:874 heldl:;lysaid state and purpolle aforesaid: provided, thaM4l.' lands ,to ,be so located ,shall nQ bef II rther than twenty miles from tlie' line of said road, nor shall slich' selection or location,be,madeinlieu'of,.latltls i recei,ved. l,ltlder the said grant of June three, eigb*e.enbundl'tldandtifty..sixl:butBuch selections anil may be made for tbe,b&De6tof sa;d sbate, aforesaid j:to supply any dedeieney, Ulltletithesaid:grllnt;of June.,·tbreBj eighteenbuudl'ed and fifty-six, lIhQuld: l\bYi such defioit>ncyex j s t , · : ,,','§ 3.,;That there bepabdishereby. granted to the lliiding,in ithe conetl'llctlon:of a railroad ftom' Portage city, Berlin.:.l!oty:··island.,or Fond 8ssaidstate may Q,eterm;i ne, in' a northwesterDJdk.eotion.. to Ba.1t:1eld. 'aod ,thence to Supt>rior, an Lilla Superior, BV'of.public land, designated by odd numbers; for tt'll seotionlllntwidth,oneach road, upon the sametetmsandeollditions , as arit,containedin theacli 'g.rallliing lands to said state toraid: in the construesa.id,stldjerI8ppro\'ed'Junpthref', elghteell huriJl'edand fifty"six., >.ll!tt in' case :it slllUli.appear that the United States han,when the line, lm"rolite lXi"said roalJ iso(dinitely fixed, ,sold,resel'Ved, 'or otherwise disof.,ny:st\Ctionsor. ,granted as af(lreslddjior Ithatthe right has&ttaabed to the same; I t1Jati it shall be lawful a.genbs;of$aid. state, appointed by thegovernol'theroof, to se· s.u totheapprol'ldof. thesecrelsllY olthe interiol!;'froWt.he lilhdsot the sections abovespeciflt>d;1l8'mu.ch'public land in aJternate or ,paftIt1of,seetions, as 'shall be eqllhl to'suoh lands liS the Unitf:d;Sta'e& have sold 'or ,(llllAerwise:l\piJropriated, otto which the right of pr.j,oemption.. ordlOmersteMbaS.at1iached; as ll.foresaid.wblch4ands. thus selectfllj;inlieu:,of those rsoJd.£D,d to whdbbthe right of pre-ernption or 11Qme" !'tead ,has:abtached. asafqresaid, 'together with sect!dnliand'· parts 'of 'Sections designated· by odd Dumuers".as. aforesaid, and nppropl'iated;rasaforesaid, shall be beld.by aaid:state,. or by tbecompany'towhich'shemay transfer the'same, for, tbEh·1ilSlkIUlid' purpose.: : prov.ided, tha tthe hmtls ito be 80 I'ocated allaIl lQ,oo"case be·fuftbel,'tb,an twenty 'wiles from the lim-of sll.idrOlfd,· . ."§ 4"" That the .secti.o1l8 and parta ofsectioos' of land remain to the United States within ten miles on each side of said loads shall 'not be sold for le&s thal1:,double theminimumprtoe of the when sold, nor of the ,said lltndsbecornesubject 'to Iitilt1l.te enttyUntil the 8amehave.,been,firstofl'eredatpubJic Side at the increased' price, ' ' ,.'f§S·.That :t;be,timetioced and limited :for the completion' efllaid roads i nthe actaforeaaid"of ,J'iuns three,.eighteen huntlredand ficti-six'be; al10 the same is of yeal/strom and after'th.'pa:ssage of this act; . ':J;hatlLD)': lUldalllunds reserved to the UnitedStdtee by'ur.y act of con.. gressfQl'.:thepnrPQIle of aiding in any object of i1lternall :improvell!ent, or in any mannel\,f4)l',any purpose wliatsoever', and all mi1ieral'·hmds,be, and the same are ht>reb'. ireserv:ed,and exeluded'fl'Omthe opefutibti this !lct; except so far, as,it may bEl fmlnd necessllry to Jooattl the route of s'llcbrailroads tlirough such. reserevediJanQs;in 'wbieh·case ·the'right of wayonl; fibaIl be granted, 8ubjtICt. to the the presidelltof tbeD n!t&FStatell;' '. . '." '!§ the cbmpanies towhieb this 'jgranUidnade,or to which tb. eawe·ll18ybe.transferred, shan bavecompleted:tw!entY'CObseeUlive miles of,anyrpt)l'tion!flfJsaid ;ralll'eads, supplied with all necessary drains, culverts, Viadllots,eroSBinRS.sidings, bl'idges, t urn;'outs, pluceS,depots, ments, fumiture,.and aliothel'appliI:rtf>nIl11ces:of a firaWIMSl'il'ilroltd,patents said altaIl i!ls.ue oonvey.ng the right and title wsaid lands titJed thereto, lm: each side of tIle toad, :SOlar 'as the saine is completed and oote.rmi nouswit&l, saUl, '.completed section i' Jlotlexceedinir the' amount afore-' in. like JPaliner' isaueas' eacbtwentlJmile30ftiailf road
7.:
WISCONSIN CENT. R. CO.
