This case was brought before us upon questions certified by the circuit court of appeals. Subsequently, the United States was allowed to intervene upon the general ground that the case involved important questions affecting the administration of the public land laws, including the grant to the Northern Pacific Railroad Company then in process of adjustment. And on motion of the government, the plaintiffs and defendants concurring, the whole record was ordered to be sent up for our consideration.
The case involves the title to numerous tracts of land situated on the line of the Northern Pacific Railway between Duluth and Ashland. The lands are described in an exhibit attached to the bill.
The plaintiffs, Humbird and Weyerhaeuser, sue as grantees of the Northern Pacific Railway Company, a Wisconsin corporation, which, it is claimed, succeeded, in respect of the lands in dispute, to all the rights, interests, and ownership of the Northern Pacific Railroad Company, created by the act of Congress of July 2d, 1864 (13 Stat. at L. 365, chap. 217). They allege that the claims of the defendants constitute clouds upon their title.
The defendants assert title under the land laws as settlers and purchasers from the United States, or grantees of such settlers and purchasers. But the bill alleges that the lands here in dispute are part of the grant to the Northern Pacific Railroad Company, and that the Land Department wrongfully and unlawfully permitted the entries under which the defendants severally claim. The circuit court dismissed the bill, but without prejudice, except as to all lands here involved for which patents had been issued. 110 Fed. 465.
It seems both appropriate and necessary that the facts be fully stated. That statement we now proceed to make, premising that the present controversy had its origin, as will be presently shown, in conflicting orders or rulings in the Land Department as to what was the eastern terminus of the Northern Pacific Railroad.
By the above act of July 2d, 1864, chap. 217, Congress made a grant of lands to the Northern Pacific Railroad Company in aid of the construction of a railroad and telegraph line from some point on Lake Superior, in Minnesota or Wisconsin, to some point on Puget sound, with a branch, via Columbia river, to a point at or near Portland. The act established indemnity limits not more than 10 miles beyond the limits of the alternate sections granted. 13 Stat. at L. 365.
By a joint resolution approved May 31st, 1870, second indemnity limits were established within 10 miles on each side of the road, beyond the limits prescribed in the company's charter. 16 Stat. at L. 378, Resolution 67. The effect of this resolution was to allow the company, under the direction of the Secretary of the Interior, to go into second indemnity limits in order to supply any deficiency in lands on its main line or branch.
On the 3d day of July, 1882, the company transmitted to the Secretary of the Interior a map of definite location covering the proposed line from Thompson Junction, on the St. Paul & Duluth Railroad, near Duluth, Minnesota, to Ashland, in Wisconsin. That map was duly approved by the Secretary of the Interior, and the lands embraced by it were withdrawn from sale or entry.
By resolution of the board of directors of the company, adopted August 28th, 1884, Ashland was declared to be the eastern terminus of the road; and that resolution was accepted by the Secretary on December 3d, 1884, as establishing such terminus.
The part of the road delineated on the map of definite location was constructed and was duly accepted; and in conformity with the directions of the Secretary the company, the circuit court states, filed lists of selections of lands, some in the first and others in the second indemnity limits, in lieu of lands lost to it in its place limits,-such lists including all the lands in controversy in this suit. But the bill avers that no final action has ever been taken by the Land Department upon such lists; and they have not yet been approved by the Department.
Subsequently, on August 12th, 1896, the Secretary of the Interior ruled that Duluth, not Ashland, was the eastern terminus of the railroad, and therefore that the land grant of 1864 did not embrace any lands between Duluth and Ashland. The company's lists of selections were thereupon canceled by order of the Secretary, and the lands covered by them were thereafter treated by the Department as unappropriated public lands, and were opened for sale and entry.