Petitioners Brief — Central Pacific R. Co. v. Alameda County

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. In the Supreme Con tt Nov 24

| OF THE OMa is ulead

. — Ruited States

OcroBER Term, 1931 | a :

No. 258° ek

CENTRAL PaciFic RatLway. CoMPANyY, :

‘a corporation, and SourHERN ‘PActFIo

\4 CoMPANY, a corporation, .

! : Petitioners,

vs.

County oF ALAMEDA, a: body politic and

- eorporate, “HAs. W. Heyrr, RaLpx d

F RICHMOND, Joun “F. Mouuuins, Rep-

monn C. Staats and WittiaM J. °

: Haminton, Members of the Board of

- Supervisors of said County, JoHn Dor |

- CORPORATION, RICHARD ROE CorRPoRA- :

TION, JOHN SMITH, THOMAS Brown,

JAMES COE, JOSEPH Hox, Epwarp Por,

Rosert Crow, and FREDERICK © Stow.

— ee a ee te

Petitioners’ Brief on the Merits on Certiorari

to the Supreme Court of the

' State of California.

2* RS pt Ea < = Pa a , Ber, "

2 a a ah

‘a , | ; a

; | 1 C.F. R. Oarsy,

im a | 1422 F Street, N. W.,

; Washington, D.C. ; '

4. Frank THUNEN,

| Beate : 65 Market Street,

‘San Francisco, Calif.

Guy V.SHovp, . Attorneys for Petitioners.

65 Market Street,

San Francigco, Calif.

Of Counsel.

. Parker Printing Company, 545 Sansome Street, San Francisce ~

~~ Sy,

4 ‘The Facts a

Index

° REPORT OF THE Opinion BELow, 299 Pac. Rep. 75;.81 Cal.

Dec. 652

GROUNDS Upon WHICH THE JURISDICTION OF THis Court

Is INVOKED .. ' 2.

STATEMENT OF THE CASE a .

_ The Issue, Its Technical: Nature and Practical Effect...

. Gp.

SPECIFICATION OF ERRORS ASSIGNED ,

-SUMMARY OF THE ARGUMENT

ARGUMENT

I. Petitioners’ Right of Way Title Vested under Con-

Pages

. gressional Grant on July Ist, 1862.. The State.

through Its Legislature Disclaimed All Interest in

- __ that’ Strip of Land by Acts Approved May 1, 1852

and April 4, 1864. Alameda County, a Political

Subdivision of the State, Geant Be Heard in

Repudiation

Aythorities :

City of Rend v. 8. P. Co., 268 Fed. 751, 759...

Railroad Co. v. Baldwin, 103 U. S. 426............ ial

United States v. Union ne R. R. i. 91

U.:S.- 72, 79.

Act of July 1, 1862 (12 Stat. ee “

Cat: Stats. 1852, p. 150 ....

Cal. Stats. 1863-1864, p. 471

II. The Effect of the Act of Congress Approved March.

3, 1875 (18 Stat. 482) as Amendatory. of Special

Grants theretofore Made by Congress Has Been:

Considered by this Court Favorably to Petitioners’

INDEX ° |

” Pages

" *Contenition. Tt Was Not Within the Intent or the

Power of Congress to Impair Vested Title. 15

Authorities : a. ee

North Coast Ry. v. Northern Pacific Ry. Co., 48

‘Wash: 529 (94 Pac. 113) ae

Railway Co. v. Alling, (October Term 1878)

- 99 U. 8. 463, 479 et 17, 23

: Sinking Fund Cases, 99 U. S. 700, 719..-21, 23

. U. 8. v. Denver & Rio Grande Ry.,‘150 U. 8.

1, 10 19, 23

Union Pac. R. R. Co. v. Laramie Stock Yards, :

_ 931 U. 8. 190, 200 - in ; a.

Union Pacific R. R. Co. v. Snow, aoe

Act of July 1, 1862 (12 Stat. 489) _ 2.

Act of June 8, 1872 (17 Stat. 399) 17 -

Act of Mar. 3, 1875 (18 << i. —_—__—.

. 17, 19, 20, 21, 22,23 -

Act of Mar. 3, 1877 (19 Stat. 405). . —_—

Act of June 24, 1912 (37 Stat. 138) 21, 22

" Act of May 25,-1920 (41 Stat. 621).____—__ 28

III. The State Police Power and the Power to Acquire

Highway Rights by Adverse: User Could Not Ex-

tend Beyond 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 Way

_ Aequired by Congressional Grant 24

Authorities : a ,

Barnes v. 8. P. Co:, 16 Fed. (2nd) 100, 104... 30

Heilbron v. St. Louis S. W. Ry. Co. of Texas,

- 59 Texas Civil Appeals, 575, 581 (143 S. W.

613) : | 31

Holland Co. v. Nor. Pac. R. RB. Co., 208 Fed. -~ in.

598, 603 ee > 26, 30

. Holland Co. v. Nor. Pac. R. R. Co., 214 Fed.

920, 926 — =

XY. ie

Kindred v. Union ‘Pacific R. R. Co. 225 U. S. é

582 . 25

Leavenworth ete. Ry. Co. v. U. 8, 92 U. S. 733, ;

748-749 25

. Mulvihill v. 8. P. Co., 16 Fed. (2nd) 100, 104...- 30

_ Nadeau. v. Union Pacific R. R. Ca., ‘253 U. S. ‘

442 25

. North Coast Ry. v. Nor. Pac. Ry. Co., 48 Wash. .

529, 94 Pac. :113 sane Dh, 26

Nor. Pac. R. R. v. Smith, 171 U: S. 261, 275... 28

Olcott u. Board of Supervisors, 16 Wall. 678... 29

_ Railway Co. v: Alling,’ (Oct. Term. (1878) 99

ad U. S. 463, 479 : eee, 2G

- Sinking Fund Cases, 99 U. S. 700, 719, 757... . 24

S. P. Co. v. Hyatt, 132° Cal. 240, 242, 244... 29

United States v.° Denver & Rito Grande Ry,.,

150 U. 8. 1, 10 —.. 2 24

Williams, Mayor, et al., v. Atlantic Coast R, R. X

Co., 17 Fed. (2nd) -17. 30.

Act of July 1, 1862 (12 Stat. 489). 25

Act of July 2, 1864 (13 Stat. 365)... —— Se

Act of March 3, 1875 (18 Stat. 482).....24, 26

Act of May 25, 1920 (41 Stat. 621)... £6

Interstate Commerce Act, Sec. 1 (Subdv. 18).. 28

Jones on Easements, sec. 281, p. 232 or)

IV. There Was No Federal Grant of County Highways

Prior to the Right of Way Grant of July 1, 1862,

Nor until Four Years Thereafter. In the mean-

time the 400 Foot Strip Was Granted by Con-

gress_and Dedicated: to the Public Service of a

Right of Way. The Way Used Prior to

uly 1, 1862; Was Never ne by. the County

of Alameda 32

Authorities :

Felsenthal v. Warring, 40 Cal. App. 119, 125. 38

Town of Red Bluff v. Walbridge, 15. Cal. App. im

770 . 33

iv : - INDEX

te ; Pages

“Tucson Consolidated. Copper Co. ¥. Reese _

(Ariz.), 100 Pac. 71, 778 . 37

United States v. Rindge et al., 208 Fed. Rep.

611, 619 oe , te 34

Act of July 1, 1862 (12 Stat. 489)------—-. - 32

Act of July 26, 1866 (U. S. Rev. Stat.) - Sec.

