Cal. Artificial Stone Paving Co. v. Molitor, 113 U.S. 609 (1885)
Case details
Citation
113 U.S. 609
Full caption
CALIFORNIA ARTIFICIAL STONE PAVING COMPANY v. MOLITOR. IN ERROE TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA. SAME v. SAME.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Mar. 2, 1885
CALIFORNIA ARTIFICIAL STONE PAVING COMPANY v. MOLITOR.
IN ERROE TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF CALIFORNIA.
SAME v. SAME.
APPEAL FROM THE SAME COURT.
Submitted November 25,1884.—Decided March 2,1885.
A certificate of division of opinion under § 652 Rev. Stat., can be resorted to only when “ a question ” has occurred on which the judges have differed, and where “ the point ” of disagreement may be distinctly stated. It cannot be resorted to for the purpose of presenting questions of fact, or
mixed questions of fact and law, or a difference of opinion on the general case.
vol . cxni—39 p. 610When there is reasonable ground to doubt as to the wrongfulness of the conduct
of a defendant in a suit in equity to prevent the infringement of a patent, the process of contempt should not be resorted to to enforce the plaintiff’s rights. Plaintiff obtained a decree in equity against defendant as an infringer of plain-
tiff’s rights under a patent for an improvement in pavements. Defendant continued to lay pavements. Plaintiff proceeded against him for contempt, alleging that he was still using plaintiff’s process. Defendant denied the allegation, and answered that he was using a process different from that which had been adjudged to be an infringement. On this question there was a division of opinion in the court below. Held, That the process of contempt is not an appropriate remedy.
This was a suit to enjoin against the use of a patented invention and for an order to show cause why defendant should not be punished for contempt. The facts which make the case are stated in the opinion of the court.
Mr. M. A. Wheaton for plaintiff in error and appellant.
Mr. John L. Boone and Mr. E. M. Marble for defendant in error and appellee. •
Mk . Jus tic e Bradle y delivered the opinion of the court.
A bill was filed by the appellant in this case against the appellee, complaining that the latter had infringed, and continued to infringe, certain letters patent granted to one John J. Schillinger, and which had been assigned for the State of California to the complainant. The patent was for an improvement in concrete pavement, and was originally issued July 19, 1870, and reissued May 2, 1871. The improvement, as described in the reissued patent, consisted in laying the pavement in detached blocks, separated from each other by strips of tar-paper, or other suitable material, so as to prevent the blocks from adhering to each other. As stated in the specification, “ the paper constitutes a tight water-proof joint, but it allows the several blocks to heave separately from the effects of frost, or to be raised or removed separately, whenever occasion may require, without injury to the adjacent blocks. Prior to this invention, it seems, from the statement of facts p. 611made by the court, that concrete pavements had been made in one continuous sheet, without being divided into blocks, whence they were liable to crack in irregular directions, and to break up in such a manner as to render them useless. The specification of the reissued patent contained the following clause: “ In such cases, however, where cheapness is an object, the tar-paper may be omitted, and the blocks formed without interposing anything between their joints as previously described. In this latter case the joints soon fill up with sand or dust, and the pavement is rendered sufficiently tight for many purposes, while the blocks are detached from each other, and can be taken up and relaid, each independent of the adjoining blocks: ” but this clause had been disclaimed by filing a disclaimer in the Patent Office. The patent had two claims, as follows:
“ 1. A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.
“ 2. The arrangement of tar-paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purposes set forth.”
The defendant answered the bill, denying the validity of the patent and denying infringement, and declaring that the concrete pavements made by him were made under and in accordance with certain letters patent granted to one J. B. Hurlburt, April 20, 1875, the process of which is described in the answer, as follows:
“ The said Hurlburt invention is a novel method of forming blocks of artifical stone or cement pavement, whereby they are prevented from becoming uneven by sinking below or rising 4 above a common plane, and consists in bevelling the edges of the blocks so that they will measure more across their under side in one direction and less across their upper side than across their under side in the other or opposite direction; and also consists in the novel construction of a forming frame whereby the blocks are bevelled as devised by using the different sides of the frame alternately; and also in the novel construction of a parting strip, whereby the colors are kept separate, showing a straight line between the blocks and while forming their edges p. 612$12 OCTOBER TERM, 1884.
in actual contact, the same strip being of great service to rest a straight edge upon while bevelling the block in process of formation, and that by said invention the process of laying cement pavements saves from 10 to 15 per cent, in cost of labor over any other known process, entirely dispenses with tar-paper or any equivalent and all other expensive superfluities, and makes a close-bevelled joint, it being impossible to raise, or attempt to raise, any separate piece of work without chiselling and digging and materially injuring adjacent work.”
