# Wilson v. Boyce

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United States Supreme Court
92 U.S. 320
Wilson v. Boyce
ERROR to the Circuit Court of the United States for the Eastern District of Missouri.
This was an action of ejectment. The controversy turned upon the effect of an act of the General Assembly of the State of Missouri, under which bonds were issued to and accepted by the Cairo and fulton Railroad Company. The act declared that the bonds should constitute a first lien and mortgage upon the road and property to that company.
Subsequently to the receipt of the bonds, the company executed a deed of trust upon her lands which had been granted by Congress to aid in the construction of the road. The plaintiff claimed under this deed.
The company failed to pay the interest on the bonds; and its lands were sold by the State, pursuant to the power contained in the act. The defendant became the purchaser of the demanded premises.
The court below held that the purchaser under the foreclosure of the statutory mortgage held the better title, and that the word 'property' embraced the lands owned by the company.
Mr. Isaac W. Scudder and Mr. H. A. Clover for the plaintiff in error.
A construction which would extend the lien of the State over the lands not in any way connected with the operation of the railroad, so as to divest the title of the plaintiff in error, a bona fide purchaser for value, is against the purpose and design of the grants made by Congress to Missouri, and also against the clear intention of the legislature of that State when it transferred the lands to the Cairo and Fulton Railroad Company.
These grants were made that the lands embraced by them should be sold, and the proceeds applied to the construction of a work of internal improvement.
Such plans have frequently been developed by the legislation of Congress, and also of those Western States where large tracts of public lands there situated have been granted for railroads and other highways. 9 Stat. 466; Poor's Manual of Railroads for 1871, 1872, 306, 413; 10 Stat. 8; id. 35, 155.
Every act of Congress granting not merely a right of way, but lands, provides that they shall be applied to the construction of the railroad, and to no other purpose. Most of the acts prescribe a particular manner for the sale of the lands as the work progresses, and all of them provide in some way to that effect. The grants were made, not to the companies, but to the States, out of deference to them, and because they would create the railroad corporations; but there is not a line in any act of Congress on this subject which contemplates that the States, by creating liens in their own favor, would divest the title to the lands granted.
Reference is made to the following acts of Congress. An examination of them will show that the construction we contend for is the proper one: March 2, 1827, 4 Stat. 234; March 2, 1827, id. 236; March 3, 1827, id. 242. See id. 290, 305, 393, 416, 662; 5 id. 731; 9 id. 83.
The principal land-grants to States to aid in the construction of railroads were made after the year 1850 by acts of Congress which vary but little in their general character. 11 Stat. 9, 15, 17, 21, 30, 195; 12 id. 624, 772; 13 id. 64, 66, 72, 95, 119, 356, 364, 365, 520, 526; 14 id. 236, 240; 15 id. 252; 16 id. 94.
The acts of the legislature of Missouri, relative to the Cairo and Fulton Railroad Company, clearly show that it was not the intention to create State liens extending over the alternate sections of land, but to grant them to the company, so that it might with the proceeds of the sales construct the road. There being a road in existence, the State lien would operate on that: the trust-deed and the State lien would not conflict.
The words, 'a first lien or mortgage upon the road and property of the several companies so receiving them in the same manner as provided by the act approved Feb. 22, 1851, to expedite the construction of the Pacific Railroad and of the Hannibal and St. Joseph Railroad, and the act approved Dec. 10, 1855, of which this is amendatory,' which are contained in the act of March 3, 1857, do not enlarge the mortgage so as to extend it over the alternate sections of land. The act of the 22d February, 1851, prescribes the manner,-'A mortgage of the road of the company executing and filing their acceptance as aforesaid, and every part and section thereof, and its appurtenances,' &c. The act of the 10th December, 1855, says, 'Upon the condition of a first lien or mortgage as contained or reserved in the act of Feb. 22, 1851.'
Two words are joined,-road and property.
A road is property. The road and property, as defined by the statute, mean 'the road of the company,' 'and every part and section thereof, and its appurtenances.'
The first loan of State credit was made under the act of 11th December, 1855, when the word 'property' was not used. The acceptance of $250,000 was under that act.
The second loan was made under the act of March 3, 1857, without any expression by the legislature that two different kinds of liens were intended to be created; and then, when we turn to the act of 22d of February, 1851, we find the intention to be clear, that the liens should be on the same property, the 'road and every part and section thereof, and its appurtenances.'
The equitable rule would be that lien should be on the road and its appendages, as they were the property to the construction of which the fund was applied. Canal Co. v. Gordon, 6 Wall. 561.
To make lands subject to an equitable lien, the land must be described or identified. 'A covenant to settle lands, without mentioning any certain lands, is no specific lien.' Seymour v. Canandaigua & Niagara Falls R.R. Co., 25 Barb. 286.
The distinction between lands which are used for the purpose of the franchise and other lands is stated in 3 Zabr. (N. J.) 511; Dinsmore v. Racine & Mississippi R.R. Co., 12 Wis. 649; Shamokin Valley R.R. Co. v. Livermore, 47 Penn. 465; Inhabitants of Worcester v. Wilson R.R. Co., 4 Met. 564; Whitehead v. Vinyard, 50 Mo. 30.
The contemporaneous construction of the State lien by the Cairo and Fulton Railroad Company, as to the effect of the deed to trustees of the 23d of May, 1857, is entitled to great consideration. Attorney-General v. Parker, 3 Atk. 576; King v. Bellinger, 4 T. R. 819; Stuart v. Laird, 1 Cranch, 309; Doe d. Pearson v. Ries, 8 Bing. 181; Loring v. Gurney, 5 Pick. 15; Bridgeport Bank v. Dyer, 19 Conn. 139; Contemporana Expositio est optima et fortissima in Lege, Broom's Legal Maxims, 654.
Mr. John D. S. Dryden, contra.
MR. JUSTICE HUNT delivered the opinion of the court.

## 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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