# Petition for Writ of Certiorari — Russell v. Texas Co. (No. 1009) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386418_1271%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1956 ## Text SUBJECT INDEX Opinions below Jurieicti The statutes involved... Statement 3, The beginning of the removal of Section 23 from public lands is found in the Act of 1864, although the grant therein failed because of Northern Pacific’s financial in- ability to construct the road under the conditions of the Act of 1864 6 The terms and conditions of the Joint Resolution of 1870 were accepted by Northern Pacific, the road was con- structed with the proceeds from its bonds secured by mortgage, and the right to Section 23 and other granted lands was earned. Northern Pacific selected Section 23 pursuant to both the Act of 1864 and the Joint Resolution of 1870 and patent thereon was issued expressly stating that it was pursuant to both Congressional Acts. ; Northern Pacific contracted to sell Section 23 to peti- tioner’s predecessor, MaBelle Cobb, an actual settler, as required by the proviso of the Joint Resolution of 1870, but reserved the minerals in derogation thereof... 11 Petitioner’s action here under review was timely com- menced, in a court of proper jurisdiction, and under ap- propriate allegations 13 PAGE Reasons for granting the writ 15 1. The decision of the court below lies athwart the Con- gressional intent that public lands and their values, granted solely in aid of railroad construction, find their ultimate unencumbered disposition to the public at the stipulated maximum return of $2.50 per acre to Northern Pacific 15 (a) The Joint Resolution of 1870 was in its very essen- ence necessarily a regrant, and as such, applicable in all of its terms and provisions to all of the then un- earned lands granted to Northern Pacific under it and the Act of 1864 15 (b) The proviso being fully applicable to all granted lands, the mineral reservation in conflict therewith on Section 23 is void 20 2. The opinion of this court in United States v. Northern Pacific R. Co., brought pursuant to Congressional Act, serves to support this petition. 22 3. The law of estoppel in private grant, relied upon by the Court of Appeal, is without application where the origin of title is Congressional Act; neither does the law of estoppel properly apply here, where judgment was made summarily 28 Conclusion 3% Appendices : Appendix A. Opinion of the United States Court of Ap- peals App. p. 1 Appendix B. Portions of the Granting Act of 1864....App. p. 19 Appendix C. Area within the State of Montana from which were drawn public lands in aid of the construction of the railroad and telegraph lines of Northern Pacific Railroad Company App. p. 27 iti. TABLE OF AUTHORITIES CITED CAsEs PAGE Great Northern R. Co. v. United States, 315 U. S. 262... aa Oregon and California R. Co. v. United States, 238 U. S. 393... 21, 22, 29 Oregon and California R. Co. v. United States, 243 U. S. 549, 61 L. Ed. 890 20, 21, 22 St. Paul and Pacific R. Co. v. Northern Pacific R. Co., 139 U. S. 1 7, 15 United States v. Northern Pacific R. Co., 41 Fed. Supp. 273... 27 United States vy. Northern Pacific R. Co.,.311-U.S. 317. 8, 9, 17, 23, 24, 25, 26, 27, 28 United States v. Union Pacific R. Co. (decided April 8, 1957, U. S. Supreme Ct.) 30 Valier Company v. State, 123 Mont. 329, 215 P. 2d 966, cert. den. 340 U. S. 827 STATUTES Act of July 2, 1864 (13 Stat. at L. 365, Chap. 217) : Sec. 3 Sec. 6 Sec. 10 Sec. 20 Act of May 7, 1866 (14 Stat. at L. 355) Act of July 1, 1868 (15 Stat. at L. 255) Act of March 1, 1869 (15 Stat. at L. 346) Act of April 10, 1869 (16 Stat. at L. 57) Act of June 25, 1929 (46 Stat. at L, 41, Chap, 41) Act of May 22, 1936 (49 Stat. at L. 1369, Chap. 444)... United States Code, Title 28, Sec. 1254(1) United States Code, Title 28, Sec. 1332 iv. MISCELLANEOUS 12 American Jurisprudence, p. 769. Congressional Globe, Feb. 8, 1870, p. 1097 (Senate) ooo... . % Congressional Globe, Feb. 28, pp. 1584-1586 (Senate) Congressional Globe, March 2, pp. 1624-1628 (Senate)............... 26 Congressional Globe, Apr. 7, pp. 2480-2486, 2491-2495 (Senate) 26 Congressional Globe, Apr. 9, pp. 2539-2547 (Senate)................. 26 Congressional Globe, Apr. 11, pp. 2569-2584 (Senate)... 26 Congressional Globe, Apr. 20, pp. 2833-2848 (Senate)... 26 Congressional Globe, Apr. 21, pp. 2867-2869 (Senate)... . 6 Congressional Globe, May 5, pp. 3263-3271 (House) Congressional Globe, May 10, pp. 3343-3348 (House) Congressional Globe, May 11, pp. 3365-3368 (House)................ 