2477 | 32

Cal. Stat., April 26, 1858, Sec. in O..

U..9. C. A. Title 43, Sec. 932 ) un +«O8

B. Sz, See. 2400 emp 33

Table of Cases Cited

Pages

Barnes v. Southern Pacific’ Company, 16 —— 100, 104-~ 30

_ Carlson v. Curtis; 234 U.°S: 103 ; 3

City” of Reno v. 8. P. Co., 268 Fed. 751, 759 . 14

Dana v. Dana, 250 U. 8. 220...... nea

Erie R. RB. Co. v. Hamilton, 248 U. S. 369., 3

: Felsenthal v. Warring, 40 Cal. App. 119, 125 38

Gauthier v. Morrison, 232 U. 8. 452 ’ 3

Grayson «. Harris, 267 U.'S. 352 | 3

Green Bay etc. Canal Co. v. Patten Paper.Co., 172 U. S. 58. 3-

Heilbron v. St. Louis 8S. W. Ry. Co. of Texas, 52 Texas Civil

Appeals, 575, 58] (113 S. W. 613)..: 31

Joviton v Tashiro, 278 U. S. 128 7 3

_ Kindred v. Union Pacific R. R. Co, 225 U.S, 582... 25

Knights of Pythias v. Meyer, 265 U. S. 30 ae 3

: Leavenworth etc. Ry. Co. v. U. S, 92 U. S. 733, 748.- 749... 25

Missouri Valley Land Co. v. Wiese, 208 U. S. 234.00. ‘ 3

‘Missourt Valley Land Co. v. Wrich, 208:'U. S. 250... - 8

Mulvihill v. 8. P’ Co., 16 Fed. (2nd) 100, 104 : 30

Nadeau v.. Union Pacific R. R. Co., 253 U. 8, 442 25

Nor. Pac. R. R. Co..v. Colburn, 164 U. S. 383... 3

North Coast Ry. v. Nor. Pac. Ry. Co., 48 Wash. 529, 94

Pace. - 113° “noel 7, 24, 26

_ Nor. Pac. R. R. v. Smith, 171 U. S. 961, 275. . A, 28

- Nor. Pac. Ry. v. Townsend, 190 U. S. 267. wie 4

Olcott v. Board of Supervisors, 16 Wall. 678 29

Railway Co. v. Alling, (Oct, Term: 1878) 99 U. S. 463,"

479 4,17, 23, 24, 26

~ Railroad Co. v. Baldwin, 103 U. S. 426... , “15

o» ; 9

'. Holland Co. v. Nor. Pac. ‘R. R. Co., 208 Fed.. 598, 603 ee -...26, 30 7

Holland Co. v. Nor. Pac. R: R. Co., 214 Fed. 920, 926... 4, 26 -

”

vi TABLE OF CASES OITED

: ; . ae | oo

“Sinking Fund Cases, 99 U. 8. 100, 719, 181 —a——4 21,23, 24

8. P. Co. v. Hyatt, 132 Cal. 240, 242, 244 29.

Southern Pacific Co. ‘v. Schuyler, 227 U. §..601, 611... -

Town of Red Bluff v. Walbridge, 15 Cal. App. 770... 33

Tucson Consolidated Copper Co. v. Reese, (Ariz.) 100 Pace.

171, 778 cand | 37.

Union Pac. R. BR. Co. v. Laramie Stock Yards, 231 U. 8S.

190, 200 oe | 21

- Union Pacific R. R. Co. v. Snow, 231 U. S. 204 : 21

United States v. Denver & Rio Grande Ry., 150 U. S. 1,

10. ) . “24, 19, 28, 24

United States v. Rindge et al., 208 Fed. Rep. 611,..619..... 34

United States v. Union Pacific R. BR. Co., 91 U. S. 72, 79. 5, 11

Williams, Mayor et al., v. Atlantic Coast R. R. Co., 17 Fed.

(2nd) 17 | :... 4, 30.

Table of Statutes and Court Rule.

Act of July 1, 1862,(12 Stat. 489) _2, 14, 28, 25, 32

Act of July 2,.1864 (13 Stat. 365) ~ 25

Act of July 26, 1866: (U. S. Rev. Stat.) See. 417_~-----. 82

Act of June 8, 1872 (17 Stat. 399) 17

Act of March 3, 1875 (18 Stat. 482)... 3, 17, 19, 20, 21, nem 26

Act of March 3, 1877 (19 Stat. 405) 18

Act of June 24, 1912 (37 Stat. 138) .... 21, 22

Act of May 25, 1920 (41 Stat. 621)... | 23, 26

Cal. Stat. May 1, 1852 (p. 150). - 13

Cal. Stat. April 26, 1858, See. 1 — 36

Cal. Stats. 1863-1864, p. 471 18 -

“Cal.. Supreme Court Rule XII. | , 2

Interstate Commerce Act, Sec. 1 (Subdv. 18) 28

Judicial Code, Sec. 237(b) - | 3

-U. 8, C. A. Title 28, Sec. 344(b) . a)

33 |

U. 8. C. A. Title 43, Sec. 932 |

R..8. Sec. 2477 . + 33

—_

J- * —. Textbook.

Jones on Easements, Sec. 281, p. 232 * tial le

(36,072 )

Inu » Supreme Court

" ‘Bnited States

OcrosER TERM, 1931

No. 258

CENTRAL Paciric Ratuway Company,

a corporation, and SOUTHERN PAcIFIc:

CoMPANY, a corporation,

i Petitioners,

Vs.

County or ALAMEDA, a body politic and

corporate, CHas. W. HEYER, RaLPH q

. RicuomMonp, JoHn F. Mutiins, Rep-

mono ©. Sraats and Wuuam J.

HamiLtTon, Members of the Board of.

\Goeeatoe of said County, JoHN Dok | |

-\GORPORATION, RicHaRD Rog. Corpora- |

% TIon, Joun SmirH, THomas Brown,

_ JAMES Cok, JosePH Hor, Epwarp Pos,

Rospert Crow, and FREDERICK Stow.

Petitioners’ Brief on the Merits on Certiorari

- to the Supreme Court of the

Stite of California.

REPORT OF THE OPINION BELOW.

The opinion in the Supreme Court of the State of

California (R. p. 117 et seq.) is reported in 299 Pac.

Rep. 75; 81 Cal. Dec. 652; not yet reported in Cali-

fornia Reports. ae

There were three other opinions filed in the Supreme

Court of ‘the State of California, written by three

several justices of the District Court of Apepal for

the Third Appellate District, but only one ‘of these,

adopted by the Supreme Court, with slight modifica-

tions, appears in the record, the, other two apparently

not being regarded by the Supreme Court as part of

_ the record herein. (R. p. 116, fol. 185; p. 119, fol. 188.)

GROUNDS UPON WHICH THE JURISDICTION OF THIS COURT.

Is INVOKED.

_ The purpose of paragraph one of Rule 12 of this

court. is: accomplished in the petition herein and the

brief in support thereof. The action, under state

_ statute, involves title and right of possession to a’

railroad right of way claimed by petitioners under

* the special federal grant of July Ist, 1862 (12 Stat.

_ 489), entitled “An Act to aid in the construction of a

railroad and telegraph line from the Missouri River —

to the Pacific Ocean, and to secure to the government ang

the use of the same for postal, military and othér pur-

poses’’.. The court below, recognizing that title, has, .

nevertheless, contrary to applicable decisions from this

court, held (a) yetitioners’ rights qualified and im-

_ paired by the general right of way grant made by

federal statute, approved March 3rd, 1875 (18 Stat.