What the proof was as to the actual process employed by the defendant, whether it strictly accorded with Hurlburt’s plan or not, does not distinctly appear. The appellee’s counsel in his brief states that the respondent was originally adjudged to have infringed the rights secured by the patent, by reason of having pressed into the joints made by the cutting of the large sections into blocks with a trowel, a fine concrete which was held to be the equivalent of the tar-paper, as it accomplished the objects claimed to be gained by the patented invention, viz., producing a suitably tight joint and yet allowing the blocks to be raised separately without affecting the block adjacent thereto, and allowed the several blocks to heave separately from the effects of frost. But this fact is not shown by the record before us, and we are in the dark as to what particular form of pavement was adjudged by the court to have been an infringement of the patent sued on. We only know that, proofs having been taken and the cause heard, the Circuit Court, on September 10, 1881, decreed as follows:
“ That the reissued letters patent No. 4364, granted and issued on the 2d day of May, a .d . 1871, to John J. Schillinger, of New York, being the patent referred to in the bill of complaint herein, are good and valid in law. . . . That the said defendant, Charles A. Molitor, has infringed said reissued letters patent, and upon the exclusive rights of the complainant under the same, that is to say, by making or selling one or more artificial concrete cement pavements within the State of California, and while the complainant was the owner of said reissued letters patent, as charged in said bill of complaint. . . . And that a perpetual injunction be issued in this suit against the said p. 613defendant, Charles A. Molitor, restraining him, his agents, clerks, servants, and all claiming or holding under or through him, from making, selling, or using, or in any manner disposing of any artificial stone-block pavements embracing the invention and improvements described in the said reissued letters patent, pursuant to the prayer of the said bill of complaint.”
Had the defendant continued to make concrete pavements in the manner set up in his answer, or in the manner in which it was proved he did make them, and which the court decided to be an infringement, there could have been no doubt that he would have violated the decree; but, it would seem, that he varied his mode of making the pavement by ceasing to make it in separate and detached blocks, and only making a mark or indentation on the surface whilst in a plastic state with a trowel or marker extending to a depth of from one-eighth of an inch to an inch, and thus giving the pavement the appearance of being made in detached blocks, and, in fact, answering all the purposes of detached blocks, the crease on the surface being sufficient to produce the results obtained by Schillinger’s process.
In October, 1883, more than two years after the decree was entered, the complainant obtained a rule on the defendant to show cause why he should not be punished for a contempt of court in disobeying the decree; the alleged contempt consisting of the construction by the defendant of concrete pavements in the manner last mentioned, to wit, at Redwood City, in San Mateo County. Of course, the question was at once raised whether the'process now used by the defendant was an infringement of the patent. The judges being opposed in opinion, a decree was made in conformity with that of the Circuit judge, declaring that the pavements thus constructed by the defendant did not infringe the patent, that there was no violation of the injunction, and that the order to show cause be discharged. A certificate was thereupon made, showing the points on which the judges disagreed, and the cause has been brought here both by appeal and by writ of error—brought in both ways, as counsel state, because of the uncertainty as to which was the right method.
For the purpose of showing how the points of disagreement arose, and of furnishing materials for deciding them, the cirtificate exhibits the record and facts upon which (it is stated) the matter was heard below, consisting of—
1st. The bill, answer, replication, decree and injunction, and the order to show cause why the defendant should not be punished for contempt.
