Nelson v. Northern Pacific Railway Company/Dissent Brewer

by by John Marshall Harlan

United States Supreme Court

188 U.S. 108

Nelson  v.  Northern Pacific Railway Company

 Argued: October 16, 17, 1902. --- Decided: January 26, 1903

Mr. Justice Brewer, with whom Mr. Justice Brown and Mr. Justice Shiras concur, dissenting:

I dissent from the judgment in this case. It overrules a unanimous judgment of this court, one which for nearly twenty years has been a guide to the Land Department in the construction of the Northern Pacific railroad grant. Further, in effect it declares that an entire section in the act of Congress making the grant, a section which from the inception of the work of construction has always been regarded by the parties interested as a provision intended to secure to the company the full measure of lands granted, is meaningless, and gave the company absolutely no protection whatever.

It is admitted that the company fixed the general route of its road coterminous with the road in controversy and within 40 miles thereof, by filing a plat of such route with the Commissioner of the General Land Office on August 20, 1873, and that on November 1, 1873, the odd-numbered sections within the 40-mile limits of this route were by the Land Department withdrawn from sale or entry and the even-numbered sections increased in price to $2.50, notice of which order was immediately filed in the local land office. In 1881, eight years thereafter, the plaintiff in error for the first time entered upon the lands and commenced its occupation. It is also admitted that by construction of its road the company has perfected its title to its land grant. Now, when the company filed its map of general route and obtained from the Land Department the order of withdrawal, it believed that it acquired something. It did not suppose that it was doing a vain and useless thing. It did not believe that Congress had cheated it with a delusive expectation of a benefit which it did not intend to give.

Was it justified in such belief? To answer this it is well to look back to the condition of things at the time the granting act was passed. In 1862, Congress created the Union Pacific Railroad Company to build a railroad from the Mississippi river to the Pacific ocean along the only then frequented line of travel. It made to the company a land grant, one fourth the size of the Northern Pacific grant, and agreed to lend it $16,000 and upwards per mile to aid in the construction, taking a first mortgage on the road as security for the loan. Notwithstanding this grant of land, this loan of money, and the fact that the road was to be along the only frequented line of travel, capital could not be induced to invest in the enterprise. Two years thereafter, and in 1864, Congress passed an amendatory act which doubled the land grant, making it haif as large as that of the Northern Pacific, and agreed to take as security for its loan a second mortgage, giving to the company the right to place a first mortgage on the road in an amount equal to the government loan. And only after this large financial assistance and increased land grant was the work of construction commenced. On the same day Congress passed the act incorporating the Northern Pacific Railroad Company and making to it its grant. It promised no assistance in money, but only in lands. In order to give the company assurance that it would obtain its full grant it placed in the act § 6, the section which this court now holds is absolutely ineffectual therefor. That section reads:

'And be it further enacted, 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; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' approved May, twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.'

At the time of the passage of the act the entire body of the country from the western boundary of Minnesota to the Cascade Range was unoccupied, untraveled, and almost wholly unexplored. As said by Senator Hendricks, when the bill was before the Senate: 'Everybody can see at a glance that it is a work of national importance. It proposes to grant lands in a northern latitude where, without the construction of a work like that, the lands are comparatively without value to the government. No person acquainted with the condition of that section of country supposes that there can be very extensive settlements until the government shall encourage those settlements by the construction of some work like this.' And by Senator Harlan, the chairman of the Committee on Public Lands: 'The Committee on Public Lands agree to report this bill favorably on account of the vast consequence that will attach to the completion of the road. The land is to be conveyed to the company only as the road progresses. The committee were of opinion that if the road should be built the government could well afford to give one half the land, for the distance of 40 miles on each side of the road, to secure its completion. If it should not be built, no lands will have been conveyed.' In other words, the proposition was to give half of the lands within 40 miles of the road to the company,-not to give as much land as would be equal to half the lands within 40 miles of the road, but to give half of those lands. The difference is obvious. The construction of a railroad increases the value of contiguous lands. Congress doubles the price of the even-numbered sections which it retains. It makes no little difference to a company whether it receives lands along the line of the road which it constructs, lands which have been increased in value by reason thereof, or an equal amount of lands hundreds of miles away and not so increased in value.

