An action commenced May 27, 1889, in the District Court of the
Territory of Idaho, before the admission of Idaho as a state, by a
corporation organized under the laws of Washington Territory,
against a corporation organized under the laws of Montana Territory
and against a railroad company organized under the laws of the
United States, upon which latter company service had been made and
filed, was, after the admission of Idaho as a state, removable to
the circuit court of the United States for that circuit both upon
the ground of diversity of citizenship of the territorial
corporations, and upon the ground that the railroad company was
incorporated under a law of the United States, and, so far as the
latter ground of removal is concerned, it is not affected by the
fact that the railroad company afterwards ceased to take an active
part in the case, as the jurisdictional question must be determined
by the record at the time of the transfer.
The provision in the Act of March 3, 1875, c. 152, 18 Stat. 482,
granting the
Page 160 U. S. 78
right of way through the public lands of the United States to
any railroad duly organized under the laws of any state or
territory which shall have filed with the Secretary of the Interior
a copy of its articles of incorporation and due proofs of its
organization under the same, plainly means that no corporation can
acquire a right of way upon a line not described in its charter or
articles of incorporation.
When a court of law is construing an instrument, whether a
public law or a private contract, it is legitimate, if two
constructions are fairly possible, to adopt that one which equity
would favor.
On May 15, 1889, the Washington & Idaho Railroad Company,
describing itself as a corporation duly organized under the laws of
Washington Territory, brought an action of ejectment in the
District Court of the First Judicial District of the Territory of
Idaho against the Coeur d'Alene Railway & Navigation Company,
as a corporation duly organized under the laws of Montana
Territory, and the Northern Pacific Railroad Company, as a
corporation duly organized under the laws of the United States. The
complainant alleged that on the 10th day of July, 1887, the
plaintiff was lawfully possessed, as owner in fee simple, of a
certain tract of land situated in Shoshone County, Idaho Territory,
being the right of way of plaintiff's railroad, consisting of a
strip of land two hundred feet in width and about four thousand
feet in length; that the defendant the Coeur d'Alene Railway &
Navigation Company, on the 1st day of August, 1887, entered into
possession of the demanded premises, and ousted and ejected the
plaintiff therefrom; that the defendant the Northern Pacific
Railroad Company claimed to be in possession of said premises as a
tenant of the Coeur d'Alene Railway and Navigation Company, and was
actually in the possession of said premises at the time of the
institution of the suit; that the value of the rents, issues, and
profits of the said premises while the plaintiff was excluded
therefrom is five thousand dollars; that the plaintiff was still
the owner in fee simple, and entitled to the possession of said
premises, and plaintiff demanded judgment against the said
defendants for the possession of the demanded premises, and for the
sum of six thousand dollars as damages.
A writ of summons against the defendants was sued out,
Page 160 U. S. 79
and on the 27th day of May, 1889, was returned as served on the
said defendants by the delivery of a copy thereof to their
authorized agent. On May 31, 1889, the separate answer of the Coeur
d'Alene Railway and Navigation Company was filed, denying the
plaintiff's title and claiming that defendant had, in good faith
and without any knowledge that the plaintiff claimed any interest
therein, entered into possession of the described land, and, in the
belief that it was the owner thereof, had constructed thereon its
railroad and its depot at an expense exceeding seven thousand
dollars; that the plaintiff knew that the defendant was
constructing its railroad and depot as aforesaid, and permitted the
same to be done without making any claim to said premises,
wherefore defendant claimed judgment that the plaintiff should take
nothing by the action, that the plaintiff should be declared to be
estopped from claiming title to said premises, and that the
defendant should have such other and further relief as should be
just and equitable.
On the 3d day of July, 1890, by virtue of an act of Congress of
that date, the said Territory of Idaho became a state, and on
August 27, 1890, the defendants filed a petition in the District
Court of the First Judicial District of the State of Idaho praying
for the removal of said case to the Circuit Court of the United
States, Ninth Circuit, in and for the District of Idaho, and the
case was so proceeded in that, on December 6, 1892, a final
judgment was entered, adjudging that the plaintiff, the Washington
and Idaho Railroad Company, should take nothing by the action, and
that the defendant the Coeur d'Alene Railway and Navigation Company
should have judgment against the said plaintiff for its costs.
