The eastern terminus of the Northern Pacific Railroad, which was
constructed under the powers conferred upon that railroad company
by the Act of July 2, 1864, c. 217, 13 Stat. 365, was at Ashland in
Wisconsin, and that company acquired a right of way over public
lands in Wisconsin, including the land in question in this
case.
Page 177 U. S. 422
In the Superior Court of Douglas County, Wisconsin, in November,
1896, Andrew Doherty filed a petition asking for the appointment of
commissioners to appraise certain real estate taken by the Northern
Pacific Railway Company for a portion of its line passing through
property alleged to belong to the petitioner.
The petition alleged that Doherty was and in fee simple of the
north one-half of the southwest quarter of section 4, township 47,
range 11 west, in Douglas County, Wisconsin; that the Northern
Pacific Railroad Company was a corporation duly authorized by the
laws of the United States to construct and maintain a line of
railway from a point on Lake Superior, in the States of Wisconsin
or Minnesota, to some point on Puget Sound, in the State of
Washington; that sometime during the year 1883, the said company
had unlawfully laid its railroad track upon a portion of
petitioner's land and had unlawfully entered upon and appropriated
the same, without the consent or authority of petitioner, and had
been in possession thereof ever since until about August 31, 1896;
that, on or about the last-mentioned date, all the property,
effects, rights, and franchises of the Northern Pacific Railroad
Company had been transferred and sold to and purchased by the
Northern Pacific Railway Company, and said railroad has ever since
been operated and owned by the said the Northern Pacific Railway
Company, which the petition alleged to be a domestic corporation,
duly authorized by its charter and the laws of the State of
Wisconsin to maintain and operate neither the said Northern Pacific
Railroad neither the said Northern Pacific Railroad Company, nor
its successor, the Northern Pacific Railway Company, has acquired
title to said land, or made any attempt to acquire title thereto by
purchase, eminent domain, or otherwise. The petition further
alleged that the value of the land so taken and the damages
occasioned by the taking thereof were less than $5,000,000 and more
than $100,000. Wherefore an order was prayed that commissioners be
appointed to ascertain and appraise the compensation to be made,
etc.
Page 177 U. S. 423
To this petition the Northern Pacific Railway Company made
answer asserting title by virtue of the grant of right of way by
section 2 of the Act of Congress of July 2, 1864, to the Northern
Pacific Railroad Company, and of the purchase of the interest of
the last-named company, etc.
The essential facts in the case were settled by a stipulation in
writing, substantially as follows:
"On July 2, 1864, the land in question was public land of the
United States. On November 8, 1882, the petitioner Doherty made a
homestead entry thereof, and thereafter complied with the homestead
laws and received a patent from the United States purporting to
convey the lands February 6, 1890. In December, 1883, the Northern
Pacific Railroad Company took possession of the strip in
controversy, and constructed a railroad upon it, and remained in
possession, operating the railroad, until August 31, 1896, when all
the property, rights, and franchises of said railroad company were
sold to the appellant, the Northern Pacific Railway Company, a
Wisconsin corporation, which is duly organized to operate said
railroad, and has occupied said strip for railroad purposes. The
Northern Pacific Railroad Company, of which the appellant is the
successor in interest, was organized by and obtained its rights
under an Act of Congress approved July 2, 1864, and entitled"
"An Act Granting Lands to Aid in the Construction of a Railroad
and Telegraph Line, from Lake Superior to Puget Sound on the
Pacific Coast by the Northern Route."
"By the first section of this act, a corporation created thereby
was authorized to lay out and construct a continuous railroad and
telegraph line, beginning at a point on Lake Superior in the State
of Minnesota or Wisconsin; thence westerly upon the most eligible
route as shall be determined by said company within the United
States and north of the forty-fifth degree of latitude to some
point on Puget Sound. By the second and third sections of the same
act, the right of way through the public lands of the United States
was granted to said railroad company, its successors, and assigns,
for the construction of the line, and it was also provided that if
its route should be found to be upon the same general line as the
route of another railroad which
Page 177 U. S. 424
owned a previous land grant from the United States, the amount
of said previous land grant should be deducted from the amount
granted by this act, provided that the railroad owning the previous
grant might assign its interest to the Northern Pacific Railroad
Company, or might consolidate, confederate, and associate with said
company upon the terms named in the first section of the act. The
lands granted to the Northern Pacific Railroad Company by the act
amounted to ten alternate sections per mile on each side of the
line within the states, and twenty alternate sections in the
territories, with a ten-mile indemnity limit, and by resolution of
Congress, May 31, 1870, an additional indemnity belt ten miles in
width was created on each side of the line. This act was accepted
by the company within the time required by law. The act also
required the company to procure legislative consent of the states
through which it was to run before its construction, and in the
year 1865, the Legislatures of Minnesota and Wisconsin gave such
consent. The Minnesota act, providing that if the eastern terminus
of the road should be located east of the eastern boundary of
Minnesota, then that the company should construct or cause to be
constructed a railroad from its main line to the navigable waters
of Lake Superior at some point within the State of Minnesota."
"In 1870, the company located its general route from the mouth
of the Montreal River in Wisconsin, across Wisconsin and Minnesota
to a point on the Red River of the North near Fargo, and
transmitted a map showing this location August 13, 1870, to the
Secretary of the Interior. This map showed the proposed general
route to commence at the mouth of the Montreal River, thence a
little south of west upon a direct line to a point directly south
of and about six miles distant from the south end of Chequamegon
Bay; thence a little north of west upon a direct line crossing the
state boundary between Wisconsin and Minnesota at or near the point
where the St. Louis River becomes such boundary. Upon receipt of
this map, the Secretary of the Interior transmitted it to the Land
Commissioner, with instructions to withdraw from sale, homestead,
and preemption all odd-numbered sections of land within twenty
Page 177 U. S. 425
miles of the line within both states. This order was complied
with by the Land Commissioner by directions given to the district
land officers at Bayfield, Wisconsin. Such withdrawals were made
and the price of the even-numbered sections was raised to $2.50 per
acre, and thereafter large quantities of such land were sold by the
government at the rate of $2.50 per acre. In 1882, a map of
definite location of said railroad from a point upon the St. Paul
and Duluth Railroad, now called 'Thompson Junction,' eastward to a
point in section 15, township 47, N., of range 2 W., in the State
of Wisconsin, was prepared and approved by the directors and
certified and forwarded to the Secretary of the Interior. The line
of definite location laid down on this map followed substantially
the line of general location upon the prior map, but it turned to
the north and touched Superior, and also Ashland, and stopped some
ten miles west of the mouth of the Montreal River. Upon receipt of
this map of definite location, the Land Commissioner, by direction
of the Secretary of the Interior, adjusted the land grant in
accordance with it, and prepared diagrams showing the limits of the
grant and indemnity belts, and transmitted such diagrams to the
district land officers with the proper directions as to the
withdrawal of lands, which were complied with."
"August 2, 1884, the directors of the Northern Pacific Railroad
Company adopted a resolution fixing the eastern terminus of the
railroad at the City of Ashland, which resolution was duly
certified and transmitted to the Commissioner of the General Land
Office, December 3, 1884. Thereafter the Commissioner prepared a
diagram showing the final eastern terminus of the line at Ashland,
and sent the same to the district officers at Bayfield, with
instructions to adjust the grant on this basis. The point so fixed
is on the line of definite location of July 6, 1882, but about
twelve miles west of the east end of that line. The Northern
Pacific Railroad Company constructed a continuous line of railroad
from the City of Ashland to Puget Sound, in all respects in
accordance with its act of incorporation, and the whole line has
been duly accepted by the President of the United States, as
provided in that act. That portion of the road extending east from
Thompson Junction was
Page 177 U. S. 426
constructed upon the line of definite location shown in the map
of 1882, and was constructed during the years 1881, 1882, 1883, and
1884."
"The first section extended from Thompson Junction to Superior,
and was examined and reported favorably upon by commissioners in
1882, and the recommendations were approved by the President
September 16, 1882; the second section, extending from Superior to
the Brule River, was constructed in the latter part of 1883, and
crossed the land in question here, and was approved in like manner
January 31, 1884; the third section extends from the Brule River to
Ashland, and was approved in like manner February, 1885. It appears
further that March 6, 1865, one Joshua Perham, then the president
of the Northern Pacific Railroad Company, transmitted to the office
of the Land Commissioner a map purporting to show the proposed
general route of the Northern Pacific Railroad. Upon this map there
appeared two lines from a point in the present State of North
Dakota eastward, one terminating upon Lake Superior at or near
Duluth, and the other extending into Wisconsin some distance south
of Lake Superior, and terminating at the mouth of the Montreal
River, this last-named line being apparently partially obliterated
by a wavy red line. This map was accompanied by a letter from
Perham, stating that it shows the general line of the Northern
Pacific Railroad from a point on Lake Superior in Wisconsin to a
point on Puget Sound. The Secretary of the Interior transmitted
this map to the Land Commissioner, suggesting the withdrawal of the
lands along the line, but the Land Commissioner soon afterward
transmitted a letter to the Secretary of the Interior recommending
that the map be rejected for the reason that the same did not
comply with the rules of the Land Department, which recommendation
was approved by the Secretary. There is nothing to explain the
apparent alteration of this map, nor to show when it was made, and
it is not shown that the directors of the company ever authorized
the making or filing of the map, but it appears that the president
of the company had no power to make or file it."
"By act approved May 5, 1864, Congress granted ten sections of
land per mile to the State of Minnesota
Page 177 U. S. 427
to aid in the construction of a railroad from St. Paul to Lake
Superior. In the same year, the Legislature of Minnesota conferred
this grant upon the Lake Superior and Mississippi Railroad Company,
a Minnesota corporation, and afterwards known as the St. Paul and
Duluth Railroad Company. On January 1, 1872, this company had
constructed and was operating a railroad from St. Paul to Duluth,
by way of Thompson Junction, which is upon the St. Louis River and
is the point from which the Northern Pacific Railroad Company
started to build its line westward. On the last-named date, the
Northern Pacific Railroad Company purchased a one-half interest in
that part of this road extending from Thompson Junction to Duluth
for the sum of $500,000, and received a deed therefor. On the same
day, the two companies made a written agreement providing for the
operation of trains and the maintaining of the road. On May 1,
1872, the Northern Pacific Railroad Company and the Lake Superior
and Mississippi Railroad Company made a further agreement by which
the lines of the Lake Superior and Mississippi Railroad were leased
to the Northern Pacific Railroad for an annual rental, the land
grant of the Lake Superior and Mississippi Railroad being expressly
excepted from the operation of the lease. Pursuant to this lease,
the Northern Pacific Railroad Company operated the entire railroad
thus leased, from May 1, 1872, until February 1, 1874, when it
surrendered the lines leased and relinquished all its interests
under the lease, but surrendered no rights under the deed. On the
12th of May, 1874, the Northern Pacific Railroad Company and the
Lake Superior and Mississippi Company made an agreement for the
operation of the line from Thompson Junction to Duluth."
"It further appears that, by Act approved May 5, 1864, the
United States granted lands to the State of Wisconsin to aid in the
construction of a railroad from Bayfield to Superior, but no road
was constructed under this grant."
The Superior Court of Douglas County sustained the petition, and
appointed commissioners as prayed for. An appeal was taken to the
Supreme Court of Wisconsin, which court, on June 23, 1898, reversed
the order of the superior court and remanded the cause to that
court with directions to dismiss the
Page 177 U. S. 428
petition.
Northern Pacific Railway v. Doherty, 100 Wis.
39.
Thereupon the cause was brought here by a writ of error allowed
by the Chief Justice of the Supreme Court of Wisconsin.
MR. JUSTICE SHIRAS delivered the opinion of the Court.
It is conceded that Doherty, the plaintiff in error, owns the
southwest quarter of section 4, township 47 north, of range of 11
west, in Douglas County, Wisconsin, having made a homestead entry
thereof November 8, 1882, and obtained a patent therefor February
6, 1890.
