[177 U.S. 421, 422] In the superior court of Douglas county, Wisconsin, in November, 1896, Andrew Doherty filed a petition asking for the appointment of commissioners to appraise certain real estate taken by the Northern Pacific Railway Company for a portion of its line passing through property alleged to belong to the petitioner.
The petition alleged that Doherty was and in fee simple of the north one half of the southwest quarter of section 4, township 47, range 11 west, in Douglas county, Wisconsin; that the Northern Pacific Railroad Company was a corporation duly authorized by the laws of the United States to construct and maintain a line of railway from a point on Lake Superior, in the states of Wisconsin or Minnesota, to some point on Puget sound, in the state of Washington; that some time during the year 1883 the said company had unlawfully laid its railroad track upon a portion of petitioner's land and had unlawfully entered upon and appropriated the same, without the consent or authority of petitioner, and had been in possession thereof ever since until about August 31, 1896; that on or about the last- mentioned date all the property, effects, rights, and franchises of the Northern Pacific Railroad Company had been transferred and sold to and purchased by the Northern Pacific Railway Company, and said railroad has ever since been operated and owned by the said the Northern Pacific Railway Company, which the petition alleged to be a domestic corporation, duly authorized by its charter and the laws of the state of Wisconsin to maintain and operate neither the said Northern Pacific Railroad neither the said Northern Pacific Railraod Company, nor its successor, the Northern Pacific Railway Company, has acquired title to said land, or made any attempt to acquire title thereto by purchase, eminent domain, or otherwise. The petition further alleged that the value of the land so taken and the damages occasioned by the taking thereof were less than $5, 000,000 and more than $100,000. Wherefore an order was prayed that commissioners be appointed to ascertain and appraise the compensation to be made, etc. [177 U.S. 421, 423] To this petition the Northern Pacific Railway Company made answer asserting title by virtue of the grant of right of way by 2 of the act of Congress of July 2, 1864, to the Northern Pacific Railroad Company, and of the purchase of the interest of the last-named company, etc.
The essential facts in the case were settled by a stipulation in writing, substantially as follows:
The superior court of Douglas county sustained the petition, and appointed commissioners as prayed for. An appeal was taken to the supreme court of Wisconsin, which court, on June 23, 1898, reversed the order of the superior court, and remanded the cause to that court with directions to dismiss the [177 U.S. 421, 428] petition. Northern P. R. Co. v. Doherty, 100 Wis. 39, 75 N. W. 1079.
Thereupon the cause was brought here by a writ of error allowed by the Chief Justice of the supreme court of Wisconsin.
Messrs. M. S. Bright, Charles W. Russel, and Crownhart & Foley for plaintiff in error.
Messrs. James B. Kerr and C. W. Bunn for defendant in error.
Mr. Justice Shiras delivered the opinion of the court:
It is conceded that Doherty, the plaintiff in error, owns the southwest quarter of section 4, township 47 north, of range of 11 west, in Douglas county, Wisconsin, having made a homestead entry thereof November 8, 1882, and obtained a patent therefor February 6, 1890.
The Northern Pacific Railway Company, the defendant in error, claims a right of way 400 feet in width over and across this quarter section, and has constructed and is operating its railroad thereon. It is not claimed that this right of way was acquired by purchase or condemnation, but it is claimed by virtue of the terms of the act of Congress, approved July 2, 1864, incorporating the Northern Pacific Railroad Company, and granting to it, among other rights and privileges, a right of way through the public lands of the United States. This act authorized the corporation, thereby created, to construct a railroad 'beginning at a point on Lake Superior in the state of Minnesota or Wisconsin' westward to 'some point on Puget sound,' and the controlling question in this case is whether the eastern terminus of the railroad constructed under the act is at Duluth, Minnesota, or at Ashland, Wisconsin. If at Duluth, then the company acquired no right of way over any public land in Wisconsin; but if at Ashland, then it did acquire a right of way over public lands in Wisconsin, including the land in question. [177 U.S. 421, 429] It is conceded that on August 2, 1884, the directors of the Northern Pacific Railroad Company adopted a resolution fixing the eastern terminus of the railroad at Ashland; that this resolution was transmitted to the Commissioner of the General Land Office; that thereafter the Commissioner prepared a diagram showing the final eastern terminus of the line at Ashland, and sent the same to the district officers at Bayfield, Wisconsin, with instructions to adjust the grant on this basis: that a continuous line of railroad from Ashland to Puget sound in all respects in accordance with the act of incorporation, and as depicted upon its map of definite location, has been constructed, and has been accepted as such by the President of the United States. Such concessions would seem to warrant a conclusion that the defendant in error is entitled, as matter of right, to maintain and operate its road upon a right of way over the land in dispute, and we are led to inquire why it is that such a conclusion is disputed.
