Wisconsin Central Company v. Forsythe

This is an action of ejectment commenced on April 5, 1890, by the Wisconsin Central Railroad Company against William O. Forsythe in the circuit court of the United States for the Western district of Wisconsin, to recover possession of the S. W. 1/4 of section 11, township 47 N., of range 4 W., in the county of Ashland, Wis. At the trial, on April 16, 1891, the court instructed the jury to render a verdict for the defendant. Judgment having been entered on such verdict, the railroad company brought the case here on this writ of error.

The title of the plaintiff rests on these facts: On June 3, 1856, the United States made a grant of land to the state of Wisconsin. The first and fourth sectionso f the act making the grant are as follows:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that there be, and is hereby, granted to the state of Wisconsin for the purpose of aiding in the construction of a railroad from Madison, or Columbus, by the way of Portage City to the St. Croix river or lake between townships twenty-five and thirty-one, and from thence to the west end of Lake Superior; and to Bayfield; and also from Fond du Lac on Lake Winnebago, northerly to the state line, every alternate section of land designated by odd numbers for six sections in width on each side of said roads respectively. But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or 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 governor of said state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tier of sections above specified, so much land in alternate 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 right of pre-emption has attached, as aforesaid, which lands (thus selected in lieu of those sold to which pre-emption has 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 state of Wisconsin for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than fifteen miles from the line of the roads in each case, and selected for and on account of said roads: provided further, that the lands hereby granted shall be exclusively applied in the construction of that road for which it was granted and selected, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: and provided further, that 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, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the president of the United States.'

'Sec. 4. And be it further enacted, that the lands hereby granted to said state shall be disposed of by said state only in manner following, that is to say: That a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of roads, respectively, may be sold; and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of either of said roads are completed, then another like quantity of land hereby granted may be sold; and so from time to time until said roads are completed; and if said roads are not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States.' 11 Stat. 20.

We are concerned in this case with only the first of the two lines of road named, and shall therefore treat the act as referring to it alone. On June 12, 1856, a withdrawal of the lands deemed necessary for the satisfaction of this grant was made by the land department. The grant was accepted by the state of Wisconsin on October 8, 1856 (Laws Wis. 1856, c. 118), and on October 11, 1856, the state conferred the benefit of it upon the La Crosse & Milwaukee Railroad Company (Laws Wis. 1856, c. 122). Under authority of an act of date March 5, 1857 (Laws Wis. 1857, c. 230), the La Crosse & Milwaukee Railroad Company conveyed to the St. Croix & Lake Superior Railroad Compn y so much of the grant as was north of the St. Croix river or lake, and was to aid in constructing the road from that point to the west end of Lake Superior, and to Bayfield. On March 2, 1858, the St. Croix & Lake Superior Railroad Company filed in the land department at Washington its map of definite location of the road from the St. Croix river or lake to the west end of Lake Superior, and on July 17, 1858, a like map of definite location of the branch to Bayfield. On March 1, 1859, the commissioner of the general land office forwarded to the local land officers a plat showing these locations, together with the 6 and 15 mile limits thereof, and directed them to continue to reserve all vacant tracts outside of the 6 and within the 15 mile limits from sale or location for any purpose whatever. In the letter conveying this direction it was stated that the agent of the state had selected all the vacant lands between the 6 and 15 mile limits in lieu of the lands within the 6-mile limits already sold and pre-empted.

Nothing was done towards the construction of the road and branch from the St. Croix river or lake northward until after the passage by congress of the act of May 5, 1864 (13 Stat. 66). The first, third, fifth, and sixth sections of this act are as follows:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that there be, and is hereby, granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from a point on the St. Croix river or lake, between townships twenty-five and thirty-one, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said state, to Bayfield, every alternate section of public land designated by odd numbers, for ten sections in width on each side of said road, deducting any and all lands that may have been granted to the state of Wisconsin for the same purpose, by the act of congress of June three, eighteen hundred and fifty-six, upon the same terms and conditions as are contained in the act granting lands to the state of Wisconsin, to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved, or otherwise disposed of, any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, then it shall be lawful for any agent or agents, to be appointed by said company, to select, subject to the approval of the secretary of the interior, from the public lands of the United States nearest to the tier of sections above specified, as much land in alternate 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 right of pre-emption or homestead has attached as aforesaid, which lands (thus selected in lieu of those sold, and to which preemption or homestead right has attached as aforesaid, together with sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by said state for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than twenty miles from the line of the said roads, nor shall such selection or location be made in lieu of lands received under the said grant of June 3, 1856, but such selection and location may be made for the benefit of said state, and for the purpose aforesaid, to supply any deficiency under the said grant of June third, eighteen hundred and fifty-six, should any such deficiency exist.'

