EOUTBERN PAC. B. CO. tI. TILLEY.
729
be mutual. McDonald v. Gregory, 41 Iowa, 513; Bigelow, Estop. 113, 114. As the supplemental bill does not show that the Keokuk & Western Railway stands in such privity with the Missouri, Iowa & Ne-. braska Railway Company as entitles it to the protection of the decree heretofore rendered in· favor of the last-named company, the demurrers to the bill should be sustained; and it is so ordered.
SOUTHERN PAC.
R. Co.
11. TIJ,LEY al. PATTERSON
SAHE 'D. WALKER.
SAMB ··
al.
(OfrcuU Oourt, S. D. Oalifornia. March 17, 1890.) PuBLIO LANDS.....DoNATION TO RAILROAD.
14 St. U. S. 292, granted to the Southern Pacific Railroad Company certain land, and provided that, in case any 01 said land should have been previously disposed of, the company should seleot other land in certain seotions in lieu thereof. The secretary of the interior withdrew such sections, but afterwards allowed a homesteader to enter and obtain patent to a part of one of them. After the patent had issued, the company attempted to select this land, but was not allowed to do so. that the company had DO right to said land under the grant.
In Joseph D. Redding, for complainant. Joseph H. Call, for defendants. Ross, J. The land in controversy in this suit having been entered by the defendant Tilley as a homestead, and a patent therefor having been issued to him by the government, the complainarit seeks to obtain a eree that the title thus conveyed is held in trust for it. Prior to the year 1874 the land was unsurveyed public land of the United States. In that year it was surveyed, and a plat of the survey filed in the local land-office. The source of the complainant's alleged right is the grant made to it by congress in the act passed July 27, 1866, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast," by the Southern route, by which act the Southern Pacific Railroad Company was authorized to connect with the Atlantic & Pacific Railroad at such point near the boundary line of the state of California as they should deem most suitable for a railroad line to San Francisco, and, subject to certain conditions, exceptions, and limitations, was granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of 10 alternate sections per mile on each side of such road, to which the United States should have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or o.ther claims or rights at the time such road should be designated by a plat thereof filed in the office of the commissioner of the genera.l.land-offiCQj
7Z0.'
,FEDERAL REPORTER,
vol. 41.
arid 'to said time, any orpatrts of; sections' should be granted, sold, reserved, occupied by homestead settlers, '6r[ pre':'6rtlpted; oI'otherwise disposed" Of,' the act ptovidedthat. other 'lands sheuld lj,be' selected by said com,.pany in lieu thereof,llnder the direc:tiOll''Ot the secretary of the interior, .in alternate s6Ctions,and designated by odd n1ilmbie1'$t' not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers." 14 U. S. St. 292, 295. The exceptions cqntained in the act need not be particularly referred to. The case shows that the Southern Pacific Company accepted the grant, complied with the conditions contained in it, and in l:iubsequent acts upon sUbjec:, alld earned · lands·...AU, of land e,m.,. braced in thepnmary or 20-mI1e·lln'l.1tsof the'grant vested III panyon the 3d day of JanuarY', 1'867; which was the day the map of' definite road offic.eof the commissioner of the general land-office. But the-land III controversy in this suit was not within those limits. It is a fact that this land is within; tbeindemntty:;orlieu ·. 'W"ith respect to land thus supreme ,court and' by the circuitcouTtstbatno title thereto "eated' in the railroad company prior .. shows that the complainant never sought to select the' lilnd- i·n·dispute- until' November 19, 1887. On that day it embraced it in its indemnity list No.2, and tendered to the officers of the local land-office all proper fees for selecting and listing the land, and securing a patent therefor. The officers of the land department refused to approve the selection; the reason, doubtless, being that the defendant. Tilley had. theretofore been permitted to enter the . land as a h6'rnestegd;upbn Which a patent had' :been issued. Prior 10 the entry, however,and prior to Tilleis.occupancy land', Rnd his 'claiming it ,as a homestead,which occupancy and claim,: it' appears from' the evidence, cornnierlced June 28', 1870, the secretary of the' interior made' an order directing the commissioner of the general, to-withhold the oddisections ,within the granted limits of tWElnty miles on each side of s!liidroad, as shown on :the map, [of definite Ioen-tion, £ilea. January 3, 1867,] and also to withdraw the odd sections ootsideof the;twenty miles, and: within thirty miles 'of each side, froIn Which the indemnity for landsdispoied:df within the granted limits is td ,lYe· taken. *'* *" This ()l'der was made March 27, 1867. As will beohserved, the order was to" withdraw" the odd sections within the primary limits,and illso the odd sections within theindemnitv or mu limits of the- grant. " Withdraw". fromw hat? Whether from;ale, homestead elliry," or 'from. all ofthese; does not expressly: appear from the.'order. In Rdiltoa'!J:(Jo. VJ Dunmeyer, 113U. 8.638, 5 Rep. Mg, the supremeQOurtsnid that "in the' terminology of tJlle laws conceriling :the: dispositi{)n :()f, the· public lands of the United States each (jr these words haS . t :; distinct and well-known But the intEmtion of the order doubtless:was, to direct the withdrawal of the lands referred toin it from any and every mode of disposition; and such
SOTfl'HERN {PAC.R.
co. p.
TJLT.EY.
