250 U.S.

387
39 S.Ct. 546
63 L.Ed. 1049

NORTHERN PAC. RY. CO. et al.

Messrs. Charles Donnelly, of St. Paul, Minn., Charles H. Carey, James B.

This is a suit to quiet title in the plaintiff to five small tracts of land in Umatilla
county, Oregon, the right to such relief being predicated solely on adverse
possession under color of title for ten years, the period prescribed in a local
statute. The plaintiff obtained a judgment, which at first was affirmed by the
Supreme Court of the state and then on a petition for rehearing was modified as
to two of the tracts. McComas v. Northern Pac. R. Co., 82 Or. 639, 161 Pac.
562, 162 Pac. 862. The case is here on writ of certiorari.

There was substantial testimony tending to show that McComas, the plaintiff,
and his predecessors had been in undisputed possession of the lands for ten
years when the suit was brought and that during that period they had been
cultivating the lands and claiming the same under the deeds from the state
hereinafter mentioned and had put improvm ents thereon costing more than
$10,000. The other facts are set forth in a stipulation found in the record.

The lands are all parts of odd-numbered sections within the primary or place
limits of the land grant made to the Northern Pacific Railroad Company by the
Act of July 2, 1864, c. 217, 13 Stat. 365. At the date of that act they were

public lands of the United States and they continued to be such at the time the
line of road opposite which they lie was definitely located, save as their status
was affected by a pending claim of the state under the swamp-land grant made
by the Act of September 28, 1850, c. 84, 9 Stat. 519 (Comp. St. 4958-4960),
and the Act of March 12, 1860, c. 5, 12 Stat. 3. This claim was shown by a
swamp land selection list filed in the Land Department November 23, 1872,
and was still pending in that department in 1892 and 195. In those years the
state, without waiting for a determination of its claim by the department
executed deeds for the lands to persons who in turn executed deeds therefor to
the plaintiff. As to three of the tracts the swamp land claim was examined and
rejected by the department some time before this suit was begun, and as to the
other two it was still pending at that time.
4

The definite location of the line of road opposite which the lands lie was
effected by a map filed in the Land Department and approved June 29, 1883.
The grant to the railroad company was of all the odd-numbered sections of
public land within designated limits on either side of the line of road as so
located, with an express exception of such lands as at the time of definite
location were reserved, sold, etc., or were not 'free from pre-emption or other
claims or rights.' There was also an express exclusion of all mineral lands and a
provision that 'in lieu thereof a like quantity of unoccupied and unappropriated
agricultural lands in odd-numbered sections nearest to the line of said road may
be selected' under the direction of the Secretary of the Interior. By reason of the
pendency of the swamp land claim at the time of the definite location all the
tracts in question were expected from the grant of lands in place, and this
whether the claim was well grounded or otherwise; that is to say, the fact that
the claim was pending and undetermined prevented the lands from passing
under the grant as place lands. Whitney v. Taylor, 158 U. S. 85, 92, 94, 15 Sup.
Ct. 796, 39 L. Ed. 906; Northern Pacific R. R. Co. v. Sanders, 166 U. S. 620,
630, 17 Sup. Ct. 671, 41 L. Ed. 1139; Northern Pacific R. R. Co. v. MusserSauntry Co., 168 U. S. 604, 609, 18 Sup. Ct. 205, 42 L. Ed. 596. But through
some mistake in the Land Department three of the tracts were erroneously
patented to the railroad company as place lands between 1906 and 1909.
Without doubt the patents passed the legal title, but the United States was
entitled to a reconveyance from the railroad company and in equity remained
the true owner. Germania Iron Co. v. United States, 165 U. S. 379, 17 Sup. Ct.
337, 41 L. Ed. 754. The two tracts not patented as place lands were selected by
the railroad company in 1908 and a succeeding year in lieu of other lands in
place excluded from the grant by reason of being mineral. These selections
were received by the local land office and were awaiting action by the
Secretary of the Interior at the time of the trial.

This suit was brought September 25, 1912. Shortly thereafter the railroad
company, recognizing that the patents theretofore issued to it for three of the
tracts had been erroneously issued, reconveyed the title to the United States and
subsequently selected those tracts in lieu of other tracts in place excluded from
the grant by reason of being mineral. These selections were received by the
local land office; one was approved by the Secretary of the Interior and passed
to patent, and the other two were at the time of the trial pending before that
officer.

The plaintiff made no effort by pleading or evidence to show that the swamp
land claim was well gron ded or that he, his predecessors or the state, had in
any way become entitled to receive the title from the United States.

With some hesitation the trial court concluded that the lands were not excepted
from the grant of lands in place by reason of the existence of the swamp land
claim at the date of the definite location, and therefore that on the definite
location, by which the place limits were identified, the title passed to the
railroad company, the grant being one in praesenti as respects place lands
falling within its terms and not within its excepting or excluding clauses, and
the provision for patents being intended only to give further assurance. Deseret
Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. 158, 35 L. Ed. 999; Toltec Ranch
Co. v. Cook, 191 U. S. 532, 24 Sup. Ct. 166, 48 L. Ed. 291. On that theory a
decree was entered quieting the title in the plaintiff as to all the tracts.

