Opposition — Boise Cascade Corp. v. Union Pacific Railroad

Iu the Supreme Court of the

United States

OcToBER TERM, 1980

t 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 ‘10 THE Unitrep Starrs

Court OF APPEALS FOR THE TENTH Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

J. CLare WIzIAMs.

Counsel of Record

406 West First South

Salt Lake City, Utah 84101

Attorney for Respondent

Railroads

;

QUESTIONS PRESENTED

1. Can the General Right of Way Act of March

8, 1875, 18 Stat. 482, 43 U.S.C. §§ 934-939, be applied

to grant a railroad company a right of way for trackage

which was constructed prior to its enactment?

2. Can the Secretary of the Interior's decision in

1875 which approved the filings of a railroad company

under the Act, authorizing the railroad to obtain a right

of way for its trackage, be collaterally attacked in this

case 106 years later?

ut

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ......22.22.::::sseecceeeeeee i

TABLE OF CITATION D ccccvcccsoeeeeeee ii

STATUTORY PROVISIONS INVOLVED .... 2

STATEMENT OF THE CASE. .................ccsse-seeeee 2

REASON WHY THE WRIT

SHOULD NOT BE GRANTED ....................... 4

1. THerE ArE No SprciAt or IMPORTANT

REASONS FOR GRANTING REVIEW ..............-..--+- 4

A. There is no conflict with prior decisions

of this Court or between circuit courts

or with a state court of last resort

concerning any issue in this case ...........-..---- 4

B. There are no important questions of

federal law which need to be settled

By thee COUPE .......0.n-casaccresesenionansntensmesmsannessins 5

2. THE Decision BELow 1s in AccorD WITH

THE INTENT OF THE ACT AND THIS CouRT'S

INTERPRETATION OF THE ACT. ............0.2cc00000020+ 7

A. The Act is to be liberally construed .......... 7

B. Applying the Act retroactively promotes

the purposes and intent of the Act ............ 9

38. THE SECRETARY S DECISION APPROVING THE

Gaawe? 18 CONCEIVE oicccesccoconcscomitnccee 11

COMIC LLB voconicccsccocccesvectsenveeteisesseane 15

APPENDIX A — STATUTES ......................... A-1

144

TABLE OF CITATIONS

Cases

Page

Boise Cascade Corp. v. Union Pac. R. Co.,

OR gh ge IRE cient eA, Sal Te Oa Ne eNO TEE aE Fee 15

French v. Fyan, 93 U.S. 169 (1876) 20.2... 5, 11

Great Northern Ry. v. Steinke,

ik el cee 7, 8,9

Great Northern Ry. v. United States,

ge Ps ee eee ee 5,7

Jackman v. Atchison, T. & S.F'. R.R.,

Re Os Pele BID asiceiniscsctcdsinsconesinnsacnrne 14

Jamestown & Northern R.R. v. Jones,

gee BE | Pecan 4, 5, 6, 9, 10

McDonald v. United States,

ERD FOr BR1 (OE Gi. DOOD) ncevcsvicccnncenessasersess 7

Minnesota, S.P. & S.Ste. M. R.R. v. Doughty,

OO TFB BU UID nasa csscestecrereenavnec 5

Nobel v. Union River Logging R.R.,

147 U.S. 165 (1898) .....ccccosccccsseccccssecscceeseee 5, 6, 18

Rio Grande Western Ry. Co. v. Stringham

38 Utah 113, 110 P. 868 (1910), affd 239

BM ON FN Saeki ease hencarcnacecs 5, 6

Stalker v. Oregon Short Line R.R.,

WE TD BO LAI oases cvcaccssisescncccsctbesisssnscecccs 5

Stuart v. Union Pac. R.R., 227 U.S. 842 (1918) .... 5

1v

Page

United States v. Denver & R.G.W. R.R.,

Te | a een 7

United States v. Southern Pac. Transp. Co.,

543 F.2d 676 (9th RUNG INI dcvuashessdbsbbsineentonnctions 5

Washington & Idaho R.R. v. Couer D'Alene Ry. &

W¥. Co. 106 OS. 3 10008) .......................... 5

Statutes

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, 18, 14, 15, A-1, A-2, A-3

Pub. L. 94-579, Title VII, § 706 (a),

re oc esaipnnnoeiean’ 6

Regulations

Regulations of February 11, 1904, 32 Land

pk | Bani esnenn enenen renner mnoaeee 3

Circular of January 13, 1888, Land Decisions

ON oe Oe ore 3

In the Supreme Court of the

United States

OcToBER 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 oF APPEALS FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Respondent, Union Pacific Railroad Company and