2d. A statement of facts deduced by the court below from the evidence in the case, and the report of a master. This statement embraces a copy of the reissued patent of Schillinger, with the drawing's annexed thereto, and a statement deduced from the testimony, describing amongst other things, the manner in which the defendant, after the entry of the decree, constructed a certain pavement in Redwood City, to wit, substantially as before mentioned. The statement closes with the following declaration, to wit:
“ While the blocks laid in strict accordance with the specifications in the Schillinger patent can be more readily taken up, still the cutting and marking, or the mere marking of the surface with the marker alone, as described, affords, to a very large extent, the advantages mentioned obtained by the use of the Schillinger patent, the additional cutting with the trowel, during the process of formation, to a greater or less extent, increasing those advantages. The Exhibit C, offered as follows, is a photograph of the sidewalk as laid by defendant Molitor, claimed to be an infringement of the patent in question.”
The photograph exhibit is annexed to the statement.
The certificate then concludes as follows:
“ At the hearing of said order to show cause, at the present term of the court, upon said record, and upon the facts hereinbefore stated, there occurred as questions arising thereon—
“ 1. Whether the laying of said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface by cutting across the surface of the larger blocks with a trowel, and afterwards running the marker along the line of the cutting with the trowel, in all respects as hereinbefore stated, constitutes an infringement of the patent to Schillinger set out in this certificate ?
Opinion of the Court. ,
“2. Whether the laying of the said concrete pavement of plastic material on the ground in the manner stated, and dividing it into smaller blocks upon the surface, by cutting across the surface of the larger blocks by running the marker, without any other cutting with a trowel or other instrument than the marker described, across the blocks, on a line previously marked, as a guide, in all respects in the manner as hereinbefore stated, thereby controlling the line of cracking, and obtaining in a greater or less degree the advantages pertaining and belonging to the pavements laid in all respects in accordance with the specifications of said Schillinger patent, constitutes an infringement of said patent ?
“3. Whether the defendant Molitor, by constructing the said pavement in all respects in the manner hereinbefore stated, is guilty of violating the injunction granted and made perpetual by the decree in this case ?
“ Upon which said several questions and upon each of them the judges were divided in opinion.”
These are the questions which we are now called upon to answer.
We are met, however, at the outset, by a preliminary question, to wit, whether the points thus presented by the certificate of the judges below come within the meaning of the statute which authorizes this court to decide questions of law on which the judges of the Circurt Court are opposed in opinion. It is not a difference of opinion on the general case which may be thus certified. Such a difference would properly result in a decree for the defendant, or party holding the negative, subject to an appeal to this court in the ordinary course. It is only a difference on a special point of law which can be distinctly stated, that may be certified to this court under the statute. § 652 Rev. Stat, declares that when a judgment or decree is entered in a civil suit, in a circuit court held by two judges, in the trial or hearing whereof any question has occurred upon which the opinions of the judges were opposed, the point upon which they so disagreed shall be stated and certified, &c. The language is copied from the act of April 29, 1802, § 6, 2 Stat. 159, and shows that a certificate can only be resorted to when p. 616“ a question ” has occurred on which the judges have differed, and where “the point” of disagreement may be distinctly stated. This court has frequently held that the “question” referred to must be a question of law, and must be capable of being presented in a single point. Chief Justice Marshall, in Wayman n . Southard, 10 Wheat. 1, 20, said: “ The law which empowers this court to take cognizance of questions adjourned from a circuit, gives jurisdiction over the single point on which the judges were divided, not over the whole cause.” In Dennistoun v. Stewart, 18 How. 565, the matter is examined with precision. In that case the judges differed in opinion as to the charge which should be given to the jury upon the evidence adduced. The evidence was set forth in the certificate, and the points upon which the judges differed as to the charge to be given were stated. The court, speaking by Mr. Justice Daniel (p.* 568), recapitulated the interpretations which had been given to the act in reference to the requisites of its jurisdiction on such certificates. 1. They must be questions of law and not questions of fact—not such as involve or imply conclusions or judgment by the judges upon the weight or effect of the testimony or facts adduced in the cause (referring to- Wilson v. Barnum, 8 How. 258). And the question on which the judges differed must be stated; not, whether a demurrer made on several grounds should be sustained (referring to United States v. Briggs, 5 How. 208). 2. The points stated must be single, and must not bring up the whole case for decision (referring to United States v. Bailey, 9 Pet. 257; Adams v. Jones, 12 Pet. 207; White v. Turk, 12 Pet. 238; Nesmith n . Sheldon, 6 How. 41; Webster v. Cooper, 10 How. 54). And, inasmuch as the certificate in that case (Dennistoun n . Stewart} did not present a single or specific question of law arising in the progress of the cause, but referred to this court the entire law of the case as it might arise upon all the facts supposed by the court, the case was remanded to the Circuit Court to be proceeded in according to law, without any answer to the questions propounded.
