Weyerhaeuser v. Hoyt/Dissent Harlan
Mr. Justice Harlan, with whom concurred Mr. Justice Day, dissenting:

This case is of sufficient importance to justify a full statement of the facts, as well as the grounds upon which we feel constrained to dissent from the opinion and judgment of the court.

By the final decree under review, the circuit court of appeals for the eighth circuit unanimously reversed the judgment of the circuit court, with directions to give the plaintiff Hoyt, now appellee, the relief asked in his bill.

The general object of the suit was to have it adjudged that the present defendants, Weyerhaeuser and Humbird, now appellants, should hold the legal title to certain lands in Minnesota in trust for the plaintiff, and be enjoined, during the pendency of the cause, from selling, disposing of, or removing, or from attempting to create any charge upon the timber standing or lying upon the premises in question.

Many questions have been discussed by counsel. But there is one which seems to require special examination. The facts out of which that question arises may be thus stated:

The land in question is the southwest quarter of the southeast quarter of section 7, township 54, of range 14 west, principal meridian. It contains 40 acres, and is situated in St. Louis county, Minnesota. It is unfit for cultivation, is valuable chiefly for its timber, has no valuable deposit of gold, silver, cinnabar, copper, or coal upon it, was at the time mentioned in the record uninhabited, and contained no mining or other improvements.

For the purpose of availing himself of the act of Congress relating to the sale of timber land in California, Oregon, Nevada, and Washington territory, approved June 3d, 1878 (20 Stat. at L. 89, chap. 151, U.S.C.omp. Stat. 1901, p. 1545),-which act was amended August 4th 1892, and its benefits extended to all the states (27 Stat. at L. 348, chap. 375, U.S.C.omp. Stat. 1901, p. 1434),-one Richard B. Jones, a citizen of the United States, and admittedly, in all respects qualified under the laws of the United States to enter land, filed, December 17th, 1897, with the register and receiver in the land office at Duluth, a verified written duplicate statement, in due from, indicating his desire to purchase the land in dispute under the homestead laws of the United States. One of these statements was promptly transmitted by the receiver to the General Land Office at Washington.

The receiver, in conformity with law, at once posted in his office, for the required time, the fact of such application, describing the lands by legal subdivision, and furnishing Jones a copy of such notice. That notice was duly published in the newspaper nearest to the land. On the 27th day of March, 1898, no adverse claim to the land having been filed in the land office, the applicant, Jones, after furnishing to the local register satisfactory proofs of the preliminary facts required by law, paid to the receiver the full purchase price of the land, together with all fees legally due to those officers. Thereupon he was permitted, December 10th, 1898, to enter, and did enter the land, the receiver executing and delivering to him at the time an official receipt and certificate of purchase. In December, 1898, all the papers and testimony in the matter of Jones's application, including his certificate of purchase, were transmitted by the register and receiver to the General Land Office at Washington, and by that office were received and filed. On December 19th, 1898, Jones and wife sold and conveyed the land to Minnie Stewart, by deed properly recorded on October 3d, 1902. Stewart and wife conveyed to Hoyt, the present plaintiff, now appellee, and that deed was also duly recorded October 3d, 1902.

On the 2d day of December, 1901,-nearly three years after Jones got his certificate of purchase, and after he had sold the land,-the Commissioner of the General Land Office made a decision, holding for cancelation the entry made by Jones, as above stated, declaring it to be void on the ground that this land (using the words of the Commissioner) 'was selected by the Northern Pacific Railroad (now Railway Company) October 17th, 1883, for the second indemnity, per list, rearranged list 15 B, in lieu of land in Section 11, T. 46 R. 16 W., in the primary limits disposed of between date of grant and definite location of the road, which selection has not since been abandoned or the basis otherwise used. The selection was canceled, however, by letter of March 22, 1897, because the land is east of Duluth, the then [supposed] eastern terminal of the grant under departmental ruling; but said cancelation was rescinded and the selection restored by letter of May 26, 1900, under the decision of the U.S. Supreme Court (177 U.S. 435, 44 L. ed. 836, 20 Sup. Ct. Rep. 706), that the grant extends to Ashland, wisconsin. December 17, 1897, Richard B. Jones applied to purchase said tract under the timber and stone law, and after due publication and proof made entry thereof December 10, 1898. Cash certificate No. 14,812. Under the decision of the court, the selection of the company is a valid selection, and the claim of Jones not having been perfected prior to January 1, 1898, his claim is not within the act of July 1, 1898 [30 Stat. at L. 597, chap. 546, U.S.C.omp. Stat. Supp. 1909, p. 1503], (departmental decision of May 22, 1900, Salter v.

'It might well be assumed that very likely the Atlantic & Pacific Company would be called upon to select from the indemnity lands a portion sufficient to make good the deficiency in the granted limits. That right of section was a prospective right, and if it was to be fully exercised, no adverse title could be created to any lands within the indemnity limits. Suppose, for instance, it should turn out that only half of the indemnity lands were necessary to make good the deficiency, and that one half of such lands were well watered and valuable, while the remainder were arid and comparatively valueless; obviously the right of selection would be seriously impaired if it were limited to only the arid and valueless tracts.'

In that case the court had under consideration the prospective right of the Atlantic & Pacific Railroad Company to oddnumbered sections within the indemnity limits of its grant made by act of July 27, 1866 (14 Stat. at L. 292, chap. 278), which grant has the same indemnity provisions as the Northern Pacific act of 1864, with the exception that indemnity for losses to the grant on account of mineral lands is limited to 'odd-numbered sections nearest to the line of said road and within 20 miles thereof.' With regard to this latter provision it will be noticed that the selection is limited to odd-numbered sections within the primary limits of the grant, as those limits are 20 miles on each side of the road in territories, thus, in effect, nullifying the provision, because the sections from which selections are to be made were specifically granted in place.

