A railway company brought suit to establish its title under the
Right-of-Way Act of 1875 to certain lands in fee, and the trial
court found for defendant; on appeal, the appellate court reversed
with directions to enter judgment awarding the railway company a
right of way; on the trial court's entering such a judgment, the
railway company again appealed, contending that, according to the
true effect of the Right-of-Way Act, it had title in fee, but the
appellate court affirmed the judgment as entered. On writs of error
taken to both judgments, on separate writs, held
As the first judgment of the appellate court disposed of the
case on the merits and left nothing to the discretion of the trial
court, it was final in the sense of § 37 Judicial Code, and the
writ of error was rightly taken to that judgment, but not to the
Page 239 U. S. 45
The right of way granted by the Act of 1875 is neither a mere
easement nor a fee simple absolute, but a limited fee made on
implied condition of reverter in the event of nonuser.
The judgment awarding to the railway company a right of way in
the term of the Right-of-Way Act used those terms with the same
meaning they have in the act, and accorded to the company all that
it was entitled to.
38 Utah 11, affirmed.
Writ of error to review 39 Utah 236 dismissed.
The facts, which involve the construction of the Railroad
Right-of-Way Act of March 3, 1875, are stated in the opinion.
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This was a suit to quiet the title to a strip of land claimed
and used by the plaintiff as a railroad right of way under the act
of March 3, 1875, c. 152, 18 Stat. 482, and to which the defendants
asserted title under a patent for a placer mining claim. At the
trial, the facts were specially found and judgment for the
defendants was entered upon the findings. In reviewing that
judgment, the supreme
Page 239 U. S. 46
court of the state, accepting the findings below, held that the
plaintiff, in virtue of proceedings had in the Land Department
under the Right-of-Way Act while the land was yet public, acquired
a right of way 200 feet wide through the lands afterwards embraced
in the mining claim, and that the defendants' title under the
placer patent was subject to this right of way, and thereupon
reversed the judgment and remanded the case with a direction to
"enter a judgment awarding to the plaintiff title to a right of way
over the lands in question 100 feet wide on each side of the center
of the track." 38 Utah 113. Acting upon this direction, the trial
court vacated its prior judgment and entered another, adjudging the
plaintiff to be "the owner of a right of way" through the mining
claim 100 feet wide on each side of the center line of the
railroad, declaring the plaintiff's title to such right of way good
and valid, and enjoining the defendants from asserting any claim
whatever to the premises, or any part thereof, adverse to the
plaintiff's "said right of way." The plaintiff again appealed,
insisting that it was only adjudged to be the owner of a right of
way, when, according to the true effect of the Right-of-Way Act, it
had a title in fee simple, as was asserted in its complaint. But
the judgment was affirmed, the court saying (39 Utah 236):
"If counsel for appellant thought that this court, in the prior
opinion, did not correctly define and determine the extent of
appellant's rights to the land in dispute, or did not fully
safeguard its rights as defined and adjudged, they should have
filed a petition for a rehearing. This they did not do. The
conclusions of law and judgment having been drawn and entered in
conformity with the decision of this court, we are precluded from
further considering the case. The former decision became, and is,
the law of the case, and this court, as well as the litigants, are
bound thereby. "
Page 239 U. S. 47
Being in doubt which of the judgments of the appellate court
should be brought here for review to present properly the question
respecting the nature of its title, the plaintiff concluded to
bring up both, each by a separate writ of error.
Manifestly, the first judgment was final within the meaning of
Judicial Code, § 237. It disposed of the whole case on the merits,
directed what judgment should be entered, and left nothing to the
judicial discretion of the trial court. Tippecance County v.
Lucas, 93 U. S. 108
Bostwick v. Brinkerhoff, 106 U. S. 3
Mower v. Fletcher, 114 U. S. 127
Chesapeake & Pot. Tel. Co. v. Manning, 186 U.
. And, as the question sought to be presented
arises upon the first judgment, it being final in the sense of §
237, it is apparent that the writ of error addressed to the second
judgment presents nothing reviewable here. See Northern Pacific
R. Co. v. Ellis, 144 U. S. 458
Great Western Tel. Co. v. Burnham, 162 U.
; Chesapeake & Ohio Ry. v. McCabe,
213 U. S. 207
213 U. S.
What the act relied upon grants to a railroad company complying
with its requirements is spoken of throughout the act as a "right
of way," and, by way of qualifying future disposals of lands to
which such a right has attached, the act declares that "all such
lands over which such right of way shall pass shall be disposed of
subject to such right of way."
The right of way granted by this and similar acts is neither a
mere easement nor a fee simple absolute, but a limited fee, made on
an implied condition of reverter in the event that the company
ceases to use or retain the land for the purposes for which it is
granted, and carries with it the incidents and remedies usually
attending the fee. New Mexico v. United States Trust Co.,
172 U. S. 171
172 U. S. 183
Northern Pacific Ry. v. Townsend, 190 U.
, 190 U. S. 271
United States v. Michigan, 190 U.
, 190 U. S. 398
West. Un. Tel. Co. v. Pennsylvania R. Co., 195 U.
Page 239 U. S. 48
195 U. S. 570
The judgment under review does not in words so characterize the
plaintiff's right, nor was it essential that it should do so. It
describes the right in the exact terms of the Right-of-Way Act, and
evidently uses those terms with the same meaning they have in the
act. So interpreting the judgment, as plainly must be done, we
think it accords to the plaintiff all to which it is entitled under
In No. 4, judgment affirmed.
In No. 5, writ of error dismissed.