The cases and points adjudged on the subject are very fully rehearsed by Mr. Justice Swayne in Daniels v. Bailroad Co., p. 6173 Wall. 250. That was an action for an injury caused by a collision of railroad cars, and, after reciting the evidence, the certificate stated that this was all the evidence, and thereupon it occurred as a question whether, in point of law, upon the facts as stated and proved, the action could be maintained, and whether or not the jury should be so instructed; and, on this Question, the judges were opposed in opinion. The court refused to consider the case, and dismissed the certificate.
The case of Wilson v. Barnum, 8 How. 258, is especially worthy of note in this connection. The question certified in that case was whether, upon the evidence given, the defendant infringed the complainant’s patent. Chief Justice Taney, delivering the opinion of the court, said: “ The question thus certified is one of fact, and has been discussed as such in the arguments offered on both sides. It is a question as to the substantial identity of the two machines. . . . The jurisdiction of this court to hear and determine a question certified from the Circuit Court is derived altogether from the act of 1802 [cited above], and that act evidently gives the jurisdiction only in cases where the judges of the Circuit Court differ in opinion on a point of law. ... In the multitude of questions which have been certified, this court has never taken jurisdiction of a question of fact. And in a question of law it requires the precise point to be stated, otherwise the case is remanded without an answer.” Pages 261-2. And the case was remanded for want of jurisdiction.
It seems to us that the certificate in the present case is obnoxious to the objections presented in the cases cited. The new controversy raised by the defendant’s construction of the pavement in Redwood City is substantially a new suit on the patent; and we are asked to decide it. We are asked to say whether a pavement constructed in such and such a manner is an infringement of the patent as the Circuit Court has Construed the patent. And this is a mixed question of fact and law. By the final decree in the case, made in 1881, the court-decided that the pavements which the defendant had been theretofore making did infringe the patent. How those pavements were constructed we are not informed; and therefore
Syllabus
we do not know what was the precise construction given by the court to the patent. Whether the new pavement, constructed in Redwood City, is an infringement or not, is just as much a mixed question of law and fact (as the case is presented to us) as was the question whether the pavements formerly constructed by the defendant were an infringement. It is a question which the Circuit Court must decide for itself in the ordinary way. If the judges disagree there can be no judgment of contempt; and the defendant must be discharged. The complainant may then either seek a review of that decision in this court, or bring a new suit against the defendant for the alleged infringement. The latter method is by far the most appropriate one where it is really a doubtful question whether the new process adopted is an infringement or not. Process of contempt is a severe remedy, and should not be resorted to where there is fair ground of doubt as to the wrongfulness of the defendant’s conduct.
The case must be dismissed, with directions to the Circuit
Court to proceed therein according to law.
WINONA & ST. PETER RAILROAD COMPANY u BARNEY & Others.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.
Argued December 4, 5, 1884.—Decided March 2,1885. If acts granting public lands to a State to aid in constructing railroads con-
tain words of description to which it would be difficult to give full effect if they were used in an instrument of private conveyance, the court in construing the acts will look to the condition of the country when they were passed, as well as to the purpose declared on their face, and will read all parts of them together. .By the act of March 3, 1857, Congress granted to the then Territory of Minne-
sota in aid of the construction of certain railroads certain alternate sections of lands along the lines of the roads, and further provided that “ in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts p. 619thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said Territory or future State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States . . . so much land . . . as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of preemption have attached as aforesaid,” &c. Held, That the indemnity clause in this act covers losses from the grant by reason of sales and the attachment of preemption rights previous to the date of the act, as well as by reason of sales and the attachment of preemption rights between that date and the final determination of the route of the road.
