SUPREME COURT OF MONTANA.

NORTHERN PACIFIC R. R. Co. v. MAJORS.

Filed January 9, 1884.

CONGRESSIONAL GRANT.-A grant of public land may be made so as to vest an indefeasible and irrevocable title by an act of congress, as well as by a patent issued in pursuance of such act.

ACT OF CONGRESS GRANTING LANDS TO THE NORTHERN PACIFIC RAILROAD Co.CONSTRUCTION OF.-Section 3 of the act of congress granting lands to aid in the construction of the Northern Pacific Railroad, approved July 2, 1864, operated as a conditional grant in præsenti of certain sections to be afterwards located. Such locations

depended upon the route of the road, and until such route was designated in the manner prescribed by the act, the title of the company did not attach to any specific tracts. After such route was settled the location became certain, and the title of the company attached to the particular sections granted as of the date of the approval of the act, as fully as if such particular sections had been designated in such act.

THE PROVISIONS OF SECTIONS 5, 6, 8, 9, and 20 OF SUCH ACT, imposing certain conditions on the company, do not effect the creation or vesting of the estate granted by the act. They are simply conditions subsequent, which render the estate liable to be defeated for default on a breach in the performance of such conditions. Upon the breach of such conditions, congress alone has power to declare or take advantage of a forfeiture.

SECTION 4 OF SUCH ACT, PROVIDING THAT WHEN "SUCH COMPANY shall have twentyfive consecutive miles of any portion of said railroad completed, patents of deeds shall be issued to said company, confirming to said company the right and title to said lands," and "from time to time, whenever twenty-five additional consecutive miles shall have been constructed and completed, then patents shall be issued to

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said company conveying the additional sections of land," does not limit or restrict the estate granted by section 3 of such act-the effect of the patent issued in pursuance of such section is simply to confirm the title of the company as fast as certain portions of the road are completed, and render it absolute and unconditional.

A GRANT OF PUBLIC LAND BY ACT OF CONGRESS IS THE HIGHEST EVIDENCE OF TITLE. It imports livery of seisin and possession, and is sufficient to sustain ejectment. APPEAL from a judgment of the third district court for Lewis and Clarke county, entered in favor of the plaintiff. The opinion states the facts.

Harry R. Comly, for the appellant.

W. F. Sanders, for the respondent.

GALBRAITH, J. This is an appeal from an order overruling a demurrer to the complaint. The demurrer avers, as the only ground therefor, that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, in substance, that by section 3 of an act of congress, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from lake Superior to Puget sound, on the Pacific coast, by the northern route," approved July 2, 1864, there was granted to the respondent every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate. sections per mile on each side of said railroad, as said company might adopt, through the territories of the United States, wherever on the line thereof the United States had full title at the time the line of the road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; that by section 6 of the act aforesaid, it was provided that after the general route of the road should be fixed, the president of the United States should cause the lands to be surveyed for forty miles in width on both sides of the line of said road as fast as

might be required by its construction, and that the odd-numbered sections of land granted by section 3 of said act to the respondent should not be liable to sale, entry, or pre-emption, before or after they were so surveyed, except by the said North Pacific Railroad Company; that the general route of said railroad adjacent and opposite to section thirteen (13), township ten (10) north, of range four (4), (the land in question), was fixed by the respondent the twenty-first day of February, 1871, within less than forty miles from said section, by means whereof said section was withdrawn from sale, entry, or pre-emption, except by the respondent, and thereafter, to wit, on the first day of October, 1881, the line of said road at and opposite to said section was definitely adopted and fixed, and a plat thereof filed in the office of the commissioner of the general land office, at which time the said section was free from either sales, reservations, appropriations, pre-emptions, dispositions, claims, or rights than that contained in section 3 of the act aforesaid, granting the same to the respondent; that said grant then and there took effect and attached thereto, and that said company did then proceed and is now proceeding to construct its road upon said line of definite location, opposite and adjacent to and by the said section thirteen (13), which is within the limits of said grant; that said section thirteen (13), on the second day of July, 1864, was public land of the United States, to which they then and there had full title, and except for the grant to the respondent, would yet have full title thereto, and so in the manner aforesaid the respondent says it has full title to and is the owner of said section thirteen (13), and on the first day of October, 1881, was, and ever since has been, entitled to the possession and occupancy and enjoyment thereof. The complaint also alleges entry and ouster by the appellant on the thirtieth day of October, 1881, and demands possession of the premises in question.

