UNITED STATESV. DALLES MILITARY ROAD CO.
quiry is limited to the requirements of the statutory contract set out. The first exception must, therefore, be sustained, the matter excepted to being impertinent to this inquiry. The next exception is to the allegation relating to maintaining the road after construction, in case it was constructed in accordance with the act. The allegation is that the road "was not and never has been maintained as a public highway by either or any of the defendants herein, or any person or persons claiming any interest in the lands embracl:1d within the limits provided for by the said act of congress." And the other exceptions all relate to similar allegations as to "maintaining the road" after not to a failure to construct the road in accordance with the It is contended· that these allegations are impertinent, because the defendants, under the terms of the contract, embodied in the act of and the act of the legislature of the state of Oregon, set out in the bill, were not under any obligation to maintain the road after it 'had been once constructed in accordance with the terms of the contract. And this view appears to me to be correct, so far as the vesting of the right of the defendant to the lands is concerned. lean find l)othing in either .act that requires the Dalles or anybody holding under it, to 111aintain the road; after it has been once completed, in accordance with th,e terms of the statutory 'contract, and been approved and accepted by the government, through its agent, for that purpoile duly appointed by the statute and contract, the parties acting in good faith, aod there being no, such fraud as should vitiate such approval and acceptance. The lands were granted in the words Qf the statute, "to aid in the construction" of the road. "The lands hereby granted shall be exclusively applied to the .construction. of said road, and to no other purpose." After. the com pletion of 10 miles a quantity of land "not to exceed 30 sections, maybe spld, and so on from time to time until said road shall be completed." 'There is nothing said in eitner act about maintaining the road after. its .completion. When the road has been completed,honestly approved, anQ accepted in accordance with the provisions of these two statutes, the contract has been fully executed on the part of the Dalles Company, and the contract having been fully performed, its right to the lands has irrevocably vested. The grant is in prt£8enti and there is no provision for forfeiture in case the road is not afterwards maintained. It is provided that if the road not "completed" within the time prescribed, no mora lands shall be sold and those "unsold shall revert to the United States." But no provision is made for their forfeiture for ,not maintaining the road after completed. The contracting party, after· completing the road in pursuance of the terms of the statute, might then abandon it and leave it to the state or the government, or whoever else may have an interest in it, either to tKe care of it or allow it to, go to destruction, so far as any rights or liabilities under these two statutes are concerned. As well J1light one who has contracted with a builder for the erection of It house. upon certain specifications for a specified price, atter the completion of t.he structure'is accordance with the contract, and acceptance of the house require the builder to eve, Mter maintain it in rcepair. .,
It Ihnst be remembered that we' are now, in this suit, dealing with the rights only of these parties........the United States and these defelldantsarising out of this statutory contract for the construction of the road in question. If the Dalles Military ROad Company, or any of these defendants,after the full performance of this statutory contract, and after their right, to the land had fully vested under it, assumed to own and control this road, keep it as a toll-rond as to all parties other than the United States, or exercised any other rights under other statutes of the state of Oregon; or if any liabilities accrued to the United States, the state of Oregon; or to private 'pa"'ties, arising under other statutes or laws of either the lJnited States or the state of Oregon. that is a matter wholly foreign to the inquiry now before the court; We are to deal simply with this statutory oOlitraot, and even in relation to that, which is the only thing we could under any circumstances, deal with, we are limited in our inquiry by the statute under which the suit is brought to three points: 1. Weare to detennine the question of seasonable and proper completionof said roads in accordance with the terms of the granting acts, eitherin whole or in part--not according to the terms of other acts, state or' national.' . 2. The legal effect of the several certificates of the governors of the state of Oregon of the completion of said roads and the right of resumption of said gl'aDted lands by the United States. lk And we must determine these questions in a manner "saving and preserving the rights of bona fide purchasers of either of said grants, or of any portiohOhll.id grants, for a valuable consideration." 25 U. S. St. 851. ., , ' There is nothing here said about "maintaining" the roads after construction. Manifestly, congress in passing this act had no idea that the Dalles Company were required by either or both of the acts in question to maintain the road after completion, in accordance with the statutory contract. Weare only to deal with the statutory contract for constructing the roads and ascertain Whether the contract in that particular has been performed wholly or in part,andif not fully performed, what are the rights of the' parties under the governors' certificates, notwithstanding the failure to wholly or in part comply with the contract; and what are the rightS of bona fide purchasers if these certificates can be success· fully asslliledll.nd disregarded so far as participants in the'fraud are:concerneLl? ' The caseo! Schutz v. Road 00.,7 Or. 264 1 has been confidently cited, as establishiilg:a view different from ,that now adopted. In that case the question noW under consideration was not necessarily, or at aU involved, and there Was no occasion to determine, whether the statutory contract was performed in such sense as' to entitle the Dalles Com pany to the lands in question, or whether 'under the two acts now in question, considered: by 'themselves, said company was required to maintain the road afteroolupletion in accordance with these statutes alone. The instruction, underdisctlssion,iri that case, may have been entirely correct, under the other generalla;ws 'of Oregon, requiring parties who assunle to