Under the Act of March 3, 1875, c. 152, "granting to the
railroads the right of way through the public lands of tile United
States," such grant to the
plaintiff in error took effect upon the construction of its
road.
This suit was brought by plaintiff in error to have itself
adjudged the owner of a right of way over the northwest quarter of
section eight in township 141, of range 64, in the County of
Stutsman, State of North Dakota.
Its title rests upon the Act of Congress of March 3, 1875,
entitled, "An Act Granting to Railroads the Right of Way through
the Public Lands of the United States."
The plaintiff was organized September 17, 1881, under the laws
of the Territory of Dakota. After its organization, it surveyed a
line of route for its railroad from a point near Jamestown in a
northwesterly direction through the County of Stutsman and over the
land in controversy. The survey was finished the 30th of October,
1881. A map representing the survey was made by a resolution of the
board of directors, and was adopted as the definite route of the
railroad.
In 1882, the road was constructed upon the line surveyed, and
since that time trains have been continuously run over it by the
plaintiff.
On the 26th of January, 1883, the plaintiff filed with the
Secretary of the Interior a copy of its articles of incorporation,
and due proofs of its organization under the same. On the 13th of
March, 1883, plaintiff's map of definite location was filed and
approved by the Secretary of the Interior. There was some
uncertainty in the evidence whether such map was ever filed in the
office of the register of the local land office, but it probably
was.
Page 177 U. S. 126
On the 12th of February, 1881, the land then being public land
of the United States, duly surveyed, one Sherman Jones filed a
declaratory statement upon it, alleging settlement the 8th of
February, 1881. On the 13th of March, 1883, it had not been
cancelled or vacated.
On the 26th of May, 1882, one William S. King filed a
declaratory statement on the land, which on the 13th of March,
1883, had not been cancelled.
In addition to the above, the trial court found the following
facts:
"On the 7th day of March, A.D. 1883, one Ella Sharp filed in
said land office an application to be allowed to enter said tract
under the homestead law, together with the affidavit required by
law. Said application was received and entered at said land office
and continued in force until, on the 21st day of November, 1892, it
was cancelled at said land office by relinquishment."
"On the 23d day of February, A.D. 1883, the defendant, T. J.
Jones, was a citizen of the United States and over the age of
twenty-one years. On that day, intending to purchase said tract
under the preemption laws, he built a house thereon; on the 3d day
of March of said year, he commenced living in said house, and from
that day continuously to the present has resided on said land and
has cultivated and improved the same. On June 5, 1883, he filed in
said land office at Fargo a declaratory statement under the
preemption law, alleging settlement on said land on March 3, 1883.
He afterward applied to said land office to be allowed to make
proof under his declaratory statement, but owing to the existence
of said prior homestead entry of Ella Sharp, said application was
refused. In November, 1892, he secured from said Ella Sharp a
relinquishment of her homestead entry, and on the 21st day of
November, 1892, the same date said entry was cancelled by
relinquishment, he made application to said land office to be
allowed to change his preemption entry upon said tract into a
homestead entry. Said application was received at said land office,
the entry allowed and numbered 20,234, and a receiver's receipt
bearing the same number issued to said defendant. Afterward, on the
21st day
Page 177 U. S. 127
of January, A.D. 1893, he made final proof for said land under
the homestead law, and on February 18, 1893, a final receiver's
receipt, numbered 7,233, was issued to him by said land office at
Fargo. On the 26th day of May, 1893, a patent in due form, whereby
the United States conveyed and granted said land to said defendant,
was issued to and received by him. There was not in said receiver's
receipt or final certificate, or in said patent for said tract a
reservation of any vested or accrued right, claim, or interest to
said land on the part of the plaintiff or of any person or
corporation under the act of Congress of March 3, 1875. At the time
defendant settled upon said land, plaintiff was and ever since has
been engaged in operating a line of railroad thereover."
"The plaintiff has not at any time instituted proceedings or
resorted to any process whatever under state or federal laws to
condemn a right of way across said land, or to divest defendant of
his title or any possessory right that he might have to said
land."
"Plaintiff has taken for its use as a right of way upon said
land a strip one hundred feet wide, being fifty feet on each side
of the central line of its railroad tract and extending diagonally
across said land from a point about the middle of its south
boundary to a point near its northwest corner. Said strip includes
about six acres of said land. The land not taken is divided into
two unequal parts, and its value for farming purposes decreased.