482) (R. p. 131, fol. 197)... (b) The state tribunal

has also held this right of way granted by special act .

of Congress’ subject to the police power for highways .

encroaching longitudinally over long distances. This,

also, is contrary to applicable decisions of this court-.

(R. p. 126, fol. 193; p. 128, fol. 195).- (ce) the court

below has also held this right of: way subject to high-

way rights by adverse user, likewise contrary -to appli-

__ cable decisions from this court (R. -p. 134, fol. 199).

The case is therefore ' reviewable under section

237(b) of the Judicial Code; U. S. C. A. Title 28, Sec-

tion 344(b) ; Jordan v. Tashiro, 278 U. 8. 123; Gray-

son v. Harris, 267 U. S..352; Knights of Pythias v.

Meyer, 265 U.S. 30; Dana v. Pn 258 U. S. 220; Erie

R: R. Oo. v. Hamilton, 248 U.S. 369; Carlson v. Cur-

tis, 234 U.S. 103; Gauthier v. Bivtiinn 232 U. 8. 452;

Southern Pacific Co. v. Schuyler, 227 U. 8S. 601, 611;

_ Missouri Valley Land Co. v. Wiese, 208 U. 8. 284;

Same v. Wrich, Id. 250; Green Bayete. ‘Canal Co. v.

Patten Paper Co., 172 U. S..58; Northern Pacific R.

Co. v. Colburn, 164 U. S. 383.

This court has already. sill these. - preliminary

matters on petition for the writ. We cite again perti-

nent cases from this court and from the lower federal

courts with which the state court’s opinion is, incon- |

sistent, and which we think fully sustain petitioners’ |

Q ze i : !

position on all three grounds urged (Nor. Pac. R. R. ©

‘y. Smith, 171 U. 8. 261, 275; Northern Pacific Ry. v.—

. Townsend, 190 U. 8S. 267; Williams, Mayor, et al. v.

Atlantic Coast R. R. Co., 17 Fed. (24) 17; H.A.& .

L. D: Holland Co. v. Nor. Pac. Ry. Co., 214 Fed..920, ©

926; Jones on Easements, Sec. 281, p: 232; Sinking

Fund Cases, 99 U.S. 700, 719, 757; Railway Co. v.

‘Alling, 99 U. 8. 463, 479; United States v. Denver &

‘El Rio Grande Ry., 150 U. 8. 1, 10), :

STATEMENT OF THE CASE.

(1) The Issue, Its Technical’ Nature and Practical

Effect. - *

(2) The Facts.

em me

(1) THE ISSUE, ITs TECHNICAL NATURE. AND

PRACTICAL EFFECT.

The issue is simply one of. title and right of posses-.

- gion; whether the railroad company or the county has —

the superior right and control within the conceded

boundaries of tke. railroad right of way. The prac-’

tical effect of the issue, as decided below, is to subor-

dinate the railroad company to the will or the whim

of.the county whenever the railroad company may ~

' find it necessary’ or expedient ‘to improve or revise

its alignment or extend its facilities within the boun-

‘daries of the right of way. The highway in places

_ approaches within a few feet of.the ends of the ties

(see Exhibit R. p. 40A, fol, 70a). 3 ~\

ay eee _(@) THE FACTS.

The: facts supporting petitioners’ contentions are

| found substantially in their entirety by-+the trial court, |

-- whose judgment was affirmed by the State Supreme

: Court. .The ‘transcontinental right of way, of. which

this is part, was an economic and defensive national

-necessity (U. S. v. Union Pacific R. R. Co., 91 U. S.

72,79). The present location of the track was proven

to be coincident with the center line of right of way

as. originally loeated cand the, trial court has found

(R. p. 23, fol. 38):

“That ‘plaintiff Central Pacific’ Railway ces |

pany is the owner in fee of a strip of land 400

feet in width, lying equally 200 feet on each side

’ » of the center line of main track of railroad in.

_ the County of Alameda and embracing within the

outer boundaries of the said railroad right of way

the following er described strips of :

vig land.””

“Then follows the description of six parcels of land

designated as A, B, CO, D, E, and F, embracing all

highway areas described in the coriplaint. The find-.

ings then continue (R. p. 26, fol. 45):

“That the -aforementioned railroad right of

' way, embracing the foregoing particularly de-

scribed parcels of land is a part of the right of

‘way granted to Central Pacific Railroad Company

of California by Act: of Congress approved July

1, 1862, entitled ‘An Act to aid in the construction

of a, railroad and telegraph line, from the Miss- °

ouri River to the Pacific Ocean — to secure to . ~

*«

the Government the use of the same for postal,

military and other purposes.” (12 Stat. 489.) .-

That plaintiff Central Pacific Railway Company ~ |

_ “ig successor! in title to Central Pacific Railroad

Company of California by successive corporate

consolidations and by mesne conveyance.” —

‘Tt is next found as’a fact (R. p. 27, fol. 46) that

\. the entire area was on.July 1, 1862, unappropriated

\public land of the United States - that the railroad

was fully constructed as required by the act and ac-

| cepted by the President. of the United States on be-

half ofthe government. —* | |

- judgment as ‘parcel «A and parcel B lie in flat open..

country, and the-judgment awarded petitioners pos-

session of those parcels: Parcel C is an unimportant

- branch at the westerly end of the canyon hereinafter

mentioned, and the trial court, . also awarded peti-

tioners: possession of that parcel. “Parcels D, E and

¥F constitute part. of the existing highway..through a

pass in the hills of the respondent ‘Alameda County,

knewn as Niles Canyon: Parcels D, E and, F have —

their terminals on the right of way boundaries and

are connected by other portions of the highway lying

outside of the right of way boundaries. This is illus- . _

trated by plaintiffs’ Exhibit No. 6 (inserted R. ‘p.

-40A, fol. 70a). * ae Sea

_ The topographic conditions at the foundation of

the conclusion adverse to petitioners. are illustrated.‘

“by Defendants’ Exhibit D. (inserted ‘R. p. 84A, fol. .

132a). ‘This is a sits of | eens sheet ore

the Pleasanton. Quadrangle, United States Geological |

' Survey. The pass: is there identified as Alameda

Canyon.

Prior to ‘the — of .way. aR the dice of

Alameda caused a survey to be made for a highway

- route through this pass. A. survey was made by the

County. Surveyor with that degree ‘of precision in

vogue at the time, and a plat of his survey was ap-.

proved and adopted by the Board of Supervisors.

The route lay throughout its entire distance through -

the pass on the northerly side of Alameda Creek’ (De-

fendants’ ‘Exhibit B, inserted’ R. p. 60A, fol.: 98a).

_ There are several crossings in the present highway.

The highway route. thus adopted - in 1859 was known. °

as Road Survey No., 247. There was no evidence

of construction on that line of route. On the con- .

trary there was no highway. construction. through the

pass entirely on the north side of the creek. The

Geologic Survey (Defendants’ Exhibit D, R. p. 84A,

fol. -182a), was-made in 1904. It shows four cross-*

ings of the creek in a little more than” a-mile of f high-

“way. One crossing is shown by Plaintiffs’ Exhibit

No. 6 (R. p. 40A, fol. 70a), in approximately the lo- . ?

cation shown on the topographic sheet, a short distance —

., east of Farwell. In other respects no existing Cross- _

ings are shown in the locations exhibited on the top-

‘ographic sheet.’

