David Josiah Brewer

“ If the construction contended for were accepted, it would exclude from the benefit of the act any settler upon these lands who knew that the land he entered upon was within the railroad grant. But legislation respecting public lands is to be construed favorably to the actual settler, and the construction contended for by the canal company seems to us too narrow. ”

“ The second matter which the act was not to prejudice was 'any right of forfeiture, as hereby declared, or recovery of the United States in respect of any of the lands claimed by said companies.' The meaning of this clause is not so clear. A reasonable construction is that all the provisions in the act, including both the forfeiture and the special confirmation named in section 3, are not to prejudice any right of recovery which the United States may have as against any lands claimed by the companies. ”

“ It is insisted that all parties-the railroad companies, the state, and the land department of the United States-so understood the scope of the resolutions, and acted upon that understanding. But it does not follow, because the main line in Wisconsin was moved eastward, that congress deemed it unwise or un necessary to attempt to reach the waters of Lake Superior at Ontonagon. It may have supposed that the aid already granted to the Ontonagon line, and which it did not in terms disturb, was sufficient to insure its construction to a junction with the new main line ”

“ It will be difficult to discover any equitable reason why a pre-emption claim should be confirmed, and a homestead claim disallowed. In like manner, where a grant was made to the state in aid of the construction of some work of a public or quasi public character, the construction of the work is the consideration of the grant, and when that is accomplished the consideration is received and retained by the government. ”

“ That is, if there be any lands within the scope of the original railroad grant of 1856, to which any or either of these companies make any claims, and which are not clearly protected by the confirmation mentioned in the third section, the full rights of the government in respect to such lands may be enforced, irrespective of such section. ”