San Pedro, Los Angeles & Salt Lake Railroad Com-

pany (hereinafter referred to as “Railroad”), respect-

fully prays that Petitioner's application for a writ of

certiorari to review the judgment and opinion of the

United States Court of Appeals for the Tenth Circuit

entered in this proceeding on July 24, 1980, be denied.

2

STATUTORY PROVISIONS INVOLVED

Decisions interpreting application of the General

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

U.S.C. §§ 934-939 (hereinafter “Act”), generally cite

it as contained in the Statutes at Large of the United

States. Accordingly, for the ease and convenience of

the Court, the Act is thus set forth herein as Appendix

A.

STATEMENT OF THE CASE

The Railroad adds the following facts and inform-

ation to Boise Cascade’s Statement, in. order to provide

a more complete and accurate statement of the case:

1. The Railroad’s claim of title to a 100 foot right

of way on each side of the center line of its track is

based upon (a) filing in 1875 with the Secretary of In-

terior (Secretary) its articles of incorporation and due

proofs of its organization; and (b) actual construction

of the railroad line over the property in question as of

the date the filing was made. The Railroad does not

rely on the profile map to establish its rights in the

property.

2. The State of Utah patented the property on

July 15, 1905, to Boise Cascade’s predecessor in in-

terest, “the legal heirs of Hans C. Anderson.” The

property was conveyed “subject to any easement or

right of way of the public to use all such highways as

may have been established according to law, over the

same or any part thereof” (R. 255).

3

3. Boise Cascade has made valuable improve-

ments on the land; however, nearly all the improvements

were made after the Railroad notified Boise Cascade

of its claim of ownership to the property in writing on

February 14, 1975. Prior to that time, Boise Cascade

had only leveled the ground and installed a drainage

ditch. Subsequent to and in spite of receiving the writ-

ten notice, Boise Cascade proceeded to install more

valuable improvements including fencing, office and

storage sheds and buildings (R. 258).

4. The Railroad has refused to admit that Boise

Cascade’s “certified plat” (R. 115) is accurate because

it is unable to determine whether the line of railroad

as shown on the profile map is more than 100 feet east

of where the tracks were actually built. It is impossible

to use the map to accurately scale distances from one

point to another. The Railroad believes that the map

cannot be properly used for such purposes because of

its difficult scale (approximately 114” to the mile)’, and

because the sections are platted as uniform squares

which, in reality, is seldom the case.

5. On December 3-4, 1874, the Surveyor Gen-

eral’s office in Salt Lake City officially surveyed and

platted the area where the subject property is located.

The survey notes and the map, dated March 12, 1875

(R. 186), clearly showed the location and existence as

1 Regulations issued by the Secretary subsequent to passage of the

Act required the profile map to have a scale of no less than 1 inch

to 2,000 square feet. Regulations of February 1, 1904, 32 Land De-

cisions 481, 486 (1904); Circular of January 13, 1888, 12 Land De-

cisions 423, 428 (1891).

4

of December 1874 of the Railroad’s already constructed

line of railroad as it traversed the west one-half of Sec-

tion 16, Township 2 South, Range 2 East, Salt Lake

Base and Meridian where the property is located. A

Railroad track engineer who is a licensed surveyor has

testified (R. 182) that he located the notes and map

in the Bureau of Land Management office in Salt Lake

City, and that the line of railroad as depicted in both

the survey notes and on the map is within 10-14 feet of

where the tracks are now located.

REASON WHY THE WRIT

SHOULD NOT BE GRANTED

The decision of the Court of Appeals does not war-

rant review by this Court for the following reasons:

1 THERE ARE NO SPECIAL OR IM-

PORTANT REASONS FOR GRANTING

REVIEW.

