Musser v. McRae

• Decision Date: 14 May 1888
• Citation: 38 N.W. 103,38 Minn. 409
• Parties: P. Musser and others v. John McRae and another
• Court: Minnesota Supreme Court

38 N.W. 103

38 Minn. 409

P. Musser and others v. John McRae and another

Supreme Court of Minnesota

May 14, 1888

Appeal by defendants from an order of the district court for Washington county, Crosby, J., presiding, refusing a new trial.

Order reversed, and new trial ordered.

Fayette Marsh, for appellants.

Clapp & Macartney, for respondents.

OPINION

Gilfillan, C. J.

This is an action to recover the possession of certain saw-logs which had been cut on lands in the state of Wisconsin. The plaintiffs' title to the logs depended on their title to the lands on which they were cut. They claim title through acts of congress granting lands to the state of Wisconsin, to aid in the construction of certain railroads and acts of the legislature of Wisconsin, granting them to the Chicago, St. Paul, Minneapolis & Omaha Railway Company and a patent to the company, executed by the governor of the state, and a deed from the company to them. The first of said acts of congress was passed June 3, 1856, (11 U.S. St. at Large, 20,) and granted to the state the odd-numbered sections for six sections in width, on each side of the railroads, with the provision, usual in such land-grant acts, that if, when the line of railroad should be definitely fixed, the United States should have sold, or rights of pre-emption should have attached to, any such granted sections, or parts thereof, then, in lieu thereof, any agent to be appointed by the governor might select, subject to the approval of the secretary of the interior, from the lands of the United States nearest the tier of sections above specified, so much land, in alternate sections, or parts of sections, as should be equal to those sold or pre-empted within the six-mile limits; the lands so to be selected or located to be in no case further than 15 miles from the line of the railroad. An act of congress passed May 5, 1864, (13 U.S. St. at Large, 66,) increased the grant to the odd-numbered sections for 10 sections in width, on each side of the road, and increased to 20 miles on each side the width of the tract within which selections should be made, to make up for lands sold or pre-empted within the 10-section limit.

The defendants contend that these acts of congress were not grants in praesenti, except as to the lands lying within the 6 and 10-section limits. As the case is presented to us, and in the view we take of the evidence on the trial it is entirely immaterial whether, under the acts, there is in that respect any difference between the two classes of lands, -- that is, the lands in place, and those to be selected as deficiency or indemnity lands. For, conceding, as plaintiffs contend, that as to all the lands the acts were grants in praesenti, yet as to none of them did the acts, without anything else, pass the title to any specific lands. The title passed to lands to be afterwards located and ascertained. ...