Werling v. Ingersoll/Opinion of the Court
The plaintiffs in error claim that upon the passage of the above-mentioned act of Congress of 1822 the state of Illinois immediately became vested with the title to a strip of land 90 feet wide on each side of the route of the canal through the public lands of the United States from Lake Michigan to the Illinois river, and that the act of Congress of March 2, 1827, did not alter or in any way affect the provisions of the act of 1822, or take away the title which they claim had already vested in the state upon the passage of that act; that although the title to any specific portion of land under the act of 1822 was in the nature of a float until the route of the canal was surveyed and adopted and a map thereof made and filed in the Treasury Department, yet, when that was done, the title to the 90 feet on each side of the canal was vested in the state as of the date of the passage of the act.

The various land grants made by Congress to railroads are cited for the purpose of showing that the act of 1822 constituted a grant of lands in proesenti and absolute in character, although to be thereafter identified by future action. Schulenberg v. Harriman, 21 Wall. 44, 22 L. ed. 551; Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733, 741, 23 L. ed. 634, 637; St. Joseph & D. City R. Co. v. Baldwin, 103 U.S. 426, 26 L. ed. 578; United States v. Southern P. R. Co. 146 U.S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; Id. 168 U.S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18.

The language of the act of 1822, it will be observed, is somewhat peculiar, and differs from that generally used in the land grants to railroads, which usually contain the expression that 'there be and is hereby granted' to the railroad companies the lands mentioned, or words of similar import. In this act it is provided that '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 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, . . . if said ground shall ever cease to be occupied by and used for a canal suitable for navigation, the reservation and grant hereby made shall be void and of none effect. . . .'

By this language the strict technical title is not conveyed to or vested in the state. It is simply a provision withdrawing from sale this strip of land and vesting the use of it for a canal, and for no other purpose whatever, in the state, with a condition that if not so used the reservation and grant are to be void. If proceedings had in fact been taken under this act, the route surveyed and a map thereof made and filed in the Treasury Department in compliance with the provisions of the act, then the use of the land designated on the map so filed, for the purpose mentioned in the act of 1822, would very likely have vested in the state as of the date of such act. The action of the authorities on the part of the state, after the passage of the act of 1827 and up to the filing of the map in 1829, shows, however, that it was the act of 1827, and not that of 1822, which was in their contemplation when the map was filed in the Treasury Department.

During 1823 and 1824 a route was surveyed and marked through the public lands of the United States for a canal connecting the Illinois river 'with the southern bend of Lake Michigan,' but it does not appear that the route was ever adopted, or that a map of such route was ever filed. The map which was filed in 1829 purported to show the route of a canal connecting the Illinois river with Lake Michigan, omitting the expression 'with the southern bend of Lake Michigan,' which latter description, it is said, would, if closely and technically followed, have taken the canal into the state of Indiana. The route of the canal laid out on the map filed did connect the canal with the waters of Lake Michigan in the state of Illinois, but not in terms with the southern bend of that lake. It is claimed, however, that the two descriptions, 'the southern bend of Lake Michigan' and 'the waters of Lake Michigan,' are substantially identical, and that the route of the canal as marked on the map of 1829 is in all material matters the same as that surveyed under the act of 1822. However this may be, it cannot be denied that between 1822 and the passage of the act of Congress in 1827 no route had been adopted for the canal and no work of construction had been commenced thereon, although, as already stated, a route had been surveyed and marked; yet none had been adopted, and none was adopted until after the passage of the state act of January 22, 1829. This appears by § 5 of that act, in which the canal commissioners were authorized to explore, examine, and determine, and fix upon the most proper and eligible route for a canal, and to cause maps, surveys, profiles, etc., to be made, and thereafter, when they deemed it expedient and funds could be secured, they were authorized to commence the work of constructing the canal. The 6th section of the same act had special reference to the selection of the land granted by the congressional act of 1827.