But the court should have held that the swamp land claim pending, as it was, at
the date of the definite location prevented these lands from passing under the
grant of lands in place. The decisions of this court before cited leave no room
for doubt on this point. The cases of Iowa R. Land Co. v. Blumer, 206 U. S.
482, 27 Sup. Ct. 769, 51 L. Ed. 1148, and Missouri Valley Land Co. v. Wiese,
208 U. S. 234, 28 Sup. Ct. 294, 52 L. Ed. 466, relied on by the plaintiff, are not
apposite. The lands there in question were within the place limits and at the
time of definite location were free from other claims; so they were not excepted
from the grant, as here, but passed from the government on the definite
location. It follows that as to the three tracts erroneously patented as before
shown the railroad company had no title, legal or equitable, prior to the issue of
the patents. Up to that time the title was in the United States, and of course no
prescriptive right was acquired against it under the local statute. Besides, the
title received through those patents was turned back to the United States before
the trial and this operated to restore the three tracts to their prior status as public
lands. The title under those patentsand it was merely the naked legal title
did not remain in the railroad company for anything like the period named in

the local statute, if that be material. As to the other two tracts the railroad
company up to the time the suit was brought had nothing more than pending
lieu land selections which required the approval of the Secretary of the Interior
to make them effective (Wisconsin Central R. R. Co. v. Price County, 133 U.
S. 496, 512, 10 Sup. Ct. 341, 33 L. Ed., 687), but as yet they had not received
his approval.
9

The situation then at the time the case was heard in the trial court was this: The
railroad company had neither the legal nor the equitable title to four of the
tracts. Instead, the full title was in the United States and all existing claims to
them arising under the land grants and other public land laws were pending in
the Land Department, whose officers were specially charged be law with their
examination and determination and with the disposal of the title accordingly. It
is settled that in such a situation the courts may not take up the adjudication of
the pending claims, but must await the decision of the land of officers and the
issue of patents in regular course. Michigan Land & Lumber Co. v. Rust, 168
U. S. 589, 592, 594, 18 Sup. Ct. 208, 42 L. Ed. 591; Brown v. Hitchcock, 73 U.
S. 473, 19 Sup. Ct. 485, 43 L. Ed. 772; Cosmos Exploration Co. v. Gray Eagle
Oil Co., 190 U. S. 301, 315, 23 Sup. Ct. 692, 24 Sup. Ct. 860, 47 L. Ed. 1064;
Humbird v. Avery, 195 U. S. 480, 502, 25 Sup. Ct. 123, 49 L. Ed. 286. There
is, however, a related jurisdiction which the courts may exercise pending the
final action of those officers; they may protect a possession lawfully acquired or
restore one wrongfully interrupted, for that is a matter which is not confided to
the Land Department and may be dealt with by the courts in the exerciseo f
their general power. Gauthier v. Morrison, 232 U. S. 452, 461, 34 Sup. Ct. 384,
58 L. Ed. 680.

10

Whether the tracts as to which the swamp land claim is still pending were such
as came within the terms of the swamp land grant is a question of fact the
decision of which is expressly committed to the Land Department; and this also
is true of the question whether the tracts covered by the railroad company's lieu
land selections were when the selections were tendered so occupied and
appropriated as not properly to be subject to acquisition in that way. The
approval or disapproval by the Secretary of the Interior of such lieu selections
is not merely a formal act. It involves an exercise of sound, but not arbitrary,
discretion and makes it admissible for him, where a selection is proffered for
land which a bona fide occupant, misinformed and misunderstanding his rights,
has reclaimed and improved at large cost, to reject the selection and hold the
title in the United States until, as this court has said, 'within the limits of
existing law or by special act of Congress,' the occupant may be enabled to
obtain title from the United States. Williams v. United States, 138 U. S. 514,
524, 11 Sup. Ct. 457, 461 (34 L. Ed. 1026).

11

As to the fifth tract the railroad company at the time of the trial held a patent
issued pending the suit on a lieu land selection but recently initiated; so the
prescriptive right asserted by the plaintiff could not possibly include that tract.
If, as he asserts, the tract was so occupied or appropriated that it properly could
not be selected and patented in lieu of land in place found to be mineral, that
may afford an adequate basis for a suit by the United States to cancel the patent
(Diamond Coal & Coke Co. v. United States, 233 U. S. 236, 34 Sup. Ct. 507,
58 L. Ed. 936), or afford a basis for holding the railroad company as a trustee
of the title for him if, notwithstanding the silence of the present record on the
subject, he was entitled to a patent for the tract (Svor v. Morris, 227 U. S. 524,
529, 530, 33 Sup. Ct. 385, 57 L. Ed. 623); but it does not enable him to
complain on behalf of the United States or to assail the patent collaterally
(Hoofnagle v. Anderson, 7 Wheat. 212, 214, 215, 5 L. Ed. 437; Smelting Co. v.
Kemp, 104 U. S. 636, 647, 26 L. Ed. 875; Bohall v. Dilla, 114 U. S. 47, 51, 5
Sup. Ct. 782, 29 L. Ed. 61; Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29
L. Ed. 428; Fisher v. Rule, 248 U. S. 314, 318, 39 Sup. Ct. 122, 63 L. Ed. 263).

12

The Supreme Court of the state in its final opinion came nearer the views here
expressed than did the trial court, but it assumed that the reconveyance by the
railroad company to the United States was not accepted by the latter and so was
of no effect. In this the court was mis taken, for it affirmatively appears not
only that the land officers after the reconveyance entertained the lieu selections
of the same tracts, but also that they approved one of those selections and
passed it to patent. Besides, the ultimate judgment entered by the court departs
somewhatpossibly through a clerical inadvertencefrom its final opinion.

13

The judgment must be reversed and the cause remanded for further proceedings
not inconsistent with the views here expressed.

14

Judgment reversed.