The land in controversy in this case is within the place limits
of the road of the plaintiff in error, and was subject to the full
control of Congress at the time of the grant made by section 3 of
the Act of May 5, 1854, c. 80, 13, Stat. 66, and it passed by
operation of that grant notwithstanding the fact that it was
withdrawn by the Land Department in 1856 and 1859 in order to
satisfy the grant made by the Act of June 3, 1856, c. 43, 11 Stat.
20.
Every act of Congress making a grant of public land is to be
treated both
Page 159 U. S. 47
as a law and a grant, and the intent of Congress, when
ascertained, is to control in the interpretation of the law.
When Congress makes a grant of a specific number of sections of
public land in aid of any work of internal improvement, it must be
assumed that it intends the beneficiary to receive such amount of
land, and when it prescribes that those lands shall be alternate
sections along the line of the improvement, it is equally clear
that the intent is that, if possible, the beneficiary shall receive
those particular sections.
The courts are not concluded by a decision of the Land
Department on a question of law.
The facts set up by the defendant as an estoppel suggest the
rule
"de minimis non curat lex."
This is an action of ejectment commenced on April 5, 1890, by
the Wisconsin Central Railroad Company against William O. Forsythe
in the Circuit Court of the United States for the Western District
of Wisconsin, to recover possession of the southwest quarter of
section 11, township 47 north, of range 4 west in the County of
Ashland, Wisconsin. At the trial on April 16, 1891, the court
instructed the jury to render a verdict for the defendant. Judgment
having been entered on such verdict, the railroad company brought
the case here on this writ of error.
The title of the plaintiff rests on these facts: by the Act of
June 3, 1856, c. 43, 11 Stat. 20, the United States made a grant of
land to the State of Wisconsin. The first and fourth sections of
the act making the grant are as follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled that there
be, and is hereby, granted to the State of Wisconsin for the
purpose of aiding in the construction of a railroad from Madison or
Columbus by the way of Portage City to the St. Croix River or Lake
between townships twenty-five and thirty-one, and from thence to
the west end of Lake Superior, and to Bayfield, and also from Fond
du Lac on Lake Winnebago northerly to the state line, every
alternate section of land designated by odd numbers for six
sections in width on each side of said roads respectively. But in
case it shall appear that the United States have, when the lines or
routes of said roads are definitely fixed, sold any sections or
parts thereof granted as aforesaid, or that the right of
preemption
Page 159 U. S. 48
has attached to the same, then it shall be lawful for any agent
or agents, to be appointed by the governor of said state, to
select, subject to the approval of the Secretary of the Interior,
from the lands of the United States nearest to the tier of sections
above specified, so much land in alternate sections or parts of
sections as shall be equal to such lands as the United States have
sold or otherwise appropriated, or to which the right of preemption
has attached as aforesaid, which lands (thus selected in lieu of
those sold to which preemption has attached as aforesaid, together
with the sections and parts of sections designated by odd numbers
as aforesaid and appropriated as aforesaid) shall be held by the
State of Wisconsin for the use and purpose aforesaid,
provided that the lands to be so located shall in no case
be further than fifteen miles from the line of the roads in each
case, and selected for and on account of said roads;
provided
further that the lands hereby granted shall be exclusively
applied in the construction of that road for which it was granted
and selected, and shall be disposed of only as the work progresses,
and the same shall be applied to no other purpose whatsoever;
and provided further that any and all lands reserved to
the United States by any act of Congress for the purpose of aiding
in any object of internal improvement, or in any manner for any
purpose whatsoever, be, and the same are hereby, reserved to the
United States from the operation of this act except so far as it
may be found necessary to locate the route of said railroads
through such reserved lands, in which case the right of way only
shall be granted subject to the approval of the President of the
United States."
"SEC. 4.
And be it further enacted that the lands
hereby granted to said state shall be disposed of by said state
only in manner following, that is to say, that a quantity of land
not exceeding one hundred and twenty sections, and included within
a continuous length of twenty miles of roads, respectively, may be
sold,
Page 159 U. S. 49
and when the governor of said state shall certify to the
Secretary of the Interior that any twenty continuous miles of
either of said roads are completed, then another like quantity of
land hereby granted may be sold, and so from time to time until
said roads are completed, and if said roads are not completed
within ten years, no further sales shall be made, and the land
unsold shall revert to the United States."
