1. The grant made to Iowa by the Act of May 15, 1856, c. l8, 11
Stat. 9, to aid in the construction of a railroad from Davenport to
Council Bluffs, is
in praesenti, and, with certain
exceptions therein specified, it vested in the state the title to
every section of public land designated by odd numbers for six
miles in width on each side of the road when the line thereof
should be definitely fixed.
2. The act authorized the state, subject to the approval of the
Secretary of the Interior, to select, within the limit of fifteen
miles of the road, land in alternate sections equal in amount to
that which, within the six-mile limit, had been sold or otherwise
appropriated by the United States.
Quaere, does the right
to any particular section or part of section, beyond the six-mile
limit, vest in the state before the selection of it has been
reported to and approved by the proper officer?
3. After the lands had been duly certified to the state or to
the railroad company to which she transferred them, the legal title
thereto was subject to be defeated only by the United States should
there be a breach of any condition annexed to the grant, and it was
not divested by a change of the location of part of the line of
road authorized by the Act of June 2, 1864, c. 103, 13 Stat. 95,
although they are not situate within twenty miles of the relocated
line. Subsequent settlers could therefore acquire no right thereto
under the preemption or the homestead laws.
The facts are stated in the opinion of the Court.
Page 103 U. S. 740
MR. JUSTICE MILLER delivered the opinion of the Court.
Actions in the nature of ejectment were brought by the Chicago,
Rock Island, and Pacific Railroad Company against numerous persons
in different courts of the State of Iowa, and heard and decided
together by stipulation on appeals to the supreme court, where the
judgments of the lower courts in favor of the plaintiff were
affirmed. The defendants sued out this writ of error.
The plaintiff asserted title under the Act of Congress of May
15, 1856, c. 28, 11 Stat. 9, granting lands to the State of Iowa
for railroad purposes, and the counsel of the plaintiffs in error
correctly states in his brief that the only question presented by
the record is whether the railroad company has under that grant
acquired title to any lands within the old fifteen-mile limit of
the Mississippi and Missouri Railroad Company, certified to the
state under the grant by the Department of the Interior for the
benefit of that company, but which were left outside of the new
twenty-mile limit by a change of location of the old line, made by
the present company under the Act of Congress of June 2, 1864, c.
103, 13
id. 95, amendatory of that act.
The material facts on which the decision of this question
depends may be thus succinctly stated:
By the first act, Congress made a grant to the State of Iowa for
the purpose of aiding in the construction of four railroads across
the state from points on the Mississippi River to points on the
Missouri River. One of these was a road from Davenport to Council
Bluffs. The grant was of every alternate section of land designated
by odd numbers, for six sections in width, on each side of said
roads, and in case it should appear that the United States had,
when the lines or routes of said roads were definitely fixed, sold
any sections or parts of sections granted as aforesaid, or the
right of preemption had attached to the same, then the state by its
agent or agents might select other odd sections in lieu of those
thus deficient within a limit of fifteen miles on each side of said
roads.
The State of Iowa, by an Act of its legislature approved July
14, 1856, granted to the Mississippi and Missouri Railroad Company
the lands which were by the act of Congress
Page 103 U. S. 741
appropriated to the construction of the road from Davenport to
Council Bluffs. That company accepted the grant, and on the
eleventh day of September, 1856, filed in the General Land Office
at Washington a map showing the route which it had adopted for its
road, some unimportant corrections of which were made by another
map filed April 1, 1857.
On the 4th of September, 1858, the agent of the company and the
state reported to the General Land Office the selection of lands in
lieu of those which had been sold or to which the right of
preemption had attached, and on the 27th of December, 1858, the
lands thus selected, and those which were in place, were certified
to the state by the Commissioner of the General Land Office. These
lands in place and those selected and certified to the state under
the act of 1856 include all the lands in controversy in this
suit.
By the Act of June 2, 1864, Congress authorized a change of
location of the uncompleted part of this road so as to secure a
better and more expeditious line for connection with the Iowa
branch of the Union Pacific Railroad, and the plaintiff below,
which had succeeded to all the rights of the Mississippi and
Missouri Railroad Company, availed itself of the privilege thus
conferred, and so changed the route as to place it at some points
south of the fifteen-mile limits of the grant, as ascertained by
the first location, and the road was completed on this route to
Council Bluffs in 1869. After all this, the plaintiffs in error
settled upon the lands in controversy, which were within the limits
of the location made in 1856, and without the twenty-mile limits of
the amendatory act of 1864, which will be presently noticed, and
proceeded by the appropriate steps to assert rights under the
homestead and preemption laws of the United States. The Land
Department refused to recognize their right to the lands, but being
in possession, and sued therefor by the railroad company, they say
that the company has no title, because it lost whatever right it
had to the lands by the change of the location and because locating
the road as now completed does not bring these lands within the
limit of either the original or the amendatory act.
Two inquiries are thus suggested, namely: had the railroad
company acquired a title or a vested right to the lands in
controversy
Page 103 U. S. 742
prior to the act of 1864, and to the change of location?, and,
if it had, what was the effect of that change on its right to the
lands left by the change outside of the limits prescribed by both
acts?
