Wisconsin Cent Co v. Forsythe

• Decision Date: 03 June 1895
• Docket Number: No. 238,238
• Citation: 159 U.S. 46,15 S.Ct. 1020,40 L.Ed. 71
• Parties: WISCONSIN CENT. R. CO. v. FORSYTHE
• Court: U.S. Supreme Court

159 U.S. 46

15 S.Ct. 1020

40 L.Ed. 71

WISCONSIN CENT. R. CO.

v FORSYTHE.

No. 238.

June 3, 1895.

This is an action of ejectment commenced on April 5, 1890, by the Wisconsin Central Railroad Company against William O. Forsythe in the circuit court of the United States for the Western district of Wisconsin, to recover possession of the S. W. 1/4 of section 11, township 47 N., of range 4 W., in the county of Ashland, Wis. At the trial, on April 16, 1891, the court instructed the jury to render a verdict for the defendant. Judgment having been entered on such verdict, the railroad company brought the case here on this writ of error.

The title of the plaintiff rests on these facts: On June 3, 1856, the United States made a grant of land to the state of Wisconsin. The first and fourth sectionso f the act making the grant are as follows:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that there be, and is hereby, granted to the state of Wisconsin for the purpose of aiding in the construction of a railroad from Madison, or Columbus, by the way of Portage City to the St. Croix river or lake between townships twenty-five and thirty-one, and from thence to the west end of Lake Superior; and to Bayfield; and also 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 said roads respectively. But in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections or parts thereof granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tier of sections above specified, so much land in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the right of pre-emption has attached, as aforesaid, which lands (thus selected in lieu of those sold to which pre-emption has attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the state of Wisconsin for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than fifteen miles from the line of the roads in each case, and selected for and on account of said roads: provided further, that the lands hereby granted shall be exclusively applied in the construction of that road for which it was granted and selected, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: and provided further, that any and all lands reserved to the United States by any act of congress for the purpose of aiding in any object of internal improvement, or in any manner for any purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the president of the United States.'

'Sec. 4. And be it further enacted, 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, and included within a continuous length of twenty miles of roads, respectively, may be sold and when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of either of said roads are completed, then another like quantity of land hereby granted may be sold; and so from time to time until said roads are completed; and if said roads are not completed within ten years, no further sales shall be made, and the land unsold shall revert to the United States.' 11 Stat. 20.

We are concerned in this case with only the first of the two lines of road named, and shall therefore treat the act as referring to it alone. On June 12, 1856, a withdrawal of the lands deemed necessary for the satisfaction of this grant was made by the land department. The grant was accepted by the state of Wisconsin on October 8, 1856 (Laws Wis. 1856, c. 118), and on October 11, 1856, the state conferred the benefit of it upon the La Crosse & Milwaukee Railroad Company (Laws Wis. 1856, c. 122). Under authority of an act of date March 5, 1857 (Laws Wis. 1857, c. 230), the La Crosse & Milwaukee Railroad Company conveyed to the St. Croix & Lake Superior Railroad Compn y so much of the grant as was north of the St. Croix river or lake, and was to aid in constructing the road from that point to the west end of Lake Superior, and to Bayfield. On March 2, 1858, the St. Croix & Lake Superior Railroad Company filed in the land department at Washington its map of definite location of the road from the St. Croix river or lake to the west end of Lake Superior, and on July 17, 1858, a like map of definite location of the branch to Bayfield. On March 1, 1859, the commissioner of the general land office forwarded to the local land officers a plat showing these locations, together with the 6 and 15 mile limits thereof, and directed them to continue to reserve all vacant tracts outside of the 6 and within the 15 mile limits from sale or location for any purpose whatever. In the letter conveying this direction it was stated that the agent of the state had selected all the vacant lands between the 6 and 15 mile limits in lieu of the lands within the 6-mile limits already sold and pre-empted.

Nothing was done towards the construction of the road and branch from the St. Croix river or lake northward until after the passage by congress of the act of May 5, 1864 (13 Stat. 66). The first, third, fifth, and sixth sections of this act are as follows:

'Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that there be, and is hereby, granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from a point on the St. Croix river or lake, between townships twenty-five and thirty-one, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said state, to Bayfield, every alternate section of public land designated by odd numbers, for ten sections in width on each side of said road, deducting any and all lands that may have been granted to the state of Wisconsin for the same purpose, by the act of congress of June three, eighteen hundred and fifty-six, upon the same terms and conditions as are contained in the act granting lands to the state of Wisconsin, to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved, or otherwise disposed of, any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, then it shall be lawful for any agent or agents, to be appointed by said company, to select, subject to the approval of the secretary of the interior, from the public lands of the United States nearest to the tier of sections above specified, as much land in alternate sections or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the right of pre-emption or homestead has attached as aforesaid, which lands (thus selected in lieu of those sold, and to which preemption or homestead right has attached as aforesaid, together with sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by said state for the use and purpose aforesaid: provided, that the lands to be so located shall in no case be further than twenty miles from the line of the said roads, nor shall such selection or location be made in lieu of lands received under the said grant of June 3, 1856, but such selection and location may be made for the benefit of said state, and for the purpose aforesaid, to supply any deficiency under the said grant of June third, eighteen hundred and fifty-six, should any such deficiency exist.'

'Sec. 3. And be it further enacted, that there be, and is hereby, granted to the state of Wisconsin, for the purpose of aiding in the construction of a railroad from Portage City, Berlin, Doty's Island, or Fond du Lac. as said state may determine, in a northwestern direction, to Bayfield, and thence to Superior on Lake Superir , every alternate section of public land, designated by odd numbers, for ten sections in width on each side of said road, upon the same terms and conditions as are contained in the act granting lands to said state to aid in the construction of railroads in said state, approved June three, eighteen hundred and fifty-six. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold, reserved or otherwise disposed of any sections or parts thereof, granted as aforesaid, or that the right of pre-emption or homestead has attached to the same, that it shall be lawful for any agent or agents of said state, appointed by the governor thereof, to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tier of sections above specified, as much public land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the right of...