The Northern Pacific Railway Company, the defendant in error,
claims a right of way four hundred feet in width over and across
this quarter section, and has constructed and is operating its
railroad thereon. It is not claimed that this right of way was
acquired by purchase or condemnation, but it is claimed by virtue
of the terms of the Act of Congress approved July 2, 1864,
incorporating the Northern Pacific Railroad Company and granting to
it, among other rights and privileges, a right of way through the
public lands of the United States. This act authorized the
corporation thereby created to construct a railroad "beginning at a
point on Lake Superior in the State of Minnesota or Wisconsin"
westward to "some point on Puget Sound," and the controlling
question in this case is whether the eastern terminus of the
railroad constructed under the act is at Duluth, Minnesota, or at
Ashland, Wisconsin. If at Duluth, then the company acquired no
right of way over any public land in Wisconsin; but if at Ashland,
then it did acquire a right of way over public lands in Wisconsin,
including the land in question.
Page 177 U. S. 429
It is conceded that on August 2, 1884, the directors of the
Northern Pacific Railroad Company adopted a resolution fixing the
eastern terminus of the railroad at Ashland; that this resolution
was transmitted to the Commissioner of the General Land Office;
that thereafter the Commissioner prepared a diagram showing the
final eastern terminus of the line at Ashland, and sent the same to
the district officers at Bayfield, Wisconsin, with instructions to
adjust the grant on this basis: that a continuous line of railroad
from Ashland to Puget Sound in all respects in accordance with the
act of incorporation, and as depicted upon its map of definite
location, has been constructed, and has been accepted as such by
the President of the United States. Such concessions would seem to
warrant a conclusion that the defendant in error is entitled as
matter of right to maintain and operate its road upon a right of
way over the land in dispute, and we are led to inquire why it is
that such a conclusion is disputed.
And first it is claimed by the plaintiff in error that the
Northern Pacific Railroad Company definitely located its eastern
terminus at Duluth, January 1, 1872, when it purchased one-half of
the track and right of way of the Lake Superior and Mississippi
Railroad Company from Thompson Junction to Duluth, and made a
contract for operation of the line in common.
In reply to this claim, the company denies that, by purchasing
an interest in the line from Thompson Junction to Duluth, it was
ever intended by the company to make Duluth the eastern terminus,
or that the arrangement with the Lake Superior and Mississippi
Railroad operated as a matter of law to fix and determine Duluth as
the eastern terminus, and attention is called to the fact that it
is provided in the Act of July 2, 1864, that before the Northern
Pacific Railroad Company could commence the construction of its
road, it should obtain the consent of the legislature of any state
through which any portion of its line might pass. Such consent was
obtained from the States of Wisconsin and Minnesota, and in the act
of the latter state granting consent it was in terms provided
"that should the company elect to make the eastern terminus of
said line east of the eastern boundary of the State of Minnesota,
then and in
Page 177 U. S. 430
that case, they shall construct, or cause to be constructed, a
line of railroad from the said main line to the navigable waters of
Lake Superior, within the State of Minnesota, of the same gauge as
said main line, for which purpose the same powers, rights, and
privileges are hereby granted to said company as they have or may
have to construct said main line in the State of Minnesota."
Evidently it was not intended by the Legislature of Minnesota by
this enactment to compel the railroad company to make its eastern
terminus within the limits of that state. Indeed, the act
recognizes the right of the company to elect to make its eastern
terminus east of the limits of Minnesota.
It was then in compliance with the condition imposed by
Minnesota -- namely, that in case the railroad company elected to
make its eastern terminus in Wisconsin, that the arrangement was
made whereby the line from Thompson Junction on the main line to
Duluth became, as to one-half thereof, the property of the Northern
Pacific Railroad Company.
We agree with the Supreme Court of Wisconsin in so regarding
this transaction, and also in its holding that the arrangement
between the Lake Superior and Mississippi Railroad Company and the
Northern Pacific Railroad Company did not constitute a
consolidation of the companies in any legal sense, so as to make
the short line between Thompson Junction and Duluth a part of the
trunk line contemplated by Congress.
When, in August, 1870, the company located its proposed general
route, and when its map of such location was approved by the
Secretary of the Interior, showing its eastern terminus to be in
Wisconsin, it became obligatory on the company to comply with the
condition imposed, in that event, to construct a branch line to
Lake Superior within the limits of Minnesota, and hence the
agreement with the Lake Superior and Mississippi Railroad
Company.
It is next contended by the plaintiff in error that, even if
Duluth is not to be regarded as the eastern terminus of the
company's road, yet that when afterwards, in constructing its road
eastward from Thompson Junction, the company's road reached the
City of Superior, the latter thereby became the
Page 177 U. S. 431
point on Lake Superior which was to be regarded as the eastern
terminus; that the City of Superior was the first point at which
the Northern Pacific Railroad Company connected with Lake Superior
by its own road, and it thereby became the initial point
contemplated by the granting act.
In connection with this proposition, it is necessary to take
notice of certain legislation of the State of Wisconsin.
By an Act approved April 10, 1865, the legislature of that state
gave its consent unconditionally to the Northern Pacific Railroad
Company to build and maintain its road within the state limits.
Stats. 1865, c. 465.
On March 25, 1872, the legislature passed an amending act
whereby the consent previously given to the Northern Pacific
Railroad Company to construct and operate its road in the State of
Wisconsin was made subject to certain conditions, among which were
that the company should build and operate a line of railroad
running from the junction of the said main line of the Northern
Pacific Railroad Company with the Lake Superior and Minnesota
Railroad to the Bay of Superior, and should build and maintain at
the latter point docks and piers suitable for the transfer of
passengers and freight between the railroad and lake-going craft,
and that, until such connecting road and docks were constructed, it
should not be lawful for the company to construct or maintain any
other railroad in Wisconsin. Stats. 1872, c. 139.
To comply with this legislation, it was necessary for the
company to alter the line of its road as defined by its map of
general route, so that the same might touch the lake at the Bay of
Superior. But it does not follow that thereby the company abandoned
its right to itself select the point of its eastern terminus. This
and the similar legislation of Minnesota were not intended or
regarded as taking away from the company its rights and powers
under the act of Congress. They only imposed, whether lawfully or
otherwise, certain conditions respecting branch line connections
which the legislatures deemed desirable for local advantage.
Some reliance is placed upon two decisions of the Secretary of
the Interior -- the first rendered November 13, 1895, and
Page 177 U. S. 432
reported in volume 21 Land Decisions 412, the second, rendered
August 27, 1896, and reported in volume 23 Land Decisions 204.
Those decisions were made by the Secretary in disposing of a
list of indemnity selections filed by the Northern Pacific Railway
Company, based on losses of lands within the place limits lying
east of the City of Superior. The opinion of the Secretary was that
because the company was empowered to locate and construct a line of
railroad from a point on Lake Superior to some point on Puget
Sound, it had authority to touch the lake at only one point, and
that, notwithstanding it filed a map of definite location from
Thompson Junction to Ashland, the fact that the line so located and
constructed touched the lake at the City of Superior precluded the
company from extending its line eastward from that point. In his
later decision, the Secretary concluded that the transaction
between the Lake Superior and Mississippi Railroad Company and the
Northern Pacific Railroad Company was, in legal effect, a
consolidation of the two corporations, and that therefore the
eastern terminus of the Northern Pacific Railroad was definitely
fixed at Duluth.
We do not care to repeat the considerations already advanced
going to show that, in our opinion, the right of the railroad
company, under the Act of July 2, 1864, to select its eastern
terminus at a point on Lake Superior in the State of Minnesota or
Wisconsin, was not intentionally, or by operation of law, ended or
determined by the company's compliance with the conditions sought
to be imposed by the legislation of Minnesota and Wisconsin. The
views of the Supreme Court of Wisconsin on this subject may be
properly quoted:
"On March 6, 1865, one Josiah Perham, then president of the
Northern Pacific Railroad Company, filed with the Secretary of the
Interior a map showing a proposed route of the proposed railroad.