A. There is no conflict with prior decisions of this

Court or between circuit courts or with a state

court of last resort concerning any issue in this

case.

The courts below have followed clear lines of well

reasoned and long established authority in reaching the

decisions from which Boise Cascade has appealed.

Jamestown & Northern R.R. v. Jones, 177 U.S. 125

(1900), and a number of cases following that de-

5

cision have clearly established the principle that under

the Act filing a profile map is unnecessary where a line

has already been constructed.

In Rio Grande Western Ry. v. Stringham, 38 Utah

113, 110 P. 868 (1910), affd 239 U.S. 44 (1915),

revd on another ground in Great Northern Ry. v.

United States, 315 U.S. 262, 279 (1941), the Utah

Supreme Court directly held in a well reasoned decision

that the Act should be applied retroactively to an earlier

built line of railroad.

Rio Grande Western Ry., supra, is based on the

rule established in landmark cases* that the quasi-judi-

cial decisions of the Secretary of the Interior granting

railroads rights of way under the Act are conclusive and

not reviewable in collateral proceedings. Jamestown &

Northern Ry., supra, 177 U.S. at 131, 132, also supports

a retroactive interpretation of the Act. Boise Cascade

has cited no statutory or case authority contrary to these

decisions.

B. There are no important questions of federal

law involved in this case which need to be set-

tled by this Court.

This case involves a quiet title action concerning

approximately 10 acres of ground. Boise Cascade alleges

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

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

Minnesota, S.P. & S.Ste. M. Ry. v. Doughty, 208 U.S. 51 (1908);

Stuart v. Union Pac. R.R., 227 U.S. 342 (1913); United States v.

Southern Pac. Transp. Co., 543 F.2d 676 (9th Cir. 1976).

3 Noble v. Union River Logging R.R., 147 U.S. 165 (1893); French v.

Fyan, 93 U.S. 169 (1876).

6

that the value of the realty is $60,000 and the value of

the improvements thereon is $200,000 (R. 3). Boise

Cascade admits, however, that most of these improve-

ments, including the more valuable ones, were volun-

tarily made after and in spite of written notice of the

Railroad's claim to the property (R. 258).

It is unreasonable for Boise Cascade to claim harm

as a result of being misled by an alleged erroneous pro-

file map filed in Washington D.C. in August 1875,

when the local United States land office records have

reflected the Railroad’s actual location over the property

since March 1875 (R. 182, 186).

The issues of this case have been previously de-

cided by this Court, except the question of the retro-

activity of the Act. The retroactivity issue was correctly

decided by the Utah Supreme Court in Rio Grande

Western Ry., supra. That decision was based upon this

Court's holding in Noble v. Union River Logging R.R.,

supra, and is supported by a plain reading of § 1 of the

Act and the language of Jamestown & Northern Ry,.,

supra, 177 U.S. 181, 182.

The fact that Rio Grande Western Ry., supra, is

the only decision since passage of the Act (106 years

ago) which addresses the retroactivity issue indicates

that this question is not of great or widespread public

interest or import. Moreover, since the Act was re-

pealed in 1976*, it is unlikely that the issue involved

4 Pub. L. 94-579, Title VII, § 706(a), 90 Stat. 2793.

7

herein will become an “important question of federal

law’ at any time in the future.

There is no evidence before this Court that the de-

cision below has “clouded the title to land of thousands

of private individuals.” Neither the Railroad nor Boise

Cascade has any idea how many railroad lines con-

structed prior to 1875 were built without government

aid. Boise Cascade’s bare allegation that “many hun-

dreds of miles of other railroads” falls into this category

is at best speculative and presumptive.

2. THE DECISION BELOW FOLLOWS

THE INTENT AND THIS COURTS

INTERPRETATION OF THE ACT.

A. The Act is to be liberally construed.

This Court has made it clear that grants under the

Act stand on different footing than merely private

grants, and should receive from those interpreting and

administering it a more liberal interpretation in favor

of the purposes for which the Act was passed. Great

Northern Ry. v. United States, supra, 315 U.S. at 272;

United States v. Denver & R.G.W. R.R., 150 U.S. 1, 8

(1893) ; Great Northern Ry. v. Steinke, 216 U.S. 119,

124 (1922). McDonald v. United States, 119 F.2d 821

(9th Cir. 1941), clearly states, “The grantee is entitled

to have the act liberally construed to effect the purpose

for which it was enacted.” 119 F.2d at 825 (citation

_ omitted ).