The argument of the appellant is, in substance, that the complaint "does not show any such title in the respondent by a grant or patent from the United States as carries with it livery of seisin, nor is there any allegation of actual prior possession which, without such grant or patent, would sustain its action of ejectment;" that the words of present grant, in the third section of the act, are specially restrained by the provisions of other portions of the act, which prescribe certain conditions, and especially by those of section 4, which, it is claimed, determines when the grant shall take effect, viz.: "When twentyfive consecutive miles of the road shall be completed, and after the report of commissioners, etc., patents shall be issued to the company conveying the additional sections," etc.; that until this time, viz., when patents shall have issued in accordance with the act, the right of the respondent in the lands by virtue thereof is simply the "grant of an incorporeal right in said lands, accompanied by certain conditions, upon the performance of which conditions the act provides when and how the title shall vest in the company, to wit, the lands shall be conveyed by patent, when each twenty-five miles of the road shall be completed, and not before; that by virtue of the act the United States becomes a trustee for the company, and agrees that when it shall have designated its route, "the government will reserve from sale, etc., the odd sections to be conveyed to the company upon the performance of certain acts;" that the legal title is in the United States until the issue of the patent, before which the company has only an equitable estate, anal can not

maintain an action of ejectment. The complaint does not allege any patent to the respondent: The questions, therefore, for our consideration are, What is the character of the title in the respondent by virtue of the act before the issue of the patent? And when does it have such a title as that it can maintain thereon an action of ejectment?

In order to solve these questions, we must arrive at the true interpretation of the act of congress making the alleged grant. The proper rule of interpreting this act we believe to be that cited by the appellant, viz.: "The court, if possible, must give the statute such a construction as will enable it to have effect; that is, it must be construed in accordance with the legislative intent:" Cooley's Const. Lim., 223. This is substantially the language of the supreme court of the United States, in Leavenworth etc. R. R. Co. v. The United States, where Davis, J., delivering the opinion of the court, says, referring to the act of congress granting lands to the railroad company: "This grant, like that to Iowa, was made for the purpose of aiding a work of internal improvement, and does not extend beyond the intent it expresses. It should be neither enlarged by ingenious reasoning, nor diminished by strained construction. The interpretation must be reasonable and such as will give effect to the intention of congress. This is to be ascertained from the terms employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings, one of extension and the other of limitation, they must be accepted in a sense favorable to the grantor." The latter portion of this language, and similar language in other decisions, must be considered as referring to terms so ambiguous in their character that a resort must be had to a rule of construction resolving the doubt in favor of one party to the contract rather than to the other; for we are satisfied that it is a rule absolutely binding upon all courts that where the legislative will and intent is discovered in a statute, they must give force and effect to that will and intent when it does not contravene the fundamental law. It is the rule of common law in relation to grants that where the language was so ambiguous as to call for the interposition of a rule of interpretation, the doubt was required to be resolved against the grantor. It was expressed thus: "That the deed be taken most strongly against him that is the agent or contractor, and in favor of the other party:" 2 Bla. Com. 380. In the language of the authorities generally, private grants are strictly construed against the grantors, and public grants against the grantees. But it is only when courts are in doubt as to the meaning of the instrument that resort will be had in either case to the above rule of construction.

Another rule of construction of legislative acts is, that it must be made upon the entire act, and not upon disputed parts of it. Every part of the act should be made to take effect, if possible, and all the words be made to operate in one way or the other. Can, therefore, the intention of congress be discovered from the act itself, without resort to the rule which obtains, where there is ambiguous or doubtful language in an act of the legislature? and what, taking into consideration all the language of the act in question, was such intention in relation to the time when the grant should take effect? The act will be presumed to have been passed by congress with the knowledge of its previous enactments in relation to grants of lands, and the repeated determinations of the supreme court of the United States as to their construction. That court has re

peatedly held, in construing grants of land made by congress, that “a grant" of lands "may be made by law as well as by a patent issued pursuant to a law," "and such grant vests an indefeasible and irrevocable title:" Fletcher v. Peck, 6 Cranch, 87; Strother v. Lucas, 12 Pet. 454; 9 Cranch, 43; Wilkinson v. Leland, 2 Pet. 498; 3 Washburn on Real Prop., 4th ed., 193, 194.

