884
FEDERAL REPORTER,
vol. 43.'
five m'Ues In width on each side of said river, to be selected within said territory by an agent or agents to be appointed by the govern9r thereof, subject to of the secretary of the treasury of the Vnited States." 9 St. c. 103" § 1. ' The Des Moines riv.er naes in the northern part of Iowa, and empties into the Mississippi at the south-east corner of that state. The Raccoon fork, coming from the north-west, enters the Des Moines river, near the center of the state, many miles above the mouth of that river. Subsequently, on the 15th of May, 1856, congress granted to the state of Iowa;fo:r the purpose of aiding in the construction of certain railroads within its limits, every alternate section of land, designated by odd num. bers, fur six sections, in width on each side of each of said roads, with a proviso substantially in the words of the sixth section of the act of May 5, 1864, now before us.' That proviso (the jta1ics are purs) was in these words: "rrbat 80'Y and all land' heretofore ,reserved to the States ,by any act of or in any other manner:,by(jofflpetentau.thority. fo.r,the purposfl of ailling any objects. improvements, ort:or.anY purpose what. 80ever,. be, same reserved from the operation of this act. except so far as it may befoti!id necessary t? locate the routes Of the said rail c roads through such reservE!d land, in WhICh case the right df way shall be gratited;subject to the approval of the president of the United States." 11 st. p.9J 0.;28. § 1. : '. '. . .· ' . 0>. v. Ditchjield, 23 How. it decilled that the grant of 1846,did'hot lands above Raccoon for:tt,-thatis,. lands north and its the Des Moinesriverj but only lands below suchjuMtf011 'Vithinthe llrascribed distance from the river. In Wolcottv. NavigatwnOo., 5 Wall. 681,687, which illvolved the title to certain lands coveted by the above grant of 1846', it appp-ared that in August; 1859; the COmpal}Y, ,to' which the state,' succeeding to the riglli£l olthe territory, had in ;Mfiy; 1858, transferred the land granted to the territory, conveyed to Wolcott a halfsectitln within five miles of Des Moiries'river, but situated a.bove the junction of Raccooh fork with that river, and warranted the title. At the date of the passage of the act of May 15,1856, the odd-numbered' sections. within five miles of Des Moines river, above tile point where the; Racco'on fork empties into it, had beenreserved; notih terms ," tothe United States," but from sale by the proper officer having charge of the public lands. That reServation was in the belief, shared by many publiC officers,. that the grant of 1846 'included the odd-numbere,d sections above,as well as those below, that fork. within the prescribed distance from the river. The question' ''''ab'as.to the scope and effect of the proviso in the act of , It was admitted thattb,e graiit to Iowa by the aet of May 15, 1856,'for the benent of the railroads named in, it, embraced .the lands thennn dispute;'unlesstheY were exCluded by the This doni-taBid: ' , ' .. We thinklt difficult to resist the conclusion that congress, in the passage oUlle proviso, had specially in their minds this previoos.gtant.3ud the conflict 'fl( the 0l>illion'concerning it, and intendtld to reserve the lands for further dis..
WISCONSIN CENT. R. CO. V. FORSYTHE.
