120 Ala. 523 | Ala. | 1898
The lands in controversy are a part of the lands granted to the State of Alabama by the act of Congress, approved June 3, 1856, to aid in the construction of certain railroads, by the terms of which there was granted to the State for this purpose “every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads.” One of these roads was to run “from near Gadsden to some point on the Alabama and Mississippi State line, in the direction of the Mobile & Ohio Railroad, with a view to connect with said Mobile & Ohio Railroad;” and by a joint resolution of the General Assembly of Alabama, approved January 30, 1858, the lands granted to aid in the construction of this road were granted to the North-East & South-West Alabama Railroad Company, which afterwards, by authorized consolidation with the Wills’ Valley Railroad Co., became the Alabama & Chattanooga Railroad Company. Another of these railroads was to run from Selma to Gadsden, and by an act of the General Assembly, approved January 20, 1858, the lands granted by the act of Congress to aid in the construction of this road were granted to the Alabama & Tennessee Rivers Railroad Co., which after-wards became the Selma, Rome & Dalton Railroad Co. And still another of these roads was to run ‘.‘from or near Gadsden to connect with the Georgia and Tennessee line of railroads, throtigh Chattooga, Wills’, and Lookout Valleys ; and by an act of the General Assembly, approved February 8, 1858, the lands granted by the act of Congress ‘ ‘in aid of the construction of a railroad from or near Gadsden to some suitable point so as to connect with the Western & Atlantic Railroad of the State of Georgia, designated in said act of Congress as running
--.The testimony shows that the lands in controversy are situated within the six miles limit of each of the above named railroads, according to the oi'iginal survey and location thereof on file in the General Land Office at Washington, and that the Alabama & Chattanooga Railroad was completed in 1873, no. part of the Coosa & Chattanooga Railroad was ever constructed, and the Alabama & Tennessee Rivers Railroad was constructed only to Jacksonville, a point twenty-two miles distant from the lands sued for. On September 29, 1890, an act of Congress was approved by which it was declared that “there is hereby forfeited to the United States, and the United States hereby resumes title to, all-lands heretofore granted to any State, or to any corporation in aid .of the construction of any railroad opposite to and coterT minous with the portion of any such railroad not now .completed and in operation, for the construction and benefit of which said lands were granted.” The joint resolution of the General Assembly, by which the lands granted to the State in aid of the construction of a railroad from Gadsden to some point on the Alabama and Mississippi State line to connect with the Mobile & Ohio Railroad, was not offered in evidence, so far as the record shows ; but that is not of importance ■ the resolution is a public legislative act of which courts take notice. The title acquired by the State was conveyed to John Swann and John A. Billups, as trustees, with power to sell, by the deed of the Governor of Alabama made February 8, 1877, in pursuance of an act of the legislature authorizing the same. It is through two deeds executed by said Swann and Billups, as trustees, one dated June 1, 1877, conveying the N. £ of N. W. £, and the other dated May 30, 1877, conveying the S. E. £ of N. W. £, that plaintiff claims title to the land in controversy. The defendant-
The act of Congress of June 3, 1856, as frequently construed by this and other courts, vested in the State the right and title to the lands embraced in the grant from the date thereof, which right and title, when the line of each road was definitely fixed, attached to the specific sections, designated by odd numbers, lying within six miles on each side of the fixed line of the road: The granting act, however, provided that “if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.” This provision constituted a condition subsequent, for the breach of which by the failure to complete either of the roads within the time limited, the United States had the right, at any time thereafter, either by judicial proceedings or by legislative action, to enforce a forfeiture of the lands granted in aid of the construction of such road, and to resume the title thereto.—Swann & Billups v. Lindsey, 70 Ala. 507; Swann & Billups v. Miller, 82 Ala. 530; Schulenberg v. Harriman, 21 Wall. (U. S.) 44. By the acceptance of the grant, the State became the trustee of the United States, and as such its application and power of disposition of the lands was limited to the purposes expressed in the act creating the trust. The act of Congress was a law, as well as a grant, and any application or disposition of the lands by the State in violation of the terms of the act was absolutely void. One of the express provisions of the grant by which the power of the State to use or dispose of the lands was limited was, “that the lands hereby granted for and on account of said roads, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are
As we have said, the lands in controversy are within the six-miles limit of the surveyed line of each of the three railroads above named. In construing this, and similar acts of Congress, granting public lands in aid of the construction of railroads, it has become thoroughly well settled that when, by the same- statute, several grants are made for the benefit of different railroads, neither priority of location nor priority of construction gives priority of right; but where two or more roads, legally located in pursuance of the act, cross each other, or approach'each other so nearly that the limits of the primary grant for the benefit of each overlap, the grant is of equal undivided shares for the benefit of each road. St. P. & Sioux City R. Co. v. Winona etc. R. Co., 112 U. S. 720; Sioux City & St. P. R. Co. v. C., M. & St. P. R’y Co., 117 U. S. 406; Lake Superior etc. R. Co. v. Cunningham, 155 U. S. 354; C. M. & St. P. R’y Co. v. United States, 159 U. S. 372. Hence, while the act of Congress of June 3, 1856, vested in the State the entire interest in all the lands embraced in the- grant lying within the six-miles limit of each legally located road, yet the State, by the terms of the act, acquired one undivided one-third interest in the lands in controversy in trust to apply the same exclusively to aid the construction of the railroad from Gadsden to the Alabama and Mississippi State line to connect with the Mobile & Ohio Railroad; and another undivided one-third interest in trust to apply the same exclusively for the benefit of the railroad to be built from Selma to Gadsden ; and the remaining undivided one-third interest for the exclusive benefit of the road from Gadsden to connect with the Georgia & Tennessee and Tennessee line of railroads through Chat
From what has been said it clearly results that Swann and Billups never - acquired title to more than an undivided one-third interest in the lands in controversy, either by the deed of the Governor of the State or by the act of the General Assembly above referred to, and that
To the introduction of the deed from Swann and Billups, trustees, to plaintiff the defendant objected on the ground that its execution by John A. Billups had not been proven, and it was not- acknowledged by him as required by law. The certificate of acknowledgment reads : “The State of Alabama, County of-:-, I,
The evidence as presented in the record, shows title in the plaintiff to only an undivided one-third interest in the land sued for, and the court below erred, therefore, in rendering judgment in plaintiff’s favor for the entire interest.
Reversed and remanded.