The grant under the act of 1856 was, as has been often said, a
grant
in praesenti, and though exactly what this means has
been the subject of much controversy, we think its ascertainment is
not difficult. The only doubtful element of the problem is the
location of the road, which, by the terms of these grants, is
necessary to identify the sections granted on each side of it.
Whenever that is done so that a surveyor or the officers of the
Land Department can protract the line of the route on the maps of
the public lands within the limit of the grants, the identity of
the lands granted is mathematically ascertained, and the title
relates back to the date of the grant.
So far as lands are found in place when this is done not coming
within the exceptions as sold or held under preemption, the title,
or at least the right to this land in place, is at once vested in
the state or in the company to which the state has granted it, and
the means of ascertaining precisely what lands have passed by the
grant is to be found in the map of the line of the road, which is
filed in the General Land Office under provisions of the statute.
As regards the lands to be selected in lieu of those lost by sale
or otherwise, it may be that no valid right accrues to any
particular section or part of a section until the selection is made
and reported to the land office, and possibly not then until the
selection is approved by the proper officer.
None of these difficulties arises in the present case. The
location was made and the map filed in the land office, the
selection of lieu lands was made and approved, and the entire list
regularly certified to the State of Iowa as early as December,
1858, and with this certificate the last act of the United States
which could in any event be held necessary to passing the title was
performed, and either the State of Iowa or the railroad company --
it is immaterial which for the purposes of this suit -- had become
invested with the full legal title to the lands so certified.
In this condition of affairs, the Mississippi and Missouri
Railroad
Page 103 U. S. 743
Company executed, to obtain money to build its road, a mortgage
of its road and franchises, which also included the lands granted
by Congress to the state and by the state to that company. The road
commenced at Davenport, on the Missouri, and was constructed
westwardly one hundred and thirty miles when the act of 1864 was
passed. In 1866, the mortgage was foreclosed, and the Chicago, Rock
Island, and Pacific Railroad Company, under sale at the foreclosure
proceeding, and by subsequent consolidation, became the owner of
the road, the franchises, and the lands of the former company.
The entire legal title, therefore, to their land had passed, for
valuable consideration, to this company.
Did their construction of the road on the new line annul or
defeat, without further action on the part of the United States,
the title thus vested? It would have been competent for Congress to
have made it a condition of the change of location that the lands
within the six-mile or the fifteen-mile limit of the old line, and
not within the twenty-mile limit of the new line, should revert to
the United States, so far as the title of the company was
concerned. But it did not make any such condition. If no law had
been passed authorizing the change of route, it is possible the
government might have reclaimed these lands as forfeited by reason
of the change, to which it had not consented. But Congress did
consent to the change without any declaration affecting the title
already vested in the company.
The second section of the act of 1864 provided for a grant of
land on each side of the new location, and for lieu lands when
those could not be found to an amount equal to that granted by the
original act of 1856, and it extended the limit for selecting lieu
lands to twenty instead of fifteen miles.
It is argued that the lands thus granted were intended as a
substitute for those accruing to the company under the first
location, and that the latter necessarily reverted to the grantor;
that it was the policy of the government that the lands granted
should be alongside of the road, and that those retained by the
government should thereby be enhanced in value. We are not prepared
to deny that if the railroad company had accepted or received lands
under the act of 1864, and the case was unembarrassed
Page 103 U. S. 744
by the rights of subsequent purchasers or mortgagees, the United
States could, by a judicial proceeding, enforce the principle that
an exchange of lands was intended.
But this would arise from no express language of the act of
Congress or agreement with the company, but as a just and proper
inference from the whole transaction.
There is, however, no evidence that the company ever received
any land under the act of 1864 or asserted a claim thereto. It
appears affirmatively that it never filed in the General Land
Office a map of its new route until 1870, a year after the road was
completed, and it is fair to presume that if it intended to assert
a claim to land under the changed location, it would have filed its
map when the change was made or determined on. We do not think the
act can be construed to forfeit the lands to which they had title
when they claimed none under the act of 1864.
Another point equally fatal to the plaintiffs in error is that
the assertion of a right by the United States to the lands in
controversy was wholly a matter between the government and the
railroad company or its grantors. The legal title remains where it
was placed before the act of 1864. If the government desires to be
reinvested with it, it must be done by some judicial proceeding, or
by some act of the government asserting its right. It does not lie
in the mouth of everyone who chooses to settle on these lands to
set up a title which the government itself can only assert by some
direct proceeding.
These plaintiffs had no right to stir up a litigation which the
parties interested did not desire to be started. It might be
otherwise if the legal title was in the government. Then the land
would be subject to homestead or preemption rights. But the legal
title is not in the government, and as we have already shown, the
equity is more than doubtful.
Schulenberg v.
Harriman, 21 Wall. 44;
Tucker v.
Ferguson, 22 Wall. 527.
Judgment affirmed.
MR. JUSTICE BRADLEY dissented.