Opinion — Minidoka & Southwestern R. Co. v. United States

OCTOBER TERM, 1914.

Argument for the United States. 235 U.S.

135 U. S. 483; Buxton v. Traver, 130 U. 8. 232; Cascade

Corporation v. Railsback, 59 Washington, 376; Common-

wealth v. Davis, 12 Bush (Ky.), 240; Dakota Cent. R. R. Co.

y. Downey, 8 L. D. 115; Davis v. Foreman, 14 L. D. 146;

Eimer v. Wellsand, 93 Minnesota, 444; Enoch v. Spokane

Falls & N. Ry. Co., 6 Washington, 393: Five Per Cent Cases,

110 U. 8. 471; Frisbie v. Whitney, 9 Wall. 187; Hall v.

Russell, 101 U. 8. 503; Hutchings v. Low, 15 Wall. 77;

Jamestown & N. R. R. Co. v. Jones, 177 U.S. 125; Knight

:. Land Ass’n, 142 U. 8. 161; Larsen v. Navigation Co.,

19 Oregon, 240; Little v. Williams, 231 U. 8. 335; McCune

\y. Essig, 118 Fed. Rep. 273; Minneapolis, &c. Ry. Co.

v. Doughty, 208 U.S. 251; Noble v. Union River Logging

Co. 147 U.S. 165; Phenix &e. R.R. Co. v. Arizona R.R.

Co.. 9 Arizona, 434; Picard v. Mel ‘ormick, 11 Michigan, 68;

Railway Co. v. Sture, 32 Minnesota, 95; Schenck v. Saun-

ders, 13 Gray, 37; Scott v. Carew, 196 U. 8. 100; Shepley

vy. Cowan, 91 U. 8. 330; Smith v. Townsend, 148 U.S. 490;

Spokane Falls Ry. Co. v. Ziegler, 167 U.S. 65; Stalker v.

Oregon Short Line, 225 U.S. 142: Swigart v. Baker, 229

U.S. 187: Union Pac. R. R. Co. v. Harris, 215 U.S. 386;

United States v. Blendaur, 128 Fed. Rep. 910; United States

\. Minidoka & S. W. R.R. Co., 176 Fed. Rep. 762; 8. C.,

190 Fed. Rep. 491; United States v. Rickey Land Co., 164

Fed. Rep. 496; Washington &e. R. R. Co. v. Osborn, 160

U.S. 103; Weyerhaeuser v. Hoyt, 219 U.S. 380; Wilcox v.

Jackson, 13 Pet. 496; Williamson v. Berry, 8 How. 495;

\ct of March 3, 1873, 17 Stat. 602; Act of March 3, 1875,

18 Stat. 482; Act of March 3, 1877, 19 Stat. 377; Act of

June 3, 1878, 20 Stat. 89; Act of March 3, 1891, 26 Stat.

1097: Act of June 17, 1902, 32 Stat. 388; Act of March 3,

1905, 33 Stat. 991; Rev. Stat., §§ 2257, 2288, 2289-2291,

2353-2379.

See also Bouvier’s Law Dict. 943; Rapalje & Lawrence

Law Dict. 1144; Regulations under Act of March 3, 1875,

12 L. D. 423; 14 L. D. 338.

MINIDOKA R. R. CO. °. UNITED STATES. 215

235 U. S. Opinion of the Court.

Mr. Justice Lamar delivered the opinion of the court.

The Minidoka & Southwestern Railroad Company was

authorized by its charter to build its road along a line

which ran through the Minidoka Irrigation Project in the

State of Idaho. Homesteaders, without patents but law-

fully in possession of irrigable land within the reclamation

area, granted rights of way over their settlements to the

Railroad Company.

When the Company began to build the United States

sought to enjoin the work on the ground that a railroad

could not be built across lands within a reclamation area

without the consent of the Government. It was also

claimed that the necessary embankments, excavations,

bridges and culverts would interfere with the success of

the irrigation works. The Company answered and relied

on the conveyances from the homesteaders. After a

hearing the District Court denied the injunction but made

provision that the culverts should be so built as not to

interfere with the flow of water through the canals and

ditches (176 Fed. Rep. 762). This decree was reversed

by the Circuit Court of Appeals (190 Fed. Rep. 491) on

the ground that the lands in the reclamation area, though

in possession of settlers, were public lands within the

meaning of the Right of Way Act (March 3, 1875, e. 152,

18 Stat. 482) and that before its road could be built

through the Minidoka Irrigation works the Company must

obtain the consent of the Secretary of the Interior. From

that decree an appeal was taken to this court.

It has always been the policy of the Government to en-

courage the building of railroads in the Western States,

and many land grants have been made by it to aid in their

construction. Congress has also provided a means by

which those companies having no such grants could ac-

quire rights of way over any portion of the public land by

filing a map of definite location and securing its approval

Le cee aa ESRI Oe

OCTOBER TERM, 1914.

Opinion of the Court. 235 U. S.

by the Secretary of the Interior (18 Stat. 482). This law,

however, by its very terms applies only to “ public lands”

and hence cannot be construed to empower the Secretary

to authorize the building of roads across lands which had

been segregated from the public domain by the entry and

possession of homesteaders or preémptors. Bardon v.

Northern Pac., 145 U. 8. 535, 538; C Tnited States v. Bu-

chanan, 232 U. S. 72, 76, and cases cited. On the other

hand, settlers, without patent, were not in a position to

make deeds to rights of way, not only because they had

no title but also because they were prohibited from alienat-

ing such land before final proofs. Rey. Stat., $2291. The

consequence was that neither the Government nor the

homesteaders could make such grants, and as the Com-

pany could not build without an assured title to its right

of way, it was practically impossible to construct railroads

through territory which consisted partly of publie lands

and partly of that which was in the possession of settlers.

But it was greatly to their interest and to that of the Gov-

ernment that such a highway should be constructed and

iy order to meet the difficulty, Congress, on March 3,

1873, ¢. 266, 17 Stat. 602 (Rev. Stat., § 2288), passed an

act providing that any bona fide settler might convey by

warranty against his own act any part of his claim ‘‘for

church, cemetery, or school purposes or for the right of way

of railroads.” Under this act the appellant could have con-

structed its road along the strip conveyed to it by the

homesteaders unless, as claimed by the Government, the

provisions of Rey. Stat., § 2288 as amended (March 3,

1905, ¢. 1424, 33 Stat. 991) have been repealed as to lands

within irrigation projects and the completed Minidoka

Irrigation Works.

Counsel for the United States contend that the Reclama-

tion Act (June 17, 1902, c. 1093, 32 Stat. 388) requires that

when an irrigation project is undertaken the Secretary of

the Interior shall define its limits and withdraw all the

ee ee

MINIDOKA R. R. CO. v. UNITED STATES. 217

235 U.S. Opinion of the Court.

irrigable land therein from the publie domain and from

the operation of the general land laws: It is argued that

when thus withdrawn the irrigation area constitutes a iS

unit in which the United States has such a special interest :

as to require that it shall be subject to the supervision of

the Secretary—he, in order to secure the success of the

undertaking, having it in his power to decide whether a

railroad should be built, and if so, along what line and

across What lots it should be constructed. It is also ar-

gued that settlers having no patents ought not to be in a

position to grant a right of way over lands which they do

not own and may never acquire and thereby impose :

burden upon the claim if it should afterwards come into

the hands of other homesteaders.

These considerations, however, have not induced Con- |

gress to change its policy of encouraging the construction i

of railroads along routes designated by charters and over 5

land in the possession of settlers. Neither have they in- :

duced Congress to confer upon the Secretary the power to :

grant rights of way through irrigation lands in the pos- f

session of homesteaders. N

It is true that the Reclamation Act of June 17, 1902 2

(e. 1093, 32 Stat. 388), provides that when the Secretary of '

the Interior determines upon an irrigation project he must 4

define its limits and ‘‘ withdraw the irrigable lands therein FE

from all forms of settlement, except under the homestead 4

law.” and all settlements therein shall be ‘subject to the ‘

limitations, charges, terms, and conditions provided in the t

Reclamation Act.’ And it is further true that the provi- i

sions of this statute do, in several important respects, B

modify the homestead law. The Secretary can limit the

size of the homestead to ten acres, instead of the 160 acres

permitted by the general law. The settler, instead of

being entitled to receive a patent at the end of 5 years on

compliance with the statutory conditions (Rev. Stat.,

§§ 2289-2291), Is not permitted to make final proof and

2is OCTOBER TERM, 1914.

Opinion of the Court. 235 U.S.

receive a patent until he has reclaimed one-half of the

irrigable area for agricultural purposes, and has also paid

his proportionate share of the cost of the irrigation system

in instalments,—the last of which may not mature for ten

years after entry.

There are, possibly, other provisions to meet the special

conditions of lands constituting an irrigation plant. But

except as modified by the specific terms of the Reclamation

Act. such lands are distinctly made subject to entry under

the provisions of the homestead law, and all of the home-

steaders’ rights therein are the same as if the settlement

had been located outside of the limits of irrigation works.

One of the privileges, not affected by the Reclamation

Act, is that which permits the homesteader, without pat-

ent. but in lawful possession, to grant to a railroad com-

pany a right of way across his claim; and whatever reason

there was for conferring this right upon those who entered

land in a sparsely settled section is doubly operative as to

land located within the more thickly populated reclama-

tion areas. Manifestly this is true as to so much as may

be needed for churches and school houses. It is equally so

as to rights of way for railroads and other public utilities

needed by the numerous residents living within the irriga-

tion areas.

An act passed since the Reclamation Act of 1902 serves,

if possible, to make clearer the fact that Congress did not

intend to deprive settlers on these or any other class of

lands from granting railroad rights of way. For on

March 3, 1905 (33 Stat. 991), after the establishment of the

Minidoka Project, Congress amended Rev. Stat., § 2288

so as to provide that “any bona fide settler under the pre-

emption, homestead, or other settlement law shall have the

right to transfer, by warranty against his own acts, any

portion of his claim for church, cemetery, or school pur-

poses, or for the right of way of railroads, telegraph, tele-

phone, canals, reservoirs, or ditches. * "These

HENRY v. HENKEL. 219

235 U.S. Syllabus.

privileges were renewed and extended by this act because

of the public benefits to be derived from such utilities.

When, therefore, the Minidoka & Southwestern Railroad

Company, in 1909, secured grants to the continuous strip

through the reclamation area, the Company, by virtue

of these public statutes and the private grants, Was au-

thorized to construct its road not only across the agricul-

tural lands, but over the intervening ditches and canals.

or. while the latter formed a part of the irrigation unit,

they were also particularly appurtenant to the lands

through and along which they ran.

These various acts of Congress operated to give its con-

sent. in advance, to the construction of such a highway

and instrumentality of commerce, notwithstanding any

interest the United States may have had in the lands de-

ceribed in the deeds from the homesteaders to the Railroad

Company.

The decree of the Circuit Court of Appeals is reversed and

that of the Circuit Court for the District of Idaho ts

affirmed.

ay ORR