no vested right as against the United | Secretary of the Interior certified these States is acquired until all the prerequisites lands to the state for the use of the appelfor the acquisition of the title have been lant. It is manifest that he did so under complied with, parties may, as against a mistake of the law; namely, that appeleach other, acquire a right to be preferred lant, having made the earlier location of in the purchase or other acquisition of the its road through these lands, became enland when the United States have deter- titled to satisfy all its demands, either for mined to sell or donate the property. In lieu lands or for the extended grant of all such cases the first in time in the com- 1864, out of any odd sections within 20 mencement of proceedings for the acquisi- miles of that location, without regard to tion of the title, when the same are regular- its proximity to the line of the other road. ly followed up, is deemed to be the first We have already shown that such is not in right." the law, and this erroneous *decision of his ? cannot deprive the Winona Company of rights which became vested by its selection of those lands. Johnson v. Towsley, 13 Wall. 72, 80, 20 L. ed. 485, 486; Gibson v. Chouteau, 13 Wall. 92, 102, 20 L. ed. 534, 537; Shepley v. Cowan, 91 U. S. 330, 340, 23 L. ed. 424, 427; Moore v. Robbins, 96 U. S. 530, 536, 24 L. ed. 848, 851."

In St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Ct. Rep. 334, one of the questions arising for decision was which of two railroad companies was entitled to certain tracts of lieu lands situated within overlapping indemnity limits of certain grants made by an act of Congress to the territory of Minnesota, to aid in the construction of the roads of the contesting companies. The selections were to be made by the governor, and required the approval of the Secretary of the Interior. The Winona Company filed a list of*selections. The St. Paul Company made no selections, but nevertheless, on grounds which need not be stated, the Secretary of the Interior certified the lands to the state for the use of that company. The Winona Company brought suit in the state court to have a declaration of its rights in the land, and to restrain the St. Paul Company and others from receiving a patent or other evidence of title to the lands from the governor of the state. The state court decreed in favor of the Winona Company, and this court affirmed its action. In the course of the opinion it was said (page 731):

"The time when the right to lands becomes vested, which are to be selected within given limits under these land grants, whether the selection is in lieu of lands deficient within the primary limits of the grant or of lands which, for other reasons, are to be selected within certain secondary limits, is different in regard to those that are ascertained within the primary limits by the location of the line of the road."

So, also, in Oregon & C. R. Co. v. United States, 189 U. S. 103, 47 L. ed. 726, 23 Sup. Ct. Rep. 615, the court said (p. 112):

"Now, it has long been settled that while a railroad company, after its definite location, acquires an interest in the odd-numbered sections within its place or granted limits,-which interest relates back to the date of the granting act, the rule is otherwise as to lands within indemnity limits. As to lands of the latter class, the company acquires no interest in any spe cific sections until a selection is made with the approval of the Land Department; and then its right relates to the date of the selection. And nothing stands in the way of a disposition of indemnity lands, prior to selection, as Congress may choose to make."

The doctrine thus affirmatively estab lished by this court, as we have said, has been the rule applied by the Land Department in the practical execution of land grants from the beginning. Porter v. Landrum, 31 Land Dec. 352; Re Southern P. R. Co. 32 Land Dec. 51; Re Santa Fe P. R. Co. 33 Land Dec. 161; Eaton v. Northern P. R. Co. 33 Land Dec. 426; Santa Fe P. R. Co. v. Northern P. R. Co. 37 Land Dec. 669. The well-settled rule of the Land Department on the subject was thus stated by the then assistant attorney general in the department, now Mr. Justice Van Devanter, as follows:

After referring to prior decisions, the conclusion was reached that, as to the lands to be selected, "priority of selection secures priority of right;" and that, as the Winona Company alone had made selection "Under this legislation the company of the lands, and that selection was lawful, was, by the direction or regulations of the the right to the land as against third par- Secretary of the Interior, required to preties vested in the Winona Company as of sent at the local land office selections of inthe date of the filing of its lists of selec-demnity lands, and these selections, when tions. In concluding the opinion it was presented conformably to such direction or said (p. 733): regulations, were to be entertained and not

"It is no answer to this to say that the ed or recognized on the records of the local

*393

*392

office. When this was done the selections became lawful filings; * and while, until approved and patented, they would remain subject to examination, and to rejection or cancelation where found for any reason to be unauthorized, they, like all other filings, were entitled to recognition and protection so long as they remained undisturbed upon the records.

