Petition — Boise Cascade Corp. v. Union Pacific Railroad

, 4 asc

Supreme Court, U.S, —

FILED

80-1016 DEC 19 1980

In the ett Court tt RODAK, JR., CLERK

United States

OcToBER TERM, 1980

BOISE CASCADE CORPORATION,

Petitioner,

vV.

UNION PACIFIC RAILROAD COMPANY;

SAN PEDRO, LOS ANGELES & SALT LAKE

RAILROAD COMPANY and UNITED STATES

OF AMERICA,

Respondents.

On Wait or CERTIORARI TO THE UNITED STATES

Court oF APPEALS FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Grecory B. Monson,

Counsel of Record

Puuire C. PuGsLey

310 South Main Street

Twelfth Floor

Salt Lake City, Utah 84101

Attorneys for Petitioner

QUESTIONS PRESENTED

1. Can the General Right of Way Act of March

3, 1875, 18 Stat. 482, 43 U.S.C. §§ 934-939 be applied

to grant a right of way to a railroad constructed prior

to its passage?

2. Isa railroad entitled to a 200-foot right of way

under the Act on a line constructed in 1873 where the

required filings submitted after enactment in 1875 desig-

nated a line different than the line previously con-

structed, indicated that the line was to be constructed

in the future and have remained uncorrected for 105

years?

3. Is summary judgment appropriate where there

is a genuine issue of material fact regarding the location

of the right of way granted pursuant to administrative

action under the Act?

it

TABLE OF CONTENTS

Fage

QUESTIONS PRESENTED, .........:.c.ccecccsssecseseses i

TABLE OF CITATIONS ....0..c:ccccscccosssnscenspasensesyan iv

OPINION TRIOW, .scccccccssieidasiassssscecseeenmaien 1

JURISDICTION k.ncccisccnisne ome 2

STATUTORY PROVISIONS INVOLVED .... 2

STATEMENT OF THE CASE ...........0.00.00.....0.. 4

REASONS FOR GRANTING THE WRIT .... 6

1. THe Decision Grants A WINDFALL TO THE

RAILROAD CONTRARY TO THE INTENT OF THE

Act AND IN CONFLICT WITH THIS CouRTS

INTERPRETATION OF THE INTENT OF THE ACT... 6

2.

A.

B.

The Act was not intended to apply to a

road constructed prior to its passage ........ 7

The Secretary's action in approving the

Railroad's profile map and due proofs of

organization should be construed in

harmony with the intent of the Act ............ 12

If the Secretary did intend to grant a right

of way in the line constructed in 1873,

ble action 10 CONE .o:cicn-cs.ncteonanenne 16

THE Decision BELow Has CLOUDED THE

TITLE TO LAND OF THOUSANDS OF PRIVATE

TUBE OEBUIALS | ...ccuecscdecsccassecsenachonseiduuuaeeee 17

CONCLUSION .oecc-nsciaisicnivcrtnnee ee napiads 20

114

APPENDIX A—

Opinion of Court of Appeals .......------s2--s-100 A-1

APPENDIX B-— Order of District Court on

Motions for Summary Judgment .............------- B-1

APPENDIX C — Judgment of District Court .. C-1

APPENDIX D — Order of Court of

Appeals Denying Rehearing ........-----------------~ D-1

APPENDIX E— Order of Court of Appeals

Denying Rehearing In Banc .........-------------- E-1

APPENDIX F — Statutes ........-.---------1-7 F-1

APPENDIX G— Due Proof of Organization

Filed by Railroad ..........--.---.-------seete G-1

Page

TABLE OF CITATIONS

Cases

Allard Cattle Co. v. Colorado & Southern Ry. Co.,

516 P,2d 128, affd 530 P.2d 503 (Colo. 1974) .. 18

Cary v. Chicago, §.P.M.&O. Ry. Co.,

3 Land Decisions 428 (1885) ................-------- 14, 15

Chicago & North Western Ry. Co. v. Continental

Oil Co., 258 F.2d 468 (10th Cir. 1958) ............ 16

Dakota Central R. Co. v. Downey,

8 Land Decisions 115 (1889). ..................:...20-+++ 14

Federal Crop Insurance Corp. v. Merrill,

Ue a I IN socal sects siencacictccerneen 16

Gray v. Johnson, 395 F.2d 533 (10th Cir.),

cert. den. 8392 U.S. 906 (1968) 0.0... 16

Great Northern Ry. Co. v. Steinke,

Oe Are Oe 13

Great Northern Ry. Co. v. United States,

B15. U.S. 262 (1942) ooo eeceeceeccseeeee 7, 8, 9, 11, 15

Himonas v. Denver & Rio Grande W. R. Co.,

170 F.2d 171 (10th Cir. 1060) .......................... 18

Jamestown & Northern R. Co. v. Jones,

ee Sy | eae 7, 18, 14

Leo Sheep Co. v. United States,

WO, ON CUI) isaac eeecceeccee 17

Northern Pacific Ry. Co. v. Townsend,

eT. OF a 18

| | Page

North Wisconsin Ry. Co., Dec. Nov. 17 ,1879, |

2 Copp’s Public Land Laws 823 (1882) ~........ 11

Perkins v. Central Pacific R.R. Co.,

1 Land Dec. 336 (1882) ......-.-------------0"" 10, 11

Phoenix & Eastern R. Co. v. Arizona Eastern R. Co.,

9 Ariz. 484, 84 Pac. 1097 (1906), appeal

dismissed 207 U.S. 601 (1907) ...---------------------~ 14

Rio Grande Western Ry. Co. v. Stringham,

38 Utah 113, 110 Pac. 868 (1910),

aff'd 239 U.S. 44 (1915)... 11, 12, 15

Stalker v. Oregon Short Line R. Co.,

225 U.S. 142 (1912) -..--------eececeesesseeeeceetesseeteetett 14

United States v. Denver & Rio Grande Ry. Co.,

150 U.S. 1 (1808) ssccccccccceessesseeccenseeeessseeneneeeees 7, 12

United States v. Union Pacific R. Co.,

353 U.S. 112 (1957) Oe a caemeipenimnenanenas 15

United Telecommunications, Inc. v Commissioner

of Internal Revenue, 589 F.2d 1383

(10th Cir. 1978) ........-----------seccsssecenneeesenseecennseenees 13

Washington & Idaho R. Co. v. Coeur D’ Alene

Ry & N. Co., 160 U.S. 77 (1895) ......--.------s0-+- 14

Statutes

Act of February 25, 1909, 35 Stat. 647,

4B U.S.C. $940 ........--.es-sn-cesneceeeesneensnsenseceneeenss 3, 13

Act of June 20, 1874, 18 Stat. 130 -.......--..-------------+++ 18

Fundamental Enabling Act of July 16, 1894,

Na ccniistemeanalovensédiocecsnrssuccnsvecisee 4, 5

General Right of Way Act of March 3, 1875,

18 Stat. 482, 43 U.S.C. §§ 934-939 .. i, 2, 3, 5, 6, 7,

8, 9, 10, 11, 12, 18, 14, 15, 16, 18, 19

Pub. L. 94-579, Title VII, § 706 (a),

ENE TSS SO 19

EE 2

Regulations

Circular Instructions of June 30, 1875,

2 Copp’s Public Land Laws 815 (1882) ........ 9, 10

Circular Instructions of March 9, 1878,

2 Copp’s Public Land Laws 816 (1882) .......... 10

Circular of January 13, 1888,

12 Land Decisions 428 (1891) ......0..0c.cccccceeee. 10

Regulations of February 11, 1904,

82 Land Decisions 481 (1904) oo... 10

Regulations of May 21, 1909,

87 Land Decisions 787 (1909) ....0...0......cc0.c.0. . 10

Regulations of November 4, 1898,

27 Land Decisions 628 (1898) ..0...........0cc0c0.00-- 10

Secondary Authorities

C. J. Corliss, American Railroads Their Growth

and Development (1945) ............sssessessescesseseeeee 17

vil

Page

Cong. Rec. 43d Cong. Ist Sess. Vol. 2,

pt. 4, 3036 (1874) SBOE SECA MEN OOO 8, 9

Cong. Rec. 43d Cong. 1st Sess. Vol. 2,

i Me io csopesasonndusnessachecec 8

Cong. Rec. 438d Cong, 2d Sess. Vol. 3,

EL Sa 8, 9

Cong. Rec. 43d Cong. 2d Sess. Vol. 3,

8 SO ne ne eee 8

R. E. Reigel, The Story of the Western

SI a LE apc Nee 17

Resolution of December 8, 1873, 43d Cong. 1st Sess.,

Sen. Misc. Doc. 12 (Serial 1584) ..........0.....0..... 8

Resolution of March 11, 1872, Cong.

