
    Kansas Pacific Railway Co. v. Charles C. Culp. Same Plaintiff v. John H. Prescott.
    1. Title to Lauds—Taxation. The right to a patent is sufficient to subject lands to taxation.*
    2. -:- Patent. Where land is grant’ed.upon conditions, with a provision for the issue of a patent, the performance of those conditions gives a right to a patent.
    3. --- Grant; Conditions. Where land is granted to a company for the sole purpose of aiding in the construction of a railroad and telegraph lines, and such railroad and telegraph lines are constructed.to the approval of the government, the company acquires such an interest in the land as renders it subject to taxation, even though it has not received a patent, and has not paid the cost of surveying, selecting and conveying the same, and the fees of the register and receiver of the land office, required by law to be paid before the issue of the patent.*
    4.--A grant of certain specified lands, excepting such as.have been sold, reserved or otherwise disposed of by the United States, passes the title to all not embraced within the exception.
    
      5.--A provision in a grant that all lands so granted which shall not he disposed of by the company within three years after the completion; of the road, “shall be subject to settlement and pre-emption like other lands, and at a price hot exceeding one dollar and twenty-five cents per acre to be paid to said company,” reserves no such interest to the government as will render the land not subject to taxation. 
    
    
      Error from Saline District Court.
    
    Two ACTIONS, brought by the K. P. Railway Companyr one against Culp, and the other against Prescott, to quiet plaintiff’s title to 'certain lands, and remove pretended tax-titles held by defendants, and which plaintiff claimed were clouds upon its title. Culp claimed 160 acres of land in section 31, town 7 south, range 4 west; and Prescott claimed 160 acres in .section 3, township 13 south, range 1 west. Both cases were tried upon an agreed statement of facts. In both cases it was agreed that the lands were assessed and taxed, those claimed by Prescott in and for the year 1868; those claimed by Culp in,and for the year 1869; that the taxes were not paid; that the lands were duly advertised and sold by the treasurer of Saline county for such unpaid taxes; that Prescott was the owner of the one tax-sale certificate, and Culp of the other; that at the time the lands were so assessed and taxed no patent for said lands had been issued to the Railway Company by the United States; that said company derives title to the same, under the act of congress, entitled “An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean,” etc., approved July 1,1862, (12 Stat. at Large, 489,) and the amendatory act of July 2,1864, (13 Stat. at Large, 356;) that said company had completed, at the time said taxes were levied, the section of forty miles of railroad, in which said land lies, to the acceptance of the President of the United States. In Prescott’s case it was further admitted that the land claimed by him was a part of the grant made by said act of July 1, 1862, and that the Railway Company, at the time the land was assessed, had not made a “location” or entry of said land at the local land office of the United States of the district wherein the land lies, nor paid the one dollar ■ per quarter-section as required by law. In Culp’s case it was further admitted that the land claimed by him was a part of the additional grant made by the amendatory act of July 2, 1864, and that at the time the land was assessed it had not been selected and surveyed, nor had the cost of selecting and surveying been paid or deposited as required by the said act of congress, nor had any “location” or entry of the same been made at the local land office, nor the fee of one dollar per quarter-section been paid by the plaintiff for an entry or a “location.” The cases were tried at the June Term 1870, of the district court, and in each case judgment was given for the defendant. The Railway Company brings the cases here for review.
    