The resolution of May 31, 1870, supra, providing for a second indemnity belt to the Northern Pacific grant, before quoted from, merely limits the place of selection to a belt '10 miles on each side of said road, beyond the limits prescribed in said charter,' etc.

The act of 1864 and the resolution of 1870 each, therefore, establish a limit beyond which the company cannot go on making its general indemnity selections, but in neither is there any requirement limiting such selections to the lands nearest the sections in which the losses to the grant occur, and to so limit such selections would attach a condition or limitation upon the right of selection not found in the granting acts.

That the right of selection conferred by these acts cannot be restricted by the Secretary of the Interior seems clear. His duty in the premises is to supervise the administration of the grant, but this authority does not permit him to abridge or enlarge the laws of Congress. We should see that the selection made in satisfaction of the grant are confined to the lands described in the granting act; but, as between different sections, equally within the description contained therein, he cannot say which may or which may not be selected, for in so doing he would be denying the railroad company the right to make the selection. See Willamette Valley & Cascade Mt. Wagon Road Co. v. Bruner, 26 Land Dec. 357.

Attention has been called to the circular of August 4, 1885 (4 Land Dec. 90), relating to railroad indemnity selections, and requiring a designation of a loss as a basis for all indemnity selections, in which circular it is said that 'where deficiencies exist, for which indemnity is allowed by law, the lieu selections must be made from vacant, unappropriated land within the proper sections and limits nearest the granted section in which the loss occurred.'

This circular was issued before the opinion of the Attorney General or the decision of the court referred to. Its main purpose was to require the specification of a loss as a basis for the selection, thereby aiding the adjustment of the grant; for it required the designation of a loss as a basis for all selections previously approved and certified as well as for those then pending or thereafter to be made. Company). Said entry is therefore hereby held for cancelation for conflict with the prior valid selection of the company subject to appeal. Notify him hereof; the company will be informed by this office.'

It does not appear that Jones, or anyone claiming under him, had any previous notice of this order, or that there was any trial or regular hearing of the matter in the General Land Office.

Upon appeal to the Secretary of the Interior, the above order of December 2d, 1901, was affirmed, and subsequently, but not until October, 1905, a patent was issued to the Northern Pacific Railway Company. 34 Land Dec. 105.

When Jones entered and purchased the land, paying the government price for it, and receiving a certificate of his purchase,-which purchase was made and which certificate was given nearly seven years before a patent was issued to the railroad company,-there was in the Land Office a list of selections alleged to have been filed by the railroad company on October 17th, 1883. But the list did not assign each selection to specific land in the granted limits, which it was asserted had been lost by the company. That list was received at the local land office, and transmitted to the General Land Office, But on the 11th of April, 1893, the railroad company, acting under the direction or suggestion of the Secretary of the Interior, 'rearranged' its list so as to specify the particular tract lost in the primary limits. In such list the lands in dispute here were set opposite to particular lands lost in those limits. The lands mentioned in the company's list, whether we take the original or rearranged list, were, it must be remembered, within the indemnity limits of the grant made by Congress in 1864, in aid of the construction of the Northern Pacific Railroad. That is not disputed.

The principal assignment of error is that the entry and purchase by Jones-under whom Hoyt claims-of the lands in question were subordinate to the rights acquired by the mere filing of the list of selections by the railroad company, followed as that was by the approval of the Secretary of the Interior and by a patent, although such approval was not given, nor, as we have seen, the patent issued to the railroad company, until many years after Jones received his certificate of purchase from the government.

Upon final hearing in the circuit court, the bill was dismissed. But upon appeal to the circuit court of appeals, all the judges concurring, that judgment was reversed, and the case sent back with directions to enter a decree for the relief asked in the bill. Rec. 214, 88 C. C. A. 404, 161 Fed. 324. The principles in the latter case were accepted and applied by the supreme court of Minnesota in Northern P. R. Co. v. Wass, 104 Minn. 411, 116 N. W. 937.

Section 3 of the charter of the Northern Pacific Railroad Company of July 2d, 1864 [13 Stat. at L. 369, chap. 217], provided: 'and be it further enacted 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, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, 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 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 10 miles beyond the limits of said alternate section. . . .'

But Congress afterwards broadened or extended the limits into which the railroad company, under the direction of the Secretary, might go in order to supply deficiencies in the granted limits. By the joint resolution of May 31st, 1870 (16 Stat. at L. 378), amending the above act of 1864, 'second indemnity limits' were created. The resolution provided: 'And in the event of there not being in any state or territory in which said main line or branch may be located, at the time of the final location thereof, the amount of lands per mile granted by Congress to said company, within the limits prescribed by its charter, then said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections of land belonging to the United States, and designated by odd numbers, in such state or territory, within 10 miles on each side of said road beyond the limits prescribed in said charter, as will make up such deficiency on said main line or branch, except mineral and other lands, as excepted in the charter of said company of 1864, to the amount of the lands that have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of subsequent to the passage of the act of July two, eighteen hundred and sixty-four. . . .'

