Petition for a Writ of Certiorari — Central Pacific R. Co. v. Alameda County
Supreme Court brief1932
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a ' Sd ae, OHARLZS Conuid om
7 ‘INTHE. “e .
Supreme Court of the United States
OcToBER ‘Term, 1931.
_
CENTRAL Paciric Raruway Company, a corporation, and
SourHern Paciric Company, a corporation, Pe-
titioners and Appellants below,
Vs.
County or ALAMEDA, a body politic and corporate, ~
Cuas. W. Hever, Ratpu Ricumonp, Jonny F. Mvt.°
LINS, RepMonp C. Sraats and ILLIAM J. Hamu.’
TON, Members of the Boarp or Supervisors oF
Sai Country, John’ Doe Corporation, Richard
Roe ‘Corporation, John Smith, Thomas Brown,
James Coe, Joseph Hoe, Edward Poe, Robert
Crow and Frederick Stow, Respondents and Re- —
spondents below. :
PETITION FOR WRIT OF GERTIORARI TO THE q
SUPREME COURT OF THR STATE OF .
CALIFORNIA AND BRIEF IN- SUPPORT
THEREOF. .
F ©. F.R. Oainpy,
1422 F. Street, N. W..
J __ Washington, D. ©.
Frank Tuunen, |
‘ a 65 Market Street, —
/ . San Francisco, Calif.
; Attorneys for Petitioners.
Guy V. SHovp,
65 Market Street, .
.San Francisco, Calif.
-Of Counsel.
Press or Byron 8. Apams, WasHINGTOon, D. CO,
s
ese
o..
~__
i %
INDEX,
Page
PETITION FOR WRIT OF CERTIORARI.. 1
Suthmary Statement of Matter Involved...... 2
Reasons far Allowance of be een 4
Prayer for Writ...... Pe Seen Tree 4°
' BRIEF IN SUPPORT OF PETITION FOR
_. WRIT.OF CERTIORARI............... 6
Opinion of the Court Below, 81 Cal. Dee, 652,
TUE en REET TC eT ena 6
WUE: ch0 8 Fw ankexhkvas dovuwaceens one 6
Statement of the Case ................... yo
Specification of os ad OTE re eI 12
Summary of the Argument. Tlie e re eT Teer ye 13
it ig ces gE PRO rn ne ae 13
1, The. Effect of the Act of Congress Approved
March 3, 1875 (18 Stat. 482) as Amenda-
tary. of Special Grants Theretofore Made
by Congress Has Been Considered by this
Court Favorably to Petitioners’ Conten-
tion. It Was not Within the Intent or the
Power of Congress to Impair Vested Title. 14
Authorities: | 2G *
Railway Company vs. Alling (Oct. Term.
1878) 99 U. 8. 463, 479 ............. 15
Sinking Fund Cases, 99 U. S. 700, 719,
WEF $55 o0 tndveadcobiessi te UL. 14.
sUnion Pacific R. R. Co. vs. Laramie
Stock Yards, 231 U. §. 190, 200 ...... 18
ii Index Continued. _
Union Pacific R. R. Co. vs. Snow, 231 U.
RR er ee gee eee
United States vs. Denver & Rio Grande
Railway, 150 U. S. 1, 10 ......... ee
Act of June 8, 1872 (17 Stat. 399) .....
Act of March 3, 1875 (18 Stat. 463) ....
2. The State Police Power and the Power to Ac-
quire Highway Rights by Adverse User
Could not Extend Beyond the Railroad
Company’s Power of Alienation. Prior to
May 25; 1920 (41 Stat. 621) the Railroad
Company Had no Power to Alienate Longi-
tudinal Strips of the Right of Way Ac-
quired by Congressional Grant ..........
, Authorities: -,
Barnes vs. Southern Pac. Co., 16 Fed.
tf area
‘Heilbron vs. St. Louis S. W. Ry. Co. of .
Texas, 52 Texas Civil Appeals, 575,
581 (113 S. W. 613) .......... oe;
Holland Co. vs. Nor. Pac. R, R.-Co., 208
ee SD ce ee
Holland Co. vs. Nor. Pac. R. R. Co., 214
5 5 Ree calles 0
_ Kindred vs. Union Pacific R. R. Co., 225
Pere Oe RRL
Leavenworth etc. Ry.. Co. vs. U.'S., 92
ee SS eee aon
Mulvihill vs. S. P. Co., 16 Fed. (2nd.) 100,
WY inend de anttce as tase di
' Page
a
29
21
p narahab agin oy
“4 a IA
.
1852, and April 4, 1864. ........ a ee
Index Continued. iii
eos: Page
Nadeau vs. Union Pacific R. R.Co., 253
a. So er eee 20
North.Coast Ry. vs. Nor. Pac. Ry.: Co.,
_ 48 Wash. 529, 94 Pac. 113 .......... 19
Nor. Pac. R. R. Co. vs. Smith, 171 U.S. -
ETT Pn he a
Nor. Pac. Ry. Co. vs. Townsend, .190 U.
git, Sra ee i 2
Oleott vs. Board of Supervisors, 16 Wall
Ce dbx, LWESSA GAHAN eke cad we < Siena 23
Railway Co. vs. Alling (Oet. Term 1878)
99 U. S. 463, 479 ...... oe
Sinking Fund. Cases, 99 U. S. rn 14
Southern Pac. Co. vs. Hyatt, 132 Cal. |
2M, SM, OM ..... oc... 23
United States vs. Denver & Rio Grande
sso Nessa ct. Serre ee +
Williams, Mayor, et al. vs. Aflantie
Coast Line R. Co., 17. Fed. (2nd.) 17,
_ Bere Se er ne ree 24
Interstate Commerce Act, Sec. 1 (Subdv.
ee Ser eo ees 23
_ Jones on Easements, Sec, wel, p. 232... 4
3. There Was No Federal Grant of County
Highways Prior to the Right of Way Grant
of July 1, 1862, Nor Until Four Years
- Thereafter. The County of: Alameda Did
Not Adopt the Traveled Way. asa County
Road. Any Claim of the County to the |
Traveled Way Was Renounced by the
State in the Legislative Acts of May 1,
iv . Index Continued.
Page
Authorities : :
Railroad Co. vs. Baldwin,. 103 U. S. 426 28
Town of Red Bloff vs. Walbridge, 15
Cal. App. 770 ....... ee en yas 26
Tucson Consolidated Copper (Co. vs.
