# Opposition — Boise Cascade Corp. v. Union Pacific Railroad

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 995

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1000%3A2. Public record. Not legal advice.