When Congress, under the Act of March 2, 1827, granted to the
State of Illinois alternate sections of land throughout the whole
length of the public domain, in aid of the construction of a canal
to connect the waters of the Illinois River with those of Lake
Michigan, it also granted by implication the right of way through
reserved sections; but this implication would not extend to ninety
feet on each side.
The State of Illinois never took title to a strip of land ninety
feet wide on each side of the route of that canal through the
public lands, so far as related to the sections reserved to the
United States by the Act of March 2, 1827.
The state, in constructing the canal, proceeded under that act,
filed its map thereunder, and constructed the canal with reference
thereto.
The plaintiffs in error have brought this case here to review
the final judgment of the Supreme Court of the State of Illinois
affirming the judgment of the Circuit Court of La Salle County in
favor of the defendants in error (plaintiffs below) in an action of
trespass involving the title to lands in that county on the south
side of the Illinois and Michigan Canal. The action was brought for
the purpose of testing the title, and was tried by the court upon
an agreed statement of facts, a jury being waived. It appears from
this statement that the plaintiffs in error are the agents of the
State of Illinois, and acted as such in taking down and removing
the fence hereinafter spoken of. The Illinois and Michigan Canal is
owned by the State of Illinois, and runs in a direction northeast
and southwest through section 10, township 33 north, range 3 east,
in La Salle County, Illinois. The lands in question are in this
section, which was one of the sections of land reserved to the
United States under the Act of Congress approved March 2, 1827,
hereinafter mentioned.
The plaintiffs in error claim that the State of Illinois owns a
strip of land through that section on the south side of the
canal,
Page 181 U. S. 132
ninety feet in width, contiguous to such south side. The
defendants in error claim that the land which is owned by the state
south of the canal is bounded on the south by a line seventeen
instead of ninety feet south of the canal line; or, in other words,
they claim that the north line of their land runs up to within
seventeen feet of the south side of the canal. The ownership of the
land between these points from seventeen to ninety feet south of
the canal is disputed, the plaintiffs in error claiming it for the
state, and the defendants in error claiming it for Mrs. Ingersoll,
one of the defendants in error, who has had possession of the land
for more than twenty years prior to November, 1897, and had prior
to that time erected a fence on the line she claimed as her north
line. This seventeen-foot strip it would seem has been occupied by
the towpath.
In order to test the question of title, the plaintiffs in error,
acting for the state, removed this fence, and thereupon the
defendants in error, acting for the state, reclaiming the fence was
on their line and was their property. The question depends upon the
construction of two acts of Congress in connection with the action
of the state authorities in relation thereto. They are (1) the Act
of March 30, 1822, c. 14, and (2) the Act of March 2, 1827, c. 51.
They are, so far as material, set forth in the margin.
*
Page 181 U. S. 133
The plaintiffs in error claim that the title to the strip of
land ninety feet wide through section 10 passed to the state by
virtue of the act of 1822, while the defendants in error claim that
the act of 1827 takes the place of the act of 1822, as to the grant
of lands, and that, under the act of 1827, every alternate section
of the land along the line of the canal was reserved to the United
States, and it is agreed that section 10 was among the sections so
reserved.
Page 181 U. S. 134
After the passage of the act of Congress of 1822, the General
Assembly of the State of Illinois on February 14, 1823, passed an
act in which provision was made for the appointment of a board of
commissioners to consider, devise, and adopt such measures as might
be requisite to effect a connection by a canal and locks between
the navigable waters of Illinois River and Lake Michigan. It was
made the duty of these commissioners to cause that part of the
territory of the state which may lie open or contiguous to the
probable courses and ranges of the canal to be explored and
examined for the purpose of fixing and determining the most proper
and eligible route for the same, and to cause all necessary
surveys, etc., to be made, and to make calculations and estimates
of the cost, and to make a plain and comprehensive report of all
their proceedings under the act to the General Assembly of the
state at the commencement of the next session.
