The grant of public land to the Northern Pacific Railroad
Company in the Act of July 2, 1564, 13 Stat. c. 217, p. 360, was a
grant
in praesenti, in the nature of a float until the
route should be determined, and, after that, attaching to specific
sections, capable of identification, except as to sections which
were specifically reserved.
The force of such grant was in no respect impaired or its
construction affected by the provision in section four of that act
that patents for the land should be issued as sections of
twenty-five miles of the road should be completed; but the company
was not at liberty to dispose of its land not patented without the
consent of Congress.
When the termini of a railroad for whose construction a land
grant is made are mentioned the extent of which is dependent upon
the distance between those points, the road should be constructed
upon the most direct and practicable line.
The line of the Northern Pacific Railroad through the State of
Minnesota having been definitely determined in accordance with law,
and the road having been constructed, the company's right to the
lands in place along the line of its route as so located, and to
other lands to make up deficiencies, cannot be doubted unless a
prior right attached to those lands under an earlier grant from
Congress.
Page 139 U. S. 2
The several acts granting public lands in aid of the
construction of the St. Paul and Pacific Railroad being examined
and analyzed, it appears that the grants to that company, so far as
they form the subject of controversy, were subsequent in date to
the act under which the Northern Pacific Railroad Company claims,
and come under the well settled rule that where different grants
cover the same premises, the elder takes the title.
The operation of the Act of March 3, 1857, 11 Stat. c. 39, p.
195, upon lands previously reserved, was restrained by the Act of
March 3, 1865, 13 Stat. c. 105, p. 526.
The Act of March 3, 1871, 16 Stat. c. 144, p. 588, does not
purport to be an amendment of the Act of March 3, 1857, but only
authorizes a change in the lines of the company, in consideration
of the relinquishment of certain lands.
The exception, in the grant to the Northern Pacific Railroad
Company, of all subsequent grants prior to the definite location of
its road was not intended to cover other grants for the
construction of roads of a similar character.
After the withdrawal from sale or preemption of the granted odd
sections, no interest in the granted lands adverse to the rights of
the company could be acquired except by special legislative
declaration, nor, indeed, in the absence of its announcement, after
the general route was fixed.
In order to secure the grant in the finished sections, it was
not necessary that the road, throughout its whole length, should be
fixed, but the general purpose of the act was accomplished if such
reasonable portions of the general route were located as would
intelligently guide the officers of the Land Department with
reference to the patents to be issued for lands intended for the
company.
There was in this case no occasion for the exercise of the
judgment of the Secretary of the Interior in selecting indemnity
lands, as all the lands within the indemnity limits only made up in
part for the deficiency.
The case is stated in the opinion.
MR. JUSTICE FIELD delivered the opinion of the Court.
The bill in this case was filed by the Northern Pacific Railroad
Company to establish its right to land in odd-numbered sections,
amounting to many thousand acres, situated in the neighborhood of
Glyndon, in Minnesota, which it claims under a grant of the United
States, made by the Act of Congress of
Page 139 U. S. 3
July 2, 1864, 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." 13 Stat. c. 217, p. 365.
By the first section of that act, the Northern Pacific Railroad
Company was incorporated and authorized to lay out, construct, and
maintain a continuous railroad and telegraph line, with the
appurtenances, from a point on Lake Superior, in the State of
Minnesota or Wisconsin, and thence westerly by the most eligible
route, as should be determined by the company, within the territory
of the United States on a line north of the forty-fifth degree of
latitude to some point on Puget Sound, with a branch by the valley
of the Columbia River, to a point at or near Portland, in the State
of Oregon.
By its third section, a grant of land was made to the company.