The withdrawal was not left to the discretion of the company, but was to be made by the President, after the general route had been fixed, and 'as fast as may be required by the construction of said railroad.' True, the language is that he 'shall cause the lands to be surveyed;' but this, coupled with the prohibition against sale or entry, was tantamount to a direction to withdraw, and has always been so regarded by the Land Department and all parties interested. Thus he was to determine whether the time had arrived for a withdrawal. The withdrawal was in fact made. The President exercised his judgment and decided that the time had arrived for a withdrawal, and the Land Department through all its officials proceeded to act accordingly. The direction in the withdrawal was 'to withhold from sale or entry all the odd-numbered sections falling within these limits.' Surely this action of the President and the Land Department is entitled to the highest consideration. As said by Chief Justice Marshall, in Cohen v. Virginia, 6 Wheat. 264, 418, 5 L. ed. 257, 294: 'Great weight has always been attached, and very rightly attached, to cotemporaneous exposition.' See the many authorities on this proposition collected in Fairbank v. United States, 181 U.S. 283, 307, 45 L. ed. 862, 872, 21 Sup. Ct. Rep. 648.

But notwithstanding this section, notwithstanding the action of the executive officers in directing a withdrawal of this land from sale or entry, it is now held by the court that it was subject to homestead entry, and that the entryman acquired a right to obtain title by an entry made eight years after the withdrawal. Of course, as I said, such a ruling nullifies the section. A withdrawal from sale or entry which leaves unaffected the right of purchase or entry is an irreconcilable contradiction. But can there be any reasonable doubt as to the meaning of § 6, or that Congress intended exactly what was done by the executive officers, to wit, the withdrawal of all the odd sections within the 40-mile limit from sale, entry, or pre-emption? The significant words are these: 'The odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company.' Now it is said in the opinion of the majority that § 3 defines what is 'hereby granted' as 'every alternate section' to which 'the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed,' that those lands, and those only, are the ones not liable to sale, entry, or pre-emption, except by the company. It will help to write out the sentence with a substitution for the words 'hereby granted' of the definition thereof which is presented, and it will read substantially as follows: The odd sections of land within the withdrawal limits to which the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of the road is definitely fixed, shall not from the time of the withdrawal until the filing of the map of definite location be liable to sale, entry, or preemption before or after they are surveyed, cxcept by the company. Or, to put it in another form, the odd sections within the withdrawal limits, which no one purchases or enters before the filing of the map of definite location, shall not be purchased or entered by anybody except the company. It would be a failure of due respect to Congress to use language adequately expressive of the absurdity of such legislation. But Congress never meant any such thing. While it may be that the use of the words 'hereby granted' was unfortunate, yet what was intended is clear. Congress intended to grant the odd-numbered sections and retain the even-numbered, and while in the granting clause some qualifications were placed in respect to the odd-numbered sections, in order to protect individual rights then existing, or which Congress might thereafter specifically create, yet as Congress was here not attempting a precise definition of what should pass by the grant, it used the term 'granted lands' as descriptive generally of the odd-numbered sections, to distinguish them from the lands retained, the even-numbered sections. It obviously intended that no rights should be acquired, either by sale, entry, or pre-emption, to any of the odd-numbered sections after the filing of the map of general route, and this whether the lands were surveyed or unsurveyed. This is made clear by the last sentence in the paragraph. It says, 'and the reserved alternate sections shall not be sold by the government at a price less than $2.50 per acre.' Clearly that meant all the even-numbered sections, and not simply those which happened to be alternate to odd-numbered sections passing to the company. The truth is that in § 3 Congress defines specifically and carefully the lands which it granted. Its attention was directed in that clause to the matter of definition. While in § 6 it was not attempting to define, but to provide for a withdrawal before the filing of the map of definite location, and was simply endeavoring to make effective rights which it intended should accompany such withdrawal.

Again, in Hewitt v. Schultz, 180 U.S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, it was held that the withdrawal directed by Congress in § 6 coupled with the provision extending homestead and pre-emption rights to all other lands on the line of the road, created an implied prohibition of any withdrawal of lands within the indemnity limits provided in § 3. It is unquestioned that, whenever a grant had been made of lands, the power of the Land Department to withdraw such body of lands, as might seem reasonably necessary for the satisfaction of the grant, had been frequently upheld by this court. See the long list of cases cited in the dissenting opinion on page 159. There is no express prohibition of like action by the Land Department in respect to lands within the Northern Pacific indemnity limits, and the judgment was based solely on the implied prohibition above referred to, The opinion of the court rested mainly on the rulings of the Land Department, as primarily expressed in the opinion of Secretary Vilas in Northern P. R. Co. v. Miller, 7 Land Dec. 100, from whose opinion large quotations were made, and in respect to rulings of the Land Department generally, it was said, conceding that the question involved was one of doubt (p. 157, L. ed. p. 472, Sup. Ct. Rep. p. 315):

"It is the settled doctrine of this court,' as was said in United States v. Alabama Great Southern R. Co. 142 U.S. 615, 621, 35 L. ed. 1134, 1136, 12 Sup. Ct. Rep. 306, 308, 'that, in case of ambiguity, the judicial department will lean in favor of a construction given to a statute by the department charged with the execution of such statute, and, if such construction be acted upon for a number of years, will look with disfavor upon any sudden change, whereby parties who have contracted with the government upon the faith of such construction may be prejudiced."