It la confirmation of title by act of congress] was a higher evidence of title than a patent, as it was the direct grant of the fee, which had been in the United States, by the government itself, whereas the patent was only the act of its ministerial officers:" Grignon's Lessee v. Astor, 2 How. 319. "The plaintiff's title [a confirmation by congress] is prima facie a good legal title, and will support ejectment on the act of 1836, standing alone, if the land can be identified as confirmed without resort to the patent:" Chouteau v. Eckhart, Id. 344. In Green v. Leiter, 8 Cranch, 229, Story, J., says: "We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seisin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the state. A fortiori, the principle applies to a patent, since, at the common law, it imports a livery in law." For a still stronger reason would this principle apply in the case of an act granting such lands, for, as we have just seen, the supreme court of the United States has held that such an act is higher evidence of title than a patent.

The decisions of the supreme courts of several of the states are to the same effect. "A grant of lands by the government is tantamount to a conveyance with livery of seisin:" 3 Washburn on Real Prop., 4th ed., 191, and cases there cited. "He who takes title to lands from the federal government, draws the actual legal possession to it:" Robinson v. Lake, 14 Iowa, 421.

With this construction of public grants as the uniform rule, congress passed the act in question. Its preamble entitled it as follows: "An act granting land to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route."

Those portions of the act which bear upon the question before us are as follows: Section 3 of the act provides, "that there be and hereby is granted to the Northern Pacific Railroad Company, its successors and assignees, for the purpose of aiding in the construction of said railroad, * * * every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line as said company may adopt through the territories of the United States, * * * and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office." Section 4 provides, "that whenever said Northern Pacific Railroad Company shall have twenty-five consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated, the president of the United States shall appoint three commissioners to examine the same, and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed in a good, substantial, and workmanlike manner, as in all other respects required by this act, the commissioners shall so report to the president of the United States, and

patents of lands as aforesaid shall be issued to said company, confirming to said company the right and title to said lands, situate opposite to and coterminous with said completed section of said road; and from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed, and in readiness as aforesaid, and verified by said commissioners to the president of the United States, then patents shall be issued to said company conveying the additional sections of land as aforesaid, and so on, as fast as every twenty-five miles of said road is completed and operated."

Section 6 provides, "that the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption, before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled "An act to secure homesteads to actual settlers on the public domain," approved May 28, 1862, shall be and the same are hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre.

This

It will be observed that the preamble, which may be resorted to to aid in the construction of an act of the legislature, 1 Bla. Com. 60, recites that it is an act granting lands;" that is, the act itself grants. It does not recite that it is an act providing for a grant or conveyance or sale of lands, which in all probability would have been the language used had it been the intention of congress that the patent should operate as the conveyance, but that the act itself is the grant. language is also indicative of an intention that the grant is a present grant. The word used is "granting," being the present participle; that is, granting now. Again, the object of the grant, as stated in the preamble, was to aid in the construction of the road. The plain and unconstrained meaning of this language would seem to be that these lands were to be available to the road, not after it had been completed, or after any portion of it had been completed; but during the construction thereof. If we are right in this view of the above language, it will also be an indication of the will and intent of congress in the enactment of the law. The language, therefore, of the preamble, so far as it is indicative of and aids us to arrive at the intention of congress in the passage of the act, recites that the act itself is the grant.

The first language used in the act itself, relating to the grant of lands, is contained in section 3, and is as follows: "That there be, and is hereby, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad," etc. The above phrase, "there be, and hereby is, granted," has been several times before the supreme court of the United States, and has received a fixed and definite construction. In construing an act of congress of 1820, granting lands to the state of Missouri, which contained the following language, "that four entire sections of land be, and the same are hereby, granted to the said state, for the purpose of fixing the seat of government thereon; which said section shall, under the