are consistent, and can with any reasonable "That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption be[164]fore or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting preemption rights, and the acts amendatory thereof, and of the act entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale." Now, confessedly, every part of this section, except the clause commencing "but the provisions," and ending "to said company," applies solely to lands within the place limits, and has no reference or application to lands within the indemnity limits. By its connection, therefore, the natural application of this clause would be to lands within like limits. This natural application is enforced by the words "when surveyed," near the close of the clause, for there is an express provision (as appears in the first of the section) for a survey of the place limits, and there is no reference in the entire body of the act to any other survey. Further, the clause was seemingly necessary to secure beyond question to pre-emptors and those seeking homesteads a full and continuous right to the even-numbered sections within the place limits. The pre-emption law of September 4, 1841 (5 Stat. at L. 456, chap. 16), defining the classes of lands to which preemption rights should not extend, included therein the following: The exact scope of this limitation as applied to grants directly to railroad compa-[165] nies may not be entirely clear. Perhaps the limitation began with the approval of the map of definite location which, as frequently held, determines the time at which the right of the company to the odd-numbered sections is established, or perhaps, at least in cases where the grant was to a state, instead of directly to a company, at the date of the official certification to the state of the list of allotted lands. Such at least seems to have been the opinion of the Land Office, as shown by the rules announced. 1 Lester, 509. Be that as it may, some limitation was prescribed, and this clause was unquestionably introduced in order to remove all doubt as to the full and continuous right of pre-emption in respect to the alternate reserved sections. The same provision was found in several land grants, as, for instance, that to the California & Oregon Railroad Company, July 25, 1866 (14 Štat. at L. 239, chap. 242); that to the Atlantic & Pacific Railroad Company, July 27, 1866 (14 Stat. at L. 292, chap. 278); that to the Stockton & Copperopolis Railroad Company, March 2, 1867 (14 Stat. at L. 548, chap. 189); that to the Oregon Central Railroad Company, May 4, 1870 (16 Stat. at L. 94, chap. 69); that to the Texas & Pacific Railroad Company, March 3, 1871 (16 Stat. at L. 573, chap. 122). That it did not apply to lands outside the place and within the indemnity limits is made clear by the fact that the provision was introduced into an act in which there were no indemnity limits, to wit, the act of July 13, 1866, granting lands to the Placerville and Sacramento Valley Railroad Company (14 Stat. at L. 94, chap. 182). Reference is made in the opinion of Secretary Vilas, approved by this court, to United States v. Burlington & M. River R. Co. 98 U. S. 334, 25 L. ed. 198, as indicative that the words "on the line of said road" necessarily extend to lands within the indemnity limits. But that case justifies no such inference. There were no place or indemnity limits in terms prescribed. There was simply a grant of ten alternate sections per mile on each side of the road "on the line thereof." When the right of the company attached it was found that the full complement of the grant could not be satisfied by the ten successive alternate sections; and on application of the company patents were issued to it for certain lands beyond the limits of those sections, and the court held on a bill to set[166] "No sections of land reserved to the Unit-aside these patents that the action of the ed States alternate to other sections granted Land Department was justified in that the to any of the states for the construction of full amount of the grant was intended and any canal, railroad, or other public improve- that there were no prescribed limits within ment." which the grant must be satisfied. It was said (p. 340, L. ed. p. 200), that the words "do not require the lands to be contiguous to the road; and if not contiguous, it is not easy to say at what distance the land to be selected would cease to be along its line;" and again, "and the land was taken along such line in the sense of the statute, when taken along the general direction or course of the road within lines perpendicular to it at each end." The act of March 3, 1853 (10 Stat. at L. 244. chap. 143), which extended the pre-emption right to the alternate reserved sections, contained this provision: "Provided, That no person shall be entitled to the benefit of this act, who has not settled and improved, or shall not settle and improve, such lands prior to the final allotment of the alternate sections to such railroads by the General Land Office." Statement by Mr. Justice Harlan: it appears that on December 12th, 1883, the Northern Pacific Railroad Company, under authority of the act of Congress of July 2d, 1864 (13 Stat. at L. 365, chap. 217), granting lands to aid in the construction of its retary of the Interior, the northwest quarter of section 3, in township 13 north, of range 42 east, Willamette meridian, in Garfield county, in the then territory of Washington, as indemnity and in lieu of other specified lands excepted from its grant. It is also suggested that to disturb this de-establish a trust in lands held under patent cision of the Land Department in 1888 might from the United States. Affirmed. work