731
true interpretation. ;Btlt, the order, the permitte'dthe defendant Tilley to enter the particular piec.e of landin controversy aaa homestead, awardedjt t9, ,him,and caused a this is the ques.patent therefor to be Issued to him. The effect tion for decision, and it seeIns to me to be of easy Had tlW complainant sought to select the land in question uuder its grant prior to Tilley's entry, and the officers of the land department had refused to approve the selection, a very different question would be presented. But here there had been no attempt on complainant's part to select the land at the time pf Tilley) entry, ()r at the time it.Wllo8awarded and patented to him; and, as the land was within the indemnity or lieu limits of the grant, the complainaJ,lt had then no right of any nature to that particular piece of land. Its grant could only be attached to it by selecting it under the direction of· the secretary of the interior. Prior-to such selection the land remained public land ofilie United States. It is true the order of withdrawal made by the secretary on the 27th of ]4arch, 1867, had not been in terms vMated, butthe had the same power to vacate it that he had to 'make it; and when he permitted Tilley to make his entry, and awarded the land in question to him, and in effect, annulled the order of withissued him a patent thel'efor, drawal so far as that piuticlllal'piece of land was concerned. In doing so, he violated no vested right of the complainant, for to that land the company had not then acquired .' any right of any nature. It had not selected it, and might never do so. There was, therefore, no legal reason why he should not allow the homestead The act making the grant to the complainant did not direct the secretary of the interior to make any order. withdrawing the larids that'l1light fall within it from sale, preemption,homestead entry, or other disposition, and did not prescribe the effect to be gh'en to such order. It is not for the court to say whether the secretary ought or ought not to have allowed the homestead entry while the general order of remained unrevoked. It is sufficient for the purposes of this suit to say that in doing so he did not interfe,rewith any legal right of complainant, for the simple reason that complainant had not then acquired any right to the land in controversy in the only mode it could acquire it, namely, by selecting it. Thia case is altogether unlike that of Rqilroad Co. v. DuJ1" 10' Sawy. 506,22 Fed. Rep. 489. There the land in question was within the primary limits of the grant, the title to which became fixed ,and perfected in the railroad company as of the date of the grant by the definite location of the line of the road; and the court very properly held that the right thus vested could not be .affected by any subsequent settlement. or entry. The views. above. expressed render itunneceesary to decide whether there.was such "a possession of the disputed pre:lnises by other parties than defehdants, at the time of the filing of the map of definite location of the line of complainant's road, as brought the land within the exceptions to the grant contained in the actof July 27, 1866. Two othef cases,entitlEid, respectively, Southern Pac. B.Ca. v. William B.
J think>. is its
732
I'EDERAL REPOnTER,
No. 95, and Southern Pac. R. 00. v. J.'M. Patf,er1J(Jfl. etal., No. 96, were tried, argued, and submitted together with the present one, and, as they involve substantially the same question, wbat bas been here said will apply to them also. In each case there must be judgment for defendants dismissing the bill.
HOLLANDER t1. BAIZ, (DlBtnct
Consul Genera!.l February 10, 18110.)
Court. 8. D. New
Ax8AsUDOllS AND CONSULS-AO'l'IONs-J"UIUSJ>IC'1'ION......"PUBLIO MINISTBR"-RBV. 687-0:r:rIOBR IN CHARGlil OJ' LBGATION.
ST. I
The defendant, being sued as consul in Uie district court, pleaded that he was a publio minister of Central America, and as such suable only in the supreme court, under section 687, Rev. St., and moved, upon affidavits and certified papers, to diamiss the cause before trial. The defendant was all American citizen; and l upon leave of absence of the minister from Central America, the latter arrangea with our department of state to r,eoeiva through .tile consul any comInunication of which he might be made the channel. The defendant was never presented as a diplomatio officer, 'nor does his name apJilear as such on the official record, nor was he ever addressed by any dlplomatio tItle of office Ilamed in section 1674, sUbd. 5, though he was twice addressed by our department of as "in ohargtl, of the legation," llld, ieceived two, notices usu,'aily given to ,diplomatic offioers. No certificate from t.he department of state Was produced bY side ,as to the 8tatu8 of the defendant. Held,' (1) that the cause oould not be dismissed on motion, except on inC\lDtrovertibie evidence that the defendant was a publio mlnistert and that the eviq,enO!l.produced was not of that" char,acter,: (2) that a "public minIster" was a person invEisteawith "the principaldiplbIllatic functions" (section 4180) under one of the eight tttJes of office named in ,section 16,74, 8ubd.5, and that the papers submitted did not warrant the inference that the was made, or intendt'd to ,be made, adinter£m,' oNlther diplOmatic offioorj (8) that there was no evidenQe of1ntention to waive JUrisdiotion 0:( the defendant as an American citizen. And, upon these grounds, held. that' the defepdant was not entitled to the, immuni· tieS,of sections 687; 4008, and the motion was denied.
At Law. Motion to dismiss for want df jurisdiction. R. D. Btmedict, for plaintiff. Billing8 &:- CWdozo, (JOBephH. of counsel,) for defendant. BROWN, J. The defendant,being sued as consul onJuly 2, 1889, for alleged libel on tbe plaintiff, pleaded', among other defenses, that frOID on or about January 16, 1889, to July 10, 1889, he was the "acting miuister, and sole of Guatemala, and "exclusively in charge of the diplomatic affairs of that republic in the United and that thiscoftrt has no jurisdiction of this action. It is now moved, before trial, to dismiss tbe action, for want of jurisdiction, upon affidavits accompanied by certified copies of various letters from the departments of state,which it is claimed show incontrovertibly that the defendant, at the time when process was served on him, was a "public minister." I On a'subsequent application by the defendant to the supreme court for a writ prohibiting the district court,from proceeding further, with the oause for want 01 jurisdiotion, the application was denied on the meritll. See Inre Baia,. 10 l;lup. Ct. Rep. 8M. '.: ,. ' , ',';