'Sec. 3. And be it further enacted, that there be, and is hereby, granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from Portage City, Berlin, Doty's Island, or Fond du Lac. as said state may determine, in a northwestern direction, to Bayfield, and thence to Superior on Lake Superir, every alternate section of public land, designated by odd numbers, for ten sections in width on each side of said road, upon the same terms and conditions as are contained in the act granting lands to said state to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved or otherwise disposed of any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, that it shall be lawful for any agent or agents of said state, appointed by the governor thereof, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tier of sections above specified, as much public land in alternate 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 right of pre-emption or homestead has attached as aforesaid, which lands (thus selected in lieu of those sold and to which the right of pre-emption or homestead has attached as aforesaid, together with sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by said state, or by the company to which she may transfer the same, for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than twenty miles from the line of said road.'

'Sec. 5. And be it further enacted, that the time fixed and limited for the completion of said roads in the act aforesaid of June three, eighteen hundred and fifty-six, be, and the same is hereby, extended to a period of five years from and after the passage of this act.

'Sec. 6. And be it further enacted, that 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, and all mineral lands be, and the same are hereby, reserved and excluded from the operation of this act, except so far as it may be found necessary to locate the route of such railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the president of the United States.'

On March 20, 1865, Wisconsin conferred upon the St. Croix & Lake Superior Railroad Company the full benefit of the grant made by the first section of this act. Laws Wis. 1865, c. 175. On April 22, 1865, the St. Croix & Lake Superior Railroad Company accepted this grant, and at the same time adopted the definite location theretofore made, as shown by the maps on file in the land office at Washington. In 1869 the legislature of Wisconsin passed an act (Laws 1869, c. 90) repealing said chapter 175 of the Laws of 1865, and in 1874 (Laws 1874, c. 126) conferred the benefit of grant on the North Wisconsin Railroad Company, which company afterwards, by consolidation, became merged in the Chicago, St. Paul, Minneapolis & Omaha Railroad Company (hereafter called the 'Omaha Company.') This company constructed, and now owns and operates, the road from St. Croix river or lake to Superior, on Lake Superior, and also the branch to Bayfield.

The grant made by section 3 of the act of congress (1864) was transferred by the state to the Portage, Winnebago & Lake Superior Railroad Company, whose name was afterwards changed to that of the Wisconsin Central Railroad Company, the plaintiff herein. Laws Wis. 1866, cc. 314, 362; Laws 1869, c. 257; Laws 1871, c. 27. The map of definite location of the road thus aided was filed on November 10, 1869. Prior to December 31, 1876, the plaintiff had constructed, and now owns and operates, the road as far north as Ashland, on Lake Superior. The Bayfield branch of the Omaha road also touches Ashland, and the land in controversy is within 10 miles of the plaintiff's road, and between 10 and 15 miles of the Omaha road.

On e bruary 12, 1884, the Omaha Company and the plaintiff, in consequence of the overlapping of their grants at and near the city of Ashland, entered into an agreement, which provided, among other things: 'The Omaha Company consents that the Central Company [plaintiff] shall take patents for all lands in the overlap lying east of the easterly ten-mile limit of the Bayfield Branch of the Omaha Company, and north and east of the westerly ten-mile limit of the Central Company, and agrees to assist the Central Company to get such patents from the state of Wisconsin.'

On February 25, 1884, the state of Wisconsin issued to the plaintiff a patent for a large quantity of land, including therein the tract in controversy; and on February 19, 1887, the Omaha Company executed a further instrument of release to the plaintiff, by which it surrendered and waived all right, of whatsoever nature, to any lands east of a line therein described, which was so drawn as to include the lands in dispute. On July 2, 1887, the plaintiff filed in the land office at Washington lists of land, including the land in dispute, claiming them as part of its grant. The commissioner of the general land office rejected these lists, holding that the plaintiff had no title to the lands; and on appeal the secretary of the interior, on January 24, 1890, affirmed this decision. After this the defendant took proceedings to enter the land under the laws of the United States, went into possession, built a residence, and made certain improvements, at an expense of more than $200.

Mr. Justice Harlan, dissenting.

Edwin H. Abbot, Louis D. Brandies, and W. F. Vilas, for plaintiff in error.

''Geo. G. Greene, A. T. Britton, and A. B. Browne,'' for defendant in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.