208 U.S.

234
28 S.Ct. 294
52 L.Ed. 466

MISSOURI VALLEY LAND COMPANY and Iowa Railroad

Land Company, Plffs. in Err.,
v.
ASMUS WIESE.
No. 101.
Argued January 10, 1908.
Decided February 3, 1908.

Mr. Charles A. Clark for plaintiffs in error.

[Argument of Counsel from pages 234-237 intentionally omitted]
Messrs.James H. Van Dusen, Irving F. Baxter, and Edward F. Colladay
for defendant in error.
Mr. Justice White delivered the opinion of the court:

Within the grants of land made to the Union Pacific Railroad Company and the
Sioux City & Pacific Railroad Company by the act of Congress of July 1, 1862
(12 Stat. at L. 489, chap. 120), and the amendatory act of July 2, 1864 (13 Stat.
at L. 356, chap. 216), some of the land within place limits overlapped. This
controversy concerns the title to a 40-acre tract within an overlap.

We state the salient facts established by the pleadings and the proofs in order to
make clear the contentions which are required to be decided.

The land involved is the northeast 1/4 of the northeast 1/4 of section 21,
township 17, range 11 east, Washington county, Nebraska. At the time of the
passage of the granting acts referred to the records of the General Land Office
showed a school indemnity selection of the tract now in controversy, made on
July 1, 1858. The railroads named, each having complied with all the
conditions of the acts of Congress, had become fully entitled to the granted
lands prior to January 1, 1870. A joint patent was issued in 1873 to the two

roads named for a large quantity of the lands within the common territory. This
action of the Land Department was upheld by the circuit court for the district of
Nebraska in 1876, and the two railroad companies were adjudged to be tenants
in common of such lands. Sioux City & P. R. Co. v. Union P. R. Co. 4 Dill.
307, Fed. Cas. No. 12,909. As remarked in a footnote to a report of the case,
'This decree was acquiesced in by the parties, who subsequently effected an
amicable partition of the land.' Apparently, however, in consequence of the
school indemnity selection referred to, the 40-acre tract now in controversy was
not included in such patents. On July 3, 1880, the school indemnity selection
was canceled by the General Land Office because not authorized by statute.
See Union P. R. Co. v. United States, 17 Land Dec. 43. This cancelation, so far
as the record discloses, left the tract free from claims antagonistic to the rights
of the railroad companies under the grants of 1862 and 1864. On June 12, 1881,
the Union Pacific Railroad Company 'listed the land in question, per list No. 4,
but the Sioux City & Pacific Railroad Company never listed the same.' On
December 1, 1882, the Union Pacific Railroad Company sold, and in 1887,
after completion of the payment for the same, conveyed, the land to John Japp
by a warranty deed, purporting to transfer the entire title, and this deed was
soon afterwards recorded. Japp went into and remained in open, continuous, and
adverse possession of the land, farming the same, until February 28, 1891,
when he sold it to Asmus Wiese, the defendant in error. The latter at once
recorded his deed, inclosed the land with a wire fence, and maintained an
exclusive possession of the land, claiming to be the owner.
4

Upon the ground that the school indemnity selection referred to, although
invalid, was uncanceled when the railroad grants of 1862 and 1864 were made,
and that such invalid selection operated to except the tract in question from said
grants, the General Land Office on May 19, 1892, canceled the listing of the
tract which had been made by the Union Pacific Railroad Company and
rejected a claim 'as to this land' made by the Sioux City & Pacific Railroad
Company. When such claim was made and its precise character is not shown by
the record.

