ship. The cost of such improvements would | property destroyed, although always successful; probably exceed the value of the property. An by no means an uncommon occurrence. This action of ejectment for it would not lie, as it evil it was the object and policy of the Legislahas no occupant; and if, as contended by the ture to cure, not so much by prescribing a mode defendant, no relief can be had in equity be- of proceeding as by conferring a right on him cause the party claiming ownership is not in pos- who had the better title and the possession, to session, the land must continue in its unim- draw to him the outstanding inferior claims." proved condition. It is manifestly for the in- And again; "Kentucky has the undoubted powterest of the community that conflicting claims er to regulate and protect individual rights to to property thus situated should be settled, so her soil and to declare what should form a cloud that it may be subjected to use and improvement. on titles; and, having so declared, the courts of To meet cases of this character, statutes, like the United States, by removing such clouds, are the one of Nebraska, have been passed by sev- only applying an old process to a new equity eral States, and they accomplish a most useful created by the Legislature, having its origin in purpose. And there is no good reason why the the peculiar condition of the county." The right to relief against an admitted obstruction State Legislatures," the court added, "certainly to the cultivation, use and improvement of lands have no authority to prescribe the forms and thus situated in the States should not be enforced modes of proceeding in the courts of the United by the Federal Courts, when the controversy to States, but having created a right and at the which it may give rise is between citizens of same time prescribed the remedy to enforce it, different States. if the remedy prescribed is substantially consistent with the ordinary modes of proceeding on the chancery side of the Federal Courts, no reason exists why it should not be pursued in the some form as in the state court; on the contrary, propriety and convenience suggest that the practice should not materially differ where titles to lands are the subjects of investigation. And such is the constant course of the Federal Courts." The opinion concludes with the observation: "That, when investigating and decreeding on titles in this country we must deal with them in practice as we find them and accommodate our modes of proceeding, in a considerable degree, to the nature of the case and the character of the equities involved in the controversy, so as to give effect to state legislation and state policy; not departing, however, from what legitimately belongs to the practice of a court of chancery.'

In Clark v. Smith, reported in 13 Pet. [195], a doctrine is declared, with reference to the legislation of Kentucky as to the removal of clouds upon titles to land, which seems to us to be applicable here and to be decisive of this point. [22] A law of that State, regulating proceedings in the courts of chancery, provided: "That any person, having both the legal title to and possession of land may institute a suit against any other person setting up a claim thereto, and if the complainant shall be able to establish his title to such land, the defendant shall be decreed to release his claim thereto and pay the complainant his costs, unless the defendant shall by answer disclaim all title to such lands, and offer to give such release to the complainant." Under that Act, the complainant Clark filed a bill in the Circuit Court of the United States to compel the defendant to release the title claimed by him to certain lands, under patents from the State of Kentucky, obtained years after the registration of the survey of the ancestor of the complainant and patent to him. The circuit court heard the evidence of the parties as to their respective claims, and was of opinion that the complainant had established a legal title to the premises under a valid grant from the Commonwealth, and was in possession at the commencement of the suit, and that the defendant had not shown any right or title, either in law or in equity, to the land or any part of it; but being divided in opinion on the question of the jurisdiction of the court to compel the defendant to execute a conveyance, the bill was dismissed. On the case coming here, the decree below was reversed. In giving its decision this court referred to the unsettled condition of titles in Kentucky, and observed that, "Conflicts of title were unfortunately so numerous that no one knew from whom to buy or take lands with safety, nor could improvements be made, without great hazard, by those in possession who had conflicting claims hanging over them, and which might thus continue for half a century; the writ of right being limited to fifty years in some cases, that is, where it was brought upon the seisin of an ancestor or predecessor, and to thirty years if on the demandant's own seisin; during all which time the party in possession had no power to litigate, much less to settle the title at law; for he might be harassed by many actions of ejectment and his peace and

[23]

That case differs from the one at bar in that the complainant was in possession of the premises at the commencement of the suit, and the law of Kentucky gave the right to the relief claimed only to persons having both the legal title and the possession. But the law did not require that such possession should have been disturbed by legal proceedings, and that the title of the plaintiff should be sustained in them by judgments in his favor, before the court could entertain jurisdiction of the case and grant [24] the relief prayed; and, therefore, no such disturbance of his possession and adjudication sustaining his title were held to be essential to the maintenance of the suit. If the jurisdiction to grant the relief prayed remained unaffected, when the Legislature had thus dispensed with previous legal proceedings affecting the possession of the plaintiff, it would seem to follow that the jurisdiction would remain unimpaired if possession itself as a condition of the institution of the suit was also dispensed with.

The truth is that the jurisdiction to relieve the holders of real property from vexatious claims to it, casting a cloud upon their title, and thus disturbing them in its peaceable use and enjoyment, is inherent in a court of equity; and though conditions to its exercise have at different times been prescribed by that court, both in England and in this country, they may at any time be changed or dispensed with by the Legislature without impairing the general authority of the court. Pomeroy, Eq. Jur., sec. 1398.

The equitable rights of parties in Nebraska, | but if redemption is not made within the period claiming the legal title to real property, are designated, a deed is executed by the Treasurer simply enlarged by its statute, not changed in of the county to the purchaser, and such deed character. And the language used by this court, vests in him the right, title and estate of the for- [26] speaking by Mr. Justice Bradley, in the Broder- mer owner of the land and also of the State and ick Will Case, is appropriate here: "Whilst it county, and is evidence in all courts that the is true that alterations in the jurisdiction of the property conveyed was subject to the taxes for state courts cannot affect the equitable jurisdic- the years stated; that they were not paid and tion of the Circuit Courts of the United States, that redemption was not made before the sale; so long as the equitable rights themselves re- that the property had been properly listed and main, yet an enlargement of equitable rights assessed and the taxes properly levied; that the may be administered by the circuit courts as property was advertised for sale in the manner well as by the courts of the State." And it may and for the length of time required, and was be affirmed of this case, what was said as prob- sold as stated in the deed, and that the grantee ably true of that one, that it is "a case in which named was the purchaser or assignee of the puran enlargement of equitable rights is effected, chaser of the property; and, indeed, that all the although presented in the form of a remedial prerequisites of the law had been complied with proceeding." 'Indeed," as the court there ob- by the officers whose duty it was to have taken served, "much of equitable jurisdiction con- any part in the transaction relating to or affectsists of better and more effective remedies for ing the title conveyed. No person is permitted attaining the rights of parties." 21 Wall., 520 to question the title thus acquired without show[88 U. S., XXII., 605]. No adequate relief to ing that he had title to the property at the time the owners of real property against the adverse of the sale, or has since obtained the title from claims of parties not in possession can be given the United States, and that the property was not by a court of law. If the holders of such claims subject to taxation for the years named; or that do not seek to enforce them, the party in pos- the taxes had been paid before the sale, or that [25] session or entitled to the possession, the actual the property had never been assessed for taxaowner of the fee, is helpless in the matter, un- tion, or had been redeemed from the sale; or less he can resort to a court of equity. that there had been fraud committed by the officer in making the sale, or by the purchaser to defeat it.

66

The plaintiff, therefore, had a complete legal title to the premises in controversy, unless some one of the defects mentioned, affecting the validity of the assessment and sale of the property, existed at the time, or fraud had been committed by the officer or purchaser in the sale. Having an apparent legal title by the deeds, it was, of course, important to him and, indeed, necessary for the peaceable possession of the property and its improvement, to have any adverse claims, notwithstanding such deeds, considered and settled.

