# Nelson v. Northern Pacific Railway Company

* related portals: Supreme Court of the United States, Northern Pacific Railway.
* sister projects: Wikidata item.

## Dissenting Opinion

    Josiah Brewer
United States Supreme Court
188 U.S. 108
Nelson v. Northern Pacific Railway Company
Argued: October 16, 17, 1902. --- Decided: January 26, 1903
[Syllabus from pages 108-110 intentionally omitted]
The Northern Pacific Railway Company brought this action in one of the courts of the state of Washington to recover from the plaintiffs in error the southeast quarter of section twenty-seven, township twenty, north of range fourteen, east of the Willamette meridian, in Kittitas county, in that state,-the company claiming to be the owner in fee, and alleging that the defendants were in unlawful possession of the land.
The defendants denied each of the allegations of the petition, and the case was tried under a stipulation of facts, which for the purpose of the trial were conceded to be true. The facts so conceded were as follows:
The company is a corporation of Wisconsin, and succeeded, prior to the commencement of this action, to whatever right, title, or claim the Northern Pacific Railroad Company had, if any, to the land in dispute. The latter corporation was created by an act of Congress approved July 2d, 1864, chap. 217, granting lands in aid of the construction of a railroad and telegraph line from Lake Superior to Puget sound on the Pacific coast by the northern route, and by the acts and joint resolutions of Congress supplemental thereto and amendatory thereof. 13 Stat. at L. 365. We will hereafter refer to those sections of the act, upon the construction of which the decision of this case mainly depends.
The railroad company duly accepted in writing the terms of the act of Congress, and on the 29th day of December A. D. 1864, such acceptance was served on the President of the United States.
The company fixed the general route of its road extending coterminous with said land, and within 40 miles thereof, by filing a plat of such route with the Commissioner of the General Land Office August 20th, 1873. Thereafter, on November 1st, 1873, that officer transmitted to the register and receiver of the land office for the district in which the land was situate the following letter of instructions: 'Gentlemen:-The Northern Pacific Railroad Company having filed in this department a map showing the general route of their branch line, from Puget sound to a connection with their main line near Lake Pend d'Oreille in Idaho territory, I have caused to be prepared a diagram which is herewith transmitted, showing the 40-mile limits of the land grant along said line, extending through your district, and you are hereby directed to withhold from sale or entry all the odd-numbered sections falling within these limits not already included in the withdrawal for the main-line period. The even sections are increased in price to $2.50 per acre, subject to pre-emption and homestead entry only. This withdrawal takes effect from August 15th, 1873, the date when the map was filed by the company with the Secretary of the Interior, as required by the 6th section of the act of July 2d, 1864, organizing said company.'
The letter of the Commissioner and the diagram therein referred to were received and filed in the local land office November 17th, 1873.
The land in dispute was within the 40-mile limit of the land grant as designated in the diagram.
On December 6th, 1884, the railroad company definitely located the line of its railroad, coterminous with and within less than 40 miles of the land in controversy, by filing a plat of such line, approved by the Secretary of the Interior, in the office of the Commissioner of the General Land Office; and prior to November 18th, 1886, it constructed and completed a section of 40 miles of railroad and telegraph line extending over the line of definite location and coterminous with the land here in controversy. The President of the United States having appointed three commissioners to examine the same, and the commissioners, having performed that duty, reported to the Secretary on the 18th day of November, 1886, that the lines were completed in all respects as required by the act of Congress.
On the 30th of November, 1886, the Secretary transmitted that report to the President with a recommendation that the railroad and telegraph line be accepted, and on the 7th day of December, 1886, the President approved that recommendation.
The United States executed and delivered, May 10th, 1895, to the railroad company its letters patent, purporting to convey to the company the above tract under the terms and provisions of the act of 1864, and the various acts and joint resolutions of Congress supplemental thereto and amendatory thereof.
In the year 1881, three years before the definite location of the road, the defendant Henry Nelson went upon the above land and occupied it, and has since continuously resided thereon. It is agreed that he was at the time qualified to enter public lands under the act of Congress approved May 20th, 1862 (12 Stat. at L. 392, chap. 75), entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' and under the various acts supplemental thereto and amendatory thereof.
The land when occupied was unsurveyed, and was not surveyed until 1893. But as soon as surveyed Nelson attempted to enter it under the homestead laws of the United States in the proper United States district land office. His application was, however, rejected by the register and receiver because, in their opinion, it conflicted with the grant to the Northern Pacific Railroad Company.
The defendant Peter Nelson is in the occupancy of a portion of the land in question under license from his codefendant Henry Nelson.
Upon the facts so stipulated, the judgment was that the railroad company was not the owner, had no claim to, and was not entitled to the possession of the land in dispute, and that the defendant Henry Nelson was entitled to remain in possession by virtue of the homestead laws of the United States. Upon appeal to the supreme court of Washington that judgment was reversed and the cause remanded with directions to enter judgment for the company.
Messrs. James Hamilton Lewis, C. H. Aldrich, Thomas B. Hardin, and Ralph Kaufman for plaintiffs in error.
Messrs. James B. Kerr and C. W. Bunn for defendant in error.
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