48TH Congeess, ) HOUSE OF REPRESENTATIVES. í REPOET
2d Session. J 1 No. 2631.
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL
GRANTS.
Febrcart ¿5, 183Ó.—Eeferred to the House Calendar aud ordered to he printed.
Mr. Henley, from the Committee on the Public Lands, submitted
the following
REPORT:
[To accompany H. Ees. 344.]
The Committee on the Publie Lands, to iclwm teas referred the matter of the
Portage Lahe and Lahe Superior Ship-Canal grants, under resolution of
the House, passed March 13,1SS4, having had the same under considera¬
tion, beg leave to submit the follotcing report :
The resolution of the House directing the investigation was in the
following words, viz :
tVhereas hy act approved March 3, 1S65, Cougres.s granted 200,000 acres of land to
the State of Michigan, to aid in the constructiou of a breakwater, harhor, and ship-
canal to connect Lake Superior aud Portage Lake, on Kewenaw Poiut, in said State
of Michigan, and afterward, by act approved July 3, 18li(5, made an additional grant
of 200,000 acres more to said State for the same purpose ; aud
Whereas said State of Michigan confeired said lauds on the Portage Lake aud Lake
Superior Ship-Canal Company for the purpose of constructing said breakwater, har¬
bor. aud ship-caual ; aud
Whereas said acts required the lands graoted thereby to be selected from the al¬
ternate aud odd-numbered sections (except 50.000 acres, which were to be selected
from the even-numbered sections) of the public lauds nearest to said harbor and
canal ; aud
Whereas it is charged and alleged that the said lands were not selected as required
by said acts, but that large quantities of very valuable lauds were selected all over
the upper pi uinsnia of said State, in violation of said acts, and said canal company
now claims to own said lands so selected, though large quantities of them were not
liable to be used to satisfy said grauls; aud
Whereas it appears iiom reports of Government engineers that said canal company
never completed said breakwater, harbor aud ship-canal as contemplated and required
by said granting act ; and
Whereas said canal company tailed to complete said breakwater, harbor, and ship-
canal within the time limited hy the acts of Congress exteudiug the time for the
completion of the same: and
Whereas it was provided in said granting acts that in case of the failure of the
said canal company to complete said harbor and canal within the time so limited the
lands so grauted should revert to the United States; therefore
Be it rewired, That the Committee on the Public Lands be, and are hereby, in¬
structed to iuvestigate all of said charges aud allegations, together with all matters
pertaining to said graut.s, and whether said grants, or any portion thereof, are now
liable to mrfeiture, with power to send for persons and papers, to administer oaths,
and report to this House by bill or otherwise.
The scope of the investigation thus ordered embraced two inquiries:
1. Whether any portion of the grant to the State was liable to for¬
feiture for failure to complete the work within the time required by the
legislation of Congress.
2 PORTAGE LAKE AND LAKE SUPERIOR SUIP-CANAL GRANTS.
2. WlielheT any of tlie lands lield by the company -^vere selected
contrary to tlie provisions of law, and, if so, what measures should be
taken to restore the same to the public domain. ,
Under the instructions contained in this resolution your committee
proceeded to investigate the charges specified, and appointed a sub¬
committee to take testimony. The testimony taken was printed, tinder
order of the House (Miss. Doc., No. 50), has been duly considered, to¬
gether with briefs of counsel upon both sides, and, upon full consider¬
ation of the premises, your committee find:
J. That under the peculiar circumstances of this case, as hereinafter
set forth. Congress has no jtower to declare the grant forfeited for fail¬
ure to complete the work, although such work has never been completed
in the manner contemplated by the acts of Congress.
2. That large portions of the public domain in the northern penin¬
sula of Michigan, aggregating certainly over 150,000 and probably over
2s0,000 acres, and of immense value, were illegally selected by the said
company, in pretended satisfaction of its grant, and are now held by
them, contrary to the provi.sions of law, under lists or certifications ema¬
nating from the Laud Department. So finding, your coiniuittee report
and recommend the passage of the accomi)anying joint resolution direct¬
ing the Attoruey-Ceueral to institute pi-oceediugs to set aside and vacate
such jjortiou of the lists certified by the Secretary of the Interior to
said couipany as cover the said lands so illegally selected and held.
I.
THE POWER OP CONGRESS TO DECLARE THE GRANT FORFEITED.
March 3, 18G5 (13 Stat., 519), Congress passed an act, the intent of
which, as stated in its title, was " to grant land to the State of iMichi-
gan to aid in building a harbor and ship-canal atPortage Lake, Kewee¬
naw Point, Lake Superior."
Section 1 granted to the State the right ''of loeating and construct¬
ing a breakwater and harbor and ship-canal" through the public lauds
in the vicinity in question; and provided that not more than 1,000 feet
on the bank of Lake Superior should be occupied by said breakwater
and harbor, that not more than 400 feet in width should be occupied by
the canal,and that the canal should be "at least one hundred feet in
width, with depth of water not less than thirteen feet."
Section 2 granted to the State, to aid in the work above described,
200,000 acres of such lands, in the northern peninsula, as were subject
to piivate entry, and further restricted the grant by the following pro¬
viso :
Proviáicl, That said selections shall be made from alternate and odd-numbered sec¬
tions of land nearest the location of .said canal, in said miper peninsula, not other-
■wise appropriated, and not iroin laud.s designated as " mineral" before the X)assagoof
this act, nor from lauds to which the rights of jire-emptiou or homestead have at¬
tached.
Section 3 provided that the said lauds shoidd be subject to disposal
by the legislature, and that the canal should be public highway for the
use of the Cuited States, free of toll or other charge.
Section 4 provided that before any disposal of the lands by the State
a plan of the breakwater and harlior and of the route of said canal
should be filed in the War Department and a duplicate thereof in the
General Laud OlMce.
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 3
Section 5 was in the folowing words:
Aud le itfurtlcr enacted. That if the said breakwater, harbor, and ship-canal shall
not he completed within two years from the passage of this act, the lauds hereby
granted shall revert to the United States.
Section 6 is irrelevant to any question referred to your committee by
the resolution of the House.
March 16, 1865, the legislature of the State conferred the above
grant and franchise upon thè Portage Lake and Lake Superior Ship-
Canal Comjtany, a corporation organized under the laws of the State.
The act provided for the api)ointinent of an engineer to survey and
establish the route and " prepare a plan for the construction of said
canal and harbor in conformity with the provisions of the said act of
Congress, and make a specification and diagram thereof, to be approved
by the governor." It further provided that the canal company should
proceed to construct the work in conformity with such plan and speci¬
fications; that when the company "completed the said canal in pur¬
suance of the act of Congress and in conformity with the said plan and
specifications," it should be the duty of the engineer to certify that fact
to the governor; that it should thereupon be the duty of the governor
to inspect the work in person or cause it to be done by agent, and that
" whenever the governor shall determine that the said canal and har¬
bor has been constructed by the said company as required by said act
of Congress and in conformity with the said plan and specifications, he
shall certify the same to said company," which certificate, it is pro¬
vided, "shall be evidence of the facts therein set forth."
July 3, 1866 (11 Stat., SI), Congress passed another act granting ad¬
ditional lands to the State for this enterprise, in the following words,
viz:
Be it enacted lij the Senate and Mouse of Bepresentatires of the United States of America
in Congress assembled. That there be, and hereby is, granted to the State of Michigan,,
to aid in the building of a harbor and ship-canal at Portage Lake, Kewenaw Point,
Lake Superior, in addition to a former grant for that purpose, approved March the
third, eighteen hundred and sixty-tive, two hnndred thousand acres of land in the
upper peninsula of the State of Michigan, and Irom land to which the right of home¬
stead or pre-emption has not attached : Frorided, That one hundred .and tifty thousand
acres of said lands shall be selected from alternate odd-numbered sections, and fifty
tbonsand acres from even-numbered seetions of the lands of the United States. Said
grant of lands shall inure to the use and benefit of the Portage Lake and Lake Supe¬
rior Ship-Canal Company, in accordance with an act of the legislature of the State of
Michigan, conferring the land granted to the said State, by the act herein referred to,
on said coniiiauy : And prorided further. That the lime allowed for the completion of
said work, and the right of reversion to the United States, under the saidactof Con¬
gress approved March the thiro, eighteen hundred and sixty-five, be extended three
ad«itional years: .Jiul prorided further. That no lands designated by the United States
as " mineral " before the passage of this act shall be included witliln this grant.
The time within which the work was requiretl tobe completed, under'
penalty of forfeiture, was extended, by several subsequent acts of üon-
gress, to the 1st day of December, 1873. (April 10,1869, 16 Stat., 55 ;
Jlareh 2, 1871, 16 Stat., 599; March 27, 1872, 17 Stat,, 44; and Martîh
3, 1873, 17 Stat., 627.)
Under the act of (Jongressof March 3,1865, a map of the proposed
canal seems to have been tiled in the War Deiiartmeut and General Land
Office, but át what particular date does not appear. Under the act of
the State legislature of March 16,1865, certain plans and specifications
were also prep..red by the State engineer, and approved by the gov¬
ernor. Thereupon such work was done that in the fall of 1873 the har¬
bor, breakwater, and ship-canal were claimed tohave been completed in
accordance with the requirements of the act of Congress and that of the
4 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
State legislature. Certificates substantially to that effect were given
by an. agent of the governor, detailed to make the personal examina¬
tion, but who discharged his duty by deputy, and by the State engi¬
neer. Following these, to wit, November 29,1873, two days before the
expiration of the period of forfeiture, the governor, apparently under
considerable pressure by those interested, gave the company a con¬
ditional certificate as to the completion of the work, in which occurs the
following recital, viz :
And-wLereas I have made a personal examination of said canal and harbor, and
have found the same to he constructed and completed, so far as the building of said
canal and harbor is concerned by said company, as required by said act of Congress
and in conformity rvith said plans and specifications, except that the legal title to
the lands on which said canal is built is not vested in said company, but such legal
fitle has been taken to certain persons individually who are officers of said company,
and that certain of said lands are subject to incumbrance, and that in respect to such
title, and in consequence of said title not being in said company, the said canal and
harbor are not constructed and completed in accordance with the act of Congress.
The certificate proper is in the following words :
Now, therefore, I, John J. Bagley, governor of the State of Michigan, deem it
proper to certify the foregoing facts to the said Lake Superior Ship-Canal, Railroad
and Iron Company, to the end that they majj use the same as they shall be advised
may be necessary for the protection of their rights, and of the rights of all parties in¬
terested in the premises, but without prejudice to any rights or interests of the State
■of Michigan arising out of said land-grant, and said laws dependent directly or indi¬
rectly on the condition of the title to said lands on which said canal and harbor are
built, and which are to be usedin conneetion therewith asa part of said public work ;
it not being my design that this shall stand as the final and absolute certificate of
eompletion required by section four of said statute, and which final certificate will
not be due until such title to the lands acquired by the said canal and harbor is made
good. ,
Afterwards, to wit, June 25,1875, the governor gave to the company
anotber certificate, the pertinent portion of which is as follows:
Now, therefore, I, John J. Bagley, governor of the State of Michigan, do hereby
determine that said canal and harbor have been constructed by said company as re¬
quired by said act of Congress, and in conformity with the plans and specifications
therefor, and do accordingly hereby certify the same to said company.
