vey to the said parties of the first part, or to such other person or persons, is such manner, and from time to time, as may be directed by the said parties of the first part, or their counsel, on the request of the said parties of the firs part, or a majority of them."

The

The execution, validity, and obligation of this contract are admitted. present suit was commenced to enforce its specific performance, and the only question between the parties is as to the quantity of land to be conveyed under it. Before the suit was commenced the company had conveyed to the plain*tiffs, in part performance of the contract, 317,094 acres and 72-100 of an acre. As to that part of the road which was constructed under the act of 1857 from Winona to Rochester, the court held that under the act of congress, the legislation of the state, and the contract with the company, the plaintiffs were entitled to six full sections of land for each mile of the road, and that for any deficiencies existing when the route of the road was definitely fixed, arising from previous sales by the United States of portions of the land, or previous attachment of pre-emption rights, whether such sales took place, or pre-emption rights attached, before or after the passage of the act, equivalent lands were to be selected from the indemnity lands provided. And as to that part of the road which was constructed westerly from Rochester to Waseca after the passage of the act of 1865, the court held that the plaintiffs were entitled to 10 full sections per mile, without any deduction for the lands which were located at the intersection of the defendant's road with the road of the Minnesota & Cedar Valley Railroad Company, and within the grant for the latter's construction; and, as the result of these rulings, the court decided that the plaintiffs were entitled to a conveyance of 197,111 acres and 93-100 of an acre, and entered a decree accordingly. From this decree the defendant has appealed to this court.

Thos. Meson, for appellant. G. E. Cole, for appellee.

FIELD, J. Two questions are presented for our consideration by the appeal in this case. The first relates to the deficiencies in the sections desig⚫nated as granted in the act of 1857, arising from sales and the attachment of pre-emption rights previous to the final determination of the route of the road of the railway company, and the extent to which indemnity for these deficiencies may be supplied from other lands. The second relates to the reservation from the operation of the act of 1865 of lands previously granted to Minnesota to aid in the construction of any railroad, which were located within the limits of the extension made by that act to the original grant, and its effect on the amount of lands claimed by the plaintiffs. The solution of these questions depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.

The act of 1857 grants lands to the state to aid the construction of several railroads. These were to be built through large districts of country sparsely settled. Though the termini of each were designated, it was impossible, in advance of surveys, to designate the specific route of any one, even approximately. In many instances, where the sections would fall along such route, sales of land had already been made by the United States, and pre-emption rights of settlers had attached; and before the route would be definitely fixed by surveys and maps, many other sales of land falling within the sections would probably be made and other pre-emption rights attach. It was not for the interest of the country that any portion of the public lands should be withheld from sale and settlement because, when the route of the roads was definitely determined, they might fall within the limits of the grants; nor was v.5s-39

979.

the purpose of congress to lessen the extent of its aid because it might ultiwately be found that, at the time of its grant, or when the route was determined, portions of the land designated had already been disposed of or preemption rights had attached to them. The policy of the government was to keep the public lands open at all times to sale and pre-emption, and thus encourage the settlement of the country, and, at the same time, to advance such settlement by liberal donations to aid in the construction of railways. The acts of congress, in effect, said: "We give to the state certain lands to aid in the construction of railways lying along their respective routes, provided they are not already disposed of, or the rights of settlers under the laws of the United States have not already attached to them, or they may not be disposed of or such rights may not have attached when the routes are finally determined. If at that time it be found that of the lands designated any have been disposed of or rights of settlers have attached to them, other equivalent lands may be selected in their place, within certain prescribed limits." The encouragement to settlement by aid for the construction of railways was not intended to interfere with the policy of encouraging such settlement by sales of the land, or the grant of pre-emption rights. It follows that in our judgment the indemnity clause covers losses from the grant by reason of sales and the attachment of pre-emption rights previous to the date of the act, as well as by reason of sales and the attachment of pre-emption rights between that date and the final determination of the route of the road.

It is to no purpose to say, against this construction, that the government could not grant what it did not own, and therefore could not have intended that its language should apply to lands which it had disposed of. As already said, the whole act must be read to reach the intention of the law-maker. It uses, indeed, words of grant,—words which purport to convey what the grantor owns, and, of course, cannot operate upon lands with which the grantor had parted; and therefore when it afterwards provides for indemnity for lost portions of the lands "granted as aforesaid," it means of the lands purporting to be covered by those terms. Nor is it to any purpose to cite decisions to the effect that the grant is in præsenti, passing an immediate interest to the state. Such is undoubtedly the case, except as the operation of the grant is affected by the limitations mentioned; that is to say, when the sections granted are ascertained, the title to them takes effect as of the date of the grant, and cuts off all intervening claimants except as to such portions as may have been sold, or to which pre-emption rights may have attached.

