52] said roads in the Act aforesaid of *June | issued to the plaintiff a patent for a large quan. three, eighteen hundred and fifty six, be, and tity of land, including therein the tract in conthe same is hereby, extended to a period of five troversy, and on February 19, 1887, the Omaha years from and after the passage of this Act. company executed a further instrument of re"Sec. 6. And be it further enacted, That lease to the plaintiff, by which it surrendered any and all lands reserved to the United States and waived all right of whatsoever nature to by any Act of Congress for the purpose of any lands east of a line therein described, which aiding in any object of internal improvement, was so drawn as to include the lands in disor in any manner for any purpose whatsoever, pute. On July 2, 1887, the plaintiff filed in and all mineral lands be, and the same are the Land Office at Washington lists of land, hereby, reserved and excluded from the opera- including the land in dispute, claiming them tion of this Act, except so far as it may be as part of its grant. The Commissioner of the found necessary to locate the route of such General Land Office rejected these lists, holdrailroads through such reserved lands, in ing that the plaintiff had no title to the lands, which case the right of way only shall be and, on appeal, the Secretary of the Interior, granted, subject to the approval of the Presi- on January 24, 1890, affirmed this decision. dent of the United States." After this the defendant took proceedings to enter the lands under the laws of the United States, went into possession, built a residence, and made certain improvements, at an expense of more thau $200. 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 of Wisconsin, 1865, chap. 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 leg islature of Wisconsin passed an act (Laws 1869, chap. 90) repealing said chapter 175 of the laws of 1865, and in 1874 (Laws of 1874, chap. 126) conferred the benefit of the 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 three of the Act of Congress of 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 of Wis. 1866, chap. 314, 362; Laws 1869, chap. 257; Laws 1871, chap. 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 53] 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 ten miles of the plaintiff's road and between ten and fifteen miles of the Omaha road. On February 12, 1884, the Omaha company and the plaintiff, in the consequence of the overlapping of their grants at and near the city of Ashland, entered into an agreement, which provided, among other things: "The Omaba 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." Messrs. William F. Vilas, Louis D. Brandeis, Howard Morris, and William H. Dunbar for plaintiff in error. Messrs. George G. Greene and A. B. Browne for defendant in error. *Mr. Justice Brewer delivered the [54 opinion of the court: The land in coutroversy is within the place limits of the plaintiff's road. Confessedly, therefore, the title passed to the plaintiff, providing 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 pre empted 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 neces sity for further inquiry; for whatever of right there was in the St. Croix & Lake Superior Railroad Company passed to the Omaha com pany, 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 absence 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 de feated 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, On February 25, 1884, the state of Wisconsin | often affirmed by this court and recognized in section six of the Act of 1864, to the effect | accepted this grant, and thus impliedly underthat a grant by Congress does not operate taken to construct the road. It made the La upon lands theretofore reserved for any pur- Crosse & Milwaukee Railroad Company the pose whatsoever. There can be no doubt as beneficiary of this grant. Subsequently, with 55] to this rule, or as to the fact that lands the assent of the state, that company had withdrawn from sale by the land department transferred to the St. Croix & Lake Superior are considered as reserved within its terms. 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 & Milwau kee 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 running 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. But it is a rule of equal, if not 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 given 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. P. R. Co. v. Barney, 113 U. S. 618, 625 [28: 1109, 1111]. See also Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 491, 497 [24: 1095, 1097]; United States v. Southern Pac. R. Co. 146 U. S. 570, 597 [36: 1091, 1098]; United States v. Denver & R. G. R. Co. 150 U. S. 1 [37: 975]. And so it passed the Act of 1864. This In order to determine the intent of Congress made a grant to the same grantee, to wit, the we must look at the situation at the time the state of Wisconsin, but expressed the terms Act of 1864 was passed. The alternate sec- and purposes in three separate *sections. [57 tions within the six and fifteen mile limits of Congress evidently knew that at the time two the Bayfield road were not granted by the Act companies had been named by the state of of 1856. They were simply withdrawn from Wisconsin as the parties to construct the road pre-emption and sale by the action of the land provided for by the Act of 1856. So, in the department in order that the beneficiary of the first section, it made a grant of ten sections grant might, in case the full amount of lands per mile to aid in the construction of a road granted was not found within the place limits, from St. Croix river or lake to the west end of select therefrom enough to supply the defi-Lake Superior, with a branch to Bayfield; in ciency. 