Dubuque & Pacific Railroad v. Litchfield

delivered the opinion of the court.

The land in controversy lies within five .miles of the Des Moines river, and within the limits of what was the Iowa Territory when the act of Congress of 1846 was passed, making the grant to improve the navigation of the Des Moines river from its mouth to the Raccoon fork; but'the land sued for lies nearly sixty miles above the mouth of that fork.'

Litchfield, the plaintiff below, claims by virtue of a title derived from the State of Iowa, acting as trustee of the Des Moines river fund.

The Dubuque and Pacific Railroad Company is in possession of the section of land, under a grant from Congress for the purpose of constructing a railroad from Dubuque, on the Mississippi river, to a point on the Missouri river near Sioux city. This grant was made to the State of Towa in 1856, and is for every alternate section, (designated by odd numbers,) for six sections in width on each side of the road. The road was located, the lands designated by the United States, and accepted by Iowa; and then they were transferred to the railroad company by the Legislature of that State. The section iu dispute is one of those vested in the railroad company. This is the younger and inferior title, .if the first grant for im *84 proving the river extends álong.its whole length; and the ma< terial question in this case, is, whether the grant made by the act of Congress of August 8th, 1846, for the river improvement, is limited to lands lying next the river, and below the Raccoon Fork. And although this depends on a true construction of the. act, still it becomes necessary to give a brief historical statement of the proceedings before the Executive department respecting this claim, extending through -more than ten years; these proceedings being relied on, either to . conclude the title, or to control the construction of the act of Congress.

They are as follows: By the act of Congress approved August 8th, 1846, a grant of land was made to the Territory of Iowa “for the purpose of aiding said Territory .to improve the navigation of the Des Moines river from its mouth to the Raccoon fork, in said Territory, one equal moiety, in alternate sections, of the public lands (remaining unsold and not otherwise disposed of, encumbered, or appropriated) in a strip five miles in width on each side of said river, to be selected within said Territory, by an agent to be appointed by the Governor thereof, subject to the approval of the Secretary of the Treasury of the United States.”

. .The 4th section of that act provides that.the lands shall be-come the property of the. State of Iowa on her. admission'into the Union, which was. very- soon expected to occur! The Governor of Iowa was notified by the Commissioner of the General Land Office of this act, soon after its passage, viz: October 17, 1846, by letter, in which it is stated that, “ under the grant, the Territory is entitled to the vacant lands,; in alternate sections, within five miles on each side of the Des Moines rivér, from the "northern boundary of Missouri to the Raccoon fork.”

No objection to this construction was then made by the State authorities, and the agent , of the State, proceeded to make the selections within the limits, above stated.

No question as to the extent of this grant arose until nearly two years after. . It "appears, however, that a letter dated February 23d, 1848, from Commissioner Young, did not adhere *85 to the restrictions .mentioned in the.first- letter, but its terms seemed to concede to it a greater extent. And in 1849 this question was brought to the attention of the Secretary of the Treasury, by the delegation of the State in Congress; they claiming that the State was entitled to land along the whole course of the river to its source. In reply, (March 2d, 1849,) the Secretary, Mr. Walker, expresses an opinion that the “ grant extends on both sides of the river from its source to its mouth, but not into lands on the river in the State of Missouri.” • This opinion conceded that nine hundred, ihousand acres above the Raccoon fprk. was within the grant. "

In conformity with this view of Mr. Walker, selections of lands above the fork were reported by the Commissioner- of the General Land Office, for confirmation, to the Secretary of the Interior, Mr. Ewing; the supervision of-the public lands-having passed from the Treasury to the Interior Department. Mr. Ewing, upon the ground that the opinion of Mr.-Walker had not been carried into efiect, held thatrthé same was open for revision’; and not concurring therein* refused to approve the selections. But, as Congress was .then in session, and might.. “ extend the grant,” ordered a suspension of action in the matter.

From this decision of Mr. Ewing an appeal was taken in - 1850 to the President, by whom the matter was referred to the Attorney -General, Mr. Johnson, who, in his opinion of July. 19, 1850, construed the grant as extending above the Raccoon fork.

