Werling v. Ingersoll
The plaintiffs in error have brought this case here to review the final judgment of the supreme court of the state of Illinois affirming the judgment of the circuit court of La Salle county in favor of the defendants in error (plaintiffs below) in an action of trespass involving the title to lands in that county on the south side of the Illinois and Michigan canal. The action was brought for the purpose of testing the title, and was tried by the court upon an agreed statement of facts, a jury being waived. It appears from this statement that the plaintiffs in error are the agents of the state of Illinois, and acted as such in taking down and removing the fence hereinafter spoken of. The Illinois and Michigan canal is owned by the state of Illinois, and runs in a direction northeast and southwest through section 10, township 33 north, range 3 east, in La Salle county, Illinois. The lands in question are in this section, which was one of the sections of land reserved to the United States under the act of Congress approved March 2, 1827, hereinafter mentioned.

The plaintiffs in error claim that the state of Illinois owns a strip of land through that section on the south side of the canal, 90 feet in width, contiguous to such south side. The defendants in error claim that the land which is owned by the state south of the canal is bounded on the south by a line 17 instead of 90 feet south of the canal line; or, in other words, they claim that the north line of their land runs up to within 17 feet of the south side of the canal. The ownership of the land between these points from 17 to 90 feet south of the canal is disputed, the plaintiffs in error claiming it for the state, and the defendants in error claiming it for Mrs. Ingersoll, one of the defendants in error, who has had possession of the land for more than twenty years prior to November, 1897, and had prior to that time erected a fence on the line she claimed as her north line. This 17-feet strip it would seem has been occupied by the towpath.

In order to test the question of title, the plaintiffs in error, acting for the state, removed this fence, and thereupon the defendants in error, acting for the state, reclaiming the fence was on their line and was their property. The question depends upon the construction of two acts of Congress in connection with the action of the state authorities in relation thereto. They are (1) the act of March 30, 1822, chap. 14; and (2) the act of March 2, 1827, chap. 51. They are, so far as material, set forth in the margin.

Act of March 30, 1822. Chap. 14, 3 Stat. at L. 659.

An Act to Authorize the State of Illinois to Open a Canal Through the Public Lands, to Connect the Illinois River with Lake Michigan.

Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That the state of Illinois be, and is hereby, authorized to survey and mark, through the public lands of the United States, the route of the canal connecting the Illinois river with the southern bend of Lake Michigan; and 90 feet of land on each side of said canal shall be forever reserved from any sale to be made by the United States, except in the cases hereinafter provided for, and the use thereof forever shall be, and the same is hereby, vested in the said state for a canal, and for no other purpose whatever; on condition, however, that if the said state does not survey and direct by law said canal to be opened, and return a complete map thereof to the Treasury Department, within three years from and after the passing of this act; or if the said canal be not completed, suitable for naviThe plaintiffs in error claim that the title to the strip of land 90 feet wide through section 10 passed to the state by virtue of the act of 1822, while the defendants in error claim that the act of 1827 takes the place of the act of 1822, as to the grant of lands, and that under the act of 1827 every alternate section of the land along the line of the canal was reserved to the United States, and it is agreed that section 10 was among the sections so reserved.

After the passage of the act of Congress of 1822 the general assembly of the state of Illinois on February 14, 1823, passed an act in which provision was made for the appointment of a board of commissioners to consider, devise, and adopt such measures as might be requisite to effect a connection by a canal and locks between the navigable waters of Illinois river and Lake Michigan. It was made the duty of these commissioners to cause that part of the territory of the state which may lie open or contiguous to the probable courses and ranges of the canal to be explored and examined for the purpose of fixing and determining the most proper and eligible route for the same, and to cause all necessary surveys, etc., to be made, and to make calculations and estimates of the cost, and to make a plain and comprehensive report of all their proceedings under the act to the general assembly of the state at the commencement of the next session.

On January 13, 1825, the general assembly of the state amended a prior act, and appropriated about $2,000 for the payment of the actual expenditures made and liabilities incurred by the canal commissioners appointed under the act of 1823. On January 17, 1825, the general assembly incorporated the Illinois and Michigan Canal Company, and provided that the officers should obtain subscriptions to the stock, which should amount to $1,000,000, and in a convenient time thereafter, and after 10 per centum of the capital stock should have been paid in, the commissioners should proceed to construct a canal to connect the waters of the Illinois river and Lake Michigan; and the corporation was directed to proceed as rapidly to the completion of that object as might be deemed practicable and expedient, having in view the ultimate permanency of the work and the facility and safety of the communications. The size of the canal which the state had in contemplation is shown by reference to § 5 of the act. wherein it is provided that the canal shall be of a width of 40 feet at the summit, 28 at the bottom, and of sufficient depth to contain water at least 4 feet deep. There is nothing in the record to show that these dimensions were ever altered, although the act was repealed the next year, January 20, 1826.

