of 'the lands; that is, that the ]a W 'did not provide for' saIli ng them, ;or they had been reservedftomsaIe; of' dediaaterl to special' purposes,or had been pre'Oibusly transferred to others, ,; In establishing any of thes!! pMticulars. the jUdgment of the department upon before not assailed. nor is tberegularity ,of its procee,dings called into question; Jmt its. 3uthqrity to act at all is deJlied, and shown never to have existed."
, . They ,<lite other authorities tosttstaiIi this view., Now those observaThe"point was I a:IsQ, ,directly decided in Doolan v. tions cover the ,Gzrr,125 U. S.618,8 Sup. Ct. Rep. 122S. These lands under the aIle, gations of complaint; "had preV'ioU'sly been of" by legislative grant, and the had no interest left to grant. There was no jurisdictio111eft to' dispose of them to' somebody else as there was nothing to 'dispose or;, And thecciurt " :, "
, I ' , , · ' . , ,
,,88, a, (l()ny.eyance
"A:. patent may becollatenally impeachedinanyaation" and
tion to diSpose of the lands.'" '" '" or that they had beenpre-viously trans. lerred to others. ".
That. is this case. Had the department issued a prior patent to the railroad company, and then one to the defendant's grantor. there can be no doubt that it would be the duty of the court in this case to determine which carried the title. If the first patent was valid, there would be nothing upon which the second could operate. So in this case, if the congressional grant was valid, and operative, there was nothing upon which the patent to the defendant's grantor could operate, and it is com· petent for the court in this case to ll:Scertain which grant took the land. Upon the views expressed, the demurrer must be overruled, and it is . eo ordered, upon the usual terms.
J., (concurring.) I fully concur in the decision just read,but I desire to add a word in contirmation of it, or rather in regard to a mat. ter cohnected therewith. that has often arisen before the court, and which is very liable to arise in the future. Inthe judgment just rendered it is decided that the grliM by congress, under discussion, was a grant in prm, senti, that upoilcornpliauce with the terms of the grant the title to the land vested in the railroad company. This matter has been so often before the court. and 80 often decided by this court, and the supreme court, that it is not worth while to mention it .further. There Beems in this matter, where the government has issued title to land, either to road companies or to the state; by Wlj.y of its school lands. or to private parties, to be a misunderstanding on the part of many people that all these lands are still subject to exploration by outside parties for mines, or anything else, the same as though they were public lands of the United StateS. The act of congress. which opens the public land to exploration for mines speaks only of public lands. Indeed, it is public land only that has authority to grant.a license to go upon. 1 think, after the gQvernment has, as in this case, divested itself of the title to the land, that any man going UpOl). the land to explore for mines; or anything else, ill 41 mere trespasser. The lands are to that extent withdrawn from ploration for mines; and I am utterly at a loss to see how anyone can IiSSUme that he can acquire a legal title to a mine upon my land, or on any 'one's land, the title of which has been divested from the government, or how, he can assume to acquire any such title from any act of congress that I have any knowledge of. As I observed, these matters have dentq.Hy come so often, befol'El the court for discussi<,m that I think it worth whUe, to callthe attention of the professionto the fact that by the express terms of congress only public land is open for exploration for mineral. As court in the case of Belk v.Meagher, 104 U. S. 279, IQpationconfers no right.of entry upon lands, unless the previous right to enter; OD that land to 1cWate a mine, or for otller purposes, Right of entry is the paramount thing. If a man has a to enter upon the public land, or a right to enter upon my land, to explore for tnines,·then he may make a location; but, if he has not that right of try intlie -tirst instance, then his location amounts ·to nothing, whatever
BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON fl. LOWNDES.
be may discover. I know of no law that gives anyone a right to explore my land, or any companies' or corporations' land, for the purpose of making a location upon it. The supreme court has often held that no right of pre-emption or otherwise can be initiated by tre!lpass.
BOARD OF TRUSTEES OF THE TOWN OF HUNTINGTON ". LoWNDES.
WORDS AND PHRASES-"HAVEN" OR "HARBOR." PUBLWLANDs-STATE
A body of water need not be land-locked in order to be a "haven" or "harbor. It
Huntington bay, a body of water lying between Lloyd's neck and Eaton's neok. on the north side of Long island, in the state of New York, is a "haven" or "harbor; " within the meaning of the language contained in the colonial patents of 1666L 1688, and 1694, granting to the town of Huntington title to all lands south 01 Island sound, between certain east and west bounds, including "all q.avens, barbors, waters, " ere. The to the soil under said bay passed to the trustees of the town by virtue of said patents.
TO THE SOIL.
Whatever rights, if any, a. citizen of the sta.te of New York might ba.ve obtained under the common law by long possession and user of an oyster-bed in any of the . common or public la.nds of the state, no such could be obtained by a non-resident of the state, nor retained by a former resident after he had removed from the . state. I. SAttlE. The defendant, then a citizen of New York, having had possession of an oysterbed in Huntington ba.y, in the sta.te of New York, from 1867 to 1872, cla.imingthat said oyster-bed was upon the common lands of the sta.te l but claiming no title to the soil in himself, then removed to and thereafter resided In the sta.te of Connecticut, butstill continued to occupy the oyster-bed. Held, that when he removed from the state of New York,. and gave up his citizensllip, he a.t the same time yielded up whatever equitable right of ownership he bad in t,he· premisell, if any, and his use and occupation thereafter was that of a trespasser only, which could not ripen by anY lapse of time into either a title in fee Qr a right to continued QccupatiQn tbereQf. (SylUrbuB by the Court.)
OYSTER-BEDS-TITLE BY USE,R-NoN-RESIDENTS.
At Law. Action in ejectment. The plaintiffs. the board of trustees of the town of Huntington, in the county of Suffolk, in the state of New York, Elued the defendant, Theodore S. Lowndes, in the supreme court of the state of New York,under section 1502 of the Code of Civil Procedure, to recover possession oftheir lands under water in Huntington bay, claiming title thereto under three coloniul pateuts or grants, to-wit" the Nicolls patent, of November 30, 1666, the Dongan patent, of August 2, 1688 j and the Fletcher patent, of October 5,1694. The cause was removed to the United States circuit 'court on application of the defendant by reason of his beinp;a non-resident of the state of New York. The defendant, Lowndes, in 1867, being then a resident of New York, staked out and planted oysters on 130 acres of land under water ,in Huntington bay, upon which there were then growing no natural oysters, and continued thereafter, from time to time, to plant seed oysters thereon, which matured in from three to five v.40F.no.11-40