Brief for the United States — Great Northern Railway Co. v. United States

Supreme Court brief1942

Ask Donna

What actually matters in this document.

Text

Fe) = é: ~- } es. . t : = 4. ~

so . HM 7 a i. f Fics RS Mure Uy

: ee a. Pw ,

: pee Dict ° JAN 5 1942 -

so POMARLES ELmagE pang zy

Pies est if 13 _ re prance

ab Fae : 3 :

Poh I hid ;

GER 2" :

: Hr

No. 149

® PE CT ; ee

® 4 : ?

| SntieSuprne Gourt of the Gnited Sites

OcTOBE R TERM, ‘1941. : ion y,

eore | :

Grr AT NortHERN Railway Company, A \ CORPORS-

TION; PETITIONER ae :

; Ae .

: UNitep STATES OF AMERICA

ON WRIT OF CERTIORARI T@&THE UNITED STATES CIRCUIT |

COURT OF ‘APPEALS FOR THE NINTH CIRCUIT

. . .

>’

“BRIEF FOR THE UNITED STATES

+++—

a e

INDEX.

Gplniona below . . <0... .cw ceca Geb ococsccctce ardmewanded 1

TaMMOMation ...... 2. 2c ccevie cect eccccceseenpeccsonccowccces oo

Question presented. --_-- V cdtue Weep cibnendubiies Heagetubwes 2

SND SNOUE. < oncacapeelenuleeeniedoasvegedheansl Réne 2

eS ee Ee 2

NG OC CIR so ac ccondbeadcseccigetérossscoeposte 4

Argument: : oan

I. The right of way granted by the Act of March 3, 1875,

is in the nature of an easement.--......-.2:--.-.-- 5

nm * The language of the 1875 Act shows ‘hat only

' an easement was granted... .........--.-- 10

B. Tha lestelative Gnchapeiind-end Wisteny of the

1875 Act show that the grant was of an ease-

ment rather than a fee__........---.---.-- 15

C. Subsequent administrative and congressional

' ¢onstruction confirm, that only an easement

COO EOE... icickecnddutiannpsdeonadpes - 2

RR in dann tant nerutnndéewsanies . 2

‘ TI. Even if the right of way isa ‘limited: fee,” idee aet

. ‘follow that the railroad owns the minerals-_. :..... 35

Mpntbaele®. -ncccnncetcccsccccctucvecscccccceseccncesgyee - B

Appendix. - -__-- bins Subebsh pas sebueddasaiiaineusebmacs 39.

CITATIONS

Barden’ v. N Pacific Railroad, 154 U. 8. 288. Liicalhbdiliaipa 12

ee Dn AD Mie ie Min bwanetatecensctasesceucuet _ 34

Branson v. Studabaker, 133 Ind. REE ae 36

Brewster v. Gage, 280 U. 8. 327_._.....-.---- SEE

Caldwell v. United States, 250 U. 8, 14: PE BOGery Aa 5, 8, 12

Charles River Bridge v. Warren Bridge, 11 Pet. 420_-.....-. 12

Choctaw, O. & G. R. R. Co. v.. Mackey, 256 U. 8. 531....- 34

’ Cooper v. Roberts, 18 How. 173........--- petnsginnannins 31

eee eee eccias ae

East Alabama Railway Company v. Doe. 1 114 U.S. 340... 34

Fawcus Machine Co. v. United States, 282 U. 8. 375_...-.-.- 21, 25

Hall v: Boston & Maine Railread, 211 Mass. 174......-- 14

Hall v. Turner, 110 N. C. 292... .-.....-..- Citimbeminoal : 36

Hartley v. Commissioner, 295 U. 8..216_.-.-..--.--.-.--- - 25

* Hazen v. ‘Boston and Maine Railroad, 2 Gray 574 lnioweteaiiniil _ 34

PaneNe Ss, Hallock, 309 U. 8. 106... -..-----.--------- 25

. (1)

- 433589—42——1

_ Keown v. craggy bent bin cescens siieeeldinensd

McFadden v. Mountain View Min. & Mili, Co., 97 Fed. 670.7, 21, 26

Magnolia Petroleum Co. vy. Thompson, 106 F. (2d) .217,

Work v. Louisiana, 269 U. ‘S. 250 paeabucerccecsenes —

reversed on other grounds, 309 U. S. 478_...........-- 14, 15

_ Massachusetia Mutual Life Ins. Co. v. United States, 288

i U. 8. 269 wesceccececeesaceceosoeetsooesoeo Secocccodoco 26

Melder v. White, 28 L. D. 412... Dicktniceineabindintiane 23

Minidoka & S. W. R. Co. v. Weymouth, 19 Idaho 234__._. 15

Nadeau v. Union Pacific R. R. Co., 253 U. 8. 442........ 13

National Lead Co. v. United States, 252 U. 8. MB.;---07-| 26

- Welle v.. Mancen, B.A. FT, GB. clecccicccceccccetccye - 36

New Mezico v. United States Trust Co., 172 U. 8, 171... 37

Noble v. Oklahoma City, 207 U. 8, 481... SRE CT eee 34

Northern Pacific Railway v. Soderberg, 188 U. 8. 526_.... 7, 29, 31

Northern Pacific Ry. v. Townsend, 190 U. 8. 267__........ 16, 22

Norwegian Nitrogen Co. v. Uniled States, 288 U. 8. 294... 21,25 _

Quick v. Taylor, 113 Ind. 540................-......-- 4 14

_ Railroad Co. v. Schmuck, 69 Kan. 272..------------++--4 i)

Goual o. Wel, 156 TH. GOB. oc cnc ccccdoccceciicccscee 4 36

. Railway Co. v. Alling, 99 U. 8. 463.........-..-..-...- 4 33

Rio Grande Ry. v. Stringham, 239 U.S. 44__ 5, 7, 25, 29, 30, 31, 35

_ Rio Grande Ry. v. Stringham, 38 Utah 113_....-.-....-- \ 32

' Rio Grande Ry. v. Stringham, 39 Utah ES 33

Roberts v. Siouz City & P. R. Co., 73 Nebr. 8.........-- L 14

Siouz Ciiy &c. Railroad v. United States, 159 U. 8. 349... 12 ~

Smith v. Townsend, 148 U. 8. 490... ...-.....-.---.-.- 1 15,33

Swendig v. Washington Co., 265 U. 8. 322_........_..-- L -~ 22

Taggart v. Great Northern Ry. Co., ma Ne: 455, affirmed

i) 3 ee. Beale . 21,28

Tiger v. Western Investment Co., 22 ee’ eS L 7,28 ,

Union Missionary Baptist Church v° Fyke, 179 Okla. 102__ 8,37 |

United States vy. Big Horn Land & Cattle Co., 17 F. 2d 357_. 38 /

United States.v. Denver &c. Railway, 150 U. 8. 1... .2.. 13, 16

United States v. Freeman, 3 How. 556_--- = ---..-.----- . 7,26

United States y. Johnston, 124 U. 8. 236... _..........-. 6, 21

United States v. Minidoka & 8. W. R. Co., 190 Fed. 491... 12

United States v. Moore, 95 U8. 760... ..-..-.-.-- ~~... 6, 21 .

- United States v. Sweet, 245 U. 8. 563........-.......-.-. 31

United States y. Union Pacific R. R, Co., 91 U. 8. 72__..-- 15

Washington Cometery v. P. P. & C. I. - R. Co., 68 N. Y.

» iininccstttnnumtitiharsesSeb~us hneatiineseoueoheoocs 14

Western Union Tel. Co. v. Penneyloania R. R., 195 U. 8. my

Piliiiinahlidcdaekdaneatigethidensecessbesetondaedda - 8,37-.

; Winona & St. Peter R. R. Co. v. Barney, 113 U. 8.618...: 15

Wisconsin Central R’d v. United Slates, 164 U. 8. 198... /i12

Ill

Statutes: ae = Page

* Act of September 20, 1850, en nc. cones - 15

Act of July 2, 1864, c. 217, 13 Stat. 365_........--- ibe 16

Act of April 12, 1872, ¢. 96, 17 Stat. 52... -..2.-.-...-.- 18.

Act of May:23, 1872, c. 205, 17 Stat. 159_,.-..-....--.--. 18

7 Act of May 27, 1872, c. 220, 17 Stat. 162... ..--._. a 18 °

s Act of June 1, 1872: ae sey *s

e. 258, 17 Stat. ‘502. Shiela kein duwes ee date .. 18, 20

- @. 961, 37 Stat. 219... .........- ¢ any aces dt ceicen 18 |

Act of June 4, 1872, c. 293, 17 Stat. 224... __. of Eee © 18

Act of June 7, 1872, ¢. 323, 17 Stat. EN ere 18

‘Act of June.8, 1872: .

c. 354,17 Stat. 339........-..-. Sen D cael coo Fe 19, 33.

c. 350, 17 Stat. 340.........0@%_-.....- Se Oa ate 19

ae | OC) Ug er Ri eR 19, 20

Act of June 10, 1872, ¢. 437, I7 Stat. 393.2. ..-_-_-_-.2- 19.