There-is some testimony of old residents of ‘the

region, whose recollections, however, do not extend

back -of the railroad grant. Their testimony, taken

for what it is worth, indicates that it was possible in

the early sixties to traverse the eanyon, at least when

the water was low, when the ereek bed itself served

in large part as a passage way. | :

- Israel Richards penetrated the canyon part way,

but not entirely, the latter part of 1863 or early in

1864 (R. p. 70, fol. 112). They used to ride.through

on horseback sometimes and hunt up that road, trav- .

eling in the creek bed’ mostly at certain points. (Id.

fol. 113). a es oe

G. W. Buttner first made the trip through the can-

yon in 1862 or 1863. He went perhaps once a month

‘n the summer time, but/not in the winter (R. p. 72,

fols. 115-116). They traveled at one point ““where .

the present raifroad is’. “Then they came right

‘down, just followed the .creek right along until.we -

got: pretty near opposite where. the present Western

Pacific large tunnel is * * ** the Long crossing” ©

- (R. p. 74, fol. 119) * * * “then we went ‘along

_ there I guess for about five hundred yards and then

we had to cross back again, from this point we crossed

back over the creek to that side. That was quite a

Jong crossing also’’ (R. p. 7, fol. 120).

The trial court fourfd’ that it cannot be ascertained

from the evidence whether the survey for road No.

947 is identical in any particular with the county

road as now existing, or whether the, highway ac

tually traveled prior to the adoption of the present

-- goute followed the line of Survey 247 for any dis-

tance whatever (R. p. 29).. ” :

‘SPECIFICATION OF ERRORS ASSIGNED.’

+ The State Supreme ¢ Court erred i in holding nor

the Act. of July 1, 1862, was retroactively amended

and qualified by the Act of. March 3rd, 1875, as to

petitioners’ vested title (R. p- 131, fol. 197).

2. The State Supreme Court erred in holding that

~ the police power of the state extends to the appro-

‘priation of: longitudinal strips of land within the.,

boundaries. of the right of way 400 feét in width

‘granted by the Act of July 1, 1862 (R. p. 126, fol.

193).

_ 3. Fhe State Supreme Court lenved i 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 (R. p. 134, fol. 199). |

4. The court erred in holding that the waieadbias

County of Alameda could acquire any highway —

prior to the highway grant of July 26, 1866 (R. S

Sec. 2477) ; or that it could acquire any license whieh »

. was not defeated by the Act of Congress easier

July 1, 1862 (R. p. 124, fol. 192).

5. The court erred in holding that’ the way trav-

- éled through Niles Canyon at or prior to thé time of |

the railroad right of way grant was ever adopted by

- the board of ‘supervisors of “Alameda County as ee

_public highway: wn p. 119, fol. 188; p. 123, fql. 191).

SUMMARY OF THE ARGUMENT. |

| 1. Petitioners’ mse of Way Title Vested under

Congressional Grar on July 1st, 1862. The State.

‘through Its Legislature Disclaimed All Interest in

. that Strip of Land by Acts Approved May 1, 1852 and

April 4, 1864. Alameda County, 4 Political Subdi-

yision of the State, Cannot be Heard in Re'pudiation.

. 2. 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 to Petitioners’

Contention. It Was Not Within the Intent or the

_ Power of Congress to Impair Vested Title. :

.3, The State Police Power and the @ower to Ac-

quire Highway Rights by Adverse Us& Could Not

‘Extend Beyond the Railroad Company’s Power of

Alienation. Prior to May 25, 1920 (14 Stat. 621), the

‘Railroad Company Had No Power to Alierate Longt-

tudinal Strips of the. Right of Way Acquired by Con-

". gressional Grant. ‘ ae

4: 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. In the Mean

Time the 400 Foot Strip Was Granted by Congress .

and Dedicated to the Public Service of a ‘Railroad

Right of Way. The Way Used Prior to July 1, 1862,

Was Never Adopted by the County of Alameda.

aie ee

. |

PETITIONERS’ RIGHT OF WAY TITLE VESTED UNDER CON-

GRESSIONAL GRANT ON JULY ist, 1862. THE STATE

. ¥ THROUGH ITS LEGISLATURE DISCLAIMED ALL INTEREST

* IN THAT STRIP OF LAND BY ACTS APPROVED MAY 1,

1852 AND APRIL 4, 1864. ALAMEDA COUNTY, A POLIT-

ICAL SUBDIVISION OF THE STATE, CANNOT BE HEARD

IN REPUDIATION. |

It is one thing to consider the convenience, or even

the necessity, of the County of Alameda under present |

conditions ; it is another and vastly different thing to

’ consider the necessities, not only of the Courity of

Alameda but of the entire State of California, the

Pacific slope in general and the entire Union in that

_ earlier period to which we must look for the deter-

mination of disputed rights, whether legal or equitable.

The state of the nation at that period with relation

to conditions prompting the grant of July ist, 1862,

are vividly reflected in the opinion of this court in

United States v. Union — R. R. Co., 91 U. 8:

72, 79:

“Many of the’ provisions in the original act

of 1862 are outside of the usual course of legis-

lative. action concerning grants to railroads, and

cannot be properly construed without reference to

the circumstances which existed when it was

passed. The war of the rebellion was in prog-

ress; and, owing to complications with England, .

the country had become alarmed for the safety of

hee 8

Mod

! 12

our Pacific possessions. ~The loss of them was

feared in case those complications should result in _—

an open rupture; but, even if this fear were

groundless, it was quite. apparent that we were .

unable to furnish that degree of protection to the’

people occuping them which every government

owes to its citizens. It is true, the threatened

danger was happily averted; but wisdom pointed

- out the necessity of making suitable provision for

the future. This could be done in no better way

than by the construction of a railroad‘across the -

continent. Such a road would bind together the

‘widely separated parts. of our common country,

and furnish a cheap and expeditious mode for the

transportation of troops and supplies. If it did

nothing more than afford the required protection

to the Pacific States, it was felt that the govern-

ment, in the performance of an imperative duty,

could not justly withhold the aid necessary to build

it; and so strong and pervading was this opinion,’ .

that it is by no means certain that the people would .

not have justified Congress if it had departed from

_. the then settled policy of the country regarding

works of internal improvement, and charged the

government itself with the direct execution of the

enterprise.”’

The: State of California was vitally interested in _

-nized by its legislature for more than a decade. This .

is demonstrated in the Act of the State Legislature.

approved May 1, 1852, which is in words following:

this project, the urgency of which had been recog: , ¢

‘‘An Act to grant the right of way to the United

States for railroad purposes. Approved May 1,

1852, 150. : |

‘Whereas, The interests of this State, as well as

those of the whole Union, require the immediate

action of the government of the United States for

the construction of .a national thoroughfare con-

necting the navigable waters of the Atlantic and :

Pacific Oceans, for the purpose of national safety,

in the event of war, and to promote the highest com-

mercial interests of the republic; therefore,

‘‘The people of the State of California, -repre-

sented in Senate and Assembly, do aa as’ fol-

lows:

“Section 1. The right of way through this State

is hereby granted to the United States for the pur-

pose: of constructing a railroad from the Atlantic

to the Pacific Oceans (Ocean).”’ :

The federal government required no grant from the —

State for a railroad right of way over federal govern- :

ment lands. Nevertheless, the state Act of.1852 con-

stitutes a definite disclaimer of atty adverse interest.

