dissenting. In stating my views of this case, it is only necessary that I should examine the single question, upon which I disagree with the conclusions at which a majority of the Court have arrived. This question involves the right of the Canal Trustees, by laying off the premises in controversy into town lots, to diminish the quantity of land to which the complainant would otherwise be entitled. The rights of both parties are derived under, and depend upon, the canal law of February, 1843, and the acts supplemental thereto. Under these laws, the legal title to the canal and canal lands was conveyed to the trustees, in trust, for the purpose of raising money and completing the canal, and for the payment of certain debts due from the State, after which the remaining property is to revert to the State.
I maintain, first, that the Trustees are to be considered purchasers, of this land under the law of 1843, which is to be considered a contract between the State and the Trustees, representing the other cestui que trusts. The fact that the State has a residuary interest in the subject of the conveyance, and in the trust fund, in no wise changes the rights of the plaintiffs, or the title which they hold. They are to be treated precisely as if they had purchased the property absolutely, and are entitled to no greater immunities, than as if the State had parted with all of her equitable, as well as her legal title. None of the sovereign prerogatives, or special favors, which the State, as owner of the land, might claim, passed to the Trustees. As a remote cestui que trust, the State cannot assert her extraordinary and sovereign privileges, in this legal controversy with parties to whom she has transferred all of her legal, and part of her equitable title. When she mixes up her rights with others, she descends to their level, so far as those rights are concerned, and does not elevate them to hers. This has been repeatedly decided by the Supreme Court of the United States, in the cases of the United States v. The Planters’ Bank, 9 Wheaton, 904; The Bank of the Commonwealth of Kentucky v. Wister, 2 Peters, 318, and Briscoe v. The Bank of the Commonwealth of Kentucky, 11 Peters, 324. The Court, in the last case, after referring to the former, says: “They show that when a State becomes a stockholder in a bank, it imparts none of its attributes of sovereignty'to the institution, and that is equally the case, whether it own the whole or a part of the stock of the bank.”
Unless expressly exempted by law, this property is subject to all the incidents and liabilities of private property. The Board of Trustees are liable to be sued like other corporations, and it will not be denied, that their corporate property is liable to be seized and sold for the payment of their debts. If this were not so, the right to sue them would be a barren right, without any practical results or benefits. But for the express exemption by law, this property would be liable to taxation the same as private property. This has been substantially decided, by this Court, at the present term, in the case of the Canal Trustees v. The City of Chicago, where it was held that canal lots were liable to special assessments for opening streets. Had the State continued the owner of the land, it would not have been liable to such assessments, and the decision, as I understand it, is placed expressly upon the ground, that the Trustees are purchasers for a valuable consideration, and as such, their property is liable to public burthens, except where expressly exempted by law. In delivering the unanimous opinion of this Court, in that case, the Chief Justice says: “It is insisted that the canal lands, are to be regarded as the property of the State, and therefore exempted from the payment of the assessment. This proposition cannot be maintained. The State, for a valuable consideration, has grahted these lands to the Board of Trustees.” And again: “The State cannot now be regarded as the owner of the lands.” In my judgment, this places the title of the Trustees in its true light, and I feel called upon to carry out this doctrine, to its legitimate extent, and to apply it, wherever it is, in my judgment, properly applicable.
This disposes of all of that part of the argument, which relied upon the continuing interest of the State in these lands, and of the sacred character of the fund to be raised from them. This is no more sacred, than it would be if it belonged to the State creditors, or the Trustees alone. For the present then, I may safely lay out of view all idea of State interest in these lands, and treat the Trustees as absolute bona fide purchasers, under the law of February, 1843. Under that act, the Trustees acquired their title, and they took it subject to all the liabilities imposed by that act. It enters into and forms a part of their contract of purchase, and they are bound to perform all its obligations, whether to the State or to others. One of those obligations is, that they shall sell to those persons who are entitled to pre-emptions under the proviso to the thirteenth section of the law, the lands and lots, on which their improvements are situated; and that obligation is to be construed the same as if they had, by a separate agreement, after they had received the title, and for a valuable consideration, agreed with the pre-emptors, in person, to make such conveyance. That obligation was a part of the consideration of the conveyance, and its sufficiency they cannot be allowed to question. As parties to such a contract for a conveyance, I shall therefore hereafter consider them.
I will now examine, what right the pre-emptor has under the law.
