Page:Federal Reporter, 1st Series, Volume 10.djvu/460

 448 FEDERAL fiEPOBTEB. �Again, in section 3: �" When said raiiroad shall have been builfc and conatructed to the point of intersection with the Sioux City & St. Paul Kailroad, etc., the governor shall patent, etc., to said Chicago, Milwaukee & St. Paul Railway Company all the remaining lands belonging to and embraced in said grant appertaining to their line of raiiroad, including all or any part or moiety of the lands in said over- lapping limits which by the terms of the act of congress appertain to their line of road." �We regard the eighth proposition, now under consideration, as the strongest and most cogent relied upon by the respondent's counsel, and it brings back our minds to the true and decisive question of the case, namely, what is in this respect the true construction of the act of congress granting the lands ? Was it the intention of the grantor that the lands in dispute should be applied to the building of two roads instead of one, and held in common by the companies, f ulfilling the conditions of the grant? Or is it the true construction of the grant that one of the companies might by priority of location and construction entitle itself to the ■vrhole of the lands within the over- lapping limits to the entire exclusion of the other ? If this is the true construction, it was competent for the executive department of the federal government and the trustee to patent the lands for the use and benefit of the defendant corporation to the exclusion of the com- plainant. �But if, as we hold, it was the purpose of congress and is the true construction of the act that the lands should be applied to the build- ing of hoth roads; that no one company could by mere priority entitle itself to any exclusive rightj that, on the contrary, the other company, by actually building its line to the point of junction, in accordance with the terms of the grant and the legislative will of the trustee, would entitle itself to equal participation in the lands, — then it was not competent for the executive department or the trustee to give the lands exclusively to the defendant company. If our construction of the grant be correct, the defendant company, by building their line of road, could "earn," so to speak, no more land than the law gave them, — that is, one undivided half of them; and if, by the action of the ex- ecutive department and the trustee, they obtain the legal title to the whole of the lands, they must hold them subject to the trusts created by the grant in favor of the other company. This trust equity will enforce according to its own well-known remediai processes. �Mr. Secretary Delano's decision, which seems to be the source of the defendant's claim of exclusive right, proceeded upon the sole ground of priority of location and construction. This was manifestly ��� �