Brief for the United States — Minidoka & Southwestern R. Co. v. United States

Supreme Court brief1914

Ask Donna

What actually matters in this document.

Text

INDEX.

SP eee

Résumé of appellants’ argument

The Government's position stated

Argument

I. The right to build and operate a railroad

through a reclamation project without

consulting the Government should not be

adjudged to exist unless plainly conferred

by some act of Congress

Il. The act of Mareh 3, 1873, as amended, does

not empower the entrymen to authorize

the construction of a railroad through a

reclamation project without the consent of

the Secretary of the Interior

1. History and general purpose of this

legislati Ih

2. The act merely authorizes the settler

to relinquish in part the privileges

which he enjoys under the settle

ment law, not to convey the title or

to impair in any way the mterest of

the Government

3. As to lands which, like the lands of

reclamation projects, are atleeted

by a special public interest, the ac

of March 3, 1873, if applicable at all,

‘

should be construed as a means of

to the uses mentioned, but not to

permit those uses | the ibs« ce of

governmental approval.

i4 I (1)

NES AT IN I SORE TNA dnf EN ey lA 84 1A) Dd APR ANS ARES hes a

Argument—Continued.

4. Construed in pari materia with the

reclamation act, the act of March 3,

IS73, as amended, can be deemed

operative only in so far as consistent

with the proper management and

welfare of such projects. This nee-

essarily implies that the transfers of

the settlers must remain ineffectual

if not approved or if objected to by

the Government through the Secre-

tary of the Interior. ___ 24

II. Construction and application of the General

Railway Act of March 3, 1875_. : 26

1. Discussion of the applicability of this

Statute to lands which are subject to

private claims __ 26

2. Under this statute no vested right

arises against the Government until

a’ map showing the railroad lo ‘ation

has been filed with and approved by

the Secretary of the Interior 31

3. The withdrawn lands were excluded

from the operation of the statute by

the terms of the statute itself 43

4, Independently of its own express pro-

Visions, whieh require approval by

the Seeretary and exclude lands

specially reserved, the act of IS75,

When construed ip pari materia with

the reclamation act, does not author-

ize railroad construction in reclama-

tion projects against the objection

of the Secretary of the Interior L 46

tes : 54 47

Page

Conclusion

VULEATIONS.

Anderson Vu Clark ins, 135 U. ie IS3

Cascade Pub. Service Corporation v. Railshack. 50

Wash., 376 os

Commonwealth v. Davis, 12 Bush (Ky.), 240

Dakota Cent. R. R. Co. vy. Downey, SL. D., 115

Davis v. Foreman, 14 1,. D., 146

Eimer v. Wellsand, 93 Minn.. 444

Enoch v. Spokane Falls & N. Ry. Co., 6 Wash... 393

Five Per Cent cases, 110 U. S., Ata

Frishie v. Whitney, 9 Wall., 187

Hall v. Russell, 101 U. S., 503

Hutchings v. Low, 15 Wall., 77

Jamestown ae N, R. R. Co. v. Jones, lic U, OD. 120

Knight v; Land Ass'n, 142 Uy. S., 161

Larsen v. Navigation Co., V9 Oreg., 240

Little v. Williams, 231 U.S., 335

MeCune v. Essig, AS Fed., 273

Minidoka & S. Wo R. R. Co. v. United States, 190

Fed., 491... aged Sea e

Minneapolis, Bt. f., he. Ry. Coy. Doughty, 208 U.S.,

251 , ? a1, 32, 33

Nobli V« Union Rive; Logging to. 147 U. Bice 165

Phoenix, he., Re R. fo. Vv. Arizona, &e., RB. R. Co. 9

Ariz., 434

Picard v. Mer ormick, 1] Mieh., OS

Raileay Conv. Sture. 3 Minn., 05

Nchenek vy. Saunders, 13 Cray, 37

Scott v. Carew, 196 UL S.. 100

Shepley v. Cowan, OU. S., 330

Smith y. Townse nd, 148 1). S.. 490

(111)

lage

hn teal

rv.

Page.

Spokane Falls Ry. Co. v. Ziegler, 167 Ah | Renee 98

Stalker v. Oregon Short Line, 225 U. 142 7 ere

Swigart v. Baker, 229 . S., 187. Soe ss Ray ak,

Union Pac. R. R. Co. 5 Bale. 215 U. ss 386. 27

United States v. wal 128 Fed., cae see coes 27

United States v. Minidoka oe. W. #: #. Co., 176

Fed., 762... 4

Vaiied States v. Rickey Land & Cattle ae 164 F ed.,

a SE re 38

Washington & Idaho R. R. 7% Vv. Dibenn. 160 U.

i a ee ee ; is 29

Weyerhaeuser v. Hoyt, 219 U. S., PP eeer eee

Wilcor v. Jackson, 13 a, ee eee : 23

Williamson v. Berry, 8 Wow., 495... 44

STATUTES.

Act of Mareh 3, 1873 (17 Stat., 602) ...... 17 et passim,

Act of March 3, 1875 (18 Stat., 482) _ 26, 34 et passim,

Act of March 3, 1877 (19 Stat., 377)... Spi he op 45

Act of June 3, 1878 (20 Stat., 89) ___ per ae 45

Act of March 3, 1891 (26 Stat., 1097) _- 17 et passim,

Act of June 17, 1902 (32 mtat., 368) 62... 1, 5, 25

Act of March 8, 1905 (33 Stat., 991) _ . 18,24 et passim.

Be. &., 2357. 2 . = apt . m 15

BO. B88 Se natty ate rae Ser yar. passim,

m.. G:, 2901, -. IS

R. mee , DISD 2IO] L Jee : 45

mn. S., 2353-2379. . EB ett me 45

21 Stat.. 140 : ; ; 1()

MISCELLANEOUS,

Bouvier’s Law Dict., 943. : 13

Rapalje & Lawrence Law Diet., 1144 13

Regulations of January 13, ISSS. under act of Mareh

3, 1875, 12 L. D., 423... Rone 45

Regul: itions of Mareh 21, S92, under aet of Mareh i

1875, 14 L. D., 338. : oar ite ; 1

Inthe Supreme Court of the United States,

OcroBeR Term, 1914.

_—_—_—

MINIDOKA & Sovruwesrern Raimroap

Company and Utah Construction Com-

pany, appellants, No. 19,

uv.

Thr Unrrep Srares.

1PPEAL FROM THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE NINTH CIRCUIT.

BRIEF FOR THE UNITED STATES.

STATEMENT.

On November 17, 1902, the Secretary of the In-

terior, under authority of the reelamation act of

June 17, 1902 (32 Stat., 388), withdrew for reela-

mation and entry under that aet alone, certain

piblie lands in’ Lineoln and = Cassia Counties,

Idaho. This withdrawal has continued in foree to

the present time, A portion of the land so with-

drawn was later included in the Southside Mini-

doka pumping project. Funds were allotted hy

the Seerctary of the Interior, work was com-

meneed, and, prior to any attempt by the defendant

railroad company to initiate rights upon the lands

Within the project which are now in controversy, a

number of main and lateral irrigating canals were

completed and put in operation. At the time of

the hearing in the Cireuit Court the Government

had expended a sum in excess of $1,300,009 ipon

this project (R., 93), the nature and admini-t vation

of which will be found fully deseribed in the Fifth

Annual Report of the Reclamation Service, and

reports subsequent thereto.

The detendant railroad company, as appears by

its articles found in the record (R., 158), was in-

eorporated in January, 1904, under the laws of

Tdaho, to operate a line of steam railroad extending

from Minidoka, in Lincoln County through Bur-

levy, in Cassia County, to Buhl, in Twin Falls

County, of that State. As appears by its answer

(R., 45), this, constituting its main line, has been

constructed and is now being operated by the

Oregon Short Line Railroad Company. The origi-

nal articles were tendered to the Land Department

in April, 1904, were declared ** satisfactory in

form,’ and were * accepted for filing ** under the

general railroad right-of-way act of Mareh 3, 1875,

18 Stat., 482. (R. 156.) In Mareh and Novem-

ber, 1908, and again in July, 1909, the company’s

articles were amended to allow the construetion of

branch lines, including an extension of its main

line, southward into the State of Nevada, (R., 166,

171, 194.) These amendments appear to have been

subsequently tendered to the Land Department and

i ‘

aie et

there received, like the original articles, as satisfae-

tory in form. (R., 155, 190.) By the amendment

of July, 1909, a line of railroad was projected to ex-

tend from the town of Burley, situate on the main

line at the Snake River, southerly to the town of

Oakley, a distance of 25 miles. It is conceded that

for this branch no profile or map of location was

ever filed with or approved by the Seeretary of the

Interior under the general railroad aet of 1875. or

otherwise, The line was laid out by the company

in the summer of 1909 and, as thus located, passed

directly through the area withdrawn by the See-

retary of the Interior for reclamation, traversing a

number of the farm units, and intersecting in its

course 3 of the main canals and 10 of the lat-

eral canals which had been constructed and were

heing maintained and operated by the United

States. The lands so traversed had been filed upon

by settlers under the reclamation act, and the rail-

road company, before undertaking eonstruection

work, procured deeds from all but one or two of

these entrymen, purporting to convey the right of

Way aeross their tracts. But neither at the dates

of these conveyances nor at the time of the hearing

of this cause in the Circuit Court had any of the

entrymen made final proof under the homestead

laws or paid any part or installment of the cost of

the reclamation works,

The railroad company appears to have begun eon-

struction work through the other appellant, Utah

Construction Company, in November, 1909, and to

have made some progress therein until December

11th following, when the work was suspended on ae-

count of the frost and snow. (R.,32.) The bill was

filed on December 29th, and the Government’s mo-

tion for a preliminary injunction was refused,

(R.,60.) Itappears that the grading had heen sub-

stantially completed at the time of final hearing,

in June, 1910, but that no ties or rails had been laid.