"There is no question in this case as to the sufficiency of the loss assigned, or as to the formality and regularity of the selec

tion.

we

What we have already said as to the Sjoli Case would suffice to dispose of the suggestion concerning that case, but shall recur to it. As to the other cases, it would be adequate to say that not one of them involved the question here under consideration, nor even by way of obiter was an opinion expressed on such question. Indeed, all the cases relied upon may be placed in one of three classes: (a) those involving the nature and character of the right, if any, to indemnity lands prior to selection; (b) whether such lands, after the

"What effect has been given to a pending filing of a list of selections, and before acrailroad indemnity selection?

tion by the Secretary of the Interior there-
on, could be taxed by a state to the rail-
road company as the owner thereof; and
(c) those which were concerned with the
nature and character of acts which were
adequate to initiate a right to public land
which would be paramount to a list of se-
lections when the acts were done before the
filing of the list of selections.
In none
of the cases, moreover, was the well-
settled doctrine of this court as to relation,
even by remote implication, questioned. In-

"Prior to 1887 the rights of a railroad company within the indemnity belt of its grant were protected by executive withdrawal; but on August 15, that year, these withdrawals were revoked, and the land restored to settlement and entry; but such orders, although silent upon the subject, were held not to restore lands embraced in pending selections. Dinwiddie v. Florida R. & Nav. Co. 9 Land Dec. 74. In the circular of September 6, 1887 (6 Land Dec. 131), issued immediately after the gener-deed, in most of the cases relied upon, the al revocation of indemnity withdrawals, it was provided that any application thereafter presented for lands embraced in a pending railroad indemnity selection, and not accompanied by a sufficient showing that the land was for some cause not subject to the selection, was not to be accepted, but was to be held subject to the claim of the company under such selection. fact a railroad indemnity selection, presented in accordance with departmental regulations, and accepted or recognized by the local officers, has been uniformly recognized by the Land Department as having the same segregative effect as a homestead or other entry made under the general land laws." [32 Land Dec. 53.]

In

Despite the doctrine of this court, as expounded in the cases previously referred to, the unbroken practice of the Land Department from the beginning in the execution of land grants, impliedly sanctioned by Congress during the many years that administrative construction has prevailed, and the destructive effect upon rights conferred by land-grant acts which would result from applying the contrary view, it is yet urged that this must be done because of decisions of this court which it is insisted constrain to that conclusion. One of the decisions thus referred to is Sjoli v. Dreschel, to which we have previously referred, and others are cited in the margin.t

+Sjoli v. Dreschel, 199 U. S. 564, 50 L ed. 311, 26 Sup. Ct. Rep. 154; Ryan v. Central P. R. Co. 99 U. S. 382, 25 L. ed. 305; 31 S. C.-20.

|

previous decisions to which we have referred,
expounding the doctrine of relation, were
approvingly cited or expressly reaffirmed.
*The Sjoli Case, from the facts we have
already stated, is clearly here inapplicable,
because it falls in the third of the above
classes. If it be conceded that general lan-
guage was used in the opinion in that case
which, when separated from its context and
disassociated from the issues which the case
involves, might be considered as here con-
trolling, that result could not be accom-
plished without a violation of the fundamen-
tal rule announced in Cohen v. Virginia,
6 Wheat. 399, 5 L. ed. 290, so often since
reiterated and expounded by this court, to
the effect that "general expressions in every
opinion are to be taken in connection with
the case in which those expressions are used.
If they go beyond the case, they may be re-
spected, but ought not to control the judg-
ment in a subsequent suit when the very
point is presented for decision." The wis
dom of the rule finds apt illustration here
when it is considered that not even an in-
timation was conveyed in the Sjoli Case of
any intention to overrule the repeated prior
decisions of this court concerning the op-
eration and effect of the doctrine of rela-
tion upon the approval, by the Secretary of
the Interior, of a lawful list of selections.
That the general expressions in the Sjoli
Case are not persuasive here clearly re-
sults from the demonstration which we

Kansas P. R. Co. v. Atchison, T. & S. F. R.
Co. 112 U. S. 414, 28 L. ed. 794, 5 Sup. Ct.
Rep. 208; Kansas P. R. Co. v. Dunmeyer,

*394

*395

V.

NORTHERN PACIFIC RAILROAD Co.

have previously made, that to apply them | Dec. 105),† and were found not to be meriwould be in effect to destroy the indemnity torious. The reasons advanced by the Seoprovisions of the granting act. Moreover, retary in support of his rulings upon the that serious general injurious consequences legal propositions involved seem to us conwould arise from treating the expressions vincing, and we therefore hold the contenrelied upon in the Sjoli Case as persuasive tions untenable. Cognate to the contenis clear (a) because to do so would result tions just disposed of is a claim made in in the overthrow of the uniform rule by †RICHARD B. JONES, which the Land Department has administered land grants from the beginning,-a rule continued in force after the decision in the Sjoli Case, because of the administrative conclusion that that case should be confined to a like state of facts, and not be extended to other and different conditions (25 Ops. Atty. Gen. 632); (b) be cause of the destructive effect upon rights of property and the infinite confusion which would now arise from* extending, under the circumstances stated, the observations in the Sjoli Case to the wholly different state of facts presented upon this record.

