company which built them and those claim- [ the railroad, whatever the nature of the tening under it received at most 6,428 acres. ure. Chicago, Saint Paul, etc., Railway v. The case is one of apparent hardship. Was the judgment of the Court of Claims denying relief required by the applicable rules of law?

United States, 217 U. S. 180, 30 Sup. Ct. 470, 54 L. Ed. 721. The appellant expressly disclaims any contention that the mail clause should not apply because the quantity of land covered by the grant was small as compared with that contemplated by the Act of June 3, 1856, and with the cost of the road.

[6-8] Third. It is contended that this rail

[1-4] First. If the railroad was land-aided, payment of more than eighty per cent. of the full rates otherwise provided by law was unauthorized; and it was the duty of the Postmaster General to seek to recover the over-road was not land-aided, because it had, in fact, been completed without the aid either of payment. Revised Statutes, § 4057 (Comp. funds or of credit derived from these public St. § 7606). He was under no obligation to lands. Whether the Port Huron & Lake establish the illegality by suit. Having satis-Michigan Company which built the railroad fied himself of the fact he was at liberty to

*121

was in fact aided by the land grant in so doing is immaterial. Before the road had been fully completed it asked that the land be granted to it in aid of the construction, and for this purpose only could the grant be made under the act of Congress. It accepted from the state a patent for the land which recited that such was the purpose of the conveyance: and it expressly assented to the terms and conditions of the grant imposed by the Act of June 3, 1856. Thereafter it proceeded to

the Port Huron & Lake Michigan Company remained the owner of the railroad. It had been authorized by its charter to receive the land grant and necessarily to assent to the

be made to it. It is true that the mortgage upon its property, under which appellant claims title, was executed before the company had applied for the grant; and it does not appear that the mortgage purported specifically to cover public lands; but the trustee under the mortgage claimed these lands as after-acquired property and the company's interest in them was, by special proceeding,

deduct the amount of the overpayment from the moneys otherwise payable to the company to which the overpayment had been made. Wisconsin Central Railroad Co. V. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399. There was no attempt to include in the deduction any alleged overpayment to any of appellant's predecessors in title. Balances due for carrying the mails, although arising under successive quadrennial contracts, are regarded as running ac-dispose of the land. Throughout this period counts, and moneys paid in violation of law upon balances certified by the accounting officers may be recovered by means of a later debit in these accounts. It matters not how long a time elapsed before the error in mak-conditions upon which alone the grant could ing the overpayment was discovered or how long the attempt to recover it was deferred. The statute of limitations does not ordinarily run against the United States and would not present a bar to a suit for the amount. See United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194. It is true that when a department charged with the execution of a statute gives it a construction and acts upon that construction uniformly for a series of years, the court will look with disfavor upon a change whereby parties who have contracted with the government upon the faith of that construction would be injured. United States v. Alabama Great Southern Railroad Co., 142 U. S. 615, 12 Sup. Ct. 306, 35 L. Ed. 1134. But here the practice long continued of paying the full rate instead of eighty per cent. thereof was not due to any construction of a statute which the department later sought to abandon, but to what is alleged to be a mistake of fact-due perhaps to an oversight. To such a case the rule of long-continued construction has no application. The appellant must be held to have taken the road with notice of the burdens legally imposed upon it.

[5] Second. If the road was land-aided, it is immaterial that the company which later

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#123

made subject to the foreclosure proceedings. The appellant is therefore in no better position than the Port Huron & Lake Michigan Company to question the charge upon the railroad imposed by acceptance of the grant.

[9] Fourth. Appellant points to the fact that the patent to the lands lying west of Flint was later held to be void by the Supreme Court of the State, and insists that thereby the charge or condition concerning the carriage of the mail must be held to have been relinquished. But the patent to the lands east of Flint never was declared void; the company's title to them never was questioned; and the objection to the patent to the western lands did not apply to them. That objection was that the Port Huron & Lake Michigan Railway Company was not a "competent party" to receive the western lands within the meaning of the eleventh section of the Michigan Act of 1857 (Laws 1857, No. 126), because it did not propose to construct a line from Grand Haven Owosso. Bowes v. Haywood, supra, And the attempt by the Legislature

carried the mail over it received *none of the
land and obtained no benefit from the grant.
The obligation to carry mails at eighty per
cent. of rates otherwise payable attached to
the road like an easement or charge; and it to
affects every carrier who may thereafter use 246.