Its language is:
"That there be, and hereby is, granted to the Northern Pacific
Railroad Company, its successors and assigns, for the purpose of
aiding in the construction of said railroad and telegraph line to
the Pacific Coast, and to secure the safe and speedy transportation
of the mails, troops, munitions of war, and public stores over the
route of said line of railway every alternate section of public
land, not mineral, designated by odd numbers, to the amount of
twenty alternate sections per mile on each side of said railroad
line, as said company may adopt, through the territories of the
United States, and ten alternate sections of land per mile on each
side of said railroad whenever it passes through any state, and
whenever on the line thereof the United States have full title, not
reserved, sold, granted, or otherwise appropriated and free from
preemption or other claims or rights at the time the line of said
road is definitely fixed, and a plat thereof filed in the office of
the Commissioner of the General Land Office, and whenever, prior to
said time, any of said sections or parts of sections shall have
been granted, sold, reserved, occupied by homestead settlers, or
preempted or otherwise disposed of, other lands shall be selected
by said company in lieu thereof, under the direction of the
Secretary of the Interior in alternate sections, and designated by
odd numbers, not more than ten miles beyond the limits of said
alternate sections,
provided
Page 139 U. S. 4
that if said route shall be found upon the line of any other
railroad route to aid in the construction of which lands have been
heretofore granted by the United States, as far as the routes are
upon the same general line, the amount of land heretofore granted
shall be deducted from the amount granted by this act."
By the fourth section, it was enacted:
"That whenever said Northern Pacific Railroad Company shall have
twenty-five consecutive miles of any portion of said railroad and
telegraph line ready for the service contemplated, the President of
the United States shall appoint three commissioners to examine the
same, and if it shall appear that twenty-five consecutive miles of
said road and telegraph line have been completed in a good,
substantial, and workmanlike manner, as in all other respects
required by this act, the commissioners shall so report to the
President of the United States, and patents of lands, as aforesaid,
shall be issued to said company, confirming to said company the
right and title to said lands situated opposite to and coterminous
with said completed section of said road; and from time to time,
whenever twenty-five additional consecutive miles shall have been
constructed, completed, and in readiness as aforesaid and verified
by said commissioners to the President of the United States, then
patents shall be issued to said company conveying the additional
sections of land as aforesaid."
By the sixth section, it was enacted:
"That the President of the United States shall cause the lands
to be surveyed for forty miles in width on both sides of the entire
line of said road, after the general route shall be fixed and as
fast as may be required by the construction of said railroad, and
the odd sections of land hereby granted shall not be liable to
sale, or entry, or preemption before or after they are surveyed,
except by said company, as provided in this act; but the provisions
of the Act of September, eighteen hundred and forty-one, granting
preemption rights, and the acts amendatory thereof, and of the Act
entitled 'An act to secure homesteads to actual settlers on the
public domain,' approved May 20, 1862, shall be, and the same are
hereby, extended to all other lands on
Page 139 U. S. 5
the line of said road, when surveyed, excepting those hereby
granted to said company."
By the express declaration of the act, the grants were made and
the rights and privileges were conferred upon and accepted by the
company on the condition that it should commence work on the road
within two years from the approval of the act by the President, and
complete and equip the whole road by the 4th of July, 1876, and the
further condition that if the company should make any breach of the
conditions of the grants, and allow the same to continue for
upwards of one year, then at any time thereafter, the United States
might "do any and all acts and things" needful and necessary to
insure a speedy completion of the road. (Secs. 8 and 9.)
Subsequently a joint resolution was passed by Congress extending
the time for the commencement of the road to July 2, 1868, and for
its completion to July 4, 1878. 14 Stat. 355, Sec. 2.
As seen by the terms of the third section of the act, the grant
is one
in praesenti -- that is, it purports to pass a
present title to the lands designated by alternate sections,
subject to such exceptions and reservations as may arise from sale,
grant, preemption, or other disposition previous to the time the
definite route of the road is fixed. The language of the statute is
"that there be, and hereby is, granted" to the company every
alternate section of the lands designated, which implies that the
property itself is passed, not any special or limited interest in
it. The words also import a transfer of a present title, not a
promise to transfer one in the future.
The route not being at the time determined, the grant was in the
nature of a float, and the title did not attach to any specific
sections until they were capable of identification; but when once
identified, the title attached to them as of the date of the grant,
except as to such sections as were specifically reserved. It is in
this sense that the grant is termed one
in praesenti --
that is to say, it is of that character as to all lands within the
terms of the grant, and not reserved from it at the time of the
definite location of the route. This is the construction given to
similar grants by this Court, where the question has been often
considered; indeed,
Page 139 U. S. 6
it is so well settled as to be no longer open to discussion.