Railroad Co. v. Baldwin, 103 U. S. 126, distinguished.
The act of March 3, 1865, 13 Stat. 526, enlarged the grant made to Minnesota by the act of March 3,1857, from six sections per mile to ten sections; and the limits within which the indemnity lands were to be selected to twenty sections, and further provided, that “ any lands which may have been granted to the Territory or State of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of said grant or grants, shall be deducted from the full quantity of the lands hereby granted.” Prior to the act of 1865, a grant had been made to a railroad of lands located within the limits covered by said extension grant: Held, (1) That the grant by the act of 1857 was a grant of land in place, and not of quantity; (2) that the enlargement of the grant by the act of 1865 did not change its nature as to the six sections originally granted; (3) that as to the remaining four sections the grant was one of quantity, but to be selected along and opposite the completed road; (4) that where the earlier grant to aid in the construction of the Minnesota and Cedar Valley Bailroad interferes with the extension grant to the plaintiff in error, the earlier grant takes the land, and the extension must be abandoned.
On the 3d of March, 1857, Congress passed an act, 11 Stat. 195, making a grant of lands to the Territory of Minnesota to aid in the construction of certain railroads, with their branches, and, among others, a railroad from Winona, a town on the Mississippi River, via St. Peter, to a point on the Big Sioux River, south of the 45th parallel of north latitude, which is in the present Territory of Dakota. The language of the act is, “That there be, and is hereby, granted to the Territory • • . every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads and branches ; but in case it shall appear that the United States have, when the lines or routes of said roads and branches p. 620are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of preemption has attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said Territory or future State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of preemption have attached as aforesaid; which lands (thus selected in lieu of those sold and to which preemption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid and appropriated as aforesaid) shall be held by the Territory or future State of Minnesota for the use and purpose aforesaid; Provided, That the land to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches.”
On the 22d of May, of the same year, the legislature of the Territory of Minnesota passed an act to execute the trust created by the act of Congress, and, among other things, authorized a corporation previously formed—known as the Transit Railroad Company—to construct and operate the railroad. mentioned, with one or more tracks, from Winona to the Big Sioux River, south of the 45th parallel of north latitude, on the most direct and feasible route, by way of St. Peter, and granted to the company, in order to aid in the construction of the road, the interest and estate, present and prospective, of the Territory and future State in the lands ceded by the act of Congress, together with the rights, privileges and immunities conferred by it: This grant was made with a proviso that the land should be exclusively applied to the construction of the road, and to no other purpose. The Transit Railroad Company subsequently mortgaged to the State the lands it had thus received, together with its franchises, in order to obtain aid to construct the road and comply with the conditions on which the aid was given. It, however, made default, and the p. 621mortgage was foreclosed, and the property and franchises of the company were sold and bought in by the State. These proceedings took place before March 10, 1862.
The Territory of Minnesota became a State, and was admitted into the Union in 1857, and on the 10th of March, 1862, its legislature passed an act transferring to the Winona and St. Peter Railroad Company, the defendant below, the lands, property, franchises and privileges which the State had acquired from the Transit Railroad Company. Soon afterwards the defendant commenced the construction of the railroad, • and before March, 1865, completed it from Winona to Rochester, a distance of forty-nine and a half miles.
