APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
MR. JUSTICE HARLAN delivered the opinion of the court.
The controlling question in this case is whether the United States in 1893 erroneously issued to the Oregon and California Railroad Company, which succeeded to the rights of the Oregon Central Railroad Company, a patent for certain lands in Oregon.
These lands are without the place and within the indemnity
limits of the grant made by the act of Congress of May 4, 1870, c. 69, granting lands to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville in the State of Oregon. 16 Stat. 94. The provisions of this act were substantially the same as those of the act of July 25, 1866, referred to in Oregon and California Railroad Company v. United States, case No. 186, just decided, except that the act of 1870 contains a provision not found in the act of 1866, to wit: "That the Commissioner of the General Land Office shall cause the lands along the line of the said railroad to be surveyed with all convenient speed."
The line of the proposed road was definitely fixed and a plat thereof filed in the office of the Secretary of the Interior.
On the 16th day of February, 1872, the first twenty miles of the contemplated railroad were completed from Portland to a point near Forest Grove, in Oregon, and on the 23d of June, 1876, the road to the Yamhill River, near McMinnville, was completed, but it has never been constructed to Astoria, Oregon.
The final plat and survey of the township, in which the lands in dispute are situated, was not filed and approved until July 27, 1893; and on that day the company's list of selections of lands, which included the lands in question, were duly approved.
Prior to the year 1893, to wit, on the 12th day of January, 1891, Joseph H. Elison, a duly qualified entryman under the laws of the United States, settled upon the lands in dispute with the intention in good faith of "homesteading the same," and since that date he has continuously resided upon, cultivated and improved them; and within ninety days from the date of the filing of the township plat of survey he made application for "filing a homestead" covering these lands.
The selections by the company having been approved by the Land Department, a patent was issued to the Oregon and California Railroad Company on October 15, 1895. But it was issued without any knowledge at the time on the part of the Secretary or the General Land Office of the adverse claim of Elison, arising from his occupancy of the land.
For the reasons stated in the opinion just ...