The provision in Sec. 2 of the Act of July 27, 1866, c. 278, 14
Stat. 292, 294, which exempts from taxation within the territories
of the United States the right of way granted by the act to the
Atlantic & Pacific Railroad Company operates to exempt from
such taxation the land itself to the extent to which it is made by
the act subject to such right of way, and all structures erected
thereon.
In so deciding, the Court does not question the rule of
construction declared in
Vicksburg, Shreveport & Pacific
Railroad v. Thomas, 116 U. S. 665, and
followed in
Yazoo &c. Railroad v. Thomas, 132 U.
S. 174;
Wilmington & Weldon Railroad v.
Alsbrook, 146 U. S. 279;
Keokuk & Western Railroad v. Missouri, 152 U.
S. 301;
Norfolk & Western Railroad v.
Pendleton, 156 U. S. 667, and
Covington &c. Turnpike Co. v. Sandford, 169
U. S. 578, but rests the present decision simply on the
terms of the statute.
This case was begun by the filing in the District Court for
Bernalillo County, in the Territory of New Mexico, by the district
attorney for the territory, of an intervening petition on behalf of
the territory, praying for an order against the receiver of the
Atlantic & Pacific Railroad Company requiring him to pay the
amount of taxes claimed to be due upon the improvements on the
right of way of said railroad company in the County of Bernalillo,
and upon stationhouses and other improvements at seven different
stations in said county. The taxes claimed were for the years 1893,
1894, and 1895.
The case was submitted upon the following agreed statement of
facts:
"For the purposes of the hearing to be had upon the intervening
petition of the Territory of New Mexico in the above-entitled cause
and answers thereto of C. W. Smith, the receiver of the Atlantic
and Pacific Railroad Company, and the United States Trust Company,
it is hereby stipulated and agreed by
Page 172 U. S. 172
and between said above-named parties that the following facts
shall be accepted and received by the judge or court in determining
the questions involved as the facts in the case:"
"That on and prior to January 1, 1892, the Atlantic and Pacific
Railroad Company, under the provisions of its charter, definitely
located its line of road and right of way through Bernalillo
County, which said right of way so located involved all necessary
grounds for station buildings, workshops, depots, machine shops,
switches, side tracks, turntables, and water stations. That upon
said right of way so located through the City of Albuquerque, in
said county, were definitely located necessary grounds for station
buildings, workshops, depots, machine shops, side tracks,
turntables, and water stations, and there were also located upon
said right of way at the Atlantic and Pacific Junction at Chaves or
Mitchell, at Coolidge, at Wingate, at Gallup, and at Manuelito,
necessary grounds for station buildings, work shops, depots,
machine shops, switches, side tracks, turntables, and water
stations."
"That thereafterwards and prior to 1893, there was built and
constructed upon said right of way by the Atlantic and Pacific
Railroad Company from a point of junction with the Atchison, Topeka
and Santa Fe Railroad Company at Isleta, fifteen miles south of
Albuquerque, a railroad along said right of way from said junction
point to the Colorado River, in the Territory of Arizona. That the
Atlantic and Pacific Railroad Company has, under an agreement with
the Atchison, Topeka and Santa Fe Railroad Company, occupied and
used the tracks of the last-named company between the junction of
the two railroads at Isleta and the City of Albuquerque as and for
the railroad of the Atlantic and Pacific Railroad Company to the
extent that its business required the use and operation of such
railroad for itself, or, in other words, under contract between the
two companies, the railroad of the Atchison, Topeka and Santa Fe
Railroad Company through the City of Albuquerque to the junction at
Isleta, a distance of about fifteen miles, is jointly used by the
two railroad companies; said railroad running through the
reservations for machine shops, etc., aforesaid, of the Atlantic
and Pacific Railroad Company at
Page 172 U. S. 173
Albuquerque. That the right of way so located by the Atlantic
and Pacific Railroad Company and upon which it built its railroad,
as aforesaid, runs through Bernalillo County, and is situated in
Bernalillo County, as follows:"
"Commencing at the A. & P. Junction referred to, it runs
thence, in a westerly direction, 4 miles 3,780 feet, to the
division line between Bernalillo County and Valencia County, and
then, after crossing a portion of Valencia County at a point known
as 'Station 5,247,' it again runs through Bernalillo County 68
miles and 44 feet to the west line of the County of Bernalillo,
being the west line of the Territory of New Mexico, which said
right of way, outside of the reservation for station grounds, etc.,
was located and is of the width of 200 feet, being 100 feet on each
side of the center of the railroad track located thereon."
