making the grant to the New Orleans, Baton Rouge & Vicksburg Railway Co., to which the New Orleans Pacific Railway Co. was the successor.

It is stated that when the line of the Northern Pacific Railroad was located one Lemline was in the actual occupancy of the land, and for some years afterward, when he sold to Trodick. The court says, "This he had a right to do, although he did not hold the title," citing the case Catholic Bishop v. Gibbons (158 U. S., 155).

The decision of the Land Office held that Lemline could have perfected his homestead entry, but because he had no claim of record, and the claim of Trodick originated after the definite location of the railroad line, that he had no right to perfect the homestead entry as the successor of Lemline.

I quote:

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The former decisions of this court clearly sustain the decree rendered by the circuit court of appeals. According to the provisions of the act of 1864 the railroad company could not acquire any vested interest in the granted lands-even such as were within the primary or place limits-until it made a definite location of its line, evidenced by an accepted map of location; nor would such location be of any avail as to lands even in place limits which, at the time of definite location, were occupied by a homestead settler intending, in good faith, to acquire title under the laws of the United States. Lemline, as we have seen. was in the actual occupancy of the lands as a homestead settler when the railroad company definitely located its line. Therefore the lands did not pass by the grant of 1864, but were excepted from its operation, and no right of the railroad attached to the lands when its line was definitely located." (Italic face type by the court.)

Following this quotation the court cites the cases of St. Paul & Pacific Railroad Co. v. Northern Pacific Railway Co. (139 U. S., 1); United States v. Northern Pacific Railway Co. (152 U. S., 284); Northern Pacific Railway Co. v. Sanders (166 U. S.. 620); United States v. Oregon & C. R. Co. (176 U. S., 28); and Nelson v. Northern Pacific Railway Co. (188 U. S., 109).

The court then says, "To the same effect are numerous decisions of the Land Department by different Secretaries of the Interior. These decisions are cited in the Nelson case (188 U. S., 126–131).”

I have cited the Nelson case and these decisions of the Secretary of the Interior, in the brief already filed. They are quoted with approval in this Trodick case and this question ought to be considered as settled by the Supreme Court and the Land Office.

That where there was an actual settler on the railroad land at the definite location of its line, the land was reserved to the settler and was excepted from the railroad grant, ought no longer to be open for discussion in either the court or the Land Department.

This Trodick case goes further and decides another vital question in the appeals I am sending in to the Commissioner of the General Land Office, and that is that the settler or his heirs and assigns may maintain an action to have the patent which was erroneously issued to the railroad company, declared to be held in trust for the settler, notwithstanding that the railroad company had parted with its title to third persons.

In the statement of facts which I have quoted from the decision. it is stated that the railroad company had sold by warranty deed to McDonald and Auchard, and these parties were joined with the railroad company as plaintiffs in the suit.

Notwithstanding this sale by the railroad company, the court rendered this decree in the case:

"We are of opinion that, as between the railroad company and the appellee, the latter has the better right to the land, and that the Land Office incorrectly held that the company was entitled to a patent. That was an error of law which was properly corrected by the reversal in the court of appeals of the decree of the circuit court, with directions to render a final decree recognizing Trodick's ownership of the lands in controversy, and adjudging that the title, under the patent, was held in trust for him. The judgment of the circuit court of appeals is affirmed." (These last italic type are mine.)

The Supreme Court in the Trodick case also disposes of the contention that the homestead application of the actual settler should be made within the time specified by the homestead law, and holds that as long as no other settler has made the application it is immaterial when the application is made, and that the application when made dates back to the time of the settlement-page 709 of the opinion. It also cites the decision of the Land Department in McNeals

case (6 Land Dec., 653). It also decided in the Trodick case that no record of the settlement is necessary. The Supreme Court of the State of Louisiana have had two of these cases under the grant in question and under the patent issued to the New Orleans Pacific Railroad, before it and both cases were by it decided in favor of the settlers. These cases cite the decisions of the United States Supreme Court and of the Land Office.

The last case was decided June 15, 1911. I quote from that case which is entitled Could et al. r. Pollard, reported in vol. 55, No. 8, Southern Reporter, July 29, 1911, Advance Sheets:

(Syllabus by the court.)