While the foregoing disposes of the main propositions which the case presents, there

are additional contentions which it is nec essary to pass upon. Irrespective of any question as to the paramount nature of a list of selections, it is contended on behalf of appellee, contrary to the ruling of the Sec- | retary of the Interior: (a) that the selection by the railroad company of the tract in controversy was void and it could not lawfully be approved; (b) in any event, that he was entitled to the land by vir tue of the provisions of an act approved July 1, 1898 (30 Stat. at L. 620, chap. 546); | and (c) the Northern Pacific Railway Company did not succeed to the rights of the Northern Pacific Railroad Company in the land, if any right thereto became vested in the latter company.

a. This contention is predicated upon the claim that the selecting company had not sustained a legal loss of the tract in lieu of which the land in controversy was selected and that if it had sustained the loss, the selection was not lawful, because the tract selected was not on the same side of the

These

railroad as the tract lost, and was not the nearest unappropriated land to it. contentions were considered at much length by the Secretary of the Interior in the opinion, copied in the record, affirming the cancelation of the entry of Jones (34 Land

113 U. S. 629, 639, 644, 28 L. ed. 1122, 1125, 1127, 5 Sup. Ct. Rep. 566; Wisconsin C. R. Co. v. Price County, 33 U. S. 496, 511, 33 L. ed. 687, 694, 10 Sup. Ct. Rep. 341; United States v. Missouri, K. & T. R. Co. 141 U. S. 359, 374, 375, 35 L. ed. 766, 771, 12 Sup. Ct. Rep. 13; New Orleans P. R. Co. v. Parker, 143 U. S. 42, 57, 6 L. ed. 66, 70, 12 Sup. Ct. Rep. 364; Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309.

This is an appeal of Richard B. Jones from your office decision of December 2, 1901, holding for cancelation his cash entry allowed under act of June 3, 1878 (20 Stat. at L. 89, chap. 151), as amended by the act 375, U. S. Comp. Stat. 1901, p. 1545), for of August 4, 1892 (27 Stat. at L. 348, chap. the S. W. of the S. E. of Section 7, Township 54 N. R. 14 W., Duluth Land District.

The land in controversy lies within the second indemnity limits of the grant made in aid of the construction of the Northern Pacific Railroad, east of the city of Duluth, provision for which is found in the joint resolution of May 31, 1870 (16 Stat. at L 378), and was selected by the Northern Pacific Railroad Co. October 17, 1883. This selection remained of record until march 22, 1897, when it was canceled pursuant to departmental decision in the case of the Northern Pacific Railroad Co. (23 Land Dec. 204), holding Duluth to be the eastern terminus of the company's grant, but was reinstated by your office letter of May 26, 1900, under the decision of the Supreme Court of the United States in the case of Doherty v. Northern P. R. Co. 177 U. S. 421, 44 L. ed. 830, 20 Sup. Ct. Rep. 677, holding the eastern terminus of the grant to be at Ashland, Wisconsin. Between the date of cancelation of the selection and before it had been reinstated, to wit, on December 17, 1897, the said Richard B. Jones applied to purchase the tract under the timber and stone acts, supra, and after due publication and proof made entry thereof, December 10, 1898. At the date of the purchase, but not at the date of the application, the tract in controversy, with others, was withdrawn from entry by virtue of the departmentel order of February 28, 1898 (26 Land Dec. 265), but there was a provision in the order permitting the completion of all entries theretofore allowed. It is contended upon the appeal, in substance:

1. That the Northern Pacific Railway Company has no legal or equitable claim upon the United States to be considered the successor in interest to the land-grant rights of the Northern Pacific Railroad Company, and that there is therefore no authority of law for the patenting of lands to the named company.

2. That the company's selection was and is void because no valid basis is assigned.

3. That the selection is irregular and void because the selected land was not, at date of selection, the nearest available public land

962.

argument that the filed list of selections | ant is entitled to the land by virtue of cerwas void for the reason that the joint resolution of May 31, 1870, establishing the second indemnity limits, required certain facts to appear in order to entitle the railway company to the land, and that in selecting the land those requisites were not complied with. The claim substantially embodies merely criticisms directed to the form or regularity of the selection list, and is not, in any view, of such a character as to render void the filed list. The matter being within the jurisdiction of the Secretary of the Interior, we must assume that the facts necessary to establish the right to approve the selections were shown to his satisfaction.

tain provisions relating to the Northern Pacific land grant contained in the subdivision entitled, "Surveying the Public Lands," embodied in the sundry civil appropriation act of July 1, 1898. The provisions are copied in the opinion in Humbird v. Avery, 195 U. S. beginning at page 485, 49 L. ed 292, 25 Sup. Ct. Rep. 123, and need not be here repeated. As there said, they "disclose a scheme or plan for the settlement of the disputes arising out of the conflicting rulings in the Land Department in reference to the eastern terminus of the railroad, and its action in reference to the public lands between Duluth and Ashland." It is argued that the Secretary of the Inte

b. This contention asserts that complain-'rior erroneously decided that the land could

to the section alleged to have been lost in place.

