Congress did not intend by the statutes under which the Atlantic
and Pacific Railroad Company received its grants of public land to
vest the lands absolutely in the company, without a right to the
government to reacquire them on failure of the company to comply
with the conditions of the grant, and no express provision for a
forfeiture was necessary in order to fix the rights of the
government, and to authorize reentry in case of breach of
condition.
The Act of April 20, 1871, c. 33, 17 Stat. 19, did not alter,
amend or repeal the Act of July 27, 1866, c. 278, 14 Stat. 292, in
these respects, except so far as it permitted a foreclosure of any
mortgage which might be put on the lands by the company to operate
upon lands opposite and appurtenant to the then completed part of
the road, and so far as it gave assurance that no forfeiture would
be insisted upon for conditions then broken.
When the United States grant public lands upon condition
subsequent, they have the same right to reenter upon breach of the
condition which a private grantor would have under the same
circumstances, which right is to be exercised by legislation.
Lands in the Indian Territory belonging to the Indians did not
pass under the grant to the railroad company, and the United States
were not .required by the statutes to extinguish the Indian title
for the benefit of the railroad company, nor could they be
reasonably expected to do so.
As to Indian grants made subsequent to the grant to the railroad
company,
Page 165 U. S. 414
there was no restriction upon the right of the government to
dispose of public lands in any way it saw fit prior to the filing
of the map of definite location, and if it assumed to dispose of
lands within the grant after the rights of the railroad company had
attached, such action would be void, but it would be no answer to
the obligation of the company to complete its road within the
stipulated time.
Congress did not exceed its powers in forfeiting this grant.
This was an action of ejectment, brought by the railroad company
in the District Court for San Miguel County, New Mexico, to recover
of the defendant, Mingus, a parcel of land, to which the plaintiff
claimed title under its land grant, made by Act of Congress of July
27, 1866, c. 278, 14 Stat. 292. Upon the trial, it gave evidence
tending to show that the land in controversy was part of an
odd-numbered section of public lands within the primary limits of
the grant, and was vacant and in all respects subject to the grant
both at the date thereof and at the date of the definite location
of the road (March 12, 1872), and therefore passed to and became
vested in the company at that date.
Defendant pleaded not guilty, and relied upon a patent for the
same land issued December 10, 1891, to one Albert W. Bray, founded
upon a preemption filing made January 9, 1888. While conceding the
original vesting of title in the railroad company on March 12,
1872, and its undisturbed continuance until July 6, 1886, defendant
claimed that under an act of Congress approved upon that day, c.
637, 24 Stat. 123, declaring a forfeiture of the land grant, the
title of the company was annulled, and became revested in the
United States, and from that time the land was properly subject to
preemption.
Plaintiff denied the validity of the alleged act of forfeiture,
contended that it was ineffectual to annul its title, and hence
that the patent of the defendant was issued without authority, and
was void upon its face.
The facts of the case were substantially as follows:
The company was originally incorporated by Act of Congress of
July 27, 1866, c. 278, 14 Stat. 292, and by § 1 of the act was
authorized to construct a continuous railroad and telegraph line
from
"the Town of Springfield, in the State of Missouri,
Page 165 U. S. 415
thence to the western boundary line of said state, and thence,
by the most eligible railroad route, as shall be determined by said
company, to a point on the Canadian River; thence to the Town of
Albuquerque, on the River Del Norte, and thence, by way of the Agua
Frio or other suitable pass, to the headwaters of the Colorado
Chiquito, and thence, along the thirty-fifth parallel of latitude,
as near as may be found most suitable for a railway route, to the
Colorado River at such point as may be selected by said company for
crossing; thence, by the most practicable and eligible route, to
the Pacific. The said company shall have the right to construct a
branch from the point at which the road strikes the Canadian River
eastwardly, along the most suitable route as selected, to a point
in the western boundary line of Arkansas at or near the Town of Van
Buren."
By § 2, authority was given to the company to take
materials from the public lands adjacent to the line of the road
for its construction, and the United States agreed to
"extinguish, as rapidly as may be consistent with public policy
and the welfare of the Indians, and only by their voluntary
cession, the Indian title to all lands falling under the operation
of this act, and acquired in the donation to the road named in the
act."
By § 3, there was granted to the company, for the purpose
of aiding in the construction of the railroad and telegraph,
etc.,
"every alternate section of public land, not mineral, designated
by odd numbers, to the amount of twenty alternate sections per mile
on each side of said railroad line, as said company may adopt,
through the territories of the United States, and ten alternate
sections of land per mile on each side of said railroad whenever it
passes through any state."
By section 6, the President of the United States was to cause
the lands to be surveyed for forty miles in width on both sides of
the entire line of said road, "after the general route shall be
fixed, and as fast as may be required by the construction of said
railroad."
The eighth, ninth, and seventeenth sections were as follows:
"SEC. 8.
And be it further enacted that each and
every
Page 165 U. S. 416
grant, right and privilege herein are so made and given to and
accepted by said Atlantic and Pacific Railroad Company, upon and
subject to the following conditions, namely that the said company
shall commence the work on said road within two years from the
approval of this act by the President, and shall complete not less
than fifty miles per year after the second year, and shall
construct, equip, furnish and complete the main line of the whole
road by the fourth day of July, Anno Domini eighteen hundred
seventy-eight."
