[Swann & Billups v. Larmore.] 3. The lands involved in this suit are not a part of the first one hundred and twenty sections, as to which a power of sale was given in advance of any work done on the road. Those sections must begin at one of the termini of the road, and proceed thence continuously for twenty miles along the line of the road. The act of Congress contemplated that the Wills Valley railroad should be constructed "from Gadsden, to connect with the Georgia and Tennessee, and Tennessee line of railroads;" and the agreed facts show that the road was commenced at Wauhatchie in Tennessee, which is shown to be the first place where connection could be made with any Georgia railroad. The lands sued for are shown to be more than twenty miles from either terminus-from either Gadsden or Wauhatchie; and are, therefore, not within the first one hundred and twenty sections. The act of Congress, in this particular, pays no regard to any State line, but confers the odd-numbered sections of the public lands in Georgia, lying along the Georgia portion of the road, precisely as those in Alabama; therein differing from the grant to the North-East and South-Western road, contained in the 6th section, which is limited "to some point on the Alabama and Mississippi State line." 4. The legislative resolutions of January 30th, 1858, so far as they conflict with the provisions of the said act of Congress, are inoperative and void.-Railroad Company v. Prescott, 16 Wallace, 603-9; 92 U. S. 65; 101 U. S. 665; 21 Wallace, 59. These resolutions can not be considered as a sale, within the meaning of the term as used in the act of Congress.- Williamson v. Berry, 8 Howard, 544; Gunter v. Leckey, 30 Ala. 591. If they could be so construed, they could not be operative beyond the first one hundred and twenty sections of land, and could not convey to the railroad company any greater power than the State itself possessed over them; and the words of apparent grant are coupled with the qualifying words, "to be used and applied by said company upon the terms, conditions, and under the restrictions in said act of Congress contained." As a conveyance of the legal title, the railroad not being then constructed, and the trust being then merely executory, the legislative resolutions are wholly void.-Smith on Statutes, & 667; 2 Perry on Trusts, $769, 779, 73, 785; 11 Vesey, 482; 6 Otto, 316; 2 Sugden on Powers, 479, 456, 507, mar. As a grant or conveyance, said resolutions are void for uncertainty.-Deloach v. State Bank, 27 Ala. 437. 5. The statute of limitations is no bar to the suit, because, unlike the case of Miller v. The State, 38 Ala. 600, the State had not executed the trust, and it still has an interest in the proceeds of sales of the lands, to the extent of ten per-cent. That the statute of limitations does not run against the State, or [Swann & Billups v. Larmore. ] against the United States, see United States v. Hoar, 2 Mason, 312; Swearingen e. United States, 11 Gill & J. 373; 2 Hill, N. Y. 59; Scam. Ill. 106. Moreover, the defendant's possession was interrupted in 1870.-Armstrong v. Morrill, 14 Wallace, 146; 2 Brick. Dig. 223, § 86. MCSPADDEN & CARDEN, contra.-The act of Congress passed to the State a present interest in the lands granted, and the title became perfect when the route of the road was fixed.-Mo. t Kan. Railroad Co. v. Kan. Pue. Railroad Co., 7 Otto, 496; Leavenworth v. United States, 92 U. S. R. 733; 21 Wallace, 44. The right to sell one hundred and twenty sections, in a continuous length of twenty miles, was given absolutely, without any prescribed machinery of sale, and even the forfeiture does not relate to these. When a stranger purchases, pays the purchase-money, and is put in possession, the proceeds being strictly applied to the construction of the road, as in this case was shown, the purposes of the grant are fully satisfied, and the purchaser should be protected.-Farnsworth v. M. & P. Railroad Co., 2 Otto, 48. 2. The lands sold, including those here sued for, are at the terminus of the grant, being within four miles of the boundary line between Alabama and Georgia, and within six miles of the road. 3. Whatever right or title the plaintiffs may have, was derived from or through the Wills Valley Railroad Company, whose successor they are; and they are estopped by the deed of that company.-1 Greenl. Ev. $$ 207-8, 224; 3 Washb. Real Property, 68-9, 71, 79-80; Bigelow on Estoppel, 246, 252, 336; 22 Ála. 543; 19 Ala. 430; 16 Ala. 167; 19 Ala. 198; 27 Ala. 532; 17 Ala. 752; 39 Ala. 42; 31 Ala. 136; Tyler on Ejectment, 566. 4. The action was barred by adverse possession and the statute of limitations.-Code, $$ 3232, 3236; Miller v. The State, 38 Ala. 600; 2 Greenl. Ev. $ 430-31; 3 Wash. R. P. 141, 38; Angell on Lim. 412-13; 2 Shars. Bla. Com. 196. The intrusion of Severence was a mere trespass, and did not break the continuity of possession.-Bell v. Denson, 56 Ala. 449; Farmer v. Eslava, 11 Ala. 1028. STONE, J.--By act of Congress approved June 3d, 1856 (11 Stat. at large, 17-8), there was granted to the State of Alabama, for the purpose of aiding in the construction of a railroad "from Gadsden to connect with the Georgia and Tennessee, and Tennessee line of railroads, through Chatooga, Wills and Lookout valleys," alternate sections of land designated by odd-numbers, for six miles in width on each side of said railroad. This [Swann & Billups v. Larmore.] statute allowed ten years for the completion of the road, and provided that, "if said road is not completed in ten years, no further sale of the lands granted shall be made, and the lands unsold shall revert to the United States." The railroad not being completed within the ten years, it was, on 10th April, 1869 (16 Stat. at large, 45), enacted, that said act of June 3d, 1856, is hereby revived and renewed, subject to all the conditions and restrictions contained in the act referred to, and subject to the further limitation, that if said railroad] is not completed within three years from the passage of this act, no further sale of the granted lands] shall be made for the benefit of such railroad, and the lands unsold shall revert to the United States." Section 4 of the act of June 3d, 1856, provides, "That the lands hereby granted to said State shall be disposed of by said State only in the 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, * may be sold; and when the Governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of said road is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for **said road having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles, may be sold; and 66 * * * so, from time to time, until said road is completed." Sec. 3: That the said lands hereby granted to the said State, shall be subject to the disposal of the