(R.. 111 ef seg.) There are on the irrigated area

several hundred miles of main canals and laterals

already constructed. CR., 102.) By extension of the

existing pumping system 8,000 acres ean be added

to the reclaimed lands. This, however, would re-

quire at least one more main canal and possibly a

half dozen laterals (ib). Several hundred aetes of

this land are below the railway location, so that the

road must be erossed at inereased expense to perfeet

the water distributing system, (R., 105.) The lands

actually occupied by the railway are irrigable and

valuable for agriculture. The railway, of course,

withdraws them from agriculture and the railway

construction diminishes or destroys their value for

that purpose. (R., 94.)

The Distriet Judge both on the preliminary mo-

tion and at final hearing, was of the opinion that the

Government was entitled to no relief other than the

protection of its existing canals where crossed by

the railroad. (R., 60,122.) United States v. Min-

doka & Southwestern R. R.Co., 176 Fed., T62. Ae-

cordingly a final deeree was entered (R., 79) in

which the structures to be erected and maintained

by the railroad company at such crossings were

specified, but relief was otherwise denied to the

complainant.

Upon appeal the decree was reversed by the Cir-

cenit Court of Appeals with instructions to grant the

injunction as praved, to continue until the court

shall be advised that the construction of the rail-

road has been assented to by the United States as

well as by the settlers whose lands are traversed

thereby, the evidence of the consent of the United

States to be ** the approval of a profile map of the

right by the Secretary of the Interior.” (R., 203.)

Minidoka & Southivestern RoR. Co. v. United

States, 190 Fed., 491.

The case involves the construction of the act of

Mareh 3, 1873 (17 Stat., 602), compiled as section

2288 of the Revised Statutes and reenacted with

amendments on Mareh 3, 1891 (26 Stat.. 1097), and

Mareh 3, 1905 (33 Stat. 991). which purports,

anong other things, to permit bona fide settlers

under the preemption, homestead, and other settle-

ment laws to transfer by warranty against their

own acts portions of their claims for railroad rights

of way; the general railroad right-of-way act of

March 2, 1875 (18 Stat., 482). and the reclamation

act of June 17, 1902 (32 Stat. 388). All of these

acts are correctly printed in fall in the appendix

of the appellants” brief, se that it is unnecessary for

us to reproduce them fy fofe, but relevant portions

Will be quoted at the proner places as our argument

proceeds,

@5102— 14 2

ee a een

RESUME OF APPELLANTS’ ARGUMENT,

All of the lands in controversy are covered by the

filings of claimants under the reclamation law.

This faet led the trial court to hold the general

railroad right-of-way act inapplicable, upon the

theory that lands subject to such inchoate private

rights are not ** public lands * within the intent of

that statute. The act of 1875 having thus been re-

moved from the ease, the railroad company’s in-

trusion within the reclamation project was held jus-

tified by the conveyances which it had secured, and

presumably would secure, from the particular

settlers whose claims were traversed by the loea-

tion. the trial court being of the opinion that ))

Revised Statutes, section 2288, these farmers

were fully authorized to grant a right of way et-

fective at least while their entries were in good

standing, and declining to deeide what would hap-

pen to the title if the entries themselves should be

subsequently forfeited or abandoned. Appeilants

stand squarely upon this somewhat remarkable doc-

trine that the entrymen, by an act originally passed

in 1873, and whose purpose in this regard was miani-

festly unaltered by the amendments, were coiunis-

sioned with the serious duty of weighing the ad-

vantages and disadvantages of railroad construc

tion and railroads to a project in the active care

and management of the Govermment—a project

adopted pursuant to a policy which was not con

ceived until nearly 30 years after that act was

passed, and involving the expenditure of enormous

sums of publie money and the happiness and for-

tunes of hundreds of settlers and their families.

The appellants, in their brief, go even farther than

the trial court, since they argue that the convey-

ances of these few farmers will operate, either alone

or in connection with the mere filing in the Land

Department of the railroad company’s articles and

proofs of incorporation, to convey a permanent

right of way, independent of the future standing

of the reclamation entries.

THE GOVERN MENTS POSITION STATED.

The opinion of the Cirenit Court of Appeals (R.,

203). In which the three judges united, points out

very clearly that, although lands of the United

States which are subject to the filings or inchoate

claims of individuals may not be ** pablie lands”

in the sense of some granting statutes, they are

suchinthesense of the general railroad right-of-way

act of 1875, inasmuch as that act itself makes men-

tion of them and specifically provides the means

whereby the interests of such possessory claimants

may be condemned. That court therefore, being

also of the opinion that lands withdrawn for entry

under the reclamation law do not fall within the

terms of the fifth section of the act of 1875, whieh

excepts from its operation *tany lands within the

limits of any military, park, or Indian reservation,

or other lands specially reserved from sale,”

holds that the company’s rights, as against the Gov-

ernment, must depend entirely upon a compliance

with that statute. It regards the act of 1875 asa

companion piece of the act of 1875, the latter pro-

viding the means whereby the company may obtain

title from the Government through public lands,

whether tiled on or not, and condemn possessory

rights, and the former affording a way whereby the

company may acquire, pro tanto, the interest of the

settler, by agreement, without resort to a proceed-

ing in condemnation.

These two statutes [says the opinion |,

taken together, appear to mect the require-

ments of the situation, and to authorize the

railroad company upon eomplying with cer-

tain conditions to acquire from both the Gov-

ernment and the settler a right of way which

the Government should not in Justice to the

settler grant without his consent, and which

the settler could not convey without the per-

mission of the Government, since he ean only

“transfer by warranty against his own acts.”

CR., 207.)

Thus the Court of Appeals in effect rejects the

idea that by the act of 1873 a mere possessory

elaimant is authorized, at his pleasure, to grant a

railroad easement, whether permanent or cond

tioned upon the persistence and perfecting of lis

entry. Its decision turns finally upon the proposi-

tion that, as against the Government, the railroad

company, dependent as it is upon the act of 1s7,

acquires no right until the protile map of its line

has been filed with and approved by the Secretary

of the Interior, as that act prescribes.

Our position accords perfectly with the argu-

ment and econelusion of the learned court below,

save in this one particular: We argued before that

eourt and we respeetfully insist here that lands

withdrawn for irrigation and settlement under the

reclamation aet do not fall within the purview of

the act of 1875 at all, except in so far as the Secre-

tary of the Interior is empowered to modify their

status under the reclamation act itself. The act of

1875, as we have seen, by its fifth section exeludes

all lands of certain described kinds of reservations

and all ‘tether lands specifically reserved from

sale.” We eontend that the lands of a reclama-

tion project fall within the spirit, if net the letter,

of this exelusion; they are ‘specifically reserved

from sale’ in the true sense of the statute. The

learned court below seems to have assumed (R.,

206, 207) that such lands are offered for sa/e in the

usual sense of the term. It is true, as indieated by

the title of the reclamation act which the opinion

quotes, that the lands are reclaimed by moneys de-

rived from the sale of publie lands: but those, of

course, are other lands disposed of under other

laws. The tracts reclaimed are not sold; they are

disposed of under the homestead law, minus the

commutation provision, and the reclamation law;

the entryman acquires them by residence and culti-

vation, and by restoring to the Government his pre

rata share of the cost of constructing, maintaining,

and operating the works. The private owner in the

project pays in the same way and at the same rate

as the entrvman. The act of 1875 was meant to

apply only to those publie lands which were on the

market, or otherwise subject to be disposed of, un-

der general laws, free of any retained interest or

responsibility upon the part of the Government.

Such are not the lands in the reclamation projects.

The Government, as will be shown more fully in

the course of our argument, has a peeuliar interest

and a peculiar responsibility touching all of the

lands of such a project as long as the project is (i

fier’ and until the duty of the Government to man-

age it and perfect it has been fully performed. We

incline to the opinion that the Seeretary of the In-

terior, hv virtue of the broad powers Which he pos-

sesses under the reclamation act, may be authorized

in his discretion to release lands from withdrawal

to the extent Necessary for the granting of a rail-

road right of wav through the irrigable areas, if he

thinks that a railroad may be constructed and op-

erated there without harm to the project as a whole.

But even if this be unsound, supposed need of

railroads in such places can afford no excuse for

stretching the legislation providing for rights of

way across the ordinary public domain.

Finally, as held by the learned court below, the

act of 1875, if applicable to these lands, requires

the beneticiary to file a ** profile or a map of deti-

nite location, and requires the approval thereof by

the Secretary of the Interior before any right under

the act can vest as against the ¢ rovernment. Mani-

festly the appellant company has acquired no stand-

ing under that statute, and it is doubtless due to the

certainty of this proposition that opposing counsel

practically stake their entire ease Upon the couvey-

ances of the sett lers,

ARGUMENT.

The right to build and operate a railroad through a

reclamation project Without consulting the Govern-

ment should not be adjudged to exist unless plainly

conferred by some act of Congress,

The aet of 1875, when complied with, grants a Way

over the ordinary publie lands. but even this, as we

shall seek to establish, is dependent upon the ap-

proval of the Secretary of the Interior. the euar-

dian of the people's interests in the public domain.

(Nurght Vv. Land Assn, 1 EU. S.. 161, ISI.) Here

the railroad company advances the remarkable eon.

tention that railroads mav be laid out ad libitum

through all of the vast and complex reclamation

projects, over land Which is speelaliv reserved and

dedicated to a special form of use and disposition

and forthe accomplishment of detinite results of the

Utmost public importance, if only a few of the set-

tlers, upon being paid te their personal satisfae-

tlon, will vouehsate their consent. This court has

recently had occasion to Inquire quite deeply into

the objects and mechanism of the reclamation pol-

icv (Suigart Vv. Baker, 229 U.S. 187), so that it Is

hardly necessary for us pow to do more than refer

toa few prominent features. The plan requires ae-

tive care and management of each project by the

Secretary of the biterior until the cost has been

largely repaid te the Government. Entrymen do

not acquire any title or eontrol until that has been

done, end not even then do they gain control of the

irrigation works. The projects include enormous

areas of arid or semiarid land, and involve the ex-

penditure of enormous sums of public money for

the irrigation of these areas.