By an act passed on the 3d of March, 1865,13 Stat. 526, § 3, Congress increased the quantity of land granted to Minnesota by the act of 1857, to ten sections per mile for all of the roads and branches, subject to the same limitations attached to the original grant, and enlarged the limits within which indemnity lands were to be selected to twenty miles from the line of the roads. The third section provided “That any lands which may have been granted to the Territory or State of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of said grant or grants, shall be deducted from the full quantity of lands hereby granted, and that any lands which may have been so granted shall be strictly applied in accordance with the terms and conditions of said act or acts unless subsequently modified by law.” The sixth section provided that lands granted by the act, or previously granted to the Territory or State of Minnesota, “ shall be disposed of by said State for the purposes aforesaid only, and in manner following, namely: When the governor of said State shall certify to the Secretary of the Interior that any section of ten consecutive miles of said road is completed in a good, substantial and workmanlike manner, as a first-class railroad, and the said Secretary shall be satisfied that said State has complied in good faith with this requirement, the said Secretary of the Interior shall issue to the said State patents for all the lands granted and selected as aforesaid, not exceeding ten sections per mile, situated opposite p. 622to and within a limit of twenty miles of the line of said section of road thus completed, extending along the whole length of said completed section of ten miles of road, and no further. And when the governor of said State shall certify to the Secretary of the Interior, and the Secretary shall be satisfied that another section of said road, ten consecutive miles in extent, connecting with the preceding section, or with some other first-class railroad which may be at the time, in successful operation, is completed as aforesaid, the said Secretary of the Interior shall issue to the said State patents for all the lands granted and situated opposite to and within the limit of twenty miles of the line of said completed section of road or roads, and extending the length of said section, and no further, not exceeding ten sections of land per mile for all that part of said road thus completed under the provisions of this act and the act to which this is an amendment; and so, from time to time, until said roads and branches are completed.”
After the passage of this act the railroad company proceeded with the construction of the road westerly from Rochester, and before October 31, 1867, completed it to Waseca, one hundred and two miles and of a mile from Winona. Of this distance, as already stated, forty-nine and one-half miles were constructed before March, 1865, and the remainder, viz., fifty-three miles and iVo of a mile were constructed afterwards.
Lands had previously been granted to Minnesota for the construction of the Minnesota and Cedar Valley Railroad, and that road intersected the road of the defendant below between Rochester and Waseca. Its lands at the intersection were located within the limits of the extension made by the act of 1865 to the original grant of 1857.
On the 31st of October, 1867, the railroad company agreed with the plaintiffs, upon sufficient considerations, to convey to them as many acres of land, previously granted by Congress to Minnesota, as the company should receive from the State by reason of the construction already had of the portion of the Winona and St. Peter Railroad, estimated to be one hundred and five miles (but in fact only 102 miles TVo of a m^e), ex" tending westward from Winona, which amounted, as was p. 623supposed, to about six hundred thousand acres, and which were to be selected as follows :
“ Beginning at Winona, and from thence proceeding on each side of said railroad on a course running parallel therewith, and embracing each of the six, ten, fifteen and twenty-mile limits of the Congressional land grants, and in proceeding taking all lands within each and all of said limits which shall be received by said company under said acts of Congress, or either of them, it being understood that on each side of said railroad a uniform line of advance westwardly, embracing all the lands in said limits, shall be maintained as nearly as may be until as many acres shall have been selected and taken as the said company shall have received for the construction of the portion of said railroad now completed, which is estimated to be one hundred and five miles thereof, extending northerly and westwardly from Winona as aforesaid; it being understood that the said parties of the first part shall receive as many acres as shall be received by the party of the second part for the construction of said one hundred and five miles, or so much thereof as is now constructed, notwithstanding that under the acts of Congress the said lands are certified only upon the completion of sections of not less than ten miles of railroad, but reserving, excepting and deducting from the said numbers of acres all lands necessary for the track of said railroad, or the right of way, or depots or depot grounds, or other purposes incidental to the operation of said railroad. And the said party of the second part agrees to acquire the title of said lands as fast as it may be permitted to do under said acts of Congress, and to release and convey to the said parties of the first part, or to such person or persons, in such manner, and from time to time, as may be directed by the said parties of the first part, or their counsel, on the request of the said parties of the first part, or a majority of them.”
The execution, validity and obligation of this contract are admitted. The present suit was commenced to enforce its specific performance, and the only question between the parties is as to the quantity of land to be conveyed under it. Before the suit was commenced the company had conveyed to the p. 624plaintiffs, in part performance of the contract, 317,094 acres and of an acre.
