Petition for Writ of Certiorari — Lewis v. United States

Supreme Court brief1967

Ask Donna

What actually matters in this document.

Text

Toa a aa eee ste se ee ae TS

. °

“Supreme Court, U

IRARY ‘FILED

SUPREM® COURT, U. & y ener |

: oe nega SEP 11-1967.

: ye ha ~ L4OHN F. Davis, CLERK

"SUPREME COURT OF THE i STATES -

OcTOBER TERM, 1967 -

+ No.6O1-

THE STATE OF Wyomine and Guus OIL Conporarion,

Petitioners,.

“. VERSUS

Srewarr L. UDALL, individually and as s Secretary of the

Interior; Ep Prerson, individually and as Supervisor for

the State of Wyoming, Bureau of Land Management, -

Department_of the Interior; Davin-B. Morcan, Acting

. i Manager, Oil and Gas, Cheyenne, Wyoming Land Office,

' Bureau of Land Management, Department of the In-

terior, and UNION PaciFic RAILROAD gusts @ COrpo- — .

ration,

Respondents,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

TENTH CancurT .

| James E. BARRETT - MCCLINTOCK, MAI & URBIGKIT

Attorney General By A. G. MCCLINTOCK

STERLING C. CASE 304 West 20th Street

- First Assistant Attorney Cheyenne, Wyoming

' General ' -JAMEs B. Diccs

State of Wyoming ROGER K. ALLEN Mise

State Capitol Building 600 Oklahoma Mortgage Building

Cheyenne, Wyoming — _ Oklahoma City, Oklahoma

' Attorneys for the State of or for = Oil Corporation

Wyoming

September, 1967

UTTERBACK TYPESETTING CO., 13 SO. WALKER, OKLAHOMA City, Pu. CE S-0030

; Fi -

‘ .

4 e

on wa

ae! ”

2 t

P .

’

‘

’

‘

| i 8B | PAGE

_ Opinions Below _- : rae oe

_ Jurisdiction __ ° | a

The J urisdiction of this Court is invoked under, 28 te

U.S.C. § 1254(1) | oom pane a

Question Presented ree ee A = wet NO

Statutes Involved Lcbcides ee ee

_'" Statement... oie | : 7

Reasons for Granting the Writ a

e “B- 7 . of . i 3 -

Conclusion - OEE BY NAM TD ae —18

AUTHORITIES

CASEs: : ae Z .

Great Northern - Co. v. United States, 315 U. Ss.

262 (1942) . ; 10, 11, 14, 15.

* Northern. Pacific R: Co. v. -'Fownsend, 190 U.S. 267

(1903)

United States v. Union Pacific R. Co., 353 U.S. 112

13, 15

(1957) -__.__ 10, 11,.

ig ee “+ 12,13, 14, 15,16 -

AeTs AND STATUTEs: a ee e

5 US.C. § 1009 os aw

* 28.U.S.C. §§: 1331, 2201-2202 3 ied 7 -

28 US. C. § 1361. q

. \

> NY

- \

' INDEX CONTINUED My a: PAGE

” Act of July-29, 1861, 12 Stat. 127 MOD. 17

‘Act of July 1, 1862, 12 Stat. 489, 491- 492 3-4, 13, 14

Act of July 1, 1862, 12 Stat. 469 2,8

Ae of July 2, 1864, Sec. 4, 13 Stat. 356; 358, amen- »

; omg the’ me of July 1, ‘1962 - : : 4-6, 8,

11, 12, 13, 14

_ Act of March 2, 1874, 18 Stat.. 474 17

- Act of February 22, 1889, 25 Stat. 679 3 17°

Act of July 10, 1890, 26 Stat. 222 and 224 - scammed 2-3, 8.

“Act of July 16, 1894, 28 Stat. 107 . ‘17

_ General Right of Way . Act of 1875, 18 Stat: 482, 43

U.S.C. §§°934-939 ae | 5 ‘15

Right of Way Leasing Act of May 21, 1930, 46 Stat. |

| _ 873, 30 U.S.C. ‘§ 301 teas -6°1, 9, 10

“Russ ‘AND Recutations:

". 19 F.R. 9098, Dec. 23, 1954; 43 CFR § 2234.2- 2(b). ie

Regulation of May 11, 1909, 37 L.D. 788 “a5

| = eee ES ae

APPENDIX A

Opinions of Director, Bureau of Land Management. ai ivi

_. Opinion of Secretary of the Interior, 72 LD. 76 _ix-xviii .

Findings of Fact and Conclusions of Law of the United |

States District .Court for the ‘District of Wyom-”

ing - _xix-xxvii —

Judgment of Dismissal . ‘a - xxvii-xxviii

Order Amending Conclusions of Law . pel | : _xxviii-xxix. |

‘Opinion of the United States. Court of Appeals, Tenth : |

Circuit XXX-XxXxix

_ Judgment of the United Statés Court of, — June

14, 1967 caer , , xl

Ket fe

7 wae adie | 2

o INDEX CONTINUED. , ae ‘© j PAGE

_. APPENDIX B

Tabulation of Miles of Railroad Constructed along.

-rights of way granted by Right of Way Provisions

included in Acts of Congress Making Grants of Land

® in aid of Railroad Construction, —._—--------xli-xliv

PERE ee ee TE A

# ; >- cat . .

: @e * . :

“) : a fe

. 7 \ ¥, a @: = - i : n

e : 1

a .

, - .

oi - ; my Nee * é

. . e.5 . o ; ‘ : a

. e c :

‘ » & ros Pay eee ;

: e & a

e s _ Regs ? 7 F »

r ¥d - > ve

- ” ty

*. . * ff an ; : : ’

7. . ¢ : $ 3 * M os:

: 3 * + & ° ,

. . , & ..

. ¥ . baad o ;

Py He

” “ ;

. 1. ‘ . 4 \ ;

. > .

, 2 = .

; \

‘ « .

. ” , *

. . :

. . P

F : ; .

‘ . a

7 .

os ? ?

. + eo ae S

- \

sd . e >

° 3 = ,

. 7 ‘ y

_ ? . ey a

, . .

¢ Wee 3 | |

‘ ' :

-. : ; So: ios oe

oe ° : |

- = a ° . =

aa ' ‘ s

° 3 . ;

: : ae

; aa ; ‘

. 3 ;

Ps ‘ ‘4

. * . * : ;

. , = <

j ‘ .

. :

x ¥ . e : 4 .

. . -_eoo -

. , : ;

~~ 3 - © %

° * ‘

, . A , ie ;

: j * ’ .

P 3 ;

. . > . : , ‘i

. : ss

' k : :

: rl ;

~ .

x . ye

4 ; -

”- : :

. : |

. ; r

¥ ?

‘ ; ; :

: =

a .

‘ .

e ; =

7 a A.

0 ; ;

: ” ” ©

* ‘

. « . 2

| . . 7 e *

7 —

: % *. ‘

igh . ° . ?

: ‘ . 7 . :

- : i

- . z ’

: / ° ; . ’ ; r a

4 ~ 4 :

‘ E » .

. - . :

: s . . . ’ !

eo : ; .

’ a

’

. ‘ . .

: -

> - ,

+ ; es

: -~

i ‘ * :

4 . ‘4 P /.

« é ; ;

‘ a, ‘

. .

. . :

. . ;

| ’ - ** -

‘ © . :

. . ;

. .

‘ P |

: = ‘

. as t

; ° ” in

. . i ,

oe 3 : :

. ; :

. . : ;

7 ee , : .

P -,

: ' ‘

4 - - ’

’ . os -

° 3 ; J ; :

. Bh,

we a e . E ;

SELAH ne - ; - cea |

: z - . , a =

Ser

, , In the fee

Supreme Court of the United States

- OcToBER TERM, 1967.

S ?

oe 7

, No. wedsccecceece é

ot | G

Tue State or Wyomine and Gutr On CORPORATION,

: | ¥ Petitioners; _ ! a

7 VERSUS . «'

Stewart L. UpAtt, individually and as-Secretary of the ©

Interior; Ep Pierson, individually and as Supervisor for

the State of Wyoming, Bureau of Land Management,

Department of the Interior; Davin B. Morean, Acting

Manager, Oil and Gas, Cheyenne, Wyoming Land Office,

Bureau of. Land Management, Department of the In-

terior, and Union Paciri¢ Rarroap CoMPANy, a corpo- ||

ration, ~ = - ; | ree a toa

Respondents.

_ PETITION FOR. WRIT OF CERTIORARI T°. THE

_ UNITED STATES COURT OF APPEALS FOR THE

The State of Wyoming and Gulf Oil Corporation pray

that a writ of certiorari issue to review the judgment of -

the United States Court of Appeals for the Tenth Circuit;

entered in the above-entitled case on June 14, 1967. —

es OPINIONS BELOW |

The opinions ‘of the Director, Bureau of Land Manage-

ment (Appendix A, infra, pp. i-viii) are not reported. |

The opinion of the Secretary of the Interior (Appendix ,

- A, infra, pp. ix-xviii). is reported at 72 LD. 76. | ‘

m |

> |

| [

“ \

The District Court’ did not write an opinion. Its find- -

ings of fact and conclusions of law, as $ amended (Appendix

A, infra, pp. xix-xxix) are reported at 255 F.Supp. 481.

The opinion of the Court of Appeals (Appendix A,

infra, pp. xxx-xxxix) | is not yet reported. | .

‘

JURISDICTION

' The judgment of the court of appeals ‘(Appendix A,

aap p. xl) is dated and was entered June 14, 1967. The

jurisdiction of this Court is invoked under 28 U. S.C. §

. 1254(1). .

“question PRESENTED

‘Whether the school land grant to the State of Wyo-' cs

ming made by the Act of July 10, 1890, 26 Stat. 222, re-

‘served to the United States or granted to the State the oil

and gas deposits underlying those portions of the granted

sections which are traversed by the right-of-way previ-

ously granted to The Union Pacific Railroad Company by

the Act of July 1, 1862, 12 Stat. 489.

STATUTES INVOLVED

Sections 4 and 13 of the Act of July 10, 1890, 26 Stat.

222 and 224, ‘provide:

“Sec. 4. That sections numbered sixteen 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 sec-

. tion, and as contiguous 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

indemnity lands to be selected within said State in

such manner as the legislature may provide, with the

approval of the Secretary of the Interior: Provided,

That section six of the act of Congress of August ninth,

eighteen hundred and eighty-eight, entitled ‘An act to

authorize the leasing of the school and university lands

in the Territory. of Wyoming, and for other purposes,’

shall apply to the school:and university indemnity

lands of the said State of Wyoming so far as appli-

- cable.”

“Sec 13.."That all taineral lands shall be exempted 2

"from the grants made by this act. But if sections six-

489,

teen. and thirty-six, or any subdivision or portion of

any smallest subdivision thereof :in any township, —

shall be found by the Department of the Interior to

be mineral lands, said State is hereby authorized and. ©

empowered to select, in legal subdivisions, an equal -

quantity of other unappropriated lands in said. State

in lieu thereof, for the use and the benefit of the

common schools of said State.”

Sections 2 and 3 of the Act of July 1, 1862, 12 Stat.

491-492, provide:

“Src, 2. And be it further enacted, That the right of

way through the public lands be, and the same is

hereby, granted to said company for the construction

of said railroad and telegraph line; and the right,

power, and authority is hereby given to said company

to take from the public lands adjacent to the line of

said road, earth, stone,-timber,'and other materials

for the construction thereof; said right-of way is

granted to said railroad. to the extent of two hundred

feet in width on each side of said railroad where it

may. pass over the public lands, including all neces- |

—4— : -

sary grounds for stations, buildings, workshops, and

depots, machine shops, switches, side tracks, turn-

tables, and water stations. The United States shall ex-

tinguish as rapidly as may be the Indian titles to all

lands falling under the operation of this act and re- |

quired for the said right of way and grants hereinafter

. made.” | 7 on

“Sec, 3. And be it further enacted, That there be,

and is hereby, granted to the said company, for the

purpose of aiding in the construction of said railroad

* and telegraph lirie, and to secure the safe and speedy

transportation of the mails, troops, munitions of war,.

and public stores thereon, every alternate section of _

public land, designated. by odd numbers, to the amount

of five alternate sections per mile on each side of: said ©

railroad, on the line thereof, and within the limits of

ten miles on each side of said road, not.sold, reserved,

’ or otherwise disposed of by the United States, and to

which a preemption or homestead claim may not have

attached, at the time the line of said road.is.definitely ~

fixed: Provided, That all mineral lands shall. be ex-

cepted from the operation of this act; but. where the

same shall contain timber, the timber thereon is hereby

granted to said company. And: all such lands, so

granted by this section, which shall ‘not be sold or dis-

posed of by said company within three years after the

entire road shall have been completed, shall ‘be’ sub-

ject to settlement and preemption, like other lands, at

a price not exceeding one dollar and twenty-five cents

‘per acre, tobe paid to said company.” |

“Section 4 of the Act of July 2, 1864, 13 Stat. 356, 358,

amending the Act of July 1, 1862, provides: ?

