Spaulding v. Martin

By the Court,

On the 8th day of August, 1846, Congress passed an act granting to the state of Wisconsin on her admission into the Union, a quantity of land equal to one half of three sections in width on each side of the Fox river, reserving the alternate sections to the United States, for the purpose of aiding in the improvement of the navigation of the Fox and Wisconsin rivers. The lands were to be selected under the directions of the Governor of the state, which selections were to be approved by the President. The state ac*272cepted the grant, and the Governor selected the odd sections, ■which selection the President approved. Section No. 33, in township No. 13, north of range No. 9 east, was within the three sections in width from the Pox river, but in 1835 the President had, by authority of law, duly reserved it for military purposes; and at the time of the grant to this state, and the selection of the odd sections by the Governor, it was occupied by the United States as a military reservation, known ás Fort Winnebago. It was subseqently abandoned as a military reservation, and sold by the Secretary of War, under the act of March 3, 1819, authorizing the sale of such military sites as had become useless for military purposes. At this sale the defendants became the purchasers of the lots in controversy in this suit, which are a part of that section. This sale took place in 1854. In 1857 the Governor made a special selection of this section under the grant, which selection the President has never approved.

The plaintiffs, as trustees of the Fox and Wisconsin River Improvement Company, which was entitled to all the rights which the state acquired under the grant, brought this action of ejectment to recover possession of the premises. The sole question in the case is, whether this section passed to the state by virtue of the grant, the selection of the odd sections by the Governor, and the approval of the selection by the President ? The subsequent special selection never having been approved, can have no effect in its determination.

The title to this section was in the United States at the time of the grant, it was within the general limits of the grant, and it was within the letter of the selection and approval of the odd sections. It undoubtedly passed to the state, unless the fact that it was at the time, a military reservation, occupied as such by the United States, prevented that effect. And we think it did.

The counsel for the plaintiffs conceded that the object to *273be aimed at in construing this act of Congress, as in all others, was the intent of Congress. And this being conceded, there seems to be no room for doubt, that Congress did not intend under the general terms of this law, to divest the United States of title to those specific portions within the limits of the grant, which had been previously set apart for public use, and were in actual occupation by the government for military purposes. On a bare statement of the facts, every mind perceives at once that this section might be brought within the letter of the grant by selection and approval, yet sees with equal clearness, that it was obviously outside of its spirit and intention. This conclusion seems irresistible from a moment’s consideration of the general policy pursued by the government of the United States in disposing of its lands, and the difference between the purposes for which it holds the general body of those lands, and those for which it holds such as it actually occupies for some public purpose. The original title to the vast body of wild lands lying in the new states and territories, subject to such rights as are recognized in the Indian tribes, is in the United States. In respect to these lands it has pursued a wise and liberal policy. It has caused them to be surveyed as the advancing tide of settlement required, has disposed of them at small cost to individuals, and has frequently granted large tracts to aid in various public improvements. This has been and is well understood to be the purpose for which the government holds these lands. And the phrase “ public lands,” has a well known signification, limited to these only.

But on the other hand the government of the United States has need of specific portions of land in various parts of the country, usually small tracts, for military or other purposes, necessary for the actual transaction of the business of the government. It has provided by law for the reservation of such tracts. They are known as “ reservations,” and ' *274there is a significance in the word. Reserved from what ? Obviously reserved from disposition in the manner and for the purposes for which the general body of the public lands are disposed of. The very necessities of the government with respect to these reservations, take them out of the main body of public lands, and of the policy applicable thereto.

When the government therefore, obviously in pursuance of its general policy in respect to its public lands held for sale, makes a grant to the state of large quantities, reaching through an extensive tract of country, where it has large bodies of those lands, it is impossible to believe they intended to grant those tracts which had been set apart for public usa On the contrary such a grant can be reasonably construed as referring only to those lands within the policy which induced it. And it must be assumed that these reservations were not specifically excepted in the grant, for the reason that they were so obviously outside of its scope and intent, that such exception was not supposed to be necessary. And this view is sustained by the only authorities that have ever passed upon the question. In Wilcox vs. Jackson, 13 Peters, 498, the Supreme Court of the United States used the following language : "We go further and say that whenever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and that no subsequent law or 'proclamation, or sale would be construed to embrace it, or to operate upon it, although no reservation were made of it.”

Counsel suggested that this question was not in that case, and it was not necessary for the court to pass upon it. But whether necessary or not, we consider their rule of construction just and reasonable, and for that reason adopt it.

The Case of the State vs. Delesdenier, 7 Texas, 76, is also an authority to the same eifect. The islands had there been *275reserved from sale, by law. Subsequently there was further legislation in respect to the public lands, and with a repealing clause as follows: “ And all laws heretofore enacted on the subject of public lands shall be and they are hereby repealed.” A party having scrip which purported to authorize him to locate it on any of the public lands, located it on an island and obtained a patent. The court conceded the law reserving the islands to be within the language of the repealing clause, but held that it was not the intent to repeal it, and that this clause was to be limited by the general scope and object of the subsequent legislation where it was found, which obviously did not extend to a change of the public policy, with respect to the islands. And they adopt the language of the Supreme Court of the United States above-quoted.

It was claimed on the argument that there is no reason fora distinction between a military reservation, and an Indian, reservation. And the remarks of this 'court in the case of: Veeder vs. Guppy, 3 Wis., 502, where it is assumed that Indian reservations passed by the grant, were relied on. The ■ opinion of the Attorney General of the United States to the same effect was also cited. But if that doctrine is to be-sustained, we apprehend it can only be upon the idea that-the right of occupancy by the Indians is regarded as merely of a temporary character, and that the government itself- by the policy which it has pursued towards that disappearing race, has been in the habit of removing them from place to place, and extinguishing their right of occupation, to make room for the advance of civilization. Such having been its practice, there may be ground for saying that Congress intended to grant those lands, and proceed to extinguish the Indian right so as to give it full effect. And it is only upon this view that their right is of a temporary character merely, that the assumption can be maintained at all. For if it was *276otherwise, if Congress had granted them rights of a permanent character, it is difficult to see how those rights could be defeated by a subsequent grant to others, unless they too are to be placed in that category of human beings having no rights which white men or governments are bound to respect

Conceding therefore that it may be successfully maintained, that the Indian right in their reservations is not of such a character, as to exclude the idea that Congress intended to convey those reservations by the grant, we do not think it would at all follow that the same could be said as to reservations for the very purposes of the government itself. The purposes for which it holds these, utterly excludes the idea of an intention to grant them by general words; and its practice in respect to them has never been such as furnishes any support for a contrary position. And the understanding of all the parties concerned, the officers of this state as well as others, was in accordance with this view. No claim was set up under the grant and selection, to this section, so long as it was occupied by the government as a military post; and the parties who became subsequently desirous of including it, seemed to suppose that neither the governor in originally selecting ■the odd sections, nor the President in approving that selection, ■'had reference to or intended to include this. Because after it was abandoned as a military reserve, the governor, probably at the request of parties more particularly interested, made a special selection of this section, which was never approved, ■and which was entirely unnecessary if the construction contended for by the plaintiffs, is correct

We are of the opinion therefore that the selection, of which the tract in question was a part, did not pass to the state, but remained in the United States, subject to be disposed of by that government as it should see fit, in case it no longer ■desired to hold it for public use.

The judgment must be affirmed with costs.