45 Minn. 104 | Minn. | 1890
This is a contest between three rival claimants to a 40-acre tract of swamp land, situated in St. Louis county, and within the Duluth land district, each holding a deed from the governor of the state, and each claiming title under a legislative grant of swamp lands in aid of its road. The land is more than 10 miles from intervenor’s road. No part of plaintiff’s road is within St. Louis •county, or within the Duluth land district. Intervenor’s road is wholly within the counties of St. Louis and Lake. The dates (all in 1889).of selection by, and conveyance to, the respective parties are as follows: January 8th, deed to defendant; January 14th, selection by intervenor; May 2d, selection by plaintiff; June 1st, deed to plaintiff; December 20th, deed to intervenor. The plaintiff claims under the act of March 5, 1869, (Sp. Laws 1869, c. 56,) amending the act of February 11, 1865, (Sp. Laws 1865, c. 3.) The intervenor claims under the act of March 9, 1875, (Sp. Laws 1875, c. 54,) which was amended by the acts of February 17, 1876, (Sp. Laws 1876, c. 241;) March 6, 1883, (Sp. Laws 1883, c. 69;) and of March 10,1885, (Sp. Laws 1885, c. 87.) The defendant claims under this same act of March 9,1875, (Sp. Laws 1875, c. 54,) and the act of March 9,1878, (Sp. Laws 1878, e. 246). All issues of fact are determined by the
1. Defendant’s contention is that the grant to the intervenor, by the act of March 9, 1875, was transferred to itself by the act of March 9, 1878. The act of 1878 is entitled “An act to transfer the lands granted to the Duluth & Iron Range Railroad Company, and for other purposes.” It provides that “the lands granted to the Duluth & Iron-Range Railroad Company, by the act of March 9, 1875, * * * in case oj forfeiture by the said Duluth é Iron Range Railroad Company, be and the same are hereby transferred and vested in the Duluth & Winnipeg Railroad Company.” This is clearly a grant upon a condition precedent, to wit, the forfeiture of the grant by the former grantee. By reference to the act of March 9, 1875, it will be seen that the grant to the intervenor is what is familiarly known as-a grant “in prcesenti, upon conditions subsequent.” It is elementary law that such a grant is not forfeited by mere default of the grantee in the conditions, but only by some affirmative act of the state, after the breach Or default, declaring or asserting the forfeiture. The right of the state to a forfeiture must be asserted by judicial proceedings, the equivalent of an inquest of office at common law, finding the fact of forfeiture, and adjudging a restoration of the estate on that ground.; or there must be some legislative assertion of ownership of the property for the breach of. the condition; and until this is done the grant remains vested in the grantee, notwithstanding the breach of the condition. Moreover, if, after the breach, the grantee proceeds and earns the grant by the construction of its road, before any action on part of the state asserting or declaring a forfeiture, the state cannot afterwards divest the grantee of the land by declaring a forfeiture. These propositions, as applied to land grants, have become so familiar, especially since the decision in Schulenberg v. Harriman, 21 Wall. 44, that a discussion of them, or a citation of authorities in their support,-would be worse than useless. The intervenor was not in default in any of the conditions of its grant in March, 1878, or for nearly a year afterwards. In 1879, it did default, not having, as the court finds, located its line, or filed- a map of it, until the spring of 1882. But the state has never declared or
It would seem to necessarily follow, as a corollary from this, that the condition precedent to the grant to defendant has never been performed or fulfilled, and hence that the grant has never taken effect. But defendant contends that the word- “forfeiture” is used in the act of 1878 merely in the sense of a default or breach of condition which would be a ground for a forfeiture; in other words, rendered the grant subject to a forfeiture, and hence, on the mere default of intervenor, the grant to itself took effect.. The word “forfeiture” is, no doubt, frequently used in the sense suggested, but it could not have been used in any, such sense here. Clearly the legislature never intended that there should be two vested co-existent grants, — one in the intervenor, and another in the defendant, — which would be the case here, if defendant’s contention is correct. It cannot be seriously claimed that the act made a new grant, distinct from and independent of the one previously made to the intervenor. Counsel conceded on the argument that, if there had been no “forfeiture” by intervenor, the grant to the defendant would not have taken effect. Indeed this concession was unavoidable, for, if the act of 1878 made a new and independent grant, no such subject is expressed in the title. What the legislature intended, and all they intended, was that, if the intervenor .should be divested of its grant because of a breach of its conditions, then it should go to the defendant. The language of the act must be construed with reference to the rule of law that the grant would not revert to the state, so as to be capable of being transferred by it to another, without a declaration or assertion of the right of forfeiture on part of the state. Counsel suggests that, under this view, the grant to defendant would
2. This brings us to the consideration of the respective claims of the plaintiff and intervenor. Each concedes that the other has a valid grant, and has complied with its terms. It becomes necessary, therefore, to ascertain the extent and nature of these two grants. It will be observed that the first grant to plaintiff was- by the act of February 11, 1865, and that the act of March 5, 1869, under which it now claims, is in the form of an amendment to, or substitute for, section'1 of the act of 1865. And the first question to be determined is whether the provisions of sections 3 and 4 of the act of 1865 are, as intervenor claims, applicable to .the act of 1869; for, if they are, then plaintiff has no right to any land in St. Louis county or in the Duluth land district. Our opinion is that the act of 1869, although in form an amendment of section 1 of the act of 1865, is, in itself, a complete act, fully covering the subject to which it relates, — the grant to what we may call the “Hinckley .branch,” — and .that' it expresses and contains every condition and limitation to which, that grant is subject; and hence that the provisions of sections 3 and 4 of the act of' 1865 are not applicable to it. It would require the analysis and entire comparison of the two acts to explain fully all the considerations which have led us to this conclusion, but we will only suggest a few of them. The act of 1865, it will be observed, contains two grants, — that in section 1 to the “Hinckley branch,” and that in section 2 to what- may be called the “Mankato branch.” The act of l'S69 applies, only to the first grant, the second being left unchanged.
