1. The grant which the Act of July 23, 1866, c. 212, 14 Stat.
210, makes to the St. Joseph and Denver City Railroad Company, "to
the extent of one hundred feet in width on each side of said road
where it may pass through the public domain," is absolute and
in praesenti, and a party subsequently acquiring a parcel
of such lands takes it subject to that right.
2.
Quaere where Congress has conferred upon a railroad
corporation, organized under the laws of a state, the right of way
over the public lands in a territory, can the state, subsequently
created out of that territory, prevent the corporation from
enjoying that right.
This was an action by Baldwin to recover of the St. Joseph and
Denver City Railroad Company, or its successor in interest, damages
for entering upon his land in Nebraska and appropriating,
Page 103 U. S. 427
in the construction of its road, a strip two hundred feet in
width and two hundred road in length. The company claimed a right
of way over the land of that width, under the Act of Congress of
July 23, 1866, c. 212, entitled "An Act for a grant of lands to the
State of Kansas to aid in the construction of the Northern Kansas
Railroad and Telegraph." 14 Stat. 210. The first section of the
act, so far as it is material in this case, is as follows:
"Be it enacted &c., that there is hereby granted to the
State of Kansas, for the use and benefit of the Saint Joseph and
Denver City Railroad Company, the same being a corporation
organized under the laws of the State of Kansas, to construct and
operate a railroad from Elwood, in Kansas, westwardly, via
Maryville, in the same state, so as to effect a junction with the
Union Pacific Railroad, or any branch thereof, not farther west
than the one hundredth meridian of west longitude, every alternate
section of land designated by odd numbers, for ten sections in
width on each side of said road, to the point of intersection. But
in case it shall appear that the United States have, when the line
or route of said road is definitely fixed, sold any section, or any
part thereof, granted as aforesaid, or that the right of preemption
or homestead settlement has attached to the same, or that the same
has been reserved by the United States for any purpose whatever,
then it shall be the duty of the Secretary of the Interior to cause
to be selected for the purposes aforesaid, from the public lands of
the United States nearest to tiers of sections above specified, so
much land in alternate sections, or parts of sections designated by
odd numbers as shall be equal to such lands as the United States
have sold, reserved, or otherwise appropriated, or to which the
rights of preemption of homestead settlements have attached as
aforesaid, which lands, thus indicated by odd numbers and selected
by direction of the Secretary of the Interior as aforesaid, shall
be held by the State of Kansas for the use and purpose
aforesaid."
The fourth section is as follows:
"That as soon as the said company shall file with the Secretary
of the Interior maps of its line designating the route thereof, it
shall be the duty of the said Secretary to withdraw from the market
the lands granted by this act in such manner as may be best
calculated to effect the purpose of this act and subserve the
public interest. "
Page 103 U. S. 428
The sixth section is as follows:
"That the right of way through the public lands be, and the same
is hereby, granted to said Saint Joseph and Denver City Railroad
Company, its successors and assigns, for the construction of a
railroad as proposed, and the right is hereby given to said
corporation to take from the public lands adjacent to the line of
said road, material for the construction thereof. Said way is
granted to said railroad to the extent of one hundred feet in width
on each side of said road where it may pass through the public
domain; also, all necessary ground for station buildings,
workshops, depots, machine shops, switches, side tracks, turn
tables, and water stations."
When the grant was made by Congress, the land claimed by Baldwin
was vacant and unoccupied land of the United States. But the line
of the road over it was not definitely located until October, 1871.
He acquired whatever rights he possession in October, 1869. The
defendant contends that the plaintiff took the land subject to its
right of way. He contends that the grant of the right of way took
effect only from the date at which the company filed its maps
designating the route with the Secretary of the Interior. The
district court of the state agreed with him and gave judgment in
his favor. The supreme court affirmed it, and to review it the
cause is brought here.
MR. JUSTICE FIELD, after stating the case, delivered the opinion
of the Court.
