Dubuque Southwestern R'y Co. v. Cedar Rapids & Missouri River R'y Co.

66 Iowa 366

• Court: Supreme Court of Iowa
• Decided: June 6, 1885
• Status: Published

Opinion

Reed, J.

By the act of congress approved May 15, 1856, there was granted to this state, in aid of the construction of a railroad from Lyons City to a point of intersection with the Iowa Central Air Line Eailroad near Maquoketa, thence on said line, as near as practicable to the forty-second parallel, across the state to the Missouri river, every alternate section of land designated by odd numbers, for six sections in width, on each side of said road. The act also provided that in case it should appear, after the line of said road was definitely fixed, that the United States had sold any portion of the land so granted, an amount equal thereto might be selected by the state in lieu thereof in alternate sections within fifteen miles of the line of the road. By an act approved May 14, 1856, the state accepted the grant, and conferred the same on the Iowa Central Air Line Eailroad Company, a corporation having the power to build said line of railroad. In 1859 this company became insolvent before any portion of the road was completed. It transferred its franchise and rights to another company, the Dubuque, Marion & Western Eailroad Company, and that, company transferred the same to the plaintiff, the Dubuque Southwestern Eailroad Company.

The act of the legislature granting the lands to the Iowa Central Air Line Company reserved to the state the right to resume the rights thereby conferred, upon the failure of that company to complete and equip at least seventy-five miles of its road within three years from the date of the grant; and in 1860 the legislature passed an act resuming the grant, because of' the failure of the company to build and equip that amount of road within the time specified. It had then been ascertained that, owing to the amount of lands within the limits of the grant which had been disposed of by the United States before the grant was made, the state would not acquire, even within the fifteen-mile limit, the amount of lands intended to be conferred upon it by_ the grant, and the legislature in the same year granted to the defendant all the lands and rights acquired by it under the grant, on condition that it would build a road from some convenient point on the Cedar river, near the forty-second parallel, westward to the Missouri river. The act contains a provision that defendant should not commence to build its road at any point further west from the Mississippi river than the town of Marion, in Linn county, and that the governor should not certify to defendant any of the lands transferred to it by the grant until that portion of the road between Marion and Cedar Rapids, together with so much more of said road as to make in the aggregate at least twenty miles, should be completed and equipped.

Defendant built its road from Cedar Rapids to the Missouri river, a distance of 271 miles, within the time prescribed in the grant, but has never built the portion of the road between Marion and Cedar Rapids; the last-named point being five and thirty-four one-hundredtlis miles further west than Marion. Anamosa is east of Marion; it is also some distance east of the Cedar river. Marion, Anamosa and Cedar Rapids are all on the line of the Iowa Central Air Line Railroad, as the same was located. The plaintiff, the Dubuque & Southwestern Company, built a road on this line from Anamosa through Marion to Cedar Rapids. The governor of the state, as the work of constructing defendant’s road progressed, certified the fact of the completion of the various sections of twenty miles thereof; and, when it was completed to the Missouri river, he gáve a certificate of the length of the road, and that it was constructed in accordance with the requirements of the grant. Certificates covering 100 miles of the road had been given at the time the contract, for the violation of which this suit is brought, was entered into. Defendant has received all the lands wliich were certified to the state under the grant. This amount is not in excess of what it would be entitled to for the number of miles of road constructed by it, estimated on the basis of six sections for each mile of road, which is the basis of the congressional grant. The Iowa Central Air Line Company, before it became insolvent, issued certain construction bonds; and, to secure the same, gave a trust deed covering its franchise and property, including its rights under the grant by the state to it. Platt Smith, as attorney for the holders of these bonds, had obtained judgment foreclosing this trust deed. He was also attorney for the Dubuque & Southwestern Company. The claim which he was asserting, and which was intended to be settled by. the contract in suit, was that the plaintiffs in the foreclosure suit acquired an interest in the lands under the trust deed and judgment of foreclosure, and that the Dubuque & Southwestern Company acquired an interest in the lands by virtue of the assignment to it of the rights and franchise of the Air Line Company, and the fact that it had constructed a portion of the railroad in aid of which the grant was originally made.

In the case of Smith v. Cedar Rapids & M. R. R. Co., 43 Iowa, 239, which was an action between these same parties for the enforcement of the undertaking of defendant in the contract to convey the 46,000 acres of land, this court put a construction upon the contract; and it was held in that case that defendant’s undertaking was to convey the lands mentioned in the contract only in case the parties should be able to draw lands to the amount of 46,000 acres on account of the construction of the road betweeen Anamosa and Cedar Eapids, and, as this condition precedent had not occurred, plaintiffs were not entitled to judgment for the specific performance of the agreement to make the conveyance. In this action the plaintiffs seek to recover damages on account of the alleged refusal of defendant to unite -with them in an application to the legislature for the enactment of such legislation as would have enabled the parties to draw and hold the amount of land specified in the contract, on account of the construction of the road from Anamosa to Cedar Eapids; the claim being that the provision of the grant from the state to defendant, which required it to commence the construction of its road at Marion, and which forbade the governor to certify to it any portion of the land until it had constructed and equipped a section of twenty miles of road, which should include the road between Marion and Cedar Eapids, was a setting apart of a specific amount of land for that particular section; and, as defendant never built the road between those points, it was not entitled to the lands so set apart for that section; and that these lands remained within the control of the state at the time they -requested defendant to unite with them in asking the legislature to enact such legislation, and that the legislature could then have granted them to the parties on account of the construction of the road from Anamosa to Cedar Rapids, and would have done so if defendant had united in requesting it to make that application of them.

