Appendix — Noble v. Oklahoma City

REPLY BRIEF OF PETITIONERS TO SUPPLEMENTAL BRIEF 21

APPENDIX

W.S. ‘Burca

45.L. D. 473.

Instructions, September 12, 1916. ss

7 * * * # a e *

VocELSANG, First Assistant Secretary:

- July: 27, 1916, the Commissioner of the General Land

Office submitted with request for instructions the question

whether in the issuance of a fee patent to W. S. Burch, the

purchaser of the allotment of Hiram Brown, a non-compe-

tent Shoshone allottee No. 242, including the N. BE. ¥% S. E.

¥,, Sec. 33, N. W. 14, S.-W. 14, Sec. 34; T.1 N., R.4E., W.

R. M. , Wyoming, the land covered or approved reilvend’

ate of-way should be excluded from the patent or whether

such patent should be issued merely subject to. the —_

of-way of the railroad companies.

#

* . os * bad ae * *

It has been the general practice of this Department to

issue patents for lands crossed by rights-of-way subject to

the right of occupancy and user by railroad companies of

ther approved rights-of-way and station grounds. The

case of Eugene McCarthy (14 L. D., 105), involved a con-

flict of 2.72 acres between station grounds and a placer

. entry. The Department in concluding its opinion said:

‘‘The mineral claimant must therefore take the land

in dispute (2.72 acres) subject to the right of occupa-

tion by said company for station purposes. It was held

in Dakota Central Railroad Company v. Downey (8 L. °

D., 115, 120), that any patent granted ‘which should

| include a portion of this grant to the railroad company,

must therefore be subject to that grant, because the

dane is already nee and soenpete.

22 _ NOBLE ET AL. V. CITY OF OKLAHOMA CITY

- “Patent may issue to said McCarthy therefore for

_ said placer claim, but subject, as to that in conflict, to

the right of occupation by said company for station

purposes.””

In the case of Pensacola and Louisville Railroad Com. —

pany (19 L. D., 386), it was held that the land over which a

right-of-way is located may be disposed of by patent to

others, subject to whatever rights the company may have in

_ the same. This view was reiterated in the case of Brucker

v. Buschmann (21 L. D., 114). The same principle was

applied to a toll road the grant of a right-of-way for which

arose pursuant to Section 2477, Revised Statutes, which

provides that ‘‘the right-of-way for the construction of

highways over public lands, not reserved for public use, is

_ hereby granted.”’ See Wason Toll Road Company v. Town-

| site of Creede (21 L. D. , 351).

A right-of-way under this act of March 3, 1875 (18

Stat., 482), was involved in the case of Mary G. Arnett (20

L. D., 131), and the Department there said:

_ ‘*The right-of-way clause should not then be inserted

in the applicant’s final certificate, unless it is necessary

to protect whatever rights the railway company may

have in the land by virtue of its grant.

‘*Under the act of March 3, 1875, supra, such protec-

tion does not appear to be necessary. The act itself

affords ample protection to the company, if it has any

rights which the courts may hereafter determine have

not been forfeited. The language of section four of

said act is, ‘and thereafter all such lands over which

such right-of-way shall pass, shall be disposed of, sub-

ject to such right-of-way.’ These lands are then dis-

posed of, subject to such right-of-way, by virtue of the

statute.

‘‘This is not a direction to the land department to

insert limitations and restrictions in the final certifi

REPLY BRIEF OF PETITIONERS TO SUPPLEMENTAL BRIEF 23

cate and patent, but a legislative ‘declaration of the

reservation of a right-of-way to such railroad com-

panies as may have complied with the law. The inser-

tion of the right-of-way clause would answer no pur-

pose except te embarrass the settler, and leaving it

‘out does not affect the rights-of-way of any railroad

company under said act.’’

* * * * * * * *

In the case of the Southern Ute Allotments (26 L. D.

77), in an opinion prepared by Assistant Attorney-General

Van DevaNTER, it was held that fee patents should contain.a

clause setting forth that the conveyance was made subject

to the railroad’s right-of-way, the grant being under the

special act of June 8, 1872 (17 Stat., 339), which did not in

terms protect the rights of the company.

In the case of the Oregon Short Line Ry. Co. v. Hark-

ness (27 L. D., 430), a right-of-way across the Fort Hall

Indian Hencivation, for which $6,000 had been paid, was in-

volved and such right-of-way .land was embraced in the

lomestead entry of Harkness. It was there held that a

reservation of. a right-of- -way should be incorporated in the

final certificate and patent, where the right-of-way was ob-

tained under-a special act, but that no such reservation was

required in the case of a right-of-way obtained under the act

of March 3, 1875. In the case of Denver and Rio Grande

R. R. Co. v. Clack (29 L. D., 478), it was again held that a

reservation of a right-of-way granted under the act of.

March 3, 1875, in final certificate and patent, was not neces-

sary and should not be inserted.

