Railroad Co. v. Fremont County

Mr. Justice NELSON,

having stated the case in the way already given, delivered the opinion of the court.

It will be seen from an examination of the grant made to the railroad company by the act of May 15th, 1856, that the reservations annexed to it are very full and explicit. They are first found in the enacting clause itself, where provision is made for the selection of lands beyond the lines of the six sections on each side of the road, in case any of the sections have been previously “ sold or otherwise disposed of;” and then again in the general proviso to the grant. These reservations clearly embrace the previous grant of the swamp and overflowed lauds for the purpose of enabling the States to redeem them and fit them for cultivation by levees and drains. At the time of the passage of this act (May 15th, 1856), a moiety of the lands in controversy had been selected and reported to the land department; and the authorities of the State, under instructions from that department, were engaged in the selection of the remainder. The lands already selected and returned had been withdrawn from sale, and were not in the market at the time of the passage of the act; and as soon as the remaining lists were returned, which was January 21st, 1857, they were also withdrawn from the market In the language of the railroad act, the whole of the lands in controversy were “ otherwise appropriated,” and were “reserved” for the purpose of aiding the States in their objects of internal improvements.

But there is still, if possible, a more decisive answer to the title set up by the defendants. Until the line of the railroad was definitely fixed upon the ground, there could be no certainty as to the particular sections of lands falling within the grant; nor could the title to any particular section on the line of the road vest ih the company. The grant was in the nature of a float until this line was permanently fixed. Now, the proofs show that the location of the road was not made on the ground and adopted by the company till the 24th March, 1857, which was after the confirmatory act of that year.

This, as we have seen, confirmed all the selections made at the time, and which included all in controversy in this suit, in the language of the section, “ so far as the same shall remain vacant, and unappropriated, and not interfered with by actual settlement.” As the railroad company at this time, for the reasons above stated, had not perfected their grant so as to have become invested with the title to any of the sections included in the lists or selections of the swamp lands on file in the land department, they can set up no appropriation of any of these lands under their grant, which leaves them subject to the confirming act of 1857, according to the very words of it.

Decree aettrmed.