26 Congressional Globe, May 25, pp. 3786-3798 (House)..:.......... 26 Congressional Globe, May 26, pp. 3850-3853 (House)............. 26 70 Congressional Record, March 2, 1929, Part 5, pp. 5118-5122, 70th Cong., 2d Sess. 19 Joint Resolution of May 31, 1870 (67 Stat. at L. 378)... 2, 3, 4, 5, 7, 8 9, 10, 11, 15, 16 17, 18, 19, 20, 22, 24, 25, 26, 27, 31 Resolution of June 5, 1924 (43 Stat. at L. 461) 19 Webster’s New International Dictionary, Unabridged (2d Ed., 1945) 24 Supreme: Court of the United States October Term, 1956 No. THEODORE B. Russet, Petitioner, VS. Tue Texas Company, a corporation, FrepericK T. Man- ninG Drittinc Company, a corporation, and THE NorTHERN Paciric RstLway ComPany, a corporation, Respondents. Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. To the Honorable Chief Justice and to the Associate Jus- tices of the Supreme Court of the United States: - Petitioner, Theodore B. Russell, respectfully prays that a Writ of Certiorari issue to review the Judgment of the United States Court of Appeals for the Ninth Circuit entered in the above cause on November 24, 1956. The Court of Appeals affirmed the Judgment entered by- the United States District Court for the District of Montana; which was made on Respondents’ motions for Summary Judgment, and decided that the mineral estate (valued by Petitioner at in excess of one million dollars) on land owned by Petitioner was vested in Respondents. sigs Opinions Below. The District Court prepared no separate opinion. Its Judgments, Partial Summary Judgment entered December 4, 1953, and Final Judgment entered October 13, 1955, are contained in the record printed for use of the court below, nine additional copies of which are filed herein for the use of this Court [R. 69-73, 126-1929]. In connection with its Final Judgment, the District Court filed a Memorandum [R. 120-126] which is not relevant to this Petition for Certiorari, and filed Findings of Fact and Conclusions of Law [R. 110-120], certain of which are relevant to this Petition [R. 111-113, 118-119]. The opinion of the Court of Appeals is not yet renal and appears as Appendix A hereto. Jurisdiction. The Judgment of the Court of Appeals was entered November 24, 1956 [R. 271, Appx. A, p. 18]. Petition for Rehearing was filed within time, and on January 21, 1957, the Court of Appeals denied the Petition for Re hearing (Appx. A, p. 18): Jurisdiction of this Court is invoked under 28 U. S. C., Sec. 1254(1): Order of this Court was made April 15, 1957, extending time for filing the Petition to and including May 20, 1957.. Questions Presented. 1. Whether the Proviso of the Joint Resolution of May 31, 1870* requiring, on the conditions specified, that all lands thereby granted to a railroad in aid of. construc- tion shall become subject to settlement and pre-empticn at a price not exceeding $2.50 per acre, is applicable:to. the land here involved? 1Resolution 67, Stat. at L. 378. wots 2. Whether, the Proviso of the Joint Resolution of 1870 having been determined to be applicable, a reserva- tion of mineral rights by Respondent, Northern Pacific Railway Company,” in its conveyance to an actual settler constitutes such a derogation of the Proviso as to invali- date the mineral reservation? The Statutes Involved. Inasmuch as the issues presented are largely statutory, and based upon the Congressional intent, we here set out provisions having particular relevance, and set forth in Appendix B their fuller expression. 1. The Act of July 2, 1864 incorporated Northern Pacific, authorized its construction of a railroad from Lake Superior to Puget Sound, with a branch line via the Columbia River to Portland, Oregon, conditionally granted certain public land in aid thereof, subject to prohibitions against encumbrance and with reservation of Congres- sional power to amend or repeal the Act. Section 3 of said Act of 1864 provides, in part: “And be it further enacted, That there be, and hereby is, granted to the ‘Northern Pacific Railroad Company,’ its successors and assigns, for the "13 U. S. Stat. at L. 365, Chap. 217. — Be NE tions of war, and public stores, over the route ‘of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, . . .” Section 10 of said Act provides, in part: “. . . and no mortgage or construction bonds shall ever be issued by said company on said road, or mort- gage, or lien made in any way, except by the consent of the congress of the United States.” Section 20 of said Act provides: “And be it further enacted, That the better to ac- complish the object of this act, to