"SEC. 9.
And be it further enacted that the United
States make the several conditional grants herein, and that the
said Atlantic and Pacific Railroad Company accept the same, upon
the further condition that if the said company make any breach of
the conditions hereof and allow the same to continue for upward of
one year, then in such case at any time hereafter, the United
States may do any and all acts and things which may be needful and
necessary to insure a speedy completion of the said road."
"SEC. 17.
And be it further enacted that the said
company is authorized to accept to its own use any grant, donation,
loan, power, franchise, aid or assistance which may be granted to
or conferred on said company by the Congress of the United States,
by the legislature of any state, or by any corporation, person, or
persons, or by any Indian tribe or nation through whose reservation
the road herein provided for may pass, and said corporation is
authorized to hold and enjoy any such grant, donation, loan, power,
franchise, aid or assistance, to its own use for the purpose
aforesaid,
provided that any such grant or donation,
power, aid or assistance from any Indian tribe or nation shall be
subject to the approval of the President of the United States."
By the twentieth section, the right was reserved to Congress,
"at any time, having due regard for the rights of said Atlantic and
Pacific Railroad Company," to "add to, alter, amend or repeal this
act."
The company proceeded with its organization, but up to April 20,
1871, had only been able to construct 75 miles of its road,
including 34 miles in the Indian Territory, extending
Page 165 U. S. 417
westward from its eastern terminus at Springfield, Missouri.
Along that construction in the State of Missouri, there was but
little unappropriated public land available under the grant to aid
in building the road. From the west line of Missouri to the west
line of the Indian Territory, about 350 miles, the lands were
unsurveyed, and were wholly embraced in Indian titles which the
United States had not extinguished, and none of those lands were
available to aid in construction. From thence, through New Mexico
and Arizona to the Colorado River, the route of the road ran
through numerous reservations occupied by hostile and warlike
Indians, the boundaries of which reservations were subsequently
enlarged by the United States, and new reservations created. Most
of the lands which were not included in such unextinguished Indian
occupancy were then unsurveyed, and were largely taken up by
unadjusted Mexican land claims. It also appears that the surveying
and engineering parties of the company were stopped by orders from
the Secretary of the Interior from continuing westward through the
Indian Territory, and the company was unable to proceed until
March, 1871, and then only upon executing a bond in the sum of half
a million of dollars, conditioned for the protection of the Indian
tribes through whose territory the line of route was required to
pass by the act of Congress.
For these reasons, the company was compelled to stop work and
appeal to Congress for express authority to mortgage its land grant
in advance of the construction of the road, so as to secure capital
for the prosecution of the work. Thereupon, on April 20, 1871,
Congress passed an act authorizing the company to mortgage its
property, with a proviso that
"if the company shall hereafter suffer any breach of the
conditions of the act above referred to, [July 27, 1866] under
which it is organized, the rights of those claiming under any
mortgage made by the company to the lands granted to it by said act
shall extend only to so much thereof as shall be coterminous with
or appertain to that part of said road which shall have been
constructed at the time of the foreclosure of said mortgage. "
Page 165 U. S. 418
Under the authority of this act, the company executed mortgages
to the aggregate amount of $31,500,000, of which $3,590,629 was
secured by mortgages upon the central division of the road,
extending from the west line of Missouri to Albuquerque, and
embracing the lands here in controversy.
By July 4, 1878, the date fixed by the act of 1866 for the
completion of the road, the company had constructed only 125 miles
out of the 2,267 miles contemplated for the entire line; but, in
order to have an outlet to the markets of St. Louis, and the
transportation facilities of the Mississippi River, it had, in
October, 1870, purchased the Southern Pacific Railroad, then built
from Pacific City, 37 miles west of St. Louis, to Springfield.
Owing, as is claimed, to the financial panic of 1873 and the
failure of the United States to extinguish the Indian titles
through the Indian Territory or of the company to acquire them, no
substantial progress was made with the road from 1871 until about
the beginning of 1880, when the company made such arrangements as
to enable it to resume the work of construction. In order to do
this, however, it had to give up operations in the Indian
Territory, and by making connection with the Atchison, Topeka and
Santa Fe, whose construction had then reached the line of the
Atlantic and Pacific at Albuquerque, in New Mexico, it became
practicable to build westward to the Pacific Ocean, and thus avoid
many of the obstacles and hindrances which had been encountered in
the Indian Territory. There were then constructed and equipped at a
cost of $16,000,000, about 50 miles more in the Indian Territory,
and 560 miles westward from Albuquerque to the "Needles," on the
Colorado River, all of which were examined and accepted by order of
the President. It also acquired, by contract of purchase at an
expense of $7,290,000, 243 miles of road from the Needles to
Mojave, California, which had been constructed by the Southern
Pacific Railroad Company, and by a trackage contract with the
Southern Pacific, the Atlantic and Pacific obtained the right to
run its own cars to San Francisco, and to conduct to that point an
independent and competitive freight and passenger business.