confusion in the administration of the See same case below, 20 Wash. 305, 55 Pac. grant and entail hardship on many who have 217. acted in reliance upon that ruling. I concede the hardship. Every change in the ruling of the Land Department in the adminis- This action was commenced in the supetration of a grant will almost inevitably work rior court of the state of Washington for hardship upon some; but it is well to note Garfield county. From an amended comthe comparative hardships; and no better il-plaint filed by Moore, now plaintiff in error, lustration can be presented than the case at bar; and this, irrespective of the loss by the company of a large portion of its promised lands. The plaintiff in error, immediately upon his application for an entry of the tract in controversy, was notified that it was with-road, selected, under the direction of the Secdrawn. He could then easily have changed his settlement to an even-numbered section, and perfected his title thereto. He persevered, however, in his application, and was finally allowed pre-emption, paid his money and received his patent. If that action were now adjudged void he would have a claim for the money paid and a claim against a solvent debtor. Rev. Stat. § 2362. On the other hand, the defendant in error, who purchased from the railroad company in reliance upon the then ruling of the Department, paid to the company the sum of $1,200, and has placed upon the lands improvements to the value of $600. All this he loses; and while he may have a claim against the company for the amount of money he paid it, yet if it be true (as I am informed, although not appearing in the record) that mortgages upon the railroad company property have been foreclosed and all its property disposed of, [167]his judgment will be "simply against an insolvent corporation. In other words, instead of a claim for reimbursement against a solvent debtor, he will have what is tantamount to a judgment against a vacuum; and this will be the experience of all who, during those many years, purchased from the company in reliance upon the then ruling of the Department. For the reasons thus outlined I dissent from the opinion and judgment, and I am authorized to say that Mr. Justice Shiras concurs herein. J. M. MOORE, Plff in Err., บ. JOHN CORMODE. (See S. C. Reporter's ed. 167-172.) On July 2d, 1895, the railroad company, for a valuable consideration, sold and conveyed to Moore by general warranty deed the north half of the above-described quarter section. Prior to that transfer, namely, on the 17th day of July, 1890, the defendant Cormode presented for filing in the district land *office[168] at Walla Walla, Washington, a declaratory statement setting forth that the land in question had been settled on in March or April, 1882, by Mrs. Ora Standiford, and that she and a subsequent purchaser of her improvements had resided continuously thereon until 1889, when the defendant purchased the improvements and moved upon the land. Upon a hearing ordered before the land office at Walla Walla, to determine the right of the Northern Pacific Railroad Company to the land in dispute, the register and receiver of that office, in January, 1891, held that the settlement upon the premises by Mrs. Standiford, and the occupation of the same thereafter by her and the subsequent purchasers, including the defendant, excepted the lands from the grant to the railroad company, and that therefore they were not subject to selection by it. The selection made by the company was accordingly recommended to be canceled. An appeal was taken by the railroad company to the Commissioner of the General Land Office, and that officer rendered a decision on April 25th, 1895, directed to the register and receiver at Walla Walla, in which he said: "I have considered the above-enti Railroad land grants-withdrawal of indem- tled case, involving N. W. 3, 13 N., 42 E., nity lands. appeal by the R'y Co. from your decision in favor of Cormode. The land is within the This case is governed by the decision in the indemnity limits of the grant to the Northcase of Hewitt v. Schultz, ante, 463. ern Pac. R. R. Co. and was selected by the Co. Jan. 5th, 1884, list No. 1. Both parties appearing at the hearing held Jan. 6th, 1891, and from the testimony then taken it apDecided Jan- pears in substance as follows: The land was settled on March or April, 1882, by Mrs. Ora Standiford, who was qualified to enter under the homestead law. Her settlement consisted of the erection of a frame house 16x18 ft., 1 story and a half high, on the N ERROR to the Supreme Court of the State of Washington to review a decision affirming a judgment dismissing an action to land, the plowing and cultivating of 3 or 4 acres, and the digging of a well. At that time she established her residence on the land and remained there continuously with her family until the fall of 1885, when she sold her improvements upon and interest in the land to John A. Long, who occupied the land for a short time, and was succeeded by his brother, Henry W. Long, in 1888, who remained in possession until the fall of 1889, when the present applicant, Cormode, who [169]applied for the same under pre-emption law in July, 1890, purchased the improvements and moved onto the land. Since then Cormode continuously resided upon and improved the land. It would thus appear that on Jan. 5th, 1884, when the right of the R'y Co. attached, the land was embraced in the bona fide settlement of a party, Mrs. Standiford, qualified to enter the same under the settlement laws. Your decision is therefore affirmed and the Co.'s selection of that date held for cancelation as invalid." The decision of the Commissioner was