Act of March 3, 1873, c. 291, 17 Stat. 612_-__...-..-.-- 19

Act of June 20, 1874, c. 348, 18 Stat. 180........:.--.-. 19

Act of June 23, 1874, c. 473, 18 Stat. 274... __. ae ——

- Act of February 5, 1875, ¢. 35, 18 Stat. 306._.._......-. 19

Act of March 3, 1875, c. 152, 18 Stat. 482....._ 2, 3, 4, 10, 29, 39

Act of July 4, 1884, c..179, 23 Stat, 73_...--._.-..-.-.- 24, 33

_ Act of March 3, 1891, c. 561, 26 Stat, 1101..-* ....._...- 22, 25

Act of March 6, 1896, c. 42, 29 Stat. 44.............---- 25

Act of June 26, 1906: :

ee GE ica nwess 27

I is ck cdbnb Gene thenncangve 7, 26

Act of February 25, 1909, c. 191, 35 Stat. 647......._.-- , 27.

Act of May 21, 1930, ¢. 307, 46 Stat. Deas te cdowee N28 -

Lands decisions:

0 EE es ee

46. Gs (1008)... ....5:---. SRO CSS Mae Be agers

NS nina dase sseeseeeen ‘sagt sc igeuats 23 |

RS Ee eee scaled gah uiadeael 25

_ 19 L. D. 386 (1894)... -.---- as i Dbenes senna reeaet 23

19 L. D. 588 (1894) _._-..__- wa imidbaonins ee RICE ee ot Se

20 L. D- 131°(1895) _ - .-----.--- REP Saale cjadiarensalldgettiods 6;.23 .

S54. Bi GF (000... .-205.-<- EDEL FMNAIN Wines Done = Nes 23

nd Sawn envnitawadsuwins i ae

7 Rt icnrckbadevsscrqcciscimiguscs |) (a0

a EE ESSE a ae anne 23

ee oii ch ont uneepoaesatblicsiwes 6, 23

cinta tnensnnden denne’ 24

35 L. D. 495 (1907). -.--..-- 2 GEERT SAL RSE

44 L. D. 552 (1916). _.._..--- —. SEEPE SES a ee

NT i ha citticknenntsweeniecen ete Bi . 25

4, ae ee Se ct 7 ae

Re ae eae

Lands decisions— Continued.

“7% & f Sa RS SEEN AE reer pe ,

I ti SCN a

53 I. D. 270 (1981)... .- ARES REIT A

te ef fo ee ee e iiaiee

56 1. D. 206°%1987)........--.. iP ASIA SF? GP Ae

Miscellaneous: . 4

Bogart, Economic History of the ‘United States (3d ed. 1918)

A Circular Instructions of March 9, 1878, 5 Copp’s Land-

J Owner 35-{1878) . . ...- - Keen steulackoutsdaeheunoees

rae Cireular |instructions of November 7, 1879, 6 Copp’s

Land-Ownte4T (1679) .- . 2-222 c eee cece ccc ctocce

Circular Instructions of August 29, 1885, 4 L. D. 150___.-

Circular ] nstructions of June 27, 1900, 30 L. D. 325.._...

-Cong. Globe, 38th Cong., Ist sess, 1698 (1864)... .-...--

Cong. Globe, 42d Cong., 2d sess. 1585 (1872)... ©.

' Cong. Globe, 42d Cong., 2d sess. 1591 (1872). .....>...--

‘ong. Globe, 42g Cong., 2d eess. 2137 (1872)___... 2...

Cong. Globe, 42d Cong., 2d sess. 2138 (1872)... .-....--

Cong. Globe, 42d Cong., 2d sess, 2543, 4162 (1872)... ..-

- Cong-Cilobé, 42d Cong., 2d sess. 3913 (1872)... -..---...

Corig. (llobe, 42d Cong., 2d sess, 4134 (1872)... ....-...

2 Cong. Rec., pt. 3, p. 2808 (1874)_.-...... 2. .----

_ . 8 Cong+Rec., pt. 1, p. 404 (1875) _.--_..-.--.-. eee ;

3 Conj;, Réc., pt, 1, p. 407 (1875)... ~-.---. -.--------- “~

ett, H. Rept: No. 10, 43d Cong., 2d Sess. (1874) p. 1 (Ser.

Tr RR. Reet ee ol ES Bae

No. AGL SIE Nit RINE TEE Ts ONE

Jone:, Basements (1898) sec. 16. ....-.-.---------------

“Lard Grants,” -9 Encyclopaedia of the Social Sciences

CB GER: Wir Give cccethcgeneveccccideccccuavawspaese

History Gees We wadbaccdecdubiucscubactubdcocsa

Right of Way Regulations of January ih 1888, 12 L. D. 423.

——_——Ri ht-of Way Regulations of March 21, 1892, 14 L. D, 338_-

Richt of Way Regulations of November 4, 1898, 27 L. D.

Sie cswcstidstbtidsttsiivanepetiatenensaswey Aa oe

af - of Way Regulations of viens 11, 1904, 32 L. D:

ee ee

es co ikcncotth cttbecaiests a sey

>‘! Tiffany, Real Property (2d ed. 1920), p. Reet

t Washburn, Real Feaperty ane ed. 1902), sec. 146__.._.

rie Sree Goro aed Ses

| Ocionen Tew, 1941 x :

’ wie

No. 149 7 .:

Great NorTHERN RétLway CoXpany, A CorPora-

7 _ TION, PETITIONER ©

° ey 2

-Unitep-StaTes oF AMERICA |

; | ; i.

ON WRIT OF CERTIORARI TO’ THE UNITED STATES, CIRCUIT

- COURT OF APPEALS FOR THE NINTH CIRCUIT

‘ : 7

‘ —_—--—_---sS-s- 4 :

BRIEF FOR THE UNITED STATES ©

OPINIONS BELOW

‘The opinion of the Distriet Court (R. 60-76) J

is reported in 32 F. Supp. 651. The opinions of

the’ Cireuit Court of Appeals (R. 120-155) are

reported in 119 F. (2d) 821. ai

JURISDICTION |

The judgment of the Circuit Sains of Appeals

‘ was entered on May 8, 1941 (R.-156). The peti-

tion for a writ of certiorari was filed.on June 9,

1941, and granted on October 13, 1941 (R. 159).

. The jurisdiction of this Court rests on Séction 240

(a) of the Judicial Code, as amended a sans Act of

heh sas ” 1925.

' (a)

| QUESTION PRESENTED

Whether a railroad company . hes any . ight,

title, or interest in the minerals underlyi ing thds

_ portions of its right of way aequired under Sec-

tion 1 of the-Act of March 3, 1875, e. 152, 18 Stat-

482,.43 U.S. C. see. 934. 7

STATUTES INVOLVED

The Right of Way Act of March 3, 1875, ¢. 152,

18 Stat. 482, 43 U. S. C. sees. 934-939, is printed

as an appendix, pp. 39-41, infra. The provisions

_of other statutes, as far as relevant, are set out

‘in the argument. |

. STATEMENT? ar

This is a suit instituted by the United States

~ on-March 23, 1939, to enjoin the Great: Northern

Railway ‘Company ' from drilling for or remov-

ing gas, oil, and other minerals underlying those

’.. portions ‘of its right-of-way acquired under See-

tion .1 of the Act of March 3, 1875,.¢. 182, 18 Stat. .

482 (R. 2-7).

The facts alleged by the United, States (R. 3-7)

and admitted by the Railroad (R. 7-8) are as fol-

lows: The Great Northern Railway Company is a

railroad corporation, organized under the laws of

Minnesota (R. 3). In 1907 the Railroad acquired

. from the St. Paul, Minneapolis and Manitoba

Railway ‘all of the latter’s property, including -

rights-of-way — it had been gente under the ~

* Hereiiiafter sometimes referred to as the Railroad. ~*~ ~

see eee ae 3 : 3 |

Act of March 3, 1875 (R. 3-4). The complaint,.

_ further alleged that under the Act of March me

1875, the Railroad acquired neither the right to use

_any portion of the right-of-way for the purpose of

- drilling for and removing subsurface oil and min- _

erals,; nor anf right, title, or interest: in, or to the

deposits underlying the right-of-way, but that the

oils and minérals remained the property of ‘the

United States (R: 4-5); and that‘although no lease

had been issued to the Railroad under the Act of

May 21, 1930 (46 Stat. 373), the Railroad claimed

ownership of the oils and minerals underlying its

right-of-way, and threatened to use the right-of-

way to drill for and remove subsurface oil (R. 5).

_ In its answer the Railroad admitted: the al-

legatiows of fact, claimed ownership of the sub-

surface minerals, and affirmatively stated that. it

proposed to drill three separate oil wells (R.—

7-10). The oil from well number one was, to be

sold commercially ; the oil from number two" was

to be refined, the. more volatile portions td: be sold

and the residue used dn its locomotives; and ‘the ~

oil from number three was to. be used in its entirety.

by the Railroad as fuel oil (R. 9).

*In 1937 the Railroad had requested the Department of

the Interior for an opinion in respect. of its rights in the

‘+ minerals-underlying its right of way. That Department

: concluded that under thagranting Act of March 3, 1875, the

Railtoad acquired “neither the right to use any portion of

_ its right of way for the purpose of drilling for and removing

; subsurface oil nor any title or interest in or to’such oil,” 56,

sas 266, 214 14 (1937). .

* —

te ne ~

» DOC ~~— ae,

_ Qn June 2, 1939, the United States filed a mo-

tion for judgment on the pleadings (R. 10).

The District’ Court-on April 25, 1940, rendered -

an opinion holding that the 1875 Act did ‘not.

convey the minerals to the Railroad (R. 60-76).