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 60;
Leavenworth, Lawrence &c. Railroad Co. v. United
States, 92 U. S. 733;
Missouri, Kansas &c. Railway Co. v. Kansas Pacific Railway
Co., 97 U. S. 491;
Railroad Co. v. Baldwin, 103 U. S. 426. The
terms of present grant are in some cases qualified by other
portions of the granting act, as in the case of
Rice v.
Railroad Co., 1 Black 358, but, unless qualified,
they are to receive the interpretation mentioned.
It is contended that they are qualified, and restricted by the
provision of the fourth section, that whenever twenty-five miles of
the road are completed in a good, substantial, and workmanlike
manner and the commissioners appointed to examine the same have
made a report to that effect to the President, patents shall be
issued "confirming to said company the right and title to said
lands, situated opposite to and coterminous with said completed
section of said road." This provision, it is urged, is inconsistent
with the theory that a title to the lands had previously vested in
the company. We do not think so. There are many reasons why patents
should be issued upon the completion of each section of the road.
They would not only identify the lands as coterminous with the
completed section, but they would be evidence that, as to that
portion of the road, the conditions of the grant had been complied
with, and that it was thus freed from any liability to forfeiture
for a disregard of them. They would also obviate the necessity of
any further evidence of the grantee's title. As deeds of further
assurance, they would thus be of great value in giving quiet and
peace to the grantee's possession. There are many instances in the
legislation of Congress where patents are authorized to be issued
to parties in further assurance of their title, notwithstanding a
previous legislative grant to them or a legislative confirmation of
a previously existing claim. The previous grant or confirmation is
in no respect impaired thereby, or its construction affected.
See, on this point,
Langdeau v.
Hanes, 21 Wall. 521, and
Wright v.
Roseberry, 121 U. S. 488,
121 U. S.
497.
Although the restraints in the act against the sale or
alienation
Page 139 U. S. 7
of the lands when once identified are not the subject of
consideration in the present case, it may be well, to obviate
misapprehension, to observe that the company, notwithstanding its
possession of the title, was not at liberty to dispose of the lands
without the consent of Congress, except as each twenty-five-mile
section was completed, and accepted by the President, so as to
deprive the United States of the right to compel their application
to the purposes of the grant or so as to prevent their forfeiture
in case of the company's failure to comply with its conditions.
Congress, in allowing a mortgage upon the land and in other ways,
may have granted permission to the company to use and dispose of
the lands or a portion thereof, but with this we are not now
concerned. The construction we give to the granting terms of the
act, as qualified by subsequent provisions, not only secures the
application of the property to the construction of the road and
telegraph line, and thus carries out the purposes of the
government, but also secures the company against any attempted
alienation of the land to other parties.
Having expressed our opinion as to the character of the title
which Congress conveyed to the Northern Pacific Railroad Company by
the Act of July 2, 1864, we proceed to consider whether it was, by
a subsequent location of the contemplated road, made to cover the
lands for which the present suit is brought.
The general location of the route of the Northern Pacific
Railroad was designated in 1869, and a map of it, approved by the
Secretary of the Interior, was filed in the office of the
Commissioner of the General Land Office in August, 1870, and
thereupon the Secretary ordered the withdrawal by the local
land-officers in Wisconsin and Minnesota from sale, preemption,
homestead, and other disposal of the odd-numbered sections not sold
or reserved, and to which prior rights had not attached, within
twenty miles on each side of the said line, for the benefit of the
company. Subsequently this general route in Minnesota was changed,
and a map, corrected in accordance with the change, approved by the
Secretary of the Interior, was filed in the General Land Office, on
the 8th of October,
Page 139 U. S. 8
1870, and on the 12th of that month, the Secretary ordered the
withdrawal of the lands in conformity with the new general route
adopted. The company then proceeded with the work of definitely
locating the line of the road through that state, and on the 21st
of November, 1871, filed in the office of the Commissioner of the
General Land Office a map or plat of the line thus definitely
fixed, approved by the Secretary of the Interior. The company
subsequently constructed and equipped the road through that state
in all respects as a first-class railroad, and has since operated
and maintained it. The road was accepted and approved by the
President in accordance with the provisions of the fourth section
of the Act of July 2, 1864.