sus tained by the Secretary of the Interior on May 20th, 1896. Thereafter the defendant Cormode made final proof of his claim, and, a final receipt having been issued to him by the district land office, on the 2d of May, 1898, he received a patent from the United States conveying to him the title to the land. Those there is room for construction and the true intent is a matter of doubt, we are of the opinion that there was no intention to witb. draw from actual settlement the immense quantity of lands embraced within the indemnity limits. This phase of the matter has received consideration in a number of cases. Attention is called to the fact that it was expected when the law was enacted that the road would be speedily constructed, and that it would traverse, in the main, a practically unoccupied territory, and that there would be consequently no great loss of lands within the place limits. It might well have been considered that there would be ample lands within the indemnity limits to make good such losses, although these lands were open to settlement at all times prior to their actual selection. See Northern P. R. Co. v. Musser-Sauntry Land, Logging & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205. And after a consideration of the numerous cases cited in the briefs we are of the opinion that the grant did not take effect as to any lands within the indemnity limits until actually selected by the company, and that prior thereto they were open to settlement. It has been the long-continued policy of the government to facilitate the settlement of its unoccupied lands, and so great a restriction as this would have been under the company's contention could hardly have been contemplated. The departmental withdrawal was subsequently set aside, and cannot operate to extend the provisions of the act. parts of the discussion or statements in some of the cases most relied upon by the appellant are not in harmony with the later expressions of the court, especially in Northern P. R. Co. v. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98; and Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671. Also the prevailing and long-continued construction of the act by the Land Department is entitled to great weight in determining the questions raised. Many patents have been issued thereunder to settlers who are now occupying the lands, as in this case, and doubtless frequent transfers have been made to others who have re-[171] garded the title as perfect, for the issuance of a patent is regarded by the common mind as conclusive; and if it is a matter of doubt the overturning of these rights and the conreserved for the highest court in the land. struction of the Land Department should be Furthermore, it is most strenuously insisted by the respondent that the case must be decided in his favor on the ground that it does not appear that there was any finding by the Land Department that there was any A demurrer to the complaint was sus deficiency in place lands, and that under the tained; and the plaintiff declined to plead familiar rule applied to judgments, if an af further. Whereupon the court, on motion of firmative finding that there was no loss of the defendant, dismissed the action. That place limits was necessary, then that such judgment was affirmed in the supreme court finding would be presumed; that all pre[170jof the state, all the members of the court sumptions are in favor of the regularity of concurring in such affirmance. In its opin- the proceedings in the Land Department to ion in the case that court said: "But, tak-sustain a patent. The appellant has undering a broad view of the question in considering the primary effect of the act [of Congress of July 24, 1864] as a matter of public policy, which is always permissible where The plaintiff averred that the decisions of the register and receiver of the General Land Office and the Secretary of the Interior were made and rendered under misapprehension of law; that the officers of the Land Department and the Secretary of the Interior were wholly without jurisdiction to consider the application of the defendant to make preemption entry of the land, for the reason that the land was not at that time public land of the United States and was not then subject to homestead entry, but before the date of the defendant's application had been withdrawn from entry or sale, and that the decisions allowing the defendant to enter the land were void, and the entry made also void and of no effect; that the Northern Pacific Railroad Company under the grant by the act of July 2d, 1864, became and was the owner in fee simple of the land, and entitled to a patent therefor from the United States; that the defendant's patent constituted him a trustee, holding the legal title for the benefit of the plaintiff, and was a cloud upon the latter's title; and that the defendant wrong fully and unlawfully withheld the possession of the premises, although the plaintiff had at various times demanded the same. taken to conclude this matter by averment in his complaint, and contends that the indemnity lands were appropriated without selection by reason of the deficiency in place Kansas P. R. Co. v. Atchison, T. & S. F. limits, and that the court is bound by the al- | Dec. 127; Stuart v. Southern P. R. Co. 22 Mr. George H. Patrick argued the cause, and, with Mr. George Turner, filed a brief for defendant in error: There is no allegation in the complaint that the Secretary found any deficiency in the place lands, or that the indemnity land selected could be properly taken for those deficiencies. This omission is fatal to the sufficiency of the complaint. Durango Land & Coal Co. v. Evans, 25 C. C. A. 