It does not follow that by allowing in the Federal Courts a suit for relief under the Statute of Nebraska, controversies properly cognizable in a court of law will be drawn into a court of equity. There can be no controversy at law respecting the title or right of possession to real property when neither of the parties is in possession. An action at law, whether in the ancient form of ejectment or in the form now commonly used, will lie only against a party in possession. Should suit be brought in the Federal Court, under the Nebraska Statute, against a party in possession, there would be force in the objection that a legal controversy was withdrawn from a court of law; but that is not this case, nor is it We think, therefore, that he was entitled, of such cases we are speaking. Undoubtedly, upon the statement made in his amended bill, as a foundation for the relief sought, the plaint- the only one before us, to call upon the defendiff must show that he has a legal title to the ant to produce and disclose whatever estate she premises, and generally that title will be exhib- had in the premises in question, to the end that ited by conveyances or instruments of record, its validity may be determined; and if adjudged the construction and effect of which will prop-invalid, that the title of the plaintiff may be erly rest with the court. Such, also, will generally be the case with the adverse estates or interests claimed by others. This was the character of the proofs establishing the title of the complainant in Clark v. Smith, already cited. But should proofs of a different character be produced, the controversy would still be one upon which a court of law could not act. It is not an objection to the jurisdiction of equity that legal questions are presented for consideration which might also arise in a court of law. If the controversy be one in which a court of equity only can afford the relief prayed for, its jurisdiction is unaffected by the character of the questions involved.

In the present case, the plaintiff claims under a purchaser at a tax sale by the State, to whom deeds by the Treasurer of the county in which the property is situated were executed. By the law of Nebraska the fee of real property, and not merely a term of years, may be sold for unpaid taxes. A certain time is allowed to the owner to redeem the property from such a sale,

quieted. It follows that the decree of the court below must be reversed and the cause remanded, with leave to the defendant to answer the bill; and it is so ordered.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-112 U. S., 411'; 114 U. S., 171.

CEDAR RAPIDS AND MISSOURI RIV. [27]
ER RAILROAD COMPANY AND THE
IOWA RAILROAD LAND COMPANY,
Piffs. in Err.,

HANNAH JEWELL et al., Heirs of Anderson Wheat., 694; Strong v. Lehmer, 10 Ohio St.,100;.

IN ERROR to the Supreme Court of the State Case, which is submitted in this court on the

other companies building roads across the State
under the grants of the Act of 1856.

at L., 9, by which Congress granted lands lying within the State of Iowa to that State to aid in building four principal railroads from the Mis- As regards the Cedar Rapids Company, it sissippi to the Missouri River. One of these had become clearly unnecessary to build another was for a road "From Lyons City, on the Mis-road from the Mississippi at Lyons to Cedar Rapsissippi River, to a point of intersection with ids, along the line occupied by the Iowa and the main line of the Iowa Central Air Line Rail- Nebraska road. road near Maquoketa, thence on said main line, running as near as practicable to the 42d parallel across the said State to the Missouri River." [29] For each of these roads there was given to the State of Iowa, "as soon as the road is completed, every alternate section of land designated by odd numbers for six sections in width on each side of each of said roads." And it was provided that if, when the line of a road was definitely located, it was found that the United States had disposed of any of these odd sections, or rights had attached to them by preemption or otherwise, an agent appointed by the State might, in lieu of these, select other alternate sections any-passed the statute on which the result of this where within fifteen miles of the line of the

road.

The State of Iowa, by an Act of the General Assembly approved July 14, 1856, accepted the trust reposed in it by the above Act of Congress, and granted and conferred upon four corporations all these lands, under the terms and restrictions of the Act of Congress. These corporations were to construct the roads across the State according to that Act, and the corporation on whom was conferred the grant for a road from Lyons to the Missouri River was the Iowa Central Air Line Railroad Company.

The only result of this particular grant of the State was that the company received the one hundred twenty sections of land which this court held, in the case of Cedar Rapids Co. v. Courtright, 21 Wall., 310 [88 U.S., XXII.,582], could be secured before any road was built; but having built no road up to March 17, 1860, the State, by an Act of its Legislature of that date, declared the grant forfeited and resumed control of it.

On the 26th of that month, by another Act of Assembly, the State granted the same lands to the Cedar Rapids and Missouri River Railroad Company, the plaintiff in error, upon conditions similar in all material respects to the grant to the Air Line Company.

