219 U.S. HARLAN and DAY, JJ., dissenting. of Jones' application, including his certificate cí purchase, were transmitted by the Register and Receiver to the General Land Office at Washington, and by that office was received and filed. On December 19, 1898, Jones and wife sold and conveyed the land to Minnie Stewart, by deed properly recorded on October 3, 1902. Stewart and wife conveyed to Hoyt, the present plaintiff, now appellee, and that deed was also duly recorded October 3, 1902. . On the second day of December, 1901-nearly three years after Jones got his certificate of purchase and after he had sold the land-the Commissioner of the General Land Office made a decision, holding for cancellation the entry made by Jones, as above stated, declaring it to be void on the ground that this land (using the words of the Commissioner) "was selected by the Northern Pacific Railroad (now Railway Company) October 17th, 1883 for the second indemnity, per list, rearranged list 15 B, in lieu of land in Section 11, T. 46, R. 16 W., in the primary limits disposed of between date of grant and definite location of the road, which selection has not since been abandoned or the basis otherwise used. The selection was cancelled, however, by letter of March 22, 1897, because the land is east of Duluth, the then [supposed] eastern terminal of the grant under departmental ruling; but said cancellation was rescinded and the selection restored by letter of May 26, 1900, under the decision of the U. S. Supreme Court, United States v. Northern Pacific R. R. Co., 177 U. S. 435, that the grant extends to Ashland, Wisconsin. December 17, 1897, Richard B. Jones applied to purchase said tract under the Timber & Stone law, and after due publication and proof, made entry thereof December 10, 1898. Cash certificate No. 14812. Under the decision of the court, the selection of the company is a valid selection, and the claim of Jones not having been perfected prior to January 1, 1898, his claim is not within the act of July 1, 1898 (Departmental decision of May 22, 1900, Salter v. HARLAN and DAY, JJ., dissenting. 219 U.S. Company). Said entry is therefore hereby held for cancellation for conflict with the prior valid selection of the company, subject to appeal. Notify him hereof; the company will be informed by this office." It does not appear that Jones, or any one claiming under him, had any previous notice of this order, or that there was any trial or regular hearing of the matter in the General Land Office. Upon appeal to the Secretary of the Interior, the above order of December 2, 1901, was affirmed, and subsequently, but not until October, 1905, a patent was issued to the Northern Pacific Railway Company. 35 L. D. 105. When Jones entered and purchased the land, paying the Government price for it, and receiving a certificate of his purchase which purchase was made and which certificate was given nearly seven years before a patent was issued to the Railroad Company-there was in the Land Office a list of selections alleged to have been filed by the Railroad Company on October 17, 1883. But the list did not assign each selection to specific land in the granted limits, which it was asserted had been lost by the company. That list was received at the local Land Office, and transmitted to the General Land Office. But on the eleventh of April, 1893 the Railroad Company, acting under the direction or suggestion of the Secretary of the Interior, "rearranged” its list so as to specify the particular tract lost in the primary limits. In such list the lands in dispute here were set opposite to particular lands lost in those limits. The lands mentioned in the company's list, whether we take the original or rearranged list, were, it must be remembered, within the indemnity limits of the grant made by Congress in 1864 in aid of the construction of the Northern Pacific Railroad. That is not disputed. The principal assignment of error is that the entry and purchase by Jones-under whom Hoyt claims of the lands in question were subordinate to the rights acquired 219 U. S. HARLAN and DAY, JJ., dissenting. by the mere filing of the list of selections by the Railroad Company, followed as that was by the approval of the Secretary of the Interior and by a patent, although such approval was not given nor, as we have seen, the patent issued to the Railroad Company, until many years after Jones received his certificate of purchase from the Government. Upon final hearing in the Circuit Court, the bill was dismissed. But upon appeal to the Circuit Court of Appeals, all the judges concurring, that judgment was reversed, and the case sent back with directions to enter a decree for the relief asked in the bill. Rec. 214; Hoyt v. Weyerhaeuser, 161 Fed. Rep. 324. The principles in the latter case were accepted and applied by the Supreme Court of Minnesota in Northern Pacific Ry. Co. v. Wass, 104 Minnesota, 411. Section 3 of the charter of the Northern Pacific Railroad Company of July 2, 1864, provided: "And be it further enacted, that there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preëmption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; and whenever, prior to said time, any of said sections or VOL. CCXIX-26 HARLAN and DAY, JJ., dissenting. 219 U.S. parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preëmpted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections. But Congress afterwards broadened or extended the limits into which the Railroad Company, under the direction of the Secretary, might go in order to supply deficiencies in the granted limits. By the joint resolution of May 31, 1870, c. 67, 16 Stat. 378, amending the above act of 1864, "Second indemnity limits" were created. The resolution provided: "And in the event of there not being in any state or territory, in which said main line or branch may be located, at the time of the final location thereof, the amount of lands per mile granted by Congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections of land belonging to the United States, and designated by odd numbers, in such state or territory, within ten miles on each side of said road beyond the limits prescribed in said charter, as will make up such deficiency, on said main line or branch, except mineral and other lands as excepted in the charter of said company of 1864 to the amount of lands that have been granted, sold, reserved, occupied by homestead settlers, preëmpted, or otherwise disposed of subsequent to the passage of the act of July two, eighteen hundred and sixty-four. The fundamental inquiry in the case is whether Jones' entry, occupancy and purchase of the lands were subject or subordinate to the previous filing of the list of selections by the Railroad Company, the Secretary of the Interior not having approved such list until after such entry, occupancy, and purchase by Jones. The judgment below 219 U.S. HARLAN and DAY, JJ., dissenting. proceeded upon two principal grounds: 1. That the Railroad Company did not acquire any right or interest in the lands selected within indemnity limits by the mere filing of its list of selections. 2. That after such list was filed, and while it was unapproved by the Secretary, the lands remained fully open to entry and purchase by homesteaders and preemptors under the laws of the United States; that in the absence of the approval of the Secretary of the Interior, the mere filing of the lists put no obstacle whatever in the way of homesteaders or preëmptioners seeking to acquire public lands not already appropriated or sold under the laws of the United States; and that by an entry or purchase in conformity with the homestead or preëmption laws a right attached to those lands in favor of the entryman which could not be destroyed or overriden by any subsequent approval by the Secretary of the Interior of the original or rearranged list of selections made by the Railroad Company. These grounds were sustained by a well-reasoned opinion delivered by Judge Sanborn on behalf of the Circuit Court of Appeals. In view of the elaborate discussion by counsel and by the majority of my brethren, it will be instructive to make a liberal extract from that opinion. After observing that lands within indemnity limits did not cease to be public lands open to settlement under the homestead laws, simply because of their having been embraced in a list of selections filed by the Railroad Company to supply losses within place limits, the Circuit Court of Appeals (the italics being ours) said: "The company's unapproved selections did not, therefore, stand in the way of the lands being occupied and entered under the homestead laws. The mere filing of its lists of selections of indemnity lands did not have the effect to exclude them from occupancy under the preemption or homestead laws. The question here is not the jurisdiction but the legality of the decision of the Land Department |