By the joint resolution of Congress of May 31, 1870, it was
provided that in the event that there was not in any state or
territory in which the main line or a branch of the road of the
company might be located the amount of lands per mile granted by
Congress within the limits prescribed by its charter, then the
company should be entitled, under the directions of the Secretary
of the Interior, to receive so many sections of land belonging to
the United States, and designated by odd numbers, in such state or
territory, within ten miles on each side of the road, beyond the
limits prescribed in the charter, as would make up the deficiency
on the said main line or branch in the amount of lands that had
been granted, sold, reserved, occupied by homestead settlers,
preempted, or otherwise disposed of, subsequent to the passage of
the Act of July 2, 1864. 16 Stat. 378.
After a map of the general route of the road of the plaintiff
was filed as above stated and the line of the road in Minnesota was
definitely fixed, the Commissioner of the General Land Office
designated, upon maps and records in his office, the limits of the
lands granted by Congress to the plaintiff according to the
provisions of the act of 1864 and the above joint resolution --
namely, the twenty-, thirty-, and forty-mile limits on each side of
the line of definite location, the first named being the limits of
the lands in place; the second, the limits of the indemnity lands,
and the third, or forty-mile limit, the limits of
Page 139 U. S. 9
the further indemnity granted by the joint resolution of May 31,
1870. And upon such designation, it was found that there was not in
the state, within those limits at the time of the final location of
the road, the amount of lands intended by the grant of Congress for
the plaintiff not previously granted sold, occupied by homestead
settlers, preempted, or otherwise disposed of.
The right of the plaintiff, the Northern Pacific Railroad
Company, to the lands in place along the line of its route as
definitely located in the State of Minnesota, and to other lands to
make up deficiencies within those limits caused by previous grants,
sales, reservations, settlements, or preemptions, to be taken from
the indemnity limits, or within the forty-mile withdrawal, will not
admit of serious doubt unless a prior right attached to those lands
by an earlier grant of the United States. Such earlier grant is
asserted by the defendants under the Act of Congress of March 3,
1857, and subsequent legislation changing its operation. 11 Stat.
c. 99, p. 195. By that act, there was granted to the Territory of
Minnesota, for the purpose of aiding in the construction of certain
railroads therein mentioned, one of which was a railroad from
Stillwater by way of St. Paul and St. Anthony to a point between
the foot of Big Stone Lake and the mouth of Sioux Wood River, with
a branch via St. Cloud and Crow Wing to the navigable waters of the
Red River of the North at such point as the legislature of the
territory might determine, every alternate section of land,
designated by odd numbers, for six sections in width, on each side
of said road and branches. It was also provided that the territory
or future state might select, subject to the approval of the
Secretary of the Interior, from any lands of the United States
nearest to the tiers of sections specified, so much land, in
alternate sections or parts of sections, as should be equal to such
of the granted lands as the United States might have sold or
appropriated, or to which rights of preemption might have attached
when the lines or routes of the road and branches were definitely
fixed. It was further provided that the lands so located should in
no case be further than fifteen miles from the lines of the road
and branches.
Page 139 U. S. 10
On the 22d of May, 1857, the Legislature of Minnesota passed an
act to execute the trust imposed by the act of Congress, and
created a corporation, called the "Minnesota & Pacific Railroad
Company," with power to locate, build, and operate a railroad in
conformity with that act from Stillwater, by way of St. Paul and
St. Anthony, via Minneapolis, to the Town of Breckenridge on the
Sioux Wood River, with a branch from St. Anthony, via St. Cloud and
Crow Wing, to St. Vincent on the Red River of the North, and, to
aid in the construction of that road and branches, conveyed all of
its interest in the lands granted by the United States for that
purpose.
In November, 1857, this railroad company thus created located
the entire main line of its road, and that portion of the branch
line from St. Anthony, via Anoka and St. Cloud, to Crow Wing, and
the maps of definite location thereof were approved by the
Secretary of the Interior, and filed in the General Land Office in
December of that year.
