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(184 U, S. 441) pavement between the tracks, the removal

UNITED STATES, Appt., or limitation of the number of tracks, in the interest of public travel, the frequency with JOSE ISABEL MARTINEZ et al. which cars should be run for the public convenience, the stopping of cars at street Private land claimsparties to suit for crossings, the use of fenders, the rate of

confirmation--recovery of value of lands speed to be maintained, the sale of tickets,

patented to third partieslaches. and generally to details of the conduct and operation of the railway, which experience 1. Fallure to make patentees from the United might show to be necessary, in additon to or States of land within the limits of a Spanish in amendment of those specified in the con land grant parties to a suit for the confirmasent for the protection of life, the accom

tion of such grant, as required by & 6 of the modation of the public, and the avoidance of

court of private land claims act, does not af.

fect the validity of the decree of confirmainjury to private property. Such regula

tion, where the patents and the boundaries tions are not invasions of the contract rights of the land patented are undisputed, as the of the company, and are just and reasona only consequence of such omission in such a ble." Lake Shore M. 8. R. Co. v. Ohio, case is an acknowledgment of the title of 173 U. S. 285, 305, 43 L. ed. 702, 709, 19 such patentees to the land, and of its boundSup. Ct. Rep. 465.

aries. The fixing of rates is, as we have already 2. An unexplained delay of over six years after said, among the most vital portions of the

a land grant has been confirmed by the court

of private land claims will defeat the right agreement between the parties contained in

to recover a money judgment against the the ordinances. It cannot be supposed for

United States, under § 14 of the court of one moment, with regard to a right so fun private land claims act, for the value of lands damental in its nature, that there was any within the grant, disposed of and patented by intention to permit the common council in the United States to third parties before the its discretion to thereafter make an altera

filing of the original petition. tion which might be fatal to the pecuniary success of the company. For the reasons

[No. 169.) already given, we think the language used does not, in fact, give any such power to Argued and Submitted January 31, 1902. the common council. The ordinances of

Decided March 3, 1902. 1899 are, so far as this record shows, the first wherein the common council has as

A sumed to make any change in the rates of Claims to review a judgment against fare without the assent of the company to the United States for the value of lands be affected thereby. From 1862 until 1899 within a Spanish land claim, which had there seems to have been no attempt to ex- been patented to third parties before the ercise this alleged power of alteration by the confirmation of the grant. Reversed. common council without the consent of the railway company. While the rate of fare

Statement by Mr. Justice Brown: existed as agreed upon between the city and * This was a petition, under the 14th secthe railway company, expenditures involv- tion of the court of private land claims act, ing millions of dollars were entered upon, for a money judgment against the United changing the mode of transportation from States for lands within a Spanish land animal to electric power, and no claim claim, which lands had been patented by the seems ever to have been made on the part of United States to third parties before the the city of a right of alteration to be exer. Spanish land grant had been acted upon or cised in accordance only with its own views confirmed. of reason and propriety. This in itself is The original proceeding out of which the a strong implication of the want of any present claim for indemnity grew was a suit such power under the various reservations begun February 28, 1893, by the present apset forth in the foregoing statement of facts pellees, who, with one exception, claimed to and contained in the ordinances specified. be the heirs at law and legal representatives But, aside from that and considering only of Juan José Lobato, against the United the nature of the right itself growing out States, in the court of private land claims, of the agreement as to fares, we are of the for the confirmation of a grant alleged to opinion that not one of the reservations of have been made to Lobato August 24, 1740, the right to make further rules or regula of which juridical possession was given, and tions could by any fair construction be held the grant ratified and confirmed by the propto include the right on the part of the city er authorities June 15, 1744. In their petiat its own pleasure to reduce the rates of tion it was alleged that the same tract had fare agreed upon in those ordinances. been previously granted to Cristobal de Tor

We have thus answered the chief objec res, but that his grant had been revoked in tions of the city to the maintenance of this 1733 and the tract declared to be Crown action. Some others have been made, which lands; that from the date of the grant to we have examined, but do not think it neces- Lobato in 1740 and for a period of 153 sary to further refer to them than to say years (down to the time of Aling the peti. they are in our opinion not well founded. tion) he and his legal representatives had

We think the conclusions arrived at by been in peaceable adverse possession of the the court below are correct, and its judg. same, and that "there are no adverse holders, ment is therefore affirmed.