‘The rights of an actual settler on lands within the place limits of the grant made to the New Orleans Pacific Railway Co. by the act of Congress of February 8, 1887 (C. 120, 24 Stat., 391), as between the company and such settler, or those claiming title from the company, are not controlled or affected by the ⚫ jurisprudence, predicated on the general laws regulating the acquisition of preemption and homestead rights with respect to public lands; for those laws require not only actual settlement on the land sought to be acquired, but (save where it may be impossible or where the application is improperly denied) the placing on record by the settler in the land office of a declaration of his purpose to acquire, or of his application for, such land, which must be followed by other conditions; whereas under the act of 1887 all lands occupied by actual settlers at the date of the definite location of the line of grantees road and still remaining in their possession or in the possession of their heirs or assigns were, in terms, excepted from the grant; so that the title not being conveyed to such grantee, it can be a matter of no concern to it, or to those claiming under it, whether the settler had placed his declaration or application of record, or had not done so, or whether he had afterwards abandoned his purpose to acquire the land."

In the Pollard case the court quotes from the other case of Lisse v. Devillier (118 La., 561) as follows:

"The statute (referring to act Congress Mar. 8, 1887) was a donation of public lands for railroad purposes, and the proviso (referring to the proviso in sec. 2) expressly excepted from the grant all lands occupied by actual settlers and declared such lands subject to entry. The actual occupancy of such lands excepted them from the operation of the grant and the right of the settlers, quad the Government, did not concern the grantee."

The Louisiana decisions are in thorough accord with those of the United States Supreme Court. Under both there has grown up this condition of affairs in reference to these actual settlers in this section.

The courts recognize their rights and enforce them whenever they are put at issue, and it is only the Land Office and to the patent issued to the railroad which stands in the way of their having the title added to their possession. The companies claiming title under their quit-claim deeds from the railroad have the written title under the patent, but the courts say that the legal title is in the actual settlers and "their heirs and assigns."

I understand the Land Office is giving too much weight to the patent to the railroad which was erroneously issued to it.

In my opinion it was not necessary for the United States to have brought the suit, No. 16, now pending in the United States court of this district. When the New Orleans Pacific Railroad Co. accepted the terms and conditions of the act of March 8, 1887, and recognized the rights of the actual settlers and agreed not to contest their homestead entries it bound itself and all who pretend to hold rights under it and its patent. No purchaser from it under either a quitclaim or warranty deed could acquire any greater rights than the railroad itself had, and it had none, as all the courts have held. Purchasers from the railroad took its title cum onere, and as I have already shown with full knowledge of the imperfections and nullities of the railroad title. As a matter of fact, these purchasers did not pay value-a sound price for the lands-and took their chances, knowing very well what they were doing. They have their recourse for the purchase price paid on their vendors and should be relegated to it.

The actual settler who since 1885 since 1881 and 1882-have been looking to the Government to make good to them the promise of Congress that they should have their homes, have no other recourse than the appeal now being made on their behalf.

A final consideration which I desire to impress upon the honorable Secretary of the Interior is that is will do no discredit to this great Government of the United States, nor to its patent issued to the railroad company, to annul and vacate that patent so far as it may have been erroneously issued. Error and fraud are always open to correction and either vitiates all contract under any and all systems of law and jurisprudence of which I have any knowledge. What the courts may and have done you may do without resort to them.

DECISIONS OF THE UNITED STATES SUPREME COURT.

Broda v. Natoma Water & Mineral Co. (101 U. S., 274): "Congress in making donation grants to the Pacific railways can not be supposed to have exercised its liberality at the expense of preexisting rights of miners and agriculturists, which, although were imperfect, were still meritorious and had just claims to legislative protection." This case was afterwards cited by the court in numerous other cases.

Bardon v. Northern Pacific Railway (145 U. S., p. 535): "A grant of public lands only applies to which at the time are free from existing claims, in the absence of express provisions indicating otherwise."

