# Petition for Writ of Certiorari — Great Northern Railway Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0507%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1942 - **Citation:** 315 U.S. 262 ## Text — ; , —— — Saki tte's = ual Ration pee. = ; a ° ir | — S ¢ os, > . a3 ILE ip OF Y aig | = | = e. | -- | GH b ELB ESS; INTHE | ype *COROTLEY Bupceme Gourt of the Mnited States - OCTOBER TERM, 1941. - 7 Z a 49. : mins ; 2 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. 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 : ie 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. v ee 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 3 Vi - ewe e- 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 Ro 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 ¢ 2 ae | = e. r aoe “ee. ¢ - SES oa : we eos J. “3 > , 2 — * _ £ a 4 oo — _- .& Unrred STaTEs or Ampnica, |\ be ‘ Hh Bots * viene INTHE” . “Sep, Gauct of the Muited Siates OCTOBER .TERM, 1941. Grear NORTHERN hiewae COMPANY, ~ | Petitioner, and appetient below, \ \ , vs. 1 \ & ~\ * | f. ; \ ° - 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. be ~~ 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. . a . 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 ’ 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. — 15 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. 16 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 17 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 Ye 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. ne “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. . x 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’ \ x \ 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. ” 9 b 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 ae . 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, 4 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, Cj ,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. . 29 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: v 30 “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.” Yy 31 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 \ & Q a: : 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. 34 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 +" o- . ”, \ 40 ‘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. Cincinnati -R. & Ft. W. R. Co. v, ©. C.& St. LR. Co. ~ “(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, . : 9 41 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- o 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. - 21 ©, J. 9235 | rae —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; Sp 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. iv "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 | v . ; | - 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 . / ll - Note (5) vi 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) » t * - 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. q: 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, f ix ae 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.” | « . : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0507%3A2. Public record. Not legal advice.