SOUTHERN PAC. R. CO. 11. WIGGS.
CO. '11. WIGGS
(Oircuit Oourt, N. D. OaU!orn1.a. June 23, 1800.)
PUBLIO LANDS-RAILROAD GRANTS.
The act of congress of July 27, 1866, granting lands to the Southern Paclilo Railroad Company, was a of quantity; and thll grantee, upon accepting the grant, filing its map of 10catlOn and building and equipping its road in the time and manner prescribed by the act, was entitled to its full complement of land to the amount of 10 alternate sections per mile on each side of the road so constructed, provided the same could be found either within the specified present grant, or indemnity limits.
ThElSou'thern Pacific Railroad Company filed its, map of definite location on the 3d of January, 1867, in the oflice of the commissioner of the general landcoflice, showing the present granted and indemnity limits thereon, which granted and indeII).nity.liIJ!.its are clearly llefined in the act of cOIigress; and tlj.e indemnity belt is particU,larlY:limite,dto specified boundaries outside of tne gr,anted limits. that upop filing the map ,of definite location, and upon the secretary of the interior issuing his order withdrawing all the lands within 40 miles of the line of the road, the odd-numbered sections ,both witllin the 'present granted and indemJ;lity limits were withdrawn' frO,m or any otherdisposjtion, Py tue government.' Furthermore held, tpat thE!' statute itself in terms provides that the odd' sections shall not' be liable to, sale or entry or pre-emption other than 'to thE! company. Congress intended to withdraw. froJIJ. sale, entry or pre-emption all thosll lands set apart within specifically ilefined 'limits, ail! well those authorized to be selected, as lieu lands, as those absolutely granted; in which the title itself presentlY ,Wing vesteil. The right of selection indefeasible bY pre-emptioQers the map of definite location, and withdrawal, as provided by the although the title to the land itself did not vest till the selection. " ,,: The secretary of the interior had noauthorlty,while a deficiency existed, low: a pre-eJ;llption to be made upon an.odd seotion within these indtlmnity Ibnits: While such deficiency existed, the secretary could not throw open the oqcl within the indemnity limits to pre-emptioll, or, homestead entry. The right of,selection,in the company, to these lands, is given in: the statute itself, andtlie secretary cannot revoke i t . ' "
" . ., · ''', ' , , ' "
SAM!t-'-RIGJ;lT OF SELECTION,
This joint 'resolution of 1870 (16 St. 382) conferred no new rights upons; preemptqr gqiJ;lg upon these lands subsequent to the order of withdllawal; , It',only and .reserved, such rights as he had acquirlld pefore its passage. A patent issued in the name of the United States to a pre-emptor, enterUlg'upon these lands subsequent to the order of withdraWal, is, erroneously, issued, authority of law, and is void. The existenCe or such a patent is a cloud upon, the complainl\nt's' title. It'embarrasses the assertion of complainant's rights\,ilInd pi'e" vents it getting a patent to the same jandto ,whi$ it is entitled. Thelie (lircum. stances constitute ground for equitable relief. A patent so issued to a pre-emptor is void, and the using of it should be perpetually enjoined. " ", '" ' .,;
Where the secretary of the interior,acting a known a!ld of facts, ,draws therefrom all' erroneous conclusion 'of law, and, m pursuance of such erron",eous, co,J;IcluslQn, isRue,'s a pate,n,,t, to '" Mtt,Y, ,hot entitled ' ,is,, n'?t conclusive, but, is subject to review and rev!"rsal,by the courts. ' ',': (Syllabus by th:6 Oourt.) , ,' ,
SAME'-SECRETA,BY OF INTER,IOR.
