and its demands satisfied, so far as they relate to the initial point of the road. Therefore any other point of connection with Lake Superior, subsequently established by the company, must necessarily have been effected outside the terms of its charter. It is the settled law that where power is given a chartered company to do an act, that power becomes exhausted when once exercised, unless it clearly appears from the charter that a continuous exercise of the power was intended (East Tenn., etc., R. R. Co. v. Frasier, 139 U. S., 288). I do not think any such intention is to be gathered from the company's charter in this case.

It is scarcely conceivable that Congress could ever have designed that the grant company, when it had once made its connection with Lake Superior within the terms and conditions prescribed, should afterwards be allowed to form other connections, and finally designate and establish the one most advantageous to its interests and which would secure to it the largest amount of lands under its grant; or that it should be allowed to use and operate such first connection as a compliance, to that extent, with the terms of the grant, and afterwards waive such compliance and establish another connection; or that it was contemplated that the company could, under its grant, establish more than one principal point "of trade and trans-shipment on Lake Superior." No such powers are given in express terms, and I do not think they are fairly inferable from any reasonable construction of the grant. And the company could not establish such rights, or confer such powers upon itself, by resolution of its Board of Directors or otherwise.

It is also the settled law that all grants like the one under consideration are to be construed most strongly against the grantees. In the case of Fertilizing Co. v. Hyde Park (97 U. S., 659-666) the supreme court said:

The rule of construction in this class of cases is that it shall be most strongly against the corporation. Every reasonable doubt is to be resolved adversely, Nothing is to be taken as conceded but what is given in unmistakable terms, or by an implication equally clear. The affirmative must be shown. Silence is negation and doubt is fatal to the claim. This doctrine is vital to the public welfare. It is axiomatic in the jurisprudence of this court.

See also Pearsall v. Great Northern Railway, 161 U. S., 664.

Hence, the right of the Northern Pacific Company, after having once effected a connection of its road with Lake Superior, under the terms of the grant, by means of the consolidation and association aforesaid, to effect another and different connection under the grant with said lake, can not be recognized unless such right is given in clear and unambiguous terms. The same is true of the right of the company, under its grant, to establish several "principal points of trade and trans shipment" on Lake Superior as claimed. In neither case do I find such authority given by the granting act.

As furnishing additional light upon the question under consideration reference is made to Smalley's "History of the Northern Pacific Railroad," published in 1883, a work which purports to give a detailed statement of all the facts and circumstances which led up to the making of the grant by Congress for the purpose of "connecting the waters of the Great Lakes with those of the Columbia River and Puget Sound," together with a complete history of the organization of the company under the grant, and of all its transactions relative to the construction and operation of the road from the beginning down to 1883. The work appears to have been written and published from the standpoint of entire friendliness toward the company, if not, in fact, for the purpose of promoting its interests. It may not be amiss, therefore, to quote a few extracts from it bearing upon the question, and as showing some of the current historical facts connected with the selection by the company of the eastern or lake terminus of its road. On page 145 the author, after speaking of the election of a new board of directors in May, 1867, says:

The new board appointed Edwin F. Johnson chief engineer, and ordered him, under direction of the President (of the company), to commence surveys and locate a line between Lake Superior and the Red River of the North; also to explore the western end of Lake Superior, with a view to the location of the eastern terminus of the road.

On page 151, the author, speaking of the work of the engineers and the report of Johnson, their chief, says:

The search for a good harbor for a lake terminus was confined to three pointsChegwamigon Bay and the Lake Shore behind the Apostle Islands (the same as Ashland); Superior Bay at Superior City, Wisconsin, and Superior Bay at Duluth, Minnesota.