"That in due time, the former receivers of the property of the
Atlantic and Pacific Railroad Company appointed by this court
returned to the Assessor of Bernalillo County, as property
belonging to said railroad company, taxable in said county, certain
property, which was and is described in said returns as follows,
to-wit:"
"List of personal property belonging to, claimed by, or in the
possession or under the control of, the receivers of the Atlantic
and Pacific Railroad Company (Western Division), a corporation
created by act of Congress, having its principal place of business
at Albuquerque, New Mexico."
"The line of its road running through the Counties of Bernalillo
and Valencia, in said Territory of New Mexico; thence through the
Counties of Apache, Navajo, Coconino, Yavapai, and Mohave, in the
Territory of Arizona, to the eastern boundary line of the State of
California; thence through the Counties of San Bernardino and Kern,
in said state, to the western end of said line, and its terminus at
Mojave, in said County of Kern -- a total distance of 805.86 miles,
the total mileage of said line owned by said company in said
Territory of New Mexico being 166.6, of which 73.142 are in
Bernalillo County and 93.458 miles are in Valencia County."
"And the receivers of the property of said company
Page 172 U. S. 174
make a full report of all of its personal property as follows,
to-wit:"
All the locomotives, passenger coaches,
express and mail cars, cabooses, box,
flat, and coal cars, push cars, hand
cars, and all other equipments owned,
possessed, or used by said receivers
or said company upon the entire line
aforesaid . . . . . . . . . . . . . . . . . . $452,960
Track tools, and all other personal
property not having its situs or domicile
in some other state or territory,
including office and station furniture,
law library, books, stationery, supplies,
and material, etc. at Albuquerque,
Mitchell, Coolidge, Wingate, Gallup, and
Manuelito . . . . . . . . . . . . . . . . . . 78,000
Personal property within the city
limits of Albuquerque . . . . . . . . . . . . 200,000
Personal property within the city
limits of Gallup. . . . . . . . . . . . . . . 5,000
"That the above and foregoing was all the property returned for
taxation in Bernalillo County by said receivers or by the railroad
company itself, and that the same was made as the assignment of the
property of said company subject to taxation in said County for the
year A.D. 1895. That the County Assessor of Bernalillo County in
the year 1895, under the direction of the Board of County
Commissioners of said county, placed on the assessment roll an
assessment of property against the Atlantic and Pacific Railroad
Company for the year 1893. A true and correct copy of the
assessment roll, showing such assessment so placed thereon, is
filed with this as a part hereof, and as Exhibit 1, which said
exhibit shows the taxes levied, together with the values and
penalties. That at the time the said assessor, under the
instructions of said board, placed upon said assessment roll
certain property claimed to be taxable property belonging to said
railroad company, which was omitted from taxation for the year
1894. A true and correct copy of the assessment so made is shown by
Exhibit 2, herewith filed and made a part hereof."
"That the said assessor at the same time placed upon said
Page 172 U. S. 175
assessment roll property claimed to have been omitted and
belonging to said company for the year 1895, a true and correct
copy of which said assessment roll, with said last-named assessment
placed upon it, is shown by Exhibit 3, hereto attached and made a
part hereof and filed herewith."