“Sec. 4. ‘And be it further enacted, That section three

of said act be ‘hereby amended by striking out the

word. ‘five,’ where the same occurs in said section, and

by inserting in lieu thereof the word ‘ten’; and by

‘ .

he : . >

aan

‘striking out the word ‘ten,’ where thé same occurs in

said section, and by inserting in lieu thereof the word

‘twenty.’ And section seven of said act is hereby

amended by striking out the word ‘fifteen,’ where the

same occurs in said section, and inserting in lieu

Lr»

“

thereof the word ‘twenty-five.’ And the term ‘mineral -

land,’ wherever the same occurs in this act, and the

act to which this is an amendment, shall not be con-

strued to include.coal and iron land. And any lands

granted by this act, or the act to which this is an

amendment, shall not defeat or impair any preemption,

- homestead, swamp land, or other lawful claim, nor

include any government reservation or mineral lands,

or the improvements of any bona fide settler, or: any

lands returned and denominated as mineral lands, and

the timber necessary to support. his said improvements

as a miner, or agriculturalist, fo be ascertained under

such rules as have been or may be established by the

commissioner of the general land-office, in conformity _

with the provisions of the preemption laws: Provided,

That the quantity thus exempted by the. operation of

this act, and the act to which this act is an amendment,

shall not exceed one hundred and sixty acres for each

settler who claims as an agriculturalist, and such

quantity for each settler who claims as a miner, as the

said commissioner may establish by general regu-

lation: Provided, also, That the phrase ‘but where the ~

‘same shall contain timber, the timber thereon is hereby

granted to said company,’ in the proviso to said section

three, shall not apply to the timber growing or being

. on any land farther than ten miles from the centre line

_ of any one of said roads or brariches mentioried in said

act, or in this act. And all lands shall be excluded from

the operation of this act, and of the act to which this’

act is an amendment, which were located, or selected

to be. located, under ‘the provisions of an act entitled —

‘an act donating lands to the several states and terri- |

tories which may provide colleges for the benefit of

= on

agriculture and the mechanic arts,’ approved July

second, eighteen hundred and sixty-two, and notice

thereof given at the ‘proper land-office.”

The pertinent provisions of the Right of Way Leasing

Act of May 21, 1930, 46 Stat. 373, 30-U.S.C. § 301, et seq.,

provide: .

“§ 301, Authorization for lease of oil and gas deposits; .

by and to whom leased eos

“Whenever the Secretary of the Interior shall deem |

_it to be consistent with the public interest he is author- |

ized to lease.deposits of oil and gas in or under lands ~~ |

embraced in railroad or other rights of way acquired ;

under any law of the United States, whether the same"

be a base fee or mere easement: Provided, That, ex-

cept as hereinafter authorized, no lease shall be exe- _

cuted hereunder except to the municipality, corpora-

> tion, firm, association, or individual by whom such ._

right of way was aequired, or to the lawful successor,

_ assignee, or transferee of such municipality, corpora-

tion, firm, association, or individual. May 21, 1930, c.

307, § 1, 46 Stat. 373.” te

“§ "303. Conditions precedent to award of lease; pre-

ferred class; bidding . me

_'. “Prior to the-award of any lease under section 301

_ of this title, the Secretary of the Interior shall notify

the owner or lessee of adjoining lands and allow him

- a reasonable time, to be fixed in the notice given,

within which to submit an’ offer or bid of the amount

or percentage of compensatory royalty that such owner

will agree to pay for the extraction through wells on

his or its adjoining land, of the oil or gas under and

from such adjoining right of way, and at the same time

afford the holder of the’ railroad or other right of way

a like opportunity within the same time to submit its

bid or offer as to the amount or percentage of royalty

it will agree to pay, if a lease for the extraction ‘of the

;

¢ ;

¥ ’

@ ° ° |

WB. eS

—I-

oil and gas deposits under the right of way be-awarded

_ to the holder of such right of way. In case of com-

peting offers by the said parties in interest, the Secre-

tary:shall award the right to extract the oil and gas

to the bidder, duly qualified, making the offer in his

- opinion most advantageous to the United States. In

- case but one bid or offer is received after notice duly

given, he may, ‘in his discretion, award the right to

extract the oil and gas to such bidder. May 21, 1930,

ae 307, ‘§ 3, 46 Stat. 374.

STATEMENT. ey

——Pesiiners oo 3 this action in the District Court

- against the Secretary of.the Interior and his subordinates

to review, set aside as contrary to law and enjoin enforce- —

ment of a decision of the Secretary that the United States

owned, and that directed his subordinates to dispose of pur-

suant to’ the Right of Way Leasing Act. of May, 21, 1930, 46

Stat. 373, 30 U.S.C. §§ 301-306 (supra, pp. 6-7), the oil and

gas deposits underlying those portions of the right-of-way

of the Union Pacific Railroad Company. (Union Pacific) -

which traverse two sections. of Wyoming school land. The

decision was challenged on the sole ground that the State

of Wyoming, and not the United States, owned and had

the right to lease the oil and gas deposits. These deposits

were found by the District Court to have a value in excess

of $10,000.00, exclusive of interest and costs (Fdg. 5, App.

A, infra, p. xxi, R. 58). Thus, the jurisdiction of the District

Court was based on 28 U.S.C. § 1331 and §§ 2201-2202, as

well as on 28 U.S.C. § 1361 and 5 U.S.C. § 1009. Union _

Pacific intervened as a defendant. The facts are not in dis-

pute and were either admitted ‘or stipulated.

The two sections of school land in question areSections:

16-18N-99W and 36-19N-99W, Sweetwater County, Wyo-

_ ming (Fdg. 1, App. A, infra, ‘p. xx, R. 57). They | were

granted to Wyoming by §-4 of the Statehood Act of July

10, 1890, 26. Stat. 222,-supra, | pp. 2-3), which grants Wyo-

ming ‘Sections 16 and 36 in each township and provides

that “where such sections or any part thereof have been —

sold or otherwise disposed of by or under the authority

of any act of Congress,” other lands. may be selected. Prior

_ to the. grant of these sections to Wyoming, a predecessor

of Union Pacific had constructed its railroad right-of-way ~~

across this land and it has never been abandoned arid is |

still in use (Fdg. 6, App. A, infra, p. xxii, R. 58-59). It

was constructed pursuant to § 2 of the Act of J uly:1, 1862,

12 Stat. 489, supra, pp. 3-4, which granted to the railroad

‘company “the right-of-way through the public lands . :

for the construction of said railroafl and telegraph line.” ‘i

Section 3 of the same Act, which granted to the railroad

‘company in fee alternate odd-numbered sections of public

land on each side of the railroad in aid of its construction,

provides: that, “all mineral lands shall be excepted from

the operation of this Act,” swpra, p. 4; and § 4 of the amen-

ding Act of July 2, 1864, i3 Stat. 356, supra, pp. 4-5, which

doubled the grant of alternate sections to the railroad, pro-

vides that “the term ‘mineral land,’ whenever the same

occurs: in this act, or the act to which this is an amend-

_ ment, shall not be construed to include coal and iron land,’’.

supra, p. 5. :

It was stipulated and accordingly found that the two

sections here involved were not of known mineral value

when the survey plats were approved and filed in 1877 and

1884 or when they were granted to Wyoming by the Act __

—9—

of July 10, 1890, and that Wyoming has never made an ~

_- in-lieu, selection for land equivalent to that occupied by -

Union Pacific as its ‘right-of-way (Stip:, pars. 6 and 8, R. -

- 37-38; Fdgs. 7 and 9, App. A, infra, pp. xxii-xxiii, R: 59-60).

. Wyoming reconveyed all of Section 16 to the United States

in, 1938 and portions of Section 36 in 19%, but’ in each

instance reserved all minerals (Fdg. 10, App. A, infra, p

xxiii, R. 60). In: 1952 the State issued separate oil and

gas leases describing these two sections, except a 14.7-acre

tract in Section 36 previously conveyed to Union Pacific

and not involved in this action. Both leases were assigned — |

to Gulf Oil Corporation (Gulf) (Fdgs. 11 and 12, App. A,

infra, pp: xxiii-xxiv, R. 60). The lease covering Section 16

expired during the pendency of these proceedings, but the

leas€ covering Section 36 is. in full force and effect.

Such was the condition of title to this land when the :

administrative ‘proceedings, in the Department of the In-

terior were initiated: in 1960 by applications of Union Pa-

cific to the Manager of the Cheyenne Land Office, Bureau

. of Land Management, for an oil and gas lease covering. its

right-of-way in Section 16 and another covering its right-

of-way inSection 36 pursuant to the Right of Way Leasing

Act of May 21, 1930, 46 Stat. 373, 30 U.S.C. §§ 301-306

(supra, pp. 6-7). Pursuant to that. Act, the Manager issued

decisions inviting royalty bids from Union Pacific as the

owner of the right-of-way and compensatory royalty bids

from Gulf as the owner of the oil and gas leases on the

lands adjoining the right-of-way.

Instead of submitting a bid, Gulf appealed these de-

cisions to the Director, Bureau of Land Management, who

reversed, holding that in consequence of this Court’s de-

—ii-

cision in United: States Vv. ‘Union Pacific R. Co., 353 US. 112

(1957), that the 1862 right-of-way grant did: not convey

any minerals to “the railroad, it followed that the retained —

mineral rights vested in Wyoming upon the later grant to-

it of the traversed sections as school lands. App. A, infra,

Pp. i-viii.

Union Pacific ‘aiid these decisions to the Secre-

tary of the Interior, who reversed and remanded the pro-

ceedings for further action pursuant to the Right of Way ..

Leasing Act of May 21, 1930, 46 Stat. 373, 30 U.S.C. 88 -

"301-306, consistent with ownership by the United States |

of the oil and gas deposits underlying | the right-of-way. 72

?.D: 76, App: A, ‘infra, pp. ix:xviii. The basis of the Secre-

* tary’s decision was that this Court had not held this right-

of-way to be an easement in Union Pacific, as it had held

post-1871 rights-of-way to be in Great.Northern Ry. Co. v

- United States, 315 U. S. 262 (1942); accordingly, he held |

that the rule that the servient,estate in a railroad right-of-

way passes without mention on conveyance of the encum-

bered tract does not apply to this right-of-way as it does

- to post-1871 rights-of-way. \,

Petitioners then filed this action ‘in the District Court, :

which upheld the Secretary’s decision, but upon a different

interpretation of this Court’s decision in Union Pacific. It

concluded that, since that decision had held that the ex-

ception of “mineral lands” in the railroad’s grant was to be

construed as a reservation to the United States of all min-

eral rights in the rightiof-way, the exception of “mineral

lands” from Wyoming’s school land grant should receive a

like construction. App. A, infra, pp. xix-xxix.

Petitioners then appealed to the Court of Appeals. It

too held that the oi] and gas deposits under the right-of-

“way. were excluded from Wyoming’s school land grant, but

upon a still different construction of the applicable statutes

and interpretation of this Court’s decision in-‘Union Pacific.

It held that, in consequence of § 4 of the 1864 Act removing

coal and iron land from’ the “mineral lands” exception in’

the railroad’s grant, the railroad owned the coal and iron '

deposits underlying its right-of-way and that because of

such ownership, Wyoming acquired no interest in the

right-of-way upon the later grant to it of the traversed

sections. App. A, infra, pp. Xxx-xxxix.

‘ It is this decision whieh. petitioners ask this Court to.

' review. ’

REASONS FOR GRANTING THE WRIT

“This is the first case to present for decision the con-

flicting claims of the United States and one of its grantees .

of a tract of public land to the oil and gas deposits’ under-

lying that portion of the granted tract which is traversed

by a railroad right-of-way previously granted by the

United States. This Court has held that the United States

did not grant these deposits to the railroad companies

‘either under the 1862 Act here in question, United States

v. Union Pacific R. Co., 353 U.S. 112 (1957), or under the

General Right of Way Act of 1875, 18 Stat. 482, 43 U.S.C.

§§ 934-939, Great Northern Ry. Co. v. United States, 315

U.S. 262 (1942). In those cases the parties were the United |

States and the railroad companies, the United States was.

the owner of the tracts, traversed by the rights-of-way, and

this Court noted in Great Northern that, if it had not been,

- —l2—

it would not have been entitled to judgment. 315 US. at

979-280. Here it is unquestioned that the United States

granted to Wyoming the full fee simple title to both the

surface and minerals in the two traversed tracts, and that |

Wyoming still owns the minerals. The only issue is whether: .

the.grant also included the servient estate in the right-of- .

way, including the oil and gas deposits. The Court of Ap-

peals correctly noted that “the question is one of first

impression.” = pes |

Although the question is novel, construction of the

- applicable statutes is not, and the Court of Appeals has

‘construed them ina manner which is not in accord with

this Court’s construction in’ Union Pacific. The Court of

Appeals assumed, without discussion, that this, Court left

open the question whether § 4 of the amending Act of 1864

- removing coal and iron land‘from the “mineral lands” ex-

emption contained in the 1862 ‘Act, had any effect on the _

railroad’s right-of-way grant. ; ,

Proceeding on this assumption and the “narrow hold-

ing” of Union Pacific “that the railroad did not. get title to

the underlying oil and gas by virtue of the statutory

grant,” App. A. infra, p. ‘xxxviii, the Court of Appeals

construed the effect of the 1864 amendment, to be that by

the 1862 Act: a aa

“the railroad not only received a right-of-way with the :

etual and exclusive use of the surface, but also

- received the right to explore for, ‘develop and .mine

'. the underlying coal and iron.”

