died in [207] July, 1901, being survived by | tribution might in some instances be cut his parents and by at least one sister. His off by death, Congress made provision for mother was a Creek woman, duly enrolled such a contingency. Thus the original act as such in 1895, and his father was a white declared, in § 28: "And if any such citizen man, not entitled to enrolment. Two or has died since that time [April 1, 1899], three years after the child's death his name or may hereafter die, before receiving his was regularly placed upon the roll of allotment of lands and distributive share Creek citizens by the Commission to the of all the funds of the tribe, the lands Five Civilized Tribes, and the lands in and money to which he would be entitled, question were duly embraced in an allot- if living, shall descend to his heirs ment made on his behalf. A deed for them and be allotted and distributed to them was also issued in his name, and this, by accordingly." And the supplemental act "And if any operation of law, vested the title in his provided, in §§ 7 and 8: heirs. In September, 1905, after the allot- such child has died since May 25, 1901, or ment was made, his parents, acting through an attorney in fact, appointed a few days before, executed and delivered to L. S. Skelton a warranty deed for the lands, and in July, 1906, the parents, apparently ignoring the deed to Skelton, executed and delivered to S. M. Wilson a similar deed. Whatever rights Wilson acquired under his deed subsequently passed to William H.

Dill.

The action in the court of first instance was in ejectment, and was brought by Dill against Skelton, who had gone into possession under his deed. Dill prevailed and the judgment was affirmed by the supreme court of the state, which held that when the deed to Skelton was made the lands were subject to restrictions upon alienation which rendered the deed void, and that at the time of the deed to Wilson, under which Dill was claiming, the restrictions had been removed, thereby rendering that deed valid. 30 Okla. 278, 119 Pac. 267.

The allotment was made under the act of March 1, 1901, 31 Stat. at L. 861, chap. 676, as modified and supplemented by the act of June 30, 1902, 32 Stat. at L. 500, chap. 1323. These acts embodied and adopted a plan for allotting and distributing the lands and funds of the Creek Nation in severalty among its citizens, and to that end required that an enrolment be made by the Commission to the Five Civilized Tribes of all citizens who were entitled to participate in the allotment and distribution. It being necessary to fix a date [208] as of which the enrolment should be made, the original act provided, in § 28, that the enrolment should embrace all qualified citizens who were living on April 1, 1899, and all children born to such citizens up to and including July 1, 1900, and living on that date. The supplemental act changed the latter date by declaring, in §§ 7 and 8, that the enrolment should include all children born up to and including May 25, 1901. Evidently anticipating that participation in the allotment and dis

ay hereafter die, before receiving his allotment of lands and distributive share of the funds of the tribe, the lands and moneys to which he would be entitled if living shall descend to his heirs as herein provided, and be allotted and distributed to them accordingly."

Both parties are claiming under deeds from the father and mother, so we pass the question of who were the true heirs of the deceased child, observing only that under § 6 of the supplemental act, in the circumstances before stated, the mother was and the father was not a lawful heir.

In immediate connection with the provisions respecting allotments to living citizens in their own right, the original act contained a provision (§ 7) imposing various restrictions upon the alienation of the allotted lands. But, aside from its relation to other parts of the act, that provision need not be noticed, for it was superseded by § 16 of the supplemental act, which reads as follows:

[209] "Lands allotted to citizens shall not in any manner whatever, or at any time, be encumbered, taken, or sold to secure or satisfy any debt or obligation, nor be alienated by the allottee or his heirs, before the expiration of five years from the date of the approval of this supplemental agreement, except with the approval of the Secretary of the Interior. Each citizen shall select from his allotment forty acres of land, or a quarter of a quarter section, as a homestead, which shall be and remain nontaxable, inalienable, and free from any encumbrance whatever for twenty-one years from the date of the deed therefor, and a separate deed shall be issued to each allottee for his homestead, in which this condition shall appear. Selections of homesteads for minors, prisoners, convicts, incompetents, and aged and infirm persons, who cannot select for themselves, may be made in the manner provided for the selection of their allotments, and if for any

199

reason such selection be not made for any | [211] MINIDOKA & SOUTHWESTERN

citizen, it shall be the duty of said Commission to make selection for him. The homestead of each citizen shall remain, after the death of the allottee, for the use and support of children born to him after May 25, 1901; but if he haye no such issue, then he may dispose of his homestead by will, free from the limitation herein imposed, and if this be not done, the land embraced in his homestead shall descend to his heirs, free from such limitation, according to the laws of descent herein other wise prescribed. Any agreement or conveyance of any kind or character violative of any of the provisions of this paragraph shall be absolutely void, and not susceptible of ratification in any manner, and no rule of estoppel shall ever prevent the assertion of its invalidity."