The peculiar plan of the legislation is to accom.

plish reclamation and establish large communities

of prosperous farmers through the lending of pub-

lie funds. The farmers are expected to pay back

the entire investment in the end, and the trust in

their ability to do this is largely founded pon the

assumption that by a careful management of the

project during the earlier stages of its operation.

while it remains under the control of the Govern-

ment, and by allowing ample time, the farms will

become very productive and render to the settlers

a sufficient protit to enable them to meet the asscss-

ments as they acerne. Thus the whole success of a

project—the return of the Government's invest-

ment and the prosperity of the farmers who are

liable therefor—imust be dependent Upon the enre

with which it is eonecived and exceuted while the

frovernment is in charge. Now, the « mplexity of

the problem is as obvious as its importance, and any

doctrine which tends to diminish the diseretionary

power of the Secretary of the Interior to deal with

tin all of its aspeets should be scrutinized with the

ihest caution before it is adopted by the courts.

It will he perceived at once that the construction of

even one railroad through a reclamation project

might he productive of very serious injuries. The

irrigable lands are frequently divided into tracts

which are quite small, the poliey being to encourage

intensive cultivation and to limit each entry to an

area Whieh will suttice to support a family. To bi-

wet a small irrigated farm or orehard by the grades

and cuts of a railroad might spell the difference be-

tween suceess and failure for its owner, aceording

to the degree in which his access and his ability to

trigate effectively were curtailed. The Goyern-

ment not only holds the fee of the land but is di-

rectly interested in the use that is made of it. Tf an

njury is done to the farming efficiency of any of the

rrigable units the capacity of that unit to supply

the funds whieh the Government is obliged to eol-

ect is to that extent impaired, with the possibility

f loss te the Grovernment or the other settlers.

Hence, in exercising his broad discretionary fune-

tons under the reclamation act. the Secretary of

‘he Interior would not be performing his duty if he

jermitted each farmer to do as he pleased with the

'ract Intrusted to his possession, especially as, in an

‘rea dependent Upon irrigation, a thing done pon

one tract may work havoe not to that tract alone but

to many others also and to the project as a whole.

It is even within the realm of possibility that the

existence of a railroad might prohibit the extension

of a eanal upon which the reclamation of a large

area of arid lands depends. In this very case, there

is evidence tending to show that the railroad, if

eonstructed, may seriously hamper the future de-

velopment of the project.

Manifestly it would not be reasonable to leave

the decision of sueh important matters to the set-

tlers over whose allotments the railroad is pro-

jected, and to whom the company offers its money

by way of compensation for what they are sup-

posed to give up. They do not share the responsi-

bility of the project management. They may not

even be expected to know or consider what will be

the effect of the railroad construction upon the

lands of others or the projeet as a whole. They

may be incompetent; they may be dishonest. It

would not do to regard them as representing the

Government or their fellow settlers in any respect.

The appellants’ response to such suggestions as

these is to remit the “overnment to the courts for

the protection of its rights when invaded. But this

is taking powers and responsibilities away from

the executive, where they distinetively belong, and

lodging them with the judiciary. The substitu-

tion is unwise and vicious, and the more so because

necessarily it would not be complete and cover all

eases wherein a remedy might be needed. Would

the court undertake to decide whether or not a

railroad through a reclamation project is necessary

or desirable? Or whether, for the success of the

project, it would be best to have it located here or

there?) Or how maniy lines of railroad through the

same project would be convenient and tolerable?

Would it limit its relief to the protection of the ex-

isting canals, as was done in this case, or would it

also insure the Government against the pecuniary

lwss that would arise from injuries done directly

to the units traversed, and indirectly to the other

units of the project? Would it attempt to forecast

the effect of one railway or two or a dozen upon

the suecess of the project and the repayment of

the Government loan? All these things, and many

other considerations which might be suggested, are

vbviously not of judicial cognizance. The rela-

tions of railroads to reclamation projects present

a complex of engineering, agricultural, and eeo-

nomic or business problems which could neither be

adequately explained nor suitably resolved in liti-

gation. It will not assist the Secretary of the In-

terior to perform the very serious and complicated

duties laid upon him by the reclamation act to pare

down his discretionary authority, to cut away

powers Which should normally be vested in him as

the general agent of the Government and transfer

them to private individuals whose use of them may

be selfish and unwise and subject to only a limited

control by the courts. The statutes upon which the

railroad company relies should be construed to avoid

this evil, if possible; if necessary, they should be

strictly construed; for though it may he conceded

that to help their obvious purpose a fairly liberal

ecoustruction may be accorded to such acts, yet where

it is sought to extend them beyond this, so that they

may work interference and injury to the operations

of the Government itself, subjecting even the public

investments to the safe-keeping of railroad corpora-

tions and homestead settlers, this liberal doctrine

should give way to the doctrine of strict construe-

tion.

The expediency of having the railroad made and

operated, and the thought that without recourse to

the settlers’ conveyances there would be no way in

which the work could be authorized, appear to have

made an influential appeal to the mind of the

learned distriet judge. But we think the argu-

ment ab inconvenienti can be applied more strongly

from the other side. The inconvenience and

dangers of allowing railroads to be run through

the reclamation projects without any responsible

supervision are too obvious for discussion. If a

‘ailroad is needed, or ean be constructed and op-

erated without harm to a project, it may be as-

sumed that the Secretary of the Interior will ap-

prove it if he has the authority to do so. Tf he has

not, his disability assuredly is no reason for lodg-

ing so extraordinary a power in a few of the set-

tlers. The defect should be supplied by Congress,

and the railroad may well wait until Congress has

acted.

LI.

The act of March 3, 1S73, as amended, does not empower

the entrymen to authorize the construction of a

railroad through a reelamation project without the

consent of the Seeretary of the Interior.

1. History and general purpose of this legisla-

tion,

As originally enacted on Mareh 3, 1873, this stat-

ute Was as follows:

That any person who has already settled

or herafter may settle on the public lands of

the United States, either by preemption, or

by virtue of the homestead law, or any

amendments thereto, shall have the right to

transfer by warranty, against his or her

own acts, any portion of his or her said pre-

emption or homestead for church, cemetery,

or school purposes, or for the right of way

of railroads aeross such preemption or

homestead, and the transfer for such publie

purposes shall in no way vitiate the right to

complete and perfect the title to their pre-

emptions or homesteads. (17 Stat., 602.)

It passed into the Revised Statutes (seetion

PRX) without substantial change, as a part of the

chapter on ** Preemptions.””

By section 4 of the act of Mareh 3, 1891 (Ce. 961,

2% Stat., 1097), this section, with others relating to

preemptions, was repealed; but by section 3 of the

same aet (ib.) it was reenacted so as to read:

Any bona tide settler under the preemp-

tion, homestead, or other settlement law

shall have the right to transfer, by war-

ranty against his own acts, any portion of

his claim for church, cemetery, or school

purposes, or for the right of way of rail-

roads, canals, reservoirs, or ditches for irri-

gation or drainage across it; and the trans-

fer for such public purposes shall in no way

Vitiate the right to complete and perfect the

title to his claim.

By the act of March 3, 1905 (38 Stat., 991). the

section was again reenacted, without change bevond

the introduction of the words ‘ telegraph, tele-

phones,”’ after the word ‘ railroads.”

The general purpose of the act was undoubtedly

to legitimate a broader use of the settler’s posses-

ston than was authorized by the settlement laws.

Those laws in effect forbade him to transfer any

part of his interest whatsoever, and visited his

elaim with a forfeiture if he did so. The object of

this act was to relax this stringency. Corrobora-

tion of this is found in section 2291 of the Revised

Statutes, part of the homestead law, which pro-

vides that a claimant in his final affidavit must state

that no part of the land has been alienated ** exeept

as provided in section twenty-two hundred and

eighty-cight.”’

See Cascade Pub. Service Corporation vy. Rails-

back (59 Wash., 376).

The amendments added new uses, and extended

the privilege to include new species of settlements,

but it will not be contended, we assume, that the

general purpose was altered in its character so as to

subject the public interests of the Government to a

power of the private claimant which would not have

existed under the original act.

2. The act merely authorizes the settler to re-

Finquish tn part the privileges which he enjJOYS UNn-

der the settlement lar, not to courve y the title or to

mopar in aug way the inicrest of the Government.

This proposition naturally divides into two

others: (a) That the sctiler is allowed to relin-

quish his own possession merely, and is not consti-

tuted an agent te act for the Government in dispos-

ing of more; and (i) that where the settler’s in-

terest is so commingled with the Government’s in-

terest that a proposed enjoyment of the one would

be detrimental to the other, the act is necessarily in-

applicable.

(a) In Davis v. Foreman (14 L. D., 146, 152), a

decision by Secretary Noble, ii is well said:

it is merely repeating a truism, to say that

the homestead law was enacted for the bene-

fit of those seeking homes upon the publie

domain; the theory of the law is, that the

land thus entered is to be used and retained

as a home, as a place of abode for the entry-

man and his family.

* * * * *

In that provision of the law which re-

quires a claimant to make affidavit that no

part of the land has been alienated, it must

be assumed that the word ‘talienated’” was

used in its ordinary acceeptation, and that

the intention of Congress was to prevent the

transfer of possession of the lands embraeed

in the entry, to another party, the lands were

to be retained in the possession of the entry-

man for his home and for the support of

himself and family. This view is clearly

sustained by the provisions of section 2288,

Revised Statutes; which permits an entry-

man to transfer, by warranty against his

own acts, any portion of his homestead for

chuieh, cemetery or school purposes, and for

the right of way of railroads across such

homestead and such transfer shall in no way

Vitiate the right to complete and perfect title

to his homestead. In these eases the entry-

man has not transferred a portion of the

land embraced in his homestead, because the

fee is not in him and may never be, he has

simply transferred his right of possession

to that portion of his entry both while the

title remains in the Government and after it

has passed to him; but the law provides that

his right of transfer or alienation of posses-

sion of a portion of his claim shall cease at

this point, and if he attempts any further

transfer or alienation, he shall be prohibited

from completing title to the land embraced

in his entry.