promote the public interest and welfare by the construction of said rail- road and telegraph line, and kceping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefits of the same for postal, military, and other purposes, congress miay, at any time, having due regard for the rights of said Northern Pacific Rail- road Company, add to, alter, amend, or repeal this Act.” 2. The Joint Resolution of 1870 authorized Northern Pacific to issue mortgage bonds for construction, author- ized change of the main line as well as a new route for the branch line, affirmed the land grant therefor, and adopted a Proviso subjecting granted lands to settlement and pre-emption and prescribing certain limitations om foreclosure remedies. The Resolution of 1870 provides, in part, as follows: . . . That the Northern Pacific Railroad Company be, and hereby is, authorized to issue its bonds to aid dine in the construction and equipment of its road, and to secure the same by mortgage on its property and rights of property of all kinds and descriptions, . . . also to locate and construct, under the provisions and with the privileges, grants, and duties provided for in its act of incorporation, its main road to some point on Puget Sound, via the valley of the Columbia river, with the right to locate and construct its branch from some convenient point on its main trunk line across the Cascade Mountains to Puget Sound; . . . Pro- vided, that all lands hereby granted to said company which shall not be sold or disposed of or remain sub- ject to the mortgage by this act authorized, at the expiration of five years after the completion of the entire road, shall be subject to settlement and pre- emption like other lands, at @ price to be paid to said company not exceeding two dollars and fifty cents per acre;*.. .” . Statement. The particular parcel of land in issue is Section 23, Township 17 North, Range 53 East, M. P. M., Dawson County, Montana. Section 23 lies within twenty miles of the road and is thus characterized as “place lands” as distinguished from “lieu lands” or. “indemnity lands” which Northern Pacific was entitled to select when, for reasons described in the statutes, the lands within the place or “primary” limits were unavailable to it. ‘The emphasis upon this part of the Proviso we have added, as is the hinge upon which this cause turns. Petitioner contends the Proviso applies to all lands granted to Northern Pacific 1870; whereas, Respondenis bemng * Proviso limited in ow application to the land t made oint Resolution of 1 1 i uthorized thereby across the Cascade Moun- <2 = The magnitude of the Northern Pacific land grants in Montana are graphically portrayed by the plat appear- ing as Appendix C. The place and indemnity belts for the present states of North Dakota, Idaho, Washington and Oregon are fully analogous, and the grants for the then states of Wisconsin and Minnesota differ only in that the alternate sections of the “place lands” extend over ten miles on each side of the road, rather than the twenty miles applicable to the territories. The final ad- judication of this case will likely resolve the mineral ownership of land grant parcels disposed of by Northern Pacific throughout its vast domain in cases where the dis- position took place more than five years after completion of the road. Inherent in the adjudication is the fulfillment or permanent nonfulfillment of Congressional intentions as to eventual devolvement upon the public of granted lands and their values. Hence, we trace the history of Section 23, and in so doing, the history of every parcel similarly situated. 1. The Beginning of the Removal of Section 23 From Public Lands Is Found in the Act of 1864, Although the Grant Therein Failed Because of Northern Pacific’s Financial Inability to Construct the Road Under the Conditions of the Act of 1864. This first Act in the chain of title of Section 23, that of July 2, 1864, proposed the financing of the construction of a railroad through the Northwest, found by Congress to be a public necessity, by the sale of stock to the general public by a federally chartered corporation, in aid whereof Northern Pacific was granted every alternate section of a public land, not mineral, to the amount of twenty sections per mile through territories’ and ten sections per mile through states, with certain selection rights in lieu of the grant in the event mineral character, prior disposition, or other matters prevented the operative effect of the grant (Secs. 3 and 10). Northern Pacific’s entitlement to pat- ent was