RAILROAD COMPANY and Utah Construction Company, Appts.,

V.

UNITED STATES.

(See S. C. Reporter's ed. 211-219.)

Public lands rights before patent grant for railroad right of way reclamation lands.

Homesteaders without patents, but lawfully in possession of irrigable land in a reclamation area, were empowered to grant a right of way over their settlements to a railway company by U. S. Rev. Stat. § 2288, U. S. Comp. Stat. 1901, p. 1385, which, as amended by the act of March 3, 1905 (33 Stat. at L. 991, chap. 1424, U. S. Comp. Stat. Supp. 1911, p. 592), gives any bona fide settler the right to convey by warranty against his own act any part of his claim for a railway right of way; and such right was not in any way affected by the provisions of the reclamation act of June 17, 1902 (32 Stat. at L. 388, chap. 1093, U. S. Comp. Stat. Supp. 1911, p. 662), that when the Secretary of the Interior determines upon an irrigation project he must define its limits, and "withdraw the irrigable lands therein from all forms of settlement except under the homestead law," and that all settlements therein shall be "subject to the limitations, charges, terms, and conditions" provided in that act to meet the special conditions of lands constituting an irrigation plant.

Whether these restrictions were intended to apply only to allotments made to living citizens in their own right, or to apply as well to allotments made on behalf of deceased members, is the question for decision. The supreme court of the state, when passing upon this case, held [210] them applicable to both classes of allotments, but in the later case of Rentie v. McCoy, 35 Okla. 77, 128 Pac. 244, reached the other conclusion, as did also the district court for the eastern district of Oklahoma in Reed v. Welty, 197 Fed. 419. We think the better reasoning lies with the view that the restrictions apply only to allotments made to living citizens in their own right. Not only do the provisions of § 16 of the supplemental act lend themselves to that Argued October 29 and 30, 1914. Decided

view, but in those sections of both acts which deal with allotments on behalf of

[For other cases, see Public Lands, I. f. 2, in Digest Sup. Ct. 1908.]

[No. 19.]

November 30, 1914.

PPEAL from the United States Circuit

to review a decree which, reversing a decree of the Circuit Court for the District of Idaho, Central Division, held that homesteaders without patents could not grant to a railway company a right of way over land within a reclamation area. Reversed, and decree of Circuit Court affirmed.

deceased persons there is no suggestion of Court of Appeals for the Ninth Circuit a restriction upon alienation. This difference in legislative treatment doubtless was deliberate, and reflects a corresponding difference in purpose. In Mullen v. United States, 224 U. S. 448, 56 L. ed. 834, 32 Sup. Ct. Rep. 494, a like question arose under the original and supplemental acts relating to the Choctaw and Chickasaw lands, and we held that the restrictions upon alienation imposed by those acts were applicable to allotments to living members in their own right, but not to allotments on behalf of members then deceased. We do not perceive anything in the acts relating to the Creek lands which calls for a different conclusion.

The judgment must therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Judgment reversed.

See same case below, 111 C. C. A. 323, 190 Fed. 491.

The facts are stated in the opinion.

Messrs. Henry W. Clark and A. A. Hoehling, Jr., argued the cause, and, with Mr. P. L. Williams, filed a brief for appellants:

Lands which have been entered by homestead or other settlers under the public land

generally-see note to Kansas P. R. Co. v. NOTE-As to land grants to railroads, Atchison, T. & S. F. R. Co. 28 L. ed. U. S.

794.

laws are not public lands within the meaning, broader scope, the question being purely one of the general right-of-way act. of legislative intention.

Bardon v. Northern P. R. Co. 145 U. S. 535, 538, 36 L. ed. 806, 809, 12 Sup. Ct. Rep. 856; Barker v. Harvey, 181 U. S. 481, 490, 45 L. ed. 963, 968, 21 Sup. Ct. Rep. 690; Northern Lumber Co. v. O'Brien, 204 U. S. 190, 196, 51 L. ed. 438, 440, 27 Sup. Ct. Rep. 249; United States v. Buchanan, 232 U. S. 73, 58 L. ed. 511, 34 Sup. Ct. Rep. 237; Union P. R. Co. v. Harris, 215 U. S. 386, 54 L. ed. 246, 30 Sup. Ct. Rep. 138; Re Montana C. R. Co. 25 Land Dec. 250; Re Santa Fe, P. & P. R. Co. 22 Land Dec. 685; Re Kern Valley Water Co. 15 Land Dec. 577.

