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Vickers v. United States (214 U. S. 519) 700
Victor Talking Mach. Co., Leeds & Catlin
Co. v. (213 U. S. 301)..
Victor Talking Mach. Co., Leeds & Catlin
v. (213 U. S. 325).

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58

495

Wild & Co. v. Provident Life & Trust Co. (214 U. S. 292).

503

Virginia Corporation Commission v. Atlantic Coast Line Co. (211 U. S. 210). Virginia Corporation Commission v. Chesapeake Western Ry. (211 U. S. 210). Virginia Corporation Commission v. Louisville & N. R. Co. (211 U. S. 210)..... Virginia Corporation Commission v. Chesapeake & O. R. Co. (211 U. S. 210).... Virginia Corporation Commission v. Norfolk & W. R. Co. (211 U. S. 210). Virginia Corporation Commission v. Southern R. Co. (211 U. S. 210).

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192

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Williams, Chicago, B. & Q. R. Co. v. (214 U. S. 492).

514

67

67

Williams. Manson v. (213 U. S. 453). Williamsburgh City Fire Ins. Co. of Brooklyn, N. Y., v. Willard.

519

690

William W. Bierce, Hutchins v. (211 U. S.

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122

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458

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687

210

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Wilson Distilling Co., State Dispensary Commission v. (213 U. S. 151)..

458

280

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403

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Winn, In re (213 U. S. 458).

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W. A. Gaines & Co. v. Kahn..

682

Winnisimmet Co. v. Davenport.

684

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W. M. Laird Co., Frederic L. Grant Shoe Co. v. (212 U. S. 445).

332

211

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ARGUED AND DETERMINED

IN THE

UNITED STATES SUPREME COURT.

OCTOBER TERM, 1908.

(211 U. S. 11)
LUCINDA BRANDON, Personally and as
Administratrix of the Estate of Alexander
Brandon, Deceased, et al., Plffs. in Err.,

V.

NEWTON L. ARD.

PUBLIC LANDS (§ 80*)-RAILWAY LAND
GRANTS- WITHDRAWAL FROM SETTLE-
MENT.

1. The withdrawal from sale, pre-emption, or settlement of lands within the indemnity limits of the railway land grant act of March 3, 1863 (12 Stat. at L. 772), which withdrawal was unauthorized, because the road had not then been definitely located, does not prevent a homestead claim or right from attaching to such land before definite location, and such right will be protected as against the subsequent selection of the land by the railway company.

[Ed. Note.-For other cases, see Public Lands,

Dec. Dig. § 80.*]

JUDGMENT (§ 678*)-RES JUDICATA-PAR

TIES.

2. A homestead claimant whose rights attached before any interest in the land was acquired by a railway company under a congressional grant is not concluded by an adjudication against the government in a suit brought by it to cancel certain patents issued to the railway company, including one for the land in question, to which suit he was not made a party, although he may have been an active member of a Settlers' Protective Association, which may have made such representations to, and brought such facts to the attention of, the government, as to induce the government to bring the

suit.

Court of Allen County, in that state, in favor of defendant in an action of ejectment. Affirmed.

See same case below, 74 Kan. 424, 118
Am. St. Rep. 321, 87 Pac. 366.

The facts are stated in the opinion.
Messrs. T. A. Pollock and L. W. Kep-

linger for plaintiffs in error.

Messrs. Oscar Foust and Ewing, Gard, & Gard for defendant in error.

*Mr. Justice Harlan delivered the opinion of the court:

Ad

This case involves the title to a tract of land in Allen county, Kansas, containing 80 acres. It is described in the record as the northeast quarter of section 11, township 26, range 20, and will hereafter be alluded to as the tract in section 11. joining that tract, in the same township, is another tract of 80 acres which will be hereafter referred to as the tract in section 2. The present writ of error does not involve the title to the tract in section 2, but it will conduce to a clear understanding of the questions raised as to the tract in section 11 if we recall certain acts of Congress, as well as the proceedings in the Land Department and the litigation that arose in the state and Federal courts about both tracts.

By an act of March 3d, 1863, chap. 98, Congress granted to Kansas every alternate odd section of public lands, for 10 sections in width on each side, to aid in the construction of railroads and branches, as follows: First, of a railroad and telegraph Submitted April 29, 1908. Decided October line from Leavenworth, Kansas, on a named

[Ed. Note,-For other cases, see Judgment, Cent. Dig. § 1196; Dec. Dig. § 678.*] [No. 24.]

19, 1908.

(route, with a branch to the southern line of N ERROR to the Supreme Court of the the state in the direction of Galveston, State of Kansas to review a judgment Texas; second, of a railroad from Atchison, which affirmed a judgment of the District via Topeka, to the western line of the state,

IN

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 29 S.C.-1

with a branch extending to a named point | at. L. 244, 269, chaps. 143, 25] (pre-emp on the first-named road; one of the roads tion and homestead acts), the Commissioner becoming subsequently known as the Leaven- proceeded: "You will, therefore, understand worth road, and the other as the Missouri- from the foregoing: 1st. That the odd secKansas road. tions within the limits of said railroads and branches are absolutely withdrawn from sale, pre-emption, or homestead entry, except so far as inceptive rights may have accrued prior to the receipt by you of this order. This order will take effect from the date of its reception at your office, and you will advise this office of the precise time it may be received by you."

After making the grant in the usual words, the act proceeded: "But in case it shall appear that the United States have, when the limits or routes of said road and branches are definitely fixed, sold any section or any part thereof, granted as aforesaid, or that the right of pre-emption or homestead settlement has attached to the same, or that the same has been reserved The order of withdrawal was approved by by the United States for any purpose what- the Secretary of the Interior and was reever, then it shall be the duty of the Secreceived at the local office May 5th, 1863. tary of the Interior to cause to be selected, After this withdrawal, Congress, by an for the purposes aforesaid, from the public act approved July 26th, 1866 (14 Stat. at lands of the United States nearest to tiers L. 289, chap. 270), made a grant of lands of sections above specified, so much land, in to Kansas to aid in the construction of a alternate sections or parts of sections, desig- southern branch of the Union Pacific Railnated by odd numbers, as shall be equal to way & Telegraph Company from Fort Riley, such lands as the United States have sold, Kansas, down the valley of the Neosho river reserved, or otherwise appropriated, or to to the southern line of Kansas. This act which the rights of pre-emption or home is referred to in the record, but it does not stead settlements have attached as afore- seem to have any special significance in the said; which lands, thus indicated by odd present case. Suffice it to say, that it connumbers and selected by direction of the Sec-tained provisions substantially like those in retary of the Interior, as aforesaid, shall be held by the state of Kansas for the use and purpose aforesaid: Provided, That the land to be so selected shall, in no case, be located further than twenty miles from the lines of said road and branches.

12 Stat. at L. 772.

the act of 1863, which made it the duty of the Secretary of the Interior to select for the railroad company public lands nearest the place limits, equal to such amount as the United States appeared, at the time of "the definite location of the road, to have "sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or pre-emption has attached."

By a statute passed in 1864 Kansas accepted this grant upon the conditions prescribed by Congress, and the Leavenworth and the Missouri-Kansas companies became entitled to claim the benefit of its provisions as to the lands on their respective routes.

A few days after the act of 1863 was passed, indeed, before the state had formally accepted the benefit of its provisions, -the Senators and Representatives from Kansas requested the General Land Office to withdraw the public lands along the specified routes of the railroads and branches proposed to be constructed. Pursuant to that request, the Commissioner of the Land Office, on March 19th, 1863,-without having received any map of general route, much less of definite location,-sent to the register and receiver, at Humboldt, Kansas, a diagram showing the probable lines of the roads and their respective branches, as well as the 10-mile or place limits on each side, and directed that officer to "withhold from ordinary private sale or location, and also from pre-emption and homestead

Under date of April 30th, 1867, the Land Office transmitted to the local land office at Humboldt, Kansas, a map of the actual location of the railroad for which the grant was made by Congress in the act of 1863. The diagram showed the 10-mile or granted limits of that road, and directed the withholding from sale or location, pre-emption, or homestead entries, all the odd sections within the limits of 20 miles as laid down on that diagram.