Turning to the opinion of Mr. Secretary Vilas, we find him saying (pp. 110, 111, 113, 119):

'But a peculiarity in legislation of this character is found in the 6th section of the act, in which a provision authorized the 'general route' to be fixed, and required lands to be surveyed for 40 miles in width on both sides of the entire line so fixed, and directed that the odd-numbered sections granted by the act should not be liable to sale or entry or pre-emption before or after they were surveyed, except by said company. In the language of the Supreme Court, in Buttz v. Northern P. R. Co. 119 U.S. 71, 30 L. ed. 336, 7 Sup. Ct. Rep. 100: The act of Congress not only contemplates the filing by the company, in the office of the Commissioner of the General Land Office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not, at that time, been reserved, sold, granted, or otherwise appropriated, and are free from pre-emption, grant, or other claims or right, but it also contemplates a preliminary designation of the general route of the road, and the exclusion from sale, entry, or pre-emption of the adjoining odd sections within 40 miles on each side until the definite location is made.

'The facts which have been recited show beyond all reasonable question that the privilege given to the company of fixing, first, a line of general route, upon the basis of which the odd-numbered sections within 40-mile limits on either side were to be withdrawn from sale or entry or pre-emption before and after survey, was fully exercised by the company in Washington territory, from the eastern boundary to the mouth of the Walla Walla river, and thence along the Columbia to the first range line west of the Willamette principal meridian, and thence north to the international boundary, by its filing and the department's approval of its maps of location on the 30th of July, 1870. These maps and the action taken thereon fully met every requirement of the statute in that behalf. The company, by resolution, fixed this line as the basis of withdrawal, made its formal request that the land should be withdrawn thereon, the line was plainly and sufficiently described, the department accepted it, and applied the statutory consequence by directing the local land officers in Washington territory to withdraw the odd-numbered sections along that line as far north as the town of Steilacoom, first, for a width of 20 miles on either side, and, later in the same year, within the limit of an additional 20 miles; and also by increasing the minimum price of the even-numbered sections within the same limits to $2.50 per acre. Thus, the action of the company and of the department co-operated to give official determination to the fact upon which the statute became applicable, both to withdraw the odd-numbered sections and to double the minimum price of the even-numbered sections, and both effects were formally recognized and declared. It cannot be doubted that, had no other action been taken before the line of the road for construction was definitely located, this action in regard to the line of the general route of 1870 must have remained continuously operative upon all lands within the limit of 40 miles on either side of the line so established. So obvious is this, indeed, that from the mouth of the Walla Walla river, westwardly along the Columbia, that withdrawal remains to this day obligatory and operative by force of the statute and of that location. . . . By virtue of that withdrawal the odd-numbered sections within 40 miles of all that portion of the route lying east of the Columbia remained for nearly two years at least segregated from the public domain, and all purchasers of the even-numbered sections were required to pay the double minimum price for the land they bought. . . . Having provided the condition upon which a withdrawal of the public domain should be operative upon a preliminary general route for the benefit of this company, without any latitude of authority for any other, the legislative will must be regarded as exclusive of any other. . . . Thus, the meaning of the act appears to be that the provisional line of general route should, in the first place, be taken as the line upon which the grant was made, and, during the period while no other line was fixed than such line of general route, the lands in the odd-numbered sections within 40 miles should be taken as the granted lands, and, therefore, they are declared by the statute to be the 'hereby granted' lands.' (The italics are mine.)

Thus the court held that, because by § 6 the odd-numbered sections were withdrawn from sale or entry, and at the same time it was declared that the homestead and preemption laws should apply to all other lands, there was an implied prohibition upon the Land Department's withdrawal of odd-numbered sections within the indemnity limits. Now it is held that the withdrawal directed by § 6 and made by the Secretary of the Interior was absolutely meaningless and secured nothing to the company. If the withdrawal directed by § 6 intended nothing, accomplished nothing, it should not have been made the basis for an implied prohibition of the hitherto unquestioned power of the Land Department to withdraw lands in indemnity limits. There is an incongruity in the two decisions which, to my mind, is, to use no stronger expression, both sad and startling.