Twelve ‘years later, and after the federal grant, the

state legislature, either assuming that its consent was

necessary, or wishing to register its good will toward

the project, enacted a further statute, approved April

4, 1864, entitled ‘‘An Act to aid in earrying out the

* provisions of the Pacific Railroad and: Telegraph Act

of Congress, and other matters relating thereto’’, * * *

_ “hereby confirming to and vesting in said company

all the rights, privileges, franchises,. power, and

authority conferred upon, granted to, or vested in said

-- company by said Act of Congress’’ (Stats. 1863-1864,

p. 471). :

Whatever the purpose, the act has the legal effect —

. of a further disclaimer, which the state legislature .

has never assumed to deny. -Nor could’ it impair

the authority of the federal courts to grant a right of

. way for railroad construction over federal lands in

the State of California. In point is the. language of

the Circuit Court of Appeals for this circuit in City

of Reno v. Southern Pacific Company, 268. Fed. 751,

ee tae. eae

“Tt is said that the Central Pacific, having been

a California corporation, had limited powers, and

- gould not, at the time of the passage of the act of

- 1862, transact business or take lands in Nevada.

_ But we are convinced that it was within the juris-

~ diction of Congress to grant the ‘right. of way

- . through the territory of Nevada at the time of.

~ the passage of the act of 1862, and that the exer- ©

\ -eise of such power was not dependent upon legis-

\ dative action by the State of ‘California or the

- State of Nevada. Van Wyck v. Knevals, 106

U. 8. 360, 369, 1 Sup. Ct. 336, 27 iL. Ed. 201.”

. ~ We give only passing notice to the Act of April 4,

1864, because its legal effect is nil, and the only aid

it gives. to Appellants’ argument is its tendency to

show that the state legislature endorsed all that

Congress had done by the Act of July 1, 1862. a

/ .

to the finding

In concluding: this head we rev

of the state trial court (R. p. 27

involved in this proceeding was on\J1 y 1862, unap-

_propriated publié land of the United States; that the

railroad was fully constructed as required by the act

and accepted by the President of the United States on —

behalf of the government. Under the authority of the

leading case of Railroad Company v. Baldwin, 103

U. S. 426, the facts found vested title in the railroad e

company as of the date of the grant. This, in fine,

the state courts have concluded ; but they have as- .

‘sumed to find a qualification in that title by semen

- which we shall consider.

II.

THE EFFECT OF THE ACT OF CONGRESS APPROVED MARCH

_8, 1875 (18 STAT. 482) AS AMENDATORY OF SPECIAL

GRANTS THERETOFORE MADE BY CONGRESS HAS BEEN

CONSIDERED BY THIS COURT FAVORABLY TO PETI-

TIONERS’ CONTENTION. IT WAS NOT WITHIN. THE 7

INTENT OR THE POWER OF CONGRESS TO IMPAIR —

VESTED TITLE. :

This head of argument treats of the first retin: :

tion of error; which specification is predicated upon

that ectatasion of the trial court, cited and approved

_ by the Supreme Court (R. p. 121, fol. 190):

‘The trial court’s: conclusions of law were that ,

_ the Central Pacific Railway Company is the owner

* the paramount. title -in fee to the land now

occupied by said highway and lying within the ..

‘poundaries 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 high- .

way purposes. * “* * subject, however, to —

the terms and conditions of that part of ‘section 2

« of the Act of Congress approved March 3, 1875, en-

- +. titled ‘‘An act granting to railroads the right of

way through the - ublic lands of the United

States’’ (18 Stat. 482), declaring ‘Sand 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 er highway where. such road or highway may

pe necessary for the public accommodation; and

where ‘any change in the location of such wagon >

road ig necessary to permit the passage of such

railroad ‘through any canyon, pass, or defile, said '.

yailroad company. shall, before enterifg upon the

~ ground occupied. by such wagon road, cause the

same to be reconstructed at its own expense in

the most” favorable location and in as perfect a — |

-” -manner as the original road.””’”” _

The opinion adopted by the State Supreme Court,

written by Mr. Justice Knight of the First District

Court of Appeal, but which did not receive the con-

: “eurrence of his associates, does not expressly recognize |

the controlling effect of federal interpretation of these

federal acts. It does. find novelty in the federal issue,

where the opinion recites (R. p. 124, fol. 192):

.@7

‘These. acts have been construed at different |

times by the federal and state courts, and while

no case identical in facts'to those here presented *

has been cited, the legal principles employed in *

those cases, in measuring thé extent of the ‘title |

_ granted by said acts must necessarily be applied .

_here in determining the rights of the respective

parties.” . a

The opinion purports to find precedent ina state

court: decision for the vulnerability of these special

government-granted right of way ‘titles; North Coast

_ Railway v. Northern Pacific Railway Company, 48

Wash. 529 (94 Pac. 113). But that decision is ex-

_ plained by the laté Judge Rudkin, who participated _

In it, and who decided the Holland case in the United _

States District Court, holding that such rights of way .

are immune from the police power of the state in the |

matter of longitudinal highway encroachment: We

shall revert later to these cases. ——

The views of this court have been definitely. ex-

pressed. Perhaps the first cas’ presenting the issue

as to the relation of the Act of March 3rd, 1875, to

‘Tailroad rights of way theretofore granted by special ©

act is found in Railway Co. v. Alling (October Term |

1878) 99 U. S. 463. That case had to do with the

- following facts: obi |

S Congress on June. 8, 1872 (17 Stat. 399) granted

to Denver and Rio Grande Railway Company a right

of way, conditioned. that the grantee: should complete

its“road to a point on fhe Rio Grande as far south as

Santa .Fe within five years, and complete each year»

thereafter. fifty miles’ additional:south of that point.

The oad was. not completed to. Santa Fe within the ©

‘allotted period, and on March 3, 1877 (19 Stat. 405),

“ Congress amended the grant of June 8, 1872, extending . 1

‘the period to ten years from the original act to com- |

_ plete the. road as far. south’ as Santa Fe. In. the

. meantime, and after the approval of the Act of March

3, 1875, Cafion City and San Juan Railway Company

- asserted its claim under the latter act to gecupy the

Grand Cafion of the Arkansas. ° Mr. Justice Harlan,

| expressing the opinion of the court, said at page 479:

“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 June 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 purpose

of constructing: its road. The five years’ orig-

+ imally 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 8th of

June, 1877. Before, however, the expiration of '

that period, the ‘time was extended to ten years

from the passage of the original act. Now, -it. is

. golely by reason of such extension that the Den-

ver Company had the right, on the 19th of April,

- 1878, to take possession of the Grand Cafion, and

one : . <

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 3, 1875, whereby it was de-

clared, in the interest ef 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 its road, in

common with the ro

; t located.”

=: The reasoning of ‘the cou arily 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 the Act of March 3,

. 1875, ae =

_ Our construction of this degision is reinforced by —

the opinion in United States v. Denver & Rio Grande

Railway, 150 U. S..1. In that case the government ,

' 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 special grant of J une 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 ease the ‘Denver Company (the de--

_ . .fendant in error here) had in 1871 and 1872

merely made a preliminary survey of its line

through the Grand Cafion of the Arkansas, but

* 20

had postponed the actual location and final 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 sec-

tion of which conferred upon other roads the ~

right, upon certain terms and conditions, to use

_ its track or roadway through such defiles,) for.

_ .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

completion of its road to Santa Fe,. which exten-

sion the court assumed would hardly have been

given by Congress except subject to the condi-

tions contained in the act of 1875. Being subject

to the provisions of the law, as contained in the

- gecond 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 érom complying with its .

conditions and securing the benefits conferred 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 law. But such is not the case before this court.

-. Here there was no breach of condition,-no failure to

~ perform on the part of the railway company. The

road was constructed long prior to the Act of March

8rd, 1875.