Page 165 U. S. 419
On July 6, 1886, the company had about 1,228 miles of
constructed road equipped and in operation, of which, however, it
had itself constructed only 747 miles. That portion of the line
from Sepulpa, in the Indian Territory, to Albuquerque, and from
Mojave to the Pacific, were in 1886, and still remain,
unconstructed.
Upon this state of facts, on July 6, 1886, Congress passed an
act, c. 637, 24 Stat. 123, declaring all the lands, excepting the
right of way,
"adjacent to and coterminous with the uncompleted portions of
the main line of said road, embraced within both the granted and
indemnity limits, as contemplated"
by the act of organization, to be "forfeited and restored to the
public domain." The validity of this act raised the only question
at issue between the parties.
Upon the trial, the court directed a verdict for the defendant.
Plaintiff sued out a writ of error from the supreme court of the
territory, which affirmed by a divided court the judgment of the
court below, 34 P. 592, whereupon plaintiff sued out a writ of
error from this Court.
Page 165 U. S. 426
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
While the value of the land involved in this case is small, the
question at issue between the parties affects the validity of the
entire land grant of the company adjacent to and coterminous with
all that part of the main line of the road not completed on July 6,
1886. The case turns wholly upon the validity of the act of that
date forfeiting that portion of the land grant.
Plaintiff claims in this connection that the act was invalid
inasmuch as the United States had failed to perform their own
obligations in two particulars: first, that they not only failed to
extinguish the Indian title to lands along the prescribed route of
the road, but had since further incumbered the grant by the
creation of additional Indian reservations, carved out of the
granted lands; second, that they also largely failed to survey the
lands as required by the sixth section, although repeatedly urged
and requested to do so by the railroad company.
1. The reserved rights of the United States with respect to this
land grant are contained in the eighth, ninth, and twentieth
sections of the original act, and are as follows: by section 8, the
grant was made subject to the condition that the company should
commence work within two years from the approval of the act, and
should complete not less than 50 miles a year after the second
year, and should complete the main line of
Page 165 U. S. 427
the whole road by July 4, 1878. By section 9, a "further
condition" was imposed: that if the company made any breach of the
conditions of the act, and allowed the same to continue for upward
of one year, the United States might do anything which might be
needful and necessary to secure the speedy completion of the road.
And by section 20 the general power was reserved to Congress to
alter, amend, or repeal the act, subject only to a due regard for
the rights of the company.
The position of the plaintiff is that the rights of the United
States were fixed and limited by section 9; that Congress did not
intend that the grant should ever be forfeited; but that, upon a
breach of any of the conditions, the United States could only take
steps itself to insure the speedy completion of the road.
What steps the government could take in that direction, and what
the effects of its action upon the land grant might be, it is
difficult to decide. It would seem highly inequitable, however,
that if the government were compelled to go on and complete the
road at its own expense, the company should yet be able to retain
the land grant, the condition of which was the completion of the
road at its expense. The act makes no provision whatever for the
disposition of the land grant in this contingency. What remedy the
government would have had in case it had elected itself to go on
and complete the road is left entirely to conjecture. Some further
action on the part of Congress would seem to have been
necessary.
Aside from this difficulty, however, we are clearly of opinion
that Congress intended to impose this simply as a "further
condition," consequent upon a breach by the railroad company of its
stipulations, and to reserve to the United States the option of
forfeiting the grant entirely, or of taking measures to insure the
speedy completion of the road. This further condition was obviously
intended for the benefit of the government, and with no purpose of
merging other conditions, or of superseding other remedies to which
it might be entitled. While, by the Act of July 27, 1866, like
other similar acts passed about the same time, it was doubtless
intended that the grant should operate
in praesenti, it
certainly never could have been contemplated that, in case the
Page 165 U. S. 428
company took no steps towards the completion of the road, the
government could not forfeit the grant, and could resort to no
other remedy than building the road itself. It certainly would be
highly inequitable, as well as impolitic, that the company should
retain the land grant and do nothing towards the construction of
the road, or that the lands granted should be permanently withdrawn
from the public domain. A more reasonable interpretation would be
to say that Congress contemplated a possibility that the company
might proceed in good faith with the construction of the road, and
might so nearly approach its completion that it would be for the
best interests of the government of go on itself and complete it,
rather than to insist upon an entire forfeiture of the grant. Even
if section 9 were intended as a limitation upon the power of
Congress, which might otherwise be inferred from section 8, the
power reserved by section 20 to alter, amend, or repeal the act,
except so far as its exercise might interfere with the just rights
of the company, being the latest expression of the legislative
will, may properly be construed to dominate the others.
But little light is to be gained in the consideration of this
question by referring to the conditions for forfeiture or
reinvestment of title under other railway land grant acts. There is
no such uniformity in the terms of their conditions subsequent as
to lead us to give any different construction to the three sections
in question than such as their language plainly requires. It cannot
be supposed that Congress intended to vest a title in the railway
company to this enormous grant of lands without contemplating that
the government might in some way reacquire it in case of a failure
of the company to comply with the conditions of the grant. No
express provision for a forfeiture was required to fix the rights
of the government. If an estate be granted upon a condition
subsequent, no express words of forfeiture or reinvestiture of
title are necessary to authorize the grantor to reenter in case of
a breach of such conditions.
