Swann & Billups v. Lindsey

70 Ala. 507

• Court: Supreme Court of Alabama
• Decided: December 15, 1881
• Status: Published

Opinion

STONE, J.

The act of Congress, approved June 3d, 1856 11 Stat.' at large, 17-8), granted to the State of Alabamaevery alternate section of land designated by odd numbers, for six miles on each side of the railroad track, when the line of the road is definitely fixed,'to aid in the construction of the NorthEast and South-Western railroad, “from near Gadsden to some point on the Alabama and Mississippi State line, in the direction of the Mobile and Ohio railroad,” with a view to connect with said Mobile and Ohio railroad. This road not being completed within ten years, the grant was renewed by act approved April 10th, 1869, and a further time allowed of three years from that date, within which to complete the road. — 16 Stat. at large, 45. The North-East and South-Western railroad became merged in the Alabama and Chattanooga Railroad Company, and its corporate privileges and rights of property passed to the latter company. The road, in its new combination, was completed within the three years, and the lands thereby secured. By joint resolutions of the legislature of Alabama, approved January 30, 1858, the North-East and South-West Alabama railroad was designated as the road entitled to the lands granted to aid in the construction of the road “from near Gadsden to some point on the Alabama and Mississippi State line, in the direction of the Mobile and Ohio railroad.” — Sess. Acts 1857-8, 430-1. As we have said, the corporate powers and property rights of the North-East and South-West railroad were passed to, and merged in, the Alabama and Chattanooga Railroad Company. — Sess. Acts 1868, pages 207 and 345. The lessor’s of the plaintiffs in this suit have shown that the line of their railroad was definitely fixed before March, 1859 ; that the lands sued for are designated by an odd number, and are within six miles of the line of their railroad. They have clearly shown a right to recover, if the defendant has not shown a better title.

Eor the defendant it is contended, first, that he acquired a good title by entry and purchase from the Government of the United States. He proves such entry and purchase by one Allen, from whom he is a derivative purchaser; the purchase made March 1st, 1859, possession taken immediately, and held ever since that time in independent right. He shows title from Allen down to himself. Did he acquire any title by his entry and purchase, made after the line of the railroad was definitely fixed? Had the Government of the United States any authority to sell, or title to convey ?

In Schulenberg v. Harriman, 21 Wall. 44-60, the court said: “That the act of Congress of June 3d, 1856, passed a present interest in the lands designated, there can be no doubt. The language used imports a present grant, and admits of no other meaning. The language of the first section is, ‘ that there be, and is hereby, granted to the State of Wisconsin ’ [Alabama] the lands specified. The third section declares, ‘that the said lands hereby granted to said State shall be subject to the disposal of the legislature thereof; ’ and the fourth section provides in what manner sales shall be made, and enacts that, if the road be not completed in ten years, ‘no further sales shall be made, and the lands unsold shall revert to the United States.’ The power of disposal, and the provision for the lands reverting, both imply what the first section in terms declares, that a grant is made; that the title is transferred to the State. It is true that the route of the railroad, for the construction of which the grant was made, was yet to be designated; and until such designation, the title did not attach to any specific tracts of land. The title passed to the sections, to be afterwards located. When the route was fixed, their location became certain, and the title, which was previously imperfect, acquired precision, and became attached to the land.” To the same effect are Rutherford v. Green, 2 Wheat. 196; Lessieur v. Price, 12 How. 60; Farnsworth v. Minn, & Pac. R. R. Co., 2 Otto, 49. The effect of these rulings is, that just so soon as the line or route of the railroad was definitely fixed, the grant became one of specific sections, the title to which passed out of the United States, and into the State of Alabama. Not an indefeasible fee out of the United States; for the right was reserved, for condition broken, to have the lands revert to the Federal Government, upon proper steps taken to that end. Not an absolute conveyance, or grant to the State, in its own right as of fee; for the State took in trust, to devote the proceeds, or have them devoted, in aid of the construction of the specified line of railroad; “ for the purposes aforesaid, and no other.” Still, the title passed out of the United States, and into the State of Alabama. The Government of the United States had no authority to sell the lands in question, after the line of the railroad was definitely fixed, unless a reversion to the United States had been asserted, for a breach of the condition subsequent.

It is, in the second place, contended for the defendant, that he has a good title to the lands sued for, because he, and those under whom he claims, had held the possession of the lands independently, and in their own right, for more than ten years before this suit was brought. It is a cardinal rule, that statutes of limitation, unless so expressed, do not run against the State, or the United States. Nullum tempus occurrit Reipullicce. Angell, on Lim. § 37. It is contended, however, that that rule does not apply to this case, because the State held these lands in trust for the railroad company.—Miller v. State, 38 Ala. 600. Now, as a.rule, the statute of limitations does not begin to run until there is some one entitled to sue.—2 Brick. Dig. 220, § 35. When did the North-East and South-West Ala. Railroad Company, or its successor, the Alabama and Chattanooga Railroad company, acquire the right to sue for these lands ? Until it acquired the title, or a right to the possession, it could maintain no action, legal or equitable, for their recovery. The act of Congress of June 3d, 1856, and the reviving act of April 10th, 1869, did not confer the right to possess- and sell all the lands ?ranted, as soon as the line of the railroad was definitely fixed. hie hundred and twenty sections, included within a continuous length of twenty miles, might be sold without performance of any condition precedent. Beyond this, the State itself could not go; and it neither did, nor could, confer on the railroad power it did not itself possess. The act of Congress constituted the State the administrator of its bounty, but hedged it around with limitations it could not transcend. The State speaks by its legislature, and, within the limits prescribed by Congress, may exercise a large discretion in the matter of disposing of the lands granted. It might have reserved to itself the power to dispose of the lands, applying the proceeds in aid of the construction of the railroad; or, it might, as it did in this case, confer on the railroad corporation the power to dispose of the lands. It guarded' against abuse of the power, however, by requiring that “ so much of the lands, interest, rights and privileges,” as were conferred by Congress to aid in the construction of the North-East and South-West railroad, should be “used and applied by said company v/pon the terms, conditions cund restrictions, in said act of Congress contained.” The terms of the act of Congress were, “ That a quantity of land not exceeding one hundred and twenty sections, * * included in a continuous length of twenty miles, * * may be sold; and 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 another quantity of land hereby granted, not to exceed one hundred and twenty sections for * * said road, having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles, * * may be sold ; and so on, from time to time, until said road is completed ; and if any of said road is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States.” The same provision is found in the reviving act of 1869, except that .only three years are allowed for the completion of the road.

