Petition for Writ of Certiorari — Great Northern Railway Co. v. United States

Supreme Court brief1942

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Bupceme Gourt of the Mnited States

- OCTOBER TERM, 1941.

- 7 Z a 49. :

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eae “ —

GREAT Norraman RaILway COMPANY,

. Petitioner, and Appellant below.

o vs. eh :

UNITED STATES OF AMBRICA, _ j

Respondent, and Appellee béiée.

PETITION FOR WRIT OF CERTIORARI TO THE

‘UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT AND BRIEF~ -

IN SUPPORT THEREOF. :

“ -\. a. DorETY:

175 E: 4th Street,

. St. Paul, Minnesota,

“S _ WEIR, CLIFT & BENNETT,

; Helena, Montana,

: . Attorneys for Petitioner. |

- May 28,1941. oe: “

_ Review Publishing Co., 141 B. Fifth St., St. Paul, Minn.

Lous githe, J

8 x Pe .

Se . fal y.

WH Te

Petition.

‘3 ; Page

: Summary statement of matter invwlved....... ee esee 1

7 Basis of this Court's jurisdiction eaten eee eee eens ee

~ Federal question. PYCOCREOR .ccccccsccscneces seweeee KS

Reasons relied ‘on for allowance of writ... 2.2.0.2... Set

Brief.

The opinions of the courts ROOT. < kee os Madseisis re

mer 2 ae ae enee oe ect ebenen case aunt . 10

Statement of the.case’.......... “See e ew eeeees owas. we

Specification of errors ...... niebhaséeSéewase aban ll

BI - 0c 4 deca veces deat escccesesssegeshan’s c dean 12

* During and prior to the period ‘of the Cotigressional ‘©

grants, “right of way”,.as ‘used in legislative Ne

enactments invariably meant the trip of land

ow ned Me TE a onus Gad Woe6 mapas eh een aa merns wih 13

e Judicial det isions seem to support the, same useage. 16

_The provisions of the Congressional grants: indicate

* that Congress itself used the term “right of way”

in the genase Of strip of land ...<acsecccccecsece 18

’ The term “right of way” to designate the strip of ao

land ‘itself is still universally ‘used, in statutes

.> and railroad conveyances - and is common in pti-

-. Yate deeds and,: ‘such use is supported by dic-

tionaries ........-064- ‘sans canes ase is wé.calw oss 21.

The grant was not a gratuity and there would be no

object in retaining the. minerals in the govérn-

) | i ‘

a a.

ment. The consideration far outweighed the value.

of the grant, which therefore — a liberal

- construction -...... ee eeccgroaveséndeesceseces ° 2

The granting of a fee estate would not 2 bey

Phases vases

the purpose of the-wet-, Seas emweekevcoegecess 4

——

It was never the practice or policy of Congresy to

grant surface fights and reserve underlying ipin-

Debates in House of, Representatives did. not re

to character of estate granted ....... welche Cede rly ©

In accordance with the foregoing considérations, 12°

~ decisions of the Supreme Court and every deci-.

-sion ever renderéd by a ‘state or lower Federal

court construing the right of way grants, except

. the devision now at bar, have uniformily held

"over a period of more than 50 years that the

estate granted by the Federal grants was a fee

title, conditioned’ only ngen continued railroad

QOTGEIOT co sce sn ice fecessccctccsesecescecncss . 29

. The government admitted in its brief below that the

~ clause granting “a right of way threugh the pub-

lie lands”, as repeatedly used .for.25 years in

earlier grants, granted ‘a fee (and impliedly that

the railroads which obtained their right of yay

. under the earlier grants had the right to drill

for oil), and gave no adequate reason for deny-

ing similar right te. grantees under the Act =. .

Mareh.3, I8f5 ....... ie cestaesete eeu uh aayes 34

The prohibition against alienation of the’ right of :

way does not apply to remoyal of-oil -......... 36

_ Even where private right of way deeds have been

i ‘

Bea eee

"involved, the cases declaring =the estate of the

> railrdaiitto be a fee simple, outweigh those hold-

| ine it to" wp easemept 2.05.6 ee eee eee ee eens ‘ 58

Sithsequent. rulings of the ‘Lay a Department and

“acts of Congress supporting/easement theory are

_ self-sery ing sdeclarations and are in conflict with

_ Supreme Const decisions, with the intent of the

‘grants Sis. with admissions by the government in *

this cash hob abtis bain intend Mek Tduwedeureeéseceeae te ee

The“ow ner aR fee estate is entitled to 3

e‘underlying oil and minerals ............... 42

A/vrant even though not in fee and limited to rail-

“road purposes only would incliide the right to use *

| - materials or fuel within th mds of the grant,

find the injunction should denied as -to remoyal

of. oil for railroad FNAL Seed ee eeeioeee © 48

Appendices Bibel a ab Re PERE ONG en eae iRa aes 5

wan! ees pe

n> CASESCITED, | 7

: ; 7 Page’

, Arkansas Improvement Co. v. K. & 8. Ry. 189 La.

"GU, 188 BONG 255 ince eee Fst aeeks 23, 39

Attortiey General v. Pere Marquette R. Co., 262 Mich. ;

431, 248 NE 860 Capes dburbiev batt oun. eee 43

Ballard v. LAW N. R. Co., 9 Ky. Law Rep. 523, 5.8. .

WOE. MIO 6 oe criige es cece pone Se ceees 17, 22, 39

Battele v. Ne® gan R211 Mass.\442, 97 ‘NE. 1004 39

Blake. ¥. Rich, FA tH MM ass: wey 0

‘Bowhigh v. McGoldrick. Lr. Co., 38 Ida. 30, 219 Pac.

WN iA, 25 Nd raneacs th eEerrye 33

‘Brigitwellv. Int'l. 6.N. R\Co,, 49 8. W. (2d) 487.. 42 -

: 3 eee —

rn :

4 * why - os

‘ nt oh

_ Buffalo Pipe Line Co. v, N. * L. G.. &W. a Co., 10

Abb. N. C. (N. Bit... oe: eng deeeuaeen +. +17, 39

Buttz v. N. P. Ry. » 119-U, BS. 3 30 L.. Ed, “330, 7 S, Ct. ;

S Mrccmacivgnck Pet Cee ee a. ope. Bl

Carr y. Miller (1921),.105 Nebr.s623, 181 N. ear. 40

Carter Qil Co, v; Welker, 112 Fed.: (2g) $99...... 4, 39, 43

Chicago & Miss. R. R. v. Patchin, 16M. 202 ........16,39

Choctaw R. R. v. Mackey, 256 U. 8S. 531, 65 L. fea.

1076, 41 8S. Ct. S08 ..025 geeees eutS ee tal wawnee ebe 31

Cincinnati R. & Ft. W. BR. Co. w.'C. C. wt. L. R. Co, oa:

(Ind.), 123 N..E. 1 .a:....: ES: Pestiie. io de ae

Clairmont v. United States, 25, U. 8S. Sa, 356. L. en

1201, 82 B: Ct. TST 4.06. 6354 a EN ” 3

Clevenger v. Chicago, M. & St-P. “R Co. (1919)

(Me.),.210-8. Ws 867.0. e ole ecee leee Ss areas ee

Colgate v, New York C.:& H. R. R. Co. (1906), 3

Mise, 503, 100 N. Y. Supp. eeereee Yo ee 40

Concklin y. New York C. & H: R. R. Co. (1912), 149

| App. Div. 739, 134-N. Y. Supp. 1: z (appeal of whiclt -

‘was dismissed in 207 N.°Y.. 752, 101. ¥ E. 1099). 40

Crandall v. Goss, 30 Ida. 661, 167 Pac. 1025 racescee Boe

Crowell ‘vy; Howard (Tex.), 200 8. W. 911.......... 42

Dees v.'Chauvronts (Il.), 88 N cE voids 340° Til. 468. 43

Denver & SL. RoR. v. Pacific Lbr. Co.c86 Cold. 86,

"978 Pee, 1088 6.555. cecge ees: sae tes phe eae i

Des - ‘Moines R.' Co, v. Des Moines, 159 x. W. 450...:; 42

Dolbsv: Dillman, 283 Mi¢h. 609, 278 NA ify, ae aa 39°

Dowmen y. Rayburn, 214 Ill. 342 .... se ne ae

Dugan v. Montoya, 24 N. W. 102; 178

First sUniversalist Suc. v. Bolgnd, 294N,. E.

BS per errr Pe re Teer re ‘ceen ie aa AR

Ft. “Worth & D. C. Ry. Co. 1 v. Ayers (Tex. ), 9g. W.

WES Os: th kids Rekdvecucurisnwe sTeReeessn . 40

Fox. v. Van Fleet, 170 8. W. 185, 160 Ky. 796, 799... 42.

Gilbert y. M. K. & P Ry., 185 Fed. 1B. + a ee “40, 43

Grand Trunk R. Co, v. PREIS 91 U. 8. 454, 23

st ME BOR ao Fe nee ectvecdvoees oS

Great Northern Ry. ¥ Steinke, 261 U. 8. 119, 67 =

‘Ed. 564, 43 8. Ct. 316 W050. se enbaiees vote «25, 36

Great Northern Ry. y. United States, 32. F. Supp. ee

Hartford Fire Ins. Co, v. Chieago, ete. Ry., 175 U.S.

‘91, 44 L. Eds 84, 20 8. Ctr38..,..0.. 000008. ook ie

Hillis v, Dils, 100 N, E. 1047, 53. Ind. App. 576....... 42

Holland Co. y. Northern. Pacific R. Go., 214 Fed, 920.. 38

Indianapolis P. & C. R. Co. y. Rayl, 69 Ind. 424..... 40

Jamestown & N. R. C6. v. Jones, 177 U, 8. 125, 44 L.

OE O08 OAK. OEE bie ees. 32.

Johnson ¥. Valdosta R. Co., 169 Ga: 559, 150 8. E..

OEE felon vev ize iGadu cals dante cebbve pe ceo eebasks -23, 39 ©

Joy v. St. Louis, 138 U, &.: 3; 3h L. Ed: 843, 11 S. Ct.

Pr 5 ccndies Suneteee¥ ess bbetpdhotsamenressensts . 29

Kansas City R. Co, vy. Allen, 22 Kan, 285, 31 Am.

BOR 55 aii vee apecegsaheae i tree sti gee

Keynerd vy. Hulen, 5 Fed. (24) EES

Landers’ v. Landers, (151 8. W. “B87; > 151 Ky. 206...... 43

Luedeke y. C, & N..W., 120 Neb. 124, 231 N. W. 695... 39.

Magnolia Petroleum Co. vy. a 106 F, (ay

SEF S00 iB. IO a i Ah eR ORG 39

Marland v: Gillespie, 168 Okla. 376, 33 Pac. (2d) 207.23, 39

Mathews v. Hudson, 7 7S. E. 286, 81 Ga. ONS Ke: we

Messér v. Oestreich, 52 Wis, 684, 10 N. W.6...:.... “40

Midstate Oil Co. v. Ocean Shore R. Co.,-93 Cal. App.

3 ie j-

704, 270 Pac. 216 ...9..... ray ye hiwadnnviane » 23, 39

M. K. & T. Ry. y. Oklahoma, 271 US 303, 70 Le Ed.

oe ee er eee ferrite 31,38

M. K. & T. Ry. -v. mobs, 152 U8 114, 38°L.. Eds 7

377; 14S. Ct. 496. Wer Ghektcbawwvare ceeceutvens 30

Montana Mining Co. vy. St. Leute Miting Co., 204 U. B

204, ol L. Ed. 444, ST G. Ct: 954. :...... bisa aes 42

Nadeau v. U. BP. Re Co., 253 U, 8. “42, 64 L. Ed. 1002,

46.8. Ct. Reindeer stuevedeceyesecs: 2S

Nelson vs: % & P. R: R., 158 La 117, 9 92 So. TO4..... 39, 42

Nesral Production Co, y. St. Louis, B. & M. Rx, (o.,

"(‘texas), 06:0. We (G8) OOS oi wos. 8 ess .° 40

_New Mexico v. U. 8. Trust €o., 172 U.S. 171, 43. i.