And, first, it is claimed by the plaintiff in error that the Northern Pacific Railroad Company definitely located its eastern terminus at Duluth, January 1, 1872, when it purchased one half of the track and right of way of the Lake Superior & Mississippi Railroad Company from Thompson Junction to Duluth, and made a contract for operation of the line in common.
In reply to this claim the company denies that, by purchasing an interest in the line from Thompson Junction to Duluth, it was ever intended by the company to make Duluth the eastern terminus, or that the arrangement with the Lake Superior & Mississippi Railroad operated, as a matter of law, to fix and determine Duluth as the eastern terminus; and attention is called to the fact that it is provided in the act of July 2, 1864, that before the Northern Pacific Railroad Company could commence the construction of its road it should obtain the consent of the legislature of any state through which any portion of its line might pass. Such consent was obtained from the states of Wisconsin and Minnesota; and in the act of the latter state, granting consent, it was in terms provided 'that should the company elect to make the eastern terminus of said line east of the eastern boundary of the state of Minnesota, then, and in [177 U.S. 421, 430] that case, they shall construct, or cause to be constructed, a line of railroad from the said main line to the navigable waters of Lake Superior, within the state of Minnesota, of the same gauge as said main line, for which purpose the same powers, rights, and privileges are hereby granted to said company as they have or may have to construct said main line in the state of Minnesota.'
Evidently it was not intended by the legislature of Minnesota by this enactment to compel the railroad company to make its eastern terminus within the limits of that state. Indeed, the act recognizes the right of the company to elect to make its eastern terminus east of the limits of Minnesota.
It was, then, in compliance with the condition imposed by Minnesota, namely, that in case the railroad company elected to make its eastern terminus in Wisconsin, that the arrangement was made whereby the line from Thompson Junction on the main line to Duluth became, as to one half thereof, the property of the Northern Pacific Railroad Company.
We agree with the supreme court of Wisconsin in so regarding this transaction, and also in its holding that the arrangement between the Lake Superior & Mississippi Railroad Company and the Northern Pacific Railroad Company did not constitute a consolidation of the companies in any legal sense, so as to make the short line between Thompson Junction and Duluth a part of the trunk line contemplated by Congress.
When, in August, 1870, the company located its proposed general route, and when its map of such location was approved by the Secretary of the Interior, showing its eastern terminus to be in Wisconsin, it became obligatory on the company to comply with the condition imposed, in that event, to construct a branch line to Lake Superior within the limits of Minnesota, and hence the agreement with the Lake Superior & Mississippi Railroad Company.
It is next contended by the plaintiff in error that, even if Duluth is not to be regarded as the eastern terminus of the company's road, yet that when afterwards, in constructing its road eastward from Thompson Junction, the company's road reached the city of Superior, the latter thereby became the [177 U.S. 421, 431] point on Lake Superior which was to be regarded as the eastern terminus; that the city of Superior was the first point at which the Northern Pacific Railroad Company connected with Lake Superior by its own road, and it thereby became the initial point contemplated by the granting act.
In connection with this proposition it is necessary to take notice of certain legislation of the state of Wisconsin.
By an act approved April 10, 1865, the legislature of that state gave its consent, unconditionally, to the Northern Pacific Railroad Company to build and maintain its road within the state limits. Stat. 1865, chap. 465.
On March 25, 1872, the legislature passed an amending act, whereby the consent previously given to the Northern Pacific Railroad Company to construct and operate its road in the state of Wisconsin was made subject to certain conditions, among which were that the company should build and operate a line of railroad running from the junction of the said main line of the Northern Pacific Railroad Company with the Lake Superior & Minnesota Railroad to the bay of Superior, and should build and maintain at the latter point docks and piers suitable for the transfer of passengers and freight between the railroad and lake-going craft; and that until such connecting road and docks were constructed, it should not be lawful for the company to construct or maintain any other railroad in Wisconsin. Stat. 1872, chap. 139.
To comply with this legislation it was necessary for the company to alter the line of its road as defined by its map of general route, so that the same might touch the lake at the bay of Superior. But it does not follow that thereby the company abandoned its right to itself select the point of its eastern terminus. This and the similar legislation of Minnesota were not intended or regarded as taking away from the company its rights and powers under the act of Congress. They only imposed, whether lawfully or otherwise, certain conditions respecting branch line connections which the legislatures deemed desirable for local advantage.
Some reliance is placed upon two decisions of the Secretary of the Interior-the first rendered November 13, 1895, and [177 U.S. 421, 432] reported in volume 21, U. S. Land Dec. 412; the second, rendered August 27, 1896, and reported in volume 23, U. S. Land Dec. 204.