In July, 1858, that railroad company executed a mortgage to
trustees upon its railroad, and all its alienable franchises, and
the rights and interest which it had acquired or might acquire in
the lands granted by the territory, to secure the payment of
certain bonds which the territory had authorized it to issue. The
company having defaulted in the payment of those bonds, the
mortgage was foreclosed, the property was sold, and the State of
Minnesota, which had superseded the territory, became the
purchaser.
Subsequently, in March, 1862, its legislature passed an act by
which all the rights, franchises, property, and interests of the
Minnesota & Pacific Railroad Company thus acquired by the state
were granted to certain persons named, their associates and
successors, who were incorporated by the name of the "St. Paul and
Pacific Railroad Company." The grant of the state was accepted by
that company, with all its conditions. In July, 1862, it became
evident that it would be more advantageous for the St. Paul and
Pacific Railroad Company and for the State of Minnesota that the
line of branch railroad which was authorized to be constructed
should be changed,
Page 139 U. S. 11
and, to accomplish this, Congress, on the 12th of that month,
passed the following joint resolution:
"
Whereas, by an Act of Congress approved March third,
eighteen hundred and fifty-seven, there was granted to the
Territory of Minnesota lands to aid in the construction of a
railroad from Stillwater, via St. Paul and St. Anthony, to a point
between the foot of Big Stone Lake and the mouth of Sioux Wood
River, with a branch, via St. Cloud and Crow Wing, to the navigable
waters of the Red River of the North, the northern terminus of
which was fixed by the legislature of said territory at St.
Vincent, and whereas, it is now believed that the public interests
require a change of location of a part of said branch road,
therefore,"
"
Be it resolved by the Senate and House of Representatives
of the United States of America in Congress assembled that, in
lien of that part of the railroad grant to Minnesota Territory by
Act of Congress approved third March, eighteen hundred and
fifty-seven, which extends northwesterly from the intersection of
the tenth standard parallel with the fourth guide meridian, there
shall be granted to the State of Minnesota the alternate sections
within six-mile limits of such new branch line of route as the
authorities of the state may designate, having its southwestern
terminus at any point on the existing line between the Falls of St.
Anthony and Crow Wing, and extending in a northeasterly direction
to the waters of Lake Superior, with a right of indemnity between
the fifteen-mile limits thereof,
provided this resolution
shall take effect from the filing in the General Land Office of the
acceptance by the authorities aforesaid of such substitution,
whereupon the land north of the intersection aforesaid in the grant
as authorized by the said act of third March, eighteen hundred and
fifty-seven, being by said acceptance disencumbered of the railroad
grant, shall be dealt with as other public lands of the United
States."
12 Stat. 624, 625.
On the 6th of March, 1863, the Legislature of Minnesota accepted
the terms and provisions of this joint resolution by an act
approved on that day, an authenticated copy of which was
subsequently, on February 26, 1864, filed in the General Land
Office.
Page 139 U. S. 12
On the 28th of May, 1864, the board of directors of the St. Paul
and Pacific Railroad Company adopted the following resolution:
"
Resolved by the board of directors of the St. Paul and
Pacific Railroad Company that the terms, conditions, and
provisions of the joint resolution of the Congress of the United
States approved July 12, 1862, entitled 'A joint resolution
authorizing the State of Minnesota to change the line of certain
branch railroads in said state, and for other purposes,' and also
the terms, conditions, and provisions of the Act of the Legislature
of the State of Minnesota approved March 6, 1863, entitled 'An act
to authorize the St. Paul and Pacific Railroad Company to construct
a branch road to Lake Superior,' and also the terms, conditions,
and provisions of the Act of the Legislature of the State of
Minnesota approved March 4, 1864, entitled 'An act to extend the
time for the construction of the branch road of the St. Paul and
Pacific Railroad Company,' be, and the same and each and every of
them are hereby, approved, accepted, and assented to by the St.
Paul and Pacific Railroad Company, and the President and Secretary
of this company are hereby directed to transmit a duly certified
copy of this resolution to the governor of the state."