- On July 25, 1940, the court entered a final judg-

ment enjoining the Great Northern Railway Com-_

’ pany from drilling for or removing the oil, gas,

and other minerals upderlyi ing its right of way

~(R. 99-101). :

‘On appeal by the- Railroad (R. 101), the court. —

below, with Judge Wilbur = he

the judgment of ¢he district court, (R. 156).

SUMMARY OF ARGUMENT

¢ . s I

A. An ex: bitte of the language of*the 1875

| Act shows fhat only an easement was gran

Section 1 rgfers to “the” right of way; Section

_ refers to ‘fuse and oceupancy”; and\Seetion. 4

requires the location. of each right of way to be:

noted on the plats in the local land office, and

' provides that ‘‘thereafter all such lands over

which such right of way shall pass ory be dis-

posed of subject to such right of way.”’* As the -

court below remarked (R. 129), ‘‘Apter words to

| indicate the intent to convey an easement would.

be difficult to find.’ Since “nothing passes but

ca is conveyed in clear and explicit language—

~XItalies are ours throughout this be,

inferences being resolved | not. against but fpr the

-Government,’’ it seems patent that the 1875 Act —

did not convey to the. railroads the underlying

minerals for fuel or other \purposes. Caldwell v. :

United States, 250 U. S. “f 20-21. :

B. That the 1875. Act granted‘ to the railroads

“ an easement. rather than a fee is further ‘con-—

firmed by the legislative badkground and history of

the Act... Rhe policy of granting land subsidies

. to the railroads was discontinued i in 1871. ‘*Land

Grants,”’ 9 Encyclopedia of the Social Sciences \

(1933), p. 35. Thereafter, the ‘grants were re- .

‘ stricted to a‘/mere right’ of passage across the

public. domain, a right which could be a¢quired in

no other way while large blocks of lands were held

by a sovereign immune from suit.--This shift in

pelicy was formally crystallized by congressional

_ resoluti¢n_in 1872. House Resolution of. March

11, 1872, Cong. Globe, 42d Cong., 2d sess., 1585.

And the debates preceding the enactment of the

1875 Act show clearly that the grant. in the Act

‘ was consonant with the ‘new policy of strict lim-—

itation and: of granting easements rather than

fees. Of. 3 Cong. Ree. pt. 1, p. 407 (1875).

C. Both the ‘subsequent administrative and —

legislative construction of the 1875 Act reinforce

‘the conclusion that only an easement wa’ granted. .

1. Until this Court “uttered a contrary dictum

in Rio Grande Ry. v. Stringham, 239 U. S. 44.

(1915), the administrative officers of the Govern-

= 433580422 z 2

_. ment consistently construed the 1875 Act as grant-

ing an easement rather thana fee. For example,

the first general right of way circular of January

‘18, 1888 (12. L. ‘D. 423, 428) expressly declared —

that “the Act of March 3, 1875, is not in the

nature of a grant of lands; it does not convey an

estate in fee * * * It is a right of use only,

‘the title still remaining in-the ‘United States.”

‘Essentially similar statements are to be found in

the railroad right of way regulations. of - March

21, 1892 (14 L. D. 338, 342), November 4, 1898 (27

L. D. 663, 664), February 11, 1904 (32 L. D. 481,

482-483), and May 21, 1909 (37 L. D. 787, 788). -

The coritemporaneous decisions of the Land De- -

partment likewise. refer to the 1875 grant as a

-“*mere easement” (19 L. D. 588, 590), as ‘an -

incorporeal hereditament, an easement and not the _

_ land”’ (20 L. D. 131, 132), as ‘‘in the nature of a

mere easement” (32 L: D. 33, 34). And, as this -

_- Court has said on more than me accasion, “the

a. contemporaneous construction ofa siatute by those

charged with its execution, especially when it has

long prevailed, is entitled to great weight, and —

~ should not be disregarded or overturned’ except. — —

for cogent reasons, and unless it be clear that such

* eonstruction is erroneous.”” United States’ -v.

Johnston, 124 U. S.. 236, 253; United States V.

“Moore, 95 U. S. 760, 763 ; Brewster v. igs tuaal

U. S. 327, 336.-

2. Congress, too, has construed the 1875 nf as

eying an easement rather than a fee. For

| example, the Acts of June 26,; 1906, c. 3550, 34 |

‘Stat: 482, and February*25, 1909, ¢. 191, 35 Stat.

647, declaring a forfeiture of unused rights of |

way, state that the lands covered thereby shall be

“freed and discharged from. such easement.’”’ 7

Such cleay-cut legislative pronouncements on the |

. meaning‘of the 1875 Act are aids to the construc-

tion of: that - Act. Tiger v. Western Investment

Co., 221 U, 8.286, 309; United States v. Freeman,

. 3 How. 556, 564-565 ; McFadden vy. Mountain

View Min. & Mill. Co., 97 Fed. 670, 677. (C. C..A.

~ 9, 1899); Northern Pacific Railway v. a ;

188 U..S. 526, 533-534. :

D. Because of the distinctive. ‘ines in he

- 1875..Act, and also because of .the sharp change —

" sin congressional policy in 1871, cases construing

grants made prior to 1871 as vesting a fee in

’ the railroads are without force. These important

_- differences between the 1875 Act and the earlier —

land grant acts were not called.to this Court’s

attention in Rio Grande Ry. .v. Stringham, 239.

' U.S. 44 (1915), a ease in which the Government —

.and private owners were not represented. Hence,

the statement there made, by ‘way of dictum, that’

the railroads have a “‘limited fee’’ in rights of way

acquired under the 1875 Act should be reexamined. —

A repudiation of that dictum by a decision hold---~

ing that the 1875 Act grants the railroads an’

easement rather than a fee will not disturb land

titles; it will merely restore a rule of property

_ which existed between 1875 and 1915, the period

during which most of these rights of way were

acquired. a '

+ IT pe ;

Bit even if it be determined that the Railroad

has a “limited fee” in its right of way, it does

not necessarily follow that such a ‘“‘fee’’ includes

the right to extract oil and other minerals. The

as 7 purposes - of: Congress are accomplished if the.

‘grant is held to be a “‘fee’’ in the surface and so —

‘much of the subsurface as is ntcessary for sup- ~

port—a_ ‘‘fee’’ for a railroad thoroughfare ex-

clusively. Cf: Western Union Tel. Co. v. Pennsyl-

vania R. R., 495 U.S. 540, 570. . Since such ‘an

interest would accomplish the purposes of Con-

gress, this is’ the largest’ interest which: the appli-

cable rules of construction will permit to gs

under the Act. Caldwell v. United Stategy 250

U.S. 14, 20-21. Under such a ed Sal

_ railroad is restricted in the use of the land except

asa railroad thoroughfare. The right. to use and

extract minerals is a use of the land not permitted ~

to the. railroad. Of. Union Missionary Baptist —

Church v. Fake, 179 Okla. 102; Jordan v. Gold.

man, | Okla. 406, 453. é :

ARGUMENT _

THE RIGHT OF WAY GRANTED BY THE ACT OF MARCH 3,

. 1875, IS IN THE NATURE OF AN EASEMENT

Julvodnition. —The present: suit was instituted -

_ by the Government in order to obtain a determi-

the --

7 oy

_ nation of the nature and scope of the grant made °

by the Act. of March 3, 1875. Until recently, the.

question whether the 1875 Act conveyed an abso-

_ lute fee, a limited fee, or simply: a surface ease-

7 ment was. not of great practical consequence, |

since under . any of the theories the Railroad’s ~

control of the surface was complete, and only the

surface rights were of importance. But with.the —

recent discovery of oil in Glacier County; Mon-

tana, close to the Railroad’s right of way,: the .

more -precise nature and. scope of the 1875 grant

: has become a matter’ of considerable #mportance —

~ not only to the Great Northern and other rail-

roads with similar grants, but alsé to the Govern-

‘ment and other owners of land aniooent to the rail-

road rights of way. .

uested the Department of the Interior for an.

_. Opinion respecting its rights to the minerals under- —

lying -its.right of way. The Department con-

cluded that the Act of March 3, 1875, conveyed

no right to ‘use the right of way in order to

— drill and. remove subsurface pil and title or in-

terest in such oil. 56 I. D. 206, 214 (1937) ‘The

Railroad, however, declared its intention to com- .

mence drilling operations notwifhstanding the

_ decision (R. 5), and reasserted its claim and

__intention in its answer tothe Government’s com-

plaint (R. -9). With the Government’s allega-

tions of fact admitted by the Railroad (R. 7-10),

the motion for. judgment on the pleadings (R. 10)

To resolve the question, the Railroad, in 1937, :

he Railroad the subsurface sinenale®

A. The language of the 1875 Act shows that

only-an easement, was granted.—Section 1 of the

Act does not grant “a” right of way. It grants

“the” right of ‘way through the. public lands of

the United States. This language, while not. con-

clusive, would seem to indicate that Congress in-

tended to grant the incorporeal ‘‘right’’ to lay

tracks across the public: -domain and not a: ‘cor-

poreal “stri ip of land."’ That Congr esS Was grant-

ing the railroads the right to use and occupy the

public lands, and not the lands themselves, is

‘further ev idénced by, the language of Section ‘ 2, .-

which declares that any railroad whose* right of

jorwineneamene

* Many legnl- eubdivisions crossed by: railroad rights of

way have since been paterited to homesteaders, stock-raisers,

apd: fniners. This fact suggests an additional question

whether these subsequent patentees have not thereby. suc-

‘ceeded to the mineral rights of the Government in the lands‘.

