US SUPREME COURT DECISIONS

Congress did not intend by the statutes under which the Atlantic and Pacific Railroad Company received its grants of public land to vest the lands absolutely in the company, without a right to the government to reacquire them on failure of the company to comply with the conditions of the grant, and no express provision for a forfeiture was necessary in order to fix the rights of the government, and to authorize reentry in case of breach of condition.

The Act of April 20, 1871, c. 33, 17 Stat. 19, did not alter, amend or repeal the Act of July 27, 1866, c. 278, 14 Stat. 292, in these respects, except so far as it permitted a foreclosure of any mortgage which might be put on the lands by the company to operate upon lands opposite and appurtenant to the then completed part of the road, and so far as it gave assurance that no forfeiture would be insisted upon for conditions then broken.

When the United States grant public lands upon condition subsequent, they have the same right to reenter upon breach of the condition which a private grantor would have under the same circumstances, which right is to be exercised by legislation.

Lands in the Indian Territory belonging to the Indians did not pass under the grant to the railroad company, and the United States were not .required by the statutes to extinguish the Indian title for the benefit of the railroad company, nor could they be reasonably expected to do so.

As to Indian grants made subsequent to the grant to the railroad company, chanrobles.com-red

Page 165 U. S. 414

there was no restriction upon the right of the government to dispose of public lands in any way it saw fit prior to the filing of the map of definite location, and if it assumed to dispose of lands within the grant after the rights of the railroad company had attached, such action would be void, but it would be no answer to the obligation of the company to complete its road within the stipulated time.

Congress did not exceed its powers in forfeiting this grant.

This was an action of ejectment, brought by the railroad company in the District Court for San Miguel County, New Mexico, to recover of the defendant, Mingus, a parcel of land, to which the plaintiff claimed title under its land grant, made by Act of Congress of July 27, 1866, c. 278, 14 Stat. 292. Upon the trial, it gave evidence tending to show that the land in controversy was part of an odd-numbered section of public lands within the primary limits of the grant, and was vacant and in all respects subject to the grant both at the date thereof and at the date of the definite location of the road (March 12, 1872), and therefore passed to and became vested in the company at that date.

Defendant pleaded not guilty, and relied upon a patent for the same land issued December 10, 1891, to one Albert W. Bray, founded upon a preemption filing made January 9, 1888. While conceding the original vesting of title in the railroad company on March 12, 1872, and its undisturbed continuance until July 6, 1886, defendant claimed that under an act of Congress approved upon that day, c. 637, 24 Stat. 123, declaring a forfeiture of the land grant, the title of the company was annulled, and became revested in the United States, and from that time the land was properly subject to preemption.

Plaintiff denied the validity of the alleged act of forfeiture, contended that it was ineffectual to annul its title, and hence that the patent of the defendant was issued without authority, and was void upon its face.

The facts of the case were substantially as follows:

The company was originally incorporated by Act of Congress of July 27, 1866, c. 278, 14 Stat. 292, and by § 1 of the act was authorized to construct a continuous railroad and telegraph line from

"the Town of Springfield, in the State of Missouri,

Page 165 U. S. 415

thence to the western boundary line of said state, and thence, by the most eligible railroad route, as shall be determined by said company, to a point on the Canadian River; thence to the Town of Albuquerque, on the River Del Norte, and thence, by way of the Agua Frio or other suitable pass, to the headwaters of the Colorado Chiquito, and thence, along the thirty-fifth parallel of latitude, as near as may be found most suitable for a railway route, to the Colorado River at such point as may be selected by said company for crossing; thence, by the most practicable and eligible route, to the Pacific. The said company shall have the right to construct a branch from the point at which the road strikes the Canadian River eastwardly, along the most suitable route as selected, to a point in the western boundary line of Arkansas at or near the Town of Van Buren."

By § 2, authority was given to the company to take materials from the public lands adjacent to the line of the road for its construction, and the United States agreed to

"extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act, and acquired in the donation to the road named in the act."

By § 3, there was granted to the company, for the purpose of aiding in the construction of the railroad and telegraph, etc.,

"every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state."

By section 6, the President of the United States was to cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, "after the general route shall be fixed, and as fast as may be required by the construction of said railroad."

The eighth, ninth, and seventeenth sections were as follows:

"SEC. 8. And be it further enacted that each and every

Page 165 U. S. 416

grant, right and privilege herein are so made and given to and accepted by said Atlantic and Pacific Railroad Company, upon and subject to the following conditions, namely that the said company shall commence the work on said road within two years from the approval of this act by the President, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish and complete the main line of the whole road by the fourth day of July, Anno Domini eighteen hundred seventy-eight."

"SEC. 9. And be it further enacted that the United States make the several conditional grants herein, and that the said Atlantic and Pacific Railroad Company accept the same, upon the further condition that if the said company make any breach of the conditions hereof and allow the same to continue for upward of one year, then in such case at any time hereafter, the United States may do any and all acts and things which may be needful and necessary to insure a speedy completion of the said road."

