Hewitt v. Schultz/Dissent Brewer

Mr. Justice Brewer (with whom Mr. Justice Shiras concurs) dissenting:

I am unable to concur in the opinion and judgment just announced, and will state briefly the ground for my dissent.

From the beginning of land grants the Land Department has exercised the power of withdrawing from pre-emption and homestead entry any body of lands which in its judgment might be necessary for the satisfaction of the grant. And the existence of this power has been affirmed by this court in many cases, and without a single exception up to the present decision. The grant for the improvement of the Des Moines river terminated, as finally decided, at the Raccoon fork of that river, about half way between the northern and southern boundary of the state of Iowa; yet a withdrawal of lands along that river above that fork, and up to the northern boundary of the state, was sustained. Wolcott v. ''Des Moines Nav. & R. Co.'' 5 Wall. 681, 18 L. ed. 689; Wolsey v. Chapman, 101 U.S. 755, 25 L. ed. 915. It was held that as the extent of the grant was doubtful it was within the power of the Land Department, and also proper for it, to withdraw from settlement and sale all lands that might under any construction of the grant be needed to satisfy it. See, among other cases sustaining this power of withdrawal: Homestead Co. v. Valley R. Co. 17 Wall. 153, ''sub nom. Iowa Homestead Co. v. Des Moines Nav. & R. Co.'' 21 L. ed. 622; Williams v. Baker, 17 Wall. 144, 21 L. ed. 561; ''Dubuque & S.C.. R. Co. v. Des Moines Valley R. Co.'' 109 U.S. 329, 332, 333, 27 L. ed. 952, 953, 3 Sup. Ct. Rep. 188; Bullard v. Des Moines & Ft. D. R. Co. 122 U.S. 167, 170, 171, 176, 30 L. ed. 1123, 1124, 1126, 7 Sup. Ct. Rep. 1149; United States v. ''Des Moines Nav. & R. Co.'' 142 U.S. 510, 528, 35 L. ed. 1099, 1102, 12 Sup. Ct. Rep. 308; Hamblin v. Western Land Co. 147 U.S. 531, 536, 37 L. ed. 267, 271, 13 Sup. Ct. Rep. 353; Riley v. Welles, 154 U.S. 578, and 19 L. ed. 648, 14 Sup. Ct. Rep. 1166; Wood v. Beach, 156 U.S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410; Wisconsin C. R. Co. v. Forsythe, 159 U.S. 46, 54, 57, 40 L. ed. 71, 74, 15 Sup. Ct. Rep. 1020; Spencer v. McDougal, 159 U.S. 62, 64, 40 L. ed. 76, 77, 15 Sup. Ct. Rep. 1026; Northern P. R. Co. v. ''Musser-Sauntry Land, Logging & Mfg. Co.'' 168 U.S. 604, 607, 42 L. ed. 596, 597, 18 Sup. Ct. Rep. 205.

It is to be assumed that when Congress makes a grant of a certain number of sections per mile it intends that its grantee shall obtain that number of sections. And when it provides that, if there be not within the place limits the requisite number of sections free from homestead or pre-emption entry, the grantee may go into an idemnity limit and select enough to complete the full amount of the grant, its purpose is that within this territory added for selection the grantee shall receive a full equivalent for the deficiencies in the place limits. Action by the administrative department which tends to accomplish this purpose is, to say the least, not inconsistent with justice. And in order that it be not defeated, it is certainly not unreasonable to temporarily withdraw from private entry a sufficient body of land within such indemnity limits.

That in the actual administration of the Northern Pacific land grant such withdrawals of land within the indemnity limits were proper is clear from the certificate of the Commissioner of the General Land Office, of date May 2, 1896, and in evidence in this case to the effect that there is a known deficiency of 3,559,222 acres of the grant which cannot be satisfied from the limits recognized in the department. As this certificate was the only evidence in the case and was incorporated by the trial court into its findings of fact, it would seem that our inquiry in this direction should be limited thereby. But in the opinion of the majority there is a reference to a report of the Land Department, made a year after the decision in this case, and to two opinions of the Secretary of the Interior, announced about the time of the decision. In these some question is made of the accuracy of this certificate. It will be noticed that in neither report nor opinions is the fact of a deficiency denied, but only a suggestion as to the amount thereof. It is, of course, not a pleasant fact that by reason of the change in the ruling and practice of the Land Department the Northern Pacific Railroad Company fails to receiver the full measure of its grant, and I do not wonder at any effort to discredit the fact or minimize the amount of such loss, but I submit that in the disposition of this case we ought to be guided by the evidence before us and not be misled by recent speculations of the department concerning what may yet be developed.

Much is said about the vastness of this land grant, but it must be remembered that it was a grant of lands within what was then a wilderness. Though it was made in 1864, nothing was done towards the building of the road until more than six years afterwards. Capital finds little temptation in a promise, no matter how great, of lands in an unknown wilderness.