It concluded that Union Pacific’s right to mine the coal and ”

iron elevated its estate in the right-of-way to more than

_ a “surface easement” and that, accordingly, “title to the

Nn rn ern rar ‘

“JZ —13—

servient estate did not pass with the conveyance of the

- encumbered tract.” App. A, infra, p. xxxix. But, in con-—

_. struing §§ 2 and 3 of the 1862 Act in Union Pacific, this

Court said:

‘“The proviso [of §3 of the i862 ‘Act cnimaitii all

., ‘mineral lands’] makes sense if it is read to reserve

all mineral rights under the right-of-way as well as:

QO .

public lands granted in aid of the construction of the

road.” 353, US. at 115. 7 —? .

This ‘Court did not note that coat or iron or any other |

minerals were not embraced in the reservation of “all min-—

eral rights” nor did it note that it considered the “coal and |

iron land” provision of § 4 of the 1864 Act to be. an irrele-

vant ‘consideration in its construction of ‘the 1862 ‘Act. yn

Moreover, in concluding its review of Northern Pacific R..

Co. v. Townsend, 190 U:S. 267 (1903), and the eight other

limited-fee cases which had previously construed thite

same or like statutes, it said: |

“The most that the limited-fee cases decided. was

‘ that the railroads received all surface rights to the:

rights-of-way and all rights incident to a use for rail- —

‘ road ec aaa }

There is thus no precedent to support the Court of Appeals’

conclusion that these statutes granted the railroads ariy

miners rights in the right-of-way. Its ruling that-they did

‘is not in accord with their construction’ by this Court, un-

less the Court of Appeals was correct in its assumption .

that Union Pacific left. open for future decision the con-

struction ‘of § 4 of the amending Act of 1864. ied

A Ns tet Oe

‘to reserve mineral lands in the alternate sections ar

But if it did, its construction by the Court of Appeals

is not in accord with the considerations of principle and

' policy which guided this Court in Union Pacific, which are

equally applicable ‘here and which dictate the conclusion

that § 4 of the 1864 Act should be restricted to the grant

of alternate sections in § 3 of the 1862 Act and not ex-

tended to the’ right-of-way granted by § 2. These consider- |

ations were that the grant of “the right-of-way”, describes ”

a le er interest than the grant of “public land, “ Trion

Paéifi¢, 353 U.S. at 114; the right-of-way was granted for

oie purposes and extraction of minerals is not a rail-

road purpose, id.; the policy of the times to reserve min-

eral lands even when not specifically excepted, id. at 115-

- 116; the rule that.land grants are construed favorably to

the Government, id. at 116; and the lack of a procedure for

determining mineral character of the right-of-way and the

inappropriateness of such a test to the right-of-way grant,

id, at 116-118. This Court expressly stated that “these aré

' the reasons we construe” the 1862 Act as reserving alt min-

erals underlying the right-of-way. They are as applidable |

to the 1864 Act as to the 1862 Act. Therefore, if construction °

of the 1864 Act was an open question, its construction by

the Court of Appeals is ‘not in accord with the consider-

ations of principle and policy which should — guided its

decision. 7

- The decision of the Court of Appetle, i as well as of the

Secretary, also appears to be inconsistent with this Court’s

decision in Great Northern and with the current regulation

-which the Secretary issued in consequence of that decision.

In that case, it appeared upon the oral argument that.the : ‘

record did not show that the United States owned the -

tracts traversed by the railroad right-of-way. This Court

—

said “On this state of the record, the United States was not

entitled to.any judgment below.” But it permitted this de-

fect to be cured by stipulation filed after the oral argument,

. and the judgment for the United States was expressly

limited to the six -tracts covered by the stipulation. 315

U.S. ‘at 279-280, Following that decision, the Secretary

issued the following regulation: .

“The Government, conveys the fee simple title i in the

land over which the right-of-way is granted to the

person to whom patent issues for the e legal subdivision .

on which the right-of-way is located and such paten-

tee takes the fee subject only to the railroad company’s

right of use and possession.” 19 F.R. 9098, Dec. a 1954,

& CFR § 2234.2-2(b).

This is the same as the early regulation of May 11, 1909,

37 L.D. 788, which this Court cited in Great Northern. It

is true that post-1871 railroad rights-of-ways, granted un-

der the General Right of Way Act of March 3, 1875, 18

Stat. 482, 43 U.S.C. §§ 934-939, are the subject of both the

regulation and the decision in Great Northern, But this ;

Court held in Union Pacific that the change of Con-.

gressional policy which occurred in 1871 of no longer

granting land in fee in aid of railroad construction afforded

no basis for distinguishing between the pre-and post-1871 -

right-of-way grants. 350 U.S. at 119. It held that Northern

Pacific Railway Company v. Townsend, 190 US. 267, and °

other earlier limited fee decisions did no- more than -hold

that under pre-1871 right-of-way grants the railroads ac-

quired the exclusive use and possession of the surface for

- railroad purposes only. They acquire the same right under -

post-1871 grants. Great Northern, 315 US. at 272. Ac-

cordingly, the Secretary erred in basing his decision on the |

- , 2 —_ - Te nT Se Te, TEN er '

BNI CSA ct Bat Pin to Sis ¥ nse y |

=" a

fact that Union Pacific only distinguished, and did not over- |

rule, Townsend, and did not call the right-of-way an ease- . ae

_ ment. Since the dominant estates granted to the railroads

do not differ, the rights of the grantees and patentees ‘of

the encumbered tracts should be the same. The distinction

which both the Court of Appeals and the Secretary have |

drawn is an incongruity in the public land law of the na-

tion which is inconsistent with this Court’s rejection of any

distinction in Union Pacific. . 3

The question here presented is an important one, since

the interests of not less than seventeen States, as well as

countless individuals, will be affected, if not actually de-

‘termined by the decision of this case. This will appear from

App. B to this petition, infra, pp. xli-xliv, which shows

athe approximate length and location of the railroad rights-

of-way which. were constructed pursuant to Acts: of Con-—

gress enacted between 1862 and 1871, when the policy pre-

vailed of granting lands in fee in. aid of construction of

o the road in addition to rights-of-way across the public do-

‘main.! It shows that over 3,000 miles of railroad lying in

eight States (Iowa, Kansas, Nebraska, Colorado,'Wyoming,’ —

Utah, Nevada and California) were constructed pursuant

to.the Act here in question. An additional 4,400 miles lying

in nine other States (Minnesota, North Dakota, Montana,

Idaho, Washington, Oregon, New Mexico, Arizona and

Louisiana) were constructed by other railroad companies ;

pursuant to: five other grants which are similar to Union —

1 This appendix is a reproduction of App. B to the Governments = |

petition for certiorari in Union Pacific, except that we have added the

asterisks to show the grants which, like the one here in question,

contain a removal of coal and iron land from the mineral lands

exception to the place land grant. = = ;

pps ae ass meena Bi

_—17—

Pacific’s in that they grant. the right-of-way in practically

identical language and grant land in fee in aid 6f con-

struction of the railroad subject to the exception of “min-

eral lands” but excluding “coal and iron lands” from the.

exception. These rights-of-way form a vast network which _

crisscross the western half of the nation. In addition, the -.

school land grants to most, if not all, of the States in which

these rights-of-way lie contain the same exception of

“previously disposed of land” as is found in Wyoming’s

‘school land grant, e. g., Kansas, Act of July 29,. 1861, 12

i Stat. 127; North Dakota, South Dakota, Montana and

Washington, Act of February 22, 1889, 25 Stat. 679; Utah,

Act of July 16, 1894, 28 Stat. 107; Colorado, Act of March

3, 1874, 18 Stat. 474. : ,

Therefore, this case does not turn, nor do the claims of

the United States and Wyoming depend, upon any special __

or unique term or condition of either Wyoming’s brant or

Union .Pacific’s gra it. It would seem to'follow that decision

here will in practical effect determine the rights of all of :

_ the States and even: to whom the United States has

granted or patented tracts crossed by the a gae-ee-ey of |

_ these land pot railroads.

—18—.

CONCLUSION. .

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JAMES E. BARRETT

Attorney General,

State of Wyoming

STERLING C. CASE ,

First Assistant Attorney General,

State of Wyoming ‘

State Capitol Building

Cheyenne, Wyoming

Attorneys for-the State of Wyoming

_ McCurntock, Mar & URBIGKIT

By A. G. McCuintock

304 West 20th Street

Cheyenne, Wyoming

JAMEs B. Diccs

Rocer K. ALLEN

600 Oklahoma Mortgage Building

Oklahoma City, Oklahoma

. | Attorneys for Gulf Oil Corporation

September, 1967 : 5

APPENDIX A

UNITED STATES |

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

Washington 25, D. C.

if In reply refer to:

rt 6.05c |

) . ~ Wyoming: 0105263

- May 1, 1962

Certified Mail

Return Receipt Requested

- DECISION 7

- Gulf Oil Corporation . Toe CR

‘Union Pacific Railroad. Oil and Gas

Company : viet

Decision Vacated

This is an appeal by the Gulf Oil Corporation from a decision —

of the Chief, Minerals Section, Cheyenne Land Office, dated ..

December 29, 1960, inviting bids from the owner. of the ..

right-of-way grant. (Union Pacific Railroad Company) and

the owner of an oil and gas lease of State lands adjoining the .

’ right-of-way (Gulf Oil Corporation) as to the amount or

percentage of compensatory royalty each will agree to pay

_under the provisions of the Act of May 21, 1930 (30 U.S.C.

301-306) 43 CFR 200.80-200.87. The right-of-way lies in the

_ EY and the SW1%4 sec. 36, T. 19 N., R. 99 W., 6th P.M.,

Wyoming. Only the Union Pacific Railroad Company hes

offered to pay a royalty of 12% per cent covering portions

of its right-of-way in sec. 36.

Gulf Oil Corporation contends that the United States has

no interest or title in the minerals within the right-of-way

and that the minerals thereunder are vested in the State

of — |

ee er ee

—

A. —eJe

[APPENDIX] eo

The survey of T. 19 N., R. 99 W., 6th P.M., was approved

- December 20, 1884 and the center line of the Union Pacific

Railroad is shown on that plat. The Land Department uni-

formly has ruled that the States acquire vested rights in all

school sections in place.which are not otherwise appropri-

ated and not known to be mineral at the time of survey,

or at the date of the grant where the survey precedes it

(Wyoming v. United States, 255 U.S. 489-500). The title of

the State to the land in sec. 36 was acquired under the act

of July 10, 1890 (26 Stat. 222) providing for the admission i

of the State into the Union, and its rights became vested

upon the date of admission of the State under said act, if

the land was not then known to be mineral in character.!

The record reveals that the NEY, NEY4SWi, SWY4SWi

and NE, SE\4, above section, township and range, were

reconveyed by the State to the United States under sec. 8

of the Act of June 28, 1934 (48 Stat. 1269) as amended

June 26, 1936 (49 Stat. 1796) with a reservation of all

‘minerals to the grantor. The deed of conveyance was:

executed April 15, 1950. Title was accepted by the United

States January 8, 1952 and patent number 1135234 issued on

May 21, 1952. | :

The sole question presented by this appeal is: Are mineral

rights within the right-of-way in sec. 36 vested in the

United States or the State of Wyoming? The answer may be.

found in a determination of the type of estate conveyed by

the United States to the Union Pacific Railroad by the right- .

of-way grant of 1862,

Interpretations of recent pertinent decisions of the United

States Supreme Court concerning the nature of the vested

interest -in rights-of-way granted under the: Act of 1862

are found in Solicitor’s Opinion M-36597 (June 3, 1960).

Therein it was stated that the case of United States v. Union

“1 Nothing in the records indicates that on July 10, 1890, the lan =

sec. 36 were known to be mineral in character. sceleait

—H1—

[APPENDIX]

Pacific Railroad Company, 353 U.S. 112 1957) indicated

that most railroad rights-of-way grants were deemed to be

limited fees, conveying for the life of the fee, full title, in

the land and minerals even though, because of the express _

limitations.on the right of users, the right-of-way owner >

- could not mine and remove any minerals from the granted

lands. It was also pointed out that the limited fee doctrine

was narrowed considerably by Great Northern Railway

Company v. United States, 315 U.S. 262 (1942), which

limited its application as to railroad rights-of-way to those

‘ made to the so-called land grant railroads prior to the year.

1871. The Solicitor declared that the final blow was.dealt to

the limited fee doctrine so far as it applied to minerals in

right-of-way by United States v. Union Pacific Railroad .

Company, supra, wherein it was held that the land right-

of-way grant there under consideration (Act of July 1,

1862; 12 Stat. 489), did not convey the minerals in the

right-of-way, but, whatever the nature of the grant, it

related only to “all surface rights to the right-of-way and

all rights incident to a use for railroad purposes.”? Cf. H. S.

Davis, et al., A- 27758, etc. (January 30, 1959).

‘In view of the’ above, it must be considered that the grant

of the. right-of-way to the Union Pacific Railroad in 1862,

conveyed only the right to use the surface of the land for

‘ railroad purposes and that the United States retained the

title to sec. 36 subject only to the use by the railroad: It

logically follows that upon the admission of the State of

Wyoming into the Union it was vested with whatever rights

2 In grants of “right-of-way” over public lands to the railroads, the

quoted phrase means the right to use the grant of right-of-way for

the purpose of constructing, maintaining, and operating a r

thereon, and property rights of a railroad thereunder extend upward

for a space necessary for the use of its franchise and downward to a

line of support for its tracks and superstructure. United States v.