On pages 186-7 it is said:

In June, 1870, a contract was made for the construction of the Minnesota division of the road, and ground was broken in July, at Thomson's Junction, where the line left the Lake Superior and Mississippi Railroad. A half interest in the road of the latter company from the Junction to Duluth was purchased, and an artificial harbor was created at Duluth by cutting a canal across the low sandy peninsula through which vessels could enter the waters of the bay. The town of Superior, lying in sight from Duluth across the bay, had a natural harbor, and had been waiting for a quarter of a century for the railroad to give it prosperity. Great disappointment was felt in that town at the determination of the Northern Pacific to make its terminus at Jay Cooke's new speculative city of Duluth, and the governor of Wisconsin was induced to bring suit against the company on account of a dyke constructed in Superior Bay, within the limits of Minnesota, which it was alleged was detrimental to the harbor of Superior. This suit was withdrawn on the promise of the company to build a line to Superior and to put that place on an equal footing with Duluth for lake traffic; a promise which the company was not able to redeem until 1882.

The large banking house of which Jay Cooke was the head was at that time the financial agent of the Northern Pacific Company, which doubtless explains the reference to his name. It would thus seem that of the three points considered, Duluth was finally selected and deter

mined upon as the eastern or lake terminus of the road; and only a promise was made "to build a line" to Superior, not for terminal purposes, but in order "to put that place on an equal footing with Duluth for lake traffic."

On page 205 the road is spoken of as having been built, prior to the panic of 1873, "westward from Lake Superior to the Missouri River, a distance of about 450 miles." At that time the only road the company had east of Thomson's Junction was the road owned and operated by it together with the Lake Superior and Mississippi Company, under the arrangement aforesaid, and yet the road is spoken of as having been built from Lake Superior 450 miles westward.

On page 382 the author continues:

The Lake Superior and Mississippi Railroad was opened through from St. Paul to Lake Superior in the summer of 1870, and became the supply line for the transportation of construction materials for the Northern Pacific. The purchase of a half interest in its track east of the junction fixed Duluth as the lake terminus of the Northern Pacific line, and caused the remote and almost unknown hamlet bearing that name to develop, with great rapidity, into an active town.

From another part of the work (Ch. 28) it appears that during the years 1877-80 the company made repeated but unsuccessful efforts to secure additional aid from Congress for the building of the road, and an extension of the time prescribed for its completion, the last effort in that direction having been made in 1880, at which time it is stated that:

The company was energetically pushing the road from both ends. The gap remaining to be built June 25, 1880, was at that time about one thousand miles.

It thus seems that as late as 1880 the company still regarded and relied upon the arrangement effected with the Lake Superior and Mississipi Company as a compliance with the terms of its grant relative to that part of the road between Thomson's Junction and Lake Superior; otherwise it could not have been said that the road was being pushed forward" from both ends," or that the only part remaining to be built was "the gap" of about one thousand miles. This gap must necessarily have been west of the western boundary of the State of Minnesota. In the annual report of the President and Directors of said company to its stockholders, made September 27, 1876, the following statements are found:

The twenty-five miles of railroad used by this Company between Thomson Junction and Duluth, was built by the Lake Superior and Mississippi Railroad Company, and is a part of their road from Duluth to St. Paul. The line of the Northern Pacific extends on the southerly side of Lake Superior to the easterly border of Wisconsin, at Montreal River. But to save a duplication of expenditure, its original managers contracted for the purchase of a half interest in the Lake Superior and Mississippi Road, between Thomson and Duluth, agreeing to pay therefor half a million of dollars, in installments. . .

...

The bondholders of the Lake Superior and Mississippi Road having indicated their intention to commence foreclosure proceedings under their mortgage, it was deemed

important to conclude prior arrangements for securing the permanent use of this piece of road,

...

After a long and tedions negotiation, an arrangement has at length bren made, by which the use of the road is secured,"

It thus appears that it was "to save a duplication of expenditure" that the original managers" purchased a half interest in the Lake Superior and Mississippi road, and secured the "permanent use" thereof to the Northern Pacific Company. It may be pertinently asked how the expenditure thus sought to be avoided could be saved to said companies by the arrangement, if the same was not a consolidation, confederation and association of the two roads, such as the Northern Pacific grant authorized.

