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Opinion of the Court.

of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.

"SEC. 5. That this act shall not apply to any lands within the limits of any military park or Indian reservation, or other lands especially reserved for sale.

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There is some uncertainty in the act. Its first section is expressed in words of present grant, but there is no definite grantee. We said in Hill v. Russell, 101 U. S. 503, 509: "There cannot be a grant unless there is a grantee, and consequently there cannot be a present grant unless there is a present grantee." And it was further said that in all cases where a grant was given a present effect, a State or some other corporation having all of the qualifications specified in the act had been designated as a grantee. In other words, when an immediate grant was intended an immediate grantee having all the requisite qualifications was named. In Noble v. Railroad Co., 147 U. S. 165, we said: "The language of that section is 'that the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory,' etc. The uniform rule of this court has been that such an act was a grant in præsenti of lands to be thereafter identified. Railway Co. v. Alling, 99 U. S. 463."

This case establishes that a railroad company becomes specifically a grantee by filing its articles of incorporation and due proofs of its organization under the same with the Secretary of the Interior. It was also so held by Mr. Secretary Vilas in Dakota Central Railroad Co. v. Downey, 8 Land Decisions, 115.

But what constitutes a definite location of the right of way? Upon the answer to that question the present controversy hinges. The State courts decided, as we have seen, that the right of way only became definitely located by the filing of a profile map of the road. The contention of the plaintiff in error is that the right of way may be definitely located by the actual construction of the road. And this was the ruling of the Interior Department in Dakota v. Downey, supra, and the ruling has been subsequently adhered to. St. Paul, Minneap

Opinion of the Court.

olis & Manitoba Ry. Co. v. Maloney et al., 24 Land Decisions, 460; Montana Central Rd. Co., 25 Land Decisions, 250; St. Paul & Minneapolis Ry. Co., 26 Land Decisions, 83.

The ruling gives a practical operation to the statute, and we think is correct. It enables the railroad company to secure the grant by an actual construction of its road, or in advance of construction by filing a map as provided in section four. Actual construction of the road is certainly unmistakable evidence and notice of appropriation.

Secretary Vilas said in Dakota Central R. R. Co. v. Downey: "As to the roadway the construction of the road fixes the boundaries of the grant, and fixes it by the exact rule of the statute. . . This must undoubtedly be the rule when the road is constructed over unsurveyed lands, because then every condition necessary to the vigor of the present grant is complied with. The fact that the railroad company may locate and construct its road upon unsurveyed lands is clearly recog nized in the fourth section of the act; and the regulations of the department have been made to apply to such cases, and authorize such construction.

"It seems to me that the fourth section of the act was written for another purpose and for another case. It relates to a case of a railroad company which desires to secure the present grant, and give to it fixity of location, before its road shall be constructed; and it is designed to provide a similar privilege in respect to rights of way which acts granting lands to aid in the construction of railroads have provided — namely, the privilege of giving fixity of location to the subject of the grant before construction of the road.

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"It does not become necessary for a road which has secured the benefits of this act, by taking the steps which give it the attitude of being named in the first section as a grantee, and by building a road through the public lands, whereby the subject of the grant has been defined, to file a map of definite location in order to entitle it to the benefits of the right of way. "The fourth section is designed to provide a mode by which fixity of location can be secured to a grantee, in anticipation

Opinion of the Court.

of that construction by which location is defined in the section making the grant, and which shall have the effect, before the construction of the road, which the terms of the grant limit to the central line of said road,' which only means—without the fourth section a constructed road."

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This decision and the subsequent decisions of the Interior Department were concerned with cases of construction on unsurveyed land, but we think the power applies also to surveyed lands. The only difference which the act of Congress makes between surveyed and unsurveyed land is the provision in section four for filing the profile of the road.

It follows from these views that the grant to plaintiff in error by the act of 1875 became definitely fixed by the actual construction of its road, and that the entry of the defendant in error was subject thereto.

This conclusion does not conflict with the doctrine announced in Van Wyck v. Knevals, 106 U. S. 360, and in Kansas Pacific Railway Co. v. Dunmeyer, 113 U. S. 629, that the title to lands passing under railroad land grants is considered as established at the date of the filing of the map of definite location. same question is not here presented. Different considerations apply to the grant of lands than to the grant of the right of way.


The judgment of the Supreme Court of North Dakota is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

Statement of the Case.



No. 109. Argued January 22, 1900.- Decided April 9, 1900.

The personal property of a citizen of and resident in one State, invested in bonds and mortgages in another State, is subject to taxation in the latter State; and the amount of the tax is a claim against the property of the person taxed which is a debt that may, in case of death of the person taxed, be proved against his estate in the State where the mortgages and loans are contracted subject to the statutes of limitations of the State.

THIS is an appeal from a judgment of the Circuit Court for the District of Minnesota, allowing a claim in favor of Washington County, Minnesota, against the estate of Sophia M. Bristol, deceased.

Sophia M. Bristol died testate, naming James Bristol as her executor, and her will was duly admitted to probate in Wyoming County, State of New York, where said James and Sophia M. resided. Thereafter Mr. Bristol applied to the Probate Court of the County of Ramsay, State of Minnesota, for the admission of the will to probate there and the issue of letters testamentary to him. This was done, and subsequently the County of Washington exhibited its claim against said estate, whereupon Bristol filed his petition in the Probate Court for the removal of the action instituted by the filing of the claim into the Circuit Court of the United States, and it was removed accordingly. A repleader was awarded by stipulation, and a formal complaint and answer filed. The matter was heard by the Circuit Court, a jury being waived according to law, and the court made the following findings:

"I. That Cyrus Jefferson was the father of said Sophia M. Bristol, deceased, and died in November, 1883. For fourteen years just prior to his death he was a citizen and resident of the State of New York, and during said time loaned and in

Statement of the Case.

vested large sums of money to various persons residing in Minnesota, upon their notes, payable to his order at said Stillwater, secured by mortgages on real estate in said Washington and adjoining counties in the State of Minnesota; all said loans and investments were made and the notes and mortgages taken by and through William M. McCluer, the agent of said Cyrus Jefferson, who resided at the city of Stillwater, in said Washington County, during all the time hereinafter mentioned, and who, with full authority from said Cyrus Jefferson, made all such loans and took and retained all notes and securities and collected and reloaned both the principal and interest of said loans at said city of Stillwater, in Washington County, Minnesota, and kept the same permanently invested in that way, as nearly as practicable, save as to such moneys as said Jefferson drew from time to time to pay his debts and living expenses.

"II. Prior to May 1, 1883, said William M. McCluer, at said Stillwater, by the direction of said Jefferson, but otherwise with the same power and under the same authority and in the same manner, loaned of said moneys of said Cyrus Jefferson to persons in Washington County sums aggregating eighteen thousand dollars ($18,000), taking notes and mortgages therefor in the name of and payable to said Sophia M. Bristol at said Stillwater, and retained the same as her agent, and handled and collected and reinvested the same in the same manner as he had those of Cyrus Jefferson.

"III. After the death of said Cyrus Jefferson and on December 18, 1883, all the other notes and mortgages held by said McCluer as agent for said Cyrus Jefferson were transferred, assigned, and passed to said Sophia M. Bristol as her share of the estate of her said father. She thereupon employed said William M. McCluer and Charles M. McCluer, both of whom then at all times herein mentioned resided at said Stillwater, as her agents at said city of Stillwater in and about said loaning business. She gave to them all the authority before that time exercised by said William M. McCluer for her father, Cyrus Jefferson, as aforesaid, and also gave to them a written power of attorney empowering them or either of them

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