Great Northern Railway D. C. Mont. 32 F. Supp. 651 affirmed CCA

_ Mac Donald v. United States 119 F.2nd 821, modified on other

grounds 62 S. Ct. 529, 315 U. S. 262.

[APPENDIX) ,

_ the United States possessed atsthat time. The United States

not having been divested of its mineral rights, the. full title

to the lands (surface and subsurface) passed to the State

_upon its admission on July 10, 1890 suject only to the ~~

of-way to the Union Pacific Railroad.

In view of the foregoing, the Land Office! decision requiring

compensatory royalty bids was s improper and is hereby

vacated. .

_ The Union Paci Railroad is allowed the\right of appeal

to the Secretary of the Interior in accordance ‘with the

regulations in 43 CFR Part 221, as amended. Sée enclosed

Form 4-1365. If an appeal is taken the amount of the filing

fee will be $5.00. In taking an appeal there. must be strict ©

compliance with the regulations. -

‘If an appeal is. taken’ then the adverse party to be serves,

is:

Gulf Oil Corporation

Box 661

Tulsa 2, Oklahoma - ,

s/ Dale E. Zimmerman "

: Chief, Branch of Mineral

Leasing Appeals

Division of Appeals

Enclosure i , ; ee

DISTRIBUTION: | |

Union Pacific Railroad (Regular Mail)

F. J. Melia and J ames H. Anderson, Attorney at Law (Certi-

fied Mail)

Gulf Oi Corporation (Regular Mail) |

A. G. McClintock, Attorney at Law (Regular Mail)

Booth Kellough, Attorney at Law (Regular Mail)

Roger K. Allen,-Attorney at Law. er Mail)

— sasaaais sie ostaas aaaastiiieaaeneememermeia

. Appeals Reading File 82 eh oe

JBI. | an =

< , —_—V—

[APPENDIX]

Conservation Division, Geological Survey (3)

SD (Wyoming)

LO. (Cheyenne)

Chief, Division of Minerals

Case File

- Perm. File

Attorneys’ Reading File

i ae) me In reply refer to:

. 6.05c Ae

Wyoming 085043 —

UNITEDSTATES ~_—

’ DEPARTMENT OF THE INTERIOR

- Bureau of Land Management -

Washington 25, D. C.

June 12, 1962

Certified: Mail’

| Return Receipt Requested

DECISION

-Gulf Oil —— - eT | Oil, and Gas |

\Devision, Reversed '

Gulf Oil Corporation has appealed from the decision of the

‘Chief, Mineral Adjudication Section, Cheyenne Land Office,

dated September 7, 1960. The. -appeal is directed solely to

the N14, SW Sec. 16, T. 18N., R. 99 W., 6th P.M., .

Wyoming, lying within the right-of-way and station grounds

of the Union Peale Railroad Company. The decision in-' °

. ve

[APPENDIX] :

vited bids covering these lands from the owner of the

__ .ight-of-way grant (Union Pacific Railroad Company) and ©

. the holders of the oil and gas leases on adjoining State lands,

pursuant to the Act of May 21, 1930 (30 U.S.C., 1958 ed., |

secs. 301-306) and regulations thereunder, 43 CFR 200.80-

200.87. ; ' : :

Gulf Oil Corporation, the lessee of an oil and gas lease from

the State of Wydming on the lands adjacent to the right-of-

way, contends that the United States has no interest or title

in the minerals in the involved lands within the right of way -

and that the minerals thereunder have vested in the State

of Wyoming, Union Pacific Railroad Company, the owner of

the right-of-way entered its appearance. and refutes. the

position of the Gulf Oil Corporation, stating that the United

States has the full right, title and interest in and to all of-

‘the minerals underlying the subject lands and are leaseable

under the Act of May 21, 1930.

The survey of T. 18 N. R. 99 W., 6th P.M. Wyoming was .

approved September 8, 1877 and the center line ef the

Union Pacific Railroad is shown on that plat. The title to

_ the land in section 16 vested in the State of Wyoming on its

admission to the Union under the Act of July 10, 1890 (26

Stat. 222), if the land was not then known to be mineral in

character.! Cf. Wyoming y. United States, 255 U.S. 489-

500). The record reveals all of section 16 was reconveyed by

- the State to the United States under section 8 of the Act of

- June 28, 1934 (48.Stat. 1269), as amended, with a reserva- ,

‘tion of all minerals to the grantor by deed executed May 31,

1938. In a similar case, Gulf Oil Corporation et al, Wyoming

0105263 (May 1, 1962), this office held thaf the grant of the

right-of-way to the railroad conveyed only the right to wae

the surface of the land for railroad purposes and that the

United States retained the title thereto subject only to such

1 Nothing in the records indicates that on July 10, 1890, the lands in

section 16 were known to be mineral in character. )

~—

—vii—

[APPENDIX 1:

use by the railroad and upon admission of the State of

Wyoming into the Union it was vested with whatever rights

the United States possessed at that time. The United States

not having been divested of its mineral rights, ‘the full title

to the lands (surface and subsurface) passed to the State

upon its admission to the Union subject only to the right-of- ©

way to the railroad. ,

In view thereof, ‘the land office dubden including said

lands in the, invitation for bidding under said act was im-

.’. proper and it is hereby reversed.

When this decision becomes final the case will a remanded ~

to the Land Office through the Bureau’s State Director, --

Cheyenne, Wyoming for further. appropriate action con-

sistent with this decision.

The Union Pacific Railroad Cornpany is Minti the Tight .

of appeal to the Secretary of the Interior in accordance with

the régulations in 43 CFR Part 221, as amended. See. en-

_-closed Form 4-1365. If an appeal is taken the amount of the

‘filing fee will be $5.00. In taking an appeal. there must be

strict compliance with the regulations.

If an appeal is taken then the > adverse party to be served .

.is; « ~

Gulf Oil Corporation

Box 661

Tulsa 2, Oklahoma’ :

s/ John B. Piccolo

' Acting Chief |

| Division of Appeals —

Enclosure Pak -

DISTRIBUTION: , : |

Union Pacific Railroad Company c/o J ames H. c acne

(Certified Mail) —

Gulf Oil Corporation | (Regular Mail).

ae —viii—

[APPENDIX]

A. G. McClintock (Regular Mail)

Division of Minerals’ (3)

Geological Survey

SD (Wyoming) .

LO (Cheyenne)

Case File

Perm, File

Attorney’s Reading File

' Appeals Reading File

WJ ;

UNION PACIFIC RAILROAD COMPANY

A-29607

A-29686 ‘Decided FEB 16 1965

Oil and Gas—Railroad Grant Lands—Rights- of-way: Sete:

of Interest Granted—School Lands: Mineral Lands

The Secretary of the Interior has authority under the act .

~ May 21, 1930, to dispose of deposits of oil and gas

rlying the right-of-way granted to the Union Pacific —

‘ Rai road Company pursuant to the acts of July 1, 1862,

and July 2, 1864, even though the lands traversed by the

, right-of-way were later granted to a State as school lands.

—ix— 438

; [APPENDIX] Fs

- UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF THE SECRETARY

; Washington, D. C., 20240

_ A-29607

A-29686 ps }

~ - + Wyoming 0105263, 085043 «

Union Pacific Railroad ~ : Invitation for royalty ;

Company’ =-°. | : bids on oil and gas

: rejected - :

Reversed and remanded —

' APPEAL FROM THE: BUREAU OF

_ LAND MANAGEMENT

Union Pacific Railroad Company has appealed to the

Secretary of the Interior from decisions dated May 1 and

June 12, 1962, by which the Division of Appeals ‘of. the

Bureau of Land Management vacated one decision and re-

versed. another of the land office at Cheyenne, Wyoming,

inviting bids on royalty or compensatory royalty to be paid

on production of oil: and gas from railroad. right-of-way -

land within the E4 and the SW sec. 36, T. 19N., R: 99 W.,

and, among other lands, the N % and the SW sec. 16, T.

18N., R. 99 'W., 6th P.M., Wyoming.-'The decisions of the -

one of Appeals were based. on the ground that the ~

ineral estate in the right-of-way land is vested in the

'Sfate of Wyoming by reason of the State’s acquisition of

‘other land in sections 36 and 16 not included in the right-

of-way. : |

The land in section 36 was included in a plat of survey

approved December 20, 1884, and the land in section 16 in a

plat of survey approved September 8, 1877, both plats show-

ing the center line of the proposed railroad to be built by

the Union Pacific Railroad Company pursuant to the acts of

July 1, 1862, 12 Stat. 489, and July 2, 1864, 13 Stat. 356.

[APPENDIX] | ae ™

- Thereafter, on July 10, 1890, the Territory of Wyoming

achieved statehood, 26 Stat..222, at a time when the land in

the sections was not known to be mineral in character.

Under the terms of the Statehood-Act, the State took title

to sections 16 and 36 in each township within the State as

school sections. By deed dated April 15, 1950, the State of

Wyoming conveyed to the United States the NE4, NEY

SW\,, SWY%4SW, and NE4SE4 of section 36, reserving,

- . however, all minerals to the State. By deed dated May 31;

_ 1938, the State conveyed to the United States all of section

16 with a reservation of all minerals. On October 2, 1952,

the State of Wyoming leased all of sections 16 and 36 for

the removal of oil and gas to Raymond Chorney who as-

signed ‘his lease to Gulf Oil Corporation. It appears that

the lease made no mention of the Union Pacific right-of-way

traversing the school sections and the acreages indicated

are those of the full sections less eprom not material

here.

In 1954, the United States ernie an action in the

Federal district court for Wyoming seeking to enjoin the

Union Pacific Railroad Company from using its right-of-.

way for the purpose of removing gas, oil, and other minerals

and asking that title to minerals underlying the right-of-

,way be quieted in the United States. This litigation termi-

‘nated in a decision of the United States’ Supreme -Court ©

holding that under the language of the granting act of

July 1, 1862, supra, which excepts mineral lands, the. grant

of the right-of-way excepted the mineral interest. United

States v. Union Pacific R.R., 353 U.S. 112 (1957). In re-

sponse to the subsequent request of the Union Pacific Rail-

road Company, proffered after the establishment of oil

production in the Patrick Draw Field within which sections

36 and 16 are located, the land office in Cheyenne issued two

separate invitations to the Union Pacific Zailroad Company,

as owner of the right-of-way, and Gulf Oil Corporation, as

lessee: of land adjoining the right-of-way, for bids on the

amount or percentage of royalty to be paid on oil and gas

. .

eI ee raha sneis. : ize vet - Sites Wile Bandini in tt Pere weer ri Eatiat " Z P F .

OGRE in Dab itso é Sesh ie i Sh sO ER Nae a 0 is salsa ing

: - .

. . = ° .

| Dae / —xi— .

[APPENDIX]

production from the. right-of-way in the event of an award

of a lease to Union Pacific on the right-of-way “land and

on the amount or percentage of compensatory royalty to

be paid by Gulf for extraction of oil and’ gas under the ~

right-of-way from wells on the adjeining land under the act -

of May 21, 1930, 46 Stat. 373, 30 U.S.C. §§ 301-306 (1958). -

Union Pacific submitted a bid in the amount of the

_ minimum royalty acceptable but Gulf appealed, asserting

‘that the United States has no right, title, or interest in the

minerals within the right-of-way because such minerals

were vested in the State of Wyoming at -the time of its ad-

mission to the Union. It contended that by the Statehood

Act every incident of a fee simple title to the school sec-

tions held by the United States on J uly 10, 1890, vested in

‘the State of Wyoming, that because the Supreme Court

held in 1957 that Union Pacific has no estate in minerals

underlying the right-of-way! and it is undisputed that

sections 16 and 36 were surveyed and not known to be

mineral on July 10, -1890,. the minerals -underlying ‘the

right-of-way passed to the State by virtue of the school

grant in the Statehood Act. It asserted that the Department

of the Interior cannot conclusively adjudicate the title of:

the State of Wyoming to the minerals but, nevertheless, re-

quested that the Department disclaim all right, title, inter-

est, claim, or demand to the minerals, including oil and gas,

in the right-of-way land.

1 This litigation did not relate to coal and iron and the judgment

entered pursuant t6 the decision of the Supreme Court declares

expressly that it does not purport to determine the. rights of the °

Parties with respect to the ownership of or right to remove coal and ,

iron deposits in and from the right-of-way and is without prejudice,

as far as issues relating to coal and iron deposits are Concerned, to the

rights of either party. This reflects the language of section 4 of the

act of July 2, 1864, supra, which expressly excltides coal and iron

land from the term “mineral land” as used in the act. Subsequent

references in this decision to minerals are to be read with this quali-

fication as to coal and iron.

xii

[APPENDIX] — ey

The Division of Appeals agreed that upon the admission - -

. of the State of Wyoming the State was vested with what-

ever rights in sections 16 ‘and 36 the United States possessed

at that time and that, since the United States had not di-

. vested itself of mineral rights in the right-of-way land, full

title, both surface and subsurface, to sections 16 and. 36

passed to the State subject _ to” the right-of-way held by

Union Pacific.

