[Swan & Billups v. Lindsey.] For this error, the decree of the Chancery Court must be reversed, and the cause remanded. BRICKELL, C. J., not sitting: Swann & Billups, v. Lindsey. Ejectment for Lands claimed under Railroad Grant. 1. Grant of lands in aid of railroads, by act of Congress of June 3d, 1856; what title passed thereby.-Under the provisions of the act of Congress approved June 3d, 1856, "granting public lands in alternate sections to the State of Alabama, to aid in the construction of certain railroads" (11 U. S Statutes at large, p. 17), and the subsequent act of April 10th, 1869, renewing said grant (16 Ib. 45), a present title to the lands passed to the State, subject to be devested, by proper action taken, for breach of the condition subsequent annexed to the grant; and though this title did not attach to any specific sections of land, until the route of the particular railroad, to aid in the construction of which the grant was made, was definitely located within the time allowed by said acts of Congress, no title remained in the United States subject to entry or sale. 2. Same.-Under said acts of Congress, the State heid the lands so granted in trust for the purposes specified, limited by the restrictions and conditions expressed in the grant; having absolute power to sell one hundred and twenty sections, within a continuous length of twenty miles of the road, before any work was done on it, and the further power to sell, as the work pr gressed, the same number of additional sections, within other twenty continuous miles, on the Governor's certificate to the Secretary of the Interior that such twenty continuous miles of the road were completed; and when any of the lands were sold and conveyed in pursuance of these powers, the purchaser acquired an absolute title, whether the railroad was ever completed or not. 3. Same; legislative joint resolutions of 1857-8, transferring said lands to railroad company.-Beyond the first one hundred and twenty sections, as to which an absolute power of sale was given, the State had no authority to sell or dispose of any of these lands, even to the railroad company itself, except in portions of twenty miles as the road progressed, and could not convey to its grantee or appointee any greater power or interest than was vested in itself. The joint resolutions of the General Assembly, approved January 30th, 1858, by which it was declared that the lands are hereby disposed of, granted to, and conferred upon " the railroad particularly designated, "to be used and applied by said company upon the terms, conditions and restrictions in said act of Congress contained," although strong words of grant and disposition are used, “which would, ordinarily, convey all the title of the grantor," must be construed in connection with the act of Congress, and do not convey to the railroad company any greater power or interest than the State itself had; and notwithstanding these joint resolutions, the legal title to said lands, beyond the first one hundred and twenty sections, remained in the State until the railroad was completed. 4. Same; statute of limitations, as defense to action for said lands. Statutes of limitation do not, unless so expressed, run against the State, 70 507 99 477 70 507 120 530 70 507 f124 230 70 507 128 389 70 507 136 321 136 322 136 323 [Swan & Billups v. Lindsey.] or the United States, nor does the statute begin to run until there is some one entitled to sue; and the title to these lands remaining in the State until the railroad was completed, less than ten years before the suit was brought, the statute of limitations is no defense to the action. APPEAL from the Circuit Court of Jefferson. This action of ejectment was brought to recover a tract of land, described as "the south-east quarter of the south-west quarter, and the south-west quarter of the south-east quarter, of section one (1), township seventeen (17), range one (1) west;" and was commenced on the 11th March, 1878. The declaration contained a count on a demise from the State of Alabama, "on, to-wit, the 3d June, 1856;" and a count on a demise from John Swann and John A. Billups, "on, to-wit, the 8th February, 1877." James Lindsey was summoned as the real defendant; and he appeared, and pleaded, "in short by consent, not guilty, with leave to give in evidence any matter or fact which might be specially pleaded, in the same manner as if specially pleaded." The trial was had, as the bill of exceptions states, upon the following statement of facts, which were agreed on by the parties." 66 "1. The lands sued for are in Jefferson county, Alabama, and formed a part of the lands granted and conveyed to the State of Alabama by the act of Congress of the United States, approved June 3d, 1856, entitled 'An act granting public lands, in alternate sections, to the State of Alabama, to aid in the construction of certain railroads in said State;' which act is hereby referred to, and made a part of this bill of exceptions. "2. The lands sued for formed a part of those embraced in and governed by said act of Congress of June 3d, 1856, and the following later acts of Congress: 1st, the act approved March 3d, 1857, amending said act of June 3d, 1856; 2d, the act approved April 10th, 1869, entitled 'An act to renew certain grants of lands to the State of Alabama;' which several acts are hereby referred to, and made parts of this bill of exceptions. "3. On the 2d March, 1870, the Alabama and Chattanooga Railroad Company made and executed a mortgage, under the provisions of the act of the General Assembly approved February 11th, 1870, entitled An act to loan the credit of the State of Alabama to the Alabama and Chattanooga Railroad Company, for the purpose of expediting the construction of the railroad of said company within the State of Alabama;' by which mortgage, the lands sued for, with others, were conveyed to the State of Alabama, in accordance with said act last mentioned, to secure the loan of said State to said company made in accordance with that act; which act was duly recorded," and is here copied in the bill of exceptions. [Swan & Billups v. Lindsey.] "4. On the 8th February, 1877, the State of Alabama conveyed the lands now sued for, with others, to the plaintiffs in this action, John Swann and John A. Billups, as trustees, &c.; which said conveyance is" here set out. "Said conveyance was made under and by virtue of the act of the General Assembly of Alabama approved February 23d, 1876, entitled 'An act to ratify and confirm the settlement of the existing indebtedness of this State as proposed in the report of the commissioners appointed under the act approved December 17th, 1874, and which was communicated to the General Assembly by message of the Governor of the 24th January, 1876, and to carry said