The alleged failure of the company to complete the harbor, break¬
water, and ship-canal, in accordance with the requirements of the acts of
Congress, within the statutory period is an important branch of the
investigation, and it is strenuously insisted on behalf of the investiga¬
tors that they have fully shown that up to the present day the com¬
pany have never built a harbor, breakwater, or ship-canal sufficient for
the demands of navigation, or such as was required by the acts of Con¬
gress. This claim, to a great degree, is sustained by the record. There
is not, and never has been, a suitable harbor on Lake Superior, or a
breakwater answering the purposes intended, or a permanent ship-canal
100 feet wide and 13 feet deep. In fact, from the date of its alleged
completion to the present time, it has been a source of constant annoy¬
ance, and in some cases actual danger to navigation.
Congress granted 400,000 acres of the public domain to aid in build¬
ing a canal less than two miles long. It encumbered this munificent
donation with few limitations and restrictions, but, among the things
that it did expressly require, were a breakwater, a harbor, and a ship-
canal of certain dimensions. By a breakwater was intended a structure
of some kind capable of breaking the force of the storms that lash the
shores of Superior, and thus affording protection to the entrance of the
canal; by a harbor was meant a place of safety for vessels entering or
leaving the canal, and by a canal 100 feet in width, with a depth of not
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 5
less than 13 feet, ■was meant a canal of that "width and depth, so con¬
structed as to be permanently navigable from end to end by vessels
drawing that amount of water. All this the company were under obli¬
gations to furnish to the citizens of the United States before it was le¬
gally or equitably entitled to an acre of. the grant. As matter of fact
it has never to this day given the public such a breakwater, harbor, or
canal.
The only breakwater built consists of two parallel piers running from
the shore of Lake Superior, a distance of some 900 feet, into the lake.
The only harbor is that formed by these piers. The only canal is a
ditch running from Portage Lake to Lake Superior, about two miles in
length, so insuíBciently protected at its sides that every year since its
alleged completion, sand has drifted through and filled up the channel
to a depth,of from two to five feet. The so called harbor, instead of
being a place of safety, is, in stormy weatherj actually a place of dan¬
ger, navigators preferring in seine instances to run north around Kewee¬
naw Point, rather than attempt to enter the canal between the piers.
(Testimony of Captain Shannon, p. 317.)
There has never been, in any sense, a harbor of refuge at this point
for deep-draft vessels in rough weather.
The necessity for it and the failure of this company to provide it as
required by law, resulted in a subsequent appeal to Congress for an
appropriation, which was reported upon adversely bj- the' Engineer
Corps, after survey, on the ground that the remedy was "for the canal
company to complete the work, to aid which the United States donated
400,000 acres of land." (Forty-sixth Congress, Senate Ex. Doc.,Ko. 32.)
The sides of the canal are protected by insufficient sheet piling,
through which the sand drifts, filling up the channel and harbor and
making them practically impassable for deep draft vessels, fully loaded.
(See testimony of Foster, p. 7, question 3; p. 14, question 12; p. 34,
questions 3 to 7 ; p. 54, questions 3 to 7. Pryor, p. 34, questions 17,18,
21 ; p. 35, questions 15, 10 ; p. 41, question 14 to p. 42, question 5 ; p.
42, question 18 to ji. 43, question 1 ; p. 43, questions 8 to 11. Williams,
p. 07, questions 0 to 11,17 to 19; p. OS, questions 5 to 10; p. 85, ques¬
tions 11,12. Blanchard, x>. 97, questions 2 to 5. Hunt, p. 388, ques¬
tion 10 eiseç/.; p. 339 to question 10.)
The extent of this defect in construction is shown by the testimony of
two of the company's own witnesses. Foster, the State engineer, tes¬
tifies (p. 8, question 4) that in the fall of 1873 he left 14 to 10 feet of
water in the canal and 21 feet at the end of the piers. Yet, in the fol¬
lowing sjjring (1874) Pryor, the canal superintendent, was obliged to
dredge from 2 to 3 feet in order to get 13 feet of water. (Testinmny of
Pryor, p. 41, questions 7 to 17.) That is to say, from its "completion"
in the fall of 1873 to the oi)ening of navigation in spring of 1874 the
canal had filled up from 3 to C feet. And in the following spring, 1875,
so loud had become the comi)laints, that the governor again sent Foster
to examine the can.al, and he found only 11 or 12 feetof water. (Foster's
testimony, x'p. 54 and 55.)
The resultant disability is such that deep draught vessels, intending
to pass through the canal, habitually load at eastern ports with express
reference to discharging xiortious of their cargo before reaching Portage
Lakel (See testimony of Blanchard, United States inspector of hulls,
X>. 90 ; and following captains of lake steamers : Mclntire, pp. 203, 208;
Moouey, p. 343 ; Shannon, p. 348 Hunt, ])p. 322, 328, 340.)
And the whole work has been a source of constant complaint directed
to the governor of the State, the superintendent of the canal, and the
6 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
United States inspector of hulls. (Testimony of Foster, pp. 14-54;
Shannon, p. 346; Hunt, p. 352; Blanchard, p. 90; Williams, pp.77,
110.)
Nor was this the result of mere mistake or miscalculation. The State
and her grantee knew that the plans adopted under the State act would
not fulfill the requirements of the act of Congress or make a proper
canal and harbor. Foster himself, the State engineer, testifies (pp. 53,
54) that when he took charge of the work he advised the governor that
the sheet piling should he superseded by close crib-work, in order to
prevent the present condition of affairs.
In view of the foregoing your committee are of the opinion that the
work as comi>leted was so defective as to be practically a fraud upon the
intention of Congress; that the company failed, within the period of
limitation, and ever since has failed, to construct, within the meaning
of the act of Congress, a breakwater, a harbor, or a ship-canal of the
specified dimensions. It follows that your committee would unhesitat¬
ingly report in favor of a forfeiture of the entire grant, if the legal right
to so ])roceed was clear. Doubt upon this point arises in view of the
official certificates above recited, showing " completion'' within the stat-
. utory limitation.
' The act of Congress of March 3,* 1805, making the first grant, pro¬
vided no means whatever for determining the tact of completion. The
act of the State legislature, accepting the Congressional grant and con¬
ferring itupon this company, did pi'ovidesuch means. It enacted that
when the canal was conii)leted "in pursuance of the act of Congress,"
&c., the engineer should certify the same to the governor; that tbe
governor, alter examination, should certify the same to the company,
and that this last-mentioned certificate should be " evidence of the facts
therein set forth." Then followed the second act of Congress, ap-
jrroved Julj' 3,1866, making the additional grant of 200,000 acres. This
act, although referring to the act of the State legislature," still provides
no nieans for determining the fact of completion and expressed no dis¬
sent from the method pointed out by the State act. Under these cir¬
cumstances itmay fairly be presumed, we think, that Congress intended
to allow the fact of completion to be ascertained and fixed by the cer¬
tificates provided for in the State act. Even if this be otherwise, the
matter is so doubtful that we have deemed it iujudicious to treat the
entire grant as within the forfeiting power of Congress. These certifi¬
cates show a " comiiletion * * * as required by the act of Con¬
gress." The first or conditional certificate was prior to the expiration
of the limitation. The second certificate was after its expiration. ' The
first, however, seems reasonably clear in its character, as a final cer¬
tificate, so far as the building or construction is concerned, and the
second refers to the iirevious certificates of the engineer and personal
agent, which themselves show completion within the time.
Your committee, therefore, have reluctantly concluded, in view of
the character of the work done, that the United States are probably
bound by these certificates, as to the fact of completion withiu the period
prescribed by the statute; and that under such circumstances it is not
withiu the power of Congress to declare the grant forfeited.
II.
THE SELECTIONS MADE BY THE COMPANY.
As above noted, two grants were made by Congress to aid in build¬
ing the canal. We consider them in numerical order.
The act of March 3, 1865 (13 Stat, 519), granted 200,000, to be se-
POETAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 7
lected from any lands in the northern peninsula, subject to private
entry, in alternate and odd-numbered sections, nearest the location of
the canal, not otherwise appropriated, not designated as mineral, nor
subject to pre-emptiou or homestead rights. The language of this stat¬
ute is too plain to be misunderstood. It is a grant in pncsenti, passing
to the State all the lands falling within its descriptive terms, as of the
date of its passage. All the lands embraced within the description
passed at that date to the State, subject to proper selection. îfo other
or different lands passed by the grant or were subject to selection under
it. To ascertain whether any particular tiact passed to the company
under this graut, it is only necessary to inquire, first, whether it was
subject to private entry ; second, whether it lay in an alternate odd
section, with other alternate odd sections, constituting the body of the
grant; third, whether it was the nearest vacant laud to the canal sub¬
ject to the grant ; fourth, whether it was unappropriated ; fifth, whether,
by designation, it was not mineral ; sixth, whether it was clear of pre¬
emption and homestead claims. All these points being resolved in favor
of the grantee, the title to the tract passed at the date of the act. Any
one of these descriptions failing, the land is not within the grant, and
the company has no title. The right of selection was circumscribed by
these descriptive terms. No other laud could be selected. A selection
of any other land was absolutely null and void as without the descrip¬
tion of the grant.
Under tiie act of 18GÜ, therefore, the company was entitled to 200,000
acres of alternate odd sections, of the character described, lying in com¬
pact form nearest to the location of the canal. It was charged by the
investigators, and has been demonstrated by the testimony, that of the
lands actually selected there are nearly, if not quite, 100,000 acres in
the extreme western portion of the upper peninsula, between the Mon¬
treal Kiver, and Lake Agogebic, further from the canal than 100,000
acres of other, lauds ñvlling within the grants and which should have
been selected.
The testimony upon this point amounts to almost absolute demon¬
stration. To show the facts two expert witnesses were called, who tes¬
tified that they had together made a critical examination on the tract-
books and records of the General Land Office of all the lands lying
outside of the railroad grants in that vicinity, with a view of ascertain¬
ing the facts in connection, with the question under consideration ; that
they went through every township, noting the lands shown to be vacant
at the date of the canal selections ; and that from the information thus
obtained they constructed a map, which was exhibited to the committee,
showing in different colors the lands actually vacant and those actually
selected (Testimony of Sibbald, pp. 262-2G7 ; Mullaly, pp. 272-273.)
Across the map are drawn, at random, two lines, each being the arc of
a circle, the center of which is the canal, inside of each of which is
shown a large body of vacant land and outside of each of which a large
body of canal selections. Explanatory of this exhibit the following
quekions and answers appear in the testimony^ of Mr. Sibbald, one of
the experts (pp. 2G1, 2G5).
Q. With reference to these two lines, tell the committee how many acres of land,
selected under that first grant, are farther from the canal than the lands which yon
found to be vacant?—A. The lands here, outside of this line [indicating], were ca¬
nal selections to the amount of 70,000 acres.