The resolution was accordingly transmitted to the governor.
The joint resolution of Congress of July 12, 1862, and its
acceptance by the State of Minnesota and the St. Paul and Pacific
Railroad Company, established the intersection of the tenth
standard parallel with the fourth guide meridian as the northern
terminus of the branch line. That portion of the country in
Minnesota which was northwesterly of the intersection was thus
disencumbered of the railroad grant under the Act of March 3, 1857.
And that portion south of the intersection and west of the route of
the branch road definitely located, composing the alternate
sections granted, was distant many miles east of the lands in
controversy in this suit. The act of 1857 provided for the
construction of a railroad from Stillwater, by way of St. Paul and
St. Anthony, to a point between the foot of Big Stone Lake and the
mouth of Sioux Wood River, with a branch, via St. Cloud and Crow
Wing,
Page 139 U. S. 13
to the navigable waters of the Red River of the North at such
point as the legislature of the territory might determine. By the
change effected, this branch was to be constructed north only to
the intersection designated, and a direct line via St. Cloud and
Crow Wing to that point would also be a long way from the lands in
controversy. When the termini of a railroad are mentioned for whose
construction a grant is made the extent of which is dependent upon
the distance between those points, the road should be constructed
upon the most direct and practicable line. No unnecessary deviation
from such line would be deemed within the contemplation of the
grantor, and would be rejected as not in accordance with the grant.
The route via St. Cloud and Crow Wing to the intersection mentioned
would be almost in a direct northerly line -- a route via those
places to Glyndon would involve a westerly deviation of nearly a
hundred miles. Of course, such a detour from a direct line would be
inadmissible. And as to the new branch authorized to Lake Superior,
that would be only in an opposite direction.
It is, however, earnestly contended by the appellants that they
are entitled to the lands in question by the subsequent Acts of
Congress of March 3, 1865, and March 3, 1871, and to these acts we
now turn our attention.
The Act of March 3, 1865, "extending the time for the completion
of certain land grant railroads in the State of Minnesota and Iowa,
and for other purposes," 13 Stat. c. 105, p. 526, in its first
section, increases the grant made to Minnesota by the Act of March
3, 1857, to aid the construction of certain railroads from six
alternate sections per mile on each side of such roads and branches
to ten sections per mile. Its second section enlarges the indemnity
limits from fifteen to twenty miles from the lines of the roads and
branches. Its third section excepts from the operation of the act
any lands previously reserved by act of Congress, or in any other
manner by competent authority, to aid in any object of internal
improvement or other purpose. The ninth section declares that the
provisions of the act shall
"be construed so as to apply and extended to that portion of the
line authorized to be vacated
Page 139 U. S. 14
by the joint resolution approved July 12, 1862, entitled, 'A
joint resolution authorizing the State of Minnesota to change the
line of certain branch railroads in said state, and for other
purposes,' notwithstanding the vacation thereof by said state, as
though said joint resolution had not passed, and also to the line
adopted by said state in lien of the portion of the line so
vacated."
This act makes an additional and new grant to Minnesota of four
sections of land per mile to aid in the construction of its
railroads, and enlarges the indemnity limits from fifteen to twenty
miles, and the provisions of its ninth section, being applied and
extended to that portion of the line between the intersection of
the tenth standard parallel with the fourth guide meridian and St.
Vincent, vacated by the joint resolution of July, 1862, and also to
the line running eastwardly to Lake Superior, authorized in lieu of
the vacated line, in effect made a new grant between St. Vincent
and the intersection mentioned, and enlarged the grant for the line
to Lake Superior.
