Doherty v. Northern Pacific Railway Company
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.

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:

'On July 2, 1864, the land in question was public land of the United States. On November 8, 1882, the petitioner Doherty made a homestead entry thereof, and thereafter complied with the homestead laws and received a patent from the United States purporting to convey the lands February 6, 1890. In December, 1883, the Northern Pacific Railroad Company took possession of the strip in controversy, and constructed a railroad upon it, and remained in possession, operating the railroad, until August 31, 1896, when all the property, rights, and franchises of said railroad company were sold to the appellant, the Northern Pacific Railway Company, a Wisconsin corporation, which is duly organized to operate said railroad, and has occupied said strip for railroad purposes. The Northern Pacific Railroad Company, of which the appellant is the successor in interest, was organized by and obtained its rights under an act of Congress approved July 2, 1864, and entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line, from Lake Superior to Puget Sound on the Pacific Coast by the Northern Route.' By the 1st section of this act a corporation created thereby was authorized to lay out and construct a continuous railroad and telegraph line, beginning at a point on Lake Superior in the state of Minnesota or Wisconsin; thence westerly upon the most eligible route as shall be determined by said company within the United States and north of the forty-fifth degree of latitude to some point on Puget sound. By the 2d and 3d sections of the same act the right of way through the public lands of the United States was granted to said railroad company, its successors, and assigns, for the construction of the line, and it was also provided that if its route should be found to be upon the same general line as the route of another railroad which owned a previous land grant from the United States, the amount of said previous land grant should be deducted from the amount granted by this act, provided that the railroad owning the previous grant might assign its interest to the Northern Pacific Railroad Company, or might consolidate, confederate, and associate with said company upon the terms named in the 1st section of the act. The lands granted to the Northern Pacific Railroad Company by the act amounted to ten alternate sections per mile on each side of the line within the states, and twenty alternate sections in the territories, with a 10-mile indemnity limit, and by resolution of Congress, May 31, 1870, an additional indemnity belt 10 miles in width was created on each side of the line. This act was accepted by the company within the time required by law. The act also required the company to procure legislative consent of the states through which it was to run before its construction, and in the year 1865 the legislatures of Minnesota and Wisconsin gave such consent. The Minnesota act, providing that if the eastern terminus of the road should be located east of the eastern boundary of Minnesota, then that the company should construct or cause to be constructed a railroad from its main line to the navigable waters of Lake Superior at some point within the state of Minnesota.

'In 1870 the company located its general route from the mouth of the Montreal river in Wisconsin, across Wisconsin and Minnesota to a point on the Red River of the North near Fargo, and transmitted a map showing this location August 13, 1870, to the Secretary of the Interior. This map showed the proposed general route to commence at the mouth of the Montreal river, thence a little south of west upon a direct line to a point directly south of and about 6 miles distant from the south end of Chequamegon bay; thence a little north of west upon a direct line crossing the state boundary between Wisconsin and Minnesota, at or near the point where the St. Louis river becomes such boundary. Upon receipt of this map the Secretary of the Interior transmitted it to the Land Commissioner, with instructions to withdraw from sale, homestead, and pre-emption all odd-numbered sections of land within 20 miles of the line within both states. This order was complied with by the Land Commissioner by directions given to the district land officers at Bayfield, Wisconsin. Such withdrawals were made and the price of the even-numbered sections was raised to $2.50 per acre, and thereafter large quantities of such land were sold by the government at the rate of $2.50 per acre. In 1882 a map of definite location of said railroad from a point upon the St. Paul & Duluth Railroad, now called 'Thompson Junction,' eastward to a point in section 15, township 47, N., of range 2 W., in the state of Wisconsin, was prepared and approved by the directors and certified and forwarded to the Secretary of the Interior. The line of definite location laid down on this map followed substantially the line of general location upon the prior map, but it turned to the north and touched Superior, and also Ashland, and stopped some 10 miles west of the mouth of the Montreal river. Upon receipt of this map of definite location the Land Commissioner, by direction of the Secretary of the Interior, adjusted the land grant in accordance with it, and prepared diagrams showing the limits of the grant and indemnity belts, and transmitted such diagrams to the district land officers with the proper directions as to the withdrawal of lands, which were complied with.