On January 13, 1825, the General Assembly of the state amended a
prior act and appropriated about two thousand dollars for the
payment of the actual expenditures made and liabilities incurred by
the canal commissioners appointed under the act of 1823. On January
seventeen, 1825, the General Assembly incorporated the Illinois and
Michigan Canal Company, and provided that the officers should
obtain subscriptions to the stock, which should amount to a million
dollars, and in a convenient time thereafter, and after ten
percentum of the capital stock should have been paid in, the
commissioners should proceed to construct a canal to connect the
waters of the Illinois River and Lake Michigan, and the corporation
was directed to proceed as rapidly to the completion of that object
as might be deemed practicable and expedient, having in view the
ultimate permanency of the work and the facility and safety of the
communications. The size of the canal which the state had in
contemplation is shown by reference to the fifth section of the
act, wherein it is provided that the canal shall be of a width of
forty feet at the summit, twenty-eight at the bottom, and of
sufficient depth to contain water at least four feet deep. There is
nothing in the record to show that these dimensions
Page 181 U. S. 135
were ever altered, although the act was repealed the next year,
January 20, 1826.
In the preamble of the repealing act, it was stated that the
corporation had not performed any act by which the right of the
General Assembly to repeal its charter could be taken away, and it
was stated that it was believed that the highly important object of
the act referred to could be promoted with greater advantage to the
public by having the contemplated canal constructed under the
direction of the state, and therefore the act of incorporation was
repealed.
The governor of the state was directed by section 2 of the
repealing act to endeavor to ascertain the best terms on which
loans could be obtained on behalf of the state for the purpose of
constructing the canal, and to report the same to the General
Assembly at its next session.
Pursuant to such direction, and on December 5, 1826, the
governor reported that capitalists were reluctant to commit
themselves to any specific terms on which they would be willing to
make a loan, but, from the best information which he had received,
it was confidently believed that if Congress would make a liberal
grant of land, there would be no difficulty on the part of the
state in obtaining a loan at six percentum, and the governor
suggested the propriety of adopting measures at that session to
commence the work, predicated upon a liberal grant of land by
Congress, which it was expected that body would make. The General
Assembly, at the same session, adopted a memorial to Congress in
which it asked for a grant of land belonging to the United States
for the purpose of aiding the construction of the canal, and in
this memorial the following language was used:
"Your memorialists have caused the route to be explored and
estimates to be made of the probable expense of the work, from
which it appears that the cost of constructing the canal will not
be less than $600,000, and may possibly amount to $700,000. To the
end, therefore, that your memorialists may be enabled to commence
and complete this great and useful work, we pray your honorable
body to grant to this state the respective townships of land
through which the contemplated
Page 181 U. S. 136
canal may pass, the avails of which to be appropriated
exclusively to the construction of said canal upon such terms and
conditions as to your honorable body may seem proper."
Congress, on March 2, 1827, passed the act already set forth. On
January 22, 1829, the General Assembly passed an act providing for
the construction of the Illinois and Michigan Canal and for the
appointment of commissioners to effect that object. By the fifth
section, the canal commissioners were directed to cause
"those parts of the Territory of this state which is upon or
contiguous to the probable course or range of said canal to be
explored and examined for the purpose of fixing and determining the
most proper and eligible route for the same; . . . and, as soon
thereafter as they may be able to command sufficient funds and deem
it expedient, shall commence the work of opening a canal, and
constructing locks, aqueducts, and dams, and embankments, to effect
a navigable communication between Lake Michigan and the Illinois
River."
By the sixth section, the canal commissioners were directed, as
soon as practicable and in conjunction with the authorities of the
government, to select alternate sections of and granted to the
state by the act of Congress of 1827, and when the selection was
made, it was provided by section seven that the commissioners
should proceed to sell the lands thus selected and to make returns
of the proceeds of such sale to the auditor of public accounts.
On September 23, 1829, the canal commissioners obtained from the
secretary of State of the State of Illinois a map of the proposed
route of the canal which had been made by J. Post and R. Paul, in
the years 1823 and 1824, when proceeding under the act of Congress
of 1822 and the state statute of 1823. This map was obtained for
the purpose of using the same in aid of their work of examining and
locating the canal route from Lake Michigan to the Illinois River,
but the duty of determining and adopting a route rested with the
commissioners appointed under this state act of 1829, no route
having up to that time been adopted.
