# Humbird v. Avery

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
195 U.S. 480
Humbird v. Avery
Argued: October 23, 26, 1903. --- Decided: December 12, 1904
This case was brought before us upon questions certified by the circuit court of appeals. Subsequently, the United States was allowed to intervene upon the general ground that the case involved important questions affecting the administration of the public land laws, including the grant to the Northern Pacific Railroad Company then in process of adjustment. And on motion of the government, the plaintiffs and defendants concurring, the whole record was ordered to be sent up for our consideration.
The case involves the title to numerous tracts of land situated on the line of the Northern Pacific Railway between Duluth and Ashland. The lands are described in an exhibit attached to the bill.
The plaintiffs, Humbird and Weyerhaeuser, sue as grantees of the Northern Pacific Railway Company, a Wisconsin corporation, which, it is claimed, succeeded, in respect of the lands in dispute, to all the rights, interests, and ownership of the Northern Pacific Railroad Company, created by the act of Congress of July 2d, 1864 (13 Stat. at L. 365, chap. 217). They allege that the claims of the defendants constitute clouds upon their title.
The defendants assert title under the land laws as settlers and purchasers from the United States, or grantees of such settlers and purchasers. But the bill alleges that the lands here in dispute are part of the grant to the Northern Pacific Railroad Company, and that the Land Department wrongfully and unlawfully permitted the entries under which the defendants severally claim. The circuit court dismissed the bill, but without prejudice, except as to all lands here involved for which patents had been issued. 110 Fed. 465.
It seems both appropriate and necessary that the facts be fully stated. That statement we now proceed to make, premising that the present controversy had its origin, as will be presently shown, in conflicting orders or rulings in the Land Department as to what was the eastern terminus of the Northern Pacific Railroad.
By the above act of July 2d, 1864, chap. 217, Congress made a grant of lands to the Northern Pacific Railroad Company in aid of the construction of a railroad and telegraph line from some point on Lake Superior, in Minnesota or Wisconsin, to some point on Puget sound, with a branch, via Columbia river, to a point at or near Portland. The act established indemnity limits not more than 10 miles beyond the limits of the alternate sections granted. 13 Stat. at L. 365.
By a joint resolution approved May 31st, 1870, second indemnity limits were established within 10 miles on each side of the road, beyond the limits prescribed in the company's charter. 16 Stat. at L. 378, Resolution 67. The effect of this resolution was to allow the company, under the direction of the Secretary of the Interior, to go into second indemnity limits in order to supply any deficiency in lands on its main line or branch.
On the 3d day of July, 1882, the company transmitted to the Secretary of the Interior a map of definite location covering the proposed line from Thompson Junction, on the St. Paul & Duluth Railroad, near Duluth, Minnesota, to Ashland, in Wisconsin. That map was duly approved by the Secretary of the Interior, and the lands embraced by it were withdrawn from sale or entry.
By resolution of the board of directors of the company, adopted August 28th, 1884, Ashland was declared to be the eastern terminus of the road; and that resolution was accepted by the Secretary on December 3d, 1884, as establishing such terminus.
The part of the road delineated on the map of definite location was constructed and was duly accepted; and in conformity with the directions of the Secretary the company, the circuit court states, filed lists of selections of lands, some in the first and others in the second indemnity limits, in lieu of lands lost to it in its place limits,-such lists including all the lands in controversy in this suit. But the bill avers that no final action has ever been taken by the Land Department upon such lists; and they have not yet been approved by the Department.
Subsequently, on August 12th, 1896, the Secretary of the Interior ruled that Duluth, not Ashland, was the eastern terminus of the railroad, and therefore that the land grant of 1864 did not embrace any lands between Duluth and Ashland. The company's lists of selections were thereupon canceled by order of the Secretary, and the lands covered by them were thereafter treated by the Department as unappropriated public lands, and were opened for sale and entry.
