#### THE GRAND TRUNK WESTERN RAILWAY COMPANY v. THE UNITED STATES.

[No. 32589.

Decided May 27, 1918.]

*On the Proofs.*

*Railroads; land grants.*— Congress granted to the State of Michigan, and the latter duly accepted, the grant of certain lands “to aid in the construction of ” certain railroads, one of which was described generally as “from Grand Haven and Pere Marquette to Flint and thence to Port Huron.” Two railroad companies were designated to receive the lands pertaining to the route “ from Grand Haven to Flint and thence to Port Huron,” namely, the Detroit & Milwaukee Railway Co., and the Port Huron & Milwaukee Railway Co., the first named to have the lands attaching to the route from Grand Haven to Owosso, and the latter to have the lands pertaining to the route from Owosso to Flint and thence to Port Huron. The last named company filed a qualified acceptance of the act of the Michigan Legislature owing to a provision therein relating to tasation and a payment of tax on its gross earnings. The Board of Control of Railroads provided for in the act of the legislature subsequently annulled any grant to said company because of its said nonacceptance of the terms of the act. Later the railroad' company filed its map or designation of definite location in the office of the Secretary of the Interior, and in 1864 there was certified by the Land Office a list of lands pertaining to the route from Port Huron to Flint. The Port Huron & Milwaukee Co. acquired rights of way and did some work on its contemplated line, but its . properties were later sold under foreclosure proceedings. These finally came into the ownership of the Port Huron & Lake Michigan Railroad Co., which built the road from Port Huron to Flint, completing it and having it in operation on December 12, 1871. Before the actual completion of the road from Port Huron to Flint, in November, 1871, the officials and agents of the Port Huron & Lake Michigan Railroad Co., applied to said Board of Control for the lands granted by the act of Congress.

It thus definitely appears that the Port Huron & Lake Michigan Railroad Co. applied for the lands, asserted its right to them, accepted the grant, and proceeded to exercise ownership and control of them, and this court therefore holds its successor in title, plaintiff herein, to be a land-aided road from Port Huron to Flint.

*474*Same; Post Office Department, when not estopped,.*— There was a postal route from Port Huron to Flint as early as 1872. When the plaintiff acquired that portion of road in 1900, it had never been treated as land aided, and not until after the plaintiff had carried the mails for 12 years and been paid therefor the rates fixed in the Postmaster General’s readjustment orders was the question raised that the mails must be transported from Port Huron to Flint at 80 per cent of the compensation awarded roads which were not land aided. It was rather a mistake of fact than of law by which the road was exempted, and the inaction of the Post Office during the long period furnishes no estoppel.

*The. Reporter's*statement of the case:

*Messrs. L. T. Miehener*and *Theodore D. Hatpin*for the plaintiff. *Messrs. L. C. Stanley, P. G. Miehener, H. J. Finley,*and *Dudley do Miehener*were on the briefs.

Section 1 of the act of June 3, 1856, 11 Stat., 21, enacts “ that there be, and hereby is, granted to the State of Michigan, to aid in the construction of railroads * * * from Grand Haven and Pere Marquette to Flint, and thence to Port Huron,” certain designated sections of land, which lands “ shall be held by the State of Michigan for the use and purpose aforesaid.”

The second proviso in that section is as follows:

“That the lands hereby granted shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever.”

Section 3 of that acts is as follows:

“ That the said lands hereby granted to the said State shall be subject to the disposal of the legislature thereof, for the purposes aforesaid and no other; and the said railroads shall be and remain public highways for the use of the Government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.”

Section 4 of the act is as follows:

“ That the lands hereby granted to said State shall be disposed of by said State only in manner following, that is to *475say: That a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included within a continuous length of twenty miles of each of said roads, may be sold, and when the governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as aforesaid and included within a continuous length of twenty miles of each of such roads, may be sold, and so from time to time until said roads are completed; and if any of said roads is not completed within ten years no further sales shall be made, and the lands unsold shall revert to the United States.”

And section 5 is as follows:

“That the United States mail shall be transported over said roads, 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.”

Section 18 of the act of July 12,1876,19 Stat., 82, reads as follows:

“ That railroad companies whose railroad was constructed in whole or in part by a land grant made by Congress on the condition that the mails should be transported over their road at such price as Congress should by law direct shall receive only eighty per centum of the compensation authorized by this act.”