During the years 1823 and 1824 the state, through its
above-named engineers, Post and Paul, had surveyed and marked
through the public lands of the United States the route of the
Page 181 U. S. 137
canal "connecting the Illinois River with the southern bend of
Lake Michigan," though it did not return a map thereof to the
Treasury Department within three years from March 30, 1822; but,
sometime between December 25 and the end of the year 1829, the
state did return to the Treasury Department of the United States "a
complete map of the route of the canal connecting the Illinois
River with Lake Michigan." The map filed in 1829 is known as the
Thompson map, and is the first and only one, so far as the record
shows, ever filed with the Treasury Department. It was filed in
December, 1829, under the provisions of the act of 1827. This fact
appears from the certificate of the Commissioner of the General
Land Office, and also from that of the secretary of the canal
commissioners of the state. Both officials assert that the map was
filed "under the provisions of the Act of Congress approved March
2, 1827." The general route is said to agree in substance with that
laid down on the map made by Messrs. Paul and Post.
The state commenced the construction of the canal in the year
1837, and completed it in 1847, upon the route as shown by the
Thompson map filed in the Treasury Department.
MR. JUSTICE PECKHAM, after making the above statement of fact,
delivered the opinion of the Court.
The plaintiffs in error claim that, upon the passage of the
above-mentioned act of Congress of 1822, the State of Illinois
immediately became vested with the title to a strip of land ninety
feet wide on each side of the route of the canal through the public
lands of the United States from Lake Michigan to the Illinois
River, and that the Act of Congress of March 2, 1827, did not alter
or in any way affect the provisions of the act of 1822, or take
away the title which they claim had already vested in the state
upon the passage of that act; that, although the title
Page 181 U. S. 138
to any specific portion of land under the act of 1822 was in the
nature of a float until the route of the canal was surveyed and
adopted and a map thereof made and filed in the Treasury
Department, yet when that was done, the title to the ninety feet on
each side of the canal was vested in the state as of the date of
the passage of the act.
The various land grants made by Congress to railroads are cited
for the purpose of showing that the act of 1822 constituted a grant
of lands
in praesenti and absolute in character, although
to be thereafter identified by future action.
Schulenberg
v. Harriman, 21 Wall. 44;
Leavenworth, Lawrence
&c. Railroad v. United States, 92 U. S.
733,
92 U. S. 741;
Railroad Co. v. Baldwin, 103 U. S. 426;
United States v. Southern Pacific Railroad Company,
146 U. S. 570;
146 U. S. 146 U.S.
615;
168 U. S. 168 U.S.
1.
The language of the act of 1822, it will be observed, is
somewhat peculiar, and differs from that generally used in the land
grants to railroads, which usually contain the expression that
"there be and is hereby granted" to the railroad companies the
lands mentioned, or words of similar import. In this act it is
provided that
"ninety feet of land on each side of said canal shall be forever
reserved from any sale to be made by the United States, except in
cases hereinafter provided for, and the use thereof forever shall
be and the same is hereby vested in the said state for a canal, and
for no other purpose whatever; on condition, . . . if said ground
shall ever cease to be occupied by and used for a canal suitable
for navigation, the reservation and grant hereby made shall be void
and of none effect. . . ."
By this language, the strict technical title is not conveyed to
or vested in the state. It is simply a provision withdrawing from
sale this strip of land and vesting the use of it for a canal, and
for no other purpose whatever, in the state, with a condition that,
if not so used, the reservation and grant are to be void. If
proceedings had in fact been taken under this act, the route
surveyed and a map thereof made and filed in the Treasury
Department in compliance with the provisions of the act, then the
use of the land designated on the map so filed, for the purpose
mentioned in the act of 1822, would very likely have vested in the
state as of the date of such act. The action of the authorities
Page 181 U. S. 139
on the part of the state, after the passage of the act of 1827
and up to the filing of the map in 1829, shows, however, that it
was the act of 1827, and not that of 1822, which was in their
contemplation when the map was filed in the Treasury
Department.