In instructions of November 3, 1909 (38 L. D., 284), as

~amended January 19, 1910 (38 L. D., 399), the. practice as

indicated and the distinction between rights-of-way under

general and special acts was preserved and reannounced.

It will be borne in mind that the excepting or reservation

dause involved ‘was not an exclusion or elimination of an

arce of land but was a clause stating that the patent or con-

24 ’_. NOBLE ET AL. V. CITY OF OKLAHOMA CITY

veyance was subject to the right-of-way of the specific

company under the particular special act. The above-men-

tioned regulations are cited and explained in the instrue-

tions of February 2, 1912 (40 L. D., 398), and it was there

said:

+ asia to enter public lands that are affected

by a mere pending application for right-of-way should

-be verbally informed thereof and given all necessary

information as to the character and extent of the proj-

ect embraced by the right-of-way application; and,

further, that they must take the land subject to what-

ever right may have attached thereto under the right-

of-way application, and at the full area of the subdivi-

sions entered, irrespective of the questions of priority

or damages, these being ee for the courts to

determine.”’

In the case of the Schirm-Carey and other placers (37

L. D., 371, 374), the grant of the Atlantic and \Pacific Rail-

road: Company was involved. The 200-foot right-of-way

’ covering about 107.33 acres, crossed the affected loca-

tions and had been excluded from the patent proceedings

and the entry. The Department said: - .

‘“‘The difficulties and .perplexities involved in the

various aspects of the case, in view of the practice with

respect to the disposition of lands in a similar situa-

tion under other public land laws, as well as the serious

question involved in the bisection of the claim by reason

of the exclusion of the railroad right-of-way, is deemed -

by the Department to justify the conclusion reached

by your office, that in no event can the entry as to any

‘of the claims be passed to patent in the absence of sup-

plemental patent. proceedings including the previously

excluded area constituting the railroad right- of way.”

In instructions of March 13, 1911 (39 L. D., 565), im

volving the Northern Pacific right-of-way across the tribal

REPLY BRIEF OF PETITIONERS TO SUPPLEMENTAL BRIEF 25

lands of the Fond du Lac Indian Reservation in Minnesota,

where the company had paid $10 per acre for the ared of

its right-of-way, it was said:

_ ‘While the right-of-way granted the Northern Paci-

~ fic Railway Company by the act of 1864 is a grant in

fee, it is not a fee simple but is subject to reversion

in the event that the company should cease to use the

land for railroad purposes. It is not the rule of the

Department to except from patents issued to.entrymen

under the public land laws the area embraced in the

_ right-of-way across the lands entered; nor had it been

the practice to relieve purchasers under the public land

laws from: paying for the full area of the tract pur-

chased, notwithstanding that such purchase is made

subject to the company’s right-of-way.

“To except from a patent a tract of land included in

the right-of-way would be to reserve a narrow strip of

land which, if abandoned by the railroad company,

would revert to the Government and would not inure

to the benefit of the purchaser of the subdivisions tra- .

versed by such right-of-way. |

“It is believed that damages paid by the railway com-

pany in this case were merely damages resulting from

the construction of the railroad across the reservation

and in no sense represented a purchase of the land’

covered by the right-of-way. As above indicated, there-

fore, I must decline to approve the letter prepared by

your office.’’

Considerable research has disclosed to the Department

but two instances im which the acreage in a right-of-way

has been ordered deducted from the legal subdivision affect-

ed and the land patented exclusive of such right-of-way.

One of these cases is that of the Northern Pacific right-of-

way and station grounds within the Flathead Indian Reser-

. 26 NOBLE ET AL.-V. CITY OF OKLAHOMA CITY

vation. By the act of July 4, 1884 (23 Stat., 89), $16,000 was |

appropriated by Congress to pay the Indians for the sur-

render and relinquishment to some 1,300 acres included in ”

the right-of-way and 130 acres covered by station grounds ..

pursuant to the agreement of September 2, 1882, between

the Government and the Indians respecting Such a cession,

The railroad company paid into the Treasury said sum of.

$16,000 prior to the act. In a letter prepared in the General

Land Office and approved by this Department, on April 25,

‘1910, it was stated that as the right- of-way strip and the

_ station grounds had been relinquished prior thereto such

' lands were not subject to disposal under the acts of April

- 23, 1904 (33 Stat., 302), and May 29, 1908 (35 Stat., 448),

providing for the disposition of the Flathead lands. The

opinion was there expressed that title to none of such rail-

road lands should be disposed of to the homestead settlers

and that in original applications and patent certificates

there should be excluded the acreage covered by the right-

of-way and the station grounds. The conclusion thus

reached would appear to be directly contrary to the doctrine

announced in the prior cases of the Oregon Short Le v.

_Harkness, and the Southern Ute allotments, supra, and

also to the subsequent Fond du Lac Reservation, case above

cited. ,

The other instance of éxclusion arose in connection with

‘the case of George F. Wunsch (43 L. D., 551). 1t was there

held. that the 180-foot strip reserved and withdrawn under«

- the act of June 25, 1910 (36 Stat., 847), for an electrical

trarismission line should be excepted and excluded in the

entry papers and in the patent. Proper regulations under

this decision were promulgated November 23, 1915 (44 L. D.,

413).

