Supreme Court of United States.
*398 Mr. Assistant Attorney General Pradt for appellant.
Mr. M.D. Brainerd and Mr. J.A.W. Smith for appellees.
MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.
As there is no finding which tends even to establish any right at any time to the land in question in favor of the South and North Alabama Railroad, all consideration of that subject may be put out of view. Moreover, the existence of any supposed right in favor of that company is conclusively disposed of on this record by the finding as to the prior selection by the State of Alabama under the grant in aid of the Northeast and Southwestern Railroad and the approval of such selection by the Secretary of the Interior.
The Government makes no contention that if the title of the plaintiffs was of such a character as to entitle them generally to recover against the trespassers that the cause of action against the United States for the money collected by it from the trespassers is not one which is judicially cognizable. The sole contention of the Government is that the plaintiffs, after application for selections and before approval of the selections, had no such title to the land as would have justified a recovery from the trespassers, and, a fortiori, therefore had no such title as would warrant their recovering from the United States the sum of money which it collected from the trespassers for the elements removed from the land during the period between the date of the application for selections and the approval of the same by the Secretary of the Interior. This contention is based upon the proposition that, whilst under the act in question the grant of land within the place limits may have been one in praesenti, the right to the indemnity lands did not vest in the grantee until approval of the selections by the proper officers of the Government; and hence the legal title was in the United States as to such lands pending action on the application *399 for selections, and therefore at the time of the trespass the United States was alone authorized to recover for the depredations committed. Unquestionably the general doctrine is that where approval by the officers of the Government of selections of indemnity land has been made a condition precedent to the right to take such lands, the legal title remains in the United States until divested by the approval of the selections. Oregon & California Ry. Co. v. United States, No. 1, 189 U.S. 103. In consonance with this doctrine it has also been decided that, until approval of selections within the indemnity limits, land embraced in applications for selections remains the property of the United States to such an extent that it cannot be taxed as the property of the applicants. Wisconsin Railroad Co. v. Price County, 133 U.S. 496.
But even though it be conceded, arguendo, that the doctrine in question would allow rights to be acquired by third parties to the injury of the applicant after the making of the selections and pending approval thereof by the Government, it does not follow that it controls the controversy here presented. This results because on this record the rights of third parties are not involved, since the controversy concerns only the right of the United States to retain as against its grantees the proceeds recovered by it as the result of a trespass upon land after an application for the selection of such land and pending action thereon by the proper officers of the Government. Under these circumstances the case is one for the application of the fiction of relation, by which, in the interest of justice, a legal title is held to relate back to the initiatory step for the acquisition of the land. Many cases illustrating the doctrine in various aspects have been determined in this court.[1]
Indeed, this case is one coming peculiarly within the principle of relation, as the approval of the selections manifestly *400 imported that at the time of the application for selections the land in question was rightfully claimed by the applicant. And cogently does this become the case when it is considered that the findings establish that at the time the application for selection was made, on the face of the records of the land office, there was an enormous deficiency both in the place and indemnity lands. Shepley v. Cowan, 91 U.S. 330, 337.
Nor is the assertion well founded that this case is not a proper one for the application of the doctrine of relation because coming within the rule announced in United States v. Loughrey, 172 U.S. 206. At the time of the trespass complained of in that case the United States had taken no step to assert its reversionary rights in and to the land trespassed upon, the legal title to which was in the State of Michigan at the time the trespass was committed. Here as we have seen the grantee had exercised his right to apply for selections within the indemnity limits and had in legal from requested the approval of the same by the Government. Everything therefore which the grantee was required by law to do to obtain the legal title had been performed. These facts bring this case within the principle decided in Heath v. Ross, 12 Johns. 140, and Musser v. McRae, 44 Minnesota, 343, referred to in the opinion of the court in the Loughrey case, (p. 218,) as not being inconsistent with the principle there applied. Heath v. Ross was an action of trover for timber cut between the application for and date of a patent from the State, and its ensealing and delivery by the Secretary of State. The title was held to relate back to the first act, so as to entitle the plaintiff to maintain an action against a mere wrongdoer, for the value of the timber cut and carried away in the meantime. Musser v. McRae was an action brought to recover the value of timber cut by trespassers from indemnity lands selected by the agent of certain railroad companies, intermediate the application for selection and the patenting of the lands. To permit a recovery, it was held that the title evidenced by the patent related back at least to the date of the application for *401 selection. It was declared that the doctrine of relation was properly applied to the case, "for the advancement of justice, and to give the full effect to the grant it was intended to have." Among other cases relied upon by the Minnesota court as sustaining the application made of the doctrine was the decision of this court in Landes v. Brant, 10 How. 348.
Concluding, as we do, that the money in question belongs to the appellee as the successor in interest of the party for whose benefit the application for selections was made, it results that the judgment of the Court of Claims must be
Affirmed.
[1] Gibson v. Chouteau, 13 Wall. 92, 100; Ross v. Barland, 1 Pet. 655; Landes v. Brant, 10 How. 348; Lessee of French v. Spencer, 21 How. 228, 240; Beard v. Federy, 3 Wall. 478; Grisar v. McDowell, 6 Wall. 363; Stark v. Starrs, 6 Wall. 402; Lynch v. Bernal, 9 Wall. 315; Shepley v. Cowan, 91 U.S. 330.