legislature thereof, for the purpose aforesaid, and no other." The Wills Valley Railroad Company was chartered February 3d, 1852. -Sess. Acts, 1851 2, 178. The route and extent of said railroad was, "from some convenient point on the Alabama and Tennessee Rivers railroad, at or near the farm of James Hampton; thence the most practicable route through the county of De Kalb, to the Georgia line, in a direction to intersect the Georgia and Tennessee railroad, at some convenient point in Lookout valley." By joint resolutions, approved Jannary 30th, 1858 (Sess. Acts, 1857 8, page 430), the legislature of Alabama designated the application of said lands, and resolved Sec. 4:That so much of said lands, interest, rights and powers and privileges, as are or may be granted and conferred, in pursuance of the said act of Congress, to aid in the construction of a railroad from Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattooga, Wills and Lookout valleys, are hereby disposed of, granted to, and conferred upon the Wills Valley Railroad Company, ** to be used and applied by said company upon the terins, condi [Swann & Billups v. Larmore.] tions, and under the restrictions in said act of Congress contained." The Wills Valley Railroad Company organized under its charter, and surveyed and “definitely fixed" the line of its railroad prior to the year 1860. The lands in controversy are parts of sections having odd numbers; are within six miles of the railroad as definitely fixed, and are within less than twenty miles of the line of the State of Georgia. In 1861, the Wills Valley Railroad Company sold the lands here sued for; the purchase money was paid during that year, and a deed of conveyance was made to the purchaser in 1866. He and those claiming under him, including the real defendant in this suit, trace a regular line of conveyances from the first grantee down to the present occupant. The question is, had the Wills Valley Railroad Company authority to sell and convey the lands? The present record contains no evidence of the sale of any other lands than those here sued for.. If there had been a sale of any lands within any other section of twenty continuous miles, the question would be different. We have, however, the evidence of only one sale made, and that within the range of the first section of twenty continuous miles, computing the measurement from the line of the State of Georgia. The grant was of lands in the State of Alabama. The Federal Government owned no lands in the State of Georaia, and, therefore, could grant none in that State. On the very day (June 3d, 1856) on which the act of Congress we are construing was passed, the "act granting public lands to the State of Wisconsin to aid in the construction of railroads" became a law. -11 Stat. at large, 20. The two statutes are not distinguishable in their provisions, and are as nearly identical in language as the nature of the objects would allow. The act giving aid to railroads in Wisconsin was construed in Schulenberg. Harriman, 21 Wall. 44. The entire court concurred in the opinion, which was delivered by Mr. Justice FIELD. The court said: "That the act of Congress of June 3d, 1856, passed a present interest in the lands designated, there can be no doubt. * The power of disposal, and the provision for the lands reverting, both imply what the first section declares, that a grant is made; that is, that the title is transferred to the State. It is true that the route of the railroad, for the construction of which the grant was made, was yet to be designated; and until such designation, the title did not attach to any specific tracts of land. The title passed to the sections, to be afterwards located. When the route was fixed, their location became certain, and the title, which was previously imperfect, acquired precision, and became attached to the land." In the same case it had been previously said: * [Swann & Billups v. Larmore.] "The State, by the terms of the grant from Congress, possessed no authority to dispose of the lands beyond one hundred and twenty sections, except as the road, in aid of which the grants were made, was constructed." In Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S. (2 Otto) 49, 65, the court said: "The act of Congress granting lands to the Territory of Minnesota imposed conditions upon their alienation, except as to the first one hundred and twenty sections, which the Territory could not disregard."-Atchison, Top. &&S. F. R. R. Co. v. Bobb, Kans. Sup. Ct., Law Reporter, April 20, 1881. * Now, while these utterances of the court clearly show, that neither the State nor its appointee could sell any of the granted lands beyond the one hundred and twenty sections, except as the road was constructed, as provided by the act of Congress, they affirm with equal emphasis that a railroad corporation, in whose favor such grant is made, may, without any conditions whatever, and without previous work done, sell "a quantity of land not exceeding one hundred and twenty sections, * included within a continuous length of twenty miles." The only condition annexed to this grant, is what is denominated in the books a condition subsequent; that if said road is not completed within ten years, the lands unsold shall revert to the United States. This reversion of the unsold lands would apply equally to the first one hundred and twenty sections, and to the residue of the granted lands, remaining unsold at the end of ten years, the road not being then completed. It would not, and could not, impair or affect the sales made within the ten years, of any of the one hundred and twenty sections included in a continuous length of twenty miles, nor of those made in succeeding sections of twenty continuous miles, if preceded by the certificate of the Governor to the Secretary of the Interior, that for each such succeeding license twenty continuous miles of the railroad had been completed. The reversion applied to lands authorized to be sold, and not sold according to the requirements of the statute, and to the lands as to which the railroad had failed to put itself in position to exercise the power of sale. The cases we have quoted from define what shall be neeessary to perfect the reversion for condition broken, and declare by whom that right can be exercised. That question does not arise in this case. For a further discussion of this subject, see Swann v. Lindsey, at present term. We have shown, above, that the Wills Valley Railroad Company, without previous work, and without conditions precedent, was authorized to sell a quantity of land equal to one hundred and twenty sections, included within a continuous length of twenty miles. We have also shown, that the lands in controversy in this suit lie within six miles of the track of the rail |