We are concerned in this case with only the first of the two
lines of road named, and shall therefore treat the act as referring
to it alone. On June 12, 1856, a withdrawal of the lands deemed
necessary for the satisfaction of this grant was made by the Land
Department. The grant was accepted by the State of Wisconsin on
October 8, 1856, Laws of Wisconsin, 1856, c. 118, p. 137, and on
October 11, 1856, the state conferred the benefit of it upon the La
Crosse and Milwaukee Railroad Company, Laws of Wisconsin, 1856, c.
122, p. 217. Under authority of an Act of date March 5, 1857, Laws
of Wisconsin, 1857, c. 230, p. 530, the La Crosse and Milwaukee
Railroad Company conveyed to the St. Croix and Lake Superior
Railroad Company so much of the grant as was north of the St. Croix
River or Lake, and was to aid in constructing the road from that
point to the west end of Lake Superior, and to Bayfield. On March
2, 1858, the St. Croix and Lake Superior Railroad Company filed in
the Land Department at Washington its map of definite location of
the road from the St. Croix River or Lake to the west end of Lake
Superior, and on July 17, 1858, a like map of definite location of
the branch to Bayfield. On March 1, 1859, the Commissioner of the
General Land Office forwarded to the local land officers a plat
showing these locations, together with the six and fifteen-mile
limits thereof, and directed them to continue to reserve all vacant
tracts outside of the six and within the fifteen-mile limits from
sale or location for any purpose whatever. In the letter conveying
this direction, it was stated that the agent of the state had
selected all the vacant lands between the six and fifteen-mile
limits in lieu of the lands within the six-mile limits already sold
and preempted.
Nothing was done towards the construction of the road and branch
from the St. Croix River or Lake northward until after the passage
by Congress of the Act of May 5, 1864, 13
Page 159 U. S. 50
Stat. 66. The first, third, fifth, and sixth sections of this
act are as follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that there
be, and is hereby, granted to the State of Wisconsin, for the
purpose of aiding in the construction of a railroad from a point on
the St. Croix River or Lake, between townships twenty-five and
thirty-one, to the west end of Lake Superior, and from some point
on the line of said railroad, to be selected by said state, to
Bayfield, every alternate section of public land designated by odd
numbers, for ten sections in width on each side of said road,
deducting any and all lands that may have been granted to the State
of Wisconsin for the same purpose, by the Act of Congress of June
three, eighteen hundred and fifty-six, upon the same terms and
conditions as are contained in the act granting lands to the State
of Wisconsin to aid in the construction of railroads in said state,
approved June three, eighteen hundred and fifty-six. But in case it
shall appear that the United States have, when the line or route of
said road is definitely fixed, sold, reserved, or otherwise
disposed of, any sections or parts thereof, granted as aforesaid,
or that the right of preemption or homestead has attached to the
same, then it shall be lawful for any agent or agents, to be
appointed by said company, to select, subject to the approval of
the Secretary of the Interior, from the public lands of the United
States nearest to the tier of sections above specified, as much
land in alternate sections or parts of sections as shall be equal
to such lands as the United States have sold or otherwise
appropriated, or to which the right of preemption or homestead has
attached as aforesaid, which lands (thus selected in lieu of those
sold, and to which preemption or homestead right has attached as
aforesaid, together with sections and parts of sections designated
by odd numbers as aforesaid, and appropriated as aforesaid) shall
be held by said state for the use and purpose aforesaid,
provided that the lands to be so located shall in no case
be further than twenty miles from the line of the said roads, nor
shall such selection or location be made in lieu of lands received
under the said
Page 159 U. S. 51
grant of June 3, 1856, but such selection and location may be
made for the benefit of said state, and for the purpose aforesaid,
to supply any deficiency under the said grant of June third,
eighteen hundred and fifty-six, should any such deficiency
exist."
"SEC. 3.