On the 3d of March, 1871, Congress passed an act authorizing
another change to be made by the St. Paul and Pacific Railroad
Company in its lines "in consideration of a relinquishment of
lands." That act is as follows:
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled that the
St. Paul and Pacific Railroad Company may so alter its branch lines
that, instead of constructing a road from Crow Wing to St. Vincent
and from St. Cloud to the waters of Lake Superior, it may locate
and construct, in lien thereof, a line from Crow Wing to Brainerd,
to intersect with the Northern Pacific Railroad, and from St. Cloud
to a point of intersection with the line of the original grant at
or near Otter Tail or Rush lake, so as to form a more direct route
to St. Vincent, with the same proportional grant of lands, to be
taken in the same manner, along said altered lines, as is provided
for the present lines by existing laws,
provided, however,
that this change shall in no manner enlarge said grant, and that
this act shall only take effect upon condition of being
Page 139 U. S. 15
in accord with the legislation of the State of Minnesota, and
upon the further condition that proper releases shall be made to
the United States by said company of all lands along said abandoned
lines from Crow Wing to St. Vincent and from St. Cloud to Lake
Superior, and that upon the execution of said releases, such lands
so released shall be considered as immediately restored to market,
without further legislation."
16 Stat. c. 144, p. 588.
The Act of March 3, 1865, as said above, is a new grant,
referring to, but distinguishable and distinct from that made by
the Act of March 3, 1857. The Act of March 3, 1871, only authorizes
the construction of different lines from those previously
designated, in consideration of the relinquishment of lands along
the previously designated lines, the new lines to have the same
proportional grant along them, to be taken in the same manner as
along the former lines.
These two acts are subsequent in date to the act under which the
plaintiff claims, and the rule has long been settled that where
different grants cover the same premises, the earlier takes the
title. There would be no reason why that rule should not be
followed in the present case if the Act of March 3, 1871, should be
held to cover the premises in controversy.
It is, however, contended, in answer to this position of an
earlier grant to the plaintiff, that the Acts of March 3, 1865, and
March 3, 1871, are to be treated not as distinct acts, but simply
as amendments to the Act of March 3, 1857, and to be given an
operation as of that date. We do not assent to this position.
Though the Act of March 3, 1865, by its new and additional grants,
amended the previous act of 1857, its operation upon any lands
previously reserved to aid in any work of internal improvement was
expressly restrained. What was reserved before remained reserved
afterwards. And the act of 1871 does not purport in any sense to be
an amendment of the act of 1857. It simply authorizes the St. Paul
and Pacific Railroad Company to change its lines in consideration
of the relinquishment of certain lands. The old lines were to be
given up, and all the benefits attached to them, in consideration
of which new lines were authorized. The old lines were
Page 139 U. S. 16
not amended, but were abandoned. There was no partial release of
the accompanying grants, but whatever rights attended the original
lines were to be surrendered.
It is also urged against the priority of the plaintiff's claim
that by the terms of the act making the grant to the Northern
Pacific Railroad Company all subsequent grants prior to the
definite location of its road are excepted.
Giving full force to this exception, we do not see that it has
any application in the present case. It can only apply to grants of
land which would otherwise be covered by the Northern Pacific
grant, and the only grant which it is contended was in that
situation is the one accompanying the authority given by the Act of
March 3, 1871, to construct, in lieu of certain lines to be
abandoned, a line from St. Cloud to a point of intersection with
the line of what was termed the "original grant," at or near Otter
Tail or Rush lake, though what was intended was the line projected
in 1869, but which was never accepted by the Secretary of the
Interior because of its plain deviation from a direct line between
the termini of the road authorized. The line of the original main
grant was a long way distant from those lakes to the south of them,
and no line was located to intersect it, or authorized with that
view. The line authorized, or supposed to be authorized, under the
Act of March 3, 1871, was distant many miles from the line
projected in 1869, and the map of its definite location, approved
by the Secretary of the Interior, was not filed with the
Commissioner of the General Land Office until December 20, 1871.
