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of these lands was within the fifteen-mile limits of the Winona road, and not within its six-mile limit. Thereupon the Winona Company brought the present suit, in the proper court of the state, to have a declaration of its rights in the lands described in a schedule attached to the bill, as against the St. Paul Company and others, and to restrain them from receiving a patent or other evidences of title to the lands from the governor of the state. The local court granted relief, but whether to the full extent of the prayer of plaintiff we do not know; for, while the judgment of that court is before us, with a specific description of the pieces of land which it declares to be rightfully owned by the Winona Company, the schedules referred to in the original petition are not in the record. From that judgment the St. Paul Company appealed to the supreme court of the state, where it was affirmed, and then prosecuted this writ of error to that judgment of affirmance. The judge of the district court for Blue Earth county, in which the case was first tried, made an elaborate finding of the facts on which his judgment was rendered, and also an amended finding, and by these, so far as any controversy on the facts arises, t the supreme court of Minnesota was governed and so is this court. These findings of fact are very full, and are intended to meet several aspects of the case, some of which are, in our view, immaterial to its decision.
The supreme court of Minnesota divides the lands in controversy in the suit into four classes, only the first two of which are in controversy here, namely: First. Those lying without the six, but within the fifteen, miles limits of the defendant, (the St. Paul Company,) and within the six miles limits of plaintiff, (the Winona Company.) Second. Those lying without the six miles limits of each company, within the fifteen miles limits of plaintiff, (the Winona Company,) and without the fifteen, but within the twenty, miles limits of the defendant, (the St. Paul Company.) The decision of that court gave the lands embraced in both these classes to the Winona Company, and the St. Paul Company assigns for error here that it is entitled to both classes.
The act of March 3, 1857, is of the class of acts which this court has repeatedly held to be a grant in præsenti. Its language is, "that there be, and hereby is, granted to the territory of Minnesota * * ** every alternate section of land designated by odd numbers, for six sections in width on each side of said roads;" and though the roads may not be located through these lands for several years, whenever the location is made the alternate odd-numbered sections are thereby ascertained, and the title then perfected relates back to the statute; and as to all such sections, or parts of sections, not sold, or to which a pre-emption right has not attached at the time of this location, the title is valid from the date of the act. There are, perhaps, other lands reserved by the United States, and otherwise excepted out of the grant, which do not pass, but these are not material to the decision of the present case. In this act of March 3, 1857, and in the earlier act of May 15, 1856, granting lands to the state of Iowa for railroad purposes, and perhaps in other similar acts, congress has, in a single statute, made provisions for several different roads, with different places of beginning and ending, and running in different directions. These roads have, in every instance, been built by different corporations, organized under state laws, having no other connection with each other than this common source from which the lands are received, and the rights and duties arising under these acts of congress, and the acts of the state on the same subject. In each and all of these cases the date of the title and the source of the title is the same, because it arises under the same act of congress. It results from this that no priority of title can be obtained by the earlier location of the line of the road, provided this be done within the time limited for the forfeiture of the grant. Though one of the corporations to which the right to build a road and receive the grant has been given, may locate its road two or three years earlier than another company authorized to build another road under the same grant, there is no priority of title nor any v.58-22
priority of right to the lands found in place within the six miles limits by rea. son of this earlier location.