The trial in the circuit court was by the court, a jury having
been waived by both parties. The court made the following findings
of fact:
"First. That on the 6th day of July, 1886, the defendant the
Coeur d'Alene Railway and Navigation Company filed its articles of
incorporation in the office of the Secretary of the Territory (now
State) of Montana, and also filed in the office of the County Clerk
and Recorder of the County of Lewis
Page 160 U. S. 80
and Clarke, in said territory, a certified copy of its said
articles of incorporation, which articles of incorporation are in
words and figures following, to-wit:"
"Territory of Montana"
" ss:"
"County of Lewis and Clarke"
" We, Daniel C. Corbin, Samuel T. Hauser, Anton H. Holter, of
the City of Helena, in the County of Lewis and Clarke, Territory of
Montana; Stephen S. Glidden, of Spokane Falls, Washington
Territory; James F. Wardener, of Wardener, in the Territory of
Idaho; James Monaghan, of Coeur d'Alene, Idaho territory, and
Alfred M. Esler, of said Helena, Montana, do by these presents,
pursuant to and in conformity with article 3 of chapter 15 of the
Revised Statutes of Montana, entitled 'Railroad Corporations,' and
all acts supplemental thereto or amendatory thereof, associate
ourselves together and form a corporation for the purpose of
locating, constructing, maintaining, and operating railroads in the
territories of Montana and Idaho, and to that end we do hereby
certify as follows:"
"
First. The name of such corporation by which it shall
be known shall be 'The Coeur d'Alene Railway and Navigation
Company.'"
"
Second. The termini of said railroad are to be
located in the County of Missoula, Territory of Montana, and in the
Counties of Kootenai and Shoshone, in the Territory of Idaho, and,
if said corporation shall so determine, termini may also be located
in the County of Nez Perces, in said Territory of Idaho. Said
railroad shall pass through said Counties of Missoula, Kootenai,
and Shoshone, and, if said corporation shall so determine, then
said railroad shall also pass through said County of Nez Perces,
and the general route of said railroad shall be as follows:
commencing at or near the Town of Thompson's Falls, in said County
of Missoula, or at some convenient point between said Thompson's
Falls and the western boundary line of said Territory of Montana;
thence running westerly or southwesterly to that certain tributary
of Coeur d'Alene River known as the 'South Fork;' thence down the
South Fork and Coeur d'Alene River to Old Mission, connecting with
steamboats or other watercraft, to be owned and
Page 160 U. S. 81
operated by said corporation, said steamboats or other craft to
ply between said Old Mission and the Town of Coeur d'Alene; and, if
said corporation shall so determine, then said railroad shall again
commence at said Town of Coeur d'Alene, and run northwesterly to
Rathdrum, in said County of Kootenai, or such point on the line of
the Northern Pacific Railroad between Rathdrum and the western
boundary of Idaho Territory as said corporation may hereafter
determine, with the right and privilege, if said corporation shall
see proper, to run a branch or extension of said road in a
southerly direction from said Shoshone County to the said County of
Nez Perces, said steamboats or other water craft between the points
in that behalf above specified to be used in connection with and as
constituting a part of said railroad."
"
Third. The amount of capital stock necessary to
construct such roads, including said connections, is five hundred
thousand dollars, divided into five thousand shares of one hundred
dollars each."
"
Fourth. The principal place of business of said
corporation in the Territory of Montana shall be at Helena, in the
County of Lewis and Clarke, and principal place of business of said
corporation in the Territory of Idaho shall, until otherwise fixed
by the board of directors of said corporation, be at Coeur d'Alene,
in the said County of Kootenai."
"Second. That the line of route of the railroad of the said
Coeur d'Alene Railway and Navigation Company, as described in said
article of incorporation, passes over and includes the ground in
controversy in this action."
"Third. That on the 20th day of July, 1886, the defendant the
Coeur d'Alene Railway and Navigation Company filed in the office of
the Secretary of the Interior at Washington, D.C., a certified copy
of its said articles of incorporation, and proofs of its
organization under the laws of the Territory (now State) of
Montana, which certified copy of articles of incorporation and
proofs of organization were duly approved on that day by the
honorable Secretary of the Interior."