The right of way granted by homestead settlers under the authority of U. S. Rev. Stat. § 2288, U. S. Comp. Stat. 1901, p. 1385, is complete and perfect. The statute itself operates as the consent of the government to subject its interest in the land to the right | of way.

Alexander v. Kansas City, Ft. S. & M. R. Co. 138 Mo. 464, 40 S. W. 104; Jamestown & N. R. Co. v. Jones, 7 N. D. 619, 76 N. W. 227; Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. ed. 698, 20 Sup. Ct. Rep. 568; Dakota C. R. Co. v. Downey, 8 Land Dec. 115; Stalker v. Oregon Short Line R. Co. 225 U. S. 142, 56 L. ed. 1027, 32 Sup. Ct. Rep. 636.

Assistant Attorney General Knaebel argued the cause, and, with Mr. W. W. Dyar, filed a brief for appellee:

The act of March 3, 1873, merely authorizes the settler to relinquish in part the privileges which he enjoys under the settlement law; not to convey the title or to impair in any way the interest of the government.

Davis v. Foreman, 14 Land. Dec. 152; Eimer v. Wellsand, 93 Minn. 447, 101 N. W.

612.

As to lands which, like the lands of reclamation projects, are affected by a special public interest, the act of March 3, 1873, if applicable at all, should be construed as a means of securing the consent of the settler to the uses mentioned, but not to permit those uses in the absence of governmental approval.

Wilcox v. Jackson, 13 Pet. 498, 513, 10 L. ed. 264, 271; Scott v. Carew, 196 U. S. 100, 49 L. ed. 403, 25 Sup. Ct. Rep. 193.

See United States v. Blendaur, 63 C. C. A. 636, 128 Fed. 910.

In the right-of-way act the words "public lands" are used in two places. In § 1 a right of way is granted over "the public lands," and in § 3 the territorial legislatures are authorized to provide for the manner in which "private lands and possessory claims on the public lands of the United States" may be condemned. It is beyond question that "possessory claims," as here used, include claims evidenced by entries as well as mere squatter rights.

Spokane Falls & N. R. Co. v. Ziegler, 167 U. S. 65, 42 L. ed. 79, 17 Sup. Ct. Rep. 728; Enoch v. Spokane Falls, & N. R. Co. 6 Wash. 393, 33 Pac. 966; Red River & L. of W. R. Co. v. Sture, 32 Minn. 95, 20 N. W. 229; Larsen v. Oregon R. & Nav. Co. 19 Or. 240,

23 Pac. 974.

In Washington & I. R. Co. v. Osborn, 160 U. S. 103, 40 L. ed. 356, 16 Sup. Ct. Rep. 219, this court, construing this act, held that Osborn, a settler on unsurveyed land, who intended at the proper time to claim a pre-emption right, could not be dispossessed by a railroad company without proper compensation. The court, on the authority of Buxton v. Traver, 130 U. S. 232, 235, 32 L. ed. 920, 921, 9 Sup. Ct. Rep. 509, held that the settler, even though he had erected very valuable improvements, had not acquired any right whatever, as against the United

States.

[215] Mr. Justice Lamar delivered the opinion of the court:

The Minidoka & Southwestern Railroad Company was authorized by its charter to build its road along a line which ran through the Minidoka Irrigation Project in the state of Idaho. Homesteaders, without patents, but lawfully in possession of irrigable land within the reclamation area, granted rights of way over their settlements to the railroad company.

When the company began to build, the United States sought to enjoin the work on the ground that a railroad could not be built across lands within a reclamation area without the consent of the government. It was also claimed that the necessary embankments, excavations, bridges, and culverts, would interfere with the success of the ir

Where, as was suggested in Union P. R.rigation works. The company answered and Co. v. Harris, 215 U. S. 386, 388, 54 L. ed. relied on the conveyances from the home246, 247, 30 Sup. Ct. Rep. 138, it is "apparent steaders. After a hearing the circuit court either from the context or from the circum- denied the injunction, but made provision stances attending the legislation" that this that the culverts should be so built as not term "public lands" was meant to include to interfere with the flow of water through lands subject to private claims, as well as the canals and ditches (176 Fed. 762). This those that are not, the term will have the 'decree was reversed by the circuit court of

appeals (111 C. C. A. 323, 190 Fed. 491), at L. 991, chap. 1424, U. S. Comp. Stat. on the ground that the lands in the rec- Supp. 1911, p. 592), have been repealed lamation area, though in possession of settlers, were public lands within the meaning of the right of way act (18 Stat. at L. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), and that before its road could be built through the Minidoka Irrigation Works the company must obtain the consent of the Secretary of the Interior. From that decree an appeal was taken to this court.