Reese (Ariz.), 100 Pac. 777, 778 . 28
Act of July 1, 1862 (12 Stat. 489) Sec. 12. 8
California Statute of April 26, 1858,
eerie vevars st aearees. Fieacue: 28
Conclusion . _ i ee Oe ee oe a ee a eee ‘ eee e eee eeee 29
TABLE OF CASES CITED.
Barnes vs. Southern Pacific Company, 16 Fed.
(2nd.) 100, 104° ..2.:.......000.. ee rent 25
Carlson vs. Curtis, 234 U. S. 103 ............... 10
- Dana vs. Dana, 250 U. S. RAS biNkoesboteee es - 10
Erie R. R. Co. vs. Hamilton, 248 U. B. 360 ...... 10
Gauthier vs. Morrison, 232 U. S, 452 .......... 10
Grayson vs. Harris, 267 U. S. ae eae 10
| oe tye iis 10.
Heilbron vs. St. Louis S. W. ~ Co. of Texas, 52
Texas Civil Appeals, 575, 581 (113 S. W. 613) 26
Holland Co. vs. Nor. Pac. R. R. Co.,°208 Fed. 598,
a ST Re ee an, TD aoe i eer ee 21
Holland Co. vs. ‘Nor. Pac. R. saa Co., 214 Fed. 920,
AS huwna Kalnnkie ry Ug, Ones Von 4
Jordan vs. Tashiro, ee ee ec 10
Kindred vs. Union Pacific R. R. Co., 225 U. S.,
‘MEE Sake eh oho ChE Ee Sev IE a oe esos bk, 20
. Knights of Pythias vs. Meyer, 265 U. S. 30. 10
Leavenworth ete. Ry. Co. vs. U. S., 92 U.S. 733,
oie ee, Patan 21
SPD Weiwtahpscerevae I ts 8h ta ae es nes
Index Continued. A.
Page
Missouri Valley Land Co. vs. Wiese, 208 U. S. 234 10
Missouri Valley Land Co. vs. Wrich, 208 U. S. 250 10
Mulvihill vs. S. P. Co., 16 Fed. (2nd.) 100, 104 25
Nadeau vs. Union Pacific R. R. Co., 253 U. S. 442 20
North Coast Railway vs. N orthern Pacific Ry.
Co., 48 Wash. 529,94 Pac. 113... 19
Northern Pacific R. Co. vs. Colburn, 164 U. S. 383 10
Nor, Pac. R. R. vs. Smith, 171 U. S. 261, 275 roa M8
‘Nor. Pac. Ry. vs, Townsend, 190 U. S. 267, 271. .4, 22
Olcott vs, Board of Supervisors, 16 Wall. 678 23
Railroad Co. vs. Baldwin, 103 U. S..426-...:.. -. 28
Railway Co. vs. Alling, (Oct. Term 1878) 99 U. S. |
. re A Te Oe rae -» of, 15
Sinking Fund Cases, 99 U. §. 700, 719, 757... .4, 14, 20
Southern Pacific Co. vs. Hyatt, 132 Cal. 240, 242,
< oveueay OS oi tere eee ie Ra 23
Southern Pacific Co, va. Wehuyler. 227 U. S. 601,
ee ONE nee poe arie ed ar ating: 10
Town of Red Bluff vs, Walbridge, 15 Cal. App. ~
a ane ae Rey oui tial De 26
Tueson . Consolidated Copper Co. vs Reese,
(Ariz.) 100 Pace. 777, 778 Le eee Tee TT eee ror ©
Union Pacifie R: R. Co. vs. Laramie Stock Yards, x
231 U. S. 190, 200 ........ See ee eames ous 18
Union Pacifie R. R. Co. vs. Snow, 231 U. 8. 204 18
United States vs, Denver & Rio Grande Railway, )
me 8... eos cans. i ee 4, 17, 20
Williams, Mayor, et al. vs. Atlantic Coast R. R.
Co., 17 Fed. (2nd.) 17... Pe mite ..4, 24
\ 5
TABLE OF STATUTES AND COURT RULE.
: | Page
Act of July 1, 1862 (12 Stat. 489) Sec. 12 ...:.. 9
Act June 8, 1872 (17 Stat. 08) ..... eed tae eae 15
Act March 3, 1875 (18 Stat: 482) ......°.... 3, 14
Act May 25, 1920 (41 Stat. ee 6,13
California Code Civil Procedure, Secs. 939, 940 3
. California Constitution, Art. VI, See. 2........ 3
Cal. Stats. 1852, ae re 10
Cal. Stat. April 26, 1858, See. 1 .....005.,...... 28
Cal. Stats. 1863-1864, p. 471 2.0... 10
Cal. Supreme Court Rule XXX,,See. Fo... 3
Interstate Commerce Act, Sec. 1 (Subdv. mw...
Judicial Code See, i eke 8
RB. S. Se0.2477 0... ccc, Pipa 9
U.S. C. A. Title 28, Sec. 344(b) ...:..0..... or
< TEXTBOOK. ©
Jones on Easements, Sec. 281, EID o bccadescks 4, 24
a. ca
. ’ IN THE ,
Supreme Court of the Burited States
Ocroser TERM, 1931,
No.: ——__—-
Centra Pactric Rattway Company, a corporation, and
SoutHern Pactric Company, a corporation, Pe-
titioners and Appellants. below; 7
vs. |
County oF ALAMEDA, a body politic and corporate,
Roe Corporation, John Smith, Thomas Brown,
James Coe, Joseph Hoe, Edward Poe, Robert
Crow and. Frederick Stow, Respondents and Re-
es
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE op
CALIFORNIA AND BRIEF IN SUPPORT
, -To the ‘Honorable Charles Evans Hughes, Chief
Justice of the United States, and the Associate
Justices of the Supreme Court of the United States:
Your petitioners respectfully show:
2
| Bom ;
SUMMARY STATEMENT OF MATTER
- . "INVOLVED. | .
_» That the Supreme Court’ of the State of California
is the highest court of Jaw .and equity in said state;
that the judgment of said: court hereinafter mentioned
is a final judgment, and presents a federal question
reviewable by this court on certiorari, as hereinafter:
particularly .pointed out. va ae
This was a statutory proceeding to quiet title, °
‘ brotight by. petitioners in the Superior Court of the
State of California in and for the respondenf county —
-of Alameda. The case involved respondents’ asser-
tion of right to maintain certain county roads en-
croaching longitudinally upon the railroad right of
way 400 feet in width granted to petitioners’ prede-
cessor, Central. Pacific Railroad Company of Cali-
fornia, by Act of Congress approved. July 1, 1862.
