This is an action of ejectment. The parties have stipulated that the title to the land in controversy was at one time in the Cairo & Fulton Bailroad Company, and it is under the company that each party claims to derive title—the plaintiff under a deed made by the trustees of the *113company, November 25th, 1869, to one Hamilton; the defendant under an alleged first mortgage lien in favor of the state of Missouri and its subsequent foreclosure, and the sale of the land by, the state'to the grantors of the defendant’s landlord.
It was admitted on the trial by the learned counsel for the plaintiff, that if the state had a lien upon this land by virtue of the statutory mortgages in its favor,' created either by the act of December 11th, 1855, or the amendatory .act of March 3d, 1857, the title was subsequently acquired under a foreclosure of its lien by the state, and by it conveyed to the grantors of the landlord of the defendant. One question, if decided in favor of the defendant, as we think it must be, is decisive .of the case, and that is: Did the lien or mortgage in favor of the state .under the-.act of, 1855, or 1857, embrace or extend to the lands of the company which were granted by congress to the'state, and-by the state to the company, to aid in the construction of its road?
The point, of the controversy is Just here: The plaintiff admits that the state had, by virtue of these acts, a first lien upon the road and all the lands necessary to its use and operation as a railroad, but denies that this lien extended to the lands of the company, which had been granted to it by congress to aid, by a mortgage or sale thereof, in the construction of . its road. On the other hand,: the defendant contends that to-secure the-state -for the .bonds issued to the company under the acts named, the state stipulated for, and the company consented to give, a first lien, not only upon the road and its appurtenances, but as well upon the other property of the company, including its lands.
By the act of December 11th, 1855, when accepted by the company as it was, there was created a first mortgage in favor of the state upon “the road and every part and section thereof, and its appurtenances.” But, by the amendatory act of March 3d, 1857, the language was changed, and it was provided j that “all bonds issued under the provisions j of this act shall constitute a first lien or ¡ mortgage upon the road and property of the i several companies so receiving them, in the same manner as provided by the act approved February 25th, 1851, to expedite the construction of the Pacific Railroad, and the Hannibal & St. Joseph Railroad, and the act approved December 10th, 1855, of which this is amendatory.”'
All of the state bonds to the Cairo & Fulton Railroad Company were issued after the act of ■ 1857 was passed and its provisions had been accepted by the company; and the act was accepted by the company prior to the time when it authorized the execution of the conveyance of its lands in trust to Moore, Wilson, and Waterman. Indeed, the conveyance to these trustees in terms refers to the acts of 1853 and 1S57, and recognizes the priority of the state to the extent provided for in these acts; but in reciting that -upon, which the lien of the state attached, the language of the act of 1855 is followed, and the word “property,” used in the act of 1857, omitted, apparently ex industria.
It is unnecessary to consider whether the lien provided for in the act of 1853 upon “the road and every part and section thereof, and its appurtenances,” extended to the lands which had been granted by congress, because the state was equally entitled to the security provided for in the act of 1857, which was “a first lien or mortgage upon the road and property of the company.”
This legislation has been construed by the ■ supreme court of Missouri. Whitehead v. Vineyard, 60 Mo.-30. ' In the case just cited that court decided that, by the act of 1857, the state’s lien extended to “all the corporate property of the companies named in the act,” to lands as well as to the road proper, and even to lands subsequently acquired by the companies,.as well as to those owned by them when the act was passed. ■ We do not stop to inquire whether the nature of the case is such (the state having been a party in interest) that the construction of the state legislation by the highest tribunal of the state should not conclude us; for it will be admitted that a different judgment is not to be here pronounced, resulting in disturbing or overturning titles held good in . the state tribunals, -unless the opinion of the state supreme court is clearly erroneous. •
. Upon the best consideration we have been able to give to the subject, we concur in the opinion that by the act of 1857, however it would have been under the act of 1855, the lien of the státe extended to the lands as well as to the road proper and its appurtenances.
We mention briefly the reasons that give support to this conclusion:— ■
1. The anxiety of the state to have full security is manifest on the face of all the enactments relating to the subject, and hence the provision for a first lien or mortgage, which was not only to be upon the road, but upon the property of the company.
2. The terms “road and property” are general and comprehensive, and as the word-“property” was specially inserted in the latter enactment, it must be supposed, particularly in legislation of such great moment, that it was advisedly done either to close doubts, or to extend the lien to property which would not be embraced by the words “road and its appurtenances.” The lien extends not only to the road, but in addition to the property of the company—to property which would not or might not be embraced by the language “road and appurtenances.” What property was meant? What so likely as the lands of the struggling companies, which, without the aid of the state by bonds, were unable to go on with their enterprises, and what more appropriately than lands falls within the comprehensive term property?
NOTE. A special finding of facts was made, and the case taken to the supreme court, [where the above judgment was affirmed. 92 U. S. 320]. Further, as to legislation of the state of Missouri in aid of railways, and the rights of the grantees of the state, see Murdock v. Woodson [Case No. 9,942].3. If the lands of the company he excluded from the mortgage, It is difficult to give a construction to the act which will give any adequate or considerable significance to the word property.
The plaintiff’s counsel argues that the act of 1857 “gave the state a mortgage upon nothing other than the road and property of the company held for the purpose of the road,” and he adds: “The term property can be well satisfied without giving it the interpretation of including all the land granted the road, not for Its purposes of a railroad corporation, but in aid of the construction of the road. The term property is evidently meant to inelude, and to include nothing more, than the road-bed, rails upon it, turn-outs, depots, erections,. buildings, franchises, locomotives, passenger and freight cars, hand cars, tenders, tools, machinery, materials, etc. and all properly as part and necessary part of the entire establishment, movable or immovable, essential to the production of tolls and revenue."
But would not all this, or substantially all this, unless it be the franchise of being a corporation, be covered by a mortgage upon the road of the company, or the road and its appurtenances?
Under this view the defendant’s landlord has the title, and this makes it unnecessary to determine whether the plaintiff would also fail for the reason that the deed to Hamilton was never executed or delivered by the trustees so as to be operative as a conveyance of the lands described therein.
Judgment for the defendant.