McComas v. Northern Pac. Ry. Co.

Mr. Justice Burnett

delivered the opinion of the ■court.

Although other lands are included in the complaint, the parties stipulated disposing of the title to all except the following: Lots 2 and 4 of section 5, and lots 1 and 2, the north half of the northeast quarter, and the northeast quarter of the southeast quarter, of section 7, all in township 5 north, range 30 east, Willamette Meridian. There is substantially no dispute . about the facts in the case.

1. Section 3 of the congressional enactment mentioned reads, in part, as follows:

“That there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the purpose of aiding in the construction •of said railroad and telegraph line to the Pacific Coast, '* * every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever ■on the line thereof, the United States have full 'title, not reserved, sold, granted, or otherwise appropriated, *642 and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed,, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the-limits of said alternate sections. * * Provided, further, that all mineral lands be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections,, nearest to the line of said road may be selected as above provided. # * ”

The line of the road was definitely fixed, and the plat thereof filed in the office of the Commissioner of the General Land Office June 29, 1883. This act has been construed to operate as a present grant begin- • ning with that date, so that eo instanti the title of the-grantee vested in all lands to which the statute applied.

2, 3. It appears that the Governor of Oregon, operating under “An act to enable the State of Arkansas . and other states to reclaim the swamp-land within their limits,” approved September 28, 1850, and made applicable to the States of Minnesota and Oregon by the act of March 12, 1860, filed with the proper authorities of the general government in 1872 a list of lands, including those in controversy, which it claimed were swamp-lands inuring to the State of Oregon under the acts of Congress last mentioned. On August 10,1892, and March 15, 1895, the State of Oregon-conveyed. these lands to the plaintiff’s predecessors, in interest from whom by mesne conveyances he de *643 •raigas title. The grantees in those deeds at once entered into possession of the realty therein described, and they and their successors in interest have continuously maintained that tenure until the present time, claiming title and have made improvements on the premises amounting in value to $10,000 and upward. As before stated, the plaintiff contends that this constitutes adverse possession under color of title which vests in him the fee-simple estate as against the defendants, although, as the fact appears to be as to some of the disputed subdivisions, the swamp-land claim of the State of Oregon has never been adjusted, while as to others it has been rejected by the officers of the general government. It is agreed that all the realty in question lies within the 40-mile place limits of the railway line, so that if no claim existed against it at the time the line of the road was definitely fixed it would be among the 20 alternate sections per mile on each side of the designated line of road. The contention of the defendants is that the presence of the state’s swamp-land list in the proper United States Land Office constituted a claim against the land which took it out of the operation of the grant with the result that the tracts were part of the public domain and not subject to holding by adverse title. Some of this very land was patented to the defendant railway company, which, assuming that the patent had been issued inadvertently, quitclaimed the property to the United States, and then, after the commencement of this suit, filed in the United States Land Office at La Grande what it termed mineral indemnity selections covering the most o‘f the premises in controversy. The defendants say these selections have been approved and depend upon them for their title to the land.

*644 Conceding, as the precedents seem to hold, that the filing of the swamp-land list by the State of Oregon constituted a claim within the meaning of the railway grant excluding the lands from its operation proves too much for the defendants. The plaintiff has clearly established color of title by deed from the state for the very land. He deraigns title from this source which the defendants say took the property out of the operation of the grant. It is beyond question that the property has been in the exclusive possession of the plaintiff and his grantors under this color of title for more than ten years prior to the commencement of the suit.

4,5. The authority for filing mineral indemnity selections is found in the provision of the congressional statute “that all mineral lands be and the same are hereby excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections, nearest to the line of said road may be selected as above provided,” that is to say, “no more than ten miles beyond the limits of said alternate section.” The indemnity, therefore, must be taken out of unoccupied agricultural lands; but this land has been in fact occupied all this time. Moreover, in Bardon v. Northern Pacific R. R. Co., 145 U. S. 535, 545, 36 L. Ed. 806 (12 Sup. Ct. Rep. 856, 860), the Supreme Court of the United States, speaking by Mr. Justice Field, in construing this same legislation, said:

“Not only does the land once reserved not fall under the grant should the reservation afterward from any cause be removed, but it does not then become a source of indemnity for deficiencies in the place limits. Such deficiencies can only be supplied from lands within limits designated by the granting act or other law of Congress.”

*645 In Northern Lumber Co. v. O’Brien, 204 U. S. 190, 51 L. Ed. 438 (27 Sup. Ct. Rep. 249), the act was again under consideration. A claim to certain lands within the 40-mile place limit prescribed by the grant made before the Northern Pacific Railway Company had filed its map of definite location was found to be ineffectual, although an order of the Land Department withdrawing it from the category of public lands had been predicated upon it. Under these conditions, Mr. Justice Harlan, speaking for the court, said:

“When the withdrawal order ceased to be in force, the lands so withdrawn did not pass under the latter grant, but became a part of the public domain, subject to be disposed of under the general land laws, and not to be claimed under any railroad land grant.”

If the filing of the swamp-land list therefore constituted such a claim as to exclude the land from the, operation of the railroad grant, the cancellation or rejection of that list would not operate to extend the grant over the disputed tract. In other words, the grant does not purport to affect or attach to any subsequent status of the title. On the other hand, if the mere filing of the swamp-land list did not affect the title granted in praesenti by the congressional enactment, the holding of the plaintiff and his grantors has been clearly adverse for sufficient length of time to ripen into a fee-simple estate as against the defendants. Still further, under the authority of the Bar-don Case, the indemnity selections could not be made from any land except what had always been exempt from any claim excluding it from the provisions of the act in the first place. In default of other legislation, the grant embodied in the act of July 2, 1864, attached at the date of the filing of the plat of definite, location or never. Whatever the general government *646 afterward might do toward extinguishing the claim of the state under its swamp-land filing or the assertion of title by the plaintiff it would not inure to the benefit of the defendants in the matter of filing indemnity* selections. The act evidently applied to virgin public domain and to no other, both in the original taMng and in subsequent indemnity selections.

The plaintiff comes within the reason of the rule of Boe v. Arnold, 54 Or. 52 (102 Pac. 290, 20 Ann. Cas. 533), to the effect that one may enter upon public lands, and by holding the same adversely to all persons except the government may acquire title thereto as against those other parties. Under the authorities quoted, it is clear that the rights of the defendant under the act of July 2, 1864, never attached to this land, and that it had no right to include it subsequently in its indemnity selections. It is also equally plain that as between the parties to this suit the adverse possession of the plaintiff and his grantors for more than ten years has vested the title in the latter as against the company.

The decree of the Circuit Court is affirmed.

Aeeirmed.