99

(40 Sup.Ct.) to make it a "competent party" through "Said railroads shall be and forever remain the Act of 1877 violated the obligations of the public highways for the use of the government federal government's grant. Fenn v. Kinsey, of the United States, free from toll or other supra. The only flaw in the title to the lands charge upon the transportation of any property east of Flint lay in the fact that the railway or troops of the United States; and the United States mail shall be transported over said railhad not been completed within ten years of *125 the Act of June 3, 1856, as required by that roads, *under the direction of the Post Office act. This requirement, however, was a con- Department, at such price as Congress may by dition subsequently annexed to an estate in law direct. * fee, and the title remained valid until the federal government should take action by legislation or judicial proceedings to enforce a forfeiture of the estate. Schulenberg v. Harriman, 21 Wall. 44, 63, 64, 22 L. Ed. 551; Railroad Land Co. v. Courtright, 21 Wall. 310, 316, 22 L. Ed. 582. So far from doing so Congress relinquished by joint resolution its reversionary interest in the land, and thereby removed all possibility of objection on its part to the validity of the patent; and the state of Michigan later ratified the patent by legislation admitted to be valid.

The order of the Board of Control of May 1, 1873, directing the transfer of the land to the Port Huron & Lake Michigan Company, and the patent issued by the Governor were founded upon the authority of section eleven of this act; and under date of May 30, 1873, the company accepted the lands with the burdens they imposed. The railroad, whose owners and constructors accepted aid derived from these lands, became charged by operation of law with the burden of transporting the mails. The question whether that com

[10] Fifth. The appellant urges that the il-pany would have accepted the land with its burdens if it had foreseen the invalidity of

*124

legality of the pat*ent to the western lands the title to the western lands, is wholly immaterial. The burden attached upon the acceptance of any aid whatsoever no matter

constituted a failure of consideration which voided the contract with the government.

The burden of the mail clause, it says, could how disproportionate to the cost of construct

ing the portion so aided.

be imposed only by contract between the government and Port Huron & Lake Michigan Company. The contract was for land west as well as east of Flint-and the land west could legally be granted only if the company contemplated building the road west

ward to Grand Haven. As there was not

even a pretense that it contemplated such construction, the contract was illegal. The government's claim under the mail clause must fail, because no rights can be acquired under an illegal contract. So the appellant contends. Such a view is the result of regarding the transaction as a promise by the railway to the government to carry the mail at a price fixed by Congress, on consideration of 36,000 acres of public land. A contract of this sort would create a purely personal obligation attaching "to the company, and not to the property"-clearly not to a mere licensee. However, it is settled that the obligation in question is not of this nature but does attach to the property, even when used by a licensee. Chicago, St. Paul, etc., Ry. v. United States, 217 U. S. 180, 30 Sup. Ct. 470, 54 L. Ed. 721. The obligation of a land-aided railway to carry the mail at a price fixed by Congress is a charge upon the property. The public lands were granted to Michigan to aid the construction of certain railways upon certain conditions. The Legislature of Michigan could not dispose of the lands except in accordance with the terms of the grant. By the Act of February 14, 1857, it accepted the grant and enacted legislation to give legal effect to the conditions of it. Section 4 of the act is as follows:

The transaction called illegal was one between the company and the state authorities. The United States was no party to it. It had merely supplied property which the parties

to it used. The government never objected to the disposition made of it; and evidenced its March 3, 1879. No reason exists why rights approval by passage of the joint resolution of by way of charge upon the railroad which the acceptance of six thousand acres of pubwere acquired by the government through lic land, should be invalidated by the alleged illegality of the state authorities' action in issuing a patent to a wholly different tract.

