St. Paul daily globe., 1895-07-24
THE STATE AUDITOR KNOCKED
OUT ON THE DULUTH &
IRON RANGE.
THE CLAIM OF THE ROAD
UPHELD BY ATTORNEY GENERAL
CHILDs IN A LENGTHY De-
CISION.
ENTITLED TO STATE LANDS
In the Counties of st. Louis, Cook
and LaI>e-Big Loss to the
State.

Attorney General Childs has sub,
mitted his opinion in the Duluth and
Iron Range Railroad company's
swamp lana case to State Auditor
Dunn. The opinion in full is as fol-
lows:
Hon. r. G. Dunn, State Auditor
Sir: In your communication of the
21st ult. you call attention to the fact
that the Duluth & Iron Range Rail-
road company has applied to the state
for deed embracing list of swamp
lands under S. L. 1875, chap. "a, and re-
quest the views of this office touching
your duty in relation thereto.
The general subject of inquiry was
considered by me in a communication
transmitted to the state senate under
date of April Z, 1S93 in response to
resolution of that body. 1 then felt
called upon, in concluding that commu-
nicatson, to express myself as follows:
I'm view of the foregoing recital of
facrS 1t may we'll be doubted whether
the court will now question the action
of the executive department.. (State
VS.. Bailey, 19 Ind, 1922 1 recognize
m1tted, and acknowledge that very
strong considerations may be urged
In support of the position that the said
company is entitled to no grant what
ever. The question should receive more
attention than l have been enabled to
give it in the short time afforded
since the adoption of your resolu-
tionS."
The subject being one of great i'm
portance, both to public and private
interests, 1 have since the receipt of
your communication given it a much
more thorough examination than it
was possible for me to do on the former
occasion.
Your familiarity with the legisIa-
ton bearing upon the subject relieves
me of the necessity of more than an in
cidental. reference thereto. Obviously,
the question must be determined by the
legal effect of that legislation, together
with the amendment to the constitu-
ticn in 1881, and the action of the ex-
ecutive department in approving the
construction of the road.
L find no escape from the view that
the question was, in the main, deter
mined by the decision reached in the
case of the Minneapolis 81 ST. Cloud
Railway Company VS.. Duluth & Win
nipeg Railroad Company, defendant,
and Duluth & Iron Range Railroad
company, interviewer 45 Mimi, 104.
All questions material to the present
inquiry were there considered. This
Is all the more apparent from an anal
ySiS of that decision. The three rail-
road companies avove-named had each
laid claim to the same forty-acre
tract of land. The first relied upon its
grant in 1863 (S- L., C. 3), amended in
1859 Is. L., C. So; the second upon It's
grant in 1875 Is. L., c. 5D, and subse-
quent amendments Is. L. 1876, C. 241;
1888, C. 59) the third upon the original
grant to the second and the act passed
in 1876 IS. L., C. 246), designed to trans
fer to it lin case of forfeiture the
| grant conferred upon the second. Each
of the three railroads had
RECEIVED A CONVEYANCE
of the said forty-acre tract, in order to
afford an opportunity to secure an ad-
! judication of the conflicting claims Of
| the several companies by an appro-
pirate action in court. The decision
established the following facts:
/. That the Duluth & Winnipeg Rail-
road company had no grant.
That the Minneapolis & St Cloud
Railroad company and the Duluth &
Iron Range Railroad company, re-
|
3. That the Duluth & Iron Range
Railroad company was the owner of
the tract in question, because the tract
was situate in St Louis county, wherein
that company had the right of prior
selection, and in view Of the findings
Of the lower court, the right of exclu-
sive selection.
But this result was possible, so for
as the Iron Range company was con.
cerned, only by a determination that il
had earned its grant by a compliance
with statutory requirements. In the
! contest between that company and the
Minneapolis e St. Cloud company, il
was absolutely essential to the sue
cess Of the former that it have earned
its grant. Failure in that respect must
necessarily have resulted in it's loss OF
title to the said tract and judgment
in favor of the other company. Is
there any other rational conclusion
Bearing these facts in mind, we per-
ceive the force of the language of the
court in it's decision. After re-affirm-
ing the well settled principle that a
grant is not forfeited by mere default
of the grantee in the conditions there.
of, it says:
THE interviewer was not in default
in any of the conditions of it's grant
in March, ,1S7S,or for nearly a year after
wards. In 1879 it did default, not hav-
ing, as the court finds, located its
line, or filed a map of it, until the
spring of 1882. But the state has never
declared or asserted any forfeiture
either by legislative act or by judicial
proceedings, and in the meantime the
interviewer has gone on and earned its
grant by the construction of its road
so that it is now beyond the power OF
the state to declare forfeiture. : =
We turn now to the grant of the inter
vener. 1t does not claim anything (and
it is not necessary that it should) under
the act of March 10, 1885, which was
enacted after the adoption of the con-
stitutional amendment of 1881 relating
to the disposition of swamp lands. II
rests its claim wholly on the original
grant of 1875
An examination of the exhaustive
sented the respective interests in tha
action discloses that every phase of the
several questions involved was care
fully considered. 1t is especially true
as to the effect of the constitutions
amendment of 1881 and of the adoption
of the route over which the line of the
Duluth & Iron Range company was
finally constructed. Thus, on the ons
hand the amendment of 1881 in relation
to swamp lands was there assailed a:
being in conflict with the constitution
and the acts of congress upon the sub
ject; and, on the other hand, it wa.
objected that as there had been nt
previous declaration of forfeiture, tn,
question was, in no respect, affected by
that amendment. Much space was
likewise devoted in the printed brief: