The important questions of fact and law are substantially the
same in this case and in
Doherty v. Northern Pacific Railway
Company, ante, 177 U. S. 421, and
that case is followed in this in regard to the questions common to
the two cases.
The obvious purpose of this suit was, to have the question of
the proper terminus of the company's road determined, and if that
terminus was found to be at Ashland, then the complainant would not
be entitled to any relief.
Under the Act of July 2, 1864, noncompletion of the railroad
within the time limited did not operate as a forfeiture.
As the bill in this case does not allege that it is brought
under authority of Congress for the purpose of enforcing a
forfeiture and does not allege any other legislative act looking to
such an intention, this suit must be regarded as only intended to
have the point of the eastern terminus judicially ascertained.
As the evidence and conceded facts failed to show any mistake,
fraud, or error in fact or in law in the action of the Land
Department in accepting the location of the eastern terminus made
by the company and in issuing the patent in question, the bill was
properly dismissed.
Page 177 U. S. 436
In July, 1898, the United States, by the Attorney General, filed
in the Circuit Court of the United States for the District of
Minnesota a bill of complaint against the Northern Pacific Railroad
Company and others. The object of the suit was to procure the
cancellation and annulment of a certain patent granted to the
Northern Pacific Railroad Company by the United States on April 22,
1895, for a tract of land lying and being more than ten miles east
of Duluth, in the State of Minnesota, and which patent was alleged
by the bill to have been inadvertently and mistakenly issued. The
case was disposed of on bill, answer, and a stipulation of facts.
The circuit court dismissed the case for want of equity, and the
cause was taken on appeal to the Circuit Court of Appeals for the
Eighth circuit, where the decree of the circuit court was, on July
10, 1899, affirmed. An appeal was thereupon allowed to this
court.
This cause was heard in this Court in connection with that of
Andrew Doherty v. Northern Pacific Railway Company, ante,
177 U. S. 421.
That case came here on a writ of error to the Supreme Court of the
State of Wisconsin. The present one is on appeal from the Circuit
Court of Appeals for the Eighth Circuit.
MR. JUSTICE SHIRAS delivered the opinion of the Court:
The important questions of fact and of law were substantially
the same in the two cases, and so were the reasoning and
conclusions of the respective courts below. In a judgment just
entered by this Court, the judgment of the Supreme Court of
Wisconsin was affirmed, for reasons given in the opinion, a
reference to which is deemed to be a sufficient disposition of the
questions common to the two cases.
Page 177 U. S. 437
But in the present case, there has been raised and argued a
proposition not considered in the Supreme Court of Wisconsin, and
which is entitled to our attention. Briefly stated, it is that even
if it be conceded that the eastern terminus of the Northern Pacific
Railroad Company was lawfully fixed at Ashland, Wisconsin, yet that
the land grant of the company had lapsed before any map of definite
location of the railroad east of Duluth, Minnesota, had been filed
in the Land Department; that the company could not lawfully extend
the construction of its railroad, so as to entitle it to land under
its land grant, after the time limited by act of Congress for the
completion of the railroad had fully expired, and that consequently
the patent to the land described in the bill, being land east of
Duluth, was granted mistakenly and improperly.
This contention is based on the language of section 8 of the
incorporating act, which is as follows:
"That each and every grant, right, and privilege herein are so
made and given to, and accepted by, said Northern Pacific Railroad
Company, upon and subject to the following conditions, namely, that
the said company shall commence work upon said road within two
years from the approval of this act by the President, and shall
complete not less than fifty miles per year after the second year,
and shall construct, equip, furnish, and complete the whole road by
the fourth day of July, anno Domini eighteen hundred and
seventy-six."
The time of completion was subsequently extended to July 4,
1880. 14 Stat. 355; 15 Stat. 255.
It is always safe, in approaching a question of this kind, to
have regard to the pleadings in the case. Otherwise there is danger
that the court and counsel may be drawn into discussions outside of
the case actually presented.