The Act of Congress of July 23, 1866, c. 212, makes two distinct
grants: one of lands to the State of Kansas for the benefit of the
St. Joseph and Denver City Railroad Company in the construction of
a railroad from Elwood in that state to its junction with the Union
Pacific via Maryville; the other of a right of way directly to the
company itself. The lands consisted of alternate sections,
designated by odd numbers, on each side of the line of the proposed
road. The grant of them was subject to the condition that if, at
the time the line of the road was definitely fixed, the United
States had sold any section or a part thereof, or the right of
preemption or homestead settlement
Page 103 U. S. 429
had attached to it, or the same had been otherwise reserved by
the United States for any purpose, the Secretary of the Interior
should select an equal quantity of other lands nearest the sections
designated, in lieu of those appropriated, which should be held by
the state for the same purposes. The limitations upon the grant are
similar to those found in numerous other grants of land made by
Congress in aid of railroads. Their object is obvious. The sections
granted could be ascertained only when the routes were definitely
located. This might take years, the time depending somewhat upon
the length of the proposed road and the difficulties of
ascertaining the most favorable route. It was not for the interest
of the country that in the meantime any portions of the public
lands should be withheld from settlement or use because they might,
perhaps, when the route was surveyed, fall within the limits of a
grant. Congress, therefore, adopted the policy of keeping the
public lands open to occupation and preemption, and appropriation
to public uses, notwithstanding any grant it might make, until the
lands granted were ascertained, and providing that if any sections
settled upon or reserved were then found to fall within the limits
of the grant, other land in their place should be selected. Thus
settlements on the public lands were encouraged without the aid
intended for the construction of the roads being thereby impaired.
The language of the act here, and of nearly all the congressional
acts granting lands, is in terms of a grant
in praesenti.
The act is a present grant, except so far as its immediate
operation is affected by the limitations mentioned. "There is
hereby granted" are the words used, and they import an immediate
transfer of interest, so that when the route is definitely fixed
the title attaches from the date of the act to the sections, except
such as are taken from its operation by the clauses mentioned. This
is the construction given by this court to similar language in
other acts of Congress.
Missouri, Kansas, & Texas Railway
Co. v. Kansas Pacific Railway Co., 97 U. S.
491;
Leavenworth, Lawrence, & Galveston Railroad
Co. v. United States, 92 U. S. 733.
But the grant of the right of way by the sixth section contains
no reservations or exceptions. It is a present absolute grant,
subject to no conditions except those necessarily implied,
Page 103 U. S. 430
such as that the road shall be constructed and used for the
purposes designed. Nor is there anything in the policy of the
government with respect to the public lands which would call for
any qualification of the terms. Those lands would not be the less
valuable for settlement by a road running through them. On the
contrary, their value would be greatly enhanced thereby.
The right of way for the whole distance of the proposed route
was a very important part of the aid given. If the company could be
compelled to purchase its way over any section that might be
occupied in advance of its location, very serious obstacles would
be often imposed to the progress of the road. For any loss of lands
by settlement or reservation, other lands are given; but for the
loss of the right of way by these means, no compensation is
provided, nor could any be given by the substitution of another
route.
The uncertainty as to the ultimate location of the line of the
road is recognized throughout the act, and where any qualification
is intended in the operation of the grant of lands, from this
circumstance, it is designated. Had a similar qualification upon
the absolute grant of the right of way been intended, it can hardly
be doubted that it would have been expressed. The fact that none is
expressed is conclusive that none exists.
We see no reason, therefore, for not giving to the words of
present grant with respect to the right of way the same
construction which we should be compelled to give, according to our
repeated decisions, to the grant of lands had no limitation been
expressed. We are of opinion, therefore, that all persons acquiring
any portion of the public lands, after the passage of the act in
question, took the same subject to the right of way conferred by it
for the proposed road.
The fact that the right of way over land in Nebraska was granted
to a corporation in Kansas does not alter the case. Nebraska was at
the time a territory of the United States, and it was entirely
competent for Congress to confer upon any corporation of a state a
right of way for a railroad to be constructed by it through the
lands of the United States situated in that territory. And in
February, 1869, after the territory
Page 103 U. S. 431
had become a state, its legislature, by an express enactment,
authorized railroad companies organized under the laws of Kansas,
Missouri, or Iowa to extend and build their roads into the state,
and declared that, upon complying with certain conditions, they
should possess all the powers, franchises, and privileges of
railroad companies incorporated under its laws. It is not shown
that the company here has not complied with the prescribed
conditions, even if such an objection could be raised by any other
party than the state itself. But independently of this
consideration, where Congress has conferred upon a railroad
corporation of a state a right of way over the public lands of the
United States in any one of their territories, it may be doubted
whether the state subsequently created out of the territory could
prevent the enjoyment by such corporation of the right conferred.
It could do so only on the same terms that it could refuse a
recognition of its own previously granted right, for in such
matters the state would succeed only to the authority of Congress
over the territory.
The judgment of the Supreme Court of Nebraska must therefore be
reversed, and the cause be remanded to it with directions that
further proceedings be had in accordance with this opinion; and it
is
So ordered.
MR. CHIEF JUSTICE WAITE dissented.
