Johnson v. Ballou

• Decision Date: 07 January 1874
• Citation: 28 Mich. 379
• Court: Michigan Supreme Court
• Parties: Abner C. Johnson v. Dexter A. Ballou

28 Mich. 379

Abner C. Johnson v. Dexter A. Ballou

Supreme Court of Michigan

January 7, 1874

Heard July 9, 1873

Error to Bay Circuit.

Trover. Plaintiff brings error. Reversed.

This was an action of trover brought by Johnson against Ballou for certain pine saw-logs. The logs in question were cut partly on section one, in town fourteen north, of range three east and partly on section seventeen, in town fourteen north, of range four east. The questions raised relate to the title to these sections. The cause was tried by a jury, who found a general verdict for the plaintiff, assessing his damages at two thousand two hundred and sixty-nine dollars. And they also found, in answer to certain specific questions propounded by the plaintiff, as follows:

"First. That Thomas Saylor, acting as timber agent of the United States, did on the 28th day of May, 1869, assume to sell to Burns the logs cut by him upon the east half of the southeast quarter of section one, town fourteen north, or range three east, and that the logs there cut by Burns and sold plaintiff on such parcel amounted to eight hundred and sixty-one thousand six hundred and seventy-three feet, and that the same were converted by the defendant without the plaintiff's consent, and that their value at the time of conversion was nine thousand four hundred and seventy-eight dollars and forty cents.

"Second. That prior to the 28th day of May, 1869, it had been and was at that date the practice of the register and receiver of the United States land office, at East Saginaw, to act as timber agents of the United States in the seizure and sale of logs cut by trespassers on the public lands.

"Third. That one hundred and fifty-two thousand four hundred and seventy-seven feet of logs were cut by Burns, upon the east half of the southeast quarter of section seventeen, town fourteen north, of range four east, which were converted by the defendant to his own use, and that the value of such logs at the time of conversion, May 28th, 1869, was nine hundred and fourteen dollars and eighty-six cents."

Judgment was entered upon the general verdict for the plaintiff, and he brought error.

New trial ordered.

Winsor Scofield, Marston & Hatch, William L. Webber, and Ashley Pond, for plaintiff in error

McDonell & Cobb, and G. V. N. Lothrop, for defendant in error.

Cooley J. Graves, Ch. J., and Christiancy, J., concurred. Campbell J., did not sit in this case.

OPINION

Cooley, J.

The most important questions in this case relate to the title to the lands on section one, in township fourteen north, of range three east, and on section seventeen, in township fourteen north, of range four east. Should our conclusions be with the plaintiff on this branch of the case, the further questions may become unimportant, but if we disagree with his views regarding the title, it may become necessary, at least so far as the logs cut on section seventeen are concerned, to consider the further grounds on which he bases his claim.

It is conceded that the title to the lands was in the United States in 1856. On the third day of June of that year an act of Congress was passed which provided that "there be and is hereby granted to the State of Michigan, to aid in the construction of railroads" from and to certain points therein specified, and among others from Amboy by Hillsdale and Lansing to some point on or near Traverse Bay, "every alternate section of land, designated by odd numbers, for six sections in width on each side of each of said roads," with the exception of lands previously sold or pre-empted, in place of which others might be selected and located to make up the proper quantity: "Provided, That the lands to be so located shall in no case be further than fifteen miles from the lines of said roads, and selected for and on account of each of said roads."

The third section declared: "that the said lands hereby granted to the said State shall be subject to the disposal of the Legislature thereof for the purposes aforesaid, and no other." And the fourth: "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 for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said State shall certify to the secretary of the interior that any twenty continuous miles of any of said road is completed, then another quantity of land hereby granted, not exceeding one hundred and twenty sections of each of said roads having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of such roads may be sold; and so from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sales shall be made; and the lands unsold shall revert to the United States."--11 U.S. Stat. at large, Little and Brown's ed., 21.

It becomes of importance to the parties to determine whether this act of Congress constituted a present grant of the lands included within its terms, to take effect on their selection when earned, or whether on the other hand it conferred upon the State of Michigan merely a power, which, when it came to be exercised in behalf of the intended beneficiaries, would require further action, either by way of the issue of a patent or of some equivalent act, to perfect in the beneficiary a title to the land earned. The plaintiff insists that the title passed to the State, while the defendant disputes this, and claims that the title never passed from the United States, until the lands earned were patented to the Jackson, Lansing & Saginaw Railroad company, as hereinafter stated.

It will be observed that the phraseology of the act of 1856 imports a conveyance to the State, and not the creation of a power merely. The words are "that there be and is hereby granted," etc. And further on the lands granted are repeatedly spoken of, and it is provided when and on what contingency they shall revert to the United States. While this phraseology would not be conclusive if from other portions of the act it plainly appeared that the purpose was only to confer a power; yet it must be confessed that one who insists that an act of the government which employs the operative words of present conveyance, with provision of forfeiture on breach of condition, was intended to confer an authority only, is called upon to point out where and in what words the intent he insists upon is found expressed.

The defendant relies upon the manifest purpose of the act to give to the State a power in trust only; a purpose which he thinks is apparent in all its provisions, and which was found in a similar act by the Federal Supreme Court in Rice v. Railroad Co., 1 Black 358.

The case in Black differs from the one before the Court, in the important particular that the act there under discussion expressly provides that no title should vest in the territory of Minnesota, the grantee therein named, until the condition of the act had been complied with. That explicit declaration would seem to remove from the case all ambiguity and all question; and though it is true the learned judge who delivered the opinion in that case employs in some parts of it language sufficiently general, if considered by itself and without the context, to support the views of the defense, yet we cannot discover that the negative declaration we have referred to was at any time absent from his mind as a controlling feature of the case, nor can we satisfy ourselves that the conclusion would have been the same if that declaration had been wanting.

On the other hand, the opinion in the office of the attorney general has been uniform that an act of the nature of the one under consideration is a grant in presenti. This was the advice of attorney general Cushing to the secretary of the interior under an act almost precisely identical with this (8 Op. of Att'y Gen'l, 244), and this advice was afterward reiterated by his successor, Judge Black (11 Ibid, 49).--See also 8 Op. of Att'y Gen'l, 247, 255; 9 Ibid, 41. Also Kissell v. St. Louis Public Schools, 59 U.S. 19, 18 HOW 19; Railroad Co. v. Fremont Co., 9 Wall. 89. These opinions of very eminent lawyers are worthy of high consideration, especially as when giving them they were the official advisers of the government, and their advice was accepted and acted upon by the department of the interior. The government has thus given a practical construction to its own grants, which the State authorities should accept and follow, unless it is found that the proper judicial authority of the federal government has reviewed and found it erroneous; which it is not pretended is the case, unless by the decision in 1 Black above referred to. And we have already said we find that case to furnish no distinct support to defendant's position.

No court is at liberty to subject these sovereign legislative grants, which more partake of the nature of treaty cessions by the Union to one of its members than of individual bargaining, to the definitions and refinements which the rules of municipal law apply to the grants and conveyances from man to man. When the government conveys by act of Congress, that which constitutes its deed at the same time constitutes the law which defines the right or estate, and stamps it with whatever character it possesses. And so long as the government is only dealing with its own, the right or estate granted, whether anomalous or unprecedented, or otherwise, will be entitled to recognition and effect for just what it appears and was intended to be.--Ballou v. O'Brien, 20 Mich. 304.

It is...