On inspection, it appears that the case made by the bill is that
the eastern terminus of the Northern Pacific Railroad became was
and now is at the City of Duluth, State of Minnesota; that the land
in question, being part and parcel of the public lands of the
United States, is more than ten miles east of the said eastern
terminus and not, therefore, within the limits of the grant to said
company; that the patent granted to the said company on April 22,
1895, was issued
"through
Page 177 U. S. 438
mistake and inadvertence, and under the erroneous impression and
mistaken belief that said tract of land was within the limits of
the said grant to the Northern Pacific Railroad Company,"
and the relief prayed for is that said tract of land be restored
to the complainant, that the defendant be required to reconvey all
of said tract of land, and that said patent issued by the
ministerial officers of the government, so far as the tract of land
described in the bill is concerned, be canceled and annulled, and
for such other and further relief as may be just and equitable.
It is true that, in the narrative part of the bill, the eighth
section of the incorporating act is quoted, and also there is set
forth the several transactions whereby it is alleged Duluth became
established as the eastern terminus of the company's road, but
there is no intimation that it was the purpose of the bill to have
a forfeiture of the company's rights and property judicially
ascertained and declared. Indeed, the obvious purpose of the suit
was to have the question of the proper terminus of the company's
road determined, and it seems a fair deduction from the averments
and prayers of the bill that if that terminus was found to be at
Ashland, then the complainant would not be entitled to any
relief.
It is argued on behalf of the government that even if the bill
did not point to a forfeiture as part of the proof that the land
had been mistakenly patented, yet that as the defendants, in their
answer, had set up, as part of their defense, that the road had
been "duly" and "in all respects" constructed in accordance with
the law, thereby entitling them to the land in dispute, the issue
was thereby widened so as to include the question of forfeiture. We
think the court of appeals properly disposed of this argument when
it said:
"It is nothing but a suit to avoid a patent to a single tract of
land on the sole ground that the Land Department erroneously found
the eastern terminus of the road to be at Ashland when it was at
Duluth. No forfeiture of any of the rights and privileges of the
company on account of the delay in the construction of its railroad
has been prayed, no issue of forfeiture has been tendered or made
by the pleadings, and that question is not here for consideration.
It is a
Page 177 U. S. 439
general rule that questions that are not within the issue
presented by the pleadings may not be determined by the courts,
much less may so important a question as the forfeiture of the
rights of a corporation to thousands of miles of railroad and
thousands of acres of land under a congressional grant. Courts have
no jurisdiction to consider or determine the question of the
forfeiture of a railroad grant until it is raised by direct
allegations in a suit instituted by lawful authority for the
express purpose of presenting it."
Again, it is contended that when a statutory grant contains on
the face of the law a provision that each and every grant, right,
and privilege are upon condition that the road shall be completed
within a certain time, and that time expires without performance of
the condition, all future proceedings of the company, even if
acquiesced in and approved by executive officers of the government,
in disregard of the forfeiture, are unauthorized,
ultra
vires, and forbidden.
In other words, if we understand the position, it is claimed
that under section 8 of the Act of July 2, 1864, noncompletion of
the railroad within the time limited of itself operates as a
forfeiture, the grant immediately reverts to the government, and
courts must so hold on the simple statement of the fact of
noncompliance within the limit. We do not understand this to be a
correct statement of the law. In
Schulenberg
v. Harriman, 21 Wall. 44, this Court was called
upon to consider the legal import of such a provision in the Act of
Congress of June 3, 1854, granting public lands to the State of
Wisconsin to aid in the construction of railroads in said state.
After providing that the lands should be sold from time to time as
the construction of the railroad progressed, until the road was
completed, it was enacted that "if said road is not completed
within ten years no further sales shall be made, and the lands
unsold shall revert to the United States."
No part of the road having been built at the expiration of the
period limited in the grant, it was claimed that the lands reverted
to the United States. It was held by the Circuit Court of the
United States for the District of Minnesota that such lands did not
ipso facto revert to the United States by
Page 177 U. S. 440
mere failure to build the road within the period prescribed by
Congress, and that to effect a forfeiture, some act on the part of
the government evincing an intention to take advantage of such
failure was essential; and, on error, that ruling was affirmed by
this Court, and the following statement of the law was made by Mr.