(12 Stat. 489.) »
The county highway encroachments were described
in the complaint in six several parcels, and the trial -
- court adjudged the fee title vested in petitioner
Central Pacific Raftway Company as to all. (R. p:
54.) As to three parcels of highway the trial court
awarded exclusive possession to petitioners, Central
Pacific Railway Company as owner and Southern
Pacific Company as lessee and operator of the rail-
road. (R. p.' 61.)
The remaining three parcels of highway are por-'
tions of a public. county road extending through a |
three-mile pass in the hills of Alameda County, known .
as Niles Canyon. (See Defendants’ Exhibit D, being
_& portion of topographic sheet of the’ Pleasanton
3
Quadrangle United States Geological Survey, R. opp.
p. 1382.) As to these three parcels the trial court
found Central Pacific Railway Company’s title quali-.
fied by section 2 of the Act of Congress approved
March 3, 1875 (18 Stat. 482) being the general act
granting railroad rights of way through the public
domain. (R. pp. 61-62. )
_ Petitioners appealed as of right (California Code “
of Civil -Procedure, sections 939, 940) to the State
rom that part of the judgment hold-
ing the righ y title qualified by the Act of
March 3, 1875.°“Phe Supreme Court of California on
April 27, 1931, affirmed the judgment below. (R. p.
- ..199.) Petition for. rehearing was filed by the peti-
tioners here, and denied. (R. p. 200.) The judgment
of the Supreme Court became final May 27, 1931.
(Constitution of California, Article VI, Section 2;
California Supreme Court Rule XXX, Section 1.) -
In affirming the judgment the Supreme Court of
the State held (1) that this railroad right of way
granted by special act of Congress is amenable to
the police power of the state for longitudinal high-
way encroachments (R. p. 193 et seq.); (2) that the
respondent County of Alameda had acquired a right -
of way easement by adverse user (R. p. 199 et seq.) ;
(3) that the- special right of way grant of July 1,
1862, was amended by the Act of. March 3, 1875, au-
thorizing joint oecupancy of: the right of way by the
railroad and by the highway. (R. p. 199.)
4
IL.
REASONS FOR ALLOWANCE OF WRIT.
{1). The ruling of .the State Supreme Court that
the police power extends to the taking of longitu- ~
dinal. strips of railroad right of way specially granted
-by Congress is inconsistent with numerous rulings
of the Supreme Court of the United States, notably
Nor. Pac. R.'R. v. Smith, 171.U. S. 261, 275; North-
ern Pacific Ry. vs. Townsend, 190 U. S. 267.
(2). The ruling that longitudinal portions of the.
railroad right of way may be acquired by adverse
_ user is contrary to the decisions of this court above
mentioned and contrary to the general rule (Fed-
eral and State) that the continuous operation of a
railroad on the right of way forestalls adverse
rights in the general public. Williams, Mayor, et al.,
vs. Atlantic Coast R. R. Co., 17 Fed. (2nd) 17; H. 4.
€ L. D. Holland Co. vs. Nor. Pac. Ry. Co., 214 Fed.
920, 926; Jones on Easements, Sec. 281, p. 232. .
(3). The. ruling of the state court that the right
of way grant of July Ist, 1862, was, as to vested title,
qualified and diminished by the Act of March 2.
- 1875, is inconsistent with the ruling of this court in
the Sinking Fund Cases, 99 U. S. 700, 719, 757 ; Rail-
way Co.*vs. Alling, 99 U. 8. 463, 479; United States
vs. Denver &.Rio Grande Ry., 150 U.S. 1, 10.
Wherefore, your petitioners pray that a writ of
certiorari issue under the seal of this court, directed
to the Supreme Court of the State of California,
commanding said state court to certify and send to
5
this court a full and complete transcript of the record
and of the proceedings of the said State Supreme
Court had in’ the case designated and entitled on its
docket S.. F. No. 13041, Central Pacific Railway Com-
pany et al., Plaintiffs and Appellants, vs. County of
Alameda, et al., Defendants and Respondents, to the
end that this cause may be reviewed and determined
by this court, as provided by the statutes of the
United States; and that the judgment therein of said
State Supreme Court be reversed by this court, and
for such further relief as to this court may seem:
proper. — 3 %
- Dated: July 10, 1931. ae
| C. F.’R. Oamsy, |
Frank THUNEN,
. Attorneys for Petitioners.
Guy V. Sxouvp, | ry
Of Counsel.
6
BRIEF IN SUPPORT OF PETITION FOR WRIT
OF CERTIORARI.
I. |
OPINION OF THE COURT BELOW.
The opinion in the Supreme Court of the State of
California (R. p. 187 et seq.) is reported in 81 Cal.
Dec. page 652; QQ Pac. Rep. 7 J
|
JURISDICTION.
- (1). The date of the decision to be reviewed is April
27, 1931 (R. p. 187) which became final under the
state constitution (Art. VI,-See. 2) and the rule of
the-Supreme Court (Rule XXX, Sec. 1) on May 25,
1931. (R. p. 200.) es ;
(2). The statutory provision which is believed to
sustain the jurisdiction of this court is Judicial Code
Section 237(b); U. S. C. A. Title 28, Section -344(b).
This is a case where a railroad right of way title is
specially claimed by petitioners under a federal stat- -
ute (12 Stat. 489), and the court below has held that
claim invalid in part by reason of the following:
(a) an assumed retroactive amendment by a later
federal statute (18 Stat. 482) a question not hereto-
_fore in specific terms decided by this court, though
’ applicable decisions indicate a rule to-the contrary ;
(b) exercise of police power infringing federal ‘inter-
est and against the rule of federal decision; (c) ad- |
_ verse user to the same effect. |
7
(3). The facts showing that the nature of the case
and the ruling below were such as to bring the case
within the jurisdictional provisions relied upon are
briefly these: = : :
(a). The railroad right of way is claimed by peti-
tioners directly under Congressional grant of July 1,
1862. : (12 Stat. 489.) The State Supreme Court,
affirming the judgment of the trial court, held (R.. p.-
“>
189) :
~ “In 1865 Congress enacted the so-called Pacific
Land Grant Act, whereby the Central Pacific
Railroad Company was granted a right_of way
400 feet wide over and across government lands
in California to the Pacific coast, for the purpose
of constructing along the center thereof a rail-
road and telegraph line to serve as a link in the
first transcontinental railroad. Part of the route
selected by said company was through the Niles
canyon, which was ‘then unappropriated public
land.’’ °
And the Supreme Court has concluded with the
trial court (R. p. 190): |
-
‘*The trial court’s conclusions of law were that
the Central Pacific Railway Company is the
owner of the paramount title in fee to the land
now occupied said highway and lying within
the boundaries of said 400-foot right of way,
‘subject to an easement in favor of defendant
County of Alameda by. reason of necessity to
maintain its present right of way for highway
purposes * * * subject, however, to the terms. -
and conditions of that part of section 2 of the
Act of Congress approved March 3, 1875, entitled
q
8,
‘An act granting to railroads the right of way
through the public lands of the United States”’
(18 Stat. 482), declaring ‘‘and the location of
such right of way through any canyon, pass or
‘defile shall not cause the disuse of any wagon
or other public highway located therein, nor
prevent the location through the same of. any
such wagon road or highway where such road
or highway may be necessary for. the public
accommodation; and where any change in the.
