Northern Pacific R. Co. vs. Doherty. range 11 W., in Douglas county, Wisconsin, having made a homestead entry thereof November 8, 1882, and obtained a patent February 6, 1890. The appellant claims a right of way from east to west 100 feet in width across this quarter section upon which its railway line is constructed and operated. This right of way has never been acquired by the appellant or its grantor, the Northern Pacific Railroad Company, by purchase or by condemnation, but the appellant claims it by virtue of the terms of the act of Congress approved July 2, 1864, incorporating the Northern Pacific Railroad Company, and granting to it, among other rights and privileges, a right of way through the public lands of the United States. This act authorized the corporation thereby created to construct a railroad "beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin," westward to "some point on Puget Sound," and the controlling question in this case is whether the eastern terminus of the railroad constructed under the act is at Duluth, Minnesota, or at Ashland, Wisconsin. If at Duluth, then the company acquired no right of way over any public lands in Wisconsin, but if at Ashland, then it did acquire right of way over public lands in Wisconsin, including the land in question, by virtue of the act of incorporation. The facts were not in dispute, and were all settled by a written stipulation. From this stipulation the following facts appear: On July 2, 1864, the land in question was public land of the United States. On November 8, 1882, the petitioner, Doherty, made a homestead entry thereof, and thereafter complied with the homestead laws, and received a patent from the United States, purporting to convey the lands, February 6, 1890. In December, 1883, the Northern Pacific Railroad Company took possession of the strip in controversy, and constructed a railroad upon it, and remained in possession operating the railroad until August 31, 1896, when Northern Pacific R. Co. vs. Doherty. all the property, rights, and franchises of said railroad company were sold to the appellant, the Northern Pacific Railway Company, a Wisconsin corporation, which is duly organized to operate said railroad, and has occupied said strip for railroad purposes. The Northern Pacific Railroad Company, of which the appellant is the successor in interest, was organized by, and obtained its rights under, an act of Congress approved July 2, 1864, and entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route." By the first section of this act, a corporation created thereby was authorized to lay out and construct a continuous railroad and telegraph line beginning at a point on Lake Superior, in the state of Minnesota or Wisconsin, thence westerly upon the most eligible route, as shall be determined by said company, within the United States and north of the forty-fifth degree of latitude, to some point on Puget Sound. By the second and third sections of the same act the right of way through the public lands of the United States was granted to said railroad company, its successors and assigns, for the construction of the line, and it was also provided that, if its route should be found to be upon the same general line as the route of another railroad which owned a previous land grant from the United States, the amount of said previous land grant should be deducted from the amount granted by this act, provided that the railroad owning the previous grant might assign its interests to the Northern Pacific Railroad Company, or might consolidate, confederate, and associate with said company upon the terms named in the first section of the act. The lands granted to the Northern Pacific Railroad Company by the act amounted to ten alternate sections per mile on each side of the line within the states, and twenty alternate sections in the territories, with a ten-mile indemnity limit, and by resolution Northern Pacific R. Co. vs. Doherty. of Congress of May 31, 1870, an additional indemnity belt ten miles in width was created on each side of the line. This act was accepted by the company within the time required by law. The act also required the company to procure legislative consent of the states through which it was to run before its construction, and in the year 1865 the legislatures of Minnesota and Wisconsin gave such consent. The Minnesota act provided that, if the eastern terminus of the road should be located east of the eastern boundary of Minnesota, then that the company should construct or cause to be constructed a railroad from its main line to the navigable waters of Lake Superior at some point within the state of Minnesota. In 1870 the company located its general route from the mouth of the Montreal river in Wisconsin, across Wisconsin and Minnesota, to a point on the Red River of the North, near Fargo, and transmitted a map showing this location, August 13, 1870, to the Secretary of the Interior. This map showed the proposed general route to