28 Mich. 379 | Mich. | 1874
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.
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 roads 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 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, 377.
The case in Black differs from the one before the court, in the important particular that the act there under discussion expressly provided that no title should vest in the ter
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 presentí. 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, 18 How., 19; Railroad Co. v. Fremont Co., 9 Wad, 94. 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 Blade 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
It is unnecessary .that the grant should be capable of being brought within any of the definitions given to estates by the common law. The one here examined seems to have been intended as a present conditional bounty to the state to encourage the building of railroads, and to become absolute and to attach to specific lands when the terms of the donation should be complied with. To devote the lands to this specific purpose, and work a transfer of the title, no further conveyance by the federal government was contemplated; it is assumed that a transfer of title was absolutely involved in the act itself and what should be done under it, and moreover that precautionary provisions were needed to meet the contingency of non-performance of the condition, and bring back the title to the federal government.
• The state, then, had the title, though of course it was a floating title, not attaching to any particular parcels until the proper action should be had under the congressional grant to entitle some intended beneficiary to select and convey them. — Rutherford v. Greene’s heirs, 2 Wheaton, 196. On the 14th day of February, 1857, the legislature passed an act which, referring to the grant by congress, declared that so much of the lands, franchises, rights, powers and privileges as were or may be granted and conferred in pursuance thereof to aid in the construction of a railroad from Amboy, by way of Lansing, to some point on or near Traverse Bay, “are hereby disposed of, granted to, con
It is presumed that the company filed a formal acceptance of this grant, as there are several acts of the legislature recognizing its rights under it, of which such as are material will be alluded to further on. The company filed the map of location of its line in the office of the secretary of state in August, 1858, and though this was not in time, the laches was waived by subsequent legislation. By act of February 14th, 1859 (Sess. L. 1859, p. 442), the quantity of land that might be sold on the completion of twenty continuous miles of road was increased to one hundred' and twenty sections. An act of February 12, 1861, required twenty continuous miles of road to be completed and in
Previous to the legislation of 1861 the company are shown to have completed twenty continuous miles of its road from the intersection with the Detroit and Milwaukee railroad in the city of Owosso in the direction of Lansing, and had obtained the governor’s certificate to the secretary of the interior to that effect.
This would entitle the company under the acts of 1861 to make sale of one hundred and twenty sections of land on any continuous twenty miles of its road. On the 19th day of March, 1863, another act of the legislature was passed which waived all forfeitures, but required the company within six months from the passage thereof to finish and open their road for use to Michigan avenue, in the city of Lansing, and also by the first day of June then next to commence work in good faith on the road from Owosso to Saginaw City, and by the first day of January, I860, to complete that portion thereof. And the act contained a proviso that the company should not “be entitled to that portion of the second one hundred and twenty sections of said land not already conveyed by them” until the road should be completed and opened for use to Michigan avenue, in the city of Lansing. — Sess. L. 1863, p. 284. We are -.not advised except by the inference from this act that the company had previously assumed to make sales from the second one hundred and twenty sections, nor do we perceive that it becomes material. On the 17th day of September, 1863, the governor cértified to the secretary of the interior that the road was constructed and opened for use to , Michigan avenue, in the city of Lansing, stating therein that he did so “in order that it may appear that
This certificate would seem to entitle the company to make sale of the second one hundred and twenty sections of land, unless some action was required of the public authorities in order to determine what lands should be sold, or of the company in selecting them. The defendant insists that there must have been a designation by or under the authority of the state before the floating right could attach to specific descriptions'. That might be true if the right of selection was in the state; but such does not seem to be the case. The company having become entitled to two hundred and forty sections of land, might take one hundred and twenty sections thereof within any continuous length of twenty miles of their road, and the other one hundred and twenty sections within any other continuous length of twenty miles thereof, and the state could not force selections upon it. And as no legislation required any particular form- or method of selection, when the proper quantity of public land was found within the requisite distance of the road, we are unable to perceive why a sale by the company of specific parcels of land, not exceeding the quantity earned, and lying within the limits specified in the grant, would not to that extent have been an effectual selection.