The fundamental inquiry in the case is whether Jones's entry, occupancy, and purchase of the lands were subject or subordinate to the previous filing of the list of selections by the railroad company, the Secretary of the Interior not having approved such list until after such entry, occupancy, and purchase by Jones. The judgment below proceeded upon two principal grounds: 1. That the railroad company did not acquire any right or interest in the lands selected within indemnity limits by the mere filing of its list of selections. 2. That after such list was filed, and while it was unapproved by the Secretary, the lands remained fully open to entry and purchase by homesteaders and pre-emptors under the laws of the United States; that, in the absence of the approval of the Secretary of the Interior, the mere filing of the lists put no obstacle whatever in the way of homesteaders or pre-emptioners seeking to acquire public lands not already appropriated or sold under the laws of the United States; and that by an entry or purchase in conformity with the homestead or pre-emption laws a right attached to those lands in favor of the entryman which could not be destroyed or overridden by any subsequent approval by the Secretary of the Interior of the original or rearranged list of selections made by the railroad company.

There grounds were sustained by a wellreasoned opinion delivered by Judge Sanborn on behalf of the circuit court of appeals. In view of the elaborate discussion by counsel and by the majority of my brethern, it will be instructive to make a liberal extract from that opinion. After observing that lands within indemnity limits did not cease to be public lands open to settlement under the homestead laws, simply because of their having been embraced in a list of selections filed by the railroad company to supply losses within place limits, the circuit court of appeals (the italics being ours) said: "The company's unapproved selections did not, therefore, stand in the way of the lands being occupied and entered under the homestead laws. The mere filing of its lists of selections of indemnity lands did not have the effect to exclude them from occupancy under the preemption or homestead laws.' . . . The question here is not the jurisdiction but the legality of the decision of the Land Department, and especially of the Secretary [of the Interior], its head, whereby he awarded this land to the railway company. The facts and the law warranted and required its award and sale to Jones. When he presented his application to purchase it under the timber and stone act, the railway company's selection of it was unapproved by the Secretary, and that company was without equitable right to it. The Land Department had jurisdiction to accept the application of Jones and to sell the land to him, or to approve the selection of the company and to award the land to it. It exercised this jurisdiction, accepted the application of Jones, permitted him to enter the land, to prove up his claim to it, sold it to him, took his $100 in payment for it, and issued to him his receiver's receipt, and it did all this before the selection of the company was approved, and before the company could acquire any right to the land. Jones's equitable title to the tract had then vested, and while the jurisdiction of the Land Department continued until the patent issued, its power was neither arbitrary, unlimited, nor discretionary, and its action was subject to judicial correction for error of law, fraud, or clear mistake. The jurisdiction and power of disposition which the Land Department has of the lands of the United States, like the power of every other department of the government is subject to the laws of the land, and the Land Department's violation or disregard of them is remediable in the courts. Its power 'cannot be exercised so as to deprive any person of land lawfully entered and paid for. By such entry and payment the purchaser secures a vested interest in the property and a right to a patent therefor, and can no more be deprived of it by order of the Commissioner, than he can be deprived by such order of any other lawfully acquired property. Any attempted deprivation in that way will be corrected whenever the matter is presented so that the judiciary can act upon it.' Cornelius v. Kessel, 128 U.S. 456, 461, 32 L. ed. 482, 483, 9 Sup. Ct. Rep. 122; Germania Iron Co. v. James, 32 C. C. A. 348, 354, 355, 61 U.S. App. 1, 89 Fed. 811, 818; James v. Germania Iron Co. 46 C. C. A. 476, 481, 107 Fed. 597, 602; Black v. Jackson, 177 U.S. 349, 357, 44 L. ed. 801, 804, 20 Sup. Ct. Rep. 648; Orchard v. Alexander, 157 U.S. 372, 383, 39 L. ed. 737, 741, 15 Sup. Ct. Rep. 635; Brown v. Hitchcock, 173 U.S. 473, 478, 43 L. ed. 772, 774, 19 Sup. Ct. Rep. 485. . . . Finally counsel involved the familiar rule that the decisions of officers of other departments of the government upon questions within their jurisdiction are cogent and persuasive and should be followed by the courts unless they are clearly erroneous; and he reminds us that the Secretary of the Interior and the Commissioner of the General Land Office have carefully considered the questions in this case, and have decided that Jones was without legal or equitable claim to this land, and that the right of the railway company to it was superior. But Jones was a qualified entryman. The attempted withdrawals and selections of the land by the Secretary prior to his approval of the company's selection were unauthorized by law and without legal effect. The land was open to entry and purchase until he approved the selection. Jones entered, bought, and paid for it before any such approval was made. And the decisions of the Supreme Court which have been cited leave no doubt that the Secretary and the Commissioner fell into a plain error of law when they took the land which Jones had lawfully purchased from him or from his grantees and gave it to the railway company. Erroneous decisions of questions of law by the officers of the Land Department cannot be permitted to deprive the equitable owner of his vested right to lands which he has lawfully purchased from the United States. Johnson v. Towsley, 13 Wall. 72, 80, 20 L. ed. 485, 486; Gibson v. Choteau, 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; St. Paul & S.C.. R. Co. v. Winona & St. P. R. Co. 112 U.S. 720, 733, 28 L. ed. 872, 877, 5 Sup. Ct. Rep. 334. The conclusion is that by his entry and purchase, Jones acquired the entire beneficial ownership and the equitable right to the land in controversy, and that the railway company and its successors in interest obtained nothing under the patent but the naked legal title, which they held in trust for him and for his successors in interest. This conclusion renders the other questions presented in this case immaterial. The decree must accordingly be reversed, and the case must be remanded to the court below, with directions to enter a decree for the complainant for the relief prayed in the bill; and it is so ordered.'

Many cases, among which was the recent case of Sjoli v. Dreschel, 199 U.S. 564, 50 L. ed. 311, 26 Sup. Ct. Rep. 154, were cited by the circuit court of appeals to sustain its conclusion. Attention is specially directed to that case because it was only recently decided, after full consideration. The facts in it differ, in some respects, from those in the case now before us, but the principles announced in the Sjoli Case were clearly the result of previous cases. They directly bear upon the question now under consideration.