"Fourth. That in the summer and fall of 1886, the defendant
Page 160 U. S. 82
the Coeur d'Alene Railway and Navigation Company constructed its
railroad over said line of route as described in said articles of
incorporation from the said Old Mission up the main Coeur d'Alene
River to the Town of Kingston, and thence up the South Fork of the
Coeur d'Alene River to the Town of Wardener Junction, a distance of
about fourteen miles, and that in the month of October, 1886, the
said defendant the Coeur d'Alene Railway and Navigation Company,
for the purpose of extending its line of railroad, caused a survey
to be made for its said line of railroad from said Wardener
Junction up the said fork of the Coeur d'Alene River, over the line
described in its said articles of incorporation, through the Towns
of Wallace and Mullen, and marked the center line of said road upon
the ground by planting stakes at each station at one hundred feet,
and at such other points as there were angles in the line, so that
the line of route of said road could be readily traced upon the
ground, and that the said surveying and marking of said line was
completed on the 31st day of October, 1886. That in making said
survey, the engineers of said Coeur d'Alene Railway and Navigation
Company ran three lines through said Town of Wallace, called lines
A, B, and C, said lines A and B both being on the south side of the
South Fork of the Coeur d'Alene River, and the said line C being on
the north side of said river, and being the line upon which the
railroad of the Coeur d'Alene Railway and Navigation Company was
afterwards constructed, and upon the ground now in controversy in
this action. That in the month of October, 1886, and about one week
after the commencement of the said survey by the engineers of the
said Coeur d'Alene Railway and Navigation Company, W. H. Burrage,
an engineer, with a party of assistants claiming to be acting for
the plaintiff, commenced surveying a line of route for a railroad
from near the Town of Wardener, up the South Fork of the Coeur
d'Alene River, to the said Town of Mullen, and that in making said
survey, the said Burrage and the party assisting him were several
days and several miles behind the engineers surveying for the
defendant the Coeur d'Alene Railway and Navigation Company, and
that, in surveying their
Page 160 U. S. 83
line through the Town of Wallace, said Burrage surveyed the same
on the north side of said river, and over the ground in
controversy, and that said Burrage and party also marked their line
in a similar manner to what the engineers of the Coeur d'Alene
Railway and Navigation Company had done, and that said Burrage and
party completed their survey on the 5th day of November, 1886, and
that said portion of said line run by said Burrage over the ground
in controversy was run on the 28th day of October, 1886, and that
said line C run by the engineers of the said Coeur d'Alene Railway
and Navigation Company over the land in controversy was run on the
29th day of October, 1886, and that all of the parts of the line of
the Coeur d'Alene Railway and Navigation Company except said line C
was run and marked prior to the line run by the said Burrage, said
line C being run by the engineers of the Coeur d'Alene Railway and
Navigation Company as an amendment after they had completed the
survey to the Town of Mullen."
"Fifth. That in the summer and fall of 1887, the defendant the
Coeur d'Alene Railway and Navigation Company extended its road from
the Town of Wardener Junction over its line of survey, a point
about one mile east of the Town of Wallace, and over said line C,
the ground in controversy in this action, through the Town of
Wallace, and at all times thereafter, up to and at the time of the
commencement of this action, occupied and used the same as a
railroad and for railroad purposes, and at the time of the
commencement of this action had its roadbed and track, and side
tracks and depot thereon, and was using the same exclusively for
railroad purposes."
"Sixth. That at all the times above mentioned, the lands in
controversy, and all other lands along the line of said railroad of
the defendant the Coeur d'Alene Railway and Navigation Company, as
described in its articles of incorporation, were unsurveyed public
lands of the United States."
"Seventh. That on the 7th day of July, 1886, the articles of
incorporation of the plaintiff, the Washington and Idaho Railroad
Company, were filed in the office of the Secretary of the Territory
(now State) of Washington; that by said articles
Page 160 U. S. 84
of incorporation so filed, the plaintiff was authorized to
construct a railroad from the Town of Farmington, in Washington
Territory, by the most practical route, in general northerly
direction, to a point at or near the Town of Spokane Falls (now
Spokane), in said Washington Territory, together with the following
branch lines tributary thereto: from a junction with the said main
line at the forks of Hangman Creek, near Lone Pine, in said
Washington Territory, in a general northeastern direction, across
the Coeur d'Alene Indian reservation, to a point near the mouth of
St. Joseph's River on Coeur d'Alene Lake; thence in a northerly
direction along the east side of Coeur d'Alene Lake to the Coeur
d'Alene River; thence in a general easterly direction to Coeur
d'Alene River; thence in a general easterly direction to Coeur
d'Alene Mission; thence in a southeasterly direction, by the valley
of the South Fork of the Coeur d'Alene River to Wardener, in Idaho
Territory. Second. From a junction with said main line at or near
the Town of Spangle, in Washington Territory, in a generally
northeasterly direction, to a point on Coeur d'Alene Lake, about
five miles north of the mouth of the Coeur d'Alene River, in said
Idaho Territory. And to maintain and operate such railroads and
telegraph lines and branches thereof, carry freight and passengers
thereon, and receive tolls therefor."