Further, the Land Department did in fact withdraw from sale or entry all the odd-numbered sections within the 40-mile limits of the general route,-and this withdrawal included the tract in controversy as well as the other odd-numbered sections,-and notice thereof was filed in the local land office, and this many years before the plaintiff in error went upon the land. As heretofore stated, the power of the Land Department to withdraw from private entry lands which it has reason to believe may be necessary to satisfy a land grant has never been denied. It is a power which has been exercised again and again from the inception of land grants. In one case (Wolcott v. Des Moines Nav. & R. Co. 5 Wall. 681, 18 L. ed. 689), we sustained a withdrawal made by the department beyond the real terminus of the grant on the ground that there was some doubt where the grant terminated, and therefore the department was justified in making the withdrawal coverany possible conclusion as to such terminus. There was in the Northern Pacific act no prohibition on the Land Department's exercise of this customary power. Indeed, as I have shown, it was held in Hewitt v. Schultz, 180 U.S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, that the express direction to withdraw lands in the place limits was the foundation of an implied prohibition on a withdrawal of lands within the indemnity limits. The purpose and effect of a withdrawal are not to vest any title in the beneficiary of the grant, but to preserve the lands from private entry in order that when the time arrives the grantee may receive the full measure of its grant. As said in Menotti v. Dillon, 167 U.S. 703, 720, 721, 42 L. ed. 333, 339, 17 Sup. Ct. Rep. 945, 951:

'It is true, as said in many cases, that the object of an executive order withdrawing from pre-emption, private entry, and sale lands within the general route of a railroad, is to preserve the lands, unencumbered, until the completion and acceptance of the road. . . . That order took these lands out of the public domain as between the railroad company and individuals, but they remained public lands under the full control of Congress, to be disposed of by it in its discretion at any time before they became the property of the company under an accepted definite location of its road.'

This language was quoted with approval in United States v. Oregon & C. R. Co. 176 U.S. 28, 48, 44 L. ed. 358, 366, 20 Sup. Ct. Rep. 261.

Again, in Northern P. R. Co. v. Musser-Sauntry Land, Logging & Mfg. Co. 168 U.S. 604, 607, 42 L. ed. 596, 597, 18 Sup. Ct. Rep. 205, 206, we said:

'The withdrawal by the Secretary in aid of the grant to the state of Wisconsin was valid, and operated to withdraw the odd-numbered sections within its limits from disposal by the land officers of the government under the general land laws. The act of the Secretary was in effect a reservation.'

And the same doctrine has been affirmed in many cases.

Turning to the rulings of the Land Department, in Hestetun v. St. Paul, M. & M. R. co. 12 Land Dec. 27, 28, it was said by Secretary Noble:

'The legal effect of the withdrawal is to preclude the disposal of the land covered thereby under any of the land laws. In other words, so long as the withdrawal remains in force, the land covered thereby is simply held for the purpose for which the withdrawal was made.'

And again, in the same volume, in Re Chicago, St. P. M. & O. R. Co. (pp. 259, 261):

'In the case of Riley v. Welles [[[154 U.S. 578]] and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166], referred to and quoted in the Shire Case [10 Land Dec. 85], it was said by the Supreme Court that settlement upon and possession of land within the limits of an executive withdrawal were 'without right,' and that the subsequent recognition by the land officers of such settlement and possession, and the permission to the party to make proof and entry under the pre-emption law, and the issuing patent 'were acts in violation of law and void.' This case of Riley v. Welles has never been overruled or modified, but has been referred to and approved in a number of the decisions of the Supreme Court, and must therefore be accepted as expressing the opinion of that tribunal as to the absolute invalidity of settlements upon lands withdrawn by executive order.'

In Re Hans Oleson, 28 Land Dec. 25, 31, Secretary Bliss thus defined the word 'withdrawal:'

'In the nomenclature of the public land laws the word 'withdrawal' is generally used to denote and order issued by the President, Secretary of the Interior, Commissioner of the General Land Office, or other proper officer, whereby public lands are withheld from sale and entry under the general land laws, in order that presently or ultimately they may be applied to some designated public use, or disposed of in some special way. Sometimes these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their making is anticipated.'

And in the same volume (Inman v. Northern P. R. Co.) the same Secretary uses this language (pp. 95, 100):

'From the authorities cited the following rules are clearly deducible: First. Subject only to the control and power of disposition remaining in Congress, an anticipatory withdrawal, whether legislative or executive, during the time it remains in force, withholds the lands embraced therein from other appropriation or disposition, and prevents the acquisition of any legal or equitable title or right by settlement or entry in violation of such withdrawal.'

Similar declarations may be found in almost every volume of the Land Decisions.

In the execution of this Northern Pacific land grant many withdrawals were made as called for from time to time along the line of general route, and the Land Department has uniformly recognized the validity and effect of such withdrawals. In Northern P. R. co. v. Pressey, 2 Land Dec. 551, it appeared that Pressey settled upon a tract within 40 miles of the line of general route; that the lands at the time of his settlement were unsurveyed; that after survey he made application for a homestead entry, and it was held that he acquired no rights by his settlement, inasmuch as the land had been withdrawn by order of the Land Department, Secretary Teller saying (p. 533):

'The settlement by Pressey upon the odd section was clearly in violation of the order of withdrawal, and he could acquire no rights or equities under such a settlement.'