Same case: That a preemption entry was canceled after the date of a railroad grant did not bring the land preempted under the operation of the grant." Kansas Pacific R. R. Co. v. Dunmeyer (113 U. S., p. 629): “After homestead rights have attached to a tract of land, the subsequent failure of the plaintiffs to comply with the acts of Congress concerning residence, cultivation, and building on the land, or his actual abandonment of the claim, does cause it to revert and become a part of a grant in aid of a railway company within the limits of which it lies and to which it would have belonged but for the homestead entry."

This case is also cited in a large number of other cases and is the settled doctrine of the United States courts.

Hastings & Dakota R. R. Co. v. Whitney (132 U. S., p. 357): “The cancellation of a homestead entry after a subsequent grant of a railroad company and the definite location of its line, did not inure to the benefit of the railroad company, but the land reverted to the Government and became a part of the public domain, subject to appropriation by the first legal applicant.”

The latest decision of the United States Supreme Court on this subject was rendered in October, 1909, and is in the case of Hastings & Dakota R. R. Co. v. Peter Froyseth. I quote:

"This was a plain common-law action of ejectment. The plaintiff must recover, it at all, upon the legal title. That the defendant's application for a homestead had not yet ripened into a legal title is of no moment if the plaintiffs are unable to show a complete and superior legal title. The plain effect of the settlement made upon the land here in controversy before any valid selection of the same land by the railroad company, under its grant, was to initiate the homestead right. That possession and settlement continue from the time it was first made, and when in October, 1891, the Hastings & Dakota Railroad, or its successors in title, attempted to select that land as indemnity land, the land was in actual occupancy of Froyseth, claiming it as a homestead. It had by such settlement been segregated from the lands subject to selection, and in a contest between such a homesteader and those claiming under selections subsequently made of lieu lands, the claim of the former is the better. Under the act of May 14, 1880, the right of one settling in good faith for the purpose of claiming a homestead relates back to the date of settlement." Quoting numerous decisions.

Same case: "But it is urged that the mere fact there was no record evidence of the homestead claim when the selection of 1891 was made was enough to give efficacy to that selection and vest the title under the patents thereafter issued. But this is answered by what we have already said, namely, that if that date this land was actually occupied by one qualified under the law, who had entered and settled thereon with the intent to claim it as a homestead, the land had ceased to be public land, and as such subject to selection as lieu land."

United States v. Winona & St. Paul R. R. Co. (165 U. S., p. 463): "The acts of 1887 and 1896 confirmed the title to the purchaser from a railroad company of lands certified or patented for its benefit, notwithstanding errors or irregularities in the Land Department, or that the lands were excepted from the operation of the grant if within limits, providing he purchased in good faith,

paid value, and the lands were public lands and free from individual or other claims." (Cited in Adams v. Henderson, 168 U. S., 582.)

Catholic Bishop v. Gibbon (158 U. S. Reports, p. 155): "In the absence of some specific provision to the contrary in respect to any particular grant of public land, its administration falls wholly and absolutely within the jurisdiction of the Commissioner of the General Land Office, under the supervision of the Secretary of the Interior. It is not necessary that with each grant there shall go a direction that its administration shall be under the authority of the Land Department. It falls there unless there is express direction to the contrary."

Secretary of the Interior (141 U. S. Reports, p. 161): "The Secretary of the Interior is the guardian of the people of the United States over the public lands. The obligations of his oath of office oblige him to see the law is carried out, and that none of the public domain is wasted or disposed of to a party not entitled to it. He represents the Government, which is a party in interest in every case involving the surveying and disposal of the public lands." Carr v. Fife (156 U. S. Reports, p. 494): "When a patent is issued by mistake to one person, which belongs to another, the person in whose favor the patent was issued will be held to hold the land for the benefit of the one to whom it should have been issued."

CONCLUSIONS FROM THESE AUTHORITIES.

1. That any land which was actually occupied by an actual settler prior to the location of the line of the Texas & Pacific Railroad was excepted from the grant and the patent issued to it is absolutely null, void, and of no effect. 2. That the railroad having no title itself could confer none on or to any other person. It could convey no greater rights than itself had. The quitclaim deed made by the railroad to third persons passed no rights whatever and was notice to the purchaser that there was a defect in the title conveyed. 3. The actual occupancy of either one of four contiguous forties was all that was required of the settler. The United States homestead law fixed and defines his rights.