V: FOR81'THE.
875
Is completed: ,provided, however, that J,lQ" patf'uts l;lball issne tor 811y ot said lands unless there shall be presented to tne secretary of the interior a statement. verllied oh outh or affirmation by the president of said company. and, certifif>d by the governor of the state of Wisconsin, that such twenty miles have been completed in the manner required by this act, and setting forth with certainty the points where such twenty mUes begin and where the same end, which oath shall be taken before a judge of a court of record of the , United States. "§ 8. 'rhat the said lands hereby granted shall, when patented as provided in section seven of this act. be subject to the disposal of companies respectively entitled tht'reto, for the purpose aforesaid, and no other; and the said railroads shall be and remain public highways for the use of the governmentof the United St:ttes, free from all toll or other charge, for the transportation of any property or troops of the United States. "§ 9. That ifsaid road, mentioned in the third section,aforesaid, is not completed within ten yeal's froro the time of the plj,ssage of this act. as provided herein,nofurther patents shall be issued company for sai.d lands, an<i 110 further sale shall be made,llnd the lands unsold shall revert to the United States;, II 18 St. 66. By an act of the Wisconsin legislature,approved March 20,1865, the benefit of this act, so far as it related, to the road from the St. Croix riv{)r. to the west end of Lake Superior and to Bayfield j was granted to the St. Croix and Lake Superior Railroad Company. subject to 'all: the and restrictions imposednpon the state by the said .acts of MllY,5, and June 3, ,1856. Gen. Laws Wis. 1865, c. 175, § 1: same corporation, already referrlldto, that.wasllllowed to receive from the La Crosse &Milwaukee Railroad Company the benefit of the ,act of JuneS, 1856, 'relating ,the same line of roads. On 22d of April, 1865, the St. Croix and Lake Superior Railroad Compaqy, by its executive of Jands made by the ,of congress of 1864, and by the ahove act of the Wisconsiri legislature o(,¥arch 20, 1865, so far as it related to the road from the St. Croix river or lake to the west end of Lake Superior and to Bayfield. That wmmittee also passed a resolution that the line as now by maps on file in the land-o,f,Ece at Washington be the'line adopted Jor the selection of lands conferred Oil this company by grant." plaintiff, the Wisconsin Central Railroad Company, to be hereafter called the "Central COIIlpany," was formerly the Portage, WiIinebago &SuPerlor Railroad Company, the latter having been lormed in 1869. by the consolidation ofthe Portage & Lake Superior Railroad Com... pany, and the Winnebago & Lake Superior Railroad Company j the two constit\lent,companies having been incorporatec! in 1866 lor Ihe purpose, as recited in the titles of their respective acts of incorporation , of execut- ' ing the trust created by the act of congress of May 5, 1864. P. ,& L. Laws Wis.,L866, cc. 314,,362; 1869, c. 257;' 1871, c. 27. It is: not in the present.case. that the ,Central Company succeeded to all coplerrE;d by the state upon the companies to which ' were transferred the benefit of the grant of. lands contained in the third' sect,ioDof)pe Bet 5,1864. controverted 'that; the road CIlPtral COll1pany from, .Stevep$' Point to Lake Superior, iii.. .,,..' ,- '.
act
,
of ,
FEDERAL REPORTER,
vol. 43.