-thus patented. But inasmuch as the United States still owns

thousands of acres of unpatented land along the Great

Northern and other railroad rights of way, it is in a position

to. litigate the scope of the 1875 Act w ithout raising at this

time the legal effect, of. particular: patents in specitic cases

"(R. 134-136). It may be saidsin passing that the solution

to the question whether the Government’s mineral rights ‘in

particular parcels have. passed to individual patentees. will

depend on the language of the statute under whic}z the patent

was issued, on the classification of the land at the time the

pateat was issued, and on the nature of the interest, which

» this Court ultimately decides was granted to the railroads

under the 18% car

| ee

way passes through a 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 purposes of its road, in

-common ‘withthe road first located.”” In other

words, the Act confers a right of ‘“‘use and oc. -

. cupaney”’ which in some instances must be shared

_ “in common”? with other railroads.

Finally, and significantly, Section 4 requires

the jocation of each right of way to be noted on

the\ plats in the local land office, and ‘‘thereafter

all guch lands over which such right of way shall

,shall be disposed of subjevtt to such right

of way.” ‘io construe the right of. way grant as .

in the land would be to rob this provision

] as It surely would have been novel,

are to be conveyed **subject to” the prior grant.

in fee. As the court below pointed out, apter

words to indicate an intent. to convey an easement

~ would be difficult to find (R. 129).

- That thig was, in. fact, the precise intent of

Section 4 is clear. Congressman Slater, in dis-

‘cussing the Nason why the Public Lands Com-

mittee had inserted a similar clause in a special

right of way y bill under consideration in 1872, said:

_ Mr. Starter. The point [of this clause]

is simply this: the-land—over which: this

right of way passes is to’be sold subject to

the right of way. It simply provides that

this right of way shall be an incumbrance

‘ upon the land for one hundred feet upon

each side of the line of the road; that those

who may afterward make locations for

settlement shall not interfere with this

right of way. .

Mr. Speer of Pennsylvania: It grants

no land to any railroad company f |

Mr. Stater. No, sir

. The 1875 Act becomes a Sanitibinn whole if See-

tion 1 be construed as conferring on the railroads

an easenient; to construe it as granting a fee

would be to deprive this provision ‘ Section 4

_ of all meaningful‘content.

Even were the words of the Act of 1875 less siiews

it is well settled that any ambiguity in a grant is .

to be resolved in favor of the sovereign grantor.*

This rule is applicable to the 1875 Act. Caldwell

v. United States, 250 U. S. 14, 20-21; United States

' v. Minidoka & S. W. R. Co., 190 Fed, 491, 494

(U. C.A.9, 1911). In the Caldwell case, the appel-

lants contended that the.1875 grant of timber for

railroad construction included the refuse or tie

slash from felled trees. In rejecting that interpre-

_ tation, this Court said (pp. 20-21):

* Cong. Globe, 42d Cong., 2d Sess., 2137 (1872).

* Barden v. Northern Pacific Railroad, 154 U. S. 288, 326;

Siouw City de: Railroad v. United States, 159 U. S. 349, 360;

Wisconsin Central R’d v. United States, 164 U. S. 190, 202;

Charles River Bridge vy. Warren Bridge, 11 Pet. 420, 545—

546. -,

The contention of appellants encounters

the rule that statutes granting privileges or

relinquishing rights are to be strictly con-

strued ; or, to express the rule,more directly,

that such grants must be construed favor-

- ably: to the| Government: and that nothing

. passes but what is conveyed in-clear and ex- '

plicit language—inferences. being resolved

not against but for the Government. Wis-

consin cet R. R. Co. v. United States,

164 U. 8. 190; United States v. Oregon &

California R. R. Co., 164 U. 8.526. * * *:

The rule, it seems to us, is particul -

plicable. There was a grant of ti 4

the Act of March 3, 1875, not of trees, but of

timber for purposes of railroad construction,

not as a means-of business or of profit; nor

could it be made an element, as contended,

of compensation to the agents employed to.

cut it.

If the timber grant in the 1875 Act does not include

tie’slash, there seems to be no reason why the right .

of way grant should be construed to include subsur-

face minerals. Tlie rule of ‘‘liberal construction’’

for which petitioner contends (Pet. 23-25) is

applicable ‘only when necessary to carry out the .

_ purposes of the Act. Cf.'U nited States v. Denver -

&c, Railway, 150 U, 8.1, 14; Nadeau v. Union Pa-

eifie R. R. Co., 253 U. 8. 442, 444. Plainly, in an

~ act designed to permit railroads to lay their tracks

- across‘the public lands of the United States, it is

not necessary to construe a right of way grant as -

433589—42——_8

oH , ; os

44 - 4

including. fuel oil for railroad locomotives (ef. \

Pet. 43-44).’ .

"Nor ean it be argued that railroads, in order to

operate efficiently, must have a fee in their rights -

of way. Petitioner conceded in its brief in the

_eourt below (p. 61) that railroads, when they con-

demn land for rights of way, ‘‘do not acquire min-

eral rights or full fee ownership.”” Ifthe railroads

do not need a fee in those portions of their rights of ,

way acquired by eminent domain proceedings, and

. the courts have so held,* the need for a fee in‘ those

portions of their right of way acquired under the « ~

1875 Act is no more compelling.’ Hence, it scarcely

can be said that the purpose of the 1875 gtant will

be frustrated*if it be construed as conveying an

easement rather than a fee. This will merely give

to the grant the same meaning which is commonly

given to deeds conveying a right of way for railroad

purposes."

pe. ~ -+6F Cin Circular Instructions of August 29, 1885, 4 L. D. 150,

151, stating that “no public timber is permitted to be taken .

or used [under the 1875 Act] for fuel by any railroad com-

pany.” And, of course, Congress could hardly have in-

tended i in 1875 to give oil to the railroads since oil as Joco-

’ motive fuel was then unknown.

* E. g. Quick v. Tayior, 113 Ind. 540, 542 (1887) ; Railroad

Co. v. Schmuck, 69 Kan, 272, 276-277 (1904) ; Keown v.

Brandon, 206 Ky. 93 (1924) ; Hall v. Boston & Maine Rail-

road, 211 Mass. 174, 176 (1912); Roberts v. Siour City &

P. R. Co., 73 Nebr. 8, 14 (1905); Washington Cemetery v.

P.P.& C.1:R.R.Co., 68 N. Y. 591 (1877).

* The weight of authority supports the view that rail-

roads acquire only an easement and not a fee where the ~

granting clause of the deed-declares the purpose of the grant

to be a right of way for a railroad. See Magnolia Petroleum

—————— 7 . .

16 re

- B. The legislative background and history of the -

1875 Act show that the grant was of an casement

rather than a fee— ~ \

1{ The year 1871 marks the end of one era and

the beginning of a. new in American land-grant

-history. In that year. the policy of lavish grants

of land to encourage railroad ‘construction was re-

placed by a new policy of severe restriction of fed-.

‘ eral munificence in respect of railroads. |It is in

the light of this shift that the Act of 1875 must be

read, for it is well rgcognized that railroad grants

“fare to receive such a construction as will carry

out the intent of Congress,’’ and to ascertain that/ -

- intent courts ‘‘must look to the condition of the

country when the acts were passed.’”?’ Winona &

St. Peter R. R. Co. v. Barney, 113 U. 8. 618, 625;

. United States v. Denver &c. Railway, 150 U. 8. 1,

14; Minidoka & S. W. R. Co. v. Weymouth, 19 -

Idaho 234 (1911). ‘Courts, in construing a stat-

ute, may with propriety recur to the history of the

times when it was passed.’’ United States v.

Union Pacific R: R..Co., 91 U. 8. 72, 79; Smith 'v.

‘ Townsend, 148 U. 8, 490, 494.

rie

\ That there was a marked change in land-grant ao

policy in 1871 is not open to dispute. The first im-.

, portant grant of public lands for railroad purposes

was made to the Illinois Central in 1850,’ . During

‘the next two decades “‘there passed into the hands .

Co. v. Thompson, 106 F. (24) 217, 227 (C. C. A. 8), and cases

Abere cited, reversed on other grounds 309 U. S. 478.

*Act of pre “ae 1850, c. 61, 9 Stat. 466.

"16

of -western railroad promoters and builders a total

of 158,293,000 acres, an area equaling that of the

- New England states, New York, and Pennsylvania

combined.””** The largest of these grants (40,-

- 000,060 acres) was made to the Northern Pacific

_, Railroad Company by the Act of July 2, 1864, e.

- 217, 13 Stat. 365. That Act, in addition to provid- .

ing a 400-foot right of way from Liake Superior to

Puget Sound, also granted the altérnate odd-num-

bered sections of public lands for 40 miles on each

side of the railroad, with indemnity provisions for

lands already sold, homesteaded, \pre-empted, or

otherwise disposed of. It is thus apparent that

Congress in 1864 was willing to grant lands in ‘‘al-

most any amount” ™ to encourage the construction

of transcontinental railroads. Faced with such an

| open-handed congressional policy, the courts have

~ construed sueh early grants as conveying to the

railroads a fee. in their- rights of way.”

But there was soon a public reaction against such

legislative beneficence. In the late ’60’s land re-—

formers began to condemn land grants “‘as incon-

sistent’ with the: free homestead idea.’’” The

abuses accompanying the lavish land grant policy

"4 Statement by Represuntative Thaddeus Stevens duri

the debates on the Northern Pacific Bill, Cong. Globe, 38th

Cong., ist sess., 1698 (1864).