Trains of cars are drawn by plaintiff over and across said land
every day, and the crop on defendant's land is injured by smoke
from said railroad, and his buildings and crops subjected to
increased hazard of destruction by fire. By the taking of said
strip for a right of way and the construction and operation of a
railroad thereon, the said land is depreciated in value in the sum
of three hundred dollars."
"Defendant has not at any time consented to the taking or use of
said land by plaintiff, and has not received any compensation for
said taking or for the injury and damage inflicted thereby."
As conclusions of law, the court found that no right of way
accrued until the 13th of March, 1883, the date of the filing of
the profile
Page 177 U. S. 128
map of the road; that, prior to that time the land had ceased to
be public land by reason of the preemption and homestead entries
which had been filed upon it; that the defendant, T. J. Jones, was
the owner in fee of said land without reservation of any kind, and
that his title related back to February 23, 1883, the date of his
settlement thereon.
Judgment was entered dismissing plaintiff's cause of action,
awarding the defendant three hundred dollars and costs taxed at
$24.65, and that,
"upon the payment to the defendant of the sum of three hundred
dollars and the costs of this action, there shall vest in the
plaintiff, Jamestown & Northern Railroad Company, and its
successors and assigns, the full legal title to that portion of the
northeast quarter of section 8, township 141, range 64, used by it
as a right of way, to-wit, fifty feet on each side of the center
line of said railroad, as the same has been heretofore constructed
and is now located and operated through said land by said
plaintiff."
Upon appeal to the supreme court of the state, the judgment was
affirmed (7 N.D. 619), and this writ of error was then sued
out.
MR. JUSTICE McKENNA delivered the opinion of the Court.
In the summer of 1882, the plaintiff in error constructed its
railroad across the land in controversy, and the finding of the
Court is that "at the time defendant settled upon said land,
plaintiff was and ever since has been engaged in operating a line
of railroad thereover."
The defendant nevertheless was awarded three hundred dollars
damages, and the plaintiff adjudged to have acquired no rights
whatever by the construction of its road.
The act of 1875, upon which plaintiff relies, is as follows:
"That the right of way through the public lands of the
Page 177 U. S. 129
United States is hereby granted to any railway company duly
organized under the laws of any state or territory, except the
District of Columbia, or by the Congress of the United States,
which shall have filed with the Secretary of the Interior a copy of
its articles of incorporation, and due proof of its organization
under the same, to the extent of one hundred feet on each side of
the central line of said road;"
"Also the right to take from the public lands adjacent to the
line of said road, material, earth, stone, and timber necessary for
the construction of said railroad;"
"Also ground adjacent to such right of way for station
buildings, depots, machine shops, side tracks, turnouts, and water
stations, not to exceed in amount twenty acres for each station, to
the extent of one station for each ten miles of its road."
"
* * * *"
"SEC. 3. That the legislature of the proper territory may
provide for the manner in which private lands and possessory claims
on the public lands may be condemned, and where such provision
shall not have been made, such condemnation may be made in
accordance with section 3 of the act entitled"
"An Act to Aid in the Construction of a Railroad and Telegraph
Line from the Missouri River to the Pacific Ocean, and to Secure to
the government the Use of the Same for Postal, Military, and Other
Purposes, Approved July 1, 1862,"
"approved July 1, 1864."
"SEC. 4. That any railroad company desiring to secure the
benefits of this act shall, within twelve months after the location
of any section of twenty miles of its road, if the same be upon
surveyed lands, and if upon unsurveyed lands, within twelve months
after the survey thereof by the United States, file with the
register of the land office for the district where such land is
located a profile of its road, and upon approval thereof by the
Secretary of the Interior the same shall be noted upon the plats in
said office, and thereafter all such lands over which such right of
way shall pass shall be disposed of subject to such right of way:
Provided, That if any section of said road shall not be
completed within five years after the location
Page 177 U. S. 130
of said section, the rights herein granted shall be forfeited as
to any such uncompleted section of said road."
"SEC. 5. That this act shall not apply to any lands within the
limits of any military park or Indian reservation, or other lands
especially reserved for sale. . . ."
