Opinion — Minneapolis, St. P. & S. Ste. MR Co. v. Doughty

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MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE

RAILWAY COMPANY v. DOUGHTY.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA.

No, 81, Argued December 17, 1907.—Decided February 3, 1908.

Under the act of March 3, 1875, c. 152, 18 Stat. 482, granting to railroads

the right of way through public lands of the United States, such grant

takes effect either on the actual construction of the road, or on the ap-

proval of the Secretary of the Interior, after the definite location and

the filing of a profile of the road in the local land office, as provided in

§ 4 of the act; and a valid homestead entry made after final survey but

before either the construction of the road or the approval by the Secretary

of the profile, is superior to the rights of the company. Jamestown &

Northern Railway Co. v. Jones, 177 U. 8. 125, explained and followed.

107 N. W. Rep. 971, affirmed.

Tue facts are stated in the opinion.

Mr. Alfred H. Bright for plaintiff in error:

The filing of the plat and the approval thereof by the Secre-

tary of the Interior were not conditions precedent to the

acquisition of a right of way under the act of March 3,

1875.

It was the intention of Congress to protect the company

as well as the settler from the time of entry. It is assumed

by Congress that the company must of necessity locate its

252 OCTOBER TERM, 1907.

Argument for Plaintiff in Error. 208 U. 8.

line before it could make a filing or build its railway, and that

to do this it must have the right to enter and take possession

of the land.

The only location mentioned in the act does not depend

on the map, that is to say, is not made by the map, because

the map, of necessity, follows the location. The map is simply

the evidence of the location made as all locations are made,

and the right of way may be built upon before the map is

approved or even filed. Jamestown & Northern v. Jones, 177

U. 8. 125.

When the company locates its line, it has begun proceed-

ings to acquire the title, which if regularly followed up makes

it the first in right as to any unoccupied Government land.

Railroad v. Alling, 99 U. 8. 463.

The court should avoid a too rigid and litera! or verbal

construction of the act in question and should hold not that

the word “thereafter” means only after the last act recited

has been done, but that it applies to the first thing which the

railroad company is required to do, to wit: the location of

its road. It refers to the whole group of acts for securing the

title and, by the doctrine of relation, when the map is ap-

proved the title vests in the railroad company as of the date

of the location of its road. St. Paul &e. Ry. v. W. & St. P.

Ry., 112 U. 8. 720; Sioux City de. Ry. v. C., M. & St. P. Ry.,

117 U. S. 406; United States v. Detroit Lumber Co., 200 U. 8.

321, 334,

The construction of this statute here contended for invokes

the doctrine of relation from the approval of the map to the

inception of the equitable title of the railway company, at

least as early as the seventeenth day of June. This construc-

tion is supported by the Supreme Court of Missouri in the

case of Kinion v, Railway Co., 118 Missouri, 577; S. C., 24

8. W. Rep. 636; by the Supreme Court of Colorado in Denver

& Rio Grande R. R. Co. v. Hanoun, 19 Colorado, 162; 8. C.,

34 Pac. Rep. 838, and by the Supreme Court of Utah in Lewis

v. Railway, 54 Pac. Rep. 981.

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MINNEAPOLIS, ST. PAUL &c. RY. CQ. »» DOUGHTY. 253

208 U. 3. Argument for Defendant in Error.

Counsel is aware of a line of decisions contrary to the views

here contended for. Red River &c. v. Sture, 20 N. W. Rep

229; S. C., 32 Minnesota, 95; Spokane &c. Co. v. Zeigler, 61

Fed. Rep. 392; Lilienthal v. So. Cal. Ry. Co., 56 Fed. Rep.

701; Hamilton v. Spokane &c., 28 Pac. Rep. 408; Enoch v.

Spokane &c., 33 Pac. Rep. 966; Denver &c. v. Wilson, 62 Pac.

Rep. 843, discussed and said to be in conflict with Jamestown

& Northern v. Jones, 177 U.S. 125, The latter case discussed,

and distinguished from the present case.

