US SUPREME COURT DECISIONS

The Act of March 2, 1899, c. 377, 30 Stat. 993, in providing for conveyance to the United States by the Northern Pacific Railroad Company of lands within the Mount Ranier National Park in exchange for public lands to be selected elsewhere, is to be construed as extending to that company's successor in title, though no successor is named, and the Northern Pacific Railway Company, recognized as such successor by the Land Department both in the making of the conveyance of base lands and in the enjoyment of the right of lieu selection, is not to be denied that right upon the hypothesis that the Northern Pacific Railroad Company had ceased to exist before the date of the act.

In surveying and reporting on public lands, a deputy surveyor described them as suitable for grazing, if cleared, but more valuable for timber at the time. This having been accepted and acted upon by the Land Department as a description of the lands as nonmineral, held that they were to be regarded as "classified as nonmineral at the time of actual government survey," for the purposes of lieu selection by the Northern Pacific Railway Company under the Act of March 2, 1899, supra.

Whether a preliminary lieu selection of unsurveyed public land may be said to designate the tract "with a reasonable degree of certainty," under the Act of March 2, 1899, supra, is a question in the nature of a question of fact, to be determined upon the circumstance of each case. A description in terms of future survey may suffice if the land may be located therefrom with the aid of an adjoining survey already made.

Semble that the rule limiting inquiry in this Court to questions presented to the court below (Montana Railway Co. v. Warren, 137 U. S. 348) is not confined to questions of procedure, and is not inflexible.

221 F. 30 affirmed. chanrobles.com-red

Page 244 U. S. 91

Suit by appellant West (he was plaintiff in the court below, and we shall so refer to him) against appellees, the Edward Rutledge Timber Company and the Northern Pacific Railway Company (to be referred to as the timber company and railway company, respectively), to have plaintiff declared the owner of certain described lands, the railway company and the timber company decreed to hold title thereto in trust for him, to compel a conveyance to him, and to have his title to the lands quieted.

Plaintiff alleged himself qualified to locate and settle upon the lands, they being then unsurveyed and vacant, unoccupied, and unreserved lands belonging to the United States, as to which no claim of right or title to or interest in them had been made by any person, nor was there any evidence whatsoever upon the lands or any part thereof, or in the United States land office for the district (Coeur d'Alene Land District), or in the General Land Office in Washington showing any claim, right, title, or interest in any other person, nor were there any marks, blazes, notices, or any other evidence of the location, selection, claim, or possession marked or traced upon the ground, or upon or near the same, nor had the boundaries thereof been traced or located by reference to any natural objects or monuments of any kind or character.

That, on July 17, 1905, the official plat of the survey of the lands was filed in the local land office in Coeur d'Alene City, Idaho, and on that day the lands became open to entry under the homestead laws of the United States, and on that day plaintiff duly made application to enter them under the homestead laws, which application was rejected by the local land office, and, on May 10, 1910, the order of rejection was approved by the Secretary of the Interior, and the case finally closed.

That, on June 21, 1901, the railway company filed in the General Land Office its selection list No. 61, which contained chanrobles.com-red

Page 244 U. S. 92

the following pretended description, to-wit, "the Southeast Quarter of Section 20, Township 44 north, Range 3 E., B.M."

That the description was wholly imaginary, and that no lands in the State of Idaho or elsewhere were or could be so designated or described, for the reason that, at the time of filing the list, no such survey had been made or attempted. That neither the railway company nor the timber company knew or pretended to know what lands were referred to, or knew that, in the event of a survey, the description would be applied to the lands occupied by plaintiff. That the description was wholly insufficient to locate the lands or any part or parcel thereof, rendering the list and selection of the railway company wholly void and of no effect whatsoever.

That on October 10, 1910, a patent to the lands was issued to the railway company.

That (this on information and belief) the railway company conveyed the lands to the timber company, and that company now claims to have the legal title to the same.

That neither the railway company nor the timber company, nor any agent or employee of either, has ever been in possession of the lands, but plaintiff, ever since May 15, 1903, has been and now is in possession thereof; that neither the railway company nor the timber company has ever complied with the laws of the United States so as to entitle either of them to claim any interest in or right to the lands as against plaintiff.

That the decision of the local land office and the successive approval thereof by the Commissioner of the General Land Office and the Secretary of the Interior were and are wrongful, unlawful, and based upon an erroneous construction of the law, and upon a statement of facts concerning which there was and is no conflict.

That, at the time the patent was issued to the railway chanrobles.com-red

Page 244 U. S. 93

company, plaintiff was and now is the owner of the lands, and the issue of the patent to the railway company was contrary to and without authority of law, and in violation of plaintiff's rights; that the railway company was without any right or authority at law to select or claim the lands or any part thereof, and that the Act of Congress of March 2, 1899, upon and by virtue of which the railway company based its right to select and claim the lands, is unconstitutional and void, and confers no right whatsoever upon the railway company to select or claim the lands of any part thereof against plaintiff.

The answer of the timber company admitted certain allegations of the bill of complaint, but denied that the lands were vacant and open to settlement, or that they were unclaimed or unsegregated or not marked or traced by boundaries, and alleged that the fact of their appropriation and segregation appeared on the records of the local land office and of the General Land Office, and that the boundaries and lines of survey were duly and plainly traced and marked out upon the lands and located by monuments long prior to the time of plaintiff's settlement thereon, and that plaintiff had full knowledge thereof and did not enter upon the lands in good faith, but only in the hope that the claim of the timber company and railway company might be defeated on technical grounds.

That, on June 21, 1901, the railway company made selection of the lands under the provisions of the act of Congress entitled, "An Act to Set Aside a Portion of Certain Lands in the Washington Now Known as the Mount Ranier National Park," approved March 2, 1899, 30 Stat. 993, in lieu of an equal quantity of land relinquished to the United States pursuant to the provisions of the act. That such selection was duly made in accordance with the conditions of the act and the rules and regulations of the Land Department, and described chanrobles.com-red

Page 244 U. S. 94

as required by the act, and the selection was in all respects regular.

That on July 17, 1905, the official township plat was filed in the local land office, and the railway company, in accordance with the provisions of § 4 of the act of Congress, filed a new selection list which conformed to the provisions of the act and the rules and regulations of the Land Department.

That, at the time plaintiff made his alleged settlement upon the lands, they had been surveyed and the lines of survey traced, and all other conditions are alleged to have been satisfied.

The timber company prayed that it be dismissed with costs.

The answer of the railway company was substantially the same as that of the timber company.

To the issues thus framed the evidence was addressed, upon which a decree was entered for defendants dismissing the bill, neither party to recover costs or disbursements from the other. 210 F.1d 9. It was affirmed by the circuit court of appeals. 221 F. 30.