In Northern P. R. Co. v. Miller, 7 Land Dec. 100, a case in which the implied prohibition of the withdrawal of indemnity lands was first distinctly decided in the Land Department, Secretary Vilas said (p. 110) in reference to the withdrawal of lands within the place limits of the line of general route:

'Thus the action of the company and of the department co-operated to give official determination to the fact upon which the statutc became applicable, both to withdraw the odd-numbered sections and to double the minimum price of the even-numbered sections, and both effects were formally recognized and declared. It cannot be doubted that, had no other action been taken before the line of the road for construction was definitely located, this action in regard to the line of the general route of 1870 must have remained continuously operative upon all lands within the limit of 40 miles on either side of the line so established. So obvious is this, indeed, that from the mouth of the Walla Walla river, westwardly along the Columbia, that withdrawal remains to this day obligatory and operative by force of the statute and of that location.

'If authority be wanting to so manifest a proposition, it is found in the following language of the Supreme Court in the case already referred to.'

In McClure v. Northern P. R. Co. 9 Land Dec. 155, in an opinion by Secretary Noble, it was held that, 'when the map of general route was filed, the withdrawal thereunder became at once effective, and reserved from general disposal the odd-numbered sections embraced therein.'

In Northern P. R. Co. v. Collins, 14 Land Dec. 484, it was again decided by the same secretary that 'lands withdrawn for the benefit of said grant are not subject to settlement.'

In Central P. R. Co. v. Beck, 19 Land Dec. 100, which was also a settlement upon unsurveyed land within the place limits of the general route of the road, and in which a withdrawal had been ordered in accordance with the provisions of the act making the grant, Secretary Smith, sustaining the title of the railroad company, said (p. 103):

'I am clearly of the opinion that, after the withdrawal made upon the map of general route, no rights could be acquired adverse to the company by settlement upon the land, and that a settlement so made, even though it existed at the date of the filing of the map of definite location, would not serve to except the land settled upon from the operation of the grant to said company.'

In the very last volume of the Land Decisions (vol. 30, p. 247), in respect to the Southern Pacific Railroad Company, whose granting act contained a similar provision in reference to withdrawal on the filing of a map of general route, it was said by Secretary Hitchcock (p. 249):

'As between individual claimants and the company no claim could be predicated upon settlement or entry made after the filing of the map of general route, and as against such claims the grant in effect was operative from April 3, 1871, the date upon which the map of general route was filed.'

So that from the beginning until the present time in construing this grant and others containing like provision there has been an unbroken line of decisions in the Land Department to the effect that a withdrawal made on the filing of the map of general route prevents any private claims attaching to the odd-numbered sections of land; and this whether the lands were surveyed or unsurveyed. Indeed, when Congress in the 6th section expressly declared that the lands 'shall not be liable to sale or entry or preemption before or after they are surveyed,' it would seem as though it had made every provision which language was capable of expressing to reserve from private entry for the benefit of the railroad company all odd-numbered sections, surveyed or unsurveyed, within the place limits of the line of general route.

I have already quoted from Hewitt v. Schultz in reference to the duty of following, in case of ambiguity, the construction given to a statute by the department charged with the execution of such statute. That doctrine was there applied although it appeared that the practice of the department during the building of the railroad had been one way and only changed after its completion, and the latter construction was upheld by this court as the ruling of the department. It was said (p. 156, L. ed. p. 472, Sup. Ct. Rep. p. 315):

'It was admitted at the hearing that the construction of the Northern Pacific act of 1864 announced by Secretary Vilas had been adhered to in the administration of the public lands by the Land Department. We are now asked to overthrow that construction by holding that it was competent for the Land Department, immediately upon the definite location of the line of the railroad, to withdraw draw from the settlement laws all the odd-numbered sections within the indemnity limits as defined by the act of Congress. If this were done it is to be apprehended that great, if not endless, confusion would ensue in the administration of the public lands, and that the rights of a vast number of people who have acquired homes under the preemption and homestead laws, in reliance upon the ruling of Secretary Vilas and his successors in office, would be destroyed.' Now we have a case in which the ruling of the department has been unchanged from the commencement to the present time,-a ruling which Secretary Vilas in 7 Land Dec. supra, called 'so manifest a proposition,' and it is wholly disregarded. The recent and temporary ruling of the Land Department was in the former case sustained in order, as was said, to protect the settler. Here the continuous practice of the department is disregarded, and the patent issued by it to the railroad company is overthrown.