      McClure & Humphrey, for plaintiff in error:
    1. The true question presented in these cases is, who was the owner of the lands in controversy at the time they were assessed and taxed—if the United States, then they were not subject to taxation nor to state legislation. If the title had passed to the plaintiff by any of the recognized modes of conveying title to public lands, then it is conceded the lands were subject to state taxation.
    It is evident the words of the grant do not, and were not intended to operate as a conveyance of the lands to the plaintiff company, for, 1st, before the plaintiff could avail itself of the benefits of the grant it was under obligations to construct a railroad and telegraph line within the limits named in the act of congress; 2d, the provisions of the act were subject to the acceptance of the company on their part; 3d, it could not be known or ascertained what lands would inure to the grant until the line of the railroad became definitely fixed; 4th, and then it would be necessary to ascertain what parts of the odd-numbered sections, falling within the limits of the grant, were not covered with the exceptions which excluded them from the operation of the grant, and to determine and adjust all adverse claims to the same; and 5th, the acts making these grants provide that the title to the lands shall pass by patent, and they make the payment of the fees and charges for surveying, selecting and conveying said lands a condition precedent to the issuance of the patent.
    The company, by its agent, is required to file its selections of lands claimed as inuring to the grant in the local land office of the district in which the lands selected lie. The selections thus made are required to be carefully examined and tested by the land officers to ascertain if the lands selected fall within the grant and are not covered with any of the exceptions enumerated in the acts of congress, and if found correct, and on payment of the fee of one dollar each to the register and receiver, for each quarter-section located, “to be a final location.” These are made conditions precedent to the vestiture of title in the company. 2 Washb. on Real Prop., (2d cd.,) 666, §§ 23, 24.
    2. The title which the company is to acquire under the grant is not an absolute and indefeasible estate. The acts of congress making, this grant provide that all such lands remaining unsold or undisposed of by the said companies three years after the entire road is completed, to aid in the construction of Avhich the grants AArore made, shall be subject to settlement and pre-emption, like other public lands, at $1.25 per acre—the money to be paid to said companies. To illustrate the practical absurdity of taxing the lands before they are selected or finally located under the grant, let us suppose that the company declines or fails to make its selections, or to sell or dispose of any part of these lands for three years after the entire road is completed: In the meantime the taxes are assessed against these lands, under the state laws, and a tax-title is acquired to the same, but such tax-title will not prevent the lands, at the end of the three years from the completion of the road, from falling back into the mass of the public lands, and becoming subject to settlement and pre-emption like other lands belonging to the government. But in such case the tax-title would be clearly defeated, and for the sole reason that it never had any validity, such lands not being subject to taxation.
    3. Our Tax Law (ch. 107, Gen. Stat., § 35,) provides that “Lands entered on or before the 1st day of March, in each year, shall be subject to taxation for the year.” Under a similar law in the states of Michigan and Arkansas, the supreme court of the United States has decided that lands entered or located at the local land office, and to which proper certificates had issued, and prior to the issuance of the patent therefor, were taxable in these states, under state laws: Carroll v. Safford, 3 Howard, 509; Witherspoon v. Duncan, 4 Wallace, 210. But in both these cases the lands had been entered at the United States land office, purchased and paid for; and nothing remained to be done on the part of the purchaser to entitle him to a patent from the government for the land purchased. By the fact of purchase and entry at the land office the land was held to have become»segregated from the body of the public lands, and become the private property of the individual; and the party was in a position legally, with respect to his land, in which the government could not lawfully withhold the patent. In one case (3 Howard.,) the land was purchased; in the other, (4 Wallace,) the land was a “donation;” but in both cases it was held that-the ownership of the land must be changed to render the= lands taxable.
    But in the case at bar, in what respect could the plaintiff-company be deemed the owner of the lands in question before-the selection and location was made? A -part of the conditions of the grant had been complied with, it is true, and if the grant were to become absolute, upon the performance of the several conditions named in it, it would then be sufficient-simply to perform the conditions to vest title.- But in such case, the terms of grant must bo such as to define the quantity of the thing granted, without additional aid from extraneous sources. The terms of the grant do not 'define the quantity of land which the plaintiff might take under it. It is uncertain whether the plaintiff company is entitled to 500 or 5000, or any other number of sections of land, or what particular sections in the whole number; and this fact cannot be ascertained until the company, becoming entitled to select, makes-its selections, and the lands are surveyed; and the title does-not pass until all this is done and the fees and charges required by law areTully paid.
    