The following propositions may be asserted, based on these several enactments: That the right to the lands granted vested in the State from the date of the.grant, subject to be devested by action taken therefor, provided the road was not completed within the time specified ; in which event, the undisposed, of lands reverted t®, and vested in .the United States Government : That this right did not, by the mere force of the grant, attach to any defined, specified- sections of land; but, when the line of the road was definitely fixed, the right attached specifically to the odd sections of the unsold public domain, lying within six miles on either side of the fixed line of the railroad : That the State was charged with the administration of this fund, and the execution of this trust, limited in its exercise by the-restrictions, and, in its application, to the purposes, expressed in the acts of Congress: That the State was clothed with the absolute power to sell one hundred and twenty sections, within a continuous length of twenty miles of the railroad, — this, to aid in the construction of twenty continous miles of the railroad ; but could make no further sale, until the Governor of the State certified to the Secretary of the Interior that twenty continuous miles of said road was completed: That when the Governor so certified, then the act of Congress gave the State power to sell another one hundred and twenty sections of the land granted, included within twenty continuous miles; and so on, until the road was completed; That if the road was completed within the time prescribed, then the the indefeasible ownership in the lands undisposed of vested in the State, or its appointee; and if not so completed, then the unsold lands, no matter in what section of twenty continuous miles located, reverted to the United States: That sales and conveyances of lands made in the first hundred and twenty sections, included in a length of twenty continuous miles, or those in any subsequent length of twenty continuous miles, sold pursuant to the certificate of the Governor to the Secretary of the Interior, that a length of twenty continuous miles of the road had been completed, would vest in the purchaser all the title of Federal and State Governments, whether the railroad was ever completed or not.

The joint resolutions of the Alabama legislature, approved January 30th, 1858 (Pamph. Acts, 430),' are very general in their terms. Speaking of the lands we are considering, their language is, they “are hereby disposed of, granted to, and conferred upon the North-East and South-West Alabama Bailroad Company.” These are strong words of grant and disposition, and, ordinarily, would convey all the title of the grantor! But, it must not be forgotten that the State held these lands in trust for a specified, public purpose. Congress confided the administration of - this trust to the State, and clothed the State with the title to the lands. It imposed restrictions in the performance of this trust, which the State itself must observe and keep, and could not delegate to another any power to disregard them. Beyond the first hundred and twenty sections, as we have said, the State itself had no .authority to sell the lands, except in sections of twenty miles, as the work progressed. It could not part with the limited title it held, even to the railroad, beyond the first twenty miles. If could not part with the trust Congress had clothed it with. The joint resolutions could and did empower the railroad company to dispose of the first hundred and twenty sections, of which the State had unrestricted power of disposition; and, after the first twenty consecutive miles of the railroad were completed, and so certified by the Governor to the- Secretary of the Interior, they authorized the railroad to sell another hundred and twenty sections, included within another length of twenty continuous miles.. And if the railroad was fully completed within the time prescribed, and there remained any portion of the granted lands undisposed of, the joint resolutions would and did vest the title to such undisposed of lands in the railroad company. This, because the State would then have fully discharged and performed the trust confided to it, and there would remain in it nothing but a property interest.

In Farnsworth v. Minn. & Pacific R. R. Co., 92 U. S. -65, tlie Supreme Court, speaking of a grant like the-present, said: “ The act of Congress, granting lands to the Territory of Minnesota, imposed conditions upon their alienation, except as to the first one hundred and twenty sections, which the Territory could not disregard. It declared, that the lands should be exclusively applied to the construction of the road in aid of which they were granted, and to no other purpose whatever, and should be disposed of only as the work progressed. It provided that their sale should be made in parcels, as specified portions of the road were completed, and only in that manner. The evident intention of Congress was, to secure the proceeds of the lands for the work designed, and to prevent any alienation in advance of the construction of the road, with the exception of the first one hundred and twenty sections. The act made the construction of portions of the road a condition precedent to a conveyance of any other parcel by the State. No conveyance, in disregard of this condition, could pass any title to the company.”

This case is not governed by the principles which controlled in A. & F. F. R. Co. v. Burkett, 46 Ala. 569.

From the foregoing principles it is manifest, that the legal title to the lands in controversy remained in the State of Alabama, until the railroad was completed. Till then, the State alone could maintain suit for the possession. The right of the lessors of the plaintiffs to bring this action did not accrue until the completion of the railroad. That was less than ten years before this action was brought; and inasmuch as time runneth not against the State, the ten years statute of limitations is no defense to this action.

Reversed and remanded.

Somerville, J., not sitting.