A reply and amendment were filed, and also a supplemental [206 U.S. 482, 484] answer setting forth that the lands, on the 24th of January, 1903, since the former answer in the case, had been duly certified to the state of Iowa in trust for the Iowa Falls & Sioux City Railroad Company, and had been subsequently patented to the railroad company by the governor of the state on February 2, 1903, and that all the rights and title of the railway company had been succeeded to by the defendant, the Iowa Railroad Land Company, and prayed to be quieted in its title as against the plaintiff. By an amended reply the plaintiff reiterated that for more than ten years prior to the commencement of the suit, plaintiff and his immediate grantor had been in open, notorious, continuous, and adverse possession of the premises under a claim of right and color of title, and that plaintiff was then in possession of the same.
The lands in question are within the place limits of the grant to the state of Iowa by the act of May 15, 1856. 11 Stat. at L. chap. 28. By the act of the legislature of Iowa, passed July 14, 1856, the lands were granted to the Dubuque & Pacific Railroad Company. The map of definite location of the line of the road was filed in the office of the Commissioner of the General Land Office of the United States on October 11, 1856, and accepted on October 13, 1856
The legislature of Iowa, on April 7, 1868, passed a statute (Iowa Laws 1868, chap. 124, pp. 164-167) designating the Iowa Falls & Sioux City Railroad Company (grantor of the plaintiff in error) to construct and complete the uncompleted portion of the road west of Iowa Falls. Sec. 1 of the act legalized and confirmed the contract between the Dubuque & Sioux City Railroad Company and the Iowa Falls & Sioux City Railroad Company 'transferring so much of the Dubuque & Sioux City [scc essor of the Dubuque & Pacific] Railroad as remains to be constructed, together with the franchises, right of way, depot grounds, and other appurtenances of said road to be completed, also transferring all right and title of the said Dubuque & Sioux City Railroad Company to so much of the lands granted by Congress to aid [206 U.S. 482, 485] in the construction of said road as shall appertain to, or be legally applicable to the construction of, the uncompleted part of the Dubuque & Sioux City Railroad, as aforesaid, except as to the lands hereinafter granted to the Dubuque, Bellevue, & Sabula Railroad Company.' Sec. 4 of that act provides 'that so much of land grant as is applicable to the uncompleted portion of the road aforesaid, west of Iowa Falls . . . is hereby conferred upon the said Iowa Falls & Sioux City Railroad Company, subject to the terms and conditions of the act of Congress granting the said lands, dated the 15th day of May, A. D. 1856, and the act amendatory thereto and the act of Congress passed the present session' (subject to certain conditions as to the time and manner of construction).
The railroad company complied with this act as to the completion of the road, having done so by January 1, 1872, also complying with the act of Congress of March 2, 1868 (15 Stat. at L. 38, chap. 16), requiring the completion of the road by that date. The tract of land in controversy was again selected and designated by the Iowa Falls & Sioux City Railroad Company, on June 19, 1884, and on April 24, 1885, as lands to which the company was entitled under said land grants, and said lastnamed selection was accepted by the register and receiver, and certified to the Commissioner of the General Land Office at Washington, May 13, 1885.
In December, 1858, the lands were listed for the benefit of the Dubuque & Pacific (since Iowa Falls & Sioux City) grant under the act of May 15, 1856, but afterwards, on February 21, 1859, the tract was included in a selection of the state of Iowa under the swamp land grant. Under the order of the Secretary of the Interior the lands were stricken from the certified list with a view of determining the claim of the state under the swamp land grant, which claim was finally rejected on February 16, 1878.
The lands were certified pending the suit, January 20, 1903, and on February 2, 1903, the lands were patented by the [206 U.S. 482, 486] governor of Iowa to the Iowa Falls & Sioux City Railroad Company.
On October 2, 1883, John Carraher (predecessor in title of the defendant in error) made application to the local land office at Des Moines, Iowa, to enter the lands under the timber culture act (20 Stat. at L. 113, chap. 190). His application was rejected and Carraher appealed. The rejection was because of conflict with the railroad grant. On December 3, 1883, the Commissioner affirmed this action. Carraher appealed to the Secretary of the Interior. Afterwards, June 17, 1891, the Secretary approved the decisions and rejected the claim of Carraher. Pending his appeal, on May 31, 1888, Carraher made another timber culture entry (No. 607). When the Secretary's decision of June 17, 1891, finally rejecting the first application of Carraher, was promulgated by the Commissioner ( July 11, 1891), it was also directed that the second timber culture entry ( of May 31, 1888) be canceled on the ground that it had been allowed without authority.
The delay in certifying the lands after the final decision against Carraher is thus accounted for by Mr. Samuel S. Burdett, at one time Commissioner of the General Land Office, and attorney for the plaintiff in error from June, 1888.
Charles A. Clark and William G. Clark for plaintiff in error.
[206 U.S. 482, 490] Constant R. Marks and Henry C. Gardiner for defendant in error.
Mr. Justice Day delivered the opinion of the court:
The original grant of May, 1856, was in praesenti. The title passed from the United States and vested in the state of Iowa on October 13, 1856, when the map of definite location was lodged in the General Land Office, and the right of the company then attached. Sioux City & I. F. Town Lot & Land Co. v. Griffey, 143 U.S. 32 , 36 L. ed. 64, 12 Sup. Ct. Rep. 362.
Under the decisions made by this court in Deseret Salt Co. v. Tarpey, 142 U.S. 241 , 35 L. ed. 999, 12 Sup. Ct. Rep. 158, and Toltec Ranch Co. v. Cook, 191 U.S. 532 , 48 L. ed. 291, 24 Sup. Ct. Rep. 166, notwithstanding the patent had not been issued, the railway company, grantor of the plaintiff in error, having succeeded to the right and title of the original company, and complied with all the terms and conditions of the grant, as required in the legislation of Congress and the acts of the Iowa legislature after the acceptance of the grant by the state, was in a position and clothed with the requisite title in order to transmit the same to another who might have recovered possession of the lands, and it could itself have brought an action in ejectment to oust one holding adverse possession thereof, and, being clothed with these rights, was in such position that the statute of limitations would run against it in favor of one who occupied the premises by adverse possession under color of title. This was distinctly decided in the Toltec Ranch Company Case, wherein it was held that the stat- [206 U.S. 482, 492] ute of limitations would run against the railroad company, thus situated toward the lands, although the patent had not issued.
It is sought to withdraw this case from the application of the doctrine of Deseret Salt Co. v. Tarpey, and Toltec Ranch Co. v. Cook. It is argued that 4 of the act of May, 1856, provided that if the roads were not completed in ten years the unsold lands should revert to the United States; that on March 10, 1868, the state of Iowa resumed the grant of lands as made to the original grantees; that by act of June 2, 1864, Congress provided in 8:
And it is argued that the effect of this section was to hold the legl title until the railways were built and completed, as therein specified, and that the Iowa Falls & Sioux City Railroad Company never took the legal title to the lands in controversy until certified under 8 of the act of 1864, which, it is alleged, was not until January 20, 1903, followed by the governor's patent of February 2, 1903.
But when the grant is in proesenti, and nothing remains to be done for the administration of the grant in the Land Department, and the conditions of the grant have been complied [206 U.S. 482, 493] with and the grant fully earned, as in this case, notwithstanding the want of final certification and the issue of the patent, the railroad company had such title as would enable it to maintain ejectment against one wrongfully on the lands, and title by prescription would run against it in favor of one in adverse possession under color of title. Deseret Salt Co. v. Tarpey, and Toltec Ranch Co. v. Cook, supra.
Applying and giving weight to the decisions thus recently rendered in this court, we think the debatable proposition in the case concerns not the title of the railway company, or its right to have maintained an action to recover the premises, but involves the right of Carraher, and the defendant in error as his successor, to claim the title to the premises by adverse possession.
We think the record discloses that for more than ten years required by the Iowa statute to ripen such title, Carraher was in possession of the premises. He had planted a large number of trees; caused the lands to be cultivated; had raised crops; had rented the lands to others, and was understood to be claiming the ownership. The answer of plaintiff in error to this claim of title is that Carraher was not in possession of the premises claiming title in good faith.
The record shows that in 1883, by an entry under the timber culture act, Carraher claimed this 40-acre tract. As we have seen in the statement preceding this opinion, his application was rejected by the register of the General Land Office, whose decision was affirmed by the Commissioner and ultimately by the Secretary of the Interior. Pending his appeal, Carraher made a second application for the lands to the register of the land office, and a receiver's receipt was issued to him. This receiver's receipt was dated May 31, 1888, and is as follows:
Application No. 607.