"That these exhibits show precisely the descriptions of property
entered by the assessor, the penalties added, and the values, and
also the taxes levied thereon. Exhibit 3 also shows the description
of the property as returned by the receivers."
"That all the property so placed upon the assessment roll by the
assessor, outside of that returned by the receivers, was placed
upon said assessment roll without the knowledge or consent of the
receivers, or of said railroad company. That the entire property
placed upon the assessment roll by said assessor, outside of the
property returned by the receivers, constituted and constitutes an
actual part and portion of the roadbed and railroad track thereon
situated on the right of way of the Atlantic and Pacific Railroad
Company in Bernalillo County, in the Territory of New Mexico, and
constitutes the railroad used and occupied by the Atlantic and
Pacific Railroad Company under its charter and in accordance with
the provisions thereof, and the machine shops, station buildings,
water tanks, section houses, and other buildings of like character
connected with, and a part of, the machinery used in the operation
of said railroad. That each and every item of property described in
the assessments so placed upon the said assessment roll, outside of
the property returned by the receivers, is property that is
actually and permanently attached to the right of way and station
grounds of the Atlantic and Pacific Railroad Company, and
constitutes an actual part and portion of the superstructure placed
upon said right of way by said railroad company for its railroad,
and for its machine shops, turntables, sidetracks, switches, water
tanks, station buildings, and other buildings of the same class and
character, actually used and needed in the operation of said
railroad, and that no part of the same was at the time of the
placing of said assessment upon said assessment rolls by the
Page 172 U. S. 176
assessors, detached from the actual right of way and station
grounds of said railroad company, but, on the contrary, was firmly
affixed thereto. That it was described as it was by the assessor in
placing the same upon the assessment roll for the purpose of
escaping the exemption from taxation contained in the second
section of the Act of Congress approved July 27, 1866, known as the
'Charter of the Atlantic and Pacific Railroad Company,' the
assessor desiring to assess everything placed on the right of way
separate from the right of way, no matter how permanently attached
and affixed to the right of way."
"That during the year 1893, there were no receivers in
possession of said property, and that said railroad was being
operated by the railroad company itself, and if any property was
omitted to be returned for taxation which ought to have been
returned to the Assessor of Bernalillo County, it was the fault and
neglect of the railroad company itself, and not the fault and
neglect of the receivers afterwards appointed."
"That at Albuquerque, upon the reservations and station grounds,
there were situated the largest machine shops of the said railroad
company, the general office building, and such buildings as pertain
to the headquarters of a railroad company. Said buildings and
reservation constitute the headquarters of the Western Division of
the Atlantic and Pacific Railroad Company, and, since the
appointment of receivers, of the receivers operating the same."
"That the assessor, in placing each of these three assessments
upon the assessment rolls as stated, added to the actual value of
the property one-fourth of such value as a penalty for the failure
on the part of the receiver to return such property for
taxation."
"That in 1893, the railroad company, and in 1894 and 1895 the
receivers, omitted all property that was firmly and fixedly
attached to the right of way of said railroad company and to
station grounds under the honest belief that the same constituted a
part of the right of way and was exempt from taxation."
Subsequently the case came on to be heard, upon the intervening
petition of the territory and the answer thereto
Page 172 U. S. 177
of the United States Trust Company and of the receiver, C. W.
Smith, and the agreed statement of facts. Upon the hearing, the
judge of the district court ordered the receiver to pay to the
Treasurer of the County of Bernalillo the sum of $43,254.70, the
amount ascertained by a special master to be the aggregate of the
taxes levied upon the additional assessments and penalties. An
appeal was taken from this order by the United States Trust
Company, and also by the receiver, C. W. Smith, who had obtained
from the court permission to take such an appeal. The order
appealed from was reversed upon hearing before the supreme court of
the territory, the court determining that the additional
assessments placed upon the rolls were illegal and void. An
application was made for a rehearing, which the court denied, and
an appeal was taken to this Court.