"Eighth. That the said line of railroad, as described in the
said articles of incorporation of the plaintiff, nor any of the
branches thereof, did not cover or include the ground in
controversy, or any part thereof, or of the valley of the South
Fork of the Coeur d'Alene River adjacent thereto; that the eastern
terminus of the said branch of railroad running in the direction of
the Town of Wallace, as described in said articles, was at the Town
of Wardener, a distance of about fifteen miles westerly from the
Town of Wallace and from the land in controversy herein."
"Ninth. That afterwards, to-wit, on the 10th day of November,
1886, and after the completion of said survey by said Burrage and
the said survey by the engineers of the defendant the Coeur d'Alene
Railway and Navigation Company over the premises in controversy
herein, the plaintiff filed in
Page 160 U. S. 85
the office of the Secretary of the Territory (now State) of
Washington supplemental articles of incorporation, which
supplemental articles of incorporation provided for a branch line
of its railroad from the Town of Milo (which is near Wardener), in
Shoshone County, Idaho, following the South Fork of the Coeur
d'Alene River to the Town of Mullen, in said territory, a distance
of about twenty miles, which extension would pass over the premises
in controversy."
"Tenth. That on the 22d day of December, 1886, the plaintiff
filed in the office of the Secretary of the Interior at Washington,
D.C., a copy of its said articles of incorporation and a copy of
the statute of the Territory of Washington under which the
plaintiff's incorporation was made, and proof of its
organization."
"Eleventh. That from the time of the making of the said survey
by said Burrage over the land in controversy, on the 28th day of
October, 1886 until long after the completion of the railroad, side
tracks, and depot of the defendant the Coeur d'Alene Railway and
Navigation Company upon the ground in controversy, neither the said
Burrage nor the plaintiff, nor any person for them or either of
them, ever made any other survey or did any other act upon the
premises in controversy or took any possession thereof, and that
the first act done by said Burrage or the plaintiff upon said
premises thereafter was the survey made thereon in the year 1888 by
the plaintiff, and that at that time the railroad and the side
track and depot of the defendant the Coeur d'Alene Railway and
Navigation Company was fully constructed thereon, and had been so
constructed thereon since the fall of 1887, and the defendant the
Coeur d'Alene Railway and Navigation Company was in full and
complete operation and possession thereof and of the grounds in
controversy herein."
"Twelfth. That the public surveys of the government were not
extended over the land through which said surveys were made until
in the month of July, 1891."
"Thirteenth. That on the 9th day of November, 1886, the
defendant the Coeur d'Alene Railway and Navigation Company filed in
the United States land office at Coeur d'Alene,
Page 160 U. S. 86
Idaho, a map or profile of that portion of its railroad running
through the Town of Wallace, which was approved by the Secretary of
the Interior December 3, 1886, and that upon said map or profile,
said line B, through said Town of Wallace, was platted as the line
of route of said road; that line C was in fact and intended to be a
definite line of location thereof, but that said line B was so
platted by a mistake, and that said mistake was not discovered
until after the completion of said railroad and side track and
depot upon and over the ground in controversy herein, and that the
filing of said plat, showing said road to run over said line B, was
not done for the purpose of in any manner deceiving the plaintiff
or anyone else, but was done by a mistake, as aforesaid, and that
the plaintiff was not in any manner misled or prejudiced by the
filing of said plat or by said mistake."
The case was taken by a writ of error to the Circuit Court of
Appeals for the Ninth Circuit, where the judgment of the circuit
court was, on February 12, 1894, affirmed. 60 F. 981. On February
4, 1895, by a writ of error of that date, the case was brought to
this Court.
Page 160 U. S. 90
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
We are to answer the questions that arise on this record in the
light of the findings of fact made by the circuit court to which no
exceptions were taken.
Those questions are two: first, had the circuit court
jurisdiction to entertain the action?, and, if so, second, did the
title set up by the plaintiff company show a right of possession of
the land in dispute as against the title of the defendants?
