The Act of March 2, 1899, c. 377, 30 Stat. 993, in providing for
conveyance to the United States by the Northern Pacific Railroad
Company of lands within the Mount Ranier National Park in exchange
for public lands to be selected elsewhere, is to be construed as
extending to that company's successor in title, though no successor
is named, and the Northern Pacific Railway Company, recognized as
such successor by the Land Department both in the making of the
conveyance of base lands and in the enjoyment of the right of lieu
selection, is not to be denied that right upon the hypothesis that
the Northern Pacific Railroad Company had ceased to exist before
the date of the act.
In surveying and reporting on public lands, a deputy surveyor
described them as suitable for grazing, if cleared, but more
valuable for timber at the time. This having been accepted and
acted upon by the Land Department as a description of the lands as
nonmineral,
held that they were to be regarded as
"classified as nonmineral at the time of actual government survey,"
for the purposes of lieu selection by the Northern Pacific Railway
Company under the Act of March 2, 1899,
supra.
Whether a preliminary lieu selection of unsurveyed public land
may be said to designate the tract "with a reasonable degree of
certainty," under the Act of March 2, 1899,
supra, is a
question in the nature of a question of fact, to be determined upon
the circumstance of each case. A description in terms of future
survey may suffice if the land may be located therefrom with the
aid of an adjoining survey already made.
Semble that the rule limiting inquiry in this Court to
questions presented to the court below (
Montana Railway Co. v.
Warren, 137 U. S. 348) is
not confined to questions of procedure, and is not inflexible.
221 F. 30 affirmed.
Page 244 U. S. 91
Suit by appellant West (he was plaintiff in the court below, and
we shall so refer to him) against appellees, the Edward Rutledge
Timber Company and the Northern Pacific Railway Company (to be
referred to as the timber company and railway company,
respectively), to have plaintiff declared the owner of certain
described lands, the railway company and the timber company decreed
to hold title thereto in trust for him, to compel a conveyance to
him, and to have his title to the lands quieted.
Plaintiff alleged himself qualified to locate and settle upon
the lands, they being then unsurveyed and vacant, unoccupied, and
unreserved lands belonging to the United States, as to which no
claim of right or title to or interest in them had been made by any
person, nor was there any evidence whatsoever upon the lands or any
part thereof, or in the United States land office for the district
(Coeur d'Alene Land District), or in the General Land Office in
Washington showing any claim, right, title, or interest in any
other person, nor were there any marks, blazes, notices, or any
other evidence of the location, selection, claim, or possession
marked or traced upon the ground, or upon or near the same, nor had
the boundaries thereof been traced or located by reference to any
natural objects or monuments of any kind or character.
That, on July 17, 1905, the official plat of the survey of the
lands was filed in the local land office in Coeur d'Alene City,
Idaho, and on that day the lands became open to entry under the
homestead laws of the United States, and on that day plaintiff duly
made application to enter them under the homestead laws, which
application was rejected by the local land office, and, on May 10,
1910, the order of rejection was approved by the Secretary of the
Interior, and the case finally closed.
That, on June 21, 1901, the railway company filed in the General
Land Office its selection list No. 61, which contained
Page 244 U. S. 92
the following pretended description, to-wit, "the Southeast
Quarter of Section 20, Township 44 north, Range 3 E., B.M."
That the description was wholly imaginary, and that no lands in
the State of Idaho or elsewhere were or could be so designated or
described, for the reason that, at the time of filing the list, no
such survey had been made or attempted. That neither the railway
company nor the timber company knew or pretended to know what lands
were referred to, or knew that, in the event of a survey, the
description would be applied to the lands occupied by plaintiff.
That the description was wholly insufficient to locate the lands or
any part or parcel thereof, rendering the list and selection of the
railway company wholly void and of no effect whatsoever.
That on October 10, 1910, a patent to the lands was issued to
the railway company.
That (this on information and belief) the railway company
conveyed the lands to the timber company, and that company now
claims to have the legal title to the same.
