US SUPREME COURT DECISIONS

The grant of public land to the Central Pacific Railroad Company by the Acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, was a grant in praesenti, and the legal title to the granted land, as distinguished from merely equitable or inchoate interests, passed when the identification of a granted section became so far complete as to authorize the grantee to take possession.

Rutherford v. Greene, 2 Wheat. 196, cited and followed.

Patents were issued not for the purpose of transferring title, but as evidence that the grantee had complied with the conditions of the grant, and that the grant was to that extent relieved from the possibility of forfeiture for breach of its conditions.

Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496, 133 U. S. 510, approved.

The provision in the statute requiring the cost of surveying, selecting, and conveying the land to be paid into the Treasury before a patent could issue, does not impair the force of the operative words of transfer in it.

The railroad company could maintain an action for the possession of land so granted before the issue of a patent, and could transfer its title thereto by lease, so as to enable its lessee to maintain such an action.

The Court stated the case as follows:

This is an action of ejectment by D. P. Tarpey, the plaintiff below, against the Deseret Salt Company, a corporation created under the laws of Utah, for certain parcels of land in that territory, described in the complaint as the

"northwest quarter of fractional section nine, (9), in township eleven (11)

Page 142 U. S. 242

north, range nine (9) west, Salt Lake base and meridian, and the northeast quarter and the southwest quarter of said section, in part covered with water; in all, three hundred and eighty acres, more or less."

The greater part of these lands lie on the border of Great Salt Lake, a body of water in that territory of nearly ninety miles in extent, and in breadth varying from twenty to thirty miles, which holds in solution a large quantity of common salt. The remaining lands in the section are covered by the lake. In 1875, one Barnes took possession of a portion of these lands and began the construction of improvements and the erection of machinery to raise the water of the lake and conduct it into ponds or excavations, partly natural and partly made by him, for the purpose of evaporating the water by exposing it to the sun, and thus producing salt. He commenced manufacturing salt in this way in 1876 or 1877, and continued in the business until September, 1883, when he sold and transferred the lands and improvements to the defendant, the Deseret Salt Company, which at once went into possession and continued in the manufacture. The plaintiff derives his title from the Central Pacific Railroad Company, a corporation of California, to which a grant of land was made by the Act of Congress of July 1, 1862, embracing the premises in controversy. A greater part of its lands, lying in Utah, was leased by the company to the plaintiff on the 7th of August, 1885, for five years, for the annual rent of $5,000 and in consideration of certain covenants in relation to the property which he undertook to perform. By one of these covenants, he stipulated to begin to reduce the premises to possession, and to continue in that effort until he should be in the actual possession of the whole, and for that purpose to commence and prosecute any necessary or proper actions at law or other legal proceedings. This lease covered the premises in controversy. On the 20th of October, 1868, the map of the definite location of the line of the railroad of the company to be constructed under the above grant was filed in the Interior Department, and accepted as required by the act of Congress. chanrobles.com-red

Page 142 U. S. 243

The premises in controversy constitute an alternate section of the land within ten miles of the road, and its east, west, and north lines were surveyed by the United States in 1871. Its southern line, lying in the lake, had not been run. The selection list of lands for patent by the company, filed in the land office at Salt Lake City, which was produced in evidence, included the surveyed lands of the section and showed that the costs of selecting, surveying, and conveying them had been paid. There was no evidence of any application for any other lands in the section, and no costs were paid or tendered for their selection, survey, and conveyance. The plaintiff also proved the incorporation in June, 1861, of the Central Pacific Railroad Company of California; its amalgamation and consolidation in June, 1870, with the Western Pacific Railroad Company, and, in August, 1870, with the California and Oregon Railroad Company, the San Francisco, Oakland and Alameda Railroad Company, and the San Joaquin Valley Railroad Company. In the different articles of amalgamation, a conveyance was made by the parties of their several interests to the new amalgamated company, as follows:

"And the said several parties, each for itself, hereby sells, assigns, transfers, grants, bargains, releases, and conveys to the said new and consolidated company and corporation, its successors and assigns, forever, all its property, real, personal, and mixed, of every kind and description."

These instruments were all properly recorded. The court informed the jury of the general nature of the grant to the company by the Act of Congress of July 1, 1862, and the amendatory Act of July 2, 1864, and instructed them substantially that the line of the road which the company was to construct under the grant became definitely fixed upon its filing with the Department of the Interior its map of definite location designating the general route of the road, and that thereupon the beneficial interest in the land vested in the company by relation back to the date of the act of Congress, and that, as it was agreed that the lands in controversy were a portion of an odd alternate section within the twenty-mile limit of the grant, they passed to and vested in the company chanrobles.com-red

Page 142 U. S. 244

at the time of the filing of that map, unless they had been previously sold, reserved, or otherwise disposed of by the United States, or a preemption, homestead, swamp land, or other lawful claim had attached to them or they were known to be mineral lands or were returned as such, and further, that the lease bearing date the 7th day of August, 1885, from that company to the plaintiff, for five years from the 1st day of January, 1886, gave to him the right of immediate possession of the lands unless they were within some of the exceptions of the grant. The defendant company denied that the title to the lands in controversy had passed to the Central Pacific Railroad Company, the lessor of the plaintiff, and requested the court to instruct the jury that the plaintiff had not shown any grant or conveyance by deed or other written instrument sufficient to invest him with title to the lands. This instruction was refused, and the defendant excepted. The jury returned a verdict in favor of the plaintiff for the possession of the lands described in the complaint and for $500 for their use and occupation. Judgment being entered thereon, the case was carried to the supreme court of the territory and there affirmed. From the judgment of the latter court, the case is brought here on a writ of error. chanrobles.com-red

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