523, 49 U. S. App. 305, 80 Fed. Rep. 427; Stewart v. McHarry, 159 U. S. 643, 40 L. ed. 290, 16 Sup. Ct. Rep. 117; Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 39 L. ed. 931, 15 Sup. Ct. Rep. 779; Steel v. St. Louis Smelting & Ref. Co. 106 U. S. 447, 27 L. ed. 226, 1 Sup. Ct. Rep. 389; Gale v. Best, 78 Cal. 235, 20 Pac. 550; New Dunderberg Min. Co. v. Old, 25 C. C. A. 116, 49 U. S. App. 201, 79 Fed. Rep. 598. Messrs. J. H. McGowan, George Turner, and George H. Patrick filed an additional brief for defendant in error. *Mr. Justice Harlan, after stating the [172] facts as above reported, delivered the opin ion of the court: The grant attached to place lands on the The land in controversy is within the infiling of the map of definite location, and to demnity limits of the Northern Pacific Railindemnity lands at the time of their selec-road Company as shown by its map of defi tion with the approval of the Secretary of the Interior. Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671. made by the Secretary in November, 1880, withdraw and hold reserved "from sale or All the executive withdrawals or reservahomestead or other entry" all of the oddtions which the plaintiff in error insists op first indemnity limits" of the Northern Panumbered sections "within the place and erated as a bar to the initiation of a pre-cific Railroad, as indicated on its map of emption right were nullities because in conflict with the true intent and purpose of the granting act. Ibid. Northern P. R. Co. v. Miller, 7 Land Dec. 100; Northern P. R. Co. v. Davis, 19 Land Dec. 87; Cole v. Northern P. R. Co. 17 Land Dec. 8; Northern P. R. Co. v. Fugelli, 10 Land Dec. 288; Spicer v. Northern P. R. Co. 10 Land Dec. 440; Southern P. R. Co. v. Kanawyer, 23 Land Dec. 500; Mis souri, K. & T. R. Co. v. Troxel, 17 Land Dec. 122; Northern P. R. Co. v. Lillethun, 21 Land Dec. 487; Grunewald v. Northern P. R. Co. 24 Land Dec. 195; Northern P. R. Co. v. Loomis, 21 Land Dec. 395; Southern P. R. Co. v. McKinley, 22 Land Dec. 493; Northern P. R. Co. v. Flannery, 20 Land Dec. 138: Northern P. R. Co. v. Knudson, 20 Land definite location filed in October, 1880. That that decision as indicating the construction | the grant to the company, and which had of the act of 1864 to be observed in the ad- been reserved, sold, granted, or otherwise apministration of the grant of public lands to propriated, or to which pre-emption or other the Northern Pacific Railroad Company. claims or rights had attached at the date This leads to an affirmance of the judgment when the line of the company conterminous without reference to other questions dis- therewith was definitely fixed by filing a Icussed at the bar. plat thereof in the office of the Commissioner of the General Land Office, a list of the lands selected, prepared in the manner and form prescribed by the rules and regulations of the Interior Department, being filed by the company in the district land office, and tender and payment made to the receiver thereof of the fees required by law to be paid The judgment of the Supreme Court of the State of Washington must be and is hereby affirmed. Mr. Justice White concurred in the result. Mr. Justice Brewer and Mr. Justice upon the selection of lands. The list was allowed and approved by the register and re- [173] WILLIAM L. POWERS, Hattie Dean, Ed-ted to the Commissioner of the General Land v. JACOB SLAGHT. (See S. C. Reporter's ed. 173–180.) Office for approval. These lands were select- On October 26th, 1887, the railroad com Railroad land grants-withdrawal of indem- the above selection had, as stated, been ac nity lands. cepted, allowed, and approved, filed a list This case is governed by the decision in the lected; and thereafter, in the years 1892 and [No. 47.] 1893, the company, in compliance with in- Argued and Submitted October 15, 16, 1900. tion, rearranged the list of losses and the se- N ERROR to the Supreme Court of the State of Washington to review a decision affirming a judgment dismissing an action to establish a trust in lands held under patent from the United States. Affirmed. See same case below, 20 Wash. 712, 55 Pac. 1103. Statement by Mr. Justice Harlan: This action was commenced in one of the courts of the state of Washington by the present plaintiffs in error. They alleged in their second amended complaint that on or about December 15th, 1883, the Northern Pacific Railroad Company, under and by virtue of the act of Congress approved July 2d, 1864 (13 Stat. at L. 365, chap. 217), granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound on the Pacific Coast, and the various acts and joint resolutions of Congress supplemental thereto and amendatory thereof, applied at the United States district land office in the district in which the lands were situated to select, and selected lots 10, 11, 14, and 15 in section 1, township 16, north of range 45 east, Willamette meridian, Washington, with other lands, as indemnity in lieu of lands within the place limits of lection list so that the losses for which each On or about December 24th, 1885, after the selection of the above-described land, the Northern Pacific Railroad Company entered into a contract in writing with the plaintiff William L. Powers to convey to him lots 3, 6, 11, and 14 in section 1, township 16, north of range 45 east, upon the payment by him to the company of the sum of $822; and on August 4th, 1887, payment having been made, the company conveyed the lots to him. On July 30th, 1887, the company conveyed to Powers lots 2, 7, 10, and 15 in that section. In the year 1877 A. M. Duffield settled upon lots 2, 3, 6, 7, 10, 11, 14, and 15 in the section in question. Shortly thereafter *he sold[178] |