The release required by the Act of March 3, 1871, was not made by
the St. Paul and Pacific Railroad Company until December 13, 1871,
and a formal release to the United States by the company was not
executed until the 19th of that month. It was only upon the
execution of the release -- whether that be deemed to have been on
the 13th or 19th of December -- that the act took effect. The act
did not make a grant upon condition subsequent. There was no
condition for a breach of which any forfeiture of a grant could be
required, for no grant passed until the consideration for it -- the
relinquishment of old lines with the lands along them -- was
Page 139 U. S. 17
given. The transaction was in the nature of an exchange by which
the right was given to the company to construct new lines with
proportional grants in consideration of its relinquishing certain
old lines, with their accompanying lands. The new rights were to
vest with the release of the old rights. The transfer was to be
mutual and simultaneous. There was therefore no operative grant
until there was an effective release, and, whichever date be taken
-- whether December 13th or 19th -- it was subsequent to the
definite location of the Northern Pacific Railroad Company in
Minnesota. A map of that location, approved by the Secretary of the
Interior, was filed, as stated above, in the office of the
Commissioner of the General Land Office on the 21st of the previous
November. No grant therefore was in existence of any lands to any
other company, which are claimed by the plaintiff in this suit at
the time of the definite location of its route. The Act of March 3,
1865, as already stated, is expressly restrained from in any way
interfering with any lands previously reserved by Congress, or any
competent authority to aid in any work of public improvement.
Consequently, under that act, no claim could be asserted that would
in any way interfere with the grants to the Northern Pacific
Railroad Company.
But, independently of this conclusion, we are of opinion that
the exception in the act making the grant to the Northern Pacific
Railroad Company was not intended to cover other grants for the
construction of roads of a similar character, for this would be to
embody a provision which would often be repugnant to and defeat the
grant itself.
Missouri, Kansas & Texas Railway v. Kansas
Pacific Railway, 97 U. S. 491,
97 U. S.
498-499.
Besides, the withdrawal made by the Secretary of the Interior of
lands within the forty-mile limit on the 13th of August, 1870,
preserved the lands for the benefit of the Northern Pacific
Railroad from the operation of any subsequent grants to other
companies not specifically declared to cover the premises. The
Northern Pacific Act directed that the President should cause the
lands to be surveyed forty miles
Page 139 U. S. 18
in width on both sides of the entire line of the road, after the
general route should be fixed, and as fast as might be required by
the construction of the road, and provided that the odd sections of
lands granted should not be liable to sale, entry, or preemption
before or after they were surveyed, except by the company. They
were therefore excepted by that legislation from grants,
independently of the withdrawal by the Secretary of the Interior.
His action in formally announcing their withdrawal was only giving
publicity to what the law itself declared. The object of the
withdrawal was to preserve the land unencumbered until the
completion and acceptance of the road.
In the recent case of
Buttz v. Railroad Company,
119 U. S. 55,
119 U. S. 72,
this Court, speaking of the act making the grant to the Northern
Pacific Company, said:
"Although the act does not require the officers of the Land
Department to give notice to the local land officers of the
withdrawal of the odd sections from sale or preemption, it has been
the practice of the department in such cases to formally withdraw
them. It cannot be otherwise than the exercise of a wise precaution
by the department to give such information to the local land
officers as may serve to guide aright those seeking settlements on
the public lands, and thus prevent settlements and expenditures
connected with them which would afterwards prove to be
useless."
After such withdrawal, no interest in the lands granted can be
acquired, against the rights of the company, except by special
legislative declaration, nor, indeed, in the absence of its
announcement, after the general route is fixed.
It is indeed contended that there is no evidence that any
general route was fixed -- meaning thereby the general route for
the whole length of the road. If this were the fact (which is not
conceded), the result would not be changed as supposed by counsel.
The contemplated railroad from Lake Superior to Puget Sound was
about two thousand miles in length, and it was not expected that
there should be a general designation of the whole route over this
distance before any land should be withdrawn or any rights of the
company should attach.
Page 139 U. S. 19
The general purpose of the act was accomplished if such
reasonable portions of the general route were located as would
intelligently guide the officers of the Land Department with
reference to the patents to be issued for lands intended for the
company. The withdrawal in any case would only extend along the
route which was fixed, and a map of which was filed in the
department.
As to the objection that no evidence was produced of any
selection by the Secretary of the Interior from the indemnity lands
to make up for the deficiencies found in the lands within the place
limits, it is sufficient to observe that all the lands within the
indemnity limits only made up in part for these deficiencies. There
was therefore no occasion for the exercise of the judgment of the
Secretary in selecting from them, for they were all
appropriated.
Upon the whole case, we are satisfied that the decree of the
court below was correct, and it is accordingly
Affirmed.