As to that part of the road which was constructed under the act of 1857 from Winona to Rochester, the court held that under the act of Congress, the legislation of the State, and the contract with the company, the plaintiffs were entitled to six full sections of land for each mile of the road, and that for any deficiencies existing when the route of the road was definitely fixed, arising from previous sales by the United States of portions of the land, or previous attachment of preemption rights, whether such sales took place or preemption rights attached before or after the passage of the act, equivalent lands were to be selected from the indemnity lands provided. And as to that part of the road which was constructed westerly from Rochester to Waseca after the passage of the act of 1865, the court held that the plaintiffs were entitled to ten full sections per mile without any deduction for the lands which were located at the intersection of defendant’s road with the road of the Minnesota and Cedar Valley Railroad Company, and within the grant for the latter’s construction; and as the result of these rulings the court decided that the plaintiffs were entitled to a conveyance of 197,111 acres and of an acre, and entered a decree accordingly. 6 Fed. Rep. 802. From this decree the defendant appealed to this court.
Mr. Thomas 'Wilson for appellant.
J/r. Gordon E. Cole for appellee.
Mr . Jus tice Fiel d delivered the opinion of the court. He stated the facts in the foregoing language, and continued:
Two questions are presented for our consideration by the appeal in this case. The first relates to the deficiencies in the sections designated as granted in the act of 1857, arising from sales and the attachment of preemption rights previous to the final determination of the route of the road of the railway company, and the extent to which indemnity for these deficiencies may be supplied from other lands. The second relates to the p. 625resetvation from the operation of the act of 1865 of lands previously granted to Minnesota to aid in the construction of any railroad, which were located within the limits of the extension made by that act to the original grant, and its effect on the amount of lands claimed by the plaintiffs.
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 wTell as to the purpose declared on their face, and read all parts of them together.
The act of 1857 grants lands to the State to aid the construction of several railroads. These were to be built through large districts of country sparsely settled. Though the termini of each were designated, it was impossible, in advance of surveys, to designate the specific route of any one, even approximately. In many instances, where the sections would fall along such route, sales of land had already been made by the United States, and preemption rights of settlers had attached ; and before the route would be definitely fixed by surveys and maps, many other sales of land falling within the sections would probably be made and other preemption rights attach. It was not for the interest of the country that any portion of the public lands should be withheld from sale and settlement because, when the route of the roads was definitely determined, they might fall within the limits of the grants; nor was it the purpose of Congress to lessen the extent of its aid because it might ultimately be found that, at the time of its grant, or when the route was determined, portions of the land designated had already been disposed of or preemption rights had attached to them. The policy of the government was to keep the public lands open at all times to sale and preemption, and thus encourage the settlement of the country, and, at the same time, to advance such settlement by liberal donations to aid in the construction of railways. The acts of Congress, in effect,
vo l . cxm—40 p. 626said: “We give to the State certain lands to aid in the construction of railways lying along their respective routes, provided they are not already disposed of, or the rights of settlers under the laws of the United States have not already attached to them, or they may not be disposed of or such rights may not have attached when the routes are finally determined. If at that time it be found that of the lands designated any have been disposed of, or rights of settlers have attached to them, other equivalent lands may be selected in their place, within certain prescribed limits.” The encouragement to settlement by aid for the construction of railways was not intended to interfere with the policy of encouraging such settlement by sales of the land, or the grant of preemption rights. It follows that in our judgment the indemnity clause covers losses from the grant by reason of sales and the attachment of preemption rights previous to the date of the act, as well as by reason of sales and the attachment of preemption rights between that date and the final determination of the route of road.
It is to no purpose to say, against this construction, that the government could not grant what it did not own, and therefore could not have intended that its language should apply to lands which it had disposed of. As already said, the whole act must be read to reach the intention of the law-maker. It uses, indeed, words of grant, words which purport to convey what the grantor owns, and, of course, cannot operate upon lands with which the grantor had parted; and therefore when it afterwards provides for indemnity for lost portions of the lands “ granted as aforesaid,” it means of the lands purporting to be covered by those terms. Nor is it to any purpose to cite decisions to the effect that the grant is in prmsenti^ passing an immediate interest to the State. Such is undoubtedly the case, except as the operation of the grant is affected by the limitations mentioned; that is to say, when the sections granted are ascertained, the title to them takes effect as of the date of the grant, and cuts off ah intervening claimants except as to such portions as may have been sold, or to which pre-emption rights may have attached.
