United States v. Oregon & California R. Co.
164 U.S. 526 (1896)

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U.S. Supreme Court

United States v. Oregon & California R. Co., 164 U.S. 526 (1896)

United States v. Oregon and California Railroad Company

No. 318

Argued November 12, 1896

Decided December 14, 1896

164 U.S. 526

Syllabus

The grant of public land made to the Oregon Central Railroad Company by the Act of May 4, 1870, c. 69, 16 Stat. 94,

"for the purpose of aiding in the construction of a railroad and telegraph line from Portland to Astoria and from a suitable point of junction near Forest Grove to the Yamhill River near McMinnville in the State of Oregon"

contemplated a main line from Portland to Astoria opening up to settlement unoccupied and inaccessible territory and establishing railroad communication between the two termini, and also the construction of a branch road from Forrestville to McMinnville, twenty-one miles in length, running through the heart of the Willamette Valley, and it devoted the lands north of the junction, not absorbed by the road from Portland to that point, to the building of the road to the north.

The construction of the branch road, though included in the act, was subordinate and subsidiary, and this Court cannot assume that, if the promoters had sought aid merely for the subordinate road, their application would have been granted.

The facts that the act of 1870 grants land for the purpose of aiding in the construction of a railroad -- in the singular number -- and that the Act of January 31, 1885, c. 46, 23 Stat. 296, does the same do not affect these conclusions.

This was a bill brought by the United States against the Oregon Central Railroad Company and the Oregon and California Railroad Company in the Circuit Court of the United States for the District of Oregon, to quiet title to about ninety thousand acres of land in the State of Oregon, and a cross-bill filed by the defendants to quiet title to the same land in the Oregon

Page 164 U. S. 527

and California Railroad Company. The cause was heard on the pleadings and a stipulation as to the facts, with accompanying maps and documents.

On May 4, 1870, an act of Congress was approved (16 Stat. 94) which is as follows:

"Chap. LXIX. -- An act granting lands to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville, in the State of Oregon."

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled that, for the purpose of aiding in the construction of a railroad and telegraph line from Portland to Astoria, and from a suitable point of junction near Forest Grove to the Yamkill River, near McMinnville in the State of Oregon, there is hereby granted to the Oregon Central Railroad Company, now engaged in constructing the said road, and to their successors and assigns, the right of way through the public lands of the width of one hundred feet on each side of said road, and the right to take from the adjacent public lands materials for constructing said road, and also the necessary lands for depots, stations, side tracks, and other needful uses in operating the road, not exceeding forty acres at any one place, and also each alternate section of the public lands, not mineral, excepting coal or iron lands, designated by odd numbers nearest to said road, to the amount of ten such alternate sections per mile, on each side thereof, not otherwise disposed of or reserved or held by valid preemption or homestead right at the time of the passage of this act. And in case the quantity of ten full sections per mile cannot be found on each side of said road within the said limits of twenty miles, other lands designated as aforesaid shall be selected under the direction of the Secretary of the Interior on either side of any part of said road nearest to and not more than twenty-five miles from the track of said road to make up such deficiency."

"SEC. 2. And be it further enacted that the Commissioner of the General Land Office shall cause the lands along the line

Page 164 U. S. 528

of the said railroad to be surveyed with all convenient speed. And whenever and as often as the said company shall file with the Secretary of the Interior maps of the survey and location of twenty or more miles of said road, the said secretary shall cause the said granted lands adjacent to and coterminous with such located sections of road to be segregated from the public lands, and thereafter the remaining public lands, subject to sale within the limits of the said grant, shall be disposed of only to actual settlers at double the minimum price for such lands, and provided also that settlers under the provisions of the homestead act who comply with the terms and requirements of said act shall be entitled, within the said limits of twenty miles, to patents for an amount not exceeding eighty acres each of the said ungranted lands, anything in this act to the contrary notwithstanding."

"SEC. 3. And be it further enacted that whenever and as often as the said company shall complete and equip twenty or more consecutive miles of the said railroad and telegraph, the Secretary of the Interior shall cause the same to be examined, at the expense of the company, by three commissioners appointed by him, and if they shall report that such completed section is a first-class railroad and telegraph, properly equipped and ready for use, he shall cause patents to be issued to the company for so much of the said granted lands as shall be adjacent to and conterminous with the said completed [completed] sections."

"SEC. 4. And be it further enacted that the said alternate sections of land granted by this act, excepting only such as are necessary for the company to reserve for depots, stations, side tracks, wood yards, standing ground, and other needful uses in operating the road, shall be sold by the company only to actual settlers, in quantities not exceeding one hundred and sixty acres or a quarter section to any one settler, and at prices not exceeding two dollars and fifty cents per acre."

"SEC. 5. And be it further enacted that the said company shall, by mortgage or deed of trust to two or more trustees, appropriate and set apart all the net proceeds of the sales of the said granted lands as a sinking fund, to be kept invested

Page 164 U. S. 529

in the bonds of the United States or other safe and more productive securities for the purchase from time to time, and the redemption at maturity, of the first mortgage construction bonds of the company on the road, depots, stations, side tracks, and wood yards, not exceeding thirty thousand dollars per mile of road, payable in gold coin not longer than thirty years from date, with interest payable semi-annually in coin not exceeding the [rate] of seven percentum per annum, and no part of the principal or interest of the said fund shall be applied to any other use until all the said bonds shall have been purchased or redeemed and cancelled, and each of the said first mortgage bonds shall bear the certificate of the trustees setting forth the manner in which the same is secured and its payment provided for. And the district court of the United States, concurrently with the state courts, shall have original jurisdiction, subject to appeal and writ of error, to enforce the provisions of this section."

