Oregon Short Line Railroad v. Fisher ( 1903 )

BASKIN, O. J.,

after reciting the foregoing stipulation, said:

The grant to the Utah Central Bailroad Company was the right of way through the public lands, without any reservation of homestead or pre-emption rights. Appellant’s counsel contend that, in the absence of such reservation in the grant to the railroad company, under the stipulated facts and the Yosemite Valley Case, 15 Wall. 77, 21 L. Ed. 82, and the other decisions of the Supreme Court of the United States, to the same effect, the said railroad company acquired, and its successor in interest, the appellant, now is entitled to, a right of way through the premises in controversy, notwithstanding it was covered, at the date of said grant, by a homestead entry, which was not cancelled until May 15,1878.

In the case of Bardon v. Northern Pacific Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806, it appears that by the act of Congress of July 2, 1864, 13 Stat. 365, c. 217, the railroad company was granted a number of odd-numbered sections of public land on each side of the railroad line which the company should adopt; that the grant in terms excepted pre-emption and homestead claims and rights; and that on September 12,1855, James S. Bobinson, Jr., settled upon a portion of one of the odd sections on the side of the railroad line, and on the 21st of that month filed his declaration of settlement under the pre-emption law with the register and receiver of the proper land office. His heirs, after his death, made payment for the land on July 30,1857, and a certificate of purchase was issued to them, and on August 5, 1865, tFe pre-emption entry was cancelled. The railroad company claimed, under said grant, the land so entered; hut its claim was rejected by the court, and its bill dismissed. In the opinion the court said: “The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land to which any claim or rights of others have attached does not fall within the designation of ‘public land.’ The statute also says that whenever, prior to the definite location of the route of the road, and, of course, prior to the grant made; any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or preempted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the Interior. There would, therefore, be no quéstion that the pre-emption entry by the heirs of Robinson, the payment of the sums due to the Government having been made, as the law .allowed, by them after his death, took the land from the operation of the subsequent grant to the Northern Pacific Railroad Company, if the pre-emption entry had not been subsequently cancelled. But such cancellation had not been made when the act of Congress granting land to the ■Northern Pacific Railroad Company was passed. It was made more than a year afterwards. As the land preempted then stood on the records of the land department, it was severed from the mass of the public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain, so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to. future legislation. This, as we think, has long been the settled doctrine of this court.”

Prom this statement, and from the other cases cited in the decision,-it is clear that “all land to which any claims or rights of others have attached does not fall within the designation of ‘public land,’ ” and therefore does not pass by a subsequent grant to a railroad company.

In the case of Hastings, etc., Railroad Company v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363, a homestead entry was involved, and the court said: “Under the homestead law three things are needed to be done in order to constitute an entry on public lands: First, the applicant must make an affidavit setting- forth the facts which entitle him to make such an entry; second, he must make a formal application; and, third, he must make payment of the money required. When these three requisites are complied with, and the certificate of entry is executed and delivered to him, the entry is made — the land is entered. If either one of these integral parts' of an entry is defective — .that is, if the affidavit is insufficient in its showing, or if . the application itself is informal, or if the payment is not made in actual cash — the register and receiver are justified in rejecting the application. But if, notwithstanding these defects, the application is allowed by the land officers, and a certificate of entry is delivered to the applicant, and the entry is made of record, such entry may be afterwards cancelled on account of these defects by the commissioner, or on appeal by the Secretary of the Interior, or, as is often the practice, the entry may be suspended, >a hearing ordered, and the party notified to show by supplemental proof a full compliance with the requirements of the department; and on failure to do so the entry may then be cancelled. But these defects, whether they be of form or substance, by no means render the entry absolutely a nullity. So long as it remains a subsisting entry of record, whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and therefore precludes it from subsequent grants.”

See, also, Kansas Pac. Ry. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. Ed. 906; Tarpey v. Madsen, 178 U. S. 215, 20 Sup. Ct. 849, 44 L. Ed. 1042.

It appears from the stipulation of facts in the ease at bar that all of the steps necessary to make a homestead entry, mentioned in the foregoing case quoted from, were taken by the said Joseph F. Smith, and that thereupon, before the grant to the railroad company, he was permitted, by the register of the proper land office, to enter the land, and that said entry was not can-celled until long after the grant to the railroad. In view of the foregoing decisions, and the cases therein cited, we are of the opinion that said entry segregated the premises in dispute from the public land, and that the railroad company did not, by the grant to it, acquire the right of way over said premises.

The judgment is affirmed, with costs.

BARTCH and McCARTY, JJ., concur.