The opinion of the court was delivered by
Valentine, J.:Statement ofcase. Osage Treaty of 1865-1867. The petition below shows that the plaintiff James Wood resides upon and occupies a certain quarter-section of land included in the tract ceded by the Osage Indians to the United States by virtue of the treaty of September 29th 1865. (14 Stat. at Large, 687.) Said petition also shows that said plaintiff “settled” upon said land on the 22d of July 1871; that afterward he attempted -j-Q pre-empt the land; that the government land officers refused to permit him to do so; that the defendant, the Missouri, Kansas and Texas Railway Company, claims to have some estate or interest in said land; but that the title to the same still remains in the government of the United States; and the plaintiff asks to have his said possession and occupancy quieted as against said defendant. When the action came on for trial in the court below the plaintiff offered to introduce in evidence an agreed statement of the facts of the case. The defendant objected thereto on the ground that the petition did not state facts sufficient to constitute a cause of action, and also objected on the ground that the court did not have any jurisdiction of the subject-matter of the action. The court below sustained the objection on the first ground, and the plaintiff excepted. Said agreed statement of facts contained substantially the same facts as were alleged in the said petition. Di<l the petition or the agreed statement of facts state -a cause of action ? Neither did, as we think. It all depends however, in our judgment, upon the validity of that clause of said treaty which provides that “no preemption claim or settlement shall be recognized,” ag attaching to or affecting said Osage Ceded Lands. The first article of said treaty reads as follows:
“Article 1. The trihe of the Great and Little Osage Indians, having now more lands than are necessary for their occupation, and all payments from the government to them under former treaties having ceased, leaving them greatly impoverished, and *345being desirous of improving their condition by disposing of their surplus lands, do hereby grant and sell to the.United States the lands contained within the following boundaries, that is to say: beginning at the southeast corner of their present reservation, and running thence north with the eastern boundary thereof fifty miles, to the northeast corner; thence west with the northern line, thirty miles; thence south, fifty miles, to the southern boundary of said reservation; and thence east with said southern -boundary, to the place of beginning : Provided, That the western boundary of said land herein ceded shall not extend farther westward than upon a line commencing at a point on the southern boundary of said Osage country one mile east of the place where the Verdigris river crosses the southern boundary of the state of Kansas. And in consideration of the grant and sale to them of the above described lands, the United States agree to pay the sum of three hundred thousand dollars, which sum shall be placed to the credit of said tribe of Indians, in the treasury of the United States, and interest thereon at the rate of five per centum per annum shall be paid to said tribes semi-annually, in money, clothing, provisions, or such articles of utility as the Secretary of the Interior may from time to time' direct. Said lands shall be surveyed and sold, under the direction of the Secretary of the Interior, on the most advantageous terms, for cash, as public lands are surveyed and sold under existing laws, [including any act granting lands to the state of Kansas in aid of the construction of a railroad through said lands;] but no pre-emption claim or homestead settlement shall be recognized; and after reimbursing the United States, the cost of said survey and sale, and the said sum of three hundred thousand dollars placed to the credit of said Indians, the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the ‘ civilization fund,’ to be used, under the direction of the Secretary of the Interior, for the education and civilization of Indian tribes residing within the limits of the United States.” (14 U. S. Stat. at Large, 687, 692, article 1, and amendments.)
1. Indian treaties. Power of
*346 president and senate. Power of Indian tribes, in disposing
of lands. 2. Osage Lauds not subject to pre-emption. 3. Action by
*347trespasser, to quiet title. *345Whether the president and senate of the United States have the power by treaty to dispose of Indian lands we shall no* discuss, as we do not consider the question as still an open one. (Parker v. Winsor, 5 Kas., 367, 368; Joy Holden, 14 Wallace, 211, and cases there cited.) That they have such power, and the power to *346prescribe the manner in which the terms and conditions upon which Indian lands may be sold or conveyed, seems to have been settled by all the departments’of the federal government. (See the numerous treaties where such power has been exercised; the numerous acts of congress where such power has been recognized by appropriations, and other legislation carrying into effect the provisions of such treaties and recognizing their validity; and the cases above cited, particularly United States v. Brooks, 10 Howard, 442, 460.) If this were still an open question we should probably be inclined to question the power of the president and senate in such cases. But that question is foreclosed. And we proceed to the consideration of this case as though the president and. senate, by treaty with the Indians, have full, ample and undoubted power to dispose of all the Indian lands, and to do so in the manner and upon such terms and conditions as they may in their judgment tbink best and Pr0Per- will generally be con-ceded that the Indians have power by treaty to sell to the United States (in contradistinction to individuals,) all their lands absolutely, unconditionally, and every right and interest therein. Now, if the Indians possess-this power, what is there to prevent them from disposing of less than the whole of their interest in their lands, or from attaching conditions to tne sale of it? It would seem to follow as a necessary consequence that if they could sell all they possessed, they could sell less than all; if they could sell the whole of their interest, they could sell a portion of the same;. if they could sell absolutely, they could sell conditionally. And if such does folluw, then the sale to the United States, with the conditions attached, that their lands must be sold to individuals “on the most advantageous terms for cash,” and that “no pre-emption claim or home7 ± j. stead settlement shall be recognized,” is valid in every respect. There were doubtless sufficient reasons for inserting these conditions in the treaty; but whether there were or not we suppose we are hardly at liberty to question. The reasons for these conditions would seem to be that the *347Indians desired to make the “civilization fund” “for the education and civilization” of themselves and other members of their race as large as possible. They unquestionably had a right to create such a fund, and the object was undoubtedly a noble one. But if they had allowed this land to be opened for pre-emption claims and homestead settlements, (as the plaintiff claims they did,) probably not a dollar would ever have been raised from these lands for said fund. It