"SEC. 6. And be it further enacted that the said company shall file with the Secretary of the Interior its assent to this act within one year from the time of its passage, and the foregoing grant is upon condition that said company shall complete a section of twenty or more miles of said railroad and telegraph within two years, and the entire railroad and telegraph within six years, from the same date."

Within one year from the passage of this act, the Oregon Central Railroad Company filed with the Secretary of the Interior its assent to the act, and prior to July 31, 1871, and February 2, 1872, filed in that department maps of survey and definite location of its line of railroad, being a location from Portland to the Yamhill River near McMinnville via a point near Forest Grove, and from that point to Castor Creek, a point twenty miles towards Astoria, and from Castor Creek to Astoria; the distances being about twenty-six miles from Portland to Forest Grove, about twenty-two and three-fourths miles from there to the Yamhill River, and about one hundred two and one-half miles from Forest Grove to Astoria. The lands adjacent to and coterminous with the entire line of definite location were segregated and withdrawn from the public

Page 164 U. S. 530

lands. Twenty miles of road from Portland, running due west and terminating at a point near the Town of Hillsboro, in Washington County, Oregon, were constructed, and about six miles more to a point near Forest Grove, and from that point something over twenty-one miles, running almost directly south to a point near McMinnville in Yamhill County. The line was constructed on a curve as it approached Forest Grove.

The Secretary of the Interior, on February 16, 1872, accepted the first twenty miles as completed under the act, and on June 23, 1876, he accepted another twenty-seven and one-half miles as so completed, being the distance from Hillsboro to a point near Forest Grove, and from that point to McMinnville.

On October 6, 1880, the Oregon Central Railroad Company, for value, sold and conveyed to the Oregon and California Railroad Company all the title and interest which it had acquired in and to the lands granted under the act, and all its road, franchises, and privileges, but it was not admitted by the United States that the Oregon Central Railroad Company had a legal right to make said sale and conveyance. On that day, the Oregon Central Railroad Company was insolvent, and went into liquidation, and the conveyance was made to settle its business and dispose of its property. Neither of these railroad companies nor anyone else has ever constructed or equipped any portion or part of any railroad from the point near Forest Grove to Astoria.

January 31, 1885, Congress passed an act, 23 Stat. 296, c. 46, the first section of which is as follows:

"That so much of the lands granted by an act of Congress entitled 'An act granting land to aid in the construction of a railroad and telegraph line from Portland to Astoria and McMinnville, in the State of Oregon,' approved May fourth, eighteen hundred and seventy, as are adjacent to and coterminous with the uncompleted portions of said road, and not embraced within the limits of said grant for the completed portions of said road, be, and the same are hereby, declared to be forfeited to the United States and restored to the public domain and made subject to disposal under the general land laws of the United States as though said grant had never been made. "

Page 164 U. S. 531

July 8, 1885, the Commissioner of the General Land Office issued to the local land office at Oregon City instructions for its guidance under the Act of January 31, 1885, and a diagram showing the limits of the forfeited lands, and that portion of the grant which was not affected by the act. 4 L.D. 15. These instructions were approved by the acting Secretary of the Interior. The diagram showed that the road ran from Portland west to a point near Forest Grove, where it turned almost at a right angle and ran south to McMinnville. From that point two lines were drawn, one due north and the other due west, both terminating at the twenty-mile limits. The granted lands lying within the quadrant formed by these lines and the twenty-mile limits, and also the indemnity lands within said lines and the twenty-five-mile limits, were designated on the diagram as "forfeited." The forfeited lands on the line from Forest Grove to Astoria were also shown.

In November, 1885, the Oregon and California Railroad Company, assignee of the Oregon Central Railroad Company, presented to the land office a list of lands embraced within the territory claimed in this suit to be forfeited to the United States, and tendered the fees for locating the same, which were declined, and the list rejected, upon the ground that the lands had been forfeited.

About the same time, there was filed in the Land Department a petition of the receiver of the Oregon and California Railroad Company praying that the instructions insofar as they applied to the granted lands in said quadrant be revoked. This petition was referred to the commissioner for examination and report, and a report was subsequently submitted recommending "that the restoration remain in force as per instructions of July 8, 1885," and transmitting a second diagram, "showing the accurate limits of the grant." On April 5, 1887, the Secretary of the Interior passed upon the matter of the application of the receiver, and held that the road from Portland to Forest Grove, and from the latter point to McMinnville, were to be treated as two distinct roads, the limits of which should be adjusted separately. 5 L.D. 549. By that adjustment, the quadrant northwest from Forest Grove

Page 164 U. S. 532

fell within the lands forfeited, which was in accordance with the restoration of July 8, 1885.

Some of the lands claimed to have been forfeited to the United States have been patented, and are in the actual occupation of the patentees, or persons claiming under them, and other portions of said lands for which patents have been issued are unoccupied, and are wild lands, as is true of some of the lands claimed by the United States, which have not been sold or patented, and are not in the actual physical possession of any person or party.

The following is a sufficient reproduction of the diagram:

image:a

The circuit court, Bellinger, J., held that the lands within the quadrant were included within the lands forfeited to the government, and decreed accordingly. 57 F. 426. The Circuit Court of Appeals for the Ninth Circuit reversed this decree, and directed a decree in favor of the Oregon and California Railroad Company. 67 F. 650. Thereupon the present appeal was prosecuted.

Page 164 U. S. 537

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