It is claimed by the plaintiff in error that as at the time when
the action was originally brought in the District Court of the
Territory of Idaho, the Washington and Idaho Railroad Company, the
plaintiff, was a corporation organized under the laws of Washington
Territory, and the Coeur d'Alene Railway and Navigation Company,
defendant, was a corporation organized under the laws of Montana
Territory; and, as the Northern Pacific Railroad Company was not
really a party to the action, there was no right to remove the
cause from the state court, whose jurisdiction over the case had
attached under the terms of the Act of July 3, 1890, c. 356, 26
Stat. 215, providing for the admission of Idaho into the Union. The
argument is based on the language of the eighteenth section of that
act wherein it is provided that
"in respect to all cases, proceedings, and matters now pending
in the supreme or district courts of the said territory at the time
of the admission into the Union of the State of Idaho, and arising
within the limits of such state, whereof the circuit or district
courts by this act
Page 160 U. S. 91
established might have had jurisdiction under the laws of the
United States had such courts existed at the time of the
commencement of such cases, the said circuit and district courts,
respectively, shall be the successors of said supreme and district
courts of said territory, and in respect to all other cases,
proceedings, and matters pending in the supreme or district courts
of said territory at the time of the admission of such territory
into the Union, arising within the limits of said state, the courts
established by such state shall, respectively, be the successors of
said supreme and district territorial courts, and all the files,
records, indictments, and proceedings relating to any such cases
shall be transferred to such circuit, district, and state courts,
respectively, and the same shall be proceeded with therein in due
course of law; but no writ, action, indictment, cause, or
proceeding now pending, or that prior to the admission of the state
shall be pending in any territorial court in said territory shall
abate by the admission of such state into the Union, but the same
shall be transferred and proceeded with in the proper United States
circuit, district, or state court, as the case may be: provided,
however, that in all civil actions, causes, and proceedings in
which the United States is not a party, transfers shall not be made
to the circuit and district courts of the United States except upon
written request of one of the parties to such action or proceeding
filed in the proper court, and in the absence of such request, such
cases shall be proceeded with in the proper state courts."
This language is interpreted by the plaintiff in error to mean
that no case can be transferred to the federal courts if the
parties to it could not have gone into such courts at the time the
action was brought, if such courts had then actually existed, and
the contention is that, as at the time of the commencement of this
action the Washington and Idaho Railroad Company was a resident,
citizen, and inhabitant of the Territory of Washington, and the
Coeur d'Alene Railway and Navigation Company was a resident,
citizen, and inhabitant of the Territory of Montana, no suit either
by or against either of such corporations could have been removed,
transferred, or
Page 160 U. S. 92
commenced in a federal court on the ground of diverse
citizenship.
It should be observed that while it is true that Montana and
Washington were in a territorial condition when this suit was
brought, they both had become state -- the former on the 8th, the
latter on the 11th, of November, 1889, 26 Stat. 1552, 1553 --
before the filing of the petition for removal.
A similar question was presented in
Koenigsberger v.
Richmond Silver Mining Company, 158 U. S.
41. That was a case where, at the time of the bringing
of the action in a district court of the Territory of Dakota, the
plaintiff was a citizen of such territory, and when the territory
became a state under a statute in terms precisely similar to those
of the statute we are now considering, the cause was transferred to
the circuit court of the United States, and it was there contended,
as it is here, that the circuit court could not acquire
jurisdiction of the case by reason of the diversity of citizenship
between the parties, because, at the time of the commencement of
the case, the plaintiff was a citizen of a territory. The subject
was carefully considered, and the conclusion reached was thus
expressed in the language of MR. JUSTICE GRAY:
"Upon the whole matter, the reasonable conclusion appears to us
to be that Congress, by the description"
"whereof the circuit or district courts by this act established
might have had jurisdiction under the laws of the United States had
such courts existed at the time of the commencement of such
cases,"
intended to designate cases of which those courts might have had
jurisdiction under the laws of the United States had those courts,
like the other circuit and district courts of the United States
generally, existed at the time in question in a state of the Union,
whose inhabitants consequently were citizens of that state.
According to that hypothesis, the plaintiff would have been a
citizen of the State of South Dakota and the defendant a citizen of
the State of New York at the time of the commencement of the
action, and the circuit court court of the United States would have
had jurisdiction by reason of such diversity of citizenship. The
case was therefore rightly
Page 160 U. S. 93
transferred at the written request of the defendant, upon the
admission of the State of South Dakota into the Union, to the
circuit court of the United States.
This view sufficiently disposes of the objection made in this
case to the jurisdiction of the circuit court of the United States
so far as that jurisdiction depended on adverse citizenship.
The circuit court of appeals maintained the jurisdiction of the
circuit court on the ground that there was a federal question
involved in the fact that the Northern Pacific Railroad Company, a
corporation created by the laws of the United States, was a party
to the action. We agree with that court in regarding such a fact as
conferring jurisdiction on the circuit court. But it is urged that
the fact did not exist; that the Northern Pacific Railroad was not
a party to the action. This contention is, we think, disposed of by
the record itself. That discloses that the original suit was
brought against the Northern Pacific Railroad Company as well as
against the Coeur d'Alene Railway and Navigation Company; that the
summons included both of said defendants; that the complaint
alleged that the Northern Pacific Railroad Company was in actual
possession of the premises in dispute as a tenant of the Coeur
d'Alene Railway and Navigation Company. The return of the summons
alleged that service had been made upon both defendants. The
petition for the removal or transfer of the case was joined in by
the Northern Pacific Railroad Company, and in that petition it was
not alleged that the latter company objected to the summons, or for
any reason, to the jurisdiction of the court, but alleged that the
controversy was between citizens of different states, and that the
suit was of a civil nature arising under the laws of the United
States.
Upon the face of the record as it existed at the time of the
removal, consisting of the writ, the return of service, the
complaint, and the petition for such removal, it was therefore
plain that the Northern Pacific Railroad Company, as a corporation
created by the laws of the United States, was a party both
nominally and actively. It is true that the subsequent
Page 160 U. S. 94
record discloses that the circuit court, in rendering its
opinion and judgment, speaks of the Northern Pacific Railroad
Company as not having been served, and as not appearing in the
action. But, as was well said by the circuit court of appeals when
dealing with this contention:
"It cannot be said that the Northern Pacific Railroad Company
was not an actual party to the litigation. It was not only made a
party, but it was a proper party. It was the party in possession of
the premises sought to be recovered by the action of ejectment. . .
. At the time when the cause was removed, the return of service was
on file, but no default had been taken against the Northern Pacific
Railroad Company and no disposition had been made of the
plaintiff's controversy against it. That defendant, in presenting
its petition for removal to the circuit court, declared itself to
be one of the defendants to the case and recited the fact that the
cause was pending in the state court, and was properly within the
jurisdiction of the circuit court of the United States."
Whatever reason, therefore, the circuit court may have had for
speaking of the Northern Pacific Railroad Company as a party not
served and not appearing, it is incontrovertible, as against the
record, that it was served; and, whether served or not, it entered
a general appearance by joining in the petition for removal. That
it may have subsequently ceased to take an active part in the case
is immaterial. The jurisdictional question must be determined by
the record at the time of the transfer of the case.
Whether conflicting claims of railroad companies, under the
Right of Way Act of Congress of March 3, 1875, would give a circuit
court of the United States jurisdiction independently of
citizenship, under the doctrine of
Doolan v. Carr,
125 U. S. 620,
we do not find it necessary to consider.
If, then, the case fell within the jurisdiction of the circuit
court, we have next to inquire whether that jurisdiction was
properly exercised.
The controversy was between two railroad companies, one
organized under the laws of Washington Territory, the other
organized under the laws of Montana Territory, and was as
Page 160 U. S. 95
to the right of possession of a tract of land situated in
Shoshone County, in the Territory of Idaho, and over which each
company claimed a right of way under the Act of March 3, 1875,
entitled "An act granting to railroads a right of way through the
public lands of the United States." This act provides that
"the right of way through the public lands of the United States
is hereby granted to any railroad company duly organized under the
laws of any state or territory . . . which shall have filed with
the Secretary of the Interior a copy of its articles of
incorporation and due proofs of its organization under the same, to
the extent of one hundred feet on each side of the central line of
said road."
It was affirmatively found by the circuit court that the Coeur
d'Alene Railway and Navigation Company, on the 6th day of July,
1886, filed its articles of incorporation in the office of the
Secretary of the Territory of Montana, and also filed in the office
of the County Clerk and Recorder of the County of Lewis and Clarke
in said territory, a certified copy of its said articles of
incorporation; that the line of route of the railroad of the said
company, as described in said articles of incorporation, passed
over and included the land in controversy; that on the 20th day of
July, 1886, the said company filed in the office of the Secretary
of the Interior at Washington, D.C., a certified copy of its
articles of incorporation and proofs of its organization under the
laws of the Territory of Montana, which certified copy of articles
of incorporation and proofs of organization were duly approved on
that day by the Secretary of the Interior; that in the summer and
fall of 1886, the said company constructed its railroad over said
line of railroad, as described in said articles of incorporation,
from the Old Mission up the main Coeur d'Alene River to the Town of
Kingston, and thence up the South Fork of the Coeur d'Alene River
to the Town of Wardener Junction, a distance of about fourteen
miles; that in the month of October, 1886, the said company, for
the purpose of extending its line of railroad, caused a survey to
be made for its said line of railroad from said Wardener Junction
up the said fork of the Coeur d'Alene River, over the
Page 160 U. S. 96
line described in its said articles of incorporation, through
the Towns of Wallace and Mullen, and marked the center line of said
road upon the ground by planting stakes at each station at one
hundred feet and at such other points as there were angles in the
line, so that the line of route of said road could be readily
traced upon the ground; that the said surveying and marking of said
line was completed on the 31st day of October, 1886; that in making
said survey, the engineers of said company ran three lines through
said Town of Wallace, called lines A, B, and C -- the two former
being on the south and line C being on the north side of said
river, the latter being the line upon which the railroad of said
company was afterwards constructed, and upon the ground in
controversy in this action; that in the summer and fall of 1887,
the said company extended its road from the Town of Wardener
Junction over its line of survey, a point about one mile east of
the Town of Wallace, and over said line C, the ground in
controversy, through the Town of Wallace, and at all times
thereafter, up to and at the time of the commencement of this
action, occupied and used the same as a railroad, and for railroad
purposes, and at the time of the commencement of this action had
its roadbed, track, side tracks, and depot thereon, and was using
the same exclusively for railroad purposes, and that at all times
above mentioned, the lands in controversy, and all other lands
along the line of said railroad of the Coeur d'Alene Railway and
Navigation Company, as described in its articles of incorporation,
were unsurveyed public lands of the United States.