For the controlling principle under this head we

may go back to the summary statement of the rule by

21 |

Mr. Chief Justice Waite in‘ the Sinking Fund Cases,

99 U. S. 700, 719. oer is

“The United States are as much bound by their

contracts as are individuals. If they repudiate

their obligations, it is as much repudiation, with

all the wrong and reproach that term implies, as

it-would be if the repudiator had been a state or

a municipality or a citizen. N o 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 corporation. All this

is indisputable. i

So far as we have discovered there is no case from

. this court involving a right of way title fully vested |

prior to the Act of March 3, 1875, but the applicable

. principles of law seem to lead inevitably to the con-

elusion that the Act of March 3rd, 1875, can have no i

possible effect on a right of way title fully vested

under special grant? |

Under this point that the Act of March 3rd, 1875,

cannot be given a retrospective operation, the opinion

in this ease refers to the Act of Congress approved

June 24, 1912 (37 Stat. 138), and cites the. cases

of Union Pacific Railroad Co. v. Laramie Stock Yards, .

231 U. S. 190, and Union Pacific R. R. Co. v. Snow,

Id. p. 204, and the opinion oneously declares the

effect of these decisions as fgHows: © |

“On the contrary it appears therefrom that in

1912 Congress did enact legislation which had the |

direct effect of depriving the Union Pacific R. Ro

Co. of certain wnusued portions of the rights of

an oe

way previously granted to tt under this very act

of 1862, and the right of Congress so to do was

not challenged.” (R. p. 182, fol. 197.) . Y

This court distinctly held, contrary to thé opinion of

the, state court, that to give the Act of June 24, 1912,

"a retroactive effect “may incur the opposition of the

constitution” (231 U. 8. 200). The opinion of the

state court goes on to say (R. p. 133, fol. 198) :

«But in neither case was it held, as appellants —

contend, that the provisions of the act of 1912 were

inoperative and ineffectual against rights of way

- previously granted under the act of 1862; and .

indeed such a conclusion would have been directly

contrary to the very purpose and the express lan- -

guage of the 1912 act. It follows therefore, that

if in 1912 Congress had power ‘to. enact valid = -

legislation controlling the right of possession to

unused portions of rights of way granted by the

government under the act ofe1862, it was surely.

vested with the same power in 1875.””

Petitioners respectfully submit that they did not

contend that the Act of 1912 was inoperative. We.

- eontended that it was not retroactive. We-contend -

also that the Act of March 3rd, 1875, is utterly devoid . |

of phraseology or: intent empowering railroad com-— -

‘panies to convey, or public bodies to acquire by ad-

verse possession. Whatever rights are conferred by

the Act of March 3, 1875, are conferred directly: by:

- Congress, not intermediately through any railroad

grantee; and we have seen by Railway Co. v. Alling and

Umited States v. Denver & Rio. Grande. Railway Co.,

- supra, and by the clearcut statements of Mr. Chief :

Justice Waite and Mr. Justice Field in the Sinking

Fund Cases, that the Act of March 3rd;. 1875, could -

not have any effect as an amendment of the grant of

July 1, 1862 (99.U. S. 700, 719, 757). -Had Congress

intended to confer powers of alienation or dedication,

either directly, or constructively by adverse posses-

sion, it is only fair to presume that Congress would.

have said so in unmistakable language, as it did in

the Act of May 25, 1920 (41 Stat. 621), the language .

of that act being:

“Be it enacted by the Sénate and House of Rep-

resentatives of the United States of America in.

Congress assembled; That all railroad companies |

to which grants. for rights of way” through the

public lands. have been made by Congress, or their ~ -

successors in interest or assigns, are hereby author-

' ized to convey to any state, county, or munici-:

pality any portion of such right of way to be‘used> .

as a public highway or street: Provided, ‘That

‘no such conveyance shall have the effect to diminish

the right of way of such railroad company to a

less width than fifty feet on each side of the center

of the main track of the wilroad as now estab-

' lished and maintained.”

The highway. here in many places would not leave

* such width for railroad operation ( see map R. p. 40A, :

fol. 70A).

erase

a PROS

| 3 oe 4

"HE STATE POLICE POWER AND THE POWER TO ACQUIRE

| HIGHWAY BRIGHTS BY ADVERSE USER COULD NOT

EXTEND BEYOND THE RAILROAD COMPANY’S POWER OF

ALIENATION. PRIOR TO MAY 25, 1920 (41 STAT. 621), °

(HE RAILROAD COMPANY HAD NO POWER TO ALIENATE

LONGITUDINAL STRIPS OF THE RIGHT OF WAY AC-

QUIRED BY CONGRESSIONAL GRANT. Gt

| ‘Here, as in the brief in support of petition, we treat .

specifications 2 and 3. of the errors assigned; that is

' the erroneous conclusions (a) that the police power -

of the state extends to the appropriation of longitudi-

nal strips of railroad right of way granted by special _

get of Congress; and (b) that such strips might be

acquired by adverse user: The state court rests its

opinion on, the issue of polite power in part upon

several federal decisions involving highway crossings

of the railroad right of way, which, of course, are not

in point (R. 127, fol. 194). The opinion of the state

eourt also claims’ authority upon the issue of police

power upon the case of N orth Coast Railway v. North-

ern Pacific Railway Company, 48 Wash.; 94 Pac. .

113 (R. p. 128, fol. 194) but the North Coast-Northern

_. Pacific case does not purport to establish a rule gov-

- erning right of. way titles fully vested under special

federal grant prior to the Act of March 3rd, 1875. The

-yuling is not out of harmony with what we have quoted

"from the Sigking Fund Cases and from Railway v.

Alling and United States v. Denver &. Rio Grande

Railway. The Northern Pacific Railroad Company |

25 |

} ie er ey

claimed under the special right of way grant of July

2nd, 1864 (13 Stat. 365), 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 i

regarded by the Supreme Court of Washington as not

_ subject te the right of way grant until ceded by the --

Indians in 1885. The Supreme Court of Washington

has to say upon this point (94 Pac. 113):

“That portion of the right of way here in ques-

tion lies within said reservation, and was not a

part of the public lands within the méaning of

the said act of Congress, which ‘the’ United. States —

could then absolutely grant. The reservation

thereof to the Indians, therefore, remained in.

force until the year 1885.”

‘This decision was long before the rule established 7

by this.court in Nadeau v. Umon Pacific R. R. Co., 253

U.S. 442, and Kindred v. Union Pacific R. R. Co., 225

U. 8. 582, to the effect that the right of way granted

by the Act of 1862 was effective in Indian reserva-—

tions. Whether the reasoning of the Supreme Court

_ of Washington was ‘sound or not under the cireum-

stances of that case, it is clear he court rested its

decision upon the assumption that the 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 (Leaven-

“worth etc. Ry. Co. v. U. S., 92 U. S. 733, 748-749), and

the Northern Pacific Railway Company had to look to

subsequent federal authority for its right of way

through Union Gap. The court may well have as-

sumed, as did this court in the Alling case, supra,. _

that any federal authority granted subsequent to: the . |

‘ Act of March 3rd, 1875, was conferred in view of that

grant and subject to its limitations, = ae es

The late Judge Rudkin of the Ninth Federal Cir-

cuit was a member of the Supreme Bench of Washing-

ton 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. v. Nor. Pac. R. RB. Co., 208 Fed. 598, 603. That —

ease denies the power of the railway company to

alienate 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 voli-.

" “4ion ig measured by what it may be compelled to do |

_ under the police power of the state. Conversely, the.

police power of the state cannot extend beyond the

power of the railroad company to give its voluntary

-gonsent, 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 fpund any authority for the alienation for —

‘ highway purposes of any portion of a railroad right ..