is even probable that there would not have been enough money realized from the sales of said lands to reimburse the United States. But with these conditions the fund will probably be large. Taking this view of the case, the plaintiff cannot pre-empt said land, for such pre-emption is prohibited by the treaty. His possession and occupancy is therefore merely a trespass upon government land. Of course, it will not be claimed that the plaintiff has any right to said land under the joint resolution of congress of April 10, 1869, (16 Stat. at Large, 55,) for the right to settle upon the Osage Ceded Lands, of which this was a part, expired April 10th, 1871, and the plaintiff did not go upon this land until July 22d, 1871. Neither will it be claimed that the plaintiff has any right to said land under §12 of the act of congress of July 15th, 1870, (16 U. S. Stat. at Large, 362,) for that section can apply only to the Osage Diminished Reservation and the Osage Trust Lands, and cannot by any possible construction be made to apply to the Osage Ceded Lands. And there is no other act of congress or treaty, that has taken effect since the treaty of September 29th 1865 was made, which would give the plaintiff any right to said land. He is therefore, as we have before said, merely a trespasser upon government land. Can such a person maintain an action to quiet his possession against some person who has no interest in the land, but claims that he has? We think not. It is claimed however by the plaintiff that he can, and the cases of Eaton v. Giles, 5 Kas.; 24, and Brenner v. Bigelow, 8 Kas., 496, are cited as authority therefor. But neither of these cases is in point. In both cases the *348property in question had passed from the United States to an individual, and in both cases the court had a right to award title and possession to some individual, for it is certain that some individual owned the property, and had the right of possession thereto; and in neither case was the plaintiff a trespasser on any lands. Not so in the'present case. In the present case the court has no power to give any right to the property or the possession thereof to any individual upon the face of the earth. The question involved in this case was not decided in either of those cases, and it could not have been so decided, (whatever may have been said in the opinion,) for it was not involved in either of said cases. ; In the case of Eaton v. Giles the action was decided against the plaintiff, (not for him,) on the ground that he had no sufficient possession of the property or interest therein to maintain the action. In the case of Brenner v. Bigelow the plaintiff not only held the actual possession of the property, but also held the legal title thereto, and claimed to hold the equitable title and the right of possession as against all the world. ' He was no mere trespasser, nor any trespasser, 'as the plaintiff in the present case is. In the case of Baton v. Giles the court say in the opinion that “ It is not every person who may bring a party into court for the purpose of determining the validity of his title. The plaintiff must show some right in himself, and some injury to that right by another, before he can subject him to the costs and vexations of a law suit.” (5 Kas., 27.) And this is good law, and applicable to this case. It has never yet been decided by this court that a mere trespasser without color of right or title can maintain an action to quiet title or possession. Possibly however such a person may in some cases maintain such an action. A mere trespasser without color of right or title, who has been in the actual possession of real estate for fifteen years, claiming title thereto, becomes the owner of the property by virtue of the statute of limitations, if the property has been owned during all that time by some individual or individuals, and not by the United States. (Gen. Stat., 633, code, §16, subdiv. 4.) Mere pos*349session therefore of lands to which the government has parted with its title, for any period, however short, with a claim of ownership, may be said to be an incipient or inchoate title, for such a possession will in time ripen into a complete, perfect and absolute title. And it may be that a person with such a possession may maintain an action to quiet his possession, or for injuries thereto against any person who has not a paramount right, and who may claim adversely to him, or who may disturb his possession. But this can never be so where the government owns the real estate in controversy. The statute of limitation never runs against the government. (Lindsey v. Miller, 6 Peters, 666; Gibson v. Chouteau, 13 Wall., 92, 99.) Therefore no trespasser can ever obtain any rights upon government land. And no decision of any state court under the laws of the state can ever possibly give him any such rights. He may occupy the land a hundred years, and have a hundred decisions in his favor, and still the right of the government will be as absolute as ever. He may quiet his title and possession against every person in the known world, and still he has obtained nothing. The government may still sell to any one of these persons as freely as to him, and any one of them has the same right to purchase from the government that he has. And no length of time in which he may be in possession of the land will shorten the time in which the government has the right to assert its title or claims thereto, or in which it may sell to others, or in which these others may purchase from the government. A decision therefore quieting title to government land, being absolutely nugatory, it can hardly be supposed that our law-makers ever intended that such a decision should ever be made. But even if they should so intend, and pass a statute accordingly, the statute would be void. It is not necessary to examine to see whether the defendants own the land in controversy or not. If they own it, of course they should recover. If they should have even a mere license from the government to go upon the land, their right thereto would be paramount to that of the plaintiff's rights, and they should recover. But. if the gov-*350eminent owns tbe land, as the plaintiff’s petition shows that it does, then the plaintiff has no sufficient interest in the subject-matter of the controversy to maintain this action. If the defendant is setting up an illegal claim to government land, it is for the government to object. The government ought to be able through its proper officers to protect its own rights and interests.
In the investigation of the question whether the Osage Ceded Lands are subject to pre-emption claims, we have not only had the benefit of the able arguments of counsel in this particular case, but we have also had the pleasure of examining the able arguments of Hon. S. O. Thacher, Hon. B. E. Curtis, and Hon. Wm. Lawrence, the opinion of the assistant attorney-general of the United States, Hon. W. H. Smith, and the decision of the Secretary of the Interior, Hon. Columbus Delano, upon the same question. Said arguments were made before the assistant attorney-general and the Secretary of the Interior; and it is the opinion of the assistant attorney-general, and the decision of the Secretary of the Interior, made after due consideration, that said Osage Ceded Lands are not subject to pre-emption claims.
The judgment of the court below is affirmed.
All the Justices concurring.