settlement into effect by the issuance of new bonds of this State, at a reduced rate of interest, in adjustment of a portion of said indebtedness, and the surrender of certain securities held by the State in discharge of another portion of said indebtedness. All the acts of Congress, and all the acts of the General Assembly of Alabama, referred to in said conveyance, are made parts of this bill of exceptions." "5. One Matthew Allen entered the lands sued for, at the United States land-office in Tuskaloosa, on the 1st day of March, 1859, and received a certificate of entry," which is here set out. "Said Allen paid the whole purchase-money for said lands, to the officer of said land-office, and went into possession of said lands, and openly and notoriously retained and held said lands, honestly and adversely claiming the same, under said certificate, till the same was, on or about the 3d March, 1860, sold and conveyed by him to J. W. Bass, and afterwards sold by said Bass to the defendant in this suit; and said defendant has held said lands openly and notoriously, honestly and adversely claiming the same under said certificate and conveyance, continuously from that time, such holding extending back to the time of the original entry by said Allen; and he was in possession of said lands at the commencement of this suit. And it is agreed, that the defendant, and those under whom he claims, have had such adverse possession of said lands, under color of title, as would bar a recovery in this action, if, upon the other agreed facts in the case, the statute of limitations would bar the action. . "The joint resolutions of the General Assembly of the State of Alabama approved January 30th, 1858, designating the application of certain lands granted by Congress to the State of Alabama,' were read in evidence on the trial, by the defendant; and it is agreed that said joint resolutions, as published (Session Acts, 1857-8, p. 430), may be made a part of this bill of exceptions. It is agreed and admitted, also, that the Wills Valley Railroad Company, under the acts of the General Assembly passed in 1868, duly became the purchaser of all the rights, . [Swan & Billups v. Lindsey.] property and franchises of the North-East and South-West Alabama Railroad Company, and then (in 1868) duly became a corporation, known, then and ever since, as the Alabama and Chattanooga Railroad Company, and clothed with all the rights, property and franchises of the Wills Valley Railroad Company, and of the North-East and South-West Alabama Railroad Company. It is admitted, also, that no part of the road of the North-East and South-West Alabama Railroad Company, in Alabama, had been constructed or completed in 168; and that said railroad was completed between 1868 and June, 1870, by the Alabama and Chattanooga Railroad Company; and that the line of said railroad company was duly located, between March, 1868, and March, 1869; and that all the acts of the General Assembly of the State of Alabama, relating to any and all of said railroad companies, or to said lands, as the same are published, shall form parts of this bill of exceptions, without being copied herein." The act of Congress approved June 3d, 1856, may be found in the United States Statutes at large, vol. 11, pp. 17-18. The following are all its provisions material to this case: Sec. 1. "That there be, and is hereby, granted to the State of Alabama, for the purpose of aiding in the construction of railroads, from the Tennessee river, at or near Gunter's Landing, to Gadsden on the Coosa river; from Gadsden, to connect with the Georgia and Tennessee, and Tennessee line of railroads, through Chattooga, Wills, and Lookout Valleys; and from Elyton to the Tennessee river, at or near Beard's Bluff, Alabama, every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads. But, in case it shall appear that the United States have, when the lines or routes of said roads are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same; then it shall be lawful for any agent or agents, to be appointed by the Governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States nearest to the tiers of sections above specified, so much land in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold, or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid; which lands, thus selected in lieu of those sold and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid, and appropriated as aforesaid, shall be held by the State of Alabama for the use and purpose aforesaid: Provided, that the land to be so located shall in no case be further than fifteen miles from the lines of said roads, and [Swan & Billups v. Lindsey.] selected for and on account of each of said roads: Provided further, that the lands hereby granted, for and on account of said roads severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: And provided further, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands; in which case, the right of way only shall be granted, subject to the approval of the President of the United States." Sec. 2. "That the sections and parts of sections of land which, by such grant, shall remain to the United States, within six miles on each side of said roads, shall not be sold for less than double the minimum price of the public lands when sold; nor shall any of said lands become subject to private entry, until the same have been first offered at public sale at the increased price." Sec. 3. "That the said lands hereby granted to the said State shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no other; and the said railroads shall be and remain public highways," &c. Sec. 4. "That the lands hereby granted to said State shall be disposed of by said State only in manner following, that is to say that a quantity of land not exceeding one hundred and twenty sections for each of said roads, and included in a continuous length of twenty miles of each of said roads, may be sold; and when the Governor of said State shall certify to the Secretary of the Interior that any twenty continuous miles of any of said roads is completed, then another quantity of land hereby granted, not to exceed one hundred and twenty sections for each of said roads having twenty continuous miles completed as aforesaid, and included within a continuous length of twenty miles of each of said roads, may be sold; and so, from time to time, until said roads are completed; and if any of said roads is not completed within ten years, no further sale shall be made, and the lands unsold shall revert to the United States." Sec. 6. "That a grant of lands shall be made to said State, to aid in the construction of the following roads, to-wit: * * the North-East and South-Western railroad, from near Gads. den, to some point on the Alabama and Mississippi State line |