location of such wagon road is necessary to per-
mit the passage of such railroad through any
canyon, pass or defile, said railroad company
- shall, before entering upon the ground occupied
by such wagon road, cause the same to be re-
constructed at its own expense in the most favor-
able location and in as perfect a manner as the
original road.’’’ ”’ :
(b). In addition to the foregoing assumed retro-
active amendment of the Act of July 1st, 1862, by
the Act of March 3, 1875, the State Supreme Court
has found the grant of July 1st, 1862, further quali-
fied by general law subjecting longitudinal portions
of such rights of way to be taken for highway pur- .
poses by condemnation under the state police power.
The ‘opinion in this regard recites (R. p. 193):
‘‘Moreover, it has been consistently held that
-° in eases of public necessity such rights of way
are at all times amenable to the police . power .
_ Of ‘the state and subject: to the State’s right of
eminent domain, provided that in the. exercise
thereof the special purpose of the grant to the
railroad is not: thereby impaired.’’ :
Upon this same point the state court says further,
citing certain other state cases (R. p. 195) :
‘9
“It is, therefore, held here that the petitioner
. May invoke*the power of eminent domain- to
acquire a longitudinal part of claimant’s right of
way if the showing as to the necessities of the
two companies in the interest of the public ser-
vice is sufficient to warrant it.’ i
(c). The State Supreme Court has found a third
limitation: upon the right *of way title, that the 400
foot width may be diminished by adverse user. Upon
this point the opinion recites (R. p. 199): )
‘“But even assuming that the act of 1875 does
‘not so apply, the county is nevertheless clearly
entitled to a decree under the doctrine of adverse
user, establishing its easement in those portions
of the right of way now occupied by its highway,
leaving for further determination the question
of the superior need of those portions of the
right of way, in case appellants should. claim
that the same were essential to the convenient
operation of its railroad.’’ | |
(d). Respondents’ claim also rests upon a federal
question. The Supreme Court holds (R: p. 188):
‘‘For approximately seventy years the county’
of Alameda maintained a public highway
through and ali. bottom of the Niles canyon
from Niles to Sun®. It was laid out and declared
to be such by the county in 1859; and has since
served as one of the main arteries of travel be--
tween, the bay regions of southern Alameda
.« County and the Livermore valley.’’
'» This statement is challenged by petitioners upon the
federal issue that until J uly 26, 1866 (R. S. See. 2477)
bg was no authority from Congress by which the
ebunty could acquire a right of way over the public
* 10
Ps
.domain. The railroad right of ‘way title was then
perfect.
(e). A further and incidental questioh is presented _
in that the jegislature of the state of California on
May 1, 1852, memorialized Congress for .this trans-
continental railroad as a measure of self-protection,
and granted to the federal government a right of way
therefor. (Cal. Stats. 1852, p. 150.) On April 4, 1864,
the state legislature ratified the congressional railroad
right of way grant of J uly Ist, 1862. (Cal. Stats. 1863- ,
1864 p. 471.) These legislative enactments rise above
any claim by the county and feed petitioners’ claim
under the federal statute. The recital last quoted
is further challenged by petitioners upon the evi-
dence, the findings of the trial court, and local law.
(4). The cases believed to sustain
of this court to review said: cause on certiorari are as
follows: Jordan. vs. Tashiro, 278 U.
vs. Harris, 267 U. S. 352; Knights
Meyer,.265 U. S: 80; Dana vs. Dana, 250 U. S. 220;
Erie R. R. Co. vs. Hamilton, 248 UU.
vs. Curtis, 234 U. 8. 103; Gauthier y
ITT.
STATEMENT OF THE CASE.
The facts underlying the primary issues are stated
in the petition and in the foregoing
8. Morrison, 232
U.S. 452; Southern Pacifié Co. vs. Schuyler, 227 U. 8:
601, G11; Missouri Valley Land Co.
' .U. S. 234; Same vs. Wrich, Id. 250 : |
a Canal Co. vs. Patten Paper Co., 172 U. 8. 58; North-
: ern Pacific R. Co. vs. Colburn, 164 U.
the jurisdiction
S. 123; Grayson
of Pythias vs.
S. 369; Carlson
vs. Wiese, 208
Green Bay etc.
S. 383.
portions of this
i,
11
the board in November, 1858,. survey No. 247 was
made by the board and filed in May, 1859; and that
after due notice and hearing the board declared the
road as surveyed and located to be a public highway
and directed ‘that it be opened forthwith.’’
The local law provided (Cal. Stats. April 3 T5
that no road shall be considered a public ighway
that line was glever opened, Most of the travel was
in the bed of the creek. (R. p. 113.) Crossings were
fs
Supervisors of the defendant County of: Alameda _
March 27, ‘1911, or whether - the highway actually
.- BB
traveled prior to 1911 followed: the line of survey
No. 247 for any distance whatever.’’ (R. p. 50.)
The Supreme Court says upon this point: ‘‘In 1910
or thereabouts, on account of the flood waters of the _
creek, the county was obliged to reconstruct much of
its highWay, and in doing so it moved a considerable:
stretch, lying about midway between Stony Brook and
Sunol, within the railroad right of way and on the
north side of the creek, to the south side of the creek
and outside of the right of way.’’ (R. p. 189.)
Vv... |
SPECIFICATION OF ERRORS.
1. The court erred in holding that the Act of July
1, 1862, was retroactively amended and qualified by
the Act of March 3rd, 1875, as to petitioners’ vested
title. rn
2. The court erred in holding that the police power
of the state extends to the appropriation of longi-
tudinal strips of land within the boundaries of the
right of way 400 feet in width granted by the Act.
of July 1, 1862. —
3. The court erred in holding that respondents had
acquired the right/by adverse user to maintain a
county road paralleling and within the boundaries of
the railroad right of way granted by the Act of
July 1, 1862. . .