the irrigation system in instalments,-the struction of such a highway and instrumenlast of which may not mature for ten years tality of commerce, notwithstanding any after entry. interest the United States may have had in There are, possibly, other provisions to the lands described in the deeds from the meet the special conditions of lands consti- homesteaders to the railroad company. tuting an irrigation plant. But except as The decree of the Circuit Court of Appeals modified by the specific terms of the rec-is reversed, and that of the Circuit Court for lamation act, such lands are distinctly the District of Idaho is affirmed.

made subject to entry under the provisions of the homestead law, and all of the homesteaders' rights therein are the same as if the settlement had been located outside of the limits of irrigation works. One of the privileges, not affected by the reclamation act, is that which permits the homesteader, without patent, but in lawful possession, to grant to a railroad company a right of way across his claim; and whatever reason there was for conferring this right upon those who entered land in a sparsely settled section is doubly operative as to land located within the more thickly populated reclamation areas. Manifestly this is true as to so much as may be needed for churches and schoolhouses. It is equally so as to rights of way for railroads and other public utilities needed by the numerous residents living within the irrigation

areas.

GEORGE G. HENRY, Appt.,

V.

WILLIAM HENKEL, United States Marshal for the Southern District of New York.

(See S. C. Reporter's ed. 219-230.)
Habeas corpus
remedy.

existence of ordinary

Relief by habeas corpus will not be granted by the Federal courts to a person held in custody to await an order for U. S. Comp. Stat. 1901, p. 716, to the Dishis removal under U. S. Rev. Stat. § 1014, trict of Columbia, for trial on an indictment charging him with refusing, contrary to §§ 101-104 (U. S. Comp. Stat. 1901, pp. 54, 55), to make the disclosure and furnish the information demanded by a congressional committee as the basis for legislation, although he asserts, as showing tion under which the committee acted did a lack of jurisdiction, that the House resolunot authorize an inquiry into the matter about which he refused to testify; that the facts charged do not constitute an offense under the statutes, or, if so, that the statutes are void; but this and all other controverted issues in the case are primarily for the determination of the trial court.

[For other cases, see Habeas Corpus, I. b, 3,

in Digest Sup. Ct. 1908.]

[No. 216.]

An act passed since the reclamation act of 1902 serves, if possible, to make clearer the fact that Congress did not intend to deprive settlers on these or any other class of lands from granting railroad rights of way. For on March 3, 1905 (33 Stat. at L. 991, chap. 1424, U. S. Comp. Stat. Supp. 1911, p. 592), after the establishment of the Minidoka project, Congress amended Rev. Stat. § 2288, U. S. Comp. Stat. 1901, p. 1385, so as to provide that "any bona fide settler under the pre-emption, homestead, or other settlement law, shall have the right to transfer by warranty against his own acts, any portion of his claim for church, Argued February 24 and 25, 1914. Decided cemetery, or school purposes, or for the right of way of railroads, telegraph, telephone, canals, reservoirs, or ditches. These [219] privileges were renewed and extended by this act because of the public benefits to be derived from such utilities. When, therefore, the Minidoka & Southwestern Railroad Company, in 1909, secured grants to the continuous strip through the reclama-U. S. 91. tion area, the company, by virtue of these public statutes and the private grants, was authorized to construct its road not only across the agricultural lands, but over the intervening ditches and canals. For, while the latter formed a part of the irrigation unit, they were also particularly appurtenant to the lands through and along which they ran.

These various acts of Congress operated to give its consent, in advance, to the con

A

November 30, 1914.

PPEAL from the District Court of the
United States for the Southern District

NOTE. On habeas corpus in the Federal courts see notes to Re Reinitz, 4 L.R.A. 236; L.R.A. 616; Tinsley v. Anderson, 43 L. ed. State ex rel. Cochran v. Winters, 10

As to questions reviewable by habeas corpus-see notes to State v. Jackson, 1 L.R.A. 373; Bion's Appeal, 11 L.R.A. 694; Glass v. The Betsey, 1 L. ed. U. S. 489; United States v. Hamilton, 1 L. ed. U. S. 490; Ex parte Carll, 27 L. ed. U. S. 288; Oteiza y Cortes Texas, 39 L. ed. U. S. 164. v. Jacobus, 34 L. ed. U. S. 464; Pearce v.

On removal to another Federal district for trial of persons there charged with an offense against the United States-see note to Greene v. Henkel, 46 L. ed. U. S. 177.