Swann & Billups v. Larmore

STONE, J. By act of Congress approved June 3d, 1856 (11 Stat. at large, 17-8), there was granted to the State of Alabama, for the purpose of aidingin the construction of a railroad “from Gadsden to connect with the Georgia and Tennessee, and Tennessee line of railroads, through Chatooga, Wills and Lookout valleys,” alternate sections of land designated by odd-munbers, fo,r six miles in width on each side' of said railroad. This [562] statute allowed ten years for the completion of the road, and provided that, “ if said road is not completed in ten years, no further sale [of the lands granted] shall be made, and the lands unsold shall revert to the United States.” The railroad not being completed within the ten years, it was, on loth April, 1869 (16 Stat. at large, 45), enacted, that said act of June 3d, 1856, “is hereby revived and renewed, subject to all the conditions and restrictions contained in the act referred to, and subject to the further limitation, that if [ said railroad] is not completed within three years from the passage of this act, no further sale [of the granted lands] shall be made for the benefit, of such railroad, and the lands unsold shall revert to the United States.” Section 4 of the act of June 3d, 1856, provides, “That the lands hereby granted to said State shall be disposed of by said State1 only in the maimer following, that, is to say: that a quantity of land, not exceeding one hundred and twenty sections, * * and included within a continuous length of twenty miles, " may be sold ; and when the Governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of * * said road is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for * * 'said road having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles, * * may be sold; and so, from time to time, until said road is completed.” Sec. 3 : “ That the said lands hereby granted to the said State, shall be subject to the disposal of the legislature thereof, for the purpose aforesaid, and no other.” The "Wills Valley Railroad Company was chartered February 3d, 1852.—Sess. Acts, 1851-2, 178. The route and extent of said railroad was, “ from some convenient point on the Alabama and Tennessee Rivers railroad, at or near the farm of James Hampton ; thence the most practicable route through the county of l)e Kalb, to the Georgia line, in a direction to intersect the Georgia and Tennessee railroad, at some convenient point in Lookout valley.” By joint, resolutions, approved January 30th, 1858 (Sess. Acts, 1857-8, page 430), the legislature of Alabama designated the application of said lands, and resolved — See. 4: “ That so much of said lands, interest, rights and powers and privileges, as are or may be granted and conferred, in pursuance, of the said act of Congress, to aid in the construction of a railroad from Gadsden to connect with the Georgia and Tennessee line of railroads, through Chattooga, Wills and Lookout valleys, are hereby disposed of, granted to, and conferred upon the Wills A7"alley Railroad Company, * * to be used and applied by said company upon the terms, condi [563] tions, and under the restrictions in said act of Congress contained." The Wills Valley 'Railroad Company organized under its charter, and surveyed and “definitely fixed” the line of its railroad prior to the year 1S60. The lands in controversy aj’e parts of sections having odd numbers; are within six miles of the railroad as definitely fixed, and are .within less than twenty miles of the line of the State of Georgia. In 1861, the Wills Valley Railroad Company sold the lands here sued for; the purchase-money was paid during that year, and a deed of conveyance was made to the purchaser in 1866. lie and those claiming under him, including the real defendant in this suit, trace a regular line of conveyances from the first grantee down to the present occupant. The question is, had the Wills Valley Railroad Company anthority to sell and convey the lands l The present record contains no evidence of the sale of any other lauds than those here sued for. . If there had heeu a sale of any lands within any other section of twenty continuous miles, the question would he different. We have, however, the evidence of only one sale made, and that within the range of the first section of twenty continuous miles, computing the measurement from the line of the State of Georgia. The grant was of lands in the State of Alabama. The Federal Government owned no lands in the State of Georaia, and, therefore, could grant, none in that State. On the very day (June 3d, 1856) on which the act of Congress we are construing was passed, the “act granting public lands to the State of Wisconsin to aid in the construction of railroads" became a law.