4, The court erred in holding. that the respondent
-Céunty of Alameda could acquire any highway right
prior to the highway grant of July 26, 1866 (R. S.
13
Sec. 2477) ; or that it could acquire any license which
was not defeated ‘by the Act of Congress approved
July 1, 1862. -
5. The court erred in holding that the way traveled
through Niles Canyon at or prior to the time of the
railroad right 6f way grant was ever adopted by the
board of supervisors of Alameda County as a publi»
highway. ‘ :
| V.
’ SUMMARY OF THE ARGUMEN ‘A
1. The effect of the Act of Congress Approved -
March '3, 1875 (18 Stat. 482) as Amendatory of Spe-
cial .Grants theretofore Made by Congress Has Been
Considered by this Court Favorably tu Petitioners’
Contention. It was not within the Intent or ‘the
Power of Congress to Impair Vested Title.
2. The State Police Power and the Power té Ac-
_. quire Highway Rights by Adverse User Could not’
Extend beyond the Railroad Company’s Power of:
Alienation. Prior to May 25, 1920 (41 Stat. 621) the
Railroad Company Had No Power to Altenate Longi-
tudinal Strips of the Right of Way Acquired by Con-
gressional Grant. -
3. There Was No Federal Grant of County High-
ways Prior to the Right of Way Grant of July ‘1,
1862, nor until Four Years thereafter. The County
of Alameda Did not Adopt the Traveled Way as a
County Road. Any Claim of the County to the
Traveled Way Was. Renounced by the State in the
Legislative Acts of May 1, 1852, and April 4, 1864,
Fe
<a REO 47,
o
VI.
ARGUMENT.
1.
The Effect of the Act of Congress Approved March
3, 1875 (48 Stat. 482), as Amendatory of Special
Grants Theretofore Made by Congress Has Been Con-
sidered by this Court Favorably to Petitioners’ Con-
tention. It was Not Within the Intent or the Power
of Congress to Impair Vested Title.
6
We have said under this point that this. court has °
not heretofore in specific terms decided ‘the question
whether the Act of March 3rd, 1875, constituted a
retroactive amendment ‘of previous special grants in
cases where the title was, vested prior to March: 3rd,
1875.. There are cases from this cowrt, however, which
seem’ to compel a ruling that the Act of March 3rd,
‘1875, cannot be construed as an amendment. of the
Act of July 1, 1862, so as to diminish the.'right of
way here in question. Certainly there is nothing in.
the act of 1875. purporting to modify or prejudice
- any-prior grant; nor is it conceivable that congress
could have qualified- the grant. of July Ist, 1862; as
to vested right-of way. had congress so desired. The
| Sinking Fund Cases, 99 U.S. ‘700, 719, 757, are among.
the first to decide this principle.’ We find in the lari-
guage of Mr. Chief Justice Waite, at page 719 of that
opinion a very persuasive statement in line with our
contention :
‘“‘The United States are as pried bound by their
contracts as are individuals. If they repudiate
their obligations, it is as much repudiation, -with
all the —e and reproach that term implies, as .
>
15
it would be if the repudiator had been a state or
* . a municipality~or a citizen. No change can be
* made in,the title created by the grant of the
lands, or in the contract for the subsidy bonds, .
« without the consent of the corperation. All this |
is indisputable.’’ |
There were dissenting views on certain points, but
apparently there was no dissent upon the integrity
of the vested title. The foregoing quotation occurs
in the main opinion, and the bénch seems to have
' béen efitirely agreed upon the proposition that the
grant vested title indefeasible except upon.breach of
' the implied condition that the grant would be exer-
_eised for the. purpose intended. Mr. Justice Field
says upon the same ‘point at page 757, that so far as ~
the title is concerned, the contract between the gov-
ernment and the railroad company was an executed .
and closed transaction, and that the title was as much
‘beyond the reach of the government as any other.
property vested in private proprietorship.
Cases are limited where the specific issue of title
was presented; we have found none where the ques-
tion-involved right of way vested prior:to March 3rd,
1875. There is a case where the special right of way
grant preceded. the Act of March 3rd, 1875, but the
title was not claimed, and the grant was subiect to
forfeiture, on March 38rd, 1875. Railway Company vs.
Alling (Oct. Term 1878) 99 U. S, 463, 479. That case
had to do with the following facts:
Congress on June 8, 1872 (17 Stat. 399) granted
to Denver and Rio Grande Railway Company a right
of way, conditioned that the grentee should complete
its road to a point on the Rio Grande as far south
‘as Santa Fe within five years, and complete each
e:
16
year thereafter fifty miles additional south of that
point. “The road was not completed to Santa Fe
within the allotted period, and on -March 3, 1877,
Congress amended ‘the grant of June 8, 1872, extend-
ing the period to ten years from the original act to .
complete the road as far south as Santa Fe. In the
meantime, and after the approval of the. Act of
March 3, 1875, Caiion City and San Juan. Railway
Company asserted its claim under the latter act to
occupy the Grand Canon of the Arkansas. Mr.
Justice Harlan, expressing the opinion of the court,
said at page-479: ioe
‘‘Our next inquiry is as to.the extent to which
the rights of the Denver Company were ‘affected
or modified by the act of ‘March 3, 1875. . When
that act was passed, its grant of the right of way
by the act of Jyne 8, 1872, had not been acted
upon as to the Grand Cafion of the Arkansas.
There had not been, on March 3, 1875, an actual
location of its line through that defile, nor any
occupancy thereof, in good faith, for the pur-
pose of constructing its road. -The five years
originally given to that company, within which
to complete its railway, to a point on the Rio
Grande as far south as Santa Fe, expired on the © “7
8th of June, 1877.° Before, however, the expira-
tion of that period, the time was extended to ten
years from the passage of the original act. Now,
it is solely by reason of such extension that the
Denver Company had the right, on the 19th of ©
April, 1878, to take possession of the Grand
Cafion, and prepare for the final location and
construction of ‘its road through that pass.
When, therefore, it accepted the benefits of ‘the
Act of March 3, 1877, it must be held to have
assented to the provisions of the Act of March
; an
3, 1875, whereby it was declared in:the interest
of the ‘public, ‘that any other railroad company
duly. organized under the laws of any State or
‘Territory might use and occupy the cafion, for
the purpose of itssroad, in common with the road.
first located.’’
The reasoning of the court necessarily accepts the °
hypothesis that the Denver Company by reason of
its default had no rights whatsoever in. the Grand
- Cafion of the Arkansas on March 3, 1875. Congress
could and did waive the forfeiture and imposed upon —
the ‘grant the further restrictions of oe Act of
March 3, 1875.
