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ents, or any timber, cut or uncut, on such | Northern Pacific Railroad Company, and lands.

their successors in interest, were not entiThe questions propounded to this court tled to any lands by virtue of said act of by the circuit court of appeals are these: Congress approved July 2d, 1864, and said

"Is the act of July 1st, 1898, applicable joint resolution, approved May 31st, 1870, to the determination of the rights of the granting lands to said Northern Pacific parties to the 3,400 acres of land which Railroad Company, east of that point on were patented to the appellees or their pred- the line of said Northern Pacific Railroad ecessors in interest prior to the adoption where the same crosses the line of the St. of the act of July 1st, 1898 ?

Paul & Duluth Railroad, known as Thomp"Has the circuit court of the United son Junction." States for the district of Minnesota, or any Obviously, the first inquiry should be as court, jurisdiction as respects the lands in to the object and scope of the act of 1898. controversy entered subsequent to January Upon that point we do not think any doubt 1st, 1898, and for which the settlers hold can be entertained, if the words of the act final receipts or certificates, to adjudicate be interpreted in the light of the situation the rights of the parties to this action in as it actually was at the date of its passage, respect to said lands in advance of the is. Here were vast bodies of land, the right suance of patents therefor by the executive and title to which was in dispute between a branch of the government, or should the railroad company holding a grant of pubcourts decline jurisdiction until the govern- lic lands, and occupants and purchasers ment has devested itself of the legal title both sides claiming under the United to the lands by the issuance and delivery States. The disputes had arisen out of conof patents ?”

flicting orders or rulings of the Land DeIt is appropriate at the outset to refer to partment, and it became the duty of the certain allegations of the bill, which bring government to remove the difficulties which the determination of the case within a very had come upon the parties in consequence narrow compass, and make it unnecessary of such orders. The settlement of those to consider some matters referred to by disputes was therefore, as the circuit court counsel. After setting out in detail the va- said, a matter of public concern. If the rious steps taken by the railroad company disputes were not accommodated, the litigato acquire a right to the lands in dispute, tion in relation to the lands would become the bill alleges that "but for the vested vexatious, extending over many years and rights” of the Northern Pacific Railroad causing great embarrassment. In the light Company and its grantees the several tracts of that situation Congress passed the act of land in question would have been unap- of 1898, which opened up a way for an adpropriated public lands open to the sev. justment upon principles that it deemed eral kinds of entries or location made with just and consistent with the rights of all respect to them, severally; also, that “the concerned,—the government, the railroad several applications and proceedings with grantee, and individual claimants. The respect to the said several entries were in railroad company evinced its approval of due form, and regularly conducted, as re- this action of the legislative department by quired by law, and, in the absence of the a prompt acceptance of the act in its envested rights of the said Northern Pa- tirety. By such unqualified acceptance the cific Railroad Company and its grantees railroad company agreed that, so far as it in the said premises, would have been had any claim to the lands in dispute, whatoperative and effectual to invest the sev- ever the act of Congress required to be done eral entrymen of said lands with com- might be done. plete equitable title thereto, each of Promptly after the passage of that act such entries and locations having been the Land Department set about to adminisfinally receipted for, allowed, and approved ter its provisions, and to that end, as we by the proper land officers of the United have said, issued regulations for the guidStates; the only act remaining for the ance of all concerned. United States or its officers to perform with During the progress of this work of adrespect to such entries being the issuance ministration, the railroad company, by conof the patent in cases where the patent has veyances to the present plaintiffs, assumed not already issued;" and that all of the to pass such interest as it had in the lands said entries and locations of lands referred here in question, with the effect it is now to in the exhibit filed with the bill were al claimed by the plaintiffs—to withdraw or lowed, and the final certificates (and, so far exempt all the lands so sold from the opas issued, the patents) issued therefor, "uneration of the act. The plaintiffs rest this der a mistake of law founded upon a cer- claim upon that part of the act providing tain erroneous ruling by the Secretary of that the railroad grantee or its successor the Interior, to the effect that the said ' in interest “shall not be bound to relinquish lands sold or contracted by it, or lands might legally make under that act. It which it uses or needs for railroad purposes, could not, by any sale or contract made or lands valuable for stone, iron, or coal.” after the acceptance of the act, interfere See above, par. 3.