Globe 42d Cong. 2d Sess. 1585 (1872) ............ 17

R. F. Thorum, Railroad Development in Utah,

URI CTI orn ciessicsdcccsiecosacscsdeicicen chee 18

in the Supreme Court of the

United States

OcrToBER TERM, 1980

BOISE CASCADE CORPORATION,

Petitioner,

V.

UNION PACIFIC RAILROAD COMPANY;

SAN PEDRO, LOS ANGELES & SALT LAKE

RAILROAD COMPANY and UNITED STATES

OF AMERICA,

Respondents.

On Writ or CERTIORARI TO THE UNITED STATES

Court or APPEALS FOR THE TENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

; Petitioner, Boise Cascade Corporation, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Tenth Circuit entered in this proceeding on July

24, 1980.

OPINION BELOW

The opinion of the court of appeals is reported

at 680 F.2d 720. A copy of the opinion is attached

, ie

as Appendix A. The order of the United States

District. Court for the District of Utah granting sum-

mary judgment to respondents is reported at 454 F.

Supp. 531. A copy of that order is attached as Ap-

pendix B. The district court’s judgment and decree is

not reported; a copy is attached as Appendix C.

JURISDICTION

The judgment of the Court of Appeals for the

Tenth Circuit was entered on July 24, 1980.’ A timely

petition for rehearing in banc was denied on September

28, 1980, see Appendices D (denying rehearing) and

E (denying rehearing in banc) attached, and this peti-

tion for certiorari was filed within 90 days of that date.

This court's jurisdiction is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

The General Right of Way Act of March 3, 1875,

18 Stat. 482, 438 U.S.C. §§ 934-939 (the Act), provides

in pertinent part:

Section 934 Right-of-way through public

lands granted to railroads

The right of way through the public lands of

the United States is granted to any railroad com-

pany duly organized under the laws of any State

1On May 8, 1980, the court of appeals issued its initial opinion and

judgment in this matter. Boise Cascade petitioned the court to re-

call the mandate in the case and for leave to file a petition for re-

hearing out of time to allow the court to correct errors in that

opinion. On July 24, 1980, the court issued an order recalling the

mandate, withdrawing the opinion filed May 8, filing a new opinion

and permitting the parties the usual time from the new filing to

petition for rehearing. Boise Cascade obtained an extension of that

time and thereafter filed a timely petition for rehearing in banc on

August 22, 1980.

3

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 100 feet of each

side of the central line of said road... .

Section 937. Filing profile of road; for-

feiture of rights

Any railroad company desiring to secure the

benefits of sections 934-939 of this title shall,

within twelve months after the locatior 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 officer,

as the Secretary of the Interior may designate,

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 land over which

such right of ways 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 of said section,

the rights herein granted shall be forfeited as to

any such uncompleted section of said road.

The Act of February 25, 1909, 35 Stat. 647, 43

U.S.C. § 940, provides in pertinent part:

Section 940. Forfeiture of rights where rail-

road not constructed in five years after location

Each and every grant of right of way made

prior to February 25, 1909, to any railroad cor-

poration under section 934-939 of this title where

such railroad had not been constructed in the

period of five years next following the location

of said road, or any section thereof, and on that

4

date expired, is declared forfeited to the United

States, to the extent of any portion of such lo-

cated line then remaining unconstructed, and the

United States resumes the full title to the lands

covered thereby free and dischaged from such

easement, and the forfeiture declared shall, with-

out need of further assurance or conveyance,

inure to the benefit of any owner or owners of

land conveyed by the United States prior to such

date subject to any such grant of right of way or

station grounds .... |

A complete copy of each of the above acts and of

relevant portions of the Fundamental Enabling Act of

July 16, 1894, 28 Stat. 107, is attached as Appendix F.

STATEMENT OF THE CASE

This quiet title action was commenced in 1976 after

a dispute developed between Boise Cascade and Union

Pacific Railroad Company regarding title to a strip of

land in Section 16, Township 6 South, Range 2 East,

Utah Country, Utah.

In 1871 the Railroad commenced construction of

its proposed 78 mile road and by November of 1873 had

completed the portion at issue here.” (R. 238) In

2 The Utah Southern Railroad Company was organized in January

of 1871 to construct a railroad line from Salt Lake City to Payson,

Utah. The Articles of Incorporation were amended in 1877 and 1879

to extend the road 29 miles further south. Title to the road, which

was completed in 1879, passed through a number of reorganizations

and conveyances until 1903 when it was conveyed to its current

owner, respondent San Pedro, Los Angeles & Salt Lake Railroad

Company. Since 1936, Union Pacific has leased the road from its

owner. For ease of reference and because there is no dispute

that respondents stand in the same position as their predecessors,

each and all of the railroads constructing, owning or leasing the

line in question will be referred to in this petition as the Railroad.

5

September of 1875, following passage of the Act, the

Railroad filed its articles of incorporation and a profile

map with the Secretary of the Interior (Secretary).

The Secretary approved the map and filed the articles

on September 28, 1875.

Based upon these filings and the Secretary's ap-

proval of them, the Railroad claims a 100-foot right of

way on either side of the center line of its track con-

structed in 1873.

Boise Cascade is the successor in interest of the

grantee of a patent by the State of Utah. Utah claimed

title to Section 16 as a school section conveyed to it

under the Fundamental Enabling Act of J uly 16, 1894,

28 Stat. 107.° |

The Railroad has not utilized its entire claimed

200-foot right of way for railroad purposes. For more

than 20 ye rs, the Railroad had maintained fences on

either side of the track approximately 33 feet from its

center line. (R. 46) Boise Cascade’s property is bound-

ed on the east by the fence located 33 feet west of the

track. The 67-foot strip in dispute is the land located

between the fence and the claimed 100-foot right of way

on the west side of the track. Boise Cascade has made

valuable improvements on this strip. (R. 159)

There is a dispute in the record whether the line

indicated on the profile map filed by the Railroad and

approved by the Secretary corresponds to the line con-

° Utah’s title to Section 16 was confirmed in Patent No. 43-65-0183

issued by the United States on April 24, 1965.

6

structed in 1873. Boise Cascade introduced a certified

plat prepared by a licensed surveyor establishing that

the rail line shown on the profile map is approximately

430 feet east of the line built in 1873. (R. 115) The

Railroad has refused to admit that the plat is accurate

(R. 184) but has acknowledged that it cannot admit

or deny that the line on the profile map is located more

than 100 feet east of the present center line of the track-

age. (R. 41)

It is not disputed that the due proofs of organiza-

tion, consisting of verifications attached to the Railroad's

articles of incorporation, submitted to the Secretary pur-

suant to the requirements of the Act indicated that the

Railroad, on August 17, 1875, was “fully authorized to

proceed with the construction of its road.”*

REASONS FOR GRANTING THE WRIT

The decision of the court of appeals warrants re-

view by this Court.

1. THE Decision GRANTS A WINDFALL TO THE

RAILROAD CONTRARY TO THE INTENT OF THE

Act AND IN CONFLICT WITH THIS CourRT’s IN-

TERPRETATION OF THE INTENT OF THE ACT.

4 The copy of the articles of incorporation with verificatious by the

Auditor of Public Accounts for Utah Territory dated August 17, 1875

which are in the record were actually filed with the Secretary as part

of ‘amended due proofs” in 1880 after the length of the road was ex-

tended. The last page of the verification (R. 217) is reproduced in

its entirety and attached as Appendix G. Because the verifications

are dated August 17, 1875, approximately one month prior to the

September 28, 1875 approval of the Secretary, it is presumed that

these articles and verifications were part of the Railroad’s original

filing.

7

The court of appeals has applied the Act to a rail-

road constructed prior tc its passage contrary to con-

gressional intent. It has further liberally construed the

Act and the Secretary’s actions pursuant to it contiary

to the rationale of United States v. Denver & Rio

Grande Ry. Co., 150 U.S. 1 (1893) and Great North-

ern Ry. Co. v. United States, 315 U.S. 262 (1942) and

based upon an erroneous extension of Jamestown §

Northern R. Co. v. Jones, 177 U.S. 125 (1900).

A. The Act was not intended to apply to a road con-

structed prior to its passage.

