# Northern Pacific Railway Company v. De Lacey

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United States Supreme Court
174 U.S. 622
Northern Pacific Railway Company v. De Lacey
This is an action of ejectment brought by the plaintiff in error against the defendant to recover possession of 160 acres of land situated not far from Tacoma, in the state of Washington.
The land lies within the primary limits of the land grant both of the main line of the railroad of plaintiff in error, as definitely located between Portland and Puget Sound, and the Cascade branch, as definitely located between the point where the railroad leaves the main line and crosses the Cascade Mountains to Puget Sound.
It appears from the facts found upon the trial without a jury that the plaintiff's predecessor was incorporated under the act of congress of July 2, 1864, and received a grant of public lands by virtue of section 3 of that act (13 Stat. 365, c. 217). A further grant was made by virtue of the joint resolution of congress adopted May 31, 1870 (16 Stat. 378, Resolution No. 67).
The company surveyed and definitely located the line of its branch road extending from Tacoma to South Prairie, and on March 26, 1884, filed its map showing such line of definite location in the office of the commissioner of the general land office. The land in controversy is within the limits of the grant to the company, as defined by this map of definite location, and is within the limits of the grant under the act of July 2, 1864.
The following statement is taken from the finding of facts by the trial judge:
'(12) April 9, 1869, one John Flett filed declaratory statement No. 1,227, declaring his intention to purchase certain lands, which are described in the complaint, under the laws of the United States authorizing the pre-emption of unoffered lands. Whether or not Flett was at this time qualified to enter the land under the pre-emption or homestead laws does not appear.
'(13) In the fall of 1869 Flett left the land in controversy, and did not thereafter reside thereon, although it is recited in the decision of the secretary of the interior in a contest between the railroad company, De Lacey, Flett, et al., before the interior department, involving the land here in controversy, that in September, 1870, Flett went to the local land office, and told the officers that he had come to prove up on his claim; that they told him it was railroad land, and that he had lost it; that Flett did not then actually offer to make proof, but acquiesced in the advice of the local officers that he was not entitled to submit proof under his filing.'
'(15) The defendant, James De Lacey, settled upon the land in controversy in April, 1886. April 5, 1886, he applied to make homestead entry thereon. His application was rejected for the reason that the land fell within the limits of the grant to the railroad company on both main and branch lines. From this decision by the register and receiver, De Lacey appealed to the commissioner of the general land office.
'(16) September 7, 1887, John Flett submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869.
'(17) Afterwards, under the instructions of the commissioner, a hearing was had, at which all the parties (the railroad company, James De Lacey, John Algyr, and John Flett) were present. July 27, 1889, the receiver of the district land office found that Flett had not voluntarily abandoned the land in 1869, and that his entry should be reinstated. From this finding all the parties but Flett appealed to the commissioner of the general land office, and December 5, 1889, the commissioner sustained the finding of the receiver. Thereafter the other parties to the contest appealed to the secretary of the interior. September 28, 1891, the secretary of the interior reversed the ruling of the commissioner of the general land office, and awarded the land in controversy to the railroad company.
'December 13, 1892, letters patent of the United States, regular in form, were issued, conveying the land in controversy to the plaintiff.'
'(19) Flett's declaratory statement was not formally canceled upon the records until December 23, 1891.
'(20) The defendant is in possession of the land, and withholds such possession from the plaintiff.'
It also appeared that the railroad company on May 10, 1879, transmitted to the office of the secretary of the interior a map showing its relocated line of general route, which map was on June 11, 1879, sent to the commissioner of the general land office by the secretary for filing, with instructions to withdraw the lands coterminous therewith from sale, pre-emption, or entry, for the benefit of the railroad company, and the map was duly filed on that day. The land in controversy is within the line as relocated.
The conclusions of law of the circuit court were in favor of the railroad company, and the court held that prior to June 11, 1879, when the map of general route as relocated was filed, and after the abandonment of the land by John Flett, the same was public land of the United States, not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights, and that from that date (June 11, 1879) the land was reserved from sale, pre-emption, or entry, except by the railroad company, by virtue of fixing the line of general route of the branch line coterminous therewith; that this reservation became effective from and after the receipt of the order of the commissioner at the United States district land office on July 19, 1879.
Judgment in favor of the plaintiff for the recovery of the possession of the land was duly entered. Upon appeal by the defendant to the circuit court of appeals for the Ninth circuit, that court reversed the judgment, and remanded the cause to the circuit court for further proceedings not inconsistent with the views expressed in the opinion of the court of appeals. Judgment in accordance with the opinion of that court was subsequently entered by the circuit court, dismissing the plaintiff's complaint, and awarding costs to the defendant. This was under objection of plaintiff, which claimed the right to a new trial, and exception was taken thereto.
It appearing that the plaintiff, the Northern Pacific Railway Company, had, subsequently to the hearing, acquired the rights of the original plaintiff to the property described in the complaint, it was substituted as plaintiff in this action. A writ of error was then taken to the United States circuit court of appeals for the Ninth circuit, where the judgment of the circuit court was affirmed. The plaintiff, by writ of error, brought the case here for review.
The opinion of the circuit judge, given upon the trial of the cause, is reported in 66 Fed. 450, and that of the circuit court of appeals in 44 U.S. App. 257, 19 C. C. A. 157, and 72 Fed. 726.
C. W. Bunn, for plaintiff in error.
W. H. Pritchard, for defendant in error.
Mr. Justice PECKHAM, after stating the facts, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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