It appears from the report of the Sjoli Case that he settled on the land there in dispute in 1884, and his original application was in 1889; whereas, the railroad company filed its list of selections of lands within indemanity limits to supply deficiencies in place limits in 1885, Sjoli then being in the actual occupancy of the land, and having the intention, by a formal application, to perfect his claim under the homestead laws. Dreschel claimed under the railroad company. Sjoli got a patent in 1901, based primarily on his prior occupancy. That was after the company filed its selections. The essential question in the case was as to the rights of the homestead settler as against the railroad company, which had filed its list of selections of the lands after the homesteader settled on the lands with the intention to acquire them, but before he made his formal application for them. Summing up the doctrines previously established, this court declared in the Sjoli Case that, from its previous cases, the following propositions were to be deduced: 'That the railroad company will not acquire a vested interest in particular lands, within or without place limits, merely by filing a map of general route and having the same approved by the Secretary of the Interior, although, upon the definite location of its line of road, and the filing and acceptance of a map thereof in the office of the Commissioner of the General Land Office, the lands within primary or place limits, not theretofore reserved, sold, granted, or otherwise disposed of, and free from pre-emption or other claims or rights, become segreagated from the public domain, and no rights in such place lands will attach in favor of a settler or occupant who becomes wuch after definite location; that no rights to lands within indemnity limits will attach in favor of the railroad company until after selections made by it with the approval of the Secretary of the Interior; that up to the time such approval is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States, or to be settled upon and occupied under the pre-emption and homestead laws of the United States; and that the Secretary of the Interior has no authority to withdraw from sale or settlement lands that are within indemnity limits which have not been previously selected with his approval, to supply deficiencies within the place limits of the company's road.' The words in the Sjoli Case, 'that up to the time such approval [by the Secretary] is given, lands within indemnity limits, although embraced by the company's list of selections, are subject to be disposed of by the United States, or to be settled upon and occupied under the pre-emption and homestead laws of the United States,'-were cited with approval in the very recent case of Osborn v. Froyseth, 216 U.S. 571, 578, 54 L. ed. 619, 623, 30 Sup. Ct. Rep. 420 and were really the basis of the decision in that case.

But the defendants insist that as Jones's occupancy of an application for the land were made while there was pending in the Land Office an unapproved list of selections of lands (including the land in question), which the railroad company desired to appropriate in order to supply deficiencies in its primary limits, the subsequent approval by the Secretary of the company's list-although such approval did not in fact occur until 1905-overrode and annulled any right previously acquired by the homesteader Jones, although he applied, paid for, and got his certificate of purchase more than six years prior to the actual approval by the Secretary of the Interior of the original or rearranged selection of these lands. We do not concur in this view. This view cannot be sustained without entirely disregarding the doctrines announced upon full consideration in many other cases, prior to the Sjoli Case.

As counsel have made an earnest and extended argument in support of the contrary view, it may be well to recall a few leading cases on the subject, and see just what has been adjudged.

In Ryan v. Central P. R. Co. 99 U.S. 382, 25 L. ed. 305, the court construed the 2d section of the act of July 25th, 1866 (14 Stat. at L. 239, chap. 242), granting to a company, for the purpose of aiding in the construction of a railroad and telegraph line, alternate odd sections of public land, for 10 miles on each side, subject, however, to the conditions that the railroad company might, under the direction of the Secretary, select alternate odd sections, within 10 miles on each side, nearest the place limits, to supply deficiencies in lands found to have been granted sold, reserved, occupied by homestead settlers, pre-empted or otherwise disposed of. As to lands in the place limits, the court said that the right of the company to the odd sections became fixed and absolute when the road was located and the maps of such location were filed. But, said the court, speaking by Mr. Justice Swayne, 'with respect to the 'lieu lands,' as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made the company was approved by local land officers and confirmed by the Secretary of the Interior, when there was no claim upon it. The court further said, in reference to the land actually selected under the direction of the Secretary, that 'the railroad company had not and could not have any claim to it until specially selected, as it was for that purpose. It was taken to help satisfy the grant to the extent that the odd sections originally given failed to meet its requirements. When so selected there was no Mexican or other claim impending over it.' In the same case, referring to the deficiency alleged to exist in the place limits, the court said: 'It was within the secondary or indemnity territory where that deficiency was to be supplied. The railroad company had not and could not have any claim to it until specially selected, as it was for that purpose.' This language was quoted with approval in Osborn v. Froyseth, 216 U.S. 578, 54 L. ed. 624, 30 Sup. Ct. Rep. 420. So, in the present case, when Jones entered and purchased there was no claim upon these lands that gave the railroad company any right or interest whatever in them which could be asserted in opposition to the entryman, whose rights had attached before any approval of the selections.

A similar question under another land grant act arose in Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 112 U.S. 414, 28 L. ed. 794, 5 Sup. Ct. Rep. 208. The claim in that case was under an act of Congress of 1862 (12 Stat. at L. 489, chap. 120), which made a grant of lands designated by odd numbers on each side of the railroad, 'which were not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached at the time the line was definitely fixed.' This court, speaking by Mr. Justice Field, said: 'A right to select them [lands] within certain limits, in case of deficiency within the 10-mile limit, was alone conferred, not a right to any specific land or lands capable of identification by any principles of law or rules of measurement. Neither locality nor quantity is given, from which such lands could be ascertained.'

