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April 11, 1921



White, McKenna, Holmes, Day, Van Devanter, Pitney, McReynolds, Brandeis, Clarke

Author: Van Devanter

[ 256 U.S. Page 58]

 MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

This is a suit by the United States to cancel a patent issued to the railway company for 5,681.76 acres of land in Montana, the asserted ground for such relief being that the land officers issued the patent through inadvertence and mistake. The company prevailed in the District Court and in the Circuit Court of Appeals, 264 Fed. Rep. 898, and the United States brought the case here.

The lands in question are within the indemnity limits of the land grant made to the Northern Pacific Railroad Company by the Act of July 2, 1864, c. 217, 13 Stat. 365, as modified and supplemented by the joint resolution of May 31, 1870, 16 Stat. 378, and were selected and patented as indemnity for lands lost within the place limits. The rights and obligations of the original railroad company arising out of the grant have long since passed to the present railway company and there is no need here for distinguishing one company from the other.

The grant was made for the declared purpose of "aiding in the construction" of a proposed line of railroad from Lake Superior to Puget Sound and Portland, Oregon,

[ 256 U.S. Page 59]

     and "to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores" over such line. It was expressed in present terms -- "there be, and hereby is, granted" -- and was of "every alternate section of public land, not mineral, designated by odd numbers" within prescribed place limits on each side of the line, excepting such sections or parts of sections as should be found to have been otherwise disposed of, appropriated or claimed, or occupied by homestead settlers, or preempted, prior to the definite location of the line. Nelson v. Northern Pacific Ry. Co., 188 U.S. 108. As indemnity for any lands so excepted, as also for any excluded as mineral, other lands were to be "selected by said company," under the direction of the Secretary of the Interior, from unoccupied, unappropriated, nonmineral lands in odd-numbered sections within prescribed indemnity limits. The line of the road was to be definitely located by filing a map or maps thereof in the General Land Office; and the road when constructed was to be "subject to the use of the United States, for postal, military, naval, and all other government service, and also subject to such regulations as congress may impose restricting the charges for such government transportation." As each consecutive twenty-five miles of road was constructed and made ready for the service contemplated, the same was to be examined by commissioners selected by the President, and, if they reported that the same was completed in all respects as required, patents were to be issued to the company for the lands opposite to and coterminous with the completed section. The President was to cause the lands along "the entire line" to be surveyed for forty miles in width on both sides "after the general route shall be fixed, and as fast as may be required by the construction of said rail road"; the granted sections within the place limits were to be withheld from sale, entry and preemption, except as against preemption and

[ 256 U.S. Page 60]

     homestead occupants whose settlement preceded the definite location of the line; all lands within the indemnity limits were to be and remain subject to the operation of the preemption and homestead laws, save as the odd-numbered sections should be taken out of the operation of those laws by indemnity selections made to supply losses within the place limits (Hewitt v. Schultz, 180 U.S. 139, 147-149, 155-156; Weyerhaeuser v. Hoyt, 219 U.S. 380, 387-388); and the price of the even-numbered sections retained by the United States in the place limits was to be increased to double the usual minimum. If the company accepted the terms on which the grant was made, it was required to signify its acceptance in writing under its corporate seal within two years.

The company duly accepted the terms of the grant, filed appropriate maps of the general route, afterwards definitely located the line in the mode prescribed, and constructed and completed the road from Ashland, Wisconsin, on Lake Superior, to Tacoma, Washington, on Puget Sound, and thence to Portland, Oregon, its full length being more than 2,000 miles. The definite location was completed in 1884 and the construction in 1887. The road as completed was examined and favorably reported by the commissioners and accepted by the President. Reports of Commissioner of Railroads -- for 1885, p. 22; 1886, p. 36; 1887, p. 24; 1888, p. 24; Doherty v. Northern Pacific Ry. Co., 177 U.S. 421; United States v. Northern Pacific R.R. Co., 95 Fed. Rep. 864: s.c. 177 U.S. 435; United States v. Northern Pacific R.R. Co., 193 U.S. 1.

The losses to the grant in the place limits through other disposals, homestead settlements and the like prior to the definite location of the line, and through the exclusion of lands found to be mineral, amounted to several million acres. To supply these losses it was necessary to resort to the indemnity limits, as was ...

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