Mr. S. E. Ellsworth, with whom Mr. George W. Soliday was

on the brief, for defendant in error:

It was not the intention of the framers of the act of March 3,

1875, that the grant therein mentioned should attach immedi-

ately upon the filing of a copy of the railroad company’s articles

of incorporation, No railroad company can claim to be a

grantee of a right of way over the public lands until a profile

of its road has been filed and approved as specified in the

act, and after that has been done, the grant is not operative

upon lands to which private rights had previously attached.

Enoch v. Spokane Falls & N. Ry., 33 Pac. Rep, 966; James-

town & N. Ry. Co. v. Jones, 7 N. Dak. 119; S. C., 76 N. W.

Rep. 227. See also Red River & C. R. Co. v. Sture, 20 N. W.

Rep. 229; Spokane Falls & N. Ry. Co. v. Zeigler, 61 Fed. Rep.

392; aff'd 167 U. 8S. 65; Washington & I. Ry. Co, v. Osborn,

160 U. S. 103; Lilienthal v. Southern California Ry. Co., 56

Fed. Rep. 701; Dakota Central R. R. Co, v. Downey, 8 L. D.

115; Circular of Commissioner Williamson, 2 Copp’s Public

Land Laws, 816; Circular of Commissioner Stockslager, 12 L. D.

423; Denver & R. G. R. Co. v. Wilson, 28 Colorado, 6; S. C.,

62 Pac. Rep. 843; Hamilton v. Spokane Falls & P. Ry. Co., 3

Hasb. (Idaho) 164; S. C., 28 Pac. Rep. 408; Chicago, K. &

N. Ry. Co. v. Van Cleave, 52 Kansas, 665; S. C., 33 Pac. Rep.

472; Red River &c. R. Co. v. Sture, 32 Minnesota, 95; S. C.,

20 N. W. Rep. 229; Jamestown & N. Ry. Co. v. Jones, 7 N. Dak.

119; S. C., 76 N. W. Rep. 227.

ee Meg sai Pal ek . ,

254 OCTOBER TERM, 1907. !

Opinion of the Court. 208 U.S.

Mr. Justice McKenna delivered the opinion of the court.

This action was brought by the defendant in error against

plaintiff in error in the District Court of Foster County, State

of North Dakota, to recover compensation for injury to his

land by the construction and operation of the railroad of the |

plaintiff in error.

Defendant in error has a patent to the land, and the ques-

tion is whether before his settlement under the homestead

laws plaintiff in error acquired a right of way over the land

for its railroad under the act of March 3, 1875, c. 152, 18 Stat.

482.

The trial court held (1) That defendant in error was “the

owner in absolute fee simple of the land” and that his title re.

lated back to July 1, 1892, the date of his settlement. (2) That

the railroad “having attempted to acquire a right of way |

across said land before and in anticipation of the construction

of its railroad, in compliance with the provisions of § 4 of the

act of Congress, approved March 3, 1875, the filing with the

register of the district land office, and approval by the Secre-

tary of the Interior, of the plat or profile of the section of its

railroad extending across said land, was a condition precedent

to the acquisition or claim on its part to right of way, and any

title, estate or interest acquired by it in or to said land dates

from said filing and approval.”” Judgment was entered for

the sum of $1,000 damages and costs, and it was adjudged,

upon paying the sum, the title to the right of way should vest

in the railroad company.

The facts, as recited by the Supreme Court in its opinion,

are as follows:

“On June 25, 1892, the plaintiff’s application to enter the

quarter section in question was presented to and accepted by

the register and receiver of the United States land office at

Fargo. On July 1, 1892, the plaintiff took up his residence

on the land under his homestead entry and in all things com-

plied with the Federal homestead laws. On November 4,

MINNEAPOLIS, ST. PAUL &c. RY. CO. v. DOUGHTY 255

208 U.S. Opinion of the Court.

1899, a patent conveying the title to him was issued. That

instrument makes no mention of any easement in favor of

the railroad.

“The defendant railway company was organized in 1891.

Its articles were filed with the Secretary of the Interior on

March 26, 1891, and approved by him on April 15, 1891; and

it thereby became entitled to the benefit of the act of March 3,

1875.