The sections of the Act of July 27, 1866, with which we are
concerned are inserted in the margin; [
Footnote 1] also sections 2807, 2822, 2834, and 2835 of
the
Page 172 U. S. 180
Compiled Laws of 1884 of New Mexico, relating to taxation.
[
Footnote 2]
Page 172 U. S. 181
MR. JUSTICE McKENNA, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The right of way is granted to the extent of two hundred feet on
each side of the railroad, including necessary grounds for station
buildings, workshops, etc. What, then, is meant by the phrase "the
right of way"? A mere right of passage, says appellant.
Per
contra, appellee contends that the fee was granted, or, if not
granted, that such a tangible and corporeal property was granted
that all that was attached to it became part of it and partook of
its exemption from taxation.
To support its contention, appellant urges the technical meaning
of the phrase "right of way," and claims that the primary
presumption is that it was used in its technical sense. Undoubtedly
that is the presumption, but such presumption must yield to an
opposing context and the intention of the legislature otherwise
indicated. Examining the statute, we find that whatever is granted
is exactly measured as a physical thing, not as an abstract right.
It is to be two hundred feet wide, and to be carefully broadened so
as to include grounds for the superstructures indispensable to the
railroad.
The phrase "right of way," besides, does not necessarily mean
the right of passage merely. Obviously, it may mean one thing in a
grant to a natural person for private purposes
Page 172 U. S. 182
and another thing in a grant to a railroad for public purposes,
as different as the purposes and uses and necessities,
respectively, are.
In
Keener v. Union Pacific Railway, 31 F. 128, MR.
JUSTICE BREWER defined the words "right of way" as follows:
"The term 'right of way' has a two-fold significance. It
sometimes is used to mean the mere intangible right to cross -- a
right of crossing, a right of way. It is often used to otherwise
indicate that strip which the railroad company appropriates for its
use, and upon which it builds its roadbed."
Mr. Justice Blatchford said in
Joy v. St. Louis,
138 U. S. 44:
"Now the term 'right of way' has a two-fold signification. It is
sometimes used to describe a right belonging to a party -- a right
of passage over any tract, and it is also used to describe that
strip of land which railroad companies take upon which to construct
their roadbed."
That is, the land itself, not a right of passage over it. So,
this Court in
Texas Railway Co. v. Roberts, 152 U.
S. 114, passing on a grant to one of the branches of the
Union Pacific Railway Company of a right of way two hundred feet
wide, decided that it conveyed the fee. The effect of this decision
is attempted to be avoided by saying that the distinction between
an easement and the fee was not raised. The action was ejectment,
and was brought in Kansas, and under the law of that state, title
could be tried in ejectment. Title was asserted by Roberts, who was
plaintiff in the state court, and this Court evidently considered
it involved in the case. The language of Mr. Justice Field, who
delivered the opinion of the Court, would be unaccountable else.
The difference between an easement and the fee would not have
escaped his attention and that of the whole Court, with the
inevitable result of committing it to the consequences which might
depend upon such difference.
Washburn, in his work on Easements, on page 10, says: "Whether
the thing granted be an easement in land or the land itself may
depend upon the nature and use of the thing granted." To sustain
this view, the learned author cites
Jamaica Pond Aqueduct
Corporation v. Chandler, 9 Allen, 159. In that case, the court
said:
"Whenever a grant is made of a
Page 172 U. S. 183
right or easement in lands which fall within the class sometimes
described as 'noncontinuous' -- that is, where the use of the
premises by the grantee for the purpose designated in the deed will
be only intermittent and occasional, and does not embrace the
entire beneficial occupation and improvement of the land -- the
reasonable interpretation is that an easement in the soil, and not
the fee, is intended to be conveyed. Among the most prominent of
this class of easements is a way."