to Ashland,on Lake Superior, in accotdance with the acts of congress and of the legislature of Wisconsin. It was definitely located November 10, 1869.. ,Its map of definite location was filed in the proper office, and it appeared in evidence that the commissioner of the general land-office, on the 10th of December, 1869, sent to the register and receiver at Bayfield, Wis., "a diagram of the Portage, Winnebago. and Superior Railroad, under actc;>t May 5, third section, and joint rllsolutions 21st Juoe,J866, (l{St. 360,) within the ten and twenty inileJimits of the lanq griu;lt designated thereon," and directed them to withdraw "from sa,le odQ!Jll.tion,. pre-emption or homestead entry, all the odd-numbered sections of lands falling within those limits." The road;from the St. Croix 'fiver or lake to Superior,on Lake Superior,antltbe )3ayfield branch, were constructed and and opbttl1e Chicago, St. Pa\ll, Minneapolis & Omab,a:RailroadCompal1Y',to be'hereafter, for the sake of brevity, called the ",Omaha Company," the successor of the St. Croix & Superior Rail,road Company, and theow,ner oitha rights and privileges granted to,thc:lattercompany in! respect to the above road imd bralloh. 'The road locllted' under the Iict'of':1S56 from a point n6rth of St. Orbix river or hihto BaYfield alpproadhea that of the Central COlllpany, located under the act of 1864, as .the 'latter proceeds in a north-westerly course to ;..cshlaild, and both place! and indelunity limits of the central road conflict with or overIBpsthe indemnity limits of the Bayfield branch of the Omaha GolrJpany. . . On the 12thof February, 1884, the Central Company and the Omaha Oompanyentered into the adjustment 9f the controversy,between them' as to the land in the overlap of the grants made by the:actsofoongress of June 3, 1856, and May 5, 1864·. By that agreementthe Omaha Companyoonsented that the CentralComp'any should " 1lake, patents· for all the lands in the overlap lying east ofthe easterly tenmBe limit of the Bayfield branch of the OI1J1iha Com pa.ny, and north and east6f the:westerly ten-mile limit of the Central Company;" while the Omaha, Ct;>mpany was to have all the other lands within the oV'erlap of .' '. those grantS. The Central Company. having constructed roads frotu Portage city and from Menasha,br Doty's island, to Stevens' Point, thence to Ashland, on, Lake'StipElrior, in conformity with the acts of congress and Wisthe state, February 25, 1884, a patent "for so consin" much of :said lands granted aforesaid as are situatedpn either side of, and coterminous with, said com pleted portions of saId road'." The lands,inidispute!a,re covered by that patent. 'On the 19t1i::Of'February-, 1887, the Omaha Company executed to the central:· Company 'a deed of release as to certain lands, described by metes and bountis;ithe deed reciting that the former cornpaqyintends'to surrender t<!>' ;the lattellcomplmy- " ' ,': ." WithilttlJe o'verlapping limits of said of;th(;lea.. limit of the Bayfield branch ofsaidChfcago,St: Paul,
thoughnot'"OD the precise lilies originally specified, "'as
or
WISCONSIN CENT. R. CO. ll. FORSYTHE.
871
Minneapolis and Omaha Railway, and northerly and easterly ot the westerly ten-mile limit of the Wisconsin C!!ntral Railroad Cpmpany;and hereby consents that said lands be conveyed by the United States to the state of Wis· consin, for the use and benefit of the Wisconsin Central RaIlroad Company, or that the same be patented by the United States to said Wisconsin Central Railroad Company, as may be appropriated in accordance with the selection thereof heretofore made, or hereafter to be made, by or for said Wisconsin Central RailroadCompany, as of lands within its land grant. under said acts of congress above mentioned." In the year 1887, the Omaha Company applied to the general land· office for the final adjustment of its land grants under the acts of June 3, 1856, and May .5,1864. Upon the hearing of that application, it was, among other things, determined, October, 1887, by the secretary of the interior, upon appeal from the commissioner of the land-office, that the lands within the 15-mile indemnity limits of the Bayfield road, as de.,; fined in the act of 1856, were, by virtue of the· orders' of the secretary, "reserved to the United States," and were not included in the grant in the act of 1864 for the road named in its third section, now Railroad, and were so reserved before the passage of the act.of1864, fOil the purpose of indemnifying the Bayfied' road: for' losses, if any should occur; in its place limits. To that proceeding the Central Company was nota party, and of its institution and pendency had no notice. 6 Dec· . Dep. Int. 190, 1.94, 196.209, 210, 217. On the2dof July, 1887, the Central Company listed in the land departments large quantity of lands, including the lands in dispute, as' having inured t(l it under and by section 3 orthe act of May 5, 1864. After the decision of the secretary of the interior, above referred to, the Central Company appeared before the land department, and dem'anded a. hearing on the. above question determined at the time of the adjustment of the grant of· the Omaha Company. claiming that such determination was not binding upon it; that it was not a party to, and had not been heard in, the proceeding in which it was made; that the lands listed by it were not excluded from the grant in section 3 of the act of 1864; that their withdrawal by the secretary was not a reservation to the United States, within the meaning of section 6 of that act; and that, if such withdrawal amounted to such a reservation, it was revoked and nated by the act of May 5, 1864. Upon this application, the above question was reargued before the secretary of the interior, in the present year, upon an appeal to him by the Central Company. It was held by Secretary Noble, in harmony with the ruling of Secretary Lamar, 'that the lands within the limits of the indemnity withdrawal made'forthEl benefit of the Bayfield road, were, by section 6 oUhe act of May 5,1884,' excluded from the grant contained in the third section of that act for the Central road; and that the title to all lands within such indemnity with·; drawal for the Bayfield road, not ultimately required for the indemnity pu.rposes for which it was made, remained in the United States. 10 Dec. Dep. Int. 63, '77. Shortiy after the decision last referred to, the.defendsnt, being a citi·, zenor the; United States,an<i over 21 yeats qhge, made a formal entry
FEDERA;r, :2EPORTER,
vol 43.