Q. What was the amount of unappropriated vacant lands inside the circle at that
time?—A. In round numbers about 103,000 acres were vacant in October, 1868.
Q. Then there were, at the date of this selection, over 100,000 acres of land, vacant
8 POETAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
and nnappropriated, nearer to the location of the canal than the 70,000 acres of land
that -were actually selected ΗA. Yes.
Q. With reference to the inside line, give us the same information as you have
given us with reference to the outside line ?—A. There would be SO,000 more—66,000
or 78,000 acres—selected outside of the inside lines.
Upon the same point Mr. Mnllaly, the other expert, testiâed as fol¬
lows (p. 273) :
Q. Tell the committee what these two lines drawn in black pencil across the red
and green sections, forming the arc of a circle, were intended for ?—A. They denote
the relative positions of the vacant Government lands in October, 1868, in relation to
the lands selected by the canal company.
Q. In relation tothe outer one of those two lines (the southwest line) how much of
the area did you find to be nearer the location of the canal (the lands colored red)
than the lands that were actually selected (the lands colored green)?—A. Jly ligures
were the same as Mr. Sibbald's, or very nearly so. They did not differ a thousand
acres.
The testimony of these witnesses was not contradicted or rebutted
in any way bj' the canal company.
It is thus seen that by rough computation the amount of land illegally
selected at this point aggregates from 80,000 to 100,000 acres, leaving
out of consideration any vacant lands there may have been within the
limits of the two railroad grants. To this must also be added 7,000 or
8,000 acres lying in the vicinity of the Huron Mountains similarly
situated (testimony of Sibbald, p. 265).
As before stated, the company made no effort, even, to deny the facts
above shown, and the only attempt to avoid them was a suggestion, first,
that the company was prohibited from entering this territory by a letter
of the Commissioner of the General Land Office to the register and re¬
ceiver at Marquette,_dated July 25,1865 ; second, that by certain de¬
partmental action in rejecting certain of their selections, the company
were justified in assuming that they could not take the vacant lands.
But neither of these suggestions contain even a plausible excuse.
First. The letter of May 25, 1865 (Canal History, p. 4), on its face
plainly applies only to agricultural college scrip locations,andThomasE.
Benton, an expert employé of the General Land Office, testified (pp. 389,
390) that he had officially fully examined the records of the Department
affecting the canal grant; that the letter in question was in no way
connected with canal selections ; that the principle of the letter had
never been applied to the canal company, and that they had never been
limited in that way by the Department; and that theiComi)any well
knew it was not so prohibited is conclusively shown by the fact that
they afterwards, under the act of 1866, actually selected some of these
lands, which selections were rejected because their grant had already
been fully satisfied elsewhere (Canal History, pp. 55-61, 69).
Second. The second suggestion of excuse is even less plausible. The
granting act excluded lands theretofore designated as mineral. In 1849
a geological survey of the northern peninsula was made by Dr. Jackson,
under authority of an act of Congress of March 1,1847 (9 Stat., 146).
His report designated certain specific tracts as mineral (see Land Office
ßeport, 1849). The lands so returned as mineral were thus marked on
the tract books of the General Laud Office. When the canal company
selected its 200,000 acres under act of IMarch 3, 1865, some few acres
of the selections conflicted with this Jackson mineral list. They were
rejected for that reason (Canal History, pp. 15-19). It is this rejection
which is suggested as a reason why that very list included 100,000 acres.
of land not granted and omitted 100,000 vacant, unappropriated lands
which ought to have been selected.
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 9
The real reason for thus violating the law is found in a very different
consideration. There were exhibited to the committee during the course
of the argument two maps, one known as the Foster and Whitney map,
accompanying the geological survey of 1849, already referred to, and
a map prepared by Professor Pumpelly, accompanying his official re¬
port to the State of Michigan, prior to the date of the canal selections.
Both of these maps purport to show the geological formation of the
upper peninsula, and, among other formations, exhibit what was sup¬
posed to be the " copper range," extending from the upper end of Kewe-
naw Point to near the mouth of the Montreal Eiver. The 200,000 aerea
selected by the canal company almost exactly cover this supposed cop¬
per-bearing country ; while the territory which they ought to have se¬
lected is shown by the same maps to be "granite" or other rock forma¬
tions of little value. The evident object in violating the law was te
obtain laud of much greater value than that covered by the grant; and
to do it at least 100,000 acres of the first grant were illegally located.
The act of July 3, 1866 (l4 Stat., 81), made an additional grant to
the State of 200,000 acres to inure to the Portage Lake and Lake Su¬
perior Company. This act, quoted hereinbefore in full, was the subject
of much legal contention before the committee respecting its proper
construction. On behalf of the investigators it was claimed that the
eflect of this act was simply to increase the original grant to 400,000
acres, the increase being subject to all the limitations and restrictions
of the original act, except that S0,000 acres could be taken from even
sections. On behalf of the company it was claimed that the lands
conveyed by the act were of an entirely different character from those
mentioned in the first act, and that they were entitled to take 150,000
acres of odd and 50,000 acres of even sections of any i)ublic lands of
the United States in the upper peninsula, not theretofore designated
as mineral, and to which homestead and pre-emiition rights had not
attached.
The departmental construction of the act at the date of its passage,,
acquiesced in by the State, seems to have been that now advanced by
the investigators, viz, that the grant was confined to alternate sections,
in compact form, lying nearest the canal and subject to private entry>
To that efiect were the instructions issued under the act by the Com¬
missioner under date of May 3,1867 (Canal History, pp. Í2,13), and
that this was conceded by the State is evident from the fact that in ap¬
pointing an agent under it to make selections, he was directed to make
them from land " subject to i^rivate entry " (Canal History, p. viii). In¬
deed no question seems to have arisen in respect to the matter until
about the year 1874, when two opinions were rendered by the Solicitor-
General, in the same case, submitted by the Interior Department, one
dated March 11, 1874 (14 Op., p. 636), and one April 4, 1874 (14 Op., p..
645), the latter approved by the Attorney-General, in which a contrary
doctrine was held.
Up to this time, as before stated, no question seems to have been
raised upon the point. Every jireceding approval of lists proceeded
upon the theory that the lands selected were nearest the canal and the
certificate so read. (See lists 1, 2 ; supplemental No. 1 ; supplemental
No. 2; supplemental No. 3 ; supplemental No. 4 ; supplemental No. 5
all in evidence, and found at pages 20 to 21, of pamphlet, showing leg¬
islation, &c., furnished the committee by the company.) The lands cov¬
ered bj' these lists were not, in truth, nearest the canal, but the fact is
nevertheless so stated in the certificate. After the above mentioned
10 PORTAGE LAKE AN» LAKE SUPERIOR SHIP-CANAL GRANTS.
opiuions this form was dropped entirely from the certificates. (See sup¬
plemental lists Nos. S and 9, pp. 20, 27, of the pam])hlet.)
The prosecutors allege that these opiuions incorrectly coustrue the
law and that they were given in a friendly suit, carried on after compro¬
mise, and ought not to he treated as authority by the committee. The
opinions themselves show that a controversy was pending between one
Jesse Spaulding, mentioned in the testimonj% in answer to questions by
the president of the canal company, as a prominent politician and col¬
lector of the port of Chicago (]>. 313), on one side, and the canal com¬
pany on the other, involving certain lands claimed by each. The tes¬
timony of Buell (p. 278) states that an element in the controversy was
the fact that the lands had been inadvertently patented to Spaulding,
who refused to return the patents ; and Frost, the then agent and at¬
torney for the company, testifies (p. 310) that a settlement was made
while he was arguing the case before the Secretary of the Interior, and
exi)ected to get the lands. In his testimony he says:
I was ai'iiuinfj tlie case. I had presented the case before the Secretary of the Interior,
claiming that the lands belonged to the canal company, .and that this interference
■was illegal. I had made my argument there and expected to get the lands, as I
knew that the Department had canceled the Whitbeck and Spaulding entries, and had
ordered them to return the patents. I was then in correspondence with the office
-of the canal company, and on consultation the canal company concluded to compro¬
mise the matter and let Spaulding and Whitbeck retain the entries.
However the fact may be, it is certain that Spaulding got his lands
which were illegally entered, and the canal company received $1,200
and secured its first authority for roaming all over the upper peuiu-
sula to satisfy its second grant.
The lauds selected under this second grant were located without any
reference to proximity to the canal or whether they were subject to pri¬
vate entry. This is testified by several witnesses, is shown by the rec¬
ord, an<l admitted by the company. Many of them are in isolated
tracts from 100 to 150 miles distant I'rom the canal. If the original con¬
struction given to the act is correct, a large portion, if not all, of the
entire 200,000 acres were illegally located, and are illegally held by the
•company.
Your committee are inclined to hold, upon full consideration, that
this original construction was correct, and that no lands passed under
the second grant except such as were described in the first. We are
inclined to hold that the two acts should be construed in pari materia;
that the use of the word " addition " in the second grant shows an in¬
tention simply to increase the quantity mentioned in the first; that the
use of the words " alternate, odd-numbered sections" necessarily makes
the grant compact in form, and that the absence of the forfeiture clause
in the second act shows an intent to make the second grant subject to
all the conditions named in the first. But inasmuch as the remedy pro¬
posed remits the general subject to the Attorney-General, we think
iustice will be subserved by directing that officer to re examine the
question, and if, in his judgment, the law has been improperly construed,
to include these lands in the suit to vacate the lists.
There remains, however, another fatal defect in the lists of selec¬
tions made under the second grant, even if the construction contended
for by the company be conceded. At least 30,000 and probably 50,000
acres were taken within the limits of the Ontonagon and State Line
Eailioad grant, covered at the time by withdrawals for that company.
.(See withdrawals, Eailroad History, pp. 17, 34, 35, 36; testimony of
Benton, pp. 366-368,370,371.) The lands thus withdrawn were ajipro-
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS 1 1
priated (Wilcox vs. Jackson, 13 Peters, 498) and rvere not part of the
public domain, subject to sale, under any grant of this character, and
could not have been included, even although not expressly excepted.
Tills is well settled by abundant authority. (Leavenworth, Lawrence
and Galveston Eailroad Company vs. United States, 92 U. S., 733; îTew-
hall vs. Sanger, Id. 7(i2).
To summarize, we find the following selections illegal, covering land
not included in the grant, the figures being general, viz :
The suit to be instituted by the Attorney-General under the resolu¬
tion recommended by the committee should cover in any event the first
two above-mentioned classes.
The company place considerable stress upon the fact that these lauds
have been listed to the State. Thatobjectionwouldonly,iu anyevent, be
pertinent against a proposed forfeiture of the grant by act of Congress.