In Kansas P. R. Co. v. Dunmeyer, 113 U.S. 629, 639, 641, 644, 28 L. ed. 1122, 1125, 1127, 5 Sup. Ct. Rep. 566, which involved rights under the act of July 2d, 1864, granting lands to a railroad company (13 Stat. at L. 365, chap. 217), the court, speaking by Mr. Justice Miller, said: 'The reasonable purpose of the government undoubtedly is that which it expressed; namely, while we are giving liberally to the railroad company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a pre-emption or homestead right to attach. No right to such land passes by this grant. No interest in the railroad company attaches to this land or is to be founded on this statute.' This case was followed in Hastings & D. R. Co. v. Whitney, 132 U.S. 357, 366, 33 L. ed. 363, 367, 10 Sup. Ct. Rep. 112, Whitney v. Taylor, 158 U.S. 85, 92, 93, 39 L. ed. 906, 908, 909, 15 Sup. Ct. Rep. 796, and Northern P. R. Co. v. Sanders, 166 U.S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671.

In Wisconsin C. R. Co. v. Price County, 133 U.S. 496, 512, 33 L. ed. 687, 694, 10 Sup. Ct. Rep. 341, the court speaking by Justice Field, in determining the effect of the mere filing of the list of selections, said: Until the selections were approved, there were no selections in fact, only preliminary proceedings taken for that purpose; and the indemnity lands remained unaffected in their title. Until then the lands which might be taken as indemnity were incapable of identification; the proposed selections remained the property of the United States. The government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced in the courts.'

'The mere filing of lists of selections after the acceptance of the map of definite location of the railroad line between Duluth and Ashland gave the company no such title as could be enforced by the courts in a suit between private parties. It is true, the government was under a promise to give the railroad company lands in the indemnity limits to supply losses in place limits. But, as adjudged in the above cases, that promise passed no title.' Humbird v. Avery, 195 U.S. 480, 507, 49 L. ed. 286, 298, 25 Sup. Ct. Rep. 123, in which it was said that 'no title to indemnity lands is vested until a selection be made by which they are definitely ascertained and the selection made approved by the Secretary of the Interior. This principle is firmly established,' citing Wisconsin C. R. Co. v. Price County, and other cases.

In United States v. Missouri K. & T. R. Co. 141 U.S. 359, 374, 375, 35 L. ed. 766, 771, 12 Sup. Ct. Rep. 13, which case related to a railroad land grant, it was observed that certain even numbered sections within the indemnity limits of the particular railroad concerned could, under the statute there in question, have been legally selected as indemnity lands if no rights had attached to them before their selection, with the approval of the Secretary of the Interior. The court then proceeds: 'We say, prior to such selection and approval, because as to lands which may legally be taken for purposes of indemnity, the principle is firmly established that title to them does not vest in the railroad company, for the benefit of which they are contingently granted, but, in the fullest legal sense, remains in the United States, until they are actually selected and set apart, under the direction of the Secretary of the Interior, specifically for indemnity purposes,'-citing, among other cases, Sioux City & St. P. R. Co. v. Chicago M. & St. P. R. Co. 117 U.S. 406, 408, 29 L. ed. 928, 929, 6 Sup. Ct. Rep. 790, in which the court, speaking by Mr. Justice Miller, said: 'No title to indemnity lands was vested until a selection was made by which they were pointed out and ascertained, and the selection made approved by the Secretary of the Interior.'

In New Orleans P. R. Co. v. Parker, 143 U.S. 42, 57, 36 L. ed. 66, 70, 12 Sup. Ct. Rep. 364, the language of the court was: 'As to lands within the indemnity limits, it has always been held that no title is acquired until the specific parcels have been selected by the grantee, and approved by the Secretary of the Interior,'-citing numerous cases.

A full discussion of the rights of parties in respect of lands in indemnity limits will be found in Hewitt v. Schultz, 180 U.S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309, which was determined after great deliberation in 1901. In that case the question arose whether it was competent for the Secretary of the Interior, after receiving from a railroad company its map of the definite location, to at once withhold or withdraw from sale or entry the odd-numbered sections within the indemnity limits, to which the company, with the assent of the Secretary, might be permitted to resort in order to supply deficiencies in place limits. Referring to the opinions of Secretaries Lamar, Vilas, and Smith, and approving their views, the court held such withdrawal to be unauthorized, indeed, forbidden, by the statute in respect to lands within the indemnity limits, left open by Congress for homesteaders or pre-emptioners while the title remained in the United States. The opinions of those Secretaries proceeded upon the ground taken in previous decisions of this court that a right to select lands within indemnity limits 'was alone conferred, not a right to any specific land or lands capable of identification by any principle of law or rules of measurement;' but that until selection was made, 'the right of selection became a barren right; for, until selection was made, the title remained in the government, subject to its disposal at its pleasure.' In the opinion of Secretary Vilas, approved by this court in the Hewitt Case, it was said: 'It [the act of Congress] gave to any person entitled under the pre-emption or homestead laws to take any such lands the absolute right to acquire any proper quantity thereof, in accordance therewith; and this right on executive officer could not deprive the settler of.'

In Oregon & C. R. Co. v. United States, 189 U.S. 103, 47 L. ed. 726, 25 Sup. Ct. Rep. 615, the court said: 'Having regard to the adjudged cases, it is to be taken as established that, unless otherwise expressly declared by Congress, no right of the railroad company attaches or can attach to specific lands within indemnity limits until there is a selection under the direction, or with the approval, of the Secretary.'

Many other cases to the same effect might be cited.

