Wisconsin Central Railroad v. Forsythe

after stating the case, delivered the opinion of the'court.

The land in controversy is within the place limits of the plaintiff’s road. Confessedly, therefore, the title passed to the •plaintiff, provided the land was subject to the operation of the grant made by the third section of the act of 1864. The contention is that it was not subject thereto by reason of the fact that it was withdrawn by the land department in 1856 and 1859 in order to satisfy the grant made by the act of 1856. It was within the indemnity and not within, the place limits of the grant in aid of the Bayfield road.

It is curious to note that in the communication made in 1859 by the land department to the local land officers it is stated that all the unsold lands within the indemnity limits along the line of that road had been selected by the agent of the State in lieu of the lands sold and preempted within the place limits. If this selection was in fact made and was needed to satisfy the deficiency in the amount of lands within the place limits, and was approved by the land department, it would avoid the necessity for further inquiry; for whatever of right there was in the St. Croix and Lake Superior Railroad Company passed to the Omaha Company, and was by it, under the agreements of February 12, 1884, and February 19, 1887, transferred to. the plaintiff, and this was long anterior to. any claim on the part of the defendant.

But assuming, in the absehce of any direct evidence thereof, that no such selection was made, we pass to an inquiry as to the respective rights of the parties. The title of the plaintiff, as we have seen, can only be defeated by reason of the land not being within the scope of the grant made by the third section of the act of 1864, and it is only excluded therefrom by the grant of 1856 and the reservation made in pursuance thereof. The reliance of defendant is on the long-established rule, often affirmed by this court and recognized in section six of the act of 1864, to the effect that a grant by Congress does not operate upon lands theretofore reserved for any purpose whatsoever. There can be no doubt as to this rule, or as to

But it is a rule of equal if hot higher significance that every act of Congress making a grant is to be treated both as a law and a grant, and the intent of Congress, when ascertained, is to control in the interpretation of the law.

“ The solution of these questions depends, of course, upon the construction giyen to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.” Winona & St. Peter Railroad v. Barney, 113 U. S. 618 , 625. See also Missouri, Kansas & Texas Railway v. Kansas Pacific Railway, 97 U. S. 491 , 497; United States v. Southern Pacific Railroad, 146 U. S. 570 , 597; United States v. Denver & Rio Grande Railway, 150 U. S. 1 .

In order to determine the intent of Congress we must look at the situation at the time the act of 1864 was passed. The-alternate sections within the six and fifteen-mile limits of the Bayfield road were not granted by the act of 1856. They were simply withdrawn from preemption and sale by the action of the land department in order that the beneficiary of the grant might, in case the full amount of lands granted was not found within the place limits, select théref rom enough to supply the deficiency! We do not mean that they were not reserved lands; on the contrary, as stated above, they were. Such is the uniform ruling of this court in interpreting like action on the part of the land department. Nevertheless, not being granted lands, they were still within the disposing power of Congress. There would be ho question of the title of one to whom Congress had in terms granted them. “ Until selection was made the title remained in the government, subject to its disposal at its pleasure.” Kansas Pacific Railroad v. Atchison &c. Railroad, 112 U. S. 414 , 421; St. Paul & Sioux City Railroad v. Winona & St. Peter Railroad, 112 U. S. 720 ,

The land was, therefore, subject to the full control of Congress at the time of the passage of the act of 1864. What did Congress intend by that act? It had in 1856 granted to the State of Wisconsin six sections per mile to aid it in the construction of a road from Madison or Columbus, by way of Portage City, to the St. Croix. River or Lake, and thence to the west end of Lake Superior, and to Bayfield, with a proviso that if the road was not completed within ten years the unsold lands should revert to the United States. Wisconsin had accepted this grant, and thus impliedly undertaken to construct the road. It made the La Crosse and Milwaukee Railroad Company the beneficiary of this grant. Subsequently, with the assent' of the State, that company had transferred to the St. Croix and Lake Superior Railroad Company so much of the grant as was designed to aid in the construction of that part of the road from the St. Croix River or Lake northward to Lake Superior, with the branch to Bayfield. Eight years had passed, and only two years more remained until the expiration of the time fixed for the completion of the road. Only a short distance had in fact been built, to wit, 61 miles from Portage to Tomah, and that by the St. Croix and Milwaukee company in the spring of 1858. It was evident that the inducement of six sections per mile had not been sufficient to secure the construction of the road in the comparatively uninhabited portions in the northwestern part of the State, and so Congress determined to enlarge its grant in order to secure the accomplishment of the desired end. At the same time it perceived that the public interests required an additional road funning through the central portion of the State northward to the two termini on Lake Superior, named for the road from St. Croix Lake or River.

And so it passed the act of 1864. This made a grant to the same grantee, to wit, the State of Wisconsin, but expressed the terms and purposes in three separate sections.