The thirteenth section of that act, specifies many of the duties and obligations of the Trustees, and among other things, provides, that “the said lots, lands and water powers, shall then be offered for sale by said Trustees, at public auction, in lots and legal subdivisions, once or oftener in each year, for four succeeding years.” And the section concludes with the following proviso: “ Provided, that in all cases where improvements were made upon the said canal lands or lots, previous to the first day of February, eighteen hundred and forty-three, the owners of such improvements, shall be entitled to purchase the said lands or lots on which said improvements are situated, at an appraisement to be made as aforesaid, without reference to said improvements.” In order to understand these provisions properly, we must remember, that before they were granted to the State by the general government, all the canal lands had been surveyed into legal subdivisions, according to the system of surveys of the United States lands, as it existed in 1819, and that previous to the passage of the law in question, many of those lands had been laid out into town lots by the old Board of Canal Commissioners. This explains the meaning of the words, “in lots and legal subdivisions,” in the above clause, providing for the sale of the canal lands. In no other quantities or form, could the Trustees offer these lands for sale, either to persons entitled to preemptions or others, and it is understood, that so literal have been the Trustees in their construction of this provision, that parties entitled to pre-emptions, have been required to attend the public sales, and when the lands which they were entitled to purchase, were offered at public auction, then to bid the amount of the appraisement; and this was undoubtedly a very reasonable precaution.
This direction, as to the mode of sale, enables us to determine with unerring certainty, what was meant by the words “said lands or lots” as used in the proviso, as- specifying what the preemptor should have the right to purchase. Those words are manifestly used as descriptive of two classes of property. The word lands was intended to describe all that portion of the canal lands, which had not been subdivided into town lots, and by the word lots, was intended, town lots. This is too clear to be doubted, and I shall not stop to prove, what must strike every one as undeniable. This law provides that the owner of the improvement shall have the right to purchase the land on which his improvement is situated. The same section provides that the land shall be sold in legal subdivisions. The law, therefore, expressly inhibits the sale to him, of less than a legal subdivision, and as he has the right to purchase the land, there is no escaping the conclusion, that he has the right to purchase the legal subdivision on which his improvement is situated. This legal subdivision is such as is made by the government surveys. His right to this, is just as clear, 'as if the proviso had stated in express words, that the owners of improvements should have the right to purchase the legal subdivisions of lands not laid off into town lots, on which their improvements were situated. The language of the act is thus specific in relation to town property, for the word lots is as definite as tracts or legal subdivisions of lands. It means a specified area, defined by known boundaries, previously established, in a legal mode. No language could well have been used to have secured to the owner of the improvement, the right to purchase the entire lot on which he had made the improvements, whether they covered the entire lot or not, and are we to suppose, that the legislature intended to be less specific, less just, or less liberal to the settler upon farming lands, than to the inhabitants of the towns? The truth is, all were intended to be treated alike.
The course of the argument, now leads me to inquire into the nature of the provision made in favor of the settler, by this act.
That here was a grant of rights, to the owners of these improvements, cannot be denied, for the same legislature in another canal law, passed only eight days after, for the purpose of limiting the operation of the proviso, calls them “pre-emption rights granted by the provisions” of the former law. This right of preemption has been declared by this Court, in the case of Delaunay v. Burnet, 4 Gilman, 454, to be property, the subject of alienation, and liable to be sold on execution. And in the case of Lytle v. The State of Arkansas, 9 Howard, 335, the Supreme Court of the United States distinctly declared, that the right of pre-emption was a vested right. That Court said: "By the grant -to Arkansas, Congress could not have intended to impair vested rights. The grants of the thousand acres, and of the other tracts, must be so construed as not to interfere with the pre-emption of Olayes.” Here there was a vested right of property granted to Scott and his assigns, as valid and efficacious, as if they had been mentioned by name in the grant, and it was as binding and meretorious, as if he had paid a consideration in money for it. That it was considered meretorious, is conclusively proved by the fact of the grant to him, and who is at liberty to deny or inquire into the sufficiency of the consideration money to the State, for a grant which she is authorized to make? Even the State herself, with all her sovereign power, is not at liberty to