Our construction of this decision is reinforced by
ellony: 150 U. 8.1, 10. In that case the curse
‘challenged the right of Denver & Rio Grande Rail-
way Company to avail itself of the incidental benefits —
of the Act of March 3, 1875, because the company
having accepted the specia] grant of June 8, 1872, ~
subsisting at the time of the passage of the Act of |
March 3, 1875, could not rightfully claim the benefits -
of the latter act. The court said, at page 10:
-.“In that case the Denver Company (the de-
fendant in error here) had in 1871 and 1872
merely made a preliminary survey of its tine
- through the Grand Cajion of the Arkansas, but
had postponed the actual location and firial ap-
propriation of its roadway through that defile ©
until April, 1878, at which date it was subject to —
_ the provisions of the Act of 1875 (the second
section of which conferred upon other roads the
right, upon certain terms and conditions, to use
its track or roadway through such defiles), for
ao
18
, ios
the reason that after the passage of that act the
Denver .Company. had accepted the benefit. of
the Act of March 3, 1877, extending the time for
the completi8n of its road to Santa Fe, which
extension the court assumed would hardly have
been given by Congress except subject to the
conditions contained in the Act of 1879. Being :
subject to the provisions of the law, as con--
tained in the second section of the act of 1875,
while in the exercise of its rights under’ the act
of 1872, as amended by the act of 1877, in no way
«prevented the railway company. from complying
with its conditions and securing the benefits con-
ferred by the first section of the act of 1875.’’
Otherwise-expressed, the right of way grant to the
Denver Company was in a sense executory on March
3, 1875, by reason of condition broken. The grantee
was bound to accept its new privileges subject to ex:
isting lew. But such is’ not the case before this
court. Here there was no ‘preach of condition, no
failure to perform: on the part of the railway com-
pany. The road was constructed long. prior to the
Act of March 3rd, 1875. ‘.
The opinion below purports to find support for °
retrospective’ amendatory operation of the Act of
March 3rd, 1875, in the wholly irrelevant act of con-—
gress approved June 24, 1912, ratifying certain right
of way deeds executed by the Union Pacific Railroad
Company. The opinion cites Union Pacific R. R. Co.
vs. Laramie Stock Yards, 231 U.S. 190, 200, and Umon
Powific R. R. Co. vs. Snow, Id. 204, and the opinion
- erroneously declares the effect of these decisions as
follows:
.
°
+s : . oad Ca
-
1y
“‘On the contrary it appears therefrom. that in —
- 1912 Congress did enact legislation which had the
direct effect of depriving the. Union Pacific R. R. |
Co. of certain unused portions of the rights of
way previously granted to it under this very
act of 1862, and the right of Congress so to do
‘ was not challenged. " (BR. p. 197.)
Contrary to the opinion of the state court, the
Supreme Court of the United States distinctly held
' that to.give the Act of June 24, 1912, a retroactive’ ,
effect ‘‘may incur the opposition of the Constitution.”’
(231 U. S. 200.)
~~ The Act of June 24, 1912, is not only irrelevant to °
the grant to Central Pacific Railroad Company of
California but irrelevant also to the purpose and ~
effect of section 2 of the Act of March 3rd, 1875.
2. .
The State Police-Power and the Power to Acquire
Highway Rights by Adverse User Could Not Extend
Beybnd the Railroad Company’s Power of Alienation.
Prior to May 25, 1920 (41 Stat. 621), the Railroad
Company Had No Power to Alienate Longitudinal -
' Strips of the Right of keine Acquired by Congres-
sional Grant.
This point of “contention bears upon the second and
third specifications of error. The state court rests
its opinion on the issue of police power in part upon
several federal decisions involving right of way cross-
ings, (R. p. 194.) For the authority to take by ~
eminent domain extended longitudinal strips the
opinion rests wholly. upon a state case, North Coast
Railway vs. Northern Pacific Railway Company, 48
20
.. Wash. 529, 94 Pac. 113 (R. p- 194) but the North
Coast-Northern Pacific case does not purport to es-
tablish a rule governing right of way titles fully
“Vested under special federal grant prior to the Act
of March 3rd, 1875. The ruling is‘nof out of harmony
with what we have- quoted from ‘the Sinking Fund
Cases and from Railway vs. Alling and U nited States
vs. Denver & Rio Grande Railway. ‘The Northern
Pacific Railroad Company claimed under the special |
‘Tight of way grant of July 2nd, 1864, but the right
of way involved in. that case was in a narrow defile,
known as ‘‘Union Gap,’’ owned by certain Indians,
and was expressly regarded by the Supreme Court of
Washington as not subject to the right of way grant.
until ceded by the Indians in 1885. The Supreme
Court of Washington has to: say upon this point
(94 Pae. 113): 7
‘That portion of the right of way here .in
question liés within said reservation, and was
- not -a part of the public lands within the mean-
- ing of the: said act of Congress, which the
United States could then absolutely grant. The |
‘reservation thereof to the Indians, therefore, re-
mained in force until the year 1885.”’
‘This decision was long before the rule established |
by this court in Nadeau vs. Union Pacific R. R. Co.,
253 U. 8. 442 and Kindred vs. Umon Pacific R. R. Co., —
225 U. S. 582, to the effect that the right ‘of way
granted by the Act of 1862 was effective in Indian
reservations. Whether the reasoning of the Supreme
Court of Washington was sound or -not under the
circumstances of that case, it is clear that the court
rested its decision upon the assumption that the”
ae 21 |
right of way did not take effect in Union Gap until
the year 1885. If the special grant of July 2nd, 1864,
did not take effect in praesenti, it did not take ‘effect
_at all (Leavenworth etc. Ry. Co. vs. U. S., 92 U.S.
733, 748-749), and the Northern Pacific Railw ay Com- °
pany kad to look to subsequent federal authority for
its right of way through Union Gap. The court may
. - well have assumed, as did this court. in the Alling
Y
case, supra, that any federal authority granted sub- .
sequent to the Act of March 3rd, 1875, was conferred
~in view of that grant and subject to its limitations.
The late Judge Rudkin. of the Ninth Federal Cir-
cuit was a member of the Supreme Bench of Wash-
_ ington when the North Coast-Northern Pacific case
was decided. It was. he who rendered the decision in
the ‘eastern district of Washington in the case of ©
Holland Co. vs. Nor. Pac, R. R. Co., 208 Fed. 098, 603..