Ed. m. 19 S. Ct. 128 AEs Maine teow et ee |

Noble v. Okla. City, 297 U. 8. 481, 80°L, Ed. 816,56

a Se Serer reer oy Tre Vineaes Peck dawesee 31

Noble v. Union River Logging Rd., spit U, 8. 165,37 0 ;

L. Ed. 123, 13.8 Ct. BSE. vsonegese decccmuesectece © 3g

Northern Pacitic Ry. Co. ¥. Ely, 197 U.. 1,49 L. Ed. ae

Se ae es CR es oh wehasenes CVervecgsviceesee 32

y°

Northern Pacific Ry. Co. -v. Myery4arr’ Mill Co., 54

Wash. 447, Se ere ee rer Sesent ¥. o.0 + ebay BS

Northern Pacific Ry. Co. v. North American Telephone

Se Eee ee Suaats exes ae

_ Northern sacepnd Ry. -v. pre panars Te8. 267, 47

Ti. Ed: 1044, me OR: GER vicdeed Wo wasteessne vanes 30, 36

Penn. 8. Valley R. Co. v. Reading Paper Mills, ag

Pa, St. Rep. 18, 24 Atl. BP Adwitdecestadeudceteus 17°

Phillips Gas & Oil Co. ¥. TAngenfelter, 262 Pa. 500,

105 Ath be eh Reece me 40

Prather v. Western Union Tel. Co., 89 Ind. 501... ... 17

Vi -

ewe

Priddy v. School District, 92 Okla. 254, 219 Pac. 141.. 43

—Quinby v. Vermont Central R. R: Co.,.23:Vt. 387..... 16.

Quinn vy: Pere Marquette R: R., 256 Mid... 143, 239

N. W.-376)5..... Ete inbueereuis eas teen ne «BO, 42

Radetsky v. Jor -gensens 70 Colo. 423, 202 Pac. 175... .22, 39

- Rice v. Clear ‘Spring Coal Co., 186 Pa. St. 64, 40 Atl.

OP 06 cae oo oe VES EVES OTROS CEE OMe ‘ata — 43-

Rio Grande Western R. R. v. _ Stringham, 239 U. s. 44,

> OL. Ed. 136, 36 8: Ct. 5 of... ig ieseee Sods 4, 24,29

Sherman y. Sherman, 23 §, D, 486; 122 N. W. 439.. ‘ “40.

Sioux City ¥. Missouri ra, Pipe Line. Co., 46 Fed.

AM) 819: 25 S inieabeah cents ee ed SPREE ey 38

Smith v. Hall, 103 Ta. 95; 72 N. W. 427 °.......06. eae

Stalker v. Ore. Short Line, 225 U. S. 142, 56 &. Ed.

ee eee: C4 Be erciessteeucy ss

State v. N. P. Ry., 88 Mont: 529, 295 Pac. WI... 33 ary

\ Stepan'y. N. P. Ry., 81 Mont,'361, 263 Pac. 425...... 33:

Stevens v. Galveston R. Co., 212 S. W. 639......22, 40, 43

Stevenson y. St. Louis 8. W. R. Co., 181 8. W. 568.. 43

Supervisors, Warren. County y. Patterson, 56 Ill. 111. 40

Switzer v. Chaffee County, 70 Colo. des, 2 203 Pae. 680. 40

. Tinker v. Forbes, 136 BUD, FBG 3336. 5655 Fie etebeads 40

Union Pacific R. Co. v. ee 102 Kan, 515, 170.

SWS ON 555 oe olen cmencesceayses es Mniedess as |

-United States v. Michigan, 190 U. S. Sip, at L. Ed. ;

1103, 23 8. Ct. 742.000... Bespin RE ee

Wilkinson y. N. P. Ry., 5 Mont. 538, 6 P&. 349...... 33

Yates v, Van De Bogert, 56 N. Y. 526 ...... are

‘ Pf

Een

Hot Springs. R. R. Grant (1877), 19 Stat. 108....... 18:

Beit Central Grant (Sept. 20, 1850), 9 Stat. 466: 13.

LeavenWorth City R.-R. Grant, 14 Stat. weer 18

Mobile & Ohio Grant (Mareh 3, 1849), 9 Stat. 772... 13

Northern Pacific Ry. Grant (July 2, 1864), 13 Stat.

» SHIR i \esainsetenteeeauwnans Cas qien Sane) ++ -13, 19, 20

_, Placerville Grant (July 13, 1866), 14 Stat. a

Portland, . Departs Salt Lake Grant, 17. Stat. 52 ane

Ai. | BR Devas pe (Seeded ck SEW ees retenn's 13, 18, 35.

Stockton R. R. Graht, (Mar, 2, 1867}, 14, Stat. ‘BAS. | 18

United States Code, Sec. 41, Title 28........ we ws 10

_ United States Code, Sé, 225, Title 28.......66.... 3, 10

_ Union Pacific Grant (July 1, 1862), 12 Stat. 489, 13,

Amended Union Pacifie Grant (July 2, 1864), 13 Stat.

a ee oa anaes peop Ree ep 13

Western R. R. Minn, Grant (1880); 21, Stat. 69..... 18

2. Beer pee vanekkeus PtP eee ioe

26 Meat. 1108s. 55 i SWingykes taht pe does 2,10

38 Stat. SOB ..... pees aes cdeweeas RYO ene Le 2,10”

43 Stat. 813; 986; 93S 2655) coe l ccc a eae eevarc cues 2510

)

° oy o Fy

* ©. _ a ° ,

: . tg Se s o «

-». | FEDERAL STATUTES CITED. Tee

sh EY . a Page |

Act of March @, 1875, 18 Stat. 482..... Saf 2, 11, 12, 49, 27, 35

Atlantic & Gulf Grant (Mareh 3, 1849) 9 Stat. 71. 13

Atlantic & Pacific Grant (July 27 , 1866), 14 Stat. 292-18

‘ Calif. & Ore. R. R. Grant (July 25,.1866), 14 Stat. 239 213°

Central Pacific Grant (Feb. 5, 1875), 18 Stat.: 306. 13, 18, 21’

. Green Bay and Lake Pepin Grant (March 3, 1871),

, 16 Stat. 588.-.......: Sette ks Gent ee Ree : (asst: All 18 -

-Tndiama Statutes f6r 1863, p. 33, Sec. 5

', Montana Rev ised Codes 1935, Secs. 6551

e - Montana Revised Codes, 1935, Sec. 7110

Nira: Wieck

fe TEXTS CITED.

‘a - tg .

Corpus Juris, Vol. 21, page oe... tt

Corpus Juris, Vol. 51, page 573,°Sec. 237

’'-Funk & Wagnalls. Dictionary ... oy

New Century. Dictionary ..... ee bali

“Ruling Case Law, Vol. 10, 652, 653...

STATE STATUTES CITED. |

and 6552. eee

TaAWweeCanvees es

=~ Corpus Juris, Vol. 40, pages: 960, 961, Note 38.......

Washburn on Real Property, 6th Edition, See. ‘168...

Webster's New International Dietibmary. ry Agee

IN THE

Sac Court of the Waited “s

OCTOBER TERM, 1941.

| Great NORTHERN ‘Ramway COMPANY,

Petitioner, ond Appellant below,

—

UNITED STATES OF AMBRICA, “©

Respondent, and Appellee below.

‘ PETITION FOR WRIT OF CERTIORARI TO THE.

UNITED STATES “CIRCUIT COURT OF AP. j

._ PEALS FOR THE NINTH CIRCUIT.

= e

TO THE HONORABLE THE CHIEF JUSTICE, AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED STATES:

Your petitioner shows:

SUMMARY STATEMENT OF THE MATTER

y Ne - .-*', DIVOLVED. ‘

« ° . . : =

This proceeding originated by suit in the District Court

of the United States for the District of Montana, brought

< é

by the United States to enjoin petitioner from drilling for

oil upor a section of its right of way in Glacier County, -

Montana. The right of way in question was granted by

the United States under the general ‘Congressional right. -

.. of-way grant of "Mareli 3, 1875 (18 Stat. 482), and the only ,

question involved is whether under such Congressional

grant the Railway Company, grantee, ‘is entitled to remove

any oil which may underlie the right of way, either for

sale or for use as fuel upon its locomotives. The-District _

- Court. granted a motion by the United States for judgment

on the pleadings, and issued the injunction as prayed for.

This judgment was affirmed by the Circuit Court of .Ap-

peals of the Ninth Circuit, Judge: Wilbur dissenting.

- BASIS OF THIS cgURT's JURISDICTION,

The . jurisdieggon of the Seanne Court to review the

judgment of the Circuit Court of Appeals by writ of. cer-

tiorari is-sustained by the United. States Judicial Code, |

Section 240 (43 Stat. 938). Judgment of the Circuit Court

of Appeals was entered on May. 8, 1941. This’ petition:

will be filed on or before June 9, 1941. The issuance of

mandate from the Circuit Court of Appeals has — stayed

until July 7, 1941 (R. 157). Ae.

The jurisdiction of the District Court was based upon

the -fact that the United States was: plaintiff, and upon

United States Revised Statutes Sections 563 and 629 and —

amendments thereto, now being Section 41, Title 28, United.

States C Jurisdiction of the Cirenit Court of. Appeals

was based u Section 225, Title 28, United States Code,

26 tat, 828, 36 Stat. 1133, 38 Stat. 803, 43 Stat. 813, 936.

FEDERAL — ‘PRESENTED.

The specific Federal ‘question ceiiiteil by this petition

_is whether a railrood company, having obtained a right of

way through the public lands under the Act of March 3,

1875, is entitled to remove any oil which may underlie such -

right of way, either (1) for sale or other general disposi-

tion, or (2) for use as fuel upon railroad locomotives _

ating over such’ right of. way. %

REASONS RELIED ON FOR ALLOWANCE OF WRIT.

, The reasons relied on for allow@hce of thé&@rit ate:

(1) That the Circuit Court of Appeals has decided an

important question of. Federal law in naerineed with appli:

cable decisions of this Court.

The question of Federal law is highly important, because

several hundred thousand miles of right of way have been

granted under the same granting act, or other acts con-

taining the same granting words, and thousands of acres

of such right of way lie in oil. bearing or mineral bearing

districts. It is probable that the oil and mineral values

underlying such rights of way. aggregate many millions of

dollars, and it is- ‘clearky in the interest of the United States,

- as well as in the interest of the railroad grantees and a

. patentees of adjoining lands holding. reversionary rignts

in the rights of way, that officers of the United States

Land Department and of the railroads and adjoining prop-

erty owners, should know definitely .whether the ‘minerals

underlying the rights bf way remained in the United States

or passed to the grantees of the right of way. .

It is s believed that thie sebiien of .the Circuit Court of

“Appeals is in conflict with a dozen applicable decisions’ of

this Court, ‘cited in the accompanying brief,-and holding

that the land within the right of way strip granted by this

Act and by similar

to and-held by th “railway company in fee simple, ek

tion only upon its continued use for railroad pu es.

