ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
Fuller, Harlan, Brewer, Brown, Shiras, Jr., White, Peckham, McKenna; Mr. Justice Gray took no part in the decision of this case.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The paramount Federal question is whether the Missouri, Kansas and Texas Railroad Company was authorized to select as indemnity lands in satisfaction of its grant any even-numbered sections within the place limits of the prior grant to the Union
Pacific Railroad Company. Upon this question United States v. Missouri &c. Railway, 141 U.S. 358, is cited. The railway company, defendant in that case, is the successor in interest of the Missouri, Kansas and Texas Railroad Company. The act making its land grant is the one referred to in the foregoing statement of facts, as made July 26, 1866. 14 Stat. 289, c. 270. It claimed under the authority of that act the right to take as indemnity lands even-numbered sections within the place limits of what is known as the Leavenworth road, in whose benefit a grant was made March 3, 1863. 12 Stat. 772. The court held against this claim, saying (p. 307):
"Now, it is clear that the even -numbered sections, within the place limits of the Leavenworth road, were reserved by the act of 1863, for purposes distinctly declared by Congress, and which might be wholly defeated if the Missouri-Kansas company were permitted to take them as indemnity lands under the act of 1866. The requirement in the second section of the act of 1863, that the 'reserved sections' which 'remained to the United States' within ten miles on each side of the Leavenworth road, 'shall not be sold for less than double the minimum price of the public lands when sold,' nor be subject to sale at private entry until they had been offered at public sale to the highest bidder, at or above the increased minimum price; the privilege given to actual bona fide settlers, under the preemption and homestead laws, to purchase those lands at the increased minimum price, after due proof of settlement, improvement, cultivation and occupancy; and the right accorded to settlers on such sections under the homestead laws, improving, occupying and cultivating the same, to have patents for not exceeding eighty acres each, are inconsistent with the theory that the even -numbered sections, so remaining to the United States, within the place limits of the Leavenworth road could be taken as indemnity lands for a railroad corporation."
While the two statutes making the Union Pacific Railroad grants did not double the price of the even-numbered sections within the place limits, yet that was done by the act of March 6, 1868, 15 Stat. 39, c. 20, which in terms provided "that such sections shall be rated at two dollars and fifty cents per acre, and subject
only to entry under those (the preemption and homestead) laws." The even-numbered sections within the place limits of the Union Pacific Railroad grants were from that time therefore not open to selection as indemnity lands. It is true that this statute was not passed until after the grant to the Missouri, Kansas and Texas Railroad Company, nor until after it had filed its map of definite location with the Secretary of the Interior, which appears from an agreed statement of the facts to have been on January 7, 1868, but it was passed before the completed construction of the railroad and long before the selection made by the company, and it is familiar law that no title to indemnity lands is vested until an approved selection has been made, and that up to such time Congress has full power to deal with lands in the indemnity limits as it sees fit. As said in Kansas Pacific Railroad v. Atchison Railroad, 112 U.S. 414, 421: "Until selection was made the title remained in the government, subject to its disposal at its pleasure." See, also, Ryan v. Railroad Company, 99 U.S. 382; Grinnell v. Railroad company, 103 U.S. 739; Cedar Rapids &c. Railroad v. Herring, 110 U.S. 27; St. Paul Railroad v. Winona Railroad, 112 U.S. 720, 731; Barney v. Winona &c. Railroad, 117 U.S. 228, 232; Sioux City Railroad v. Chicago Railway, 117 U.S. 406, 408; Wisconsin Railroad v. Price County, 133 U.S. 496, 511; United States v. Missouri &c. Railway, 141 U.S. 358, 375; Hewitt v. Schultz, 180 U.S. 139; Southern Pacific Railroad Company v. Bell, 183 U.S. 675.
It is contended by plaintiff in error that the selection by the railroad company, when approved by the Land Department, operated to convey the title as effectively as would a patent to it therefor; that the even-numbered sections within the place limits, although double minimum lands, were public lands and within the jurisdiction of the Land Department, and that hence the approval of the selection by the Land Department, even if erroneous, operated to vest the title in the company. But this is a mistake. The act of Congress provided in terms that such sections should be subject only to entry under the homestead and preemption laws, and the Land Department had no more power to turn one of those sections over to a railroad company
than it had to grant lands in a military or Indian reservation. While the lands were within the jurisdiction of the Land Department for some purposes they were not for all. The mode of their disposal was limited, and the Land Department had no authority to ignore that limited mode and dispose of them in any other way. This general doctrine s to the limitation of the powers of the Land Department has been affirmed by this court in ...