In its appeal to the Secretary, Union Pacific pean

that the United States has the full right, title, and interest

in minerals underlying the. right-of-way and thus has full

authority to call for royalty bids and ‘to issue leases. It

predicates this conclusion upon the contentions that the |

Supreme Court did not hold in United States v. Union

Pacific R.R., supra, that Union Pacific has only an easement

of the same nature as the grants of rights-of-way under the

act of March 3, 1875, 18 Stat. 482, 43 U.S.C. §§ 934-939

(1958) ; and that there is no precedent for the assumption of .

the Division of Appeals that it follows as a matter of course

that minerals in right-of-way land pass to the patentee. or

grantee of land traversed by the right- -of-way.

The question thus presented by this appeal is whether

the Secretary of the Interior has authority to dispose of oil

and gas deposits in the Union Pacific right-of-way under

the act of May 21, 1930, supra, as property of the United.

States, or whether the Secretary lacks such authority be-

cause the minerals retained by the United States under the

railroad grant subsequently passed to the State of Wyoming

under the school grant to the State of the legal subdivisions _

traversed by the right-of-way. rf

Until the 1957 decision in United States v.. Union

Pacific R.R., supra, the appeal would have presented no

novel problem. The nature of a railroad’s interest in its

right-of-way had been the subject of extended consideration

_ in cases which set out all the principles pertinent to the dis-

—xili—

[APPENDIX

position of this conflict. It seemed settled that the railroad

right-of-way acts gave the railroads a limited fee in their

rights-of-way ‘subject to a possibility of reverter to the

United States; that neither the railroads under the grants

of the rights-of-way nor the railroads, the States, or other

grantees of the lands through which the railroad rights-of-

way passed received the rights to exploit the oil and gas

underlying the rights-of-way; and that the United States

alone could dispose of the oil and gas and then only pur-

suant to the act of May 21, 1930, supra. A. Otis Birch and

M. Estelle C. Birch (On Rehearing), 53 I.D. 340 (1931);

State of Wyoming, 58 I.D. 128. (1942); Solicitor’s opinion,

58 I.D. 160 (1942) ; Phillips Petroleum Company, 61 ID. 93

~ (1953), and cases cited therein.

It is true that in Great Northern Ry. v. United States,

315 U.S. 262 (1942), the Court held that rights-of-way

granted under the act of March 3, 1875, supra, are easements

only, not fees, and confer.no right in a railroad to oil and

other minerals underlying the right- of-way and that the

United States was entitled to an injunction enjoining the

railroad from using the right-of-way for the purpose of

drilling for or removing oil and gas underlying the right-

of-way insofar as it passed-through tracts owned by the

United States. The Department, however, held that that

decision did not change the rights of a State to minerals

_underlying the Union Pacific right-of-way granted by the

1862 act in lands which had passed to the State under its

school land grant. State of Wyoming, supra. —

| In United States v. Union Pacific R. R., supra, the Court

held that the United States was entitled to an injunction en-

joining the railroad from drilling for oil and gas on the

“right-of-way”: granted to it by the acts of 1862 and 1864,

supra. It held, contrary to the conclusions of the courts

below, that in view of the exclusion of mineral lands from

the grant to the railroad and the ‘public policy of’ the times

the grant did not include mineral rights. In disposing of

: se sha

[APPENDIX] ’

~ the railroad’s claim, it pointed out that, even isa a right-

of-way may at times be more than an easement, it did not

follow in such a case that the owner of the right-of-way was - :

given the mineral rights as against the United States. The

dissent would have affirmed the. decisions below holding

_ that the grant of the right-of-way included the minerals.

The Union Pacific case has settled the conflict between ©

the railroad and the United States over the rights to sub-

surface oil and gas and other minerals in favor of the

United States. This appeal raises anew the issue of whether

these rights remain in the United States or pass to the

subsequent patentee or grantee of lands traversed by the

railroad. oa ie 7

As we have 8 seen, when the limited fee concept reigned

- unchallenged, the- Department and the courts held re-

-_peatedly that a subsequent grantee or patentee of such lands

took no right whatsoever in the right-of-way. The Supreme

Court in Northern Pacific ‘Ry. v. Townsend, 190 U.S. 267,

270, said: |

“At the outset, we premise that, as the grant of the

‘right of way, the filing of the map of definite location,

‘ and the construction of the railroad within the quarter

section in question preceded the filing of the home-

stead eritries on such section, the land forming the

right of way therein was taken out of the category of

public lands subject to preemption and sale, and the

land department was therefore without authority to .

convey rights therein. It follows that the homesteaders

acquired no interest in the land within the right of

way because of the fact that the ous to them was of

the full legal subdivisions. wi

While this reasoning no longer applies to lands crossed

~ a right-of-way granted under the 1875 act, supra, and

the Department recognizes in such cases that mineral rights

go to the subsequent patentee subject to the dominant rights

pT i

—xVv—

: [APPENDIX]

of the railroad right-of-way?, the Union Pacific case, supra,

did not hold that a pre-1875 right-of-way-had no more effect |

than one granted under the 1875 act. .

On the contrary, a comparison of the Great Northern

_ decision and the Union Pacific decision demonstrates that

the Union Pacific. case left unaltered the rule that a right- —

of-way obtained under the 1862 and 1864 acts, supra, sepa-

rated the land from the public domain and that subsequent

grantees of lands traversed by the right-of-way gained no

* rights in it.

\In Great Northern Ry., supra, the Supreme Court ‘re-

quired the United States to show that it had retained title

to certain tracts of land through which the right-of-way.

passed and limited its judgment to those tracts. 315 U.S. 262,

279-280 (1942). : :

The Union Pacific opinion, however, is devoid of any

reference to a requirement that the United States own any

land crossed .by the right-of-way as a preréquisite to a

_ judgment in its favor. This omission is particularly striking

because the case was tried on stipulated facts, one of which

was that. the title to the minerals in the particular tract, the -

“subject of the litigation, the E44NW1 sec. 24, T. 13 N., R.

68 W., 6th P.M., Wyoming, which was crossed by the right-.

of-way, was in the United States. Yet, despite this limita-

tion, the judgment of the district court, upon the judgment

and mandate of the Supreme Court, enjoined the railroad

from drilling for or removing oil and gas and other minerals

in and underlying “the right-of-way granted * * * pursuant

to the Act of July 1, 1862,” and quieted the title of ‘the

United States to the oil, gas and other minerals in and

underlying “said right-of-way.” The judgment was thus in

terms applicable to the entire right-of-way and it has been

so construed by the railroad. See appellant’s brief, pp. 6-7.

2 See: Northern Pacific Ry. V. United States, 277 F.2d 615 (10th Cir.

1960); Chicago & Northwestern Ry. v. Continental Oil Co., 253 F.2d

468 (10th Cir. 1958).

e el ka “ ets ards bias pik. ‘se aibie iti

—xvi— -

[APPENDIX] : = . pat tar .

That the Supreme Court did not intend to change the

settled law governing the rights of subsequent grantees or

patentees of lands traversed by the right-of-way seems

apparent from its discussion of N orthern’ Pacific Ry. v.

Townsend, supra. There it was held that a subsequent home-

_ steak entry could not be established on the railroad right-

of-way .after the right-of-way had been located and the |

tracks laid, and that the railroad had in effect been granted

a limited fee subject to an implied condition of reverter.

While in Union Pacific the Court held that the Townsend —

- ease did not settle the question of ownership of the under-

lying minerals between the railroad and the United States,

it did not say that the Townsend and other “limited fee”

_ eases involving pre-1875 rights-of-way were wrong, a con-

clusion that would have enabled it to dispose of the major —

issue under the holding in the Great Northern Ry. case,

_ supra. Having held that, under the granting act and the

~ general policy of Congress, it could not conclude that the .,

- railroad had been given the mineral rights, the Court said -

only:

> «“* * * The most that the ‘limited fee’ cases decided was

that the railroads received all surface rights to the

right of way and all rights incident to.a use for railroad

purposes.” 353 U.S. at 119. ©

It did not hold that the railroad had only an easement.

As we have’ noted, the Court pointed out that the

limited fee cases involved conflicts. between the railroad -

and third. persons, Here the United States, having es-_

tablished its rights to the underlying minerals vis-a-vis the

railroad, stands in its stead against the subsequent patentee

‘or grantee.

Just as the Court held in Townsend, supra, that a subse-

quent homesteader cannot acquire rights against the rail-

-road, so here the State, a subsequent grantee, can acquire

no rights against the United States which holds all the inter-

est in: the right-of-way not held by the railroad.

. *

aoe —

eam Setcnanissiaid EEE, GE CE

—xvii—

[CAPPENDIX1

__, Whatever the exact nature of the estate created by

the 1862 and 1864 acts may be, it is clear that ‘it is more than

an easement and sufficient to take the lands covered by the

right-of-way out of the category of public lands subject to

further disposition to the State.*

_ The Solicitor’s opinion, 67 -I.D: 225 (1962), on which

the decision below relied, is not to the contrary. It.merely

held that leaseable minerals other than oil and gas under- .

lying rights-of-way could be disposed of pursuant to the

Mineral Leasing Act, 41 Stat. 437, as amended, 30 U.S.C.

§ 181 et seq. (1958), whether the right-of-way be con-

strued as an easement or a “limited fee.” It did not con-

clude that minerals underlying the “limited fee” rights-of-

_ Way passed with a patent of the lands crossed by such a

right-of-way. Lie

* Gulf places great reliance upon the departmental de-

cision in Abilene Oil Company v. Choctaw, Oklahoma &

Gulf Railroad Company, 54 I.D. 392 (1934), which held that

a grant by the United States conveying a quarter section.

of public land over which a railroad right-of-way had

previously been granted under the act of February 18, 1888,

25 Stat. 35, carried with it, in the absence of further ex-

- ception ‘or reservation, the entire interest left in the United -

‘States, so that the United States no longer had an interest

in the oil and gas deposits under the right-of-way which it

could lease under the act of May 21, 1930, supra. While the

decision referred to prior departmental decisions holding

that the’ grantee of lands crossed by a railroad right-of-way

‘had no right to the minerals under it, it did not purport to

® That: Congress assured: that no interest in the railroad right-of-way —

passed to a subsequent grantee or patentee is evident from the

several statutes it enacted granting to such persons the lands in the

rights-of-way upon forfeiture or abandonment by the railroad. Act of

June 26, 1906, 34 Stat. 482; act of February 25, 1909, 35 Stat. 647,

- 43 USC. §940 (1958); act of March 8, 1922, 42 Stat. 414, 43 US.C.

§912-( 1958). . |

eee ee —xviii—

[APPENDIX]

overrule them, but found that in this instance Congress had ©

intended to dispose of all of the interest of the United States

in the right-of-way, including the possibility of reverter, and '

concluded that the United States had no interest in the —

right-of-way at all. Since it left intact prior rulings on the

effect of a railroad right-of-way on subsequent patents of

the lands crossed by the right-of-way and was not followed

or even cited in later departmental considerations of the

specific problems involved in this appeal (State of ig

oming, supra) Solicitor’s opinion, 58 I.D. 160, supra), it |

cannot be considered to have been intended as a departure

from the uniform view of the courts’ and the Department

that the mineral rights under the Union Pacific railroad

right-of-way’ remained in the United States. It stands, . | ‘

- rather, solely as an. interpretation of the particular limited

statute there under consideration.

Accordingly, it #s,concluded the Union Pacific case did

not change the previously established law that. only the

United States had the rights to minerals underlying pre-

_ 1875 act rights-of-way, that the oil and gas deposits under-

lying the Union Pacific’s right-of-way are irt,the United

States, and that the land office properly | sought. to dispose

. of them pursuant to the act of May 21, 1930, supra.

Therefore,<pursuant to the authority delegated to the

‘Solicitor by the ‘Secretary of the Interior (210 DM.

2.2A(4) (a) 24 FR. 1348), the decisions of the Bureau of

Land Management dated May 1 and June 12, 1962, are re-

versed and the cases remanded for further procéedings con-

sistent herewith.

/s/ FRANK J. BARRY

Solicitor

‘

”

_» Davin B. Morean, Acting Manager,

[APPENDIX]

IN THE UNITED STATES DISTRICT-COURT

' FOR THE DISTRICT OF WYOMING.

ee THE STATE or Wyominc and Gutr Om )

CorPoRATION, a corporation, )

: Plaintiffs, )

=" )

STEwarrT L. UDALL, individually and )

as, Secretary of the Interior; )

Ep PIerson, individually and‘ as )

’ Supervisor for the State of Wyo- | PRT ee ee

ming, Bureau of Land Management, ) No. 4913 Civil.

Department of the Interior; and. )

.Oil & Gas, Cheyenne, Wyoming | )

, Land Office, Bureau of Land. ‘Manage-. )

ment, Department of the Interior, )

Defendants.. )

See Pactric RaILROAD Company,a _—)

corporation, . )

Intervenor. )

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

“The above entitled matter having come on regularly

~ before the Court, John F. Raper, Attorney General of the

- State of. Wyoming, and Dean Borthwick, Deputy Attorney |

General, appearing as counsel for the State of Wyoming,. -

and A. G. McClintock and Roger Allen appearing as counsel

for plaintiff Gulf Oil Corporation, Robert N. Chaffin, United

States Attorney for Wyoming, and Thomas L. McKevitt,

Attorney, Department of Justice, Washington, D: C., ap-

pearing as counsel for def@hdants, and F. J, Melia, J. H.