conditioned upon favorable report as to each twenty-five miles of line made ready for service (Sec. 4); thus it was unable to convey its right to granted lands until such time,° and it was prohibited from creating any mortgage or lien without consent of Congress (Sec. 10). On its part, the Government provided that the Govern- ment’s reserved alternate sections should not be sold by the Government for less than $2.50 per acre and then only under the homestead act specified in the Act of 1864 (Sec. 6). The land grant and other rights and privileges were wholly conditioned upon acceptance of the terms of the Act by Northern Pacific within two years after its passage (Sec. 12), commencement of work within two years, and completion of not less than fifty miles per year after the second year, with completion of the whole road by July 4, 1876 (Sec. 8). Northern Pacific claimed its due organization and ac- ceptance, but was unable to finance construction of the road by public subscription. By several enactments which preceded the Joint Resolution of 1870, Congress attempted ‘Montana was a territory and continued as such until statehood was achieved on November 8, 1889. *St. a and Pacific R. Co. v. Northern Pacific R. Co., 139 U.S 22 to help Northern Pacific meet the conditions of the Act of 1864; these efforts proved unavailing." It is historical that the Act of 1864, and subsequent enactments in its enablement, were abortive, and the con- ditions of the Act were unfulfilled during the period from July 2, 1864, to May 31, 1870. This fact is material to the question of the applicability of the Proviso of the Joint Resolution of 1870 to the lands granted to Northern Pa- cific, including said Section 23. 2. The Terms and Conditions of the Joint Resolution of 1870 Were Accepted by Northern Pacific, the Road Was Constructed With the Proceeds From Its Bonds Secured by Mortgage, and the Right to Section 23 and Other Granted Lands Was Earned. The sum of the rights afforded by the Joint Resolution of 1870 is an authorization to Northern Pacific to issue bonds secured by mortgage of all of its property in aid of construction; to have as to its main road and branch “the privileges, grants and duties provided for in its act of incorporation”; to be entitled to select lieu lands along the entire road from an additional belt extending ten miles beyond the limits defined in the Act of 1864. All of the foregoing rights are followed by two limiting Provisos, the first subjecting all “lands hereby granted” to settle- ment and pre-emption at a price of not exceeding $2.50 per acre, and the second requiring, in the event of sale under the mortgage, that “the mortgaged lands hereby "United States v. Northern Pacific R. Co., 311 U. S. 317 at p. 326; and see: Act of May 7, 1866, 14 Stat. at L. 355; Act of Faly 1, 1868, 15 Stat. at L. 255; Act of March 1, 1869, 15 Stat. at L. 346; Act of April 10, 1869, 16 Stat. at L. 57. SS granted” be sold at public sale at places in which situated in single sections or subdivisions thereof to the highest bidder. Northern Pacific accepted the Joint Resolution of 1870 by creating bonds, secured by mortgage of all of its prop- erties, and constructing the road with the proceeds there- from. Eastward and westward extensions joined in Mon- tana in 1883, and Northern Pacific Railroad Company, chartered by the Act of 1864, carried on the operation of the line until 1893. The land grant authorized by the Act of 1864 and affirmed as modified by the Joint Resolution of 1870 was earned by the completion of the road. In 1893, Northern Pacific Railroad Company defaulted on its mortgages, and under foreclosure proceed- ings Northern Pacific Railway Company, Respondent here, acquired title to all of the property of the federally char- tered corporation, operated the road, and exercised the statutory rights, privileges and grants. Respondent North- ern Pacific Railway Company’s continuing obligation un- der the Proviso has been determined. 