APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.
This case is similar to two recent cases bearing the same title, in the first one of which, 189 U.S. 103, a patent of certain lands within the indemnity limits of the same road, dated February 20, 1893, was cancelled in favor of certain entrymen under the homestead laws of the United States, who had settled upon these lands at sundry dates from 1869 to
, and before the defendant company had selected the lands in question as indemnity lands or had received a patent. The court found that "when the company's lists were approved neither the Commissioner nor the Secretary had any knowledge of the adverse claims of the settlers to the lands upon which they respectively resided;" and held that the land department had no authority, simply upon the definite location of the road, to withdraw from the operation of the preemption and homestead laws lands within its indemnity limits, and that such order did not prevent an occupancy by homestead settlers within such limits up to the time of the approval of the selection made by the railroad company of lieu lands, and that, as it appeared the lands were actually occupied by homestead settlers at the time they were selected by the railroad company, such lands were not open to selection, although such selection was prior to the application of the settlers for entry under the homestead laws. It appeared in the case that the settlers had moved with due diligence to perfect and protect the right acquired by their occupancy of the lands, but were unable to obtain formal entry of the same, because the lands had not been surveyed. "At the time the settler went upon the land, in good faith, to make it his home and to perfect his title under the homestead laws, there was nothing of record that stood in the way of his right to occupy the lands and to remain thereon until he could perfect his title by formal entry under the homestead laws."
The second case was like unto the first, except that there had been a long delay by the land department in having the land surveyed. It was held that the land department had acted "with all convenient speed" within the meaning of the act of 1870, 16 Stat. 94, sec. 2, making the land grant. 189 U.S. 116.
In both of these cases, however, the lands were in actual occupation of settlers under the homestead laws at the time selection was made by the railroad company and the patents issued.
In this case the settlement was made under the Oregon Donation Act, 9 Stat. 496, the section of which enacts that "there shall be, and hereby is, granted to every white
settler or occupant of the public lands, . . . who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one half section, or three hundred and twenty acres of land," etc.; and by the first section of the amendatory act of 1853, 10 Stat. 158, it was provided that settlers under the former act, in lieu of the term of continued occupation after settlement, as provided by said act, shall be permitted, after occupation for two years of the land so claimed, to pay into the hands of the surveyor general of said Territory at the rate of $1.25 per acre of the land so claimed. The plea alleges that Hines abandoned the land without having paid for it under the act of 1853, or residing on it for four years under the original act; and the case turns upon the question whether, by the mere filing of the donation notification in 1853, and the subsequent abandonment of the lands, they fall within the category of those which had been "granted sold, reserved, occupied by homestead settlers, preempted, or otherwise disposed of," within the meaning of the act of July 25, 1866, granting lands for the construction of this road. Clearly the lands do not fall literally within either of the above designations, and unless a claim existing of record to the lands -- which claim had in fact been abandoned for fifteen years -- operates to prevent the selection of such lands by the railroad company, such company takes a good title to them.
That a railway grant does not attach to lands which at the time of the definite location of the line have been sold, preempted, reserved or otherwise disposed of by the United States for any purpose, has been so often decided by this court as to be no longer open to question. Leavenworth &c. R.R. Co. v. United States, 92 U.S. 733; Newhall v. Sanger, 92 U.S. 761; Doolan v. Carr, 125 U.S. 618; United States v. McLaughlin, 127 U.S. 428; Cameron v. United States, 148 U.S. 301; Carr v. Quigley, 149 U.S. 652. These cases, however, merely apply the language of the statutes to variant circumstances. Neither of them turns upon the ...