possessors, or claimants of or to any portion

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of said tract." The suit resulted in a decree years, entertain a supplemental petition for in favor of the claimants (appellees) con- the value of certain parcels disposed of and firming the grant, and finding the title com- patented by the United States to third par. plete and perfect in the claimants, at the ties, before the filing of the original petidate of the cession by the treaty of Guada- tion. lupe Fidalgo. The decree fixed the bounda The following sections of the court of priries of the tract as shown in a map annexed vate land claims act (26 Stat. at L. 854, to the petition. From this decree no appeal chap. 539) are pertinent in this connection: was prosecuted, and becoming final, it was "Sec. 6. That it shall and may be lawful executed by a survey approved by the court, for any person . claiming lands and the land patented to the grantees. within the limits of the territory derived by

More than six years after the confirma- the United States from the Republic of Mex. tion of the Lobato grant the petitioners ico

by virtue of any such Spanish filed the present petition, alleging that sev. or Mexican grant

which eral parcels of land, amounting to 2,056 have not been confirmed by act of Congress, acres in the aggregate, had been disposed

and which are not already complete of, granted, and patented by the United and perfect, in every such case to present a States to certain persons named in an ex petition, in writing, to the said court, etc. hibit to the petition; that the lands so granted lay wholly within the boundaries of “The petition shall set forth fully the nathe Lobato grant as confirmed, and were ture of their claims to the lands, . among the most valuable parts of such the name or names of any person or persons grant. The petition concluded with a pray- in possession of or claiming the same, or any er for judgment against the United States part thereof, otherwise than by the lease or for the value of the lands so patented. permission of the petitioner;

and The United States answered, admitting a copy of such petition, with a citation to the confirmation of the Lobato grant, and any adverse possessor or claimant, shall, averring that the plaintiffs neglected to immediately after the filing of the same, be make the holders of the patented land par- served on such possessor or claimant in the ties defendant to the suit as required by law, ordinary legal manner of serving such probut that they proceeded to try their cause, cess in the proper state or territory,” etc. obtain a decree of confirmation, which had *Sec. 8. That any person or corporation long since become final; and that by failure claiming lands in any of the states or territo make the patentees parties defendant, and tories mentioned in this act under a title by averring that there were no adverse derived from the Spanish or Mexican gove claimants to any portion of the tract, "they ernment that was complete and perfect at thereby waived and disclaimed all right, if the date when the United States acquired any they had to challenge any disposition sovereignty therein, shall have the right theretofore made under the laws of the (but shall not be bound) to apply to said United States to any portion of said grant.” court in the manner in this act provided for

The petitioners filed a general demurrer other cases for a confirmation of such title. to this answer, accompanied by an affidavit to the effect that the plaintiffs, until the

“If in any such case a title so claimed to survey of said grant, did not and could not be perfect shall be established and confirmed, know or certainly allege and affirm that the such confirmation shall be for so much land lands granted and disposed of by the United only as such perfect title shall be found to States, as set forth in their petition, were cover, always excepting any part of such within the exterior limits of their grant, land that shall have been disposed of by the and consequently no allegation with relation United States," etc. thereto was made in their original petition, "Sec. 14. That if in any case it shall apand that such knowledge only came to the pear that the lands or any part thereof petitioners within the last two years. decreed to any claimant under the provi. *The demurrer to the answer was sus- sions of this act shall have been sold or tained, the case submitted upon an agreed granted by the United States to any other statement of facts, and a judgment rendered person, such title from the United States against the United States for $2,320.91, for to such other person shall remain valid, not1,856.73 acres at $1.25 per acre, in accord avithstanding such decree, and upon proof ance with the prayer of the petition,-Jus- being made to the satisfaction of said court tices Sluss and Murray dissenting.

of such sale or grant, and the value of the

lands so sold or granted, such court shall Messrs. Matthew G. Reynolds and render judgment in favor of such claimant John K. Richards, Solicitor General, for ap against the United States for the reasonable pellant.

value of said lands so sold or granted, ex. Messrs. George Hill Howard and clusive of betterments, not exceeding one Henry M. Earle for appellees.

dollar and twenty-five cents per acre for

such lands; and such judgment, when found Mr. Justice Brown delivered the opinion shall be a charge on the Treasury of the of the court:

United States." This case raises the question whether, aft Under these sections the holder of a comer a land grant has been confirmed by the plete and perfect title may resort to either court of private land claims, that court of two remedies: He may bring suit in the may, after an unexplained delay of over six local courts upon his title against anyone