commence at the mouth of the Montreal river; thence a little south of west upon a direct line to a point directly south of, and about six miles distant from, the south end of Chequamegon Bay; thence a little north of west upon a direct line crossing the state boundary between Wisconsin and Minnesota at or near the point where the St. Louis river becomes such boundary. Upon receipt of this map, the Secretary of the Interior transmitted it to the land commissioner, with instructions to withdraw from sale, homestead, and pre-emption all oddnumbered sections of land within twenty miles of the line within both states. This order was complied with by the land commissioner by directions given to the district land officers at Bayfield, Wisconsin. Such withdrawals were made, and the price of the even-numbered sections was raised to $2.50 per acre, and thereafter large quantities of such land were sold by the government at the rate of $2.50 per acre. Northern Pacific R. Co. vs. Doherty. In 1882 a map of definite location of said railroad from a point upon the St. Paul & Duluth Railroad, now called Thompson Junction," eastward to a point in section 15, township 47 N., of range 2 W., in the state of Wisconsin, was prepared, and approved by the directors, and certified and forwarded to the Secretary of the Interior. The line of definite location laid down on this map followed substantially the line of general location upon the prior map, but it turned to the north, and touched Superior, and also Ashland, and stopped some ten miles west of the mouth of the Montreal river. Upon receipt of this map of definite location the land commissioner, by direction of the Secretary of the Interior, adjusted the land grant in accordance with it, and prepared diagrams showing the limits of the grant and indemnity belts, and transmitted such diagrams to the district land officers, with the proper directions as to the withdrawal of lands, which were complied with. August 2, 1884, the directors of the Northern Pacific Railroad Company adopted a resolution fixing the eastern terminus of the railroad at the city of Ashland, which resolution was duly certified and transmitted to the commissioner of the general land office December 3, 1884. Thereafter the commissioner prepared a diagram showing the final eastern terminus of the line at Ashland, and sent the same to the district officers at Bayfield, with instructions to adjust the grant on this basis. The point so fixed is on the line of definite location of July 6, 1882, but about twelve miles west of the east end of that line. The Northern Pacific Railroad Company constructed a continuous line of railroads from the city of Ashland to Puget Sound in all respects in accordance with its act of incorporation, and the whole line has been duly accepted by the President of the United States, as provided in that act. That portion of the road extending east from Thompson Junction was constructed upon the line of definite location. Northern Pacific R. Co. vs. Doherty. shown in the map of 1882, and was constructed during the years 1881, 1882, 1883, and 1884. The first section extended from Thompson Junction to Superior, and was examined and reported favorably upon by commissioners in 1882, and the recommendations were approved by the President September 16, 1882. The second section, extending from Superior to the Brule river, was constructed in the latter part of 1883, and crossed the land in question here, and was approved in like manner January 31, 1884. The third section extends from the Brule river to Ashland, and was approved in like manner February, 1885. It appears further that March 6, 1865, one Joshua Perham, then the president of the Northern Pacific Railroad Company, transmitted to the office of the land commissioner a map purporting to show the proposed general route of the Northern Pacific Railroad. Upon this map there appeared two lines from a point in the present state of North Dakota eastward, one terminating upon Lake Superior at or near Duluth, and the other extending into Wisconsin some distance south of Lake Superior, and terminating at the mouth of the Montreal river; this last-named line being apparently partially obliterated by a wavy red line. This map was accompanied by a letter from Perham, stating that it shows the general line of the Northern Pacific Railroad from a point on Lake Superior, in Wisconsin, to a point on Puget Sound. The Secretary of the Interior transmitted this map to the land commissioner, suggesting the withdrawal of the lands along the line, but the land commissioner soon afterwards transmitted a letter to the Secretary of the Interior recommending that the map be rejected, for the reason that the same did not comply with the rules of the land department, which recommendation was approved by the Secretary. There is nothing to explain the apparent alteration of this map, nor to show when it was made, and it is not shown that the directors of the company ever authorized the |