These brief references to some of the historical facts connected with the construction of the road will serve to illustrate the real purposes of the company in effecting the aforesaid arrangement with the Lake Superior and Mississippi Company. In my judgment, they point irresistibly to the conclusion that the company's object at that time was to thus connect its road with Lake Superior within the terms of its grant under the provision allowing it, for that purpose, to "consolidate, confederate and associate" with any prior land grant company, so far as both roads were upon the same general line.

In view of all the foregoing, my conclusions are:

1. That the arrangement made between the Northern Pacific Railroad Company and the Lake Superior and Mississippi Company, as shown, was such a consolidation, confederation and association of the two companies, as was contemplated by the grant, and that thereby a connection was affected with Lake Superior at the city of Duluth, in Minnesota, in the manner prescribed in the granting act, of the company's line of railroad to secure which the grant was made; and

2. That under the grant the eastern terminus or beginning point of said railroad on Lake Superior, must be established at said city of Duluth, and the company's rights east of Thomson's Junction must be determined accordingly.

In the adjustment of the company's grant for that part of the road from Thomson's Junction eastward to Duluth, on Lake Superior, therefore, the amount of land previously granted to the Lake Superior and Mississippi Railroad Company, namely, "the amount of five alternate sections per mile on each side of the said railroad on the line thereof, within the State of Minnesota," must be deducted from the amount of land granted to the Northern Pacific Company. The Northern Pacific Company will not be entitled to any of the granted lands within the common limits, nor can it have indemnity for the same, as lands lost in place. The amount of the prior grant is to be deducted from the amount of the Northern Pacific grant. Between the points named, therefore, the Northern Pacific Company will take only the granted lands within the lateral limits of its own grant, which fall outside the limits of the

former grant, and will be entitled to indemnity only for losses sustained outside the limits of the former grant.

It does not appear that said company has ever filed in your office, under section 3 of the granting act, a plat of the line of its road as definitely fixed between those points; nor does that part of the road appear to have been examined and verified to the President under section 4 of the act. I do not think it necessary, however, that these things should be done as to this particular part of the company's road-the same having been located and constructed by a prior land grant company, and accepted by the government under the prior grant. The authority given the Northern Pacific Company in its grant to effect a consolidation and confederation with a prior land grant road for the purposes stated, necessarily implies, I think, the acceptance by the government, under the Northern Pacific grant, of such prior road as constructed and accepted under the prior grant; and there would seem to be no necessity for filing a plat of definite location, because that has been done under the prior grant and the line of road definitely fixed thereby. To hold otherwise would be to require a duplication of work and expendi ture with no resultant benefit either to the government or the company. I see no reason, therefore, why you may not proceed at once with the adjustment of the company's grant eastward from Thomson's Junction to Duluth on Lake Superior, in accordance with the principles announced in this opinion.

RAILROAD LANDS-RES JUDICATA—ACT OF MARCH 3, 1887.

OSBORN ET AL. v. KNIGHT (ON REVIEW).

The doctrine of res judicata will not prevent departmental action where such course is the only one by which substantial justice can be secured, and the subject matter remains within the jurisdiction of the Department.

Under an application to perfect title in accordance with section 5, act of March 3 1887, to land excepted from a railroad grant on account of pre-emption filings, the good faith of the applicant's purchase from the company is not impugned by the fact that prior to said purchase he had been register of the land district in which the lands were situated, and must therefore have known that said lands were excepted from the grant by said filings, where it appears that during said period the Department did not recognize a pre-emption filing as sufficient in itself to work an exception under the grant.

The fact that the transfer from the company is by quit claim deed cannot of itself affect the right of purchase under said section; nor will the speculative value of the land be considered in determining the bona fides of the purchaser, especially where such point is raised by a stranger to the original transaction. The right of purchase under said section is not affected by a settlement claim initiated after the passage of said act.

The case of Balch v. Andrus, 22 L. D., 238, cited and distinguished.