It is, however, contended that the approval by the Secretary of the Interior of the selection of these lands to supply deficiencies in place limits had relation back to the date when the railroad filed its original list of selections, and had the effect to override any rights acquired by the homesteader after that list was filed, and before such approval. This view, if sustained, would practically destroy the rights given to homesteaders and pre-emptioners by the acts of Congress, as uniformly interpreted by this court. Even after the filing of a list of selection of lands by the beneficiary under the act of Congress, Jones was entitled, of right,-prior to the actual approval by the Secretary of the proposed selections,-to apply for the lands in dispute, pay for them, get a certificate of his purchase, and in that way acquire them. That right attached to the lands when he entered upon and applied for them under the homestead laws, and he could not be arbitrarily prevented from paying the government price, and obtaining a certificate of purchase and perfecting his claim under those laws.

Now, if it it be true, and all the cases so hold, that, after the filing of a list of selections by the railroad company of lands within indemnity limits, such lands nevertheless remained fully open to entry, occupancy, and purchase by homesteaders; if, as held in Hewitt v. Schultz, above cited, the Secretary of the Interior himself could not, immediately upon the filing of a list by the railroad company of selections of indemnity lands, withdraw such lands from entry of sale, and thus prevent their being entered, occupied, and purchased by homesteaders, prior to the Secretary's actual approval of such selections; and if the mere filing of the list did not, in itself, in advance of any approval by the Secretary, give the land-grant beneficiary any right or claim whatever, legal or equitable, in or to any particular lands specified in the list,-then there is no basis whatever for the contention that the Secretary's approval of the selection of indemnity lands, after the homesteader's claim attached to them, can be referred back to the day on which the railroad company filed its list of lands within indemnity limits, sought to be taken by it,-an act on his part which, all the cases agree, did not give it any enforceable interest in particular lands. That would be using the doctrine of relation, which is a mere fiction of law, to defeat the manifest will of Congress. To state the proposition in another way: If the lands embraced by the company's list of selections were, under the statute, fully open, after the filing of that list, to entry, occupancy, and sale, for the benefit of homesteaders,-and that cannot be disputed,-how is it possible upon any sound principle, or consistently with the policy adopted by the government to encourage settlements, that the right thus given to the homesteader could be annulled by any action of the Secretary occurring after that right accrued and became attached to the lands in behalf of the homesteader? A preference cannot be given in this way to the railroad company over the homesteader if regard be had to the purpose of Congress to keep the unappropriated public domain effectively, fully, and completely open to settlers so long as the legal title remained in the United States, or until some right of the company actually attached to the lands settled upon. A different view cannot be sustained except upon the theory that the mere application of a railroad company to take particular lands to supply loses in place limits had the effect to take those lands out of the public domain and prevent their occupancy by homesteaders until it suited the Land Department-which might postpone its ruling for many years-to take up the application and pass upon it; and this, notwithstanding indemnity lands were fully open to be settled upon by homesteaders so long as the title remained in the United States.

At a very early date in the administration of the public lands this court, speaking by Mr. Justice Campbell, in Clements v. Warner, 24 How. 394, 397, 16 L. ed. 695, 696, said: 'The policy of the Federal government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land comprehending their improvements, over that of any other person. By the act of 1841 (5 Stat. at L. 453, chap. 16), the pre-emption privilege in favor of actual settlers was extended over all the public lands of the United States that were fitted for agricultural purposes and prepared for market. Later statutes enlarged the privilege, so as to embrace lands not subject to sale or entry, and clearly evince that the actual settler is the most favored of the entire class of purchasers.' In the recent case of Ard v. Brandon, 156 U.S. 537, 543, 36 L. ed. 524, 526, 15 Sup. Ct. Rep. 406, the court, speaking by Mr. Justice Brewer (after referring to Shepley v. Cowan, 91 U.S. 330, 338, 23 L. ed. 424, 427), said that 'the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon. If he does all that the statute prescribes as the condition of acquiring rights, the law protects him in those rights, and does not make their continued existence depend alone upon the question whether or no he takes an appeal from an adverse decision of the officers charged with the duty of acting upon his application.' The court, in that case, then referred with approval to the observations above cited from Clements v. Warner, and proceeded: 'There can be no question as to the good faith of the defendant. He went upon the land with the view of making it his home. He has occupied it ever since. He did all that was in his power in the first instance to secure the land as his homestead. That he failed was not his fault; it came through the wrongful action of one of the officers of the government.' See also Northern P. R. Co. v. Amacker, 175 U.S. 567, 44 L. ed. 275, 20 Sup. Ct. Rep. 236.