with the full execution of its provisions We have seen that the act (par. 1 above) And the plaintiffs, who claim to have purmade it the duty of the Secretary of the chased from the successor in interest of Interior to ascertain from time to time, and the railroad grantee, can occupy no better cause to be prepared and delivered to the position than the company from which they railroad grantee or its successor in interest, purchased. They were in a sense purchasers a list or lists of the several tracts pur- pendente lite; for the Secretary of the Inchased, settled upon, or occupied, and terior was, at the time, as he is now, enclaimed, at the date of the act, by such set-gaged in administering the act of Congress. tlers, purchasers, or occupants, their heirs By him or under his direction must be asand assigns, according to the smallest gov- certained the facts upon which depend the ernment subdivisions. And the act pro- inquiry whether the lands in question are vided that the railroad grantee or its suc- within the indemnity limits of the land cessor should accept said list or lists “as grant to the railroad company, and so situconclusive, with respect to the particular ated that a right to them attached by realands to be relinquished by it.” The con- son of the definite location of the road. He tention of the plaintiffs, stated more fully, must also inquire whether such lands were is, in effect, that it was competent for the purchased, by the respective defendants, company, notwithstanding its acceptance of directly from the United States, or were the act, to take out of its operation any settled upon or claimed in good faith by lands embraced by its terms, by simply sell qualified settlers under color of title or ing or contracting to sell them before the claim of right under a law of the United delivery to it, or to its successor in interest, States or ruling of the Interior Department, of the lists above mentioned. In other and whether the purchaser, settler, or words,-for the contention comes to that,-claimant refuses to transfer his entry. Upon the railroad company, so far as the act of these facts also depends the right of the 1898 was concerned, could, notwithstand- railroad grantee or its successor in interest ing the acceptance of its provisions, and on (its rights being relinquished as provided the day after such acceptance, have sold or in the act) to select, in lieu of the lands contracted to sell its right, title, and in- relinquished, an equal quantity of surveyed terest in and to all the lands embraced or unsurveyed public lands, not mineral or by those provisions. This would have left reserved, and not valuable for stone, iron, no lands whatever to which the act could or coal, and free from any adverse claim, apply. Such a result would have left un- or not occupied by settlers at the time of settled all the disputes relating to any such selection, situated within any state or lands which the company chose, in its own territory into which the railroad grant exinterest, to sell while the Land Department tends. was proceeding under the statute. We do Now it is sought, in advance of final acnot believe that Congress intended that it tion by the Land Department in execution should be in the power of the railroad com- of the act, to have it adjudged, as between pany in any such mode to defeat the opera- the parties to this suit, that the lands in tion of the act. Congress, manifestly, had dispute, claimed by the defendants, cannot reference to the situation as it was when properly be placed on the lists which the the act of 1898 was passed.

Secretary may deliver to the railroad gran. If any rights had become vested in the tee or its successor in interest. But that Northern Pacific Railroad Company which is a question the solution of which depends, could not, against or without its consent, in part at least, on

on facts within the be affected by an enactment like that of province, primarily, of the Secretary of the 1898, then the objection to legislation on Interior to find. In short, he, and he alone, the ground that it interfered with vested must ascertain the facts which enter into rights, was waived by the acceptance of the the question as to what lands are to go on act by its successor in interest; for it was the lists to be delivered to the railroad entirely competent for the latter company, grantee or its successor in interest. The if it succeeded to all the rights of the rail-court should not, by any decree, as between road grantee, to agree to such a settlement parties who have no contract relations with as that devised by Congress. The rights each other, attempt indirectly to control acquired by the definite location of the road, the authority and discretion of that officer to and any selection of lands based thereon, be determine what lands shall and what lands came, upon the acceptance of the act, and so shall not be included in the lists to be prefar as that company was concerned, subject pared under his direction. The plaintiffs to such settlement as the Land Department cannot invoke the aid of the court to have

25 S. C.-9.

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these questions concluded, even as between lands, the party holding that title should them and the defendants, by an admission, hold absolutely as his own, or as trustee made in their bill for the purposes of this for another.” So, in Marquez v. Frisbie, case, that the final certificates and final 101 U. S. 473, 475, 25 L. ed. 800, 801: “We receipts held by the respective defendants have repeatedly held that the courts will will entitle them to the lands they claim not interfere with the officers of the govbut for the "vested” rights acquired by the ernment while in the discharge of their durailroad company in virtue of the definite ties in disposing of the public lands, either location of its road. The court should not by injunction or mandamus.

