Winona St v. Barney

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On the third of March, 1857, congress passed an act making a grant of lands to the territory of Minnesota to aid in the construction of certain railroads, with their branches, and, among others, a railroad from Winona, a town on the Mississippi river, via St. Peter, to a point on the Big Sioux river, south of the forty-fifth parallel of north latitude, which is in the present territory of Dakota. The language of the act is: 'That there be, and is hereby, granted to the territory' 'every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sec- tions, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the government of said territory or future state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternative sections or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid: which lands (thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid: provided, that the land to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches.' 11 St. at Large, 195.

On the twenty-second of May, of the same year, the legislature of the territory of Minnesota passed an act to execute the trust created by the act of congress, and, among other things, authorized a corporation previously formed, known as the Transit Railroad Company, to construct and operate the railroad mentioned, with one or more tracks, from Winona to the Big Sioux river, south of the forty-fifth parallel of north latitude, on the most direct and feasible route, by way of St. Peter, and granted to the company, in order to aid in the construction of the road, the interest and estate, present and prospective, of the territory and future state in the lands ceded by the act of congress, together with the rights, privileges, and immunities conferred by it. This grant was made with a proviso that the land should be exclusively applied to the construction of the road, and to no other purpose. The Transit Railroad Company subsequently mortgaged to the state the lands it had thu received, together with its franchises, in order to obtain aid to construct the road, and comply with the conditions on which the aid was given. It, however, made default, and the mortgage was foreclosed, and the property and franchises of the company were sold and bought in by the state. These proceedings took place before March 10, 1862. The territory of Minnesota became a state and was admitted into the Union in 1857; and on the tenth of March, 1862, its legislature passed an act transferring to the Winona and St. Peter Railroad Company, the defendant below, the lands, property, franchises, and privileges which the state had acquired from the Transit Railroad Company. Soon afterwards the defendant commenced the construction of the railroad, and before March, 1865, completed it from Winona to Rochester, a distance of 49 1/2 miles.

By an act passed on the third of March, 1865, congress increased the quantity of land, granted to Minnesota by the act of 1857, to 10 sections per mile for all of the roads and branches, subject to the same limitations attached to the original grant, and enlarged the limits within which indemnity lands were to be selected to 20 miles from the line of the roads. The third section provided 'that any lands which may have been granted to the territory or state of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of said grant or grants, shall be deducted from the full quantity of lands hereby granted, and that any lands which may have been so granted shall be strictly applied in accordance with the terms and conditions of said act or acts, unless subsequently modified by law.' 13 St. at Large, p. 526, § 3. The sixth section provided that lands granted by the act, or previously granted to the territory or state of Minnesota, 'shall be disposed of by said state for the purposes aforesaid only, and in manner following, namely: When the governor of said state shall certify to the secretary of the interior that any section of 10 consecutive miles of said road is completed in a good, substantial, and workmanlike manner, as a first-class railroad, and the said secretary shall be satisfied that said state has complied in good faith with this requirement, the said secretary of the interior shall issue to said state patents for all the lands granted and selected as aforesaid, not exceeding ten sections per mile, situated opposite to and within a limit of twenty miles of the line of said section of road thus completed, extending along the whole length of said completed section of ten miles of road, and no further. And when the governor of said state shall certify to the secretary of the interior, and the secretary shall be satisfied that another section of said road, ten consecutive miles in extent, connecting with the preceding section, or with some other first-class railroad which may be at the time in successful operation, is completed as aforesaid, the said secretary of the interior shall issue to the said state patents for all the lands granted and situated opposite to and within the limits of twenty miles of the line of the said completed section of road or roads, and extending the length of said section, and no further, not exceeding ten sections of land per mile for all that part of said road thus completed under the provisions of this act and the act to which this is an amendment; and so from time to time until said roads and branches are completed.'

After the passage of this act the railroad company proceeded with the construction of the road westerly from Rochester, and before October 31, 1867, completed it to Waseca, 102 miles and 79-100 of a mile from Winona. Of this distance, as already stated, 49 1/2 miles were constructed before March, 1865, and the remainder, viz., 53 miles and 39-100 of a mile were constructed afterwards. Lands had previously been granted to Minnesota for the construction of the Minnesota & Cedar Valley Railroad, and that road intersected the road of the defendant below between Rochester and Waseca. Its lands at the intersection were located within the limits of the extension made by the act of 1865 to the original grant of 1857.

On the thirty-first of October, 1867, the railroad company agreed with the plaintiffs, upon sufficient consideration, to convey to them as many acres of land, previously granted by congress to Minnesota, as the company should receive from the state by reason of the construction already had of the portion of the Winona & St. Peter Railroad, estimated to be 105 miles, (but in fact only 102 miles and 79-100 of a mile,) extending westward from Winona, which amounted, as was supposed, to about 600,000 acres, and which were to be selected as follows:

'Beginning at Winona, and from thence proceeding on each side of said railroad on a course running parallel therewith, and embracing each of the six, ten, fifteen, and twenty mile limits of the congressional land grants, and in proceeding taking all lands within each and all of said limits which shall be received by said company under said acts of congress, or either of them; it being understood that on each side of said railroad a uniform line of advance westwardly, embracing all the lands in said limits, shall be maintained as nearly as may be until as many acres shall have been selected and taken as the said company shall have received for the construction of the portion of said railroad now completed, which is estimated to be one hundred and five miles thereof, extending northerly and westerly from Winona as aforesaid; it being understood that the said parties of the first part shall receive as many acres as shall be received by the party of the second part for the construction of said one hundred and five miles, or so much thereof as is now constructed, notwithstanding that under the acts of congress the said lands are certified only upon the completion of sections of not less than ten miles of railroad, but reserving, excepting, and deducting from the said numbers of acres all lands necessary for the track of such railroad, or the right of way, or depots or depot grounds, or other purposes incidental to the operation of said railroad. And the said party of the second part agrees to acquire the title of said lands as fast as it may be permitted to do under said acts of congress, and to release and convey to the said parties of the first part, or to such other person or persons, is such manner, and from time to time, as may be directed by the said parties of the first part, or their counsel, on the request of the said parties of the firs part, or a majority of them.'

The execution, validity, and obligation of this contract are admitted. The present suit was commenced to enforce its specific performance, and the only question between the parties is as to the quantity of land to be conveyed under it. Before the suit was commenced the company had conveyed to the plaintiffs, in part performance of the contract, 317, 094 acres and 72-100 of an acre. As to that part of the road which was constructed under the act of 1857 from Winona to Rochester, the court held that under the act of congress, the legislation of the state, and the contract with the company, the plaintiffs were entitled to six full sections of land for each mile of the road, and that for any deficiencies existing when the route of the road was definitely fixed, arising from previous sales by the United States of portions of the land, or previous attachment of pre-emption rights, whether such sales took place, or pre-emption rights attached, before or after the passage of the act, equivalent iands were to be selected from the indemnity lands provided. And as to that part of the road which was constructed westerly from Rochester to Waseca after the passage of the act of 1865, the court held that the plaintiffs were entitled to 10 full sections per mile, without any deduction for the lands which were located at the intersecti n of the defendant's road with the road of the Minnesota & Cedar Valley Railroad Company, and within the grant for the latter's construction; and, as the result of these rulings, the court decided that the plaintiffs were entitled to a conveyance of 197, 111 acres and 93-100 of an acre, and entered a decree accordingly. From this decree the defendant has appealed to this court.

''Thos. Meson'', for appellant.

Mr. Gordon E. Cole for appellee.

FIELD, J.