assume that a grant which she has made, was without consideration, and to resume, limit, or abridge it. These plaintiffs, as well as others, are interested in maintaining inviolate, this sacred principle of the fundamental law. If the State herself cannot do this, much less should the Court be asked to assume, that the grant was made upon an inadequate consideration, for the purpose of inducing us to limit or lean against it, when the State herself makes no complaint. All that the State granted, as to her, was passed and perfected. It required no further action on her part, to give it efficacy. As to her, the grant was executed. What remained to be done, to enable the grantee to enjoy the benefit of the grant, the trustees in effect covenanted with the State that they would do. I say covenanted with the State, for such was the nature of the obligation which they assumed, by accepting the transfer to them, under the provisions of this law. This obligation was a part of the consideration of the transfer to them, and they cannot question the consideration which they received for the undertaking. It was this agreement to convey to the owners of the improvements, the lands and lots on which their improvements were situated, which the State granted to them. Such was the nature of this grant. By it the pre-emptors became the obligees of the trustees, who assumed the obligation to sell to them the legal subdivisions, according to the government surveys, of lands, not laid off into town lots, upon which their improvements were situated, and that they would sell to the owners of improvements upon town lots, the lots on which their improvements were placed. I shall assume throughout, that I have shown, incontrovertibly, that this is the true construction of the words lands and lots, in the proviso. I take it that this obligation is as binding upon the Trustees as if they had, with full authority of law, after they acquired the legal title, entered into a covenant for a full consideration paid, with the pre-emptors, to convey to them the tracts and lots on which their improvements are situated, specifically describing each. Although in the undertaking which they did assume, neither the names of the persons to whom the conveyance was to be made, nor the lands to be conveyed, are specified, yet the means of ascertaining both are provided, and when thus ascertained, the obligation is precisely the same, as if they had been given. The consideration is as sufficient, and the obligation as strong, in the case before us, as in the one supposed, and should be construed to secure the same right. When the Trustees are called upon to execute their undertaking, and to make effectual the grant made by the State, upon what principle can their counsel contend, that the grant was made without sufficient consideration? that it was a mere boon—a gratuity, without merit, and without claim to favor? I have already shown that the pre-emptors have the merit of a legislative grant, and they are entitled to legal favor, which is nothing more, than the even handed justice of having the charter of their rights construed as favorably for them, as against them. If they claim under a grant from the State, the plaintiffs hold all their rights by virtue of the same law, and there is as much reason for applying the the strict rule to the one as the other. But I hold that it is applicable to neither, and that a just and reasonable construction should be given to the rights of both, such as is always applied in controversies between individuals. Whether this grant was a mere boon, or made in pursuance of the most sacred obligation, is not for the party to urge, or for the Court to consider. The rights of the parties before us should be construed, the same as if arising out of the same contract between individuals. Suppose the legislature had sold these lands absolutely to the plaintiffs, who had then on their part entered into an agreement with one who had made improvements, both upon farming lands and town lots, that they would convey to him, the legal subdivisions of land and the town lots upon which his improvements were situated. In the construction of such a contract, would any one contend, that they would have the right to subdivide the tracts of lands and lots, and then say to the purchaser, you shall not have the legal subdivision or town lot, as it existed at the time we made the contract, but you shall be content to take such portions as we choose to assign you, embracing your improvements? The bare suggestion of such a proposition, would be startling to all our notions of justice. It was not the improvements alone, or the lands covered by them, which was contracted for, but it was the tracts of lands and lots upon which they were situated, the entire tracts and lots. I cannot appreciate the propriety or the justice of thus allowing one party, to circumscribe or fritter away the rights of the other. To me it is an anomaly in the construction of obligations. It could never have been the intention of the legislature, to leave it to the plaintiffs to say, how much or how little, the purchaser should take under the right which was granted him, and which they were bound to execute. That would be in effect to make them the arbitrary and sole judges of their own liability,, and a law which makes a man a judge in his own case, is abhorrent to the first principles f natural justice, and no approach to it, can ever be imputed to the legislature.