While, none of thes¢ decisions involves the specific question

ranting clauses in ‘other acts/ i is granted .

of the right to Aril for oil, they do’declare that the right:

ef way. strips were granted in fee, and: that the grantees .

had ali of the right ‘of a fee owner, and this would neces-

sarily include the ight to remove underlying oil. For

example, in Rio Grande Western R. Co. v. Stringham, 239

U. 8. 44, 60 L. Ed. 136, 36 S. Ct. 5, there was involved a

question whether the railway company could enjoin the —

removal -of minerals underlying its right of way strip

granted ‘under the act of March 3, 1875, where the grant —

of a mineral patentee qraringpes the right of way. The

Court said: 7 ; -

“The right of way granted. by this and similar acts

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

bat-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 grant-

eq, and carries with it the-incidents and remedies usual-

ly attending the fee.” (Italics. in this brief aupplied

% by-us, unless otherwise specified ). f

(2) That the decision of the Circuit Court of Appeals

is in conflict with the decision: of the Circuit Court of

Appeals for the 7th Circuit in Carter Oil Co.; v. W velker,

"(112 Fed. (2d) 299, ’ decided November 6, 1939. The right

of way strip involved in the latter case was obtained by

private deed, but it was granted “for railroad purposes”

and the court held that the railway company had the right

to drill for oil on its right of way. While the decision in

the case at bar involved a Congressional grant instead of

a private deed, both cases involve the specific question of.

the right of a railway company to drill for oil on its right |

_ of way and the two courts have-reached directly opposite

conclusions under the respective facts presented to them. _

(3) If it should be held that the decision of the Circuit -

Court of Appeals: is not in conflict with the decisions of .

this Court, above referred to, upon the ground that those ~

. decisions do not involve the. specific question of the right

to remove oil, then it is submitted that the. writ should be

granted upon the ground ‘that th Circuit. ‘Court of Ap-

peals has devided an impotant Federal question, which

has not been but should be settled by this Court, and

which arises ‘in several circuits other than the Ninth Cir-

cuit, and that. neither the officers ‘of the Land: Department

_nor of the grantees nor adjoining land owners can know

definitely, without a decision: of this Court, whether the oil

and minerals underlying ‘the rights of way aye from

the Government to the grantees. |

{4) In the ninety years which have elapsed since the

: ‘granting clause used in the Act of 1875 -was first enacted

_ by Congress, the decisions of the District - Court, and° of

the Circuit Court of Appeals in this case are the first de-

cisioris of any court, state or federal, in which ‘it has been

held that the estate granted in the railroad right of way.

was anything less ‘than a fee simple ownership of the entire

“corp of the land, conditioned only upon its continued

. - use for railroad purposes.

(5) The decision of the Circuit Court of Appeals that |

_ the estate granted by the Act of March-3, 1875, is only an

easement, is in conflict with admissions in the Government’ 8

‘brief that the estate granted by identical _granting clauses

in earlier Congressional grants, was a: fee. There ‘is no

sound \reason for attributing Misiststniils: ctmidtte effects -

to the same identical words in the earlier and later acts,

and the Uecision of the court, coupled with, the contrary

admissions \of the Government, create confusion and un-

7 certainty as\to the effect of the granting clause in this

and earlier ts. 3 :

(6) The decision of the Circuit Court of Appeate was

There was a yery able and »well consid-

Judge Wilbur. It is submitted that his

decision is better reasoned than the opinion of the majority,

and that his dissent accords with, while the decision of-the

majority conflicts with, the applicable decisions of this

Court, the weight of judicial ope and the plain in-

tention of Congress as menreerate in several provisions of.

the statutory’ grants.

WHEREFORE, your’ petitioner prays that a writ of

certiorari issue under the ‘seal. of this court directed to the

Circuit Court of “Appeals: for the Ninth Circuit, command. .

ing said court to certify and send to this court a full and

complete transcript of the record and of the proceedings of _—

the said Circuit Court of Appeals had in thé case numbered

and entitled on its.equity docket No. 9624, Great Northern

. Railway “Company, Appellant, vs~United-Statenot América, |

Aree to the end that this cause. may be reviewed ‘and

7 .

determined by the Céurt as provided for-by thé statutes of

the United” States; and that the judgment herein of said

Circuit Court of Appeals be reversed by this Court, and for. ©

such further relief as to this court may seem proper. <

Respectfully ‘submitted,

GREAT NORTHERN RAILWAY COMPANY,

By F. G. DORETY, | ,

WEIR, CLIFT & BENNETT,

Attorneys for ‘Petitioner. -

Dated May 28, 1941. et

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OCTOBER .TERM, 1941.

Grear NORTHERN hiewae COMPANY, ~

| Petitioner, and appetient below,

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She Respondent; and Appellee below.

a an

BRIEF IN SUPPO . OF PETITION FOR weit

OF ERTIORARI.

fo rect Ss.

_ THE: OPINIONS OF THE COURTS BELOW.

The opinion ‘of the District Court of tlie United ‘States

_ >for the District of Montana, has been officially — in -

32 F.Supp. 651.

The opinion of the United pistes cose Court of Ap-

peals for the Ninth Circuit, dated May 8, 1941, has not. yet

- appeared in the published reports, and will be found on

_Pages 120 to 157 in-the record.

_ JURISDICTION.

The jurisdiction of the Supreme Court. to review the

judgment of the Circuit Céurt of Appeals by writ ‘of cer-

tiorari is sustained by the United States Judicial Code,

Section 240 (43 Stat. 938). Jydgment of the Circuit

Court of Appeals was entered on May 8, 1941. The peti- —

tion herein will be filed on or before June 9, 1941, The is-

suance of mandate from the Cireuit Court of Appeals has _

been stayed until July t, 1941 (R. 157). :

The jurisdiction of the. District Court was. based ‘upon -:

the fact that the’ United ‘States was plaintiff, and upon.

United States Revised Statutes; Sections 563 and 629, and |

amendments thereto, now being Section 41, Title 28, United

States Code. Jurisdiction of the Circuit Court of Appeals

was based upon Section 225, Title 28, United States Code,

_ 26 Stat..828, 36 Stat. 1133, 38 Stat. 803, 43 Stat. 813, 936. .

. STATEMENT OF THE CASE.

Thé cise was submitted to and decided by the District

Court- upon the Government's motion for judgment. on the

Pleadings (R. 10). a EN eR

The only allezations in the complaint Which need be con-

sidered here are the allegations that the petitioner obtained

certain described right of way by grant. from : the United

States under the Act of March 3, 1875, that by reason of

said. grant, it asserts ownership of the oils and minerals

< “underlying the same and threatens to use portions of such

right of way for the purpose of drilling for and removing

-. subsurface of], and that ‘no lease or permit has been ‘issued

——

_ by the Government for such purpose (R. 3-6). The answer

admits the above mentioned allegatiorfs, and alleges affirm-

: atively that ‘oil suitable for locomotive fuel exists under the —

- said right of way and can be economically removed,* and

that the petitioner intends ‘to and will, unless restrained ©

by the court, drill three separate wells upon the right of

way, the proceeds of No. 1 to be sold commercially, the

proceeds of No. 2 to be refined and the residue uséd- for

locomotive fuel, and the proceeds from well No. 3 to be

used in their entirety as’ fuel upon petitioner's locomotives

~(R. 8 and 9). ( fo tes

There was no allegation that the Vincateesil drilling for

oil by. the petitioner would interfere in the slightest with

its full and complete use of the right of. — for raiiroad

purposes. igen

There were no further pleadinge, and the motion for ;

judgment was based upon the complaint and answer above :

summarized. |

_ The text of the ’Act of March 3, 1875, under which the

. grant in question was. made, i is set forth as Appendix A

to this brief.

SPECIFICATION OF ERRORS.. ~

(1) The Circuit Court of. Appeals erred in failing to

hold that the term “right of way” as used in the Act of

March 3, 1875, meant “strip of land”, and that the grant

was a grant-of the land itself with all of the incidents of

fee ownership, ‘including the ow — of any’ underlying

oil. et aa Bp ane

(2) The Circuit Court of Appeals erred in finding that

_it was not the purpose of Congress in passing the Act of

Marchi 3, 1875, to grant aliything ‘but surface rights, and

_ “that no ownership in’ oil or minerals underlying’ the ‘right

of way passed by the grant. ‘ .

(3) The Circuit Court of Appeals erred in affirming o

. the decision of the District Court and in failing to reverse -

that decision and to direct that the injunction prayed -for

in the complaint be denied. _ ae sae

(4) ,. The Circuit Court of Appeals erred in tailing to:

direct. that the : junction prayed for in the complaint be

ae at least as

to the removal by petitioner of oil for

upon ‘railroad ocomotives operated upon | the right of

way granted under the Act. | ;

ait ARGUMENT.

‘The granting words of the Act of March 3, 1875, are: “the

right of way through the public lands of the United States

is hereby granted to any railroad company * * * to the

extent of one hundred feet on each sidé of the central line

of said road.” The’ full text. of the act appears in Ap-

pendix A. © | wo ’ :

‘ The controlling question seems to. be, what did the term

" “right of way” mean when used in railroad legislation

during the period of the raifroad grants? Was it the ,

equivalent of the term “strip of land” or did it mean “ease- /

ison or was it suse eptible to either or both interpreta- / !

* During - and prior to the period: of the Congressional *

gents, “right of way”, as used in * legislative enactments

invariably meant the strip of land owned in fee.

While it has become common ‘in many : states in the last —

‘half cehtury to consider ,the estate of a railroad in its

right of way, especially when aptained by condemnation,

not - as’ a fee but as including “only such rights in land as

are. necessary for the construction ‘and operation of the

railroad, it appears from earlier statutes and judicial de-

cisions that prior to* &nd during tlie period: of the Con-

gressional grdnts, . the idea’ ‘that .a railroad | mighit be built

upon an easement had. hardly been thought: of, and it was .

_ the almost universal: praptice to regard a ‘railroad right of ©

way as a fee simple estate,

A clause granting a “right of way’ through the public

lands of the United States* w ‘as first enacted in the grants ,

"to Atlantic & Gulf Railroad Company, and the Mobile &

" Ohio Railroad Company, by Acts of March 3, 1849 (9 Stat.

‘771, 772), and the same or similar granting clauses were

re-enacted in about a dozen other. grants Guring the period

“from 1850 to 1875.3 atl ,

_. During and prior to thé cial of these grants the idea —

that a railroad might be constructed upon an easement, or

1Atlantic and Gulf, and Mobile and Ohio, March 8, 1849, 9 Stat. 771, 772.

Illinois Ceniral Grant, September 20, 1850, 9 Stat. 466.

Union Pacific Grant, July 1, 1862, 12 Stat. 489.

Amended Union Pacific Grant, Jul 2, 1864, 13 pict. 356.

Northern Pacific Grant, Jul 18 Stat.

penne Grant, ‘July 13, 866, 14 Stat. 94.

venworth City Grant July 23° 1866, 14 Stat. 212.

California & Oregon R. R. Grant, July 25, 1866, 14 Stat. 289.

Atlantic & Pacific R: R Gree July 27, 1866,. 14 Stat. 292. —

Stockton R. R. Grant, March 8, 1871, 16 Stat. 573.

- Green Bay and Lake Pepin R. R. Grant, March 3, 1871, 16 Stat. 588.

Portland, Dalles & = ke R. R. Grant, April 12, 1872, 17 Stat. "62.

‘Central Paetfic R. R. Grant, Feb. 5, 1875, 18 Stat. 306 ~

—

‘upon a mere surface ownership, or any ownership less

than a fee, does not. appear either. in legislative acts or

,” judicial decisions. It seems to have been assumed that the

‘site for a railroad, like the site for a factory, farm or

home, should normally be owned in fee simple. It appears

that during and prior to the period of the grants, the term

“railroad right of way” had only one accepted meaning in

legislative enactments. It: was never used during that

period as designating an easement and was universally

used as a brief. means of describing the nartow strip’ of

_ land owned by a railroad company in fee, and upon which

‘the tracks were- constructed.

~~ * Between 1827 and 1875 some 68 statutes or special. acts

. Were passed in 28 states or territories, permitting railroad

companies to acquire the land itself or a fee simple estate

in their rights of way. A large majority—47 acts in. 13

“states—declared specifically that the decree should vest in

_ the company “the fee simple of the land” or that “the

lands (or right of way) shall vest (or be vested) in the»

company in fee simple”, or “shall vest the right of fee

simple to the said strip or strips of land in the railway

company”.' Some included the word “absolutely” or “full

and complete title’,?:and some used the word “forever”.>’

Only three of them said “for public purposes” or limited

the estate to the life of the corporation.* =

Ten other statutes in nine states declared that\the “real

estate” or “land”, or “title to the land” shall vedt in the .

company. “These statutes did not use the words “fee sim- |

iSee statutes |gjted in Note 1, Appendix B to this brief.