That case denies the power of the railway company
to ahienate a longitudinal strip of its congressional
right of way .for highway purposes. The opinion
declares, page 603, that. the power of the railroad
company to dispose of any part of its right. of way
of its own volition is measured by what it may be
compelled to do under the police power of the state.
Conversely, the ‘police power of the state cannot ex-
tend beyond the power of the railroad company to
give its voluntary consent, because both propositions
- are limited in the same degree by the same federal
restriction. Nowhere in the federal statutes prior
to May 25, 1920 (41 Stat. 621) can be found any
authority for the ‘alienation for highway: purposes
of any portion of a railroad right of way ——-
by. special act of Congress. : :
22
. On appeal of the Holland case to the Circuit Court
of Appeals for the Ninth Cireuit (214 Fed. 920) the
appellate tribunal considered the authorities uphold-
ing ways laid out across the right of way, and held
at page 926:
‘(But in no substantial sense do these consid-
erations apply to the case of a street. or other
‘highway: laid out along, instead of across, the
right of way. Granting the need of a road run-
ning parallel or in, the same ‘general direction
with the railroad, there is no necessity for im-
posing the burden thereof upon the right of way. °
It is hardly probable that-the practice of so -lo-
eating a highway was common at the time: the
act was passed, and, upon the whole, it is unrea-
-sonable to suppose that Congress anticipated
that such a use would ever be made of the right
of way. It imposes a much greater burden than
a mere crossing, for. it is practically exclusive
of both possession and use by the railroad com-
pany, while a crossing only qualifies or tempo-
rarily interrupts such. possession and tse.”’
Limitation upon the company’s power of .aliena-
tion is clearly set forth in Northern Pacific Railroad
vs. Smith, 171. U. S. 261, quoted in Northern Pacific
Ry. Co. vs. Townsend, 190 U. '§. 267, 271:
‘‘Nor can it be rightfully contended that the
. portion of. the right of way appropriated was
‘not necessary for the execution of the powers
conferred by Congress, for, as said in Northern’
Pacific Railroad Co. v.. Smith, 171 U. S. 261, 275;
(18 S. Ct. 794, 799; 43 L. Ed. 157) speaking of
the very grant under consideration: ‘By grant-
ing a right of way four hundred feet in width,
Congress ‘must be understood to have conelu-
sively detertfained that a strip of that width was
23
necessary for a public work of such importance.’
Neither courts nor juries, therefore, nor the gen-
eral public, may be permitted to conjecture that
Cy a portion of such right of way is. no longer
| needed for the use of the railroad and title to it
_ has vested: in whomsoever chooses to occupy the
‘same. The whole of the granted right of way
-must be presumed to be necessary. for the pur- |
poses of the railroad, as against a claim by an
individual of an exclusive right of possession
for private purposes.’’ _
This judicial declaration doés not necessarily con-
clude the inquiry. as to concessions which might be
- made for public purposes. On the other hand. it ‘does -
not even suggest power of alienation or liability to °
loss. by adverse user for public purposes not in fur-
therance of railroad operation. Under the Interstate
Commerce Act, section 1, (Subdv. 18), a common car-
rier may not alienate or abandon any part of its
property, for any purpose without first having ob-
tained from the Interstate Commerce Commission a
certificate that the present: or future public conveni-
‘- ence and necessity will not be prejudiced.
‘The Supreme Court of California has long recog-
nized the principle clearly expressed by the Supreme
Court of the United States that a railroad right of
way is itself a public highway of a special and re-
stricted nature In Southern Pacific Company vs.
‘Hyatt, 132 Cal. 240, 242, 244, the state court quotes
from Olcott vs. Board ‘of Supervisors, 16 Wall. 678,
saying: =
“Tha » lroads, though constructed by private
corporations ana owned by them, are public high-
_ ways, has been the doctrine of nearly all the
courts ever since such conveniences for passage -
and transportation have had any existence.”’
24
' * * * “Tt ig said that railroads are not public
highway ver se; that they are only declared such
‘ by the decisions of the courts; and that they have
been declared public. only with respect to the
power of eminent ‘domain. This‘is-a mistake. In
their very nature they are public highways. It |
iteeded, no decision of courts to make them such.’’
“The same case quotes with approval (page 244) the
general rule declared in Jones ‘on Easements: . |
.. ae *
‘Jones on Easements lays down~the rule. that
the prescriptive right to a passageway~ along the ~
track or right of way of a railroad cannot be
acquired by the public, or by individuals, while
the railroad is. constantly using a single track
over such right of way. ‘The construction and
. operation of one track on its location is an as-
sertion of right to the entire width of its right of
way. The presence of one track cqnstantly in use -
- is a definite badge of ownership and the only
_ practical assertion‘ of title that can be made. If
the public has used paths by the side of the rail-
_ road track for any length of time, the use must
' be considered as permissive, and not adverse,
(Citing a long list of authorities from different —
states; Jones on Easements, sec. 281, p. 232.)°" °
The federal view point is given in Williams, Mayor, .
et al.-vs. Atlantic Coast Line R. Co., 17 Fed. (2nd.)
17, 21, that the law does not require a railroad in
- erder to preserve its right of way, to act the dog in
manger and churlishly refuse to allow the pubfic to
use a portion of its right of way for a street or
road where such portion is not then needed. The
court in’ that case enjoined the town of Mullins, South
Carolina, from laying hard surface paving on portions
of a street within the railroad right of way, notwith-
2 . , . 7
= ° . aa
. . . » . 4-0 * — % mantents ee or e Aree: atten Be
ADE eee E NRE, RS FEET Fo spree wee ade fi <4 s ae : ey wR WE
25
standing the fact that there was in that ease us legal
restriction on the company to convey or dedicate, and
the city-had used the street for half a century. (Page ..
21.) The court approved the rule, page 20, that no
right could be acquired by the town by prescription,
and on page 21, thet there was no element either of
estoppel or abandonment presented by the circum-
stances. | . ee ees ?
