# Curtner v. United States

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## Dissenting Opinion

    Field
United States Supreme Court
149 U.S. 662
Curtner v. United States
This was a bill in equity filed by the United States in the circuit court of the United States for the northern district of California, July 23, 1883, against Henry Curtner and others, patentees of the state of California, for the purpose of having certain listings of indemnity school lands situated in that state in township 3 S., range 3 E., and in township 2 S., range 1 E., set aside and canceled, and the lands decreed to be held subject to the grant made for the purpose of aiding the construction of the Pacific Railroad, as provided in the acts of congress of July 1, 1862, and July 2, 1864.
The bill was demurred to, and amended, and to the amended bill a demurrer was interposed, which was overruled, Judge Sawyer delivering an opinion. 11 Sawy. 411, 26 Fed. Rep. 296.
The bill averred that on July 1, 1862, congress passed an act by which the Union Pacific Railroad Company was incorporated for the purpose of constructing a railroad and telegraph line from the Missouri river to the Pacific ocean, and by which it was provided that 'there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad, * * * every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached, at the time the line of said road is definitely fixed. * * * And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.' 12 Stat. 489, 492. That the Central Pacific Railroad Company of California was by the act declared entitled to the benefit of this land grant, on the same terms and conditions as the Union Pacific Railroad Company. That on October 31, 1864, the Central Pacific Railroad Company of California assigned to the Western Pacific Railroad Company the right to earn the land grant along and through the location where the land in controversy is situated, and that this assignment was ratified by act of congress of March 3, 1865. 13 Stat. 504.
It was further alleged that by the act of July 1, 1862, the railroad company seeking the benefit of the grant therein provided for was required, within two years after its passage, to file a map of its general route in the department of the interior, and thereupon the secretary of that department should cause the lands within 15 miles of such general route to be withdrawn from pre-emption, private entry, and sale. That when any portion of said route was finally located the secretary of the interior should cause the said lands so granted to be surveyed and set
That a map of the general route of the road was filed in the department of the interior on December 8, 1864, and that the secretary of that department, on January 30, 1865, caused the lands within 25 miles of such general route to be withdrawn from pre-emption, private entry, and sale. That the land in controversy was within those limits. That on February 1, 1870, the map of the line of the road, as definitely fixed, was filed with the secretary of the interior, and on that day the line of the road was definitely fixed. That on December 29, 1869, the road was completed in all respects as contemplated by said act of congress, and the Western Pacific Railroad Company was entitled to have and receive patents from the United States for the land in controversy, the same being within 10 miles of the road so completed, and not sold, reserved, or otherwise disposed of by the United States.
And also that the Western Pacific Railroad Company and the Central Pacific Railroad Company of California became consolidated on June 22, 1870, under the name of the Central Pacific Railroad Company, and that the said Western Pacific and its successor, the Central Pacific, did, within three years of the completion of the said road, sell and dispose of the land in controversy to persons other than the lefendants.
The bill then averred that 'the commissioner of the general land office did, at the various and respective times hereinafter stated, without right and through error, inadvertence, and mistake, wrongfully list, by certified lists thereof, to the state of California, the said above-described lands;' and then follow four lists, covering the lands in controversy, dated September 8, 1870; March 11, 1871; November 15, 1871; and March 24, 1873.
That on May 12, 1874, the railroad company, by its deputy land agent, presented to the register and receiver of the local land office a selection of lands claimed by it under its grant, numbered 13, including these lands; that the 'mistake, error, and inadvertence of the said commissioner of the general land office in listing by certified lists said land to the state of California was not discovered by complainants, or its officers of the said land department, or by said Central Pacific Railroad Company or its grantees, until the 12th of May, 1874, nor could the same by reasonable diligence have been discovered sooner; that thereupon said register and receiver wrongfully, and in violation of their duty, refused to certify said list as aforesaid requested, and refused to certify the same in any manner whatever.'
It was further alleged 'that the state of California did at various times subsequent to said eighth (8th) day of September, A. D. 1870, by its land patents, purport to convey said lands mentioned in said list to divers and sundry persons other than 'the Western Pacific Railroad Company' or its successors, the Central Pacific Railroad Company, and against the will and without the consent of the said companies, or either of them, as follows, to wit.' And then follow the dates of the patents, the lands patented, and the names of the patentees, the dates being February 3, 1871; April 3, 1871; November 29, 1871 May 18, 1872; and March 4, 1878, respectively. And that the patentees subsequently to the issue of the patents by the state to them, respectively, and prior to the commencement of this action, 'did by valid mesne conveyances, duly executed and acknowledged, convey all their right, title, and interest in and to said lands to the defendants herein.'