Anderson, B. T. Lazear and Frederick G. Loomis appearing

as counsel for Union Pacific Railroad Company, Intervenor,

: the Court monte the arguments of counsel; and having taken

raat ti . —xx—

[APPENDIX]

the matter under advisement, carefully examined the

record on file herein, including the Stipulation of Facts to

‘ which all the parties agreed, and their exhibits on file

herein, and the memorandum briefs ‘submitted by all coun-

sel, and being fully advised in the premises, the Court

does hereby make the following Findings of Fact and Con-

clusions of Law: ar

FINDINGS OF FACT.

«4. "This is a civil action in which plaintiffs seek a

judicial review of the order and ruling of the Secretary of

Interior acting through his authorized delegate, the Solicitor,

in decision of the Solicitor dated February. 16, 1965 (72

LD. 76), in Wyoming 0105263 and 085043, and a declaration

that said order and ruling are null and void; and plaintiffs

- geek also a declaratory judgment that the State of Wyoming

is the owner of all the oil and gas underlying the right of

way of Union Pacific Railroad Company in Section 16,

Township 18 North, and Section 36, Township 19 North,

Range 99 West, 6th P.M., Wyoming, and a declaratory

judgment that the Secretary of Interior, acting through his

authorized delegate, the Assistant Manager, Oil & Gas, of

the Cheyenne, Wyoming Office of the Bureau of Land Man-

agement, had and have no power or authority to issue oil

. and gas leases covering the oil and gas underlying such

right of way pursuant to the Act of May 21, 1930 (46 Stat.

373, 30 U.S.C.-301-306), or any other federal act. Plaintiffs

seek also an order enjoining Stewart L. Udall, the Secretary

of the Interior, Ed Pierson, Supervisor for the State of

Wyoming, Bureau of Land Management, and David B.

Morgan, Assistant Manager, Oil and Gas, Cheyenne, Wyo-

ming Office of the Bureau of Land Management, from taking.

any further action to invite, receive, or act upon bids under

the Act of May 21, 1930, or any other federal act, for the

issuance of oil and gas leases covering the oil and gas under-

lying such right of way: 3

“<s

me —xxi— |

G [LAPPENDIX}.

2. Gulf Oil Corporation, hereinafter referred to as

Gulf, is a.corporation duly organized and existing under

the laws of the State of Pennsylvania. Its principal office is

in the city of Pittsburgh, Pennsylvania. It has and is now

qualified to do business i in the State of Wyoming.

3. Defendant Stewart L. Udall is a resident of the Dis-

trict of Columbia and is.the duly appointed, qualified and .

acting Secretary of the Interior of the United States of

America. Defendants Ed Pierson and David B. Morgan,

hereinafter referred to as Pierson and Morgan, are each

citizens, of the State of Wyoming, Pierson being the duly

appointed, qualified and acting Supervisor and Morgan

being the duly appointed, qualified and acting Assistant

Manager, \ Oil and Gas, of the Cheyenne, Wyoming Land

Office of the Bureau of Land Management, Department of

the Interior.

4. Intervenor, Union Pacific Railroad Company, here-

inafter referred to as Union Pacific, is a corporation or-

ganized and existing under the laws of the State of Utah.

Its principal place of business is in the city of Omaha,

Nebraska. If has qualified to do business in the State of

Wyoming, and is now engaged in the ownership and oper-

ation of a railroad in Wyoming wath traverses the land

involved in this action.

5. The question involved herein is whether the Secre-

tary of the Interior has authority to dispose of oil and gas

deposits in the Union Pacific right of way under the Act

of May 21, 1930, (46 Stat. 373), as property of the United

, States, or whether the Secretary lacks such authority be-

cause the minerals retained by the United States under the

railroad grant subsequently passed to the State of Wyoming

under the Act of July 10, 1890 (26 Stat. 222), granting

school land to the State. Exclusive of interest and costs, the

value of oil and gas rights underlying the land in question

is in excess of Ten Thousand Dollars ($10,000.00). .

—xxii—

[APPENDIX] . *

6. By the Act of July 1, 1862 (12 Stat. 489), as

amended by the Act of July 2, 1864 (13 Stat. 356), the

United Statés granted to a'predecessor in title of the Union

Pacific a right of way 400 feet in. width through the public

lands of the United.States for the construction of a railroad

and telegraph line. Union Pacific succeeded to the rights of

the original grantee under said Acts and it and its prede-

cessors have complied in all respects with the provisions of

the said Acts, and a predecessor of Union Pacific constructed

a railroad and telegraph line on said right of way. Union

Pacific, or a predecessor thereof, is now and has been at all

times pertinent hereto using the right of way for the pur-

poses set forth in said Acts. No portion of the right of way

involved in this action has been abandonéd.

7, The survey of Township 18 North, Range 99 West,

6th P. M., duly approved by the Surveyor General, was

filed in the Cheyenne Land Office effective as of September

8, 1877, and the survey of Township 19 North, Range 99

West, 6th P. M., duly approved by the Surveyor General,

was filed in the Cheyenne Land Office effective as of De-

cember 20, 1884, and each purports to show the center line

of Union Pacific’s railroad as actually constructed by a

predecessor under the Acts of July 1, 1862, ‘and July 2, 1864,

prior to 1877 but no earlier than 1868, traversing a part of

Sections 16 and 36 involved herein. At the time of approval

of the surveys referred to above‘and. upon adoption of the

Act of July 10, 1890 (26 Stat. 222), admitting the Territory

of Wyoming to Statehood, Sections 16 and 36 involved

herein were not known to be mineral in character.

8. By the Act of July 10, 1890 (26 Stat. 222), the

United States granted to the State of Wyoming sections

numbered 16 and 36 in every township of Wyoming for the

support of the common schools, or equivalent lands in lieu

thereof where Sections 16 and 36 or any parts thereof had |

been sold or otherwise disposed of by or under the au-

thority of any Act of Congress. All mineral lands were

—xxiii—

[APPENDIX}

exempted from said grants, and the state was authorized to

select unappropriated lands in lieu of any sections 16 or 36

or parts thereof found by the Department of the Interior to

be mineral lands, re, ,

9. No if lieu selection pursuant to Section 4 of the Act

of July 10, 1890, and Section 2275 of the Revised Statutes

43 U.S.C. 851) has ever been made by the State of Wyoming

for land equivalent to the land occupied by Union Pacific

_as its right of way under the foregoing Acts.

10. The State of Wyoming executed and:delivered to

the- United States a deed dated May 31, 1938, covering all

of Section 16, and a deed dated April 15, 1950, covering the

NEY, NEYSWY, SWY%4SW%, and NESEY of Section

36, reserving however to the State of Wyoming, its suc-

, cessors and assigns, all minerals, including coal, oil and gas,

and any mineral of any other character and mineral rights

‘in and to’ said premises and the right of ingress and egress

to said premises and the use of so much of the surface

thereof as may. be necessary to prospect for, develop and

- remove such minerals, or any part thereof.

11. The State of Wyoming, acting by and through its

duly authorized Board of Land Commissioners, issued oil

and gas lease bearing Serial No. 0-13548, under date of

October 2, 1952, to Raymond Chorney, which lease described .

all of Section 36, Township 19 North, Range 99 West, 6th

. _ P. M., except 14.7.acres conveyed to Union Pacific as afore-

said. By Assignment dated June 24, 1953, Raymond Chorney

assigned such leasehold estate to Gulf, who now holds the

same. : ;

12. The oil and gas lease issued by the State of Wyo-

ming under Serial 0-13547 under date of October 2, 1952,

describing, among other lands, all of Section 16, Township

18 North, Range 99 West, 6th P.M., was subsequently. as-

_ signed to Gulf, and has expired since the initiation of the

proceedings hereinafter referred to. Gulf does not now

—xxiv—

[APPENDIX]

assert any right, title or interest in and to the oil, gas or

kindred hydrocarbons under any portion of said Section 16.

13. By application dated March 24, 1960, Union Pa-

cific, pursuant to the Act of May 21, 1930 (46 Stat. 373),

applied to the Manager, Cheyenne Land Office, -Bureau of

’ Land Management, for an oil and gas lease covering, among

other land, the railroad. right of way lands in Section 16

and by like application dated May 3, 1960, applied for a

lease covering Section 36. Said applications: resulted in the

decisions of the Land Office dated September 7, 1960, and

December 29, 1960, inviting royalty bids from-Union Pacific

as the owner of the right of way and compensatory, royalty

bids from Gulf as the owner of the oil and gas leases ad-

joining the right of way within Sections 16 and 36.

14. Gulf appealed the foregoing decisions of Septem-

ber 7, 1960 and December 29, 1960 to the Director, Bureau

of Land Management. By decisions dated May 1 and June

12, 1962 (Wyoming 0105263 and 085043), the Director held

that whatever rights the United States possessed in the .

‘ rights:of way in question vested in thé State of Wyoming

upon its admission to the Union and accordingly held the

_invitations to bid to have been improper and reversed and

remanded each of the decisions. Union Pacific appealed each °

of the ‘decisions of the Director to the Secretary of the

Interior, who consolidated the same. By Solicitor’s-opinion

dated’ February 16, 1965 (72 I.D.. 76), entered in the con-

solidated cases, the Director’s decisions were reversed and

it was held that title to oil and gas deposits underlying.

Union Pacific’s right of way was vested in the United

States and the:cases were remanded for further proceedings

consistent with such ownership by the United: States. The

‘State of Wyoming was ‘not a party to any of the foregoing

proceedings in the Department of the Interior. Plaintiff Gulf

has exhausted all of its administrative remedies ‘with re-

spect to the issues involved in the Solicitor’s Opinion ¢ dated

eens 16, 1965. '

—XXV—

(APPENDIX)

15. Plaintiffs instituted this action on.May 17, 1965,

and thereafte? on May 26, 1965, defendant Morgan as Acting

Manager, Oil and Gas, Cheyenne Land Office, Bureau of

Land Management, issued United States Oil and,Gas Lease

Serial No, Wyoming 0105263 to Union Pacific, describing its

' right of way acquired pursuant to the Acts of J uly 1, 1862

and July 2, 1864 within the E14 and SW, of Section 36.

Gulf has appealed the decision and action of May 26, 1965,

on the ground that the lease issued thereby was issued con-

_trary- to the Act of May 21, 1930. Such appeal does not in-

volve and will not further adjudicate, within the Depart-

ment of the Interior, ‘the question of ownership of oil, gas

_and other kindred hydrocarbons underlying Union Pacific’s

-right of way.

CONCLUSIONS OF LAW —

1. The Court has jurisdiction of the parties and subject ..

matter of this action brought pursuant to 5 U.S. C. Section

‘1009, and 28 U.S.C. Section 2201.

- % By the Acts of J uly 1, 1862, as amended by the Act

of July 2, 1864 (12 Stat. 489, 13 Stat. 356), the United —

States granted to Union Pacific Company’s predecessor a

right of way through public lands for the construction of

the railroad and telegraph line. Said grant did not.convey

to Union Pacific the title to oil arid gas deposits underlying

the right of way, the United States reserving all mineral :

rights under said right of way. United States v. Union Pa-

cific Railroad Co., 353 U. S. 112 (1957).

- $3. Mineral lands are specifically exempted from the

grants made by Séction 13 of the Act of July 10, 1890 (26

_ Stat. 222). The term “mineral lands” as used in that Act

must be construed to include the mineral rights in the right:

. - of way granted to the Union Pacific by Section 2 of the Act

of July 1, 1862, as amended by the Act of July 2, 1864, and

therefore all mineral rights under the Union Pacific’s right

of way are exempted from the grants from the Uattes States

to the State of Wyoming. ;

—xXxvi—

[APPENDIX]

4. The State of Wyoming, under the Wyoming State-

hood Act of July 10, 1890 (26 Stat. 222), did not acquire any:

- interest in and now has no right, title or interest in that

strip of land 400 feet in width granted to Union Pacific’s

predecessor in interest under the Act of July 1, 1862 (12

Stat. 489), as amended by the Act of July 2, 1864 (13 Stat.

356), for a right of way for the construction and operation of

a railroad across Section 16, Township 18 North, and Sec-

tion 36, Township 19 North, Range 99 West of the 6th P. M.,

Sweetwater County; Wyoming. The Gulf Oil Corporation,

‘as lessee of the State of Wyoming, did not acquire and ‘does

~ not have any right, title or interest in said strip of land or

in the oil and gas therein. . .

5. Title to all oil and gas ‘underlying said strip of land

_referred to in Paragraph 4 of the Conclusions of Law is in

the United States of America.

6. The order and ruling of the defendant the Niece

of the Interior, acting through his authorized delegate, the

Solicitor, dated February 16, 1965 (72 I.D. 76), in Wyoming

0105263 and 085043, is not arbitrary or capricious, does not

constitute an abuse of discretion, and is not otherwise: con-

trary to law; and said decision is supported by the facts and

the law. e

7. The Secretary of the Inferior has the power and

-authority to issue oil and gas leases covering the oil and gas.

underlying such right of way;pursuant to the Act of May

21, 1930, 46 Stat. 373, 30 U.S.C. §§ 301, et seq. .

- 8. The action of the Cheyenne Land Office pursuant

- . to the Act of May 21,1930, supra, to lease the oil and gas -

deposits underlying the said right of way to Union vor :

was in all respects just, true and correct.

9: Judgment should be entered in favor of defendants

and in favor of intervenor, Union Pacific Railroad Com-

. pany, and sand the plaintiffs, each and to pay its own

_ costs.

| | —xxvii—

. [APPENDIX]

Dated this 30th day of June, 1966.

