[225 U.S. 582, 583] Messrs. Edward D. Osborn, A. M. Harvey, and Frank Doster for appellants.
[225 U.S. 582, 588] Mr. Maxwell Evarts for appellee.
Mr. Justice Van Devanter delivered the opinion of the court:
The ultimate question to be decided on this appeal is whether the appellee, the Union Pacific Railroad Company, has a right of way 400 feet in width across certain lands in the state of Kansas, formerly within the Delaware [225 U.S. 582, 591] Diminished Indian Reservation. The facts out of which the question arises are there:
By the treaty of 1829 (7 Stat. at L. 327) with the Delaware Indians, it was provided that certain lands in the fork of the Kansas and Missouri rivers should be 'conveyed and forever secured' to those Indians 'as their permanent residence.' By the treaty of 1854 (10 Stat. at L. 1048) parts of the reservation so established were relinquished and the remainder retained for a 'permanent home.' Article 11 of this treaty declared that at the request of the Delawares the diminished reservation should be surveyed and each person or family assigned such portion as the principal men of the tribe should designate, the assignments to be uniform; and article 12 provided that railroad companies, when their lines of railroad necessarily passed through the diminished reservation, should have a right of way on payment of a just compensation. The treaty of 1860 (12 Stat. at L. 1129), after reciting such a request as was contemplated by the preceding treaty, provided that 80 acres of the diminished reservation should be assigned and set apart for the exclusive use and benefit of each Delaware and his heirs; that the tracts assigned should not be alienable in fee, leased, or otherwise disposed of, except to the United States or to other members of the tribe, and should be exempt from levy, taxation, sale, or forfeiture until otherwise provided by Congress; and that if any Delaware should abandon the tract assigned to him, the Secretary of the Interior should take such action in respect of its disposition as in his judgment might seem proper. Article 3 of this treaty gave to the Leavenworth, Pawnee, & Western Railroad Company, a Kansas corporation, a preferred right to purchase the unassigned lands in the reservation, and declared: 'It is also agreed that the said railroad company shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compen- [225 U.S. 582, 592] sation therefor, in money, to the respective parties whose lands are crossed by the line of railroad.'
The act of July 1, 1862 (12 Stat. at L. 489, chap. 120), relating to the location, construction, and maintenance of the Union Pacific and other railroads, authorized the Leavenworth, Pawnee, & Western Railroad Company, before mentioned, to locate, construct, and maintain a railroad from the Missouri river, at the mouth of the Kansas river in Kansas, to a connection with the Union Pacific Railroad on the 100th meridian of longitude in Nebraska, and granted to it, as also to other companies named in the act, a right of way in the following terms:
Other portions of the act required the Leavenworth, Pawnee, & Western Railroad Company to file with the Secretary of the Interior within six months after the date of the act an acceptance of its conditions, and within two years after such date a map of the general route of its road, and to complete 100 miles, commencing at the mouth of the Kansas river, within two years after such acceptance, and 100 miles per year thereafter until completion; and made provision for an official examination and approval [225 U.S. 582, 593] of the completed road in sections of 40 consecutive miles. The company seasonably filed an acceptance of the conditions of the act and a map of the general route of its road, showing that the route extended from the mouth of the Kansas river to and across the Delaware Diminished Reservation. That part of the road was constructed on that route and put into operation within two years from the date of the act, and was duly examined and approved by the proper officers of the United States. Under Congressional authority the route for the remaining part of the road was subsequently changed so that the connection with the Union Pacific Railroad would be made at a point farther west than was originally intended, and the later construction conformed to this change, but this has no bearing here. The appellee, the Union Pacific Railroad Company, became in 1898, and now is, the successor in interest and title of the Leavenworth, Pawnee, & Western Railroad Company.
By the treaty of 1866 (14 Stat. at L. 793), provision was made for the removal of the Delawares from their home on the diminished reservation to lands secured for them in the Indian territory, and for the sale by the United States of the lands in the reservation, whether held in common or assigned in severalty, with the qualification that assignees electing to dissolve their tribal relations and become citizens of the United States might retain the tracts assigned to them and ultimately receive patents in fee simple with power of alienation. On receiving payment for the lands sold, the United States was to issue patents therefor to the purchaser or his assigns, and apply the proceeds to the benefit of the tribe or the assignees, depending upon whether the particular lands were held in common or had been assigned in severalty. The intended removal was effected, the reservation was extinguished, and the lands therein, including most of those assigned in severalty, were sold as intended. [225 U.S. 582, 594] The lands through which the asserted right of way here in controversy extends were within diminished reservation at the date of the act of 1862, had then been assigned in severalty to individual Delawares under the treaty of 1860, were sold by the United States under the treaty of 1866, and are now claimed by the appellants through mesne conveyances under the patents issued to the purchaser at that sale. The railroad was located and constructed across these lands without the payment of any compensation for the right of way. But, so far as appears, no attempt was made by the tribe, the individual assignees, or the United States, to prevent the location and construction, and no controversy arose between them and the railroad company, save as there was a dispute as to whether the assignees were entitled to compensation, and, if so, as to who should pay it. See Grinter v. Kansas P. R. Co. 23 Kan. 642, 659; United States v. Union P. R. Co. 168 U.S. 505 , 42 L. ed. 559, 18 Sup. Ct. Rep. 167. In 1892 Congress recognized the right of the assignees to be compensated for the right of way, and made an appropriation to pay them, accompanying it with a direction to the Attorney General to institute proceedings against the railroad company to compel it to reimburse the government. See 27 Stat. at L. 120, 126, chap. 164; United States v. Union P. R. Co. supra.