No action appears to have been taken under this opinion of Mr. Johnson ; ¿nd the question remained open at the accession of-the next President, Mr. Fillmore, when it was submitted to the Attorney General, Mr. Crittenden, who, on the 30th Jun.e, 1851, replied that the letter of Mr. Walker, had no binding effect on his’ successor, being but an opinion expressed, not an act done ;■ that the opinions of Attorney Generals are merely advisory; and that the grant, in hisiopinion, was limited to the lands below the -fork. In this opinion it appears that Mr. Stuart- (then Secretary of the Interior) concurred; but after-.wards, on the 29th October, 1851, he addressed the Commis *86 sioner of the General Land Office on the subject, and directed the selections above the Raccoon fork to be reported for his approval, for the reasons and upon the conditions thérein stated, viz: “that the question involved partakes more of a judicial than of an executive character, which must ultimately b‘e determined by the judicial tribunals of the country.” In conformity with this decision, lists of lands above the fork were submitted by the Commissioner in. October, 1851, and March, 1852, and approved by Mr. Stuart in accordance with the .views expressed in his letter of the'29th October, 1851. Acting under this authority, the Commissioner, in 1853, submitted lists to Secretary McClelland also, which were approved. The subject was again brought before the Secretary of the Interior in 1856, and by him referred to Attorney General Cushing. Mr. Cushing,,-in his reply of 29th May,-1856, advised that a proposition set forth by him be submitted to the State for a final adjustment of the matter. This proposition was not accepted by the State; and in 1858 -the subject was laid before Attorney General Black, whose’opinion clearly restricted the grant to the river below the Raccoon fork; that being in accordance with the construction Originally given to it at the General -Land Office. On mature consideration, we -are of opinion that the title of neither party has been affected by the proceedings in the Land Office, or by the opinions of the officers of the Executive department, but that the claims of the 'parties under the two acts 'of Congress must be 'determined by the construction to be given to those acts. This we are required'to do in deciding this cause.

The caption of the act of 1846- informs us that the donation was made to aid in the improvement of the navigation “ of the Des Moines river; ” and the body of it grants to the' Territory (and State) alternate sections, to improve the navigation “of the Des Moines river, from' its mouth to the Raccoon fork,” in a strip five miles in-width, on each side of “said river.” And we are further told, (section 3d,) that “ the said river Des Moines .shall forever remain a public highway for the use of the Government of the United States, free from any toll or other charge whatever for any property of the United States, *87 or persons in their service, passing through or along the same.

What navigable river was to he improved, and was in the, contemplation of Congress in 1846, when the northern portion of Iowa was a wilderness ? Surely not the. small streams and brooks reaching into Minnesota Territory, as is here claimed.

Congress recognised the Des Moines river, over which a free passage was secured, to be a stream emptying into the Mississippi ; and from its mouth to the Raccoon fork was the “said river, ’ ’ on each side of which the strip of land granted was to lie.

As proof of which; we refer to the following facts: The bill was introduced into the House of Representatives by Mr. Dodge; the Delegate from Iowa Territory, and was the subject of a report by the Committee on Public Lands, which report is a document in the case agreed, and the facts therein stated are admitted. Among these facts, it appears (by a previous report of Captain Fremont, who had officially explored the Des Moines river) that from its mouth to the Raccoon fork was two hundred and three miles; that it presented no obstacles to navigation that could not be overcome, at a slight expense, by the removal of loose stones at some points, and the construction of artificial banks at some few others, so as to destroy the abrupt bends, and that this was all that would be required to render it navigable; that th.e variable nature of the bed and the velocity of the current would keep the channel constantly clear.

The committee’s report states that the country is occupied and cultivated as high up as the Raccoon fork; and that a clear and uninterrupted navigation could be secured at an expenditure not great wheu compared with' the object ; that the land appropriated by the bill is similar in its character and object to many grants already made by Congress for other Western .Territories and States, and at the same time -less in quantity; but it is believed that it will be sufficient to accomplish the desired improvement; and as evidence of this, Captain Fremont’s statement is relied on. The committee was, however, of the opinion, that locks and dams might he required at some of the ripples.