During 1823 and 1824, a route was surveyed and marked through
the public lands of the United States for a canal connecting the
Illinois River "with the southern bend of Lake Michigan," but it
does not appear that the route was ever adopted, or that a map of
such route was ever filed. The map which was filed in 1829
purported to show the route of a canal connecting the Illinois
River with Lake Michigan, omitting the expression "with the
southern bend of Lake Michigan," which latter description, it is
said, would, if closely and technically followed, have taken the
canal into the State of Indiana. The route of the canal laid out on
the map filed did connect the canal with the waters of Lake
Michigan in the State of Illinois, but not in terms with the
southern bend of that lake. It is claimed, however, that the two
descriptions, "the southern bend of Lake Michigan" and "the waters
of Lake Michigan," are substantially identical, and that the route
of the canal as marked on the map of 1829 is in all material
matters the same as that surveyed under the act of 1822. However
this may be, it cannot be denied that, between 1822 and the passage
of the act of Congress in 1827, no route had been adopted for the
canal and no work of construction had been commenced thereon,
although, as already stated, a route had been surveyed and marked;
yet none had been adopted, and none was adopted until after the
passage of the state act of January 22, 1829. This appears by the
fifth section of that act, in which the canal commissioners were
authorized to explore, examine, and determine, and fix upon the
most proper and eligible route for a canal, and to cause maps,
surveys, profiles, etc., to be made, and thereafter, when they
deemed it expedient and funds could be secured, they were
authorized to commence the work of constructing the canal. The
sixth section of the same act had special reference to the
selection of the land granted by the congressional act of 1827.
The filing of a map with reference only to the act of 1827,
Page 181 U. S. 140
specifying both the sections reserved to the United States and
those granted to the state under that act, would not thereby fix
and identify lands which had been mentioned, but not identified, in
a different and prior act, and which were not referred to in any
way in the map filed under the act of 1827. No lines showing the
boundary of a strip ninety feet wide on each side of the canal were
ever placed on the map which was filed in the Treasury Department
in 1829 -- the only map which was ever filed there. That map showed
the proposed route and also the sections granted to the state and
those reserved to the United States, and the right of way along the
route would be taken to be for a canal of the proposed width as
stated in the acts of the General Assembly, and which width was
accepted and acquiesced in by Congress and the government.
It was not until 1848 -- eleven years after the work of
construction was commenced and a year after the completion of the
canal, as is stated by counsel for plaintiffs in error in his brief
-- that a survey was made of the ninety feet strip on each side of
the canal from one end to the other, and the lines of that survey
marked on maps under the directions of the canal commissioners, and
the maps and profiles of the survey filed in the office of the
state canal commissioners, but not with the Commissioner of the
General Land Office or in the Treasury Department at Washington.
This action of the canal commissioners was a mere
ex parte
assertion made by state officials upon their own maps, nearly
twenty years after the filing of the map in the Treasury
Department, indicating a possible claim of right on behalf of the
state, but never laid down on any map filed in Washington.
The differences between the two acts in question and their
inconsistent provisions are noticeable. That of 1822 provides for
the use of land through the whole of the public domain ninety feet
wide on each side of the canal. That of the act of 1827 grants a
quantity of land equal to one-half of five sections in width on
each side of such canal, and reserves each alternate section to the
United States, etc. In the sections reserved, therefore, no title
to or use of the ninety feet on each side of
Page 181 U. S. 141
the canal is given, while in the alternate sections not reserved
to the United States, the whole title is granted to the state. The
third section of the act of 1827 gives power to sell and give title
in fee to the land granted, while the act of 1822 grants no title,
and provides for resuming possession of the land if at any time the
same is not used for a canal. The filing of a map under the act of
1827 would clearly not be a fulfillment of the provisions as to the
filing made in the act of 1822.
The congressional act of 1827 nevertheless implies by its
language and subject matter the consent of Congress to a right of
way through the public lands, and the subsequent state act of 1829,
in the eleventh section, showed the width of the canal
contemplated, which was the same as the prior and repealed act of
1825 provides for. Of course, a towpath would be added. These two
acts show the intention of the parties to proceed thereafter with
reference to the act of 1827, and not under that of 1822. Work was
not in fact commenced until in 1837.
When Congress, under the act of 1827, granted the alternate
sections to the state throughout the whole length of the public
domain in aid of the construction of the canal, it also granted by
a plain implication the right of way through the reserved sections,
for it cannot be presumed the government was granting all these
alternate sections to the state for the purpose avowed, and yet
meant to withhold the right to pass through the sections reserved
to the United States along the route of the proposed canal. But the
implication would not extend to the ninety feet on each side. It
would extend to the land necessary to be used for the canal of the
width contemplated, and that had been asserted in an act of the
General Assembly in 1825, and was subsequently reiterated in
another act of that body (1829).
