Northern Pacific Company v. Mussersauntry Land Logging Manufacturing/Opinion of the Court
But a single question is presented in this case, and that is whether the withdrawal from sale by the land department in March, 1866, of lands within the indemnity limits of the grant of 1856 and 1864, exempted such lands from the operation of the grant to the plaintiff. It will be perceived that the grant in aid of the defendant railway company was prior in date to that to the plaintiff, and that, before the time of the filing of plaintiff's maps of general route and definite location, the lands were withdrawn for the benefit of the defendant. The grant to the plaintiff was only of lands to which the United States had 'full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed.' 13 Stat. 365.

The withdrawal by the secretary in aid of the grant to the state of Wisconsin was valid, and operated to withdraw the odd-numbered sections within its limits from desposal by the land officers of the government under the general land laws. The act of the secretary was, in effect, a reservation. Wolcott v. Des Moines Co., 5 Wall. 681; Wolsey v. Chapman, 101 U.S. 755, and cases cited in the opinion; Hamblin v. Land Co., 147 U.S. 531, 13 Sup. Ct. 353, and cases cited in the opinion. It has also been held that such a withdrawal is effective against claims arising under subsequent railroad land grants. St. Paul & P. R. Co. v. Northern P. R. Co., 139 U.S. 1, 17, 18, 11 Sup. Ct. 389; Railroad Co. v. Forsythe, 159 U.S. 46, 54, 15 Sup. Ct. 1020; Spencer v. McDougal, 159 U.S. 62, 15 Sup. Ct. 1026.

While it is true that the intent of congress in respect to a land grant is to be determined by a consideration of all the provisions of the statute, and that the word 'reserved' may not always be held to include lands withdrawn for the purpose of supplying possible deficiencies in some prior land grant, yet, as that is the ordinary scope of the word, if any narrower or different meaning is to be attributed to it in this grant the reasons therefor must be clear. The use of a word which has generally received a certain construction raises a presumption that congress used it in this grant with that meaning, and it devolves on the one claiming any other construction to show sufficient reasons for ascribing to congress an intent to use it in such sense. It is said that the phraseology of the various congressional grants is different, and therefore each one must be considered by itself. This, in a general way, may be admitted; but at the same time the frequent use of a certain word in a particular sense is, to say the least, very persuasive that it was used in a like sense in this grant.

But, beyond the significance of the word 'reserved' alone, there are other words in the act which, taken in connection with it, make it clear that these lands do not fall within the grant. 'Otherwise appropriated' is one term of description, and evidently when the withdrawal was made, in 1866, it was an appropriation of these lands so far as might be necessary for satisfying that particular grant. It is true, it was not a final appropriation or an absolute passage of title to the state or the railway company, for that was contingent upon things thereafter to happen-First, the construction of the road; and, second, the necessity of resorting to those lands for supplying deficiencies in the lands in place. Still, it was an appropriation for the purpose of supplying any such deficiencies. Again, in the description, are the words 'free from pre-emption or other claims or rights.' Certainly, after this withdrawal, the Wisconsin Company had the right, if its necessities required by reason of a failure of lands in place, to come into the indemnity limits and select these lands. Can it be said that they were free from such right when the very purpose of the withdrawal was to make possible the exercise of the right? But the language is not simply 'free from rights,' but 'free fr m claims,' and surely the defendant railway company had an existing claim. No one can read this entire description without being impressed with the fact that congress meant that only such lands should pass to the Northern Pacific as were public lands, in the fullest sense of the term, and free from all reservations and appropriations and all rights or claims in behalf of any individual or corporation at the time of the definite location of its road. Railroad Co. v. Sanders, 166 U.S. 620, 17 Sup. Ct. 671. And such is the general rule in respect to railroad land grants.

Railroad Co. v. U.S., 92 U.S. 733, furnishes an apt illustration. In that case the granting act contained the provisions: 'That any and all lands heretofore reserved to the United States, by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act.' 12 Stat. 772. And it was contended that an Indian reservation was not excepted from the grant because the lands were not reserved to the United States. Upon this the court said (pages 741, 747): 'Congress cannot be supposed to have thereby intended to include land previously appropriated to another purpose, unless there be an express declaration to that effect. A special exception of it was not necessary, because the policy which dictated them confined them to land which congress could rightfully bestow, without disturbing existing relations and producing vexatious conflicts. * * * Every tract set apart for special uses is reserved to the government, to enable it to enforce them. There is no difference, in this respect, whether it be appropriated for Indian or for other purposes.' See, also, Newhall v. Sanger, 92 U.S. 761, in which it was provided that the grant 'shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, nor include any government reservation or mineral lands, or the improvements of any bona fide settler'; and it was held that the lands within the boundary of an alleged Mexican or Spanish grant which was sub judice at the time the secretary of the interior ordered a withdrawal of lands were not within the grant to the company. In U.S. v. Southern Pac. R. Co., 146 U.S. 570, 606, 13 Sup. Ct. 152, it was said: 'Indeed, the intent of congress in all railroad land grants, as has been understood and declared by this court again and again, is that such grant shall operate at a fixed time, and shall take only such lands as at that time are public lands.'

There is no force in the contention that this construction might operate to defeat the entire grant to the plaintiff. At the time of the passage of the act of 1864 only in the vicinity of the proposed eastern and western termini were there any settlements. The great bulk of the territory through which the road was to pass was almost entirely unoccupied. Congress, fixing the time for commencing and for finishing the work within 2 and 12 years, respectively (section 8), contemplated promptness in the construction of the road, inending thereby to open this large unoccupied territory to settlement. In view of the road's traversing a comparative wilderness, it made a grant of enormous extent. Within the unoccupied territory thus to be traversed there were few settlers, and few, if any, land grants. It knew, therefore, that if the company proceeded promptly, as required, it would find within its place limits nearly the full amount of its grant. It must be presumed that congress acted and would act in good faith, and, of course, there could be no intent to deplete this grant to plaintiff by subsequent legislation in respect to land grants. On the other hand, it must be noticed that the grant to the state of Wisconsin to aid in the construction of the road of the defendant railway company was prior to that to the plaintiff, and also that prior thereto the defendant had filed its map of definite location. In passing the act of July 2, 1864, it is therefore reasonable to suppose that congress had in mind its earlier grant, and did not intend that it should be diminished in any manner thereby, but meant that the defendant railway company should receive either within its place or indemnity limits the full amount of its lands. This, doubtless, was one of the considerations which made the grant to the Northern Pacific of so large an extent.

It may be well, in concluding this opinion, to again note the fact, already mentioned, that the withdrawal here considered was one in favor of an earlier grant. It may be that a different rule would obtain in case it was in favor of a later grant. As to place lands, it is settled that, in case of conflict, the title depends on the dates of the grants, and not on the times of the filing of the maps of definite location. In other words, the earlier grant has the higher right. No scramble as to the matter of location avails either road, and it may be that the same thought would operate to uphold the title to the place lands of an earlier as against a withdrawal in favor of a later grant. Neither is it intended to question the rule that the title to indemnity lands dates from selection, and not from the grant. All that we here hold is that when a withdrawal of lands within indemnity limits is made in aid of an earlier land grant, and made prior to the filing of the map of definite location by a companye having a later grant,-the latter having such words of exception and limitation as are found in the grant to the plaintiff,-it operates to except the withdrawn lands from the scope of such later grant.

We see no error in the record, and the decree of the court of appeals is affirmed. 

Notes