The Supreme Court in Railroad Company v. Baldwin

(103 U. S., 426, 430), said: |

RBPLY BRIEF OF PETITIONERS TO SUPPLEMENTAL BRIEF 27

, ‘We are of opinion, therefore, that all persons ac-—

quiring any ‘Portion of the public larids, after the pas- '

sage of the act in question, took the same subject to

the right-of-way conferred ~ it . for the proposed

road. re

In Smith v. Tounsend (148 U. S., 490, 499), is found the

following :

‘*Doubtless, aie obtained title from the Gov-

_ ernment to any quarter section of land through which ~*-

ran this right-of-way would acquire a fee to the whole.

tract subject to the easement of the company; and if

_ ever the use of that right-of-way was abandoned by.

the railroad company the easement would cease, and

full title to the right- of-way would vest i in the patentee

of the land. - :

‘This opinion was expressed in connection with the

right-of-way through Indian land in Oklahoma arising

under the act of July 4, 1884 (23 Stat. 73). —

In the very recent: case of Rio Grande Western Rai-

way Company v. Stringham, decided November 1, 1915 (239

U.S, 44), a conflict between the right-of-way under the

act of March 3, 1875, and a placer patent was involved.

The opinion was: prepared by Justice Van Devanrer, who

was thoroughly familiar with the practice of the land de-

partment and who approved the conclusions reached in. the?

Southern Ute Allotment, Oregon Short Line v. Harkness,

and Denver and Rio Grande Company v. Clack, cases before

- cited. The following are certain excerpts therefrom:

‘‘At the trial the facts were specially found and

judgment for the defendants was entered upon the find-

ing. In reviewing that judgment the Supreme Court

of the State, accepting the findings below, held that the

plaintiffs in virtue of proceedings had in the Land De-

partment under the Right-of-way Act while the land

‘was yet publie acquired a right-of-way two hundred feet

ithe

28

«¢ NOBLE ET AL. V. CITY OF OKLAHOMA CITY

wide through the lands afterwards embraced in the

mining claim and that the defendants’ title under the

placer patent was subject to this right-of-way, and

thereupon reversed the judgment and remanded the .

case with a direction to ‘enter a judgment awarding

to the plaintiff title to a right-of-way over the lands in

question one hundred feet wide on each side of the cen-

ter of the track.’ 38 Utah 113. Acting upon this direc.

tion the trial equrt vacated its prior judgment and en.

tered another adjudging the plaintiff to be ‘the, owner

of a right-of-way’ through the mining claim one hun-

dred feet wide on each side of the center line of the

‘ pailroad, declaring the plaintiff’s title to such right- .

of-way good and valid, and enjoining the defendants

from asserting any claim whatever to the premises, or

‘any part thereof, adverse to the plainttff’s ‘said right-

x9?

of-way.

a .

” a * ; 3. oa * . .

‘‘The right-of-way granted by this and similar acts

is neither a mere easement, nor a fee simple absolute,

but a limited fee, made on an implied condition of re-.

verter in the event that the company ceases to use or

retain the land for the purposes for which it is granted,

and carries with it the incidents and remedies usually

attending the fee. New Mezico v, United States Trust

Co., 172 U. 8. 171, 183; Northern Pecific Ry. Co. ¥.

Townsend, 190 U, 8. 267, 271; United States v. Mich

gan, 190 U. 8. 379, 398; West Un. Tel. Co. v. Pennsy

vania R. R., 195 U. 8. 540, 570. The judgment under

review does not in words so characterize the plaintiff's

right nor was it essential that it should do so. It ue

scribes the right in the exact terms of the Right-of-Way

Act and evidently uses those terms with the same mean

ing they have in the act. ‘So interpreting the judgment,

as plainly must be done, we thing it accords to the

plaintiff all to which it is entitled under the act.”

REPLY BRIEF OF PETITIONERS TO SUPPLEMENTAL BRIEF 29

A homestead patent. in conflict with the railroad right-

of-way under the act.of March 3, 1875, was involved in

Barlow v. Northern Pacific Ry. Co. (240 U. S., 484). The

court there treats the prior rights of the railroad com-

“pany as. being “‘paramount’’ and concludes that the home-

stead patent under the facts as found was subject to the

right-of-way. . | oO ) |

in view of the foregoing and of the well-established

- and long-continued practice of the’ land department with

respect. to the issuance of patents for lands crossed by

prior rights-of-way, it is directed that the fee patent to be

issued to W. S. Burch includes and describes the legal sub-

division covered by the Indian allotment inclusive of the

right-of-way areas and further that usyal clause indicating

that the conveyance is subject to the two approved -rights-

of-way mentioned be inserted. (All italics supplied by pe-

‘titioners.) :