Stanley v.
Colt, 5 Wall. 119;
Mead v.
Ballard, 7 Wall. 290;
Ruch v. Rock Island,
97 U. S. 693;
Hayden v. Stoughton, 5 Pick. 528;
Jackson v.
Allen, 3 Cow. 220;
Gray v. Blanchard, 8 Pick. 283.
And the fact that
Page 165 U. S. 429
Congress imposed, as a further condition, the right to complete
the road itself did not deprive it of the power of resorting to
other remedies to which the breach of such conditions entitled
it.
2. As to the proper construction of the Act of April 20, 1871,
this act in general terms authorized the railroad company to make
and issue its bonds in such sums as it pleased, and to mortgage its
road, etc., to secure them, with a proviso that if the company
should thereafter suffer any breach of the conditions of its acts
of organization, the rights of those claiming under the mortgage of
the land grant should extend only to so much thereof as should be
"coterminous with or appertain to that part of said road which
shall have been constructed at the time of the foreclosure of said
mortgage." Conceding that with respect to the rights of the
mortgagees, at least, this act was a condonation of the breach of
any condition which had previously occurred, it left the rights of
the government unimpaired with respect to any breach which should
thereafter occur, and expressly limited the rights of the
mortgagees to such land as should appertain to and be coterminous
with the completed portion of the road at the time of the
foreclosure. It is insisted by the plaintiff that the final words
of this act indicate an intention on the part of Congress to extend
the time for the construction of the road until such time as the
mortgagees might see fit to foreclose. But we do not so read it.
There is nothing in the act evincing an intention on the part of
Congress to waive any of the conditions of the act of 1866 except
so far as such conditions had already been broken. Congress
doubtless anticipated that the mortgage might be foreclosed, and,
desiring to provide against the possible contingency that the
mortgagees might claim the right to sell the entire land grant upon
the foreclosure, declared that it should operate only upon that
part of the grant appertaining to the completed portion. If there
were any ambiguity in this act, we should feel bound, upon familiar
principles, to give the government the benefit of the doubt.
Dubuque & Pacific Railroad
v. Litchfield, 23 How. 66,
64 U. S. 88;
Leavenworth, Lawrence &c. Railroad v. United States,
92 U. S. 733,
92 U. S. 740;
Coosaw Mining Co. v. South
Carolina, 144
Page 165 U. S. 430
U.S. 550,
144 U. S. 562.
But in our view there is no case made calling for the application
of this rule, as the intention of Congress to simply limit the
remedy of the mortgagees seems entirely clear. The original act
being silent upon the subject of mortgaging the grant, there is
reason to suppose that Congress passed the act for the purpose of
resolving any doubts that capitalists may have entertained with
respect to such power. The mortgagees, standing in the place of the
mortgagor, had no greater rights than it had, and must be held to
have known that they were taking an estate which was defeasible
upon condition broken. It cannot be supposed that Congress intended
to postpone indefinitely, or until the mortgagees chose to
foreclose, any remedy it might have against the mortgagor for a
breach of its covenants. The plain meaning of the proviso is to
permit any foreclosure of the mortgage to operate only upon such
lands as are opposite and appurtenant to that part of the road
which should be constructed at the time of the foreclosure, but not
to extend for a day the time within which the road should be
completed. The act also had a purpose in its assurance to
mortgagees that no forfeiture would be insisted upon for conditions
already broken, and that they might safely advance their money if
no breach should thereafter occur. Except to this extent, there was
no intention by this act to alter, amend, or repeal the act of
1866.
3. Coming now to the act of 1886, forfeiting the grant, it is
claimed in the first place that Congress has no right by simple act
to forfeit a title already vested without providing for a judicial
inquiry as to whether there has been a breach of a condition on the
part of the grantee and the legal effect of such breach, and also
whether there has not been a breach on the part of the United
States which would estop them from claiming a forfeiture. There is
no doubt that where an estate is granted subject to a condition
subsequent, the mere fact that there has been a breach of such
condition will not revest the title in the grantor without some act
or declaration upon his part.
Ruch v. Rock Island,
97 U. S. 693. In
this case, it was said by Mr. Justice Swayne that
"it was not denied by the plaintiff that the title had passed,
and that the
Page 165 U. S. 431
estate had vested by the dedication. If the condition subsequent
were broken, that did not,
ipso facto, produce a reverter
of the title. The estate continued in full force until the proper
step was taken to consummate the forfeiture. This act can only be
done by the grantor during his lifetime, and after his death by
those in privity of blood with him."
In the case of a private grant, this is ordinarily done by
reentry on the part of the grantor, although, as was said in this
case, "bringing suit for the premises by the proper party is
sufficient to authorize a recovery without actual entry or a
previous demand of possession."
Cowell v. Springs Co.,
100 U. S. 55;
Austin v. Cambridgeport Parish, 21 Pick. 215;
Jackson
v. Crysler, 1 Johns.Cas. 125;
Hosford v. Ballard, 39
N.Y. 147;
Cruger v. McLaury, 41 N.Y. 219;
Cornelius v.