Our conclusion is that the provisions of these sections are not applicable to the act of 1869; that that act is a grant of 10 sections to the mile out of any swamp lands then belonging to, or that might
• We turn now to the grant to intervenor. It does not claim any. •thing (and it is not necessary that it should) under the act of March 10, 1885, which was enacted after the adoption of the constitutional .amendment of 1881, relating to the disposition of swamp lands. It rests its claim wholly on the original grant of 1875. This was a present grant of 10 sections to the mile, “tobe selected within 10 miles ■on each side of the road,” and, if there should not be enough swamp lands unsold and unappropriated within each 10-mile section of the road as completed, then the intervenor had “the privilege of locating ■the deficiency on any of the swamp lands belonging to or to accrue to the state, not otherwise previously disposed of, within the counties of St. Louis, Lake, and Cook, and no other counties in the state.” Properly speaking, there is no such thing in this grant as “place lands” and “indemnity lands,” as is the case in most congressional land-grants. In all cases, whether the land selected be within or without the “ten-mile limit,”- it is the selection and not the location of the road by which the grant attaches to specific lands. In the first instance, the selections are to be limited to a certain district, and, if .the lands in this district are all exhausted before the grant is filled, then the remaining selections may be made out of a larger district; but, wherever selected, all the lands are of the same class, precisely
The court finds that the intervenor has selected all the swamp lands within 10 miles of its road, and that there are not enough swamp lands belonging to the state, including the tract in suit, in the counties of St. Louis, Cook, and Lake, to fill its grant. It also finds that there are, .and always have been, since plaintiff completed its road, more than enough swamp lands to fill its grant, belonging to the state, within the counties through which its road runs; and a fortiori there must be more than enough in the state outside the counties of St. Louis, Cook, and Lake.
The application of the principles already announced to this state of facts makes the decision of the case very simple. The state, notwithstanding its prior grant to plaintiff, had a right, if it chose, to grant to intervenor all its swamp lands in the three counties named, inasmuch as it had enough left elsewhere to fill plaintiff’s grant. This is, in effect, what the state did do by making this float grant to an amount as great or greater than all the swamp lands it owned in those counties. On the one hand plaintiff would have had the right, in case there had not been enough swamp land elsewhere to fill its grant, to insist that intervenor should not appropriate to its grant all the lands in these three counties, to the diminution of plaintiff’s prior grant; and on the other hand intervenor has a right to insist that the state shall not, to the diminution of its grant, appropriate to plaintiff’s grant swamp lands in these three counties, inasmuch as there are enough elsewhere to fill it. The adjustment of the two grants, and the marshalling of the lands between the two grantees according to these principles, would fully protect the legal rights of both parties, and carry into effect both grants, as far as it is possible to do so. Whether the state would have had the power to convey the tract in suit to plaintiff had intervenor not previously selected it, is a question not necessary to be decided in this case.
Plaintiff’s counsel, however, lay much stress upon the fact that the act under which intervenor claims, provides “that no lands shall enure to the said company under this act until all grants of swamp lands previously made- by the state shall be fully satisfied.” It is contended that this postpones the appropriation of any lands to this grant until all prior grants have been actually filled by the selection of specific lands to their full .amount. If this was so, intervenor could not'get an acre until plaintiff’s grant is finally adjusted and filled, although this might occupy years, and notwithstanding that during all this time it is absolutely certain that there is more than land enough to fill both grants. We do not think that a result so unreasonable as well as unnecessary was ever intended. We think that all the statute means is that, if there is not enough swamp land to satisfy all prior grants and this one too, the prior grantees shall have their full amounts, and the intervenor must stand the shortage.
Judgment affirmed.