—11 Stat. at large,-20. The two statutes are not distinguishable in their provisions, and are as nearly identical in language as the nature of the objects would allow. The act giving aid to railroads in Wisconsin was construed in Schulenbery v. Harriman, 21 Wall. 44. The entire court concurred in the opinion, which was delivered by Mr. Justice Firam. The court said: “That the act of Congress of June 3d, 1856, passed a present interest in the lands designated, there can be no doubt. * * The power of disposal, and the provision for the lands reverting, both imply what the first section declares, that a grant is made; that is, that the title is transferred to the State. It is true that the route of the railroad, for the construction of which the grant was made, was yet to be designated; and until such designation, the title did not attach to any specific tracts of land. The title passed to the sections, to be afterwards located. When the route was fixed, their location became certain, and the title, which was previously imperfect., acquired precision, and became attached to the land.” In the same case it had been previously said: [564] “The State, by the terms of the grant froi'n Congress, possessed no authority to dispose of'the lands beyond one hundred and twenty sections, except as the road, in aid of which the grants were made, was constructed.” In Farnsworth v. Minn. & Pac. R. R. Co., 92 U. S. (2 Otto) 49, 65, the court said: “The act of Congress granting lands to the Territory of Minnesota imposed conditions upon their alienation, except as to the first one hundred and twenty sections, which the Territory could not disregard.”—Atchison, Tap. & S. F. R. R. Co. v. Bobb, Kans. Sup. Ct., Law Reporter, April 20, 1881. Now, while these utterances of the court clearly show, that neither the State nor its appointee could sell any of the granted lands beyond the one hundred and twenty sections, except as the road was constructed, as provided by the act of Congress, they affirm with equal emphasis -that a railroad corporation, in whose favor such grant is made, may, without any conditions whatever, and without previous work done, sell “ a quantity of land not exceeding one hundred and twenty sections, * * included within a continuous length of twenty miles.” The only condition annexed to this grant, is what is denominated in the books a condition subsequent; that if said road is not completed within 'ten years, the lands unsold shall revert to the United States. This reversion of the unsold lands would apply equally to the first one hundred and twenty sections, and to the residue of the granted lauds, remaining unsold at the end of ten years, the road not being then completed. It would not, and could not, impair or affect the sales made within the ten years, of any of the one hundred and twenty sections included in a continuous length of twenty miles, nor of those made in succeeding sections of twenty continuous miles, if preceded by the certificate of the Governor to the Secretary of the Interior, that for each such succeeding license twenty continuous miles of the i’ailroad had been completed. The reversion applied to lands authorized to be sold, and not sold according to the requirements of the statute, and to the lands as to which the railroad had failed to put itself in position-to exercise the power of sale. The cases we have quoted from define what shall be necessary to pei'fect the reversion for condition broken, and declare by whom that right can be exercised. That question does not arise in this case. For a further discussion of this subject, see Swann v. Lindsey, at present term. We have shown, above, that the Wills Valley Railroad Company, without previous work, and without conditions precedent, was authorized to sell a quantity of land equal to one hundred and twenty sections, included within a continuous length of twenty miles. We have also shown, that the lands in controversy in this suit lie within six miles of the track of the rail [565] road, as definitely fixed, and within twenty miles of the Georgia State line — the north-eastern terminus of the railroad, as chartered. The record, as we have said, fails to show that the "Wilis "Valley Railroad Company sold any other lands, granted by Congress to aid in its construction. We are not permitted to presume, as a ground of reversal, that the railroad company had previously sold, of the lands granted, another tract, or other tracts, not included within the twenty continuous miles, in which the present lands are situate. There is, therefore, a failure to show that the railroad corporation had exhausted the absolute, unconditional power to sell one hundred and twenty sections, granted to it by law, by electing to sell, and selling, any portion of the lands lying within som§ section of twenty continuous miles, other than that in which the present tract is included. The Alabama and Chattanooga Railroad Company acquired all the chartered powers of the Wills Valley Railroad Company. See acts approved October 6th, 1868, and November 17th, 1868; Sess. Acts, 207,345. It acquired no right to rescind a valid sale of land previously made by the latter. Neither the mortgage to the State of Alabama, nor the subsequent re-conveyance by the State to the railroad company, embraced the lands here sued for, for neither mortgagor had any interest in the lands it could convey. The judgment of the Circuit Court is affirmed. Somerville, J., not sitting.