The Land Department, believing that the power so constantly exercised by it and so frequently sustained by this court still continued, made orders of withdrawal as from time to time the maps of the line of definite location were filed and approved. Indeed, the question of power in respect to this very Northern Pacific grant was distinctly presented to Secretary Teller on May 17, 1883, and affirmed by him in a letter of instructions to the Commissioner of the General Land Office. 2 Land Dec. 511. See also Id. 506. These withdrawals prior to the ruling hereafter noticed were over forty in number, and included substantially all the odd-numbered sections within the 10-mile indemnity limit from one end of the road to the other. They continued with unbroken regularity until the ruling referred to.

The first section of constructed road of 25 miles in length was accepted by the President on January 6, 1873, as having been finished on October 18, 1872. The last section of constructed road was accepted on July 10, 1888, as having been finished on June 11, 1888. During these years of construction, and of course as inducement to the company to continue the work undertaken, these various withdrawals were made. Not until 1887 was there any question of their validity. The first intimation appears in an opinion announced by Mr. Justice Lamar (then Secretary of the Interior) on August 13, 1887 (6 Land Dec. 84, 87), in which he said:

'Were I called upon to treat as an original proposition the question as to the legal authority of the Secretary to withdraw from the operation of the settlement laws lands within the indemnity limits of said grant, I should, at least, have such doubts of the existence of any such authority as to have restrained me of its exercise. It would seem that the very words of the act, 'the odd-numbered 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,' of themselves indicate most clearly the legislative will that there should not be withdrawn for the benefit of said company from sale or entry any other lands, except the odd-numbered sections within the granted limits, as expressly designated in the act. But when the provision following this, in the very same sentence, is considered,-'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 upon 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,'-it is difficult to resist the conclusion that Congress intended that 'all other lands, excepting those hereby granted to said company,' shall be open to settlement under the pre-emption and homestead laws, and to prohibit the exercise of any discretion in the Executive in the matter of determining what lands shall or shall not be withdrawn.'

Following this opinion Secretary Lamar revoked the orders of withdrawal theretofore made in behalf of some twenty-four corporations, the Northern Pacific Railroad Company among the number. Such revocation was undoubtedly legal, for the power which could order a withdrawal could revoke such order whenever in its judgment the appropriate time therefor had arrived. But such revocation did not disturb the rights which had become vested during the continuance of the orders of withdrawal. Thus consistency in the rulings and practice of the Department was preserved.

Subsequently the question was presented to Secretary Vilas, who on August 2, 1888, in the case of the Northern P. R. Co. v. Miller, 7 Land Dec. 100, ruled that all these withdrawals were void, thus upsetting that which had been done in the administration of this grant from the time of its inception.

It is unfortunate that during the years of construction, when it seemed important to hold out every inducement to the company to continue its work, the ruling and practice of the Land Department should have been unvarying in the line of securing to it the full amount of its grant, and that as soon as the road was completed and no further inducement to action by the company was needed, the ruling of the Land Department should be changed, and that theretofore done with a view of securing to it the full amount of its grant be declared void. A change in the ruling of the Department at that time was inauspicious.

Reference is made in the opinion to the duty of following in doubtful cases the construction placed by the Land Department. I fully agree with this, and I think it is a duty as incumbent upon the Department as on the courts, and that when a construction has been once established in respect to a particular matter it should be followed by the Department, unless plainly wrong; and that this court, when the question is presented, should hold to the original construction, especially if it be one which obtained during a score of years, and during all the time that the company was engaged in doing the work for which the grant was made, and should refuse to uphold a change made after that work was completed, and which has the effect of unsettling and destroying the rights of many created in reliance upon that construction.

Was the power of withdrawal rightfully exercised by the Land Department? It is not pretended that the Northern Pacific act contains any express denial or taking away of such power. The conclusion that it was taken away rests upon a mere implication, but it is familiar law that repeals by implication are not favored. If the old law and the new are consistent, and can with any reasonable interpretation of the latter be both enforced, they will be; and I respectfully submit that the same rule obtains as to powers belonging to and exercised by a department.

Was there any implied denial of this power to the Land Department? § 6 of the granting act is relied upon by Secretary Vilas and by this court. I quote the section (13 Stat. at L. 369, chap. 217):

'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, eighteen hundred and forty-one, 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 twenty, eighteen hundred and sixty-two, 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.'

Now, confessedly, every part of this section, except the clause commencing 'but the provisions,' and ending 'to said company,' applies solely to lands within the place limits, and has no reference or application to lands within the indemnity limits. By its connection, therefore, the natural application of this clause would be to lands within like limits. This natural application is enforced by the words 'when surveyed,' near the close of the clause, for there is an express provision (as appears in the first of the section) for a survey of the place limits, and there is no reference in the entire body of the act to any other survey. Further, the clause was seemingly necessary to secure beyond question to pre-emptors and those seeking homesteads a full and continuous right to the even-numbered sections within the place limits. The pre-emption law of September 4, 1841 (5 Stat. at L. 456, chap. 16), defining the classes of lands to which preemption rights should not extend, included therein the following:

'No sections of land reserved to the United States alternate to other sections granted to any of the states for the construction of any canal, railroad, or other, public improvement.'