'August 2, 1884, the directors of the Northern Pacific Railroad Company adopted a resolution fixing the eastern terminus of the railroad at the city of Ashland, which resolution was duly certified and transmitted to the Commissioner of the General Land Office, December 3, 1884. 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, with instructions to adjust the grant on this basis. The point so fixed is on the line of definite location of July 6, 1882, but about 12 miles west of the east end of that line. The Northern Pacific Railroad Company constructed a continuous line of railroad from the city of Ashland to Puget sound, in all respects in accordance with its act of incorporation, and the whole line has been duly accepted by the President of the United States, as provided in that act. That portion of the road extending east from Thompson Junction was constructed upon the line of definite location shown in the map of 1882, and was constructed during the years 1881, 1882, 1883, and 1884.

'The 1st section extended from Thompson Junction to Superior, and was examined and reported favorably upon by commissioners in 1882, and the recommendations were approved by the President, September 16, 1882; the 2d section, extending from Superior to the Brule river, was constructed in the latter part of 1883, and crossed the land in question here, and was approved in like manner January 31, 1884; the 3d section extends from the Brule river to Ashland, and was approved in like manner February, 1885. It appears further that, March 6, 1865, one Joshua Perham, then the president of the Northern Pacific Railroad Company, transmitted to the office of the Land Commissioner a map purporting to show the proposed general route of the Northern Pacific Railroad. Upon this map there appeared two lines from a point in the present state of North Dakota eastward, one terminating upon Lake Superior at or near Duluth, and the other extending into Wisconsin some distance south of Lake Superior, and terminating at the mouth of the Montreal river, this last-named line being apparently partially obliterated by a wavy red line. This map was accompanied by a letter from Perham, stating that it shows the general line of the Northern Pacific Railroad from a point on Lake Superior in Wisconsin to a point on Puget sound. The Secretary of the Interior transmitted this map to the Land Commissioner, Suggesting the withdrawal of the lands along the line, but the Land Commissioner soon afterward transmitted a letter to the Secretary of the Interior recommending that the map be rejected, for the reason that the same did not comply with the rules of the land department, which recommendation was approved by the Secretary. There is nothing to explain the apparent alteration of this map, nor to show when it was made, and it is not shown that the directors of the company ever authorized the making or filing of the map, but it appears that the president of the company had no power to make or file it.

'By act approved May 5, 1864, Congress granted ten sections of land per mile to the state of Minnesota to aid in the construction of a railroad from St. Paul to Lake Superior. In the same year the legislature of Minnesota conferred this grant upon the Lake Superior & Mississippi Rialroad Company, a Minnesota corporation, and afterwards known as the St. Paul & Duluth Railroad Company. On January 1, 1872, this company had constructed and was operating a railroad from St. Paul to Duluth, by way of Thompson Junction, which is upon the St. Louis river, and is the point from which the Northern Pacific Railroad Company started to build its line westward. On the last-named date the Northern Pacific Railroad Company purchased a one-half interest in that part of this road extending from Thompson Junction to Duluth, for the sum of $500,000, and received a deed therefor. On the same day the two companies made a written agreement providing for the operation of trains and the maintaining of the road. On May 1, 1872, the Northern Pacific Railroad Company and the Lake Superior & Mississippi Railroad Company made a further agreement, by which the lines of the Lake Superior & Mississippi Railroad were leased to the Northern Pacific Railroad for an annual rental, the land grant of the Lake Superior & Mississippi Railroad being expressly excepted from the operation of the lease. Pursuant to this lease the Northern Pacific Railroad Company operated the entire railroad thus leased, from May 1, 1872, until February 1, 1874, when it surrendered the lines leased and relinquished all its interests under the lease, but surrendered no rights under the deed. On the 12th of May, 1874, the Northern Pacific Railroad Company and the Lake Superior & Mississippi Company made an agreement for the operation of the line from Thompson Junction to Duluth.

'It further appears that, by act approved May 5, 1864, the United States granted lands to the state of Wisconsin to aid in the construction of a railroad from Bayfield to Superior, but no road was constructed under this grant.'

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 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: 

Notes
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