Buttz v. Northern Pacific Railroad Company

(Syllabus by the Court.)

Appeal from the Supreme Court of the Territory of Dakota.

This was an action for the possession of a tract of land in the territory of Dakota. The plaintiff below, the Northern Pacific Railroad Company, asserted title to the premises under a grant made by the act of congress of July 2, 1864. The defendant, Peronto, asserted a right to pre-empt the premises by virtue of his settlement upon them under the pre-emption law of September 4, 1841, and that his right thereto was superior to that of that railroad company.

The action was brought in the district court of the territory. The complaint was in the usual form in such cases, alleging the incorporation of the plaintiff, its ownership in fee of the premises, (which are described,) and its right to their immediate possession, and that they are withheld by the defendant; with a prayer for judgment for their possession, and damages for the withholding.

The answer of the defendant admits the incorporation of the plaintiff, and that he is in possession of the premises, but denies the other allegations of the complaint. It then § ts up as a further defense that he settled upon the premises on October 5, 1871, and resided thereon, and the several steps taken by him to perfect a right of pre-emption to them, and that he possessed the qualifications of a pre-emptor under the laws of the United States. It concludes with a prayer that the title of the plaintiff be declared void, and that the plaintiff be enjoined from enforcing or attempting to enforce it; that the title be declared to be in the defendant; and that such other and further relief be granted as may be necessary to protect and preserve his rights.

The plaintiff replied, traversing the allegations of the answer; and the issues, by consent of the parties, were tried by the court without a jury. The court found for the plaintiff, and gave judgment in its favor for the possession of the premises, with costs. On appeal to the supreme court of the territory, the judgment was affirmed, and, by appeal from the latter judgment, the case was brought to this court. Since it was docketed here the defendant, who was the appellant, died, and, by leave of the court, his executor, the devisee of his estate, has been substituted as appellant in his place.

The act of congress of July 2, 1864, is entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route.' 13 U.S. St. 365. By the first section the Northern Pacific Railroad Company was incorporated, and authorized to equip and maintain the railroad and telegraph line mentioned, and was vested with all the powers and privileges necessary to carry into effect the purposes of the act. By the third section a grant of land was made to the company. Its language is: '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 rail way, 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.' By the sixth section it was enacted 'that the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862, shall be, and the same are hereby, extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.'

At the time this act was passed the land in controversy, and other lands covered by the grant, were in the occupation of the Sisseton and Wahpeton bands of Dakota or Sioux Indians; and the second section provided that the United tates should extinguish, as rapidly as might be consistent with public policy and the welfare of the Indians, their title to all lands 'falling under the operation of this act, and acquired in the donation to the road.'

On the nineteenth of February, 1867, a treaty was concluded between the United States and these bands, which was ratified on the fifteenth of April, and proclaimed on the second of May, of that year, (15 U.S. St. 505,) in the second article of which the bands ceded 'to the United States the right to construct wagon roads, railroads, mail stations, telegraph lines, and such other public improvements as the interest of the government may require, over and across the lands claimed by said bands, (including their reservation as hereinafter designated,) over any route or routes that may be selected by authority of the government; said lands so claimed being bounded on the south and east by the treaty line of 1851 and the Red River of the North to the mouth of Goose river, on the north by the Goose river and a line running from the source thereof by the most westerly point of Devil's lake to the Chief's bluff at the head of James river, and on the west by the James river to the mouth of Mocasin river, and thence to Kampeska lake.' By articles 3 and 4 certain lands were set apart as permanent reservations for the Indians,-one of which was known as 'Lake Travers Reservation,' and the other as 'Devil's Lake Reservation,'-so called because their boundary lines commenced, respectively, at those lakes.

On the seventh of June, 1872, congress passed an act 'to quiet the title to certain lands in Dakota territory.' which provided that it should be the duty of the secretary of the interior to examine and report to congress what title or interest the Sisseton and Wahpeton bands of Sioux Indians had to any portion of the land mentioned and described in the second article of that treaty, except the reservations named; and whether any, and, if any, what, compensation ought, in justice and equity, to be made to said bands for the extinguishment of whatever title they might have to said lands. 17 U.S. St. 281.