The bill further averred that the lands so patented by the state were on July 1, 1862, November 30, 1862, July 2, 1864, October 5, 1864, January 30, 1865, and December 29, 1869, alternate sections of the public lands of the United States, and were within the limits of the railroad grant, and had not been sold or reserved or otherwise disposed of by the United States, and that no pre-emption or homestead claim had attached thereto at the time the line of the road was definitely fixed; that the president of the United States refused to issue patents to the railroad company for said lands, 'not because the said the Western Pacific Railroad Company and its successors had not complleo with the said acts of congress, nor because it was not the kind and description of land granted, but solely because said land had previously been, by mistake, wrongfully and inadvertently listed to the state of California, as hereinbefore set forth,' and that the defendants and their grantors at the time mentioned in the bill 'had actual notice of the said grant of said lands to said company, the said withdrawal thereof, the said erroneous and unlawful listing thereof by the said error, inadvertence, and mistake of the said commissioner, and of each and all of the matters and things hereinbefore set forth.'
The bill then set forth various steps taken by the railroad company to procure patents from the interior department notwithstanding the listings to the state, and among other things that on March 18, 1879, the register and receiver at San Francisco reported that in accordance with instructions of January 24, 1878, they had on February 25, 1878, made demand on the state of California for the surrender of the certification of the lands hereinbefore described, and that no surrender had been made; that they also reported on the same day that in accordance with instructions of March 9, 1878, they furnished the state surveyor general, on March 26, 1878, with a copy of said instructions, and made demand on the state of California to surrender her title and listing of said lands, but that up to that date she had failed to surrender as requested; that on April 2, 1879, the reports were submitted to the secretary of the interior, and on the 26th of June the secretary affirmed the commissioner's decision of March 9, 1878, awarding the land to said company, but refusing to issue patents for the reason that said land had been wrongfully listed to the state of California. On December 8, 1879, the secretary of the interior transmitted to the commissioner a letter from the attorney general of California, dated April 1, 1878, refusing to relinquish the certification and listings of said lands theretofore listed and certified to the state by the commissioner; that afterwards a petition was filed in the general land office for a reconsideration of so much of the secretary's decision of June 26, 1879, as declined to issue to the railroad company patents for the lands that by mistake were wrongfully listed and certified to the state of California, and thereafterwards the papers were sent to the secretary, who on July 1, 1882, requested the opinion of the attorney general of the United States whether patents could then be issued for the lands, or whether the certification to the state must be first judicially vacated; that on October 18, 1882, the secretary of the interior wrote to the commissioner of the general land office, inclosing a copy of the attorney general's opinion, and directing the papers to be prepared for a suit to set aside the listing and certification to the state, and thereafterwards, on December 6, 1882, the secretary requested the attorney general to commence suit in the proper court.
The bill then charged that a demand was duly made by the United States upon the state, February 25, 1878, and refused, and that the United States were bound, in equity and good faith, to hold the Central Pacific Railroad Company, its grantees and assigns, harmless from the consequences of errors and mistakes, and particularly those relating to the mistake and inadvertence of the commissioner of the general land office. The bill further averred that proceedings had been continuously pending before the land department for the purpose of correcting the error and mistake, and had been prosecuted with due diligence, and in accordance with the usages of the department in relation to such matters. It was further stated that prior to December 6, 1882, it had been the practice of the department to issue second patents to claimants of land whenever it was made to appear that the first patent had been wrongfully issued.
The prayer was that 'the said listings of said lands to the state of California as aforesaid be set aside, recalled, canceled, and annulled, and that all the defendants herein be forever estopped and forbidden from asserting any right or title to said lands, and that the same in said decree be declared to be public lands of the United States of America, subject to said rights of the Central Pacific Railroad Company, its grantees and assigns, as hereinbefore set forth,' and for general relief.
Answers having been put in, evidence taken, and hearing had, a decree was rendered which annulled the listings and certifications to the state, adjudged the patents issued to the state to be void, and enjoined the defendants from asserting any title under them.
H. F. Crane, E. R. Taylor, and Mich. Mullany, for appellants.
Sol. Gen. Aldrich, A. T. Britton, and A. B. Browne, for appellees.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, 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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