This is a bill in equity seeking a decree declaring void and annulling a patent of the United States to Ii quarter section ()f land claimed 'by:the complainant, ,as a part of the land granted to it to aid in the obiistt'uc.. titm of its railroad under the act of congress of July 27,1866, fou'miL'in 14 St. 292. The land 1iesoutside of the 20-milelimit, SO-mile limit fixed by the ,statute, and 1)eing a 'porth>tl of landWh'ich' the complainant was authorized ,to selecttomakeup''for any:defioienayi that might be found in the odd sectionSwitbinthe20-mile :li'n:iit\\by
vol. 43. reason of a prior disposition thereof, or the acquisition of prior rights therein. ',: '::"" ' " " :, , " The complaimint filed its map of definite location in the proper office 3, 1871, covon January 3, \1:867, nnda stlbSequen'tmap on ering substantially the same lines. A letter of the secretary of the interlor,acoompaniedby a' plat showing the 3D-mile limit, withdrawing sale, entry or and so forth,.in accordance the etatute,within the said30-mile: limits, was filed in the Stockton land,ofHqe,Qu May'3, 1867" wl;:lich plat and withdrawal included the lands in question. ' This withdrawal does not appear to have ever Of attempted to be revoked, either by congress or the interiordepartment. The plat of the township embracing 'the land in dispute was file4'itithe'proper land-office on March 19,18&,1. OriMay 19 f '1881, the respondent, Wiggs, filed in the said land-office at Stocktoi)"his pre-emption deClaratory statement for the said land, claiming a settlement thereon on May 15, 1868, which date is more than ,a c6I#:l>lainant filed ,itS }msp of definite ,location. ,He made final proofs of said pre-emption on February 19, 1884, and receivedthepaterlt therefor, now iriqp.estion, on June 12,1885. There was a contest in the land.office from the beginning, between the com· p1ll-inant and defendant' Wiggs, over the latter's right to pre-empt the land, which' being decided in (avor,ofrespondent was taken Lefore the at Washington on appeal; and in a decisionrendered by the cOmmissioner-on JanJl4ry28, 1882, respondent's ,right to pre-empt was affirmed. ,', &flirmed by.theB:ecreta.ry of the interior on November 27, 1883; and, in accordance with the determination of the secretary ,in was. to respoI,ldent. OIl. June 12, 1885. OnJ'uly9,.:1885, theduly-authorized agent ofcomplainant, having selected the la;rids lib :far as it cotildrriake it selection,without ,the concur· in the Stockton land-office list No.7 by'the SIJuthernPe.Cifi9. Railroad, Company to make up deficieXi,ci,underaud.i!i"pursuance Qf:ilaid statute ·of July 27, 1866, and tendered fees thereon ,the fUll costs and expenses ofSufvey hit"irig:ooeD paid; said list beingin the usualform in and the register t>fsaid land-Office re-' jected'stgq..'listand, IlotoutQe groun,dtha.t tharewas no de· fiCiency fdr,ofany ,of proceeding., or in theselection, 01' that ''tHeywere''Iiot otherwise 'subject but ulQf the. reason that, as appears by the records of this office, said land was pat1-2,'18.85; " . ·:This was the sale objeetionas'the land in 'question.; pW1lept is the ashereinbefore'·stated., , Mdj,. \;)efore$aid selection; bUilt and completed its lip, 9f ,beysmd; the,said lands: within the time, and in '!JI imtha man.l)tlf '.by,law I andJt had been accepted by the I . .! fQ1'complainant. :..
aotlTHERN PAC.R. CO. V. WIGpS.
Joseph H. Budd, for defendants. : ·Before SAWYER, Circuit Judge·. ,
SAWYER, J., (after stating the facta as Upon the facts question arises, whether the lands, under the statute,. were own pre·emption by the respondent. at the time he settled upon theQl, for the .purpose of acquiring a pre-emption right, and whether the patent, upon fulfilling the other conditions,waslawfully issued to him; or whether, on the contrary, the complainant, by,.the acceptance of the filing its map of definite Jocation anlibuilding the. in aGcordance wftl,1the requirements pnhe act of flilin.9tfrom the date of, 6lingjts maP oflocationacquire a right py!preemption cluimants under the.existing laws, to select land in lieu. of .lands within the. 20-tnile limit, lost by reason of any·of thecausesenumerated in the statute. In Ryan v; Railroad 00,; 5. Sawy.' afl nrmedJn 99 U. S. 382, it Was lield that, in · title vest¢ .to the 1,>.y .od.d lluml>erswi,thiQ. the40-mile limit of that grant" .0000,·thefllingof tile ·plat of. thesUfveyed line of the road with the secretary,of the interior; ,and· the withdmwaLof the land from 8sleby him; 'but that the title did not vest in any particular division of land that might be' SEilecled'ohfside limit to· makeup de'ficiency until said deficiency hlldbeen ascertained,and the, selection, in lieu thereof had This decision has been repe/ltedly racogI)ized sinGe. , ,., , 'I , It' is