The joint resolution of March 3,1879,20 Stat., 490, reads as follows:

“That the United States hereby releases to the State of Michigan any and all reversionary interest which may remain in the United States in such of the lands granted to, and acquired by the said State of Michigan by act of Congress of June third, eighteen hundred and fifty-six, and certified to the said State in accordance with the said act, as were granted to aid the construction of the road from Grand Haven to Flint, and thence to Port Huron. This release shall not in any manner affect any legal or equitable rights in said lands, which have been acquired, but all such rights shall be and remain unimpaired.”

There is no magic in the words “to aid in the construction of railroads ” or “ exclusively applied in the construction,” or “ granted to aid the construction,” etc., in the act *476of June 3, 1856. They are plain and apparent in meaning and purpose. It is clear that they require that the lands granted shall aid or be exclusively applied in the construction of the road, help construct it, and they forbid the application of the statutes to a road not so aided or helped in its construction. The word aid means to help, assist (Webster). To construct is to put together, to build, to form, to make, and construction is the act of building, erection (Webster).

This construction of these words is reinforced by the language of section 4 of the act of June 3,1856. The lands were to -be disposed of only as the work progressed. They should be applied to no other work whatever. The lands were to aid or help the construction. A road so constructed was a land aided or a land-grant road, and not otherwise.

The Assistant Attorney General for the Post Office Department has uniformly held the law to be that to constitute a land-grant road within the purview of congressional legislation, it must have been built in whole or in part, by the aid of a land grant. I Opinions Assistant Attorneys General for the Post Office Department, 777, 875, 879; 2 ibid., 312.

In *Goler*v. *Board of Commissioners,*89 Fed., 257, 265, there was an application for an injunction against the board of commissioners and the treasurer of Stanley County, N. C., to prevent them from using the proceeds of taxes levied and collected for any other purpose than the payment of coupons on bonds issued by the county to pay its subscription to the stock of the company to aid the completion of The Yadkin Railroad Company, which was authorized to construct a railroad from Salisbury to Norwood in Stanley County. The road was built after the subscription to stock and the issue of the bonds; the bonds were sold on the open market' before maturity, and the county officials refused to pay the coupons on the theory that the bonds had been issued illegally.

The State statute construed was sec. 1696, as follows:

“ The Boards of Commissioners of the several counties shall have power to subscribe stock to any railroad company, or companies when necessary to in aid the completion of any railroad in which the citizens of the county may have an interest.”

*477The court said:

‘ “ This section gives authority to the county commissioners to subscribe to the stock in any railroad company on the conditions, first, when necessary to aid in its completion; and, second, when the citizens of the county have an interest in it.”

* * * * * * $

“ What, then, is the meaning of the words ‘ in the completion of ’ *%*This word must be used in its ordinary, colloquial sense. In its narrowest signification, the meaning of this word is to carry out something already begun; to fill out something already outlined. In this sense the word will mean, come to the assistance of a railroad begun or contemplated, and aid its end — completing it to its terminus. The clear purpose of the section was to prevent a county from undertaking of itself to construct a railroad, or to subsidize one already completed, and to limit it to aid others who have undertaken the enterprise and to aid them in its completion. In the term ‘the completion of a railroad’ is involved the selection of the termini, the survey and location of the route, the securing of the right of way, the construction of the roadbed, and the laying and ironing of the track. Any aid given in any of these stages is aid in the completion of a railway.”

The court “ ordered that the ini unction issue as prayed in the bill.”

This case makes it plain that to “ aid in the completion of a railroad ” is to aid it in the selection of the termini, or in the survey and location of the route, or in the securing of the right of way, or in the construction of the roadbed, or in the laying and ironing of the track, or any of these, and that aid given in any part of these stages is aid “ in the completion” of the road. In the case at bar nothing at all was done by means of public lands or public land grants in any of the particulars named. It follows that no aid was given in the construction of the route from Port Huron to Flint.

In *De Graff*v. *St. Paul <& Pao. R. R. Go.,*23 Minn., 144, 146, there was involved the right of the company to lands granted the State by the United States, by the act of March 3,* 1857, 11 Stat., 195, to aid in the construction of railroads in Minnesota.

*478The Minnesota act of March 11,1873, extended to the company “the time for the grading and completion” of its branch lines. Plaintiff contended that the branch lines had not been completed because the company had .not equipped them with the necessary rolling stock, and had not operated them. The company contended that by constructing the road, without equipping it with rolling stock or operating it, it had become entitled to the lands.