*88 Accompanying this report, and as a part of it, is a letter from .the Commissioner of the General Land Office, obtained by Mr. Dodge, ¿(dated May 5th, 1846,) in which it is officially stated, “That the amount of unsold land within five miles on each side of the Des Moines river, from its mouth to the Raccoon fork, proposed to be granted to the Territory of Iowa by House bill No. 106, is estimated at 261,000 acres.” The bill No. 106, as reported, was passed into the law before us. When we carry with us the fact that the 261,000 acres of land were surveyed, and the plats recorded in the General Land Office, to which surveys the Commissioner’s letter referred, it is plain that the river, from its mouth to the Raccoon fork, was, in the view of Congress, as manifestly as if the outlines of the tract (or strip) had been given by a plan in connection with the river.. Of this we have no doubt; but if we had doubts from any obscurity of the act of Congress, a settled rule of construction would determine the controversy. All grants of this description are strictly construed against the grantees; nothing passes but what is conveyed in clear and explicit language; and as the rights here claimed are derived entirely from the act of Congress, the donation stands on the same footing of a grant by the public to a private company, the terms of which must be plainly expressed in the statute; and if not thus expressed, they cannot be implied. Charles River Bridge v. Warren Bridge, 11 Peters, 420.

'We concur with the following citation and reasoning of the plaintiff’s counsel, to wit: Lord Ellenborough, in his judgment in Gildart v. Gladstone, 1 East., 675, (an action for Liverpool dock dues,) says: “If the words would fairly admit of different meanings, it would be right to adopt that which is more favorable to the interest of the public, and against that of the company, because the company, in bargaining with the public, ought to take care to express distinctly what payments they are to receive, and because the public ought not to be charged unless it be clear that it was so intended.”

“The reason of the above rule is obvious — parties seeking grants for priváte purposes usually draw the bills making them. If they do not make the language sufficiently explicit and *89 clear to pass everything that is intended to be passed* it is their own fault; while, on the other hand, such a construction has a tendency- to prevent parties from inserting ambiguous language for the purpose of taking, by ingenious interpretation and insinuation, that which cannot be obtained by plain and express terms.”

The second ground, relied on in support of Litchfield’s title is, that he is.an innocent purchaser from the State of .Iowa of land conceded to belong.to the Improvement fund by the officers-and agents of the United States; and haying been certified ás part of the grant, and as being one of the odd sections belonging to Iowa, the principal is bound by the acts of his agents, and that these binding acts cannot be revoked at the pleasure of the Secretary of the Interior, as is here assumed to be done.

"We have set forth the proceedings on this claim, and háve already expressed .the opinion, that the courts of justice are not concluded by them, The principal reason, however, why the conveyance' to Litchfield, under the river improvement grant, cannot be upheld, is this: The act of Congress was a direct grant to Iowa in fee of an undivided moiety of the whole tract lying on each side of the river from the Raccoon fork to the Missouri line. Congress had. the undoubted power, to make the grant and vest the fee. .

•• No authority was conferred on the Executive officers administering the public lands to do more than make partition between the tenants in common, Iowa and the United States, in the manner prescribed by the act of Congress.

The premises in dispute lie sixty miles beyond the limits of the tract granted; it was therefore impossible to make partition, Under this grant, of lands lying outside of its boundaries; and all attempts to do so were merely nugatory. It follows that the plaintiff below has no title, and his action must fail.

The Attorney General has intervened, and insists that this action is a mere fiction, and was intended to draw from this court an opinion, affecting the rights .of the United States ancl others, the- parties to this suit having nothing at stake, and that the case-should be dismissed.

*90 . To .'meet this imputation of contrivance, the parties and their counsel have filed affidavits and statements, from which it satisfactorily appears that the action was brought by a bona fide claimant under the grantee of the river improvement fund against the railroad company; and although the case agreed was made up in a friendly spirit, nevertheless the object was to try the title, and this was done at the instance of some of the Executive officers.

If the judgment of the District Court were affirmed, the defendant below would lose the land; aiid it' being reversed, the plaintiff below loses it.- The action was obviously brought to carry out Secretary Stuart’s suggestion, when he said, “ That the question involved partakes more of a judicial than an executive character, and must ultimately be determined by the judicial tribunals of the country.”

• ¥e have therefore felt bound to hear and decide the cause on its merits; and finding that the plaintiff below has no title, we diréct that the judgment of the District Court be reversed, and the cause remanded; and that court is ordered to enter judgment for the defendant below.