We come now to the legislation of 1865: on the 18th day of March of that year an act of legislature was passed which provided that it should be lawful for: the Jackson, Lansing & Saginaw Railroad Company, or any other railroad company, to enter into an arrangement with the Amboy,' Lansing & Traverse Bay Railroad Company, for the location of its line of railroad from Lansing by way of Owosso to Saginaw, upon the line of said Amboy, Lansing & Traverse Bay Railroad, and for the construction of the same on such line, and in case of such arrangement
It is reasonable to infer that this legislation was adopted at the instance of the two companies mentioned therein by name, and in contemplation of an arrangement between them. Such an arrangement however does not seem to have been formally entered into between the parties until the 26th day of October, 1866, when a contract was executed as hereinafter stated. Meantime, on the 28th day of November, 1865, the Amboy, Lansing, & Traverse Bay Railroad company executed a deed purporting to convey to Andrew C. Maxwell and others a considerable quantity of lands, embracing the lot on section seventeen now in controversy. This deed recited the legislation already referred to including that of 1863, the construction of the road from Owosso to Lansing, and the giving of the two certificates by the governor, and it then contains a further recital that “ Whereas the board of control of railroads of the state of Michigan, at a meeting held on or about the third and fourth days of September, 1861, did select one
Unless, therefore, there was necessity for the action of the board of control which is recited in this deed, so that it became important that plaintiff should prove such action to have been taken, it would seem that the action of the Amboy, Lansing & Traverse Bay Railroad company in making this conveyance was strictly within the limits of its legal right, and that it transferred the title to the grantees named. No provision of law has been pointed out to us on the argument which would qualify this right, or subject it to any conditions not performed or waived. The act of 1857 before referred to, which created the board of control, does not appear to have vested them with any power over the lands conveyed by the grant except in two contingencies.: First. Where the conditions of the grant were not complied with by any company, they might declare a forfeiture and select a new beneficiary; and second, when rights conflicted by reason of railroad lines crossing or approaching each other, they were to adjust any controversy. — Sections 11 and 15. And in this view of the case it would seem unnecessary to consider the subsequent arrangement between the Amboy, Lansing & Traverse Bay company and the Jackson, Lansing & Saginaw company, and the legislation following -the same, by which it is agreed on both sides that the beneficial interest in the land grant was transferred to the last named company. This transfer could not affect rights previously acquired by third parties, and we have consequently no occasion to examine the contract .between the two companies to- determine whether or not there was a reservation by it of the lands already-earned, or on the other hand, a restriction of the agreement to such as might be earned by the construction of the road north of Owosso, and whether in either case the act of the legislature of February 7, 1867, could operate by way of a. declaration of forfeiture to vest in the Jackson, Lansing, & Saginaw company greater rights than were intended
The other branch of the case relates to the logs cut on section one, township fourteen north, of range three east. The plaintiff claims the logs under Daniel Burns, who cut them in the winter of 1868-9, having first applied at the land office for the purchase of the land in the usual way, but never having actually made the purchase. The
We think the plaintiff had no title whatever to these logs. The effect of the land grant to the state, and the subsequent location of the line of the road, was to place the sections which were covered by the floating grant out of the body of lands subject to sale by the federal government. Burns, consequently, could acquire no right to cut timber on the land, or even to go upon the land, by virtue of any application to purchase, if such right could be acquired by an applicant under any circumstances. And we are of opinion that no right was acquired by the compromise with the receiver, for reasons which we shall proceed to give.
There is no claim, as we understand it, that there had' been any forfeiture of the land grant, or any portion thereof, after the Jackson, Lansing & Saginaw company had become the beneficiary. The grant originally was to be forfeited,' and the land to revert, unless the road was constructed within ten years from its passage. Extensions were made by act of July 3, 1866 (Laws 1865-6, Little and Brown’s ed., p. 78), and again by act of March 2, 1867 (Laws 1866-7, Little and Brown’s ed., p. Ifi5), and these, with the patent which was given, would waive any forfeiture that might affect this land if any such had occurred. And it must be taken as an unquestionable fact that the Jackson, Lansing & Saginaw company became entitled to the land on this section one, by reason of its original appropriation to the purposes of the construction of their road, and of
The question that concerns these parties is as to the title, the right of control, and the duty to protect the lands, previous to the perfecting of the title in the Jackson, Lansing & Saginaw company. And this must depend either upon the construction of the original grant, or upon the force of the patent.