For whose benefit was the withdrawal of the lands within the indemnity limits of the Bayfield road made ? Obviously, as often declared, for the benefit of the grantee. It is as though the United States had said to the grantee: we do not know whether, along the line of road, when you finally locate it, there will be six alternate sections free from any preemption or other claim, and, therefore, so situated that you may take title thereto, and so we will hold from sale or disposal to any one else an additional territory of nine miles on either side that witHin those nine miles you may select whatever lands may be necessary to make the full quota of six sections per mile. When Congress, by a subsequent act, makes a new and absolute grant to the same

Kansas City &c. Railroad v. Attorney General, 118 U. S. 682 , is in point. On July 26, 1866, 14 Stat. 289 , Congress passed an act granting to the State of Kansas five alternate sections per mile to aid the Union Pacific Railroad Company, Southern Branch, in constructing a railroad from Fort Riley,. upon the valley of the Neosho River, to the southern line of the State of Kansas. This corporation (its name having been changed to that of the Missouri, Kansas and Texas Railroad Company) constructed the road, and received patents for the land.. The object of that suit was to vacate and declare void these patents, and the principal ground relied on for maintaining it was that, by an act of March 8, 1863, 12 Stat. 772 , and a supplemental act of July 1, 1864, 13 Stat. 339 , the lands had been appropriated to aid another company in building a road along the same line. The act of 1866 had the ordinary reservation clause, similar to that found in section six of the act of 1864 before us, and the contention was that the effect of this reserving clause was to except all the lands covered by the grants of 1863 and 1864 from the operation of the grant of 1866. It was conceded that if the intent of Congress was to aid in the construction of two separate lines of road the contention would have to be sustained, the court saying: “ As the lands granted by the prior acts of 1863 and 1864 had, by the act of the legislature of Kansas, been granted to the Atchison, Topeka and Santa Fé Railroad Company, a then existing corporation of that State, for the purpose of building a road, with the same general description as to its course down the valley of the Neosho River, which might have run through these same lands if it had been built by the latter company, it is. argued with great earnestness that these lands were necessarily reserved, under this clause of the act of 1866, from the grant, as being reserved by the authority of Congress for the purpose of aiding in that object of internal improvement. If the A., T. & S. F. R. R. Co. had built a line of road along the same general course and through the same lands, twenty miles

But we need not go outside of this act of 1864 for a clear disclosure of a like intent on the part of Congress. The act of 1856 granted six sections per mile to aid in the construction of a road from St. Croix River or Lake to Bayfield. The lands between the six and fifteen-mile limits of the line of that road as located were withdrawn by the action of the land department. They were thus reserved lands. Now the first section of the .act of 1864 granted ten alternate sections to aid in the construction of a road along the same line. Can there be any doubt that this grant of four additional sections operated upon the land thus reserved between the six and fifteén-mile limits ? Yet if the act of 1864 is to be taken as making a grant entirely independent from that of 1856, it could not be enforced as to lands between the six and fifteen-mile limits reserved under that prior grant. It will be-noticed that the act of 1864 makes no grant directly to the St. Croix and Lake Superior Railroad Company, but only to the Stake of Wisconsin, and the latter could, if it had seen fit, have made some other company the beneficiary; and yet can there be any doubt that Congress intended by this first section of the act of 1864 merely an .enlargement of the grant made by the act of 1856 from six to ten sections, and also intended that as to the four extra sections the grant should operate upon lands reserved between the six and fifteen-mile limits ? If this be true as to one part of the grant of 1864, why is it not equally true as to another portion qf the grant, all of it being to the same grantee ?

Still, again, it must be noticed that the State of Wisconsin, the grantee named in both the acts of 1856 and 1864, the plaintiff within whose place limits the land in controversy is situated, and the Omaha company, within whose indemnity limits it is, all. three long since agreed that the land passed by this grant, and dealt with it as belonging to the plaintiff. Both roads have been constructed, and, undoubtedly largely through the instrumentality of their construction, population has poured into that part of the State, and the value of all real estate so increased that this particular tract is found by the jury to be worth $8000. After years have passed, and all the parties interested in the matter, other, than the United States, have treated it as the property of the plaintiff, the. defendant, relying upon a technical construction of the statutes,

But. further, it is urged that this question of title has been determined in the land department adversely to the claim of the plaintiff. This is doubtless true, but it was so determined, not upon any question of fact, but upon a construction of the law; and such matter, as we have repeatedly held, is not concluded by the decision of the land department. Johnson v. Towsley, 13 Wall. 72 ; Shepley v. Cowan, 91 U. S. 330 ; Quinby v. Conlan, 104 U. S. 420 ; Doolan v. Carr, 125 U. S. 618 , 624; Lake Superior Ship Canal &c. Co. v. Cunningham, 155 U. S. 354 .

Defendant also claims an estoppel by reason of these facts set up as a third defence in his answer, the truth of which was on the trial admitted by the plaintiff. The final decision of the Secretary adversely to the claim of the plaintiff was on or about the 10th day of January, 1890. (The testimony in this case shows that it was made on January 24, 1890.) Subsequent to that decision the defendant entered upon the premises, built a residence, and made other improvements, at a cost of more than $200. The plaintiff knew of his possession and of the making of such improvements, but took no action until .the commencement of this suit, on April 9, 1890. It seems to us that the claim of an estoppel can hardly be seriously made. The plaintiff had been contesting for these lands in the land department for a series of years. Some time after the final decision therein the defendant enters upon the land and commences making improvements, and in making such improve

For these reasons' we are of the opinion that the Circuit Court erred in its decision, and its judgment is, therefore,

Reversedl, and a new trial ordered.

Mr. Justice Harlan dissented.

The Chief Justice took no part in the consideration and decision of this case.