EWING T. KERR |

| Judge.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING.

Tue State pF Wyominc and Guir Om _—Cé*”»

CORPORATION, a,corporation, — )

- Plaintiffs, )

vs. a

_ Stewart L. Upatt, individually and -__)

‘ as Secretary of the Interior; )

Ep Pierson, individually and as )

Supervisor for the Staté of Wyo- )

ming, Bureau of Land Management, ) No. 4913 Civil.

Department of the Interior; and ) i

Davin B. Morcan, Acting Manager, __)

' Oil & Gas, Cheyenne, Wyoming Land )

Office, Bureau of Land Manage- )

ment, Department of the Interior, )

etn ’ Defendants. — )

Union Paciric RArLRoap ComMPANY, a )

corporation, os —

me ; - Intervenor. )

JUDGMENT OF DISMISSAL.

The above entitled matter. having come on regularly

before the Court, and the Court having-taken said matter

under advisement, and having considered the pleadings and

the stipulation of facts, constituting the entire record in the

case, and having heard and ‘considered the arguments and

briefs of counsel, and the Court having prepared and filed

herein its Findings of Fact and Conclusions of Law holding .

| —xxvili—

: [APPENDIX]

~ generally against the plaintiffs and in ‘favor of the defend-

ants and intervenor, and being fully advised | in the premises,

‘it is

ORDERED that the plaintiffs take nothing by their

‘complaint and that they go hencé without day, and that the

complaint, together with the cause, be, and the same is

hereby, dismissed with — each party to pay its own |

* eosts.

Dated this 30th day of June, 1966.

EWING T. KERR

Judge.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING.

—

THE STATE OF WYOMING and GuLF OIL _sS#sS?)

CORPORATION, a corporation, _ )

Te Plaintiffs, )

vs. )

” Srewant L. UDALL, individually ands)

as Secretary of the Interior; . )

Ep PIERSON, individuajly and as )

Supervisor for the State of Wyo- y eae

ming, Bureau of Land Management, ) No. 4913 Civil.

Department of the Interior; and ) , :

Davip B. Morcan,.Acting Manager, __+)

Oil & Gas, Cheyenne, Wyoming Land .)

Office, Bureau of Land .Manage- )

ment, Department of the Interior, )

¥ Defendants. )

Union Pactric RAILROAD CoMPANY, a )

corporation, " +)

)

Intervenor.

—s<

—xxix— :

hs . | [APPENDIX]

ORDER AMENDING CONCLUSIONS OF LAW.

The above entitled matter having come on regularly

before the Court upon the plaintiffs’ Motion to amend Para-

graph 8 of the Conclusions of. Law made and entered

herein on thé 30th day of June, 1966, and the Court being -

fully advised in the premises, . _ .

IT IS ORDERED that Paragraph 8 of said Conclusions —

of Law be; and the same is hereby, amended to read as fol-

lows: |

, “8. The action of the Cheyenne Land Office ‘pursu-

ant to the Act of May 21, 1930, supra, to lease the oil and -

gas deposits underlying the said right of way to Union

Pacific was in all respects just, true and correct. Providing,

however, that this Conclusion of Law shall not apply to the °

issuance of United States Oil and Gas Lease Serial No. -

Wyoming 0105263 to Union Pacific Railroad Company, on

May 26, 196% which matter is now pending on appeal by

_ Gulf Oil Coffforation to the United States Department of

the Interior.” . An

Dated this 12th day of July, 1966.

‘ EWING T. KERR :

Judge. ©

—xxx—

[APPEND!IX]} :

‘FI L ED

_ United States Court of nie

Tenth Circuit

JUN 14 1967

WILLIAM L. WHITTAKER

Clerk ©

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 9095 - MAY TERM, 1967"

THE STATE oF WYOMING‘and GULF OIL

CORPORATION, a corporation,

. Appellants,

"ee = | Received .

Stewart L. UDALL, individually and Jun 15 1967

as Secretary of the Interior; - Law Department

: _ Oklahoma City

)

_ Ep Prerson, individually and as )

' Supervisor for the State of Wyo- )

ming, Bureau of Land Management, )

Department of the Interior; - - J

Davip B. Morcan, Acting Manager, )

Oil and Gas; Cheyenne, Wyoming )

Land Office, Bureau of Land Manage- _)

ment, Department of the Interior, )

and Union Paciric RAILROAD Com- ss?)

PANY, a corporation, )

Be tg O75 — )

poe from the United States District Court

for the District of Wyoming

Dean W. Borthwick, Attorney General, for The State of - |

Wyoming, Appellant.

James B. Diggs-and Roger K. Allen Cimctianeits, Mai &

Urbigkit were with them on the brief) for Gulf Oil Corpo- —

ration, Appellant. — , |

i ' —xxxi—

be 4 [APPENDIX]

Edwin L. Weisl, Jr., Assistant Attorney General, Robert N.

_ Chaffin, United States Attorney, Thos. L. McKevitt, Roger —

P. Marquis, and Edmund B. Clark, Attorneys, Department

of Justice, filéd a brief on behalf of Stewart L. Udall, indi-

vidually and as Secretary of the Interior; Ed Pierson, indi-

vidually and as Supervisor for thé State of Wyoming, .

Bureau of Land Management, Department of the Interior;

David B. Morgan, Acting Manager, ‘Oil and Gas, Cheyenne,

Wyoming ‘Land Office, Bureau of Land Management, De-

partment of the Interior, Appellees,

J..H. Anderson (F. J. Melia and: E. T. Lazear were with —

him on the brief) for Union Pacific Railroad eae

Appellee, ©

Before BREITENSTEIN and HILL, Circuit Judes, and.

BROWN, District J —

ar , Circuit’ Judge.

The controversy relates. to. the ownership of oil and

rt gas deposits ‘underlying a railroad right-of-way across a

school land section in Wyoming. The Secretary upheld the ,

claim of the United States. The appellants-plaintiffs brought

4 mandamus action under 28 U.S.C. § 1361 to compel recog- . -

nition of Wyoming’s title asserted under the act admitting

_ that state to the union and granting to it for school purposes

certain sections of land including those in dispute here.

The district court affirmed the decision of the Secretary.

The United States, pursuant to the Act of July 1, 1862, -

- 12 Stat. 489, as-amended by the Act of July 2, 1864, 13

Stat. 356, conveyed to a predecessor of the appellee Union

Pacific Railroad Sey | a 400-foot right-of-way across _

1 Act of July 10, 1890, Ch. 664, 26 Stat. 2 222;

—xxxii—

[APPENDIX{

Section 16 of one township and Section 36 of another. The

survey plats of these townships showing the center line of

the right-of-way were approved and filed in 1877 and in

_ 1884, The railroad was constructed and has not been aban-

doned. ; ‘

The 1862 Act sia to the railroad a ankeey two .-

hundred feet on each side of the railroad center line and

‘also granted certain alternate sections along the route.

Section 3 provided that “all mineral lands shall. be ex-

cepted from the operation of-this act.”? The 1864 amend- .

ment declared that the.term “mineral land” as used in § 3

“shall not be construed to include coal and iron land.’

The Wyoming Enabling Act provided i in § 4:4

: “That sections numbered ‘sixteen and ditrty-olx in

every township of said proposed State, and where such

sections, or any parts thereof, have been sold or other-

wise disposed of by or under the authority of any act

of Congress, other lands equivalent thereto, * * * are

_ hereby granted to. said State for the support of com-

* mon schools * * *.”

Section 13 of the same act® proviiied that “all mineral lands

shall be exempted from the grants made by this act.”

On the date of the admission of Wyoming, the lands i in-

volved herein were not known to be mineral in character.

The state has never selected any indemnity lands for any

‘portion of the area with which we are concerned. In 1938

_and 1950, Wyoming reconveyed to the United States all of

Section 16 and part of Section 36. Both deeds contained a

2°42 Stat. 492.”

8 13 Stat. 358.

4.26 Stat. 222-223.

5 26:Stat. 224. .

‘4 ——xxxili— -

| Cree [APPENDIX]

reservation of all-mineral rights. In 1952, Wyoming executed

an oil and gas lease covering-the two sections, except for

land not material to this case. Appellant Gulf Oil Corpo-

ration obtained these leases by assignment.®

In 1960, upon the application of the Union Pacific and

onthe authority of the 1930 Right-Of-Way Leasing Act,?

the Cheyenne Land Office issued decisions inviting royalty

bids from Union Pacific as holder of the right-of-way and

. compensatory royalty bids from Gulf as the owner of the .

. oil-and gas leases adjoining the right-of-way. Gulf appealed _

to the Director, Bureau of Land Management, who re-

versed. Union Pacific then successfully appealed to the

Secretary of the Interior wha decided that the United States

_ owned the oil and gas underlying. the right-of-way.

_.° The question is one of first impression. Our attention

is directed to no court decision determining whether oil and .

‘gas underlying: a railroad right-of-way granted by Con- -

gréss before 1871 passes to a state under a grant for school

purposes, At the threshold we are met by conflicting rules.

The Supreme Court has said that “land grants are con-

strued. favorably to the Government, [and] .*:* * nothing.

' passes except what is conveyed in clear language. ”8 It has

also said that “the legislation of Congress designed to aid .

the common schools of the States is to be construed liberally

rather than restrictively.”® These are rules of construction

_and, kecause of the conflict, we apply neither. |

6 The lease on Satie: " has — but the tie on Section 36 is

operative.

7 Act of May 21, 1930, Ch. 307, 46 Stat. 373, 30 USC. §§ 301-306.

This act provides for the leasing by the Secretary of the Interior of oil

and gas underlying “lands embraced in railroad or other rights of way

acquired under any law of the United oontin, whether the same be a

base fee or mere easement.”

8 United States v. Union Pacific Railroad Co., 353 US. i12, 1

9 Wreas v. United States, 255 US. 489, 508.

/° .——*xxiv— |

[APPENDIX] a

We attach no significance to the provisions. of ‘the |

Enabling Act?° exempting “mineral lands” from the school

_ land grants. The established law is-that in the ‘construction

of such grants thé mineral or nonmineral character is to be

determined by the known presence of valuable minerals on

. the effective date of the grant.11 The parties agree that at

‘the time of the admission of Wyoming the mineral character

_of these lands was not known. ~

During the period 1850 to 1871, “ial subsidized ,

railroad construction by lavish grants from the public

domain.!2 Fhe rights-of-way: here under consideration were

granted during that period. In 1871, the policy changed and —

outright grants were discontinued.!* The General Railroad

Right-Of-Way Act was passed in 1875.14 ‘The language of

- the 1862 Act under which the Union Pacific obtained its

_ right-of-way and the language of the 1875 Act are identical

in all important respects.15

In considering a pre-1871 right-o of-way grant to a rail-

road, the Supreme Court, in Northern Pacific Railway Co. v.

Townsend, 190 U.S. 267, 271, said that the grant “was of.a

limited fee, made on an implied condition of reverter.”

10 26 Stat. 224. °

~ 11 Davis's’ Administrator v. Weibold, 139 US. 507, 518. See. also

~~ Deffeback v. Hawke, 115 US. 392, 402; and Wyoming v. United

12 Great Northern. Railway Co. v. United States, 315 US. 262, 273.

See also Chicago & North Western Railway Co. v. Continental Oil

Co,, 10 Cir., 253 F.2d 468, 4. -

18 315 US. 262, 274.

14 Act of March 3, 1875, Ch. 152, 18 Stat. 482, 43 US.C. §§ 934-939.

15 The 1862 Act read, 12 Stat. 491, that “the right of way through the

public lands be, and the same is hereby, granted * * *.” The 1875

Act reads, 43. U.S.C. §-934, that the * ‘right of way through the Public

lands of the United States is granted * * *.” The 1862 Act pro- . °

_ vided for a 400 foot righvol-way while the 1875 Act reduced that

to 200 feet. :

{ ‘

—Xxxxv— :

; [APP EN DIX]

' This statement.was repeated in Rio Grande Western Rail-

way.Co. v. Stringham, 239 U.S. 44, 47, a case concerning a

post-1871 grant. Great Northern Railway Co. v. United

States, 315 U.S. 262, pointed out that. Stringham did not

consider the 1871 change in congressional policy. The Court

rejected the application of the “limited fee” principle to

post-1871 grants, and held that the 1875 right-of-way act.

' granted only an easement with no rights in the rw

oil and minerals.

“United States v. Union Pacific Selina Co. 353 US.

from drilling for oil and gas on a right-of-way granted by

§ 2 of the 1862 Act. In holding for the United States, the: _

_ Court said that Townsend was not “an adjudication con- .

cerning the. ownership ¢ of mineral resources underlying the

‘right of. way ina contest between the United States and

the railroad.”!® The § 3 exemption of “mineral lands” was

equated to an exemption of mineral rights and held ¥ apptien-

ble to the right-of-way granted. by § 2.

In Chicago & North Western Railway Co. v. Continental

Oil Co., 10 Cir:, 253 F.2d 468, we considered a dispute be-

tween a railroad claiming under a right-of-way grant -pur-

suant to the 1875 Act and the holder of an oil and gas lease

covering the tract traversed by the right-of-way. We held

that Great Northern controlled and that the railroad had

an easement which gave it no rights to the oil and gas. In

that decision, we recognized the statement in‘ United States

v. Union Pacific Railroad Co., 353 U.S. 112, 119, that the

“limited fee” cases, such as. Townsend, decided only that

the railroads “received all surface rights to the right of way

and all rights incident to a use for railroad purposes.”17 In

Northern Pacific ew Co. v. United States, 10 Cir,, 277

16 353 US. 112, 118.

