ship in the United States. But until the the company either upon the passage of the purchase price was actually paid in (ash no act of Congress, July 26, 1866, or upon the recognizable claim accrued. By the express construction of the road, and so far as the terms of the illot of 1809 no Sale (wild be present case is concerned, it does not matter made contravening legal rights previously which date be taken. "The Uniteul States

. vested in other parties.

had the right to authorize the construction What, therefore, were the rights of the of the road of the Missouri, Kansas & Texas railway company in 1870 when the defend

Railway Company through the reservation or ant's grantors attempted to acquire title? the Osage Indians, and to grant absolutely The section being an even-numbered one, it the fee of the 200 feet as a right on way to did not pass to the railway company as a the company. Though the lands of the Inpart of the land grant by way of aid. Fur- dians were reserved by treaty for their Otthermore, it was held by the Supreme Court cupation, the fee was always under the conof the United States that such grant did not trul of the government, and, when trans:pply to Osage Ceded Lands. M., K. & T. Ry. ferred, without reference to the possession ('o. 1. . S., 32 C. S. 700, 23 L. Ed. 61.7; Ly- of the lands and without designation of any enworth, etc., R. Co. v. U. S., 92 U. S. 73:), 23 use of them requiring the delivery of their I. Ed. 634. But the majority opinions in possession, the transfer was subject to their these cases recognize the validity of the grant right of occupancy, and the manner, time, of a right of way as distinguished from the and conditions on which that right should grant of lands to aid construction, and this be extinguished were matters for the deterfact is commented on by the justices in the mination of the government, and not for

, minority as showing the unsoundness of the legal contestation in the courts between priconclusion of the court relating to the land vate parties.” grant itself. Besides, this court is probably It remains to inquire when the grant to authorized to take notice, without proof, of this right of way became effective against an addendum to the court's order in the

subsequent purchasers of land which it crosscases cited, not printed in the published re- ; ed. It would be easy to say in this case that port of the decisions, to the effect that the de- after the map of definite location had been crees of affirmance in such cases shall not filed with the Secretary of the Interior all be construed as affecting the right of way of subsequent purchasers were obliged to take the railroad claimants through the Osage notice of the railway company's rights. Thes Ceded Lands. In due time it became neces- grant which before identified no specific land sary for the Supreme Court of the t'nited then became definite and certain and vested States to determine whether the act of July in the railway company all the rights con26, 1866, did grant to the present plaintiff a templated by congress to every tract through right of way through the Osage Ceded Lands

which the route of the road passed, as shown and a decision in its faror was rendered in

by the map filed. But the milway company the case of M., K. & T. Ry. Co. v. Roberts, 1.52 is entitled to the benefit of the law as it his ('. S. 111, 14 Sup. Ct. 496, 38 L. Bil. 377. been declared, which is that the unconditionThe opinion reads: "Certain lands within al grant of a right of way 100 feet in width the present state of Kansas were reserved on each side of the road, through land subwhilst it was still a territory, and long previ- ject to the dominion of the United States, is ously, by the United States, for the use and a grant in præsenti, and that any person suboccupation of the Osage Indians. Such res- sequently acquiring a portion of such land ervation was made by treaty between them takes it subject to that right. The act of and the United States concluded as far back July 23, 189, 14 Stat. 210, c. 211, granting as June 2, 1827, and proclaimed in Decem- a right of way to the St. Joseph & Denver ber following: 7 Stat. (Indian Treaties) 240. City Railroad Company and granting lands From that time, and continuously there- in aid of the construction of that road is ill. after, the reserved lands were occupied by most identical in language, and is identical those Indians until the treaty ceding the in legal effect, with the act under which plainlands, or parts thereof, to the United States, tiff claims. One Baldwin acquired whatever concluded in 1866, and proclaimed in Jan- rights he possessed to a certain parcel of 11:1y. 1867 (14 Stat. (ST), except su portion land in October, 1969. The road was not thereof as was appropriated and used as a definitely located through that tract until right of Wily by the Missouri, Kansas & October, 1871. After the road was built BaldTexas Railway Company for its road under win sued for damages on account of the apthe grant of July 26. 1866. Prior to June propriation by the railway company of a il 6, 1870, that company located its railroad strip of his land 200 feet witle and 200 rods through these reserved lands in Kausas, , long. In denying relief the Supreme Court with the approval of the President, and con- of the United States said, per Field, J.: "The structed its road in substantial conformity act of Congress of July 23, 1866, c. 212, makes with the act of Congress. The right of way two distinct grants: One of lands to the state for its road, 200 feet in width, was granted of Kansas for the benefit of the St. Joseph to the company unconditionally, subject only & Denver City Railroad Company in the conto such approval. The title to the land for struction of a railroad from Elwood in that the 200 feet in widtb thus granted vested in state to its junction with the Union Pacific

