Statement of the Case.

SIOUX CITY & ST. PAUL RAILROAD COMPANY v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA.

No. 20. Argued April 16, 17, 1895. Decided October 21, 1895.

The Sioux City & St. Paul Railroad Company having failed to complete the entire road from Sioux City to the Minnesota line, as contemplated by the act of Congress of May 12, 1864, c. 84, 13 Stat. 72, making a grant of public land in aid of its construction, and as required by the statutes of Iowa, has not only received as many acres of public land as it could rightfully claim under that act, but has also received 2004.89 acres in excess of what it could rightfully claim. Grants of odd-numbered sections of public lands to aid in the construction of railways imply no guaranty that each section shall consist of 640 acres, nor any obligation on the part of the United States to give other public lands to supply deficiencies in reaching that amount.

Under the said act of 1864, the grant was made to the State as trustee, and not to the railroad company, and the title under the patent, when issued, vested in the State as trustee.

When lands are granted by acts of Congress of the same date, or by the same act, to aid in the construction of two railroads that must necessarily intersect, or which are required to intersect, each grantee, when the maps of definite location are filed and accepted, takes, as of the date of the grant, an equal undivided moiety of the lands within the conflicting place limits, without regard to the time of the location of the respective lines.

THIS suit was brought by the United States against the Sioux City and St. Paul Railroad Company, pursuant to the act of Congress of March 3, 1887, providing for the adjustment of land grants in aid of the construction of railroads, and for the forfeiture of unearned lands theretofore granted. 24 Stat. 556, c. 376.

Upon its appearing that from any cause lands had been erroneously certified or patented to or for the use and benefit of any company to aid in the construction of a railroad, it became the duty of the Secretary of the Interior to demand the relinquishment or reconveyance of such lands, whether within granted or indemnity limits. If the company failed

Statement of the Case.

for ninety days to comply with that demand, it was made the duty of the Attorney General to institute proceedings for the cancellation of the patents, certifications, or other evidence of title issued for such lands, and for the restoration of the title to the United States. § 2.

The decree from which the present appeal was taken quieted the title of the United States, as against the Sioux City and St. Paul Railroad Company, and Elias F. Drake and Amherst H. Wilder, trustees in mortgages given by that company, to certain tracts of lands in Dickinson County, Iowa, alleged to contain 800 acres, and to other tracts in O'Brien County, in the same State, alleged to contain 21,179.85 acres; in all, 21,979.85 acres. United States v. Sioux City & St. Paul Railroad, 43 Fed. Rep. 617.

The railroad company claimed title under an act of Congress, approved May 12, 1864, c. 84, granting lands to Iowa in aid of the construction of railroads in that State, 13 Stat. 72, and also under statutes of Iowa passed in execution of the objects of that act.

The United States claimed that the company had received a larger quantity of lands than it was entitled to receive under the act of 1864, and, therefore, could have no claim to the particular lands here in controversy.

The relation of the parties to these lands and the facts upon which the question of title depended was shown by the following summary of the evidence:

By the above act of May 12, 1864, Congress granted lands to the State of Iowa to aid in the construction of two railroads in that State; one, from Sioux City to the south line of Minnesota, at such point as the State of Iowa might select between the Big Sioux River and the west fork of the Des Moines River; the other, for the use and benefit of the McGregor Western Railroad Company, an Iowa corporation, to aid in the construction of a railroad extending from South McGregor, Iowa, in a westerly direction, by the most practicable route on or near the forty-third parallel of north latitude, until it intersected, in the county of O'Brien, the proposed road from Sioux City to the Minnesota state line.

Statement of the Case.

The grant was of every alternate section, designated by odd numbers. But if it appeared, at the date of definite location, that the United States had sold any granted section or part thereof, or that any preëmption or homestead right had attached thereto, or that the same had been reserved by the United States for any purpose whatever, the Secretary of the Interior was to select, or cause to be selected, for the purposes stated in the act, from the public lands nearest to the tiers of sections specified, so much, in alternate sections or parts of sections, designated by odd numbers, as was equal to the lands lost to the State in either of the modes just stated. The lands thus selected were to be held by the State for the above uses and purposes, and were not, in any case, to be located more than twenty miles from the lines of the road to be constructed. All lands, previously reserved to the United States by any act of Congress, or in any other manner by competent authority for the purpose of aiding in any work of internal improvement or other purpose, were expressly reserved and excepted from the operation of the act, except so far as it was found necessary to locate the routes of the roads through such reserved lands. § 1.