“In October, 1891, the company made a preliminary survey

of its proposed line of railway across the land; and on May 13,

1892, completed its final survey, definitely fixing the line of

its proposed road over the quarter section. The line as sur-

veyed was marked by stakes driven into the ground one

hundred feet apart, indicating the center of the roadway to

be constructed. The definite location of the route as fixed by

this survey was approved and adopted by the company’s

board of directors on June 17, 1892, being eight days before

the plaintiff made his homestead filing. ;

“The map or profile of its road as thus definitely located was

filed in the local land office at Fargo on July 20, 1892, and

received the approval of the Secretary of the Interior on

October 14, 1892. In the latter part of July, 1892, the com-

_ pany constructed its road across the land, on the line as sur-

veyed, and ever since has operated its railway over the roadway

so constructed, using and appropriating for that purpose a

strip 200 feet wide, 100 feet on each side of the center of the

track.” 107 N. W. Rep. 975.

On these facts the court affirmed the judgment of the trial

court, basing its decision on Jamestown & Northern Railway

Company v. Jones, 177 U. S. 125. The court said that it was

a necessary inference from that case “that actual construction

is the only sufficient act, other than compliance with § 4, to

constitute a definite location, and the right of way does not

exist before actual construction unless the company’s profile

map has been approved by the Secretary, before the settler’s

rights attached,”

Ls POLIS LLL SLI LOGE,

256 OCTOBER TERM, 1907.

Opinion of the Court. 208 U.S.

It will be necessary, therefore, to consider §4 of the act

and its interpretation in that case.

Section 1 of the act reads: “That the right of way through

the public lands of the United States is hereby granted to any

railroad company . . . which shall have filed with the

Secretary of the Interior a copy of its articles of incorporation, :

and due proofs of its organization, . . . to the extent of

one hundred feet on each side of the central line of said

road.”

Section 4 reads as follows (18 Stat. 483):

“Src. 4. That any railroad company desiring to secure the

benefits of this act shall, within twelve months after the loca-

tion of any section of twenty miles of its road, if the same be

upon surveyed lands, and, if upon unsurveyed lands, within

twelve months after the survey thereof by the United States,

file with the register of the land office for the district where

such land is located a profile of its road; and upon approval

thereof by the Secretary of the Interior the same shall be noted

upon the plats in said office; and thereafter all such lands over

which such right of way shall pass shall be disposed of subject

to such right of way: Provided, That if any section of said

road shall not be completed within five years after the location

of said section, the rights herein granted shall be forfeited as

to any such uncompleted section of said road.”’

Did the District Court and the Supreme Court construe this

section correctly? The railroad contends against an affirmative

answer, and urges that it is the location of its road which

initiates a railroad company’s right, and which, “if regularly

followed up, makes it the first in right as to any unoccupied

Government land.” And this, it is contended, is a necessary

conclusion from other provisions which makes the location

the first act, the act from which “everything is reckoned ”—

the time within which the map must be filed and the time

within which the road must be built. And it is further urged

that an entry upon the land to locate the road is as necessary

as an entry on the land to build the road, and, being there,

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MINNEAPOLIS, ST. PAUL &c. RY. CO. ». DOUGHTY. 257

208 U.S. Opinion of the Court.

the railroad “could not become a trespasser, either as to the

Government or as to the plaintiff.” In further support of the

contention it is pointed out that Congress gave the company

twelve months after the location within which to make its

filing, and, therefore, in analogy to preémption and homestead

laws Congress intended to protect the location during the time

allowed for the filing of the profile or plat. But § 4 gives little

play to construction or the analogies which the company

invoke. That section determines the priority of rights be-

tween railroads and settlers by explicit language. A right of

way is granted, but to secure it three things are necessary:

(1) location of the road; (2) filing a profile of it in the local

land office; and (3) the approval thereof by the Secretary of

the Interior, to be noted upon the plats in the local office. It

is after these things are done that the statute fixes the right

of the railroad and subjects the disposition of. the land, under

the land laws, to that right. “And thereafter,” are the words

of the statute, “all such lands over which such right of way

shall pass shall be disposed of subject to such right of way.”

