# Kansas Pacific Railway Railway Company v. Prescott

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United States Supreme Court
83 U.S. 603
Kansas Pacific Railway Railway Company v. Prescott
ERROR to the Supreme Court of Kansas; the case being thus:
An act of Congress passed in 1862, to aid what was afterwards known as the Kansas Pacific Railway Company, in the construction of its road, gave to the said company alternate sections of land on each side of the road, within certain limits, and provided that a patent should issue to the company only as each section of forty miles in length should be completed and accepted by the President. The act also contained a provision that any of these lands not sold by the company within three years after the final completion of the road, should be liable to be sold to actual settlers under the pre-emption laws, at a dollar and a quarter per acre, the money to be paid to the company.
No part of the road having been built in 1864, the original act of 1862 was amended in the year last named, by extending the limits of the grant on each side of the road, and by several other provisions favorable to the company. But by the 21st section of the amendatory statute it was enacted:
'That before any land granted by this act shall be conveyed to any company or party entitled thereto under this act, there shall first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same by the said company or party in interest as the titles shall be required by said company, which amount shall, without any further appropriation, . . . be used by the Commissioner of the General Land Office, for the prosecution of the survey of the public lands along the line of said road, and so from y ar to year, until the whole shall be completed, as provided under the provisions of this act.'With these statutes in force, the railway company filed its bill in one of the State courts of Kansas against one Prescott, to quiet the title to a tract of land in Kansas, to which it set up title only by virtue of the provisions of the abovequoted act of Congress of 1862. The defendant set up a tax title for taxes assessed in 1868, with a subsequent sale.
It was admitted on both sides that at the time the lands were assessed the company had completed the section of forty miles of road within which the lands lay, and that the President had accepted them; but that in the present case payment of the costs of surveying, selecting, and conveying had never been made, and that no patent for the land had issued.
The primary question thus was, who was the owner of the land at the time it was assessed and taxed, the United States or the railway company? If the United States, then the land was not subject to State taxation, and the sale was void. If the railway company, it was, and there being in that case no question about the regularity of the sale, the title of the company had been divested.
And this primary question depended on others behind it, to wit:
1st. Whether in order to the procuring of a title into itself, it was necessary for the company to have paid the costs of surveying, selecting, and conveying the land?
2d. Whether such a proviso as existed here, giving to the government a contingent right to offer the lands to actual settlers under the pre-emption laws, did not prevent the lands so vesting in the company as to be liable to be sold for taxes?
The court in which the company's bill was filed, referring to the doctrine as admitted, that a right to a patent was sufficient to subject lands to taxation, considered:
1. That where land is granted to a company for the sole purpose of aiding in the construction of a railroad, and the same was constructed to the approval of government, the company acquired such an interest in the land as rendered it subject to taxation, even though it had not received a patent, and had not paid the cost of surveying, selecting, and conveying the same.
2. That the provision in a grant by the government 'that any of the lands so granted and not sold by the company within three years after the final completion of the road, should be liable to be sold to actual settlers under the preemption laws, at one dollar and a quarter per acre, the money to be paid to the company,' reserved no such interest in the government as would render the land not subject to taxation.
It accordingly decreed a dismissal of the bill, and that decree being affirmed in the Supreme Court of the State, the case was brought here by the company for review.
Mr. I. G. Mohler, in support of the ruling below:
We submit as a preliminary point, worthy of consideration, whether the 21st section of the amendatory act of 1864,-requiring that before any of the lands granted by 'this act' should be conveyed to the company the cost of surveying, selecting, and conveying said lands, shall first be paid into the Treasury of the United States by the company, &c.,-is not limited to lands acquired by virtue of that act. The language is 'this act.' Independently of that the original act of 1862 required no such prepayment, and the government cannot disregard a statute which made a grant-an executed contract-and annex new conditions to the grant by a subsequent enactment. If this point is well taken, then as the title here is derived under the original act (the act of 1862), the requisition does not apply to this particular case.
But independently of this:
1. A legal title is confessedly unnecessary to give to a State a right to tax. 'The right to a patent once vested,' says this court, in Stark v. Starrs, 'is equivalent, as respects the government dealing with the public lands, to a patent issued; and when issued, it relates back so far as may be necessary to cut off intervening claimants, to the inception of the right of the patentee.' Indeed the whole foundation of the plaintiff's case is a title in himself. He sets one up, and if he has no title, of course, he can maintain no bill to have his title quieted.
2. Now the grant attached, and a good equitable title vested upon the compliance by the company on which the grant itself was made; that is to say, upon the completion of any forty consecutive miles of road, accepted by the President. The 21st section of the amendatory act does not prevent an equitable title from vesting. It only declares that 'before any land granted by this act shall be conveyed,' certain small expenses shall be paid. It assumes that the land has been 'granted,' i. e., that the grant has attached; but withholds a patent, or evidence of legal title, till the small expenses mentioned are discharged.
3. The court below was equally right as to the effect of the proviso in the original statute of 1862, opening to actual settlers under the pre-emption laws any of the lands not sold within three years. The effect of an opposite construction would be to render the act nugatory and void, and consequently destory the grant, for government cannot grant away any portion of the public lands, and yet still own them. This proviso is in the nature of a saving clause in a statute; but a saving clanse in a statute, where it is directly repugnant to the purview or body of the act, and cannot stand without rendering the act inconsistent and destructive of itself, is to be rejected.
Mr. J. P. Ushur, contra, for the plaintiff in error.
Mr. Justice MILLER delivered the opinion of the court.

## Notes

* 6 Wallace, 402.
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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