The court said:

“ The word ‘ completing ’ has substantially the same signification as the word *‘*constructing.’ A railroad is completed or constructed when that is done which is necessary to make it a railroad, when it is fitted for use as a railroad; that is to say, when it is made ready and put in proper condition for the placing and running of regular trains upon it, or for operation as it is usually termed.”

The court decided in favor of the company.

This case is noteworthy, first, because the Minnesota act was predicated on the act donating certain lands to Minnesota to aid in the construction of railroads; second, because it is clearly shown that the w’ords “ completing ” and “ constructing ” have the same signification, and that a railroad is completed or constructed when that is done which is necessary to make it a railroad, and it is one when made ready and put in proper condition for the placing and running of regular trains over it. This was done in the case at bar December 12, 1871, and the mail route was established January 1, 1872, all these things being done seventeen months before the governor of the State issued his patent. If that patent would have been effective at all it would have been only, to use the language in the case above cited, “ to subsidize ” a railroad “ already completed.” The same is true as to the effect of the act of release passed by Congress in 1879, as we submit. The State of Michigan made a gift to or subsidized a road already completed.

In Chicago, *Mil. & St. P. B. R. Co.*v. *United*States, 14 C. •Cls., 125, this court held: *“*That no portion of the claimant’s road was constructed in whole or in part by a land grant within the meaning ” of the act stated and, therefore, the Government was not entitled to deduct 20 per cent from the *479contract price due the claimants for carrying the mails. In other words, the court inquired into the facts for the purpose of ascertaining whether or not any portion of the road was constructed in whole or in part by a land grant, and on reaching that conclusion the claimant had judgment. *

The case was appealed by all the parties to the Supreme Court of the United States, where it is reported in 104 U. S., 687-689. The court there said:

*“*The Court of Claims found the company had not been aided in the construction of its road by a land grant, and that it was, therefore, not subject to the deduction from its compensation made on that account.”

$ •{> Hs ^ • H»

“ The question in the present case, therefore, whether the railroad of the company was or was not the subject of a land grant, becomes immaterial; although were it otherwise we should have no hesitation in affirming the finding of the Court of Claims upon that point, for the reasons set forth in its opinion.”

Thus we show the Supreme Court of the United States to be in accord with this court on the proposition that it must be established as a fact that a road was land aided in its construction before it can be considered to be what we speak of as a land aided or land grant road.

In this connection, we call attention to the case of the *Wisconsin Central R. R. Go.*v. *United States,*164 U. S., 190, 205, in which it is held on an abundance of authority that the Postmaster General in directing payment of compensation for mail transportation does not act judicially, and that his actions in such matters can not be regarded as a conclusive determination when brought in question in a court of justice.

The crucial question here — the crux of the whole matter— is as to the right and power of the Postmaster General to pay “ only the 80 per cent of the compensation ” to this claimant for carrying the mails between Port Huron and Flint. Section 13 of the act of July 12,1876, confers that right and power upon the Postmaster General as to “railroad companies whose railroad was constructed in whole or in part by' a land grant made by Congress,” etc. Unless the road *480between Port Huron and Flint was constructed in whole or in part by a land grant of that character, then the Postmaster General was bound to pay this claimant the full compensation allowed by law and not withhold 20 per cent thereof. *The Postmaster General has just such right and power as is given him by law and no more.

During all these years — more than 40 — the department steered its way calmly around the legal whirlpools and rocks we have* been describing and continuously and uniformly held and treated the road as not a land aided or a land grant road. The department, during all those years, practically dealt with the several statutes, Federal and State, and applied the facts to them. That long continued and uniform conduct is binding on the department and the Government now.

We now submit the following propositions of law:

1. That practical application of the facts and the statutes was and is binding on the department and must be maintained here, it being especially objectionable that a construction of statutes, which is favorable to the citizen, should be changed in such a manner as to become retroactive, and to require of him the repayment of moneys to which he had supposed himself entitled and upon the expectation of which he had made his contracts with the Government, as in the case at bar. *United States*v. *Ala. & Great So. B. R.*Go., 142 U. S., 615, *affirming*25 C. Cls., 30, cited with approval in *Houghton*v. Payne, 194 U. S., 88.