That neither the railway company nor the timber company, nor any
agent or employee of either, has ever been in possession of the
lands, but plaintiff, ever since May 15, 1903, has been and now is
in possession thereof; that neither the railway company nor the
timber company has ever complied with the laws of the United States
so as to entitle either of them to claim any interest in or right
to the lands as against plaintiff.
That the decision of the local land office and the successive
approval thereof by the Commissioner of the General Land Office and
the Secretary of the Interior were and are wrongful, unlawful, and
based upon an erroneous construction of the law, and upon a
statement of facts concerning which there was and is no
conflict.
That, at the time the patent was issued to the railway
Page 244 U. S. 93
company, plaintiff was and now is the owner of the lands, and
the issue of the patent to the railway company was contrary to and
without authority of law, and in violation of plaintiff's rights;
that the railway company was without any right or authority at law
to select or claim the lands or any part thereof, and that the Act
of Congress of March 2, 1899, upon and by virtue of which the
railway company based its right to select and claim the lands, is
unconstitutional and void, and confers no right whatsoever upon the
railway company to select or claim the lands of any part thereof
against plaintiff.
The answer of the timber company admitted certain allegations of
the bill of complaint, but denied that the lands were vacant and
open to settlement, or that they were unclaimed or unsegregated or
not marked or traced by boundaries, and alleged that the fact of
their appropriation and segregation appeared on the records of the
local land office and of the General Land Office, and that the
boundaries and lines of survey were duly and plainly traced and
marked out upon the lands and located by monuments long prior to
the time of plaintiff's settlement thereon, and that plaintiff had
full knowledge thereof and did not enter upon the lands in good
faith, but only in the hope that the claim of the timber company
and railway company might be defeated on technical grounds.
That, on June 21, 1901, the railway company made selection of
the lands under the provisions of the act of Congress entitled, "An
Act to Set Aside a Portion of Certain Lands in the Washington Now
Known as the Mount Ranier National Park," approved March 2, 1899,
30 Stat. 993, in lieu of an equal quantity of land relinquished to
the United States pursuant to the provisions of the act. That such
selection was duly made in accordance with the conditions of the
act and the rules and regulations of the Land Department, and
described
Page 244 U. S. 94
as required by the act, and the selection was in all respects
regular.
That on July 17, 1905, the official township plat was filed in
the local land office, and the railway company, in accordance with
the provisions of § 4 of the act of Congress, filed a new
selection list which conformed to the provisions of the act and the
rules and regulations of the Land Department.
That, at the time plaintiff made his alleged settlement upon the
lands, they had been surveyed and the lines of survey traced, and
all other conditions are alleged to have been satisfied.
The timber company prayed that it be dismissed with costs.
The answer of the railway company was substantially the same as
that of the timber company.
To the issues thus framed the evidence was addressed, upon which
a decree was entered for defendants dismissing the bill, neither
party to recover costs or disbursements from the other. 210 F. 189.
It was affirmed by the circuit court of appeals. 221 F. 30.
MR. JUSTICE McKENNA, after making the above statement, delivered
the opinion of the court:
The controversy in the case turns on the construction and
application of the act of Congress. Because of it, the land
offices, local and general, rejected plaintiff's application to
enter the lands as a homestead. By virtue of it the railway and its
grantee, the timber company, assert
Page 244 U. S. 95
title. Its primary purpose was to set aside certain public lands
as a national park, to be known as the Mount Ranier National Park.
An obstacle to the purpose was a grant of the desired lands to the
Northern Pacific Railroad Company, and their relinquishment had to
be provided for. This was done (§ 3) by authorizing the
company to select an equal quantity of public lands elsewhere, or,
more specifically, within any state into or through which the
railroad ran. There was a qualification of the character of the
lands to be selected. They were to be
"nonmineral public lands, so classified as nonmineral at the
time of actual government survey, which has been or shall be made,
of the United States not reserved and to which no adverse right or
claim shall have attached or have been initiated at the time of the
making of such selection."
