APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA.
MR. JUSTICE LURTON delivered the opinion of the court.
The complainant, Richard G. Peters, through mesne conveyances, asserts an equitable title to some two hundred thousand acres of swamp or overflowed lands in the State of Florida, being a part of the congressional grant of September 28, 1850, to the State of Florida. By state legislation the title to the lands so granted was vested in the Governor of the State and four other state officials and their successors in office, as trustees, for the purposes set forth in an act of June 6, 1855, entitled "An act to provide for and encourage a liberal system of internal improvement in this State."
The title asserted is based upon a grant in aid of the
construction of a railroad, found in a legislative act of May 24, 1893, printed in the session laws of Florida for 1893 (Ch. 4267, No. 153, p. 223). That act purports to incorporate the Atlantic, Suwanee River and Gulf Railway Company, and authorizes it to construct and operate a railway between certain points within the State. The ninth and tenth sections read as follows:
"SEC. 9. That the State of Florida, for the purpose of aiding the construction of said railroad, its branches and extensions, hereby grants unto said company ten thousand acres of land for each mile of railroad it may construct, of the lands granted to the State of Florida, under the Act of Congress of September 28th, 1850, and which are commonly known as the swamp and overflowed lands; said lands to be deeded to the said company by the Trustees of the Internal Improvement Fund, as fast as each five miles of said road or any of its branches are graded, crosstied and rails laid thereon.
"SEC. 10. That upon the filing of a certificate of the completion of any five miles of said road or any of its branches, signed by the engineer and president of the said company, it shall be the duty of the Trustees of the Internal Improvement Fund to require the State Engineer or some other competent person to examine and inspect each five miles of road so completed; and on such person's or the State Engineer's report that the five miles are completed as certified, it shall be the duty of the Trustees of the Internal Improvement Fund to issue deeds to the said corporation, as required in the foregoing section; Provided, That the said corporation, its successors and assigns, shall have the privilege of requiring and having from the Trustees of the Internal Improvement Fund a certificate authorizing and entitling it to locate the lands which it may at any time have earned and become entitled to as aforesaid; and whenever and as often as the said corporation shall file with the Trustees of the Internal Improvement
Fund a plot and survey of the lands located by it in pursuance of a certificate given it by the Trustees as herein provided, the said Trustees shall set apart and upon demand execute unto said corporation, its successors or assigns, a deed conveying unto it the lands described in said plot and survey, from the swamp and overflowed lands granted to the State of Florida by the Act of Congress of September 28, 1850; Provided, That nothing in this Act contained shall make the State of Florida liable by reason of any deficiency there may exist in the public lands belonging to the State under and by virtue of the Act of Congress of September 28, 1850."
By the eighteenth section of said act it was provided that the railway company should receive the same quota of land on account of the construction of any part of the projected line by the Atlantic, Suwanee River and Gulf Railroad Company, theretofore incorporated for the same general purpose, upon receiving a conveyance of such constructed railroad.
The bill avers that the said railway company constructed twenty miles of railway, includig about five miles conveyed to it by the predecessor company above referred to, which had been inspected and certified to the Trustees of the Internal Improvement Fund by the state engineer, and that the company, in the exercise of the privileges conferred by the tenth section of the act, had demanded and received from said trustees certificates "authorizing and entitling it to locate lands" so earned, and to receive from the said trustees a deed conveying to it, its successors or assigns, the lands so located. It is then averred that the certificates, together with survey and map of locations had been regularly filed with the trustees, and a deed demanded, but that the trustees refused to make such deed and later conveyed the lands so located, or the greater part thereof, to the defendant Neil G. Wade, who had full notice of appellant's title, and who
subsequently conveyed the same to the defendant the Southern Timber and Naval Stores Company, who, it is alleged, also had full notice of the prior right of the said Atlantic, Suwanee River and Gulf Railway ...