2. If there be doubt simply as to the soundness of that practical construction, and that is the utmost that can be asserted here by the Government, the action, during so many years, of the department charged with the execution of the statute, should be respected by the court. *United States*v. Pmnell, 185 U. S., 236; *MoMichael*v. Murphy, 197 U. S., 304.

3. If the statutes are ambiguous or of doubtful import, that practical construction of them was and is binding on the department and must be maintained here, the courts looking with disfavor upon any sudden change, such as in the case at bar, whereby parties who have contracted with the Government upon the faith of such construction may be prejudiced. *Umted States*v. *Ala. Great So. B. B.*Go., *supra; Hawley*v. Hiller, 178 U. S., 476; *Houghton*v. Payne, *supra.*

*4814. The practice of an executive department through a series of years should not be overthrown, unless such practice was obviously and clearly forbidden by the language of the statutes under which it proceeded. *Hawley*v. *Diller, supra; Hewitt*v. *Schultz,*180 U. S., 139; *McMichael*v. *Murphy, supra.*

5. If that practical construction of the statutes by the department could be held with reason to be wrong, it can not be said, in view of the language used in them, to be so plainly or palpably wrong as to justify the department, or the comptroller, or a court, after the lapse of so many years, in holding or adjudging that the department had misconstrued the statutes. *Hewitt*v. *Schultz, supra; Hawley*v. *Diller, supra; McMichael*v. *Murphy, supra.*

*Messrs. Charles F. Jones*and *J. Robert Anderson,*with whom was *Mr, Assistant Attorney General Huston Thompson,*for the defendants.

Camubeue, *Chief Justice,*

reviewing the facts found to be established, delivered the opinion of the court.

The controlling question for decision is whether plaintiff’s road from Port Huron to Flint was land-aided within the meaning of the act of 1856. Congress granted to the State of Michigan, and the latter duly accepted, the grant of certain. lands “.to aid in the construction of ” certain railroads, one of which was described generally as “ from Grand leaven and Pere Marquette to Flint and thence to Port Huron.” Two railroad companies were designated to receive the lands pertaining to the route “ from Grand Haven to Flint and thence to Port Huron ’’ — namely, the Detroit *&*Milwaukee Pailway Company and the Port Huron & Milwaukee Pailway Company, the first named to have the lands attaching to the route from Grand Haven to Owosso, and the Port Huron & Milwaukee Company to have the lands pertaining to the route from Owosso to Flint and thence to Port Huron. This last-named company filed a qualified acceptance of the act of the Michigan Legislature owing to a provision therein relative to taxation and a payment of tax on its gross earnings. The Board of Control of Pailroads *482provided for in the act of the legislature subsequently annulled any grant to said company because of its said nonacceptance of the terms of the act.

Later, however, the railroad company filed its map or designation of definite location in the office of the Secretary of the Interior, and in 1864 there was certified by the Land Office a list 'of lands pertaining to the route from Port Huron to Flint. The Port Huron & Milwaukee Company acquired rights of way and did some work on its contemplated line, but its properties were later, sold under foreclosure proceedings. These finally came into the ownership of the Port Huron & Lake Michigan Railroad Company, which built the road from Port Huron to Flint, completing it and having it in operation on December 12, 1871. This company issued its bonds, secured by mortgage on the porperties it owned at the date of the mortgage and those it should thereafter acquire. Considerable sums of money were subscribed by individuals and by public bodies towards the construction of said line of road.