The views of the Cirtuit Court of Appeals for the
Ninth Cixeuit: in the Holland case, supra, are again
approved in Barnes vs. Southern Pacific Company, 16
Fed. (2nd.) 100, 104, .and Mulvihill vs. Southern
Pacific Company, 16 Fed. (2nd.) 100, 104:
‘‘Congress has .net authorized the disposition
of unused portions: of the right of way. /The
power of. the railroad company to alien e, as
well as the power of others to acquire, ayy part
thereof, is measured, not by what can b spared
from railroad uses, but by what is’ required to
-. meet such needs of the public or of individuals
as fall within the scopé of the principle already
discussed. Privileges conferred. by revocable
licenses are, of course, excluded. In such cases
the railroad company never loses its right to
possession and control.’’ » 3
We quote also from éhe Court of Civil Appeals of
the State of Texas: ees
‘‘To hold that the mere use by the public, with-
out objection, of a portion of a railway right of ©
way, and continued during the statutory period
of limitation, or for twenty years, would cause the
Af
Tailway company to lose the use of its property
» which it may need for legitimate .purposes con-
nected with its. operation, would cause unutter-
»
;
; ; seine *
men aw) os ad aie me , _ “
ae Sprains iain
Peg rT
26
‘able confusion and bring about ‘in-this state a con-
dition of affairs which would seriously interfere
with railway traffic. A railroad is-itself a pub-
lic highway, constructed and operated for the
public benefit, and some courts have gone so far
as to hold that a right by prescription, or limita- .
‘tion, cannot be acquired against a railroad to any
_portion of its right of way. SouthertrP. Ry. Co.
v. Hyatt, 54 L. RB. A., 522; Northern P. Ry. Co. v.
Smith, 171 U. S., 260; Jones on Easements, sec.
281, and authorities cited in note. There are_
many portions of railway tracks and rights of
way, especially around and near depots in cities
and large towns, where the public use the right of
way for passing to and fro continuously, and -
where such use has been kept up in some cases
far beyond the period of time necessary to create
an absolute easement—yet no court in this state
has ever treated such persons, when injured while
using the railway right of way, as i:more than
licensees.”’
Heilbron vs. St. Louis S. W. Ry. Co. of Texas,
52 Texas Civil Appeals, 575, 581 (113 Ss. W.
613).° ; .
> » &
There Was No Federal Grant of County Highways
Prior to the Right of Way Grant of J uly 1, 1862, Nor
Until Four Years Thereafter. The County of Ala-
meda Did Not Adopt the Traveled Way as a County
Road. Any Claim of the County to the Traveled Way
Was Renounced by the State in the Legislative Acts
of May 1, 1852, and April @, 1864.
The opinion below #ecognizes the lack of congrés-
_ sional authority for the county highway through
Niles Canyon. The court quotes from Town of Red
Bluff, vs. Walbridge, 19 Cal. App. 770, and says (BR.
pp. 191-192): - —
27
“AS against the federal government it (the
-» county here) could. not perhaps make a publie
“e highway over its lands without its consent or ac-
- quiescence, but the federal ‘government is not
complaining and its policy has always been to
encourage the building of highways over the
public domain, thereby facilitating its settlement
_ and use, and this policy was crystallized into a
statute passed on the 26th day of July, 1866.”’
. The court. below refers to the Niles Canyon high- ©
way as a way of necessity. (R. p. 190.) The doctrine
of ways of neeessity is foreign to the facts, there be- .
. ing no privity or other relation whatsoever between |
the railroad company andthe county. Nor is it a fact
that the topography of N iles Canyon offers any seri-
ous obstacle to modern highway construction. We
may look to the opinion itself for the statement that
in 1910 or thereabouts the county found it practical
**to reconstruct much of its highway, and in doing so
it moved a considerable stretch, lying about midway
between, Stony Brook. and Sunol, within the railroad
right of way and on the north side of the creek, to the
south side of the creek and outside of the right of
way’. (R. p. 189.), This court may judicially know,
what is matter of common knowledge, that highway
engineers today are not balked by mountains or can-
yons, and are governed as much by scenery as by
facility of construction.
The record is conclusive-that the line adopted by the
board of supervisors of Alameda County in 1859 i-
north of Alameda Creek throughout its entire distance
through the canyon. It is equally conclusive that the
way traveled was on both sides of the creek and in
considerable part in the bed of the creek. Naturally
* those seeking passage through the canyon, where no-
28
improved way existed, followed the route of easiest
‘travel. Under the statute that did not constitute the
way a public road. The California Statute of April
26, 1858, provides in section 1 that: ;
‘©All roads in.the counties of Tuolumne and
_ Alameda shall be considered as publi¢ highways,
which are now used as such, and have been de-
clared such by order of the court of sessions Or”
board of supervisors, or which may be declared
such hereafter, by the board of supervisors with-
in: their respective counties; provided, that noth-
ing in this act shall-apply to any incorporated
city or town within the counties named.”’
- The route adopted by the board of supervisors was .
never opened, and the way used was never adopted.
‘Public highways are such only as come within
thé express provisions of the statute declaring
thenf to be such, and that roads established with-
out authority of law, for the convenience of in- |
dividuals, are without any legal status either as
public highways or as private ways.”’
Tucson Consolidated Copper Co, vs. Reese
(Ariz.), 100 Pac. 777, 778. 3 .
It may be conceded that the highway act of July;
’ 26, 1866, would take immediate effect upon approval
as to highways previously laid out, if the lands tra-
versed were unappropriated public lands on the date
of the act; but that is not our case, Title to the lands
here in question had passed out of the government -
and into Central Pacific Railroad. Company of Cali-
fornia instanter upon the approval of the right of
way grant of July Ist, 1862. Railroad Co. vs. Bald-
win, 103 U.S. 426. | . ;
29
The County of Alameda is only a political subdivi-
sion of the state; its claims cannot rise above the
sovereign right. We have quoted the State’s memo-
rial of May 1, 1852, to Congress petitioning for this
very transcontinental railroad as a matter of self-
interest and granting to the federal: government a
right of way to that end. We have also cited the Act ©
of April 4, 1864, whereby the state ratified and ap- _
proved the grant made to petitioners’ predecessor
on July 1, 1862. ,
ment retains a vital interest in maintaining its in-
tegrity. Section 12 of the grant provides in part
that ‘‘the whole line of said railroad and branches
and telegraph shall be operated and used ‘for all pur-
poses of communication, travel, and transportation, so
far as the public and government are concerned, as’
one connected, continuous line?’, The federal govern-
ment is directly interested in the question whether
_ the county may as a matter of right appropriate to its
own exclusive use essential portions of the right of
way. , oe
‘
CONCLUSION.
It is therefore respectfully submitted that the
_ Inerits of this case rest essentially upon federal ques-
tions calling for the exercise by this court of its
supervisory powers, and that: a writ Gf certiorari.
‘
30
should issue to the end that this court may. review
and reverse the decision of the court below.
Dated July 10, 1931:
C. F. R. Oaiisy, ;
1422 F Street, N. W:, —
Washington, D. C.
PRANK THUNEN, .
65 Market Street,
San Francisco, Calif.
| Attorneys for Petitioners.
Guy V. SxHovp,
65 Market Street,
San Francisco, Calif.
Of Counsel.
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.