"SEC. 17. And be it further enacted that the said company is authorized to accept to its own use any grant, donation, loan, power, franchise, aid or assistance which may be granted to or conferred on said company by the Congress of the United States, by the legislature of any state, or by any corporation, person, or persons, or by any Indian tribe or nation through whose reservation the road herein provided for may pass, and said corporation is authorized to hold and enjoy any such grant, donation, loan, power, franchise, aid or assistance, to its own use for the purpose aforesaid, provided that any such grant or donation, power, aid or assistance from any Indian tribe or nation shall be subject to the approval of the President of the United States."

By the twentieth section, the right was reserved to Congress, "at any time, having due regard for the rights of said Atlantic and Pacific Railroad Company," to "add to, alter, amend or repeal this act."

The company proceeded with its organization, but up to April 20, 1871, had only been able to construct 75 miles of its road, including 34 miles in the Indian Territory, extending chanrobles.com-red

Page 165 U. S. 417

westward from its eastern terminus at Springfield, Missouri. Along that construction in the State of Missouri, there was but little unappropriated public land available under the grant to aid in building the road. From the west line of Missouri to the west line of the Indian Territory, about 350 miles, the lands were unsurveyed, and were wholly embraced in Indian titles which the United States had not extinguished, and none of those lands were available to aid in construction. From thence, through New Mexico and Arizona to the Colorado River, the route of the road ran through numerous reservations occupied by hostile and warlike Indians, the boundaries of which reservations were subsequently enlarged by the United States, and new reservations created. Most of the lands which were not included in such unextinguished Indian occupancy were then unsurveyed, and were largely taken up by unadjusted Mexican land claims. It also appears that the surveying and engineering parties of the company were stopped by orders from the Secretary of the Interior from continuing westward through the Indian Territory, and the company was unable to proceed until March, 1871, and then only upon executing a bond in the sum of half a million of dollars, conditioned for the protection of the Indian tribes through whose territory the line of route was required to pass by the act of Congress.

For these reasons, the company was compelled to stop work and appeal to Congress for express authority to mortgage its land grant in advance of the construction of the road, so as to secure capital for the prosecution of the work. Thereupon, on April 20, 1871, Congress passed an act authorizing the company to mortgage its property, with a proviso that

"if the company shall hereafter suffer any breach of the conditions of the act above referred to, [July 27, 1866] under which it is organized, the rights of those claiming under any mortgage made by the company to the lands granted to it by said act shall extend only to so much thereof as shall be coterminous with or appertain to that part of said road which shall have been constructed at the time of the foreclosure of said mortgage. "

Page 165 U. S. 418

Under the authority of this act, the company executed mortgages to the aggregate amount of $31,500,000, of which $3,590,629 was secured by mortgages upon the central division of the road, extending from the west line of Missouri to Albuquerque, and embracing the lands here in controversy.

By July 4, 1878, the date fixed by the act of 1866 for the completion of the road, the company had constructed only 125 miles out of the 2,267 miles contemplated for the entire line; but, in order to have an outlet to the markets of St. Louis, and the transportation facilities of the Mississippi River, it had, in October, 1870, purchased the Southern Pacific Railroad, then built from Pacific City, 37 miles west of St. Louis, to Springfield. Owing, as is claimed, to the financial panic of 1873 and the failure of the United States to extinguish the Indian titles through the Indian Territory or of the company to acquire them, no substantial progress was made with the road from 1871 until about the beginning of 1880, when the company made such arrangements as to enable it to resume the work of construction. In order to do this, however, it had to give up operations in the Indian Territory, and by making connection with the Atchison, Topeka and Santa Fe, whose construction had then reached the line of the Atlantic and Pacific at Albuquerque, in New Mexico, it became practicable to build westward to the Pacific Ocean, and thus avoid many of the obstacles and hindrances which had been encountered in the Indian Territory. There were then constructed and equipped at a cost of $16,000,000, about 50 miles more in the Indian Territory, and 560 miles westward from Albuquerque to the "Needles," on the Colorado River, all of which were examined and accepted by order of the President. It also acquired, by contract of purchase at an expense of $7,290,000, 243 miles of road from the Needles to Mojave, California, which had been constructed by the Southern Pacific Railroad Company, and by a trackage contract with the Southern Pacific, the Atlantic and Pacific obtained the right to run its own cars to San Francisco, and to conduct to that point an independent and competitive freight and passenger business. chanrobles.com-red

Page 165 U. S. 419

On July 6, 1886, the company had about 1,228 miles of constructed road equipped and in operation, of which, however, it had itself constructed only 747 miles. That portion of the line from Sepulpa, in the Indian Territory, to Albuquerque, and from Mojave to the Pacific, were in 1886, and still remain, unconstructed.

Upon this state of facts, on July 6, 1886, Congress passed an act, c. 637, 24 Stat. 123, declaring all the lands, excepting the right of way,

"adjacent to and coterminous with the uncompleted portions of the main line of said road, embraced within both the granted and indemnity limits, as contemplated"

by the act of organization, to be "forfeited and restored to the public domain." The validity of this act raised the only question at issue between the parties.

Upon the trial, the court directed a verdict for the defendant. Plaintiff sued out a writ of error from the supreme court of the territory, which affirmed by a divided court the judgment of the court below, 34 P. 592, whereupon plaintiff sued out a writ of error from this Court. chanrobles.com-red

Page 165 U. S. 426