      J. Q. Mohler, county attorney, for Saline county, and also for defendants Culp and Prescott:
    1. The lands Avere “granted” to the railroad company by the acts of July 1, 1862, and July 2,1864. See.-3 of the act-first named says, “that there be and is hereby granted,” etc. “A grant of public land, by statute, is the highest and strongest form of title knoAvn to our laAAr. It is stronger than a patent, Avhich may be annulled by the judiciary upon a proper case shoAvn; Avhereas, even congress cannot repeal a statutory grant.” Opinions of Attorney General, vol. 11,, page 47. A legislative grant by congress, does of itself, proprio vigore, pass to the grantee all the estate which the United States had in the subject matter of the grant, except what is expressly excepted. This principle has often been ruled in the courts: 7 Peters, 51; 9 Peters, 711; 10 How., -442; 12 How., 59; 2 McLean, 412. “The point is firmly .settled, if the highest judicial authority can settle anything; and even if there had been no decision of it, I should think It too plain, on original principles, to admit of a doubt. When congress says that a certain portion of the public ■domain of the United States ‘is . hereby granted’ to a state, what need can there be of any further assurance, in order to .give the state' a perfect title in fee?” Opinion of Attorney General, June 7, 1857.
    2. But it is insisted for plaintiff in error that by the provisions of § 4 of said act of July 1,1862, a patent must issue before the land ceases to be the property of the government. We take issue on this and say: It is admitted in the agreed statement of facts, that plaintiff, Railway Company, had done everything necessary to be done to entitle it to a patent from the government, except the making the final entry required by act of congress approved July 1, 1864, and the payment of $1 per quarter-section, as provided by same act. Hence the Railway Company is in condition to compel title from the government, and consequently the lands in controversy are -clearly taxable. 3 How., 441; 4 Wallace, 210; 12 Iowa, 536.
    It seems that .the plaintiff in error is fearful that in these oases an attempt is being made to tax government lands, and wrest the title and possession of the same from the government. The true question is, not whether we have or not any rights in the lands in controversy, as against the general government, but have we any rights as against plaintiff, Railway Company? Plaintiff, in its petition in the court below, necessarily admits its interest in the lands in controversy, claiming that it now is the owner of said lands, and it-also admits that it acquires all its right, title and interest in and to said lands by virtue of the acts of congress above-referred to, passed long' previous to the taxation of the lands in controversy. “The right to a patent once vested, is-equivalent, as respects the government dealing with the ' public lands, to a patent issued; and when issued, it relates' back so far as may be necessary to cut off intervening claimants, to the inception of the right of the patentee.” 6 Wallace,,, 402.
    3. Selecting, surveying and designating the particular' tracts are not necessary to pass the title. The grant is direct - and definite—see § 3, act of July 1,1862, and § 4, act of July 2, 1864. “It is not a good objection to a grant that the metes and bounds were not set forth.” 1 Howard, 24. Suppose I sell and convey to a man all'the land in a certain, designated section in Saline county, that I have not previously sold. Would such a conveyance be void for uncertainty 2’ Manifestly not.
    But it is insisted by plaintiff that before title passes froim government to plaintiff, Railway Company, it is necessary that plaintiff should pay $1.00 to the Receiver and Register of the local Land Office, as provided for by § 21, act of July 2, 1864. This act cannot be held to apply to the lands involved in the case of defendant Prescott, as said lands were-granted to plaintiff by act of July 1, 1862, and said last-mentioned act contains no section authorizing congress, at-any time, to alter, amend or repeal said act. “ The government, like an individual, has no power to withdraw or annul.-, its grant of land. The first lawful grant must stand; and-the second cannot operate as a conveyance, for the reason that. the grantor, when he made it, had no estate to convey.” Opinions of Attorney General, vol. 11, page 47.
   'The opinion of the court was delivered by

Brewer, J.:

Was the land in controversy subject to taxation, the one parcel for the year 1868, and the other for the year 1869 ? This is the only question presented by the record. The cases were tried in the district court upon an agreed statement of facts. The plaintiff derived title solely under the act of congress of July 1st 1862, and amendment •of July 2d 1864, granting aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean. The agreed statement showed that plaintiff was the owner and in possession at the time of bringing the suit, and that the tax proceedings were regular and conformed to the requirements of the statute. It further showed “that at the time said land was assessed as aforesaid the plaintiff company .had completed the construction of the section of forty miles •of their road.within which the land lies, to the approval of the president of the United States.” And in- the case against -Culp the agreed facts showed that “ said plaintiff at the time .said land was assessed for taxation as aforesaid had -not paid into the treasury of the United States the cost of surveying, .selecting and conveying the said lands, and that no .patent therefor had been issued by the government of the U. S. to the said plaintiff; that said plaintiff had caused said lands to be valued and appraised, but that said land had not been .selected and conveyed as provided in said act of congress, nor the sum of one dollar per quarter-section paid, as provided; that said plaintiff had done all acts necessary to be done by it to obtain a patent for said land except as herein before stated.” This quotation from the agreed statement presents Ml the facts.

Was the land taxable ? If this land was the property of the Railroad Company, it was taxable; if it was the property of government it was not taxable. Act of Admission, § 3, clause 6th; General Tax Law, eh. 107, § 1. That no patent had issued is immaterial. Lands may be taxable before patent issues: Carroll v. Safford, 3 How., 441; Witherspoon v. Duncan, 4 Wall., 210; Stockdale v. Webster County, 12 Iowa., 536. The patent is evidence of the legal title. Where the right to a patent exists, the government holds the legal title only in trust, and the land is subject to taxation. Had the Railroad Company the right to a patent? If not, what had it to do first, and how did that affect its interest in the land? Sec. 3, of the act of July 1st 1862, provides—

“That there be and is hereby granted to the said company for the purpose of aiding in the construction of said railroad and telegraph line, * * * every alternate section of public land, designated by odd numbers, to the amount of five (changed by the amendment of 1864 to ten) alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten (changed by same amendment to twenty) miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have , attached at the time the line of the road is definitely fixed; * * * and all such lands so granted by this section which shall not be sold or disposed of by said company within three years after the entire road shall have been completed shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.
“Sec. 4. That whenever said company shall have completed forty consecutive miles * * * the president of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that forty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate-of said commissioners to that effect patents shall issue conveying the right and title to said lands. to said company, on each side of the road, as far as the same is completed, to the amount aforesaid, and patents shall in like manner issue as each forty miles of said railroad and telegraph line are completed, upon certificate of said commissioners.”