Still again, the company, by reason of § 6, believing that a withdrawal was to be made which should operate to its benefit, filed a map of general route, and a withdrawal was made of the odd-numbered sections of land. It is now held that such withdrawal did not withdraw the odd-numbered sections from entry and sale, but they remained still open to entry or purchase under the land laws. If that be the true construction, it follows that, whereas, if the company had filed no map of general route, no one would know where its line of road was to be until after it filed the map of definite location, and then the title would attach to all odd-numbered sections not burdened with existing claims. But by filing the map of general route, as it did eleven years before filing the map of definite location, it notified everybody of the proposed route, and so all settlers could take advantage of that knowledge and enter the odd-numbered sections contiguous thereto. Having this knowledge of where the line was to be located, of course settlers would come as near to that line as possible, in order to take advantage of the increased value coming from the construction of the road, and so taking advantage of the notice given would deplete the grant of lands which Congress had intended for the benefit of the company.

But this question has been definitely decided by this court. Buttz v. Northern P. R. co. 119 U.S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep. 100. That was an action brought by the railroad company for the possession of a tract of land within 40 miles of the general route as also of the line of definite location of plaintiff's road. The defendant entered upon the land in October, 1871, he at the time possessing all the qualifications of a pre-emptor and intending to obtain title by pre-emption. At that time the tract was, with others, in the occupation of the Sioux Indians. An agreement for the surrender by the Indians of all their rights was ratified on May 19, 1873. On May 26, 1873, the company filed in the Land Department its map of definite location. The defendant was therefore in occupation of the tract with intent to pre-empt it for seven days after the rights of the Indians had ceased and before the filing of the map of definite location. So if the opinion of the court now announced had prevailed the defendant was entitled to hold that tract as against the company. On the 11th of August, 1873, he presented his application for entry, which was refused, and refused because it was within the 40-mile limit, as shown by a map of general route filed on February 21, 1872. This presents the precise question here involved. The unanimous opinion of the court sustained the action of the Land Department in refusing defendant's application to enter, and confirmed the title of the railroad company. In the course of the opinion, by Mr. Justice Field, it was said (p. 72, L. ed. p. 336, Sup. Ct. Rep. p. 108):

'When the general route of the road is thus fixed in good faith, and information thereof given to the Land Department by filing the map thereof with the Commissioner of the General Land Office, or the Secretary of the Interior, the law withdraws from sale or pre-emption the odd sections to the extent of 40 miles on each side. The object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted. . . . Nor is there anything inconsistent with this view of the 6th section as to the general route, in the clause in the 3d section making the grant operative only upon such odd sections as have not been reserved, sold, granted, or otherwise appropriated, and to which preemption and other rights and claims have not attached, when a map of the definite location has been filed. The 3d section does not embrace sales and pre-emptions in cases where the 6th section declares that the land shall not be subject to sale or pre-emption. The two sections must be so construed as to give effect to both, if that be practicable.'

This decision, rendered seventeen years ago, has never hitherto been overruled. It was reaffirmed in St. Paul & P. R. Co. v. Northern P. R. Co. 139 U.S. 1, 17, 18, 35 L. ed. 77, 84, 11 Sup. Ct. Rep. 389, 394, 395, in which, speaking for a unanimous court, Mr. Justice Field said:

'Besides the withdrawal made by the Secretary of the Interior of lands within the 40-mile limit, on the 13th of August, 1870, preserved the lands for the benefit of the Northern Pacific railroad from the operation of any subsequent grants to other companies not specifically declared to cover the premises. The Northern Pacific act directed that the President should cause the lands to be surveyed 40 miles in width on both sides of the entire line of the road, after the general route should be fixed and as fast as might be required by the construction of the road, and provided that the odd sections of lands granted should not be liable to sale, entry, or pre-emption before or after they were surveyed, except by the company. They were therefore excepted by that legislation from grants, independently of the withdrawal by the Secretary of the Interior. His action in formally announcing their withdrawal was only giving publicity to what the law itself declared. The object of the withdrawal was to preserve the land unencumbered until the completion and acceptance of the road. . . . After such withdrawal no interest in the lands granted can be acquired, against the rights of the company, except by special legislative declaration, nor, indeed, in the absence of its announcement, after the general route is fixed.'