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 no 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 Pac. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414, 421 [28: 794. 797]; St. Paul & 8. C. R. Co. v. Winona & St. P. R. Co. 56]112 U. S. 720, *732 [28: 872, 876]; United States v. McLaughlin, 127 U. S. 428, 450, 455 [32: 213, 221, 222]; Wisconsin Cent. R. Co v. Price County, 133. S. 496, 511 [33: 687. 694]; United States v. Missouri, K. & T. R. Co. 141 U. S. 358, 374 [35: 766, 771]. 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 the second, a grant in substantially like terms for a road from Tomah to the St. Croix river or lake; and in the third, a grant also of ten sections per mile to aid in the construction of a road from Portage City, Berlin, Doty's Island, or Fond du Lac, as the state should determine, in a northwesterly direction to Bayfield, and then to Superior, on Lake Superior. In each of these three sections it named the state of Wisconsin as the grantee. Although it knew that the state had made two separate companies the beneficiaries of the Act of 1856, it made no grant to those companies. It dealt in all three sections with the state, relying upon the state as the party to see that the roads were completed, and to use its own judgment as to the manner of securing such construction. The Act of 1864 was therefore a mere enlargement of the Act of 1856, was made to the same grantee, was in pari materia, and is to be construed accordingly. It is not to be treated as an independent grant to a different party, and, therefore, liable to come in conflict with the rights of the first grantee. 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 pre-emption 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 58] *grantee of lands thus held by the government for the benefit of such grantee, upon what reasoning can it be said that such grant does not operate upon those lands? was entitled to the full benefit of the three acts. The court thus looked beyond the letter of the statutes to the intent of Congress, and upon that intent denied what would otherwise be a technical ground for relief. 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. Kansas City, L. & S. R. R. Co. v. Brewster, Now the first section of the Act of 1864 granted 118 U. S. 682 [30:281], is in point. On July ten alternate sections to aid in the construction 26, 1866 (14 Stat. at L. 289), Congress passed of a road along the same line. Can there be an Act granting to the state of Kansas five any doubt that this grant of four additional alternate sections per mile to aid the Union sections operated upon the land thus reserved Pacific Railroad Company, Southern Branch, between the six and fifteen mile limits? Yet in constructing a railroad from Fort Riley, if the Act of 1864 is to be taken as making a upon the valley of the Neosho river, to the grant entirely independent from that of 1856, southern line of the state of Kansas. This it could not be enforced as to land between the corporation (its name having been changed to six and fifteen mile limits reserved under that that of the Missouri, Kansas & Texas Railroad prior grant. It will be noticed that the Act of Company) constructed the road, and received 1864 makes no grant directly to the St. Croix patents for the land. The object of that suit & Lake Superior Railroad Company, but only was to vacate and declare void these patents, to the state of Wisconsin, and the latter could, and the principal ground relied on for main- if it had seen fit, have made some other comtaining it was that, by an Act of March 3, pany the beneficiary; and yet can there be any 1863 (12 Stat. at L. 772) and a supplemental doubt that Congress intended by this first secAct of July 1, 1864 (13 Stat. at L. 339), the tion of the Act of 1864 merely an enlargement lands had been appropriated to aid another of the grant made by the Act of 1856 from six company in building a road along the same to ten sections, and also intended that as to the line. The Act of 1866 had the ordinary reser-four extra sections the grant should operate vation 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 & 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. & 8. F. R. R. Co. had built a line of road along the same general course and through the same lands, twenty 59]miles in *width, that the M. K. & T. R. R. Co. has occupied with its road, and asserted a claim to these lands, or to any of them, the argument would be almost irresistible." But it was held, in view of certain arrangements made between the two companies (not then ratified by the state of Kansas, but expected to be, and, in fact, subsequently so ratified) that it was the intent of Congress simply to aid in the construction of one road, and that the Missouri, Kansas & Texas Railroad Company 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 of the grant, all of it being to the same grantee? *When Congress makes a grant of a spe. [60 cific number of sections in aid of any work of internal improvement, it must be assumed that it intends the beneficiary to receive such amount of land, and when it prescribes that those lands shall be alternate sections along the line of the improvement, it is equally clear that the