The language in Railroad Co. v. Baldwin, 103 U. S. 426, does not militate against this construction of the act. It expresses the general purpose of the reservation to keep the lands open at all times to settlement and pre-emption, and subject to appropriation for public uses until the route of the road is determined, but does not declare that lands previously sold, or to which the rights of pre-emption had previously attached, are excluded from the indemnity clause. The court was there drawing attention to the difference between the two grants in the act of congress of July 23, 1866,-that of sections of land and that of the right of way; the former being a present grant, except as its immediate operation was affected by the reservations; the latter being a present absolute grant, without any reservation or exception. The language in Leavenworth Railroad Co. v. U. Š. 92 U. S. 733, is quoted as sanctioning the position of the appellant. The court, speaking of the indemnity clause in the grant then under consideration, said its purpose was to give sections beyond the limit designated for those lost within it by the action of the government between the date of the grant and the location of the road. But it did not say that this was its only purpose; and, if the language must be construed as meaning that, it was a mere dictum, not essential to the decision of the case The question was, what lands could be taken for indemnity, not for what de

ficiencies indemnity could be had. And it was held that an Indian reservation did not pass by the grant, and could not be taken as indemnity for the lands otherwise lost from it. There was no question before the court for what deficiencies indemnity could be supplied.

As to the effect of the reservation in the third section of the act of 1865, of lands previously granted to Minnesota for the purpose of aiding in the con struction of any railroad, there should be little doubt. The grant by the act of 1857 is one of description; that is, of land in place and not of quantity. It is of every alternate section, designated by odd numbers, for six sections on each side of the road; that is, of particular parcels of land lying within certain defined lateral limits to the road, and described by numbers on the public surveys. And the indemnity clause provides for loss from those parcels by sales or the attachment of pre-emption rights before the route becomes definitely fixed, the indemnity lands to be selected within fifteen miles from the line of the road. The act of 1865 enlarges the quantity granted from six sections to ten, and the indemnity limits from fifteen miles to twenty. The character of the grant, so far as the six sections are concerned, is not thereby changed from one of lands in place, or by description, to one of quantity. The use of the terms "quantity of lands granted," in the first section, in referring to the amount granted by the act of 1857, is of no significance. It is the same thing as though the act had used the words "six sections" instead of the word "quantity," and had said that they should be increased to ten sections. The four sections are to be selected by the secretary of the interior beyond the six and within the twenty miles limit; and as to them the grant may be regarded as one of quantity, though the coterminous principle applies to them, and they are to be selected along and opposite the completed road.

This reservation of the lands previously granted to Minnesota from the grant of the additional four sections, that is, from the extension of the original grant of 1857, was only a legislative declaration of that which the law would have pronounced independently of it. Previous grants of the same property would necessarily be excluded from subsequent ones. The only embarrassment in the construction of the section arises from the inapt words used to describe the land from which the previous grant is to be deducted. The language of the section is "that any lands which may have been granted to the territory or state of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of such grant or grants, shall be deducted from the full quantity of lands hereby granted." The only lands granted by the act of 1865 are the four sections for each mile additional to the original six, accompanied with a right to select indemnity lands within 20 miles of the road. The words, "the full quantity granted," only denote the entire extension. To the extent of the previous grant that extension must be reduced, even if the whole be taken. Those words do not transfer the loss from the 10 sections within which the grant falls to other sections along the line. The sections in which such grant falls are correspondingly reduced.

It follows that where the grant previously made to Minnesota to aid in the construction of the Minnesota & Cedar Valley Railroad interferes with the extension of the grant to the defendant by the act of 1865, the extension must be abandoned. The earlier grant takes the land which would otherwise be added to the original six sections. The court below therefore erred in holding that the Winona Company was entitled to 10 full sections where such interference occurred, without deducting the lands previously granted to the state. The cause must, therefore, go back that the proper deduction may be made by reason of this interference of the two grants, and the elder grant be deducted from the extension made by the act of 1865.

Decree reversed, and the cause remanded, with directions to take further proceedings in accordance with this opinion.

+628

(113 U. S. 506)

PROVIDENT INSTITUTION FOR SAVINGS IN JERSEY CITY . MAYOR AND ALDERMEN OF JERSEY CITY.

(March 2, 1885.)

TAXATION-LIEN-INCUMBRANCE-PRIORITY.

The laws of New Jersey having made the water rents in Jersey City a charge on the land, with a lien prior to all other incumbrances, in the same manner as taxes and assessments, a mortgagee, after the passage of such laws, took his mortgage subject to this condition, whether the water was introduced on the lot mortgaged before or after the giving of the mortgage, and hence such mortgagee has no ground of complaint that his mortgage has been taken without due process of law. In Error to the Court of Chancery of the State of New Jersey. Chas. H. Hartshorn, for plaintiff in error. Wm. Brinkerhoff, for defendant in error.