In its opinion, the court of appeals concludes that

a railroad company, by simply filing its articles of in-

corporation and proofs of organization with the Secye-

tary after passage of the Act, could receive the generous

benefits of the Act for any line constructed prior to its

passage. That conclusion is in conflict with the purpose

of the Act.

In United States v. Denver & Rio Grande Ry. Co.,

supra, 150 U.S. at 8, the Court unequivocally stated

that the purpose of the Act was to promote the ‘con-

struction of new rail lines in the West. The Court said:

The general nature and purpose of the Act of

1875 were manifestly to promote the building of

railroads through the immense public domain re-

maining unsettled and undeveloped at the time

of its passage. . . . To induce the investment of

capital in the construction of railroads through

the public domain, Congress had previously

granted special rights, such as were conferred up-

on the defendant by the Act of 1872; but, by

8

this Act of 1875, a general offer was made to

any and all railroad companies . . . provided such

railway company should comply with the pro-

visions of section four of the Act.

See also, Great Northern Ry. Co. v. United States,

supra, 315 U.S. at 274.

That the Act was never intended to apply to rail-

roads constructed prior to its passage is further evidenc-

ed by its legislative history and early administrative in-

terpretation.

In 1878, Senator Clayton submitted a resolution

which provided that the Committee on Railroads be

instructed to consider reporting a bill which would pro-

vide a general system of railroad incorporation “whereby

persons may . . . become bodies corporate . . . for the

purposes of constructing . . . railroads . . . .” Resolution

of December 8, 1873, 48d Cong. 1st Sess., Sen. Misc.

Doc. 12 (Serial 1584). The bill reported out and passed

provided for both the incorporation of railroad com-

panies in the Territories and the grant of rights of way

to them over the public lands. Cong. Rec. 43d Cong.

Ist Sess. Vol. 2, pt. 38, 2896-98 and pt. 4, 3036-42

(1874). The House substituted an act that provided

only for the grant of rights of way. Cong. Rec. 43d

Cong. 2d Sess. Vol. 3, pt. 1, 404 (1875). A conference

committee recommended the House bill with minor

amendments and the report passed both houses. Cong.

Rec. 43d Cong. 2d Sess. Vol. 3, pt. 8, 2070, 2210 and

2217 (1875).

9

The congressional debates on the bills make it plain

that its purpose was to encourage new construction.’

Given the foregoing, the conclusion is inescapable that

Congress did not intend the Act to bestow broad rights

of way for rail lines already constructed at the time of its

passage. This would in no way serve the purpose of

encouraging new construction.

The contemporaneous administrative interpretation

of the Act also is pertinent. Great Northern Ry. Co.,

supra, 315 U.S. at 275. In the first Circular Instruc-

tions on the Act, issued June 30, 1875, the Secretary

set forth regulations on the “due proofs of organization”

“ for example, Senator Stewart of Nevada, the sponsor of the bill in

the Senate and a member of the conference committee, stated:

{Ajnd I say God speed to the men who will build railroads

there with their own money, as this bill proposes, and enrich

the nation.

Cong. Rec. 43 Cong. Ist Sess. Vol. 2, pt. 4, 3037 (1874). Senator

Hager of California objected to an amendment to the bill which

would have allowed a territory, when admitted as a state, to revoke

the railroad’s franchise. He said:

There is not a sufficient guarantee . . . to encourage the

investment of money in this kind of enterprise when this

limitation is attached to it... . For this reason I think the

law would be inoperative. It would be a useless law upon

our statute-books with that provision in it. No man would

invest his money in a railroad enterprise when the object

of the law under which he claimed to be incorporated could

be changed in the manner proposed.

Id. Congressman Townsend, the sponsor of the House BIll and a

member of the conference committee, in response to a proposed

amendment that would have deleted the right of railroads to take

material and timber from adjacent public lands, said:

{I}f they are willing to risk their capital out in the Terri-

tories, they ought to have some little show in order to en-

able them to build these roads.

Cong. Rec. 43d Cong. 2d Sess. Vol. 3, pt. 1, 404 (1875).

10

required to be filed under Section 1 of the Act. He

instructed that the filing should include:

The official statement . . . that the company is

fully authorized to proceed with the construction

of the road....

2 Copp’s Public Land Laws 815, 816 (1882). An

identical statement is contained in every subsequent set

of regulations issued by the Secretary.° Two of these

subsequent regulations expressly provided that:

the requirements of the law regarding the filing

of the proper papers and maps are conditions

precedent to the obtainment of the right to con-

struct a railroad over the public lands... .

2 Copp’s Public Land Laws 818 (1882); accord, 12

Land Decisions 426 (1891).

Decisions of the Secretary in the period immedi-

ately following the Act also considered it applicable

only to railroads constructed after its passage. For ex-

ample, in Perkins v. Central Pacific R.R. Co., 1 Land

Decisions 336 (1882), the Secretary, referring generally

to land and right of way grants to railroads, said:

These grants were not in consideration of any

debt or obligation on the part of the United

States to the grantee. They were bounties be-

stowed on the railroad company by the United

6 Circular Instructions of March 9, 1878, 2 Copp’s Public Land Laws

816, 817 (1882); Circular of January 13, 1888, 12 Land Decisions 423,

425 (1891); Regulations of November 4, 1898, 27 Land Decisions 623,

625 (1898); Regulations of February 11, 1904, 32 Land Decisions 481,

485 (1904); Regulations of May 21, 1909, 37 Land Decisions 787, 790

(1909).

ll

States to encourage the building of the road, and

in consideration thereof the company undertook

to build.

1 Land Decisions at 341. See also, North Wisconsin Ry.

Co., Dec. Nov. 17, 1879, 2 Copp’s Public Land Laws

823 (1882).

In support of its conclusion that the Act was in-

tended to have retroactive application, the court relied

on one case, Rio Grande Western Ry. Co. v. Stringham,

38 Utah 113, 110 Pac. 868 (1910), affd 239 U.S. 44

(1915), overruled on other grounds by Great Northern

Ry. Co., supra, 315 U.S. at 279. In that case the Utah

Supreme Court held, inter alia, based on the Secretary's

approval of a profile map of a road constructed in 1873,

that the Act did apply to a railroad constructed prior to

its passage.

The court of appeals erred in assuming that this

Court’s affirmance of the Utah court’s decision was a

ratification of the portion of the holding relating to

retroactivity. The appeal to the Supreme Court was

taken only by the railroad, no other party appearing,’

on a wholly different issue. The Utah court had ruled

that the railroad had title to a right of way. The rail-

road claimed title in fee simple by virtue of the Act,

but the Utah court had declined to rule on that issue.

The railroad appealed to this Court in hopes of pre-

vailing in its contention that it held a fee interest. The

7 In Great Northern Ry. Co., supra, the Court in reversing Stringham

alluded to the problems that affect a court’s decision when only

one interest appears. 315 U.S. at 279.

12

Court, in affirming the decision below, considered only

the nature of the railroad’s interest, assuming it had one,

and did not reconsider whether the lower court had

properly found it to have had a right of way under the

Act.

It is submitted that the Tenth Circuit's decision is

contrary to Congress’ intent and that its reliance on

Rio Grande Western is unavailing.

B. The Secretary's action in approving the Railroad's

profile map and due proofs of organization should

be construed in harmony with the intent of the Act.

A government land grant is to be construed strictly

against the grantee except where such a construction

negates actions taken in reliance on inducements offered

by the grant. United States v. Denver & Rio Grande

Ry. Co., supra, 150 U.S. at 14. Here there was no

action taken by the Railroad in reliance on the Act;

its actions were taken before the Act existed. Therefore,

the Act and the Secretary's actions under it should be

strictly interpreted against the Railroad.

In 1875, the Railroad filed a profile map designat-

ing a rail line which was yet to be built and which had

a different location than the line for which it now

claims a 200-foot right of way under the Act.’ It also

filed “due proofs of organization” which stated that, as

8 Inasmuch as the factual dispute on the accuracy of the profile map

was held immaterial by the lower courts in granting and affirming

the grant of summary judgment to the Railroad, it is appropriate

in this petition to resolve that dispute in the light most favorable

to Boise Cascade.

13

of August 17, 1875, it was “fully authorized to pro-

ceed with the construction of its road.” (App. G)

Under these circumstances, a reasonable construction

of the Secretary’s action of September 28, 1875 accept-

ing the articles and due proofs and approving the pro-

file map is that a right of way was granted on a line

yet to be built on the route indicated on the profile map.