And be it further enacted that there be, and
is hereby, granted to the State of Wisconsin, for the purpose of
aiding in the construction of a railroad from Portage City, Berlin,
Doty's Island, or Fond du Lac, as said state may determine, in a
northwestern direction, to Bayfield, and thence to Superior on Lake
Superior, every alternate section of public land, designated by odd
numbers, for ten sections in width on each side of said road, upon
the same terms and conditions as are contained in the act granting
lands to said state to aid in the construction of railroads in said
state, approved June three, eighteen hundred and fifty-six. But in
case it shall appear that the United States have, when the line or
route of said road is definitely fixed, sold, reserved or otherwise
disposed of any sections or parts thereof, granted as aforesaid, or
that the right of preemption or homestead has attached to the same,
that it shall be lawful for any agent or agents of said state,
appointed by the governor thereof, to select, subject to the
approval of the Secretary of the Interior, from the lands of the
United States nearest to the tier of sections above specified, as
much public land in alternate sections or parts of sections as
shall be equal to such lands as the United States have sold or
otherwise appropriated, or to which the right of preemption or
homestead has attached as aforesaid, which lands (thus selected in
lieu of those sold and to which the right of preemption or
homestead has attached as aforesaid, together with sections and
parts of sections designated by odd numbers as aforesaid, and
appropriated as aforesaid) shall be held by said state, or by the
company to which she may transfer the same, for the use and purpose
aforesaid,
provided that the lands to be so located shall
in no case be further than twenty miles from the line of said
road."
"SEC. 5.
And be it further enacted that the time fixed
and limited for the completion of said roads in the act aforesaid
of
Page 159 U. S. 52
June three, eighteen hundred and fifty-six, be, and the same is
hereby, extended to a period of five years from and after the
passage of this act."
"SEC. 6.
And be it further enacted that any and all
lands reserved to the United States by any act of Congress for the
purpose of aiding in any object of internal improvement, or in any
manner for any purpose whatsoever, and all mineral lands be, and
the same are hereby, reserved and excluded from the operation of
this act except so far as it may be found necessary to locate the
route of such railroads through such reserved lands, in which case
the right of way only shall be granted subject to the approval of
the President of the United States."
On March 20, 1865, Wisconsin conferred upon the St. Croix and
Lake Superior Railroad Company the full benefit of the grant made
by the first section of this act. Laws of Wisconsin, 1865, c. 175,
p. 154. On April 22, 1865, the St. Croix and Lake Superior Railroad
Company accepted this grant, and at the same time adopted the
definite location theretofore made, as shown by the maps on file in
the land office at Washington. In 1869, the Legislature of
Wisconsin passed an act, Laws 1869, c. 90, p. 85, repealing said
chapter 175 of the Laws of 1865, and in 1874, Laws 1874, c. 126, p.
186, conferred the benefit of grant on the North Wisconsin Railroad
Company, which company afterwards, by consolidation, became merged
in the Chicago, St. Paul, Minneapolis and Omaha Railroad Company
(hereafter called the "Omaha Company.") This company constructed,
and now owns and operates, the road from St. Croix River or Lake to
Superior, on Lake Superior, and also the branch to Bayfield.
The grant made by section 3 of the act of Congress of 1864 was
transferred by the state to the Portage, Winnebago, and Lake
Superior Railroad Company, whose name was afterwards changed to
that of the Wisconsin Central Railroad Company, the plaintiff
herein. Laws of Wisconsin, 1866, c. 314, c. 362, p. 869; 1869, c.
257, p. 578; 1871, c. 27, p. 42. The map of definite location of
the road thus aided was filed on November 10, 1869. Prior to
December 31, 1876, the plaintiff had constructed, and now owns and
operates, the road as far north
Page 159 U. S. 53
as Ashland, on Lake Superior. The Bayfield branch of the Omaha
road also touches Ashland, and the land in controversy is within
ten miles of the plaintiff's road, and between ten and fifteen
miles of the Omaha road.
On February 12, 1884, the Omaha Company and the plaintiff, in
consequence of the overlapping of their grants at and near the City
of Ashland, entered into an agreement which provided, among other
things:
"The Omaha Company consents that the Central Company [plaintiff]
shall take patents for all lands in the overlap lying east of the
easterly ten-mile limit of the Bayfield Branch of the Omaha
Company, and north and east of the westerly ten-mile limit of the
Central Company, and agrees to assist the Central Company to get
such patents from the State of Wisconsin."