87 P. 11

via Maryville; the other of a right of way which would call for any qualification of the directly to the company itself. The lands terms. Those lands would not be the less consisted of alternate sections, designated valuable for settlement by a road running by odd numbers, on each side of the line of through them. On the contrary, their value the proposed road. The grant of them was would be greatly enhanced thereby. The subject to the condition that if, at the time right of way for the whole distance of the the line of the road was definitely fixed, the proposed route was a very important part of United States had sold any section or a part the aid given. If the company could be comthereof, or the right of pre-emption or home- pelled to purchase its way over any section stead settlement had attached to it, or the that might be occupied in advance of its losame had been otherwise reserved by the Uni- cation, very serious obstacles would be often ted States for any purpose, the Secretary of imposed to the progress of the road. For any the Interior should select an equal quantity loss of lands by settlement or reservation, of other lands nearest the sections designated, other lands are given, but, for the loss of the in lieu of those appropriated, which should be right of way by these means, no compensahelil by the state for the same purposes. The tion is provided, nor could any be given by limitations upon the grant are similar to those the substitution of another route. The unfound in numerous other grants of land made certainty as to the ultimate location of the by Congress in aid of railroads. Their ob- line of the road is recognized throughout the ject is obvious. The sections granted could act, and where any qualification is intended be ascertained only when the routes were in the operation of the grant of lands, from lefinitely located. This might take years, this circumstance, it is designated. Had a the time depending somewhat upon the length similar qualification upon the absolute grant of the proposed road and the difficulties of of the right of way been intended, it can ascertaining the most favorable route. It hardly be doubted that it would have been was not for the interest of the country that, expressed. The fact that none is expressed in the meantime, any portions of the public is conclusive that none exists. “We see no lands should be withheld from settlement or

reason, therefore for not giving to the words use because they might, perhaps, when the of present grant with respect to the right of route was surveyed, fall within the limits of

way the same construction which we should it grant. Congress, therefore, adopted the be compelled to give, according to our repeatpolicy of keeping the public lands open to oc- ed decisions, to the grant of lands had no upation and pre-emption, and appropria- limitation been expressed. We are of opinion, tion to public uses, notwithstanding any grant therefore, that all persons acquiring any porit might make, until the lands granted were tion of the public lands, after the passage of ascertained, and providing that, if any sec- the act in question, took the same subject tions settled upon or reserved were then to the right of way conferred by it for the found to fall within the limits of the grant, proposed road." Railroad Co. v. Baldwin, 103 other land in their place should be selected. U. S. 426, 428, 26 L. Ed. 578. Thus settlements on the public lands were The decision in the Baldwin Case was apencouraged without the aid intended for the