It is immaterial whether the Secretary had knowl-

edge of the existing line. First, he would not have

understood the Act to apply to a road constructed prior

to its passage and therefore would have considered the

discrepancy between the profile map and the existing

line to be intentional. Second, nothing in the Railroad's

1875 filings indicated that the right of way was sought

for a line previously constructed. Third, it was common

practice for railroads to make amended filings when a

new line or branch line was to be constructed. Great

Northern Ry. Co. v. Steinke, 261 U.S. 119, 125 (1925).

The construction of the Secretary's action proposed

in this petition is in harmony with the intent of the Act

and is therefore preferred to that of the court of appeals.

United Telecommunications, Inc. v. Commissioner of

Internal Revenue, 589 F.2d 1383, 1390 (10th Cir. 1978).

Furthermore, it would not result in an undeserved wind-

fall to the Railroad—the right of way granted would

have been forfeited under 43 U.S.C. §§ 937 and 940 by

failure to construct, and it does not require the unwar-

ranted extension of Jamestown & Northern R. Co. v.

Jones, supra, 177 U.S. 125, which the court of appeals

was forced to make.

14

To find that the dispute regarding the inaccuracy

of the profile map was immateral, the court cited James-

town for the proposition that the filing of an inaccurate

profile map following construction prior to the Act had

no effect on a right of way granted under the Act. The

unambiguous language of Section 4 of the Act (43

U.S.C. § 937) is contrary to this proposition and James-

town does not support it.

In Jamestown and related cases,’ the question pre-

sented was when the grat attached relative to an inter-

vening claim. In each case, the railroad undertook con-

struction of a line after the Act was passed and filed

an accurate profile map within a few months. During

the short time between construction and filing, approval

or administrative processing of the map, an intervening

claim arose. In these circumstances, the Court and Sec-

retary have held that construction after the Act provided

fixity of location sufficient to perfect the grant against

other claimants.

In Cary v. Chicago, S.P.M.&O. Ry. Co., 3 “Land

Decisions 428 (1885), conflicting claims arose on in-

demnity lands which had been selected by the railroad

under a special act because of the inaccuracy of a map

filed by the railroad pursuant to the act. The Secretary

said:

® Stalker v. Oregon Short Line R. Co., 225 U.S. 142 (1912); Washington

& Idaho R. Co. v. Coeur D’Alene Ry. & N. Co., 160 U.S. 77 (1895);

Phoenix & Eastern R. Co. v. Arizona Eastern R. Co., 9 Ariz. 434, 84

Pac. 1097 (Ariz. 1906), appeal dismissed 207 U.S. 601 (1907); Dakota

Central R. Co. v. Downey, 8 Land Decisions 115 (1889).

15

It therefore behooved the company to see to it

in the first instance that such patent discrepance

[sic] was either explained or rectified before any

adverse claim had. intervened, since it is not

competent for the company to assert a paramount

right in the premises by virtue of their [sic]

laches.

3 Land Decisions at 429.

If it is assumed that the Act could be applied to

lines constructed prior to 1875, the requirement of Sec-

tion 4 that an accurate profile map be filed is more

critical. One knowing that a line was constructed prior

to passage of the Act would have no reason to assume

that the Act applied to the line unless a map, which

designated the line as one to receive the benefits of

the Act, was on file. Although it is submitted that the

holding of Rio Grande Western Ry. Co. v. Stringham,

supra, 38 Utah 113, 110 Pac. 868, is in error on the issue

of retroactivity of the Act, at least in that case an ac-

curate profile map was filed by the railroad.

Here, the Railroad filed an inaccurate profile map

and for over 100 years has allowed this error to go

uncorrected. It has used only a 66-foot right of way

and has allowed others to use, purchase and sell, with-

out objection, the 134-foot balance of the right of way

it now claims. Even now, the Railroad does not claim

that it needs or intends to use the 200-foot right of way

for railroad purposes. United States v. Union Pacific

R. Co., 353 U.S. 112, 119 (1957) ; Great Northern Ry.

Co. v. United States, supra, 315 U.S. at 277. Rather,

it apparently intends to profit from the reliance of others

on its inaccurate map.

16

The opinion of the Tenth Circuit should be re-

versed to prevent the Railroad from receiving an un-

intended and inequitable windfall.

C. If the Secretary did intend to grant a right of way

in the line constructed in 1873, his action is void.

In its opinion, the court of appeals implies that the

Railroad has a 200-foot right of way by virtue of the

Act because the actions of the Secretary are binding

and cannot be reviewed in a collateral proceeding even

if contrary to the intent of the Act. If the Secretary's

intent was to approve a right of way in the road con-

structed in 1873, the court’s conclusion is erroneous.

It is a fundamental principle that actions by an

administrator which confer benefits not authorized by

law are not binding. Federal Crop Insurance Corp. v.

Merrill, 332 U.S. 380, 384 (1947). Rights in land con-

veyed by administrative action may be cancelled if the

administrator has acted in violation of regulations or

law. Gray v. Johnson, 395 F.2d 588, 587 (10th Cir.),

cert. den. 892 U.S. 906 (1968). Where the actions of

the administrator are plainly ultra vires, recognition of

their nullity is not an attempted invalidation of them

but is simply a recognition that they were ineffectual.

Chicago & North Western Ry. Co. v. Continental Oil

Co., 253 F.2d 468, 472 (10th Cir. 1958).

The Act did not authorize or contemplate the grant

of rights of way to railroad companies for lines con-

structed prior to March 3, 1875. Any action or at-

tempted action by the Secretary which purported to

17

grant a right of way to the Railroad on its 1873 line

would have been ultra vires and void. The Court should

reverse the decision of the court of appeals.

2. THe Decision BeLtow Has CLovupED THE TITLE

ro LAND OF THOUSANDS OF PRIVATE INpDI-

VIDUALS.

In conjunction with and following the building of

the transcontinental railroad in the late 1860's and early

1870's, western railroads began to construct a complete

system of rail lines between the more populous regions

of the West. Developing mining and agricultural in-

dustries spurred competition among the railroads to

occupy the most important economic districts."® From

1870 to 1880, 40,000 miles of new rail lines were built,

much of it in the western territories and states."

Prior to 1870, most of this building was induced

by lavish government land grants to the railroads. Leo

Sheep Co. v. United States, 440 U.S. 668, 673 (1979) ;

Great Northern Ry. Co. v. United States, supra, 315

U.S. at 278. However, public opinion rose against

these grants and by 1872 the House of Represent-

atives had passed a resolution declaring its disfavor

with the subsidies. Cong. Globe, 42d Cong. 2d Sess.

1585 (1872). See also, Great Northern Ry. Co., supra,

315 U.S. at 278-74. A variety of special acts were

passed granting specific rights of way to individual rail-

roads, some with lesser grants than those provided in

10R. E. Reigel, The Story of the Western Railroads, 95-110 (1926).

11C, J. Corliss, American Railroads Their Growth and Development

(1945).

18

the Act. H.g., Act of June 20, 1874, 18 Stat. 130

[granting a 50-foot right of way on each side of the

road to a narrow gauge railroad in California]. Other

railroads were built without the inducement of any fed-

eral grant. In fact, the Railroad’s construction of the

line in question here without government subsidy was

a matter of pride to residents of Utah Territory.”

Undoubtedly, many hundreds of miles of other rail-

roads, in addition to the 78 miles of the Railroad in-

volved in this case, were constructed on the public

domain prior to the passage of the Act and would have

benefitted from a retroactive application of the Act.

Under the court of appeals decision in this case, these

railroads, to avail themselves of the benefits of the Act,

would have been required only to file articles of incor-

poration and due proofs of organization with the Secre-

tary. Whether they filed profile maps of the lines al-

ready built or profile maps of other lines or no profile

maps at all would have been immaterial to their receipt

of a right of way under the Act on the lines previously

constructed. Moreover, a railroad which received a

grant under the Act on a line already constructed could

not divest itself of it voluntarily or involuntarily. North-

ern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903) ;

Himonas v. Denver & Rio Grande W. R. Co., 179 F.2d

171 (10th Cir. 1949) ; Allard Cattle Co. v. Colorado &

Southern Ry. Co., 516 P.2d 1238, affd 5380 P.2d 503

(Colo. 1974).

'R. F. Thorum, Railroad Development in Utah, 1869-1879, 25, 74

(1936).