On February 25, 1884, the State of Wisconsin issued to the
plaintiff a patent for a large quantity of land, including therein
the tract in controversy, and on February 19, 1887, the Omaha
Company executed a further instrument of release to the plaintiff,
by which it surrendered and waived all right of whatsoever nature
to any lands east of a line therein described, which was so drawn
as to include the lands in dispute. On July 2, 1887, the plaintiff
filed in the land office at Washington lists of land, including the
land in dispute, claiming them as part of its grant. The
Commissioner of the General Land Office rejected these lists,
holding that the plaintiff had no title to the lands, and on appeal
the Secretary of the Interior, on January 24, 1890, affirmed this
decision. After this, the defendant took proceedings to enter the
land under the laws of the United States, went into possession,
built a residence, and made certain improvements at an expense of
more than $200.
Page 159 U. S. 54
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The land in controversy is within the place limits of the
plaintiff's road. Confessedly, therefore, the title passed to the
plaintiff, providing the land was subject to the operation of the
grant made by the third section of the act of 1864. The contention
is that it was not subject thereto, by reason of the fact that it
was withdrawn by the Land Department in 1856 and 1859 in order to
satisfy the grant made by the act of 1856. It was within the
indemnity, and not within the place, limits of the grant in aid of
the Bayfield road.
It is curious to note that in the communication made in 1859 by
the Land Department to the local land officers, it is stated that
all the unsold lands within the indemnity limits along the line of
that road had been selected by the agent of the state in lieu of
the lands sold and preempted within the place limits. If this
selection was in fact made, and was needed to satisfy the
deficiency in the amount of lands within the place limits, and was
approved by the Land Department, it would avoid the necessity for
further inquiry; for whatever of right there was in the St. Croix
and Lake Superior Railroad Company passed to the Omaha Company, and
was by it, under the agreements of February 12, 1884, and February
19, 1887, transferred to the plaintiff, and this was long anterior
to any claim on the part of the defendant.
But assuming, in the absence of any direct evidence thereof,
that no such selection was made, we pass to an inquiry as to the
respective rights of the parties. The title of the plaintiff, as we
have seen, can only be defeated by reason of the land's not being
within the scope of the grant made by the third section of the act
of 1864, and it is only excluded therefrom by the grant of 1856 and
the reservation made in pursuance thereof. The reliance of
defendant is on the long established rule, often affirmed by this
Court and recognized in section 6 of the act of 1864, to the effect
that a grant by Congress does not operate upon lands theretofore
reserved for any purpose whatsoever. There can be no doubt as to
this rule or as to
Page 159 U. S. 55
the fact that lands withdrawn from sale by the Land Department
are considered as reserved within its terms.
But it is a rule of equal if not higher significance that every
act of Congress making a grant is to be treated both as a law and a
grant, and the intent of Congress, when ascertained, is to control
in the interpretation of the law.
"The solution of these questions depends, of course, upon the
construction given to the acts making the grants, and they are to
receive such a construction as will carry out the intent of
Congress, however difficult it might be to give full effect to the
language used if the grants were by instruments of private
conveyance. To ascertain that intent, we must look to the condition
of the country when the acts were passed, we well as to the purpose
declared on their face, and read all parts of them together."
St. Peter Railroad v. Barney, 113 U.
S. 618,
113 U. S. 625.
See also Missouri, Kansas & Texas Railway v. Kansas Pacific
Railway, 97 U. S. 491,
97 U. S. 497;
United States v. Southern Pacific Railroad, 146 U.
S. 570,
146 U. S. 597;
United States v. Denver & Rio Grande Railway,
[crs1]
150 U.S.
1.
In order to determine the intent of Congress, we must look at
the situation at the time the act of 1864 was passed. The alternate
sections within the six and fifteen-mile limits of the Bayfield
road were not granted by the act of 1856. They were simply
withdrawn from preemption and sale by the action of the Land
Department in order that the beneficiary of the grant might, in
case the full amount of lands granted was not found within the
place limits, select therefrom enough to supply the deficiency. We
do not mean that they were not reserved lands; on the contrary, as
stated above, they were. Such is the uniform ruling of this Court
in interpreting like action on the part of the Land Department.