The recommendation of the committee is to attack these lists directly
by judicial proceedings, a proceeding clearly authorized by abundant
authority. It is by no means certain that the lists are not absolutely
void as to the illegally selected lands. Indeed the better judgment of
your committee is to the efiect that they are. Unlike almost every other
act upon similar subjects, the statutes in question contain no authority
whatever for issuing lists, patents, or any other evidence of title. In
the absence of such authority a list or patent is undoubtedly void and
of no effect, as an act ])erformed without jurisdiction. The only statute
which even iuferentially could be said to have authorized such lists in
this case is the act of August 3,1854 (Rev. Stat., sec. 2449), and that
expressly provides that all lists made under its i)rovisions shall be " per¬
fectly mill and void " for all lands not of the character contemiilated by
the granting act, and intended to be granted, and that by such lists
"wo right, title, claim, or interest" shall pass to any such lauds. The
lists to this company, however, void or voidable, tend to withdraw the
land from disposition under general laws and to embarrass the execu¬
tive officers in their execution. They should for this reason, even if
void, be judicially expunged from the records of the Government.
Wo accordinglj' report the accompanying joint resolution, and recom¬
mend its passage.
Under grant of 1865
Under grant of 1866, at least
Under former construction, additional, about
100,000
30,000
150,000
Total
2S0,000
I
VIEWS OF THE MINORITY.
A resolution was passed March 13,1884, and referred to this commit¬
tee, reciting the making of certain land grants to the State of Michigan,
which were conferred upon the above-entitled company." The resolu¬
tion is given in full in the majority report. That part which the.under¬
signed propose to consider particularly is as follows:
"Whereas said acts required the lands granted thereby to he selected from the alter¬
nate odd-numbered sections (except 50,000 acres, which were to be selected from the
even-numbered sections) of the public lands nearest to said harbor and canal ; and
Whereas it is charged and alleged that the said lands were not selected as required
hy said acts; butthat large quantities of very valuabe lands were selected all over the
npper peninsula of said State, in violation of said acts, and said canal Company noto
claims to own said lands so selected, though large quantities of them were not liable
to be used to satisfy said grants :
i'« it resolced, That the Committee on Public Lauds be, and are hereby, instructed
to investigate all of said charges and allegations together with all the matters per¬
taining to said grants, and ichether said grants, or any portion thereof, are note liable to
forfeiture, with power to send for persons aud papers, to administer oaths, and report
to this House by bill or otherwise.
A subcommittee, consisting of Messrs. Payson, Shaw, and Van Eaton,
was charged with the duty of making the investigation. Under instruc¬
tions from the full committee, a stenographer was employed and a vast
amount of evidence, both oral and documentary, was submitted. This
was subsequently printed and forms a document (Mis. Doc. 50) of 426
closely printed pages. In addition to the presentation of evidence, the
subcommittee heard arguments of counsel, spending in all nearly one
mouth of time in the investigation. The matter was then reported back
to the full committee.
The majority of the committee now report that the grants named m
the resolution are not subject to forfeiture by act of Congress, in which
conclusion the undersigned minority agree. We, however, disagree as
to the statement of facts and reasoning on which such conclusion is
based.
The majority further report recommending the passage of a resolu¬
tion instructing the Attorney-General to institute proceedings in the
courts to vacate and set aside a large portion of the lists of lands cer¬
tified to the State of Michigan under the said granting acts. We cannot
join in this recommendation.
For the following reasons we believe the canal was constructed ac¬
cording to the requirements of the statute, and the selections of the
lands in satisfaction of the grants and the certification of the same were
properly and legally made.
What is the case? Nearly twenty years ago Congress made the two
grants of land set forth in the majority report, to aid in the construc¬
tion of the canal. The State of Michigan, by act of her legislature, ac¬
cepted the first grant of 200,000 acres, and, as was usual with such grants,
conferred it upon a private corporation called the Portage Lake and
Lake Superior Ship Canal Company. For the purpose of reaching the
result desired—the construction of the work—the company was author¬
ized 'to mortgage the lands. The act also made it the duty of the
governor to appoint an engineer, who, with the governor's approval,
should lay out and establish the canal " and prepare a plan for the con¬
struction of said canal and harbor in conformity with the provisions of
said act of Congress, and make a specification and diagram thereof."
.POETAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 13
Copies of these papers were to be filed with the Secretary of State and.
with the register of deeds of Houghton County, where the canal was
located. This State engineer was placed under control of the governor,
who could displace him at will and appoint another. .It was further
provided that when the company—
had completed the canal in pursuance of the act of Congress, and in conformity with
said plan and specification, it should be the duty of the engineer to certify the same
to the governor, whereupon it shall be the duty of the governor to inspect the said
work in person, or to appoint one or more agents to inspect the same and determine
whether said canal and harbor were constructed as required by the act ; and whenever
the governor shall determine that the said canal and harbor has been constructed
by the said company as required by said act of Congress, and in conformity with said
plan and specification, he shall certify the same to said company, and deposit a copy
thereof in the said office of the register of deeds in and for said county of Houghton,
«fee. * * * And when the governor shall make such certificate and deliver the
same to said company, the said company shall stand seized and possessed of the said
lands as fully as the State can convey the same, and free of any tax for the term of
four years, if so long held by said company ; and the said company may, after having
received such certificate, sell and dispose of said lands as the absolute owner thereof.
Tbe State, also, by this very careful and judicious act, reserved the
right to regulate aud determine the tolls to be received by the company
for the use of the canal and harbor, and to cause the same, if necessary,
to be applied to the improvement and preservation of the work. (Act
Michigan legislature, approved March 18, I860.)
Congress iu making the second grant of 200,000 acres above referred
to, made it to "inure to the use aud benefit of the Portage Lake and Lake
Superior Ship-Canal Company," in accordance with this act of the legis¬
lature. Michigan accepted it "in accordance with all the conditions and
provisions in said act contained."
Thus the provisions of the State for the construction and acceptance
of the canal and harbor, and for the disposition of the lands, were ac¬
cepted and adopted by Congress as part of its own legislation.
The specifications for the construction of the canal and harbor were
drawn out with elaborate care and detail by the State engineer, and
formally approved by the governor. Copies were filed as the law re¬
quired. They will be found in full in a printed pamphlet filed with the
committee, entitled " Legislation by the United States and the State of
Michigan, &c." Maps and plans of the canal and harbor, as thus de¬
termined upon by the State, were filed in the Department of the Interior,
and in the War Department. (See Exhibit K, iu Mis. Doc. 50.)
The grantee of the State, the Portage Lake and Lake Superior Ship-
Canal Company, proceeded to the construction of the work as required
by the acts of Congress and the legislature, and the said plans and
specifications. After doing a portion of the work and expending a vast
sum of money, in 1871 it failed. It had mortgaged the lands in contro¬
versy for about $1,000.000, and the bonds secured by these mortgages
had all been sold to individuals living remote from the work, and who
rested upon the security of the land grants. A receiver was appointed
by the United States circuit court in Michigan. The bondholders natu¬
rally desired to save something from fhe wreck. They could only se¬
cure a complete title to the lands when the canal was finished. They
assessed themselves and placed in the hands of the receiver over $100,-
000 in addition to their original investment in the bonds. With this
money the work was completed. It was expended under the direction
of the court. The work done was better than required by the specifica¬
tions. The State engineer was continued as superintendent, and thus
had complete charge of the work from the beginning to the end.
The time for the completion of the canal and harbor had been ex-
14 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
tended by act of Congress to December 1, 1873 (see pamphlet, supra,
p. 17).
Some time in the early autumn of that year the engineer reported
that the work was finished. The then governor, the Hon. John J.
Bagley, appointed Charles E. Holland, esq., his agent to inspect the
work. Holland called to his assistance Samuel Wright, an expert civil
engineer. Mr. Holland, Mr. Wright, and the State engineer, Mr. John
H. Forster, each made separate certificates that they had personally ex¬
amined the canal and harbor, and found the same complete in accord-,
ance with thé plans and specifications.
Holland certifies that he found the work in many respects " very
much better than the specifications demand," and that modifications
were made on the i)art of the State that required a "much larger ex¬
penditure of mouey on the part of the parties constructiug the work
than the original specifications demanded, all of which expenditures
have been in the interest of the State."
Mr. Wright certifies, among other things;
I found the vork in all respects snbstantial and sufficient, correspondinf; to the
epecilications, except where these had been changed or modified by the directiou
of the engineerj as ])rovided for in the terms of the specifications. I found complete
depth of water in the channel'. In my opjiuion you are justifiable in reportiug the
work complete and acceptable.
The certificates of Holland and Wright are dated on the 15th Octo¬
ber, 1873. On the 18th October, the State engineer, Foster, certified
to Governor Bagley as follows :
I hereby certify that the Portage Lake and Lake Superior Ship Canal is completed
according to law ; that the plans and specificatious approved by Governor Crapo have
been substantially complied with ; that the modifications made by the State en¬
gineer in charge, and approved by Governor Baldwin and your excellency, have l)eeu
of great benefit to the works, and that the canal and breakwater, in extent and
solidity, in depth of water, in width of channel-ways, in length of piles, and extent
of sheet filing are much in excess of the requirements of the official specificatious,
I therefore accept the canal.
On the 29th of November, 1873, the governor, J. J. Bagley, made a
certificate in which he set out his appointment of Holland as his agent
to inspect the work in question, antl the fact that Holland had reported
to him on the subject, and the further fact that he, the governor, had
made a personal examination of said canal and harbor, " antl had found
the same constructed and completed, so far as the building of saitl canal
and harbor is concerned by said company, as required by said act of
Congress antl in conformity with saitl plans antl .specifications." But
he found that the legal title to the lands on icMch the canal iras huilt
was not vested in the company, but in some of the ofQcers individually,
and that certain of these lands were subject to incninbrance, antl ujion
this declares "that, in respect to such title, antl in consequence of saitl
title not being in said company, the saitl canal antl harbor are not con-
structetl and comi)letetl in accordance with the act of Congress."
It will be observed that there is nothing, either in the acts of Con¬
gress or the legislature, which requires the title of the land through
which the canal should be constructed to be in the name of the company
or in the name of any other person. The acts are all silent on the sub¬
ject of the land to be occupied by the canal, except the first granting
act provides that the State shall have the right to locate the canal
" through any public lands at or upon the neck of land on Lake Supe¬
rior known as the Portage," and if public lands are used for that pur¬
pose, the amount so taken is limited.
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 1¡>
Tbe material averment in tbe governor's certificate is tbat tbe canal
anil barbor were completed as required bj" tbe acts of Congress. As to
tbe matter ot tbe lands tbroiigb and upon wbicb the3' were constructed^
be was evidentlj'laboringunder some misap|irebension. Itis inevideuce
tbat tbe Government owned none of tbe land on wbicb tbe works were
coiishucted.
Subsequently, to wit, June 25,1875, Governor Bagley made another
certificate, in wbicb, without reservation, be declares tbe canal and bar»
bor to bave been constructed as requin d bj- tbe acts of Congress, and
in coiiforinity witb tbe plans and specifications.
(ïbese various certificates are found in tbe pamphlet, supra, pp. 27
to 33, inclusive.)
THE PRESENT OWNERS.
Some years after tbe completion of the canal and after protracted liti¬
gation, tbat is, in Ma.y, 1877, tbe lands covered by tbe mortgages were
sold under a decree of foreclosure made in tbe United States circuit
court of ilicbigan, and tbe Supreme Court, in tbe cause of Jerome vs.