Ivins, 26 N.J.L. 376.
But where the grant is a public one, this Court has held in a
series of cases that the remedy of the government is by an inquest
of office or office found, a judicial proceeding but little used in
this country, or by a legislative act directing the possession and
appropriation of the land.
Blackstone defines an inquest of office as
"an inquiry made by the king's officer, his sheriff, coroner, or
escheator,
virtute officii, or by writ to them sent for
that purpose, or by commissioners specially appointed, concerning
any matter that entitles the King to the possession of lands or
tenements, goods or chattels. This is done by a jury of no
determinate number, being either twelve or less or more. . . .
These inquests of office were devised by law as an authentic means
to give the King his right by solemn matter of record, without
which he in general can neither take nor part from anything."
3 Black.Com. 258, 259.
The necessity of an inquest of office was considered by this
Court at an early day in two cases. In
Smith v.
Maryland, 6 Cranch 286, it was held that by the
Confiscation Act of Maryland, passed in 1780, before the adoption
of the Constitution, interests in land were completely divested by
operation of law, without office found. The validity of the act was
apparently not considered.
Page 165 U. S. 432
The case of
Fairfax's Devisee v. Hunter's
Lessee, 7 Cranch 603, involved the title to a large
tract of land in Virginia granted to Lord Fairfax. The lands were
devised by will to Denny Fairfax, a British subject who never
became a citizen of the United States, but always resided in
England, and was an alien enemy. In 1789, the Governor of the
Commonwealth of Virginia granted the lands by patent to Hunter, a
citizen of Virginia, who entered into possession prior to the
institution of the action. It was the opinion of the Court that the
title acquired by an alien by purchase is not divested until office
found, although it was contended that the common law as to inquests
of office had been dispensed with by statute, so as to make the
grant to Hunter complete and perfect. As to this point, Mr. Justice
Story observed (p.
11 U. S.
622):
"We will not say that it was not competent for the legislature
(supposing no treaty in the way), by a special act, to have vested
the land in the commonwealth without an inquest of office for the
cause of alienage. But such an effect ought not, upon principles of
public policy, to be presumed upon light ground. That an inquest of
office should be made in cases of alienage is a useful and
important restraint upon public proceedings. . . . It prevents
individuals from being harassed by numerous suits introduced by
litigious grantees. It enables the owner to contest the question of
alienage directly by a traverse of the office. It affords an
opportunity for the public to know the nature, the value, and the
extent of its acquisitions,
pro defectu hoeredis. And,
above all, it operates as a salutary suppression of that corrupt
influence which the avarice of speculation might otherwise urge
upon the legislature. The common law therefore ought not to be
deemed to be repealed unless the language of a statute be clear and
explicit for this purpose."
It was further held that during the war, the lands in
controversy were never, by any public law, vested in the
commonwealth. It was also held that the treaty of 1794 with Great
Britain completely protected and confirmed the title of Denny
Fairfax. Mr. Justice Johnson, dissenting, was of opinion that the
interest acquired by Denny Fairfax under the devise was a mere
scintilla juris, and that that
Page 165 U. S. 433
scintilla was extinguished by the grant of the state
vesting the tract in Hunter; that it was competent for the state to
assert its rights over an alien's property by other means than by
an inquest of office; that in Great Britain, in the case of
treason, an inquest of office had been expressly dispensed with by
the statute of 33 Hen. VIII, c. 30, and that he saw no reason why
it was not competent for the Legislature of Virginia to do the
same.
Subsequent cases in this Court have asserted this power to exist
beyond any controversy. As was said in
United
States v. Repentigny, 5 Wall. 211,
72 U. S. 268:
"The mode of asserting or of assuming the forfeited grant is
subject to the legislative authority of the government. It may be
after judicial investigation, or by taking possession directly,
under the authority of the government, without these preliminary
proceedings."
Practically, the same language is used in
Schulenberg
v. Harriman, 21 Wall. 44,
88 U. S. 63. In
Farnsworth v. Minnesota & Pacific Railroad Co.,
92 U. S. 45,
92 U. S. 66, we
said:
"A forfeiture by the state of an interest in lands and connected
franchises granted for the construction of a public work may be
declared for noncompliance with the conditions annexed to their
grant or to their possession when the forfeiture is provided by
statute, without judicial proceedings to ascertain and determine
the failure of the grantee to perform the conditions. Such mode of
ascertainment and determination -- that is, by judicial proceedings
-- is attended with many conveniences and advantages over any other
mode, as it establishes as matter of record, importing verity
against the grantee, the facts upon which the forfeiture depends,
and thus avoids uncertainty in titles and consequent litigation.
But that mode is not essential to the divestiture of the interest
where the grant is for the accomplishment of an object in which the
public is concerned, and is made by a law which expressly provides
for the forfeiture when that object is not accomplished. Where land
and franchises are thus held, any public assertion by legislative
act of the ownership of the state, after default of the grantee --
such as an act resuming control of them, and appropriating them to
particular uses, or granting them to
Page 165 U. S. 434
others to carry out the original object -- will be equally
effectual and operative."