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in possession of the land covered by the well as by the express stipulation of the grant, or any portion of it (United States parties. It is true that in United States v. v. Pillerin, 13 How. 9, 14 L. ed. 28; Ainsa Moore, 12 How. 209, 223, 13 L. ed. 958, 964, v. New Mexico & A. R. Co. 175 U. S. 76, 90, it was said with regard to a similar act that 44 L. ed; 78, 84, 20. Sup. Ot. Rep. 28); or persons holding under patents from the he may file his petition in the court of pri- United States “should be compelled to provate land claims under $ 8, subject to the duce their title, so that, if à decree was condition that the "confirmation shall be for made for complainant, the court could asso much land only as such perfect title shall certain what part of the land should be be found to cover, always excepting any granted to him by patent; and as this could part of such land that shall have been dis only be done by a specific ascertainment of posed of by the United States." In such interfering claims, the decree must of necescase, however, while he affirms the title of sity specify their boundaries and quanti. the patentee of the United States he may, ties.” “But where, as in this case, the quan. under § 14, if “it*shall appear that the lands tities and boundaries of the lands patented or any part thereof decreed to any claimant or otherwise disposed of are expressly stipu.

shall have been sold or granted by lated between the United States and the the United States to any other person," re- claimants of the land grant, and the rights cover a money judgment against the United of the entrymen cannot be affected by the States "for the reasonable value of said decree, we see no occasion for making them lands so sold or granted.”.

parties. As the petitioners in this case elected the The second objection is that the language latter remedy, they are entitled to re- of g 14, "that if in any case it shall appear course against the United States to recover that the lands or any part thereof the value of the land patented, unless they shall have been sold or granted," limits the have in some way estopped themselves to recovery of the value of such lands to cases make the claim at this time. The argument wherein it appears in the original petition of the government in this connection is that, for confirmation that such lands have been under $ 6, the petitioners were bound to set granted, and that the original petition in forth in their original petition “the name or this case having gone to a decree affirming names of any person or persons in posses- the survey, the court lost control of the sion of or claiming the same, or any part grant; and in addition thereto that the petithereof, otherwise than by the lease or per- tioners had, by the lapse of six years, waived mission of the petitioners," and that "a copy and abandoned their claim, and are guilty of such petition, with citation to any ad- of inexcusable laches. The original petition verse possessor or claimant, shall, imme- for confirmation was filed February 28, diately after the filing of the same, be served 1893, the decree of confirmation pronounced upon such possessor or claimant in the ordi. December 4, 1893, and the decree approving nary legal manner," etc., whose duty it shall the survey October 19, 1895. The present be to enter an appearance and plead, answer, petition for the value of the lands granted or demur to said petition; in default of was filed April 23, 1900, over seven years which the court is at liberty to proceed to after the original petition was filed, and hear the case upon the petition and over four years from the time of the decree proofs presented. Apparently, however, the approving the survey. While § 14 evidently only object of requiring notice to be given contemplates that the names of the adverse the adverse possessors or claimants is to holders shall be set forth in the original compel them to show the location and petition, that notice shall be given them and boundaries of their claims and that they are that the claim for a money judgment for the not mere squatters or trespassers, but hold lands. granted them shall be incorporated on the land under a grant from the United therein, we should not refuse relief solely States, in which case, under $ 14, such title upon that ground, if sufficient excuse were from the United States to such other per- shown for the omission to make these gran. Bon “shall remain valid notwithstanding tees parties; since it might well be that, if such decree." If, however, it appear, as it the grant were a large one and its boundadoes in this case, that the petitioners admit ries indefinite or unsettled, entries might that the adverse possessors or claimants do inadvertently be made within the exterior hold under grants from the United States, limits of such grant and patents issued and there are no disputed boundaries, there therefor in good faith and without the would appear to be no substantial reason knowledge of the original grantee. In such for making them parties, inasmuch as they event the right to reimbursement ought not could not be affected by the decree. The to be denied, if due diligence to ascertain only consequence of an omission to serve on the facts were exercised at the time the them a copy of the petition is an acknowl petition for confirmation was filed. edgment of their title and of its bounda But we are unwilling to admit that a ries.

claimant may wait an unlimited time and The government could doubtless exonerate then, upon a simple allegation that certain itself from payment by showing that it had lands within the grant had been disposed of, never granted or disposed of the lands; but may recover their value. We think the no attempt of that kind was made, and the claimant is bound to act with promptness, proof that the lands were entered under the and if a long delay has occurred, to explain homestead laws and subsequently patented it by proper averments. The original peticomes from the land office at Santa Fé, as' tion for confirmation in this case, not only