In support of the contrary view much reliance is placed upon the general rule 'that where there are divers acts concurrent to make a conveyance, estate, or other thing, the original act shall be preferred; and to this the other acts shall have relation.' (Viner, Abr. title 'Relation,' 190); or, as stated by Cruise (5 Real Prop. 510, 511), that 'all the several parts and ceremonies necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.' This rule may well apply where the inquiry relates to rights asserted in lands expressly granted in the place limits of a road; for such grants are in proesenti. So, perhaps, it might be applied where the contest, under a railroad grant, is between the government and its grantee, who was authorized to make selections of lands within indemnity limits to supply loses in place limits occuring before a specified time. As in United States v. Anderson, 194 U.S. 394, 399, 48 L. ed. 1035, 1038, 24 Sup. Ct. Rep. 716, where the court said: 'But even though it be conceded, arguendo, that the doctrine in question would allow rights to be acquired by third parties to the injury of the applicant after the making of the selections, and pending approval thereof by the government, it does not follow that it controls the controversy here presented. This results because on this record the rights of third parties are not involved, since the controversy concerns only the right of the United States to retain, as against its grantees, the proceeds recovered by it as the result of a trespass upon land after an application for the selection of such land, and pending action thereon by the proper officers of the government. Under these circumstances the case is one for the application of the fiction of relation by which, in the interest of justice, a legal title is held to relate back to the initiatory step for the acquisition of the land.' But clearly the rule should not be applied in a land-grant case in which the mere filing by the railroad beneficiary at the outset of a list of selections of indemnity lands does not affect the title of the United States, and has not, in and of itself, any such efficacy as to become the basis of a right or interest in the particular lands mentioned in such list; especially when, as here, those lands, being within indemnity limits, remain open, according to all the authorities, to entry, occupancy, and even purchase by homesteaders to the same extent they would have been had no list of selections ever been filed. In both a practical and legal sense the filing of such list was nothing more than the expression of a desire or a request that the Secretary of the Interior permit the company to have certain indemnity lands to supply losses in the place limits. The Secretary might unduly delay his decision, might never act on such request, and thereby, for an unreasonable time, delay settlement on the public lands by those who seek homes on them, and are always dealt tenderly with by the United States. Before such request was acted on in this case, rights of the homesteader intervened and became lawfully attached to the lands. If the homesteader acquired a right in these indemnity lands by entry, occupancy, and purchase under the homestead laws, as he undoubtedly did, it is inconceivable that such right could, under any proper application of the doctrine of relation, be affected or overthrown by referring to an antecedent act performed by a different person, but which, at the time it was performed, did not give any right or interest whatever in the lands, and interposed no legal obstacle that would prevent homesteaders from entering, occupying, or purchasing them. In support of the railroad company's position several cases are cited, to some of which we will refer.

The first of these cases, in point of time, is Campbell v. Doe, 13 How. 244, 14 L. ed. 130. But that case has no bearing on the precise point under consideration. That was the case of a contest under an act of Congress giving school lands to townships, the selection to be made by the Secretary of the Treasury. One Hamilton made, as he supposed, a selection of certain lands under that act, in conformity with regulations prescribed by the Secretary. But his selection was made while the lands were legally reserved from sale, and he had prior notice of that fact. The land was consequently not then open to selection, except pursuant to the act of Congress and the regulations of the Secretary. After alluding to some minor views advanced in the case, this court said: 'But in whatever light this may be viewed, we are clear that the Secretary of the Treasury had the power, under the act of Congress, to make the selection; and his decision, declaring the entry of Hamilton invalid, was, under the circumstances, conclusive.' Referring to the argument that what was done by Hamilton was with approval of the Land Office, through whom the Secretary executed the power conferred upon him, the court said: 'Yet where the Secretary has interposed and decided the matter, as in the case under consideration, his decision must be considered as the only one under the law.'

The opinion in Campbell v. Doe closes with the suggestion that 'under the circumstances no right became vested in him [Hamilton] by reason of his entry of the land, which could be regarded or enforced by a court of equity.' The court did not refer, although counsel did, to the rule about the relation of time as between two acts, each of which is, in itself, efficacious to give some substantial right, and was performed by different persons, at different times. It was adjudged in that case-and it was the only point that need have been determined-that the court could not go behind the decision of the Secretary of the Treasury, and that in no view of the case presented could the relief asked be granted by a court of equity; whereas, in the case now before us it must be admitted, in view of the act of Congress and the cases determining its scope and effect, that when Jones occupied and entered, as well as when he purchased the land in dispute, it was part of the public domain, subject to the control of the United States, and open to homesteaders and pre-emptioners, under the laws of the United States, although there may have been at the time, on file, a list of unapproved selections by the railroad company.

Another case much relied on in this connection by the appellants is Shepley v. Cowan, 91 U.S. 330, 337, 23 L. ed. 424, 426. That case arose under the act of Congress of September 4th, 1841, granting lands to certain states, including Missouri, for purposes of internal improvement, saving such as were or might be reserved from sale by any act of Congress or the proclamation of the President. The plaintiffs claimed title under a patent issued to one McPherson by the state, and purporting to be for lands selected by the state under the above act of 1841. The defendants claimed title under a patent issued by the United States to the heirs of one Chartrand, based on an alleged pre-emption right acquired by a settlement of their ancestor. McPherson paid for the lands in dispute, and got a certificate showing such fact. The selections authorized to be made were subject to the approval of the Sccretary of the Treasury. That officer gave such approval. This court, referring, however, to the facts and to certain acts of Congress, held that the state could not legally select the lands in dispute as part of those granted by act of 1841, because they were 'legally reserved from sale,' consequently nothing could be claimed under the selection of McPherson. This view was sufficient to dispose of that case. Nevertheless, the court proceeds to consider another view which was held to be fatal to the claim made under the patent issued to McPherson. 'If,' the court said, 'the land outside of the survey as retraced by Brown in 1834 could be deemed public land, open to selection by the state of Missouri from the time the survey was returned to the land office in St. Louis, it was equally open from that date to settlement, and consequent preemption by settlers. The same limitation which was imposed by law upon settlement was imposed by law upon the selection of the state. 'In either case the land must have been surveyed, and thus offered for sale or settlement. The party who takes the initiatory step in such cases, if followed up to patent, is deemed to have acquired the better right as against others to the premises. The patent which is afterwards issued relates back to the date of the initiatory act, and cuts off all intervening claimants. Thus, the patent upon a state selection takes effect as of the time when the selection is made and reported to the Land Office; and the patent upon a pre-emption settlement takes effect from the time of the settlement, as disclosed in the declaratory statement or proofs of the settler to the register of the local land office. The action of the state and of the settler must, of course, in some way be brought officially to the notice of the officers of the government having in their custody the records and other evidences of title to the property of the United States before their respective claims to priority of right can be recognized. But it was not intended by the 8th section of the act of 1841, in authorizing the state to make selections of land, to interfere with the operation of the other provisions of that act, regulating the system of settlement and pre-emption. The two modes of acquiring title to land from the United States were not in conflict with each other. Both were to have full operation, that one controlling in a particular case under which the first initiatory step was had. . . . But whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases, the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right. So in this case, Chartrand, the ancestor, by his previous settlement in 1835 upon the premises in controversy, and residence with his family, and application to prove his settlement and enter the land, obtained a better right to the premises, under the law then existing than that acquired by McPherson by his subsequent state selection in 1849. His right, thus initiated, could not be prejudiced by the refusal of the local officers to receive his proofs upon the declaration that the land was then reserved, if in point of fact the reservation had then ceased.' It thus appears that the general rule determining the rights of parties under two different acts, performed at different times, was referred to and applied in a case where each act was of such a substantial character as in itself to give a right, enforceable by law. In the case referred to, the selection by the state was wholly void, and could not be made the basis of any right acquired in opposition to the rights of the settler, although it was prior to the act performed by the settler. The 'initiatory step' referred to in Shepley v. Cowan was necessarily a step which, in itself, gave some interest in the particular land involved. In the present case, the subsequent act of the homesteader was confessedly in accordance with law, gave him a substantial interest in the land, and was not defeated by reason of the prior act of the railroad company in merely filing its list of selections. We say this for the reason that such filing, according to the adjudged cases, could not be made the basis of any right or interest in these particular lands. Within the true meaning of the rule as to the relation of time between two acts of a substantial character, performed at different times, the initiatory step was that taken by Jones when he entered and purchased; for there was no previous step which had, in or of itself, any efficacy whatever to confer a right in the lands or prevent him from acquiring them.

Substantially the same comments may be made about the case of McCreery v. Haskell, 119 U.S. 327, 330, 30 L. ed. 408, 409, 7 Sup. Ct. Rep. 176, which is also much relied on by the appellants. The dispute in that case was about certain public lands which, from the date of the grants, were equally open to selection by the state and by homesteaders and pre-emptioners under an act of Congress relating to land titles in California. By its selection the state could acquire by the act of Congress a right or interest in the lands; by settlement, the pre-emptioner could also acquire a right in them. That being the case, this court said: 'The land lying outside of this survey thus became, in the language of the act, 'subject to the general land laws of the United States.' It was open to settlement with other public lands, and consequent pre-emption by settlers, and to selection by the state in lieu of the school sections within the confirmed Mexican grant. . . . As between the settler and the state, the party which first commenced the proceedings required to obtain the title, if followed up to the final act of the government for its transfer, is considered as being entitled to the property. In such cases, the rule prevails that the first in time is the first in right.'

In the present case the railroad company, as we have seen, acquired no interest whatever by merely requesting that it have certain indemnity lands to supply losses in place limits; whereas, in the California case, the prior act to which the subsequent act was referred-the selection by the state-would have given to the state a substantial interest in the lands, provided the lands had been open to selection by it at all. Proceeding on the basis that the selection was valid, the state court held that such selection was a prior, substantial, effective act to which the subsequent act may be referred under the rule stated in former cases as to relation of time.

Further citation of authorities would seem to be unnecessary. In our opinion, the filing by the railroad company of a list of lands within indemnity limits, which it desired to obtain in order to supply deficiencies in place limits, gave the company no interest in any particular lands, and Jones had the right, under the homestead laws of the United States, after that list was on file, and before it was approved by the Secretary, to enter upon and occupy the indemnity lands so specified, with the intention to acquire them under the laws of the United States; and by such entry and occupancy, with such intention, acquire a substantial interest or right in them which could not be affected or impaired by the subsequent approval of such list by the Secretary of the Interior; that the mere filing of the list did not and could not, in itself, be made the basis for any claim that would be inconsistent with Jones's legal rights as resulting from his entry and occupancy with the intention stated; consequently, the appellee, claiming under Jones, had the better right. To make the approval by the Secretary of the Interior relate back to a date when the railroad company confessedly did not have and could not have acquired any, even an inchoate, interest in these lands, and thus cut off and destroy the intervening rights acquired by the homesteader before the Secretary's approval, would be to make a new and dangerous application of the doctrine of relation discussed at the bar. A subsequent act cannot properly be used to give legal effect to a prior act, as of a time when such prior act was performed, if the prior act had no efficacy whatever to confer an interest in the lands to which the two acts related. No adjudged case really holds to the contrary. These views do no injury to the railroad company, for if the homesteader is adjudged to have the better right, the company can, under the direction of the Secretary, go into the whole body of indemnity lands and pick out other lands to supply any loss in place limits; whereas, if the homesteader loses the land he has settled upon and occupied, he will lose the benefit of his improvements, and must abandon the place he had fixed upon as his home.

One other matter should be referred to. Across the certificate of purchase issued to Jones these words were written: 'This receipt is issued under the order of the Secretary of the Interior, dated February 28th, 1898, subject to any claim the Northern Pacific Railroad Company may have to the lands herein described.' Of course, the Secretary had no authority to do this, and his act had no legal efficacy. If the railroad company had rights superior to those acquired by Jones, those rights could have been protected despite the certificate issued to Jones. If it had none, then the indorsement across the face of the certificate is to be regarded simply as a warning to Jones that he might have in the future a contest with the railroad company. The indorsement that Jones's purchase was subject to any claim the company 'may have' neither added nor took away rights that belonged at the time to either the company or to Jones.

In our opinion the judgment of the Circuit Court of Appeals should be affirmed. 

Notes