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Argument for Appellants.

State of Minnesota of the lands described in the bill of complaint, for the benefit of the Winona and St. Peter Railroad Company, after homestead and preëmption rights had attached to such lands and while the lands were still covered by these entries, was an act not merely voidable, but absolutely void, because control over and power of disposition of said lands by the Interior Department had ceased. United States v. Stone, 2 Wall. 525; Maxwell Land Grant case, 121 U. S. 325; Hastings & Dakota Railroad v. Whitney, 132 U. S. 357; Whitney v. Taylor, 158 U. S. 85; Weeks v. Bridgman, 159 U. S. 541; Burfenning v. Chicago & St. Paul Railway, 163 U. S. 321, 323, where the court said: “But it is also equally true that when by act of Congress a tract of land has been reserved from homestead and preëmption, or dedicated to any special purpose, proceedings in the land department in defiance of such reservation or dedication, although culminating in a patent, transfer no title, and may be challenged in an action at law. In other words, the action of the land department cannot override the expressed will of Congress or convey away public lands in disregard or defiance thereof."

The present suit (No. 321) is between the United States and the Winona company, which holds the lands and refuses to relinquish them. Its claims must stand or fall upon the acts in its aid, and it is sufficient for this case to determine that the lands in dispute were not included in the grants in aid of the Winona road. What becomes of them after they are recovered by the United States is a matter of no concern whatever to the Winona company. United States v. Southern · Pacific Railroad, 146 U. S. 570, 604.

The lands were by mistake certified in aid of the Sioux City road. The legal effect of that certification was, as this court has determined, to convey them for the use and benefit of the Winona company.

The Secretary of the Interior, under whose direction this suit was instituted, in proceeding to adjust the grants in aid of the Winona road, found these lands in the possession of the Winona company, claimed by it under its grants, and that company cannot shield itself from the operation of the adjust

Argument for Appellants.

ment act and of its own granting acts, by insisting that these lands fell, or were certified to the Sioux City road.

We submit that a proper construction of the granting acts in aid of the two roads does not sustain the position taken by the Winona company.

The courts have uniformly construed these grants strictly against the grantee companies. They are never extended beyond the scope of their express provisions, and wherever the question as to reservations and exceptions has arisen, or there appear conflicting claims between two or more companies, great care has been exercised to exclude from grants lands which have been reserved, appropriated or devoted to another purpose by every reasonable construction in favor of such reservation, on the theory that it has been the evident intention and purpose of Congress, in all such grants, to limit them in their operation to such lands only as the United States had the clear and unquestioned right to convey at the time without disturbing existing relations or producing vexatious conflicts. Bardon v. Northern Pacific Railroad, 145 U. S. 535, 543; United States v. Missouri, Kansas & Texas Railway, 141 U. S. 358, 368, 374; Leavenworth, Lawrence dc. Railroad v. United States, 92 U. S. 733; United States v. Northern Pacific Railroad, 152 U. S. 284, 296.

If, then, at the time of the certification by the Secretary of these lands to the State of Minnesota, the line of definite location of the railroad had not been fixed by filing the maps in the office of the Secretary of the Interior, no title whatever vested in the railroad, even under a grant by the governor of Minnesota of such land. And if at the time of the filing of such map homestead and preëmption rights had already attached, then these were excepted from such grant.

The power is lodged with the Secretary of the Interior to ascertain and determine facts upon the existence of which may depend the conveyance by him of title to public lands of the United States. His determination of such facts is final and conclusive. But it is going entirely too far to insist, as is done here by counsel for appellee, that the determination as to whether one is or is not a bona fide purchaser from or

Opinion of the Court.

under the United States is a fact which the Secretary of the Interior may conclusively establish and determine.

Whether one is such a purchaser or not may — and in this case in large measure does - depend upon the existence of power in the Secretary to convey such lands. For one cannot be a bona fide purchaser unless he from whom he purchase have power to sell.