19

Certainly, some of the railroads constructing roads

prior to 1875 made the requisite filings at some time to

avail themselves of a right of way for new lines or

extensions. Inasmuch as the Act only specifies a time

requirement for the filing of a profile map” and the

filing of a profile map has been declared by the lower

court here to be unnecessary for a road constructed

prior to 1875, these filings could presumably have oc-

curred at anytime until October 21, 1976, when the

Act was repealed with respect to further grants. Pub.

L. 94-579, Title VII, § 706(a), 90 Stat. 2798.

Thus, the court of appeals’ liberal construction of

the Act has resulted in the clouding of titles of thous-

ands of private individuals who have acquired propri-

etary interests in lands lying within 100 feet of these

railroad tracks constructed prior to 1875 on the public

domain and upon which the railroads may have never

even intended to acquire any right of way. The reliance

of these property owners and their predecessors on a

fenced or used right of way of lesser dimensions, poss-

ibly for in excess of 100 years, has been negated by

by the railroads’ filings of their articles of incorporation.

Ironically, these filings could have been made decades

after that reliance commenced and for purposes unre-

lated to the property, title to which is clouded by the

filings.

18 Profile maps were required to be filed within 12 months of

tion of any section of the line. 43 U.S.C. $937. Here the line

located in the fall of 1873 but no profile map was filed until August

or September of 1875. Because of the court’s holding that it was

unnecessary to file a profile map, the timeliness of the Railroad’s

filing was not an issue below.

20

The decision is erroneous and should be reversed

to prevent this widespread disruption of property rights.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Grecory B. Monson,

Counsel of Record

Purr C. Puas.tey

310 South Main Street

Twelfth Floor

Salt Lake City, Utah 84101

Attorneys for Petitioner

December 1980

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 78-1462

Filed July 24, 1980

BOISE CASCADE CORPORATION,

Appellant,

Vv.

UNION PACIFIC RAILROAD COMPANY;

SAN PEDRO, LOS ANGELES AND SALT

LAKE RAILROAD COMPANY; and THE

UNITED STATES OF AMERICA,

Appellees.

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF UTAH

(D.C. No. C-76-374)

Robert D. Maack (Harry D. Pugsley and Watkiss &

Campbell, on the briefs) for Appellant.

J. Clare Williams and Robert L. Klarquist (Anthony

C. Liotta, Deputy Assistant Attorney General, Ronald

L. Rencher, United States Attorney and Charles E.

Biblowit, Attorney, Department of Justice, on the

briefs) for Appellees.

Before HOLLOWAY, BREITENSTEIN and

DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

A-2

This quiet title dispute presents conflicting claims

to a strip of land in Utah claimed by Railroads under a

federal right-of-way grant and by a lumber company

under mesne conveyances from the State of Utah. The

United States is joined because of a possible reversion-

ary interest. The district court granted summary judg-

ment for the defendants. See Boise Cascade Corp. v.

Union Pacific R.R.Co., D. Utah, 454 F.Supp. 531.

We affirm.

The land is in Section 16, T. 6 South, R. 2 East,

Utah County, Utah. Plaintiff-appellant Boise Cascade

is the successor in interest of the grantee of a patent by

Utah, which claimed ownership of Section 16 as a school

section to which it had received title under the Funda-

mental Enabling Act of July 16, 1894, 28 Stat. 107.

In 1873 Southern Railroad Company constructed

a railroad line across part of Section 16. By a series of

conveyances defendant-appellee San Pedro, Los An-

geles & Salt Lake Railroad Company obtained owner-

ship of the line and later leased it to the defendant-

appellee Union Pacific R. Co. The Railroads claim

title under the General Right of Way Act of March 3

1875, 18 Stat. 482, 43 U.S.C. § 934. They say that they

are entitled to a strip 100 feet on each side of the track.

The Railroads put up a fence 33 feet on each side of

the track center line. The dispute is over a strip between

the fence and 67 feet westerly from it. Boise Cascade

built a lumber yard and made other improvements

within the 67 foot strip.

A-3.

The 1875 Right of Way Act provides, 43 U.S.C.

§ 934:

“The right of way through the public lands of

the United States is granted to any railroad com-

pany * * * which shall have filed with the Sec-

retary of the Interior a copy of its articles of in-

corporation, 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 is undisputed that the constructing Railroad

filed its articles of incorporation and proofs of organiz-

ation in 1875 and that construction of the tracks was

completed in 1873.

The 1875 Act also provides, 43 U.S.C. § 937, that

a railroad desiring to take advantage of § 934 shall with-

in a specified time file in the appropriate land office

“a profile of its road.” Boise Cascade claims that the

Railroad in 1875 filed a profile map which shows a

center line about 400 feet easterly of the center line of

the constructed track. Boise Cascade argues that the

profile map controls and the Railroads have only an

easement over the land covered by the track with 33

feet on each side as enclosed by the fence.

The Railroads deny the Boise Cascade claim that

the profile map designates a center line other than the

actual track. This factual dispute does not prevent a

summary judgment if, as a matter of law, the Railroads

prevail. The district court held that actual construction

of the track plus the filing of the specified documents

perfected the Railroads’ right of way to the extent of

100 feet on each side of the center line of the track.

A-4

In Jamestown and Northern R. Co. v. Jones, 177

U.S. 125, 180, the Supreme Court rejected a state

court’s conclusion that the “right of way only became

definitely located by the filing of a profile map,” and

adopted the Interior Department's rulings that “the

right of way may be definitely located by the actual con-

struction of the road.” The Court said, Id. at 131:

“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 con-

struction by filing a map as provided in section

four. Actual construction is certainly unmistak-

able evidence and notice of appropriation”

See also Minneapolis, St. Paul &c Ry. Co. v. Doughty,

208 U.S. 251, 258-259; Noble v. Oklahoma City, 297

U.S. 481, 494; and United States v. Southern Pacific

Trans. Co., 9 Cir., 543 F.2d 676, 697.

Boise Cascade seeks to distinguish Jamestown by

the claim that the General Right of Way Act of 1875

operates prospectively and applies only to actual con-

struction after the passage of the Act. In Jamestown

the raiload was constructed in 1882, after the Act. In

the instant case the construction was in 1873, before the

Act. The difference is unimportant. Actual construc-

tion is notice of location whether it occurs before or

after the Act. By accepting the articles of incorpora-

tion, the proofs of organization, and the profile map after

the passage of the Act, the Secretary of Interior neces-

sarily determined that the Act applied. Rio Grande

Western Ry. Co. v. Stringham, Utah, 110 Pac. 868,

A-5

871, affirmed 239 U.S. 44, reversed on another ground

by Great Northern Ry. Co. v. United States, 315 U.S.

262, 279. The actions of the Secretary may not be re-

viewed in this collateral proceeding. We are convinced

that the 1875 Act applies to determine the rights of the

parties.

Boise Cascade also says that Jamestown applies

only to unsurveyed lands, and Section 16, involved here,

was surveyed when the Railroads’ right of way is claim-

ed to have attached. In Jamestown the Court noted

that the Interior Department decisions dealt with sur-

veyed land and “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.” 177 U.S. at 132.

Boise Cascade relies on several state court decisions.

Two of these, Chicago K. & N. Ry. Co. v. Van Cleave,

Kan., 33 Pac. 472, and Kinion v. Kansas City, Ft.

S.&M.R. Co., Mo., 24 S.W. 636, were decided before

Jamestown. Minneapolis, St. Paul &c Ry. Co., supra,

208 U.S. at 258, noted the split among lower courts

before Jamestown. Phoenix & E. R. Co. v. Arizona

Eastern R. Co., Ariz., 84 Pac. 1097, 1099, appeal dis-

missed, 207 U.S. 601, supports the Railroads as it recog-

nizes that rights may be acquired by actual construction

even though the construction is over land not included

in the right of way portrayed in the filed profile.

The next issue is whether the claim of the Railroads

is defeated by the Utah patent through which Cascade

A-6

claims. The Utah title is derived from the Fundamental

Enabling Act of July 16, 1894, 28 Stat. 107, which

granted Section 16 in each township to Utah for sup-

port of the public schools. The difficulty is that the

Enabling Act provides, § 13, 28 Stat. 110, that the lands

granted to the State “shall be selected under the direc-

tion of the Secretary of the Interior from the unap-

propriated public lands of the United States within the

limits of said State of Utah.” The disputed land was

appropriated by the Railroads under the 1875 General

Right of Way Act.