4. That the abandonment by such an “actual settler" subsequently of all his homestead rights did not bring the land under the railroad grant, but made the land revert to the Government, subject to homestead entry by some other person.

5. That the rights secured to the actual settler under the act of Congress of 1887 was in his favor and also in favor of "his heirs and assigns."

6. Neither the State nor the Federal courts will entertain a suit to oust such an actual settler nor his heirs and assigns."

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Mr. HUNTER. There are no private individuals holding any of those titles.

Mr. FERGUSON. Any corporations?

Mr. HUNTER. All corporations. Mr. Aswell's bill undertook to protect private individuals, if there were any; and when we got here and informed him that there were no private individuals holding title, we agreed to the amendment striking out that clause. There is nobody holding titles to those lands except the mill companiesMr. LENROOT (interposing). You are referring to the time of the passage of the act of 1896?

Mr. HUNTER. I am undertaking to say that it does not affect the settlers protected under the act of 1887. There were no private individuals to be protected by that clause in Mr. Aswell's bill, and therefore we asked him to eliminate it.

On that question of bona fides I want to call your attention to the facts as shown by the record on that.

The act of 1871, which made the original grant, contained a clause that undertook to protect settlers under the homestead law. The patent, which was issued in 1875, had a similar clause. I understand these gentlemen are going to show that that was not a reservation.

Whether the clause in that patent is a reservation or not it called their attention to a law that it was their business to look up and find out what it was. Whether it was an actual reservation or not did not make any difference, it put those holders of those quitclaim deeds on their inquiry as to that fact.

Then comes the act of 1887, undertaking to protect these settlers on these railroad-grant lands, and by its second clause saying that they should have the land. All of the holders of these railroad titles had to know of these public acts; they certainly had to know what was in their patents and what was recorded in the recorders' offices of these different parishes. They had to know of this agreement in 1892 made with the department, that they would not contest settlers' rights, and that the department should have the final and conclusive deciding of the whole matter; and no man holding a quitclaim deed with these public notices of these defects, of these continuous acts of Congress undertaking to protect the settlers, and could then come and say to the settler," We will accept the benefits "that is their attitude-" of the confirmation of this grant, which had been forfeited in this act of 1877; we will accept the confirmation, and, although it was a conditional one and we promised to obey the condition, and we have not obeyed it, and we are not going to obey it, we will take the lands, we will take the confirmation, we will not give you the title that we promised to give you; and we will go there with our men and cut the timber whether you want it or not." Mr. RAKER. If it does not interrupt you too much I would like to get your idea on one point. You have been giving this matter a good deal of study, apparently.

Mr. HUNTER. I have been studying it for four years.

Mr. RAKER. Is it your contention that this reservation and condition in the act of 1871 as to homestead settlers applies the same and has the same relation to the reservation in railroad-land grants where they reserved the mineral land, both depending upon a question of fact?

Mr. HUNTER. I did not study or pay any attention to the mineral lands. If you will read my brief you will find that as to the land grants in the West and as to settlers' rights within the limits of lieu lands the United States Supreme Court has decided that matter fully. I do not know how it would be about the mineral lands.

I have taken some time, but I want to dispose of a boggieboo that these gentlemen raised.

When I was a boy living on a plantation in Louisiana I had an old negro mammy to nurse me. She used to say to us children, "If you don't be good the boggieboo is going to catch you.

Now, they have gotten a boggieboo and they are here to tell you gentlemen that if you recommend for passage and Congress passes the Aswell bill, that these mill companies are going to be subjected to a world of trouble down in Louisiana by squatters. That is their familiar designation of these homesteaders who went there in 1881 and 1882 and whose rights have been undertaken to be protected by Congress. They call them squatters. Everybody is a squatter unless he is a millman; unless he owns the land and allows them to cut the timber, they say that the people will go on there and will give them a lot of trouble; that they-not these people who went there in 1881