suggested no adverse claimants, but alleged tions must be presented to that court within positively that "there are no adverse hold six years from the time the cause of action ers, possessors, or claimants of or to any accrues (24 Stat. at L. 505, chap. 359), and portion of said tract,” when a simple refer- while there is no limitation of the time for ence to the records of the land office at petitions of this character to be filed in the Santa Fé would have shown the facts stated court of private land claims, we have held in Exhibit A annexed to the petition in this that a similar act required that cases should case, that fifteen homesteads had been en be heard and disposed of upon equitable tered upon this tract before the original principles, and that we were "bound to give petition was filed, in all but five of which due weight to lapse of time." United States patents had already issued. Not the slight- v. Moore, 12 How. 209, 222, 13 L. ed. 958, est effort appears to have been made to as. 963; Indiana v. Kentucky, 136 U. S. 479, certain these facts, and it was not until 509, 510, 34 L. ed. 329, 332, 10 Sup. Ct. Rep. more than seven years thereafter that the 1051. We think there has been such unexpetition in this case was filed. The petition plained delay in this case as to justify the sets forth that several parcels of land aggre court in holding that petitioners had abangating 2,056 acres, within the Lobato grant, doned their claim for a pecuniary judgment. were disposed of by the United States to *The decree of the Court of Private Land other parties, but there is no allegation ex. Claims is therefore reversed, and the case plaining why these grantees were not made remanded to that court for further proceedparties to the original petition, or why the ings not inconsistent with this opinion. long delay occurred in making the claim for a money judgment.

Mr. Justice Harlan and Mr. Justice The answer of the United States sets up Gray did not sit in this case. the failure of the petitioners to make the patentees parties to the original petition, and alleges that they thereby waived and

(184 U. S. 425) disclaimed all right to a money judgment.

ALFRED BOOTH, Plff. in Err., Upon the same day this answer was filed, April 26, 1900, a demurrer thereto was filed, PEOPLE OF THE STATE OF ILLINOIS. together with a deposition or affidavit setting up the fact that “prior and up to the Constitutional laro-liberty prohibition survey of said grant, under the decree of

against options. confirmation,” neither the original claimants nor their solicitor "knew or could know, or the prohibition agalnst options to buy or sell certainly allege and affirm, that the lands grain or other commodities at a future time, granted and disposed of by the United which is made by Ill. Crim. Code, $ 130, does States as set forth and shown in the above

not invade the ilberty granted to every citi.

zen by U. S. Const. 14th Amend. said petition were within the exterior limits of the said Lobato grant," and that the

[Nc. 201.] facts were not ascertained "until within the past two years." How this affidavit came Argued and submitted November 6, 1901. upon the record is not shown. No order

Decided March 3, 1902. was made permitting it to be filed. No reference to it or to the allegations it contains IN ERROR to the Supreme Court of the ment of facts upon which the case was tried, which affirmed a conviction for a violation nor in the finding of facts incorporated in of the Illinois act against options. Afthe decree of the court. For aught that ap.firmed. pears, it was thrust upon the files without

See same case below, 186 Ill. 43, 50 L. R. authority. But even if the affidavit were A. 762, 57 N. E. 798. treated as a proper part of the record, it The facts are stated in the opinion. fails to show the slightest diligence to ascer Messrs. Charles H. Aldrich and Lee D. tain the real facts, although a map annexed Mathias for plaintiff in error. to the original petition exhibited the claimed Messrs. H. J. Hamlin and Elbert S. boundaries of the tract, and a reference to Smith for defendant in error. the records of the land office would have shown the description of each parcel entered Mr. Justice Harlan delivered the opin. as a homestead. Indeed it virtually con- ion of the court: fesses a neglect to file the petition for two *By § 130 of the Criminal Code of Illinois years after the facts came to the knowledge it is provided that “whoever contracts to of the petitioners.

have or give to himself or another the option The case then comes to this: Whether to sell or buy, at a future time, any grain, upon a petition for value filed seven years or other commodity, stock of any railroad after the original petition for confirmation, or other company, or gold, or forestalls the a decree against the United States can be en- market by spreading false rumors to intered upon a simple allegation that certain fluence the price of commodities therein, or parcels had been conveyed and patented by corners the market, or attempts to do so in the United States, without showing some ex- relation to any of such commodities, shall cuse for the delay in presenting the petition, be fined not less than $10 nor more than or some diligence in ascertaining the real $1,000, or confined in the county jail not ex. facts. Under the court of claims act peti.'ceeding one year, or both; and all contracts

.426

made in violation of this section shall be entitled the parties obtaining it to elect on considered gambling contracts, and shall be or before a named day whether they would void.” Ill. Rev. Stat. Crim. Code, s 130. buy the stock described in the agreement.

The defendant was indicted in the crimi. The supreme court of Illinois, in that case, nal court of Cook county, Illinois, being observed that at common law all gambling charged with violating this statute so far contracts were void, and that an agreement as it related to options to buy grain or oth for the sale of property was a mere wager er commodities at a future time.

or gambling contract and void, if made with The meinorandum of the option purchased the understanding of the parties that no by the defendant was as follows:

property was to be delivered or accepted but

could be satisfied by an adjustment simply B. Al. V. Booth, Grain and Provision Broker, on the basis of the difference between the

Chicago, Aug. 16, 1899. contract and the market price. It said: 10 Weare Com. Co.

"It must be presumed that the object of the Sep. corn, 1899. C., 31). Paid. legislature was to declare that unlawful Good till close of 'change, Sat., Aug. 26, which theretofore had been lawful. Prior 1899.

Weare C. Co. to this act it was lawful to contract to have
J. C. C.

or give an option to sell or buy, at a future

time, grain or other commodity. Such con. The defendant was found guilty and ad-tracts were neither void nor voidable at the judged to pay a fine of $100 and the costs common law. The statute makes them unof the prosecution.

lawful and void in Illinois." At the trial, by motions to quash the in That such is the scope and effect of the dictment, in arrest*of judgment, and for a statute in question was recognized by the new trial, the accused insisted that the supreme court of Illinois in the present case. statute under which he was prosecuted was Booth v. People, 156 III. 43, 50 L. R. A. 762, repugnant to that clause of the 14th Amend 57 N. E. 798. ment of the Constitution of the United Taking the statute to mean what the States declaring that no state shall "de highest court of the state says it means, is prive any person of life, liberty, or property it unconstitutional? without due process of law, nor deny to any

In support of the position that the statperson within its jurisdiction the equal pro- ute is repugnant to the 14th Amendment, tection of the laws." This contention was the learned counsel for the plaintiff advance overruled both in the trial court and in the many propositions that meet our entire apsupreme court of Illinois. 186 . 43, 50 proval. They, cite, as in their judgment L. R. A. 762, 57 N. E. 798.

controlling, what this court said in Allgeyer There was no dispute as to the meaning v. Louisiana, 165 U. $. 578, 589, 41 L. ed. of the above memorandum. It meant that 832, 835, 17 Sup. Ct. Rep. 427, 431, namely, on the 16th day of August, 1899, the de- that the liberty mentioned in the 14th fendant, a grain and provision broker, and Amendment “means, not only the right of the Weare Commission Company, made an the citizen to be free from the mere phy. agreement whereby, in consideration of the sical restraint of his person, as by incarcersum of $10 paid by Booth, he obtained from ation, but the term is deemed to embrace the company and was given the option of the right of the citizen to be free in the en. purchasing from it 10,000 bushels of cornjoyment of all his faculties; to be free to at 314 cents a bushel,—the option to re use them in all lawful ways; to live and main good until the close of business on the work where he will; to earn his livelihood 26th day of August, 1899.

by any lawful calling; to pursue any liveliIn Schneider v. Turner, 130 III. 28, 39, 6 hood or avocation, and for that purpose to L. R. A. 164, 166, 22 N. E. 497, 498, the enter into all contracts which may be propquestion was whether the statute embraced er, necessary, and essential to his carrying an agreement in these words: "Chicago, out to a successful conclusion the purposes November 11, 1885. In consideration of one

above mentioned." dollar and other valuable considerations, re

These declarations state, in condensed ceipt of which is hereby acknowledged, Iform, principles which had been announced hereby agree to sell to George Schenider, in previous cases, and which may be regardWalter L. Peck, and Fred W. Peck seven- ed as expressing the deliberate judgment of teen hundred and eighty-six shares of the this court. But those declarations do not, capital stock of the North Chicago City in themselves, determine the question now Railway at six hundred dollars per share, presented. When it is said that the liberty if taken on or before the 15th day of De- of the citizen includes freedom to use his cember 1885. V. C. Turner.”

faculties "in all lawful ways," and to earn It was contended that that agreement was his living by any "lawful calling," the innou prohibited by the statute; that the leg. quiry* remains whether the particular call. islature only intended to make such option ing or the particular way brought in ques. contracts unlawful as were gambling con- tion in a given case is lawful, that is, contracts, that is, option contracts that did not sistent with such rules of action as have contemplate the delivery or acceptance of been rightfully prescribed by the state. any property and which only required a set It is, however, said that the statute of tlement by differences;" whereas it was in the state, as interpreted by its highest court, sisted, the option there in question had no is not directed against gambling contracts element of gambling, being only one that relating to the selling or buying of grain or

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