2See statutes listed in Note 2, Appendix B to this brief. |

8See statutes listed in Note 3, Appendix B to this brief.

4See statutes listed.in Note 4, Appendix B to this brief.

—

ple”. but they vested in the company the land and. not a

mere right in or ‘user of the land. ° > |

Two statutes expressly required that thé award should

include not only the value of .the “land”, but of any “min-

eral deposits”, or of stone, gravel, and “other materials”

in the. land, thus clearly indicating that title to minerals

re passed to the railroad company.®

‘Two statutes. drew a distinction between a railroad and -

a turn-pike or highway, declaring that, ‘in the case af the

railroad “the title * * * shall be absolutely vested in

fee simple”, but that in the case of the turn:pike or, high-

‘way, “the right of way only shall be so vested.’ Some

declared that upon entry of. the decree, the former owner

- should be divested of or barred from. all right or Sides

in “the land taken.*

And in five states the law provided that the decree should

have the same effect as a voluntary conteyance of the

land.® fone Seg }

| two of these statutes were passed in 1827 and 1828;

2 between 1830 and 1840; 4 between 1840 and 1850; 13 be-

tween 1850 and 1860; 17 between 1860 and 1870; and 10

between 1870 and 1880, so that they covered the entire

period of the Congressional ‘grants and some 23. —

prior thereto.

It must be concluded therefore that, so far as legislative

usage throws any light upon the question, the term “right

of way” when used in legislative enactments Prigr, to 1875,

invariably . referred to the land - itself and not the incor-

5See statutes listed in Note 5, Appendix B to this brief.

_ @See statutes listed in Note 6, Appendix B to this brief.

7See statutes listed in Note 7, Appendix B to this

*See statutes listed in Note 8. Appendix B to

brief.

this brief.

*See statutes listed in Note 9 9, Appendix B to this brief.

poreal right in the land, and invariably contemplated’ own-

« ership in fee. ‘The meaning of the term “right of way”, as

used in Congressional grants and as disclosed by other pro-

visions of the grants themselves, will be discussed later.

Judicial decisions acem to support the same ied

;

We have not been able to locate any decision during the

period priof to 1849, when the first Congressional .

was enacted. But in 1852 the Supreme Court of Vermont,

while holding that the railway company would not ‘take a -

fee simple estate under the statutes of Vermont, pointed

out that the New York courts took a different. view be-

cause, “in the railroad charters of that state, it is provided

that the company may take the fee of the land.” Quinby

vs. Vermont Central RR. Co., 23 Vt. 387 at 393. And in

1856.in Blake vs, Rich, 34 N. H. 282, it appears that, in

New Hampshire, the railroad took only a- lease of “the

right to construct ‘a railroad”, but the court refers to —

¢rumerous cases in other states, where it has. been holden

q@that the fee in lands taken vests in the railroad.”

In the libraries available to us, we have ‘not been able

te locate either the earlier New York decisions referred, to

in -Quinhy rvs. Vermont Central,-or the “numerous cases in-

other states” referred to in Blake vs. Rich, but the state-

ments of thé court in -these two cases would indicate that

there had been numerous earlier decisions supporting the |

, fee simple estate, and they also, indicate ‘hat there were no

_ Other decisions denying the fee, since none, are referred to.

"In 1854, in Chicago & Miss. R. Co. v. Patchin, 16 Til.

198, the cotirt indicated that the estate of the railroad was

an absolute ownership in fee, and similar statements were

made in Prather v.. Western Union Tel. Co., 89 Ind. 501

(1883); Yates v, Van De Bogert, 56 N.‘Y. 526 (1874);

' Buffalo Pipe Line Co. t. N. Y.-L. G. & W. R. Co., 10 Abb.

"s NoC. fF (1882) ; Ballard, v. “L. & N R. Co., .®. Law

Reports ‘B28, W484 (1887). -

. The leading cases in suppSrt of the easement theory,

which are cited. in the opinion .of -the Circuit Court of

Appeals (R. 124), were Penn. S. Valley R. Co. vs. Reading

Paper Mills, 149 Pa. 18, 24 Atl. 205, decided in 1892; Kan-.

sas City . v, Allen, 22 Kan. 285, 31 Am. Repts. 190,

decided i ; and Smith v.. Hall, 103 Iowa 95, 72 N. W.

427, decided ‘in 1897. In Penn. 8. Valley R. Co, v. Read-

ing Paper Mills, supra, the court referred to e surface

ownership conception as a> “newly. invented interest in

land”. -This was in 1892, forty-three years after the first

Congressiona! grant, and seventeen years after the last 0”.e.

The only cases that we know of ptior to 1875, whieh do

not support the fee simple view, are the two cases from :

New Hampshire and Vermont above referred to, and in

those cases the courts seemed to imply. that they stand.

alone and that all other known cas¢s at that time sup-

ported the fee simple estate.

In the opinion of the Circuit Court of Appeals in this

-case (R. 125), the’ majority vpinion says “It is claimed that —

the majority of the not very numerous state decisions upon

this question, prior to 1875, upheld the view that a rail-

« road has the fee in the land over which its right of way

passes. We assume this to be true.” |

It. must be conclided therefore that the invariable prac:

tice in legislative enactment, and that the almost invar-

~ between 1850 and: 1872 contain

iable aractice in ‘ittiied statement, during ana prior to

the period of the Congressional grants, was to-use the term

“right of way” as: meaning the land itself, and. to » apy

‘fee ow nership.

Pace. j

“The provisions of the Congressional grants indicate that

Congress itself used the term “right of way” in the sense

ot strip of land. a

Several of tlie earlier acts expressly granted a “strip of

land through the ‘public lands” instead of a “right of way

through the public lands.” ~ Leavenworth City R. R. Grant,.

14 Stat.- 2123 Green Bay and Lake. Pepin Grant, 16 Stat.

388; Portiand, Dalles & Salt Lake Grant, 17 Stat. 52;

Central Pacific Grant, 18 Stat. 306; Hot Springs R. R.

Grant, 19 Stat. -108; Western. R. -R. ef Minn. Grant-2¥

Stat. 69. ” ao

There was nothing about any of the last mentioned rail-

roads or any of the last mentioned grants to indicate that

Congress intended to grant .a different kind of estate to

thése railroads, and no reason appears why: it should have

done so. It seems clear that Congrens used the terms

“strip of Jand® and “right of way” as being interchangeable

and syneny mous, ard that while the term “right of way”

was generally used, the term “strip of land” was océa-

sidnally used as being synonymous.

And several of ‘the grants in’ which the term “right of.

wey” is used bear internal: evidence that they were in-

tended to create a fee estate. e of the grants passed

bv arabe provisions .

permitting the railroads toé appropriate private lands for

. 19

. } = 7.

“right of way” and made it clear that the right of way 80

appropriated was to be held in fee. For example in Sec-

tion 7, of the Northern Pacific Grant, 13 Stat. 365, the

company was authorized “to enter upon, purchase, take

and-hold any lands or premises. that:may.be necessary and .

proper for the construction and working of said road, not:

exceeding in width 200 feet on each side of the line of its

railroad”, ete. Upon payment, the company shall “acquire v

full title to the same for the purposes aforesaid?’ : Payment ,

shall “vest in said pany the title of said land and the

right.to use ang occupy the same.” “The title of the com--

pany to the lands taken” shall not be impaired by rieglect

of any guardian, If any party shall have a ieasehold or

_ subordinate interest, “the value of any such estate, less

than a fee simple’, shall be determined, etc. Where the

land is unoccupied, the company may institute proceedings |

- for the ‘purpose of “ascertaining the value of, and of ‘ac-

quring title. to the same.” - The full text of the appropria-

tion provision in the Northern Pacific Grant, 13 ‘Stat. 365,

which is typical of all, is set forth in Appendix: C of this

brief. ‘ =

In the ‘Senate bill which was final pea a the

Act of March 3, 1875, Sétion 9 contai provisions, simi- . /

lar to those above quoted, and the debates in the Senate

in 1874 and 1875 are replete with statements ‘that the in-

tent wads to ive the railroads an absolute fee simple title

in‘ the entire property. In the Congressional Record of -

the 43rd Congress, First Session, page 2899, Senator Wright

said “that is to say, after x have paid the money, the

title becomes absolute in- the failroad company * * *°,

It vests in them the absolute title of said land and the

20 .

right to use and occupy the same for the construction,

maintaining.and operating of the road of said corporation,

not mercly the right to use and occupy it for that purpose,

but it vests in them title to the lands.”

Senator Stewart-said “They are to have it (the con-

demned private land) for the purpose of a right of way

°° %, They ‘have only the right of wey and they take

the land for this purpose * * -* and then they shall

h@e the absolute title to it * * *" —

ese appropriation. provisions seem to indicate conclu-

sively that during the period of the railroad grants, when

Congress referred to a railroad right of way, it had in

_ mind not an easement -but the strip of land itseH to be

held in fee.. The appropriation provisions above referred .-

to, which were set’ forth in full in the Northern Pacitte -

grant. were adopted in Section 3 of the Act of March 3,

1875, nnder which petitioner obtained its right of way.

The fact that the earlier grants in each case were made .

to the grantee and its “successors and assigns”, that the

grant of right of way was “through” the public lands and

not “over”. them, that’ there were provisions to extinguish

the Indias title where the grants passed through Indian

_ lands (see Sec. 4. 13 Stat. 365, and tat the grants recite

in each caseAhat they are made for the “public advantage

and welfare” and: provide for free transportation of troops

and munitions and. give the Government the right of “pre-

- ferred” transportation, all afford additional indications that

Congress had no intention of mney the granted estate

to the minimum. .

Bre Aten eet od ne ar oe

itself is ttt universally used in statutes and railroad con-

reyances Thd is’ common in private deeds and such use is

ute by dictionaries... aw -

; rss

Statutes voniak feucing of the-right of way strip, re-

moving. weeds therefrom,. or providing for crossings for

highways, cahals, irrigation’ ditches, ete., seldoni or never |

alte the term “strip of land occupied bye fRaeke” and in-

variably use the term “right of way”, although théy are

of courge referring fo the land itself and not an easement.

See, for example, Sections 6551, 6552 and. 7110 of the Re-

vised .Codes of Moptana, 1935.. There are hundreds of

similar statutes, all es to the ‘strip of land itself as

a “right of way”

Th some, cases ‘Cangas itself; as well as state legisla- =

‘tures, has used’ both the term “strip of land” and* the term

“right of way” referring to the same land and in the same

_statute-—18 Btat. 305, yranted to the Central Pacific Rail-

road Company “a strip of land 100 feet wide on each side. —

of the center line of. said road through the public lands”,

and in a later part of the act enacted “thereafter all lastds -

over which the-line of said “road shall pass shall be sold,

located, or disponed.. of by the United ‘Btates; subject to

such right.of way 80 located ax aforesaid”: In Statutes of

‘Indiana for 1863, page 33;‘Section 5, it is provided : “When

any such corporation shall have procured. the right of way,

it shall be seized in fee simpJe of the lands. 2 f

| From a very early. time in railroad history it has been

the universal practice in conveyances or mortgages of ex-

The tote of way” to designate the strip of land

tensive railroad Pp erties, to first make a genera] grant”

ee.

= .

eee eel

of the line of vailroad -between two termini an@@then to

“| enumerate the different items of component property) j

great particularity and detail. Main track, side” “t k

second track and gwitches; grades, excavations, roadb

and tunnels; stations, shops, roundhouses, bridges, ‘turn-

‘ tables; locomotives, passenger cars, freight cas *cnliocinn, |

hand cars; machines, tools, and equipment ; teléphone and

telegraph poles and wires; all are enumerated in detail.