intent is that if possible the benefi ciary shall receive those particular sections. So far as railroads are concerned, it is the thought, not merely that the general welfare will be subserved by the construction of the road along the lines indicated, but further that such grant shall not be attended with any pecuniary loss to the United States; for the universal rule is to double the price of even sections within the granted limits. The expectation is that the company receiving the odd sections will take pains to dispose of them to settlers, and thus by their settlement and improvement increase the value of the even sections_adjoining and so justify the added price. To fully realize this expected benefit it is essential that the lands taken by the company shall be as near to the line of the road as possible; and so, while selection of remote lands is permitted, it is only when and because there is a necessity of such selection to make good the amount of the grant. Obviously, therefore, an act must be construed to realize, so far as is possible, this intent and to accomplish the desired result. 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 techni61] cal construction of the statutes, *seeks to enter the tract, and thus, for no more than the paltry sum of $400, two dollars and a half per acre being the double minimum price of land within the limits of railroad grants, to obtain title to property worth, as we have seen, at least $8000. The railroad company, under this construction, loses the land it supposed it was entitled to, which it has treated as its own, and has helped to make valuable; the govern ment does not receive the $8000, nor indeed anything if the land be entered under the homestead laws, but a stranger comes in, who has done nothing to create that value, and appropriates it to his own benefit. The iniquity of such a result is at least suggestive. that time after the defendant had entered into For these reasons we are of the opinion that the circuit court erred in its decision, and its judgment is therefore reversed and a new trial ordered. The Chief Justice took no part in the consideration and decision of this case. Mr. Justice Harlan dissented. Decided June 3, 1895. ERROR to the Circuit Court of the United States for the Western District of Wisconsin to review a judgment for defendant in an action of ejectment. Reversed and new trial ordered. The facts are stated in the opinion. But further, it is urged that this question of Argued April 3, 1895. 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 mat ter, as we have repeatedly held, is not concluded by the decision of the land department. Johnson v. Towsley, 80 U. S. 13 Wall. 72 [20: 485]; Shepley v. Cowan, 91 U. S. 330 [23:424]: Quinby v. Conlan, 104 U. S. 420 [26:800]; Doolan v. Carr, 125 U. S. 618, 624 [31:844, 846]; Lake Superior Ship Canal, R. & I. Co. v. Cunningham, 155 U. S. 354 [39: 183]. Messrs. Louis D. Brandeis, Educard H. Abbot, Howard Morris, and William H. Dunbar for plaintiff in error. Messrs. George G. Greene and A. B. Browne for defendant in error. *Mr. Justice Brewer delivered the [63 opinion of the court: Defendant also claims an estoppel by reason This was an action of ejectment brought by of these facts set up as a third defense in his answer, the truth of which was on the trial the plaintiff in error, plaintiff below, in the admitted by the plaintiff. The final decision circuit court of the United States for the westof the Secretary adversely to the claim of the ern district of Wisconsin, to recover possession plaintiff was on or about the 10th day of Jan- of the east half of the southwest quarter and uary, 1890. The testimony in this case shows the east half of the northwest quarter of secSub- tion number seven (7), in township number that it was made on January 24, 1890. sequent to that decision the defendant entered forty seven (47) north, of range number four upon the premises, built a residence, and made (4) west, in the county of Ashland and state of other improvements, at a cost of more than Wisconsin. $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 improve 62] ments, and in making such improvements expends the paltry sum of $200, and the plaintiff fails to file a complaint in ejectment for two months and a half after the decision of the land department, and perhaps, nearly The land, found by the jury to be worth sixteen thousand dollars, is situated within the limits of the city of Ashland, more than six and less than ten miles from the Bayfield branch of the Chicago, St. Paul, Minneapolis & Omaha Railroad Company, and also within ten miles of the Wisconsin Central Railroad Company. The title of the plaintiff rests upon an agreement between the two railroad companies settling all differences between them NOTE. As to pre-emption rights, see note to United States v. Fitzgerald, 10: 785. As to errors in surveys and descriptions in patents for lands, how construed, see note to Watts v. Lindsay, 5: 423. 159 U. S. selves as to the lands within the place limits of | each road, a patent from the state of Wisconsin to the Omaha company in pursuance of such agreement, and a deed from the latter to bimself. 