lr
of the,· lands in ciispute,·,taking,.tl11 the'steps, and' payilitaU; the charges fttcld'feQrrequiredby law'.fdi"8utlh entry. ." ,",,:1, ,I ,C', , ," ,part· of thbseso listedpy' tije)lailltHl',:nre;we and' the enlarged iQ on.eac11 branch of the Qm/:!-ha,oIoad -as estabiished by t11efi.rst section ofthe:act of 1864, but{and tbis is an tant fact in the cllse} are within: the 15-mile indemnity limits of that road, as those limits are defined by the act of 1856.' 'It is also necessary to observe that they are within the: place limits;--,-l0 secHolls in width on each side-....of the Central road,. as established by the third section of theaot ofl864. The contention·of the plaintiff is,that,as the grant in that.section was one in prlZSenti,these lands, upon the filing and acceptRnceofitsmap of definite location, became its pro'perty, as of the date oftheaQtof 1864, subject only to condition, if its road was not completed' within the time prescribed" by congress; "'no further patents shall be to said company for, said lands, and no further sale shall b& made, and the lands unsold "hall revert to the United States." 13 St. p.6.81"c.,80, § 9. Iteanaot be disputed that thegmnt of lands in t'geact of 1856 for the beuefitot·.theBayfield roadl'was also .onein pl'l1Mntij that prior to the passage of the act of the lcompany constructimg.that road had, by the filing and acceptance of its map of definite locntidn,!earned its place' lands, Bubject only to the condition, prescribeditl . t he fourth section of the set qii1856, that if the' road waS .not completed within tlie time designated,. stich lands ,as remained unsOld, should revp.rt tothe United States. Nor can;j{bedisputed thRt, to ,1864, all the lands within the 15-mile indemnity limits of that mad, of which those here in dispute formed a. park had been lawJullywithdrawn, trom sale. or location, in order that the state, ,withtheapproval :ofthe secretary of theillterior, might select therefrom lands..to supply deficieneies that may have resulted from pre\QOU$ sales or approlJriationsbytheUnited StutesoflandSiwithinthe placelimits:oUhat road, as defined by act of 1856. And yet it is said that congress intended by the, third section !of the act of 1864· to grant to the state., for the beRefit of another road,whose route had bot then been located, such part of the indemnity lands of the Bayfield branch the designated place limits Of that other road. It is arguedtbat to this extent, at least, theaet of 1856 was superseded and repealed by thatof 1864.·. ., ' At the. tbteshold of the inquir.yas to whether the act of 1856wI18 repealed. we.are confronted these facts: That the act Qf1864,<lontains.no words ofrepeal;:thatit does not, ill terms,disturb which had accrued or: become vested under the former act;;:thatita ,tif1St fiectionrecognilles the· indemnity limiUlQ.1 the Bay,field Jandsindispute quite as distinctly as the third cOQatr;ued.alone, puts thew'in.the place limits:ofthe road men.. tioned in it; that in four out of nine sections of the act of 1864 the·act wrms,and qonditionsrds referred to,aild' its continuing Tecognized j that ,when the act'
.i': .,' ,
W
<;El\T. 'R; CO. V,',EORSYlTHE.
