аfter stating the facts of the case, delivered the opinion of the court, as follows:
The position of the plaintifl's, that under the stipulation of the parties and the pleadings no proof of title in the State to the logs in controversy was admissible, cannot be sustained. The complaint alleges property and right of pos
The position that if the acts of Congress vested in the State a title to the lands designated, that title was transferred by the act of its legislature, passed March 10th, 1869, is equally untenable. The State by the terms of the grants from Congress possessed no authority to dispose of the lands beyond one hundred and twenty sections, except as the road, in aid of which the grants were made, was constructed. The company named in the act never сonstructed any portion of such road, and there is no evidence that the State ever exercised the power to sell the one hundred and twenty sections authorized in advance of such construction. The acts of Congress made it a condition precedent to the conveyance by the State of any other lands, that the road should be constructed in sections of not less than twenty consecutive miles each. No conveyance in violation of the terms of those acts, the road not having been constructed, could pass any title to the company.
Besides, it is evident, notwithstanding the words of transfer to the company contained in the first part of the nineteenth section of the act of the State, that it was not the intention of the State that the title should pass except uрon the construction of the road. Its concluding language is that “ upon the construction and completion of every twenty
We proceed, therefore, to the consideration of the several grounds upon which the defendant justifies his seizure of the logs in controversy, and claims a return of them to him.
1. That the act of Congress of June 3d, 1«56, passed a present interest in the lands designated there can be no doubt. The language used imports a present grant and admits of no other meaning. The language of the first section is, “ that there be, and is hereby, granted to the State of Wisconsin” the lands specified. The third section declares “that the said lands hereby granted to said State shall bo subject to the disposal of the legislature thereof;” and the fourth section provides in what manner sales shall be made, and enacts that if the road be not completed within ten years “no further sales shall be made, and the lands unsold shall revert to the United States.” The power of disposal and the provision for the lands reverting both imply what the first section in terms declares, that a grant is made, that is, that the title is transferred to the State. It is true that the route of the railroad, for the construction of which the grant was made, was yet to be designated, and until such designation the title did not attach to any specific tracts of land. The title passed to the sections, to be afterwards located; when the route was fixed their location became certain, and the title, which was previously imperfeсt, acquired precision and became attached to the land.
In the case of
Rutherford
v.
Greene's Heirs,
reported in the second of Wheaton, a similar construction was given bj' this court to an act of North Carolina, passed in 1782, which provided that twenty-five thousand acres of land should be allotted аnd given to General Greene and his heirs within the limits of a tract reserved for the use of the army, to be laid off by commissioners appointed for that purpose. The commissioners pursuant to the directions of the act allotted the twenty-five thousand acres and caused the quantity to be
On the 6th of March, 1820, Congress passed an act for the admission оf Missouri into the Union, and among other regulations to aid the new State, enacted, “ that four entire sections of laud be and the same are hereby granted to said State for the purpose of fixing the seat of government thereon, which said sections shall, under the direction of the legislature of said State, be located as near as may be in one body, at any time, in such townships and ranges as the legislature aforesaid may select., on any of the public lands of the United States.” In Lessieur v. Price, reported in the twelfth of Howard, the operation of this act was considered ; and the court said :
“ The land was granted by the act of 1820; it was a present grant, wanting identity to make it pei’feet; and the legislature was vested with full power to select and locate the laud; and we need only here say, what was substantially said by this сourt, in the ease of Rutherford v. Greene’s Heirs, that the act of 1820 vested a title in the State of Missouri of four sections; and that the selection made by the State legislature pursuant to the act of Congress, and the notice given of such location to the surveyor-general and the register of the local district where the land lay, gave precision to the title, and attached to it the land selected. The United States assented to this mode of proceeding; nor can an individual call it in question.”
The rules applicable to private transactions, which rеgard grants of future application — of lands to be afterwards designated — as mere contracts to convey, and not as actual conveyances, are founded upon the common law, which requires the possibility of present identification of property to the validity of its transfer. A legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires.
The case of Rice v. Railroad Company, reported in the first of Black, does not conflict with these views. The words of present grant in the first seсtion of the act there under consideration were restrained by a provision in a subsequent section declaring that the title should not vest in the Territory of Minnesota until the road or portions of it were built.
The grant of additional land by the first section of the act of Congress of 1864 is similar in its language and is subject to the same terms and conditions as the grant by the act of 1856. With the other grants, made by the act of 1864, we are not concerned in the present ease.
2. The provision in the act of Congress of 1856, that all lands remaining unsold after ten years shall revert to the United States, if the road be not then completed, is no more than a provision that the grant shall be void if a condition 'subsequent be not performed. In Sheppard’s Touchstone it is said: “If the words in the close or conclusion of a condition be thus: that the land shall return to the enfeoffor, &c., or that he shall take it again and turn it to his own profit, or
that the land shall revert,
or that the feoffor shall
And it is settled law that no one can take advantage of the non-performance of a condition subsequent annexed to an estate in fеe, but the grantor or his heirs, or the successors of the grantor if the grant proceed from an artificial person; and if they do not see fit to assert their right to enforce a forfeiture on that ground, the title remains unimpaired iu the grantee. The authorities on this point, with hardly аn exception, are all one way from the Year Books down. And thé same doctrine obtains where the grant upon condition proceeds from the government; no individual can assail the title it has conveyed on the ground that the grantee has failed to perform the conditions annexed. †
In what, manner the reserved right of the grantor for breach of the condition must be asserted so as to restore the estate depends upon the character of the. grant. If it be a private grant, that right must be asserted by entry or its equivalent. If the grant bе a public one it must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, finding the fact of forfeiture and adjudging the restoration of the estate on that ground, or there must be some legislative assertion of ownership of the property for breach of the condition, such
3. The title to the land remaining in the State the lumber cut upon the land belonged to the State. Whilst the timber was standing it constituted a part of the realty; being severed from the soil its character was changed; it became personalty, but its title was not affected; it continued as previously the рroperty of the owner of the land, and could be pursued wherever it was carried. All the remedies were open to the owner which the law affords in other cases of the wrongful removal or conversion of personal property.
4. The logs cut from the lands of the State without license, having been intermingled by the plaintiffs with logs cut from other lands, so as not to be distinguishable, the owner was entitled, under the legislation of Minnesota, and the decisions of her courts, to replevy from the whole mass an amount equal to those cut by the plaintiffs, and the stipulation of the parties provides that the seizure by the defendant, so far as the manner of making the same is concerned, was as valid and legal in all respects as though made under and by virtue of legal process. The remedy thus afforded
"We perceive no error in the rulings of the court below, and the judgment is, therefore,
Affirmed.
Notes
Sheppard’s Touchstone, 125.
Sheppard’s Touchstone, 149; Nicoll v. New York and Erie Railroad Co., 12 New York, 121; People v. Brown, 1 Caines’s Reports, 416; United States v. Repentigny, 5 Wallace, 267; Dewey v. Williams, 40 New Hampshire, 222; Hooper v. Cummings, 45 Maine, 359; Southard v. Central Railroad Co., 2 Dutcher, 13.
United States v. Repentigny, 5 Wallace, 211, 268; and see Finch v. Riseley, Popham, 53.