'The agreed statement shows that all the ju’erequisites to-the issue of a patent provided in this section have been performed, and if this were the only section bearing on the question the right to a patent would be clear. As against this right it is objected in the Culp case, first, that the company has not yet paid the one dollar per quarter-section required by the act of July 2d 1864. This is a general act applicable to all grants except those for agricultural colleges,, and requires the payment to the register and receiver of a fee of one dollar per quarter-section for each final location. We do not look upon this as attaching a new condition to the grant, a prerequisite to the vesting of title; but only as providing for payment for the evidence of such title. The title passes by the grant and the performance of the conditions named in the grant. To secure the evidence of suck transfer of title a fee must be paid to the officers who do the work, or a part of it, of preparing such evidence. It is like the fee-paid to the conveyancer for drafting a deed, or to the notary for taking the acknowledgment, or to the register for recording the deed, none of which are paid for the title but only to-obtain and perpetuate the evidence of such title. All that the government receives for the land is the construction of the road. This done, its interest in the land ceases. It is no longer its property. The legal title it holds only in trust for the company, and that title it is ready to transfer upon payment of the expenses of making such transfer to the officers-who do the work. Again it is objected that the “cost of surveying, selecting and conveying tlie said land ” had not been paid into the treasury of the United States. This requirement is found in the 21st section of the act of July 2d 1864, which provides “that before any land granted by this act shall be conveyed -x- * * there shall first be paid into the treasury of the United States the cost of surveying, selecting and conveying the same by the said company or party in interest.” Substantially the same remarks are applicable here as upon the last point. By the very language of the section this payment is made, not a condition of the grant, but of the execution of the conveyance. The land granted shall not be conveyed. The right of the company to the land is secured by a performance of the conditions of the grant. The right to a patent or other proper conveyance only by the performance of certain additional requirements. The government after making the grant in effect says, Now if you wish the lines run, and the boundaries of the land granted determined, you must pay the expenses. It demands nothing more for the land, but declines to pay the expenses of making the boundaries and executing the conveyances. Again it is objected that the land had not been selected and conveyed, though it is admitted the plaintiff had valued and appraised it. The term “selection” is not an appropriate one. That carries the idea that the company was authorized to choose from a large body of land a certain number of acres; that the land to be conveyed depencfed on the choice of the company, and that until such choice no one could ascertain which sections would pass to the company and which remain with the government. We do not so understand the act. The location of the line of the road determined what lands were included in the grant as plainly as though named ’ by section, township and range. Every alternate section designated by odd numbers to the amount of ten alternate sections on each side of said railroad, and within the limits of twenty miles, except such as at the time of the location of said line of road the government had sold or guarantied to other, parties. All that was to be done embraced under the term “selection,” was to ascertain what lands within the limits described yet remained within the absolute control of the government. The grant is equivalent to a conveyance by an individual of all the land in a certain tract which he had not previously sold. Would not the title pass instantly upon such conveyance? Is there any selection to be made prior to the vesting of title in the grantee? The grantee may not know until after examination of the records what portion of the tract he takes under his conveyance, but his examination and ascertainment do not help to pass the title. The cases are parallel Again it is objected that “the title which the company is entitled to acquire, under the grant, is not an absolute and indefeasible estate.” The acts of congress containing this grant provide that all such lands remaining unsold, or undisposed of, by the said companies, three years after the entire road is completed, to aid in the construction of which the grants were made, shall be subject to settlement and pre-emption like other public lands at $1.25 per acre, “the money to be paid to said companies.” Counsel very elaborately and ingeniously discuss the difficulties which they suppose may arise in case the company shordd fail to sell within three years between the future pre-emptor and the holder of a tax-title. But what does the company’s deed eonvey unless it has the title? How can it sell that which it does not own? We do not understand that upon a failure by the company to sell within the three years the lands revert to £hc government, but simply that after such time the government will have the right to sell it at the ordinary prices of government land, paying the proceeds over to the company. The government receives nothing upon a sale made by it. It only acts as agent. The company is the principal and receives the money. The opinions of the Commissioner of the General Land Office and the Assistant Attorney General of the United States presented as arguments in this case are entirely imipplicable here, as they are based upon facts which by the agreed statement are excluded from our consideration.

In the case of the Railroad Company against Prescott the record presents the same questions as the case of the same plaintiff against Culp, except that it appears from the agreed statement that the cost of surveying, selecting and conveying the land in controversy had been paid at the time the tax proceedings were commenced. This therefore presents a stronger case for affirmance.

The judgment in each case will be affirmed.

All the Justices concurring.  