The purpose of the Act was to promote the con-

struction and operation of railroads in order to build

the West. As stated in Great Northern Ry. v. Steinke,

supra:

Its purpose was to enhance the value and hasten

the settlement of the public lands by inviting and

encouraging the construction and operation of

— and convenient lines of railroad through

em.

261 U.S. at 124.

The Railroad’s tracks between Salt Lake City and

Juab, Utah were constructed and placed in operation

in five different segments—four short segments prior

to March 1875, and one long segment after this date.

The section to Sandy was finished in September 1871;

the section to Lehi Junction was completed in Septem-

ber 1872; the section to Provo in November 1873; the

section to York in February 1875; and the section to

Juab in June 1879 (R. 238). Treating the entire dis-

tance of 102 miles from Salt Lake City to Juab as a

single line of railroad, as it eventually became, it is en-

tirely consistent with the intended purposes of Congress

to have the Act apply to the entirety of the track rather

than just the last portion constructed from York to Juab

subsequent to 1875.

As the cases explain, the Act is to be liberally con-

strued to encourage and assist in both the “construction

and operation” of railroads in the west. Although con-

struction of the segment in question was completed

prior to 1875, operations thereover had just recently be-

gun and substantially more trackage was yet to be built

and operated (R. 238) at the time the benefits of the

9

Act were applied for by the Utah Southern in Septem-

ber 1875. If obtaining the benefits of the Act allowed

the Utah Southern to use additional resources to facili-

tate its operation over the earlier constructed segments

of its track and then to continue building and extend

such op« ation a number of miles further south to Juab

subsequent to passage of the Act, it would seem that

the Secretary properly construed the Act by allowing

it to apply to those connected segments which were con-

structed prior to the Act’s passage as well as to those

segments constructed after the Act's passage.

No authority cited by Boise Cascade states that the

Act was intended to be restrictively and strictly applied

only prospectively to “new rail lines” or “new construc-

tion.” Such an interpretation is not found in the legis-

lative history nor in any of the many cases which have

construed and applied the Act. It is found only in

Boise Cascade’s argument.

B. Applying the Act retroactively promotes the

purposes and intent of the Act.

Early cases interpreting the Act recognized that

the Act was loosely drafted and contained some uncer-

tainty. Great Northern Ry. v. Steinke, 261 U.S. 119,

124; Jamestown & Northern R.R. v. Jones, 177 U.S.

125, 130. But as stated in Great Northern Ry., 261

U.S. 119, 124, “through a long course of administration

in the Land Department and many adjudications in the

courts its meaning and effect have come to be pretty

well settled.”

10

Section 1 of the Act states, in part:

That the right of way through the public lands

of the United States is hereby granted to any

railroad company duly organized under the laws

of any State or Territory, except the District of

Columbia, or by the Congress of the United

States, which shall have filed with the Secretary

of the Interior a copy of its articles of incorpora-

tion, 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.

General Right of Way of March 3, 1875, 18 Stat. 482,

43 U.S.C. § 934. A landmark decision interpreting the

meaning and effect of the Act is Jamestown & Northern

R.R., supra, where the court held that (1) the applicant

railroad became a grantee under the Act simply by

filing its articles of incorporation and proofs of organ-

ization; (2) the granted right of way could be identified

and located by actually constructing the line of railroad

or, in advance of such construction, by filing a profile

map of the line; and (3) no map need be filed at all if

construction had already taken place. The case also in-

dicates that by the very language of § 1 of the Act Con-

gress intended it to apply to an already “constructed”

railroad line. In so construing the Act, the court said:

Secretary Vilas said in Dakota Central R.R. v.

Downey: “As to the roadway, the construction

of road fixes the boundaries of the grant, and

fixes it by the exact rule of the statute. . . .