A few weeks before the actual completion of. the road from Port Huron to Flint — to wit, in November, 1871 — the officials and agents of the Port Huron & Lake Michigan Railroad Company applied to said Board of Control for the lands granted by the act of Congress and certified by the Secretary of the Interior as pertaining to the original route from Port Huron to Flint, and also for the hinds which had also been certified by the Secretary as pertaining to the contemplated route from Grand Haven to Owosp, there having been certified 6,428.68 acres for the Port Hurpn & Milwaukee Company, lying, with a small exception, between Port Huron to Flint, and 30,998.76 acres west ©f Flint for the Detroit & Milwaukee Company, or an aggregate of about 36,000 acres for the entire route, which, as\ has been stated, was divided between two companies, mak-\ ing Owosso the meeting point. The Board of Control en- *\*tertained some doubt of its right to grant the lands of said road, but expressed the view that, if it could be lawfully done, the lands should be conveyed to said road as the party entitled to them. This action was taken by the board in *483November, 1871, shortly before the road was in operation to Flint, and the matter apparently remained^in abeyance until May 1, 1873, at which time there was presented to said Board of- Control a petition by the Port Huron & Lake Michigan Eailroad Company, which recited said action of the board in November, 1871, “in the passage of a resolution declaring among other things in substance that the said Port Huron & Lake Michigan Eailroad Company was justly entitled to and ought to receive, to aid in the construction of their road, the lands granted by the act of Congress of June 3, 1856, to the State of Michigan to aid in the construction of a line of railroad from Grand Haven to Flint and thence to Port Huron, if the State had still the power to confer upon it such lands; ” and further recited that from documents filed with the petition “ it appears by the decision of the Commissioner of the General Land Office ” that the State of Michigan had the right to dispose of said lands for the purposes specified in the grant. The petition further stated that “ the said company having completed 66 miles of the unfinished portion of said line,” and being the only company applying for, “ are entitled to said lands within the purposes of the grant.” The prayer of the petition was that the lands be conferred on the petitioner with a proper recognition of the rights of any actual settlers on the same.

Before the date of this petition a line of road had been built from the westward through Owosso and thence to Detroit, but not from Owosso toward Flint. There was thus a gap between Owosso and Flint of some miles, they being in adjoining counties. The petition, in referring to the line from Grand Haven to Flint and thence to Port Huron, as originally contemplated in the act, speaks of the “ unfinished portion ” of that line, which evidently was from Owosso to Flint and thence to Port Huron, and of this “unfinished portion” the petitioner had built about 60 miles — namely, from Port Huron to Flint. The board of control passed resolutions reciting the history of the transactions involving the lands, designated the Port- Huron & Lake Michigan Eailroad Co. “ as the proper company to receive said grant,” *484and directed tbe transfer of tlie lands to that company “ for the purpose of constructing and completing their said road.” The railroad company then applied to the governor of the State, who was ex officio president of the board of control, *“*for due and proper evidence of title to said lands so granted to said company by said board of control,” and the governor, on May 80, 1873, issued a patent to said company, their successors and assigns, for said lands “ for the purpose of constructing, or aiding in constructing, and completing their said road,” subject, however, to a condition in favor of actual settlers and occupants upon certain of the lands. On the same day upon which the patent was issued the railroad company, through its president and secretary, acting under resolutions by its directors, duly accepted the grant and assented and agreed to “the provisions and requirements of the acts of the Legislature of the State of Michigan and the said act of Congress before referred to.” In July, 1873, the railroad company confirmed the action of a committee which its directors had created “ to take such measures as to them seemed best for the sale and disposition of the lands granted by Congress to the State of Michigan in aid of the construction of the line of railroad from Grand Haven to Flint, and thence to Port Huron, and by said State conveyed to said company,” the action of the committee having been the selection of one Bowes as agent or trustee to sell and convey the lands for the company and the conveyance to him of the lands in trust for said purposes.

It thus definitely appears that the Port Huron & Lake Michigan Bailroad Company applied for the lands, asserted its right to them, accepted the grant, and proceeded to exercise ownership and control of them. The lands so granted, it will be observed, included some 30,000 acres, most if not all of which were west of Owosso, and some 6,000 acres, all of which, except about 97 acres, were east of Flint. The latter lay on either side of the line from Port Huron to Flint and were scattered within the limits of the land grant in the several counties between said points. Some litigation having arisen between the trustee appointed by the railroad to handle and dispose of the lands for it and another claiming a part of. the lands, the case went to the Supreme Court of *485Michigan. The land in question was west of Owosso, and the fundamental question in the case before the Supreme Court of Michigan was, as stated by that court *(Bowes*v. Haywood, 35 Mich., 241, 244), “ the right of the Port Huron & Lake Michigan Eailroad Company to receive the forfeited grant which had been made to the Detroit & Milwaukee Eail-road Company.” The court below, having found that there was no evidence, claim, or pretense that the Port Huron & Lake Michigan Eailroad Company contemplated building any road on the route from Grand Haven to Owosso, the Supreme Court said the question was “ whether the legislation of Congress and of the State would authorize the board of control to grant lands lying on the route from Grand Haven to Owosso for the construction of a road east of Owosso.” In an opinion by Judge Cooley it was held that the attempted grant of the lands west of Owosso to said company was void, and that the lands could not be granted to a road which was not contemplating a line from Grand Haven to Owosso. That case does not deal with the grant of the lands east of Flint.