McCarter (91 U. S., 734).
Tbe.v were purchased by tbe bondbolders and creditors of tbe old
com|)au3', wbo organized tbe present coiniiany, entitled tbe "Lake Su¬
perior Sbip Canal, Railway and Iron Company." Tbis company bad.
no otber counectiou witb or relation to tbe old company tban given
above. Since its purchase at tbe judicial sale tbe present companj- bas
been in undisj)uted possessiou of tbe lands, improving and exploring
tbem, and paying anuual taxes thereon to tbe State and county.
lu tbe matter of the construction of tbe canal the compan.y could well
have rested their case upon the certificates given above. The State, as
tbe grantee of tbe General Government, seems to bave exercised extra¬
ordinary care in securing tbe object sought. It is difficult to see bow
it could have acted more tborougbly or wisely in tbe premises. If all
tbe munificent gifts of tbe United States for tbe aid of similar objects
of internal improvement bad been as wisely and carefully applied there
would have been none of tbe present discontent on tbe subject of land
grants.
But in addition to these certificates tbe company submitted tbe oral
testimony of ¡a number of witnesses, among whom were Holland and
Wright, wbo examined tbe canal after completion at tbe request of tbe
governor; John H. Forster, tbe State engineer wbo bad charge of tbe
construction; Kobect P. Jlulocb, wbo assisted in constructing tbe work,
and was emjtloyed under tbe receiver of tbe court and put in charge of
tbe canal, and James Pryor, wbo for ten j'ears has been tbe superin¬
tendent of tbe canal.
Tbe testimony of these witnesses not only shows tbat tbe canal and
barbor were constructed as tborougblj' as required bj- tbe siiecifications,
but in manj- regards much better. The only requirement as to con¬
struction found iu tbe Federal acts is tbe provision tbat there should
be "a breakwater and barbor and sbipcanal," and tbat tbe latter should
be 100 feet in width and 13 feet deej). All else, as to form, detail, aud
dimensions, was left to tbe State. Tbe State assumed tbe responsibil¬
ity aud adopted tbe plans mentioned above; These plans aud tbe spec¬
ifications were laid before the House Committee oii Public Lauds in
tbe year 180(5, and were explained to the House itself by Mr. Driggs,
of Michigan, when be reported tbe bill for tbe second grant (see testi¬
mony, pp. 170, 177). Witb tbis information before it. Congress granted
16 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
200,000 acres additional, to inure to tbe benefit of the canal company
in accordance icith the act of the legislature. It is therefore properly
.claimed that if the work was done in conformity with said plans and
specifications it was practically a fulfillment of the requirements of
Congress. •
In connection with the certificates of construction we venture to give
a few extracts from the oral testimony on the question of construction:
Forster, the State engineer, p. 8 :
Q. At the time you made this examination and report, what were the dimensions of
the canal as to width and depth f—A. Commencing at Lake Superior, systematically,
the piers were 250 feet apart. Inside, at the watePs surface, the canal was 100 feet
wide. Following through the sand section down into the Lily Pond, the tnrn was
200 feet to 250 feet wide for a long distance. Leaving the Lill.v Pond, going south, it
was about 124 feet between docks for 5,300 feet, until near Portage Lake. As we
neared Portage Lake 1 splayed the docks or piers there, because there was no sea and
nothing to disturb the entrance, and so I made it as wide as possible into Portage
Lake, 14 feet of water. The law required the depth of the canal to be 13 feet, but in a
great many places the canal was 15 to 16 feet deep, and, when I left it, at no place
could I 6nd it less than 14 feet, and at the end of the piers it was 21 feet deep.
Q. What dredging was done between the point where the canal entered Lake Su¬
perior .and the ends of the piers! What provision was made for the channel-way
through that ΗA. Digging out the full width of 250 feet as we there approuched the
piers, so that boats could lie at the main piers.
Q. At the end of the piers, you say you made 21 feet ; was that 21 feet done by
dredging ΗA. No, sir ; that was the natural bottom of the lake.
By Mr. JIcCaeter:
Förster, ii. 7 :
Q. How was the channel of the canal itself constructed?—A. We built cribs out¬
side, or piers, or breakwaters, 250 feet apart. luside we built a dock; two rows of
heavy piles were driven in more than 6 feet apart in front, and then 7 feet back we
drove another row of anchor piles ; then we tied the front piles to the anchor piles
with ties, aud put on the superstructure in front—square timber a foot square, I
think; and behind this we drove sheet-piles 4 inches thick as close as possible, to
keep the sand from getting in ; that was the general character of the piles all through
the whole caual, with some exceptions.
By Mr. Shaw :
Q. That would not keep out quicksand, would it?—A. No, it would not. We had
not very much quicksand there.
By Mr. McCarter :
Q. How did you secure this at the bottom?—A. It was driven into the ground. The
plan shows that there was a slope left outside of the docking.
Q. Look at this Exhibit F.—A. This shows a cross-section. The canal is 100 feet
wide at this point [indicating], and about 80 feet here. Here is the sheet piling be¬
hind this to secure it, and here is the end of the sheet-piling; aud here is the berme.
Q. What purpose does this slope serve ?—A. To give greater stability to the sheet-
piliug.
Q. Was that a proper mode of construction ?—A. Yes, .sir; it was necessary to have
that in there in order to secure that. We had great difficulty in getting them down.
Q. The same as is specifi^d in this act of Congress ?—A. Yes, sir; but I dug it in the
center down about 15 feet so that there would be no trouble about going in.
Förster, p. 21 :
Q. The act of Congress which has been alluded to by the counsel who cross-ex- "
amined you requires that the canal should be uot less than 100 wide and not less than
13 feet deep ; what would you say, as an engineer, as to whether this canal compRes
with those requirements ?—A. It does.
Förster, pp. 9,10 :
Q. Was the work up to the specifications, or in excess of them, or how ?—A. I think,
taking the work as a whole, it was substautiall.v done according to the requirements
of the law, and, in some respects, better than thie la w-required ; in some places lam
sure we had a greater depth of water; depth of water is a variable thing, if you will
allow me to explain it. v
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 17
Cross-examined by Mr. Eediütgtox :
Forster, pp. 10 and 11:
Q. If I understand jou, In all this work you were guided by the specihcations that
were made under the act of the State legislature 1—A. That was my chart.
Q. Did you ever make.any examination to see whether those specifications con¬
formed to the provisions of the act of Congress?—A. No, sir.
Q. You simply took the specifications as you found them when you took charge of
the work ?—A. Yes, sir.
Q. They were your guide ?—A. Yes, sir.
Q. You considered the work completed in accordance with law when it was com¬
pleted according to those specifications?—A. Yes, sir.
Q. Did those specifications call for any breakwater on Lake Superior ?—A. Yes, sir ;
what I regard as a breakwater.
Q. Be kind enough to show me that breakwater upon the specification or the plan.—
A. (Pointing.) These arethe breakwaters and piers.
Q. When you speak of the breakwater, you refer to the pier extending into the
lake from the end of the canal?—A. Yes, sir; they are breakwaters when they are in
that shape; they are made there to break the sea that comes in, as I explained in my
testimony.
Q. Then, whenever you use the word •'breakwater"in your testimony, it is limited
and confined to those piers?—A. Yes, sir.
N. H. Hutton sworn and examined, p. 159:
By Mr. McCauter:
Question. AVhat is your profession ?—Answer. Civil engineer.
Q. How long have you exercised that profession ?—A. About thirty years.
Q. How are you now employed ?—A. I am chief engineer of the harbor board of
Baltimore, which is a municipal office, and I am also an assistant to General Craighill,
of the Engineer Corps of the Array, in charge of the improvement of the Patapsco
River.
Q. From your prof ssion have you had experience in structures built in connection
with water-ways?—A. Y'es, sir; that is my main experience.
Mr. Hutton, pp. 165, 16G:
Q. Look at the diagram Exhibit T [placing it before the witness], and listen to the
followiugspecification :
"The prism of the canal to be at least 100 feet wide between the side walls, which
are to be perpendicular, and 13 feet deep, with a berme or offset 10 feet from face of
-docking timber to foot of slope of bank. There shall be a triangular toe or slope of
bank left in the bottom angle to hold and support the sheet-piling not more than 6
nor less than 5 feet high above bottom, with a slope not flatter than 11 horizontal to
1 perpendicular."
How does that diagram, so far as you can judge, correspond with such a specifica¬
tion as that ?:—A. The general construction is exactly in accordance with the specifi¬
cation. As to the slopes, of conrse there are no figures showing them.
Q. Suppose the only requirement in the act of Congress is that the canal shalTbe
100 feet wide and 13 feet deep ; and suppose a structure such as is represented by this
cross-section [indicating] was built under this specification, so that when completed
the canal was 80 feet wide on the bottom between the toes, and was dredged out to a
depth of 14 feet on that 80 feet wide ; what would you say as to whether a canal thns
constructed fulfilled that specification?—A. I should say that it did.
Q. You should say that it was a compliance with the act of Congress which only pre¬
scribed a canal 100 feet wide and 13 feet deep ?—A. 1 should think so ; yes.
Q. Assuming, now, that this canal, 100 feet wide at the shore line, having a water¬
way 13 feet deep, terminated in such an opening or structure as is manifested by this
diagram. Exhibit N, extending out 950 feet, the water varying in depth from 18 to 22
feet between the piers, and with a channel-way of 14 feet within the canal, would
such an arrangement constitute a canal, harbor, and breakwater?—A. 1 think so;
yes.
Mr. Paysox. This diagram shows piers constructed of timber, and cribs projecting
from the canal into the lake, the distance between the piers being 250 feet, and the
piers projecting 950 feet into the-lake. AVould the area of water thus inclosed be
deemed, in technical parlance, a harbor?
The WiT.N'ESS. T'es; it would be deemed a harbor.
Mr. Paysox. 1 do not say a harbor of refuge, but a harbor.
The WiTXESS. Undoubtedly.
Q. Suppose ym were given, as an engineer, the definition of a canal, the only de¬
scription being that it should be 100 feet wide and 13 feet deep ; what idea would
H. Rep. 2631 2
18 PORTAGE LRKE AND LAKE SUPERIOR SIIIP-CANAL GRANTS.
you, aa an engiijeer, derive from that deacriptinn as to the width of the canal in the
bottom ?—A. I should suppose, if only one width was specified, that being the top
width, that the bottom width would be such as would remain after the walls were
properly sloped, depending ui)on the material out of which the canal was excavated.
Q. What wonld be the proper slope in ordinary material ?—A. About 1^ to 1 ; that
is, for every foot vortical there wonld be about 1^ feet horizontal slope.
Q. With a canal 100 feet wide and 13 feet deep, bow much width would there be at
the bottom with that slope ?—A. About 61 feet.
•John M. Wilsox sworn and examined, p. 168:
By Mr. McGartek:
Question. What is your employment f—Answer. I am major iu the Corps of Engi¬
neers, and am brevet colonel in the United Slates Army.
Q. AVhat particular service are you now engaged in ? —A. 1 am on duty in the office
of the Chie.f Engineer, in Washington.
Q. How long have you been an engineer?—A. Igraduated in the Military Academy
in June, 1860, and was transferred to the Corps of Engineers in 18ii3. After the close
of the war I was on engineer work altogether up to 1882, when 1 came into the office
of the Chief Engineer.
Q. lias your occuiiation and profession given you a professional .acquaintance with
canals, harbors, and constructions of that kind?—A. Yes.
Colonel Wilson, pp. 169, 170 :
Q. Given an act of Congress which requires a canal to bo constructed 100 feet wide
on top and l:i feet deeji, with no other dimensions or specifications, what width of
bottom would an engineer understand to be required by such specification ?—A. It
would dei)end entirely upon the character of material through which the canal is cut.
Q. Illustrate how.—A. In the case of a canal cut through rock, an engineer, as a
rule, would cut the same width from top to bottom. In case of any material, as
clay or sand, he would make the side walls slope from 1^ to 1.
Q. What width would the allowance of that slope give on the bottom for a struct¬
ure of this kind, taking the width as 100 and the depth as 13 feet ?—A. If it was
a good stiff clay, 1 would calculate that, the bottom would be from 70 to 74 feet in
width ; if it was in sand, I would make it less wide.
Mr. Shaw (to Mr. McCakter). In putting your question, I understood you to use
the words " at top" in connection with the width of the canal. 1 have had trouble
myself in construing the act of Congress on this subject—whether Congress meant to
legislate for a ditch that should be 100 feet wide, and bnilt in ditch fashion, or
whether it meant that the ship-canal should be 100 feet wide all the way through.
Mr. Van Eaton. I do not see any way of getting at that question here, as to the
meaning of the act of Congress ; let the words of the act be read to the witness.
Mr. McCarter (reading): "And provided further,that said ship-canal shall be at
least 100 feet in width, with a depth of water not less than 13 feet."
Mr. Van Eaton. Now, I understand Mr. Shaw's question to be as to what that
means.
•The Witness. 1 never was able to tell what Congress did mean in an act. Ido
not want to volunteer any explanation of this; but if the question were asked me
what 1 thought it meant, 1 could answer it.
Mr. Payson. As an engineer, what do yon think that the words meant ?
The Witness. I should think it meant 100 feet at the top.
Sir. Payson. And with such a slope as you have described ?
The Witness. Yes.
Mr. Payson. Varying with the character of the soil- through which it was exca¬
vated ?
The Witness. Yes.
By Mr. Shaw:
Q. Did 1 understand you to say that if this cut were made in sand the slope wonld
be greater in a sandy soil than in a clayey soil?—A. Yes; because sand moves more
readily and easily.
Q. How wonld the width of the caual at the bottom differ if it was cut in a sandy
soil or aclayey soil ?—A. If I were ordered to construct a canal through sand or through
clay, 1 should make the slope of the canal through sand at least double that of the
one through clay.
Q. AVhat width would that leave at the bottom of the canal then ?—A. About 44
feet.
Q. Would that be a ship-canal?—A. Yes, it would.
Colonel Wilson, p. 171 ;
Q. If the act of Congress had required a harbor for the accommodation of such ves-
POKTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 19
sels, that would not be a fulfillment of the act, would it?—A. I told you before that
1 could never construe an act of Congress.
Q. 1 did not ask you to construe the language; the act contains the "harbor;"
we know what a harbor is; would that construction, completed in that way, be a
harbor, provided that at all times, in case of rough weather, vessels were uuable to
pass in and out?—A. The acts of Congress provide for the construction of harbors
all along the great lakes ; when we construct those harbors in compliance with the
act of Congress, we do not invariably have a harbor which can be entered at all
times; on the contrary vessels have very frequently been obliged to anchor outside.
Q. Where the pier had been extended to a depth of water ál feet in the first place,
have you ever known an instance where, between the close of one season and the
opening of the next, there had been deposited in 21 feet of water a shoal of sand
lessening the depth of water by '.i feet f—A. No ; for 1 have never seen piers built
into 21 feet depth of water.
Mr. Paysox. Why so f
The Witness.* Because they bave never been carried out beyond 16 or 17 feet,
wherever 1 have seen them.
Colouel Wilson, page 175:
Q. As to entering harbors in a storm ; are there any harbors anywhere that can be
entered in all kinds of storms ?—.t. 1 eau tell you as to the harbor of refuge at Cleve¬
land, Ohio. '1 had fifteen expert sailors, the best men that 1 could get on the lakes,
and I told them to go out into the lake at various times, with the wind blowing from
every possible" direction, with heavy gales, and that they must make the harbor of
refuge of Ch-veland, or go ashore aud all be drowned ; and 1 told them to locate the
piers so that they could make the harbor. This they could not do; but they did
locate the piers in such a way that they thought they could get in at almost all
times, and they claimed that if their plans were adoiJted they could get in at any
time. They were univei-sally of that opinion.
Q. Do they get in at any time ?—A. The work is not entirely completed yet.
Q. Do you know of any other harbor where vessels can get in at any time ?—^A.
No, sir.
Mr. Payson. What has been the success of that experiment at Cleveland up to the
present time f
The Witness. There has been no trouble in vessels getting in, so far as I know,
wherever they have attempted to get in.
Major H. M. Kobert, Corps of D". S. Engineers, report to Secretary
of War, page 2 :
There is nothing, in ray judgment, to justify the constrnctiou of an outer harbor of
refuge at this point. There is plenty of harbor room inside, and the only difficulty ex¬
perienced is in entering the canal. The placing of a breakwater to cover the head of
the canal would do nearly as much harm as good; because, while it might make the
water smoother, it would cut oif the straight approach to the canal, and thus increase
the difficulty of making the entrance. The vessel captains, 1 understand, do not think
that such an "improvement" would be any improvement at all.
Mnlocb, jip. 29, 30 :
Q. Did you hear the 'estimony of Mr. Wright, just given?—A. 1 did.
Q. Will you describe what you remember of the examination which he made, of
the part you took in it, and how it was conducted?—A. We went through the canal;
we commenced at the Portage Lake end; I stood up in the boat, and had, as far as 1
can recollect, a 16-foot pole, 1 think it w.as; 1 measured the pole elf to Mr. Wright
from both ends, and marked it with red chalk all around ; I marked 14 feet of water
on the pole; then we started, and the young man that wasin'the boat rowed, and I
stood up iu the boat aud sounded; I stood amidships, not in the bow,and the boy sat
forward to row, and Mr. Wright had the tiller-ropes in his hand and steered about 10
feet from the side of the canal; I would first sound on one side, which he saw, for he
was not 3 feet from me. aud then I sounded on the other side ; and in that way we
went through the canal and out into Lake Superior, aud sounded all around, and then
down the other side of the canal; and then we came back through the center zigzag
from one side to the other, back and forth.
Q. Then you traversed the canal three times in that operation ?—A. Yes, sir.
Q. First on one side, then on the other, aud then zigzag ?—A. Yes, sir.
Q. What was the depth of the water at that time in the canal ?—A. There is no
place that had less than 14 feet of water at that time.
Q. Did you make the sounding correctly ?—A. I did.
Q. Do you remember whether !Mr. Wright had the specifications with him or not ?—
A. No, sir ; I do not.
Q. Did you sound out in the harbor between the piers ?—A. Yes, sir.
20 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
Q. How was tLat conducted ?—A. In the same way ; we sounded all over the har¬
bor ; we did not go out at the end of the piers ; the pole wouldn't reach at the end of
the piers.
Q. How do you know it would not ?—A. I know there was 21 feet at the west end.
Q. You are acquainted with the fact, are you ?—A. Yes, sir; well acquainted.
Q. How long did you stay on the canal?—A. I w.is on it three years at that time.
Q. Was that before or after its completion ?—A. Before.
Q. Then what subsequent connection had yon with it?—A. I left the canal then
for more than a year ; Í can't exactly recollect how long ; and then took charge of the
canal from Mr. S. L. Smith. •
Q. Who is S. L. Smith ?—A. He belongs to the firm of Smith & Harris ; I think he
was the agent of the receiver, Mr. Knox, at that time.
. Q. The bondholders' agent ?—A, Yes, sir.
Q. Can you tell when it was that you commenced work under Mr. Smith ?—A. Yes,
sir ; the first day of November, 1872.
Q. Did your employment continue until the time of this examination ?—A. Yes, sir.
Q. And afterwards?—A. Until the 1st of November, 1873.
Q. Then did you cease to be employed on the canal?—A. Yes, sir.
Q. Did you ever have any connection with it afterwards?—A. No, sir; none what¬
ever.
Q. Are you able to say whether the canal, through its whole length, was at that
time 100 feet wide and 13 feet deep?—A. Yes, sir.
Mr. Davis. It was.
Q. You mean to say it was?—A. It was.
Prjor, p. 40:
Q. Give the committee some information as to the durability and permanence of
these structures after ten years'use and exposure to the storms and other injuries.
which the situation gave rise to.—A. Nineteeu-twentieths of the plank that Mr.
Förster had 'put down on those piers is there now. The^ only place that has had a
failure at all was in this angle, 450 feet from the canal, on the west side. '
This is but a slight portiou of a mass of testimouy, all to the same
efi'ect.
But probably the most conclu.sive evidence that the canal has an¬
swered the purposes for which it was constructed, and the value of the
same to the commerce of the lakes, is the actual use made of it.
There was filed with the committee a schedule taken from the books
of the superintendent, showing that all the large steamers and other
vessels on Lake Superior use the canal freely. The vessels are named
and the schedule is given for each year from 1873 to 1883, inclusive.
We give here simply the recapitulation for each year.
RECAPITULATION.
Statement of steamers and vessels passing through the Lahe Superior Ship-Canal during fall
of 1873.
Tons-
is steamers, making 41 trips, total tonnage 23,256
3 vessels, making 4 trips, total tonnage 1,142
Total 24,398
Statement of steamers and vessels passing through the Lake Superior Ship-Canal.
SEASON OF 1874.
Class of vessels.
Number.
Passage.
Tods.
5
2
21
4
35
37
222
97
2,732
1,499
176,804
41,028
Total
32
391
222, 063
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 21
Statement of steamers and vessels passing through the Lahe Superior Ship-Canal—ContM.
SEASON OF 1876.
Class of vessels.
Number.
Passage,
Tons.
17
3
3
2
211
114
19
41
153,806
54, 056
1,439
1,756
25
385
210, 337
SEASON OF 1876.
16
2
1
3
252
45
3
106
157,275
29,784
165
4, 066
22
406
191,290
SEASON OF 1877.
4
20
2
4
3
278
28
11
130
185,324
19,292
1,389
5.116
Steamers...
Total
29
447
211T121
SEASON OF 1878.
259
106
6
218,146
9,458
1,085
Tags
Sail
371
228, 689
SEASON OF 1879.
14
3
5
2
271
40
6
3
231,936
4, 002
1,151
1, 096
Total :
24
. 320
238,185
SEASON OF 1880.
* ^
Number.
Tonnage.
259
30
11
16
218,227
32,90O
4,626
968
Total
316
256,721
SEASON OF 1881.
327
15
274,192
5,546
Total
342
279,738
22 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
Statement of steamers and vessels passing through the Lake Superior Ship-Canal—Cont'd.
SEASON OF 1882.
Number.
Tonnage.
391
29
44
338,479
10,467
2,930
Total :
464
351,876
SEASON OF 1883.
438
44
10
298,062
13, 575
748
Total
472
312,385
The evidence of proper construction from the certificates of the gov¬
ernor and his agent and engineers, from the oral testimonj' of intelli¬
gent and expert witnesses, and from the actual use made of the canal
for the ten years succeeding its completion, is absolutely conclusive.
The prosecution introduced nothing in way of rebuttal that was worthy
of consideration.
The canal, then, having been completed according to contract, the
right of the State and her grantee in the lands became vested, and it
is not in the power of Congress to resume the grant. If such power ex¬
isted, the exercise of it would be unjust. The lands are all in the hands
of third parties, who, under the circumstances, had a right to rely upon
the validity of their titles. Hence both equitably and legally Congress
is estopped from any attempt toYorfeit these grants.
AS TO SELECTIONS.
We first declare our finding on the testimony that the lands tcere
selected as required by the acts granting them, and in precise accord¬
ance with the above limitations. We speak as to the testimony some¬
what more particularly hereafter, but our limits do not permit us to
reproduce it, nor is it desirable that we should. It is manifest that by
the terms of the acts making these grants the Secretary of the Interior
was clothed with power to determine the lawfulness of the selections,
and whether or not they were made in accordance with the limita¬
tions, and to give or withhold his approval ; that is, he was to use
judgment and discretion; he was first to find the existence of cer¬
tain facts, and was then to apply to them the law. This was done.
The selections were made by the agent of the State, and the Secretary
confirmed them, and accordingl5^ certified the lands to the State in the
customary way. Thereby title passed as fully as if patents had been
issued. Subsequently the State conveyed the land to the private cor¬
poration, " The Portage Lake and Lake Superior Ship-Canal Company,"
in xiayment lor the construction of the iniblic work by said company.
Much testimony has been taken by^ us, as to whether the actual con¬
struction was according to law. Our time has been wasted on this sub¬
ject. We find (as above stated with the majority) that the law was
complied with in the construction, and that the title to the grants
was fairly earned. This private corporation had borrowed great sums
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 23
of money upon the lands by way of issue of bonds, secured by mort¬
gage, and the holders of these bonds (lenders of the money) having
purchased the lauds at foreclosure salej formed a new corporation called
" The Lake Superior Ship-Canal, Eailroad and Iron Company," which
is now, and has been for nearly ten years, the owner of the lands, ex¬
cept those which it has sold to individuals and other corporations, so
that, as above stated, the recitation in the resolution that the Portage
Lake and Lake Superior Ship-Canal Company now claims to own said
lands so selected is not true.
The following principles of law, decisive of the matter, have beeu es¬
tablished by a continuous and unbroken line of decisions. The act of
the Secretary of the Interior iu confirming the selections, and certifying
them to the State, was an exercise of power of a judicial character.
His deteriuiuation was not subject to review or reversal by his succes¬
sor iu office or by any appellate tribunal in a direct proceeding. It is,
consequently, not subject to collateral attack in any court sitting at law,
or by Congress, or by any power anywhere, except upon the ground of
the want of jurisdiction in the Secretary, and jurisdiction idainly ex¬
isted. It is not enough to show mere errors and irregularities. Even
if erroneous, the decision is binding until reversed by some appellate
tribunal, created by.law, or annulled collaterally for fraud by a court
of equity before the lands pass into third parties for value without no¬
tice. The adjudication of the Secretary is not subject to collateral at¬
tack in Congress, under the'resolution referred to this committee, for
error in the selections, because such attack would be the exercise by
Congress of judicial power, being a review of the decision of the Secre¬
tary of a judicial nature, and Congress possesses no judicial power. In
the case of Plank Eoad Company vs. Woodhull (25 Mich., 99), the su¬
preme court of Michigan, speaking by a distinguished jurist, Chief-
Justice Cooley, declared that the legislature could not exercise author¬
ity judicial iu its nature, and that an act determining that a company
had violated the provision of its charter was void as an attempt to ex¬
ercise judicial power and pass on questions of private right. So an act
of Congress reversing the determination of the Secretary that those
lands were in fact nearest the canal would be void. (See also Davis vs.
Gray, 10 Wall., 228.)
The United States Supreme Court has so many times laid down the
above propositions that it would be superfiuous to incumber this report
with all the citations. We give only one from Steel vs. Smelting Com¬
pany (106 U. S., 450) reviewing some jirevious cases:
We have so often had occasion to speak of the Land Department, the ohjecfc of its
creation, and the powers it possesses in the alienation by patent of portions of the
public lands, that it creates an unpleasant surprise to find that counsel, in discussing
the effect to ie given to the action of that department, overlook our decisions on the sub¬
ject. That department, as we h.ave repeatedly said, was established to supervise
the various proceediugs whereby a conveyance of the title from the United States to
portions of the public domain is obtained, and to see that the requirements of differ¬
ent acts of Congress are fully complied with. Necessarily, therefore, it must consider
and pass upon the qualifications of the applicant, the acts he has performed to secure
the title, the nature of the land, and whether it is of the class which is open to sale.
Its Judgment upon these matters is that of a special tribunal, and is unassailable, ex¬
cept by direct proceedings for its aunulment or limitation. Such has been the uni¬
form language of this Court in repeated decisions. *
In Johnson vs. Towsley, the effect of the action of that Department was the subject
of special consideration. And the court applied the general doctrine " that when the
law has confided to a special tribunal the authority to hear and determine certain mat¬
ters arising in the course of its duties, the decision of that tribunal, within the scope
of its authority, is conclusive upon all others,'" and said, speaking by Mr. Miller, " that
the action of the Land Office in issuing a patent for any of the public land, subject to
24 PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS.
sale by pre-emption or otherwise, is conclusive of the legal title, must be admitted under
the principle above stated, and in all courts, and in all forma of judicial proceedings,
■where this title must control, either by reason of the limited powers of the court or
the essential character of the proceeding, no inquiry can he permitted into the circum¬
stances under tchich it was obtained." (13 Wall., 72, 83.) ■ '
In French vs. Fyan a patent had been issued to the State of Missouri for swamp and
oyerflowedlandunder the act of September 28,1850, C. 84. In an action of ejectment by
a party claiming title under a grant to arailroad company, -which -would have carried
the title if the land were not swamp andoverflowed, parol testimony was offered to prove
that it was not land of that character, and thus to impeach the validity of the patent.
The court below held that the patent concluded the question, and rejected the testi¬
mony. The case being brought here the ruling was sustained.
In Quinby rs. Conlau, decided at the last term, wo said : " It would lead to endless
litigation, and be fruitful of evil, if a supervisory power were vested in the courts
over the action of the numerous officers of the Land Department, on mere questions
of fact presented for their determination. It is only when those officers -have miscon¬
strued the law applicable to the case, as established before the Department, and thus
have denied to parties rights which, upon a correct construction, would have been
conceded to them, or where misrepresentations and fraud have been practiced neces¬
sarily affecting their judgment, that the courts can, in a proper proceeding, interfere and
refuse to give effect to their action. On this subject we have repeatedly and with
emphasis, expressed our opinion, and the matter should be deemed settled." (104 U.
S., 420-426; see also Vance vs. Burbank, 101 Id., 514.)
The principle that the decisions of the Land Office, like those of any
court, cannot be questioned collaterally, applies in aZÎ cases, whether
rival claimants appear, whether the United States contest, or whether
no one appears except the applicant. Anybody has a right to intervene
as everybody takes notice, as in a proceedings re;«; United States w.
White," 17 ,Fed. Eep., 563-4. Consequentlj', the decision is good as
against all the world as in proceedings in rem.
In regard to the decision of the Land Department in Vance vs. Bur-
bank (101 U. S., 514), the present Chief Justice said :
The appropriate officers of, the Land Department have been constituted a special
tribunal to decide such questions, and their decisiotis qre final to the same extent that
those of other judicial or quasi judicial tribunals are.
There is another view leading to the same result. As stated above,
the definite location and certification of the lands passed the title out
of the United States as effectually as a patent would have done, and
the State acquired afee simple.
Act August 3,1854, 10 Stat, at Large, 346 : "An act to vest in the
several States and Territories the title in fee of the lands which have
or may be certified to them."
Missouri, &c., Eailway Company vs. Kentucky Eailway Company, 97
U. S., 496: Congress cannot rescind a patent or a title equivalent to a
patent, for that would be the exercise of judicial power.
The above statements of the law applicable in this inquiry are free
from doubt, and cannot be further elucidated by amplification.
AS TO SUIT TO VACATE TITLE.
There can be no suit to determine the legality of the selections, ex¬
cept a bill inequity by the Attoriiey-General, in the United States court
in Michigan, to assail the title for fraud extrinsic to the matters passed
on by the Secretary. This is inexpedient, because such a proceeding by
bill would inevitably prove ineffectual to disturb the titles against either
the original grantees or the present holders; and, in our judgment,
ought to be ineffectual to disturb these titles ; and because it would be
grossly unjust to impose the expenses of litigation.
1. We have seen that the original private corporation which dealt
with the State performed the work to the satisfaction of that common-
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 25
wealth, and earned the lauds by making an expenditure in the work of
at least six times the Government price of them, and we have before us
no evidence whatever of fraud or misbehavior ou the part of either the
State or that corporation as to the Secretary's decisions. The necessary
presumption is that all the evidence adverse to the title to the lands has
been laid before this committee, and such evidence as has been submitted
clearlj' would not authorize a court of equity to rescind a title in fee
simple at the suit of the United States, even against a grantee who had
not conveyed to an innocent purchaser. The evidence does not estab¬
lish even errors of fact, as we hold above, and these, if shown, would
not be sufficient, in the absence of fraud in some matter outside the
matter passed on by the Secretary. Perjury and forgery, if passed on
by the Secretary, would not invalidate his decision when shown collat¬
erally to a court of equity. {8ee cases helow.) The selections were made,
upon the evidence, as to both grants, in accordance with the limitations
above stated imposed by law. This has been established before this
committee, both by the findings of the proper officers, by the testimony
of those witnesses to the transactions who are still living, and by the
opinions of the Attorney-General and Solicitor-General. We have
space only for the merest epitome of the evidence. The findings and
certificate of General Land Commissioner Wilson, an officer of great
experience and the highest character; of Secretary Browning, an ac¬
complished lawyer, who had been Senator and Attorney-General; of
Land Commissioner Edmunds; Secretary Delano, and other competent
and upright officers; together with the opinions of Solicitor-General
Phillips and Attorney-General Williams, and the testimony of such men
as the distinguished Professor Pumpelley, and of the local Register
Campbell, establish before us a strict conformity to law in making the
selections, as to all the limitations expressed in both acts.