In the case of lands, the same ‘particularity is used. Station.

grounds, yard. grounds, shop sites, ete., are. specified by

name. And when it comes to the most important .property

of all, the site-or strip of land occupied by the main line

_ tracks, the term universally émployed has always been

“right of way”. In spite of the- detail an’ partic ularity”

which has been ‘eniiee desirable, it has never been con-

sidered ‘necessary to. mention the strip of [and occupied by |

_ the road tracks, even though ow ned in: fee simple, by any

other terminology than “right ‘of way”. ia F

Example of this may be found in Montana public records,

Volume E, page 80; Volume i of: Mortgages, page’3; Vol-

ume 10 of Mortgages, page 1; Book O of Deeds, pages 127,

220-317;: Volume 3 of: Railroad Deeds, Mortgages and

Leases, page 148; Book 6 of Mortgages, pages,+, 39 and 110. °

Where a strip of land deeded to a -railroad has been ;

designated as a right of way ina prévite deed, the courts —

have frequently regarded this as a: grant of the land ‘in fee.

Ballard v. L. & N. R. Co, (1887), 9 Ky. Law Reports a

* 528, 5.8. W. 484. ; .

Stevens rv. ‘Galveston R. Coa. (Tex, ), 212 s. W. 639.

Radetsky v, v, Jorgensen, 70 Coif Hea, 202 Pac. 175. |

“Eat . : ' 23

Arkansas Improvement Co. v. Kansas City Southern ;

‘Ry. 189 La. 921, 181 So. 445. | aa

-__—-Jghnson v. Valdosta R. Uo., 169 Ga. 559, 150 S. E. 845..

Midstate Oil Co. v. Ocean Shore R..Co., 93 Cal. App.

704, 270 Pac. 216. ° *

Marland v. Giltrapie, 168 Okla, 376, 33 Pac. (2a) 207.

ome of the dictionary definitions are as follows:

. Webster’s New I nternational 1937: “The land other than

storage or station yards occupied by a railroad for its.

’ tracks, especially for its main line; also the strip of land

over which a-public road is, built.” _ -

ae Funk & Wagnall’s 1932: “The strip of land acquired by

a company since a Tas by easement, by condemnation, or by

purchase for the use of its trnctattes.”

| Neto Century 1927: “A path that may lawfully bé used;

Cg ‘the strip of land traversed by a railroad.”

The grant was not a Lvituity and there would ‘be no

object in retaining the minerals in the government. The

‘consideration -far outweighed the value of the grant, which

therefore requires a liberal construction. |

D-“A._-200 foot right Of way strip contains approximately 25

acres to the mile, and, at the going price of $1.25 per acre,

the value. of the fee simple title to the right of way was

$32. 50 per mile. The purpose of the grant was to permit

or secure the constructionof a railroad useful: for national

which would require the ipveetanent. of ies a funds of

‘some "$2 5,000 to $100, 000 a mile.”

defense and for strengthening economic and political unity,

ey’

especially where t

o Pact’ ah: 2t

When the earlier grants were made it was customary to

increase the price of the adjoining lands remaining in the

public domain from $1.25 per acre to $2.50 per acre. Ten-

miles of public land.on. each side of the railroad would con-

tain 12,800 acres, and the increase in selling price in this

fh, strip would: amount. to $16,000 per mile.

_A reduction of the estate granted from a fee to an ease-

‘ment would benefit no one, because it is gonceded that the -

. possession of the railroad is-exclusive. If the railroad

cannot: remove minerals, no one else can. Rio Grande—

Western R. R. e. Stringham, 239 U. 8. 44, 60. L. Ed.c 136,

86.8. Ct. Reducing the estate of the railroad would not

benefit seuaianiac on adjoining land, and there would. .

be no object in reducing the. estate to an ‘ensement. It

would simply.freeze the minerals in place.

The Northern Pacific. grant in 1864 granted alternate

sections for 26 miles on each side of the railroad, contain-

Bee ing: nearly 13,000 acres to the mile, or 500 times the right

f way acreage. In these 13,000 acres Congress not. only

- ghanted the fee, but. specifically included coal and iron —

lands, and some of the grants included all minerals except

gold ‘and silver. Ina statute displaying the rather lavish

’ prodigality displayed in granting 13,000 acres in fee in-

cluding alinerals, it would be surprisingly inconsistent to

find Congress thriftily reserving the fee and the minerals.

in the,25. ae rex, of right of way and reducing the value of

the gfant from $82.50 per mile to some still smaller amount,

reservation would benefit | RO one, be-

cause no one bunt th& railroad could get at the minerals,

and when the boeks inticate that up to that time no one

“had ever thought of giving.a railroad anything but the fee

ownership of its right of way strip, and when the building»

of railroads on easements had not. beer thought of.

This Court has held that while gratuitous public grants,

such as grants of adjacent sections, are to be strictly con-

strued[against the grantee and in favor of the sovereign,

this rule does not apply to the right of .way grants.

In Great Northern Railway v. Steinke, 261 U. 8? 119, at —

124, 67 ‘L. Ed. 564, 43 S. Ct. 316, it was held that the- pur-

pose of ‘the grant of 1875 was to enharire the value and

hasten the settlement of the public lands and: that because

of this

“the act has been: regarded as requiring a more liberal

construction than is accorded to. private grants or to

“the extensive land grants formerly ‘made to | some of

the railroads. ”

In Nadeau v. Union Pacific R. Co., 253 U. 8. 442, at 444, .

64 L. Ed. 1002, 40 8. Ct. 570, the court said in Tegard to

_a-right of way grant:

“This provision is not to be regarded as bestowing

bounty on the railroads; it stands upon a somewhat ©

_ different footing from private grants and should re-

ceive :liberal construction favorable to the purposes

in view. United States v. D. & R..G. R.R., 150 U. S.

1, 8, 14.” + wastes ; aay

The ial m a fee estate would ‘not go beyond: the

earpete f the- act.

Counsel argue that the purpose of the grant was merely -

to give a right of passage over tlie public lands; that an

easement was all that was nec essary to accomplish that

purpose; that the minerals were not. necessary to en the

railroad to cross the public lands; and that’ no grant of

the minerals was contemplated. *

All this would generally be. equi, lly true in the case of

most homestead patents and most deeds of farms or factory

: sites. In 99 deeds out of 100 all that the grantee really

needs for the purposes of the deed is @xclusive use of the ~

surface., W hen land is transferred, it iA seldom. that the

possibility of. minerals is thought of ‘or that there is any

, deliberate purpoke or intent to convey or receive any min-,

erals, And yet in 99 deeds out of 100 it isa fee title which

is conveyed, and minerals, if there are any, go with ‘it, not

because the minerals were thought of, but- because they are

an incident of the fee. So that the fact that. a. grant of

minerals was not thought of or contemplated, and that the

mere right to use the surface would accomplish me pur-

‘pose of the deed or grant, proves nothing. ve

And there is no foundation for the statement. that the

purpose or-object of the grant was to convey a mere right

of passage or any. otker - partic ular form of estate—either an_

~ Yasemeut. or a fee. ' The purpose of the grant. was to get

railroads built, by providing sites or locations for their

construction across public lands. This purpose ‘could be

| accomplished just as effectively aid perhaps more etfective-

ly by granting a strip in fee than by an easement. -

; If it could be shown in some way that Congress had been

seeking that form of grant which would give the absolute

minigium estate to the railroads and still make. it possible

for the roads to. he-built, it might follow that they. would

have Selected an easement. However, there is no evidence

‘that Congress was, seeking such a minimum estate. From

1850 f 1870 ) while they were making right of way grants,

they were also making lavish gifts of .adjoining sections,

including coal and iron lands. .No disposition was, shown , :

to whittle down any part of the Sane tothe lowest possible |

minimum. The generous width of 200 feet, and 400 feet

in the Northern Pacific grant, when 50 feet would have

been. sufficient at most: points, proves this.

It was never the practice or palo y of Congress to grant

surface rights and Peserve underly ying: ‘minerals,

The Government, claims that prior to 1875 it had become —

the policy of the Congress ‘to reserve minerals underlyi

public lands. This is not true. It had become the polity

to reserve mineral lands from ordinary patents. Bit min-

eral lands were never excepted from right of way grants,

-and in no case’had Congress ever granted surface rights

and ‘severed and reserved the underlying minerals. Thé

# only“ purpose of reserving minera} lands was to. make them

available to mineral. claimants, but there could be no ‘such

‘object as this in. reserving minerals under the right of

way, because mineral claimants céuld not enter the right

_of way to conduct mining operations. -

‘Debates in House of Representatives did not refer -to

character of estate granted. |

A Senate bill for which was substituted a House bill

which later became the Act of March 3, 1875, contained .

elaborate provisions“including one for Federal incorpara-

tion of railroad companies. During the debates in the

House of Representatives when the Act of’ March 3, 1875,

,was under consideration, a question was raised by some of:

the representatives as to whether the proposed . act would

deprive, the states of jurisdiction over intrastate freight

rates. Oné or two of the representatives pointed? out ‘in

reply that the House bill, unlike the Senate bill, did not pro-

vide for. Federal incorporation but simply granted a right

of way and nothing more. In the arguments below coun-

sel for the Government contended that this. statement, that

the act “granted a right of way and nothing more”, meant

that it granted an easement and no greater estate. The

context however makes it clear that what the representa-

tives meant to say was that the proposed bill -granted- a

site for the\railroad and nothing mére—that is, no Federal

saceipeieaik | ae ; 3

The opinion of the Circuit Court of Appeals does not

mention this argument and apparently the. Court felt that —

it had no“merit.. We mention*it here merely becaug® the

Government stressed it emphatically in the lower, courts

and may stress it again here, An examination of the con-

“text will make it clear that the debaters were not referring

to the character of the estate granted and that this subject

was not ‘andet consideration: Yat that they were pointing

‘out merel¥ that there wks no provision in the aét for

Federal incorporation or any other provision which might

deprive the states of jurisdiction.

In accordance with the foregoing considerations, 12 de-.

cisions of the Supreme Court and every.decision ever rentler-

ed by.a state or lower federal court construing the right of

wey grants, except the decision now at bar, have uniformly

held over a period of more than 50 years that’ the estate

granted by the federal grants was a fee title, conditioned

only upon continued railroad operation.

In Joy v. St. Louis, 138.U. 8. 1, 44, 34 L. Ed. d. 843, li -

8. Ct. 256, the Court said:

_ “Now the term ‘right of way’ has a two- fold significe

tion. It is sometimes used to describe a right belong-

ing to a party, a right-of passage over any tract; and

it is also used to describe that strip of land which rail-

road companies take upon which to construct’ their.

road-bed. That is the land Se and not a a of

passage over it.” ae

ees te Siena

In-New Mezico v. United Ntates Trust Co., mF eS \ ) Se

43 L. Ed: 407, 19 8. Ct. 128, it is pointed out that where.

an intermittent .non- -continuous use is contemplated, it is |

reasonable to interpret a grant of right of Way as a mere,

easement, - but where the use is to be continuous and em-

braces the entire beneficial occupation and use of the land,

the presumption is in favor of a fee. a

‘In .Rio Grande Western R. Co. v. Stringham, 239 U. 8.

44,60 L. Ed. 136, 36 8. Ct. 5, there was invotyed a ques-

tion whether the railway company could enjoin’the removal |

of minerals underlying its granted right ‘of way ‘strip, where

the grant of a mineral patentee ala the — of way.

.The Court said:

“The right of way granted by this and similar acts

is neither a mere easement, nor a fee simple absolut

but a limited fee, made on an implied condition of

reverter in the event that the compariy 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.” {

In Northern Pacific Railway vr. Townsend, 190 U.S. 207,

47 L. Ed. 1044, 23 S. Ct. 671, the Court said:

«“* * * The substantial consideration inducing the

grant was the perpetual use. of the land for the legi-

timate purposes of the railroad just .as though the

land had been conveyed in terms to have and to holt —

/ - the same,so long as it was used for the railroad right

6f way. In effect the grant was a limited fee, made on

an implied -condition of reverter in the event that the

company ceased to use of Petain the land for the. ‘pur-

pose for which it was granted.”

“

“In M. K. & T..Ry. Co. v. Roberts, 152 ©. 8. 114, 38 L. Ed.