Upon all the facts in the case, it is plain that the act of 1822
was mutually abandoned by the parties so far as concerned the land
grant after the passage of the act of 1827, and that the right of
way through the reserved sections was treated and regarded as
impliedly granted by the latter act, under which the larger grant
was made, and that the map was filed under that act, and none was
ever filed under the act of 1822. The state
Page 181 U. S. 142
never took title to the strip of land ninety feet wide on each
side of the route of the canal through the public lands, so far as
related to the sections reserved to the United States by the act of
1827, of which section ten herein involved was one.
It is not a question of forfeiture of the grant under the act of
1822. There was no forfeiture; it was a mutual abandonment of that
act for the act of 1827. Taking all the facts into consideration,
the state never acquired an absolute title to the ninety-foot
strip, as by the language of the act of 1822, the use only was
granted, and it required a subsequent filing of a map as provided
for in that act before the right to the use was acquired and made
definite and fixed as to any particular land, and before that time
arrived, the act of 1827 was passed, which was to a certain extent
inconsistent with the former act, and the state in fact thenceforth
proceeded under the later act, and filed its map thereunder and
constructed the canal with reference thereto.
We think the judgment of the Supreme Court of Illinois was
right, and it is therefore
Affirmed.
* Act of March 30, 1822. Chap. XIV, 3 Stat. 659.
"An Act to Authorize the Illinois to Open a Canal Through
the"
"
Public Lands, to Connect the Illinois River with Lake
Michigan"
"
Be it enacted by the Senate and House of Representatives of
the United States of America, in Congress assembled, That the
State of Illinois be, and is hereby, authorized to survey and mark,
through the public lands of the United States, the route of the
canal connecting the Illinois River with the southern bend of Lake
Michigan, and ninety feet of land on each side of said canal shall
be forever reserved from any sale to be made by the United States,
except in the cases hereinafter provided for, and the use thereof
forever shall be, and the same is hereby, vested in the said state
for a canal, and for no other purpose whatever; on condition,
however, that if the said state does not survey and direct by law
said canal to be opened, and return a complete map thereof to the
Treasury Department, within three years from and after the passing
of this act, or if the said canal be not completed, suitable for
navigation, within twelve years thereafter, or if said ground shall
ever cease to be occupied by and used for a canal, suitable for
navigation, the reservation and grant hereby made shall be void and
of none effect."
"SEC. 2.
And be it further enacted, That every section
of land through which said canal route may pass shall be, and the
same is hereby, reserved from future sale until hereafter specially
directed by law, and the said state is hereby authorized, and
permitted, without waste, to use any materials on the public lands
adjacent to said canal, that may be necessary for its
construction."
"
Act of March 2, 1827. Chap. 51, 4 Stat. 234"
"
An Act to Grant a Quantity of Land to the Illinois, for
the"
"
Purpose of Aiding in Opening a Canal to Connect the Waters
of the"
"
I
llinois River With Those of Lake Michigan"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, That there
be, and hereby is, granted to the State of Illinois, for the
purpose of aiding the said state in opening a canal to unite the
waters of the Illinois River with those of Lake Michigan, a
quantity of land equal to one-half of five sections in width, on
each side of said canal, and reserving each alternate section to
the United States, to be selected by the Commissioner of the Land
Office, under the direction of the President of the United States,
from one end of the said canal to the other, and the said lands
shall be subject to the disposal of the legislature of the said
state, for the purpose aforesaid, and no other. . . ."
"SEC. 2.
And be it further enacted, That, so soon as
the route of the said canal shall be located and agreed on by the
said state, it shall be the duty of the governor thereof, or such
other person or persons as may have been, or shall hereafter be,
authorized to superintend the construction of said canal, to
examine and ascertain the particular sections to which the said
state will be entitled under the provisions of this act, and report
the same to the Secretary of the Treasury of the United
States."
"SEC. 3.
And be it further enacted, That the said
state, under the authority of the legislature thereof, after the
selection shall have been so made, shall have power to sell and
convey the whole or any part of the said land, and to give a title
in fee simple therefor to whomsoever shall purchase the whole or
any part thereof."
