European & North American Railway Co. v. Dunn , 60 Me. 453 ( 1872 )

Walton, J.

The plaintiffs have failed to satisfy us of their right to recover. We think the timber sued for never became their property.

The conveyance to them was made ‘ subject to all the reservations ’ contained in the act of March 24, 1864; and one of the reservations contained in that act was of ‘ all timber and lumber and lands, granted or voted ’ by that or any previous legislature; and we think the timber in question had been ‘ voted ’ within the meaning of that term' as there used, and was, therefore, excepted out of the operation of the plaintiffs’ deed.

The resolve of March 22, 1864, in favor of the Maine Wesleyan Seminary and Female College, authorized the land agent to sell the timber and lumber upon any one-half township of land belonging to the State, and not already otherwise appropriated, and to pay the proceeds of the sale, not exceeding $10,000, to the trustees of said institution; in consideration of which, the trustees were to place at the disposal of the governor and council, five perpetual scholarships, free of tuition, to be given to returned soldiers, or their children, or to the children of such as had fallen in defense of their country. This sum, together with the sum of $5,000 to be raised by the trustees of the seminary and college, was to be permanently invested, the interest only to be expended.

The act of March 24, 1864 (two days later than the above resolve), authorized a transfer to the European & North American Railway Company, in a certain contingency, all the public lands lying on the waters of the Penobscot and St. John rivers, for the uses and purposes therein set forth; providing, however, that there should be excepted from said conveyance, and from the operation of that act, ‘ all timber and lumber and lands, granted or voted' by that or any preceding legislature.

Can any one doubt, that by the term, all timber and lumber, ‘ granted or voted ’ by that or any preceding legislature, it was intended to except from that conveyance, and from the operation of that act, the timber and lumber, which, only two days before, the legislature had authorized to be sold for the benefit of the seminary and college, and to secure a certain number of free scholarships for returned soldiers, or their children, or the children of such as had fallen in defense of their countiy ? Is it possible that an object so worthy had been so soon forgotten? We think not. We think the words, ‘ all timber and lumber voted,’ were intended to include the timber and lumber, which, by a vote of the same legislature, was to be sold for the purposes named, and that the same was thereby excepted, or reserved out of the timber or lumber or lands which, by virtue of the act named, was to be conveyed to the plaintiffs.

The learned counsel for the plaintiffs contends that the land agent did not proceed according to law in selling the timber in question; that for this reason the title never vested in the pretended purchaser; that it remained in the State till the conveyance to them, and then passed to them under their deed of the sale on which it stood.

The argument would be sound if the reservation was made to depend upon a valid sale by the land agent. But such is not the fact. The reservation in the plaintiffs’ deed is absolute — not dependent upon any such contingency. The grant to the college is indeed conditional, but the reservation in the conveyance to the' plaintiffs is absolute, and a failure to appropriate the timber to the object which the legislature had in view when they reserved it, would not operate as a conveyance of it to the plaintiffs.

It is for the State alone, in its discretion, to take advantage of any forfeiture or error or failure in the proceedings subsequent to the grant.

This conclusion renders it unnecessary to examine critically to see whether the sale was strictly according to law or not. That the timber has, in fact, been sold, and the proceeds applied to the benefit of the college, thereby securing to returned soldiers; or their children, or the children of such as have fallen in defense of their country, five perpetual scholarships, free of tuition, is certain; and it must be a result gratifying to every one, to know that any mere informalities in carrying into effect so laudable an object will not defeat it. Plaintiffs nonsuit.

Appleton, C. J.; Cutting, Kent, and Barrows, JJ., concurred.