We are not aware that this authoritative con-

struction has ever been questioned in any other

decision of the Land Department or of the courts.

The construction is reasonable and in perfect fit

with the statutory language. It is not to be pre-

sumed that Congress would confer upon possessory

claimants an unrestricted authority to burden the

fee of the Government. Express words would be

required for this, And the words used are actually

indicative of a contrary purpose. The aet does not

purport to grant anything; it merely permits the

settler to make transfers “by warranty against his

own acts * which shall not vitiate his elaim. He is

permitted to transfer any portion of his claim ”’

(Kimer v. Wellsand, 923° Mimn., 444, 447): he is

not made an agent to convey the Government’s

fee. When Congress intends to convey a vested

interest in the publie lands it invariably does so in

express words or authorizes some executive officer

to do so. If we take the letter of this statute it

merely empowers the settler to vield a portion of his

possession; to transfer that which is already his but

Which he may not pass over to another without this

express authorization, And this first, or literal,

meaning corresponds with a purpose whieh is obvi-

ous and which fully suffices to explain the enaet-

ment. Any larger intendment, therefore, could

only be justified upon the seore of convenience,

Which would be no justifieation at all. Tt may be

more convenient to the uses mentioned to devest the

Government of its fee, but the retention of the fee

is not inconsistent with the uses. It may even be of

convenience to the Government.

(4) The act is no authority fora settler to trans-

fer, even for one of the uses specified, if, heeause

of the peeuliar status of his holding, the new use

world clash with a gov rmmental interest. This

65102.—14 4

| a ~ w

Sealab oo.

proposition is closely related to the one next fol-

lowing, but the two are not the same. Our sug-

gestion here is that while the possession and

usufructuary right of the ordinary homestead set-

tler are broad enough to cover any of the uses men-

tioned in this act if attempted by the settler him-

self. and while, therefore, such a settler in trans-

ferring for such uses is but transferring an interest

or privilege which was alr sady within the potential

scope of his claim, the possession of the settler un-

der the reclamation act is more narrowly condi-

tioned. He himself could not lawfully perform

acts upon his tract which might tend to interfere

seriously with the governmental care and adminis-

tration of the project. Consequently he could not

‘transfer’? such a right to anyone else under

this statute.

3 Astolands which, like the lands of reclamation

projects, are affected bya special public interest, the

act of March 3, 1873, tf applicable at all, should

be construed as a means of securing the consent of

the settler to the uses mentioned, but not to permit

those uses in the absence of governmental approval.

(a) It may be doubted whether this statute has

any application whatever to holdings of this char-

acter, since it has always been the policy of Con-

gress, in disposing of the public domain, to except

those parcels which have been reserved or which

have been devoted to governmental activities, and

we believe it to be the settled doctrine of this court

that such an exception will be presumed if it is not

expressed.

Wilcor v. Jackson, 13 Pet., 496, 513.

Scott v. Carew, 196 ULS., 100.

When this law was first enacted there were no

publie land laws under which it was possible for

private and publie interests to become so inter-

blended as they are in the reclamation homestead

entries. <All of the lands whieh then were subject

to private entry were lands which the Government

was willing and was offering to dispose of outright

to purchasers and settlers; and what the settler did

upon his claim, or what he permitted others to do,

was of no consequence to the Government, if it did

not violate the terms of the settlement laws or

amount to the commission of waste. This statute

should be construed in the light of the conditions

Which existed at the time when its purpose was eon-

ceived. It should be construed in the light also of

the “homestead law’? and the ‘‘settlement”’ laws of

that time. This necessarily excludes the reclama-

tion aet, which is a settlement law, not ejusdem gen-

erts, but very different in kind from any known or

contemplated when the aet was passed, and evi-

denees a policy not developed until vears after

wards.

The construction adopted by the Cirenit Court

cleaves to the bare letter while ignoring both the

limited purpose of the act construed and the inva-

riable poliey of Congress to save the special inter-

YER RESIN TE

ests of the Government from its grants of the publie

domain.

4. Construed in part materia with the reclama-

tion act, the act of March 3, 1873, as amended, can

be deemed operative only in so far as consistent

with the proper management and welfare of such

projects. This necessarily tmplies that the trans-

fers of the settlers must remain ineffectual if not

approved or if objected to by the Government

through the Secretary of the Interior.

Hitherto we have assumed that the original

purpose of the act of 1873, in the aspect here in-

volved, was not altered by the amendments. Let us

now assume March 3, 1905, as the date of origin,

three vears later than the reclamation act. The

public land laws are all (tn part materia; no par-

ticular statute should be construed as an insulated

act, upon its own letter, but all should be construed

together as an harmonious system. The reclama-

tion act puts upon the Secretary the duties of plan-

ning, coustructing, maintaining, and operating the

projects, and of collecting the cost thereof, and ex-

pects him, at the proper time, to turn each project

over to the water users “tas a going concern.”

(Swigart v. Baker, 229 U.S., 187, 197.) He is

given the full responsibility of executing the act,

and is expressly thereby ‘‘authorized to perform

any and all acts and to make such rules and regu-

lations as may be necessary and proper for the pur-

pose of carrying the provisions of this act into full

force and effect.” Reclamation act of June 17,

1902 (32 Stat., 388, see. 10.)

The act of 1905 should not, because it need not. be

construed either as modifving the reelamation

policy or as curtailing in the slightest degree the

ability of the Secretary to render that policy effee-

tual. Therefore, if we say that the act of 1905,

being later than the reclamation act, was intended

to reach the reclamation units, we must also sav

that its application there is subject to the broad

supervisory and protective power of the Secretary

under the reckunation act, and this without regard

to whether the act of 1905, in its application to ordi-

nary homestead claims, would permit the settler to

convey the fee or only a conditional possessory right

similar to his own.

Otherwise we should ineur the absurdity of say-

ing that Congress, without express words and con-

trary to the general presumptions in sueh cases,

intended in this instance to confer upon the settlers

a power without supervision, to dispose of the irri-

gable lands for railroads, cemeteries, schools, ete,

Without any limit whatsoever, without any consid-

eration moving to the Government, and without

any regard for the interests of fellow. settlers

or the Government, and that as against this extra-

ordinary authority, the Government, with its enor-

mous investinents and extensive obligations, is

theoretically without protection, save as it may rely

upon the eourts to prevent obstructions to existing

canals,

ITI.

Construction and Application of the General Railway

Act of March 3, 1875.

1. Discussion of the applicability of this statute

to lands which are subject to private claims.

The Cireuit Court decided and the appellants

here insist that the statute applies only to the va-

vant ublie domain.

If this were so, we do not see that the ease would

be improved for the railway company, for its right

would then be entirely dependent on the act of

1875, the significance of which we have attempted

to explain above.

The Land Department seems to have construed

the act of 1875 as applying only to lands to which

no private rights or claims have attached. We be-

lieve, however, that the true view is the one adopted

by the learned court below, and that the statute was

intended to afford the means whereby the whole

interest of the Government in the rights of way

contemplated could be aequired consistently with

the protection of the interests of private claimants

where the lands traversed had been settled or filed

upon.

The appellants’ contention rests upon their in-

terpretation of the term ** publie lands,” as used

in the first section of the act. It is true that this

term has frequently been held by this court to ex

clude lands affected by private interests, and it is

undoubtedly correct to say that in acts, whether

special or general, purporting to make grant of

complete title, this is the interpretation which

should be adopted in the absence of any satisfactory

evidence of a contrary legislative intent: for, ob-

viously, if such grants were not so restricted, Con-

gress, With its plenary power over lands subject to

possessoryv claims like unperfected homesteads,

would be placed in the attitude of ignoring and

overriding the settlers and others whe were ¢laim-

ing in good faith under other laws.

But where, as was suggested in Union Pacifie

R. R. Co. vy. Harris, 215 U.S. J86, B88—a case

much relied on by the appellants and discussed on

page 17 of their brief—it is * apparent either from

the context or from the circumstances attending the

legislation "’ that this term * public lands ** was

meant to inelude lands subject to private claims, as

Well as those that are not. the term Will have the

broader scope, the question being purely one of

legislative intention. Nee opinion of court below

(R., 205); United States v. Blendaur, 128 ed.,

910, 913.

Now, in the right-of-way act the words * publie

lands “are used in two places. In section La right

of way is granted over ** the public lands,’* and in

section 3 the Territorial legislatures are authorized

to provide for the manner in which * private lands

and possessory claims on the public lands of the

United States may be condemned. It is hevond

question that ‘* possessory claims as here used

- AN EES

includes claims evidenced by entries as well as mere

squatter rights. Spokane Falls Ry, Co. Vv. Ziegler,

167 U. S.. 65; Enoch v. Spokane Falls c& Northern

Ry. Co., 6 Wash., 393, 33 Pac, 966, 967; Railway

Co. v. Sture, 32 Minn.,, 95; Larsen v. Navigation Co.,

19 Oreg., 240, 23 Pac., 974.

Congress having in the third section of this act

expressly used the words ** public lands ** to desig-

nate lands of the United States affected by sub-

sisting entries, the presumption is that so far as

the mere right of way is concerned it used the same

words in the same sense in section 1, We think that

Congress by this act intended to provide a complete

scheme by whieh railroad companies might acquire

a perfect right of way over all lands not reserved or

appropriated to the particular purpeses of the

United States; and to that end it provided means

for acquiring a perfect light of way as against the

Cove mment, subject to existing private claims, and

then added a compulsory method for obtaining

rights from entrymen and settlers who refused to

convey in accordance with the permission given

them by Revised Statutes, section 2285,

If this were not so, title to those portions of a

right of way which depended on transfers by deed

or condemnation from mere possessery claimants

might fail if their elaims were forfeited or aban

doned. The company, at all events, would not in

such eases acquire any title good as against the

Government. Here, of course, we realize that our

opponents will say that the settler, even a mere

squatter, perhaps, is commissioned to convey the

fee or a permanent vested easement, and that an

equivalent title will be obtained by a condemnation

of his possessory interest. But why insist on so

anomalous and unealled-for a wav of alienating a

public title when a reasonable construction of the

statute allows the thing to he done in an orderly

way by governmental action, through the approval

of the Seeretary of the Interior?

Tn Washington & Idahe Railroad v. Oshorn, 160

U.S., 108, this court, construing this aet, held that

Osborn, a settler on unsurveved land, who intended

at the proper time to claim a preemption right,

could not be dispossessed by a railroad company

Without proper compensation. The court, on the

authority of Burton v. Traver, 10 UL S., 232, 235,

held that the settler, even though he had ereeted

very valuable improvements, had not aequired any

right whatever, as against the United States, sav-

ing (p. 109):

It must, therefore, be conceded that Oshorn

did not, by maintaining possession for sev-

eral vears and putting valuable improve-

ments thereon, preclude the Government

from dealing with the lands as its own. and

from conferring them on another party by a

subsequent grant,

Nevertheless it was adjudged that his claim was

one of the ** possessory claims on the publie lands

of the United States “* intended by the third see-

tion of the aet, and must be condemned and paid

Se mossne SPER NRO IE t

for as therein provided. Obviously, in condemning

this settler’s inchoate interest, the railroad com-

pany could not acquire nor should it be obliged to

pay for the Government’s fee. The proceeding

would leave the Government’s title untouched.

The same thing would be true if the settler had

filed a homestead claim. The Government’s rights

eould be devested only by the filing and approval of

a map as the statute prescribes.

There are very serious theoretical and practical

objections to the idea of permitting a mere settler—

one who may not even have filed a paper in a land

office and who may be nothing better than an irre-

sponsible nomadic squatter—to eneumber the land

ef the Government in whieh he has aequired no

interest whatever, and we find it impossible to be-

lieve that this statute, any more than the act of

1873. was intended to confer so unusual and un-

ealled for an authority.

The deeisions of the Land Department upon

which appellants rely appear to have assumed,

quite unnecessarily we think, that if this statute

were held applicable to the public lands to which

private claims have attached the Seeretary’s ap-

proval of a location over such lands would vest the

grantee immediately with a permanent easement in

derogation of the equities of the claimants. But

this theory, as we have seen, overlooks the fact that

such claims are protected by the act itself and de-

bars the grantee from the means of acquiring a

uniform and certain title to its right of way.

2. Under this statute no vested right arises

ayatust the Government until a map showing the

railroad location has been filed with and approved

by the Seerctary of the Interior.

Opposing counsel contend that, even if the statute

be held to apply to entered lands, the railroad eom-

pany had aequired a right of way as against the

United States by filing its articles of incorporation

and proofs of organization with the Seeretary of

the Interior and constructing a railroad over the

lands in question. In support of this position they

rely almost wholly upon the case of Jamestown &

Northern Railroad Co. v. Jones, V77 UL S., 125.

(a) It is to be noted, however, that in that ease

there was a railroad completed and in operation

upon the land when Jones took the first step to

initiate a claim to it under the preemption laws,

and that thereafter a map was filed by the company

and approved by the Seeretary of the Interior. On

that state of facts the court held that, although the

entry antedated both the tiling and approval of the

map, the claim of the company must nevertheless

be deemed first in time, and, by relation, first. in

right.

In Minneapolis, St, Paulde., Ry. Co. v. Doughty,

208 U.S., 251, this court held that the doctrine of

the Jones case could not be extended to a case in

which the railway company at the time of the filing

of a homestead entry had done nothing more upon

the land than to stake out the central line of. its

road as finally located by its board of directors.

| Se et ere

In the present ease, when the bill was filed, the

railroad company had merely staked out the line of

its road and commenced the work of grading the

roadbed. That work did not begin until about

November 11, 1909, and this suit was commenced

on December 29 following. The work, therefore,

had been in progress about 48 days. The grading

was substantially completed at the date of the final

hearing, namely, on June 10, 1910, but not, so far

as appears, in any part, when suit was begun. It

is clear, therefore, that the doctrine of the Jones

case does not apply here, even if that case is ap-

plicable in any case as against the United States.

On the state of facts then existing the present case

approaches more nearly to that of Minneapolis, St.

Paul, d&e., Ry. Co. v. Doughty, supra. As was said

by the Cireuit Court of Appeals in this case * the

road has not been construeted and is not in opera-

tion over its projected right of way.”” (R., 209.)

(b) It is submitted, however, that neither the

Jones case nor the Doughty case decided anything

as to the rights of the railroad companies against

the United States. No rights of either company as

against the Government were involved. In each

ease the sole contest was between two private par-

ties, each claiming priority of right over the other.

And. while in the Jones case, this court advanced

some reasons and used some language which, taken

literally, would seem to indicate an opinion that, by

construction alone, without the filing or approval

of a map, a right of way might be aequired as

against the Government, vet it is respectfully sug-

gested that these parts of the opinion were obiter;

the case decided only that, by filing its articles of

incorporation and constructing and operating its

road before the preemption entry was made, the

railroad company had initiated the first claim, and

that its title, subsequently secured by the filing and

approval of a map, related back to that time, eut-

ting out the intervening claim of the preemptioner.

The case is quite the same in principle as Weyer-

haeuser v. Hoyt, 219 U.S., 380, in whieh, putting

aside unnecessary expressions to the contrary in

other decisions, it was held that the filing, by a

‘ailroad company, of a selection of lieu land jniti-

ates a claim and fixes a time to which the title will

relate if the selection is subsequently approved by

the Secretary of the Interior. This analogy was

clearly pointed out in the case of Stalker v. Oregon

Short Line, 225 U.S., 142, 149.

Taking the Jones and Doughty cases together and

considering only the matters necessary to the de-

cision of the questions actually involved, they are

entirely consistent with each other and establish

the law substantially as follows:

The filing of articles of incorporation and proofs

of organization and the construetion of a completed

railroad give the company priority over one sub-

sequently entering the land under the general land

laws, though no map of the route has then been filed

or approved; but the filing of sueh articles and the

Sint

| sania ialdiatitiaieah meee

definite location and staking out of the line without

actual

the fili

construction do not give such priority; and

ng and approval of a map do not relate back

to the date of definite location so as to give priority

over a

The

n intervening entry.

provisions of the statute directly relevant to

the present question are as follows:

The right of way through the public lands

of the United States is hereby granted to any

railroad company duly organized under the

laws of any State or Territory, except the

District of Columbia, or by the Congress of

the United States, which shall have filed with

the Seeretary of the Interior a copy of its

articles of incorporation, and due proofs of

its organization under the same, to the extent

of one hundred feet on each side of the cen-

tral line of said road. * * * (See. 1.)

That any railroad company desiring to se-

cure the benefits of this act, shall, within

twelvemonthsafter the location of any section

of twenty miles of its road, if the same be upon

surveyed lands, and, if upon unsurveyed

lands, within twelve months after the survey

thereof by the United States, file with the

where such land is located a profile of its

road; and upon approval thereof by the See-

retary of the Interior the same shall be noted

upon the plats in said office; and thereafter

all sueh lands over which such right of way

shall pass shall be disposed of subject to such

right of way. * * * (See. 4.)

oe it

ved

The first section employs words of present grant;

but under a general law like this, in which no

grantee is particularly named or intended, it is en-

tirely clear that no grant takes place until a quali-

fied grantee appears and performs the statutory

conditions.

There can not be a grant unless there is a

grantee, and consequently there ean not be

a present grant unless there is a present

grantee. If, then, the law making the grant

indicates a future grantee and not a present

one, the grant will take effect in the future

and not presently. In all the cases in which

we have given these words the effect of an

immediate and present transfer it will be

found that the law has designated a grantee

qualified to take, according to the terms of

the law, and actually in existence at the time.

Hall vy. Russell, 101 U.S., 503, 509.

The appellant railroad company did not come

into existence until long after this law was enacted.

The grant of the swamp-land act is expressed in

the present tense, but title does not vest thereunder

until the lands have been identified and seleeted by

the grantees and the selections approved by the

Seeretary of the Interior.

Little v. Williams, 231 U.S., 335, 339.

The railway act declares that in order to secure

its benefits the applicant shall file a profile of its

road for the approval of the Seeretary. There is

certainly no expression in the statute, and we are

utterly unable to find there any ground for an im-

plication, that a railway company may dispense

with this condition entirely by merely appropriat-

ing the land. If title could be aequired in that man-

ner, why not also under the swamp-land act and the

acts governing the acquisition of lieu lands by rail-

Way companies?

