Henry Billings Brown

“ Justice Story observed (page 622) : 'We will not say that it was not competent for the legislature (supposing no treaty in the way) , by a special act, to have vested the land in the commonwealth without an inquest of office for the cause of alienage. But such an effect ought not, upon principles of public policy, to be presumed upon light ground. That an inquest of office should be made in cases of alienage is a useful and important restraint upon public proceedings. * * * It prevents individuals from being harassed by numerous suits introduced by litigious grantees. ”

“ This obligation is contained in the sixth section in the following language: 'That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad.' Evidently, the failure to do this did not prevent the company from realizing the full value of the land granted by mortgaging the road; and it is open to doubt whether it could, under any circumstances, be insisted upon as a defense to the forfeiture. ”

“ Coming now to the act of 1886, forfeiting the grant, it is claimed in the first place that congress has no right by simple act to forfeit a title already vested, without providing for a judicial inquiry as to whether there has been a breach of a condition on the part of the grantee, and the legal effect of such breach, and also whether there has not been a breach on the part of the United States which would estop them from claiming a forfeiture. ”

“ While the reservation of some of these lands for the benefit of the Indian tribes might not have been consistent with its obligations to extinguish Indian titles, if the company had been prosecuting its work according to its contract, we do not think that it is entitled to complain that the government did not deal with it precisely as if it lived up to its undertaking. ”

“ There is no doubt that, where an estate is granted subject to a condition subsequent, the mere fact that there has been a breach of such condition will not revest the title in the grantor without some act or declaration upon his part. ”

“ A more reasonable interpretation would be to say that congress contemplated a possibility that the company might proceed in good faith with the construction of the road, and might so nearly approach its completion that it would be for the best interests of the government of go on itself and complete it, rather than to insist upon an entire forfeiture of the grant. ”

“ Under these circumstances, it could scarcely by expected that the United States should be called upon to extinguish, for the benefit of a railroad company, which had chosen to locate its route through this territory, a title guarantied to the Indians by solemn treaties, and which had been possessed by them for upwards of 40 years, with the powers of an almost independent government. ”

“ The plain meaning of the proviso is to permit any foreclosure of the mortgage to operate only upon such lands as are opposite and appurtenant to that part of the road which should be constructed at the time of the foreclosure, but not to extend for a day the time within which the road should be completed. The act also had a purpose in its assurance to mortgagees that no forfeiture would be insisted upon for conditions already broken, and that they might safely advance their money, if no breach should thereafter occur. ”

“ Ct. 100, wherein a grant to the Northern Pacific Railroad, with a similar provision for the extinguishment of Indian titles, was under consideration, it was held that, under the principal treaties applicable to that case, the grant operated to convey the fee to the company, subject to the right of occupancy by the Indians, but that the right of the Indians could not be interfered with or determined, except by the United States ”

“ Blackstone defines an inquest of office as 'an inquiry made by the king's officer, his sheriff, coroner, or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods or chattels. ”

“ But, in our view, there is no case made calling for the application of this rule, as the intention of congress to simply limit the remedy of the mortgagees seems entirely clear. The original act being silent upon the subject of mortgaging the grant, there is reason to suppose that congress passed the act for the purpose of resolving any doubts that capitalists may have entertained with respect to such power. ”

“ The charge in this connection is that the government not only failed in its legal obligation to extinguish the Indian titles and to survey the lands, but, upon the contrary, has still further burdened these titles with the very cloud it stipulated to remove by additional reservations in favor of the Indians. ”

“ It enables the owner to contest the question of alienage directly by a traverse of the office. It affords an opportunity for the public to know the nature, the value, and the extent of its acquisitions, pro defectu hoeredis. ”