As we said before, the title to the alternate sections to be taken within the limit, when all the odd sections are granted, becomes fixed, ascertained, and perfect in each case by this location of the line of the road, and in case of each road the title relates back to the act of congress. Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 501; Van Wyck v. Knevals, 106 U. S. 360; S. C. 1 SUP. CT. REP. 336; Cedar R., etc., Co. v. Herring, 110 U. S. 27; S. C. 3 SUP. CT. REP. 485; Grinnell v. Railroad Co. 103 U. S. 739. In cases where these lines of road do not cross each other, nor the limits within which the lands in place are found do not cross or overlap, nor the limits within which lands in lieu of those sold are pre-empted are to be selected, this is a matter of no consequence. But in the administration of these land grants of the same date it has more than once occurred that, by reason of the lines crossing each other or the exterior limits of the lands in place coming so near as to overlap, the question of priority of right has arisen. In such cases it has been insisted very earnestly that priority of location gave priority of right to all the lands coming within the six-miles limits of the road so first located. Such is the argument of plaintiff in error in this case; and while there is here*no lap or collision of the six-mile limits of these two roads as located and constructed as to lands now in question, it is much insisted that, the appellant's road having been first located, this carries with it the identity of the limits within which indemnity lands may be selected for those sold or pre-empted within its own six-mile limits; and as this indemnity limit extends over a part of appellee's six-mile limits, it is urged that this selection, though made years after both roads are located and built, is a right paramount to any right the appellee has within that limit, unless it be the road-bed and right of way. It is on this ground that the appellant here insists upon its right to enter the six-mile limits of the appellee's road wherever its indemnity limits of 15 miles and its extension limits of 20 miles overlap the six-mile limit of the latter, and, to the exclusion of the appellee, select there all the odd-numbered sections to which that company would otherwise be entitled.
We do not think this proposition is sound. It has been the practice and usage of the land department, when these conflicting lines relate to the limits within which the designated alternate odd-numbered sections are to be found, to hold that the respective companies take the lands so situated in undivided moieties, without regard to the date of the location of the lines of road. The parties to this litigation adjusted the conflict where their roads crossed on that basis, and the principle is a necessary result of the rule that no priority of right is secured by priority of location. We entertain no doubt of its soundIt follows from these principles that the decision of the supreme court was right that the lands embraced in its first class, namely, those found within the six-mile limit of the road of the plaintiff below, the Winona Company, and without the six-mile limit of the defendant, were definitely fixed and ascertained to belong to the former when its line was located, and could not be taken to supply deficiences in the grant of the other company, whether its road was located first or last.
A careful examination of the list of lands decreed by the court to be the property of plaintiff below, demonstrates that much the larger proportion of the lands in controversy, probably nine-tenths of them, belong to this class, and are found within the limits of the Winona Company's six-mile primary grant. It is also to be remarked that this includes all the lands in controversy lying east of the west line of range 39.
With regard to the lands of the second class, as classified by the supreme court, the decision depends upon the right of selection by the respective parties, or of the state for them, of lands not found within the six-mile limit and the twenty-mile limit when their respective roads were located. By the
.ct of 1857 these selections could only be made within fifteen miles of the line of the road, and the court says that the lands, which it now classifies together in this second group, are within the fifteen-mile or indemnity limit of the Winona road, and are not within the fifteen-mile or indemnity limit of the St. Paul road, but they are within the twenty-mile limit of the latter road. In regard to these lands, the court held that the right of the Winona Company was superior, under the act of 1857, to the St. Paul Company's claim, under the act of 1864, and that the latter had no other claim. This act of 1864 was one which, by its title, was passed to give to the state of Iowa lands in aid of a road from McGregor, on the Mississippi river, to the western boundary of the state, and another road from Sioux City to the Minnesota line in the county of O'Brien. 15 St. 72. To this state was given the alternate sections, designated by odd numbers, for ten sections on each side of these roads. As the Sioux City road was probably intended to meet the road from St. Paul and St. Anthony towards the mouth of the Big Sioux river, at the line between the two states, congress by the seventh section enlarged the grant to this latter road to make it equal to that of the Iowa roads. This section reads as follows: "Sec. 7. That there be, and is hereby, granted to the state of Minnesota, for the purpose of aiding in the construction of a railroad from St Paul and St. Anthony, via Minneapolis, to a convenient point of junction west of the Mississippi, to the southern boundary of the state, in the direction of the mouth of the Big Sioux river, four additional alternate sections of land per mile, to be selected upon the same conditions, restrictions, and limitations as are contained in the act of congress entitled 'An act making a grant of lands to the territory of Minnesota, in alternate sections, to aid in the construction of certain railroads in said territory, and granting public lands, in alternate sections, to the state of Alabama to aid in the construction of a certain railroad in said state,' approved March third, eighteen hundred and fifty-seven: provided, that the land to be so located by virtue of this section may be selected within twenty miles of the line of said road, but in no case at a greater distance therefrom. Approved May 12, 1864.”