It would be a free construction of these words to give them

the meaning for which the railroad company contends. They

neither convey an unnatural sense or lead to an unnatural

consequence. Unless rights under the act of 1875 and rights

under the land laws were to be kept for an indeterminate time

in uncertainty and possible conflict, to fix some act or point

of time at which they should attach was natural, and to con-

strue language which is apt and adequate by its sense and

arrangement to express one time to mean another, would be

a pretty free exercise of construction. We admit that the

letter of a statute is not always adhered to and words may

be transposed, but the necessity for it must be indicated to

accomplish the purpose of the legislation. There is always a

presumption that the words were intended as written and in

the order as written; certainly, when they express a definite

sense which would be changed to another with different and

opposing legal consequences. The railroad company, how-

VOL. cCVilI—17

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258 OCTOBER TERM, 1907. \

Opinion of the Court. 208 U. 8.

ever, contends for that result. We have stated its contentions, |

and, it is urged, if there is difficulty in accepting them it arises

“from a too rigid and literal or verbal construction” of § 4;

“that the word ‘thereafter’ means only after the last act

recited has been done. Whereas it is perfectly legitimate to

consider that the term ‘thereafter’ applied tothe first thing

which the railroad company was required to do, to wit, the

location of its road. That it re‘crs to the whole group of acts

for securing the title, and that by the doctrine of relation

when the map is approved the title vests in the railway com-

pany as of the date of the location of its road.” And this, it

is further urged, is the rule applied to preémptors on the public

lands and which this court has applied to some railway land

grants. The contention is supported by Kinion v. Railway Co.,

118 Missouri, 577; Lewis v. Railway (Utah), 54 Pac. Rep.

981, and, it is urged, by Denver & Rio Grande R. R. Co. v.

Hanoun, 19 Colorado, 162. It is opposed by Lilienthal v. So.

Cal. Ry. Co., 56 Fed. Rep. 701; Larson v. Oregon Co., 23

Pac. Rep. 974; Hamilton v. Spokane, 28 Pac. Rep. 408; Enoch

v. Spokane, 33 Pac. Rep. 966; Denver &c. v. Wilson, 62 Pac.

Rep. 843. The simple weight of opinion is against the con-

tention of the railroad, and its counsel meets the fact squarely,

and says that those cases “are in their broad scope in clear

and unmistakable conflict with the fundamental principle on

which” Jamestown & Northern Railway Co. v. Jones, 177

U. S. 125, was decided, “and rest upon the hard and fixed

proposition that no railroad company under this act [act of

1875] could get any right in the land until its map was ap-

proved.” But counsel, while invoking the “fundamental

principle” of Jamestown & Northern Railway Co. v. Jones,

attacks the construction of the statute there made and the

reasoning which led us to the principle.

That case decided three propositions: (1) That a railroad

company becomes specifically a grantee under the act of 1875

by filing its articles of incorporation and due proof of its

organization under the same with the Secretary of the Interior.

MUS AUS Se CELE AM OCT ne

MINNEAPOLIS, ST. PAUL &c. RY. CO. v. DOUGHTY. 259

208 U.S. Opinion of the Court.

(2) That the lands granted were identified by a definite loca-

tion of the right of way, and, sustaining the contention of the

railroad that definite location could be made by actual con-

struction of the road against the decision of the lower courts

that such location could only be made by a profile map of the

road, we said that the contention gives practical operation to

the statute and enables the railroad company to secure the

grant by an actual construction of the road, or, in advance

of construction, by filing a map as provided in § 4. (3) Actual

construction of the road is certainly unmistakable evidence

and notice of appropriation. a

This, it is now contended or intimated, reads something

into the statute which is not there, and that the Jamestown

and Northern Railway Company “could only maintain its

claim to right of way upon the same construction of the statute

as that for which the plaintiff in error contends.” In other

words, location initiated the company’s right, and any other

view will put Jamestown & Northern Railway Company v.

Jones in opposition to the decisions in railway land grant cases.

The latter proposition was disposed of in the case. ihe answer

to the other is contained in the words of the statute, and the

essential difference between a mere location movable at the

will of the company and the actual construction of the road

necessarily fixing its position and consummating the purpose

for which the grant of a right of way was given.

Judgment affirmed.

ery a ee ae PEER ELE NEEL EL LONI LLL BES LLL IER FRO PENT POT