An ordinary way, of course, the court meant, one the use of
which would be noncontinuous -- only intermittent and occasional;
but a way not of that character, whose use would be continuous, not
occasional, and which would embrace the entire beneficial
occupation and improvement of the land, might require the fee for
its enjoyment -- certainly would require more than a mere right of
passage. "Unlike the use of a private way -- that is, discontinuous
-- the use of land condemned by a railroad company is perpetual and
continuous."
New York, Susquehanna & Western Railroad v.
Trimmer, 53 N.J.L. 1, 3.
But if it may not be insisted that the fee was granted, surely
more than an ordinary easement was granted -- one having the
attributes of the fee, perpetuity and exclusive use and possession;
also the remedies of the fee, and, like it, corporeal, not
incorporeal, property.
In Smith v. Hall, 72 N.W. 427, the Supreme Court of
Iowa says, speaking of the right of way of a railroad:
"The easement is not that spoken of in the old law books, but is
peculiar to the use of a railroad, which is usually a permanent
improvement -- a perpetual highway of travel and commerce -- and
will rarely be abandoned by nonuser. The exclusive use of the
surface is acquired, the damages are assessed, on the theory that
the easements will be perpetual, so that ordinarily the fee is of
little or no value unless the land is underlaid by a quarry or
mine."
"The right acquired by the railroad company, though technically
an easement, yet requires for its enjoyment a use of the land
permanent in its nature and practically exclusive."
Hazen v. Boston & Maine Railroad, 2 Gray 574,
580.
Page 172 U. S. 184
In
Southern Pacific v. Burr, 86 Cal. 279, the Supreme
Court of California sustained an action of ejectment for land
constituting a part of the right of way granted to the Central
Pacific Railroad by the Act of July 1, 1862, by language similar to
the grant in the case at bar.
Distinguishing the case from
Wood v. Truckee Turnpike
Co., 24 Cal. 474, in which it was held that "a road or right
of way is an incorporeal hereditament, and ejectment is
maintainable only for corporeal hereditaments," the court said:
"We think that case plainly distinguishable from this. Here
there was a special grant of a right of way two hundred feet in
width on each side of the road. This grant is a conclusive
determination of the reasonable and necessary quantity of land to
be dedicated to the public use, and it necessarily involves a right
of possession in the grantee, and is inconsistent with any adverse
possession of any part of the land embraced within the grant. It is
true the strip of land now actually occupied by the roadbed and
telegraph line may be only a small part of the four hundred feet
granted, but this fact is of no consequence. The company may at
some time want to use more land for side tracks or other purposes,
and it is entitled to have the land clear and unobstructed whenever
it shall have occasion to do so."
The court quoted and approved the views expressed in
Winona
v. Huff, 11 Minn. 119, that
"for a mere easement, perhaps an action of ejectment would not
lie, but wherever a right of entry exists, and the interest is
tangible, so that possession can be delivered, an action of
ejectment will lie."
The same distinction was made in
New York, Susquehanna &
Western Railroad v. Trimmer, supra, and the court said that if
the interest of the railroad company was a naked right of way, it
would constitute no such right of possession of the land itself as
would sustain the action, for such a right would be an incorporeal
one, upon which there could be no entry, nor could possession of it
be given under an
habere facias possessionem. In this
case, it was held that the interest taken by the railroad was not
an easement.
The interest granted by the statute to the Atlantic and
Page 172 U. S. 185
Pacific Railroad Company therefore is real estate of corporeal
quality, and the principles of such apply. One of these, and an
elemental one, is that whatever is erected upon it becomes part of
it. There are exceptions to the principle, but, as we are not
concerned with them, we need not state them. Applications of the
principle to railroads are illustrated by the decisions of this
Court and by those of other courts: as to rails put down against
him from whom purchased,
Galveston Railroad v.
Cowdry, 11 Wall. 459;
United
States v. New Orleans Railroad, 12 Wall. 362;
Thompson v. White Water Railroad, 132 U. S.
