The words "public lands" in legislation refer to such lands as
are subject to sale or other disposal under general laws, and no
other meaning will be attributed to them unless apparent from the
context of or circumstances attending the legislation.
While the power of Congress continues over lands sought to be
acquired under preemption and homestead laws until final payment,
an entryman in actual possession cannot be dispossessed of his
priority at the instance of an individual.
While a grant of right of way may take effect as of the date of
the grant, that date must be found in the act prescribing the
finally adopted route.
In this case, the rights of a
bona fide settler holding
a patent under preemption law and his grantee
held
superior to those of the railroad company under the Act of July 1,
1862, 12 Stat. 489, 494, granting public lands for a railway right
of way.
76 Kan. 255 affirmed.
The admitted facts are that, on April 22, 1861, Bernhard Blou
settled upon and improved the Northeast Quarter of Section 12,
Township 14 South, of Range 3, in Saline County, Kansas, and on May
13, 1861, filed the declaratory statement required by the
preemption laws. Blou, by occupation, cultivation, and improvements
preserved all his rights under the preemption until September 5,
1865, when, having made no payment or final proof, he changed his
preemption entry to one under the Homestead Act of May 20, 1862. He
continued in occupation, on December 8, 1870, made final proof
under his homestead entry, and, on March 15, 1872, received a
patent.
By the Act of July 1, 1862, the general Union Pacific Railroad
Act, 12 Stat. 489, 494, c. 120, the Leavenworth, Pawnee &
Western Railroad Company, whose name was changed to the Union
Pacific Railroad Company, Eastern Division,
Page 215 U. S. 387
and thereafter to the Kansas Pacific Railway Company, was
granted a right of way 200 feet in width on each side of its road,
through the public lands of the United States. The plaintiff in
error, hereinafter called the defendant, has succeeded to the
right, title, and interest of the Leavenworth Company. The route of
the company, as prescribed by the act, ran from Missouri up the Kaw
River until it reached the Republican River, and then north along
the left bank of that river to intersect with the one hundredth
meridian in the Territory of Nebraska. On July 17, 1862, the
company filed its map of general route, and caused the lands within
the limits of fifteen miles thereof on either side of the proposed
route to be withdrawn from sale. Under the amendatory act of July
2, 1864, 13 Stat. 356, c. 216, the company filed another map,
designating the same general route. Neither of these routes came
within forty-five miles of the tract in controversy. Among the
changes in the last named act is one providing in § 3 for the
condemnation of a right of way 200 feet wide through land occupied
by the owner or claimant. The Act of July 3, 1866, 14 Stat. 79, c.
159, changed the route to extend westwardly towards Denver. Under
this act. the company located and constructed its road westwardly
along the Smoky Hill River instead of northwestwardly along the
Republican River, and, as located and constructed, the road passed
through the quarter section which Blou was then seeking to acquire
under the homestead law.
On January 20, 1873, Bernhard Blou executed and delivered to the
Kansas Pacific Railway Company, the successor of the Leavenworth,
Pawnee & Western Railroad Company, a deed for a right of way
through said quarter section, which deed the railway company
accepted, and paid him the consideration named in it. The land in
controversy is a strip 150 feet wide, lying immediately south of a
line fifty feet south of the center of the track of the defendant
through the quarter section. On November 10, 1882, Blou sold and
conveyed to John Erickson, by warranty deed, all that part of
the
Page 215 U. S. 388
quarter section lying south of the railroad track, containing
101 acres. The defendants in error, hereinafter called the
plaintiffs, derive title from Erickson. The plaintiffs and those
under whom they claim had exclusive possession of the land in
question from May, 1861, to August, 1902; broke and cultivated it,
and paid all taxes assessed upon it since the issue of the patent.
In August, 1902, the defendant fenced and took possession of the
tract in controversy, whereupon this action to recover possession
was commenced by the plaintiffs. The court found in their favor,
and rendered judgment accordingly. This judgment was affirmed by
the supreme court of the state (
Union Pacific R. Co. v.
Harris, 76 Kan. 255), and thereupon the case was brought here
on error.
MR. JUSTICE BREWER delivered the opinion of the Court.
The grant of the right of way was "through the public lands."
What is meant by "public lands" is well settled. As stated in
Newhall v. Sanger, 92 U. S. 761,
92 U. S. 763:
"The words
public lands' are habitually used in our legislation
to describe such as are subject to sale or other disposal under
general laws." See also Barker v. Harvey, 181 U.
S. 481, 181 U. S. 490;
Minnesota v. Hitchcock, 185 U. S. 373-391.
If it is claimed in any given case that they are used in a
different meaning, it should be apparent either from the context or
from the circumstances attending the legislation. While the power
of Congress over lands which an individual is seeking to acquire
under either the preemption or the homestead law remains until the
payment of the full purchase price required by the former law or
the full occupation prescribed by the
Page 215 U. S. 389
latter, yet, under the general land laws of the United States,
one who, having made an entry, is in actual occupation under the
preemption or homestead law, cannot be dispossessed of his priority
at the instance of any individual.