. of way granted by special act of Congress.

~ On appeal of the Holland case to the Circuit Court

of Appeals for the Ninth Circuit (214 Fed. 920) the —

appellate tribunal considered the authorities uphold- |

~ t .

flea: ing ways laid out across the right of way, and held at

page 926: ios ;

“But in no substantial sense do these considera- -

ations apply to the.case of a street or other high-

_ way laid out along, instead of across, the right of

way. Granting the need of.a road running parallel.

or mm the same general direction with the railroad, |

there is no necessity for imposing the burden

thereof upon the right of way. It is hardly prob-

able that the practice of so locating a highway was

common at the time the act was passed, and, upon

the whole, it is unreasonable to suppose that Con-

gress 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 prac-

tically exclusive of both possession and use by the

‘railroad company, while. a crossing only qualifies a

or temporarily interrupts such possession and

use, ’’ a

ess. | .

The opinion in the instant case justifies the longi-

tudinal encroachment upqn the theory that a crossing

- under present conditions may well be a much ‘‘greater

burden” (R. p. 130, fol. 196). The rights of, the

public under the police power are not Measured by

the yardstick of public convenience, but rather of

public necessity. It is absolutely necessary that the

“public may pass from one’ side of the right of way

to the other; it is not necessary that the public should -

have the freedom of the roadbed longitudinally. The

highway ‘need not follow the canyon bed; the railroad

must, ~

.:)

The opinion comments that appellants do not allege

in the complaint ‘‘that the existence of said highway

ever has interfered with the operation of their rail-

road, or their program of railroad expansion, nor that :

it is likely to do so in the future” (R. p. 131, fol. 197).

An allegation of that character would be out of place

inasmuch as that is a question of law settled by Con--

gress itself. “By granting a right of way four hun- |

dred feet in width, Congress must be understood to |

have conclusively determined that a strip of that

‘width was necessary for a public work of such im-

portance.”’ (Nor. Pac. R. R. Co. v. Smith, 171 U. 8.

‘261, 275.) | ,

' "Taken literally this lan age would conclude the

court regardless of the purpose for which an adverse

right be claimed. If it be conceded that this lan-

~ guage is. elsewhere qualified, still the opinion does

not even suggest power of alienation or liability to

loss by adverse user of. longtitudinal portions of

right of way for public purposes. Under the Inter-

state Commerce Act, section 1 (Subdv. 18), a common

_ | property for any purpose without. first -having ob-

| tained from the Interstate Commerce Commission a°

| certificate that: the present or future public conven-

| | ience and necessity will not be. prejudiced.

’

Thie Supreme Court of California has long recog-

nized the principle clearly expressed by the Supreme.

Court of the United States that a railroad right e :

way is itself a public. highway of a special and re-

stricted nature. In Southern Pacific Company v.

Hyatt, 132 Cal. 240, 242, 243, the state court quotes —

from Olcott v. Board of Supervisors, 16 Wall. 678,

saying: : ? ae

| ‘That railroads, though constructed by private

corporations and 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.”’

.* * * “Tt is said that railroads are not: public

highway per 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

needed no decision of courts to make them such. ’’

The same case quotes with approval (page 244) the

general rule declared in Jones on Easements:

‘‘Jones on Easements Jays down the rule that

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 constantly 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 eonsidered as. permissive, and not adverse...

° (Citing a long. list of authorities from. different

*” states; J ones on Easements, sec. 281; P. 232.)” .

way not. immediately required for railroad ‘use ‘is

recognized and held not to be prejudicial in many

¢ federal Cases. It is so expressed 1 in the Holland case,

“supra, and again: in Barnes v. ‘Southern Pacific Com-

pamy and “Mulvihill v. Southern — es 16

Fed. (2nd) 1 100, 104:

5 ae ali has not authorized the ities

i’ of unused portions of the right of way. The

power of the railroad company to alienate, as

well as the power of others to acquire, any part -

_ thereof, is measured, not by what can be spared

from railroad uses, but by what is required to

meet such needs of the public or of individuals |

as fall within the scope 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

an — and. control.” |

g So, ae

”

_ Again 3 in Williams, Mayor et al. v. Atlantic Coast.”

. Line 8. Co.,17 Fed. (2nd) 17, 21, it is said that the

jaw does not require a railroad in order to preserve its

right of way, to act the’dog in the manger and churl-. ¥

-ishly refuse to allow the public to use a portion of.its

i right of mies for a street or road where such portion ce

oe .

31 ge

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 withi

: : the railroad -right of ‘way, notwithstanding the fa

. that there was‘in that case no legal restriction on the

company. to convey: or dediéate, 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, that there was no element either of estoppel or

~ abandonment presented by the circumstances, |

ee Heilbron, v. St. Louis 8..W. Ry. Co. of Texas,

02 Texas Civil Appeals, '575, 581- (113 S. WwW. men a

th-

_ “To hold that the mere use by the- public;

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 |

railway company to‘lose the use of its property —

which it may need for legitimate purposes con-

nected with its operation, would cause unutter- -

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- -

lie 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, gannot be acquired against a railroad’ to any

portion of its right of way. Southern P. Ry. Co.

v. Hyatt, 54 L. R. A,, 522; Northern P. Ry. Co, v.

Smith, 171 U: §., 260; Jones on Easements, sec,

' 281, and’ authorities cited in note. There are

many portions of Yailway tracks and rights of «

iO)

ee ‘ ‘9 eset ee |

- 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 hasvbeen kept up in some cases.

_. far beyond the period of time necessary to create

an absolute easement—yet no tourt in this state

has ever treated such persons, when injured while

_» using” the pny right of way, as more than

| licensees.””

IV.

THERE WAS NO FEDERAL GRANT OF COUNTY HIGHWAYS

. PRIOR TO THE RIGHT OF WAY GRANT OF JULY 1, 1862,

'' NOR UNTIL FOUR YEARS THEREAFTER. IN THE MEAN

| ‘TIME THE 400 FOOT STRIP WAS GRANTED BY CON-

GRESS AND DEDICATED TO THE PUBLIC SERVICE. OF A -

RAILROAD RIGHT OF WAY, THE WAY USED PRIOR: TO:

JULY 1, 1862,.WAS NEVER ADOPTEW BY THE COUNTY

_ OF ‘ALAMEDA.

a "To argue that no Fiblie. highway odied through

the pass of Niles Canyon prior to the right of ‘way.

"grant of duly 1,.1862, does not.imply that those who

} -may. have had oécasion to travel through Nilés Canyon

" were trespassers on the public domain: On the other

~ hand, to concedé that these occasional travelers passed

_ through the canyon as a matter of right is not an ad- |

mission that the privilege was ‘absolute. or : anything we

, more than a license by the federal government. ‘The —

| highway grant of July 26, 1866, is expli¢it in terms }

and purpose: ‘The right of way for the construction es

of highways over public lands, not resérved for public :

uses, is hereby granted”? (R. 8. See. 2477 ; Uv. 8. C. A...

Title 43, See. 932). It is not necessary to dwell upon —

the .familiar interpretation of the ‘term “hereby: ; |

gramted”’.. The right of way would vest . whensoever

over public lands; provided, however, that ‘the- lands -

'" Were not at the time of adoption of the road ‘reserved ae

for public. uses”, While a right of way appropriated .

prior to July 26, 1866, may be assumed to have vested

00 appreval of the grant, that could not be where the

' chosen route had, as here, previously been granted by

Congress, or reserved for public uses,

use, and the policy was crystallized into a statute

Passed on the 26th day of July, 1866,”

The court below refers to the Niles Canyon high-

Way asa way of necessity (R. Pp. 121). The doctrine _

2 Of ways of necessity is foreign to the facts, there being“

ee 4 gg.

no privity or other relation whatsoever between the .

railroad company arid the county. Fundamentally .