1846, Congress granted to the territory of Iowa five alternate sections of the public lands, on each side of the Des Moines river, to aid in improving its navigation. It was a disputed question whether the grant terminated at the mouth The same questions arise in this case as in*of the Raccoon Fork, or extended along [65 that just decided, and it is unnecessary to enter into any detailed statement of the facts concerning the two land grants, or a discussion of the questions arising thereon. Obviously, as the land in controversy was within the place limits of each road, it either passed wholly to the Omaha company or in equal moieties to the two, and in the latter event the agreement referred to transferred all rights to the Omaha company. As against this, the defendant offered evidence that on May 3, 1858, and June 16, 1858, respectively, two pre-emption declaratory statements were filed in the local land office, one in respect to one half of the tract and the other in respect to the remainder, and contends that up to those dates there had been no valid with drawal of any lands by the land department, and, as a consequence, that these pre-emption claims attached to the land and excluded it from the operation of the grant. It may be remarked, in passing, that it does not appear that 64]*any attempt was ever made to prove up or acquire title under and in accordance with these declaratory statements. But the contention is that, by the simple filing of the state ments, the land was excluded from the operation of the grant made by either act. We are unable to assent to this contention. On May 29, 1856, the Commissioner of the General Land Office telegraphed to the local land officers of the district in which the land is situated to suspend from sale and location all lands in the district. This was prior to the passage of the act of 1856. On June 12, nine days after its passage, the Commissioner wrote to the same officers, referring to his telegraphic despatch, and saying that the object of the withdrawal thus ordered was to protect from sale the lands granted to the state by a bill which had passed both Houses of Congress, though not then approved by the President. But, it having been approved on June 3, he directs the continuance of the withdrawal. On the whole length of the river to the northern boundary of the state. The land department ordered that lands the whole length of the river within the state should be withdrawn from sale. In the course of subsequent litigation it was decided by this court that the grant terminated at the mouth of the Raccoon river. But in the case cited it was held that the withdrawal by the land department of lands above the mouth of the Raccoon river was valid, and that a subsequent railroad grant, with the ordinary reservation clause in it, did not operate upon lands so withdrawn. If a withdrawal of land beyond the terminus of a grant can be sustained, as it was in that case, equally so should be one made in anticipation of the locations of two lines of road, which locations were as yet undetermined, and might be such as to bring almost any portion of the lands with drawn within the idemnity limits of the grant. The order of June 12, 1856, was never set aside. The letter cí October 26, 1856, simply gave authority for a reduction in the area of the withdrawn territory upon the filing of a map of definite location, and that of March 1, 1859, forwarded a diagram showing the line of definite location of a part of one of the roads aided, and directed the continued withdrawal of land within the indemnity limits as disclosed thereby, but neither of them set aside the withdrawal of June 12, 1856, or in any other way affected it. These declaratory statements were of no validity; the land was then withdrawn from pre-emption or other sale, and withdrawn for the purpose of satisfying the grant to the state of Wisconsin. The judgment of the circuit court will, therefore, be reversed and a new trial ordered. The Chief Justice took no part in the consideration and decision of this case. October 26, 1856, he again wrote to the local THE TEXAS & PACIFIC RAILWAY (66 land officers that upon the filing in their office of a duly certified map of the line of route as definitely fixed they "will, without waiting for further instructions from this office, cease to permit locations by entries or pre-emption, or COMPANY, Piff. in Err., v. ROBERT N. SMITH ET AL. (See S. C. Reporter's ed. 66-73.) land-receiver's receipt. 1 A receiver's receipt under a pre-emption entry constitutes a "just title" which is sufficient as the beginning of a right by prescription under the Louisiana Code, if possession under it is taken in good faith. 2. for any purpose whatever of the lands within Title by prescription-notice of condition of fifteen miles of said route," and on March 1, 1859, which was after the filing of these declaratory statements, he sent a letter, inclosing a diagram of the lands in their district with the line of route as definitely selected desig nated thereon, and again notified them to withhold from sale all lands within the indemnity limits. The only objection which can be made to the order of June 12, 1856, which was after the passage of the act, is that the Commissioner withdrew too much land, to wit, all land in the district, but that was a matter for the determination of the land department, and cannot be revised or disregarded by the courts. Wolcott v. Des Moines Nav. & R. Co. 72 U. S. 5 Wall. 681 [18: 689], is in point. In August, One who makes a pre-emption entry of public land, pays the government price, and receives a final receipt therefor, is not chargeable with notice of the fact that it was twenty years before swamp land granted to the state by Congress where it had not been selected or patented as such. NOTE. As to pre-emption rights, see note to United States v. Fitzgerald, 10: 785. |