If these facts stood unaffected by other evidence, the title of
the Coeur d'Alene Railway and Navigation Company to the land in
controversy would be clear.
It was, however, shown that on the 9th day of November, 1886,
ten days after the completion of the survey of the three lines A,
B, and C, the said company filed in the United States land office
at Coeur d'Alene, Idaho, a map or profile, which was, December 3,
1886, approved by the Secretary of the Interior, and that on this
map the line B through the Town of Wallace was platted as the line
of the said railroad.
Page 160 U. S. 97
As already stated, in the fall of 1887, the company constructed
its railroad upon line C, and across the land in controversy. But
no amendment of the said map was made, nor was any approval of the
Secretary of the Interior obtained to any new map covering line
C.
The plaintiff contends that the effect of the filing and
approval of the map line B was to vest in the said company a right
of way one hundred feet wide on each side of the center line of its
road, as indicated upon said map, which right could not be changed
without the consent of the granting power first had and obtained.
Regarding this question as one entirely between the Coeur d'Alene
Railway and Navigation Company and the United States, it should be
observed that the act of Congress under which both parties claim
the land in question, by its fourth section provides that, in case
of unsurveyed lands of the United States, as these were, the plat
need not be filed until twelve months after a survey thereof. It is
however, said that while the company might not have been required,
under the act, to file its map at the time such filing was made,
yet it had the right to do so under certain regulations of the
Secretary of the Interior in force during the period of this
controversy, and that when such map was approved by the Secretary,
the company had secured the benefit of the act upon the line there
shown, and could not thereafter alter the same. We agree with the
circuit court of appeals in thinking that, so far as the United
States are concerned, there is nothing in the act forbidding a
railroad company, having adopted one line of survey along the route
provided for in its articles of incorporation, and having filed a
plat thereof, to subsequently, and within the time allowed it by
law for so doing, adopt another route, and that no reason is
apparent why, instead of filing a second plat, it may not construct
the road on the line surveyed and adopted so long as the rights of
others have not intervened. Such an actual construction and
appropriation of one line would preclude the company from asserting
any claim to the other lines, and hence the contention that, by
running several lines through unsurveyed lands, the company sought
to obtain more than the
Page 160 U. S. 98
statute gave -- namely, one right of way -- is met by the fact
that it claimed and constructed but one line.
If the United States could not and do not complain, there is no
foundation for the plaintiff company to do so, as it was found by
the trial court that the platting of line B, instead of line C, was
through a mistake, and that such mistake was not discovered until
after the completion of the defendant's railroad and depot over and
upon the ground in controversy, and that the filing of the plat
showing line B was not done for the purpose of in any manner
deceiving the plaintiff or anyone else, and that the plaintiff was
not in any manner misled or prejudiced by the filing of said plat
or by said mistake.
Even if the Coeur d'Alene Railway and Navigation Company was
duly organized as a railroad company, and, as such, was entitled to
construct and maintain its road over the land in controversy
without being estopped by having filed an inaccurate map, still the
plaintiff contends that the right of way in question belongs to it
by virtue of a prior survey made on its behalf. The facts relevant
to this contention are that the articles of incorporation under
which the plaintiff claims the land in controversy were not filed
in the office of the Secretary of the Territory of Washington till
the 10th day of November, 1886, and that a copy of such articles
and proof of organization were not filed in the office of the
Secretary of the Interior till December 22, 1886. It was, indeed,
shown and found that on October 28, 1886, W. H. Burrage, claiming
to be acting for the plaintiff, surveyed a line up the Coeur
d'Alene River, through the Town of Wallace, and over the ground in
controversy, which was the line described in the articles of
incorporation subsequently filed by the plaintiff company in the
offices of the secretary of the territory and of the Secretary of
the Interior.