Wyoming v. Udall, 10 Cir., 379 F.2d 635, 640,

cert. denied 389 U.S. 985, in discussing the Wyoming

Enabling Act, said:

“* * * the congressional intent was that if part

of any section to be granted for school purposes

had been disposed of under an act of Congress,

the state on admission did not get that part of

the section.”

Boise Cascade seeks to limit the precedential value of

the Wyoming case on the ground that it applied only

to pre-1871 grants. That distinction applies to another

aspect of the decision and does not affect its discussion

of grants of school sections.

Boise Cascade next claims by reason of adverse pos-

session, abandonment, estoppel, and boundary by ac-

quiescence. It emphasizes that the Railroads have not

fenced the entire 100 feet claimed on each side of the

center line and have been aware of the occupation by

A-7

Boise Cascade. A factual dispute concerns the payment

of taxes. These claims are all irrelevant. In Northern

Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271-272,

the Court noted that in granting the right of way Con-

gress conclusively determined the strip covered was

necessary for an important public work and said:

“The whole of the granted right of way must be

presumed to be necessary for the purposes of the

railroad, as against a claim by an individual of

an exclusive right of possession for private pur-

poses.”

See also Northern Pacific Railroad Co. v. Smith, 171

U.S. 260, 275, and Himonas v. Denver & R.G.W.R.

Co., 10 Cir., 179 F.2d 171, 173. The question of aban-

donment of the land covered by the profile map, see 43

U. .C. § 987, is of no concern as Boise Cascade claims

no right to that land.

Boise Cascade also asserts rights under various state

statutes. It claims to be a bona fide purchaser under

§ 57-3-2, Utah Code Anno., to be protected by the

Occupying Claimants Act, § 57-6-1 et seq., and to have

superior title under the Marketable Record Title Act,

§ 57-9-1 et seq. Section 57-9-6 of the latter Act says

that it does not apply to extinguish a railroad easement.

It is enough to say that state law cannot operate to

“impair the efficacy” of a federal grant or vest title in

someone other than the federal grantee. See Packer v.

Bird, 137 U.S. 661, 669; Shively v. Bowlby, 152 U.S.

1, 44; and Northern Pacific Ry. Co. v. Townsend, 190

U.S. 267, 270.

A-8

The United States, which was joined as a party

because of a possible reversionary interest, moved to

dismiss on jurisdictional grounds. Because of its grant

of summary judgment for the defendants, the district

court did not consider the jurisdictional issue. In this

court the United States asks that the district court judg-

ment be affirmed but claims that the action against the

United States is barred by the Quiet Title Act, 28

U.S.C. § 2409a. See Amoco Production Co. v. United

States, 10 Cir., ...... F.2d...... (No. 78-1147, decided

April 21, 1980). In the circumstances presented, reso-

lution of the point is unnecessary.

Affirmed.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

ORDER GRANTING DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

C 76-374

Filed March 24, 1978

BOISE CASCADE CORPORATION, acorporation,

Plaintiff,

v.

UNION PACIFIC RAILROAD COMPANY, a

corporation; THE SAN PEDRO, LOS ANGELES

& SALT LAKE RAILROAD COMPANY, a cor-

poration; and UNITED STATES OF AMERICA,

Defendants.

This matter is presently before the court on the

motions for summary judgment of the plaintiff and of

the defendant raiload companies, and the motion to dis-

miss of the defendant United States. Inasmuch as the

motion to dismiss of defendant United States is based

in part upon Rule 12(b) (6), Federal Rules of Civil

Procedure, and matters outside of the pleadings have

been presented to and not excluded by the court, the

motion to dismiss shall be treated as one for summary

judgment pursuant to Rule 12(b), Federal Rules of

Civil Procedure, and disposed of in accordance with

B-2

Rule 56, Federal Rules of Civil Procedure. The matters

presented by the motions have been thoroughly briefed

by the parties, the matters were argued orally before the

court on December 27, 1977, and the parties filed a

stipulation of facts on January 3, 1978. Having fully

and carefully considered the matters presented by the

motions and concluding that there is no genuine issue

as to any material fact, the court is prepared to enter

its ruling.

Essentially, the present controversy is a property

dispute concerning a certain strip of property located

in Utah Countv. According to the stipulation of facts,

“[t] he defendant railroads claim title to an easement

for railroad purposes across the property extending 100

feet on each side of the center line of its trackage, based

upon the General Right-of-Way Act of Congress March

3, 1875.” Stipulation of Facts {| 4 (hereinafter “Stipu-

lation”). The property in dispute is one side of the track-

age only, that side being the west side. Rather than

fencing the property to include the entire claimed 100

feet on each side of the trackage, the defendant rail-

roads have, “for more than 20 years,” fenced in only

33 feet on each side of the trackage. The remaining 67

feet of the 100 feet on one side of the trackage claimed

by defendants is also claimed (and fenced) by plain-

tiff and, thus, it is this property area that is in dispute

in this litigation. Stipulation 1 7.

As fully set forth in the stipulation of facts, plain-

tiff has a record chain of title to the real property in

question based upon a patent issued by the State of

B-3

Utah to plaintiff's predecessor in interest. Stipulation

1. “The State of Utah's rights, if any, in and to the

subject property, are based upon the Enabling Act

which granted Utah Statehood and purported to convey

to the State of Utah as a ‘school section’ all of Section

16 of Township 6 South, Range 2 East. The Enabling

Act does not make any specific exception for the rail-

road right-of-way claimed by the defendant railroads,

but does state that all lands granted the State under

the Act are to be selected from the unappropriated

public lands of the United States.” Stipulation 1 3

(emphasis added).

The respective positions of the parties may be brief-

ly stated as follows. It is the contention of defendants

that defendant railroads, or their predecessor in interest,

complied fully with the General Right-of-Way Act of

1875 and thus obtained from Congress the 200 foot

right-of-way across the west half of Section 16, which

includes within its westerly boundary the property in

question. Under the law, defendants argue, this right-

of-way obtained from Congress is not subject to defeas-

ance by any theory of state law or any type of equitable

consideration. Defendant Railroads’ Reply Memoran-

dum at 10. Plaintiff, on the other hand, claims that

defendant railroads, or their predecessor in interest, did

not comply fully with the General Right-of-Way Act

of 1875 in that said parties filed an erroneous profile

map with the Secretary of Interior and that, as a result

thereof, defendant railroads haye,only “a possessory ad-

verse right to the area” presently occupied by them.

Memorandum in Support of Plaintiff's Motion for Sum-

B-4

mary Judgment and Opposition to Defendants’ Motions

at 4. Plaintiff further claims that it is the fee title owner

of the property in dispute by virtue of one or more of

the following statutes and doctrines: that it is a bona

fide purchaser for value of the realty; that plaintiff has

adversely possessed the property for the required time;

that defendants have abandoned the right-of-way; that

plaintiff has obtained the property by the doctrine of

boundary by acquiescence; that plaintiff has a sure root

of title from the State of Utah as described earlier;

that the Utah Marketable Title Act (Utah Code Ann.

§§ 57-9-1 to 9) constitutes a bar to defendants’ claim to

the property; and that plaintiff is a bona fide occupying

claimant entitled to the benefits of Utah Code Ann.

§§ 57-6-1 et seq. Memorandum in Support of Plaintiff's

Motion for Summary Judgment and Opposition to De-

fendants’ Motions at 1-2.

It is the opinion of the court that the defendant

railroads, or their predecessor in interest, complied fully

with the General Right-of-Way Act of 1875 and there-

by acquired an easement for railroad purposes that was

not affected by the patent granted by the State of Utah

to plaintiff's predecessor in interest, and that has not

been and cannot be subject to defeasance by the com-

mon law and state property doctrines and provisions

relied upon by the plaintiff. On the basis of 48 U.S.C.

§ 934 and Jamestown & N.R. Co. v. Jones, 177 U.S.

125 (1900), the court concludes that defendant railroads

have a right-of-way that was perfected in the following

manner: first, the filing of defendant railroads’ prede-

cessor in interest, Utah Southern Railroad Company,

B-5

with the Department of Interior its articles of incorpor-

ation and due proofs of organization by no later than

September, 1875 (Stipulation § 6); and, second, the

construction of the railroads’ trackage in 1873 (Stipula-

tion 1 5). The above filings together with the previous

actual construction of the trackage was all that was

necessary to comply fully with the 1875 Act. As de-

fendants correctly contend, the filing of the profile map

pursuant to 42 U.S.C. § 937 and upon which plaintiff

hinges its non-compliance argument is required and

relevant only in connection with those situations in which

the trackage is not already actually constructed at the

time of the other required filings. Jamestown, supra,

at 130-31.