885
position, If the title under the first grant should turn out to be defective. The decision of this court had not then taken place, though the litigation was probably pending in the court below, in the district of Iowa. The words of the proviso point almost directly to this grant, and to the dispute arising out of it among the public authorities: · All lands heretofore reserved,' etc·· · by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any objects of internal improvements,' etc. These improvements of the Des Moines river were then in progress. Now, if it had turned out that the true construction of the act carried the grant above the I-taccoon fork, then the lands would have been reserved by the act of congress; and no further leKislation necessary. But. not satisfied with this, as if to prOVide for any result in respect to the title to them, if 'reserved in any other manner by competent authority, for the object of internal improvements, then the enacting clause should not operate to carry them ijnder the pew grant. . . .. "It has been argued that these lands had not been reserved by competent authority, and hence that the reservation was nugatory. As we have seen, they were reserved from sale for'the special purpoileof aiding in the improvement of the Des Moines river; first, by. the secretary olthe treasury, when· the land depnrtment was uMer hi,s.supervision and control, and again by the secretary of the interior, after. the of this department in. structiol1s from. the presiQent and cabinet. Besides, lithjs. power was not; competent, which we think it was ever since the of the land department, and which has been exercised down to'the present ·tIme. the grant of 8th August, 1846, carried along with it, by necessary implication,} not only the power, but the duty,'of the land-office to reserve from sale the< lands embracedin the grant.. Otherwise. its object might defented. Hence, imm'EMliately upon agra.I)t being made by congress for any. of those public purposes to a state, ,notice i.s given by the cOIDlllissioner of ()ffice to the registers and receivers' to stop all sales, either pu bUe or by pflvate entry. Such notice was giventhli same day the grimtwas made, in 1856;'for the benefit. of these railroads. That there was a dispute existing as to the: extent of the. grant of 1846 in no way affects the question.. The serious con-, fiict of opinion among the public authorities on the subject made it the duty. ()f land-officers to withhold the sales, and reserve them to the United States till it was ultimately disposed of... .These observations are, pertinent to the case in hand. What was said in the Wolcott am by th;e supreme court of the United States betlrs, directly upon the inquiry whether the reservation by the secretary ()f the interior from sale or location of the lands within .the ind,emnity, limits of the Bayfield. road was not a reservation "to the United States." In that case the withdrawal of lands from sale or location was distinctly asa reservation of that class. The decision tains the that the embraced by the secretary's order of . withdrawal in the present case were "reserved to the United It is peculiarly strong in application here, by reason of the fact t:hat, the lands ."reserved" in the Iowa case were not in f.l!.ct, embraced1:>Y gress in the grant of 1846, apd consl;lquently could n()t rightfully b,e useli for the purpOSElS ,for which they were withdrawn, The v. Nat-igation Co. was approved. and ip many (lases: v: VaUeJi R. Co.,17 Wall.,153; Wolsey v,Chap. man, 101 S. 755; Litc"",p,dv. Oounty oj Webster, ld. 773; D'lfbuque,<
a,.. y';pejlMoi1UJ8J.'"al. R.qo.·
886:
,tije, cltl1e sp, f,"'J; lk4epends upon th,e question ;whether the,landsdn;di$pute, to the United 'If the: lands involved in the werej within act {),f 15, 1856, "reto Iowa in that grant, and coulq'npt pe, qseq woulg it be held that the landB,W;itbin the origiollJindemnity:limits of the Bayfield road,reserved by the .secretarY's order of'-withdraw&, were,within'the meaning of the sixth 8'ectron' ofthe! act of ":reserved to the'UtiitM States." c(lnt!;ptioll ,part'9.f tbl;} plaintitqs, that, even concedbeing withing dr41,\Y,Il"pnpf ,W" .. the object for whichtbe ,withdrawal was ,madeji nllimely,' tosnpplydeficiencias in the pla:oe ,limits, the Bayfield, Tolld, ·were ·rully 'satis1i'edi before the defendant made' his'entty.. land. grant for the be by the granting act;anll sq becoqie, q,tid be ,the property This view is in opposition to many adjudged cases. "Whatever, force itmighthave'in the case of . g1\ahts w'differeI'ltcotnpatries,'tl0vering the same or-which Was "reserved to .. in the 'present, Galle,'tlie 1,lpP, . operatIOn anY and aU ,IUheae 11lnds were'reser,ved when the act of 1864waa.' passed, theycenainly:were In,,tgranfed iby the third section of that 8'ct ,tot tbe Oentralroad;and could 'not get ihto the grant· to,. and' be'coine thti of. the of their' not being . for the adjustmen't of a ditrereti'tgrant, made for another ·. is sevekl' ·. In Railwa,y Oq. . JI18 U. 629?5' SU,i).:m. Rep.' 566. the question wlis whether '1a'ddf! 'tb which It claiIii' of :homestead "att:ibhed" after the pas<Yftliplct;g,rltiltifig lands 'to IV railroad comptuiy'\,Dut before its line waS definitely'lbcatedjrevetted t()the' apart of its ','ihomesteader"'tdperfect his claim grant, i!Jthe niOde:'tequheaby la'r' 'It was held that tPiey:did not, for the rellson: 'tbaHbe 'grant to the' 'railroad company ofllinds within certain }lrescHoEM Jlhnils'as tb quantity and Idcatiob;:;¥ribt sold,reserved, ' and to\Yhich a or otherwisEHiisposedof by the :UniteJd' tionorh6n'1etslead·" Clarmniayribt"ha\+e attached: at'the time the line of said ¥bBd 'i$!.dElS}jftely located.?!i ',' 'I'bwg'a'djudged tllat the lands to which the' homeStead'claifuhad not be included in the grant to tberailr()i\d'OO'r1¥,Pany. .' , . ..'" \ ;ever l'."clb,de ,Iand!l .t,heUnlted States, wblch.'i6s'ed'lItlon c'elisedto exist, within the grant,thl,)\\gh thii' road,'amFOtlielll"w1th grahts iii similai language, have more tlian once'
;Wi
an.