It was insisted at the bar, that the right of the trustees to reduce the quantity of land which they were bound to convey to the owners of improvements, might be inferred from the authority which they have to lay out into town lots, lands suitable therefor. By the canal law of 1836, the Canal Commissioners were authorized and required to lay off into town lots, all lands suitable for that purpose, and by the eighth section of the act of February, 1843, it is provided, that the Board of Trustees “ so far as is not inconsistent with this act, shall possess all the powers and perform all the duties conferred upon the Board of Commissioners of the Illinois and Michigan Canal, by the act entitled 1 An act for the construction of the Illinois and Michigan Canal/ approved January the ninth, eighteen hundred and thirty-six, and the acts supplementary and amendatory thereto.” One of those powers and duties, undoubtedly was to lay off towns, but without that provision, they would have been authorized, under the general statute, to have done the same thing, and as faithful trustees, it would have been their duty to have done so, whenever the interest of the trust fund required it. That statute conferred no new authority, nor did it impose any new duty, and its existence does not alter the case in any point of view. How can it, if the law is the same without it as with it ? And I shall not stop to prove so plain a proposition, until it is denied. But even admitting that they could only exercise the right of laying off towns under this old statute, thus adopted, still the adopting clause only authorizes its exercise, when that can be done consistently with the provisions of the last act. Whenever its exercise, would in any way infringe upon or impair the rights granted by this act, it would not be compatible with it; and and then the exercise of such rights, is not only not conferred, but is actually restrained. Whatever authority was conferred upon the Trustees by the act, should not, if it can be avoided, be construed as subversive of the rights granted to others. There certainly could have been no rights conferred upon the Trustees inconsistent with a plain duty imposed upon them. If we were right when we decided that the Trustees are to be considered as purchasers of this land for a valuable consideration, and' I am right in my conclusion, that their right, to lay off town lots, is the same and no more than that of other purchasers who hold in trust, with authority to sell, then they are restrained from the exercise of that right, whenever its exercise would diminish their liabilities to others, or infringe upon the vested rights of third parties, the same as other proprietors of land would be. Could an individual, by the exercise of his general authority to subdivide his lands, reduce the tract which he had agreed to sell, and also his own liability to convey ? Suppose I have improvements upon surveyed lands and town lots, belonging to another, and he agrees to convey to me the lands in legal subdivisions, and the town lots, on which my improvements are situated, could he subdivide the lands and lots, so as to diminish the tracts or parcels to 'which I would otherwise be entitled? In an individual it would be considered a subterfuge, which would meet with ' little countenance in a court of equity. He would, at once, be required to convey the property in the legal subdivisions and town lots, as they existed at the time the agreement was made. My rights would be enforced as they existed at the time I acquired them. Who would tell me, that at the time I made the agreement, I knew that the law authorized him to subdivide the lands into town lots, and that I, therefore, took it subject to that right? If any did, I should answer with confidence, that by making the agreement, he had parted with that right.
One of the counsel, with the view of enforcing his argument, based upon the authority of the Trustees to subdivide, read the provision of the law of 1836, which conferred that authority upon the Canal Commissioners, in immediate connection with, and as if introduced into the proviso, which grants these preemption rights, but in doing so, he took, as I think, the unwarrantable liberty of introducing it in such a way as to make the right to the settler, subservient to the right of the trustees to subdivide. So far from this being authorized by the law of 1843, the reverse is required by the very terms of the eighth section, which revives, in the Trustees, the powers conferred on the old Commissioners. I think the counsel would have got much nearer the intention of the legislature, had he introduced the limitation clause contained in the eighth section of the law of 1843, in connection with both, so that all might have been understood together. If he had done so, the whole provision would have read thus: “ Provided, that in all cases where improvements were made upon the said canal lands or lots, previous to the first day of February, eighteen hundred and forty-three, the owners of such improvements, shall be entitled to purchase the said lands or lots, on which said improvements are situated, at an appraisement to be made as aforesaid, without reference to said improvements;" and “so far as is not inconsistent with this act,” the said Trustees “ shall examine the whole canal route, and select such places thereon, as may be eligible for town sites, and cause the same to be laid off into town lots, and they shall cause the canal lands, in or near Chicago, suitable therefor, to be laid off into town lots.” This transposition, as I conceive, gives the true meaning of the several provisions on the subject, and when so read, it is very clear to my mind, that there was no power conferred on the Trustees, to subdivide the lands, so as to limit the right conferred on the pre-emptor, as it existed at the time of the grant. When thus exercised, it would be inconsistent with the provisions of the act which made the grant.
Let us view this right granted in another light. Suppose that in consideration of money paid into the state treasury, or the surrender of canal bonds at the time the act was passed, this proviso had required the Trustees to convey to the owners of the improvements, the legal subdivisions of lands or town lots on which their improvements were situated, without any further compensation; would the Trustees have had the right to diminish the extent of the claim, by a subdivision of the lands? The fact that a further consideration is to be paid to the Trustees, in nowise changes the character of the right granted by the state, or the liability imposed upon the Trustees. Indeed, the argument, that by subdividing the land, and thus diminishing the extent of the claim, they might increase the trust fund, if a just one, would be more forcible then than now: for then, there would be a real saving; while now, the pre-emptor pays the full value of every foot of land which he gets. But in my judgment, the argument itself is illegitimate. Here was a right granted, into the consideration of which we have no right to inquire; and it was as fixed and determinate as if the act had granted to Scott, by name, and his assigns, the tract or legal subdivision of land on which his improvements were situate; and when ascertained, required the Governor or Trustees to make him a conveyance therefor. It was never intended by the legislature, that these rights should be subject to the control of the Trustees; any more than that the rights of the Trustees should be subject to the control of the pre-emptors. To the Trustees they granted certain rights, which we should never allow to be invaded; and to the settlers, whether they were considered as objects of bounty or of justice, they granted certain other rights, which should be equally protected.