This appears from an official communication addressed by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, to the register and receiver at Duluth. In that communication the Commissioner said: 'On August 27th, 1896, the Secretary of the Interior rendered a decision wherein he held that the initial point on Lake Superior, or the eastern terminus of the grant to the Northern Pacific Railroad Company, was at Duluth, Minnesota, and on December 24th, 1896, he approved a diagram prepared by this office showing the eastern terminal of the grant. On January 23d, 1897, a copy of so much of said diagram as related to or affected lands within your district was transmitted to you for the use and guidance of your office. The decision of the Secretary aforesaid had the effect of restoring to the public domain all lands lying east of said terminal, which had theretofore been withdrawn on account of the grant to said railroad company. Therefore to the end that all persons interested may have an opportunity to present any claims they may have to any of these lands, you will cause to be published for the period of thirty days, in some newspaper of general circulation in their vicinity, a notice referring to said Secretary's decision, which in effect declared that all lands previously withdrawn on account of the grant to the Northern Pacific Railroad Company, and lying east of the terminal established at Duluth, are restored to the public domain and are subject to disposal at your office.'
Under the above ruling of the Secretary as to the eastern terminus, the defendants were allowed to make entries and purchases on the line of the railroad between Duluth and Ashland, despite the company's map of definite location and the lists of selections filed by it with the Secretary. In reference to the action of the Interior Department, the circuit court said: 'By reason of the erroneous ruling of the Secretary of the Interior as to the location of the eastern terminus of said railroad, and his revocation of his prior approval of lawful selections by the railroad company of indemnity lands, and permitting sales and entries of such selected lands, as unappropriated, he had introduced confusion and conflict in respect to the right to such lands, which was beginning to be litigated in the courts. . . . The fact that patents had issued in a few instances would not end such disputes as to the lands so patented, as courts would adjudge the patentee in any case to hold the title in trust for the other party, wherever the other party had clearly the right to the land.' 110 Fed. 465, 469.
Such was the situation when Congress incorporated into the body of the sundry civil appropriation act of July 1st, 1898 (30 Stat. at L. 597, 620, chap. 546), subdivision, Surveying the Public Lands, certain provisions relating to the Northern Pacific land grant. As these provisions disclose a scheme or plan for the settlement of the disputes arising out of the conflicting rulings in the Land Department in reference to the eastern terminus of the railroad, and its action in reference to the public lands between Duluth and Ashland, they should all be examined in order to ascertain the intention of Congress. They are therefore here given in full.
By that act-dividing it, for convenience, into paragraphs-it was provided:
'That where, prior to January first, eighteen hundred and ninety-eight, the whole or any part of an odd-numbered section, in either the granted or the indemnity limits of the land grant to the Northern Pacific Railroad Company, to which the right of the grantee or its lawful successor is claimed to have attached by definite location or selection, has been purchased directly from the United States, or settled upon or claimed in good faith by any qualified settler under color of title or claim of right under any law of the United States or any ruling of the Interior Department, and where purchaser, settler, or claimant refuses to transfer his entry as hereinafter provided, the railroad grantee or its successor in interest, upon a proper relinquishment thereof, shall be entitled to select in lieu of the land relinquished an equal quantity of public lands, surveyed or unsurveyed, not mineral or reserved, and not valuable for stone, iron, or coal, and free from valid adverse claim, or not occupied by settlers at the time of such selection, situated within any state or territory into which such railroad grant extends, and patents shall issue for the land so selected as though it had been originally granted; but all selections of unsurveyed lands shall be of odd-numbered sections, to be identified by the survey when made, and patent therefor shall issue to and in the name of the corporation surrendering the lands before mentioned, and such patents shall not issue until after the survey: 2. 'Provided, however, That the Secretary of the Interior shall from time to time ascertain, and, as soon as conveniently may be done, cause to be prepared and delivered to the said railroad grantee or its successor in interest a list or lists of the several tracts which have been purchased or settled upon or occupied as aforesaid, and are now claimed by said purchasers or occupants, their heirs or assigns, according to the smallest government subdivisions. And all right, title, and interest of the said railroad grantee or its successor in interest, in and to any of such tracts, which the said railroad grantee or its successor in interest may relinquish hereunder shall revert to the United States, and such tracts shall be treated, under the laws thereof, in the same manner as if no rights thereto had ever vested in the said railroad grantee, and all qualified persons who have occupied and may be on said lands as herein provided, or who have purchased said lands in good faith as aforesaid, their heirs and assigns, shall be permitted to prove their titles to said lands according to law, as if said grant had never been made; and upon such relinquishment said Northern Pacific Railroad Company or its lawful successor in interest may proceed to select, in the manner hereinbefore provided, lands in lieu of those relinquished, and patents shall issue therefor:
3. 'Provided, further, That the railroad grantee or its successor in interest shall accept the said list or lists so to be made by the Secretary of the Interior as conclusive with respect to the particular lands to be relinquished by it, but it shall not be bound to relinquish lands sold or contracted by it, or lands which it uses or needs for railroad purposes, or lands valuable for stone, iron, or coal:
4. 'And provided, further, That whenever any qualified settler shall in good faith make settlement in pursuance of existing law upon any odd-numbered sections of unsurveyed public lands within the said railroad grant to which the right of such railroad grantee or its successor in interest has attached, then, upon proof thereof satisfactory to the Secretary of the Interior, and a due relinquishment of the prior railroad right, other lands may be selected in lieu thereof by said railroad grantee or its successor in interest, as hereinbefore provided, and patents shall issue therefor:
5. 'And provided, further, That nothing herein contained shall be construed as intended or having the effect to recognize the Northern Pacific Railway Company as the lawful successor of the Northern Pacific Railroad Company in the ownership of the lands granted by the United States to the Northern Pacific Railroad Company, under and by virtue of foreclosure proceedings against said Northern Pacific Railroad Company in the courts of the United States, but the legal question whether the said Northern Pacific Railway Company is such lawful successor of the said Northern Pacific Railroad Company, should the question be raised, shall be determined wholly without reference to the provisions of this act, and nothing in this act shall be construed as enlarging the quantity of land which the said Northern Pacific Railroad Company is entitled to under laws heretofore enacted:
6. 'And provided, further, That all qualified settlers, their heirs or assigns, who, prior to January first, eighteen hundred and ninety-eight, purchased, or settled upon or claimed in good faith, under color of title or claim of right under any law of the United States or any ruling of the Interior Department, any part of an odd-numbered section in either the granted or indemnity limits of the land grant to the Northern Pacific Railroad Company, to which the right of such grantee or its lawful successor is claimed to have attached by definite location or selection, may in lieu thereof transfer their claims to an equal quantity of public lands, surveyed or unsurveyed, not mineral or reserved, and not valuable for stone, iron, or coal, and free from valid adverse claim, or not occupied by a settler at the time of such entry, situated in any state or territory into which such railroad grant extends, and make proof therefor as in other cases provided; and in making such proof, credit shall be given for the period of their bona fide residence and amount of their improvements upon their respective claims in the said granted or indemnity limits of the land grant to the said Northern Pacific Railroad Company, the same as if made upon the tract to which the transfer is made; and before the Secretary of the Interior shall cause to be prepared and delivered to said railroad grantee or its successor in interest any list or lists of the several tracts which have been purchased or settled upon or occupied as hereinbefore provided, he shall notify the purchaser, settler, or claimant, his heirs or assigns, claiming against said railroad company, of his right to transfer his entry or claim, as herein provided, and shall give him or them option to take lieu lands for those claimed by him or them, or hold his claim and allow the said railroad company to do so under the terms of this act.' 30 Stat. at L. 597, 620.
The provisions of that act were formally accepted in writing by the Northern Pacific Railway Company on the 13th of July, 1898, in writing, and such written acceptance was promptly transmitted by the company to the Secretary of the Interior.
In a case in the supreme court of Wisconsin, determined shortly before the act of 1898, it was held, contrary to the ruling of the Interior Department in 1896, that Ashland, and not Duluth, was the eastern terminus of the Northern Pacific Railway. Northern P. R. Co. v. Doherty, 100 Wis. 39, 75 N. W. 1079. Upon writ of error to this court that judgment was affirmed. Doherty v. Northern P. R. Co. 177 U.S. 421, 44 L. ed. 830, 20 Sup. Ct. Rep. 677, and United States v. Northern P. R. Co. 177 U.S. 435, 44 L. ed. 836, 20 Sup. Ct. Rep. 706.
After the above decisions by this court-which were rendered April 16th, 1900-the Secretary of the Interior revoked the order canceling the company's above lists of selections, and reinstated them. Shortly before those cases were argued here, namely, on January 19th, 1900,-and apparently to meet the contingency of a reversal by this court of the judgment of the supreme court of Wisconsin,-the Northern Pacific Railway Company made conveyances with warranty to the plaintiffs, Humbird and Weyerhaeuser, of all the lands aggregating more than 10,000 acres, the title to which is here in dispute. As appears from the record, these conveyances were made after the Land Department had issued regulations to facilitate the adjustment of claims under the act of July 1st, 1898. It should be recalled here that the lands covered by those conveyances were placed on the above list of selections filed by the railroad company, but those lists had not then, nor have they since, received the approval of the Secretary.
