United States v. Northern Pac. R. Co.

• Decision Date: 10 July 1899
• Docket Number: 1,259.
• Citation: 95 F. 864
• Parties: UNITED STATES v. NORTHERN PAC. R. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

95 F. 864

UNITED STATES v. NORTHERN PAC. R. CO. et al.

No. 1,259.

United States Court of Appeals, Eighth Circuit.

July 10, 1899

This is an appeal from a decree which dismissed a bill brought by the United States to avoid a patent to a tract of land which was issued to the Northern Pacific Railroad Company by the land department of the government 'under the erroneous impression and mistaken belief,' as the appellant averred, that it was within the limits of the congressional grant to that company. This land was selected by the appellee, and patented to it by the government, in lieu of a lost tract of land, which was within the place limits of its grant if that grant extended to Ashland, in the state of Wisconsin, and which was not within its grant unless that grant extended east of Duluth, in the state of Minnesota; and the government claims that the mistake of the land department was that it found that the eastern terminus of the Northern Pacific Railroad was at Ashland, when it should have held that it was at Duluth; and it is conceded on all hands that the patent was properly issued if the finding of the department on this question was right. The following facts relative to this issue are established: On July 2 1864, congress passed 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound on the Pacific coast by the northern route.' 13 Stat. 365. By the first section of that act certain persons therein named and their associates were created a corporation by the name Northern Pacific Railroad Company. One portion of the section read: 'And said corporation is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at a point on Lake Superior in the state of Minnesota or Wisconsin; thence westerly by the most eligible railroad route as shall be determined by said company within the territory of the United States on a line north of the forty-fifth degree of latitude to some point on Puget's Sound, with a branch via the valley of the Columbia river,' etc.; and it provided that the capital stock of the corporation should consist of 1,000,000 shares of $100 each. By section 3 of the act there was granted to the corporation every alternate section of public land not mineral, to the amount of 10 alternate sections per mile, on each side of the railroad line it should adopt through any state, with indemnity lands not more than 10 miles beyond the limits of the alternate sections; and this section contained these provisos: 'Provided, that if said route shall be found upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act. Provided further, that the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company or may consolidate confederate and associate with said company upon the terms named in the first section of this act. ' Section 4 of the act provided that whenever a section of 25 miles of the railroad was completed commissioners appointed by the president should examine it, and, if it appeared to have been built as required by the act, they should so report, and thereupon patents to lands appertaining to such section should be issued. Section 5 required the railroad to be constructed and equipped as a first-class railroad, and contained this sentence: 'And it shall be the duty of the Northern Pacific Railroad Company to permit any other railroad which shall be authorized to be built in the United States, or by the legislature of any territory or state in which the same may be situated, to form running connections with it, on fair and equitable terms. ' Section 8 provided 'that each and every grant and privilege herein are so made and given to, and accepted by, said Northern Pacific Railroad Company upon and subject to' the condition that it should complete and equip the railroad by the 4th day of July, A.D. 1876. The time for its completion was, however, subsequently extended to July 4, 1880. 14 Stat. 355; 15 Stat. 255. Section 18 provided that the company should obtain the consent of the legislature of any state through which any portion of its railroad should pass previous to commencing the construction thereof.

By the act of May 5, 1864 (13 Stat. 64), congress had granted to the state of Minnesota, for the purpose of aiding in the construction of a railroad from St. Paul to the head of Lake Superior, five alternate sections of land per mile on each side of that railroad. The state of Minnesota transferred this grant to the Lake Superior & Mississippi Railroad Company, and that company constructed the railroad from St Paul to Duluth by way of Thomson, where the Northern Pacific Railroad subsequently crossed it. On May 5, 1864, congress granted to the state of Wisconsin to aid in the construction of a railroad from Portage City, Berlin, Doty's Island, or Fond du Lac, to Bayfield, and thence to Superior, every alternate section of land for 10 sections in width on each side of the railroad. 13 Stat. 67. This grant was transferred by the state of Wisconsin to the Portage, Winnebago & Superior Railroad Company, which filed its map of definite location on November 10, 1869, and thereupon the lands within the limits of the grant were withdrawn from settlement and entry, and so remained until after the Northern Pacific Railroad Company filed its map of definite location of July 6, 1882. That portion of this railroad from Bayfield to Superior never was built, but it was on the same general route as a portion of the road of the Northern Pacific Railroad Company from Thomson to Ashland. On March 2, 1865, the legislature of the state of Minnesota passed an act which gave to the Northern Pacific Railroad Company all the powers, rights, and privileges in the state of Minnesota which had been conferred upon it in the territories of the United States by the act of congress, subject to a proviso that if it elected to make the eastern terminus of its road east of the state of Minnesota, it should construct or cause to be constructed a line of railroad from its main line to the navigable waters of Lake Superior in the state of Minnesota. Sp. Laws Minn. 1865, p. 228. On April 10, 1865, the legislature of the state of Wisconsin passed an act which vested this corporation with the same powers and privileges in the state of Wisconsin which it had under the act of congress in the territories. Priv. laws Wis. 1865, c. 485. On March 25, 1872, that legislature passed an act amendatory of chapter 485 of the Laws of 1865, which provided that the Northern Pacific Railroad Company should not be permitted to construct, maintain, or operate any railroad in any part of the state of Wisconsin, except in Pierce and St. Croix counties, unless it constructed and maintained a line of railroad connecting with and continuous to its main line by a route running south of the St. Louis river from the junction of its railroad boundary of Wisconsin at some point between the St. Louis and the western boundary of Wisconsin at some point between the St. Louis and Nemadji rivers, and running thence all the way in Wisconsin to some point on the southwesterly shore of the Bay of Superior between Nemadji river and Connor's Point. Priv. Laws Wis. 1872, c. 139. On March 6, 1865, Josiah Perham, the president of the Northern Pacific Railroad Company, filed with the secretary of the interior a letter and a map. In the letter he wrote to the secretary that by authority of the board of directors he had designated on the accompanying map, in red ink, the general line of the railroad from a point on Lake Superior, in the state of Wisconsin, to a point on Puget Sound, in Washington Territory. The point on Lake Superior in the state of Wisconsin from which the red ink line on this map extended was at the mouth of the Montreal river, on the eastern boundary of that state, but this line from that point to a point in North Dakota is covered by a wavy red line, and another and heavier red line extends from that point in North Dakota to a point on the north shore of Lake Superior in Minnesota. The secretary of the interior sent this map to the commissioner of the general land office with a statement that he thought that the odd-numbered sections for 10 miles in width on each side of the line in Minnesota and Wisconsin should be withdrawn from entry and settlement. In June, 1865, the commissioner declined, in a letter to the secretary, to make the withdrawal, and no further action was ever taken upon this map. Perham does not appear to have had any authority from the board of directors to designate the line of the railroad or to file the map. Prior to August 13, 1870, the board of directors of the Northern Pacific Railroad Company adopted the general route of its railroad through Wisconsin and Minnesota, and on that day filed a map thereof in the office of the commissioner of the general land office. Upon that map the line of the railroad extends from a point on Lake Superior, at the mouth of the Montreal river, on the eastern boundary of the state of Wisconsin, upon a direct line a little south of west to a point about six miles distant from the south end of Chequemagon Bay; thence a little north of west upon a line which passes about eight miles south of Superior, crosses the west line of the state of Wisconsin a few miles south of the point where the St. Louis river meets that line, crosses the Lake Superior & Mississippi Railroad at or...