By 5 of the act of March 3, 1887 (24 Stat. at L. 556, chap. 376, U. S. Comp.
Stat. 1901, p. 1595), providing for the adjustment of land grants made by
Congress to aid in the construction of railroads and for the forfeiture of
unearned lands, etc., it was made lawful for a bona fide purchaser of lands
forming part of a railroad land grant, but which, for any reason, had been
excepted from the operation of the grant, to make payment to the United States
for said lands and obtain patents therefor. Because of the ruling made by the
General Land Of fice, to the effect that the Union Pacific Railroad Company
was without title to the land which it had conveyed to Japp, as before stated,

Asmus Wiese, on August 10, 1893, began proceedings under the 5th section of
the act of 1887 to obtain a patent to the land from the United States, made the
required publication and proof, and on September 25, 1893, paid to the register
of the proper local land office the sum of $50,the price of the land. A
certificate was delivered to Wiese, reciting that he was entitled, on presentation
thereof, to receive a patent. On October 17, 1894, presumably while an
application of Wiese for patent was pending before the Commissioner, the
Sioux City & Pacific Railroad Company filed a protest against the issue of the
patent, on the ground that the land affected lay within the limits of the grant to
said company under the act of 1864, that the indemnity school selection then
apparently existing was void, and did not cause the land to be excepted from
the grant on the definite location of the road, and, in consequence, that there
was no authority of law for the purchase by Wiese. It was further claimed that,
as the land was within the grant to the Sioux City road, it was a condition
precedent to acquiring title under the act of 1887, that it had been purchased
from that company, whereas the proof by Wiese was that it had been purchased
from the Union Pacific Railroad Company. The protest was dismissed by the
Commissioner on the ground that the Sioux City Company was debarred from
making the protest, because a claim previously made by that road to the land
had been rejected. Thereafter, upon application of the attorneys for the Sioux
City Company, this decision of the Commissioner was reviewed by the
Secretary of the Interior. On April 28, 1896, applying a prior decision in Union
P. R. Co. v. United States, 17 Land Dec. 43, that official held that the school
indemnity selection referred to having been made without statutory authority
therefor, did not reserve the land so selected from the operation of subsequent
grants to the railroads on the definite location of their line of lines, and that the
entry made by Wiese in supposed conformity to the act of 1887 was
unauthorized. In August following, the entry of Wiese was formally canceled.
In September, 1897, a patent from the United States for the tract was issued to
the Missouri Valley Land Company as the successor in interest to the Sioux
City & Pacific Railroad Company. Following a notification from the Land
Office by letter, dated May 17, 1898, that the land had been erroneously
patented, as it was within the limits of the grant to the Union Pacific Railroad
Company, and a patent should have issued to the companies jointly, the
Missouri Valley Land Company, by quitclaim deed, reconveyed the land to the
United States. Finally, on July 24, 1903, a patent for the land was issued by the
United States to the Union Pacific Railway Company, successor in interest to
the Union Pacific Railroad Company and to the Missouri Valley Land
Company, successor in interest of the Sioux City & Pacific Railroad Company,
jointly.
6

Prior, however, to the issue of the patent last referred to, and on November 12,

1902, Wiese commenced, in the district court of Washington county, Nebraska,

this action to quiet his title to the tract, making defendants to the petition the
Union Pacific Railway Company, the Sioux City & Pacific Railroad Company,
and the Missouri Valley Land Company. On February 7, 1903, the Union
Pacific Railway Company filed a disclaimer of 'any and all interest of every
kind or nature in and to the subject-matter of this action.' The issues, however,
upon which the case was tried, were made by a second amended petition, filed
on February 20, 1904, and an answer and cross petition thereto and a reply to
the cross petition. The only defendants named in this second amended petition
were the Missouri Valley Land Company and the Iowa Railroad Land
Company. Averments were made in the petition as to the making of the
overlapping grants by Congress, the completion of the two railroads prior to
January 1, 1870, the sale to Japp in 1882 and by Japp to the plaintiff, the
adverse possession of the land by the plaintiff and his grantor, commencing in
1882, absolute ownership of the land by the plaintiff, the issue in 1903 of the
joint patent for the land to the successors in interest of the original beneficiaries
of the grants made by the acts of 1862 and 1864, and the assertion of
confliction of 1862 and 1864, and the assertion of conflicting as successors in
interest to the Sioux City & Pacific Railroad Company. The prayer was that the
title of plaintiff might be quieted, etc.
7

We excerpt from the brief of counsel for plaintiffs in error a synopsis of the
contents of the claims made by its answer and cross petition:

'Plaintiff in error set up and claimed by its answer and cross bill that the title to
its interest remained in the United States until the issuance of the patent in
1903; in other words, that the grant for the Sioux City branch was not a grant of
the legal title in proesenti. It also specially set up and claimed that the Land
Department had jurisdiction to determine whether the land was subject to the
grant under acts of 1862 and 1864, and to determine all disputes as to who was
entitled to a patent therefor; that it was not adjudged until July 24, 1903, that
each company under the grant was entitled to a moiety of the lands. That while
the Land Department was holding, as above stated (because of the indemnity
school selection), the land in controversy to have been excepted from the grants
under the acts of 1862 and 1864, defendant in error was permitted by the local
land officers of Nebraska to enter the land under the act of Congress of March
3, 1887, and that this entry was not canceled until August 25, 1896; that, under
these rulings and contests, and while the title remained in the United States, up
to the issue of the joint patent, the possession of defendant in error was in no
sense adverse, but was in subserviency to the title of the United States.'

The plaintiff, by his reply, in substance alleged that the grants were in

proesenti, and that the effect of the completion of the railroads and compliance
with all the terms and conditions of the act prior to January 1, 1870, operated to
pass the title of the government on or prior to that date, and that the General
Land Office had not thereafter jurisdiction in respect to such lands, and that the
adverse possession of the plaintiff was not affected by the proceedings had in
the Land Department concerning such land.
10

The cause was submitted to the court on the pleadings and evidence, and a
decree was entered adjudging that Wiese had a perfect title to the tract. The
supreme court of Nebraska affirmed the decree (108 N. W. 175), holding, in
substance, that the grant to the two companies of the tract in controversy was in
proesenti, that the title of the companies attached upon the definite location of
their lines of road, and that the adverse possession of Wiese and his grantor,
commencing in 1882, had completely barred any claims of the companies to the
property. The case was then brought to this court.

11

A motion has been filed to dismiss the writ of error because it 'was not allowed
by the chief justice of the supreme court of Nebraska, and it does not appear in
the record by what authority the judge who allowed the writ styles himself
'Presiding Judge of the Supreme Court of Nebraska,' and because there is no
Federal question involved in said cause.'

12

Looking at the record we find that originally the writ of error was signed by
'Charles B. Letton, Justice of the Supreme Court of the State of Nebraska,' and
that subsequently an additional signature was added, viz., 'John B. Barnes,
Presiding Judge of Supreme Court of Nebraska, in absence of Sedgwick, C. J.,
from this State.' Obviously, in procuring the signature of Justice Letton,
counsel overlooked the fact that by 999, Rev. Stat., U. S. Comp. Stat. 1901,
p. 712, it was necessary that the writ of error should be allowed by the chief
justice of the court. The recital made by Justice Barnes following his signature
is, however, prima facie evidence of the correctness of the statements therein
contained, viz., the absence of the chief justice from the state and the fact that
Justice Barnes was, in his absence, the presiding judge of the supreme court of
Nebraska, and counsel have not assailed the accuracy of the representations.
We are of opinion that the statute was complied with. Havnor v. New York,
170 U. S. 411, 42 L. ed. 1088, 18 Sup. Ct. Rep. 631.

13

The contention of the absence of a Federal question is also without merit. In

effect, the plaintiffs in error pleaded their right and title to a moiety of the tract
in controversy under the joint patent of July 24, 1903, and urged in support
thereof the claim that the legal title had not, before the date named, passed out
of the United States, that the land was within the jurisdiction of the General

Land Office, and that, up to a short time before the execution of the joint deed,
the Department had assumed and exercised jurisdiction over controversies
respecting the land. Such a contention cannot be said to be frivolous, and as the
state court necessarily decided against the right or title so specially set up under
the United States, we possess jurisdiction.
14

That the decision of the court below was right, as applied to the land within the
place limits of the main line grant made to the Union Pacific Railroad Company
by the act of 1862 and the amendatory act of 1864, is not an open question.
This is so, since it has been expressly held that the main line grant was one in
proesenti, that the grantee company had a right to bring ejectment for such land
after the definite location of its road, and that consequently, from the time of
such definite location, a possession might be acquired by a third party to land
embraced within the grant, which would be adverse, even as to the railroad
company, and bar its title if possession was continued for the statutory length of
time. Deseret Salt Co. v. Tarpey, 142 U. S. 241, 35 L. ed. 999, 12 Sup. Ct. Rep.
158; Toltec Ranch Co. v. Cook, 191 U. S. 532, 48 L. ed. 291, 24 Sup. Ct. Rep.
166; Iowa R. Land Co. v. Blumer, 206 U. S. 482, 51 L. ed. 1148, 27 Sup. Ct.
Rep. 769. In the last-mentioned case, summing up the doctrine, it was said:

15

'But when the grant is in proesenti, and nothing remains to be done for the
administration of the grant in the Land Department, and the conditions of the
grant have been complied with and the grant fully earned, as in this case,
notwithstanding the want of final certification and the issue of the patent, the
railroad company had such title as would enable it to maintain ejectment
against one wrongfully on the lands, and title by prescription would run against
it in favor of one in adverse possession under color of title. Deseret Salt Co. v.
Tarpey, and Toltec Ranch Co. v. Cook, supra.'

16

The conclusive effect of these rulings, if applicable, is not denied, but it is

insisted that they are not pertinent, because the land in question was not a part
of the main line grant, but was embraced within a grant for the construction of a
branch road, which is so different from the grant for the construction of the
main line, that the branch line grant cannot be held to have been a grant in
praesenti within the principle of the previous cases. We proceed to consider
this contention.

17

The grants to aid in the construction of branch lines embraced by the act of
1862 are found in 9, 13, and 14 of the act. The grant to the particular branch
line with which we are concerned is contained in 14. By that section the
Union Pacific Railroad Company was authorized and required to construct two
branch lines of road and telegraph from a point on the western boundary of the

state of Iowa and from Sioux City, in the state of Iowa, so as to connect with the
line which was to start from the western boundary. The two branch lines
referred to in 14, as also the branch lines referred to in other sections of the
act of 1862, were authorized to be constructed 'on the same terms and
conditions as provided' or 'as contained in the act for the construction of the
Union Pacific Railroad Company,' etc. Section 17 of the act of 1864 amended
14 of the act of 1862, so that the section read as follows:
18

'Sec. 17. And be it further enacted, That so much of section fourteen of said act
as relates to a branch from Sioux City be and the same is hereby, amended so
as to read as follows: That whenever a line of railroad shall be completed
through the states of Iowa or Minnesota, to Sioux City, such company, now
organized or may hereafter be organized under the laws of Iowa, Minnesota,
Dakota, or Nebraska, as the President of the United States, by its request, may
designate or approve for that purpose, shall construct and operate a line of
railroad and telegraph from Sioux City, upon the most direct and practicable
route, to such a point on, and so as to connect with, the Iowa branch of the
Union Pacific Railroad from Omaha, or the Union Pacific Railroad, as such
company may select, and on the same terms and conditions as are provided in
this act and the act to which this is an amendment, for the construction of the
said Union & Pacific Railroad and telegraph line and branches; and said
company shall complete the same at the rate of fifty miles per year; Provided,
That said Union Pacific Railroad Company shall be, and is hereby, released
from the construction of said branch. And said company constructing said
branch shall not be entitled to receive in bonds an amount larger than the said
Union Pacific Railroad Company would be entitled to receive if it had
constructed the branch under this act and the act to which this is an
amendment; but said company shall be entitled to receive alternate sections of
land for ten miles in width on each side of the same along the whole length of
said branch: And provided, further, That if a railroad should not be completed
to Sioux City, across Iowa or Minnesota, within eighteen months from the date
of this act, then said company designated by the President, as aforesaid, may
commence, continue, and complete the construction of said branch as
contemplated by the provisions of this act: Provided, however, That if the said
company so designated by the President, as aforesaid, shall not complete the
said branch from Sioux City to the Pacific Railroad within ten years from the
passage of this act, then, and in that case, all of the railroad which shall have
been constructed by said company shall be forfeited to, and become the
property of, the United States.'

19

It will be observed that there was employed in the act of 1864 similar language
to that used in the act of 1862 in regard to the consideration moving from the

United States for the construction of the branch in question, viz., that the work
should be done 'on the same terms and conditions as are provided in this act,
and the act to which this is an amendment, for the construction of the said
Union & Pacific Railroad and telegraph line and branches.' That consideration,
among other things, was a grant of lands and also an issue of bonds by the
United States. As we must refer to the terms of the main grant to the Union
Pacific Railroad Company to determine the nature of like grants of land made
in the acts of 1862 and 1864 to aid in the construction of the branch lines, we
see no escape from the conclusion that the construction given to the grant of
lands within place limits, made in aid of the main line, must be adopted as to
the grants of place lands made in aid of branch roads; and, as we have seen, the
settled construction is that title to lands within the place limits passed by the
main grant on the filing by the road of its map of definite location in the
General Land Office. Nor is there merit in the contention that a different
construction is rendered necessary by the circumstance that the road which
might build up the branch from Sioux City was not or may not have been in
existence at the time of the passage of the act of 1864. As well argue that
because 7 of the act of 1862 required the Union Pacific Railroad to file its
assent to the act, under the seal of the company, in the Department of the
Interior, within one year after the passage of the act, that there was uncertainty
as to whether the Union Pacific Company might accept and that the grant
therefore could not be said to be one in praesenti.
20

Stress is also laid upon the fact that, by 17 of the act of 1864, it was provided
that 'said company shall be entitled to receive alternate sections of land for ten
miles in width on each side of the same along the whole length of said branch;'
and, in effect, we are asked to treat this as the granting clause of the act. But it
is clear that the clause deals only with the quantity of lands to be granted, and
that reference must be made elsewhere to ascertain the precise character of the
grant. Further, it is urged that the provision of 17 concerning forfeiture for
failure to complete the branch as required embraces 'all of the railroad which
shall have been constructed by said company,' but did not include the granted
lands, as in the case of the main line and other branches under 17 of the act of
July 1, 1862. From this it is argued that it was not the intention of Congress
that the lands should pass under the grant for the Sioux City branch except as
they were earned and duly patented. But whether or not the forfeiture was of
the limited character referred to, we think the clause cannot be allowed to
impair the force and effect of the operative words of present transfer made in
the statutory grant of lands contained in 3 of the act of 1862, as amended, in
reliance upon which, as one of the terms and conditions of the contract with the
government, the Sioux City & Pacific Railroad Company entered upon the
construction of its road.

21

It results from the foregoing that the grant of the tract of land in controversy
made by the act of 1862, and the amendatory act of 1864, to the Union Pacific
Railroad Company and the Sioux City & Pacific Railroad Company, being a
grant in praesenti, and third parties, on the definite location of the road, not
having acquired rights in the land, the legal title attached in favor of the two
companies on the filing of their maps of definite location as of the date of the
grant. Such title attached long prior to the purchase of the land by Japp. When
the sale was made to him no contest was pending in respect to the land, and the
statutory period of ten years, necessary in Nebraska to sustain a claim of title by
adverse possession, ended prior to the various proceedings had in the General
Land Office, to which we have heretofore referred, growing out of the invalid
school selection and the conflicting adjudications of the Office in respect to it.

22

That the entry and holding of the land by Japp, the grantor of Wiese, under the
purchase by Japp in 1882, and the continued possession by Wiese after he
acquired the land from Japp, should be deemed to have been adverse to the title
and possession of the Sioux City Company, if the possession by Japp was not
that of a cotenant, and such possession was unaffected by the proceedings had
in the Land Office subsequent to 1882, is not questiones. We are clearly of
opinion that the possession of Japp and his grantee was adverse in the strictest
sense of the term, and the acts of Wiese in seeking to acquire title from the
United States under the act of 1887, with the view of removing a cloud upon
his title, was not an act of recognition or acknowledgment of a superior title,
either in the United States or in the Sioux City Company, operating to interrupt
the continuity of his adverse possession, and, in any event, cannot be held to
have destroyed a title which had already become perfect by the expiration of
the statutory period in Nebraska for acquiring the legal title to land by adverse
possession.

23

The foregoing considerations, we think, dispose of the various contentions

presented to our notice, and, finding no error in the judgment of the Supreme
Court of Nebraska, it is, for the reasons stated, affirmed.