In the preamble of the repealing act it was stated that the corporation had not performed any act by which the right of the general assembly to repeal its charter could be taken away, and it was stated that it was believed that the highly important object of the act referred to could be promoted with greater advantage to the public by having the contemplated canal constructed under the direction of the state, and therefore the act of incorporation was repealed.

The governor of the state was directed by § 2 of the repealing act to endeavor to ascertain the best terms on which loans could be obtained on behalf of the state for the purpose of constructing the canal and to report the same to the general assembly at its next session.

Pursuant to such direction, and on December 5, 1826, the governor reported that capitalists were reluctant to commit themselves to any specific terms on which they would be willing to make a loan, but from the best information which he had received it was confidently believed that if Congress would make a liberal grant of land, there would be no difficulty on the part of the state in obtaining a loan at 6 per centum; and the governor suggested the propriety of adopting measures at that session to commence the work, predicated upon a liberal grant of land by Congress, which it was expected that body would make. The general assembly at the same session adopted a memorial to Congress, in which it asked for a grant of land belonging to the United States for the purpose of aiding the construction of the canal, and in this memorial the following language was used:

'Your memorialists have caused the route to be explored and estimates to be made of the probable expense of the work; from which it appears that the cost of constructing the canal will not be less than $600,000, and may possibly amount to $700,000. To the end, therefore, that your memorialists may be enabled to commence and complete this great and useful work, we pray your honorable body to grant to this state the respective townships of land through which the contemplated canal may pass, the avails of which to be appropriated exclusively to the construction of said canal upon such terms and conditions as to your honorable body may seem proper.'

Congress on March 2, 1827, passed the act already set forth. On January 22, 1829, the general assembly passed an act providing for the construction of the Illinois and Michigan canal, and for the appointment of commissioners to effect that object. By § 5 the canal commissioners were directed to cause 'those parts of the territory of this state which is upon or contiguous to the probable course or range of said canal to be explored and examined for the purpose of fixing and determining the most proper and eligible route for the same; . . . and, as soon thereafter as they may be able to command sufficient funds and deem it expedient, shall commence the work of opening a canal, and constructing locks, aqueducts, and dams, and embankments, to effect a navigable communication between Lake Michigan and the Illinois river.'

By the 6th section the canal commissioners were directed, as soon as practicable and in conjunction with the authorities of the government, to select alternate sections of and granted to the state by the act of Congress of 1827, and when the selection was made, it was provided by § 7 that the commissioners should proceed to sell the lands thus selected and to make returns of the proceeds of such sale to the auditor of public accounts.

On September 23, 1829, the canal commissioners obtained from the secretary of state of the state of Illinois a map of the proposed route of the canal which had been made by J. Post and R. Paul, in the years 1823 and 1824, when proceeding under the act of Congress of 1822 and the state statute of 1823. This map was obtained for the purpose of using the same in aid of their work of examining and locating the canal route from Lake Michigan to the Illinois river, but the duty of determining and adopting a route rested with the commissioners appointed under this state act of 1829, no route having up to that time been adopted.

During the years 1823 and 1824 the state, through its above-named engineers, Post and Paul, had surveyed and marked through the public lands of the United States the route of the canal 'connecting the Illinois river with the southern bend of Lake Michigan,' though it did not return a map thereof to the Treasury Department within three years from March 30, 1822; but some time between December 25 and the end of the year 1829 the state did return to the Treasury Department of the United States 'a complete map of the route of the canal connecting the Illinois river with Lake Michigan.' The map filed in 1829 is known as the Thompson map, and is the first and only one, so far as the record shows, ever filed with the Treasury Department. It was filed in December, 1829, under the provisions of the act of 1827. This fact appears from the certificate of the Commissioner of the General Land Office, and also from that of the secretary of the canal commissioners of the state. Both officials assert that the map was filed 'under the provisions of the act of Congress approved March 2, 1827.' The general route is said to agree in substance with that laid down on the map made by Messrs. Paul and Post.

The state commenced the construction of the canal in the year 1837, and completed it in 1847, upon the route as shown by the Thompson map filed in the Treasury Department.

Mr. Howard M. Snapp for plaintiffs in error.

Mr. William M. Springer submitted the case for defendants in error.

Mr. Justice Peckham, after making the above statement of fact, delivered the opinion of the court: 

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