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though he did not make formal application un granted shall be exclusively applied in the til after such date.

construction of that road for and on account 6. A person who, in March, 1888, settled on land granted to the Ontonagon R. Co., but

of which such lands are hereby granted, and which had not been earned by such company,

shall be disposed of only as the work pro with a view of making a homestead of it under the laws of the United States, expecting at

gresses, and the same shall be applied to the time that such grant would be removed,

no other purpose whatsoever”; in section 3, and that he could then enter the land, is a

“that the said lands hereby granted to the bona fide claimant of such homestead, within said state, shall be subject to the disposal the meaning of Act March 2, 1889 (2) Stat. 1008), contirming title in such claimants, though

of the legislature thereof, for the purposes he knew of the grant to such railroad coin

aforesaid and no other"; and in section 4, pany.

that “if any of said roads is not completed Error to the Circuit Court of the United within ten years no further sales shall be States for the Western District of Michigan. made, and the lands unsold shall revert to Action of ejectment by the Lake Superior

the United States." Apparently, congress Ship Canal, Railway & Iron Company contemplated, among other things, the conagainst Walter A. Cunningham, in which

struction of a railroad northerly from Fond there was a judgment entered on the ver

du Lac to the line between Wisconsin and dict of a jury, directed by the court, in favor

the Northern Peninsula of Michigan, and of defendant. Plaintiff brings error.

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thence in two branches to Marquette and firmed.

Ontonagon, on the Lake Superior shore. On *This was an action commenced by the February 14, 1857, an act passed the Michi. plaintiff in error (plaintiff below) in the cir gan legislature (Laws 1857, p. 346) accepting cuit court of the United States for the West

this grant, and transferring to the Marquette ern district of Michigan, on July 17, 1888, to

& State Line Railroad Company (hereinafter recover the possession of the S. W. 14 of sec

called the “Marquette Company'') and the tion 25, township 44 N., range 36 W. Upon

Ontonagon & State Line Railroad Company the first trial a verdict was returned in favor (hereinafter called the “Ontonagon Comof the plaintiff. In conformity with the opin- pany”) two corporations created under the ion of Mr. Justice Jackson, then circuit

laws of the state of Michigan, so much, re judge (44 Fed. 819), a new trial was granted, spectively, of said grant, as was intended which on July 26, 1890, resulted in a verdict, to aid in the construction of the road.be under instructions of the court, in favor of tween Marquette and the state line and that the defendant, upon which verdict judgment between Ontonagon and the state line. The was rendered. To reverse that judgment language of the act making the transfer is this writ of error was brought. The plain- emphatic as to the division between the two tiff claimed title by virtue of certain land companies. It reads: grants made by congress to the state of Mich “In like manner all the lands, franchises, igan, to aid in the construction of a canal, rights, powers, and privileges which are or and a confirmation by an act of congress of may be granted and conferred, in pursuance March 2, 1899. The defendant insisted that of said act of congress, to aid in the conno title passed by the canal grants, because struction of a railroad from Marquette to the land had theretofore been granted by

the Wisconsin state line, be, and the same congress to aid in the construction of a rail are hereby, vested fully and completely in road; that he entered upon the land with a the Marquette and State Line Railroad Com. view of pre-emption; and that his right of pany; in like manner all the lands, franpre-emption was confirmed by the same-act chises, rights, powers, and privileges, which of congress of March 2, 1889. The facts in are or may be granted and conferred in purrespect to the respective railroad and canal suance of said act of congress, to aid in the grants are as follows:

construction of a railroad from Ontonagon to On June 3, 1836, congress passed an act (11 the Wisconsin state line, are hereby vested Stat. 20) granting to the state of Wisconsin, fully and completely in the Ontonagon and to aid in the construction of a railroad "from State Line Railroad Company." Fond du Lac on Lake Winnebago northerly By the same act a board of control was to the state line,” every alternate section of created to supervise the disposition of the land, designated by odd numbers, for six sec granted lands, and in section 11 it was pro tions in width, on each side of the road; and vided that on the failure by the respective on the same date it passed another act (11 companies to construct their lines of road, Stat. 21) making a similar grant to the state or any part thereof, in the time and man. of Michigan to aid in the construction of sev. ner required, the "said board of control shall eral railroads, amoug them being "railroads have the power, and it is hereby made their from Little Bay de Roquet to Marquette, and duty, to declare said lands, so far as they thence to Ontonagon, and from the two last have not been sold in good faith, forfeited named places to the Wisconsin state line." to the state, and said board of control are This grant was in the ordinary form of a hereby required to confer said lands upon grant in praesenti, the language being, "That some other competent party, under the geile there be and hereby is granted to the state eral regulations and restrictions of this act.'' of Michigan, to aid," etc.

The act also pro The grant to the state of Wisconsin was vided, in section 1, "that the lands hereby | conferred by its legislature upon the Chi.

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698.

cago, St. Paul & Fond du Lac Railroad Com- , ed in pursuance of said act of congress, appany, an Illinois and Wisconsin corporation; proved June third, eighteen hundred and if. and on March 27, 1857, that corporation was ty-six, to aid in the construction of a railroad consolidated with the Marquette Company | from Marquette to the Wisconsin state line, and the Ontonagon Company, the consolidat near the mouth of the Menominee river, in ed company taking the name of the Chi a position to encourage the early construccago, St. Paul & Fond du Lac Railroad Com tion of said road, do hereby repeal so much pany. No question is made as to the valid of section two of 'An act to repeal section ity of this consolidation. Neither the On twenty of an act disposing of certain lands tonagon nor the Marquette Company filed for railroad purposes, approved February any map of location, but the consolidated fourteenth, eighteen hundred and fifty-seven," company (hereinafter called the "Fond du approved February fifteenth, eighteen bun. Lac Company") on November 30, 1857, filed dred and fifty-nine, as relates to the exten. in the general land office two maps of definite sion of the time to complete the first section location,-one of the* Wisconsin part of its of twenty miles of the Marquette and State road, and the other of the Michigan portion. Line Railroad, or any other act amendatory On the latter the roads from Marquette and thereto, and do hereby place the same id 1.ctonagon were located so as unite some charge of the board of control, who shall five or six miles above the Wisconsin state have power, and is hereby made their duty, line, so that the two maps together showed to confer said lands, franchises, rights, pow. a single continuous line from Fond du Lac ers and privileges upon some other compe through Wisconsin, and to a point in Michi tent party or company under the general gan five or six miles above the state line, regulation and restrictions of an act disposwhere it separated into two branches, one ing of certain grants of land made to the going to Marquette and the other to Onton state of Michigan for railroad purposes by an agon. The Fond du Lac Company built no act of congress approved June third, eighteen road,-at least, none in Michigan. On April hundred and fifty-six, and approved Febru6, 1857, it executed a mortgage covering all ary fourteenth, eighteen hundred and fiftyits property, including the land grants in seven, and all acts amendatory thereto." Michigan and Wisconsin. Subsequently, Nothing was said in this act about the Onforeclosure proceedings were bad, and by tonagon Company or the road from Ontonproper conveyances all the title of the Fond

agon to the state line. In order to carry du Lac Company passed to the Chicago & into effect this contemplated change of route, Northwestern Railway Company, the last the Chicago & Northwestern Railway Comconveyance being executed on July 1, 1859. pany promoted the formation of the PeninOn December 12, 1861, the interior depart sula Railroad Company, a corporation orment certified to the state of Michigan cer ganized under the laws of the state of Michtain lands along the lines of these roads in igan; and on April 24, 1862, the Peninsula satisfaction of the grants made by the act Company applied to the Michigan board of of June 3, 1856. These lands were certified control to transfer to it the land grant there in four lists,-one, of lands within the six. tofore bestowed by the state upon the Marmile limits of the Ontonagon & State Line quette Company, which application was in. Branch (clear). This list included 142,430.23 dorsed by the Chicago & Northwestern Rail. acres, and among the lands so certified was way Company, whereupon the board of conthe tract in controversy in this case.

trol made the following order: On March 4, 1861, the legislature of the "It is now ordered by this board that all state of Michigan, contemplating a change the lands, franchises, rights, powers, and of route from Marquette to the Wisconsin privileges which are or may be granted in state line, passed an act (Laws Mich. 1861, pursuance of said act of congress approved p. 123), the preamble and first section of June 3, 1836, to aid in the construction of which are as follows:

a railroad from Marquette to the Wisconsin "Whereas, the Marquette and State Line state line, be, and the same are hereby, conRailroad Company have heretofore consoli ferred* upon the said Peninsula Railroads dated with the Chicago, St. Paul and Fond Company, under the regulations and restria du Lac Railroad Company, of Wisconsin, and tions of an act approved February 14, 1857, said company having become insolvent, and entitled 'An act disposing of certain grants all its property in Wisconsin transferred to of land made to the state of Michigan for another company: and whereas, the most railroad purposes by act of congress appracticable route for a railroad connecting proved June 3, 1836,' and of all acts amend. Lake Superior with the system of railroads atory thereto." in Wisconsin, should be located on a different And at the same time it passed a resoluroute from the one heretofore partially se tion, the material portion of which is as lected, namely: from Jarquette to the mouth follows: of the Menominee river; therefore,

"Resolved, that this board of control of "Sec. 1. The people of the state of Mich railroad land grants for the state of Michigan enact, that for the purpose of placing igan do hereby recommend and request that the aforesaid lands, franchises, rights, pow. congress do authorize the welocation of the ers and privileges, which are or may be grant lands granted for the purposes of the lino

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of road from Marquette to the Wisconsin upon the filing in the general land office of state line so as to conform to the new line the lists of said railroad lands, in whole or that shall be surveyed and adopted by the in part, as now selected aod certified in the said Peninsula Railroad Company, termi general land office, with the certificate of nating at the mouth of the Menominee the governor of the state of Michigan, ulder river, and to the same effect and extent as the seal of the state, that said state and its if such grant had been originally intended assigns surrender all claims to the lands, to embrace the route so designated and the as aforesaid, set forth and described in the same had been originally conferred upon lists thereof thus certified, and that the same said Peninsula Railroad Company."

have never been pledged or sold or in any. On July 5, 1862, evidently with a view to wise encuinbered, then the state of Michigan carry out the wish of the state of Michigan, or its assigns shall be entitled to receive as expressed in the act of March 4, 1861, a like quantity of land, selected in like manand the resolution of the board of control, ner, upon the new line of road as thus surcongress passed joint resolution (12 Stat. rendered upon the first line, and to the ex620), whose first section is in these words: tent of six sections per mile in the aggregate

"Resolved by the senate and house of rep for every mile of the new line, according resentatives of the United States of America to the general provisions of the act of June in congress assembled, that the words 'Wis third, eighteen hundred and fifty-six." consin state line,' in the first section of an . Prior to this time, and on April 25, 1862, act entitled 'An act making a grant of lands congress had authorized a relocation of the to the state of Michigan, in alternate sections, line in the state of Wisconsin so as to conto aid in the construction of railroads in nect with the proposed line from Marquette said state,' approved June third, eighteen southward, contemplated by the act of March hundred and fifty-six, shall, without for 4, 1861, of the state of Michigan. 12 Stat. feiture to said state or its assigns of any 618. On March 18, 1803, in tlie legislation rights or benefits under said act or exemption of the state of Michigan, appears an act from any of the conditions or obligations im (Laws Mich. 1863, p. 186), the first section posed thereby, be construed to authorize the of which is as follows: location of the line of railroad provided for in said act from Marquette, on Lake Su igan enact, that the grant of lands conferred perior, to the Wisconsin state line, upon any by the board of control upon the Peninsula eligible route, from the township of Mar Railroad Company, under authority of an quette aforesaid, to a point on the Wisconsin act approved March fourth, eighteen hunstate line, near the mouth of the Menominee dred and sixty-one, and upon the relocated river, and touching at favorable points on route authorized for military purposes by Green Bay, with a view of* securing a rail-resolution of congress approved July fifth, road available for military purposes from eighteen hundred and sixty-two, is hereby Green Bay to the waters of Lake Superior. confirmed unto the said Peninsula Railroad And the line of railroad as now located in Company: provided, it shall construct the pursuance of said act from Marquette to railroad referred to according to the requirethie Wisconsin state line, according to the ments of the act and resolution of congress

is

herein referred to."

op --Sec. 1. The people of the state of Mich

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authorized to be changed so as to conform On May 3, 1863, the Peninsula Company

to the route above indicated; which line, executed a relinquishment to the United when surveyed and the maps and plans States. This relinquishment, after reciting thereof filed in the proper office, as required the forfeiture of the grant to the Marquette under said act of June third, eighteen hun Company and its bestowal on the Peninsula dred and fifty-six, shall confer the same Company, and the contemplated change of rights upon and benefits to the state of Mich route, reads: igan and its assigns in said new line, as “Now, therefore, the said Peninsula Rail. though the same had been originally located road Company, in consideration of the premunder said act."

ises, and in consideration that the United Sections 4 and 5, so far as they hear upon States will cause or permit the relocation any question in this case, are as follows: of said land grant so as to conform to said

“Sec. 4. And be it further resolved, that new line under the provisions of said resothe even sections of public lands reserved lution and the acts aforesaid, do hereby reto the United States by the aforesaid act lease and surrender to the United States of of June third, eighteen hundred and fifty. | America all right, claim, and interest in and six, along the originally located route of the to so much of the lands heretofore located Marquette and Wisconsin State Line Rail on the original proposed line of the Marroad Company, except where such sections quette and State Line Railroad, from Marshall fall within six miles of the new line of quette to the Brule river, in township fortyroad so as aforesaid proposed to be located, two (42) north, of range thirty-five (35) west, and along which no railroad has been con. sufficient to cover one hundred and sixty-one structed, shall hereafter be subject to sale thousand one hundred and four and thirtyat one dollar and twenty-five cents per acre. eight one-hundredths acres (161,104.38) of

"Sec. 5. And be it further resolved, that land, as approved by certificate thereof filed

in the general land office of the United States the several acts of congress bereinbefore on the 12th day of December, 1861, which the specifically referred to-that is to say: (Here said Peninsula Railroad Company may have follow the descriptions of lands embraced in acquired under the grant and location afore three of the lists hereinbefore mentioned, to said, and the transfer thereof to said com wit: First, the lands within the six-miles pany, as lie between the mouth of the Brule clear limits of the railroad from Marquette river and the township line, between ranges to the Wisconsin state line, containing 112,numbers twenty-eight and twenty-nine west 145.38 acres; second, lists of lands within of the meridian of Michigan."

the six-miles limits of the lines of railroad On February 21, 1867, the legislature of from Ontonagon to the state line, and from Michigan passed a joint resolution (1 Laws Marquette to the state line, where they inMich. 1867, p. 317) in words following: tersect and cross each other, containing 41,

“Whereas, by act of congress, approved 619.25 acres; third, list of lands within the June third, eighteen hundred and fifty-six, six-miles limits of the line of railroad from there was made, among other grants to this Ontonagon to the Wisconsin state line, and state, a grant of land to aid in the construc the Marquette & Ontonagon Railroad, where tion of a railroad from Marquette to the they intersect and cross each other, containWisconsin state line; and whereas, by joint | ing 32,305.93 acres.]” resolution of congress, approved July fifth, None of the lands within the "clear" limeighteen hundred and sixty-two, a change of its of the road from Ontonagon to the state the route of said road was authorized, and line were included in this release. On May in fact has been made; and whereas, the 1, 1868, the governor of the state of Michigan company have executed a release of said land executed to the United States a release of to the governor; therefore,

the same lands by an instrument containing "Resolved by the senate and house of rep substantially the same recitals. These re resentatives of the state of Michigan, that leases seem to have been forwarded by the the governor be and he is hereby authorized solicitor of the Chicago & Northwestern Railto execute and file the certificate of non-in way Company to the commissioner of the cumbrance and surrender to the United general land office at Washington, who anStates of the land on the original line of swered on July 13, 1868, acknowledging the said railroad, required by said joint reso receipt and approving the releases as good lution."

for the lands described therein, but adding On January 31, 1868, a further release was this reference to the lands within the "clear" executed by the Chicago & Northwestern limits of the Ontonagon road: "I have to inRailway Company, with which the Peninsula vite your attention to a list of lands, em Company had theretofore consolidated, which bracing 142,430.23 acres, certified to the state, release commences with this recital:

December 21, 1861, for the branch line to "Whereas by act of congress of the United Ontonagon, which are omitted in the afore: States, approved on the third day of June, said release. The state and railroad comA. D. 1856, entitled 'A bill making a grant pany are requested to execute a similar reof lands to the state of Michigan in al lease for said lands, which will complete the ternate sections to aid in the construction whole matter for both branches." of railroads in said state,' every alternate section of land designated by odd numbers commissioner and the solicitor, and, the list for six sections in width on each side of said having been furnished by the former to the roads, was granted to said state of Michigan | latter, the Chicago & Northwestern Railroad to aid in the construction of railroads from Company, on June 17, 1870, executed a form. Marquette to the Wisconsin state line." al release of these lands to the state of

And then, after reciting various acts and Michigan. This instrument, in its recitals, resolutions of congress and the state of Mich- referred to the various acts and resolutions igan, hereinbefore referred to, proceeds as of the state of Michigan and the United follows:

States mentioned in the former releases, and • "And whereas lists of said railroad lands recited that this was also made in consideragranted by said act of 1836 to aid in the con tion thereof. Thereafter, and on August 14, struction of said railroad from Marquette 1870, the governor of the state of Michigan to the Wisconsin state line, as the same was likewise executed a formal release of the originally located, have been filed in the same lands to the United States. On May general land office:

29, 1873, the commissioner of the general “Now, therefore, the said Chicago and land office gave notice to the officers of the Northwestern Railway Company, in consid- local land office that these last-named lands eration of the premises, does hereby remise, were restored to the public domain, but on release, and forever quitclaim unto the said July 30th, following, countermanded by tele state of Michigan and its assigns forever all graph such order of restoration. The telethe right, title, and interest it now has or has gram was sent upon the receipt of a letter ever had in and to the following pieces or from the then governor of the state of Michparcels of land situate, lying, and being in igan notifying the land department that the the said state of Michigan, and conveyed release executed by the former governor of and certified to said state in accordance with the lands within the "clear" limits of tbe

366

ate "Some cortes pondence followed between the

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Ontonagon & State Line road was uunau mined by the railroad grant legislation, and acthorized and void, because not within the tion taken thereunder. Turning now to the cascope of the resolution passed by the legis. nal land grant legislation, the following is its lature, and also claiming that the lands still history: On March 3, 1863, congress passed an belonged to the state. On March 11, 1878, act (13 Stat. 519) giving to the state of Michthe commissioner of the general land office igan authority to locate and construct a ship addressed a letter to the secretary of the canal through the neck of land between Lake interior, which was by him referred to con Superior and Portage Lake, and granting in gress, calling attention to the condition of aid thereof “two hundred thousand acres of this grant. After stating the facts in the public lands, to be selected in subdivisions case, the commissioner closes his letter in agreeably to the United States survey, by an these words:

agent or agents appointed by the governor of Upon an examination of the case, it ap said state, subject to the approval of the secpears, in my opinion, that my predecessor retary of the interior, from any lands in the erred in demanding deeds of relinquishment of Upper Peninsula of said state, subject to the lands granted for the Ontonagon & State private entry: provided, that said selections Line Railroad Company from the Chicago & shall be made from alternate and odd-num. Northwestern Railroad Company and the bered sections of land nearest the location of governor of Michigan, as there does

said canal in said Upper Peni ula, not othpear to bave been any action taken either by erwise appropriated, and not from lands desthe board of control or the state legislature ignated by the United States as 'mineral be to transfer the grant originally made for the fore the passage of this act, nor from lands Ontonagon & State Line Railroad to* the said to which the rights of pre-emption or home Chicago & Northwestern Railroad Company, stead have attached." or to authorize the governor of Michigan to This was a grant in praesenti, the language make such a deed; and the title to said lands being, “That there be, and hereby is, granted appears to be in the state of Michigan, under to the said state of Michigan." The fifth secthe original grant per act of June 3, 1836, tion of the act provided that if the work was and the subsequent approval made thereun not completed within two years the lands de as stated in the inclosed letter of Gov. grai ed should revert to the United States. ernor Bagley, except such portion thereof as On March 18, 1865, the legislature of the state has since been granted to the Marquette & of Michigan accepted this grant, and confer. Ontonagon Railroad Company.

red it upon the Portage Lake & Lake Su“In view of the fact that the railroad from perior Ship Canal Company. Laws Mich. Ontonagon to the Wisconsin state line has not 1865, p. 474. On July 3, 1866, congress passbeen built, and of the terms of the granting ed another act, making an additional grant act of 1856, and the confirmatory act of the of 200,000 acres (14 Stat. 81), the language of Michigan legislature of February 14, 1857, which act is as follows: the grant originally made for said road be "Be it enacted by the senate and house of came liable to reversion more than ten years representatives of the United States of Amer. since, and in view of the further fact that ica in congress assembled, That there be, neither the state legislature nor the board of and hereby is, grapted to the state of Michcontrol have ever conferred the said grant igan, to aid in the building of a harbor and upon any other party or parties, and that at ship canal at Portage Lake, Keweenaw Point, present there is no party or corporation in Lake Superior, in addition to a former grant esso proposing to build a railroad upon this for that purpose, approved March the third, line, I would respectfully recommend that the eighteen hundred and sixty-five, two hun. attention of congress be called to the pres dred thousand acres of land in the Upper ent status of these lands, with a view to such Peninsula of the state of Michigan, and from action as may be necessary to restore the land to which the right of homestead or presame to market."

emption has not attached: provided, that one On September 10, 1880, the Onton

gon &

hundred and fifty thousand acres of said Brule River Railroad Company was organ lands shall be selected from alternate oddized under the laws of the state of Michigan; numbered sections, and fifty thousand acres and on September 17, 1880, the board of con. from even-numbered sections of the lands trol of the state passed a resolution declaring of the United States. Said grant of lands, the grant to the Ontonagon Company forfeit shall inure to the use and benefit of the Ported, and bestowing it upon the Ontonagon & age Lake and Lake Superior Ship Canal Com-* Brule River Railroad Company, which grant pany, in accordance with an act of the legiswas accepted by the directors of that com. lature of the state of Michigan, conferring pany on October 25th. It appears that this the land granted to the said state, by the act company built about 20 miles of road from herein referred to, on said company: and Ontonagon south, but never completed the provided further, that the time allowed for road to the state line, nor opposite the land in the completion of said work and the right eontroversy, nor did it ever receive any of the of reversion to the United States, under the lands embraced in the grant.

said act of congress, approved March the The narration thus far develops the title of third, eighteen hundred and sixty-five, be ex. the land in controversy, so far as it is deter. tended three additional years: and provided

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