It is contended by the plaintiffs that the result of the above decisions in this court, adjudging the eastern terminus of the Northern Pacific Railroad to be at Ashland, Wisconsin, and not at Duluth, Minnesota, was that the odd-numbered alternate sections between Duluth and Ashland, on either side of the railroad, as definitely located, to the extent and within the limits prescribed, and not excluded from the grant of July 2d, 1864, were to be deemed public lands from which that grant could be supplied, and to which neither the defendants nor their grantors after the definite location of the road as shown by the company's accepted map of location could have acquired any valid title by entry or settlement, or by purchase, except from the railroad grantee, and that the defense cannot be maintained without violating the rights that were vested in the company in virtue of such definite location.
The defendants, of course, combat this view of the rights of the parties, and insist that they are fully protected in their claims by the act of 1898, all the provisions of which, as we have seen, were accepted by the railroad company.
In the statement accompanying the certified questions it is set forth that prior to the passage of the act of July 1st, 1898, the Secretary of the Interior had, pursuant to his original ruling as to the eastern terminus of the railroad, caused patents to be delivered to defendant settlers or their grantors for about 3,400 acres of the lands involved in this suit; that at the time of the passage of that act about 2,800 acres of the lands in question had been entered by defendant settlers or their grantors prior to January 1st, 1898, but no patents therefor had been issued; that after January 1st, 1898, the settlers or their grantors were permitted to enter about 5,000 acres of the lands here in controversy. The situation is thus described in the statement sent up by the circuit court of appeals: Of the lands claimed by the plaintiffs as successors in interest of the Northern Pacific Railroad Company about 3,400 acres thereof were held by the appellees under patents issued by the government prior to July 1st, 1898; for the residue of the lands the settlers held final receipts and final certificates, such final receipts and final certificates, as respects about 5,000 acres, being for tracts entered subsequent to January 1st, 1898. In reference to the lands for which final receipts and certificates have been issued nothing, so far as appears, remains to be done by the Land Department except the issuing of patents.
The relief sought is a decree declaring, among other things, that the lands described in the exhibit attached to the bill, and all the timber standing or lying thereon, belong to the plaintiffs; that the entries, locations, final certificates, Land Office receipts, and patents, under which the several defendants claim, be adjudged to be void and removed as clouds from the titles of the plaintiffs, and the defendants severally enjoined from asserting any title by virtue thereof; and that such of the defendants as hold patents may be declared to hold as trustees for the plaintiffs in respect of any title conveyed by such patents, or any timber, cut or uncut, on such lands.
The questions propounded to this court by the circuit court of appeals are these:
'Is the act of July 1st, 1898, applicable to the determination of the rights of the parties to the 3,400 acres of land which were patented to the appellees or their predecessors in interest prior to the adoption of the act of July 1st, 1898?
'Has the circuit court of the United States for the district of Minnesota, or any court, jurisdiction as respects the lands in controversy entered subsequent to January 1st, 1898, and for which the settlers hold final receipts or certificates, to adjudicate the rights of the parties to this action in respect to said lands in advance of the issuance of patents therefor by the executive branch of the government, or should the courts decline jurisdiction until the government has devested itself of the legal title to the lands by the issuance and delivery of patents?'
Messrs. William W. Billson, C. W. Bunn, Chester A. Congdon, H. Oldenburg, and James B. Kerr for Humbird et al.
[Argument of Counsel from pages 491-494 intentionally omitted]
Assistant Attorney General Frank L. Campbell, and Messrs. A. C. Campbell and F. W. Clements for the United States, intervener.
[Argument of Counsel from pages 494-498 intentionally omitted]
Messrs. Benton Hanchett and H. H. Hoyt for Avery et al.
Mr. M. H. Stanford for Lesure Lumber Company.
Mr. Luther C. Harris for Olean Land Company and Alger, Smith & Company.
Mr. Justice Harlan 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).
Public domainPublic domainfalsefalse