The filing of a map with reference only to the act of 1827, specifying both the sections reserved to the United States and those granted to the state under that act, would not thereby fix and identify lands which had been mentioned, but not identified, in a different and prior act, and which were not referred to in any way in the map filed under the act of 1827. No lines showing the boundary of a strip 90 feet wide on each side of the canal were ever placed on the map which was filed in the Treasury Department in 1829,-the only map which was ever filed there. That map showed the proposed route and also the sections granted to the state and those reserved to the United States; and the right of way along the route would be taken to be for a canal of the proposed width as stated in the acts of the general assembly, and which width was accepted and acquiesced in by Congress and the government.

It was not until 1848,-eleven years after the work of construction was commenced and a year after the completion of the canal, as is stated by counsel for plaintiffs in error in his brief,-that a survey was made of the 90-feet strip on each side of the canal from one end to the other, and the lines of that survey marked on maps under the directions of the canal commissioners, and the maps and profiles of the survey filed in the office of the state canal commissioners, but not with the Commissioner of the General Land Office or in the Treasury Department at Washington. This action of the canal commissioners was a mere ex parte assertion made by state officials upon their own maps, nearly twenty years after the filing of the map in the Treasury Department, indicating a possible claim of right on behalf of the state, but never laid down on any map filed in Washington.

The differences between the two acts in question and their inconsistent provisions are noticeable. That of 1822 provides for the use of land through the whole of the public domain 90 feet wide on each side of the canal. That of the act of 1827 grants a quantity of land equal to one half of five sections in width on each side of such canal, and reserves each alternate section to the United States, etc. In the sections reserved, therefore, no title to or use of the 90 feet on each side of the canal is given, while in the alternate sections not reserved to the United States the whole title is granted to the state. The 3d section of the act of 1827 gives power to sell and give title in fee to the land granted, while the act of 1822 grants no title, and provides for resuming possession of the land if at any time the same is not used for a canal. The filing of a map under the act of 1827 would clearly not be a fulfilment of the provisions as to the filing made in the act of 1822.

The congressional act of 1827, nevertheless, implies by its language and subject-matter the consent of Congress to a right of way through the public lands, and the subsequent state act of 1829, in the 11th section, showed the width of the canal contemplated, which was the same as the prior and repealed act of 1825 provides for. Of course a towpath would be added. These two acts show the intention of the parties to proceed thereafter with reference to the act of 1827, and not under that of 1822. Work was not in fact commenced until in 1837.

When Congress under the act of 1827 granted the alternate sections to the state throughout the whole length of the public domain, in aid of the construction of the canal, it also granted by a plain implication the right of way through the reserved sections, for it cannot be presumed the government was granting all these alternate sections to the state for the purpose avowed, and yet meant to withhold the right to pass through the sections reserved to the United States along the route of the proposed canal. But the implication would not extend to the 90 feet on each side. It would extend to the land necessary to be used for the canal of the width contemplated, and that had been asserted in an act of the general assembly in 1825, and was subsequently reiterated in another act of that body (1829).

Upon all the facts in the case it is plain that the act of 1822 was mutually abandoned by the parties so far as concerned the land grant after the passage of the act of 1827, and that the right of way through the reserved sections was treated and regarded as impliedly granted by the latter act, under which the larger grant was made, and that the map was filed under that act, and none was ever filed under the act of 1822. The state never took title to the strip of land 90 feet wide on each side of the route of the canal through the public lands, so far as related to the sections reserved to the United States by the act of 1827, of which section 10 herein involved was one.

It is not a question of forfeiture of the grant under the act of 1822. There was no forfeiture; it was a mutual abandonment of that act for the act of 1827. Taking all the facts into consideration, the state never acquired an absolute title to the 90-feet strip, as by the language of the act of 1822 the use only was granted, and it required a subsequent filing of a map as provided for in that act before the right to the use was acquired and made definite and fixed as to any particular land; and before that time arrived the act of 1827 was passed, which was to a certain extent inconsistent with the former act, and the state in fact thenceforth proceeded under the later act, and filed its map thereunder and constructed the canal with reference thereto.

We think the judgment of the Supreme Court of Illinois was right, and it is therefore affirmed. 

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