US SUPREME COURT DECISIONS

By the fiction of relation, where the interest of justice demands it, the legal title may be held to relate back to the initiatory step for the acquisition of the land.

Where the selection of indemnity lands is made in accordance with the statute and the selection rejected, and action on the appeal is delayed, but the appeal is finally decided in favor of the selections, the case is one peculiarly within the principle of relation, as the approval of the selection manifestly imports that, at the time of the selection, the land was rightfully claimed by the applicant.

The successor in interest to the applicant who would have been entitled to recover against trespassers for materials removed from the land after the application and before the patent issued may, under the doctrine of relation, be regarded as the owner from the date of the application, and is entitled to receive from the United States the amount collected by it from trespassers who removed materials from the land after such date, the United States having had notice of the claim prior to such collection.

The United States appeals from a judgment condemning it to pay $15,000. The essential facts stated in the findings are as follows:

In 1856, Congress granted to the State of Alabama public lands to aid in the construction of various railroads referred to in the first and sixth sections of the act. Among these was the Northeast & Southwestern Railroad,

"from near Gadsden to some point on the Alabama and Mississippi state line, in the direction of the Mobile & Ohio Railroad, and with a view to connect with said Mobile & Ohio Railroad."

The grant of land in place was six odd-numbered sections per mile, and lying within six sections in width on each side of the railroad. The act, in section 1, also contained a provision for indemnity lands, as follows:

"But in case it shall appear that the United States have,

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when the lines or routes of said roads are definitely fixed, sold any sections or any parts thereof, granted as aforesaid, or that the right of preemption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the rights of preemption have attached as aforesaid, which lands (thus selected in lieu of those sold, and to which preemption rights have attached, as aforesaid, together with the sections and parts of sections designated by odd numbers, as aforesaid, and appropriated as aforesaid) shall be held by the State of Alabama, for the use and purpose aforesaid: Provided, that the land to be so located shall in no case be further than fifteen miles from the lines of said roads, and selected for and on account of each of said roads."

The act, in section 6, moreover, contained this proviso:

"That the lands hereby granted to said state for the purpose of constructing a railroad from the northeast to the southwestern portion of said state, lying northwest of Elyton, shall be assigned to such road as may be designated by the legislature of said state."

It was further in substance provided, in section 4, that if any of the authorized roads were not completed within ten years, all right of the state in and to the lands granted should cease, and they should revert to the United States. 11 Stat. c. 41, pp. 17, 18.

By joint resolution of the Legislature of the State of Alabama, approved January 30, 1858, the grant made by the act aforesaid was accepted, and land was granted by the state to the Northeast & Southwestern Alabama Railroad, a body corporate, existing under the laws of Alabama, to be used and applied by said company "upon the terms and conditions in said act of Congress contained." Laws of Alabama, 1857 to chanrobles.com-red

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1858, p. 430. In June, 1856, an order of withdrawal was made by the Land Department of all the lands which were thought to be embraced within both the place and indemnity limits, which withdrawal included the land to which this controversy relates. This order was modified a few days thereafter so as to allow settlements to be made on the lands prior to the time of the definite location of the road. Such definite location was made and accepted by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, in December, 1858.

The Northeast & Southwestern Railroad was reincorporated by the State of Alabama in October, 1868, under the name of the Alabama & Chattanooga Railroad Company. Acts of Alabama, 1868, pp. 207, 345. In April, 1869, the time for the completion of the road was extended by act of Congress for a period of three years from that date. 16 Stat. 45. The road was completed within the extended time, in conformity with the law of Alabama, and in compliance with the act of Congress.

In December, 1887, an agent, duly appointed by the Governor of Alabama for that purpose, selected certain lands in the indemnity limits in lieu of lands within the place limits, which had been lost to the grantee by sale or preemption. At the time of making the selections there were tendered to the proper land officers all legal fees and charges. The selections were rejected by the local officers, and an appeal was taken to the Commissioner of the General Land Office. This appeal, however, was not acted upon for a considerable period of time; but finally, in April, 1896, the appeal was decided in favor of the selections, which were approved, and the title consequently passed from the United States to the State of Alabama, in trust for its grantees, under the act of Congress. At the time of the definite location of the road there was a deficiency in the place limits of 519,000 acres, and the whole amount of the vacant or odd-numbered sections within the indemnity limits, both approved and unapproved, available chanrobles.com-red

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to meet this deficiency, was less than 238,000 acres, leaving therefore on the face of the Land Office records at the time of the definite location of the road, a deficiency of more than 281,000 acres. By various acts of the legislature of the State of Alabama, and conveyances which are recited in the findings, and which it is not necessary to reproduce, the plaintiffs below became the owners of the land patented by the United States, within the indemnity limits, as above stated. During the period, however, which intervened between the selections of land made by the agent of the State of Alabama and the approval of the selections by the Secretary of the Interior, certain persons went upon the lands selected, and removed therefrom valuable iron ore and lime rock. After the approval of the selections the United States brought a suit to recover from the persons who had thus trespassed upon the lands the value of the product by them removed. The owners of the land, in pursuance of the selections, asserted a claim to the benefit of the recovery which might be made, but assented to a compromise made by the United States with the trespassers by which $15,000 was paid to the United States as the value of the material taken from the land. The owners of the land at the time of the compromise protested that they alone were entitled to receive the sum paid to the United States, and reserved their right to recover the same from the United States.

It is stated in the findings that a road known as the South & North Alabama Railroad, declared to be one of the roads enumerated in the sixth section of the act of Congress making the grant to the State of Alabama, was definitely located opposite the land in controversy on May 30, 1866, nearly eight years after the definite location of the Northeast & Southwestern Railroad, and was constructed within the time required by law. There is no finding, however, that a grant was ever made to the South & North Alabama Railroad by the State of Alabama, or that that road preferred any claim to the land in question. chanrobles.com-red

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