Since the grant of the right-of-way under § 934

was secured by the actual construction of the trackage

and the filing of the articles of incorporation and due

proofs of organization, the only remaining question is

whether the claim of the railroads based upon the Con-

gressional grant to the railroads is inferior to the claim

of plaintiff by virtue of the doctrines cited by plaintiff

First, the court concludes that the right-of-way granted

by Congress cannot be diminished by conveyance, or by

the doctrines of adverse possession, abandonment or

boundary by acquiescence. See, e.g., Northern Pac.

Ry. v. Townsend, 190 U.S. 267 (1903); Himonas v.

Denver & R.G.W.R. Co., 179 F.2d 171 (10th Cir.

1949) ; Allard Cattle Co. v. Colorado & So. Ry. Co.,

516 P.2d 123 (Colo. 1973), affd. 530 P.2d 503 (Colo.

1974). The reasoning of these cases is that the Con-

gressional intent as to this result is plainly manifest and

B-6

that, under the grant, railroads are legally incapable of

alienating the subject property in any way, directly or

indirectly. The court concurs in this rationale.

Second, as defendant railroads set forth at pages

10 to 15 of their Memorandum in Support of Motion

for Summary Judgment, plaintiff has not acquired and

cannot acquire any rights to the property in question

under its claimed patent pursuant to the Fundamental

Enabling Act of July 16, 1894. This A ct expressly pro-

vides that all lands granted the State under the Act are

to be selected from the unappropriatcd public lands of

the United States. Stipulation 1 3. And, as indicated

above, the land in question was appropriated to the

railroads pursuant to the General Right-of-Way Act

of 1875.

Third, plaintiff's claimed reliance upon the Utah

Marketable Title Act is misplaced. Dispositive of the

present contention of plaintiff is § 57-9-6, Utah Code

Ann., which specifically excepts application of the Act

by stating in pertinent part:

This act shall not be applied . . . to bar or ex-

tinguish any easement or interest in the nature

of an easement created or held for any . . . rail-

road or public utility purpose, or any easement

or interest in the nature of an easement, the exist-

ence of which is clearly observable by physical

evidence of its use. . . .

Finally, the aid sought by plaintiff in Utah’s Oc-

cupying Claimants Act is of no avail in the present

action. Evei assuming the applicability of the statute,

B-7

that this statute has no bearing upon this action is ap-

parent in view of the doctrine enunciated in several

opinions of the United Staes Supreme Court that:

The courts of the United States will construe the

grants of the general government without refer-

ence to the rules of construction adopted by the

states for their grants; but whatever incidents or

rights attach to the ownership of property con-

veyed by the government will be determined by

the state, subject to the condition that their rules

do not impair the efficacy of the grants or the

use and enjoyment of the property by the grantce.

Packer v. Bird, 137 U.S. 661, 669 (1891) (emphasis

added). Also, see Northern Pac. Ry. v. Townsend,

supra, at 270, and Shively v. Bowlby, 152 U.S. 1,44

(1894).

For the reasons stated, the court concludes that the

claim of defendant railroads is superior to that of plain-

tiff. Wherefore,

IT IS HEREBY ORDERED that the motion

for summary judgment of plaintiff is denied and the

motions for summary judgment of defendants are

granted.

The court has not considered the additional grounds

urged by defendant United States in support of their

motion to dismiss based upon the provisions of 28 U.S.C.

§§ 2409a(f) and (g). See Memorandum Brief in Sup-

port of Motion to Dismiss, filed October 17, 1977, at

3-5.

DATED this 22nd day of March 1978.

ALDON J. ANDERSON

United States District Judge

APPENDIX C

J. CLARE WILLIAMS

Attorney for Defendant Railroads

600 Union Pacific Building

Salt Lake City, Utah 84101

Telephone: 363-1454

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

CENTRAL DIVISION

SUMMARY JUDGMENT AND

DECREE QUIETING TITLE

Civil No. C 76-374

Filed May 2, 1978

BOISE CASCADE CORPORATION, acorporation,

Plaintiff,

v.

UNION PACIFIC RAILROAD COMPANY, a

corporation; THE SAN PEDRO, LOS ANGELES

& SALT LAKE RAILROAD COMPANY, a cor-

poration; and UNITED STATES OF AMERICA,

Defendants.

Plaintiff in the above-entitled action made a mo-

tion for summary judgment and defendants made a

cross-motion for a summary judgment dismissing plain-

tiffs complaint and granting the prayer of defendant

railroads’ counterclaim and said motion and cross-mo-

tion duly came on to be heard by the Court on Decem-

C-2

ber 27, 1977. On considering all the proceedings had

herein, and the pleadings and other documents on file

herein, including the complaint, answers and counter-

claim, memorandums of law with accompanying affi-

davits and exhibits, and stipulation of facts; and Brent

D. Ward, Esq., having appeared for the defendant

United States of America, and J. Clare Williams, Esq.,

having appeared for the defendant railroads, and Harry

D. Pugsley, Esq., having appeared for the plaintiff, and

the Court being fully advised in the premises, and due

deliberation having been had thereon, and the Court

having issued and filed its opinion, decision and order

containing its findings of fact and conclusions of law:

NOW, IT IS HEREBY ORDERED,

ADJUDGED and DECREED:

1. That plaintiff's motion for summary judgment

be, and it hereby is denied.

2. That plaintiff's complaint hereby be, and it here-

by is, dismissed on the merits.

3. That defendants’ cross-motion for summary judg-

ment be, and the same is granted.

4. That the prayer of defendant railroads’ counter-

claim be, and it hereby is granted and in regard there-

to, it is hereby further ORDERED, ADJUDGED

and DECREED that:

(1) The plaintiff has no estate or interest whatso-

ever in or to that certain 200 foot right of way easement

C-3

for railroad purposes, to the extent oi 100 feet on each

side of defendants’ tracks, granted the Utah Southern

Railroad Company pursuant to the General Right of

Way Act of Congress of March 8, 1875 (18 Stat. 482,

43 U.S.C.A. § 984), as said right of way easement

traverses the W. 14 of Section 16, T. 6 S., R. 2 E.,

SLB&M, or in the real property hereinafter described

lying within the boundaries of said right of way which

estate or interest is or may be inconsistent with the

estate and interest held by defendant railroad companies

pursuant to said Right of Way Act of March 3, 1875.

(2) The San Pedro, Los Angeles and Salt Lake

Railroad Company and Union Pacific Railroad Com-

pany, subject to any interest retained by the United

States, are owner and lessee, respectively, of a 200 foot

wide right of way easement for railroad purposes, to

the extent of 100 feet on each side of their tracks, ob-

tained by Congressional grant pursuant to the General

Right of Way Act of March 3, 1875 (18 Stat. 482, 43

U.S.C.A. § 984), are entitled to exclusive and per-

petual use and enjoyment of the real property, herein-

after described, for as long as it is used for railroad-

connected purposes, are in possession thereof, and are

entitled to such possession thereof, and that such title

of said railroad companies in and to said right of way

property be and the same hereby is quieted against all

claims and demands of plaintiff and that said plaintiff

is hereby forever barred from asserting any claim what-

soever in and to said right of way property or any part

thereof adverse to the estate and interest of defendant

railroad companies.

C4

The property in question is situated in Utah County,

State of Utah, being that portion of the W. 14 of Sec-

tion. 16, T. 6 S., R. 2 E., SLB&M, more particularly

described as follows:

Commencing at a point 326 feet East and 49 feet

South of the Northwest corner of the Southwest

quarter of Section 16, Township 6 South, Range

2 East, Salt Lake Base and Meridian; said point

being in the Southerly boundary line of Orem

City Center Street; thence South 101 feet; thence

West 96 feet; thence South 50 feet; thence West

200 feet to the Easterly boundary line of Utah

State Highway 114 right-of-way; thence alon

said highway right-of-way boundary line South

0°06’ East 925.58 feet; thence East 531.30 feet,

more or less, to the Westerly boundary line of

the Los Angeles and Salt Lake Railroad right-

of-way; thence along said railroad right-of-way

line North 7°15’ West 1082.53 feet, more or less,

to the Southerly boundary line of Orem City

Center Street right-of-way; thence along said

street right-of-way boundary line West 106.89

feet to the point of beginning.