In the opinion of the majority some later cases are referred to which are said to qualify the decision in Buttz v. Northern P. R. Co. But even the slightest attention to what was decided in those cases shows that in no manner do they qualify or limit that decision so far as it affects the present question. Before noticing those cases it is well to consider what was the purpose and effect of § 6. It was not a granting section. It did not purport to give title to anything to the company. Its whole scope and effect was to withdraw from sale, entry, or pre-emption the odd-numbered sections in order that when the company filed its map of definite location it might secure those odd-numbered sections. The grant was made only by § 3 and attached to particular lands when the map of definite location was filed, but the proposition laid down in the Buttz Case-and the proposition I am contending for here-is that this plaintiff in error could acquire nothing by his entry upon an odd-numbered section after the filing of the map of general route and the withdrawal; that the tract was therefore free from a claim of any kind when the map of definite location was filed, and so there was nothing to prevent the railroad company from receiving title.

Now the cases referred to are St. Paul & P. R. Co. v. Northern P. R. Co. 139 U.S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; United States v. Northern P. R. Co. 152 U.S. 284, 38 L. ed. 443, 14 Sup. Ct. Rep. 598; Northern P. R. Co. v. Sanders, 166 U.S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671; Menotti v. Dillon, 167 U.S. 703, 42 L. ed. 333, 17 Sup. Ct. Rep. 945; United States v. Oregon & C. R. Co. 176 U.S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 261; Wilcox v. Eastern Oregon Land Co. 176 U.S. 551, 44 L. ed. 368, 20 Sup. Ct. Rep. 269, and Messinger v. Eastern Oregon Land Co. 176 U.S. 58, 44 L. ed. 370, 20 Sup. Ct. Rep. 271. After quoting from the opinions in some,-the court sums up by saying: 'The cases above cited definitely determine that the railroad company acquired no vested interest in any particular section of land until after a definite location was shown by an accepted map of its line.' This is a proposition among the A, B, C's of public land law and needed no authorities in support thereof. But that proposition throws no light on the question as to the scope of the withdrawal given by § 6, and when the cases themselves are referred to not one of them conflicts with the proposition I have heretofore laid down. I have already shown what was decided in St. Paul & P. R. Co. v. Northern P. R. Co. and need not repeat. In United States v. Northern P. R. Co. it appeared that the Northern Pacific Railroad Company had attempted to locate a line from Portland directly north to Puget sound, and in 1865 had filed a map of the general route thereof. Such a line was not within the authority granted by the act of Congress incorporating the Northern Pacific Railroad Company. On May 4, 1870, Congress made a land grant to the Oregon Central Railroad Company which included some of the lands within the 40-mile limits of the above-mentioned general route. On May 31, 1870, and twentyseven days after the grant to the Oregon Central Railroad Company, Congress passed an act which authorized the Northern Pacific company to construct a line from Portland to Puget sound, with the privileges and grants provided for in the original act of incorporation, and it was held that the rights of the Oregon Central Railroad Company antedated and were superior to those of the Northern Pacific. First in time, first in right, is as to lands within place limits the settled rule of railroad land grants. What possible bearing this decision can have upon the case before us it is hard to conceive. In Northern P. R. Co. v. Sanders the lands in controversy were claimed as mineral lands, and applications for entry of them as such were pending in the Land Department. The court had held in Barden v. Northern P. R. Co. 154 U.S. 288, 38 L. ed. 992, 14 Sup. Ct. Rep. 1030, that mineral lands did not pass under the grant to the railroad company, and that whether they were known or not known to be mineral lands at the time of the filing of the map of definite location was immaterial. Of course, it followed that whether they were known or not known at the time of the filing of the map of the general route was also immaterial. The lands were of such a character as could not in any event pass to the railroad company any more than the evennumbered sections. They were not with drawn by filing the map of general route; they did not pass by filing the map of definite location. The four remaining cases all proceeded upon the one proposition that the mere filing of the map of general route does not preclude Congress from making subsequently thereto and prior to the filing of the map of definite location-that is, prior to the time when title vested in the company-any other specific grant of the reserved lands. In other words, until the proposed grantee shall have done all that is necessary to vest title in it, there remains in Congress the power to make other disposition of the lands. But this was no new doctrine in the public land law. It was laid down in Firsbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; in the well-known Yosemite Valley Case, 15 Wall. 77, sub nom. Hutchings v. Low, 21 L. ed. 82; and has been followed in many cases since. Of course, Congress could, at any time before the filing of the map of definite location and while the title of the company was still inchoate, reserve any of the lands for military or other purposes, or make a specific grant of them to individuals or corporations. But, as said in St. Paul & P. R. Co. v. Northern P. R. Co. 139 U.S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389, 'after such withdrawal no interest in the lands granted can be acquired against the rights of the company, except by special legislative declaration,' and in this case there has been no such legislative declaration.