It had also become apparent that a shorter and
better line to the Missouri River could be had
from the point to which the road had now been
constructed, and it was thought that a road
from some point on its existing line to some
point south of it, on the line of the Mississippi
and Missouri River Railroad, one of the four
land-grant roads, would be desirable. It had
also been ascertained that the necessary quan-
tity of lands in lieu of the odd sections disposed
of within six miles could not be satisfied by al-
ternate sections within the fifteen mile limit.
In this condition of the matter, Congress
litigation depends, which was approved June
2, 1864. 13 Stat. at L.. 95.

This statute, after granting_certain relief to
the Mississippi and Missouri R. R. Co. and to
the Burlington and Missouri R. R. Co., two
other of the land-grant roads in Iowa, proceeds
in its 4th section to grant relief to the present
plaintiff Company.

The 4th section of that Act, the one which we are required to construe, reads as follows: "Sec. 4. And be it further enacted, That the Cedar Rapids and Missouri River Railroad Company, a Corporation established under the laws of the State of Iowa, and to which the said State granted a portion of the land mentioned [31] in the title of this Act, may modify or change the location of the uncompleted portion of its line, as shown by the map thereof, now on file in the General Land-Office of the United States, so as to secure a better and more expeditious line to the Missouri River and to a connection with the Iowa branch of the Union Pacific Railroad; and for the purpose of facilitating the more immediate construction of a line of railroads across the State of Iowa, to connect with the Iowa branch of the Union Pacific Railroad Company, aforesaid, the said Cedar Rapids and Missouri River Railroad Company is hereby authorized to connect its line by a The Air Line Company had, before this time, branch with the line of the Mississippi and Missurveyed and located the line of the road from souri Railroad Company; and the said Cedar Lyons to the Missouri River through the Town Rapids and Missouri River Railroad Company of Cedar Rapids, and the map of this survey shall be entitled, for such modified line, to the and location had been accepted by the State of same lands and to the same amount of lands per Iowa and the Land-Office of the United States mile, and for such connecting branch the same as the true line and as governing the location amount of land per mile, as originally granted of the land grant for that road. A road had to aid in the construction of its main line, subalso been built by another company, the Chi-ject to the conditions and forfeitures mentioned [30] cago, Iowa and Nebraska, which had no land- in the original grant, and, for the same purpose, grant, from a point on the Mississippi River within three miles of Lyons City to Cedar Rapids. Hence the grant of the State to the Cedar Rapids Company required them to build speedily from Cedar Rapids west along the line thus adopted to the Missouri River.

Under this arrangement, the Cedar Rapids Company pushed its road on the designated line, so that it had completed about a hundred miles west of the town of that name by the year 1864, when several matters seemed to call for legislation by Congress in regard to it and to the

right of way through the public lands of the
United States is hereby granted to said Compa-
ny. And it is further provided, That, whenev-
er said modified main line shall have been estab
lished or such connecting line located, the said
Cedar Rapids and Missouri River Railroad
Company shall file in the General Land-Office
of the United States, a map, definitely showing
such modified line and such connecting branch
aforesaid; and the Secretary of the Interior
shall reserve and cause to be certified and con-
veyed to said Company, from time to time, as

[32]