These cases were all quoted with approval, and the doctrine
reasserted, in
McMicken v. United States, 97 U. S.
204,
97 U. S. 217;
Van Wyck v. Knevals, 106 U. S. 360,
106 U. S.
368.
These cases are not put upon the ground that the United States
reserved the right to declare a forfeiture, or even provided
expressly for a reversion of title in case of a breach, but upon
the general ground that the government was vested with the same
right as a private grantor, upon breach of a condition subsequent,
though such right was, from the necessities of the case, to be
exercised in a somewhat different manner,
viz., by
legislative act, instead of reentry.
But, while we think the practice of forfeiting by legislative
act is too well settled to be now disturbed, we do not wish to be
understood as saying that this power may be arbitrarily exercised,
or that the grantee may not set up in defense any facts which he
might lay before a jury in a judicial inquisition. It would comport
neither with the dignity of the government nor with the
constitutional rights of the grantee to hold that the government,
by an arbitrary act, might divest the latter of his title when
there had been no breach of the conditions subsequent or when the
government itself had been manifestly in default in the performance
of its stipulations. The inquiry in each case is a judicial one --
whether there has been, upon either side, a failure to perform, and
it makes but little practical difference whether such inquiry
precedes or follows the reentry or act of forfeiture.
The charge in this connection is that the government not only
failed in its legal obligation to extinguish the Indian titles and
to survey the lands, but, upon the contrary, has still further
burdened these titles with the very cloud it stipulated to remove
by additional reservations in favor of the Indians. The main
contest in the case has been upon this point. In locating the road
between Springfield, in Missouri, and Albuquerque, in New Mexico,
the most direct route lay, for 350 miles, through the Indian
Territory. To determine whether the government has been derelict in
this particular, it is necessary
Page 165 U. S. 435
to compare the several sections of the act to ascertain exactly
what the grant covered, and to what extent the legal rights of the
grantee were impaired by the nonaction of the government. By the
third section of the act, a grant was made of twenty sections per
mile on each side of the line through the territories, and ten
sections per mile through the states, subject to the conditions
that
"whenever, on the line thereof, the United States shall have
full title not reserved, sold, granted or otherwise appropriated,
and free from preemption or other claims or rights at the time the
line of said road is designated by a plat thereof, filed in the
office of the Commissioner of the General Land Office, and
whenever, prior to said time, any of said sections or part of
sections shall have been granted, sold, reserved, occupied by
homestead settlers, or preempted or otherwise disposed of, other
lands shall be selected by said company in lieu thereof."
If the grant stood upon his language alone, there could be no
doubt that, as the lands in the Indian Territory had been set apart
for the sole use and occupation of various Indian tribes, they were
reserved lands within the meaning of that section.
Leavenworth,
Lawrence &c. Railroad v. United States, 92 U. S.
733. It was held in this case that a grant of lands in
similar terms to the one under consideration did not apply to lands
which had been reserved to the Osage tribe of Indians within the
State of Kansas, whether the Indian rights were extinguished before
or after the definite location of the route.
See also Kansas
Pacific Railway v. Dunmeyer, 113 U. S. 629;
Bardon v. Northern Pacific Railroad, 145 U.
S. 535.
Indeed it is open to serious doubt whether that large tract of
land known distinctively as the "Indian Territory" is a territory
of the United States within the meaning of the act. While for
certain purposes -- such, for instance, as the enforcement of the
criminal and internal revenue laws -- it has been recognized as
such, and within the jurisdiction of the United States,
United States v.
Rogers, 4 How. 567;
The
Cherokee Tobacco, 11 Wall. 616, a reference to some
of the treaties under which it is held by the Indians, indicates
that it stands in an entirely different relation to the United
States from other
Page 165 U. S. 436
territories, and that, for most purposes, it is to be considered
as an independent country. Thus, in the Treaty of December 29,
1835, 7 Stat. 478, with the Cherokees, whereby the United States
granted and conveyed by patent to the Cherokees a portion of this
territory, the United States, in article 5, covenanted and agreed
that the land ceded to the Cherokees should "in no future time,
without their consent, be included within the territorial limits or
jurisdiction of any state or territory," and by further Treaty of
August 17, 1846, 9 Stat. 871, provided (Art. 1)
"that the lands now occupied by the Cherokee Nation shall be
secured to the whole Cherokee people for their common use and
benefit, and a patent shall be issued for the same."
So too, by Treaty with the Choctaws of September 27, 1830, 7
Stat. 333, granting a portion of the Indian Territory to them, the
United States (Art. 4) secured to the
"Choctaw Nation of red people the jurisdiction and government of
all the persons and property that may be within their limits west,
so that no territory or state shall ever have the right to pass
laws for the government of the Choctaw Nation of red people and
their descendants, and that no part of the land granted shall ever
be embraced in any territory or state; but the United States shall
forever secure said Choctaw Nation from, and against, all laws
except such as from time to time may be enacted in their own
national councils, not inconsistent,"
etc. And in a Treaty of March 24, 1832, 7 Stat. 366, with the
Creeks (Art. 14), the Creek country west of the Mississippi was
solemnly guarantied to these Indians,
"nor shall any state or territory ever have a right to pass laws
for the government of such Indians, but they shall be allowed to
govern themselves, so far as may be compatible with the general
jurisdiction which Congress may think proper to exercise over
them."