After assume that they are embraced by the act, the United States has parted with its title in order simply that it may have an oppor- and the individual has become vested with tunity, as between the present parties, to it, the equities subject to which he holds it decide a question of law which cannot ap- may be enforced, but not before, propriately arise until at least all the facts We did not deny the right of the courts to are ascertained by the Land Department, deal with the possession of the land prior and final action is taken under the statute to the issue of the patent, or to enforce conof 1898. Although it may be true, as al-tracts between the parties concerning the leged in the bill, that the defendants, not land. But it is impossible thus to transfer holding patents, have received and hold a title which is yet in the United States." final certificates or final receipts, and that, What was said in the case just cited, as to so far as they are concerned, nothing more the power of the court to interfere, in cerremains to be done in the Department ex- tain cases, in advance of the issuing of the cept to issue patents, yet it is in the power patent, was no doubt in the mind of the of the Department, even after decree here, circuit court when, in its opinion in this in this suit, to reopen the case as to each case, it said: "It is unnecessary to decide defendant of that class, and, sufficient whether a case may not arise, when, even grounds existing therefor, recall or cancel while the disputed question as to the rights such certificates or receipts. The whole of contesting parties to a tract of public matter, in respect of the lands in dispute, land is pending or cognizable before the is yet in the hands of the Department, un- Land Department, a court of equity may disposed of finally under the act of 1898. properly interfere by injunction, at the suit Congress intended that the Department of one of the claimants, to prevent the other should, within the limit and according to claimant from despoiling the land by waste, the rules prescribed by the act of 1898, set- and appropriating its substantial value, by tle the disputes that had arisen between the denuding it of all its merchantable timber, railroad grantee and settlers, although, before any final decision upon the disputed after the matter has passed beyond the ju-claims by the Land Department, which is risdiction of the Department, such settle-only rendered by issuing the patent." ments may become the subject of judicial So, again, in United States v. Schurz, inquiry for the protection of the rights of 102 U. S. 378, 395, 26 L. ed. 167, 171: “The parties against any error of law commit. Constitution of the United States declares ted by the Department.

that Congress shall have power to dispose Those views are in entire accord with the of and make all needful rules and regulaformer decisions of this court. In Johnson tions respecting the territory and other v. Towsley, 13 Wall. 72, 87, 20 L. ed. 485, property belonging to the United States. 488, it was said: "This court has at all Under this provision the sale of the public times been careful to guard itself against lands was placed by statute under the conan invasion of the functions confided by law trol of the Secretary of the Interior. To to other departments of the government, aid him in the performance of this duty a and in reference to the proceedings before bureau was created, at the head of which is the officers intrusted with the charge of the Commissioner of the General Land Ofselling the public lands it has frequently fice, with many subordinates. To them, as and firmly refused to interfere with them a special tribunal, Congress confided the exin the discharge of their duties, either by ecution of the laws which regulate the surmandamus or injunction, so long as the ti-veying, the selling, and the general care of tle remained in the United States and the these lands. Congress has also enacted a matter was rightfully before those officers system of laws, by which rights to these for decision. On the other hand, it has con- lands may be acquired and the title of the stantly asserted the right of the proper government conveyed to the citizen. This courts to inquire, after the title had passed court has with a strong hand upheld the from the government, and the question be- doctrine that so long as the legal title to came one of private right, whether, accord- these lands remained in the United States, ing to the established rules of equity and and the proceedings for acquiring it were the acts of Congress concerning the public as yet in fieri, the courts would not interfere to control the exercise of the power | in good faith by any qualified settler under thus vested in that tribunal. To that doc- color of title or claim of right under any trine we still adhere." As late as Bock- law of the United States or any ruling of finger v. Foster, 190 U. S. 116, 126, 47 L. the Interior Department.” The duty of a . ed. 975, 979, 23 Sup. Ct. Rep. 836, 840, we court of equity not to interfere with parties reaffirmed the principle "that the courts in the prosecution of their rights under the will not interfere with the Land Depart- act, whereby the execution of its provisions ment in its control and disposal of the pub- in advance of final action by the Departlic lands, under the legislation of Congress, ment would be embarrassed by judicial deso long as the title in any essential sense cision, is quite as imperative in cases of the remains in the United States."