_ the rule is-exactly as applied by the United States Dis-

trict Court for the Southern District of California in

United States v. Rindge et al.; 208 Fed. Rep. 611, 619:

_ ‘What is commonly called a right of way from

necessity arises when the owner of a tract of land

£onveys a portion thereof to another and there is —

_ not access from a public highway to the part so

- conveyed except over the remaining lands of the

grantor, or a stranger, or when the owner sells a |

portion of his land and the part remaining is

‘inaccessible except over the land sold or that

of a stranger.”’ ”

~ The opinion in ia oe briefly analyzes ee effect

‘of the congressional grant for highway purposes (Id.) :

“By public statute Congress has granted rights

_of way for the construction of highways over:

public lands not reserved for public use. Act of

Congress July 26, 1866, ¢. 262, 14 Stat. at L. 253.

Beyond this and the full. protection of the title

~ which it: confers, it would seem that the govern-:

ment owes no duty orobligation and reserves to

itself or its subsequent grantees no interest in the

| land ‘granted except such as may appear on the

- .° face of the grant, or the law under which it was

' - made, or be declared by a general statute in force

at the time the _— of . the grantee was

- acquired.” ; i. .

The court says further on. the s same: page, denyiig FS

the theory of a _ of necessity :

~ in doing so. it m

“The logical result of this contention is*that a

way is reserved by implication for -the use of

- Such persons over all land granted by the govern- -

ment to reach the remaining subdivisiong when —

there is no other reasonable: or convenient means

of access, notwithstanding there is no such reser’

vation in the grant, and there is no publie law so

providing. ”’

~ Nor is it a fact that the topography of Niles Canyon:

offers any Serious obstacle to modern highway con-.

struction. ,We may look to the opinion itself for the

statement that in 1910 or thereabouts the county’ found

it practical ‘to reeonstructsmuch of its highway, and

within tke 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. 120,

fol. 189). This court._may judicially know what

_is matter of common knowledge, that highway en-

_ gineers today are not balked by mountains or can-

} yons,'and are governed as ‘much by. Scenery as by .

facility of construction. In fact it is not unusual in

-- highway construction ‘in’ the ‘hills.to forego’ estab-

lished routes in the. beds of canyons for shorter, more

practicable and more scenic routes at higher levels,

The record is conclusive that the line adopted by __

the board of supervisors of Alameda County in 1859

is north of Alameda Creek throughout its entire dis-‘ -

tance through the vanyon. It-is equally conclusive -

oved a considerable stretch, lying _

about midway between Stony Brook and Sunol,

that the way traveled was on both sides of the creek

and in considerable part in the bed-of the creek. The

Geological Survey of the Pleasanton Quadrangle in —

. 1904 shows four crossings near the westerly end of _

to the route described by the three-witnesses from

- personal recollection.— These four crossings shown on

- the topographic sheet certainly have no relation to the

~~ routé adopted in 1859 and shown on Defendants’ ‘Ex-

_. hibit B (R: p. 60A, fol. 98a). Only one of the cross- |

ings used in 1904 is apparently in the same location

as at present (Plaintiffs’ Exhibit 6 (p. 40A, fol. 70a) ).

_ the early period, when no improved way existed, fol-

. lowed the route of easiest travel, largely in the bed of

the creek when that was possible. When the water

was high they remained at home or sought another way

out. Under our statute travel through the canyon by

. few or by many did.not constitute the route of travel

a public road. The California Statute of Ape 26,

| 1858, provides, in section 1, that: |

“AT roads in the counties of Tuolumne and Ala- |

meda shall be considered as public highways, which. -

~ are now used as such, and have been declared such

by order of the court of sessions or board of super-

' visors, or which may be de¢lared such Hereafter, .

by the board of supervisors within their respective _

counties; provided, that. nothing in this act shall -

« apply to any — = or ' town within the:

counties nam | oe

2 oe

The route adopted-by the board of supérvisors was _

never opened;‘and the way used was never adopted. »

_——. §DPublie highways are such only as come within

' the express provisions 6f the statute declaring

__ them to bé such, and that roads established without

authority of law, for the convenience of individ-

uals, are without. any legal status either as public

highways or as private ways.”’ it

Tucson Consolidated Copper Co. v. Reese

(Ariz.), 100 Pac. 777, 778,

eg;

“The foregoing is typical of the many decisions upon

that familiar_issue, not a few of which are collated

‘under the uote to section 932 of Title 48 U.S. Q. A.

‘We thinkit unnecessary to pursue theargument upon

this well established rule.. cars

This principle, coupled with the undisputed and

indisputable line of route for toad No. 247 in 1859,

entirely north of -Alanieda Creek, ‘Tenders wholly

-nugatory any oral ‘testimony to the contrary. It also

destroys the effect of the words of the State Supreme

“Court (R. p. 122, fol. 191):

“‘The record shows ‘beyond question that all of.

the proceedings for the establishment of a public

_ highway from Niles to Sunol were taken by the

“ county and completed. long before the enactment

'. of the Pacific Land Grant Act of 1862 and con-

sequently long prior to the. time the railroad ac-

quired any-rights whatever in the canyon,”

“as

| a we assume, with the State Supreme Court, ‘that

the County, acquired a highway route as exhibited

on the plat of survey (Defendants’ Exhibit B, R. p.

60A, fél.’ 98a), that would not carry the further

right.to shift: the location at pleasure or convenience.

The rule is recognized in California, as in other jur-_

. isdictions, and as a: in Felsenthal v. Warring,

40 Cal. App. 119, 125-126:

“The acquisition of a » right of way over one

portion of a person ’s land, whether by grant or

prescription, gives the grantee nv right over any sy

other portion. It is entirely immaterial that the .

new line was only from twenty-five to forty feet

‘ distant from the old line. It was upon the prop-

erty of appellant, over which respondents had no

-. right whatever, and the principle is the same as

if the new line had been hundreds of feet away -

_. from the old one. ‘(Vestal v. Young, 147 Cal.

-715, (82: Pac. 381).)”’

“In conclusion, the practical importance of a decree

for petitioners as prayed lies in this: that in case

of need for, improved alignment, or expansion of _

facilities, or as a measure of safety, the railway com- ~

pany should have the unquestioned power to require —

a shifting of the highway to a new loeation. The

- railroad company requires ‘present assurance that the

. Yights-and privileges granted «by Congress may be

. exercised in full performance of the public service

| contemplated by the grant, and this whenever it may

_ become expedient, and without the danger of being <y,

/ a : ;

’ It is respectfully submitted that the decision of the

Supreme. Court of the State of California is ‘con-

-. trary to the applicable decisions of this court and to

éstablished law, upon all grounds here urged, and that

’ said decision ‘should be reversed with instructions to

‘ enter judgment ‘for petitioners. as prayed in their

complaint (R., P. 7, fols. 12-13),

Dated San Francisco, November 13, 1931,

C. F. R. Oatsy,

- 1422 F Btreet, N.W.,

Washington, D. O.

FRANK THUNEN, _

; 65 Market Street,

San Francisco, Calif, *

Attorneys for Petitioners. i

Guy V. Sxovup,

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.