68, even though the contract of purchase provided that
the property should remain that of the vendor and he have a right
to remove the same,
Porter v. Pittsburgh Bessemer Steel
Co., 122 U. S. 267, and
cases cited; in determining the relation of the rails to the right
of way.
Joy v. St. Louis, 138 U. S.
1. In this case, Mr. Justice Blatchford said:
"The track cannot be separated from the right of way, the right
of way being the principal thing, and the track merely an incident.
A right of way is of no particular use to a railroad without a
superstructure and rails; the track is a necessary incident to the
enjoyment of the right of way."
See also Palmer v. Forbes, 23 Ill. 300;
Hunt v. Bay
State Iron Co., 97 Mass. 279;
New Haven v. Fair Haven
& Westville Railroad, 38 Conn. 422.
The principle has also illustrations in cases of taxation.
People v. Cassity, 46 N.Y. 46;
Appeal Tax Court of
Baltimore v. Baltimore Cemetery Co., 50 Md. 432;
Osborne
v. Humphrey, 7 Conn. 335;
Parker v. Redfield, 10
Conn. 490;
Lehigh Coal & Navigation Co. v. Northampton
County, 8 W. & S. 334;
Chicago, Milwaukee & St.
Paul Railway v. Crawford, 48 Wis. 666;
Richmond v.
Richmond & Danville Railroad, 21 Gratt. 604;
Mayor
&c. of Baltimore v. Baltimore & Ohio Railroad, 6 Gill.
288;
Osborn v. N.Y. & N.H. Railroad, 40 Conn. 491;
Richmond & Danville Railroad v. Alabama, 84 N.C. 504;
Worcester v. Western Railroad Corporation, 4 Met. 564.
It is urged, however, that the rule of construction declared in
Vicksburg, Shreveport &
Pacific Railroad v. Dennis, 116
Page 172 U. S. 186
U.S. 665, and the cases there cited and approved, and repeated
in
Railroad Co. v. Thomas, 132
U. S. 184;
Wilmington & Wesdon Railroad v.
Alsbrook, 146 U. S. 294;
Keokuk & Western Railroad v. Missouri, 152
U. S. 306;
Railroad Co. v. Pendleton,
156 U. S. 667, and
Covington &c. Turnpike Co. v. Sandford, 164 U.
S. 578 -- determines in favor of appellant's contention.
That we do not think so is probably sufficiently indicated, but we
cite the cases to preclude the thought that they have been
overlooked or that the rule announced by them is questioned.
Indeed, we regard it as salutary, and not impaired by our decision,
which simply rests on the terms of the statute.
The decree is
Affirmed.
[
Footnote 1]
"SEC 1. . . . And said corporation is hereby authorized and
empowered to lay out, locate and construct, furnish, maintain and
enjoy a continuous railroad and telegraph line, with the
appurtenances, namely, beginning at or near the Town of
Springfield, in the State of Missouri, thence to the western
boundary line of said state, and thence by the most eligible
railroad route as shall be determined by said company to a point on
the Canadian River; thence to the Town of Albuquerque, on the River
Del Norte, and thence, by way of the Agua Frio or other suitable
pass, to the headwaters of the Colorado Chiquito, and thence along
the thirty-fifth parallel of latitude as near as may be found most
suitable for a railway route to the Colorado River at such point as
may be selected by said company for crossing; thence by the most
practicable and eligible route to the Pacific. The said company
shall have the right to construct a branch from the point at which
the road strikes the Canadian River eastwardly, along the most
suitable route as selected, to a point in the western boundary line
of Arkansas at or near the Town of Van Buren. And the said company
is hereby vested with all the powers, privileges, and immunities
necessary to carry into effect the purposes of this act as herein
set forth."
"SEC. 2.