“It seems to me that the fourth section of the

act was written for another purpose and for an-

other case. It relates to a case of a railroad com-

ll

pany which desires to secure the present grant,

and give to it fixity of location, before its road

shall be constructed; ana it is designed to provide

a similar privilege in respect to rights of way

which acts granting lands to aid in the construc-

tion of callous ave provided—namely, the

privilege of giving fixity of location to the sub-

ject of the grant before construction of the road.

* * %&

“It does not become necessary for a road which

has secured the benefits of this act, by taking the

steps which give it the attitude of being named

in the first section as grantee, and by building a

road through the ouhie lands, whereby the sub-

ject of the grant has been defined, to file a map

of definite location in order to entitle it to the

benefits of the right of way.

“The fourth section is designed to provide a

mode by which fixity of location can be secured

to a grantee, in anticipation of that construction

by which location is defined in the section mak-

ing the grant, and which shall have the effect,

before the construction of the road, which the

terms of the grant limit to the ‘central line of said

road, which only means—without the fourth sec-

tion—a constructed road.”

177 U.S. at 132. Thus, the Act by its very language

appears intended to refer to a road which, as of the date

of passage of the Act, was already built and in existence.

38. THE SECRETARYS DECISION AP-

PROVING THE GRANT IS CONCLU-

SIVE.

In French v. Fyan, supra, it was held that the

action of the Secretary identifying swamp lands, mak-

12

ing lists thereof and issuing patents therefor, could not

be impeached in an action at law by showing that the

lands which the patent conveyed were not, in fact,

swamp lands, even though the Secretary's jurisdiction

extended only to lands of that class. The court explained

its holding by quoting from Johnson v. Towsley:

“[T]he general doctrine, that when the law has

confided to a special tribunal the authority to

hear and determine certain matters arising in the

course of its duties, the decision of that tribunal,

within the scope of its authority, is conclusive

upon all others. That the action of the land-

office in issuing a patent for any of the public

lands, subject to sale by pre-emption or other-

wise, is conclusive of the legal title, must be ad-

mitted under the principle above stated; and in

all courts, and in all forms of judicial proceedings

where this title must control, either by reason of

the limited powers of the court or the essential

character of the proceedings, no inquiry can be

permitted into the circumstances under which it

was obtained.”

... [W]e are of the opinion that, in this action

at law, it would be a departure from sound prin-

ciple, and contrary to well considered judgments

in this court, and in others of high authority, to

permit the validity of the patent to the State to

be subjected to the test of the verdict of a jury

on such oral testimony as might be brought be-

fore it. It would be substituting the jury, or the

court sitting as a jury, for the tribunal which Con-

gress had provided to determine the question, and

would be making a patent of the United States

a cheap and unstable reliance as a title for lands

which it purported to convey.

93 U.S. at 172 (citation omitted )

13

To the same effect is Noble v. Union River Log-

ging R.R., supra, where this Court said:

In this class of cases, if the allegation be properly

made, and the jurisdiction be found by the Court,

such finding is conclusive and binding in every

collateral proceeding. And even if the Court be

imposed upon by false testimony, its finding can

only be impeached in a proceeding instituted

directly for that purpose.

The lands over which the right of way was

granted were public lands subject to the opera-

tion of the statute, and the question whether the

plaintiff was entitled to the benefit of the grant

was one which it was competent for the Secre-

tary of the Interior to decide, and when decided,

and his approval was noted upon the plat, the

first section of the act vested the right of way in

the railroad company. The language of that sec-

tion is ‘that the right of way through the public

lands of the United States is hereby granted to

any railroad company duly organized under the

laws of any state or territory, etc. The uniform

rule of this court has been that such an act was a

grant in proesenti of lands to be thereafter iden-

tified. .. . The railroad company became at once

vested with the right of property in these lands,

of which they can only be deprived by a pro-

ceeding taken directly for that purpose. If it

were made to appear that the right of way had

been obtained by fraud, a bill would doubtless

lie by the United States for the cancellation and

annulment of an approval thus obtained.

147 U.S. at 176.

It is clear that the Secretary had jurisdiction to

consider the Utah Southern’s application under the Act.

14

Accordingly, regardless of whether he correctly exer-

cised such authority, his actions were valid under the

law and are not assailable in this proceeding. Accord,

Jackman v. Atchison, T. & S.F. R.R., 170 P. 1036,

1042 (N.M. 1918).