18 Northern Pacific Ry. v. Townsend, 190 U. S. 267,271. See

‘3 “Land Grants,” 9 Encyclopaedia of the Socal A,

(1983), p. 35. ing

infra, pp. 30-31.

**SLand Grants to Railways,” 3 Dictionary of. American

Hipery (1940) , p: 237. .

” pailroad in the State of Alabama,

of the two previous decades finally meme “sonu- |

' merous and so apparent that land grants as a form:

of subsidizing internal improvements ceased with

1871.”"* The public sentiment promptly found

congressional expression in the following Resolu-

tion adopted by the House of —— on

March 11, 1872:

Resolved, That in the ‘iets of this

House ‘the policy of granting subsidies in

public lands to railroads and other corpora-

tions ought to be discontinued, ‘and that

every consideration of public policy. and

equal justice to the whole people requires ©

that the public lands should be held-for the

purpose of securing homesteads to actual

settlers, and for educational pagan, as

may be provided by law.”

Although unwilling after 1871 to make outright

grants of land to private railroad companies,

Congress did not wish fo paralyze the develop- —

ment of an integrated system of railroads. And

since thé Government had not yet disposed of vast

areas of land in the West, paralysis. of develop-

ment would have ‘resulted Congress. refused.

- to permit the railroads to lay their tracks across

~ ¢“Land Grants,” 9 Encyclopaedia of the Social Sciences

(1988), p. 35; see also Bogart, E¢onomie History of. the

United States (Sled, 1918), p., 351: |

* Cong. Globe, 42d Cong., 2d

. Rep. No. 10, 43d Cong., 2d Sess. (1874), p. 1 (Ser. No. 1656) :

“The Committee on the Public Lands, having considered the

’ bill (H. R. 2782) to grant lands to aid in thte construction of a

are of opinion that.new

, 1585 (1872), Cf. H.

t _ | 7 .

the public lands of the United States:.* To meet

this situation the “orty-second and Forty-third

Congresses (1871-9875) passed a number of special

acts granting to designated railroads simply ‘the

right of way” through the publie lands of “the

: United States.” And finally in 1875, in order to

avoid the need fgr special legislation for each

* new railroad, Congress’enacted the General Right

of Way. Statute involved in the instant case.

The one purpose of that Act was to grant to the

railroads a right of .passage across the public

domain, a right which céuld be acquired in no

other way while large. blocks of land were held

by a sovereign’ immune from suit. .

2. The debates preceding the enactment of the

1875 Act establish that the congressional intention,

previously formulated, was to confer upon the rail-

3 grants +f land for building railroads ought not to be made,

and therefore beg leave to report. back the bill with the rec--

ommendation that it do not pass” (the bill reported on did |

not pass). That a similar policy prevailed in the Senate

during this period is evident from the following statement

by Senator Stewart during the debate on the Great Salt .

Lake and Colorado Railroad right-of-way bill (Cong. Globe,

42d Cong., 2d Sess., 4162 (1872) ) : “We were formerly in the-

habit of granting lands to aid in the building of railroads in

the States and Territories. We have abandoned that =

icy.” See also Cong. Globe, 42d Cong., 2d Sess.,

(1872) ; 3 Cong. Rec., pt. 1, 404 (1875).

* Cf. Cong. Globe, 42d Cong., 2d stss., 1591 (1872).

' * Act of April 12, 1872, c. 96, 17 Stat. 52; Act of May

28, 1872, c. 205, 17 Stat. 159; Act of May 27, 1872, c. 220,

17 Stat. 162, 163; Act of June 1, 1872, c. 258, 17 Stat.

202; Act of June 1, 1872, c. 261, 17 ‘Stat..212; Act of June

4, 1872, c. 293, 17 Stat. 224; Act of June 7, 1872, c. 323, 17 Stat.

4 °

19°

Toads a mere right of passage rather than a* strip

of land. The statement by Mr. Scie of Illinois

_ is typical:

It simply and only gives the right of way.

It merely grants to such railroad companies

as may be chartered the right to lay their

tracks and run their trains over the public

_ lands; it does nothing more.”

The Railroad contends (Pet. 27-28) that | the aa

force of these statements is weakened since, it is

said, the character. of. the estate granted was not

under discussion ; and the statements were directed

‘simply to assurances that the Act did not also

grant a federal franchise, or charter.” But it

is significant | that the same observations were

_ repeatedly made during the debates on the special —

__ right-of-way statutes enacted between 1872 and ~

1875, in which the question of federal charters was

wholly absent. For example, in reporting a bill

"granting a right-of-way to the Dakota Grand _

280; Act of June 8, 1872, c. 354,17 Stat. 339; Act of June 8, «

"1872, c. 859, 17 Stat. 340; *Actof June 8, 1872, c. 364, 17 Stat.

‘$43; Act of June 10, 1872, c. 437, 17 Stat. 393: Act of March

a * 1873, c. 291; 17 Stat. 612; Act of June, 20, 1874, c. 348,

18 Stat.. 130; ‘Act of June 93, 1874, c. 473, 18 woe. 274;

Act of February 5, 1875, c. 35, 18 Stat. 306.

- ™8 Cong. Rec., pt. 1, p. 407 (1875). See also the statements

of Mr. Hoar (pp. 404, 406). :

* But cf. 2 Cong. Rec., pt... 3, p. 2898 (1874), where iin

_ ‘ator Stewart, in ‘commenting on the Senate version vende

_incladeda ‘franchise provision, stated that the “bill gran

the right of way simply.” And compare the statement vn

Mr. Hoar opposing the proposal to give-the. states power to

ard

Trunk Railway Company,” the committee chair-

man said: “This is merely a grant of the right of

way.’’™ Likewise, in reporting a right-of-way bill

for the New Mexico and Gulf Railway Company,”

Mr. Townsend ef Pennsylvania (the same Con-

.. gressman who sponsored the Right of Way Act of

._. Mareh‘3, 1875) observed : “It is nothing but a

\ grant of the right of way.””* Such statements,

coupled with Mr. Slater’s declaration (supra, pp. .

11412) of the purpose of the ‘‘subject to’’ clause,

warrant the conclusion that Congress intended to

grant the railroads an easement rather than a fee.

C. Sere administrative and. congressional

constructi ) confirm that only an: easement was,

_granted— \ . ]

1. It is'an dstablished rule that «the contampo- df

raneous construetion of a statute by those cha

with its execution, ‘especially when it has long pre-

vailed, is entitled to gieat weight, and/ should not :

| regulate railroad rates, Mr. Hoar insisted hat the pro- —

posal was invalid since “if the right of way ere granted —

over the public land the title to.which belongs|to the United

States and is vested in the Uni States, so that the title

ceo in the ownership by the United States of the soil,

| the use of. it by the, corporat

it is very doubtful

whether the State has authority, i

changes in the rates” (3 Cong. Rec., Pt. 1, p. 404 G))-

*# Act of June 1, 1872, c. 258, 17 Stat. 202.

* Cong. Globe, 42d Cong., 2d Sess. 3913 (1872).

~ 3 Act of June 8, 1872, c. 364, 17 Stat. 343.\ .

** Cong. Globe, 42d Cong., 2d ‘Sess. 4134 (1873). For other ©

similar statements, see Cong. Globe, 42d Cong,, 2d Sess.

2138, 2543 (1872). :

disposed, to require -—

- = :

be dinveghaded or “overturned except for cogent

reasons, and aunless it be clear that such construc-

_/tion. is erroneous.’’ United States v.. Johnston

124 U. S. 236, 253; United States v. Moore, 95 U.

S. 760, 763; Brewster v. Gage, 280 .U. 8. 327,”

. 336. Departmental circulars and regulations are

especially. persuasive. Fawceus Machine Co. v.

United States, 282 U: 8. 375, 378; Norwegian |

Nitrogen Co. v. United States, 288 U. S.'294, 315; |

- Swendig v. Washington Co., 265 U. S. 2 331; -

McFadden v. Mountain View Min. & Mill. Co., 97

_ Fed. 670, 677.(C. C. A. 9); Taggart v. Great North-

ern Ry. Co., 208 Fed. 455, 460 (E. D. Wash. 1912),

affirmed 211 Fed. 288 (C. C. A. 9).™

The earliest and most nearly contemporaneous

administrative construction of the 1875 Act con-"

’ firms that the Railroad was granted an easement

rather than a fee. The first general right of way. -

circular of J anuaty 13, 1888, stated (12 L. D. -

428):

The act of Mareh 3, 1875, is not in the

riature of a grant of lands; it does not con--

vey an estate in fee, either in the “‘right of -

way”’ or the grounds selected for depot pur-

** Petitioner suggests (Pet. 41) that the administrative in-

terpretations are irrelevant since. they follow the Act of

1875 by at least 13-years. But the rule relating to the weight —

to be given to administrative construction is not dependent

on strict’ contemporanéity. Cf. Swendig v. Washington Co.,

supra, where the statute preceded the administrative con-

struction by 11 years.

>) ies

f 20

"poses. It is a right of use only, the title still

remaining in the United States. * * -* .

All persons settling on public lands~to

which a railroad right of way has attached,

take the same subject to such right of way |

and must pay for the full area of the sub- .

division entered, there being no authority

to make deductions in such cases.”

These same provisions are repeated in the right

of way regulations of March 21, 1892, 14 L. D. 338,

342. The next revisions of November 4, 1898 (27 ~

_ L. D. 663, 664), and of February 11, 1904 (32 L. D..