As this court said in the Doughty case, supra:

* * * But section 4 gives little play to

construction or the analogies which the com-

pany invoke. That section determines the

priority of rights between railroads and set-

tlers by explicit language. A right of way

is granted, but to secure it three things are

necessary: (1) Loeation of the road; (2)

filing a profile of it in the loeal land office ;

and (3) the approval thereof by the Secre-

tary of the Interior, to be noted upon the

plats in the local offiee. It is after these

things are done that the statute fixes the

right of the railroad and subjects the dispo-

sition of the land, under the land laws, to

that right. ** And thereafter,” are the words

of the statute, ‘all sueh lands over which

such right of way shall pass shall be dis-

posed of subjeet to sueh right of way.” It

would be a free construction of these words

to give them the meaning for which the rail-

road eompany contends. They neither con-

vey an unnatural sense or lead to an un-

natural consequence. Unless rights under

the act of 1875 and rights under the

land laws were to be kept for an indeter-

minate time in uncertainty and possible con-

flict, to fix some act or point of time at which

they should attach was natural, and to econ-

strue language which is apt and adequate by

its sense and arrangement to express one

time to mean another, would be a pretty free

exercise of construction. We admit that the

letter of a statute is not always adhered to

and words may be transposed, but the neces-

sity for it must be indicated to accomplish

the purpose of the legislation. There is

always a presumption that the words were

intended as written and in the order as writ-

ten: certainly, when they express a definite

sense which would be changed to another

with different and opposing legal conse-

quenees. (208 U.S., 257.)

And in Stalker v. Oregon Short Line, supra,

page 151, the court, referring to the Doughty case,

observed :

What is said in the opinion about the grant

of a right of way being dependent upon the

doing of three things—loeation of road, filing

profile of it in the Land Office, and the ap-

proval thereof by the Secretary of the In-

terior——and that * thereafter all such lands

over which such right of way shall pass shall

be disposed of subject to sneh right of way,”

refers to the nonvesting of any right as

against the United States,

The act of the Secretary in accepting the eom-

pany’s articles and approving its map is judicial

in quality. It is this act which sets a grant in

operation.

When this was done, the granting section

of the act became operative, and vested in the

railroad company a right of way through the

publie lands,

Noble vy. Union River Logging Co., 147

U.S., 165, 172.

See, also, Weyerhaeuser v. Hoyt, supra,

and Phoenix, de. R. R. Co. v. Arizona, de.,

R.R. Co. 9 Aviz., 434, 441.

In United States v. Rickey Land & Cattle Co.,

164 Fed., 496, 500, which involved rights of the

United States in conflict with a private claim under

the irrigation right of way law of March 3, 1891 (e.

561, sees. 18, 19, 26 Stat., 1101), the court, referring

to section 19 thereof, which, mutatis mutandis, is

identical in substance with section 4 of the railway

act of 1875, says:

It will be seen that by the express terms of

this section, in order to acquire a right of

way over publie lands for canal and reservoir

purposes under the act of which it forms a

part, it is essential that the map of the loea-

tion of the canal and the reservoir shall be

approved by the Seeretary of the Interior.

Such approval is a condition precedent to the

taking effect of the grant of right of way for

the purposes named in the preceding section

of the act.

It will be noted that the map must be filed in all

vases, Whether the lands traversed be surveyed at

the time of location or not. In the present case the

lands were surveyed and the map could have been

submitted at any time.

The theory that a title may be acquired by con-

struction was evidently induced by the thought that

as, Where the lands are unsurveyed at the time of

location, the filing mayor must be deferred until the

publie survey has been made, it could not have been

intended to defer the construction correspondingly,

especially since the proviso in section 4 apparently

contemplates that the railroad shall be completed

Within five vears after location. The argument, no

doubt, affords ground for the conelusion that a com-

pany is licensed to proceed with construction over

unsurveyed land, where there is no publie objection,

and with less reason it might be applied to surveved

land; but it affords no justifieation for converting »

mere license into a vested right. Even the real or

supposed inconvenience of leaving the company,

With its railroad built, dependent for full title on

further action by the Government, can not excuse

the obliteration of the plain terms of a statute. This

act declares that maps shall be filed in all cases,

They must be passed upon by the Secretary of the

Interjor. If he finds that the applications conflict

with the interests of the United States, or for any

other reason go bevond the fair limits of the grant-

ing act, it is his duty to disapprove them, and the

same reasons which would justify him in disapprov-

ing an application, if made, will justify his inter-

ference when a railroad company undertakes to con-

struct its road without submitting its ease to him

for his determination,

Dee

If, however, the Jones case is to be taken as hold-

ing only that the existence of a completed railroad

upon publie lands is notice to an intending settler

of a claim toa right of way, which when perfected

by the tiling and approval of a map is entitled to

priority over his intervening entry, then the act is

given full force and effect as it stands and manifest

equities are preserved. Such a construction is not

only consistent with the language of the statute

but also with the general rules of law by which pri-

ority of right is determined as between claimants

under the publie land laws. As a rule, when two

parties, by permission of Congress, go upon the

publie lands and erect: struetures of public or

private utility with a view to the aequisition of an

easement or title under the applicable land law,

that party is prior in right who is prior in time.

(Shepley v. Cowan, 91 US. 830, 338.) Phis rule

is founded, in some cases, on the general policy of

the land laws: in others, upon decisions of the

courts intended to promote justice and recognize

equities; and, in still others, upon express provi-

sions of law, as in the case of settlements with a

view to the acquisition of title under the homestead

laws, (21 Stat., HO, see. 8.) The rule applies,

however, only as between the parties.

The aet which gives priority to one party does

not necessarily give any right as against the

United States. Suehia right is acquired only upon

performance of those acts which are preseribed by

Congress as the conditions upon which the right

or title shall pass from the Government. ‘To give

only the most familiar case, an actual settlement—

the erection of a house and the establishment of a

residence therein—gives the settler a right to be

preferred over all subsequent comers in the acqui-

sition of the Government title if the Government is

to dispose of the title under the publie land laws;

but it initiates no right as against the Government.

The latter may withdraw the lands from disposi-

tion, devote them to a publie use, and oust the

settler from his possession without making him any

eompensation, Frishic v. Whitney, 9 Wall. 187;

Hutchings v. Low (‘The Yosemite Valley ease), 15

Wall., 77.

The rule of priority between claimants is no

doubt founded in part at least on the idea that

actual and lawful possession evidenced by some per-

manent structure, as the house of the settler, the

ditch of the miner, or the constructed railroad, is

notice to all comers of an existing claim which, if

the Government continues to hold the land open to

private acquisition, may ripen inte a title by the

performance of the conditions Imposed hy (‘on-

gress. Let it be conceded that a railroad company

upon the filing and approval of its articles of incor-

poration and proofs of organization may lovfully

go upon the unreserved and unappropriated publie

lands under the statute now in question and con-

struct its road. Under the rule above referred to

it may acquire a priority before acquiring title. It

may acquire beth priority and title (a title for-

feitable for failure to construct) by the filing and

approval of its profile map. [It may acquire a right

of priority alone by actual construction.

Detinite and final location is no doubt the logieal

time for the begimming of priority; but as this court

held in the Doughty case, supra, the mere staking

out of a line is not sufficient evidence of detinite

location, Another intending claimant would have

no knowledge of a resolution of the company’s

board of directors adopting the staked-out line as

the tinal route, and the stakes might easily be re-

moved to a different place. It is a matter of com-

mon knowledge that various surveys are usually

made before a railroad company tinally decides

upon the route to be followed. Henee, as this court

has in substance held, the permanent structure of a

completed railroad is alone sufficient to apprize an-

other of the company’s oecupancy and give it prior-

ity in the absence of a public record resulting from

compliance with seetion 4 of the aet.

The attitude of the Land Department upon the

question now under discussion has not been uni-

form. The regulations explanatory of this act, ap-

proved in January, 1888, declared :

The requirements of the law regarding the

filing of the proper papers and maps are con-

ditions precedent to the obtainment of the

right to construct a railroad over the public

lands, or to take therefrom material, earth,

stone, and timber for its construetion, or to

ocelupy them for station or other purposes,

It is therefore imperative that proper steps,

as pointed out in this circular, should be

taken by a company, and the approval of the

Secretary of the Interior obtained, prior to

the construction of any part of its road or

its oecupaney of the public lands in any

manner. (12 L. D., 426.)

This declaration was reiterated as late as Mareh,

1892 (14 L. D., 340), despite the dicta contained in

the intervening decision of Dakota Central R. R.

Co. v. Downey, 8 L. D., 115.

3. The withdrawn lands were excluded from the

operation of the statute by the terms of the statute

itself.

The fifth section of this act reads:

That this act shall not apply to any lands

Within the limits of any military, park,

or Indian reservation, or other lands spe-

cially reserved from sale, unless such right of

way shall be provided for by treaty stipula-

tion or by aet of Congress heretofore passed.

Lands withdrawn for disposition under the reela-

mation law are ‘‘ lands especially reserved from

sale *’ within the meaning of this section,

(a) Such lands are not sold by the Government.

The settlers acquire title by residence and reclama-

tion, and by fulfilling their obligation to reimburse

the Government for the money laid out in con-

structing, maintaining, and operating the works

(Swigart v. Baker, supra). The word ** sale ™ has

a detinite technical meaning. There must be a

money consideration for the thing sold. See Bou-

vier’s Law Dict., 943; Rapalje & Lawrence Law

Dict., 1144; Commonwealth v. Davis, 12 Bush( Ky.),

240, 241: Picard v. McCormick, 11 Mich., 68, 77;

Schenck v. Saunders, 13 Gray, 37, 41.

In Williamson v. Berry, 8 How., 495, 543, this

court said:

“Sale”? is a word of precise legal import,

both at law and in equity. It means at all

times a contract between parties, to give and

to pass rights of property for money, whieh

the buyer pays or promises to pay to the

seller for the thing bought and sold. Noy’s

Max., ch. 42; Shep, Touch., 244.

And in the Five Per Cent cases, 110 U. 8., 471,

480:

The question before us is not whether the

promise by the Government of a bounty in

land or money to persons entering the mili-

tary service is a contract for valuable con-

sideration; but whether, when carried into

effect, it constitutes a sale by the Govern-

ment: and it is quite clear that land granted

by way of reward for military services has

never been treated, in the legislation of the

United States upon the subject, as sold, but

has always been considered as analogous to

money paid in a gross sum by way of bounty.

Lands acquired by settlers under the reclamation

act are, like homesteads, in the nature of bounties.

See

Smith v. Townsend, 148 U.S., 490, 497.

Anderson v. Carkins, 135 U. S., 483, 488.

McCune v. Essig, 118 Fed., 273, 277.

= aN exacts

Congress in its land laws appears to have em-

ployed the words “‘ sale’’ and “ purchase ’’ with

consistent regard for their technical meaning.

Thus we do not find them in the homestead laws

(R. S8., sees. 2289-2291), or the reclamation act, but

they are present in those acts which contemplate

the disposition of the public land for a considera-

tion consisting in whole or in part of money, such

as the old laws providing for the sale of public

lands at publie entry and subsequent private entry

(see R.S., sees. 2353-2379), now repealed by the

act of Mareh 3, 1891 (ch. 561, 26 Stat., 1099, sec. 9),

and in the more modern acts, like the ** Act for the

sale of timber-lands,”’ ete., of June 3, 1878 (20 Stat.,

89), and the *‘ Act to provide for the sale of desert

lands,”’ ete, of March 3, 1877 (19 Stat., 377).

(b) When this statute was enacted, to reserve

lands ** from sale’? was synonymous with with-

drawing them from all forms of disposition under

the general land laws of the time. Speaking gen-

erally, all of the public lands not particularly re-

served or affected by private claims were subject to

purchase under the preemption law (when sur-

veved), Revised Statutes, section 2257 ef seq., or the

mineral land Jaws, and salability was a condition to

their acquisition under the other laws, such as the

homestead and bounty laws, which did not demand

a pecuniary consideration, ‘The expression in the

fourth section of the act therefore means to-day,

giving it its freest interpretation, lands of a class

Lene NN ST A ELT eI RN ae

RST Sa Re oe

which the Government has specially set apart from

general disposition, because either of some public

plan or policy in regard to them, or to satisfy some

grant or obligation of the Government.

The reclamation ‘* units *’ fall clearly within the

exception, not merely because they are not to be

sold for money, but because they are withdrawn to

accomplish a particular plan in the due execution

of which they must be used by the Government (for

the construction, extension, maintenance, and oper-

ation of canal systems), and their farming value

protected and developed under governmental super-

vision; and beeause also they, or, more accurately,

their usefulness, stancs as a security for the Gov-

ernment’s investment.

This special interest of the Government can not

be said to be displaced until the payments required

by the act have been made for the major portion

of the lands, and the management and operation of

the works pass from the Government to the farm-

ers as the reclamation act prescribes (see. 6).

4. Independently of its own express provisions

which require approval by the Secretary and ex-

clude lands specially reserved, the act of 1875, when

construed in pari materia with the reclamation act,

does not authorize railroad construction in recla-

mation projects against the objection of the Secre-

tary of the Interior.

In view of what we have already said concerning

the relations of the reclamation act to this statute

and to the act of 1873 as amended, it is quite un-

necessary to discuss this proposition. Either we

are wholly wrong in our conception of the rights

and functions retained by the Government in the

withdrawn areas of irrigable lands, or, necessarily,

this proposition is correct.

CONCLUSION.

» It is respectfully submitted that the decree of the

court below should be affirmed.

ERNEST KNAEBEL,

Assistant Attorney General.

W. W. Dyar,

Attorney, Department of Justice.

OcToBER, 1914.

REPOS P Be PRL DM PO Da POE

Iuthe Supreme Court of the Anited States.

OcTOBER TERM, 1914.

Min1p0Ka & SOUTHWESTERN RAILROAD |

Company and Utah Construction

Company, Appellants, No. 19.

THE UNITED STATES.

APPEAL FROM THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE NINTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE UNITED STATES.

In the administration of the railway right of way

act of 1875, and the analogous provisions concern-

ing rights for irrigation purposes contained in the

act of March 3, 1891 (¢. 561, 26 Stat., 1101, sees.

18-21; see our original brief, p. 38), the function

confided to the Secretary of the Interior is some-

thing more than the clerical or ministerial function

of passing upon the mere form of articles of incor-

poration and maps of location. As was remarked

by the court below (R., 209) :

The requirement of the statute that the

railroad company shall file with the register

and receiver the profile of its road and this

67469—14

profile shall be approved by the Secretary of

the Interior before any right attaches, is an

important and far-reaching provision, in

view of the general authority conferred upon

the Secretary of the Interior by the various

acts of Congress relating to the public lands

and particularly by section 441 of the Re-

vised Statutes, wherein he is charged with

the supervision of the public business relat-

ing to the public lands.

Therefore, in a number of the Seeretary’s de-

cisions, it has been held that where the granting of

an application will work harm to some interest of

the Government approval should be refused.

Thus in the ease of the Denver, Northwestern

& Pacific Ry. Co. v. Hydro-Electric Power Co.,

39 L. D., 597, it was decided that the filing of the

requisite papers and map of final location in due

form, prior to the construction of the road, initiated

no right which would prevent the Secretary from

rejecting the application where it appeared that

the granting of the right of way would interfere

with a contemplated reclamation project; and the

Secretary accordingly withheld his approval and

directed that the lands involved be withdrawn un-

der authority of the reclamation act.

In the ease of Continental Tunnel Railway Com-

pany, 39 L. D., 86, ifsaid:

No right is acquired under the act of

March 3, 1875, as against the United States

by the simple filing of the articles of incor-

poration and the maps of location therein

provided for, until the approval thereof by

the Secretary of the Interior. At any time

before such approval the land may be re-

served from sale by the Executive authority

for uses authorized by law which would de-

feat the application.

And it was held (we quote the syllabus) that

(p. 86) :

Where an application for railroad right

of way covers public lands upon which are

possible power sites, examination should be

had by the Land Department, before acting

upon the application, to determine whether

the lands may be utilized to the best advan-

tage for power sites or other power pur-

poses; and if it appear that the publie good

resultant from withholding the land for

power development is disproportionate to

the benefits to be derived from construction

of the railroad, the application should be ap-

proved, even though it might interfere with

development of the power; but if, on the

other hand, the power possibilities are suffi-

cient to justify utilization of the public lands

for such purposes to the exclusion of other

uses which may conflict, the lands should be

withdrawn and the application rejected, un-

less the line of road can be so located as not

to interfere or conflict with the use of the

land for power purposes.

See, also, the case of Skagit Power Company, 39

L. D., 89, and the instructions of January 29, 1910,

38 L. D., 405 (annulled by that decision), which had

gone so far as to require applicants for railroad

rights of way over lands where valuable power sites

might be found to stipulate, as a prerequisite to

approval, that they would upon proper request ele-

vate or remove their tracks, ete., in the event of the

withdrawal of lands for water-power purposes.

In the ease of Francis W. Bosco et al., 39 L. D.,

104, the department refused to approve an applica-

tion based on the act of March 3, 1891, supra, for

a right to include certain publie lands in Colorado

in a reservoir designed to take water from the

watershed of the Rio Grande. The refusal in this

instance was in line with the policy adopted years

before and consistently followed, to protect the

headwaters of that stream from excessive diver-

sions, lest the Engle Dam reclamation project in

New Mexico—a project for which $1,000,000 had

been appropriated by Congress and which involved

an estimated cost of $7,000,000 or more—should be-

come endangered. The project is designed to sup-

ply water for the irrigation of large areas of land

in New Mexico and Texas, and also to provide

water for use in Mexico pursuant to a treaty exist-

ing between this country and that Republic. In his

decision the Assistant Secretary, referring to the

elaim that the contemplated diversion of water

would work no injury, observed (p. 107):

The department is by no means convinced

that this is true, and in the absence of such

conviction it is believed to be the duty of the

Secretary of the Interior to exereise such

diseretion as is necessary to proteet the in-

terests of the United States.

In the ease of D.C. McWatters, 41 L. D., 45, an

application for a reservoir site was rejected because

the use of the reservoir might work harm to the

Minidoka reclamation project.

In California-Nevada Canal, Water & Power

Co., 40 L. D., 380, 384, whieh involved an appliea-

tion under the act of 1891 affecting lands within a

national forest, the Assistant Seeretary said:

In the verv necessities of the ease, what-

ever might be said as to application under

said acts for rights of way upon the unre-

served publie domain, it may not be suecess-

fully disputed that the exercise of this juris-

diction within a reservation of the United

States involves the exercise of more than a

mere legal diseretion. In other words, that

diseretion may and should look beyond the

technical sufficieney of the application and in

broad view should subserve the interests of

the whole people.

By the act of March 2, 1899, 30 Stat., 990,

rights of way through Indian reservations for rail-

way and other purposes are ‘thereby granted ”’ to

any railway company duly organized, ete., which

complies with the provisions of the act. The act

(section 3) provides that a road may be surveyed

and located by permission of the Secretary, but

that ** before the grant of sueh right of way shall

become effective a map of the survey of the line

or route of said road must be filed with and ap-

proved by the Seeretary of the Interior, and the

company must make payment ”’ of full compensa-

PEE N AO RAR. ESET as

tion for the benefit of the Indians. In the case

entitled San Carlos Reservoir Site, 40 L. D., 470,

it was held that an application under this statute

for a railway right of way through a narrow can-

yon, which formed the most feasible site in that

region for impounding the waters of the Gila River,

should be refused unless the company elevated its

location to a contour above the reservoir site. At

page 473 it is said:

Certainly the railroad should not be per-

mitted to destroy the possibilities incident to

the irrigation of the arid lands in the valley,

including Indian lands, and the resulting

agricultural prosperity of that portion of

Arizona, from which the railroad itself will

ultimately derive a substantial benefit, espe-

cially where a change in the location of its

line is reasonably possible.

It is submitted that the broad view of the Seere-

tary’s power is consistent with his broad general

duties as the guardian of the publie lands and the

administrator of all the public land laws (Knight v.

Land Ass’n., 142 U. S., 161, 181; Riverside Oil Co.

v. Hitchcock, 190 U.S., 316); that it is consistent

with the language of the right of way acts, which

does not in terms abridge the discretion naturally

implied in the word ‘‘approve”’; and that it is es-

sential to the proper protection of the Government,

whose manifold interests might readily be impaired

under such general statutes as these if no latitude

of discretion were conceded in their execution.

If an application for a right of way for a rail-

road, or for a large irrigation canal, or reservoir,

within a reclamation project, were submitted to

the Secretary of the Interior, he, as the representa-

tive of the United States, and also of the whole

body of reclamation settlers, would naturally be

expected to consider very carefully the possible ef-

fects of such enterprises upon the welfare of the

project, and we submit that it would be his plain

duty to refuse his approval if he believed that

harm would result. Indeed, it would be hard to

imagine a condition of the law so utterly crude

and improvident as one which would compel the

guardian of so important a public interest to in-

jure or destroy it by his own ** approval.”’

This discretion to approve or disapprove is the

discretion of the Secretary of the Interior. It

exists as a peculiar means of governmental protee-

tion. Therefore it is not to be evaded by ignoring

the Secretary and constructing the railway or canal

in spite of his objection.

We earnestly submit that the orderly way in

which to construe and execute these statutes is to

require the railway company, or the canal company,

to place its ease before the Secretary of the Interior

and obtain his decision, as is done in other cases

arising under the general land laws. Section 4 of

the railway act intends that this shall be done in all

eases. The requirement is not inconsistent with

the existence of a license to proceed with construe-

tion prior to approval, nor inconsistent with the

idea that a railway company by construction alone

may acquire rights which may not be displaced by

the Land Department. But when there is a prob-

ability, or even a possibility, that the plan of the

company may be hostile to the superior interests of

the Government, and when the right of the com-

pany to proceed has been challenged on the Govern-

ment’s behalf, the company should stay its hand

until the question ean be duly considered and deter-

mined by the Secretary.

Whenever there is a fair question, such as would

properly be addressed to the judgment and dis-

eretion of the Seeretary if his judgment were re-

quested, that question should be submitted to him

as the officer or tribunal specially designated by

the law to decide it.

Concluding, as we do, that the question

whether the complainant has ever made a

proper selection of land in lieu of the land

relinquished, has never been decided by the

Land Department, but is still properly be-

fore that department, the courts can not take

jurisdiction and proceed to decide such ques-

tion themselves. The Government has pro-

vided a special tribunal for the decision of

such a question arising out of the adminis-

tration of the publie land laws and that ju-

risdiction ean not be taken away from it by

the courts.

(Cosmos Co. v. Gray Eagle Co., 190 U.S.,

301, 315.)

The case cited involved a forest lieu land selec-

tion. In the case of Williams v. United States, 138

U.S8., 514, 524, there was under consideration an

act of Congress granting lands to the State of Ne-

vada and providing that, when selected, they should

be certified to the Commissioner of the General

Land Office ‘‘and approved by the Secretary of the

Interior.”’ (21 Stat., 287.) Here apparently was a

direct mandate to the Secretary to approve the

selections, and no reference was made to any dis-

eretion to be exercised by him. It appeared, how-

ever, that the approval was being sought in the in-

terest of one who had entered the same land as a

desert claim, assigned it illegally to an innocent

third party, had subsequently relinquished the

claim to the Government, and was now endeavoring

to secure the title for himself, Although there was

no pending claim, and apparently no method short

of a special act of Congress under whieh the land

could have been granted to the injured third party,

this court held that, under the circumsances, it was

the duty of the Seeretary to withhold his approval

of the State selection to await congressional action

if necessary, and that a certification of the tract,

Which had issued inadvertently, was properly can-

celed by the deeree under review. Tt declared that

the Secretary's approval of such selections was “ no

mere formal act ’’; that he was allowed no arbitrary

diseretion, but did have power to prevent the in-

justice sought to be perpetrated: and that to meet

Vit WARE a

Ars |

the ‘‘ matters not foreseen,”’ and ‘ equities not an-

ticipated,’ arising in ‘‘ such large and varied in-

terests as are intrusted to the Land Department,”

* * * “the Secretary of the Interior is given

that superintending and supervising power which

will enable him, in the face of these unforeseen con-

tingencies, to do justice.”

See, also, St. Paul, M. & M. Ry. Co. v.

Sage, 71 Fed., 40, 49; Buttz v. Railroad Co.,

119 U. S., 55, 72.

Respectfully submitted.

ERNEsT KNAEBEL,

Assistant Attorney General.

W. W. Dyar,

Attorney, Department of Justice.

OcToBER, 1914.

MINIDOKA R. R. CO. ev. UNITED STATES. 211

235 U.S. Argument for Appellants.

MINIDOKA & SOUTHWESTERN RAILROAD COM-

PANY v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF API \LS FOR THE

NINTH CIRCUIT.

No. 19. Argued October 29, 30, 1914.—Decided November 30, 1914.

Under the policy of the Government to encourage the building of rail-

roads in the western States, Congress has in some cases granted land

to aid in construction and has also provided the means by which

those companies not having such grants can, under reasonable con-

ditions, acquire rights of way over public lands.

While the right of way statute only applies to public lands and, there-

fore, does not apply to lands segregated from the public domain |)

homestead entries, settlers may, under § 2288, Rev. Stat., grant rights

of way over land before final proof.

Nothing in the Reclamation Act of June 17, 1902, 32 Stat. 388, affects

the provision of § 2288, Rev. Stat., permitting homesteader with-

out patent, but in lawful possession, to grant to a railroad compan)

a right of way across his claim.

The privileges for granting to railroad companies rights of way ove:

homesteaders’ land under entry were renewed and extended by th:

act of March 3, 1905, ¢. 1424, 33 Stat. 991,

In this case, held that the various acts of Congress in effect operated to

give the consent of the United States to the construction of a railroad

as an instrumentality of commerce across the lands of those home-

steaders within the limits of the Minidoka Irrigation Project in

Idaho who gave deeds for the right of way to the railroad company.

190 Fed. Rep. 491, reversed, and 176 Fed. Rep. 762, affirmed.

Tue facts, which involve the construction of acts ot

Congress regarding railroad rights of way and the right

of entrymen within the reclamation projects to deed rights

of way for railroads, are stated in the opinion.

Mr. Henry W. Clark and Mr, A. A. Hoehling, Jr., with

whom Mr. P. L. Williams was on the brief, for appellants:

The authority to convey a right of way for railroad pur-

OCTOBER TERM, 1914.

Argument for the United States. 235 U.S.

poses expressly given to homestead settlers by § 2288, Rev.

Stat., is not impaired by the provisions of the Reclamation

Act.

The lands in question were not public lands and there

was no authority under the general right of way act of

1875 for the filing or approval of a map of definite location

affecting them.

The right of way granted by the homestead _ settlers

under the authority of § 2288 is complete and perfect. The

statute itself operates as the consent of the Government

to subject its interest in the land to the right of way

during the life of the homestead entry and also after for-

feiture of the homestead.

The dictum of the Circuit Court of Appeals that the

general right of way act requires the filing of a profile of

the road rather than a map of alignment or definite

location is contrary to the practice of nearly forty

years.

In support of these contentions see A lexander v. Kansas

City R. R. Co., 138 Missouri, 464; Bardon vy. Nor. Pac.

R. R. Co., 145 U. 8. 535; Barker v. Harvey, 181 U. 5.

481; Dakota Cent. R. R. Co. v. Downey, 8 L. D. 115; James-

town &c. R. R. Co. v. Jones, 7 No. Dak. 619; S. C., 177

U.S. 125: Kern Valley Water Co., 15 L. D. 577; Montana

Cent. R. R. Co., 25 L. D. 250; Northern Lumber Co. v.

O'Brien, 204 U. S. 190; Regulations under General Right of

Way Act, 33 L. D. 481; Santa Fe &c. R. R. Co., 22 L. D.

685: Stalker v. Oregon Short Line, 225 U.S. 142; Un. Pac.

R. R. Co. v. Harris, 215 U. 8. 386; United States v. Bu-

chanan, 232 U. 8. 72.

Mr. Assistant Attorney General Knaebel, with whom

Mr. W. W. Dyar was on the brief, for the United

States:

The right to build and operate a railroad through a

reclamation project without consulting the Government

MINIDOKA R. R. CO. v. UNITED STATES. 218

235 U.S. Argument for the United States.

should not be adjudged to exist unless plainly conferred

by some act of Congress.

The act of March 3, 1873, as amended, does not em-

power the entrymen to authorize the construction of a

railroad through a reclamation project without the con-

sent of the Secretary of the Interior.

The act merely authorizes the settler to relinquish in

part the privileges which he enjoys under the settlement

law, not to convey the title or to impair in any way the

interest of the Government.

As to lands which, like the lands of reclamation pro-

jects, are affected by a special public interest, the act of

March 3, 1873, if applicable at all, should be construed

as a means of securing the consent of the settler to the

uses mentioned, but not to permit those uses in the

absence of governmental approval.

Construed in pari materia with the Reclamation Act,

the act of March 3, 1873, as amended, can be deemed

operative only in so far as consistent with the proper

management and welfare of such projects. This nee-

essarily implies that the transfers of the settlers must

remain ineffectual if not approved or if objected to by

the Government through the Secretary of the Interior.

Under the statute no vested right arises against the

Government until a map showing the railroad location

has been filed with and approved by the Secretary of the

Interior.

The withdrawn lands were excluded from the operation

of the statute by the terms of the statute itself.

Independently of its own express provisions, which re-

quire approval by the Secretary and exclude lands spe-

cially reserved, the act of 1875, when construed in part

materia with the Reclamation Act, does not authorize rail-

road construction in reclamation projects against the

objection of the Secretary of the Interior.

In support of these contentions see Anderson v. Carkins,

‘

ais

Nikictidon Beka

‘a

PEI ETI I

TRY PR er oe

SEAS Aas CORSET ck MA AU

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.