Lake Superior Ship Canal, Railway v. Cunningham

Decision Date10 December 1894
Docket NumberNo. 49,49
Citation39 L.Ed. 183,155 U.S. 354,15 S.Ct. 103
PartiesLAKE SUPERIOR SHIP CANAL, RAILWAY %& iron co./%& v. CUNNINGHAM
CourtU.S. Supreme Court

[Syllabus from pages 354-356 intentionally omitted] Action of ejectment by the Lake Superior Ship Canal, Railway & Iron Company against Walter A. Cunningham, in which there was a judgment entered on the verdict of a jury, directed by the court, in favor of defendant. Plaintiff brings error. Affirmed.

This was an action commenced by the plaintiff in error (plaintiff below) in the circuit court of the United States for the Western district of Michigan, on July 17, 1888, to recover the possession of the S. W. 1/4 of section 25, township 44 N., range 36 w. Upon the first trial a verdict was returned in favor of the plaintiff. In conformity with the opinion of Mr. Justice Jackson, then circuit judge (44 Fed. 819), a new trial was granted, which on July 26, 1890, resulted in a verdict, under instructions of the court, in favor of the defendant, upon which verdict judgment was rendered. To reverse that judgment this writ of error was brought. The plaintiff claimed title by virtue of certain land grants made by congress to the state of Michigan, to aid in the construction of a canal, and a confirmation by an act of congress of March 2, 1889. The defendant insisted that no title passed by the canal grants, because the land had theretofore been granted by congress to aid in the construction of a railroad; that he entered upon the land with a view of pre-emption; and that his right of pre-emption was confirmed by the same act of congress of March 2, 1889. The facts in respect to the respective railroad and canal grants are as follows:

On June 3, 1856, congress passed an act (11 Stat. 20) granting to the state of Wisconsin, to aid in the construction of a railroad '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 the road; and on the same date it passed another act (11 Stat. 21) making a similar grant to the state of Michigan to aid in the construction of several railroads, among them being 'railroads from Little Bay de Noquet to Marquette, and thence to Ontonagon, and from the two last named places to the Wisconsin state line.' This grant was in the ordinary form of a grant in praesenti, the language being, 'That there be and hereby is granted to the state of Michigan, to aid,' etc. The act also provided, in section 1, 'that the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever'; in section 3, '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 in section 4, that '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.' Apparently, congress contemplated, among other things, the construction of a railroad northerly from Fond du Lac to the line between Wisconsin and the Northern Peninsula of Michigan, and thence in two branches to Marquette and Ontonagon, on the Lake Superior shore. On February 14, 1857, an act passed the Michigan legislature (Laws 1857, p. 346) accepting this grant, and transferring to the Marquette & State Line Railroad Company (hereinafter called the 'Marquette Company') and the Ontonagon & State Line Railroad Company (hereinafter called the 'Ontonagon Company') two corporations created under the laws of the state of Michigan, so much, respectively, of said grant, as was intended to aid in the construction of the road between Marquette and the state line and that between Ontonagon and the state line. The language of the act making the transfer is emphatic as to the division between the two companies. It reads:

'In like manner all the lands, franchises, rights, powers, and privileges which are or may be granted and conferred, in pursuance of said act of congress, to aid in the construction of a railroad from Marquette to the Wisconsin state line, be, and the same are hereby, vested fully and completely in the Marquette and State Line Railroad Company; in like manner all the lands, franchises, rights, powers, and privileges, which are or may be granted and conferred in pursuance of said act of congress, to aid in the construction of a railroad from Ontonagon to the Wisconsin state line, are hereby vested fully and completely in the Ontonagon and State Line Railroad Company.'

By the same act a board of control was created to supervise the disposition of the granted lands, and in section 11 it was provided that on the failure by the respective companies to construct their lines of road, or any part thereof, in the time and manner required, the 'said board of control shall have the power, and it is hereby made their duty, to declare said lands, so far as they have not been sold in good faity, forfeited to the state, and said board of control are hereby required to confer said lands upon some other competent party, under the general regulations and restrictions of this act.'

The grant to the state of Wisconsin was conferred by its legislature upon the Chicago, St. Paul & Fond du Lac Railroad Company, an Illinois and Wisconsin corporation; and on March 27, 1857, that corporation was consolidated with the Marquette Company and the Ontonagon Company, the consolidated company taking the name of the Chicago, St. Paul & Fond du Lac Railroad Company. No question is made as to the validity of this consolidation. Neither the Ontonagon nor the Marquette Company filed any map of location, but the consolidated company (hereinafter called the 'Fond du Lac Company') on November 30, 1857, filed in the general land office two maps of definite location,—one of the Wiscon- sin part of its road, and the other of the Michigan portion. On the latter the roads from Marquette and Ontonagon were located so as to unite some five or six miles above the Wisconsin state line, so that the two maps together showed a single continuous line from Fond du Lac through Wisconsin, and to a point in Michigan five or six miles above the state line, where it separated into two branches, one going to Marquette and the other to Ontonagon. The Fond du Lac Company built no road,—at least, none in Michigan. On April 6, 1857, it executed a mortgage covering all its property, including the land grants in Michigan and Wisconsin. Subsequently, foreclosure proceedings were had, and by proper conveyances all the title of the Fond du Lac Company passed to the Chicago & Northwestern Railway Company, the last conveyance being executed on July 1, 1859. On December 12, 1861, the interior department certified to the state of Michigan certain lands along the lines of these roads in satisfaction of the grants made by the act of June 3, 1856. These lands were certified in four lists,—one, of lands within the sixmile limits of the Ontonagon & State Line Branch (clear). This list included 142,430.23 acres, and among the lands so certified was the tract in controversy in this case.