proved in the case of Bybee v. Oregon & Caliconstruction of the roads being thereby im. fornia R. Co., 139 U. S. 603, 679, 11 Sup. Ct. paired. The language of the act here, and of 641, 614, 35 L. Ed. 305, in the following lannearly all the congressional acts granting guage: “The distinction between a right of lands, is in terms of a grant in præsenti. The way over the public lands and lands granted act is a present grant, except so far as its im- in aid of the construction of the road is immediate operation is affected by the limita- portant in this connection. As to the latter, tions mentioned. “There is hereby granted' the rights of settlers or others who acquire are the words used, and they import an im- the lands by purchase or occupation between mediate transfer of interest, so that, when the passage of the act and the actual location the route is definitely fixed, the title attaches and identification of the lands are preserved from the date of the act to the sections, ex- unimpaired, while the grant of the right of rept such as are taken from its operation by way is subject to no such condition, and in the clauses mentioned. This is the construc- the construction given by this court to a simtion given by this court to similar language ilar grant in Railroad Company v. Baldwin, in other acts of Congress. Missouri, Kansas 103 U. S. 426, 26 L. Ed. 578, a person sub& Texas Railway Co. v. Kansas Pacific Rail- sequently acquiring any part of such right way Co., 97 U. S. 491, 24 L. Ed. 1095; Leav- of way takes is subject to the prior right of enworth, Lawrence & Galveston Railroad the railroad company.” The same case was ('0. v. United States, 92 U. S. 733, 23 L. Ed. cited with approval when called collaterally 31. But the grant of the right of way by in question in the case of Missouri, Kansas & the sixth section contains no reservations Texas Railway v. Cook, 163 U. S. 491, 16 Sup. or exceptions. It is a present absolute grant, Ct. 1093, 41 L. Ed. 239, to which, as the title subject to no conditions except those neces- indicates, the present plaintiff was a party. sarily implied, such as that the road shall be The opinion reads: "The grant of the lands constructed and used for the purposes design- and the grant of the right of way were alike ed. Nor is there anything in the policy of the grants in præsenti and stood on the same government with respect to the public lands footing, so that, before definite location, all persons acquiring any portion of the public power under the general land laws to convey lands after the passage of the act took the portions of the public domain as much as same subject to the right of way for the if it had been a military reservation. Beproposed road. The easement and the lands fore the law authorizing sales to settlers were afloat until, by definite location, pre- was enacted title had passed out of the cision was given to the grant and they became United States and was vested in the railway permanently fixed. Railroad Co. v. Baldwin, company. The land was then appropriated 103 U. S. 426, 26 L. Ed. 578.” In the case of and dedicated to the special use of a railNorthern Pacific Railway Company v. Ely, road right of way. There was no prelimi197 U. S. 1, 25 Sup. Ct. 302, 49 L. Ed. 039, nary question of fact to be investigated or decided Feb. 25, 1905, the Baldwin Case was adjudicated. This case is analogous in prinagain approved as shown by the following ciple to that of Burfenning v. Chicago, St. quotation : "It may be added that it was on- Paul, etc., Ry. Co., 163 U. S. 321, 16 Sup. ly as to some of the parcels that the filing Ct. 1018, 41 L. Ed. 175. A soldier's homeof the map of definite location and the stead was located upon a townsite and a construction of the railroad preceded the patent issued. The law provided that lands filing of the entries. But we regard the case within the limits of any incorporated town as falling within the rule holding the grant | or selected as the site of a city or town of the right of way effective from the date should be excluded from homestead and preof the act. Railroad Company v. Baldwin, emption entries. It was contended that, by 103 U. S. 426, 26 L. Ed. 578." The conclu- the issuance of the patent, it was conclusively sion from these authorities, and there are determined by the land department that the others to the same effect, must be that the patentee's rights were not initiated within plaintiff's title dates from the passage of the limits of any city and that the land the act of 1866. and that the defendant's was subject to homestead. In denying the grantors purchased with notice of and sub- validity of this argument the court, through ject to the plaintiff's rights. The grant was Mr. Justice Brewer, said: “It has undoubtedan absolute grant in present terms of a right ly been affirmed over and over again that. of way, not only through the public lands in the administration of the public land generally, but also through all government system of the United States, questions of reservations between the termini of the road. fact are for the consideration and judgThe railway company was entitled to a route ment of the Land Department, and that its somewhere through each body of reserved judgment thereon is final. Whether, for inland it might encounter. But the public stance, a certain tract is swamp land or not, interest might require that the road should saline land or not, mineral land or not, not pass through specific places. Hence defi- presents a question of fact not resting on nite location was subjected to the approval record, dependent on oral testimony, and of the President of the United States. When it cannot be doubted that the decision of the railway company had filed its map of the Land Department, one way or the other, definite location with the Secretary of the in reference to these questions is conclusive Interior it had done everything required of and not open to relitigation in the courts. it to obtain title to its right of way. Having except in those cases of fraud, etc., which performed on its part it was the duty of permit any determination to be re-examined. the President to act in the premises and ap- Johnson v. Towsley, 13 Wall. (U. S.) 72, 20 prove or disapprove. No method of indicat- L. Ed. 485; Smelting Company . Kemp. ing approval was prescribed. The railway 104 U. S. 636, 26 L. Ed. 875; Steel v. Smeltcompany was permitted to enter upon the ing Company, 106 U. S. 447, 1 Sup. Ct. 389. right of way it had chosen, lay its tracks 27 L. Ed. 226; Wright v. Roseberry, 121 and build its station houses there, and to U. S. 488, 7 Sup. Ct. 985, 30 L. Ed. 1039 : occupy it continuously for railway purposes

Heath v. Wallace, 138 U. S. 573, 11 Sup. with out objection on the part of the govern- Ct. 380, 34 L. Ed. 1063; McCormick ". ment. Hence in a suit against a party Hayes, 159 U. S. 332, 16 Sup. Ct. 37, 40 L. other than the United States, approval by the

Ed. 171. "But it is also equally true that. president must be presumed.

When by act of Congress a tract of land has It is argued that the Land Department of

been reserved from homestead and pre-emthe United States is a special tribunal for

tion, or dedicated to any special purpose, determining preliminary questions affecting proceedings in the Land Department in the rights of parties to enter land and defiance of such reservation or dedication. receive patents, and that, by issuing patents although culminating in a patent, transfer for the land in dispute without any reserva- no title, and may be challenged in an action tion of a railroad right of way, that tribunal at law. In other words, the action of the adjudged that no such right existed in the Land Department cannot override the explaintiff's favor. When the act granting to