By the act of March 3, 1865, (13 St. 526,) it was enacted that the grant of lands to the state of Minnesota to aid in the construction of railroads, of March 3, 1857, "shall be, and hereby is, increased to ten sections per mile for each of said roads and branches, subject to all limitations contained in said act and subsequent acts, and as hereinafter provided," thus placing all the other Minnesota roads on an equality in that respect with the one from St. Paul and St. Anthony to the Iowa state line. This statute also requires that the first proviso to the first section of the act of 1857 be so amended as to read that the land so located shall in no case be further than 20 miles from the lines of said roads, and said lands shall in all cases be indicated by the secretary of the interior. It also provides that nothing herein contained shall interfere with any existing rights acquired under any law of congress heretofore enacted granting lands to the state of Minnesota to aid in the construction of railroads. There is nothing in either of these statutes which indicates or requires that the six-mile limit of the original grant is to be enlarged so that, within a limit of ten miles, all the odd sections fall immediately within the grant on the location of the road. Such language was used in the fourth section of the act concerning the Union Pacific Railroad in 1864, only a few weeks later than the act of that year now under consideration. There it was enacted that the words of the act of 1862 should be so changed as to change the original limits, and include within that grant the sections added to it by the amendment of 1864. U. S. v. Burlington & M. R. R. Co. 93 U. S. 334. In addition to this significant fact, both the act of 1864 and of 1865 speak of the additional sections to be selected, a word wholly inapplicable to lands in place which are not ascertained by selection, but are fixed and determined by the location of the line of the road. The act of 1865, which is to be consid
ered in pari materia on this point, provides that these lands shall be indicated by the secretary of the interior. What this word "indicated" means may admit of some doubt, but taken in connection with the other two statutes, and other acts granting lands to aid in the construction of railroads, it probably means no more than what is expressed in the act of 1857, namely, that the selections of lieu lands shall be made by the governor or his agent and approved by the secretary. We think, therefore, that these additional lands granted to appellant, under which it claims the right to go into the limits of appellee's primary grant, are lands to be selected, and that some selection on the part of appellee or for its benefit must be shown. As to the lands in the second class, of the Minnesota supreme court, it is found as a fact, by the amended finding in which the attention of the court was specially turned to that matter, that no selection of any of them was ever made by defendant below, or by any one for that company. The language of the court in its supplementary finding of facts is: "Neither the state nor the defendant, nor any agent of the state or of the defendant, ever selected for the defendant, or on account of the location or construction of its line of road, any of the lands in controversy in this action lying west of the west line of range (37) thirtyseven."
As all the lands in controversy lying east of this line are included in the first class as being within the plaintiff's six-mile limits of land in place, and as no selection on behalf of defendant has ever been made of any of the lands west of that line, these two facts would seem to dispose of the whole controversy. For while the inferior court so far modified its first finding, namely, that both parties did, on the twenty-third day of May, 1872, present lists of all the lands in controversy to the local district land-officers as selections under their respective grants, as to say that no selections were ever presented by defendant for any lands west of range 37, it left the fact that lists of selection for these latter were presented by plaintiff to stand, and also of the payment of the office fees, and that the lists were certified to the department. There was then a selection of the lands included in this class made by plaintiff or for its benefit on the twenty-third of May, 1872, and no selection of them ever made by or on behalf of defendant. The time when the right to lands becomes vested, which are to be selected within given limits under these land grants, whether the selection is in lieu of lands deficient within the primary limits of the grant, or of lands which, for other reasons, are to be selected within certain secondary limits, is different in regard to those that are ascertained within the primary limits by the location of the line of the road. In Ryan v. Railroad Co. 99 U. S. 382, this court, speaking of a contest for lands of this class, said: "It was within the secondary or indemnity territory where that deficiency was to be supplied. The railroad company had not, and could not have, any claim to it until specially selected, as it was for that purpose;" and the reason given for this is that "when the road was located and maps were made, the right of the company to the odd sections first named became fixed and absolute. With respect to the lieu lands, as they are called, the right was only a float, and attached to no specified tracts until the selection was actually made in the manner prescribed."