After the above withdrawal,-which, as we have stated, was made in 1863 solely at the request of the Kansas Senators and Representatives,-Ard, who was admittedly qualified to take the benefits of the homestead laws, went upon the above two tracts, in June 1866, intending, in good faith, to perfect a title to them under the homestead laws. He made substantial improvements upon them, and in July, 1866, in the accustomed way, made a homestead application at the local land office for the 160 all the public lands in your [his] district acres These two tracts of 80 acres each and lying within the 10-mile limits are [as] were so situated that they could have been designated in said diagram." After refer- legally embraced in one homestead entry. ring to the acts of 1853 and 1854 [10 Stat.' Ard's application was denied by the local

office upon the ground, among others, that the land was within the place or granted limits of one of the aided roads. At that time the Missouri-Kansas Company-under whom the plaintiffs in error claim-had not filed any map of definite location. No such map was filed until December 6th, 1866. In the spring of 1867 Ard did further work on the land, building a house thereon, and about July 1st of that year he again applied at the local land office, under the homestead laws, for the land. This application was also denied on the same grounds as were assigned in reference to his original application. In 1872 he made a more formal | application, but was again repulsed by the Commissioner of the Land Office. Yet he did not abandon his claim, but held steadily to the purpose of obtaining the entire 160 acres under the homestead laws, and remained in open, notorious possession, asserting his right to the land. And he has continuously occupied the land ever since June, 1866.

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presented. Mr. Justice Brewer, delivering the judgment of the court, referred to the testimony-and the same facts appear in the present record-and observed that, by reason of his occupancy and improvement of the land for the purpose of a homestead, and by his homestead application, all of which was prior to the withdrawal of the lands by the Land Department,-Ard, who had admittedly the requisite qualifications under the homestead laws, acquired an equitable* right to the land that could not bet displaced by the wrongful act of the local land office. After referring to the case of Shepley v. Cowan, 91 U. S. 330, 338, 23 L. ed. 424, 427, the court proceeded: "Within the authority of that case we think the defendant has shown an equity prior to all claims of the railway company. He had a right to enter the land as a homestead; he pursued the course of procedure prescribed by the statute; he made out a formal application for the entry, and tendered the requisite fees, and the application and the It should be stated in this connection fees were rejected by the officer charged that, after the rejection of Ard's original with the duty of receiving them, and wronghomestead application upon the mistaken fully rejected by him. Such wrongful rejecground that the lands were within the place tion did not operate to deprive defendant or granted limits of one of the roads, it of his equitable rights, nor did he forfeit was ascertained that neither of the tracts or lose those rights because, after this was within place limits, but both were with- wrongful rejection, he followed the advice in the overlapping indemnity limits of the of the register and sought in another way respective roads. The tract in section 11 to acquire title to the lands. The law deals was selected as indemnity for lands lost tenderly with one who, in good faith, goes jointly by the two companies, and was pat-upon the public lands, with a view of makented by the state to the Missouri-Kansas ing a home thereon. If he does all that Company on May 19th, 1873. The company knew when it selected the land to supply alleged deficiencies in place limits, as well as when it took the patent from the state, that Ard was in actual possession, claiming the land under the homestead laws. The tract in section 2 was selected by the same company on April 14th, 1873, and on November 3d, 1873, it received a patent for it directly from the United States.

C. H. Pratt having purchased from the Missouri-Kansas Company the tract in section 2, and Brandon having purchased from the same company the tract in section 11, each commenced a separate action of ejectment against Ard in a state court. Judg. ment went against Ard in each case, and he was also unsuccessful in the supreme court of Kansas. Ard v. Pratt, 43 Kan. 419, 23 Pac. 646; Ard v. Brandon, 43 Kan. 425, 23 Pac. 648.

Ard then brought both cases here, and the judgments were reversed, further proceedings being ordered to be taken in accordance with the opinion of this court. Ard v. Brandon, 156 U. S. 537, 39 L. ed. 524, 15 Sup. Ct. Rep. 406. What this court said bears directly upon the case as now

the statute prescribes as the condition of acquiring rights, the law protects him in those rights, and does not make their continued existence depend alone upon the question whether or no he takes an appeal from an adverse decision of the officers charged with the duty of acting upon his application. "The policy of the Federal government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person.' Clements v. Warner, 24 How. 394, 397, 16 L. ed. 695, 696. There can be no question as to the good faith of the defendant. He went upon the land with the view of making it his home. He has occupied it ever since. He did all that was in his power in the first instance to secure the land as his homestead. That he failed was not his fault; it came through the wrongful action of one of the officers of the government."

Subsequently, after the return of the above cases to the inferior state court, Pratt, the claimant of the tract in section 2, abandoned his ejectment suit against Ard, and

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