481, 82) disclose slight changes in’ phraseology but

the. basic thought is the same.” In the depart-

mental regulations of May 21, 1909, appeared per- 4

haps the clearest of statements relating to thinter-

“ests acquired under the 1875 Act (37 L. D. 787,

Wi oo ae ——"

1. Nature of grant.—A railroad company

to which a right of way is granted does not

secure a full and complete title to. the

- on which the right of way is located. It

obtains only the right to use the land for the

purposes for which it is granted and for no

* Cf. Circular of June 27, 1900, 30 L. D. 325, 327, which

. uses similar language in describing the canal and reservoir

. rights of way granted by the Act of March 3, 1891, c, 661, -

‘sec. 18, 26 Stat. 1101.

* The changes in phraseology , especially those in the 1904

regulations, seem directly traceable to language used by this ©

Court in describing a land grant right-of-way. Northern

Pacific Ry. v. Townsend, 190 U. S. 267 (1903). Cf. Melder

vw. White, 28.1. D.412 (1899), which also defined the North-

_ ern Pacific right-of-way as a base or qualified fee.

: = . - ‘ ed

other purpose, and may hold .such posses-

sion, if it is necessary to that use, as long

__and only as long as that use continues. The

Government conveys the fee simple title in

the land over which the right of way is

- granted to the-person to whom patent issues

for the legal subdivision on which’ the right

of way is located, and such patentee takes

the fee, subject only to the railroad com-

pany’s right of use and possession. All °

persons settling on a tract’of public land,

to part of which right of way, has attached,

take-the same subject to such right of way,

‘and at the total area of the subdivision

entéred, there being ug authority to make

deduction in such cases.

And the departmental regulations thus senisibaiiind .

the Act of 1875 are further confirmed by decisions

of the Land Department in which the 1875 grant

has been construed as a “‘mere easement, ”? as “an

incorporeal heriditament, an easement and not the

land,’? as ‘‘in the nature of a mere easement,’’ as

‘merely an easement,’ ”-and similar phrases.”

719 L. D. 588, 590 (1894) ; 20 L. D. 131, 132 (1895) ; 32

L. D. 33, 34 (1903); 35 L. D. 495 (1907) ; 44 L. D. 552,

(856 (1916). Patents issued to settlers on lands crossed by

. railroad rights-of-way have consistently included the entire

' legal subdivision, generally with a notation that it was

issued “subject to” the right-of-way. Seé 4 L. D. 523, 524 |

(1884) ; 8 L. D. 115, 120 (1889) ; 19 L. D. 386, 388 (1894) ;

20 L. D. 131 (1895) ; 23 L. D. 67 (1896) ;26 L. D. 77 (1898) ;

27 L. D. 480° (1898); 29 L. D. 478 (4900); 32 L. D. 33

~ (1903) ; 46 L. D..429 (1918). _ Similarly it has been held that

the railroads do not acquire a fee in, but only the use of, 20

_. It is plain, then, that. the 1875 Act was contem- -

poraneously construed by the Department of the

Interior in its right of way circulars and its deci-

sions as merely granting to the railroads a right to

“fuse and occupy” the land for railroad purposes, —

. with the fee remaining in the United States or its

subsequent grantees. These are the regulations

ind the decisions which were in force when the.

reat Northern Railway Company and other non-

- land-grant railroads in the West acquired their

rights of way across the publie lands of the United

States.

It is true that this uniformity of icbairsinetithons |

was broken in 1915 on the heels of the decision i in

res for their station grounds. 4 ae | 523 (1884) ; 4

D. 525 (1886) ; 32 L. D. 311 (1903) ; 35.L. D. 495 (1907) ;

ef. Circular Instructions of March 9, 1878, 5°Copp’s Land- ~

Owner 35, 36 (1878), requiring proper affidavits to be fled.

_\. before a company “may obtain the use” of grounds for sta: -—

tion purposes; see‘also Circular Instructions of November

7, 1872. 6 Copp’s : -Land-Owner 141, 144-148, -155 (1879).

Petitioner’s suggestion (Pet. 41) that the administrative .

construction loses force because of a supposed failure to

discriminate between the grant of the Act of 1875 and

similar granting acts, on the one hand, and the pre-1871

acts on the“other, is not’ justified. Thus, for, example, in 28

‘L. D. 412 (1899), Assistant Attorney General Van Devanter

.described the Northern Pacific (1864) right-of-way as “a

base « or qualified fee,” but at the same time recognized that

the special Act of July 4, 1884, c. 179 (23 Stat. 73), granted

“gnly n easemént.” And i in 32 L. D. 33, 34 (1902), he like-

wise rved that it was “well-established that the right.

of way\through the public lands granted to railroads”

under the 1875 and similar acts was “in the nature of a

mere ent,” i s«

Rio Grande Ry. y. tidiesiadn, 239 U. S. 44." ‘But,

this administrative construction after 1915 cannot

_ be deemed binding upon the Department of In-

-. terior since it was impelled by the. apparent (al-

- though, we urge, erroneous) compulsions of the

- Stringham case. Hartley v. Commissioner, 295

U.S. 216, 220; Helvering v. Halldck, 309 U. 8. 106,

121.. And in any event, earlier decisions, being

more nearly contemporaneous with the 1875 stat-

ute and evidencing a long-continued and uniform

construction until 1915, are a more reliable index

of the armage intent and are accordingly more

persuasive.” Fawcus Machine Co. v. United

States, 282 U. 8. 375, 378; Norwegian Nitrogen Co.

v. United States, U.S. 294, 315. ;

2. This Court has frequently recognized that

‘subsequent legistation may be considered to assist

in the interpretation of prior legislation upon the

same subject.” Tiger v. Western Investment Co.,

** Compare 14 L. D. 105 (1892), 35 L. D. 495 (1907), and

45 L. D. 473 (1916) with 51 L. D. 27, 305 (1925), 51 L. D. 131

_ (1925), 51 L. D 604 (1926), 53 I. D. 270 (1931), and 58

_ 1. D.339, 340 (1981). ‘

*°Tt should also, be noted that, at least indirectly, the

earher adtninistrative construction received congressional

approv al and adoption. By the Act of March 3, 1891, c. 561

_ (26 Stat. 1101), Congress granted canal and reservoir, com-

panies rights of way across*the public domain, and in doing

. 80 repéated the language of the 1875 Act. And by the Act

: of March 6; 1896, ¢. 42 (29 Stat. 44), Congress made the 1875

- «Act partially. applicable tothe Colville Indian Reservation.

These statutes are, in effect, legislative reenactments of the

. 1875 Act, and.as such may be said to constitute adoption

221 U. 8286, 309; Cope v. Cope, 137. U. 8. 682, 687.

«#-* * if it can be gathexed from a subsequent

statute in pari materia, w meaning the legis-

lature attached to the words ‘of a former statute,

‘they will amount to a legislative declaration of its

meaning, and will govern thé construction of the

first statute.”’’ United States v. Freeman, 3 How.

556, 564-565. Or; as the Ninth Circuit has tersely

put it, ‘‘the legislative constructién of its own act

is always potent.’’ McFadden v, Mou tein Vite

"Min. & Mill. Co., 91 Fed: 670,677, /

An examination of subsequent legislation plainly

_ reveals that Congress has constryed the 1875 Act

as granting an easement rather than a fee. For -

example, the Act of June 26, 1906, ¢. 3550, 34 Stat.

482, declaring a forfeiture of unused =", of way,

provides : :

Be it enacted * * * That each and

every grant of right of way and station

unds heretofore made to any railroad

Eeporation under the [1875] Act * * *

ere such railroad has not been constructed

of ‘a intervening ° administrative construction. See Na-

tional Lead Co. v. United States, 252 U. S. 140, 146; Me-

Caughn v. Hershey Chocolate Co., 283 U. S. 488, 492-493;

Massachusetts Mutual Life Ins. Ce. United States, 288

U. S. 269, 273. The situation is not eitetantially different

‘from that presented in- the’ National Lead case, supra, in

which this Court held that congressional extension of the

‘ usual tariff drawback provision to another commodity con-

. stituted implied legislative approval of the administrative

interpretation of the drawback provisions then in force in

respect of other articles. ~ ,

and the period of five years next iollowing

the location of said road, or any section

thereof, has now expired, shall be, and hereby

is, declared forfeited: to ‘the United States,

‘to the extent of ahy portion of such located

line now remaining unconstructed, and the’ :

United States hereby resumes the ful title

to the lands covered thereby freed and dis-

charged from such pooner %, and the for- °

feiture hereby declared shall, without need

of further assurance or conveyanee, inure.

to the benefit of any owner or owners of land

heretofore conveyed by the United States

subject to any suclr grant of right of way or

station grounds -* * *,°°

On this same day Congress. enacted another

statute confirming the rights of way which certain .

railroads had acquired under the 1875 Act in the

Territories of Oklahoma and: Arizona. Act of.

June 26, 1906, c. 3548, 34 Stat. 481. The committee

reports, explaining the purpose of this legislation, _

contain the following pertinent description of .the |

1875 Act: P pre us

_ The right as originally conferred and as

proposed to be protected by this bill simply

grants an easement or use for railroad pur-

poses. Under the present law wherever the

railroad passes through a tract of public

’ land the entire tract is patented to the settler-

or.entryman, subject only to this easement.

—_— |

* The same language is repeated in the forfeiture Act of

February 25, 1909, c. 191, 35 Stat. 647..