If it is determined that the Trustees have the right to subdivide the lands, and make the pre-emptors take up with a part, then they must have the same right to cut up the town lots. But this can never be. It is the lots upon which the improvements were situated, and not other lots, the right to purchase which was granted, subsequently to be carved out. It seems to me, that the Trustees have obligated themselves to convey the lots as they were then situated, in as plain terms, as if each lot had been described by its number or boundary. That is certain which can be rendered certain. It was not even contended on the argument, that there was any more authority for subdividing one description of property than the other. I see no way of escaping the conclusion, that the decision in this case will determine that the lot does not mean the lot upon which the improvement was then situated, but another lot which the Trustees might subsequently lay off, embracing the improvement. If so, the word the was applied to a very indefinite subject.
But admitting all that was said on the argument, going to show that the great object of the legislature was to secure to the occupant the improvement which he had made, and not to allow him to speculate out of the canal fund, and still it does not prove that it was their design to confine him to the ground actually covered by his improvement. The grant is of the right to purchase the lands and lots on which their .improvements are situated, and not that portion covered by their improvements. The idea that they should be confined to the latter, is not only rebutted by the express words of the act, but also by the fact that they are required to pay the full value of the land, exclusive of the improvement. If the purchaser pays the full value of all the laud he gets, then the trust fund is not injured by his being allowed to purchase the entire lot or subdivision. While it would be a convenience to the settler, to allow him to get sufficient land to make a suitable plantation, it would be no detriment to the trust fund. It would be accomplishing the policy of the law, which is to dispose of the lands at their full value, as soon as possible; to have them improved, and add to the general wealth of the state; to make them subject to taxation, and increase her revenues. And it was never the intention of the law, that the Trustees should turn speculators, and withhold the lands from sale, in the hope of an uncertain advance. Every precaution was taken, that the lands should not be sold for less than their real value; and in this whole record, there is not an intimation that the land in controversy was not appraised at its full value; but all the evidence shows the reverse. The controversy seems to be, who shall have the benefit of the appreciation since? It is a new doctrine, if this belongs to the seller after he is bound to convey.
It is well known, that the settlers in a new country first make small improvements, increasing them as their means and time enable them; and it takes many years before they reduce to cultivation all that they design, or all that is convenient for a farm. To deprive them of the means of extending their improvements beyond their first garden, would be to deprive them of all the real value of their first improvements. The legislature well knew this, and acted in view of it. These rights were granted in 1843; and it was known that the lands would not be brought into market for some years, during which time it must have been foreseen that the settlers, both in town and country, would desire to extend their improvements; and it was manifestly the design of the legislature, to enable them to know how much they would be entitled to purchase, that they might improve accordingly. And now, shall we establish a rule which will enable the Trustees to deprive them of all the improvements made since the passage of the law? If the right claimed for the Trustees be legal, then they may, as was done in this very case, run streets and alleys through a man’s enclosed field, which existed at the time of the passage of the law, and thus destroy his improvement for the very purpose for which he desires it.- In. this very case, the Trustees have donated to the city of Chicago, as streets, the very land, confessedly, which they were bound by the law and their contract to convey to the pre-emptor. Is not this a violation of their express contract, and an outrage upon the vested rights of Scott and his assigns? He is not allowed to take the whole, even of his original improvement, in existence at the time of the' passage of the law; for a part has been conveyed in fee to the city, while, in order to get the remnant, he is obliged to pay the Trustees for the part of which he is thus deprived;for the evidence shows, that that was included in the appraise- ■ ment which he has to pay to get the pittance allowed him Surely this was a new kind of vested rights, which Scott acquired. If such is the true construction of the law and the-contract, then indeed they “hold the word of promise to the ear, but break it to the hope.”
The decision which is made supercedes the necessity of determining what constitutes a legal subdivision. As I agree with the majority of the Court, as to who are entitled to pre-emptions, that the rights are assignable, and in fact-, I believe, all of the questions determined except this one, further allusion to them is unnecessary, although I have arrived at those conclusions for different reasons in some respects. This expression of opinion, on the great question examined, will be deemed sufficient, without reiterating my dissent in other cases involving the same question; and my silent acquiescence will not indicate a change in my convictions. Should such change take place, I shall embrace the earliest opportunity to testify my reformation.
I dissent from the decree which is rendered.