377, 14 8S. Ct. 496, the Court made the following statements:

rae 116:

“The United States had the right to authorize the |

construction of the road of the Missouri, ‘Kansas &

Texas Railway through the reservation of the Osage

Indians and to grant absolutely the fee of the two hun-

dred feet as a right of way to the aa dal

‘Page 117:

“That grant (of right of way) was absolute in terms, .

retary My both the fee and the ‘pensctsion.’ aii

Page 122 '

we+8 ‘the grant ‘of ight. of way’ under the Act

of Congress of July 26, 1866, to the Missouri, Kansas

.& Texas Railway and:the title’ of the lands composing

that right of way had become vested in that company.”

In ¥. K. € Tt. Ry: Co. v. Oklahoma, 271 U. 8. 2S at 308,

70 L. Ed. 957, (46 8. Ct. 517, the Court said:

“The company owned its right of way ends. aaats sta- 7

tion grounds in fee.”

Ta Noble v. Obichenia City, 297, U. S. 481, at =, 80

L, Ed. 816, 56 S. Ct. 562, the Court said: eee

“Assuming, for the ania of argument, that the Act of

1888 granted the railroad a base or limited fee, as

does the General Rattroad Act of Magen 3, -1875

a’: *”

«@

In Clairmont v. United States, 225 U. . 551, at 556, 56

L. Ed. 1201, 32 8. Ct. 787, the Court said:

“Thus, by the grant of Congress the railroad com-

pany obtained the fee in the ° land Se the

‘right of wey’ ‘2

In Buttz ». Nerthern’ ‘Pacifie Railway, 119 U. 8. 55 at

66, 30 L. Ed. 330, 7 S. €t. 100, the Court said: :

“At the time the Act of July 2, 1864 ( the Northern

Pacific grant ) was passed, tle title of the Indian tribes:

was not extinguished. But-that fact did not prevent

‘the grant of Congress from operating to pass the fee

of the land to the company. The fee was in, the

United “States. The Indians had merely a right of ©

occupancy, a “right to use the -lq d. subject to the

' dominion and control of the yovernment. The grant

_ conveyed the fee subject to this right of occupancy.”

In Choctare R. R: v. Mackey, 256,U. 8. 531, at 538, 65

L: Ed. 1076, 41 S. Ct. 582, the Court -said:

“The railroad’s. interest; as stated in Rio Grande

Western v. Stringham, 239 U. 8. 44, 47, is ‘neither a

mere easement, nor‘a fee simple absolute, but a limited

: fee, made on an ’ implied candition of. reverter in the

event that the company. ceases to retain the iad for. ©

the purposes for which it is granted, and carries with

it the incidents and remedies usually attending the

fee’. In effect the railroad is the absolute owner of the:

land. ‘Its use is, and necessarily must be, exclusive.”

_ In Noble v. Union River Logging Railroad, 147 U.S. 165,

at, 176, 37 L. Ed. 123, 13 8. Ct. 271, the Court. said:

“The uniform rule of this court has been that such

ah act was a grant in praesenti of lands to be there.

after identified.”

This language is quoted with approval in Jamestown and

‘Northern Railroad Company v. Jones, 177 U. 8. 125, at 130,.

44 L. Ed. 698,208. Ct. 568: 7

In United States v. Michigan, 190 U. 8. 379, at Page : 998,

47 L. Ed. 1103, 238. Ct. 742, the Court said : ,

“We haye just held in Northern Pacific Company v.

Townsend, ante p. 267, in reference to a grant of a

‘right of way. for the railroad, that it was ‘in effect

a grant of a limited fee, made on an implied condition

of ‘reverter in the event that the company ceased to

use or retain the lend for the purpose for which it was"

granted.’ ”

In Northern Pacific Ry. Co. v, Ely, 197 U. 8.1 at page 6,

‘49 L. Ed. 639, 25 8. Ct. 302, the Court said: .

“In.effect the grant was of a limited’ fee, made on an

implied condition. of reverter ifi the event that the com-

pany ceased to use or retain the land for the: purpose

for which it was’ granted.” -

J .

— 88

In Stalker v. Oregon Short Line, 225 U. 8. 142, at 146,

56 L. Ed. 1027, 32.8. Ct. 636, the Court said, » prea ‘of

the Act of 1875:

“The axiform construction of this act has botin’ that

‘it is a grant ‘in. praesenti of Eocsnesh . be thereafter

‘identified. 7

_ State decisions construing the Cong! sional grants have

been uniformly to the same effect.

State v. Northern Pacific Ry. Co.; 88 Mont. 529, 295

Pac. 257. ;

Denver € 8. L. R. R/v. Pacifie Lbr. Co, 86 Colo. 86,

278 Pac. 1022. '

— / Stepan v. N orthern |Pacthic Ry., 81 Mont. 361, 263. Pace:

425. gs

| Dugan v.@ontoya, 24 N..M, 102, 173 Pae. 118.

‘| Union Pacific R. R. v. Davenport, 102 Kan. 513, 170

Pac. 993.

Crandall v. Goss, 30 Ida. 661, 167 Pac. ines

Bowman v. McGoldrick ask Co., 38 Ida. 30, 219 Pac.

1063.° ,

Northern Pacific Ry. r. Myers Parr Mill Co., 54 Wash.

"447, 103 Pace. 453.

| Wilkinson v., Northern Pacific ry, 5 Mont. 538, . 6

Pac. 349.

The Government. ddmitted in’ its brief below that the

clause granting “a right of way through the public lands”,

as repeatedly used for 25 years in earlier grants, granted a

fee (and impliedly that the. railroads-achich obtained their

right of way under the earlier’ grants had the right to drill

for oil), aad gave no adequate reason for denying similar

right to grantees under ee: Act of March 3, 1N8i4 .

After referring. to the liberal land grant policy prevail-

ing prior to 1873, the Government on page 8 of its brief .

below said:° “With such a policy prevailing, it is not sur-

prising to find that the courts have constraed such grants -

as conveying to the railroads a fee in their right-of-way.

After all,“if Congress was willing: to grant to the. Northern —

Pacific the alternate sections in a belt of land 8@ miles

in width, it is dificult to gainsay that railroad’s claim

of a fee in the very lands-on Which its tracks are laid”.

Judge Wilbur in his dissenting opinion’ (RK. 138) said:

“As stated in the niain opinion the .Government concedes

that in many: prior grants of rights of way to railroads, it

was the intention of € eee to convey a fee ‘limited only

by the possibility of reverter’. ~

Oyly two possible reasons are given for apsiying a differ.

ent construction to. the same identical granting xords in

the Act of March 3, 1875. One is that in 1872 Congress

passed a resolution ‘alae that ‘subsidies. in public lands

should be discontinued and “the publictlands should be held

for the purpose of. securing homesteads to actual dettlers:

and for educational purposes, as may be provided by law”. |

It is obvions that the reduction of the estate in the right:

of way from a fee to an easement would not tend to se-

es’

cure homesteads for actual im or accomplish any edu-

cational- purpose. The fact Congress abandoned the

' policy of granting: alternate adjacent sections in the aid

of construction, in order to preserve lands. for homesteaders,

affords no indication whatever that it intended to change

the character of the estate in the right of way, especially

when if continued to use the same identical granting clause:

which it had been using for the past : 25 years in granting

_ fee titles.

The only other Fearon for ia the effect of the

grant of a “right of way through..the pwhlic lands” in the

Act of March 3, 1875, ° is that Section 4 of the later act

contained a provision permitting the railroad to obtain

its right .of- way in advance of construvtian by filing of a

location map, and provided that thereafter the lands -over

which ‘such right of way shall pass should be disposed of.

subject to such .rig't. of way. The argument is that lands

cannot be disposed. of “subject” to a right ‘of way, unless

the right of way is-a- mere. eusement, and. it is therefore

urged tlie this provision in Section 4, for. disposing. of °

adjacent. lands must bp: held to have quifitfed the grant in.

Section 1, in spite of the fact that Congr inued to

- Use the identical granting words which, ha previously

been used to grant a fee title. tae ec E

One difticulty with this argument is es the provision

for subsequent disposition of the lands évermwhicli the right

- of. way shall pass Wid hot originate with the. Act of 1875,

- but, first appeared in Section 2 of the Portland, Dalles &

‘Salt Lake Gras, 17 Stat. 52, approved April’ 18, 1872. .

And it is significaMt that that Act granted not a right of,

way through the public lands buf “a sirip of land one

eer, |

hundred feet wide on each side of the centre line of said

road”. Here it is a “strip of land” and not a a “right of

_ way” which was granted, atjd yet provision ‘is made’ for. -

_ disposing of the latids over which the line of road: shall

pass, “subject te such right of way so located”. The Act i

of 1875 simply borrowed this language from the Act of

¢ 1872. It seems .perfectly. clear that the’ ‘purpose in both

acts. was to provide for the preserving of the right of way

strip after the-filing of the map of location and for the -

} disposition only of the Balance of the subdivisions through .

which the map of location might. run. This is pointed | out.

‘So forcefully in Judge Wilbur's dissenting opinion below

(BR. 141-147 )s that we will not attempt to repeat or sull-

“marize his argudents, but respectfully refer the Court to -

that portion of Judge Wilbur's opinion commencing ~ near

the top of jage 141 and continuing to page 147. 4:

‘We tok that after € ongress had used a grant ‘of “the -

right of way through the public lands” for 25 years to con-

vey a fee title, and if it had then decided to reverse its

policy and reduce the estate to an easement, -it would have

been perfectly absurd for’ it to continds-to use, the same |

granting words and to expect that arfetched inference /

from the language jn Section 4 w uld be suftic ient to make

clear to the courts and thé people, its: intention to adop

a new foym oil estate for the right of way.

ton + /

The prohibition against alienaton of the right of way

— does not apply to removal diag

In Northern Pacific Ry. v. Peuniend. 190 U. s. 267, 47

L. Ed: 1044, 23 S. Ct.. 671, and in Great Northern Ry. Co.

37 ‘ :

v. Steinke, 261 U.S. -119; 67 L. Ed. 564, 43 S.Ct. 316, it is

held that a third party could not obfain title by adverse

possession to any part of the right of way.strip or station

grounds covered by these right of way grants; that the

-whole of the granted right of way must be presumed to be

necessary for the purpgses of the railroad; and that noth-

ing was granted for private use or disposal, nor beyond

what Congress deemed reasonably essential, presently or

‘: prospectively, for the quasi public uses indicated. |

The Government argue’ that under these decisions, since

no part of the right of way can be alienated for private

use, it follows that no part can be used even temporarily

for private purposes, and. that oil cannot be removed there-

’ from.

The prohibition against alienation arises from the con-

dition subsequent which requires that the entire width of

/ the right of way be used. or at Jeast held’ available for

/ use, for railroad purposes. _ If a portion of the surface were

3 alienated, that portion would no longer be available for

present or future public use“and Ne kcal thereof would

ee rs ost | ee

This would not be true of. any ieee occupation of

a portion of the surface : under revocable permit for private

use. And the rethoval of oil would not affect the fullest

‘possible use of the right of way for railroad purposes,

_——~ either presently or prospectively, any, more than’ would’ the

-removal of water from a well, and the complaint makes

no allegations that there would’ be any such interference.

It has frequently been heldgehat use of the right of way

for private purposes, either by the railway company ‘or

‘under revocable permit to others, is not a — ; of the

‘38 7 A * 2

‘ condition. —

_ Grand T runk ‘R. Co. v. Richardson, 91 U. S. 454, at

. .. 463, 23 L. Ed. 356; re

Hartford Fire IngxCo. v. Chicago, etc. yt 175. U. S.

91, 99, 44 L. 4, 20 S. Ct. 33, 36;

Siow: City vr. Mi i Valley on Line Co., 46: Fed.

(2d) 8197 ~\ tee e.

- Northern Pacific R. Co. v. Northern American Tele-

phgne Co., 230 Fed. 347, 349; / ;

Holland Co. v. Nor thern Pacific Ry. Co., 214 Fed. 920.