patented lands in dispute as in the cases of These principles are applicable to the unpatented lands. This view is not at all

. particular scheme devised by the act of in conflict with those cases in which it has 1898 in reference to the lands in dispute. been held that after a patent issued for When the Land Department shall have done public lands the only remedy for one who all that it can do in execution of the act of claims the land as against the patentee is Congress, as to any particular lands in dis- to bring a suit against the person holding pute, it will be time enough for interested the patent, and obtain a decree declaring private parties claiming an interest in them the patentee a trustee for the party suing. to invoke the aid of the courts for the de- This general principle does not apply to termination of such questions of law as cases embraced by the act of 1898. That may arise out of the action of the Depart- act is peculiar in its provisions, and conment. It is true that no order is asked templates that the individual claimant of here that will, directly or in terms, operate one of the classes described in it may hold upon the Land Department. But a decree the land patented to him, if he elects to reis asked, as between the parties now before tain it, and that the railroad grantee or its the court, which must necessarily control successor in interest can be made whole by or affect the action of the Department in taking lieu lands in place of those claimed respect of matters committed to it by Con- in virtue of definite location or selection. gress. Such interference by the court, al- For the reasons stated, neither the claim though between private claimants only, of vested rights in behalf of the railroad would be inappropriate,—especially as to grantee, nor the contention that the lands lands covered by the act of 1898.

in dispute, having been sold to the plainWhat has been said is peculiarly appli- tiffs, were not for that reason embraced by cable to the unpatented lands in dispute the act of 1898, furnishes any ground for

. It is equally applicable to lands patented interference by a court of equity, or for both of the the

act, if such lands are in dispute and belong This conclusion is fortified, if not abso

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to either of the classes described in the act lutely demanded, by another consideration, of 1898. We agree with the circuit court namely, that no title to indemnity lands is that the act "gives the option to keep or re-vested until a selection be made by which linquish the disputed land, to the individ- they are definitely ascertained, and the seual claimant in every instance. If he elects lection made approved by the Secretary of to retain that land, it is to be listed by the the Interior. This principle is firmly esSecretary in lists to be furnished to the tablished. . A full statement of it is found railroad claimant, who must relinquish, in Wisconsin C. R. Co. v. Price County, 133

, and whose consent to this was given by its U. S. 496, 511, 33 L. ed. 687, 694, 10 Sup. acceptance of the act.” In case of such re- ct. Rep. 341, 347. The court there said:

Ct linquishment by the railroad company, it “He [the Secretary] was required to deteracquires a right to select other lands in mine, in the first place, whether there were place of those retained by the individual any deficiencies in the land granted to the claimant. If the individual claimant, hav- company, which were to be supplied from ing a patent, elects to surrender his right, indemnity lands; and, in the second place, then he must reconvey to the United States, whether the particular indemnity lands seand will then be entitled to select other lected could be properly taken for those delands in lieu of those surrendered. So that ficiencies. In order to reach a

proper the statute embraces both patented and un conclusion on these two questions he had patented lands, in respect of which the rail- also to inquire and determine whether any road company or its successor in interest lands in the place limits had been previclaims that a right thereto attached by the ously disposed of by the government, or definite location of its road or by selection, whether any pre-emption homestead provided they are also such lands as were rights had attached before the line of the originally "purchased directly from the road

road was definitely fixed.