17 See 253 F.2d 468, 471.:

% * . - —_ Camere

; - es

R ; «

‘

—Xxxvi— -

[APPENDIX]

‘F.2d 615, 618, a case\‘relating to easements for canals or

ditches'® we said, on the authority of Union Pacific, that a

right-of-way easefhent does not include underlying oil and

gas. F 2 * ;

Wyoming and Gulf silat that public policy requires

that right-of-way grants made before. 1871 should receive —

- the same treatment as those made after that date; they point

out that orily 9,800 miles of railroad were constructed under ~

grants made during the earlier period. They argue that the

rule that title to the servient estate in a strip or gore passes

without express rhention in a conveyance of the en-

cumbered tract’® applies to rights-of-way obtained under

the 1875 Act, by condemnation, and by private, grants. They

‘conclude that it should’ also -spply_to-pee-18ft- grants by

~ Congress.

Logical as-the argument may be, it collides with several

acts of Congress. The Act of March 8, 1922, Ch. 94, 42 Stat.

414, 43 U.S.C. § 912, relates to abandoned railroad rights-of-

way ‘and provides that upon abandonment title goes to the

owners of the adjoining tract without further conveyance

provided.that “the transfer of such lands shall be subject _ ae

to and contain reservations in favor of the United States of

all-oil, gas, and other minerals.” If Wyoming and Gulf.are -

correct in their view that whoever owns the subdivision |

traversed by the right-of-way already owns the oil and gas,.

the oil ‘and gas reservation in the 1922 Act is a nullity.

. The 1930 Right-Of-Way Leasing Act?° requires that

before the Secretary gives an oil and gas lease to the right-

of-way owner, the adjoining owners must be notified and

permitted to submit a bid. If Wyoming and Gulf are right,

the adjacent owners would already own the oil and gas.

18 See 43 USC. § 945.

19 See United States v. Magnolia Petroleum Co., 10 Cir., 110 F.2d 212,

217.

20.30 US.C. §§ 301-306.

—XxXxvii—.

| - [APPENDIX]

We recognize that, “The views of a subsequent Con-

gress form a hazardous basis for ‘nferring the intent of an

earlier one.”?! We realize that in Great Northern the Court

conipletely disregarded the Abandoned Railroad Right-Of-

Way Act and that after Great Northern such act applied

. only to pre-1871 grants. In the circumstances, we believe

that the policy arguments are nét controlling and that the

‘decision here depends on the narrow issue of construction .

_. of the Wyoming Enabling Act in the light of the 1862’ and

1864 Acts and the decisions relating thereto. .

Wyoming and Gulf. rest their case on the proposition ne

that the location of a railroad right-of-way across a tract

_of publictand of the United States does not separate the

" servient estate from the public domain with the result that

title to the servient estate passes ‘without express mention

in a subsequent grant by the United States of the traversed

tract. The United States and Union Pacific concede that

this rule applies to: post-1871 grants but deny its application )

to previous grants.

—_—

’ For the purposes of this case, we are not impressed

. With the labels applied to the title of the railroads in their

rights-of-way across the public lands of the United States.

The concept of “limited fee” was no doubt applied in Town-

send because under the common law an easement was an

incorporeal hereditament which did not give an exclusive

right of possession. With the expansion of the meaning of —

easement to include, so far ‘as railroads are concerned, a

right in perpetuity to exclusive use and possession?? the

need for the “limited fee” label disappeared,

All parties rely.on United States v. Union Pacific Rail-

road Co., 353 U.S. 112. That decision did not overrule Town-

send. It recognized that under Great Northern the post-.

21 Waterman SS. Corp. v. United States, 381 U.S. 252, 269. ;

22 See Midland Valley Railroad Co. v. Sutter, 8 Cir., 28 F.2d, 163,'168.

~ —xxxviii— .

_ ~LAPPE NDIX] |

1871 grants were of an easement, It potribell out that-none

of the previous cases “involved the problem of rights to

‘subsurface oil and minerals.”?* The narrow holding was that

_ the railroad did- not get title tothe ‘underlying Oil and gas

. by virtue of. the statutory grant. To reach this result, the

Court specifically held that the “mineral lands” exception

". in-§ 3 of thé 1862 Act applied both to the § 2 grant of.right-

_of-way and the § 3 grant of alternate sections. 24.

The ‘application of the “mineral lands” exception to

the-right-of-way grant means to us that the 1864 amend-

-ment?5 saying ‘that the term “mineral lands” does not in-

clude’ coal and iren Jand also applies to the right-of-way

grant. The effect is that the railroad not only received a

‘ right-of-way with the perpetual and exclusive use of the

surface but also received the right to explore for, eri “

_- and mine the underlying ‘coal and iron.

This is. important becausé § 4 of the Enabling Act?¢

_ provided that two ‘sections in each township were granted

for school purposes and “where such sections, or any parts.

thereof, hdve been sold or otherwise disposed of by or

under the authority of any act of Congress”. indemnity lands

may be selected. We bélieve that. the congressional intent

was that if part of any section to be granted for school pur- _-

poses had been disposed of under an act of Congress, the

* staté on admission did not get that part of the section. The

right to select lieu. lands was given but the failure-to exer-

cise that right does not enlarge the grant: The question of

- whether coal.and iron are now known, or ever have been |

known, to underly the right-of-way i is immaterial. The rail- —

28 353 US. 112, 119.

24 Id. at 116.

25 13 Stat. 356. | i

28 Act of July 10, 1890, Ch. 664, 26 Stat. 223. : bee

a xxxix—

“ LAPPENDIX}

discovered it belongs to the railroad. Such right is in a dif-

ferent category from a surface easement. The grant of the.

' coal, andgjiron with the incidental rights of exploration and

development disposed .of a part of the section traversed by

the right-of-way. This prior disposition served to exclude:

. .the right-of-way from the ont of school sections made by

the Enabling Act.

- The effect of this conclusion i is that title to the servient

estate did not pass with the conveyance of the encumbered |

tract. Instead, it remained. in the United States and the

United States retains the rights, specifically here the owner-

ship of the underlying oil and gas, not granted to the rail-

road. The fact that the result which we reach treats pre-

1871 grants differently, from those ‘made later is not con-

trolling because that difference had ‘its origin in a change.

‘’ of congressional policy relating to rights-of-way for rail-

- Toads crossing the public domain. We agree with the Secre-

fary that the oil and gas underlying the right-of-way in

question are subject to capes under the 1930 —

Way Leasing Act.

_ Affirmed. -

[APPENDIX i ; ee

a; : = : ,

SEVENTEENTH DAY, MAY TERM,

- WEDNESDAY, JUNE 14, 1967. .

Before Honorable Gene S. Breitenstein and Honorable

Delmas C. Hill, Circuit Judges, and Honorable Wesley E. a

STATE OF WYOoMING, et al., ae

VB ee ’ ‘ake ae ae EAS he

- _) Case No. 9095

Srewart L. UDALL; Insevinvatee, AND 2). |

AS | SECRETARY OF THE INTERIOR, et al., )

‘Appellees: ) de

"APPEAL FROM THE UNITED STATES DISTRICT.

COURT FOR THE DISTRICT OF WYOMING. _

This cause came on to be heard on the transcript of the

. record from the United States District Court for the wintetet

_ of Wyoming and was argued by counsel.

On consideration whereof, it is ordered and adjudged

, by-this court that the judgment of the said district court in

| this c cause bé and the same is oe affirmed. ,

land in aid of

with the Act of J

July 2, 1864, Sue

*Acts of July 1,-1862° (12 Stat..489) and July 2, 1864

(13 Stat. 356) :

Union Pacific Railroad Company

From the Missouri River at Omaha, Nebr., to a

junction with the Central Pacific Railroad in the -

Denver Pacific Railway Co, )

‘From Denver, Colorado, to junction with Union

Pacific Ry. Co., at Cheyenne, Wyoming.

‘Kansas Pacific Railway Co.

From Missouri

State ‘line, near Kansas City ‘to

Denver, Colorado. _ }

From Sacramento to,San Jose, California.

‘

Central Pacific Railroad Co.

From’ Sacramento, -Cal., to junction with Union:

_” Pacific Ry. Co. in Sec. T. 6 N; R. 2 W., neat

*. Ogden, Utah.

* Waterville, Kansas.

Union Pacific R.R. Co. os

_From Sioux City; Iowa, to. Frémont, Nebr..

Burlington & Missouri R-R. Co. a )

From Plattsmouth to Kearny Junction, Nebr.

Act of March 3, 1863 (12 Stat. 772)

Leavenworth, Lawrence and Galveston RR. Co. _’

From Lawrence,

of Kansas.

Kansas, to the southern boundary .

638.6 miles

| APPENDIX .B

| ___ The following is a tabulation of the miles of railroad _

constructed along rights of way granted by right of way |

provisions. included in acts of Copgress.making grants of =

railroad construction. The tabulation starts “

uly 1, 1862, as: amended by the Act of

-- 1038.68 miles

106.00 miles

123.16 miles

' 737.5 miles

142.80 miles -

- 4

| —xlii—

[APPEND 1X] 7

Atchison, Topeka and Santa Fe R.R: Co.

‘From’ Atchison, ‘Kansas, to western onda of

State near town of Coolidge.

Missouri, Kansas and Texas Ry. Co.

From Fort Riley to southern «steve tom of Kansas.

Act of July 1, 1864 (13 Seat. 339) and Act a July 26,

1866 (14 Stat. 289), and Act. of July 25, 1866 st

_ Stat. 236)

Missouri, Kansas ee Texas Rwy. Co ____

From southern boundary of Kansas through the

Indian Teneory to the Red River near Preston,

Texas.

. -Act of May 5, 1864 (13 Stat. 66)

‘Wisconsin Railroad Co.

- From Portage via Stevens’ Point to Ashland, Wis-

consin. ; _

Act of May 12, 1864 (13 Scat. 72)

Sioux City and Saint Paul R.R. Co.

From the Minnesota boundary to a connection with

lowa Falls and Sioux City Ry. (Illinois Central).

Act of May 12, 1864 (13 Stat. 72)

Chicago, Milwaukee and Saint Paul Ry. Co. __

* From South McGregor, via Calmar to a connection

with the Sioux City: and Saint Paul RR. at

Sheldon, Obrien County, Iowa.

Act of July 2, 1864 (13 Stat. 365), and” Joint Resolu-

tion of May 31, 1870 (16 Stat. 378)

Northern Pacific. Railroad (now Railway) Com-

patly :

Act of July 4, 1866 (14 Stat. 87)

Southern Minnesota Railroad Company +...

From Houston to Winnebago City to Atlie on

western boundary of Minnesota. Owned and

‘ operated by Chicago, ee and Saint Paul

Ry. Co. }

469.35 miles

180.50 miles

155.35 miles

56.25 miles .

251.00 miles

2037.81 miles

279.37 miles

alate ee ee ne eRe

baie

inane . ‘-CAPPEND?IX}

Hastings and Dakota R.R. Co. : 202.10 miles

From Hastings to Ortonville on western boundary °

of State. Now Chicago, Milwaukee and Saint

‘* Paul Ry. Co. e

Act of July 23, 1866 (14 Stat. 210)

Saint Joseph and Denver RR Co. . -- 226.00 miles -

_ and Missouri River R.R. at Hastings, Nebr.,

owned and operated by Saint Joseph and Grand

Island R.R. Co. :

*Act of July 25, 1866 (14 Stat. 239) .

California and Oregon R.R. Co. 304.00 miles ~

From junction with Central Pacific R.R. at Rose-

ville, Calif, to junction with ‘Oregon and Cali-

fornia R.R. at Oregon State line. .

Oregon and California R.R. Co. 360.00 miles

_ From Portland, Oregon to junction with Calif. & 7

Oregon R:R. at California State line. on

Act of July 27, 1866 (14 Stat. 292)

Saint Louis and San Francisco ee 89.00 miles

From Springfield, Missouri to Missouri State line

( westwardly ). . a .

Santa Pacific Railroad Co, operated by Atchison, .

Topeka and Santa Fe Ry. Co. 636.00 miles .

From Isleta, N. Mex., to Colorado River.

Southern Pacific Railroad Co. : --—----- 495.52 miles

From San Jose, California to Needles on Colorado.

River. a

*Act of May 4, 1870 (16 Stat. 94)

Oregon and California R:R. Co._/ ; 47.50 miles

From Portland, Oregon, via Forest Grove to Mc... a

_ Minnville, Oregon.

*Act of March 3, 1871 (16 Stat. 573)

_» Southern Pacific RR. Co. ___”

From Mojave, Cal. via Los Angeles to Colorado

River at Yuma.

‘

346.97 miles

‘ e

, —xliv—

[APPENDIX] anes

*Act of March 3, 1871 (16 Stat. 573)

‘ "New Orleans Pacific R.R. Co. tel 260.00 miles

‘From White Castle to.Shreveport, Louisiana.

Total ; “i 9832.98 miles

- *Denotes acts which contain a removal of coal and iron land from the

exception of mineral lands.

ie ie ee

’

IE eee

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.