insisted on the pad of the that .these,decisioml·must ·controLtheCl\Se·.asJh.e landa am in ,tbe! belt ,to be selected ·as lieu lands .only, and werll not, selected to supply adeficiellcy Itill afte.r f,or the purpose of which time .thetitle.un,derthe:.decisiQu hadn.o.trested. ,131.11 I am Qftbe. ·decisions are nGlt· broad, enQugh to ,teach this case. The. ,1.1ltimateques',tioldn tho$e C8,ses wll/i.quitedjfferent. In this case, the right tQ in the in:the for th.atpurpose,.v.eSJte.d, ,should.there. turnout'.tobea .deficiency,on filing the Ulap of. clefinite location, thereby fixing tba liI)jitofth.e district fQr selection; although ;no title, tQ. the 1and.vestedtill selection_ The precise question now, iqsoJarasI:n;m in anyotherCas(;k"The ,statute itllelhullkes a spepiQc grant.of,;everyalternate. section: within Ce1'tainspecified limits, to 'Which 110 other right hasattachedifl,t.the ,tim,e when,tbeline pfthe road becomes definitely fixed; ,and incase $ome.of the lands are lost by reason of pri<;)lLinterests baving attaohed.;it rigbt to sel¢ctan amount ,equal to ,that so lost out .of,any odd ,eectiQlls of ·public.lands free from other prior. cll\ims witl,1in other"specitlad')iJn:itsQf :no great e;x:tent. The. right to'select,nt .once veeijldp,Q1.1gh la.nds d()es not, till s.election is Anel, ito ,:right of selection, thestat\l;te,itself1in terms l t:ba,t,s@.idpclll:seo..tiQn& Ilballnot be liable to sa,le, or entry, or ,com,pll-ny.;,thlltnopx:e"emption right shall "Thll.!ang\lage of the "j/ (I'L,,1
"That there be and hereby is granted"-to the railroad company_Uevery designated by odd numbers, to alternate section of public land not the amount of twenty alternate sections per mile, on each slde of said railroad ,company may ,adopt thxOU"h the territories of the United States, .line and ten alternlltesections of llind per mile on each side of said railroad whenever it pafiSes through any state. and. Whenever. on the line of the route. the United States have full title. and free from pre-emption or other claims or rights at the time the line of said road:is designated by a plat thereof filed in the offlce 9£ tJIecommissioner of the Arid section 6 provides as follows: .. it further enacted.. president of thetrnited States shall 'cause the lands to be surveyed fbriorty miles in width 'on both sides of the ent1ndine'ofsaid road after the general route shall be fixed, and as fast as ,may. be rrequ i red by the construction oNlaid railroad; and the odd sections of Illl;ld hereby granted shall not be liable to sale or entry or pre-emption before or t!ley are surveyed, except by said company, in this act; but the prOVisions of the act of Septembjlr. eighteen and forty-one, rights, and. tHe acts amendatory thereof, and of the act 1!]}titled, 'An act to secure homesteads t08ctual settlers on the pUblic domain,' approved May twenty, eighteen' hUndred and sixty-two, sbaUbeand the same arebereon extended 'to aU othel"1andsl on the said line of said road when surVllye<1,excepting,th,oS'ehereby,grantedtosaid company." 148t. p. 294, §3. § 6. , '. ,.' ,.'. ".: .... . ,Thus, in express terms,it is >piovided, that the odd sections thus granted within the whole 'boundarieg,shall not be subject to sale, entry . or pre-emvtion before l ' or· after, they! are surveyed, except by said COm'panYI AS provided inthis1act.! Itis's.pparent that congress intended to 'preserve all these odd sections, within the space limited, till it could be ascertained what deficiency there w()uld be; and the 'company could supply them by selections within the prescribed limits.: It permitted sales and pre-emptions, within the prellcribed limits, of even sections only. Congress intended that tbegrantsshould be substantial. This case af,f6rds an illustration of the injustice of any other view. This map of definitalocationwas filed·'on January 3, 1867, whereby the limits became fixed, and the right of selection upon the arising of the conditiona, 'vested. Thegovemment diiI nol file its plat of the survey till March 17,lo8S1, 14 years afterwards, and long after the completion of the road ,opposite the lands. Until this time it could not be ascertained whether any I or if any, what, deficiency would existj and if it could be known, '-thetecould 'selection bf odd sectionsi(')sttpply the deficiency ·nntilit be known where tlie odd secdons would fall, and this require a survey. But if'during all this time the lands were the landsicouldaU be taken up, while the hands of 'ltheoomplainant were tied'.. 'In' 'this \"-61')' case the respondent initiated \his<pi'e4ltnJ:ltion claim,bysettlernebt in 1868, but did not, because he ,ooijldtiotjfilehis declaratory statElment till a short time after 'the filing irntnediately "fter which thec()ut-est between him Ilrid'ltl1eobmpany, as to whi1ch'hli.li' theright,con1rneMed before the deitwasfGHowed up till finally. decided, a short time· before the patent issued. If one pre-el:uptor can enter upon, ,the land