3. Northern Pacific Selected Section 23 Pursuant to Both the Act of 1864 and the Joint Resolution of 1870 and Patent Thereon Was Issued Expressly Stating That It Was Pursuant to Both Congressional Acts. On or about September 22, 1900, Northern Pacific filed with the General Land Office of the Department of Inte- rior its Place List No. 36° wherein it recited its right by "Act of June 25, 1929; 46 Stat, at L. 41, Chap. 41; United States v. Northern Pacific R. Co., 311 U. S. 317. *Place List No. 36 was received in evidence and is transmitted to this Court [R. 136]. acc@iibias virtue of the Act and Joint Resolution of 1870 to receive patent to Section 23, in these words: “Northern Pacific Railway Company, the successor of the Northern Pacific Railroad Company, under and by virtue of the Acts of Congress, entitled “An Act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the Northern Route,’ approved July 2, 1864, and ‘a Resolution authorizing the Northern Pacific Railroad Company to issue its bonds for the construction of ‘its road, and to secure the same by mortgage, and for other purposes,’ ap- proved May 31, 1870 . . . hereby makes and files the following list of selections of public lands claimed by the said Northern Pacific Railway Company, as enur- ing to it, and to which it is entitled under and by virtue of the grants and provisions of the said Act of Congress, .. .” . Thereafter, on June 24, 1902, Patent No. 74” was is- sued to Northern Pacific covering Section 23, and other lands, again reciting that the grant was pursuant to the Act of 1864 and the Joint Resolution of 1870 in these words : “To all to whom these presents shall come, Greet- mgs: “Whereas, by Act of Congress approved July 2, 1864, entitled ‘An Act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the Northe.i. Route,’ and the Joint Resolution of May 31, 1870, there was granted to the Northern © Pacific Railroad Company, its successors and assigns Patent No. 74 was received in evidence and is transmitted to this Court [R. 136]. ee) RS . . . every alternate section of public land, not min- eral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt through the Territories of the United States. . . . “Now Know Ye that the United States of America, in consideration of the premises, and pursuant to the said Acts of Congress, Have Given and Granted, and by these presents Do Give and Grant unto the said Northern Pacific Railway Company, successor in in- terest to the Northern Pacific Railroad Company, its successors and assigns, the tracts of land listed as aforesaid, . . .” The foregoing language is relevant as evidencing recog- nition, before any thought of the present controversy, of the effective regrant of the Joint Resolution of 1870 and its source as the origin of title to Section 23, thereby sub- jecting Section 23 to its Proviso. 4. Northern Pacific Contracted to Sell Section 23 to Peti- tioner’s Predecessor, MaBelle Cobb, an Actual Settler, as Required by the Proviso of the Joint Resolution of 1870, but Reserved the Minerals in Derogation Thereof. On November 30, 1909, Northern Pacific executed its Contract No. 5942" with MaBelle Cobb, and provided a stipulation in the Contract according with the Congres- sional intent expressed in the Proviso, in these words: “As a material part of the consideration of this contract, without which it would not be made, the purchaser agrees that he will within one (1) year from the date hereof break and cultivate at least one- tenth of all of the tillable portion of the premises and Setteenenmnemeenall “Contract No. 5942 was received in evidence and is transmitted to this Court [R. 136]. ee one-tenth per year additional each of the next suc- ceeding two (2) years, or until three-tenths of all tillable land shall have been broken and put under cultivation, and will make proof of stich cultivation on or before the 30th day of November in each year, satisfactory to the land commissioner of the vendor.” Contract No. 5942 provided for a purchase price pay- able to Northern Pacific of $2,880.00 for the 640-acre sec- tion, or $4.50 per acre, as against the stipulated maximum of the Proviso of $2.50 per acre... In addition, Northern Pacific reserved a part of the fee title, to-wit: “Excepting and reserving unto the vendor its suc- cessors and assigns forever all minerals of any na- ture whatsoever including coal, iron, natural gas and oil, upon or in said land, together with the use of such of the surface as may be necessary for exploring for and mining or otherwise extracting and carrying away the same; but the vendor shall pay to the pur- chaser the market value at the time mining operations are commenced of such portion of the surface as may be used for such fy sac including any improve- ments thereon. . Thereafter, and on June 14, 1918, Northern Pacific by deed granted Section 23 to Millard Stubrud, pursuant to its Contract No. 5942 with MaBelle Cobb, to whose right said Stubrud had duly succeeded.” The deed to Stubrud Petitioner here succeeded to the title of Stubrud by con- veyances of record.” 