In M.-K.& 7. Ry. v. Oklahoma, 271 U. 8. 303, 70 L. Ed.

x 957, 46 S, Ct. 517, it was held that the railway company

‘was entitled to ‘compensation: where” crossing - rights were

acquired by a cfty over.granted right of way, and in North- —

‘ern Pacific R. Co. v.. Meyers-Parr Mill -Co., 54 Wash. 447,.

103 Pac, 453, it was held that the railway company cou id

recover the value of timber removed by a trespasser onl

castes perpen | from the. granted right of way.

—

| Brew where private right of way deeds have been in- j

role ed, the cases declaring the estate of the railroad to be a

fee sim pie , outweigh thosé. holding it to be an easement.

“

It is our opinion that the state court decisions involving

private deeds should be given little consideration in view

of the repeated interpretations by the Supreme Court of

“the United States of, the Congressional grants themselves.

However, the Government laid great stress below upon

state court decisions holding that railroads have only an

39°

; >

easement : in right of way obtained by condemnation or

private deed, and the majority opinion below (R. 124) seems ~

’

to concede considerable effect to these decisions.

oa view of this we take the liberty of referring the court

‘to the following ‘decisions ‘holding the estate granted to

have been a fee. Cases on both sides are cited in a foot-

note. to Magnolia Petroleum Company v. Thompson, 106 F.

( 2d) 207, at 227, and we submit that the following cases

_ upholding the -: estate mony outweigh those « to the

: contrary. a .

Carter Oil Co. v. Welker, 112 Fed. (2d) 299; \

Midstate Oil Co." v. Ocean Shore R.. ap 93 Cal. App.

704, 270 Pac. 216;

Radetsky. v. Jorgensen, ‘70 Colo. 423, 202 Pac. 175

Johnson v, Valdosta R. R., 169 Ga, 559, 150 8. E. aS

Chicago and Mississippi R. R. v. Patchin, 16 Il. 202;

ak. 4!

Ballard v. L. &N. R. Co, 9 Ky Taw Reports 523, 5:

- §8. W. 484; .\ ;

' Arkansas Improvement Co, r. “Kans. City So. me 189

“La. 921, 181 So. 445; Sai :

i r. Teras é Pacific R. R., 158 La. 117, 92 So.

Pn Dillman, 283 Mich..609, 278 N. W. 694;

isedeke r. C. & N. W., 120 Neb. 124, 231 N. W. 695;

uffalo Pipe Line Co. v. N. YL. G. & W.: R. Co., , 10

Abb. N. C. (N. Y.)° 107;

Qouinn v Pere sala satiate Ry., 256 Mich. 143, 239 N. w.

376; a

Battele v. Nea Haven: Ry., 211. Mass) 442, 97 N. E..

1004; °

Marland v: Gillespie, 168-Okla, 376, 33 8 207;

era a | ly \.

s , 7 +"

. ”,

‘Sherman v. Sherman, 23.8. D. 486, 122 N. W. 439;

Stevens v. Galveston R. Co, (Tex.), 212 8 W 639;

Messer v. Oestreich, 52 Wis. 682, 10 N. W.

Ke ynerd v. Hulen, 5 Fed. (2d) 160° (cert. pare 269,

U. 8. 560, 70 L. Ed.. 411, 46 8. Ct. whl

Gilbert v. M. K. & T. R. R., 185 Fed. 102

Supervisors; Warren County v, ietbeinins 56 in. 111;

Tinker v. Forbes; 136 Ill. 221; - . @

Downen v. Rayburn, 214:Mll. 342; 3

-— Concklin v. New, York. C. d&-H. R. R. Co. (1912), 149°

App: Div. 739, 134. XN. ¥. Supp. 191 (appeal of which

was dismissed in 207 N. Y. 152, 101 N. E. 1099);

Colgate w New York C. & H. R. R. Co. (1906), dl

‘ Mise, 503, 100 N. Y. Supp. 650; '

Philtips Gas & Oil Co. v. Lingenfelter, 262 Pa. 500, 105

Atl. 888, 5 L. R: A.. “14983

Nesral Production Co. v.. St. Louis, B. & ‘M. Ry. Co.

" (Texas), 84 S. W. (2d) 805 5.

~ “(Ind.),' 123 N. E. 1; |

Fudianapolis P. & C. R. Co. v. Rayl, 69 Ind. 424;

_ Carr v. Miller (1921), 105 Neir.. 623, 181 N.°W. 557;

Switzer: v. Chaffee County, 70 Colo. 563, 203 Pac. 680;

Clevenger v. Chivago, M.& St. P. R..Co, (1919) >

210 8. W. 867; "8

Ft. Worth € D.C. Ry. Co. v. Ayers (Tex.), 149 S. W.

1068, . :

Sibsoduent sitive of the Land Department and acts of -

Congress supporting the easement theory are: self-serving ~

declarations, ‘and are in. conflict with Supreme Court deci-

‘sions, with the intent of the grants und with admissions

by the government in this case.

It appears from the opinion below (R. 130-134) that

the Circuit Court of Appeals .relied largely upon rulings

of the Land Department and Acts of Cengress, long after _

the period of the grants, indicating a view that the estate -

“granted to thg*railroads in their right of way was an ease-

ment and not a fee.

The Land Department rulings” are liens aflicting.

The first of them was issued nearly 40 years ter the first

right of way grant and ‘13 years after the last 6ne. The

acts of Congress ‘which the court refers. to are still later.

While technically admissible, these . rulings are self-serv-

ing declarations, and. were made so long after the’ — :

that they lose their persuasive force.

The views. ‘expressed are contrary to the uniform hold-

ings of this court that the estate granted was not an ease-

ment but’ a determinable fee: They ignore ‘and were ap- -

parently made in igtorance of the fact that a railroad right

of way was invaFiably regarded as a fee estate, both in.

a enactments and judicial statements during and

prior to the period of the grants.

These rulings applied to the earlier grants as well as

the Act of.1875 and, as to the earlier grants, they are con-

trary to the admissions made below in this case by-the

Government amd above referred to, to the effect that the

estate granted by the earlier. acts was not ‘an easement but

a fee. . :

42.

The owner of a conditional fee estate is entitled to the

underlying oil and minerals, —

This proposition has not been ‘disputed by the Govern-

ment nor by the lowér court. It.is well settled that’ the

" owner of u base or limited fee, until the determination of

his estate, has all of the rights of a fee simple owner and —

has as complete dominion over the land’ for all ‘purposes

as though he held it-in fee simple.

—10-R. C. L, 652, 653; |

Washburn on Real Property, 6th Ed., Sec, 168; |

First Universalist Soc. v. Boland, 29 N. EB. 524, 155°

Mass, 171; ' es ae

Hillig v. Dils, 100° N. E. 1047, 53 Ind, App. 576;

For v. Vaa Fleet, 170 8. W. 185, 160 Ky. 796, 799;

Landers v. Landers, 151 8. W. 386,:151 Ky. 206;

Matthews v. Hudson, 7 8. E. 286, 81 Ga. 120;

Des Moines R. Co, v. Des Moines, 159 N. W. 450.

Accordingly ‘railroad companies are accorded the right .

to drill for oil on right of way held in fee.

40 Corpus Juris 962;

51 Corpus Juris 573, Sec, 237; - :

Montana Mining Co. v. St..-Louis Mining Co., 204 U. 8.

204, 217, 51 L. Ed. 444, 27 8. Ci. 254;

Nelson v. T. & P. R. Co., 92 So: T54, 152 La. 117; °

Crowell v, Howard, (Tex.), 200 8. W, 911;

Quinn v. Pere Marquette R. Co., 239 N. W. 376, 256:

Mich. 143; ers .

. _ Brightwell v. Intl. Grt. N. R. Co., 49 8. W. (24). 437,

121 Tex. 338;

ADS ae

Kynerd v. Hulen, 5 Fed. (2d) 160 (Cc. C. A. 5th Cir-

cuit) ;

Atty. General v. Pere Marquette R. Co., 248 N. W. 860,

262 Mich. 431;

Gilbert et al. v. M. K. & T. Ry., 185 Fed. 102;

Rice v. Clear Spring Coal Co., 186 Pa. St. 64, 40 Atl.

149; e: .

Stephenson v. St. L..S. W. R. Co., 181 8. W. 568;

_ Stevens v. Galveston H, & 8. A. R. Co., 212.8. ‘W. 639;.

Carter Oil Company v. Welker, 112 Fed. (2d) 299.

Where land has been deeded for school purposes, the

grantee cannot be enjoined from removing oil underlying

the land.. Dees v. Chaurronts (Ill), 88 N. E. 1011,- 240

Ill. 486. Also Priddy v. School District, 92 Okla. 254, 256,

219 Pace. 141. : 4

A grant even though not in fee and: limited to, railroad

purposes only would include the right to use materials or

fuel within the bounds of the grant, and the injunction

should be denied as to removal of oil for railroad fuel.

Even if our grant be limited to a right‘of use for rail-

road purposes only, this would include the right to use

any materials or fuel found within the bounds of the grant,.

and the injunction should be denied, at least as to the

removal of oil for railroad fuel. It is now. uniformly con-

ceded, even by courts leaning to ‘the easement theory, that

the estate of the railroad is more than, a bare’common law

easement or “inegrporeal right. It is conceded that the

railroad has the right to exclude the servient owner and to:

eae

' maintain exclusive possession, and that it his the right to

excavate cuts and dig tunnels below the surface, to take

materials from one part of the right of way for enbank- ~

ments in bther parts, and to dig wells for water. There

is no basis in the- wording W the grant for drawing a line’.

and permitting some of these railroad uses and. denying

others. Even under the more. restrictive decisions, the

"railroad should have the right, not only to fake exclusive

possession of the surface, but ‘also to nse timber on ‘the

"surface, and materials, water or fuel. below the surface, so

long as they are found within the 200 foot strip, and so

long as they are used for railroad purposes only. We sub-

_ mit that, even though it should be: heid that our estate is

net-a fee and that we therefore have no right to use any

part of the right of way for any non-railroad use, it should

still be held that we have the right to use oil. underlying

the right of way for railroad fuel, and to this extent the

opinion ‘of the court below should be reversed and the

_-injunction denied. 9 " :

We respectfully urge therefore that a writ of certiorari-

be issued ta review the decision of the Cirgrit Court ‘of

Appeals and to correct the manifest error therein.

Respectfully submitted,

F. G. DORETY,

WEIR, CLIFT & BENNETT,

Attorneys for Petitioner, Great Northern

Railway Company,

175 East Fourth Street,

Ps _St. Paul, Minnesota.

_ May 28, 1941. eat

APPENDIX A.

Act of March 3, 1875, 18 Stat, 482.

“Chap. 152. An act granting to railroads the right- -of-,

way through the public lands of the United States.

Be it enacted-by the Senat¢ andyHouse of Representatives

- of the United States of America in Congress assembled.

That the right of way through the public lands of the

_United States ‘is hereby granted to any railroad company

duly organized under the*laws of mny State or Territory,

except, the District of Columbia, | or by the Congress of the

_ United States, which shall have filed with the Secretary of

the Interior a copy of its artic les of incorporation, and due

proofs of “its organization. under the same, to the ‘extent of

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

road; also the right to take, frony the public lands ad-

jacent to the line of said road, material, earth, stone, and

‘timber necessary. for the construction of said railroad; also

ground adjacent to such right of way for station buildings,

depots, machine shops, Sideo tracks, turnouts; and: water —

stations, not‘to exteed in amount. t enty acres for: each *

‘station, to the extent of one station for each ten miles of °

its road. - ef |

Sec. 2. That any railroad company ‘whose right of way,

or whose track or roadbed ypon such right-of-way, passes

“throngh any canyon, pass, or defile, shall not prevent any .