It was provided (§ 4) that, upon the filing by the railroad
company of the selection at the local land office, and payment of
fees prescribed by law in analogous cases, and the approval by the
Secretary of the Interior, he should cause a patent to issue to the
company, conveying to it the lands so selected; that,
"in case the land so selected at the time of selection be
unsurveyed, the list filed by the company shall describe such tract
in such manner as to designate the same with a reasonable degree of
certainty,"
and that, within thirty days after the tract shall have been
surveyed and the plats thereof filed, a new selection shall be
filed by the company, describing the tract according to such
survey. And further, that in case the tract as originally selected
and described in the list filed in the local land office shall not
precisely conform to the lines of the official survey, the company
shall be permitted to describe such tract anew so as to work such
conformity.
Construing the act by its words, there would seem to be no
difficulty in determining its meaning. It would seem to be simple
in purpose and clear in provision to accomplish
Page 244 U. S. 96
the purpose. But plaintiff raises various questions upon it. He
asserts: (1) that the grant was to the Northern Pacific Railroad
Company, and could not be availed of by its successor through
foreclosure, the Northern Pacific Railway Company; (2) that the
lands were classified as mineral under the Act of Congress of
February 26, 1895, 28 Stat. 683, and the classification approved by
the Secretary of the Interior March, 1901, and, the surveyor having
failed to make any classification of the lands in terms as
nonmineral, they were not subject to selection; (3) that, if the
first and second contentions be untenable, the lands were not
described "with a reasonable certainty" so as to bar the rights of
settlers in good faith, without actual or constructive notice.
(1) The argument advanced to support this proposition is that,
by the foreclosure proceedings, the Northern Pacific Railroad
Company ceased to exist, and if everything it had or had an
interest in did not go out of existence with it, at least its
rights under the Act of 1899 did, and yet counsel say plaintiff has
nothing to do "with the question whether the conveyance of the
lands to the United States under the provisions of the act conveyed
a valid title." It would be somewhat anomalous indeed if the act
conveyed to the United States a valid title, but did not convey to
the railroad anything substantial that could be transferred by sale
under the decree of a court to the successor of that company. We
might ask the question, where in the world were the rights conveyed
to the railroad company left, and. if left at all, by whom were
they to be enforced or availed of?
We agree with the district court that, as a mere matter of
construction, the contention of plaintiff must be rejected. In
July, 1896 (
Northern Pacific R. Co. v. Boyd, 228 U.
S. 482,
228 U. S. 490;
Northern Pacific R. Co. v. United States, 176 F. 706),
three years prior to the act of Congress, the railway company had
become successor to the
Page 244 U. S. 97
railroad company, its vendor through the foreclosure proceedings
of the lands the government desired, and yet the latter company was
designated in the act as the company to select the lands in
compensation for those desired and taken by the government for the
Mount Ranier National Park. It may be, as said by the district
court, a matter of speculation why the railroad company, rather
than the railway company, was named as grantee, but it is certain
it was done in recognition of rights, and not in mere jugglery to
obtain lands for the National Park and convey nothing to either
company in return -- nothing to the railroad company because,
according to the contention, it had gone out of existence; nothing
to the railway company because, according to the contention, it had
not succeeded to the rights of the railroad company. On the
contrary, we must assume that the act was passed and the railroad
company selected to consummate the exchange either by itself or by
its successor, the railway company, or by both. And this was done,
and the two companies and the trustees of the railway company's
mortgage joined in a deed of reconveyance to the United States. And
this purpose of the act and what was done under it was recognized
by the Land Department. Davenport v. Northern Pacific R. Co. 32
L.D. 28; Ferguson v. Northern Pacific R. Co. 33 L.D. 634; Idaho v.
Northern Pacific R. Co. 37 L.D. 135, 138.
See also Delany
v. Northern Pacific R. Co. 45 L.D. 6. It is pertinently said by
counsel for the railway company:
"The government itself is satisfied with its title, and
certainly it cannot, while retaining that title, deny to those from
whom it was obtained the lands offered in exchange."
(2) As we have seen, the right was to select "an equal quantity
of nonmineral public lands, so classified as nonmineral at the time
of actual survey." The lands are in fact nonmineral, but the
contention is that they were not so classified at the time of
actual survey.