The present bill does not in any al enlarge

the nature of the right conferr ,

: And finally the Act of May 21, 1930, ec. 307, 46

. Stat. 373, 30 U. S: C. see. 301, states that:

Whenever the Secretary of the Interior |

_-shall deem it ‘to be consistent with the public

interest heis authorized to lease deposits of

oil and gas in or under lands embraced in

railroad or other rights of way acquired

under any law of the Onited.States, whether |

the same be a base fee [e. g. Northern Pacific

right-of-way ?] or a mere%asement [e.,g.

Great Northern riglit-of-way?] * * *

While ‘this 1930 statute loses. some of its pro-

bative value by reason of the’ fact that it was

enacted 55 years after the 1875 Act’ was passed

and also because it may have been influenced by

the dictum in the Stringham case, we submit that

the 1906 statutes are subject to no such infirmities.

Especially are ‘these earlier statutes pertinent 7

since they are approximately contemporaneous

with the acquisition. by the Great Northern and

its predecessor of large segments of its present

right of way. See Record pp. 4, 7; see also, Tag-

gart v. Great Northern Ry. Co., 208 Fed. 455, 457

(E. D. Wash.), affirmed 211 Fad. 288 (C. C, A. 9).

‘Statutes enacted. between the time a grant is made |

and the time it takes effect may be considered in

|" H. Rept. ‘No. 4777, 59th Cong., 1st Sess:, p. 2 (Ser. No.

4908) ; ef: Sen. fRept. No. 1417, 59th Cong. ist Sess., p. 2

(Ser, No. 4904).

determining the scope of the original grant.

Northern Pacific Railway v. Soderberg, 188.U. 8S.::

526, 533-534. And this is true ever though the

subsequent statutes modify the original grant,

_ which is not the fact in the — case.. Hence,

if the phrase “right of way’? was theretofore

ambiguous, the 1906 statutes remove the ambigu-

_ ity and make it clear that the 1875 Act granted

an easement and nothing more.”

D.. Summary. —In short, the deslithinge of the

‘#875 Act with its “‘subject to’’ proviso, when read.

-in connection with the Icgislative purpose of the

statute and the then prevailing congressional land- _

" grant policy, and when viewed in the light of its —

subsequent administrative and legislative con-

struction, establishes that the Act should also be

- construed by the courts as granting the railroads

an easement rather than a fee in their rights of

way. If the foregoing analysis of the 1875 statute

be eorrect, it will follow as of course that the sub-

' surface minerals were not conveyed to the rail- .

roads.’ ike

Petitioner i in advancing the contrary contention

_ relies for the most part upon a-series of decisions —

of this Court (Pet. 29-33) arising under the rail-

' road right of way and land grants of 1850-1871.

Petitioner urges that, since the 1875 Act is sub-

Wie! addition, as we Mave aeted pS Rian: p- 26, n. 29)

there has been an implied legislative endorsement ‘of the

administrative construction by virtue of partial reenactment. °

9 :

stantially identical to the pre-1871 grants, it should

be identically construed (Pet. 34-36).

None of these cases involved the issue whether

the railroads’ rights, whatever their, precise na-

ture, include title to subsurface minerals.” -And -

in any event, we submit that petitioner’s argument

based on these cases fails because it disregards the

essential differences between the 1875 Act and its

predecessors. These differences rest, as we have

noted,’ in the distinctive -language of the 1875

grant (supra, pp. 10-12) and in the sharp change

in congressional land-grant policy in 1871 (swpra,

- pp. 15-19). No provision comparable to thie “sub-

_ ject to” clause of Section 4 of the 1875 Aet is

to be found in the land-grant acts of 1850-1871;

its appearance coincides with the eatabliqhment * ie

the new legislative policy.” |

But even if the language of the 1875 Act were

identical with that of the 1850-1871 grants, which

it is not, the legislative background warrants a con-

*3 Petitioner. states (Pet. 4, 29) that Rio Grande Ry. v.-

Stringham, 239 U. S. 44, “involved a question whether the |

_” railway company coild enjoin the removal of minerals under-

lying its [granted] right of way strip.” - The railroad had, -

however, instituted a suit to quiet title to its right of way;

the defendant's claim to’the land derived solely from his

purchase of surface rights' from a placer mine patentee.

_ See tnfra, pp. 32-33. +

+ “The “subject to” provision first appeared in the Port-

land, Dallas and Salt Lake right of way Act of Fain 12,

1872, 17 Stat. 52. -

” tn

‘Bl. \{ “i

‘struction of the 1875 Act different from the earlier

grants. For it is plain, and this Court has so -

held," that the meaning of words i in a grant varies

according to the time and circumstances, of their

Atteranee. And, as we have pointed out (supra,

pp. 15-19), the time and circumstances of the 1875

grant were in sharp contrast to those of the grants

between 1850 and 1871.-

It is true that this Court in Rio Grande Ry. v.

Stringham, 239 U. 8. 44, 47, stated that the inteyest.

granted by the Act of 1875 was ‘neither a mere

easement, nor a fee simple absolute, but a limited

fee.”’ But that statement was ‘not necessary to

‘the decision and is not decisive of the instant

*® An unreserved grant of swamp land has been held to in-

clude a grant of mineral lands (Work v. Louisiana, 269.0. 3S

250), while-an unreserved grant of school lands was held no:

to pass title to mineral lands lying in the section described in-

* the grant (United States v. Sweet, 245 U.S. 563). The Court

in Work y. Louisiana expressly distinguished the Siect case

on the ground that at the time of.the grant there in con-

troversy, there was.a settled congressional policy of re-

serving mineral lands, while there was no such settled policy

at the time of the grant eonsidered in Work v. Louisiana (pp.

258-259). The Court also distinguished the Swe?t caséson

the ground that there was, in respect-of the grant involved

in Wor® v. Louisiana, no settled departmental construction

of the swamp land Acts and no subsequent congressional in-

terpretation (p. 259). Both these factors are present in the

instant case (supra,spp-21-29). And compare the Sweet

case with Cooper v. Roberts, 18 How. 173, where the grant of

school lands was helt to pass title tc tnineral lands. Here

again, the Céurt distinguished identical grants in part\on

the ground of a shift in legislative policy. See the Sweet

case at p. 574. Cf. Northern Pacific Railway v. ree :

188 U.S. 536, 533-534.

q .

ease. In the Stringham ease, the plaintiff railroad .

brought suit to quiet title to a strip of land ac-

quired by it under the 1875 Act.’ Defendants as-

setted title to the same strip of land by virtue of a -

purported purchase of surface rights from a placer |

- mine claimant. Rio Grande Ry. v. Stringham, 38

Utah 113, 116, 110 Pac. 868, 869-870' (1910). The

Supreme'Court of Utah reversed the judgment of

pe trial court, and remanded the case with a diree-

on ‘‘to enter.a judement awarding to the plaintiff

title to a right of way over the lands in question.”

The trial court accordingly entered ‘judgment de-

: elaring plaintiff to be the owner of the right of

way. The plaintiff again appealed, asserting that

it should have been adjudged ‘“‘owner in fee simple. -

of the right of. way over the premises:’’ Rio .

_ Grande Ry. v. Stringham, 39 Utah 236, 115 Pac.

967 (1911).. The-Supreme Court of Utah affirmed

the judgment of the trial court on the grouyd th that 7

the plaintiff should have sought its remedy by peti-

tioning for a rehearing of the earlier case... The ©

. plaintiff. thereupon brought up both judgments to ~

_ this Court by writ of error: This Court held that

the writ of error addressed to the second judgment

presented nothing reviewable (p. 47). ‘It affirmed

the first judgment since it “describes the right in

the exact terms of the Right-of-Way Act and evi-

3 _dently uses those terms -with the same meaning

_ they have i in the act”’ (p. 48).

It is, therefore, clear that the issue now before ..

' this Court was not squarely presented in’ the.

Stringham case, since the defendant:claimed only.a

. surface right which conflicted with the plaintiff’s

surface right, and since, further, the only issue: |

- before this Court was the accuracy of the language .

this Court’s conclusion that the plaintiff was owner

of a “‘limited fee’’ was based (p. 47) entirely on-

eases arising under the land-grant acts passed prior

' - to 1871 ahd containing no requirement that the

lands ‘‘over which” the right of way passed should

thereafter be disposed of “‘subject to such right of.

way.'’ These important differences in the land —

called to the Court’s attention. No.brief was filed

by the defendant in that case, by the United States

or by the other owners -of land tréssed by these

rights of way (. 45).

*In this connection- it is worth noting that in two early

cases decided at a time when. the 1871 chayige i in legislative

policy was a matter of*common knowledge, this Court de-

scribed two similar Acts as merely granting an easement.

For example, in Railway Co. v. Alling, 99: U. S. 463, 475

(1878), it was held ‘that the Act of une 8, 1872, c. 354, 17.

Stat. 339, granted to the Denver afd Rio Grande Railway

Company “a present beneficial easement.” Chief Justice

Waite, in a dissenting opinion , described it as “no

more than a license to enter upon'and use” the unappropri-

ated public lands. In Smith v. Townsend, 148-U. S. 490,

498-499, the Court declared that the Southern Kansas Rail-

way Company and its successors, under the Act of July

4, 1884, c. £79, 23 Stat. 73, “had simply an nent not

utilized in the first judgment. And, in any everit, .

grant acts and the Right of Way Act were not.

In these ¢ireumstanees we stbmit that the state-

ment in the Stringham case is not controlling.”