Under the guaranties of these and other similar treaties, the
Indians have proceeded to establish and carry on independent
governments of their own, enacting and executing their own laws,
punishing their own criminals, appointing their own officers,
raising and expending their own revenues. Their position, as early
as 1855, is indicated by the following extract
Page 165 U. S. 437
from the opinion of this Court in
Mackey v.
Cox, 18 How. 100,
59 U. S.
103:
"A question has been suggested whether the Cherokee people
should be considered or treated as a foreign state or territory.
The fact that they are under the Constitution of the Union, and
subject to acts of Congress regulating trade, is a sufficient
answer to the suggestion. They are not only within our
jurisdiction, but the faith of the nation is pledged for their
protection. In some respects, they bear the same relation to the
federal government as a territory did in its second grade of
government under the ordinance of 1787. Such territory passed its
own laws, subject to the approval of Congress, and its inhabitants
were subject to the Constitution and acts of Congress. The
principal difference exists in the fact that the Cherokees enact
their own laws, under the restriction stated, appoint their own
officers, and pay their own expenses. This however, is no reason
why the laws and proceeds of the Cherokee Territory, so far as
relates to the rights claimed under them, should not be placed upon
the same footing as other territories in the Union. It is not a
foreign, but a domestic, territory -- a territory which originated
under our Constitution and laws."
Similar language is used with reference to these Indians in
Holden v. Joy,
17 Wall. 211,
84 U. S. 242.
Under these circumstances, it could scarcely by expected that the
United States should be called upon to extinguish, for the benefit
of a railroad company, which had chosen to locate its route through
this territory, a title guarantied to the Indians by solemn
treaties, and which had been possessed by them for upwards of forty
years, with the powers of an almost independent government.
The terms of the second of the land grant act indicate that
nothing of this kind was contemplated. The United States did not
agree to extinguish the Indian title absolutely, but only "as
rapidly as may be consistent with public policy and the welfare of
the Indians, and only by their voluntary cession." Whether an
extinguishment of an Indian title at all was consistent with public
policy and the welfare of the Indians could only be determined by
Congress, or the executive
Page 165 U. S. 438
officers of the government. Whether it could be obtained by
voluntary cession could only be determined by the acts of the
Indians themselves.
In
Buttz v. Northern Pacific Railroad, 119 U. S.
55, wherein a grant to the Northern Pacific Railroad,
with a similar provision for the extinguishment of Indian titles,
was under consideration, it was held that under the principal
treaties applicable to that case, the grant operated to convey the
fee to the company, subject to the right of occupancy by the
Indians, but that the right of the Indians could not be interfered
with or determined, except by the United States; that no private
individual could invade it, and the manner, time, and conditions of
its extinguishment were matters solely for the consideration of the
government, and were not open to contestation in the judicial
tribunals. It appeared in that case that the United States had full
title to the lands, subject to a mere right of occupancy on the
part of the Indians.
With respect to the power of the United States to extinguish the
Indian titles, it was observed in
Beecher v. Wetherby,
95 U. S. 517,
95 U. S.
525:
"It is to be presumed that in this matter, the United States
would be governed by such considerations of justice as would
control a Christian people in their treatment of an ignorant and
dependent race. Be that as it may, the propriety or justice of
their action towards the Indians with respect to their lands is a
question of governmental policy, and is not a matter open to
discussion in controversy between third parties, neither of whom
derives title from the Indians."
The railroad company was in no position to insist that the
government should extinguish these titles, at least without
affirmatively proving that the Indians were willing to make the
cession, and that it was consistent with public policy and their
own general welfare to permit them to do so. It made the government
its arbiter in this particular. Indeed, it is doubtful if the
engagement of the government amounted to anything more than an
expression of its willingness to assist the company in acquiring
Indian titles, if the company could persuade the Indians to
relinquish such titles, and the government
Page 165 U. S. 439
considered it consonant with their welfare to do so. The
stipulation should be read in connection with the seventeenth
section of the act, which authorized the company to accept grants
from "any Indian tribe or nation through whose reservation the road
herein provided for may pass," provided that any such grant or
donation, power, aid, or assistance from any Indian tribe or nation
should be subject to the approval of the President of the United
States. This proviso is obviously inconsistent with any general
undertaking on the part of the government to extinguish all Indian
titles. That it required the United States absolutely and at all
hazards to extinguish such titles, and to take from the Indians a
strip of land forty miles in width through the entire territory,
and open it to settlement, is not only inconsistent with their
treaties and with their agreement with the company, but one which
involved a grave disturbance, if not practically the upsetting, of
a long established Indian government. In fact, Congress promised
nothing in this particular from which the company could claim a
legal breach of their agreement, without at least showing that the
Indians were willing to cede that portion of their territory, and
that public policy and their own welfare required this to be
done.