SOUTHERN PAC. R. CO. fl. WIGGS,
wanted, and wait 10 years or mor.e for a survey, and thereby acquire a right, while the railroad company must wait for a survey before it can make its selection and acquire a right thereby, all the lands can be in that manner wrested from the company; and of what use to it, under such conditions, would be the right to select given by the statute? If such a right of pre-emption exists, while the company cannot act, all the lands which derive their greatest value from the very construction of the road, or its contemplated construction, could be wrested from the company,even after the road is constructed, by a failure of the government ,to. make the survey. Manifestly, I think, congress intended to withdraw from sale, entry or pre-emption; by parties other than the company, all those lands set apart within fixed limits, as well those authorized to be selected as lieu lands, aud thereby preserve the right of selection, till selection was possible to be made, as those absolutely granted in which the title' itself presently vested., No time was limited by the act for selection, or lim,ofti,me put upon the express withdrawal. either by the act or the secretary of the interior. A right to select which could be cut off at the ,solediscretion 1of llny pre-emptionel' without any fault of the company, and without aQY power on its part to prevent it, would be illusory, and ,no right at all. :By the statute the president was required to "cause the Jandll to be surveyed for forty miles in width, "-the whole 40 miles. And the odd sections granted within the whole 40 miles "shall not be liable to s8,.le, entry or pre-emption before or after they are surveyed,except by said cqmpany, as provided in this act." It does, not appear to me that this language is susceptible of more than one construction, and .that is, that no pre-emption right could be perfected or initiatE'd in the face of that prohibition till congress sees fit to withdraw it, while still in its power to do so, or till the whole claim of the company for deficiency is both ascertained and satisfied. As congress did not see fit to put any limitation upon the time for selection, neither the secretary of the interior, nor the courts, are authorized to prescribe such limitation. In U. S. v. Ctbrtner, 38 Fed. Rep. I, and 14 Sawy. - , this court held, the circuit justice and circuit judge concurring, that, under a similar grllnt, no other right than that of the railroad company could be acquired or initiated in any of the odd sections within the limits of the grant, after the filing in the proper office of the map of the general route of the road, and the withdrawal of the lands by the secretary of the inthe filing of such map of the general route and the withterior; drawal protected the lands from the acquii;lition of any right by any, other parties till the routes should be definitely fixed, when the title would definitely vest in the odd sections of the specific grant (14Sawy. - , ,and 38 Fed. Rep. L) It was, also, held, that no pre-emption right, could be acquired, or even initiated, on any lands except those as to rights were expreSSly authorized by statute to be acquired, which and afortiori none can be acquired or initiated when there is, as in this casE}, express statutory inhibition. In that case the Jands were thus proteqtedllnd with<.lra'Yn in a tract 10 miles wider than was. necessary v.43F.no.5-22 "
efoI', 't}le,gl'ant after' the .line .()f the' road became, definltely fixed. The ,'sa'me rule was'held with respect to pre-emption clahns in Rau1'Oad 00. v. r:0rr0n;6Sawy; 198; Buttzv. Railroad 00., 119U; S. 55, 7 Sup. Ct. Rep. '1100 ; Denny v. Dodson, 13 Sawy.68, 32 Fed. Rep. '899; SchuWnberg v. Hamman, 21 Wall. 44;M"'t88ouri,K.& T. Ry. Oo;v. [(ansasPac. Ry. 00., ,97 U.,S.·491; The principles thus established in ':my judgment cover : ' ,. ' and· control this case. The joint resolution ,of congress June 28, '187(),'(16 St. 382,) "sav, ing arid reserving all the,dghts ofactual'settlers," conferred no new rights upon respondent. It only saved and reserved such nghtf,1as he had alreadydcquired under 'prior: laws before its passage: But he had acquiredno rights U1ader prior laws' at' that time to protect,' as the land; as we have aeen; was not sribje<,t to pre-emption ; and when he entered he WaB a mere trespasser against the eipress law of the land, and the rights of tbeoomplairiaiJ..t were in no 'Wise limited by thlsreso'1ution. Congress did not attempt andii couldnot limit such rights as had already fully vested had itdesired·to do so. RailroadOd. v. Orton,:6 