And be it further enacted that the right of
way through the public lands be, and the same is hereby, granted to
the said Atlantic and Pacific Railroad Company, its successors and
assigns, for the construction of a railroad and telegraph as
proposed, and the right, power, and authority is hereby given to
said corporation to take from the public lands adjacent to the line
of said road material of earth, stone, timber, and so forth, 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
railroad where it may pass through the public domain, including all
necessary grounds for station buildings, work shops, depots,
machine shops, switches, sidetracks, turntables and water stations,
and the right of way shall be exempt from taxation within the
territories of the United States. . . ."
"SEC. 3.
And be it further enacted that there be, and
hereby is, granted to the Atlantic and Pacific Railroad Company,
its successors and assigns, for the purpose of aiding in the
construction of said railroad and telegraph line to the Pacific
Coast and to secure the safe and speedy transportation of the
mails, troops, munitions of war, and public stores over the route
of said line of railway and its branches, every alternate section
of public land, not mineral, designated by odd numbers, to the
amount of twenty alternate sections per mile, on each side of said
railroad line, as said company may adopt through the territories of
the United States, and ten alternate sections of land per mile on
each side of said railroad whenever it passes through any state,
and whenever, on the line thereof, the United States have full
title, not reserved, sold, granted or otherwise appropriated, and
free from preemption or other claims or rights at the time the line
of said road is designated by a plat thereof, filed in the office
of the Commissioner of the General Land Office, and whenever, prior
to said time, any of said sections or parts of sections shall have
been granted, sold, reserved, occupied by homestead settlers, or
preempted, or otherwise disposed of, other lands shall be selected
by said company in lieu thereof, under the direction of the
Secretary of the Interior, in alternate sections, and designated by
odd numbers, not more than ten miles beyond the limits of said
alternate sections and not including the reserved numbers. . .
."
"
* * * *"
"SEC. 5.
And be it further enacted that said Atlantic
and Pacific Railroad shall be constructed in a substantial and
workmanlike manner, with all the necessary draws, culverts,
bridges, viaducts, crossings, turnouts, stations and watering
places, and all other appurtenances, including furniture and
rolling stock, equal in all respects to railroads of the first
class when prepared for business, with rails of the best quality,
manufactured from American iron. And a uniform gauge shall be
established throughout the entire length of the road. And there
shall be constructed a telegraph line of the most substantial and
approved description, to be operated along the entire line. . .
."
"
* * * *"
"SEC. 7.
And be it further enacted that the said
Atlantic and Pacific Railroad Company be, and is hereby, authorized
and empowered to enter upon, purchase, take, and hold any lands or
premises that may be necessary and proper for the construction and
working of said road not exceeding in width one hundred feet on
each side of the line of its railroad, unless a greater width be
required for the purpose of excavation or embankment, and also any
lands or premises that may be necessary and proper for turnouts,
standing places for cars, depots, stationhouses, or any other
structures required in the construction and working of said road.
And the said company shall have the right to cut and remove trees
and other material that might, by falling, encumber its roadbed,
though standing or being more than two hundred feet from the line
of said road. And in case the owner of such lands or premises and
the said company cannot agree as to the value of the premises
taken, or to be taken, for the use of said road, the value thereof
shall be determined by the appraisal of three disinterested
commissioners who may be appointed upon application by either party
to any court of record in any of the territories in which the lands
or premises to be taken lie, and said commissioners in their
assessment of damages shall appraise such premises at what would
have been the value thereof if the road had not been built. And
upon return into court of such appraisement, and upon the payment
into the same of the estimated value of the premises taken for the
use and benefit of the owner thereof, said premises shall be deemed
to be taken by said company, which shall thereby acquire full title
to the same for the purposes aforesaid. . . ."
"SEC. 8.
And be it further enacted that each and every
grant, right and privilege herein are so made and given to and
accepted by said Atlantic and Pacific Railroad Company, upon and
subject to the following conditions, namely that the said company
shall commence the work on said road within two years from the
approval of this act by the President, and shall complete not less
than fifty miles per year after the second year, and shall
construct, equip, furnish and complete the main line of the whole
road by the fourth day of July, Anno Domini eighteen hundred and
seventy-eight."