BRADLEY, J. This was a bill in equity filed in the court of chancery of New Jersey by the appellant, to foreclose two mortgages given to it on a certain lot in Jersey City by Michael Nugent and wife, and another person, the first being dated January 19, 1863, to secure the payment of $900 and interest, and the second, dated July 13, 1869, to secure the payment of $700 and interest. The complainants also claimed, under the stipulations of the mortgages, the amount of certain premiums of insurance paid by them. By an amended bill, making the mayor and aldermen of Jersey City a defendant, the complainants alleged that the city claimed a lien on the mortgaged premises prior to that of the mortgages, for certain water rents, for supplying water to the occupants of the saine for the year 1871, and from thence to the time of filing the bill; that this claim was made under an act of the legislature of New Jersey, passed May 25, 1852, authorizing the construction of water-works for the city, and the act revising the city charter, passed in March, 1871. The bill denied the validity of this claim, and averred that those portions of the said acts which purported to give such a priority had the effect to deprive the complainant of its property in the mortgaged premises without due process of law, and were in violation of the constitution of the United States as well as that of New Jersey; and the complainant prayed for a foreclosure and sale of the lot in question as against all the defendants.

There was annexed to the bill and referred to therein a copy of the "Tariff of Rates and Regulations for the Use of Passaic Water; also Rules Regulating the Plumbing of Houses and the Tapping of Sewers;" being the regulations adopted by the board of public works of Jersey City under the statutes referred to in the bill. The water rates specified in this tariff (except for measured water) were graduated in a table according to the width and number of stories of the houses, and were made payable annually in advance on the first of May in each year, with a penalty of 3 per cent. if not paid by the first of July, and interest at the rate of 7 per cent. from the twentieth of · December. The regulations extend to many details, making provision for extra charges to certain kinds of establishments, providing penalties for misuse of the water, etc. The city authorities answered the bill, admitting that they had assessed upon the mortgaged premises the water rents set forth in the bill, and alleged that they were imposed in pursuance of an act of the legislature of New Jersey, entitled "An act to authorize the construction of works for the supplying of Jersey City and places adjacent with pure and wholesome water," approved March 25, 1852, and an act entitled "An act to reorganize the local government of Jersey City," passed March 31, 1871, and the supplements thereto; and insisted that said water rents were a lien prior to the mortgages, and prayed that it might be so adjudged.

The other defendants made no defense. The complainant and the city authorities entered into a stipulation to the effect that the allegations of fact in the bill were to be taken as true; that in the assessment of the water

rents, interest, and penalties, all the requirements of the act "to reorganize the local government of Jersey City," passed March 31, 1871, and the supplements thereto, had been complied with, and that the only question to be determined by the court was whether, upon the facts stated in the bill, the water rents and interest and penalties mentioned therein, or any of them, were liens upon the property in question prior to the lien of the complain ant's mortgages.

The chancellor decided that the giving of a priority of lien to the water rents over the mortgages, pursuant to the statutes, did not deprive the complainant of its property without due process of law, and did not otherwise conflict with the constitution of the United States or with that of New Jersey; and he decreed that, for the purpose of raising the money due on the mortgages, the mortgaged premises must be sold subject to such lien, and that the bill must be dismissed as against the city. This decree, being appealed from, was affirmed by the New Jersey court of errors and appeals, and the record was remanded to the court of chancery. The case is brought here by writ of error, and the errors assigned resolve themselves into the single error of sustaining the priority of the lien of the water rents over that of the complainant's mortgages.

*The ground on which the decision below was placed was that the laws having made the water rents a charge on the land, with a lien prior to all other incumbrances, in the same manner as taxes and assessments, the complainant took its mortgages subject to this condition, whether the water was introduced onto the lot mortgaged before or after the giving of the mortgage; and hence the complainant had no ground of complaint that its property was taken without due process of law.

We do not well see how this position can be successfully controverted. The origin of the city's right to priority of lien goes back to the year 1852, when the legislature passed the act "to authorize the construction of works for supplying Jersey City and places adjacent with pure and wholesome water." That act laid the foundation of a scheme for leading water from the Passaic river to Jersey City, a distance of seven or eight miles, across the channel of the Hackensack river, and over the ridges of Lodi and Bergen. Power was given to a board of commissioners appointed for that purpose, to take the necessary lands by right of eminent domain, to borrow money on the credit of the city, to lay pipes through the streets, and to make all necessary and proper regulations for the distribution and use of the water, and "from time to time to fix the price for the use thereof and the times of payment;" and, by section 14 of the act, it was declared "that the owner and occupier of any house, tenement, or lot shall be liable for the*payment of the price or rent fixed by the commissioners for the use of the water by such occupier, and such price or rent so fixed shall be a lien upon said house, tenement, or lot, in the same way and manner as other taxes assessed on real estate in Jersey City are liens, and shall be collected in like manner." This law has been substantially continued to the present time. On a revision of the city charter in 1871, the board of water commissioners was replaced by a board of public works, invested with the same powers and duties; and by section 81 of the revised charter, after providing for the fixing of the water rents as in the act of 1852, it was, among other things, further enacted as follows:

"And the said board shall from time to time determine and give public notice of the times and places at which the said water rents shall be due and payable, and the penalties to be charged for delaying the payments beyond the times so fixed; and the said water rents shall, until paid, be liens upon the property charged therewith; and the said board may, at any time after the twentieth day of December, in each year, deliver to the board of finance and taxation of Jersey City an account, certified under the hand of the president, of all such water rents and penalties for delinquency as are then due