' other railroad company from the use and occupancy of the

said canyon, pass, or defile, for the purplses of its road, in

common with the road first located, or the crossing of

‘other railroads at grade. And the location of auch right

Ray may

“ii

of way through any canyon, pass, or defile shall not cause

tie disuse of any wagon or other public highway now lo-

cated therein, hor prevent the location thtough the same

of any such wagon road or highway where such road or

- highway may be necessary for the public accommodation;

_ pass, or defile. as

and where any change in the location of such wagon road

is necessary to permit the passage of such railroad through

any canyon, pass, oF defile, said railroad company shall

before entering upon — the ground occupied by such wagon

road,. cause ‘the same to be. reconstructed at its own ex:

pense in. the most favorable location, and in as perfect a

manner as the original road: Provided, That such ex-

penses shall be equitably ‘divided between ‘any number of

‘railroad companies occupying aha usirig the same canyon, .

Sec. 3. That the ‘legislatiare of ‘the proper Territory

may ‘provide for the manner in which private Jands and

possessory claims on the public lands of the Cnited States .

may be condemned; and where such provision shall not —

have kien made, such conden tion may be made in accord-

ance with section ‘three of the ‘act bntitled “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 the use of the same for postal, military,

and siher purposes, approved July first, eighteen hundred -

and sixty two,” appreved Jnly second, eighteen hundred

and ‘sixty-four. \. | ;

Set. 4. That ny. railroad company desiring to secure

the benefits of this act. shall, within’ twelve months after

the logation of any section of twenty miles of its road, if

the sama be € upon sirveyed lands, and, if upon. unsurveyed

) :

/ . os

/ . e ide a

. +d e

/ ~ 4

iii

_ lads, within twelve Inonths after ghe survey theréof 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 uricompleted section of said road.

Sec. 5. . That this act shall hot apply to any lands with:

in thé limits of any military, park,. or Indian reservation,

or other lands specially reserved from “sale, unless such.

right of way shall be provided for by treaty stipulation or

by act of Congress theretofore passed. °

Sec. 6. That: ‘Congress hereby reserves the right at any ,

time to alter, amend, or repeal this act, or any. part thereof.

Approved, March 3, 1875.”

APPENDIX B.

Early Statutes. Indicating Ownership in Fee of Lands

Embraced ‘in Railroad Rights of Way.

Note (1) Lets of California, 1850-1853, Ch. -LXXV, Rec.

- @ 28, p. 267.

Revised Statutes of Colorado, 1868, Ch. XVIII,

p. 132. /

Laws of ‘Sule Territory, 1864, Ch. LXVII,

* Bee. 7, p. 152.

"Laws of Dakota Territory (Special and Private)

- 1866-1867, Ch. IV, Sec. 6, p. 92, Id., Ch. V,

Sec. 7, p: 101. o>

Laws of Georgia to 1837 (Prince's ‘Digest ) p>.

301, par. 13; p. 316, par. 81; p. 320, par. 96;

p. 324, par, 121; p. 336, par. 170;-p.°340, par.

186; p. 342, par. 193; p. 349, par. 226; p. 368,

par. 296; p. 368, par, 312; p. 376, par. 358.

Statutes of: Indiuna, Supp. Pub. 1862, Vol. I,

_ Ch. 128. ;

; Statutes of Indiana, 1563, p. 23, ee

Statutes. of Kansas Ty., 1855, Ch. 85, p: 911,

Sec. 10; Ch. 86, p. 917, Ree. 95 Ch. 87, .p. 923,

Bee: 10; Ch. 88, p.-929, See. Ip.”

Laws of Kansas, 1864, Ch. 124,

_ Revised Statut ‘of North Carolina, 1837, p. 340,

‘par. 14; p. 493, par. 7; p. 410, par. 9; ‘P. 401,

par. 35; p. 363, par. 18”

Revised Code. of North Carolina, 199, Ch. ‘éi,

p. 358, per. 20. - alias 7 =

Statafes of Souths Carolina, 1840, Vol. VIII,

& par. X; p. "98, par. X,.p. 400; par. XXXV,

Atle, COATED EAD CAE tote cated te Te A er ile TSA Beri SE SO Ce = me |

. ; | -

i a

~ - Laws of Miasol uri, 1853, -p. 355, Sec. 4, 7,9. .

p. 415; par. X, p. 425; par. X, p. 444; par. —

XIV, p. 466; par. X, p. 476.

Laws of South Carolina, 1839-1849, par. XVI, .

- p. 404 ;/ par. XIV, p. 376;. par. XVI, p. 389."

Laws of Texas, 1855-1861, Special Laws of the

7th Legislature, (1858)°Ch. 51, p. 61 (1239),

Be, 10. | een

fa"

Note (3)

Note (4)

par. 1.

Code of Virginia, 1873, P. 538, par. 11.

Code of West Virginia, 1870, ch. Al, p. 264,

> par. 18.

‘Code of Virginia, 1860, «Title eM, % 56, p. 325,

tink Statutes of West Virgins, 1879, Ch. -

79, Sec. 19.

Laws of Wyoming; 1869, Ch. 8, Sec. 45, p. 251.

Code of West ‘Virginia, 1870, ch. 41, p. 264,

par. 18.

Revised Statutes of West Virginia, 1879, Ch.

"| 99, Bec. 19.

Laws of Virginia, Mathews Digest, 1856, ‘Vol. I,

- 426, Sec. 11.

| aa of Texas, 1855-1861, Spec, Laws of the

Fifth Legislature, (1853) Ch. V, p. 11, Sec. 10.

Laws. of Georgia to 837A Prince's Digest) p.

. 320, par. 96.

Laws ‘of deceit to 1837, (Prince’s Digest ) a

376, par. 358.

Comp. ‘Laws Michigan, 1871, Ch. 75, See. 23,

p. 758. | 2

¢hwan's Rev. Statutes of Obiio, esi? (Derby's *

Digest) Ch. 29, p. 235, Sec. XI.

Statute Law of New York (Diossy Edition, Vol. .

. .3, p. 96, par. 22 (Laws. of 1875, Qh, 606).

. ~ /

_ F ds

. /

- Note (5)

General Laws of California, 1850-1864 (Hittell), —

“Vol. I, p. 135, See. 860. ;

Laws of Illinois, . 1852, p. 151, Sec. 15.-

Compiled Laws ‘of Nevada (1863. — Vol. Il,”

p. 300, Sec. 3460. .

- General Laws of Oregon, 1843. 1872, Title IU,

Sec. 47. : 4

Statutes of ‘Debacuee, 18K. 1871, Ch. LIV, p.

48, par. 8; p..49, par. 5.

Laws .of Texas, 1855-1861, Spec. Laws 0% the.

5th Legislature, (1853) Ch. Y¥, p.. 11, See. 10.

Compiled Laws, Utah, 1876, p. 213, See. 31.

“General Stats, of Vermont, 1863, Title XIV,

Note (6)

Note (7)

- Note (8)

Ch. 28, p. 249. ,

Real Property Statutes, Washington * Ty., 1843-

1889, p. 336, Sec. 12. re

Rev. Code of snineMoer; “See, 1411.

Géneral Laws, New Mexico, —, (Act of 1878).

~p.- 457, . .

fat.

Rev. Stats of Weet Virginia, 1879,-Ch. 79, See.

19.

Code of West Virginia, is70, Ch. 41, ba 264,

+ par. 18,

Code of: 7, ° 1873. p. 538, par. 11.

Corpiled Laws of Michigan, _— Ch. 67, Sec. -

23, p. 643. .

Compiled Laws of Michigan, 1871, Ch. 5, Sec.

23, p. 758. \ 42 3

xv I~. *) &

vii

; Rev. Stats. of New York, 1859, Vol. II, Banks

- & Bro. 5th Ed., p. 675, See. 180

Stat. Law of New York, Diossy Ed., Vol. 3,

_(p. 96, par. 22) Laws of 1875, Ch. 606.

Note (9), Laws of California, 1850-1853, Ch. LXXY, Bec.

28, p. ' 267.

_ Digest of.the Stats. se deriae, 1898, ‘Vol. 1,

p. 346, par. 25.

‘Maryland Code Supp. 1870; Art. 26, p. 40.

Rey. Stats. of North. Carolina, 1837, p, ee

par. 20. yy

; Laws of Virginia, Tates = 1841, P. 766,

‘*

an APPENDIX C:

Appropriation Provisions of the Northern Pacific Grant, ‘

* 33 Stat. 365. ;

“Sec. 7/ And ‘be it. further enacted, That .the said

“Northern Pacific Railroad Company” be, and is hereby,

authorized and empowered. to enter upon, purchase, | take,

and hold any lands or premises that may. be “necessary and

proper for the constriction and working of ‘said road, not

exceeding in width two hundred feet ot each side of the

-line of its railroad, unless.a greater width be required. for.

the purpose of excavation or embankment; and also any

lands or premises that may be necessary and proper for

turnouts, standing places for’ cars, depots, station-houses,

or any other structures " Fequired in. the construction and ;

: viii

working of ‘said road. And the said Company shail have

pte right to cut and remove trees and other sia t

might, by falling, encumber its road-bed, though Standin

or being more than two hundred feet from the line of)s

road. And in case ‘the owner. of such lands or prgmises

and\the said eulccinia ped ving besa as to the val

upon application by either party, to any ‘court of: record in

any~of the territories in which the lands or premises to be

taken, lie; and. said commissioners, in their assessment of

_damages, shall appraise such-premises ai what would have —

_ been the value thereof if the road had not -been built. And

oA upon return into court of such appraisement, and upon the «

| payment into the same of the estimated value of the prem-—

ises taken for the use and benefit of the owner thereof, said ;

| premises’ shall be deemed to be taken by said company, |

which shall thereby acquire full title to the same for the |.

‘purposes aforesaid. And either party feeling aggrievgd at

said appraisement may, ‘within thirty days after ates

has been returned into court, file an appeal therefrom, and

demand a jury of twelve men to estimate the damage ‘sus-

tained; but such appea] shall not interfere with the rights

of said company to enter upon’ the premises taken, or to do

any act nec éssary” and proper in the construction of its

road. And. said party appealing ‘shall give bonds, with.

sufficient surety or sureties, for the payment of any cost

that may arisé upon such appeal; and in case the party

appealing does not obtain a verdict, increasing or diminish-

ing, as the case may be, the award of the commissioners,

such party shall pay the,whole cost incurred by the appellee, -

as well-as his own, and the payment into court, for ‘the

use of the owner of said premises taken, of a sum equal

to that finally awarded, shall be: held to vest in-said com

pany thie title of said land, and of the right to use and-

occupy the ‘same for the construction, maintenance, and

Operation of said road. And in case any ‘of the lands

be taken, as aforesaid, shall be held by any infant, femme

covert, non compos, insane person, or persons residing with-

out the territory within which the lands to be taken lie,-or...

persons subjected to any legal disability, the court may

appoint a guardian for any party under any disqualification,

to appear’ in- proper person, who shall give’ bonds, with

sufficient surety or: sureties’, for the proper and faithful

execution of his trust; and who may represent in court the

' person disqualified, as aforesaid, from appearing, when the

same proc eedings shall be had in reference to the appraise-

: ment of the premises te be taken for the use of said.com-

pany, and with the same effect as has been already de-

scribed ; and the title of the company to the lands t taken

by virtue of this act shall ‘not be affected .or impaired by -

reason of any failure by any guardian . to discharge faith-

‘fully his trust. And in case any party shall have a right

er claim to any land for a term of years, or any interest

therein, in possession reversion, .or remainder, the value of |

any such estate, less than a fee simple, shall be estimated

and determined in the manner hereinbefore set forth. And

in case it shall be necessary for the company ‘to enter upon

any lands which are unpecupied, and of which there is. no

apparent owner or claimant, it’ may. proceed to take and

use the same for the purposes of said railroad, and -may; -in-

‘®

Stitute’ proceedings, in manner described for the purpose

of ascertaining the value of, and of acquiring title to, the

same;, but the judge of the court hearing said suit shall

determine the kind of notice to be served on such owner or

owners, and he may in its discretion appoint agent or

guardian to represent such owner or owners in case of his.

or their incapacity or non-appearance. But in case nd

claimant shall appear within six years from the time of the

opening of said road across any land, all claims to damages

against said company shall be barred.” |

« . :

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.