It is equally clear from the documents obtained

from the General Services Administration, National

Archives and Records Service (R. 187), that the Sec-

retary recognized the filings of the Utah Southern as

being appropriately submitted pursuant to the Act; he

approved and accepted them as being in substantial con-

formity with the requirements thereof; and by so doing

he was clearly and consciously authorizing the Utah

Southern to obtain the benefits of the Act for a line of

railroad which had already been constructed. That the

Secretary was aware that the line had already been con-

structed’ is evident by the acknowledgement of the

Utah Southern’s Chief Engineer on the profile map

which the Secretary approved (R. 39). The Engineer

stated under oath on the profile map filed with the Sec-

retary that he:

[ I. ]ocated a line of railroad .. . from Salt Lake

City ... to Payson City .. ., a distance of sixty-

five and one half miles, and completed the same

5 The August 1875 certification of the Territorial Auditor, William

Clayton to Utah Southern’s Articles of Incorporation filed with the

Secretary (R. 217), advising ‘that the said Railroad Company is

fully authorized to proceed with construction of its road,’’ does not

show otherwise since this statement can logically be construed to

refer to the continued constriction of the railroad from York to

Juab, Utah which occurred between February 1875 and June 1879

(R. 238).

15

the entire distance between the said places on

the first day of December A.D. 1874... .

Contrary to Boise Cascade’s characterization of

the Secretary's decision in granting the benefits of the

Act “clearly ultra vires,” his decision is conclusive as to

this collateral proceeding.

CONCLUSION

In writing the opinion in the decision below, Judge

Breitenstein said the Court was “convinced that the 1875

Act applies to determine the rights of the parties.” 630

F.2d 720, 728. The Railroad submits that this decision

by the Court below is correct, and that Boise Cascade's

petition for a writ of certiorari should therefore be

denied.

Respectfully submitted,

J. CLarE WILLIAMS

Counsel of Record

406 West First South

Salt Lake City, Utah 84101

Attorney for Respondent

Railroads

February 1981

APPENDIX A

18 Stat. 482. An Act granting to railroads the right

of way through the public lands of the

United States.

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress

assembled, That the right of way through the public

lands of the United States is hereby granted to any

railroad company duly organized under the laws of any

State or Territory, except the District of Columbia, or

by the Congress of the United States, which shall have

filed with the Secretary of the Interior a copy of its

articles of incorportion, and due proofs of its organizaton

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 adja-

cent to such right of way for station-bu dings, depots,

machine-shops, side-tracks, turn-outs, 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.

§ 2.

That any railroad company whose right of way, or

whose track or road bed 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 cross-

ing of other railroads at grade. And the location of

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

A-2

shall not cause the disuse of any wagon or other public

highway now located therein, nor prevent the 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 com-

panies occupying and using the same canyon, pass, or

defile.

§ 3.

That the Legislature of the proper Territory may

provide for the manner in which private lands and pos-

sessory 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

accordance with section three of the act entitled “An

act [to amend an act entitled an act] to aid in the con-

struction of a railroad and telegraph line from the Mis-

souri River to the Pacific Ocean, and to secure to the

government the use of the same for postal, military, and

other purposes, approved July first, eighteen hundred

and sixty-two, (“) approved July second, eighteen hun-

dred and sixty-four. [”]

A-3

§ 4,

That any railroad company desiring to secure the

benefits of this act, shall within twelve months after the

location of any section of twenty miles of its road, if the

same be upon surveyed lands, and, if upon unsurveyed

lands, within twelve months after the survey thereof by

the United States, file with the register of the land

office for the district where such land is located a pro-

file of its road; and upon approval thereof by the Sec-

reary 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

granted shall be forfeited as to any such uncompleted

section of said road.

§ 5.

That this act shall not apply to any lands within

the limits of any military, park, or Indian reservation,

or other lands specially reserved from sale, unless such

right of way shall be provided for by treaty-stipulation

or by act of Congress heretofore passed.

§ 6.

That Congress hereby reserves the right at any time

to alter, amend, or repeal this act, or any part thereof.

Approved March 3, 1875.