There is some uncertainty in the act. Its first section is
expressed in words of present grant, but there is no definite
grantee. We said in
Hall v. Russell, 101
U. S. 509: "There cannot be a grant unless there is a
grantee, and consequently there cannot be a present grant unless
there is a present grantee." And it was further said that in all
cases where a grant was given a present effect, a state or some
other corporation having all of the qualifications specified in the
act had been designated as a grantee. In other words, when an
immediate grant was intended, an immediate grantee having all the
requisite qualifications was named. In
Noble v. Railroad
Co., we said:
"The language of that section is '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,' etc. The uniform rule of this Court has been that such
an act was a grant
in praesenti of lands to be thereafter
identified.
Railway Co. v. Alling, 99 U. S.
463."
This case establishes that a railroad company becomes
specifically a grantee by filing its articles of incorporation and
due proofs of its organization under the same with the Secretary of
the Interior. It was also so held by Mr. Secretary Vilas in Dakota
Central Railroad Co. v. Downey, 8 L.D. 115.
But what constitutes a definite location of the right of way?
Upon the answer to that question the present controversy hinges.
The state courts decided, as we have seen, that the right of way
only became definitely located by the filing of a profile map of
the road. The contention of the plaintiff in error is that the
right of way may be definitely located by the actual construction
of the road. And this was the ruling of the Interior Department in
Dakota v. Downey,
supra, and the ruling has been
subsequently adhered to. St. Paul, Minneapolis
Page 177 U. S. 131
& Manitoba Ry. Co. v. Maloney, 24 L.D. 460; Montana Central
R. Co., 25 L.D. 250; St. Paul & Minneapolis Ry. Co., 26 L.D.
83;
The ruling gives a practical operation to the statute, and we
think is correct. It enables the railroad company to secure the
grant by an actual construction of its road, or in advance of
construction by filing a map as provided in section four. Actual
construction of the road is certainly unmistakable evidence and
notice of appropriation.
Secretary Vilas said in Dakota Central R. Co. v. Downey:
"As to the roadway the construction of the road fixes the
boundaries of the grant, and fixes it by the exact rule of the
statute. . . . This must undoubtedly be the rule when the road is
constructed over unsurveyed lands, because then every condition
necessary to the vigor of the present grant in complied with. The
fact that the railroad company may locate and construct its road
upon unsurveyed lands is clearly recognized in the fourth section
of the act, and the regulations of the department have been made to
apply to such cases, and authorize such construction."
"It seems to me that the fourth section of the act was written
for another purpose and for another case. It relates to a case of a
railroad company which desires to secure the present grant, and
give to it fixity of location,
before its road shall be
constructed, and it is designed to provide a similar privilege in
respect to rights of way which acts granting lands to aid in the
construction of railroads have provided -- namely, the privilege of
giving fixity of location to the subject of the grant
before construction of the road."
"
* * * *"
"It does not become necessary for a road which has secured the
benefits of this act by taking the steps which give it the attitude
of being named in the first section as a grantee, and by building a
road through the public lands, whereby the subject of the grant has
been defined, to file a map of definite location in order to
entitle it to the benefits of the right of way."
"The fourth section is designed to provide a mode by which
fixity of location can be secured to a grantee,
in
anticipation
Page 177 U. S. 132
of that construction by which location is defined in the section
making the grant, and which shall have the effect, before the
construction of the road, which the terms of the grant limit to the
'central line of said road,' which only means-without the 4th
section -- a
constructed road."
This decision and the subsequent decisions of the Interior
Department were concerned with cases of construction on unsurveyed
land, but we think the power applies also to surveyed lands. The
only difference which the act of Congress makes between surveyed
and unsurveyed land is the provision in section four for filing the
profile of the road.
It follows from these views that the grant to plaintiff in error
by the act of 1875 became definitely fixed by the actual
construction of its road, and that the entry of the defendant in
error was subject thereto.
This conclusion does not conflict with the doctrine announced in
Van Wyck v. Knevals, 106 U. S. 360, and
in
Kansas Pacific Railway Co. v. Dunmeyer, 113 U.
S. 629, that the title to lands passing under railroad
land grants is considered as established at the date of the filing
of the map of definite location. The same question is not here
presented. Different considerations apply to the grant of lands
than to the grant of the right of way.
The judgment of the Supreme Court of North Dakota is
therefore reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