This claim, we think, cannot be maintained. The request of plaintiff to defendant to unite with them in asking the legislature to enact the proposed legislation was made in March, 1878. Defendant completed its road to the Missouri river in February, 1867, and in July of that year the governor gave his certificate that it had constructed 271 miles of road, and that the same was constructed according to the requirements of the act of congress, by which the lands were granted to the state, and the laws of the state by which they were granted to the defendant. The former certificate applied to and covered the 100 miles first built, the construction of which commenced at Cedar Rapids. These certificates of the governor were given in compliance with the requirements of section 4 of the act of congress granting the lands to the state, which provides that, “ when the governor of said state shall certify to the secretary of the interior that any twenty continuous miles of said road is completed, then a quantity of land hereby granted not to exceed one hundred and twenty sections, and included, within a continuous length of twenty miles of said road, may be sold; and so from time to time until said road is completed.”

The giving of the certificates was a recognition by the executive department of the state government of defendant’s rights to the lands included in the grant, on account of the construction of its road from Cedar Rapids to the Missouri river. There is no doubt, we think, but that the certificate first given was intended by the. governor to apply to and cover the section of the road which, commencing at Cedar Eapids, extends thence westward twenty miles, and the certificate was given to enable the defendant to dispose of a portion of the land covered by the grant on account of the construction of that section of the road. And the final certificate, by its terms, applies to and covers the whole 271 miles of road constructed by defendant, and was given to enable defendant to dispose of so much land as, by the terms of the congressional grant, would pass on account of the construction of that number of miles of road. The construction placed by the governor upon the grant to defendant undoubtedly was that it entitled defendant, notwithstanding the provision with reference to the initial point of its road, to 120 sections of land on account of the construction of the section of twenty miles of road, which commenced at Cedar Eapids; and that defendant was entitled to lands, according to the terms of the grant, for each mile of road constructed by it. Under this construction, as we have seen, all the lands included in the congressional grant passed to defendant under the grant from the state, and this construction had been acquiesced in by the legislature for more than ten years when plaintiffs requested defendant to unite in ashing it to enact such legislation as would appropriate a portion of. the lands on account of the construction of the road from Anamosa to Cedar Eapids.

The facts of the situation, then, briefly, are these: The state conferred upon defendant the whole of the lands granted to it in aid of the construction by it of a railroad from a ¡joint on the Cedar river, near the forty-second parallel, westward to the Missouri river, and designated Marion as the point at which the construction of the road should be commenced. Defendant commenced the construction of its road at Cedar Eapids, which is a point on the Cedar river, and near the forty-second parallel, and built from that point to the Missouri river. The executive and legislative departinents of tlie state governments have determined that this was such a compliance by defendant with the terms of the grant as entitled it to lands on account of the construction of the road actually built by it; and this construction has been acquiesced in, and acted upon, by both parties to the grant, for years. It is insisted by appellee that this ought to be accepted as conclusive evidence of a waiver by the state of the condition of the grant under which it was required to commence the construction of its road at Marion; but we think we are not required now to go to the extent of holding that the state has precluded itself of all remedy on account of the non-compliance by defendant with that condition of the grant. It was sufficient to say that, having put the construction upon the grant which it did, and having passed the title to the lands to 'defendant under that construction, it could not afterwards assert a claim to the lands, but its remedy, if it had any, was by a proper proceeding in the courts to compel defendant to perform the condition.

We reach the conclusion, then, that, at the time plaintiff requested defendant to unite with them in asking the legislature to pass such enactment as would enable the parties to draw and hold lands on account of the construction of the railroad from Anamosa to Cedar Eapids, the state had no interest in the lands included in the grant, and the legislature had no power to appropriate any portion of them to that object; and, consequently, that the refusal of defendant to UDite in the request affords plaintiff no grounds of complaint. The law never requires a party to do a vain or useless act. Nor will it make his refusal to do such act the ground of a cause of action against him.

• Appellants insist, however, that, as none of the certificates of the governor covered the five and thirty-four hundredths miles of road between Marion and Cedar Eapids, the state is not divested of the lands which were appropriated by the grant to that piece of road, and consequently they might have been appropriated to the object contemplated in the contract; and, in consequence of defendant’s refusal to unite with it in the request that they be so applied, it has a cause of action against it for tlie value of the land so appropriated. There are two answers to this position: (1) As we have seen, under the construction put upon the grant to defendant by the state, all of the lands included in the grant have been appropriated on account of the construction of the road from Cedar Eapids to the Missouri river; and (2) by the terms of the contract between the parties, defendant was bound to convey the 46,000 acres only on condition that the parties were able to draw and hold at least that amount of land on account of the construction of the road from Anamosa to Cedar Eapids. On the basis of six sections for each mile of road, the amount of land appropriated to the road between Marlon and Cedar Eapids was 20,505 acres. If the state had had control of that amount of land, and had granted it to the parties on account of the construction of the road from Anamosa to Cedar Eapids, we think it clear that defendant could not have been compelled under this contract to convey any part of the 46,000 acres. The agreement was to convey a specific amount of land on the happening of a certain condition, and defendant could not have been compelled to convey •a different amount of land on the occurrence of some other event.

"We think the judgment of the district court is right, and it is

Affirmed.