ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN.
MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.
The land in controversy is within the place limits of the plaintiff's road. Confessedly, therefore, the title passed to the plaintiff, provided the land was subject to the operation of the grant made by the third section of the act of 1864. The contention is that it was not subject thereto by reason of the fact that it was withdrawn by the land department in 1856 and 1859 in order to satisfy the grant made by the act of 1856. It was within the indemnity and not within the place limits of the grant in aid of the Bayfield road.
It is curious to note that in the communication made in 1859 by the land department to the local land officers it is stated that all the unsold lands within the indemnity limits along the line of the road had been selected by the agent of the State in lieu of the lands sold and preempted within the place limits. If this selection was in fact made and was needed to satisfy the deficiency in the amount of lands within the place limits, and was approved by the land department, it would avoid the necessity for further inquiry; for whatever of right there was in the St. Croix and Lake Superior Railroad Company passed to the Omaha Company, and was by it, under the agreements of February 12, 1884, and February 19, 1887, transferred to the plaintiff, and this was long anterior to any claim on the part of the defendant.
But assuming, in the absence of any direct evidence thereof, that no such selection was made, we pass to an inquiry as to the respective rights of the parties. The title of the plaintiff, as we have seen, can only be defeated by reason of the land not being within the scope of the grant made by the third section of the act of 1864, and it is only excluded therefrom by the grant of 1856 and the reservation made in pursuance thereof. The reliance of defendant is on the long-established rule, often affirmed by this court and recognized in section six of the act of 1864, to the effect that a grant by Congress does not operate upon lands theretofore reserved for any purpose whatsoever. There can be no doubt as to this rule, or as to
the fact that lands withdrawn from sale by the land department are considered as reserved within its terms.
But it is a rule of equal if not higher significance that every act of Congress making a grant is to be treated both as a law and a grant, and the intent of Congress, when ascertained, is to control in the interpretation of the law.
"The solution of these questions depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together." Winona & St. Peter Railroad v. Barney, 113 U.S. 618, 625. See also Missouri, Kansas & Texas Railway v. Kansas Pacific Railway, 97 U.S. 491, 497; United States v. Southern Pacific Railroad, 146 U.S. 570, 597; United States v. Denver & Rio Grande Railway, 150 U.S. 1.
In order to determine the intent of Congress we must look at the situation at the time the act of 1864 was passed. The alternate sections within the six and fifteen-mile limits of the Bayfield road were not granted by the act of 1856. They were simply withdrawn from preemption and sale by the action of the land department in order that the beneficiary of the grant might, in case the full amount of lands granted was not found within the place limits, select therefrom enough to supply the deficiency. We do not mean that they were not reserved lands; on the contrary, as stated above, they were. Such is the uniform ruling of this court in interpreting like action on the part of the land department. Nevertheless, not being granted lands, they were still within the disposing power of Congress. There would be no question of the title of one to whom Congress had in terms granted them. "Until selection was made the title remained in the government, subject to its disposal at its pleasure." Kansas Pacific Railroad v. Atchion &c. Railroad, 112 U.S. 414, 421; St. Paul & Sioux City Railroad v. Winona & St. Peter Railroad, 112 U.S. 720,
; United States v. McLaughlin, 127 U.S. 428, 450, 455; Wisconsin Central Railroad v. Price County, 133 U.S. 496, 511; United States v. Missouri, Kansas & Texas Railway, 141 U.S. 358, 374.
The land was, therefore, subject to the full control of Congress at the time of the passage of the act of 1864. What did Congress intend by that act? It had in 1856 granted to the State of Wisconsin six sections per mile to aid it in the construction of a road from Madison or Columbus, by way of Portage City, to the St. Croix River or Lake, and thence to the west end of Lake Superior, and to Bayfield, with a proviso that if the road was not completed within ten years the unsold lands should revert to the United States. Wisconsin had accepted this grant, and thus impliedly undertaken to construct the road. It made the La Crosse and Milwaukee Railroad Company the beneficiary of this grant. Subsequently, with the assent of the State, that company had transferred to the St. Croix and Lake Superior Railroad Company so much of the grant as was designed to aid in the construction of that part of the road from the St. Croix River or Lake northward to Lake Superior, with the branch to Bayfield. Eight years had passed, and only two years more remained until the expiration of the time fixed for the completion of the road. Only a short distance had in fact been built, to wit, 61 miles from Portage to Tomah, and that by the St. Croix and Milwaukee company in the spring of 1858. It was evident that the inducement of six sections per mile had not been sufficient to secure the construction of the road in the comparatively unin habited portions in the ...