Nevertheless, not being granted lands, they were still within the
disposing power of Congress. There would be no question of the
title of one to whom Congress had in terms granted them. "Until
selection was made, the title remained in the government, subject
to its disposal at its pleasure."
Kansas Pacific Railroad v.
Atchison &c. Railroad, 112 U. S. 414,
112 U. S. 421;
St. Paul & Sioux City Railroad v. Winona & St. Peter
Railroad, 112 U. S. 720,
112 U. S.
732;
Page 159 U. S. 56
United States v. McLaughlin, 127 U.
S. 428,
127 U. S. 450,
127 U. S. 455;
Wisconsin Central Railroad v. Price County, 133 U.
S. 496,
133 U. S. 511;
United States v. Missouri, Kansas & Texas Railway,
141 U. S. 358,
141 U. S.
374.
The land was therefore subject to the full control of Congress
at the time of the passage of the act of 1864. What did Congress
intend by that act? It had in 1856 granted to the State of
Wisconsin six sections per mile to aid it in the construction of a
road from Madison or Columbus, by way of Portage City, to the St.
Croix River or Lake, and thence to the west end of Lake Superior,
and to Bayfield, with a proviso that if the road was not completed
within ten years, the unsold lands should revert to the United
States. Wisconsin had accepted this grant, and thus impliedly
undertaken to construct the road. It made the La Crosse and
Milwaukee Railroad Company the beneficiary of this grant.
Subsequently, with the assent of the state, that company had
transferred to the St. Croix and Lake Superior Railroad Company so
much of the grant as was designed to aid in the construction of
that part of the road from the St. Croix River or Lake northward to
Lake Superior, with the branch to Bayfield. Eight years had passed,
and only two years more remained until the expiration of the time
fixed for the completion of the road. Only a short distance had in
fact been built, to-wit, sixty-one miles from Portage to Tomah, and
that by the St. Croix and Milwaukee Company in the spring of 1858.
It was evident that the inducement of six sections per mile had not
been sufficient to secure the construction of the road in the
comparatively uninhabited portions in the northwestern part of the
state, and so Congress determined to enlarge its grant in order to
secure the accomplishment of the desired en. At the same time, it
perceived that the public interests required an additional road
running through the central portion of the state northward to the
two termini on Lake Superior named for the road from St. Croix Lake
or River.
And so it passed the act of 1864. This made a grant to the same
grantee, to-wit, the State of Wisconsin, but expressed the terms
and purposes in three separate sections.
Page 159 U. S. 57
Congress evidently knew that at the time two companies had been
named by the State of Wisconsin as the parties to construct the
road provided for by the act of 1856. So, in the first section, it
made a grant of ten sections per mile to aid in the construction of
a road from St. Croix River or Lake to the west end of Lake
Superior, with a branch to Bayfield; in the second, a grant, in
substantially like terms, for a road from Tomah to the St. Croix
River or Lake, and in the third, a grant, also of ten sections per
mile, to aid in the construction of a road from Portage City,
Berlin, Doty's Island, or Fond du Lac, as the state should
determine, in a northwesterly direction, to Bayfield, and then to
Superior, on Lake Superior. In each of these three sections, it
named the State of Wisconsin as the grantee. Although it knew that
the state had made two separate companies the beneficiaries of the
act of 1856, it made no grant to those companies. It dealt in all
three sections with the state, relying upon the state as the party
to see that the roads were completed, and to use its own judgment
as to the manner of securing such construction. The act of 1864 was
therefore a mere enlargement of the act of 1856, was made to the
same grantee, was
in pari materia, and is to be construed
accordingly. It is not to be treated as an independent grant to a
different party, and therefore liable to come in conflict with the
rights of the first grantee.
For whose benefit was the withdrawal of the lands within the
indemnity limits of the Bayfield road made? Obviously, as often
declared, for the benefit of the grantee. It is as though the
United States had said to the grantee:
"We do not know whether, along the line of road, when you
finally locate it, there will be six alternate sections free from
any preemption or other claim, and therefore so situated that you
may take title thereto, and so we will hold from sale or disposal
to anyone else an additional territory of nine miles on either
side, that within those nine miles you may select whatever lands
may be necessary to make the full quota of six sections per
mile."