pressed will of Congress, or convey away the plaintiff its right of way was passed, public lands in disregard or defiance therethe land affected was not a subject of dis. of. Smelting Co. v. Kemp, 104 U. S. 636. position by the land department of the 646, 26 L. Ed. 875; Wright v. Roseberry, 121 United States. It was Indian land and with- U. S. 488, 519, 7 Sup. Ct. 985, 30 L. Ed. 1039; out the jurisdiction of the officials having | Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. 1228,

domain, and as fully removed from the con. 'the Northern Pacific Railroad Company and trol of the Land Department as though they authorized it to locate, construct, furnish, and had been already patented to the state. And maintain, and enjoy a continuous railroad and whether those lands were or were not re- / telegraplı line from a point on Lake Suturned to the United States, and released perior to a point on Puget Scund. A right from the burden of that grant, was not a : of Way 100 feet wide through the public question of fact, but one of law, and depend- lands was conferred and a land grant was ed upon the construction to be given to the made in aid of construction. Allowing for resolution of the state of Michigan of Feb- differences in the character of the country ruary 21, 1867."

through which the proposed road was to run, So in this case the plaintiff's right of way the grant of a right of way and of lands had been granted to it, identified and set to aid in construction was in all essential apart before the act of 1869 was passed. respects similar to that made to the Union The record was in the office of the Land Pacitic Railroad Company, Southern Branch, Department and by the identification afford- by the act of 1860. In each case the grant ed by the plat filed there the land in con- of a right of way was made primarily to troversy was as absolutely separated from promote the general welfare of the people of the public domain and as fully removed the t'nited States. It was contemplated from the control of the Land Department that the right of way donated should be as though it had already been patented to devoted to none but railroad uses in the the plaintiff.

proper sense of the term. But future needs from what has been said it must follow

were anticipated. The way was made wide that the clistrict court erreil in sustaining enough to nieet the demands of the road in the defendant's claim of title under the future years when its course should no longer patents issued to his grantors and in deny- | lie through unbroken wildernesses, or through ing the plaintiff's claim of title under the untilled Iulian reservations, and when it :16t of Congress of 1860.

should be burlened with the commerce of The district court found that the plaintiff rich and populous states, and it was intended had, in effect, abandoned all claim to that to secure to the grantee the permanent enjoypart of its right of way lying more than ment of the entire width of the right of way .30 feet from the center of its track, and that so long as a railroad of the proper charthe defendant hall become the owner of such acter should be maintained and operated land by adverse possession of it under claiin

upon it. While the proposed line of the of title for more than the statutory period Northern Pacitic Company was (iesignated a of 15 years. The facts found, however, are post route and military load subject to insufficient to divest the plaintiff of its the uses of the government for postal, milititle and right of possession. In the case tary, naval, and other government service, of Northern Pacific Railway Co. v. Town- the obligations in these respects were less send, 1.90 V. S. 267, 23 Sup. Ct. 671, 47 L. onerous than those imposed upon the Union El. 1041, it is said: "In determining whether Pacific ('ompany since compensation to the an individual for private purposes may, by Northern Pacific Company for its service to idrerse possession, under a state statute

il

the government in matter's besides the transof limitations, acquire title to a portion of portation of mail was contemplated. The the right of way granted by the United nature of the title conferred, the specific States for the use of this railroad, we must duties to the United States, and the general be guided by the doctrine enunciated in Pack- public purposes to be subserved were the er v. Bird, 137 U. S. 661, 669, 11 Sup. Ct. same for each company, and the fact that 210, 212, 34 L. Ed. 819, and approvingly re- one corporation was created by a law of the ferred to in Shively v. Bowlby, 152 '. S. United States while the other was organized 1, 41, 14 Sup. Ct. 518, 564, 38 L. Ed. 331, under the laws of the state of Kansas viz.: "The courts of the United States will furnishes no principle of discrimination in construe the grants of the general govern- the interpretation of the two grants. Patment without reference to the rules of con- ents based upon homestead entries were struction adopted by the states for their issued to lands crossed by the Northern grants, but whatever incidents or rights Pacific road without excepting its right of attach to the ownership of property con- way. The patentees cultivated up to the veyed by the government will be determined line of the company's snow fences situated by the states, subject to the condition that 50 and 100 feet from the track, and thus their rules do not impair the efficiency of the occupied portions of the right of way for a grants or the use and enjoyment of the i period of time sufficient to confer title by property by the grantee.'” The decision of adverse possession under the laws of the this court must therefore be controlled by state of Minnesota. The Supreme Court of the views of the Supreme Court of the United Minnesota sustained a claim of title based States respecting the nature of congressional upon sucl possession. Northern Pacific Ry. grants of the character of the one in question. Co. 1. Townsend, 84 Minn, 152, 86 N. W.

By the act of July 2, 1864, 13 Stat. 36.), c. 1007, 87 im. St. Rep. 312. In reversing the 217, Congress created a corporation known as judgment of the state court the Supreme