Hastings &c. Railroad.
Co. v. Whitney, 132 U. S. 357,
132 U. S.
363-364. In other words, one who has taken land under
the preemption or homestead law acquires an equity of which he
cannot be deprived by any individual under the like laws. Now at
the time of the passage of the Act of July 3, 1866, Blou was and
had been, for several months, in actual occupation under the
homestead law. Did Congress intend by its legislation to deprive
him of that equity which he had under the general land laws as
against anyone proceeding under those laws?
Any possible rights of the railroad company in this land
commence with the Act of July 3, 1866, for while the acts of 1864
and 1866 were in amendment of the act of 1862, yet the route
prescribed by the acts of 1862 and 1864 was far to the east of this
land, and only by the act of 1866 was the company authorized to
construct a road through or near it. True, as held in
Railroad
Company v. Baldwin, 103 U. S. 426;
Bybee v. Oregon & California Railroad Company,
139 U. S. 663,
139 U. S. 679;
Northern Pacific Railway Company v. Hasse, 197 U. S.
9, the grant of the right of way is absolute, and taking
effect as of the date of the grant. But that date must be found in
an act prescribing the finally adopted route.
A case much relied upon by the railroad company, as showing the
intent of Congress in its grant of the right of way to the Union
Pacific Railroad Company and its tributaries, is
Union Pacific
Ry. Company v. Douglass County, 31 F. 540. In it it was
held:
"It was the evident intention of Congress, by the Act of July 1,
1862, 12 Stat. 491, giving a right of way to the Union Pacific
Railroad Company, to grant such right of way through those lands
which, by surveys, should be found to be sections 16 and 36, the
school sections which it intended to give to the future State of
Nebraska, pursuant to the provisions of the
Page 215 U. S. 390
organic act of 1854, 10 Stat. 283, creating the Territory of
Nebraska."
In other words, it was held that, although Congress had, in
1854, created the Territory of Nebraska, with the provision that,
when the lands within it were surveyed, sections 16 and 36 in each
township should be reserved for school purposes, it meant by the
act of 1862 to grant a right of way to the railroad company through
lands which should thereafter be found to be those sections. But
that decision does not reach to the precise question here
presented, and many of the reasons which led to it are inapplicable
here. It was well known that a large part of western Nebraska was,
at the time of the passage of the act of 1862, not only unoccupied
but unsurveyed. The speedy construction of the railroad to the
Pacific was desired, and nothing was said about a condemnation of
the right of way. By the amendatory act of 1864, however, provision
was made for such condemnation through land occupied by an owner or
claimant. In
Washington & Idaho Railroad Company v.
Osborn, 160 U. S. 103, it
appeared that Osborn was a settler upon unsurveyed public land, and
had placed improvements thereon, and intended when the surveys were
made to preempt the same under the preemption laws of the
government. The railroad company was vested by the Act of March 3,
1875, 18 Stat. 482, c. 152, with a right of way through the public
lands of the United States, subject to the exception of "lands
within the limits of any military park or Indian reservation, or
other lands specially reserved from sale." Osborn did not come
within the terms of this exception. The Act of March 3, 1875,
authorized the legislature of any territory to provide the manner
in which private lands and possessory claims of lands of the United
States might be condemned, and further, that, when no provision
should have been made, such condemnation might be made in
accordance with § 3 of the Act of July 2, 1864,
supra. And upon this the Court, sustaining Osborn's claim
of payment for the right of way, said (p.
160 U. S.
109):
Page 215 U. S. 391
"It must therefore be conceded that Osborn did not, by
maintaining possession for several years and putting valuable
improvements thereon, preclude the government from dealing with the
lands as its own and from conferring them on another party by a
subsequent grant."
"On the other hand, it would not be easy to suppose that
Congress would, in authorizing railroad companies to traverse the
public lands, intend thereby to give them a right to run the lines
of their roads at pleasure, regardless of the rights of
settlers."
It is true as suggested in
Western Pacific Railroad Company
v. Tevis, 41 Cal. 489, 493, that the condemnation proceedings
named by the Act of July 2, 1864, were in territorial courts,
whereas Kansas at that time was a state. But undoubtedly the
thought of Congress was the protection of an owner or claimant by
condemnation proceedings, and not in what courts those proceedings
should be had.
Further, "this right of way through school sections had been
accepted without challenge for twenty years." This indicated the
general understanding, and was significant. The contrary appears
here. The railway company not only did not disturb the possession
of the settler for nearly forty years, but, on the other hand,
purchased and paid him for a right of way through the tract.
We are of opinion that the case of
Crier v.
Innes,160 U.S.
103, is, as respects the case at bar, inconsistent with that in
the 31st Fed. Reporter, and must be held to have, to that extent,
overruled it. We do not think that it would be profitable to cite
the many other cases which touch the question before us more or
less closely, or to seek to point out the differences between them
and this, or to notice all the general expressions which are to be
found in them.
We are of opinion that the Supreme Court of Kansas did not err,
and its judgment is
Affirmed.