12Deed dated June 14, 1918 was received in evidence herein and» is transmitted to this Court [R. 136]. Abstract of Title No. 5381, covering Section 23, was received in evidence and is transmitted to this Court [R. 136]. lilies 5. Petitioner’s Action Here Under Review Was Timely Commenced, in a Court of Proper Jurisdiction, and Under Appropriate Allegations. Petitioner, and his predecessors, were continuously in unchallenged and exclusive possession of all of Section 23 until September 3, 1952 [R. 96]. ~The mineral value of Section 23, and railroad grant lands in its region, were virtually dormant until shortly before that date. . Not un- til the discovery of petroleum deposits of the so-called Williston Basin did controversy arise. The Williston Basin and various petroleum discoveries therein cover ex- tensive areas of Montana, North Dakota and South Da- kota; the limits of the productive areas are as yet un- known. Petitioner’s Abstract of Title gave no hint of the mineral reservation in the Contract with MaBelle Cobb or in the deed from Northern Pacific to Stubrud; nor was there in the Abstract any intervening instrument or con- veyance evidencing other than that the mineral estate was wholly vested in Petitioner. As the exploration of the Wil- liston Basin approached Dawson County and Section 23, and the purported reservation came to light, on May 13, 1952, correspondence opened between Petitioner and Re- spondents, under which Respondents were apprised of Peti- tioner’s challenge of their rights in the premises [R. 88, 91]. On September 3, 1952, Respondent, The Texas Company, appropriated use of Section 23 in connection with its operations on other lands adjacent thereto [R. 96- 97]. On December 8, 1952, Petitioner, as plaintiff, insti- tuted action in the District Court by Complaint, the first cause of action™ of which is tantamount to an action to i oeeeeeeeemmeeaiae The second and third causes of action allege the wholly wrong- ful misappropriation of use of Section 23 by The Texas for its operations on adjoining lands, and sought injunction thereon, which was granted, and damages, which were awarded to Petitioner. mtd quiet title and is designed to secure the adjudication of the invalidity of the mineral reservation’ in the deed from Northern Pacific to Stubrud [R. 3-10, 16]. Jurisdiction of the District Court was invoked under 28 U. S. C. Section 1332. Petitioner alleged his residence in the State of Iowa, that The Texas Company is a Dela- ware corporation, that Northern Pacific is a Wisconsin corpo~ation, and that the amount in controversy is more than $3,000.00 exclusive of interest and-costs [R. 2-4], These allegations were admitted by Respondents [R. 17- 37], and found to be true by the District Court [R. 111- 112]. Northern Pacific moved for Summary Judgment [R. 54] and The Texas Company moved for Partial Sum. mary Judgment [R. 52]. These motions resulted in Par- tial Summary Judgment [R. 66] which was incorporated in the Judgment entered October 13, 1955 [R. 127], adjudicating Northern Pacific the owner in fee of all minerals upon, in or under Section 23, and The Texas Company as possessed of a right to enter thereon as lessee of Northern Pacific [R. 128]. —15— ts Reasons for Granting the Writ. 1. ‘Thn:Debleletvef the Court Bolow:3ies Atineart he Gen! gressional Intent That Public Lands and Their Values, Granted, Solely in Aid of Railroad Construction, Find Their Ultimate Unencumbered Disposition to the Public at the Stipulated Maximum Return of $2.50 per Acre to Northern Pacific. "What we here say of Section 23 is of equal application to all of those parcels among the forty million acres granted to Northern Pacific which have heretofore been disposed of to settlers by Northern Pacific with little or no service to.the Proviso of the Joint Resolution of 1870, The issue to be decided is whether the Proviso shall be forever entombed as a Congressional expression avowedly in the interest of the general public, but wholly illusory in result. (a) THe Jornt Resotution or 1870 Was 1n Its Very EssENCE NECESSARILY A REGRANT, AND Ay SUCH, APPLICABLE IN ALL or Its TERMS AND PRovIsIONs To ALL OF THE THEN UNEARNED LANps GRANTED to NortHEerRN Paciric Unper It AND THE AcT OF 1864. The Act of 1864 RGAE prohibited insti or lien of the granted lands; as well, it restrained alienation thereof until patent, which patent was dependent upon ad- jacent construction of the road and acceptance by the President’s Commissioners. See, St. Paul and Pacific Railroad Company v. Northern Pacific Railroad Com- pany, 139 U. S. 1. Only by the Joint Resolution of 1870 did