Those decisions were made by the Secretary in disposing of a list of indemnity selections filed by the Northern Pacific Railway Company, based on losses of lands within the place limits lying east of the city of Superior. The opinion of the Secretary was that because the company was empowered to locate and construct a line of railroad from a pointon Lake Superior to some point on Puget Sound, it had authority to touch the lake at only one point, and that, notwithstanding it filed a map of definite location from Thompson Junction to Ashland, the fact that the line so located and constructed touched the lake at the city of Superior precluded the company from extending its line eastward from that point. In his later decision the Secretary concluded that the transaction between the Lake Superior & Mississippi Railroad Company and the Northern Pacific Railroad Company was, in legal effect, a consolidation of the two corporations, and that, therefore, the eastern terminus of the Northern Pacific Railroad was definitely fixed at Duluth.
We do not care to repeat the considerations already advanced going to show that, in our opinion, the right of the railroad company, under the act of July 2, 1864, to select its eastern terminus at a point on Lake Superior in the state of Minnesota or Wisconsin, was not intentionally, or by operation of law, ended or determined by the company's compliance with the conditions sought to be imposed by the legislation of Minnesota and Wisconsin. The views of the supreme court of Wisconsin on this subject may be properly quoted: 'On March 6, 1865, one Josiah Perham, then president of the Northern Pacific Railroad Company, filed with the Secretary of the Interior a map showing a proposed route of the proposed railroad. On this map appear two lines from a point in North Dakota to Lake Superior, one ending at Duluth and one at the mouth of the Montreal river. This latter line is partially obliterated by a wavy red line through its whole length. It appears affirmatively that the president had no authority to make or file this [177 U.S. 421, 433] map, and that the directors never authorized it; and further, that on June 22, 1865, the map was rejected by the Land Commissioner and Secretary of the Interior because it did not comply with the rules and regulations of the land department. No further action was ever taken upon it, and it seems too plain to require argument that it can cut no figure in the case. All the subsequent maps made and filed by the corporation, as well as its recorded acts, show the clear intention to make the eastern terminus of the road in Wisconsin. In 1870 a map of general route was filed, showing the eastern terminus to be at the mouth of the Montreal river; upon receipt of which the odd-numbered sections of land within 20 miles of the line were withdrawn from sale, homestead, and pre-emption entry within the states of Minnesota and Wisconsin, and the price of land in the evennumbered sections was raised to $2.50 per acre, and large quantities sold by the United States at that price. In 1882 a map of definite location of the line from Thompson Junction eastward to a point in section 15, town 47, range 2 west of the fourth P. M. was filed in the land office at Washington. This line passed through Ashland and terminated a few miles east of that city. This map was approved, and the land grant adjusted in accordance therewith by the department. In August, 1884, the board of directors of the company, by formal resolution, fixed the eastern terminus of the road at Ashland, and a certified copy of the resolution was filed in the General Land Office in December, 1884, whereupon the Land Commissioner made a diagram showing the eastern terminus so fixed, and adjusted the grant in accordance therewith.
In a bill filed in the circuit court of the United States for the district of Minnesota by the United States against the Northern Pacific Railroad Company, the Northern Pacific Railway Company and others sought to have canceled and annulled a patent granted by the United States, on April 22, 1895, to the Northern Pacific Railroad Company, for lot 5 of section 29, township 54 north, of range 13 west, in the county of St. Louis and state of Minnesota, a tract of land situated more than 10 miles east of Duluth, which the bill averred to be the eastern terminus or eastern initial point of the grant to the Northern Pacific Railroad Company by the act of July 2, 1864. The bill alleged that the patent had been granted through inadvertence and mistake, and under an 'erroneous impression and mistaken belief that said tract of land was lying and being within the limits of the aforesaid grant to the Northern Pacific Railroad Company.'
The case was so proceeded in, on bill, answer, and an agreed statement of facts, that on February 20, 1899, the bill of complainant was dismissed for want of equity; and this decree was, on appeal to the circuit court of appeals for the eighth circuit, on July 10, 1899, by that court affirmed. United States v. Northern P. R. Co. 95 Fed. Rep. 865, 37 C. C. A. 290.
The controversy in that case involved the same questions as those we have been considering in the present case of Doherty, and the conclusions reached were that the land department committed no error of law when it held that the Northern Pacific Railroad Company had authority under its charter to locate its eastern terminus at Ashland, and made no mistake of fact when it found that the Northern Pacific Railroad Company [177 U.S. 421, 435] had actually selected Ashland as its eastern terminus. The facts and reasoning relied on by the respective parties were, in the main, the same with those that were relied on in the case in the supreme court of Wisconsin, now under review in this court.
The judgment of the Supreme Court of Wisconsin is affirmed.
Mr. Justice McKenna did not take part in the decision of the case.