The same idea is suggested, though not positively affirmed, in the case of Grinnell v. Railroad Co. 103 U. S. 739. In the case of Cedar Rapids R. Co. v. Herring this principle became the foundation, after much consideration, of the judgment of the court rendered at the last term, (110 U. S. 27; S. C. 3 SUP. CT. REP. 485;) and the same principle is announced at this term in the case of Kansas Pac. R. Co. v. Atchison, T. & S. F. R. Co. 112 U. S. 414; S. C. ante, 208. The reason of this is that, as no vested right can attach to the lands in place (the odd-numbered sections within six miles of each side of the road) until these sections are ascertained and identified by a legal location of the line of the road, so in regard to the lands to be selected
within a still larger limit, their identification cannot be known until the selection is made. It may be a long time after the line of the road is located before it is ascertained how many sections, or parts of sections, within the primary limits, have been lost by sale or pre-emption. It may be still longer before a selection is made to supply this loss.
The plaintiff in error insists that the map of its line of road was filed in 1859. The court of original jurisdiction finds that, up to the time of the trial in October, 1878, a period of nearly 20 years, no selection of these lands had ever been made by that company, or any one for it. Was there a vested right in this company, during all this time, to have not only these lands, but all the other odd sections within the 20-mile limits on each side of the line of the road, await its pleasure? Had the settlers in that populous region no right to buy of the government, because the company might choose to take them, or might, after all this delay, find out that they were necessary to make up deficiencies in other quarters? How long were such lands to be withheld from market, and withdrawn from taxation, and forbidden to cultivation?
It is true that in some cases the statute requires the land department to withdraw the lands within these secondary limits from market, and in others the officers do so voluntarily. This, however, is to give the company a reasonable time to ascertain their deficiencies and make their selections. It by no means implies a vested right in said company, inconsistent with the right of the government to sell, or of any other company to select, which has the same right of selection within those limits. Each company having this right of selection in such case, and having no other right, is bound to exercise that right with reasonable diligence; and when it is exercised in accordance with the statute, it becomes entitled to the lands so selected. The unascertained float then becomes a vested right to an identified tract of land. In this case, and for these reasons, priority of selection secures priority of right. The judgment of the supreme court as to the land in this, its second class, is correct, whatever may have been its reasons for it. It is no answer to this to say that the secretary of the interior certified these lands to the state for the use of the appellant. It is manifest that he did so under a mistake of the law, namely, that appellant, having made the earlier location of its road through these lands, became entitled to satisfy all its demands, either for lieu lands or for the extended grant of 1864, out of any odd sections within 20 miles of that location, without regard to its proximity to the line of the other road. We have already shown that such is not the law, and this erroneous decision of his cannot deprive the Winona Company of rights which became vested by its selection of those lands. Johnson v. Towsley, 13 Wall. 80; Gibson v. Chouteau, 13 Wall. 102; Shepley v. Cowen, 91 U. S. 340; Moore v. Robbins, 96 U. S. 536.
(113 U. S. 51)
We see no error in the judgment of the supreme court of Minnesota, and it is accordingly affirmed.
DRENNEN and others, Partners, etc., v. LONDON ASSUR. CORP.1
(January 5, 1885.)
FIRE INSURANCE-CHANGE OF INTEREST-ADMISSION OF PARTNER.
A fire policy, covering merchandise belonging to a firm, provided that it should be void if the property "be sold or transferred, or any change takes place in title or possession, (except by succession by reason of the death of the insured,) whether by legal process, or judicial decree, or voluntary transfer or conveyance." Subsequently, and before loss, the firm, owning this property in certain proportions, made an agreement in writing with A., by which they agreed to receive him into their business upon the following terms and conditions: Said company is to be come incorporated. A. is to pay into the firm for its use $5,000 forthwith, and
IS. C. 20 Fed. Rep. 657.