In May, 1877, the Legislature of Michigan passed an act purporting to ratify and confirm the action of the board of control and the governor of May 1 and May 30, respectively, in granting said lands to the Port Huron & Lake Michigan Eailroad Company, and thereafter another case arose wherein the Supreme Court of Michigan *(Fenn*v. Kinsey, 45 Mich., 446) adhered to their ruling in *Bowes*v. Haywood, sufra, and held that said act of the legislature was not effective to give validity to said grant of lands west of Owosso. Stating that it did not appear in the case whether the fact of the construction of the 60 miles between Port Huron to Flint had been certified by the governor to the Secretary of the Interior, it was said to be unimportant “because that certificate would only cover lands belonging to the line east of Flint.” It does appear in the instant case that under date of April 13, 1874, the governor of Michigan certified to the Secretary of the Interior the completion of 60 miles of railroad between Port Huron and Flint by the Port Huron *&*Lake Michigan Eailroad Company. That 60 miles of road was substantially on the line of definite location filed by the Port Huron & Milwaukee Company in the year 1857 in the *486General Land Office, and it was for the last-named company that the Secretary of the Interior, on November 1, 1864, certified to the governor of Michigan 6,428.68 acres, being the same lands subsequently conveyed, as has been stated, to the Port Huron & Lake Michigan Railroad Company by the board of control and governor of Michigan. All of said acreage, except about 97 acres, was east of Flint. The Port Huron & Lake Michigan Railroad Company acquired property rights of the Port Huron & Milwaukee Railway Company under foreclosure proceedings and mesne conveyances.

To continue the history further, it appears that in 1879 Congress, by joint resolution, released to the State of Michigan “ any and all reversionary interest which may remain in the United States in such of the lands granted by the act of June 3, 1856, as were granted to aid the construction of the road from Grand Haven to Flint and thence to Port Huron.” It was declared that “ this release shall not in any manner affect any legal or equitable rights in said lands which have been acquired, but all such rights shall be and remain unimpaired.” 20 Stat., 490. In 1881 the Legislature of Michigan passed an act confirming the action of the board of control and the governor taken in 1873 in conveying the lands east of Flint to the Port Huron & Lake Michigan Railroad Company, with a proviso that nothing in the act should impair or affect any valid right or interest theretofore acquired by any individual, corporation, or other party in said lands, or any part thereof. Any grants or conveyances which had been made by the Port Huron & Lake Michigan Railroad Company, or its officers or trustee, were likewise confirmed by said act. That act recited that the said company had constructed its road from Port Huron to Flint “ upon the line contemplated by the act of Congress granting said lands to the State of Michigan.”

The title and ownership of the plaintiff in the road from Port Huron to Flint was derived through mortgage foreclosures and consolidations of lines of railroad.

We can not escape the conclusion that the Port Huron & Lake Michigan Railroad Company acquired ownership of the lands east of Flint by the action of the board of control and the patent issued by the governor of Michigan, and *487upon its application tlierefor under a claim of right to the lands. The fact that it applied for and there was an attempted conveyance to it of lands west of Flint, or west of Owosso, and that its claim to these lands was defeated, can not be accepted as sufficient reason for holding that the conveyance of lands east of Flint was illegal or in contravention of the act of Congress. It sought the conveyance and declared it was entitled to them under the congressional grant. It accepted the conveyance in terms and proceeded to exercise control and disposition of them. A trustee of its appointment was authorized to sell them and that trustee was subsequently made a party defendant in the mortgage proceedings under which the company’s properties were sold. It had sought the lands in right of having built about 60 miles of road along the contemplated line, and its acceptance of the conveyance of the lands pertaining to their *“*unfinished portion ” of the line estops it to say the lands were not lawfully conveyed to it. We see nothing in the act of Congress or in the action of the Michigan Legislature that defeats the validity of the conveyance of these lands east of Flint. If there remained in Congress under the terms of the act of 1856 a condition subsequent, whereby they could have declared a forfeiture for any existing cause, that condition did not affect the title that was lawfully conveyed, and it was never exercised in any event.

The joint resolution by which Congress released any reversionary interest in the lands granted by the act of 1856 is broad enough to protect individuals and corporations alike who had lawfully acquired any of the lands. It was not the equivalent of a forfeiture by Congress of the lands for any of the causes contemplated by the act of 1856. The legal title to the lands had passed to the State of Michigan, and by her duly constituted authorities the title to the lands east of Flint was transferred to the railroad company in 1873. If anything further was needed to vest the title so conveyed, it was furnished by the act of the legislature of 1877. Only by judicial proceedings, properly asserted, could the Government interfere with the grant. *Grinnell*v. *Railroad*Co., 103 U. S., 739, 744. We think that the conveyance of the *488lands east of Flint was valid and that the Government could not have questioned it. The joint resolution of 1879 did not do so. The attempted grant of lands west of Flint was, as we have seen, abortive. The act of 1856 contemplates that the lands should not be sold in advance of the building of the road in sections of at least 20 continuous miles. But the road had been built for 60 miles, and as to that portion the company could lawfully ask for and receive the lands pertaining to such portion. It could not, however, accept the benefits of these lands, granted by the Government for a specific purpose, and escape the burdens imposed by the act granting them. The lands were not imposed on the railroad company. It asked for them and solemnly accepted the grant as made under the provisions of the act of Congress and the legislature of the State. It does not lie in the mouth' of the railroad company to say that it only acquired about 6,400 acres out of approximately 36,000 acres asked for, that the consideration for its assumption of the burdens of the land-grant act was entire and indivisible, and that therefore it did not assume said burden.

Where the unlawful part of the grant is separable from the lawful part it can not be held that the company receiving and retaining the lawful part should be relieved from the effect of its contract, especially where the lands received and retained were all the lands pertaining to the line of road actually completed. The company must be held to have known that it could not receive the lands west of Owosso or of Flint under a statement that it had built the road to Flint, and with a pretext that it would build to Owosso, which it never did. It would not be heard to plead its own wrong in order to escape a legal liability self-imposed. We therefore hold that the road from Port Huron to Flint was land aided.

The next question is whether the plaintiff’s compensation was subject to the deduction made by the Postmaster General in 1912.

There was a postal route from Port Huron to Flint as early as 1872. When the plaintiff acquired that portion of road in 1900, it had never been treated as land aided, and not until after the plaintiff had carried the mails for 12 *489years and been paid therefor the rates fixed in the Postmaster General’s readjustment orders was the question raised that the mails must be transported from Port Pluron to Flint at 80 per cent of the compensation awarded roads which were not land aided. Practically 40 years then intervened before the liability was sought to be enforced.

We do not think this case is ruled by the considerations referred to in *Alabama Great Southern Railroad Company Case,*142 U. S., 615. It does not appear that there was any construction of a statute during said term of years which was changed by a construction of the same statute given in 1912. It was rather a mistake of fact than of law by which the' road was exempted. Nor does the inaction of the Post Office Department during the long period furnish any estoppel. The plaintiff was chargeable with notice of the character of the road it acquired as to its being land aided or not. In the chain of title to the properties of the Port Huron & Lake Michigan Railroad Company was the mortgage foreclosure and the fact that Bowes, the trustee to sell said lands, was made a party defendant, evidently to bring those lands under the decree of foreclosure. The public acts of the legislature referred to the lands and to the railroad company as well. The books and records of the company itself were probably open to plaintiff’s inspection. But whether it had actual notice or not of the condition, the fact is that said road was land aided, and the deduction that was made, it seems to us, was valid under the principles decided in *Wisconsin Central Railroad Co.*v. *United States,*164 U. S., 190; 27 C. Cls., 440; *Chicago, St. P. M. & O. R. R. Co. Case,*217 U. S., 180.

It does not affirmatively appear what the value of the 6,000 acres was. It does appear that under the terms of the grant to the railroad company it took the lands on the condition that actual settlers thereon should be required to pay $1.25 per acre. Upon this basis, if applied to all the land, their value would be less than $10,000. There was deducted from the plaintiff’s compensation over $50,000, representing 20 per cent of its compensation on the said route from 1900 to 1912. Since that time it has received 80 per cent of the compensation on the postal route from Port Huron to Flint, *490which it would have received if treated as a nonland-aided road. With any supposed equities presented by the facts the court can not deal, but the plaintiff’s relief from the situation in which it finds itself can only be granted by Congress.

It follows that the petition should be dismissed. And it is so ordered.

Hay, *J udge;*Barney, *Judge;*and Booth, *Judge,*concur.

Downey, Judge, took no part in the decision of this case.