Northern Pacific achieve a full fee to lands adjacent to accepted construction. Prior to the adoption of the Joint Resolution of 1870, the conditions of the Act of 1864 were unfulfilled by Northern Pacific, except as to seonliiians such earned lands. It stood; on’ May 31, 1870, with some indeterminate defeasible interest: in» unearned lands by virtue of its: failure’ to fulfill the conditions of ‘the Act of 1864, in an estate less than the fee by virtue of its lack of power to encumber. The Joint Resolution of 1870 granted a complete title to the alternate sections, as earned, it af- firmed the prior grants of the Act of 1864, and added the power to mortgage uneartied lands theretofore ‘wholly lacking from the fee. Unless the Joint Resolution of 1870 is applicable to ‘the entire land grant unearned at the date of its adoption, there is no source of origin of Northern Pacific’s title. Northern Pacific thereafter accepted the regrant of the Joint Resolution of 1870, and subjected itself to the limitations of its Provisos, on the ‘principle that the burdens follow the benefits accepted. That the Joint Resolution of 1870 was a regrant which was “sine qua non to the origin of Northern Pacific’s title to the granted lands is demonstrated by reasoning which we will summarize. The financing method originally chowen by Cangitee is spelled out in the Act of 1864. Construction was to be financed out of public subscription to stock and patent to public lands as each 25 miles of the road was acceptably constructed, without limitation upon resale of lands earned as to settlement or amount of sale price or time of sale. In order to protect the marketability of railroad patented lands, the United States subjected itself to the restriction that it would not’ sell its reserved alternate sections of public lands at a price of less than $2.50 per acre, and then only to settlers under the “Act to secure homesteads: to actual settlers on the public domain” of May 20, 1862.. (See Sec. 6 of the Act of July 2, 1864.) Thus, as the road construction progressed, revenue from resale of rail- road patented land would be a source of funds in aid of — alec Ghai construction. As determined by this Court, this plan of financing failed. During the interval between the Act of July 2, 1864, and the Joint Resolution of 1870, the public right to be secure in the eventual ownership of railroad granted lands became of the utmost concern. See Great Northern R. Co. v. United States, 315 U. S. 262. This policy in favor of the public, coupled with the circumstance that Northern Pacific failed to perform the conditions of the Act of 1864, renders it well nigh inconceivable that Congress would adopt a Proviso requiring disposition to settlers of merely that fraction of the grant adjacent to the newly authorized branch line over the Cascades, and at the same time impose no condition whatsoever on the nearly 2000 miles of main line from Lake Superior to the new terminus at Portland, when beth the changed branch line and main line were fully dependent upon the authority and benefits afforded by the Joint Resolution of 1870. The language of the Joint Resolution of 1870 confirms the conclusion that the Proviso is applicable to the entire unearned grant. First, the Joint Resolution authorized the mortgage of all of Northern Pacific’s property of all kinds and description, thereby empowering the mortgage of its entire unearned land grant, and making it plain that the Resolution is applicable to all lands encompassed by both the Act of 1864 and the Joint Resolution of 1870. Next, the Joint Resolution of 1870 reaffirms the authori- zation to construct the road “under the provisions and with the privileges, grants and duties provided for in its act of incorporation” from the original point, specified — States v. Northern Pacific R. Co., 311 U. S. 317 at p. co aS in the original Act and unspecified in the Joint Resolution, via a changed main line route to Portland, with authority for a branch line to Puget Sound through the Cascade Mountains ; thus again, in its reaffirmation of the authority to construct the road, the reference is to the entire line, Next, in the event “in any state or territory” the amount of land granted is not available, an additional “lieu land” belt is defined; the reference to “state or territory” makes it plain that the Joint Resolution of 1870 is embracing the line from beginning to end. Lastly, within the single section, comes the twofold Proviso: The first referring to disposition and the second referring to foreclosure sales, and