Page 244 U. S. 98
The deputy surveyor who made the survey reported that the lands,
if cleared, would be suitable for grazing, but at the time of the
report, were more valuable for their timber. This, it is contended,
is not a classification of the lands as nonmineral; that it was not
a classification, but an omission to classify -- negative, not
affirmative; inferential, not positive -- and therefore not a
compliance with the statute. We cannot concur. The report was
accepted by the Department as a description of the lands as
nonmineral. They could be made suitable for grazing, was the
report; pending that time, they were more valuable for their
timber. There was positive description of their character; words
excluding some other character were not necessary. Classification
is characterization through the selection of some quality or
feature, and therefore lands may be classified as pasture
(grazing), timber, arable, or mineral. It is determined by surface
indications. Minerals may be hidden under any surface, but a
surveyor is not expected to explore for them, that he may include
or exclude reference to them in his reports. Such character is
exceptional, besides, and considered by the Land Office as absent
if not noted.
*
The contention that the lands were classified as mineral under
the Act of February 26, 1895, is answered by the admission made at
the trial that the records do not show it.
(3) The act of Congress authorized the selection of an
unsurveyed tract, but required it to be described "in such manner
as to designate the same with a reasonable degree of certainty,"
and it was provided that, when surveyed, a new list was to be
filed, describing the tract "according to such survey."
The lands, we have seen, were designated by sectional
Page 244 U. S. 99
number, township, and range, and it is contended that such
designation -- "terms of future survey," as counsel term it -- was
not a description "with a reasonable degree of certainty."
This seems to have been the only contention submitted to the
court of appeals, and, upon careful consideration, the court
decided against the contention upon the Act of 1899, and, in
analogy, upon other acts of Congress in relation to the public
lands, and also upon the rules and decisions of the Land
Department. It is not necessary to repeat the reasoning of the
court. What was a description having "a reasonable degree of
certainty" was to be determined by the circumstances. It was in the
nature of a question of fact, and had tests for decision, as the
court of appeals pointed out. It had the aid of an adjoining
survey, and the lands could be readily located from such survey. It
was pointed out that the act of Congress did not require exactness;
it contemplated a subsequent readjustment.
"The filing of the first list is in a sense preliminary to
obtaining the patent. It initiates the right, and not as much
particularity and exactness is ordinarily required as where final
stages are to be observed in clearing up and completing the
transaction. In fact, by contemplation of the statute, the new
selection is required to conform with the established survey, and
thus to correct the description in the primary selection. By
reasonable intendment, therefore, we are impressed that the
description contained in the railway company's list No. 61, under
the conditions prevailing of the survey of Township 45 to the north
and the proximity of the land in question thereto, designated the
land with a reasonable degree of certainty, and must be held
sufficient as a matter of law."
For the premises from which this excerpt is the conclusion, we
refer to the opinion.
The court of appeals said that the question of the sufficiency
of the description was "the single question
Page 244 U. S. 100
urged" for its decision, and counsel for defendants contend that
no other question is open to our review, and cite
Montana
Railway Co. v. Warren, 137 U. S. 348,
137 U. S. 351.
Plaintiff replies that the principle of that case applies only to
questions of procedure, and not to questions of jurisdiction or the
foundation of the right, adducing
Rosen v. United States,
161 U. S. 29;
Old Jordan Mining & Milling Co. v. Societe Anonyme des
Mines, 164 U. S. 261;
Gila Valley, Globe & Northern Ry. Co. v. Hall,
232 U. S. 94.
See also Magruder v. Drury, 235 U.
S. 106,
235 U. S.
113.
The distinction between questions seems to be artificial. The
essential circumstance would seem to be that a review is sought of
that which was not decided, not submitted at all, or withdrawn from
submission, and which, if it had been submitted, might have been
decided in favor of the appealing party.
However, in deference to the earnestness of counsel, we have
considered the questions.
Affirmed.
* Davenport v. Northern Pacific R. Co. 32 L.D. 28; Bedal v. St.
Paul, M. & M. R. Co. 29 L.D. 254; Idaho v. Northern Pacific R.
Co. 37 L.D. 135; Re St. Paul, M. & M. R. Co. 34 L.D. 211; Re
Northern Pacific R. Co. 40 L.D. 64.