Until United States, or settled upon or claimed 'the selections were approved there were no


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selections in fact, only preliminary proceed- But, as adjudged in the above cases, that ings taken for that purpose; and the in- promise passed no title. The promise will demnity lands remained unaffected in their no doubt be fulfilled by the government in title. Until then the lands which might be due time and in its own way. The selectaken as indemnity were incapable of iden- tions not having been approved by the Sectification; the proposed selections remained retary, the title remains in the government. the property of the United States. The so that the plaintiffs, having no greater government was, indeed, under a promise to rights than those of the railroad grantee or give the company indemnity lands in lieu its successor, have no such interest in the of what might be lost by the causes men particular lands specified in the railroad tioned. But such promise passed no title, company's lists of unapproved selection as and, until it was executed, created no legal entitles it, while the title remains in the interest which could be enforced in the United States, and while these lands are courts." In New Orleans P. R. Co. v. Par-being administered by the Land Departker, 143 U. S. 42, 57, 36 L. ed. 66, 70, 12 ment, to ask a court of equity to decide, as Sup. Ct. Rep. 364, 369, it was said: “As to between them and the defendants, that the lands within the indemnity limits, it has latter could not by any entry or purchase always been held that no title is acquired acquire an interest after the acceptance by until the specific parcels have been selected the Secretary of the railroad's map of defiby the grantee and approved by the Secre- nite location. tary of the Interior.” And in Michigan But it is suggested that the final action Land & Lumber Co. v. Rust, 168 U. S. 589, of the Department may be indefinitely post592, 593, 42 L. ed. 591-593, 18 Sup. Ct. Rep. poned, to the great injury of the railroad 208, 209, the court said: “Generally speak- grantee and those claiming under it. Deing, while the legal title remains in the lay in such matters was a contingency United States, the grant is in process of which the alleged successor in interest of administration and the land is subject to the railroad grantee must have taken into the jurisdiction of the Land Department of account when accepting the act and assentthe government.” To the same effect are ing to the plan of settlement embodied in Sioux City & St. P. R. Co. v. Chicago, M. & it. The Land Department was not required St. P. R. Co. 117 U. S. 406, 408, 29 L. ed. to complete its administration of the stat928, 929, 6 Sup. Ct. Rep. 790; United ute within any designated time. The act, States v. Missouri, K. & T. R. Co. 141 U. upon its face, directs that the required lists S. 358, 374, 35 L. ed. 766, 771, 12 Sup. Ct. be prepared and delivered to the railroad Rep. 13; Brown v. Hitchcock, 173 U. S. company “as soon as conveniently may be 473, 479, 43 L. ed. 772, 775, 19 Sup. Ct. done.” It cannot be assumed upon this Rep. 485; Kansas P. R. Co. v. Atchison, T. record that the Department has not pro& S. F. R. Co. 112 U. S. 414, 421, 28 L. ed. gressed with the work of administration as 794, 797, 5 Sup. Ct. Rep. 208; Barney v. rapidly as all the circumstances and its Winona & St. P. R. Co. 117 U. S. 228, 232, convenience permitted. Even if the fact be 29 L. ed. 858, 860, 6 Sup. Ct. Rep. 654; otherwise, it is not for a court of equity by Grinnell v. Chicago, R. 1. & P. R. Co. 103 its decree to decide, in the first instance, U. S. 739, 26 L. ed. 456; St. Paul & s. c. that the selections made by the railroad R. Co. v. Winona & St. P. R. Co. 112 U. S. company of lieu lands shall be approved by 720, 731, 28 L. ed. 872, 876, 5 Sup. Ct. Rep. the Secretary, or to decide what lands 334; Cedar Rapids & M. River R. Co. v. should be on the lists required to be furHerring, 110 U. S. 27, 28 L. ed. 56, 3 Sup. nished to the railroad, granted under the Ct. Rep. 485.

act of 1898, or to control directly or inNow, the lands here in dispute and directly the work which Congress, with the claimed by the plaintiffs as grantees of the assent of the railroad grantee, has Northern Pacific Railway Company (the mitted to one of the Departments of the alleged successor in interest of the North-government, or by an order interfere with ern Pacific Railroad Company) are lands the prosecution by the defendants of their admittedly within indemnity, as distin-claims under the act of 1898. guished from granted or place, limits. The We are of opinion that the bill should mere filing of lists of selections, after the have been dismissed upon the ground that a acceptance of the map of definite location court of equity should not, in advance of of the railroad line between Duluth and the final action by the Secretary of the InAshland, gave the company no such title asterior in respect of lands embraced by the could be enforced by the courts in a suit act of 1898, interfere with the regular and between private parties. It is true the orderly administration of its provisions by government was under a promise to give means of a decreé directed against claimthe railroad company lands in the indem- ants under that act. And without now exnity limits to supply losses in place limits. 'pressing any opinion as to what questions

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