When Congress, by a subsequent act, makes a new and absolute
grant to the same
Page 159 U. S. 58
grantee of lands thus held by the government for the benefit of
such grantee, upon what reasoning can it be said that such grant
does not operate upon those lands?
Kansas City & Railroad v. Attorney General,
118 U. S. 682, is
in point. On July 26, 1866, 14 Stat. 289, Congress passed an act
granting to the State of Kansas five alternate sections per mile to
aid the Union Pacific Railroad Company, Southern Branch, in
constructing a railroad from Fort Riley, upon the valley of the
Neosho River, to the southern line of the State of Kansas. This
corporation (its name having been changed to that of the Missouri,
Kansas and Texas Railroad Company) constructed the road, and
received patents for the land. The object of that suit was to
vacate and declare void these patents, and the principal ground
relied on for maintaining it was that, by an Act of March 3, 1863,
12 Stat. 772, and a supplemental Act of July 1, 1864, 13 Stat. 339,
the lands had been appropriated to aid another company in building
a road along the same line. The act of 1866 had the ordinary
reservation clause, similar to that found in section 6 of the act
of 1864, before us, and the contention was that the effect of this
reserving clause was to except all the lands covered by the grants
of 1863 and 1864 from the operation of the grant of 1866. It was
conceded that if the intent of Congress was to aid in the
construction of to separate lines of road, the contention would
have to be sustained, the court saying:
"As the lands granted by the prior acts of 1863 and 1864 had, by
the act of the Legislature of Kansas, been granted to the Atchison,
Topeka and Santa Fe Railroad Company, a then-existing corporation
of that state, for the purpose of building a road, with the same
general description as to its course down the valley of the Neosho
River, which might have run through these same lands if it had been
built by the latter company, it is argued with great earnestness
that these lands were necessarily reserved, under this clause of
the act of 1866, from the grant as being reserved by the authority
of Congress for the purpose of aiding in that object of internal
improvement. If the A. T. and S.F. R. Co. had built a line of road
along the same general course, and through the same lands, twenty
miles
Page 159 U. S. 59
in width, that the M., K. and T. R. Co. has occupied with its
road, and asserted a claim to these lands or to any of them, the
argument would be almost irresistible."
But it was held, in view of certain arrangements made between
the two companies (not then ratified by the State of Kansas, but
expected to be, and in fact subsequently so ratified) that it was
the intent of Congress simply to aid in the construction of one
road, and that the Missouri, Kansas, and Texas Railroad Company was
entitled to the full benefit of the three acts. The Court thus
looked beyond the letter of the statutes to the intent of Congress,
and, upon that intent, denied what would otherwise be a technical
ground for relief.
But we need not go outside of this act of 1864 for a clear
disclosure of a like intent on the part of Congress. The act of
1856 granted six sections per mile to aid in the construction of a
road from St. Croix River or Lake to Bayfield. The lands between
the six and fifteen-mile limits of the line of that road, as
located, were withdrawn by the action of the Land Department. They
were thus reserved lands. Now the first section of the act of 1864
granted ten alternate sections to aid in the construction of a road
along the same line. Can there be any doubt that this grant of four
additional sections operated upon the land thus reserved between
the six and fifteen-mile limits? Yet, if the act of 1864 is to be
taken as making a grant entirely independent from that of 1856, it
could not be enforced as to lands between the six and fifteen-mile
limits reserved under that prior grant. It will be noticed that the
act of 1864 makes no grant directly to the St. Croix and Lake
Superior Railroad Company, but only to the State of Wisconsin, and
the latter could, if it had seen fit, have made some other company
the beneficiary, and yet can there be any doubt that Congress
intended by this first section of the act of 1864 merely an
enlargement of the grant made by the act of 1856 from six to ten
sections, and also intended that, as to the four extra sections,
the grant should operate upon lands reserved between the six and
fifteen-mile limits? If this be true as to one part of the grant of
1864, why is it not equally true as to another portion of the
grant, all of it being to the same grantee?