'J8&4,\vas;passeq, only eight of the ten years,given in :the act oU856 for the, completion of the roads therein meotioned had anll'ltbat ,the act of 18f)4, so far from superseding altogether the act of .1856; &tends "the 11ime, fixed ,and limited for .of the Said roads in the of June 18,56," toa period of five: years from::and ,after lfllSSage of the act of 1864, while it gives .ten years frow ita pas,s!!gefol' of.theroad mentioned inthe thirds:eo.ti,olli thus different fc>otiog as, totimeftqm that the roads mentioned in the act of 1856. . ; 1l:aese facts play not be condusive againsttb.e suggestioaohepeal, but ,theYi ,tend to show that congress did ,not·,intend,,to 'wholly dis. " . ' ",;, i ... 'J,'pe,acto[J864 undoubtedly took the place oUbnt,of 1856Aorcertain purp,oses. While, as was ,beld by this court in :MadiBon& Portage,R. ,C'q. v.$W;teoj.WiscO'n.8in" in,187:9" theaet.ofI85&conrendel'edpoil$ible. the construction by ·one lcompanyof a rOl!od fr9m Ma.disQn or :Cphimhu$,:YiaPor.tage Oity and or Lake,$uperiorandto Bay,.. , of: Hne:wasdestroyedb, the ll;Ct 00864" :which both gra,nt .made by ,cpugres8 inllM6.. In the it Wllss/ljd;, ' , : , ' " , . ;,,' J ; i : :, ," · :," Thisi course was, 8uggestell by. of Which we may preC9ngJ;eS8 had nea,rly .the the fune 3,,1S56, withou,t .lpg, done upon the line west north of Tomllh,bey.on.;! the mere IC;>Cl3tlon of'tb'e,l'oute from Tomah;'vlaSt. Ctdix.river or .. to 'But, , whatEllver'conslderations 'Ina" have Inlluenced congress, 'weare' satisfied tbat the purpose of the act of May 5, 1864, was to break the continuity of the olig,in8illine>tl'OmTomah, via Stl Croix river ol'lake,to. the west end of D.ake ll.Ild to and todeyotll to the consttll,ctionof; separate !J,lld distinct portll,ms of that line an I?crel\sed quall,tity oOandsbeyond the. !l'IDQU,llt gran'ted by, or \Vhich could have been made the.actof 1856.;' In the pame .CRE!e, it 'faa held thnt congres8 that all the- lands ,grapted by. and eameduo.dElr the act of May 6, 1864,. by means of conbe Clisposed of according to the cotermino.us principle. which each rpadwould get. the of the lands granted bv and Elarned under that .act that. were cotermin.ous with each COXDpieted section of 20 miles,"-;-/1. mode of disposing of them not absolutely required by the act of 1856. 10 these and perhaps in other-r.espects, place of, or super,not)na,terial to be considered, the act of 1864 took seded, the act of 1856. But did it operate to displace the first act tathe extent claimEld by the plaintiff? .. . ... ' . ' . ." " 1'heflrE!t .section of the act of 1864 certainly, gives no. ,positi,ontaken by the plaintiff. It disclosesjaswehavesaid,nop1lrpose .upon the {>8rt of congress :to·disturb or displace any' 8ubst8ntilll'right vel!lted lor aequired .under the· 6r .t4. cripple anyrailioadCdlH·pal'ly,'th.a,thad proceede<l.tinderthe act of . :l:t does ).;p. .as of its, 0(' ... the pt;10full elWh t1;le,particw,mads
etc.,.
··
j
'
.!
. '
·
'.
-
r
880
J'EDERAL REPORTER,
vol. 48.
therein mentioned, with indemnity limits of 20 miles. It is, in legal decided in the Madison-Portage Case, a grant effect, 88 of 4 additi..onaZsections in width of place lands, with indemnity limits enlarged'from 15 to 20 miles, and a confirmation of the previous grant of6sectionsjn width of place l,ands, with 15 miles indemnity limits. It converted 4 miles of the indemnity limits, as defined in the act of1856, into place limits of the road to Bayfield, and added 5 miles on each side of the place limits, thus enlarged, to the indemnity limits·. But it left untouched the grant, made in 1856, for the ,same line of road, of 6 sections in",vidthoil'eaeh side, with indemnity limits ofl5 miles. This view is the explicit recognition, in the first section of the act of 1864, of the fact that the additional lands therein granted are for the "same purpose" as were the lands originally granted by the act Of 1856, which the,a,ct of 1864 required to be "deducted" from the aggregate of 10 sectionsin width on each side of theroadi thereafter to constitute the place limits oithe Bayfield branch. The first section of the act of 1864 should receive the same construction that would be given if it had, in words, addedfoursections'in width to the place limits, and five miles totbe indemnity limitsj on each side of the road. The result; according tothis view j is ,that, except as to that part of the indemnity lands converted by the first section of the act of -1864 into place lands of the Bayfield' road, the order- of the secretary,' made prior' to that year, withdrawing from sale and location for the benefit of that road its entire indemnity lands, Was notaorOgEited or annulled by th!!t act. So far from. congress intending to Bayfield'Nad of any part of its original indemllity lands; it a part of them its place limits, and increased its indemnity limits. by;five miles. If this interpretation of the first section of the act of 1864 should be wrong, and if that section' should be' construed as an entirely grant, as of date of that act, ,of 10 sections in width, with' indemnity limits of 20 rniles on each side of the foad, the result would be that congress;. by -the same act, embraced the lands in dispute within ,the indemnity limits of the Bayfield toad, and within the place of the Central road.' And such we understand to be, substantially, the position of the plaintiff; for it contends that the act of 1864 superseded and took the place of the act of 1856 in all material respects, "so that the grants of the Omaha Company and of the Central Company were in fact contemporaneous grants." A view somewhat similar was presented at the argument of the case of Madison & P. R. Co. v; State, ' The eourt then said: ."Although the Wisconsin Central, Railroad Company hasQled no cross·bill. and'bas' only presented its claiitis by answer, it mal'" not'be improper for us t:o,express an opinion upon the ,effect of the grant by the act of 1864, when ill a or overlapping 'of lands granted to the different railroads as thllY approach largequllntities of lands being thus granted b' ,t4e, act to. roads.· ,T!l('se are made by the flame law operating On the, lands, granted at Lhe same time. ' The Wisconsin Hailroad has comp'Ietedits road to Ashland, on Lake Superior, a point not named in the'act; but up tbe present time no road has been finished to Bayfield,
in
the
WISCOKBIN CEIo;T. R.