Were this not so, and did the evidence show to us errors on both law
and fact in the selections, such errors could not be corrected by the pro-
I)osed suit in equity. We have demonstrated above that the determi¬
nation of the Secretary as to the validity of the selections is equivalent
to & judgment. i\lr. Freeman in his justly celebrated work on judgments,
See. 499, declares that there is a perfect unanimity of opinion that equity
will never relieve from judgments upon any issue of law or facts, or,
because the decision is contrary to equity. Fraud in the obtaining of
the decision must be shown. (Freeman, Sees. 487, 488, 489.) So the
United States Supreme Court, inTilton vs. Cofield (93 U. S., 163), say
that a court of equity cannot review and correct errors in a determina¬
tion at law; nor, in the absence of fraud, collaterally question the con¬
clusiveness thereof. Now, the resolution referred to this committee
does not charge any fraud in the selections, but merely errors of fact ;
and there has been no evidence of fraud before the committee.
2. Innocent purchasers.—But, even if fraud were alleged and proved,
it would avail the Government nothing in the proposed suit by bill
against the present holders, who are shown by the testimony (without
contradiction) to be purchasers who had nothing to do with the selec¬
tions, and who had no notice of any informality in them, who paid a mil¬
lion of dollars and more ¡mrchase money, and have been in possession,
selling parcels to their friends, nearlj' ten years.
3. Who are the jjresent holders f
(1) The canal and iron company which bought the land at a judicial
sale, on foreclosure of mortgages executed by that corporation which was
the State's grantee in possession. The present cor])oration is composed
solely of persons who were creditors of the old corporation and other per-
H. Rep. 2031 3
26 POETAGE LAKE AND LAKE SUPERIOK SHIP-CANAL GEANTS.
sons, not in any way interested in the old corporation, who have bought
stock in the new.
(2) The holders of twenty years' leases from the new corporation, to
the extent of nearly 3,000 acres.
(3) The vendees of about 20,000 acres from the new corporation.
(4) The vendees of the timber of nearly 70,000 acres from the new cor¬
poration. Now, the titles of purchasers at judicial sales are favored, and
are held valid, even although the judgments are set aside. (McGoon
vs. Scales, 9 Wall., 23 ; Gordon vs. South Fork Canal, 17 A. L. Eeg.,
279.)
But the defense of the present holders, as innocent purchasers, to a
suit in equity by the Government would be 'perfect. Not oue single
person among the present holders ever had any notice, or w.is ever put
on inquirj' as to any invalidity in the conveyance from the Government
to the State. The law is unquestionable, and is settled by the highest
tribunal in the land, before which the proposed suit would come on ap¬
peal. Mr. Pomeroy, in his new and excellent work on Equity, declares
(sec. 871, end) :
The affirmative reliefs of reformation and of cancellation are, however, subject to
the limitation that they .are never conferred against a ionafide purchaser for value, and
without notice.
In Boon vs. Chiles (1836) (10 Peters, 210), the Gnited States Sujireme
Court says:
This leads to ' the reason for protecting an innocent purchaser, holding the legal
title against one who'has the prior equity; a court of equity can act only on the con¬
science of the party; if he has done nothing that taints it, no demand can attach upon
it so as to give any jurisdiction. Strong as a plaiutitf's equity may be, it can in no case
he strongiT than that of a purchaser who has put himself in peril by purchasing a title,
and paying a valuable consideration, without notice of any defect in it or adverse
claim to it.
In Lea vs. Polk Co. Copper Company (1858) (21 How., 497, 498), the
same court declares this doctrine to stand on general principles of just¬
ice, namely, that bona fide purchasers of a legal title cannot be assailed
in equity. In Croxall vs. Shererd (1866) (5 Wall., 268), the doctrine is
reaffirmed in the strongest language: "A purchaser bona fide holds ad¬
versely to all the world, and may disclaim the title under which he en¬
tered, and set up even as against his vendor any title whatever."
In TJ. S. vs. B., &c., E. Co. (1878) (98 U. S., 342), the court says:
It (the United States) certainly could not insist upon a cancellation of the patents
so as to affect innocent purchasers under the patentees.
The doctrine of bona fide purchasers for value without notice of fraud,
can alicays, when such purchaser holds the legal title, be successfully
maintained as a defense (and we have shown that the present holders
have such a title). Authorities cited next heloic.
There is only otzccase where the doctrine of bona fide purchaser
is not a defense, that is, where his legal title is absolutely void. (Storj-
Eq. Jur., Sec. 64 c; H. S. vs. S. C. Co., 18 Fed. Eep., 279). Here the
title is in any view merely voidable, and not void. So held by the Su¬
preme Court in the recent case of United States vs. Schurz (102 Ü. S.,
400, 401), which covers the precise point that the' legal title from the
Government, for lands not subject to be selected and conveyed by the Gov¬
ernment is not void, but merely voidable. It results that the present
holders are, as in justice they ought to be, protected from ouster by the.
Government, and they ought not to be annoyed by useless litigation.
But there is another consideration. A title from the United States,
passed on by the Land Department, can be set aside only for frauds
PORTAGE LAKE AND LAKE SUPERIOR SHIP-CANAL GRANTS. 27
extrinsic or collateral to tbc matter passed on by the Secretary, and
cannot be set aside for a fraud in a matter on which the decision is
rendered. "iFaZse testimony, or forged documents even, are not enough if
the disputed matter has actually been presented or considered by the appro¬
priate tribunal (e. g., in the present case, whether the lands were
nearest the canal.) This is the unanimous opinion of the Supreme Court
in Vance vs. Burbank (101 IJ. S., 519, 5J0), applied to a question of resi¬
dence and fraud decided by the Land Office. See also the recent full
opinion in U. S. vs. White (17 Fed. Eep., 561) ; U. S. vs. Throckmorton
(98 TJ. S., 61) ; Marquez vs. Frisbie (101 TJ. S., 473). What evidence can
this committee, or the House, lay before the Attorney-General, as the
basis of his suit proposed by the majority 1 Hone whatever.
4.- Belay, laches, and estoppel.—A fourth consideration and of great
weight is delay. When the Government goes into court it surrenders
its sovereignty, and laches is as imputable to it as to any other corpo¬
ration or individual claiming title and going into court to enforce it.
Speaking on this subject the Sui^reme Court says, in a land-grant case,
Davis t's. Gray (16 Wall., 232):
Wben she or her representatives are properly trouglit into tlie forum of litigation,
neither she nor they can assert any right or immunity as incident to her political
sovereignty. It, the Government, stands upon the same footing as a private indi¬
vidual (U. S. rs. Throckmorton, 4 Sawyer, 43).
The United States as owners of land within a State, stand like any
private proprietor, except as to exemption from taxation and from in¬
terference by the State with the primary disposal of the lands (Wood¬
ruff vs. N. B. Co., 18 Fed. Eep., 712).
5. It does not appear that the United States have been injured, pe¬
cuniarily or otherwise. Ho damage is alleged in the resolution nor
shown in the testimony. The land was for sale to any one at $1.25 per
acre, and the parties expended greatly more. Ho equity is shown in
any rival claimant. Courts of equity do not sit to correct unconscien¬
tious acts followed by no loss or damages. (1 Story Eq. Jur., 213.)
Hothing appears to put Congress or a court of equity iu motion.
lu this connection may properly be brought forward the point that
neither Congress nor a court should do a vain and useless thing, such
as it surely would be to set aside the selections for this reason. Any of
the selections being now set aside the grants would become pro tanto
unsatisfied and unfilled, and the testimony has established that the dis¬
puted lands are now the nearest to the canal, and, indeed, the only lands
in the upper peninsula of Michigan remaining to be taken. It results,
of course, that it would be competent for the new corporation, which is
clothed by the legislation of Michigan with the franchise to take the
grants, could immediately reselect the identical selections in order to
fill the grant. See as to this subject the language of Mr. Justice Miller
in the case of the grant for the benefit of the Burlington and Missouri
Eiver Co. (4 Dillon, 297), in a bill to cancel the patents of its land-grant
selections : " If these patents were set aside the company would now
ask that the same lands be repatented to it."
We recapitulate, and sum up our conclusions as follows:
1. The lands are by the terms of the granting act subject to forfeiture
only for non-completion of the public work as required within the time.
The public work having been completed as required within the time,
the lands are not liable to forfeiture.
2. The lands embraced in the selections, are shown by the evidence
to be of the character embraced in the granting acts.
3. If the selections were not of tjiat character, that fact would not
28 POETAGE LAKE AND LAKE SUPEEIOR SHIP-CANAL GEANTS.
make the lands subject to forfeiture, uor make the decisious of the Sec¬
retary approving them subject to collateral attack iu Congress or in the
courts.
4. A complete legal title iu fee-simple passed from the United States
todhe State when the selections were certified to the State, which title
thereafter passed from theStateto the Portage Lake and Lake Superior
Ship-Canal Company, and from it, through a judicial sale, to the " Lake
Superior Ship-Canal Kailroad and Iron Company," and from it (as to large
parts of the lands) to various lessees and veudees.
5. Such a proceeding in the courts, as recommended in the majority
report, ought not to be instructed, liecause it could not be sustained for
these reasons, to wit: The decision of the Secretary cannot be attacked
for error collaterally. It cannot be attacked for grounds extrinsic or
collateral to the matter passed upon by the Secretary, and neither the
existence of such frauds, nor indeed of any fraud at all, is even attempted
to be proved, and we can report none to the Attorney-General as the
basis of his suit. The Portage Lakb Company does not now claim to
men such selections (as recited iu the resolution), but a valid legal title
in fee simiile to these lands is held by third parties, buna fide holders for
value without notice. These present have a perfect defense to any suit
by the United States.
6. It would be unjust and oppressive in the Government to attempt
to disturb these titles.
7. It would be a useless thing to set aside the selections because the
company would immediately re-select the same lands to fill the grants.
And we close by quoting the appropriate language of Mr. Justice
Field:
The Government of tlie United States, tlirongli one set of its ofiScers, after mature
deliberation and argument of counsel, has issued its certificates of lists, that the lauds
in controversy were covered by the grant, and has thus encouraged the expenditure
of millions of money in the construction of a public highway, by which the wilder¬
ness has been opened to civilization and settlement; and then on the other hand,
after the work has been done, and the money expended, with another set of officers,
and all the machinery of the judiciary, attempts to render utterly worthless the titles
it aided to create, and put forth upon the world. Such proceedings are not calcu¬
lated, in my judgment, to enhance our ideas of the wisdom with which the law is
administered, or of the justice of the Government. (L. L. & G. E. E. Co. vs. U. S.,
92 U. S., 759.)
All of which is respectfully submitted.
L. E. PAYSOU.
H. B. STRAIT.
JAS. B. BELFORD.
Without entering into an.y of the reasoning of either majority or
minority reports, much of which we do not indorse, we are content to
state our conclusions as members of the committee. We eoncur in the
resolution'that the evidence fails to show that the lands gxanted are
forfeitable. We concur in the conclusion of the minority that the
Attorney-General should not be instructed to bring suit, &c., as the
resolution of the majority directs, for the reason that we believe that it
would be fruitful of nothing but costs to the Government.
WM. 0. GATES.
H. S. VAU EATOU.
C