The Secretary cannot be the judge of the existence and extent of the powers which he assumes to exercise. In no aspect of this case can it be claimed that the State of Minnesota, or the railroad company, or the land company, or the purchasers from either, were purchasers without notice. As we have already shown, the act itself gave notice of the reservation in favor of homestead and preëmption claimants. The records of the land offices, both local and general, afforded notice of the existence of the homestead and preëmption entries; and also of the official communication from Hendricks, Commissioner of the General Land Office, to the Governor of Minnesota, of July 21, 1857, that the title of the Territory would not rest under the land grant until the maps of definite location were filed in the office of the Secretary of the Interior.

All these not only put subsequent purchasers upon inquiry, but actually afforded full and complete notice of the outstanding equitable rights of the homestead and preëmption entrymen.

We submit that the question of bona fide purchasers cannot properly arise in this case, brought under the act of March 3, 1887. The only object of proceedings under that act being to have declared void the certification of lands under railroad grants, if upon the facts proven the court should be satisfied that the lands were certified without authority of law.

Mr. Thomas Wilson for appellees.

Mr. J. A. Tawney and Mr. H. M. Lamberton filed a brief for the Winona and St. Peter Land Company, appellee.

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

Opinion of the Court.

There are other matters disclosed in the record, such as the -claim at one time asserted by the St. Paul and Sioux City Railroad Company to these lands or a part of them; the litigation between the two companies, and the final decision by this court; also certain transactions between the railroad company and a land coinpany and the litigation resulting therefrom, together with a series of conveyances by the railroad and the land company of the lands. But in view of the conclusions to which we have come upon the facts stated, we deem it unnecessary to cumber the record with any detailed mention of those matters.

These facts appear: First. The railroad company has constructed its road and has earned the land grant. Second. It has received no more land than Congress by the act referred to proposed to grant to aid in the construction of the road. Third. At the time that the lands were certified to the State for its benefit they were not subject to any homestead or preëmption entry. They were free from all claims other than those of the railroad company itself, and were, except as subject to such claims, in the fullest sense public lands and within the jurisdiction of the land department. Fourth. Up to March 2, 1885 (when Kansas Pacific Railway Company v. Dunmeyer, 113 U. S. 629, was decided by this court), the uniform ruling of the land department had been that the title to railroad lands became settled at the time the line of the railroad was surveyed, staked out and marked on the face of the earth, and not at the time of the filing of the map of definite location in the land department; that a homestead entry, though apparently regular and valid, was open to question by the railroad company, and if shown to have been fraudulent or irregular in inception, or that it had been abandoned before the right of the company attached, was held not to except the land from the grant; and also that a preëmption claim existing at the time of the attaching of a railroad grant, if subsequently abandoned and not consummated — even though in all respects legal and bona fide — did not defeat the grant, but upon the failure of such claim the land covered thereby inured to the grant as of the date when it became effective. Fifth.

Opinion of the Court.

Under such rules of construction the land in controversy was all properly certified to the State for the benefit of the railroad company. Sixth. The lands were sold and conveyed by the railroad company to parties who paid full value and bought in good faith, believing the title which the railroad company assumed to convey to be perfect.

It is in the light of these facts that the scope and effect of the legislation of Congress is to be considered and determined. There is certainly much of equity in the contention of the appellees. The railroad company has constructed the road, in aid of whose construction Congress made this grant. though retaining all these tracts, it has failed to receive as large an amount of land as Congress proposed to give. With full performance on its side, it has not received all that Congress proffered. Of course, in entering upon its work it took all the chances of failure of title of any particular tract, and therefore has no legal ground of complaint, and yet it may with reason say that, though it must be content with such lands as the Government at the time of the filing of the map of definite location could rightfully convey, it ought not to be deprived of any which the Government did convey, and could convey without wrong to any one, and which were embraced in the description of the lands which Congress proposed to give. No individual is wronged by permitting this certification to stand; no preëmptor or person seeking to enter any tract as a homestead has been deprived of his rights or privileges by virtue of this certification. The land was free from all individual claims. It was within the absolute control of Congress. It belonged to the Government, and it is only in the assertion of a technical rule of construing land grants, first declared by this court long after the certification, that the Government now asks to have that set aside and the title to these lands restored. No fraud or wrong is imputable to the company. No effort to secure a misconstruction by the land department, but only an acceptance of the then settled rule of construction and the taking of the lands which, under such construction, it was entitled to receive. Conceding that that construction was erroneous, yet it was one made by the officers of the department

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