sa.ge
WISCONSIN,' QENT.B.
co.
11. FORSYTHE.
887
PJ¥wedtbrQltgb
givtjn ,up or re¥fvations,:311(l: were of great Nor is it unqerstQ04that ill a.ny c,ase ",hoce had peen disp'osed, their reversion to the, government brought the. grant. Why should a different constrdctioll. apply to lands. to 'which a homestead or pre·emption· right bas attachedi': "Did 'congress hitlmd tti say that the'hght()f the company also attached,a<ndwhichever proved tb bethe,betterl'ight should obtain tbe llUl,d? 1[<, I[< pUf}lQse of.. thQgovernment un· that namely, ",1\i1e. we, givingliberalJ>hto the give hll:Y(t( or.t,o whlcb,accordln.gto our Ia,W's,we have permitted lI. pre-emI?tlOn or right to' attach. No right, to stich land passps bytbis' grant. ... ' . ... It neceasarHy means that, ifsl1chirights have attached/they [the'lands] are not '
f()l"Iis and: other pl.irpot:tes' which i
11'521: ; !
, So in Bullard v. _,.; "" :;
", , ' "
of the to PIlYil,R"declaration o.fl til" QOUft ,that the title of l,llilder these and superiur to the tirtle on the under ,If the lands at tQe,ti,me of these settIEl91ent'S il;lnd pre.elJ.lption dilc}ij.rl\tiPl\B,W'!:U'e effectual:ly witp,drawl1from Or pre-emption, by orders of the depa,rtml'nt, whicp, we toth!! plaintiff's title, for by th!'t withdrawal or the la,pds were reserved for anothet purpose,' to.which ,they were ultimately apptopriated'by line 'act of 1862, and no title could be established, becausetbe;'land department:hadtJo it." I ' : I, ;
I'. !,' .' ·i"'::':':'· .
Co., 122' U. S. ' " . .
!(': ,'I!)
." ;1', ,'.'
7,
'
.
'IIi:RtiiUooild'do. v. '132 ,l1,2;'the contest was between a railroad company, claiming under a grant of lands made 'in' 'l"8Mtothe state dfMinnesota, similart(Vthe'on.e'ipvol\Ted in the 1)Ullmeyer fuBti; . Before the passage of act,' tlamely; ip lSi65, one Turner took- 'eertain preliminary steps, under the 'homestead la#s'of the United for the entry,of.!thelandsthereitl'dispute. 'The entry made bY. him)wRs, hoWever; 'tatlooled iIi 1872; and' in 1877to.rsame laildswere,enlered by Mrs. Whitney as ahdniestead. 'The grant9H866 eXcepredi:Itinds to which a right of homestead or pre-emption"lhM'attaclied)'''' The claim ofthe railroad depended \ipoti the questionwhetner the lands came into the grant Of 1866, upon the cancellation in 1872 of the entry made by Tutnerinl865. It was held that Turner's entry, not l>eing void upon its faee; operated to exclude the land from the tailh>ad gralit, and that, upon the cancellation entry,thetract in q,uestiorfdid Ii!)t inure t() tllepenefitof thecompiiily ,but revel-tedto the becam¢'iapan.of the public dpxpam, subjflct to appropriation by the first leg!lI ,applicant. , These eases are, in the judgment of this court,conclllsive the contention that the lands' here in dispute becatne plu1i of the place lands of theCenttld road, after for the benefit Of ihe other road had COlnpa'nr,anQaaU,sfiedwitll 'other ".' ,.,i. ':, It remai:ilstoconsfderthe, elaiJn of the
""
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of ,release by
the agree-