On this map appear two lines from a point in North Dakota to Lake
Superior, one ending at Duluth and one at the mouth of the Montreal
River. This latter line is partially obliterated by a wavy red line
through its whole length. It appears affirmatively that the
president had no authority to make or file this
Page 177 U. S. 433
map, and that the directors never authorized it, and further
that on June 22, 1865, the map was rejected by the Land
Commissioner and Secretary of the Interior because it did not
comply with the rules and regulations of the Land Department. No
further action was ever taken upon it, and it seems too plain to
require argument that it can cut no figure in the case. All the
subsequent maps made and filed by the corporation, as well as its
recorded acts, show the clear intention to make the eastern
terminus of the road in Wisconsin. In 1870, a map of general route
was filed showing the eastern terminus to be at the mouth of the
Montreal River, upon receipt of which the odd-numbered sections of
land within twenty miles of the line were withdrawn from sale,
homestead, and preemption entry within the states of Minnesota and
Wisconsin, and the price of land in the even-numbered sections was
raised to $2.50 per acre, and large quantities sold by the United
States at that price. In 1882, a map of definite location of the
line from Thompson Junction eastward to a point in section 15, town
47, range 2 west of the fourth P.M. was filed in the land office at
Washington. This line passed through Ashland and terminated a few
miles east of that city. This map was approved, and the land grant
adjusted in accordance therewith by the department. In August,
1884, the board of directors of the company, by formal resolution,
fixed the eastern terminus of the road at Ashland, and a certified
copy of the resolution was filed in the General Land Office in
December, 1884, whereupon the Land Commissioner made a diagram
showing the eastern terminus so fixed, and adjusted the grant in
accordance therewith."
"The portion of the road extending eastward from Thompson
Junction to Ashland was constructed in the years 1881, 1882, 1883,
and 1884, and was examined in three sections by commissioners
appointed by the President of the United States, as provided by the
act of incorporation. The commissioners reported favorably upon all
of these sections, and their recommendations were approved by the
President, the last approval being dated February 6, 1885."
"All of these deliberate acts of the department and
executive
Page 177 U. S. 434
officers are brushed aside by Secretary Smith on the ground that
the terminus of the road had been unalterably fixed at Duluth by
the action of the Northern Pacific Company in 1872. As we do not
agree with the Secretary's premise, we cannot agree with his
conclusion, and therefore hold that the terminus of the road is at
Ashland, and hence that the railroad company had a right of way
across the petitioner's land by virtue of the provisions of the act
of incorporation."
Northern Pacific Railway Company v. Doherty, 100 Wis.
39.
In a bill filed in the Circuit Court of the United States for
the District of Minnesota by the United States against the Northern
Pacific Railroad Company, the Northern Pacific Railway Company and
others sought to have cancelled and annulled a patent granted by
the United States, on April 22, 1895, to the Northern Pacific
Railroad Company, for lot 5 of section 29, township 54 north, of
range 13 west, in the County of St. Louis and State of Minnesota, a
tract of land situated more than ten miles east of Duluth, which
the bill averred to be the eastern terminus or eastern initial
point of the grant to the Northern Pacific Railroad Company by the
Act of July 2, 1864. The bill alleged that the patent had been
granted through inadvertence and mistake, and under an
"erroneous impression and mistaken belief that said tract of
land was lying and being within the limits of the aforesaid grant
to the Northern Pacific Railroad Company."
The case was so proceeded in, on bill, answer, and an agreed
statement of facts, that, on February 20, 1899, the bill of
complainant was dismissed for want of equity, and this decree was,
on appeal to the Circuit Court of Appeals for the Eighth Circuit,
on July 10, 1899, by that court affirmed.
United States v.
Northern Pac. R. Co., 95 F. 865.
The controversy in that case involved the same questions as
those we have been considering in the present case of Doherty, and
the conclusions reached were that the Land Department committed no
error of law when it held that the Northern Pacific Railroad
Company had authority under its charter to locate its eastern
terminus at Ashland, and made no mistake of fact when it found that
the Northern Pacific Railroad Company
Page 177 U. S. 435
had actually selected Ashland as its eastern terminus. The facts
and reasoning relied on by the respective parties were, in the
main, the same with those that were relied on in the case in the
Supreme Court of Wisconsin now under review in this Court.
The judgment of the Supreme Court of Wisconsin is
Affirmed.
MR. JUSTICE McKENNA did not take part in the decision of the
case.
