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wit, on July 26, 1871. In the meantime, that is to say from August, 1866, to March, 1877, the grantee in said deeds, the First Division Company, had sold and conveyed over 25,000 acres of the lands thus deeded to it, which were situated north of Watab, to various purchasers, who had settled upon some of the lands, and had very likely made valuable improvements thereon. It is not shown by the record that any one had ever questioned the validity of said conveyances prior to March 1, 1877, although, according to the present contention of the plaintiff company, the equitable title to much of the land embraced in the deeds, during all of said period, was vested in the St. Paul & Pacific Railroad Company, which was then a going concern, and most likely active in the defense of its interests. The plaintiff company likewise failed to challenge the several deeds for eight years after it had taken advantage of the provisions of the act of March 1, 1877, and had completed the line of road from Watab to Brainerd, and had thereby become entitled, according to its present contention, to demand a conveyance from the state of the lands now in dispute. Moreover, it suffered a period of five years more to elapse before it took the position which it now seeks to maintain, that the deeds in question were absolutely void when executed, and did not even operate to divest the state of the legal title. In view of these facts, it admits of no doubt, we think, that when the act of March 1, 1877, was adopted, the opinion prevailed generally among all persons who were aware of the existence of the deeds that they had been executed in substantial conformity with existing laws, and were valid conveyances. This belief that the deeds operated to convey a good title was probably strengthened by the fact disclosed by the testimony that, in executing the same, the governor of the state had acted under and pursuant to the advice of the attorney general.

It has been suggested that when the act of March 1, 1877, was adopted, the legislature was ignorant of the fact that any lands north of Watab had been conveyed to the First Division Company. This suggestion, even if it was well founded, would not determine the intention of the legislature with respect to the lands in controversy, neither would it be decisive of the construction which the act of March 1, 1877, ought to receive. The act shows very clearly that the legislature intended, by the sale of a part of the forfeited lands, to secure the payment of all claims that existed against the St. Paul & Pacific Railroad Company growing out of work theretofore done or materials furnished by individuals towards the construction of the line north of Watab, and that it also intended to protect all persons who had made settlements upon, or filed claims against, any of the lands lying within the limits of the grant between Watab and Brainerd. The tenth section of the act, as will be seen, excluded from the grant made by the state to such company as might complete the line from Watab to Brainerd all lands that had been settled upon in good faith, or against which valid homestead or pre-emption claims had been filed on or before the passage of the act. It is not too much to say that the act bears the strongest internal evidence of an in

tention on the part of the legislature not to disturb existing rights or titles of any sort, but to protect settlers and all other persons who had colorable claims to the land, or any part of it. The general purpose seems to have been to vest in such company as might complete the line from Watab to Brainerd the right, on completion, to demand conveyances from the state of such lands within the limits of the grant as were clearly subject to its disposal because of the existence of no outstanding claims. We can scarcely conceive it to be possible that the legislature would have been any less solicitous to protect individuals who had purchased land from the First Division Company in reliance on the title conveyed by the deeds executed by the governor, than it was to protect persons who had made settlements on the land, possibly after the definite location of the line and after the withdrawal of the lands from sale. On the assumption, therefore, that the legislature was ignorant of the existence of the deeds, yet without a more definite expression of such a purpose, the act ought not to receive a construction that will bring within its purview lands that had already been conveyed by the governor to the First Division Company, in the belief that it had earned the same and was justly entitled thereto. We are persuaded, however, that it is not probable that the legislature passed the act of March 1, 1877, in ignorance of the fact that the deeds in question had been executed. The long period that had then elapsed since they were executed, the publicity that had been given to the same by filing them in the proper office and by certifying lists of the tracts of land thereby conveyed to the several counties where they were situated, the quantity of land that had actually been sold, and the discussions and investigations which usually precede the passage of such legislative enactments as the act of March 1, 1877, render it highly improbable, we think, that the legislature could have been ignorant that such conveyances had been executed and delivered, and that a portion of the land had been sold. It is most reasonable to presume that the legislature was well acquainted with the fact that certain lands north of Watab had been conveyed to the First Division Company, and that it shared in the common belief then entertained by all persons who were aware of the existence of the deeds, that they had been executed in accordance with law, and that the lands thereby conveyed would not be affected by the provisions of the act, because they were no longer subject to legisla tive control. From the standpoint occupied by the legislature, believing as it did, no doubt, that the previous conveyances were valid, it was both a reasonable and natural view that the language of the act granting the "lands appertaining to the portion of the road it shall complete formerly held by the St. Paul and Pacific Railroad Company" could only be held applicable to lands then subject to its disposal, that is to say, to lands not theretofore earned or conveyed. Moreover, the execution of the deeds by the governor was an act done by him in an official capacity, and future legislatures, as well as his successors in office, were bound to take notice of what had already been done by the