Receiver's Receipt No. 607.
Receiver's Office, Des Moines, Iowa,
May 31st, 1888.
Received of John Carraher the sum of Nine Dollars _____ [206 U.S. 482, 494] cents, being the amount of fee and compensation of register and receiver for the entry of northeast _____ of N. E. quarter of section 1, in township 89 of range 46, under the 1st section of the act of Congress approved June 14th, 1878, entitled 'An Act to Amend an Act Entitled an Act to Encourage the Growth of Timber on the Western Prairies.'
$9.00. M. V. McHenry, Receiver.
Indorsed: State of Iowa, Woodbury county, filed for record this 9th day of Dec., 1891, at 2 o'clock P. M., and recorded in book 40, Lands, page 162, C. A. DeMun, Recorder. P. Shontz, Deputy.
It was inclosed to Carraher in a letter, of which the following is a copy:
Sioux City. Iowa, June 2, 1888.
Mr. John Carraher,
My Dear Sir:--
I have the pleasure of handing you herewith with your timber culture entry receiver's receipt No. 607 for N. E. 1/4 of N. E. 1/4, 1, 89, 46.
Geo. W. Wakefield.
P. S. You can take possession and proceed to comply with the timber culture laws.
After this receiver's receipt and letter, Carraher went into possession in the manner we have already stated and held it until 1901, when, shortly before his death, he conveyed the premises to the defendant in error. The contention is that this possession could not have been in good faith, with any expectation of obtaining title from the government at the conclusion of the eight years required by law in which to earn it; that Carraher knew that his first application under the timber culture act had beenre jected, and afterwards that decision was affirmed on appeal in 1891, and that he could not have continued in the occupation of the premises in good faith under claim of title.
The record shows that when the Secretary of the Interior (July 11, 1891) affirmed the decision against Carraher's first [206 U.S. 482, 495] timber culture entry, the Commissioner, in advising the register and receiver at Des Moines by letter of July 13, 1891, of that decision, added: 'It appears that on May 31, 1888, more than three years after the rejection of his application, and while his case was pending before the Secretary of the Interior on appeal, your office allowed Carraher to make timber culture entry 607 of the land. The action was without authority and the entry has this day been canceled.' It does not appear that Carraher was notified that this entry 607 had been canceled, nor was he ever called upon to appear in reference to the same, and the letter of the Commissioner discloses that the register of the land office at Des Moines should not have allowed the entry to be made, and that it was summarily canceled without notice or hearing. Carraher had been advised by the letter from his counsel, who had become a judge of a court in Iowa, that he might take possession and proceed to comply with the timber culture law. As far as the record shows, he heard nothing further from his entry, knew nothing of its summary cancelation, and no attempt was made to disturb his possession of the premises.
The supreme court of Iowa held that there was nothing in these facts to show that Carraher was not acting in good faith, and with the belief that he would acquire title under the last entry under the timber culture act, and we are not prepared to disturb this holding.
After 1891, as we have seen, the railway company was in position to have ousted him from the premises and asserted its superior title and right. It did not attempt to do this, and, so far as the record discloses, made no objection to Carraher planting and cultivating the trees required by the act of Congress to perfect his title under the second application. His possession was certainly open, notorious, continuous, and adverse, and, unless he was acting in bad faith, was such as would ripen into full title as against the railway company, it failing to assert its rights within the period of the statute of limitation. While, until the time had run required by the [206 U.S. 482, 496] timber culture act, Carraher would have been in no position to claim title as against the government, he was occupying a hostile attitude toward the railway company, and, while recognizing title in the United States, he expected to acquire title from it, had excluded all others from the use and occupation of the land, and held under no other title. The supreme court of Iowa has held that, under such circumstances, the statute of limitations of Iowa would run in his favor as against the railroad company, and we find no reason to disturb that conclusion. And for more than ten years that company was in such position under its grant that it might have maintained an action in ejectment and asserted its title to the premises as against Carraher.
We find no error in the judgment of the Supreme Court of Iowa and it will be affirmed.
Mr. Justice Brewer concurs in the judgment.