Affirmed.

(252 U. S. 273) STATE OF MINNESOTA v. STATE OF WISCONSIN.

(Argued Oct. 16 and 17, 1919. Decided March 8, 1920.)

No. 16, Original.

1. STATES

12(2)-LOCATION OF MOUTH OF ST. LOUIS RIVER, FIXING BOUNDARY OF WISCONSIN STATED.

Within the meaning of Act Cong. Aug. 6, 1846, describing the northern boundary of Wisconsin as running through the center of Lake Superior to the mouth of the St. Louis river,

the mouth of such river is not southeast of Big Island, where the banks, channel, and current characteristic of a river end and lake features begin, but at the deep channel between Minnesota Point and Wisconsin Point.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*275

*Messrs. W. D. Bailey and H. B. Fryberger, both of Duluth, Minn., Lyndon A. Smith, of St. Paul, Minn., Charles R. Pierce, of Wash'ington, D. C., and Clifford L. Hilton and Frank B. Kellogg, both of St. Paul, Minn., for complainant.

the Minnesota shore, leaving portions of them in each state. See Wisconsin v. Duluth, 96 U. S. 379, 24 L. Ed. 668; Norton v. Whiteside, 239 U. S. 144, 36 Sup. Ct. 97, 60 L. Ed.

186.

"An act to enable the people of Wisconsin Territory to form a Constitution and state government, and for the admission of such state into the Union," approved August 6, 1846 (9 Stat. 56, c. 89), described the boundary in part as follows:

"Thence [with the northwesterly boundary of Michigan] down the main channel of the Montreal river to the middle of Lake Superior; thence [westwardly] through the center of Lake Superior to the mouth of the St. Louis river;

276

thence up the main channel of said river to the first rapids in the same, above the Indian vil lage, according to Nicollet's map; thence due south to the main branch of the River St. Croix," etc.

With the boundaries described by the En

abling Act, Wisconsin entered the Union May 29, 1848 (9 Stat. 233, c. 50).

"An act to authorize the people of the territory of Minnesota to form a Constitution and state government, preparatory to their admission in the Union," approved February 26, 1857 (11 Stat. 166, c. 60), specifies a portion of the boundary thus:

"Thence by a due south line to the north line of the state of Iowa; thence east along the northern boundary of said state to the main channel of the Mississippi river; thence up the main channel of said river, and following the boundary line of the state of Wisconsin, until the same intersects the St. Louis river; thence down said river to and through Lake Superior, on the boundary line of Wisconsin and Michigan, until it intersects the dividing line between the United States and the British possessions."

With boundaries as therein described, Minnesota became a state May 11, 1858 (11 Stat. 285, c. 31).

Messrs. M. B. Olbrich, of Madison, Wis., Walter C. Owen, of Maiden Rock, Wis., and

Walter Drew, of Milwaukee, Wis., for de flicting interpretations of the words:

fendant.

The present controversy arises from con

"Thence [westwardly] through the center of Mr. Justice McREYNOLDS delivered the Lake Superior to the mouth of the St. Louis river; thence up the main channel of said river opinion of the Court. to the first rapids in the same, above the Indian village, according to Nicollet's map."

We are asked to ascertain and establish the boundary line between the parties in Upper and Lower St. Louis Bays. Complainant claims to the middle of each bay-halfway between the shores. The defendant does not seriously question this claim as to the lower bay, but earnestly maintains that in the upper one the line follows a sinuous course near complainant's shore. Since 1893 a deep channel has been dredged through these waters and harbor lines have been established. According to Wisconsin's insistence, its border crosses and recrosses this channel and intersects certain docks extending from

The situation disclosed by an accurate survey gives much room for differences concerning the location of the "mouth of the St. Louis river" and "the main channel of said river." Nicollet's map of the "Hydrographical Basin of the Upper Mississippi River," published in 1843, and drawn upon a scale of 1: 1,200,000-approximately 20 miles to the inch-is too small either to reveal or to give material aid in solving the difficulties. A sketch from it-approximately on original scale-is printed on the next page.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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