But it is said that the case of the plaintiff in error is 'placed on impregnable ground by the act of May 14, 1880 (chap. 89 [21 Stat. at L. 140, U.S.C.omp. Stat. 1901, p. 1392]).' I pass the proposition that this is a general act for the relief of settlers on public lands and the familiar doctrine that a general law passed after a special act does not interfere with the provisions of that act, provided there is room for the operation of both, and there is ample room for the operation of this act on public lands generally without interfering with the special provisions made in the Northern Pacific grant. But the act itself has no force whatever as applied to the present question. The provision is that one who is a settler on any of the public lands of the United States 'with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States land office as is now allowed to settlers under the preemption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he had settled under the pre-emption laws.' If we turn to the pre-emption law we find (Rev. Stat. § 2264) that a person intending to preempt shall, 'within thirty days after the date of such settlement, file with the register of the proper district a written statement.' That is, the pre-emptioner had thirty days after settlement within which to make his entry, while when we turn to the homestead law (Rev. Stat. § 2290) ^[1] we find that a party seeking to homestead 'shall, upon application to the register of the land office in which he is about to make such entry, make affidavit . . . that his entry is made for the purpose of actual settlement and cultivation.' In other words, his right is initiated by the application to enter, and does not relate back to any settlement, and this statute simply gives him a right of thirty days' occupancy before making his application to enter. How such a statute, equalizing the rights of one seeking to make a homestead entry with those of one seeking to make pre-emption, can have any pertinency to the question before us, passes my comprehension.

Again, several pages of the opinion are taken up with references to quotations from opinions in the Land Department as to the meaning of the term 'occupied by homestead settlers.' Here, again, I am unable to see the pertinency of these references. If there had been no withdrawal, and the question arose as to the effect of plaintiff in error's occupancy of the land as against the rights of the company obtained by the map of definite location, these authorities might be worth considering, but they throw no light upon the effect of the withdrawal, which is the question before us.

The fact that this tract was not surveyed at the time the plaintiff in error entered upon it, nor until after the completion of the road, is immaterial. By the terms of § 6 the prohibition against sale, entry, or preemption extended to lands 'before or after they are surveyed.' Reference is made to several cases in which we held that the rights of a settler were not lost by the failure of the government to make a survey prior to his occupation. But those decisions were to the effect that the settler loses nothing by the neglect of the government. Here it is held that he gains something. If the survey had been completed before he commenced his occupation, and he could not then enter an odd-numbered section, surely he could not, in face of the prohibition of the section, enter the land after it had been surveyed. If, instead of going upon lands that had been surveyed, the settler chose to go into unsurveyed territory, he took his chances of placing his improvements upon an odd or even-numbered section. If he placed them upon what proved to be an odd-numbered section, he acquired no right as against the grant to the company. If he put them on what proved to be an even-numbered section, he would be compelled to pay the government double price. In the latter event does anyone for a moment suppose that it would be an answer to the demand for a double price that the government had failed to make a survey before he chose to occupy the land and make improvements thereon? The construction placed by the majority, not only takes from the railroad company the land which was granted to it, but deprived the government of that which it intended to obtain, a double price for the lands it reserved for sale.

Finally, I may say this decision clouds the title to all the lands granted to the railroad company. At the time the map of definite location was filed, as well as at the time the road was completed, there was not on the records of the Land Department a single word or mark which indicated to anybody that plaintiff in error was on the land or claiming it, or that the title of the railroad company was other than perfect. But because plaintiff in error was on the land it is held that the patent of the government to the railroad company conveyed to it no title, and that this occupant by parol testimony may show the fact of his occupancy and overthrow the record title. Yet this court unanimously held in Northern P. R. Co. v. Colburn, 164 U.S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98, that mere occupation, unaccompanied by the filing of a claim in the land office, did not exclude a tract from the operation of the land grant. And that there was no oversight or lack of attention to this particular matter is shown by the fact that the United States promptly filed a brief of thirty-six pages, quoting the principal land decisions referred to in the opinion of the majority, and asked the court to reconsider its decision, which application was denied without dissent. Indeed, as appears from the authorities cited in that opinion, the conclusion was in accord with prior rulings, to the effect that there must be something of record in the Land Department to support the contention of an adverse right. That unanimous opinion of the court is put one side by the assertion that the land there in controversy had been surveyed, while in this it had not been. No distinction was made in the discussion between surveyed and unsurveyed lands, no suggestion that it affected the question in the slightest degree, and, as we have seen, the prohibition against sale, entry, or preemption in § 6 extended to lands unsurveyed as well as surveyed. How can one say in respect to any tract claimed by the railroad company that it was not at the time of the filing of the map of definite location in the occupation of someone intending to preempt or homestead it? If such occupation is sufficient to avoid the patent of the United States, has the company sure title to any lands?

I think the judgment ought to be affirmed.

Notes

1. [U.S.C.omp. St. 1901, p. 1389.]