'Savvy. ,197'et $eq. , ", 'Flae,land;·in the ,pre.sentcase,was 'awarded' by the 'department and ,patented:-to 'respondent etixpress1y upob theauthority of a decision ofthe , secretary of the interiol';retlderedinlS78,beforethe decision in Orton!, ,Chse,; cited.; Orton's aase,and ;tbose' 'cited in theolliIiion of the court, andespeeially thO'Se cil.se$ sincedecl:ded by the supreme court and cited In .the: present opinion; 'established a rule .wholly inconsistent with, that adopted by the secretary ,of the interior'relied on, and necessarily over' .: ,:,," . ruled it. . :.Although these1eetion of the lieu lands were to be" made under the of the secretary of the interior, "they were to be "selected by said company·,:" not by him; 'nonvas the selection required to 'be ap.. ,proved by him. as is required bysomeotheracts; ,and when there was a , deficiency, and thecompariy selected lands open to selection, there was no authority vested in tfie,secretary to arbitrarily refuse 'to recognize and allow such selection. This would deprive the company of the' right of selection expressly, given by the 'statute, and vesfit in the secretai'y, whereas the statute says in express terms, "other lands shall be selected by said company-in lieu thereof." , - It is urged that the matter of determining the rights of these parties was vested in the secretary, and that -his action cannot be reviewed by ·the·court"but is conclusive. I do not· so read the decisions Of th'e su':preme court. There is no dispute'abtiutthe facts here. ' The secretary acted upon a known and recognized state of facts, and on that state of .facts .drew an' erroneous cooolusion :ofIii.w,' and on those recognized facts ,gave the land to the respondent, whereaaheshould have awarded it to ,tJhe,comp1ainllnt. He issued Ii pateIitto the respondent in "'hich .he;had no legal right; a: patent which, upon the known and' recdgnized ,state of facts, he had no 'authority of to issue. ' It is urged, that if the claim of be established, it has the legal art adequate and oomplete remedy at law, and that
tbere is no,ground for equitable relief or jurisdiction. But this patent is a cloud upon the complainant's title, which it is entitled to have r&moved. The existenpe of the patent gives color of title and is recognized by the land department. Its existence embarrasses the assertion of complainant's right, and pl'eveI;lts.it fram getting a patent to the same land, to which it is entitled. These circumstances constitute ground for equitable relief. The remedy at law is not equally adequate and complete. Van Wyck v. Knevala, 106 U. S. 370, 1 Sup. Ct. Rep. 336 j PW,ey v. Huggins, 15 Cal. 128. Let there be a decree for complainant, in pursuance of the prayer of bill, adjudging respondent's title to be void and annulling it; that there- be a perpetual injunction against. his using it, or setting up any claim of title or right under it, and that he convey to the oomplainaJlt any right he have, or claim to have,under it..
McCoNNAUGSY fl. PEmiOYER It
(DWtric& COIIII't,D. Oregon. August 18, 1890.)
L CLot7D ON '1'rrLB. A reBale and QOnveyance of a tract of swamp land under the act of 18'18, belore BOld by the state, under the 80t of 1870, on the K\'ound that it had reverted to the state for the fallure to pay the 10 per centum of the purchase price within the time req uired by law, would OllItaclOlld on the title of the purchaser or biB aulgnee. .l undor.tb.e act of 1870. .
.. 1l0'LTlPi.I<lITT OJ'BUITB·..
The' prevention of amultiplicity of Buits Ii an acknowledged head ofeq.Uity juriidlc\iOn, and thiB suit is clearly maintainable on that ground. '
ThiSiB not a suit against the state of Oregon or ita authorized agentaor representatives, but against the defllndanta, claiming to act 8a Buch, but without' authorlty,oflaw. The cases of In Re.AyerB,123 U. S. «8, 8 Bup. Ct. Rep. 164, and Hn!,.. T. Louiafana, 134 U. S. 1, 10 Sup. eli. Rep. 504, considetecl and distinguillhedtrolD thlll,
biI· 'the COUf't.)
, In Equity. Bill for injunction.
Mr. Ohar1JU B. Bellinger,for plaintiff.
Mr. Earl 0. Bmnaugh, fordefendantB·
.DEADY, J. On the application of the defendaniB a rehearing".. lowed in this case. · .... . the case QrHa'1l8 v. Louisiana, 134 U. B.l, 10 Sup. cited by <:ounsel for defendant not referred not at hand, 01;1 the. former hearing. '. ' On examination, the decfsion was found not to beat all in poil).t, and it by counsel." . .. .. ' .. . ..' , Briefly, the was . A of lpuisillnasued the' amount of certain' coupons amiexell' to 'the bonds thereof. bQllds were issueQ il). and by anamendIl)..ent to the con&titutiOD Qftha,t,year ,rleclRredvalid 'CoIltractsbetween the an.1i, Ule holders thereof. the Qf ,1879' · payw,ent ',' of· :i.',' ',,) ,,' '".".. ,."" ' .. -: .: -"
· . ' · A \ ·· , · · ' , , ." . "