The language in Railroad Co. v. Baldwin. 103 U. S. 426, does not militate against this construction of the act. Itex' p. 627presses the general purpose of the reservation to keep the lands open at all times to settlement and preemption, and subject to appropriation for public uses until the route of the road is determined, but does not declare that lands previously sold, or to which the rights of preemption had previously attached, are excluded from the indemnity clause. The court was there drawing attention to the difference between the two grants in the act of Congress of July 23, 1866—that of sections of land and that of the right of way, the former being a present grant, except as its immediate operation was affected by the reservations, the latter being a present absolute grant without any reservation or exception.
The language in Leavenworth, Lawrence, dec., Railroad Co. n . United States, 92 U. S. 733, is quoted as sanctioning the position of the appellant. The court, speaking of the indemnity clause in the grant then under consideration, said its purpose was to give sections beyond the limit designated for those lost within it by the action of the government between the date of the grant and the location of the road. But it did not say that this was its only purpose; and, if the language must be construed as meaning that, it was a mere dictum, not essential to the decision of the case. The question was, what lands could be taken for indemnity, not for what deficiencies indemnity could be had. And it was held that an Indian reservation did not pass by the grant, and could not be taken as indemnity for the lands otherwise lost from it. There was no question before the court for what deficiencies indemnity could be supplied.
As to the effect of the reservation in the third section of the act of 1865, of lands previously granted to Minnesota, for the purpose of aiding in the construction of any railroad, there should be little doubt. The grant by the act of 1857 is one of description, that is, of land in place and not of quantity. It is of every alternate section, designated by odd numbers, for six sections on each side of the road, that is, of particular parcels of land lying within certain defined lateral limits to the road and described by numbers on the public surveys. And the indemnity clause provides for loss from those parcels by sales or the p. 628attachment of preemption rights before the route becomes definitely fixed—the indemnity lands to be selected within fifteen miles from the line of the road. The act of 1865 enlarges the quantity granted from six sections to ten, and the indemnity limits from fifteen miles to twenty. The character of the grant, so far as the six sections are concerned, is not thereby changed from one of lands in place, or by description, to one of quantity. The use of the terms “ quantity of lands granted ” in the first section, in referring to the amount granted by the act of 1857, is of no significance. It is the same thing as though the act had used the words “ six sections ” instead of the word quantity, and had said they should be increased to ten sections. The four sections are to be selected by the Secretary of the Interior beyond the six and within the twenty miles limit; and as to them the grant may be regarded as one of quantity, though the coterminous principle applies to them, and they are to be selected along and opposite the completed road.
The reservation of the lands previously granted to Minnesota from the grant of the additional four sections, that is, from the extension of the original grant of 1857, was only a legislative declaration of that which the law would have pronounced independently of it. Previous grants of the same property would necessarily be excluded from subsequent ones. The only embarrassment in the construction of the section arises from the inapt words used to describe the land from which the previous grant is to be deducted. The language of the section is “ that any lands which may have been granted to the Territory or State of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of such grant or grants, shall be deducted from the full quantity of la/nds hereby granted” The only lands granted by the act of 1865 are the four sections for each mile additional to the original six, accompanied with a right to select indemnity lands within twenty miles of the road. The words, “ the full quantity granted,” only denote the entire extension. To the extent of the previous grant that extension must be reduced, even if the whole be taken. Those words do not transfer the loss from the ten sections within which the grant falls p. 629to other sections along the line. The sections in which such grant falls are correspondingly reduced.
It follows that where the grant previously made to Minnesota to aid in the construction of the Minnesota and Cedar Valley Railroad interferes with the extension of the grant to the defendant by the act of 1865, the extension must be abandoned. The earlier grant takes the land which would otherwise be added to the original six sections. The court below therefore erred in holding that the Winona Company was entitled to ten full sections where such interference occurred, without deducting the lands previously granted to the State.
The cause must, therefore, go back that the proper deduction may be made by reason of this interference of the two grants, and the elder grant be deducted from the extension made by the act of 1865.
Decree reversed, and cause rema/uded, with directions to take further proceedings in accordance with this opinion.