co.
'V. FORSYTHE.
881
or to the west end of Lake Superior. and. without foreclosing the parties upon this question, we should be inclined to think that the different companies, as tu ,all lands overlapping in the respective gra.nts. must be considered tenants in common, without regard to priority of construction."
The cOl1-rt concedes the force of the that what appears in the above extract from the opinion in the former case was not absolutely necessary to the determination of any specific issue therein made, in respect to which affirmative reliefcould have been given. It is now alluded to for the purpose of saying that, if the present case depended upon the first. and third sections of the act of 1864 j without reference to the sixth section, there would be ground for holding, in respect to the particular lands in dispute, and other lands similarly situated, that the Omaha Company and the Central Company beoame tenants in common, .without regatd to priority of construction; in which event the agreement between theml the deed of release from the Omaha Company, and the patent from the 'state, might perhaps be sufficient to austain the.titIe:of the plaintifi\as against the defendant. But no question was made in the Jormer case as to the scope of section 6 of the act of 1864, nor was there any question in that case as to the effect of the withdrawal, prior to .the act of 1864, from sale or location, and for the ; benefit of the .Ba.yfield road,of lands that are within the outer boundaries of the place limits of the road, mentioned in the third section of that act. There was, consequently, no occasion to consider, and the court did not determine in the former case, the question -Whether the lands here in dispute, or any lands similarly situated, were excluded from the operation of the act of 1864 in virtue of its sixth section, and by reason of the secretary's previous orders withdrawing them from sale or location. We proceed now to inquire whether the lands in dispute -were in fact granted by the third section of the act of 1864. That section grants to the state, to aid in the construction of the road therein mentioned,"every alternate section of public land, designated by odd numbers, for ten sections in width 011 each side of said road;" and we have seen that the lands in dispute constitute part of SODle of those odd-numbered sections. But the sixth section expressly reserves and excludes jrfYm the operation oj the act, not only mineral lands, but "any and all lands reserved to the United States by any act of congress, for the purpose of aiding in any object of internal improvement, or in any manner, for any purpose whatsoever." If, when the act of 1864 was passed, those lands were "reserved to the United States * * . . in any manneI', for any purpose whatsoever," then they were expressly excluded from the operation of the act, therefore were nltt granted. Were they not so reserved by the. order of the secretary of the interior, which had not been modified or rescinded. by him when the act of 1864 was passed? The plaintiff insists that, while they may have been regarded as reserved .for the benefit of a particular road, they were not, within the meaning of the act, in reserved"to the United States." This position cannot view of the decisions of the supreme court of the United States. The lands embraced in the withdrawals, although held as indemnity v.43F.no.12-56 .