the work progresses on the main line, out of and Missouri Railroad as laid down on a map any public lands now belonging to the United on file in the General Land Office; Provided, [33] States not sold, reserved or otherwise disposed further, That it shall be the duty of the Secretaof, or to which a preemption right or right of ry of the Interior and he is hereby required to homestead settlement has not attached and on reserve a quantity of land embraced in the grant which a bona fide settlement and improvement described in this section, sufficient, in the opinhas not been made under color of title derived ion of the Governor of Iowa, to secure the confrom the United States or from the State of struction of a branch road from the Town of Iowa, within fifteen miles of the original main Lyons, in the State of Iowa, so as to connect line, an amount of land equal to that originally with the main line in or west of the Town of authorized to be granted to aid in the construc- Clinton, in said State, until the Governor of tion of the said road by the Act to which this is said State shall certify that said branch railan amendment. And if the amount of land road is completed according to the requireper mile granted or intended to be granted by ments of the laws of said State; Provided, furthe original Act, to aid in the construction of ther, That nothing herein contained shall be so said Railroad, shall not be found within the construed as to release said Company from its limits of the fifteen miles therein prescribed, obligation to complete the said main line withthen such selections may be made along said in the time mentioned in the original grant; modified line and connecting branch within Provided, further, That nothing in this Act twenty miles thereof; Provided, however, That shall be construed to interfere with or in any such newly located or modified line shall pass manner impair any rights acquired by any railthrough or near Boonesboro, in Boone County, road company named in the Act to which this is and intersect the Boyer River not further south an amendment; or the rights of any corporatio, than a point at or near Dennison, in Crawford person or persons, acquired through any such County; And provided further, That, in case the Company; nor shall it be construed to impair main line shall be so changed and modified as any vested right of property, but such rights not to reach the Missouri River at or near the are hereby reserved and confirmed; Provided, 42d parallel north latitude, it shall be the duty however, That no lands shall be conveyed to any of said Company, within a reasonable time after company or party whatsoever, under the prothe completion of its road to the Missouri River, visions of this Act and the Act amended by to construct a branch road to some point in this Act, which have been settled upon and imMonona County, in or at Onawa City; and to proved in good faith by a bona fide inhabitant, aid in the construction of such branch the same under color of title derived from the United amount of lands per mile are hereby granted as States or from the State of Iowa adverse to the for the main line, and the same shall be reserved grant made by this Act or the Act to which and certified in the same manner; said lands to this Act is an amendment. But each of said be selected from any of the unappropriated companies may select an equal quantity of publands, as hereinbefore described, within twenty lic lands as described in this Act within the dismiles of said main line and branch; and said tance of twenty miles of the line of each of Company shall file with the Secretary of the In- said roads in lieu of said lands thus settled upon terior a map of the location of said branch; And and improved by bona fide inhabitants in good provided further, That the lands hereby granted faith under color of title as aforesaid." to aid in the construction of the connecting branch aforesaid shall not vest in said Company nor be incumbered or disposed of except in the following manner when the Governor of the State of Iowa shall certify to the Secretary of the Interior that the said Company has completed in good running order a section of twenty consecutive miles of the main line of said road west of Nevada, then the Secretary shall convey to said Company one third and no more of the lands granted for said connecting branch. And when said Company shall complete an additional section of twenty consecutive miles, and furnish the Secretary of the Interior with proof as aforesaid, then the said Secretary may convey to the said Company another third of the lands for said connecting branch; and when said Company shall complete an additional section of twenty miles, making in all sixty miles west of Nevada, the Secretary, upon proof furnished as aforesaid, may convey to the said Company the remainder of said lands to aid in the construction of said connecting branch; Provided, however, That no lands shall be conveyed to said Company on account of said connecting branch road, until the Governor of the State of Iowa shall certify to the Secretary of the Interior that the same shall have been completed as a first class railroad. And no land shall be conveyed to said Company situate and lying within fif- This latter it accomplished by declaring that teen miles of the original line of the Mississippi | all the sections within the fifteen mile limit shall

We are of opinion that the purpose of this enactment was:

1. To relieve the Company from the obligation to build that part of its line as found in the land-office, between the Mississippi River and Cedar Rapids, because there already existed a road between those points built by another corporation.

2. To require the Company to connect the City of Lyons with that corporation's road, so that it would be, as originally intended, the Mississippi terminus of the land-grant road across the State. This required the construc- [34] tion of about two and a half miles of road.

3. To authorize the Company to change the location of its road yet to be constructed west of Cedar Rapids for its convenience.

4. If this change left the City of Onawa, in Monona County, off the line of the road, they were to build a branch to that place.

5. To construct a new line connecting its existing road with the road from Davenport, on the Mississippi River, to Council Bluffs, on the Missouri River.

6. To adjust the amount of lands to which the Company would be entitled, under this new order of things, and to enlarge the source from which selections might be made for the loss of that not found in place.