Plaintiff admits that there was a reserved discretion in the
government as to the circumstances under which the Indian titles
should be extinguished, but insists that so long as that discretion
was exercised and performance withheld, the government was in no
position to assert a right of forfeiture -- in other words, that so
long as fulfillment by the company remained impossible by reason of
the failure of the government to keep its promises, no matter for
what reason, the power to insist upon performance by the railroad
was postponed. We consider this construction of the compact
unsound. The railroad company took its chances with the government
in this particular. The latter might not deem it sound policy or
for the welfare of the Indians to extinguish their title, or it
might not procure their assent. Under neither contingency would the
company have the right to complain nor to set up this
nonperformance as a defense to its own failure to build
Page 165 U. S. 440
the road. Knowing the title under which the Indians held this
territory, the company should, when it contemplated the
construction of the road, have obtained some positive assurances
from the Indians that they would permit the road to be built. It
seems that, by treaties made in 1866 with the Seminoles, the
Choctaws and Chickasaws, the Creeks, the Delawares, and the
Cherokees, 14 Stat. 755-799, provision was made for a right of way
for certain railways from north to south, and from east to west,
through the Indian Territory; but the very fact that these treaties
made no provision for a grant of lands to the railways through this
territory as appurtenant to the line of road was notice to the
companies that no such grant was contemplated. Indeed, these very
treaties made additional provisions for the exercise of legislative
power by the several Indian nations, and contained additional
guaranties for their legislative independence and self-government
-- guaranties quite inconsistent with a grant to the railway of
alternate sections of land forty miles in width and the opening of
the other alternate sections to purchase as public lands. All of
these treaties were entered into prior to the land grant Act of
July 21, 1866, and both parties must have had them in view at that
time.
4. The defense that other reservations were made to these
Indians after this was passed stands upon a somewhat different
basis. So far as these Indian reservations were in the Indian
Territory, they are immaterial, since we have already held that
lands in that territory did not pass, and it could make no
difference whether they were reserved for one tribe or another. Of
the reservations in New Mexico and Arizona, most of them were made
after July 4, 1878, the time fixed for the completion of the road,
and at a time when the government had a right to declare the grant
forfeited. All these reservations, too, were made opposite portions
of the road which were actually built, and cannot be made available
as an excuse for not completing the other portions. None of them
seems to affect in any way the lands conterminous with the
unconstructed portion. There was no restriction upon the right of
the government to dispose of public lands in any way
Page 165 U. S. 441
it saw fit prior to the filing of the map of definite location,
and if it assumed to dispose of lands within the grant, after the
rights of the railroad company had attached, such action might be
void, but it would be no answer to the obligation of the company to
complete its road within the stipulated time. Some of these
reservations, too, were made in pursuance of treaties made with the
Indians prior to the land grant act, and were apparently made in
pursuance of a plan to confine the Indians within designated
boundaries of territories previously occupied by them. These
reservations did not seem to have seriously interfered with the
company in the prosecution of its work, or, with the exception of
those in the Indian Territory, to have been seriously insisted upon
as an answer to the proposed forfeiture of its land grant.
5. It is finally contended that the government failed to fulfill
its obligation to survey the lands, and that this was a condition
precedent to its right to declare a forfeiture. This obligation is
contained in the sixth section in the following language:
"That the President of the United States shall cause the lands
to be surveyed for forty miles in width on both sides of the entire
line of said road, after the general route shall be fixed, and as
fast as may be required by the construction of said railroad."
Evidently the failure to do this did not prevent the company
from realizing the full value of the land granted by mortgaging the
road, and it is open to doubt whether it could, under any
circumstances, be insisted upon as a defense to the forfeiture. It
is true that the railroad company offered to furnish the money for
such surveys, and that the United States refused to accept it; but
such offer was not made until 1881, three years after the time
stipulated for the completion of the road, and at a time when the
government had a right to treat the land grant as forfeited,
although the act of forfeiture was not passed for five years
thereafter.
Upon the whole, it does not seem to us that Congress exceeded
its powers in forfeiting this grant. The plaintiff company seems to
have undertaken its great enterprise in building a transcontinental
railroad without adequate appreciation of
Page 165 U. S. 442
the difficulties to be surmounted, which finally caused a total
suspension of its work, and when, in 1880, after the panic of 1873
had spent its force, it resumed operations, the time had already
expired for the completion of the road, and it was only by the
inaction or indulgence of Congress that it was permitted to
proceed. So far as the road was built and accepted by the
government after that time, it was probably entitled to receive its
appropriate land grant, but this was rather a matter of favor than
of strict right. During this long period, from 1871 to 1880, it
should, under its charter, have constructed at least fifty miles
per year, and should have completed the whole road by July 1, 1878.
But it did nothing. After this long inaction of nine years and its
practical abandonment of the work, the company was not in a
position to demand of the government a strict and literal
performance of its obligations when it had so completely failed to
meet its own. While the reservation of some of these lands for the
benefit of the Indian tribes might not have been consistent with
its obligations to extinguish Indian titles, if the company had
been prosecuting its work according to its contract, we do not
think that it is entitled to complain that the government did not
deal with it precisely as if it lived up to its undertaking.
The judgment of the court below must therefore be
Affirmed.
MR. JUSTICE GRAY was not present at the argument, and took no
part in the decision of this case.