The conclusion of the courts below on this state of facts was
that, at the time of the making of said survey by W. H. Burrage
over the lands in controversy on October 28, 1886, the plaintiff
was not a corporation organized for the purpose of constructing, or
authorized to construct, a railroad over the
Page 160 U. S. 99
land in controversy; was not authorized to take possession of
the said premises or to locate a line of railroad thereon, and that
the said survey on October 28, 1886, conferred no right whatever on
it, the plaintiff, as against the defendant, the Coeur d'Alene
Railway and Navigation Company.
The argument on behalf of the plaintiff is that when, on
December 22, 1886, the Washington and Idaho Railroad Company had
filed its articles of incorporation and proof of organization in
the office of the secretary of interior at Washington, D.C., it had
a right to adopt the survey previously made by Burrage, as and for
the location of its route under the general right of way act, and
that when it so adopted said survey, it related back to the date
when the survey was made.
We are unable to accept such a view of the law, but concur in
the conclusion of the court below that the language of the act of
Congress under which both parties claim, wherein it provides
that
"the right of way through the public lands of the United States
is hereby granted to any railroad company duly organized under the
laws of any state or territory which shall file with the Secretary
of the Interior a copy of its articles of incorporation and due
proofs of its organization under the same, to the extent of one
hundred feet on each side of the central line of said road,"
plainly means that no corporation can acquire a right of way
upon any line not described in its charter or in its articles of
incorporation; that it necessarily follows that no initiatory step
can be taken to secure such right of way by the survey upon the
ground or otherwise; that until the power to build the road upon
the surveyed line was in a proper manner assumed by or conferred
upon the plaintiff company, its acts of making surveys were of no
avail, and that, so far as the conflicting rights of the parties to
this controversy are concerned, the status of the plaintiff is the
same as if its survey of October 28, 1886, had not been made.
The case of
New Brighton Railroad Co. v. Pittsburg Railroad
Co., 105 Penn.St. 14, was, like the present, one of a contest
between two railroad companies for a right of way, and where the
effect of a survey of a line before the legal organization of the
company had to be considered, and it was held that
Page 160 U. S. 100
surveying, locating, and designating by proper marks the
property to be taken for railroad purposes cannot be done by the
projectors of a railroad company before its incorporation, but only
by the president and directors of a duly incorporated company,
their engineers and employees, and that an unauthorized preliminary
survey, though well marked by a line of stakes indicating the
location of a railroad, cannot be regarded as sufficient notice of
a prior legal appropriation of the land, nor will the subsequent
adoption of such survey by the company, after its incorporation,
give it any right to the location as against another company which
had surveyed and taken possession of the land before the
first-mentioned company had passed the resolution of adoption.
The cases cited by the plaintiff in error do not sustain its
position.
Morris & Essex Railroad v. Blair, 9 N.J.Eq. 635,
was a case of a contest for a right of way between two railroad
companies, both duly incorporated, and it was held that the prior
right attached to the company which first actually surveyed and
adopted a route and filed their survey in the office of the
Secretary of State, and also that the mere experimental surveying
of a route will not confer any vested or legal right until it shall
have been adopted.
The Supreme Court of Iowa, in
Lower v. Chicago, Burlington
&c. Railway, 59 Ia. 5638, held that, though a railroad
company may not, for some reason, have the legal right to condemn a
right of way for a lateral line, it may cause another company of
its own stockholders to be so organized as to have that power, and
that, when such subsidiary company has condemned the right of way,
it may lease its line to the former company, and in this there will
be no fraud upon those whose lands have been condemned.
It is not perceived that these decisions, accepting them as
sound, disclose any error in the ruling of the court below.
It is further made to appear by the eleventh finding that
"from the time of making the said survey by Burrage over the
land in controversy on the 28th day of October, 1886, until long
after the completion of the railroad, side tracks, and
Page 160 U. S. 101
depot of the defendant the Coeur d'Alene Railway and Navigation
Company upon the ground in controversy, neither the plaintiff, nor
any person for it, ever made any other survey, or did any other act
upon the premises, or took any possession thereof."
While it may be that such a finding, standing alone, would not
make out a case of estoppel of which the defendant could avail
itself in an action at law, it is entitled to consideration when we
are asked to adopt a construction of the act of Congress which
would enable the plaintiff company to take and enjoy the right of
way enhanced in value by the improvements put thereon by the
defendant. When a court of law is construing an instrument, whether
a public law or a private contract, it is legitimate, if two
constructions are fairly possible, to adopt that one which equity
would favor.
The decree of the court below is
Affirmed.