DATED this 2nd day of May, 1978.

BY THE COURT:

ALDON J. ANDERSON,

Chief Judge

United States District Court

APPENDIX D

SEPTEMBER TERM — September 22, 1980

Before Honorable William J. Holloway, Jr., Honor-

able Jean S. Breitenstein and Honorable William E.

Doyle, Circuit Judges.

No. 78-1462

BOISE CASCADE CORPORATION, acorporation,

Plaintiff-Appellant

vs.

UNION PACIFIC RAILROAD COMPANY, a

corporation; THE SAN PEDRO, LOS ANGELES

& SALT LAKE RAILROAD COMPANY, a cor-

poration; and UNITED STATES OF AMERICA,

Defendants- Appellees.

This matter comes on for consideration of appel-

lant’s petition for rehearing filed in the captioned cause.

Upon consideration whereof, the petition for re-

hearing is denied.

HOWARD K. PHILLIPS

Clerk

APPENDIX E

SEPTEMBER TERM — September 23, 1980

Before Honorable Oliver Seth, Chief Judge, Honor-

able William J. Holloway, Jr., Honorable Robert H.

McWilliams, Honorable James EF. Barrett, Honorable

Williams E. Doyle, Honorable Monroe G. McKay,

Honorable James K. Logan, Honorable Stephanie K.

Seymour, Circuit Judges

No. 78-1462

BOISE CASCADE CORPORATION, acorporation,

Plaintiff-A ppellant,

vs.

UNION PACIFIC RAILROAD COMPANY, a

corporation; THE SAN PEDRO, LOS ANGELES

& SALT LAKE RAILROAD COMPANY, a cor-

poration; and UNITED STATES OF AMERICA,

Defendants- Appellees.

This matter comes on for consideration of appel-

lant’s suggestion for rehearing en banc in the captioned

cause.

Upon consideration whereof, the petition for re-

hearing having been denied by the panel to whom the

case was argued and submitted, and no member of the

panel nor judge in regular active service on the Court

having requested that the Court be polled on rehearing

en banc, Rule 35, Federal Rules of Appellate Proced-

ure, the suggestion for rehearing en banc is denied.

HOWARD K. PHILLIPS,

Clerk

APPENDIX F

§ 934. Right-of-way through public lands granted to

railroads

The right of way through the public lands of the

United States is granted to any railroad company duly

organized under the laws of any State or Territory, ex-

cept the District of Columbia, or by the Congress of

the United States, which shall have filed with the Sec-

retary of the Interior a copy of its articles of incorpor-

ation, 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; 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. Mar. 3, 1875,

c. 152, § 1, 18 Stat. 482.

§ 935. Several roads through canyons

Any railroad company whose right of way, or whose

track or roadbed upon such right of way, passes through

any canyon, pass, or defile, shall not prevent any other

railroad company from the use and occupancy of the

said canyon, pass, or defile, for the purposes of its road,

in common with the road first located, or the crossing

of other railroads at grade. And the location of such

right of way through any canyon, pass, or defile shall

not cause the disuse of any wagon or other public high-

way located therein on March 3, 1875, nor prevent the

F-2

location through the same of any such wagon road or

highway where such road or highway may be necessary

for the public accommodation; and where any change

in the location of such wagon road is necessary to permit

the passage of such railroad through any canyon, pass,

or defile, said railroad company shall before entering

upon the ground occupied by such wagon road, cause

the same to be reconstructed at its own expense in the

most favorable location, and in as perfect a manner as

the original road: Provided, That such expenses shall

be equitably divided between any number of railroad

companies occupying and using the same canyon, pass

or defile. Mar. 3, 1875, c. 152, § 2, 18 Stat. 482.

§ 936. Condemnation of private land

The legislature of the proper Territory may provide

for the manner in which private lands and possessory

claims on the public lands of the United States may be

condemned; and where such provision shall not have

been made, such condemnation may be made in accord-

ance with section 3 of the act entitled “An Act to amend

an 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 2, 1864. Mar.

3, 1875, c. 152, § 3, 18 Stat. 482.

§ 937. Filing profile of road; forfeiture of rights

Any railroad company desiring to secure the bene-

fits of sections 934-939 of this title shall, within twelve

F.3

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 officer,

as the Secretary of the Interior may designate, 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 sec-

tion of said road shall not be completed within five years

after the location of said section, the rights herein grant-

ed shall be forfeited as to any such uncompleted section

of said road. Mar. 3, 1875, c. 152, § 4, 18 Stat. 483:

1946 Reorg. Plan No. 3, § 403, eff. July 16, 1946, 11

F.R. 7876, 60 Stat. 1100.

§ 938. Lands excepted

Sections 934-939 of this title shall not apply to any

lands within the limits of any military, park, or Indian

reservation, or other lands especially reserved from sale,

unless such right of way shall be provided for by treaty-

stipulation or by Act of Congress passed prior to March

3, 1875. Mar. 3, 1875, c. 152, § 5, 18 Stat. 483.

§ 939. Alteration, amendment, or repeal

Congress hereby reserves the right at any time to

alter, amend, or repeal sections 934-939 of this title, or

any part thereof. Mar. 3, 1875, c. 152, § 6, 18 Stat. 483.

4

§ 940. Forfeiture of rights where railroad not con-

structed in five years after location

Each and every grant of right of way and station

grounds made prior to February 25, 1909, to any rail-

road corporation under sections 934-939 of this title

where such railroad had not been constructed and the

period of five years next following the location of said

road, or any section thereof, had on that date expired,

is declared forfeited to the United States, to the

extent of any portion of such located line then

remaining unconstructed, and the United States re-

sumes the full title to the lands covered thereby free

and discharged from such easement, and the forfeiture

declared shall, without need of further assurance or con-

veyance, inure to the benefit of any owner or owners of

land conveyed by the United States prior to such date

subject to any such grant of right of way or station

grounds: Provided, That no right of way on which con-

struction was progressing in good faith on February 25,

1909, shall be in any wise affected, validated, or invali-

dated, by the provisions of this section. Feb. 25, 1909,

c. 191, 35 Stat. 647.

28 Statutes at Large 107, Fifty-Third Congress, 1894.

Cuar. 188—An Act To enable the people of

Utah to form a constitution and State government, and

to be admitted into the Union on an equal footing with

the original States. July 16, 1894.

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress

assembled, That the inhabitants of all that part of the

F-5

area of the United States now constituting the Terri-

tory of Utah, as at present described, may become the

State of Utah, as hereinafter provided.

Sxc. 6. That upon the admission of said State

into the Union, sections numbered two, sixteen, thirty-

two, and thirty-six in every township of said proposed

State, and where such sections or any parts thereof have

been sold or otherwise disposed of by or under the

authority of any Act of Congress other lands equivalent

thereto, in legal subdivisions of not less than one quarter

section and as continguous as may be to the section in

lieu of which the same is taken, are hereby granted to

said State for the support of common schools, such in

demnity lands to be selected within said State in such

manner as the legislature may provide, with the ap-

proval of the Secretary of the Interior: Provided, That

the second, sixteenth, thirty-second, and thirty-sixth sec-

tions embraced in permanent reservations for national

purposes shall not, at any time, be subject to the grants

nor to the indemnity provisions of this Act, nor shall

any lands embraced in Indian, military, or other reserv-

ations of any character be subject to the grants or to

the indemnity provisions of this Act until the reserva-

tion shall have been extinguished and such lands be re-

stored to and become a part of the public domain.

Sec. 18. That all land granted in quantity or as

indemnity by this Act shall be selected under the di-

rection of the Secretary of the Interior, from the un-

appropriated public lands of the United States within

the limits of said State of Utah.

APPENDIX G

Territory of Utah

Salt Lake County

I, William Clayton, Auditor of Public Accounts of

Utah Territory, do hereby certify and state, that the

organization of the “Utah Southern Railroad Company’,

a corporation created under and by virtue of the laws

of the said Territory, has been completed; that the said

Railroad Company is fully authorized to proceed with

the construction of its road according to the existing

laws of the said Territory; and that the copy of the

Articles of Association to which this statement is at-

tached, is a full, true, and correct copy of the original

“Articles of Association” of the said Company, now on

file in my office, where the same are by law required to

be kept.

Witness my hand and official seal, at my office in

Salt Lake City, Utah Territory, this seventeenth day of

August A.D. 1875.

/s/ Wm Clayton

Auditor of Public Accounts

for Utah Territory

SEAL