each based upon the words “lands hereby granted.” The Proviso governs all that has gone before. The words “lands hereby granted” cannot be applied to a small. fraction of the entire grant as to eventual disposi- tion to settlers, without being equally applicable to but a small fraction of the entire grant as to foreclosure sales, Yet it has never been contended that the Proviso as to foreclosure sales is applicable only to this small fraction of the entire grant, no doubt for the reason that the mortgage authorized by the Joint Resolution of 1870 is clearly applicable to the entire grant. Just as the Proviso as to the foreclosure applies to the land grants along the entire line, including the branch, so also its counterpart as to eventual disposition of granted lands remaining unsold or subject to the mortgage, applies to the lands granted along the entire line from beginning to end, and not to the comparatively minor stretch of the branch line across the Cascade Mountains. Documentary support for this conclusion is found in the instruments under which Northern Pacific made its selection, as well as in the patent signed by President —j9-~ Theodore Roosevelt. Both Place List No. 36 and Patent No. 74 recite that they are pursuant to the Act of 1864 and the Joint Resolution of 1870. If, in fact, the Joint Resolution.of 1870. was not a regrant standing as a part of the. origin of title, ee ee selection nor authority for patent. The applicability of the Proviso to all of the granted lands, and hence to Section 23 here involved, is confirmed by later Congressional expressions. Thus the Joint Con- gressional Committee acting under the Resolution of June 5, 1924," among its other castigations of the rail- road’s ‘collusion, fraud and flaunting of the legislative and public will, states as one of its reasons for the for- feiture ‘of Northern Pacific’s then outstanding indemnity claims: “(d) the failure of the Northern Pacific Rail- road Co. to dispose of any of the granted lands through settlement and pre-emption after July 4, 1884, as required by the resolution of May 31, 1870. . .”"* Acting upon the Committee Report, the Congress by its Act of June 25, 1929 expressed its continuing purpose and intention that the policy of the Joint Resolution of 1870 relative to dis- position of granted lands should prevail, for which see Appendix B, page 26, 543 Stat, at L. 461. The Report of ‘that Committee is found in the Congressional Record of March 2, 1929, 70th Congress, Second Session, Vol. 70, Part 5, pp. 5118 to 5122. 2 (b) Tae Proviso Betinc FULty APPLICABLE TO ALL GRANTED LANDS, THE MINERAL RESERVATION IN ConFiict THEREWITH oN Section 23 Is Vou. As noted in the Statement, the statutory time for com- pletion of the road was July 4, 1879, and the road was actually completed in 1883, the Contract with MaBelle Cobb was executed in 1909, and the time intervening was well beyond the five years stipulated in the Proviso after which Northern Pacific was required to sell the land for settlement. Contract No. 5942 spelled out the neces- sity for the grantee to improve the land by the tilling thereof and satisfactorily report thereon to Northern Pacific’s Land Commissioner. The price exacted from the settler, MaBelle Cobb, was $4.50, an unlawful considera- tion in that the Joint Resolution of 1870 prescribed a price of not more than $2.50 per acre. The exaction of mineral reservation was also illegal. The principle is established by Oregon and California R. Co. v. United States, 243 U. S. 549, 61 L. Ed. 890, wherein this Court said, at pp. 552 ana 553: “An immediate and sufficient answer to the conten- tion would seem to be that the grant was not abso- lute, but was qualified by a condition in favor of settlers, and if the ‘lands’ granted had such inci- dents, the ‘lands’ directed to be sold to actual settlers were intended to have such incidents. That is, if the ‘lands’ granted carried by necessary implication all that was above the surface and all below the surface, to the railroad company, they carried such implication to the actual settler. In other words, what ‘ands’ meant to the railroad company they meant to the settler, embraced within his right to purchase and acquire.” ay ae An earlier Oregon and California R. Co. case, dealing with a similar land grant proviso, is authority for the rule that the grant is law as well as contract, and has the constancy of laws as well as their command, and remains operative and obligatory until repealed. See, Oregon and California R. Co. v. United States, 238 U. S. 393. ‘