Justice Field in giving the opinion of the Court:
"In what manner the reserved right of the grantor for breach of
the condition must be asserted so as to restore the estate depends
upon the character of the grant. If it be a private grant, that
right must be asserted by entry or its equivalent. If the grant be
a public one, it must be asserted by judicial proceedings
authorized by law, the equivalent of an inquest of office at common
law, finding the fact of forfeiture, and adjudging the restoration
of the estate on that ground, or there must be some legislative
assertion of ownership of the property for breach of condition,
such as an act directing the possession and appropriation of the
property, or that it be offered for sale or settlement. At common
law, the sovereign could not make an entry in person, and therefore
an office found was necessary to determine the estate; but, as said
by this Court in a late case (
United States v. Repentigny,
5 Wall. 268),"
"the mode of asserting or of resuming the forfeited grant is
subject to the legislative authority of the government. It may be
after judicial investigation, or by taking possession directly
under the authority of the government without these preliminary
proceedings."
"In the present case, no action has been taken either by
legislative or judicial proceedings to enforce a forfeiture of the
estate granted by the acts of 1856 and 1864. The title remains,
therefore, in the state as completely as it existed on the day when
the title by location of the route of the railroad acquired
precision and became attached to the adjoining alternate
sections."
In July, 1866, Congress granted unto the California and Oregon
Railroad Company a right of way over the public lands. In a
subsequent suit between the railroad company and one Bybee, a
holder of a mining claim, it was claimed that the railroad company
had forfeited and lost its right under the
Page 177 U. S. 441
grant by its failure to complete its road within the time
limited in the act; that such failure operated
ipso facto
as a termination of all right to acquire any further interest in
any lands not then patented. But it was held by this Court, in the
words of MR. JUSTICE BROWN,
"that in all cases in which the question has been passed upon by
this Court, the failure to complete the road within the time
limited is treated as a condition subsequent, not operating
ipso facto as a revocation of the grant, but as
authorizing the government itself to take advantage of it, and
forfeit the grant by judicial proceedings, or by an act of
Congress, resuming title to the land."
Schulenberg v.
Harriman, 21 Wall. 44;
Van Wyck v.
Knevals, 106 U. S. 360, are
then cited, and likewise
St. Louis &c. Railroad Co. v.
McGee, 115 U. S. 473,
where it was said by Chief Justice Waite to have been often
decided
"that lands granted by Congress to aid in the construction of
railroads do not revert after condition broken until a forfeiture
has been asserted by the United States, either through judicial
proceedings instituted under authority of law for that purpose or
through some legislative action legally equivalent to judgment of
office found at common law. . . . Legislation, to be sufficient,
must manifest an intention by Congress to reassert title and to
resume possession. As it is to take the place of a suit by the
United States to enforce a forfeiture and judgment therein
establishing the right, it should be direct, positive, and free
from all doubt or ambiguity."
As the bill in this case does not allege that it is brought
under authority of Congress for the purpose of enforcing a
forfeiture, and does not allege any other legislative act whatever
looking to such an intention, it is plain, under the authorities
cited, that this suit must be regarded as only intended to have the
point of the eastern terminus judicially ascertained. This being
so, and that terminus having been found to be at Ashland, it
follows that the courts below committed no error in dismissing the
bill of complaint.
This view of the case renders it unnecessary for us to consider
whether the United States could be estopped by the acts of the
executive department in recognizing the rights of the railroad
company as continuing in full force after the expiration
Page 177 U. S. 442
of the time named in the statute, or to consider whether the
ordinary doctrines of courts of equity, which relieve a contracting
party from forfeiture by reason of a failure to complete the
contract within the time fixed, when the work is subsequently
completed and accepted, would apply to a case like the present.
Undoubtedly there would seem to be room for a fair presumption that
Congress was aware of the action of the President and of the
functionaries of the Land Department in the particulars before
mentioned, and approved of the same. It is not, as put by the
counsel of the government in his able brief, the case of a waiver
presumed from mere nonaction, but from nonaction in the special
circumstances disclosed.
As the evidence and conceded facts failed to show any mistake,
fraud, or error, in fact or in law, in the action of the Land
Department in accepting the location of the eastern terminus made
by the company and in issuing the patent in question, the bill was
properly dismissed, and the decree of the Circuit Court of Appeals
is
Affirmed.
MR. JUSTICE McKENNA did not take part in the decision of the
case.