"SEC. 9.
And be it further enacted that the United
States make the several conditional grants herein, and that the
said Atlantic and Pacific Railroad Company accept the same, upon
the further condition that if the said company make any breach of
the conditions hereof, and allow the same to continue for upwards
of one year, then, in such case, at any time hereafter, the United
States may do any and all acts and things which may be needful and
necessary to insure a speedy completion of said road."
"SEC. 10.
And be it further enacted that all people of
the United States shall have the right to subscribe to the stock of
the Atlantic and Pacific Railroad Company until the whole capital
named in this act of incorporation is taken up by complying with
the terms of subscription."
"SEC. 11.
And be it further enacted that said Atlantic
and Pacific Railroad, or any part thereof, shall be a post route
and military road, subject to the use of the United States for
postal, military, naval and all other government service, and also
subject to such regulations as Congress may impose restricting the
charges for such government transportation."
"
* * * *"
"SEC. 20.
And be it further enacted that the better to
accomplish the object of this act, namely, to promote the public
interest and welfare by the construction of said railroad and
telegraph line, and keeping the same in working order, and to
secure to the government at all times, but particularly in time of
war, the use and benefits of the same for postal, military and
other purposes, Congress may at any time, having due regard for the
rights of said Atlantic and Pacific Railroad Company, add to,
alter, amend or repeal this act."
[
Footnote 2]
"SEC. 2807. The terms mentioned in this section are employed
throughout this chapter in the sense herein defined:"
"First. The term 'real estate' includes all lands within the
territory to which title or right to title has been acquired, all
mines, minerals and quarries, in and under the land, and all rights
and privileges appertaining thereto and improvements."
"Second. The term 'improvements' includes all buildings,
structures, fixtures and fences erected upon or fixed to land,
whether title has been acquired to said land or not."
"Third. The term 'personal property' includes everything which
is subject of ownership, not included within the term 'real
estate.'"
"Fourth. The term 'credit' includes every claim and demand for
money, or other valuable thing, and every annuity or sums of money
receivable at stated periods, but pensions from the United States
and salaries, or payments expected, for services to be rendered are
not included in the above term."
"SEC. 2822. The assessor is required, between the first day in
March and the first day in May of each year, to ascertain the names
of all taxable inhabitants and all property in his county subject
to taxation. To this end, he shall visit each precinct in the
county and exact from each person a statement in writing, or list
showing separately:"
"First. All property belonging to, claimed by or in the
possession or under the control or man agement of such person, or
any firm of which such person is a member, or any corporation of
which such person is President, secretary, cashier or managing
agent."
"Second. The county in which such property is situated, or in
which it is liable to taxation."
"Third. A description, by legal subdivisions or otherwise
sufficient to identify it, of all real estate of such person and a
detailed statement of his personal property, including average
value of merchandise for the year ending March 1st; amount of
capital employed in manufacture; number of horses, mules, cattle,
sheep, swine and other animals; of carriages and vehicles of every
description; jewelry, gold and silver plate; musical instruments;
household furniture; moneys and credits; shares of stock of any
corporation or company, and all other property not herein
enumerated, with the value of the different classes of property in
detail."
"SEC. 2834. On or before the first Monday in March annually, the
assessor shall make out an assessment book or roll, with
appropriate headlines, alphabetically arranged, in which must be
listed all the property in the county subject to taxation. Such
book shall contain the names of the persons to whom the property is
assessed, with the several species of property and the value as
hereinbefore indicated, with the columns of numbers and values as
given by the person making the return, as fixed by the assessor,
and as decided by the county commissioners. At the end of such book
or roll, all property assessed to 'unknown owners' shall be
entered."
"SEC. 2835. Each tract of land shall be valued and assessed
separately except when one or more adjoining tracts are returned by
the same person, in which case they may be valued and assessed
together."
