# Rice v. Railroad Company

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## Dissenting Opinion

    Nelson
United States Supreme Court
66 U.S. 358
Rice v. Railroad Company
[Syllabus from pages 358-360 intentionally omitted]
Error to the District Court of the United States for the district of Minnesota.
Edmund Rice brought trespass in the county court of Dakota, Territory of Minnesota, against the Minnesota & Northwestern Railroad Company, for cutting timber on section 15 of township 114 north, of range 19 west. The defendants answered that the title to the section of land described in the plaintiff's complaint was in them, and set forth their title as follows:
The defendants were incorporated on the 4th of March, 1854, by the Legislative Assembly of Minnesota Territory, for the purpose of making a railroad from the northwest shore of Lake Superior to some point to be selected on the northern line of Iowa in the direction of Dubuque. This act of incorporation provided, among other things, that, 'for the purpose of aiding the said company in the construction and maintaining the said railroad, it is further enacted that any lands that may be granted to the said Territory to aid in the construction of the said railroad shall be, and the same are hereby, granted in fee simple, absolute, without any further act or deed; and the Governor of this Territory or future State of Minnesota is hereby authorized and directed, in the name and in behalf of said Territory or State, after the said grant of land shall have been made by the United States to said Territory, to execute and deliver to said company such further deed or assurance of the transfer of the said property as said company may require, to vest in them a perfect title to the same: provided, however, that such lands shall be taken upon such terms and conditions as may be prescribed by the act of Congress granting the same.' The books of subscription were opened at St. Paul and New York. Stock was subscribed to a large amount; the requisite proportion of it was paid in, and the company was organized agreeably to the terms of the charter. On the 29th of June, 1854, an act was passed by Congress granting to the Territory of Minnesota, for the purpose of aiding in the construction of a railroad along the route mentioned in the charter, every alternate section of land, designated by odd numbers, for six sections in width on each side of said road within the Territory. The act of Congress making the grant was as follows:
'1. Be it enacted, &c., That there is hereby granted to the Territory of Minnesota, for the purpose of aiding in the construction of a railroad from the southern line of said Territory, commencing at a point between township ranges 9 and 17, thence by the way of St. Paul, by the most practicable route, to the eastern line of said Territory, in the direction of Lake Superior, every alternate section of land, designated by odd numbers, for six sections in width on each side of said road within said Territory; but in case it shall appear that the United States have, when the line of said road is definitely fixed by the authority aforesaid, sold any section or any part thereof granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the Governor of said Territory, subject to the approval of the Secretary of the Interior, to select from the lands of the United States, nearest to the tier of sections above specified, so much land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold, or to which the right of pre-emption has attached as aforesaid, which land (thus selected in lieu of those sold, and to which pre-emption has attached as aforesaid, together with the sections or parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid) shall be held by the Territory of Minnesota for the use and purpose aforesaid: Provided, That the lands to be so located shall in no case be further than fifteen miles from the line of the road in each case, and selected for and on account of said road: Provided, further, That the lands hereby granted shall be exclusively applied in the construction of that road for which it was granted and selected, and shall be disposed of only as the work progresses; and the same shall be applied to no other purpose whatever: And provided, further, That any and all lands heretofore reserved to the United States by an act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of said railroad through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.
'SECTION 2. And be it further enacted, That the sections and parts of sections of land which by such grants shall remain to the United States, within six miles on each side of said road, shall not be sold for less than double the minimum price.
'SECTION 3. And be it further enacted, That the said lands hereby granted to the said Territory shall be subject to the disposal of any Legislature thereof for the purpose aforesaid, and no other; nor shall they inure to the benefit of any company heretofore constituted and organized; and the said railroad shall be and remain a public highway for the use of the United States, free from toll or other charge upon the transportation of any property or troops of the United States; nor shall any of the said lands become subject to private entry until the same shall have been first offered at public sale at the increased price.
'SECTION 4. And be it further enacted, That the lands hereby granted to said Territory shall be disposed of by said Territory only in the manner following-that is to say: no title shall vest in the said Territory of Minnesota, nor shall any patent issue for any part of the lands hereinbefore mentioned, until a continuous line of twenty miles of said road shall be completed through the lands hereby granted; and when the Secretary of the Interior shall be satisfied that any twenty miles of said road are completed, then a patent shall issue for a quantity of land not exceeding one hundred and twenty sections, and included within a continuous length of twenty miles of said road, until it shall be completed; and if said road is not completed within ten years, no further sale shall be made, and the land unsold shall revert to the United States.
'SECTION 5. And be it further enacted, That the United States mail shall be transported at all times on said railroad, under the direction of the Post Office Department, at such price as Congress may by law direct: Provided, That until such price is fixed by law, the Postmaster General shall have the power to determine the same.'
It was before the passage of this act that the books of subscription were opened, namely, on the 1st of May, 1854. On the 20th of the same month subscriptions were made upon the books at St. Paul. On the 30th of June, 1854, the day after the act of Congress making the grant was approved by the President, one million of dollars were subscribed to the stock on the books opened at New York, and ten per cent. thereupon duly paid to the commissioners. Directors were then elected and the company completely organized. Afterwards, on the 16th of February, 1855, the Territorial Legislature made some modifications and additions to the charter and re-enacted it. The defendants further averred, that on the 20th of October, 1855, they caused a survey to be made of their route for the railroad and located it agreeably to the act of incorporation and the act of Congress; that the route as located runs through the land claimed by the plaintiff and described in his complaint; that it was not until after this location, to wit, on the 1st of January, 1856, that the plaintiff purchased the land from the United States, and that the trespass complained of consisted in going on that part of the land where the track of the railroad was lawfully located and cutting such timber as was necessary to be removed for the purpose of constructing the work.
To this answer of the defendants the plaintiff replied, that after the officers and directors of the company were chosen by the stockholders, and entered upon the discharge of their duties, and before the trespasses complained of were committed, to wit, on the 24th day of August, 1854, Congress passed the following act repealing that by which the grant was made on the preceding 29th of June:
'Be it enacted, That the bill entitled 'An act to aid the Territory of Minnesota in the construction of a railroad therein,' which passed the House of Representatives on the twentieth day of June, eighteen hundred and fifty-four, and which was approved by the President of the United States on the twenty-ninth day of June, eighteen hundred and fifty-four, be, and the same is hereby repealed.'
The defendants demurred to the replication, and for cause of demurrer set forth that the repealing act of 24th August, 1854, was void and of non effect.
The court of original jurisdiction gave judgment on the demurrer in favor of the plaintiff. The defendants appealed to the Supreme Court of the Territory, where the judgment was reversed, but judgment was not entered for the defendants. By the law admitting Minnesota into the Union as a State the records of the Supreme Court of the Territory were transferred to the District Court of the United States. There an application was made to amend the record by entering a proper judgment, which was done, and this writ of error sued out by the defendants from the Supreme Court of the United States was directed to the judge of the District Court.
Mr. Noyes, of New York, and Mr. Barbour, of Iowa, for the plaintiffs in error. The act of Congress of June 29, 1854, was per se a grant in presenti to the Territory of Minnesota of all the lands designated by odd numbers within six miles of the contemplated railroad. It also granted an easement or right of way over all the other public lands upon the route of the railroad. Sessieur vs.Price, (12 Howard, 59.) By the terms of the act 'the land is hereby granted to the Territory of Minnesota,' and this phrase is repeated several times. The lands are to be 'held by the Territory,' and in a specified event they shall revert to the United States. Reversion signifies the returning of the land after a particular estate is ended. Jacobs' Law Dict., Tit. Reversion.
It is true the 4th section provides, that 'the lands hereby granted to said Territory shall be disposed of only in manner following-that is to say, no title shall vest in the said Territory of Minnesota, nor shall any patent issue,' until certain conditions are performed. But this does not annul the grant of a present interest; it merely qualifies the power of disposal.
A grant by Congress is higher evidence of title than a patent. Grignon vs. Astor, (2 How., 319.) It is equivalent to a conveyance with livery of seisin. Enfield vs. Way, (11 New. Hamp. Rep., 520;) Enfield vs. Permit, (5 N. H. Rep., 280;) Wilcox vs. Jackson, (13 Peters, 498.) All the words of this act are harmonized by construing it as vesting a present interest upon a condition subsequent. Such was the intention of Congress, and the intention overrules all technicalities. Rutherford vs. Green, (2 Wheaton, 198.)
But if the construction were doubtful, the grantee would be entitled to the benefit of the doubt. The rule is not so in the interpretation of the King's naked grants from pure favor; yet where a consideration is reserved, the rule prevails that a public grant must be construed most favorably to the grantee. Chit. on Prerogative, Chap. 16, sec. 5; Lord Raymond, 32 Bac. Abr. Prerog., F. 2; 17 Viner, 152; 6 Inst., 446; Mollyn's Case, (6 Coke's Rep., 5;) Whistler's Case, (10 Coke's Rep., 65.) Where a particular certainty precedes, it shall not be destroyed by an uncertainty coming after. Bac. Abr., Tit. Prerog. Here the grant is absolute and certain, with nothing to render it uncertain but the subsequent provision for the manner of disposal.
The act of Congress certainly granted a right of way over the public lands, along the line of the railroad; otherwise the manifest intent of the act would be wholly defeated. It is not to be presumed that Congress meant to make a void grant. Charles Rwer Bridge Case, (11 Pet., 592;) Whistler's Case, (10 Coke, 65;) Gayety vs. Bethune, (14 Mass. R., 56;) Com. Dig. Grant, E. 11; ib. G., 12; Co. Litt., 56 a; Bac. Abr. Prerog., F. 2, 602; 17 Vin., 153, Title Prerog.; O. C. Pl., 1; id. Pl., 4; id. Pl., 13; Lord Chandos' Case, (6 Co. R., 55;) Atkyn's Case, (1 Vent., 399, 409;) Moleyn's Case, (6 Coke R., 6;) Finch's Law, 100; Saunders's Case, (5 Co. R., 12;) Plowden, 317; Darcy vs. Askwith, (Hobart's R., 234;) Lyford's Case, (11 Coke R., 52;) Bac. Abr., Incidents; Pl. 8, and Nusans Pl., 14; Allen's Case, (Owen, 113;) 10 Co. R., 67, 6; Chitty Prerog., Ch. 16, § 5; Lord Raym., 32.
These rules apply with the greater force, because this grant was founded upon a valuable consideration-carrying the mails at the price fixed by Congress, and troops without any charge. 'When the King's grants are upon a valuable consideration, they shall be construed favorably to the patentee, for the honor of the King.' Bac. Abr. Prerog., Construction of Grants, 5.
Congress had power to make this grant; and the Territory had power to take it. Grants of lands have been made to every Territory from the beginning of the Government, and their validity never questioned. Seventy-two sections were long ago granted to the Territory of Minnesota to establish a university. Can any one doubt the perfect title of the Territory under that grant?
The act of the Territorial Legislature of March 4, 1854, was a valid grant to the defendants of the lands to be granted by Congress. The Legislative Assembly had jurisdiction and authority to make the grant, and to covenant with the defendants that they should have a vested interest when such interest was acquired by the Territory from the United States; and such a covenant the Territory did make with the railroad company. No authority from Congress was necessary, beyond what was vested in the Territorial government by the organic act.
The railroad company fully complied with all the conditions of its charter, but was not yet organized on the 29th of June, 1854. But it was then in a condition to accept the charter. After the passage of the granting act, a million of dollars were subscribed, the officers were elected, and the charter accepted. The company, therefore, became seized of the lands.
The repealing act is void. A grant of land or of a franchise once made by a legislative body cannot be rescinded by the granting power. Charles River Bridge Case; Chitty on Prerog., 132; 3 Kent, 458; Fletcher vs. Peck, (6 Cr., 87;) King vs. Amery, (2 T. R., 515.) This is true where the grant is a naked one, and a fortiori where it is founded upon a consideration. Here the considerations are-1. The right of the United States to transport troops free of charge. 2. The right to have mails carried at the price fixed by Congress or the Post Office Department. 3. The enhanced value of the even sections, the minimum price thereof being doubled by the act itself. 4. The obligation of the company to build the road, for this obligation may be enforced. Lyme Regis vs. Henley, (5 B. & Adol., 77; S.C.., 5 Bing., 91;) Reg vs. B. & P. Railway Co., (9 Car. R., 478; S.C.., 6 Jurist, 804;) Charles River Bridge Case, (7 Pick., 446, 447, 448;) Rex vs. Hastings, (1 D. & R., 148; S.C.., 5 B. & A., 692, n;) Cohen vs. Wilkinson, (12 Beav., 125; S.C.., 13 Jurist, 621.)
If the repealing act be an attempt to take the property for public use, it is void, because it makes no provision for compensation to the owners. Piscat. Bridge Case, (7 N. H. Rep., 35;) Charles River Bridge Case, (7 Pick., 507;) Gardner vs. Newburgh, (2 John. Ch. R., 168;) Perry vs. Wilson, (7 Mass. R., 395;) Stevens vs. Mid. Canal Co., (12 id., 468;) Callendar vs. Marsh, (1 Pick. R., 430;) Van Horne's Lessee vs. Dorrance, (3 Dall., 304;) Livingston vs. Mayor of N. Y., (8 Wend., 85.) If it was the intention simply to divest the owner of his estate, then it is in direct conflict with that provision in the Constitution which declares that no man shall be deprived of his property except by due course of law-that is, by a judical proceeding. Wilkinson vs. Leland, (2 Peters, 657;) Taylor vs. Porter, (4 Hill R., 140; 2 Kent's Com., 13;) Hoke vs. Henderson, (4 Dev. N. C. Rep., 15;) Co. Litt., 2 Inst., 45, 50; Jones vs. Perry, (10 Yerger, 59.) The repealing act is void also, because it is contrary to the principles of natural justice and equity. Bonham's Case, (8 Co., 118;) Day vs. Savage, (Hobart's R., 87;) City of London vs. Wood, (12 Mod., 687;) Bowman vs. Middleton, (1 Bay., 252;) 1 Kent's Com., 451; ib., 448; Smith's Com. on Const., § 158; Bates vs. Kimball, (2 Chip. R., 89;) Merrill vs. Sherburne, (1 N. H. R., 213;) Wilkinson vs. Leland, (2 Peters, 627.) For these reasons it is submitted that the right of the defendants was perfect to locate their railroad upon the lands in question, and neither the sale to the plaintiff nor the repealing act of Congress could take that right away.
Mr. Stevens, of Michigan, for defendant in error. The Territory of Minnesota was incapable of taking or holding the lands. A Territory has no sovereign authority like that of an independent community. It is within the jurisdiction of the United States, subject to the power of Congress, and has no power except what is specially given it. The Territory of Minnesota, not having received from Congress the special privilege to hold lands, cannot be a grantee. 1 Pet. R., 511; 3 Story on Const., §§ 1316, 1324.
Besides, this act of Congress declares, expressly, that 'no title shall vest nor any patent issue' until, &c. These are plain words, and they are not overcome by the previous use of the word grant. That word does not imply a warranty. 2 Greenl. Crui., 735.
This railroad company acquired no rights under the act of the Territorial Legislature, because that body had no power, by its organic act, to create corporations; and because the Territory, at the time when it made its donation to the company 'in fee simple,' had nothing to grant. It was void, and no estate passed to the grantee, if the grantor had none at the time. Bac. Abr., 514; 2 Humph., 19; 4 Cow., 427; 4 Mass. R., 688; 4 Cruise Dig., 52. The grant being without covenant or warranty, a consideration cannot give title to an estate subsequently acquired by the Territory.
There was no consideration, though the company formally accepted the charter. The corporation could not be compelled to build the road. Neglect or failure to do so would simply work a forfeiture of its franchises. 2 Bac. Abr.; Redfield on Railways, 452; 18 Eng. L. & E. Rep., 199.
Perhaps it might be objected that this company could not take because the act of Congress declares that the lands shall not inure to the benefit of any corporation 'heretofore constituted and organized.' The plaintiff does not make that point. The company was constituted by its charter, but not organized before the 29th of June, 1854.
But there was no title vested here, either in the Territory or in the railroad company, and Congress had a right to repeal the law. Legislatures have the power always to take away by statute what was given by statute, not divesting the private rights vested in individuals or corporations. Oriental Bank vs. Freese, (6 Shep., 109;) People vs. Livingston, (6 Wend., 531.) Congress might have repealed the organic act of the Territory itself, and that would have been a resumption of the grant. What Congress could do in that way can surely be done by a direct repeal of the grant itself.
Mr. Justice CLIFFORD.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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