The grant was made to the state in presentí, but in the nature of a float, of the sections designated by odd numbers for six sections in width on each side of the road when located, and in a certain contingency, of others to be selected. It could not pass particular sections immediately, because the location of the road was essential to determine what sections would be brought within the limits of the grant; and even when the line was located, it would be highly probable that those limits would either embrace more land falling within the terms of the grant than could be conveyed in pursuance thereof, or that it would fall short of that precise quantity. It might under such circumstances be a question of considerable interest and importance whether the duty of protecting the land grant against trespassers was devolved upon the state by the grant, when the grant itself as yet attached to no definite •parcels of land, and while it waá uncertain whether all the odd-numbered sections along any particular portion of the line of the road might or might not be eventually taken by the railroad company, or whether some portion of the grant might not be located elsewhere in consequence of the..
Assuming that the land officers of the United States were still charged with the duty of protecting these lands, against trespassers, and that they might and should take all proper legal proceedings to punish them, it is certain that they had no authority by virtue of their office, or under any regulation or practice of the land office to which we have been referred, to sell off the timber from these lands-to any person whomsoever, and thereby deprive the railroad company of a portion at least of the benefit intended by the grant. The grant was of the lands in their existing condition; the government reserving to itself no right to sell timber or to derive any benefit therefrom; and any sale of timber, to the extent of its value, or to the extent . that it depreciated the value of the land, would defeat the purpose had in view by the government in making the-grant. If it be said, however, that in case of the cutting of timber by trespassers before the grant has attached to particular parcels, there must be authority somewhere to seize the timber and make sale of it, holding the proceeds in trust for the benefit of tbe person eventually entitled,, or otherwise the timber cut must be left to the disposition of the trespasser, himself or suffered to go to decay, — we may concede this without a modification of any thing we have already stated. The right to do what may be necessary to protect the land against trespassers is one thing;, the right to sell off the timber as against the party entitled to the benefit of the grant is quite another and a different thing.
It has already been seen that the lands on section one, among others, were earned by the Jackson, Lansing & Saginaw Railroad company, according to the terms of the grant,
There are three periods, any one of which, according to different views, might be taken as that from which the title of the railroad company was to date; that is to say, the time of the original grant to the state, the time the lands were earned and the governor’s certificate of that fact-filed, and the time of the issue of the patent. And- the last must undoubtedly be the time, unless, under a well known and very beneficial fiction of law, the patent when given was to relate back to one or the other of the two periods first mentioned. And if it relates back to either of these, as both were before the logs were cut, them in law the land would be deemed the land of the company at the time the logs were cut, and they had a right to follow and seize the logs as their property.
In Viner’s Abridgement, Tit., Relation, E, it is stated that “where there are divers acts concurrent to make a conveyance, estate or other thing, the original act shall be preferred, and to this the other acts shall have relation.” In Cruise the doctrine is stated in words somewhat different. “All the several parts and ceremonies,” that author says, “necessary to complete a conveyance shall be taken together as one act, and operate from the substantial part by relation.” — Cruise Dig., Vol. 5, 510-11. — See also 4 Kent, 337, 451; Wash Real Prop., Book 4, ch. 4, § 2; Jackson v. Ramsay, 3 Cow., 75; Clark v. Hall, 19 Mich., 354; Ciarle v. West, 23 Mich., 242. This doctrine has been so often applied by the federal courts to grants or donations by (die
As already said, whether the relation of the patent is to be to the original grant, or to the time when the land was earned, — that is to say, whether the one or the other is to be deemed, in the words of Mr. Cruise, “the substantial part” of the necessary steps in perfecting title, is in this case immaterial. To one or the other the patent clearly relates. We may say of the case, in words slightly changed from those employed by the federal supreme court in Lessieur v. Price, 12 How., 76, that the land was granted by the act of 1856; it was a present grant, wanting identity to make it perfect; and the railroad company was vested with full power to select and locate the lands; and the selection.
We cannot, as the plaintiff insists, enter a final judgment on his behalf in this court. True, the jury found specially the value of the logs on section seventeen, but we have no means of knowing how the jury made up the amount of the verdict returned by them, — what they included or what they rejected. It will he necessary, therefore, to order a new trial.
