# Petition for a Writ of Certiorari — Central Pacific R. Co. v. Alameda County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0117%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1932 - **Citation:** 284 U.S. 463 ## Text “UF ee f° © tuspk ees a rie 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 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 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 » & 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0117%3A2. Public record. Not legal advice.