The lands granted were "subject to the disposal of the legislature of Iowa for the purposes aforesaid, and no other;" and the railroad was to be and remain a public highway for the use of the government of the United States, free of toll or other charge upon the transportation of the property or troops of the United States, as well as for the transportation of the mail at such price as Congress should fix. §§ 3, 6.

The fourth section of the act was the subject of much discussion by counsel. It provided: "That the lands hereby granted shall be disposed of by said State, for the purposes aforesaid only, and in manner following, namely: When the governor of said State shall certify to the Secretary of the Interior that any section of ten consecutive miles of either of said roads is completed in a good, substantial, and workmanlike manner as a first-class railroad, then the Secretary of the Interior shall issue to the State patents for one hundred sections of land for the benefit of the road having completed the

Statement of the Case.

ten consecutive miles as aforesaid. When the governor of said State shall certify that another section of ten consecutive miles shall have been completed as aforesaid, then the Secretary of the Interior shall issue patents to said State in like manner, for a like number; and when certificates of the completion of additional sections of ten consecutive miles of either of said roads are, from time to time, made as aforesaid, additional sections of lands shall be patented as aforesaid, until said roads or either of them are completed, when the whole of the lands hereby granted shall be patented to the State for the uses aforesaid and none other: Provided further, That

if the said roads are not completed within ten years from their several acceptance of this grant, the said lands hereby granted and not patented shall revert to the State of Iowa for the purpose of securing the completion of the said roads within such time, not to exceed five years, and upon such terms as the State shall determine: And provided further, That said lands shall not in any manner be disposed of or incumbered, except as the same are patented under the provisions of this act; and should the State fail to complete said roads within five years after the ten years aforesaid, then the said lands undisposed of as aforesaid shall revert to the United States."

The lands embraced by the act were to be withdrawn from market as soon as the governor of the State filed, or caused to be filed, with the Secretary of the Interior, maps designating the routes of the respective roads. § 5.

The last section of the act granted to the State of Minnesota four additional alternate sections of land per mile to be selected under the conditions, restrictions, and limitations contained in a former act of Congress, approved March 3, 1857, c. 99, 11 Stat. 195 for the purpose of aiding the construction of a railroad in that State, extending from St. Paul and St. Anthony, by way of Minneapolis, to a convenient point of junction west of the Mississippi, in the southern boundary of the State, and in the direction of the mouth of the Big Sioux River. $7.

By an act approved April 3, 1866, Iowa accepted the lands, powers, and privileges conferred upon it by the act of May 12,

Statement of the Case.

1864; and, so much of the lands, interests, rights, powers, and privileges as were or could be granted and conferred in pursuance of the act of Congress, for the purpose of aiding the construction of the railroad from Sioux City to the Minnesota line, were disposed of, granted, and conferred upon the Sioux City and St. Paul Railroad Company, an Iowa corporation, to be hereafter called, for the sake of brevity, the Sioux City company. That act authorized the company to select and designate the point upon the south line of Minnesota to which its road should be built. Laws of Iowa, 1866, 143, c. 134, $$ 1, 2, 7.

By. a subsequent statute of Iowa, approved April 20, 1866, it was provided that the lands, powers, duties, and trusts conferred by the act of Congress of "July 12, 1864," were accepted by the State upon the terms, conditions, and restrictions therein contained, and that "whenever any lands shall be patented to the State of Iowa, in accordance with the provisions of said act of Congress, said land shall be held by the State in trust for the benefit of the railroad company entitled to the same by virtue of said act of Congress, and to be deeded to said railroad company as shall be ordered by the legislature of the State of Iowa." Laws of Iowa, 1866, 189, c. 144. The word "July" in that act, inserted by mistake, was stricken out by an act passed March 24, 1868, and "May "substituted, and the acceptance intended to be made by the act of April 20, 1866, was ratified and confirmed. Laws of Iowa, 1868, 49, c. 42.

On the 17th of July, 1867, the Sioux City company filed in the General Land Office a map showing the location of its route from Sioux City, Iowa, northwardly to the south line of Minnesota, a distance of 83.52 miles. This map was accepted by the Interior Department, and, August 26, 1867, the oddnumbered sections within the ten and twenty-mile limits of the located line were withdrawn from the market.

The company-commencing, not at Sioux City, as was apparently contemplated by Congress and indicated by the map of definite location, but at the Minnesota line - began the construction of its road in 1872, and completed it south

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