The circuit court and the circuit court of appeals sustained the railroad company's claim to a right of way 400 feet in width (94 C. C. A. 112, 168 Fed. 648), and the present owners of the tracts affected prosecute this appeal.
It was contended in the courts below, and the contention is repeated here, that the individual Indians to whom the lands were assigned in severalty obtained no better or different right in them than the tribe had in the lands held in common; in other words, that the right was one of possession or occupancy only, the United States remaining the real proprietor and having full power to terminate the [225 U.S. 582, 595] Indian right at will. But, without passing upon that contention, we think it may well be assumed for the purposes of this case that the assignees, although not possessing the legal title, and not promised a conveyance of it, had something more than the ordinary right of possession or occupancy of tribal Indians in lands set apart for tribal use. We say this, because the right of the assignees, whatever it may have been, was acquired and held under the treaty of 1860, wherein it was agreed that the Leavenworth, Pawnee, & Western Railroad Company should have a perpetual right of way over any of the lands assigned in severalty, on the payment of a just compensation to those whose lands were crossed by its railroad. It therefore is not as if Congress had undertaken to grant a right of way through these lands without either the assent of the assignees or any provision for compensating them. As respects these lands, the right-of-way section in the act of 1862 did not stand alone, but was to be taken in connection with the treaty provision. The two, together, meant that the right of way was granted, not merely by the United States, but with the assent of the Indian assignees, and that the latter were to be justly compensated. The only uncertainty, if any, introduced into the situation, arose from the presence in the right-of-way section of the promise on the part of the United States that it would, as rapidly as might be, extinguish the Indian title to all lands required for the right of way. This seems to have given rise to a question whether the United States was to bear the burden of extinguishing the title, as by compensating the Indians therefor, or only to assist in obtaining it, as by conducting negotiations with the Indians in respect of the compensation to be paid to them. But we are not here concerned with that question, because the right under the treaty to have the compensation seasonably ascertained and paid by whomsoever was liable therefor was not insisted upon. No steps to that end [225 U.S. 582, 596] were taken, but, on the contrary, the construction of the railroad was permitted to proceed and the road was completed and put into operation as a public highway at least three years before the lands were sold under the treaty of 1866
But it is said that the right-of-way section was inapplicable because it was confined to 'public lands,' a term used to designate such lands as are subject to sale or other disposal under general laws. No doubt such is its ordinary meaning, but it sometimes is used in a larger and different sense. We think that is the case here; first, because the provision in the same section, that the United States should extinguish as rapidly as might be the Indian title to all lands required for the right of way, implies that Indian lands as to which Congress properly could grant a right of way were intended to be included, and, second, because the section was so interpreted by the executive department charged with the administration of the act, as also of affairs pertaining to the Indians and public lands, and rights acquired thereunder ought not lightly to be disturbed after the lapse of so many years.
It results that the sole irregularity in respect of the acquisition of the right of way contemplated by the treaty provision and the statute, taken together, was the failure to make compensation therefor to the Indian assignees when the railroad was constructed, or until after the lands had been sold for their benefit to the remote grantor of the appellants. The railroad was in existence and being operated across the land at the time of the sale, as ever since, and therefore there can be no claim that that or any subsequent purchase was made without notice of the right of way.
So, if the appellants be regarded as claiming under the Indian assignees, which is the most favorable view for the appellants, the case still falls within the general rule that where a railroad company enters upon the land of another [225 U.S. 582, 597] and constructs a railroad thereover under a statute entitling it so to do on condition that compensation be made to the owner, and the latter permits the road to be constructed and put into operation without a compliance with that condition, a subsequent vendee of the owner takes the land subject to the burden of the right of way, and the right to exact payment therefor from the railroad company belongs to the owner at the time the company entered and constructed the road. Roberts v. Northern P. R. Co. 158 U.S. 1 , 39 L. ed. 873, 15 Sup. Ct. Rep. 756, and cases cited.
At an early stage of the case it appears to have been contended that the appellants acquired title to parts of the right of way by adverse possession; but as the contention is expressly abandoned in the brief, evidently in view of the ruling in Northern P. R. Co. v. Smith, 171 U.S. 260 , 43 L. ed. 157, 18 Sup. Ct. Rep. 794; Northern P. R. Co. v. Townsend, 190 U.S. 267 , 47 L. ed. 1044, 23 Sup. Ct. Rep. 671; and Northern P. R. Co. v. Ely, 197 U.S. 1 , 49 L. ed. 639, 25 Sup. Ct. Rep. 302, it need not be considered.
We conclude that the decree of the Circuit Court of Appeals was right.