Page 159 U. S. 60
When Congress makes a grant of a specific number of sections in
aid of any work of internal improvement, it must be assumed that it
intends the beneficiary to receive such amount of land, and when it
prescribes that those lands shall be alternate sections along the
line of the improvement, it is equally clear that the intent is
that, if possible, the beneficiary shall receive those particular
sections. So far as railroads are concerned, it is the thought not
merely that the general welfare will be subserved by the
construction of the road along the lines indicated, but further
that such grant shall not be attended with any pecuniary loss to
the United States, for the universal rule is to double the price of
even sections within the granted limits. The expectation is that
the company receiving the odd sections will take pains to dispose
of them to settlers, and thus, by their settlement and improvement,
increase the value of the even sections adjoining, and so justify
the added price. To fully realize this expected benefit, it is
essential that the lands taken by the company shall be as near to
the line of the road as possible, and so, while selection of remote
lands is permitted, it is only when and because there is a
necessity of such selection to make good the amount of the grant.
Obviously, therefore, an act must be construed to realize so far as
is possible this intent, and to accomplish the desired result.
Still again it must be noticed that the State of Wisconsin, the
grantee named in both the acts of 1856 and 1864, the plaintiff
within whose place limits the land in controversy is situated, and
the Omaha Company, within whose indemnity limits it is, all three
long since agreed that the land passed by this grant and dealt with
it as belonging to the plaintiff. Both roads have been constructed,
and, undoubtedly largely through the instrumentality of their
construction, population has poured into that part of the state,
and the value of all real estate so increased that this particular
tract is found by the jury to be worth $8,000. After years have
passed and all the parties interested in the matter, other than the
United States, have treated it as the property of the plaintiff,
the defendant, relying upon a technical construction of the
statutes,
Page 159 U. S. 61
seeks to enter the tract, and thus, for no more than the paltry
sum of $400 -- $2.50 per acre being the double minimum price of
land within the limits of railroad grants -- to obtain title to
property worth, as we have seen at least $8,000. The railroad
company, under this construction, loses the land it supposed it was
entitled to, which it has treated as its own and has helped to make
valuable; the government does not receive the $8,000, nor, indeed,
anything, if the land be entered under the homestead laws; but a
stranger comes in, who has done nothing to create that value, and
appropriates it to his own benefit. The iniquity of such a result
is at least suggestive.
But further it is urged that this question of title has been
determined in the Land Department adversely to the claim of the
plaintiff. This is doubtless true, but it was so determined not
upon any question of fact, but upon a construction of the law, and
such matter, as we have repeatedly held, is not concluded by the
decision of the Land Department.
Johnson
v. Towsley, 13 Wall. 73;
Shepley v. Cowan,
91 U. S. 330;
Quinby v. Conlan, 104 U. S. 420;
Doolan v. Carr, 125 U. S. 618,
125 U. S. 624;
Lake Superior Ship Canal &c. Co. v. Cunningham,
155 U. S. 354.
Defendant also claims an estoppel by reason of these facts set
up as a third defense in his answer, the truth of which was, on the
trial, admitted by the plaintiff. The final decision of the
secretary adversely to the claim of the plaintiff was on or about
the 10th day of January, 1890. (The testimony in this case shows
that it was made on January 24, 1890.) Subsequent to that decision,
the defendant entered upon the premises, built a residence, and
made other improvements at a cost of more than $200. The plaintiff
knew of his possession and of the making of such improvements, but
took no action until the commencement of this suit, on April 9,
1890. It seems to us that the claim of an estoppel can hardly be
seriously made. The plaintiff had been contesting for these lands
in the Land Department for a series of years. Sometime after the
final decision therein, the defendant enters upon the land and
commences making improvements, and in making such improvements
Page 159 U. S. 62
expends the paltry sum of $200, and the plaintiff fails to file
a complaint in ejectment for two months and a half after the
decision of the Land Department, and perhaps nearly that time after
the defendant had entered into possession. Surely the defendant had
no reason to believe that the plaintiff had abandoned its claim to
the land. Both the time of plaintiff's delay and the amount of its
expenditures suggest the rule
de minimis non curat lex.
The title of $8,000 worth of land is not lost in such a way.
For these reasons, we are of the opinion that the circuit court
erred in its decision, and its judgment is therefore
Reversed, and a new trial ordered.
THE CHIEF JUSTICE took no part in the consideration and decision
of this case.
MR. JUSTICE HARLAN dissented.