executive department of the government in discharge of duties devolved upon it by law.

There is another consideration to be briefly noticed which strongly supports the foregoing conclusions. The legal title to all the lands in controversy, at the date of their conveyance by the gov ernor, was undoubtedly vested in the state of Minnesota. The state had been authorized by the general government to dispose of the lands in aid of the construction of a certain line of railroad. It was obviously contemplated by congress that the state would pass laws designating a beneficiary of the grant, and prescribing the manner in which the lands should either be sold by the state, or the title thereof be transferred to such company or companies as might be formed to construct the proposed road. Such laws were, in fact, passed both by the territory and the state, and the local legislation on that subject, as might have been anticipated, became elaborate and complex. The execution of these laws was committed to the governor of the state. He was empowered to execute deeds, from time to time as the work of construction progressed, for all of the lands lying within the limits of the grant, and in the discharge of that duty it became necessary for the governor to consider and decide whether the conditions had been fulfilled which entitled the beneficiary company or companies to demand conveyances from the state. After the St. Paul & Pacific Railroad Company had become segregated into two corporations by the Litchfield agreement, and by the act of the legislature approving and confirming the agreement, it undoubtedly became the duty of the governor to decide, in the first instance, how much of the granted lands passed by that agreement to the First Division Company, and whether it could lawfully lay claim to any lands, either within the place or indemnity limits, that were situated north of Watab, and, if so, to what extent it could rightfully lay claim thereto. The record discloses that some of these questions which were thus committed to the decision of the governor, in the course of time, and particularly in view of the Litchfield agreement, became complex and difficult of solution. Inasmuch, then, as the legal title to the lands in controversy was vested in the state, and the governor had been given power to execute conveyances therefor, and to determine, as between different companies, which was entitled to them, and whether the conditions warranting a conveyance of the same had been fulfilled, the conclusion follows that the deeds in controversy were not void, but at most were only voidable. According to well-established principles, an erroneous decision by the chief magistrate of a question intrusted to him to decide cannot be said to have had the effect of rendering a deed executed by him in conformity with such decision absolutely null and void. The numberless titles in the state of Minnesota, and perhaps in other states as well, which rest upon deeds executed by its chief executive officer under similar circumstances, and the very common practice of relying implicitly upon titles emanating from the state, admonish us to be cautious in sanctioning the doctrine that a mistake made in

the construction of a law is sufficient to render a deed utterly void, although the power to convey the particular tract of land to some one is undoubtedly vested in the officer. In the case of U. S. v. Winona & St. P. R. Co., 67 Fed. 948, which has been under advisement, and has been considered by this court in connection with the case at bar, we have stated succinctly under what circumstances a patent for lands will be esteemed void, and when it will be held to be merely voidable. It is sufficient to say at present that, within the rules announced in that case, if the governor of the state of Minnesota acted under a mistaken view of the law in executing the several deeds now in question to the First Division Company, such conveyances were at most only voidable, and so the circuit court appears to have held.

It results from this view-that if the deeds are invalid they are at most only voidable-that we should be forced to conclude that the act of March 1, 1877, was not intended to declare a forfeiture of the lands theretofore conveyed by the governor, even if we believed it to be probable that the legislature acted under the impression that those conveyances had been erroneously executed. We would not feel authorized to infer merely from the general language of the statute, and in the absence of any allusion to said deeds or to titles acquired thereunder, that the legislature intended to declare, without judicial proceedings of any sort, that the lands theretofore conveyed by the governor were thereby forfeited to the state and granted to another company. The question now under discussion being merely as to the intent of the legislature, it is not necessary to decide whether it was competent for the state, by legislative enactment, to forfeit lands which had been erroneously conveyed by the governor, and were held by the grantee under a voidable deed, or whether the exercise of that power pertains solely to the judiciary, as was held in Fletcher v. Peck, 6 Cranch, 87. For present purposes, it will suffice to say that it ought not to be presumed that the legislature intended to exercise the authority in question without unmistakable evidence of such a purpose, and that we find nothing in the act of March 1, 1877, or in the circumstances which induced the passage of that measure, which satisfies us that such was the legislative intent. It follows, from the construction which we have felt compelled to place on the act of March 1, 1877, that the plaintiff company did not, by the provisions of that act, acquire any such title to or interest in the lands in controversy as will enable it to maintain the suit at bar.

The decree of the circuit court is accordingly reversed, and the cause is remanded to that court, with directions to dismiss the bill of complaint at the complainant's cost.

PITTSBURGH, C. & ST. L. R. CO. et al. v. KEOKUK & H. BRIDGE CO. (Circuit Court of Appeals, Seventh Circuit. January 14, 1895.)


The I. C. R. Co. and three other railroad companies made a contract with a bridge company by which such railroad companies were granted the right in perpetuity to a certain bridge and agreed to pay monthly tolls, and, if such tolls fell below a certain sum, each agreed to pay onefourth of the deficiency. The I. C. R. Co. executed the contract at the request of the P. and Pa. R. Cos., which agreed to assume all the liabilities of such contract, the same as if it had been specifically named, and made a part of a certain article of a prior lease by the I. C. R. Co. of its road to the P. and Pa. R. Cos., by which the lessee agreed to assume and carry out certain existing contracts for transportation over roads of other companies, and the Pa. R. Co. guarantied performance by the P. R. Co. By such contract the companies named agreed to keep books of account, which should exhibit the number of passengers and the number of tons of freight transported monthly over such bridge, which books should be at all times subject to the inspection of the bridge company. Held, that a court of equity has jurisdiction of a bill by the bridge company against the P. and Pa. R. Cos. to assert liability to complainant under defendants' agreement with the I. C. R. Co., and for an accounting with respect to alleged deficiency in earnings under such contract.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

J. T. Brooks and George Hoadley, for appellants.

Lyman Trumbull and Perry Trumbull, for appellee.

Before JENKINS, Circuit Judge, and BUNN and SEAMAN, District Judges.

JENKINS, Circuit Judge. The affirmative answer by the supreme court to the question we submitted to them (155 U. S. 156, 15 Sup. Ct. 42) establishes the liability of the appellants. The only question remaining to be considered arises upon the objection taken by the answer that the controversy between the parties is within the cognizance of the courts of common law only, and not of the courts of equity; and that, therefore, a court of equity is without jurisdiction to entertain the suit. The principal contract was between the bridge company and the Columbus, Chicago & Indiana Central Railway Company (for brevity called the Indiana Central Company) and three other railway companies, by which the Bridge Company granted to the four railway companies in perpetuity the right to use its bridge over the Mississippi river upon payment of certain specified tolls. The Indiana Central Company's line of railroad did not reach within 200 miles of the Mississippi river, but the railroads of the several railway companies parties to the contract, with the railroads of the Pittsburgh Company and the Pennsyl vania Company, appellants, and with the bridge of the appellee company, formed a continuous line of transportation from Philadelphia to Des Moines, Iowa. By the bridge contract the three railway companies which immediately connected with the bridge at the river agreed to keep books of account which should exhibit the number of passengers and the number of tons of freight trans

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