The act of March 3, 1853 (10 Stat. at L. 244, chap. 143), which extended the pre-emption right to the alternate reserved sections, contained this provision:

'Provided, That no person shall be entitled to the benefit of this act, who has not settled and improved, or shall not settle and improve, such lands prior to the final allotment of the alternate sections to such railroads by the General Land Office.'

The exact scope of this limitation as applied to grants directly to railroad companies may not be entirely clear. Perhaps the limitation began with the approval of the map of definite location which, as frequently held, determines the time at which the right of the company to the odd-numbered sections is established, or perhaps, at least in cases where the grant was to a state, instead of directly to a company, at the date of the official certification to the state of the list of allotted lands. Such at least seems to have been the opinion of the Land Office, as shown by the rules announced. 1 Lester, 509. Be that as it may, some limitation was prescribed, and this clause was unquestionably introduced in order to remove all doubt as to the full and continuous right of pre-emption in respect to the alternate reserved sections. The same provision was found in several land grants, as, for instance, that to the California & Oregon Railroad Company, July 25, 1866 (14 Stat. at L. 239, chap. 242); that to the Atlantic & Pacific Railroad Company, July 27, 1866 (14 Stat. at L. 292, chap. 278); that to the Stockton & Copperopolis Railroad Company, March 2, 1867 (14 Stat. at L. 548, chap. 189); that to the Oregon Central Railroad Company, May 4, 1870 (16 Stat. at L. 94, chap. 69); that to the Texas & Pacific Railroad Company, March 3, 1871 (16 Stat. at L. 573, chap. 122). That it did not apply to lands outside the place and within the indemnity limits is made clear by the fact that the provision was introduced into an act in which there were no indemnity limits, to wit, the act of July 13, 1866, granting lands to the Placerville and Sacramento Valley Railroad Company (14 Stat. at L. 94, chap. 182).

Reference is made in the opinion of Secretary Vilas, approved by this court, to United States v. Burlington & M. River R. Co. 98 U.S. 334, 25 L. ed. 198, as indicative that the words 'on the line of said road' necessarily extend to lands within the indemnity limits. But that case justifies no such inference. There were no place or indemnity limits in terms prescribed. There was simply a grant of ten alternate sections per mile on each side of the road 'on the line thereof.' When the right of the company attached it was found that the full complement of the grant could not be satisfied by the ten successive alternate sections; and on application of the company patents were issued to it for certain lands beyond the limits of those sections, and the court held on a bill to set aside these patents that the action of the Land Department was justified in that the full amount of the grant was intended and that there were no prescribed limits within which the grant must be satisfied. It was said (p. 340, L. ed. p. 200), that the words 'do not require the lands to be contiguous to the road; and if not contiguous, it is not easy to say at what distance the land to be selected would cease to be along its line;' and again, 'and the land was taken along such line in the sense of the statute, when taken along the general direction or course of the road within lines perpendicular to it at each end.'

It is also suggested that to disturb this decision of the Land Department in 1888 might work confusion in the administration of the grant and entail hardship on many who have acted in reliance upon that ruling. I concede the hardship. Every change in the ruling of the Land Department in the administration of a grant will almost inevitably work hardship upon some; but it is well to note the comparative hardships; and no better illustration can be presented than the case at bar; and this, irrespective of the loss by the company of a large portion of its promised lands. The plaintiff in error, immediately upon his application for an entry of the tract in controversy, was notified that it was withdrawn. He could then easily have changed his settlement to an even numbered section, and perfected his title thereto. He persevered, however, in his application, and was finally allowed pre-emption, paid his money and received his patent. If that action were now adjudged void he would have a claim for the money paid and a claim against a solvent debtor. Rev. Stat. § 2362. On the other hand, the defendant in error, who purchased from the railroad company in reliance upon the then ruling of the Department, paid to the company the sum of $1,200, and has placed upon the lands improvements to the value of $600. All this he loses; and while he may have a claim against the company for the amount of money he paid it, yet if it be true (as I am informed, although not appearing in the record) that mortgages upon the railroad company property have been foreclosed and all its property disposed of, his judgment will be simply against an insolvent corporation. In other words, instead of a claim for reimbursement against a solvent debtor, he will have what is tantamount to a judgment against a vacuum; and this will be the experience of all who, during those many years, purchased from the company in reliance upon the then ruling of the Department.

For the reasons thus outlined I dissent from the opinion and judgment, and I am authorized to say that Mr. Justice Shiras concurs herein.