On March 4, 1861, the legislature of the state of Michigan, contemplating a change of route from Marquette to the Wisconsin state line, passed an act (Laws Mich. 1861, p. 123), the preamble and first section of which are as follows:

'Whereas, the Marquette and State Line Railroad Company have heretofore consolidated with the Chicago, St. Paul and Fond du Lac Railroad Company, of Wisconsin, and said company having become insolvent, and all its property in Wisconsin transferred to another company: and whereas, the most practicable route for a railroad connecting Lake Superior with the system of railroads in Wisconsin, should be located on a different route from the one heretofore partially selected, namely: from Marquette to the mouth of the Menominee river; therefore,

'Sec. 1. The people of the state of Michigan enact, that for the purpose of placing the aforesaid lands, franchises, rights powers and privileges, which are or may be granted in pursuance of said act of congress, approved June third, eighteen hundred and fifty-six, to aid in the construction of a railroad from Marquette to the Wisconsin state line, near the mouth of the Menominee river, in a position to encourage the early construction of said road, do hereby repeal so much of section two of 'An act to repeal section twenty of an act disposing of certain lands for railroad purposes, approved February fourteenth, eighteen hundred and fifty-seven,' approved February fifteenth, eighteen hundred and fifty-nine, as relates to the extension of the time to complete the first section of twenty miles of the Marquette and State Line Railroad, or any other act amendatory thereto, and do hereby place the same in charge of the board of control, who shall have power, and is hereby made their duty, to confer said lands, franchises, rights, powers and privileges upon some other competent party or company under the general regulation and restrictions of an act disposing of certain grants of land made to the state of Michigan for railroad purposes by an act of congress approved June third, eighteen hundred and fifty-six, and approved February fourteenth, eighteen hundred and fifty-seven, and all acts amendatory thereto.'

Nothing was said in this act about the Ontonagon Company or the road from Ontonagon to the state line. In order to carry into effect this contemplated change of route, the Chicago & Northwestern Railway Company promoted the formation of the Peninsula Railroad Company, a corporation organized under the laws of the state of Michigan; and on April 24, 1862, the Peninsula Company applied to the Michigan board of control to transfer to it the land grant theretofore bestowed by ...

To continue reading

Request your trial
30 cases
  • Utah Power & Light Co. v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • November 24, 1915
    ... ... W. Ray, U.S. Atty., of Salt Lake City, Utah, and J. F ... Lawson, Asst. Sol. for ... any canal or ditch company formed for the purpose of ... 157, 50 L.Ed ... 314; Lake Superior Co. v. Finan, 155 U.S. 385, 15 ... Sup.Ct. 115, ... ...
  • Dugan v. Montoya
    • United States
    • New Mexico Supreme Court
    • February 16, 1918
    ...Ed. 849; Best v. Polk, 18 Wall. 112, 117, 118, 21 L. Ed. 805; Sherman v. Buick, 93 U. S. 209, 23 L. Ed. 849; Iron Co. v. Cunningham, 155 U. S. 354, 15 Sup. Ct. 103, 39 L. Ed. 183; Railroad Co. v. Forsythe, 159 U. S. 46, 53, 15 Sup. Ct. 1020, 40 L. Ed. 71; Wright v. Roseberry, 121 U. S. 488,......
  • King v. McAndrews
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 28, 1901
    ... ... 209, 23 L.Ed. 849; ... Iron Co. v. Cunningham, 155 U.S. 354, 15 Sup.Ct ... 103, 39 L.Ed ... King v. Railway ... Co., 14 Land Dec.Dep.Int. 167; City of ... ...
  • Home On the Range v. At&T Corp.
    • United States
    • U.S. District Court — Southern District of Indiana
    • September 7, 2005
    ...Co., 116 U.S. 689, 6 S.Ct. 601. 125 U.S. at 624-25, 8 S.Ct. 1228 (emphasis added); see also Lake Superior Ship Canal, Ry. Iron Co. v. Cunningham, 155 U.S. 354, 373, 15 S.Ct. 103, 39 L.Ed. 183 (1894) (citing Wilcox and stating: "Even a patent may be declared void if issued for lands theretof......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT