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BAKER V. GEE, 68 U. S. 333 (1863)

U.S. Supreme Court

Baker v. Gee, 68 U.S. 1 Wall. 333 333 (1863)

Baker v. Gee

68 U.S. (1 Wall.) 333


1. Under the Act of Congress of June 10, 1852, giving to the State of Missouri certain lands for railroad purposes, and the Act of that state of September 20, 1852, accepting them and making provision in regard to them, the location of the lands was not fixed within the meaning of those acts by the mere location of the road, nor was it fixed until the railroad company's caused a map of the road to be recorded in the office for recording deeds in the county where the land was situated, this sort of location being the kind required by the last act.

2. Where Congress gives lands to a state for railroad purposes and for "no other," and the state granting the great bulk of them to such purposes allows settlements by preemption, where improvement and occupancy had been made on the lands prior to the date of the grant by Congress, and since continued, a purchaser from the railroad company of a part which the state had thus opened to preemption cannot object to the act of the state in having thus appropriated the part, the railroad company having, by formal acceptance of the bulk of the land under the same act which opened a fractional part to preemption, itself waived the right to do so. The United States as donor not objecting, nobody can object.

On the 10th June, 1852, Congress, by statute, [Footnote 1] granted to the State of Missouri, to aid in building railroads from Hannibal to St. Joseph, the right of way through the public lands and every alternate section designated by even numbers for six sections in width on each side of said roads. The statute directed that "a copy of the location of the roads, made under the direction of the legislature," should be forwarded to the proper local land offices and General Land Office at Washington, and that the lands thus given should be disposed of by the state for the purposes contemplated, and for "no other."

On the 20th September of the same year, the Legislature of Missouri, by an act passed to accept the bounty of Congress, [Footnote 2] required that the lands should be selected by the company, under the direction of the governor, and that a

Page 68 U. S. 334

copy of the "location of the road" should be certified to the local land offices and the General Land Office in conformity with the act of Congress.

One section of the act, the fifth, gave a preemption right, at a price specified to settlers in actual occupancy and who had improved the land occupied prior to the date of the gift, 10 June, 1852, by Congress, and to a certain extent on any land embraced in the grant, provided certain conditions were complied with, among which was that the party claiming preemption should, "within four months from the date of the location of the lands," file, in the clerk's office of the circuit court of the county in which the land was situated, a notice to the corporation of the claim. Another section obliged the company, within one year after their road should have been located, to file a map or profile of it and a map of the land obtained for the use of the road in the office of the secretary of state and have record made of the lands lying in each county in the office for recording deeds. The act and all the grants contained in it were to cease and be void unless the acceptance of the company should within six months be filed in the office of the secretary of state.

On the 23d November, 1857, a further act was passed making it the duty of the land agents of the road to file, in the different counties through which their road passed, a descriptive list of their lands.

The location of the line and route of the road was made on the 8th March, 1853, and the acceptance of the company duly filed with the secretary of state, on the 17th of the same month, but there was no proof of the time when the lands were actually located, nor any proof that descriptive lists were ever filed in the different counties until after the passage of the act of 1857.

In this state of the law and facts, one Gee having entered in 1849 upon such part of one of the sections as the act of Missouri opened to preemption, and complied with the several conditions -- such as occupancy &c., prior to the gift by Congress -- he instituted, on the 3d of January, 1854, the proper proceedings to establish his right to purchase the land. He

Page 68 U. S. 335

was denied, however, the right, on the ground that he had not made his claim in due season.

In the meantime, one Baker purchased the land from the railroad company, and, setting up a title under that purchase, brought the present suit, ejectment, against Gee to recover the land which the latter claimed by right of preemption -- a sort of title which in Missouri is recognized as sufficient to maintain or defend suit in ejectment -- the ground of Baker's claim being that Gee was obliged to show that he gave the notice required by the fifth section of the Missouri Act of September 20, 1852, within four months of the location of the road, such location, as Baker contended, having been a location of the lands also, the whole region there having long been surveyed and subdivided by the United States, the sections designated by even numbers already laid down on the public maps, and the location of all the lands granted being made so soon as the railroad itself -- which location was the rule and exponent of this also -- was definitively fixed and marked on maps by the state. When this was done, nothing additional, it was argued, could by intendment be necessary to give precision to the site of the lands or to render their location more certain or more easy of ascertainment. The court below, however, was not of the opinion, and ruled

"that the location of the land in question by the Hannibal & St. Joseph Railroad Company was not complete, as regarded this defendant, until the said company caused a map thereof to be recorded in the office for recording deeds in which the said land is situated."

Verdict and judgment were accordingly given in favor of the preemptor. On error here, the correctness of the ruling just mentioned was one point in question, a second point raised and argued being the power of the State of Missouri, under the act of Congress, which gave the lands for railroad purposes and for "no other," to open any part of it to preemption purchasers.

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