;882
>,FEDERAL ,REPORTER
vol., 48.,·' '1:'
,intitle' : them com be, after CIted on another pomt, althotlgn withdrawn from sale or locatIOn iii order,tll$t bees! inthe.pla(jeHmits of the Bayfield road';;tfijght :be seleCtions, :frOlu;them, the title, the right of ,property ',ofl tillle,UhitelihStates, .lrem,ain;eduriaffectedJttntili 8Uch selections .were' actually made ,andrupproved. i' They, were, it is truer in mass by;thf j *ta:te'sagent,af,tter::1Ihei,mltpnf:definite location' (lfthe 'Bayfield road ,1 did. :not ,change. the , was' fi[ed:·and .approved j' ,'rig}qlflOf'property, apart by the land departFwebtr!to,supplyanyascertained, 10ssesiriplace limitS. i': The reservation of ,them::was lsolely' to the 'United States might,at the 'proper time; use them in meetilngdts 'obligations on aCQrium:qfthe'Bayfield road. In every, 'aen8e, jthel1eforei they were; by com patent &utborit.y,"reserved to ,theUnitoo 'States;,,?! thei UDdted States as' lands' not granted, and therefore 'al its'protredyv The:wiithdrawal:oftheril.from sale Gl'i!ooa.'tion,:undeii<tM geri-eml laws' providing 'fol': the administration of the a:re&ervationOf tliemby'apd"to the United ;States; 'atid'lthaill'w>RS their condition wJU!l1 tne'act of 1864wll.S passed,. ·Herewe"ara'.metJi'with HIe dnqullJ'YI whethell<CQngress couldhavl3 intended lin respecMo the :road'mamnoned in the third section of the aot 'of t0malteto the 'State agran1pthat iwoul!i"oover these lands, and, by the the altogether from the 'grant.': I l'bi.'ftflhardly anacauTa1Je';'6i':full'stateqIent,of.the:questionf , iallli propgunded, assumes' ttw very' matter to be decided. lit ,assumes '1.ha£eoongresS!' intendedijdai I ail;;eventlt,: .by the third' section.': of ,'the actofr1864!J :togriznt' theselandk1pandother larlds ,similarly' ilituated, 'as place lands: of the road,tnentioned;tobecdme, :a8of theqate Of .grant, ,thel1pltoperlydf :the ooltlpanyconstructing: that road, when· its route: WMfi&l'lally located.,J ,SuCh LaSsUIrt ption, ibe we looked' a.l(')I1e"tothlY' third 'section I ii' We) carinot;however j i in construing .the aot, :ignorelrtbe::fi,rstand,sixt;b,o,sections.The entire act must be takentogether'APd'inconnection with 'the act' of '1856, ih order to as;·certainthe at.the sixth fil:lction.. ofthe aet of d864, in with thethird,iit is clear that the words ofthe latterseetion are'subjectto the expresS 'condition) contained in theformer, that the grant'$hall notincludeany,!fmds "resevvooto the United States '!"inany;manper,fo'V any purpose whutsoever.", The sixth secI tioDshould 'receive ,tbesame, cODstructionprecisely :that would be given ,iif it had been :eimplya pro\'iso of the third It' is' 8.$ if conkress 'had declared; in words: We;give to the state, (or the benefit of the road 'tit be, :Qonstfucted from Portage Ciity, Berlin,. Doty's islaJ;ld,: or Fond du Lac,iu a"dorth-'westem direction; ,to Bayfield, thence to'Superior;on ,LakeSupel'ior-,ileveryalilemlite eection of publidand;designated by odd ,numbers, furteIi miles ,in: Width 'iOn; each side ortner road,: except or excluding s'l1chlandswithinthose: limit!! as are reserved 'to 'the ,United atates in: any manner\ for any 'parpose: :' l
::t:'niwd'StlJi1les;:, "
.;
,I
"
WISCONSIN CENT. B.CO. V. P'ORSYTHE.
883
"This construction, it is icontended, ca.nnot be sound, as it would deprive even the road mentionoo in the first section of the act of1864 (the Bayfield btilnch) of the all the lands withdrawn from sale'dr location by the secretary's order; and this, for the reason that the broad language of:the sixth section of. the act of 1864 emhraces every road in that act mentioned.. Not'at all; for, as heretofore:shown, the lands in dispute constituted a part of the indemnity lands ·of the Bayfield road under the act of general purposes, terms, and conditions of that road which are recognized by,the act of 1864. had in respect to those pal'ticUlar lands arose under the act of 1856, and did not come from whahna:y be'regarded as the "new grant, " in the act of 1864, giving additional place 'lands,with enlarged indemnity limits. Even if it were ttue that the grant in the act of1856 for the Bayfield toad was a new grant as to aU of the lands within the place limits of that road as enlarged by the act of 1864, the result would be the same; for in the cal3e supposed there 'Would be ground to hold that the sixth section excluded the landS in dispute from the act of 1864; in which event,' so Omaha .and Central Companies were .contietned, they would far have as to the United States,": and therefore ex· eluded altogether from the operation of the We think that some, eOilfusion has come into th.is case by reason. of the fact that the grant for the Central road is in the same act that en... larges tbegt;ant made the ,Bayfield road in 1856.. Let us suppose that the act of 1864 :lwd. made no reference whatever to the act. of 1856 1 and had contained on,ly a grant to the state, inthe words of the third section of the former aGt, by a distinct clause or section, reserving .and.excluding from the operation of the aqt any and all lands the United .States " either by an act of congress or in an'y Qtherl1l8,nne,r, Would it be pretended that such an to the.state the lands' previously of road, whose, had then been definitely whose indenmity lands had beenwithqra\vn and reserved from sale or location by the the interior, in order to supply deficienpies, if any were tQund: to exist', in the place Hmits of that other road? . Wit ;think not. Anli yet there is really no, diffl;lrence in law between.the .case now and the case supposed. , we.have not given weight to the secretary's o1'(ler o'f with.. drawal, or IJlisinterpreted jt, is abllnd:mtlyestablished by clt!cisions, (If the sUpren)6 c()urt in caselUomewhat similar to present one. de<rision$, ,whatever might ,be the view of this court as to the of the words "r\l8erved to the UnitedStates," if the question werefor the fir< tWlf3. fOf determfnatic,m, no r09JP for doubt as to our duty in present case.. 10 congress, "fof'the purpose thewrt;ito,ry<?f I9wa to h'pprove the PesMoinesrh;er from its mouth to the' Raccoon Fork,' so called," ninde a grant to that .territpry, p f - - ; - " , , , :, ' . . . . .' " ,. ., "On.t"f'qual moiety, j,nlllternllte sflctiol;lS. Qfthe p,ll,blic,lands J"!'tnaiQjl'\g;unBold, ,and,not. otherwis.e .disPQ&Ied of,incu,mbered, or: JlPprppriattd·. iJ:l,
of
884
vol. 43.'
five m'Ues In width on each side of said river, to be selected within said territory by an agent or agents to be appointed by the govern9r thereof, subject to of the secretary of the treasury of the Vnited States." 9 St. c. 103" § 1. ' The Des Moines riv.er naes in the northern part of Iowa, and empties into the Mississippi at the south-east corner of that state. The Raccoon fork, coming from the north-west, enters the Des Moines river, near the center of the state, many miles above the mouth of that river. Subsequently, on the 15th of May, 1856, congress granted to the state of Iowa;fo:r the purpose of aiding in the construction of certain railroads within its limits, every alternate section of land, designated by odd num. bers, fur six sections, in width on each side of each of said roads, with a proviso substantially in the words of the sixth section of the act of May 5, 1864, now before us.' That proviso (the jta1ics are purs) was in these words: "rrbat 80'Y and all land' heretofore ,reserved to the States ,by any act of or in any other manner:,by(jofflpetentau.thority. fo.r,the purposfl of ailling any objects. improvements, ort:or.anY purpose what. 80ever,. be, same reserved from the operation of this act. except so far as it may befoti!id necessary t? locate the routes Of the said rail c roads through such reservE!d land, in WhICh case the right df way shall be gratited;subject to the approval of the president of the United States." 11 st. p.9J 0.;28. § 1. : '. '. . .· ' . 0>. v. Ditchjield, 23 How. it decilled that the grant of 1846,did'hot lands above Raccoon for:tt,-thatis,. lands north and its the Des Moinesriverj but only lands below suchjuMtf011 'Vithinthe llrascribed distance from the river. In Wolcottv. NavigatwnOo., 5 Wall. 681,687, which illvolved the title to certain lands coveted by the above grant of 1846', it appp-ared that in August; 1859; the COmpal}Y, ,to' which the state,' succeeding to the riglli£l olthe territory, had in ;Mfiy; 1858, transferred the land granted to the territory, conveyed to Wolcott a halfsectitln within five miles of Des Moiries'river, but situated a.bove the junction of Raccooh fork with that river, and warranted the title. At the date of the passage of the act of May 15,1856, the odd-numbered' sections. within five miles of Des Moines river, above tile point where the; Racco'on fork empties into it, had beenreserved; notih terms ," tothe United States," but from sale by the proper officer having charge of the public lands. That reServation was in the belief, shared by many publiC officers,. that the grant of 1846 'included the odd-numbere,d sections above,as well as those below, that fork. within the prescribed distance from the river. The question' ''''ab'as.to the scope and effect of the proviso in the act of , It was admitted thattb,e graiit to Iowa by the aet of May 15, 1856,'for the benent of the railroads named in, it, embraced .the lands thennn dispute;'unlesstheY were exCluded by the This doni-taBid: ' , ' .. We thinklt difficult to resist the conclusion that congress, in the passage oUlle proviso, had specially in their minds this previoos.gtant.3ud the conflict 'fl( the 0l>illion'concerning it, and intendtld to reserve the lands for further dis..