4. That the timber and stone application of Jones, having been presented at a time when the tract in controversy was unappropriated public domain, his application was the equivalent of an entry, and that he thereafter, in accordance with the terms of the order of suspension of February 28, 1898, supra, had the right to complete the same by making proof and payment there

on.

5. That such application having been presented, and such proof and payment having been made, he had, prior to January 1, 1898, in contemplation of law, and within the meaning of the act of July 1, 1898 (30 Stat. at L. 597, 620, chap. 546, U. S. Comp. Stat. Supp. 1909, p. 1503), purchased the land directly from the United States, that he had an entry prior to January 1, 1898, within the meaning of departmental instructions of February 14, 1899 (28 L. D. 103), and that therefore he is entitled to an adjustment of his claim under said act. The question of the successorship of the Northern Pacific Railway Company to the land-grant rights of the Northern Pacific Railroad Company was considered by Attorney General Harmon, February 6, 1897 (21 Ops. Atty. Gen. 486), and referring to certain mortgage foreclosure proceedings this Department was then advised that it should act upon applications for patents by the railway company upon the same considerations which should govern it in case there had been no foreclosure and the applications had been made by the old company. It was but recently urged before this Department that said opinion was ill-advised and unsound, both in law and fact. The matter was again submitted to the Attorney General, and April 12, 1905, Attorney General Moody considered the question, concluding as follows:

"It seems to me that the decision of my predecessor was correct, and accordingly have to advise you, the Secretary of the Interior, that, in my opinion, you should continue to be governed by the rule there laid down."

This question is not, therefore, open for further consideration by this Department. Ferguson v. Northern P. R. Co. 33 Land Dec. 364.

Appellant's second contention, that the company's selection herein is void because of invalid basis, rests upon the allegation that the basis assigned lies within the overlapping limits of the grant to the state of Minnesota, to aid in the construction of a railroad from St. Paul to Lake Superior, made by the acts of May 5, 1864 (13 Stat. at L. 64, chap. 79), and July 13, 1866 (14 Stat. at L. 93, chap. 178), afterwards conferred by the state upon the Lake Superior & Mississippi Railroad Company, and the grant to the Northern Pacific Railroad Company, made by the act of July 2, 1864 (13 Stat. at L. 365, chap. 217); that Congress did not make a double grant within these overlapping limits, and the date of the grant to the Lake Superior & Mississippi Railroad Company being prior to the grant to the Northern Pacific Railroad Company's road opposite the tract, and the tract having been approved to the former company prior to the definite location of the last-named company's road, it was not granted to it, and therefore not lost to that company's grant.

This contention is unsound. This base land is not within the limits of the withdrawal of May 26, 1864, made on account of the grant of May 5, 1864, and the case does not, therefore, fall within the ruling of the Department in the case of Northern P. R. Co. v. Rooney, 30 Land Dec. 403. It is true the base land was certified under the grant of May 5, 1864, but it was because of the fact that it fell within the indemnity limits of that grant as adjusted to the line of definite location, and was selected after the date of the Northern Pacific land grant, but prior to the definite location of that line of road. No question arises, therefore, in this case, of the right of the Northern Pacific Company to satisfy its loss from its second indemnity belt where the base land was in law and fact lost prior to the grant of July 2, 1864. In the case of Re Northern P. R. Co. 23 Land Dec. 204, it was held that because of a proviso in the

397

not be claimed under the act of 1898 by | had no power to purchase the tract of land Jones or his grantee, because, prior to Jan- here in controversy, and that for various uary 1, 1898, Jones had done nothing more reasons the legal proceedings under which than to file his application for the land, the railway company asserted it had acand was consequently not a purchaser en- quired the rights of the Northern Pacific titled to the benefits of the statute. In our Railroad Company in the land were inef opinion no error was committed by the fective to produce any such result. On this Secretary in so deciding. Because we reach this conclusion we must not be consid- record, however, it is not necessary to pass As the object of ered as intimating any opinion whatever upon these contentions. the bill is to seek to charge the defendregarding the soundness of the contention made on behalf of the appellants, to the ants as trustees of the land for complaineffect that, in any event, the act of 1898 ant, plainly, if a valid selection was made, can have no application to one who pur- proof that their grantor never acquired chased land under the timber and stone title to the land would not estabish a right to it in the complainant.