_ And the question is éne of sufficient importance to

the railroads, to the Govermnent, and to the other

owners of lands crossed by | these. rights of = to

warrant an examination de novo.

No settled rule of pr operty will be disturbed by.a

repudiation of the dictum in the Stringham case.

In fact, as we. have shown (supra,’pp. 21-25), a de-

cision ‘onstruing the 1875 Act as granting an ease

ment, rather than a fee will merely: restore a rule of

property which existed between 1875 and. 1915.

id since it was during that period that the Great _

thern Railway Company acquired its present.

s 4

a fee in the’ land”, that “the fee continued in the Indians,”

“all that the company received was a mere right-of-way”, ' —

and that “doubtless whoever obtained title from the gov-

ernment to an¥ quarter section ,of land through, which

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

tract subject to the casement of the company; and if.

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

‘railroad conipany the easement w ould cease, and the full title.

to that right-of-way would vest in the patentee ef the land.” _

' Such statements, made by this Court as early‘as 1878, refute’

- petitioner’s contention “that prior to and during the period of

the. Congressional grants, the idea that a railroad might be

built upon an easement had hardly been thought of” (Pet.

. 13). See-also East Alabama Railway Company v. Doe,

114 U. S. 340. 350 (1885) ; Hazen v. Boston’and Maine Rail-

road, 2 Gray 574, 580 (1854); Blake v, Rich, ac H: 282,

283-284, 288-289 (1856)

‘7 In two subsequent cases where the 1875 postin is eta ee

as a limited fee, the statements are merely dicta basd@ on the

Stringham case. Choctaw, O. & G.R. R. Cory. Mackey, 256

U. S. 531, 538; Noble v. Oklahoma City, 297 U.S. 481, 494.

right of way, no liardship is wrought upon the Rail —

road if the construction. that. the grant conveyed an

easement rather ik fee be reaffirmed.

EVEN IF THE RIGHT OF WAY 13, A “LIMITED FEE,” IT DOES

NOT FOLLOW THAT THE RAILROAD OWNS THE MINERALS :

. We have urged (supra, pp. 32-35) that this

Court’s statement in the Stringham case that the

’ right of way’ granted in the 1875 Act is a “limited

fee”’ on an implied condition of f reverter be not re-

garded as decisive of the. instant case: But’ even ,

adherence to that definition of the right of. way does

not impel the conclusion that such a ‘‘fee’’ includes

the right to extract-oil and minerals. :'The expres-

-sion ‘limited fee’? may be used te “describe. the

durgtion of a particular estate or interest (e. g. the

duration of an easement), or if maybe employed.

to describe the use to which an estate may be put .. —

« (e. g. “for church purposes only’’).

In nohe of its decisions has this Court defined

thé terni “limited fee.””*- But the Cireuit Court .

of Appeals for the Eighth Circuit, in United States

v. Big Horn Land & Cattle Co., 17 F. (2d) 357, has

¢ nstrued these words as defining the duration of

the easement. That. court, after- -adverting to a

similar ‘statement ~by Justice. Van Devanter in.

Kern River Co. v. United States, 257 U. 8. 147, 152,

"- Nor has the Court, as we have pointed out ( a, p. 80),

ined the issue-whether whatever the nature Of the rail--

road’s interest; the grant includes title to subsurface minerals.

36 ros

that the ‘‘right ss way intended by the [Canal iad

Reservoir Right of Way{ act: was neither a mere

-easement nor a fee simple absolute, but a- limited

fee on an “implied condition of reverter,’’ said (p.

365) :

Of course it is clear that Mr. Justice Van -

Devanter used the expression ‘‘miere ease-—

ment’’. in its’ restricted sense, implying

little more, if any, than a license, for it is

well settled that an easement may include

‘afee 9? *,

. A fee may exist'in an snnciriinienl heredlt-

sment; and may, of course, under this prin-

_ ciple, exist inan easement. * * * Bran-—

son V. Studabaker, 133 Ind. 147, 165, 33 N. E.

98.

We think it, therefore, not onan

whether the interest or estate passed be con- ¢

_® sidered an easement or a limited fee. In

_* * any. event it is a limited fee in the nature of

| an easement. es re

‘It is well settled that an easement may be held’

in fee determinable. 2 Tiffany, Real Property (2d

ed. 1920), p. 1228; 1 Washburn, Real Property (6th

ed. 1902), sec. 146, p. 74; Jones, Easements (1898).

gee. 16, p. 14; Hall v. Turner, 110 N. C. 292, 304,

148. E. 791 (1892) ; : Oswald v. Wolf, 126 Til. 542,

548, 19 N. E. 28 (1888); Branson v. Studabaker,

133 Ind. 147, 164, 33 N. E. 98 (1892) ; Nellis v. Mun-

- The mere fact that the right of way has some

of the attributes of a fee—perpetuity and exclu- °

sive use and possession; also the remedies of the

fee, and, like it, corporeal, not incorporeal, prop-

erty”’—does not requifé® the conclusion that the

right of way is not‘an easement. New Megico v.

United States Trust Co., 172 U. 8. 171, 183; West-

ern Union Tel. Co. v. Pennsylvania R- R., 195 U.S.

540, 570. The purposes of Congress are accom-

plished if the grant is held to be a “fee”? in the | a

surface and so much of the subsurface as is neces-

sary for support—a “fee” far a railroad thorough-

fare exclusively. Since such an interést would ac-

complish the purposes of Congress, this is the.

largest interest which the.applicable rules of con-

struction will permit to pass under the Act (supra,

pp: 12-15). .Under such a construction the Rail- -

road is restricted in the use of the land except as a.

‘railroad thoroughfare.. The right to use and ex-

tract minerals is a use of the land-‘not permitted to

the railroad. Union Missionary Baptist Church v.

'Fyke, 179 Okla. 102: (1937 ); Jordan v. Goldman,

1 Okla. 406, 453 (1891). |

*Hence, ¢ ‘en though the Act be construed as

a’

granting the railroads a “limited fee’? in their

- rights-of way, it does not, follow that the railroads |

_ acquired any rights in the subsurface minerals. .

CONCLUSION

a the Right of Way Act of March 3, 1875, be

construed ‘as granting the railroads an easement ~

rather than a fee in their rights of way,.which we *

- believe to be the correct construction, it necessarily

follows that these railroads have no right, title, or

interest in thé minerals underlying their rights of

way. Even if the Act be construed as granting the

railroads a limited fee in their rights of way, this

. fee’? does not include subsurface minerals. It

therefore follows that the judgment of the court

below should be affirmed.

Respectfully,

CHARLES FAny,

Solicitor General,

NorMAN M. LITTELL,

| J Assistant Attorney General,

~ Vernon L. WILKINSON,

RicHaRp S. SaALANT,

ag! Attorneys:

JANUARY 1942.

APPENDIX

Act of March 3, 1875, ¢. 152, 18 Stat. 482, 43

U. S. C., sees. 934-939: -

' CxHap. 152. An act granting to railroads *

the right of way through the public lands of

the United States. - Agate

Be it enacted by thé Senate and House of

Representativés 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 rail-

road company duly organized under the

‘laws ‘of any 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 articles 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, from the public lands ad-

jacent to the line.of said road, material,

- construction of said railroad; also ground

adjacent -to such right of -way for station-

buildings, depots, machine shops, side- ,

tracks, turn-outs, and water-stations, not to .

exceed in amount twenty acres for’ each sta-

tion, to the extent of one station for eath

ten miles of its road. .

' Sec. 2..That any railroad company whose

right-of way, or whose track or ‘road-bed _

upon such right of way, passes through any

canyon, pass, or defile,shall not prevent any

. (39)

———— —_—

- fort

————r oor ee ET ee

* i

other railroad company from the use and

— of the said canyon, pass, or defile,

e purposes of its road, in common with

the road first located, or the crossing of other

railroads at grade. ‘And the location of

such right of-way through aby eanyon, pass,

or defile shall not cause the disuse of any@

wagon or other public highway now located.

therein, nor prevent the location through the

same of any such wagon. road or highway .

where such road or highway may be neces-

‘sary for the public accommodation; and

where any change m the location of such

wagon road is necessary to permit .the

‘passage of such railroad through any can-

yon, pass, or defile, said railroad company °

shall before entering upon the ground oc->

cugied by such wagon road, cause -the same

to Dp reconstructed at its own expense in the

. most. favorable location, and iu as perfect -

~ @ manner as the original road: Provided,

That such expenses shall be equitably di-

vided between any number of railroad com- .

panies occupying and using the same canyon,

pass, or defile... . .

* Sec. 3. That the legislature of the proper

Territory may provide for the manner in

which private lands and sory claims

on the publie lands of the United States may

be condemned; and avhere.such provision

shall not have been made, such condemnation

may be made in accordance with section

three of the act entitled ‘An act to aid in the

construction of a railroad and telegraph line

from the Missouri River to the Pacific

Ocean, and to secure to the Government the

use of the same for postal, military, and

other purposes, approved July first, eighteen

hundred and sixty-tw6,"’ approved July

second, eighteen lundred and sixty-four.

Pom

SEC. 4. That any railroad-company desir-

ing to secure the benefits,of this act, shall,

within twelve months after the location of

_ any section of twenty miles of its road, if the

same be upon surveyed lands, and, if upon

unsurveyed lands, within twelve months

after the survey thereof by the United

States, file with the register of the land office

for the district where such land is located a

profile of its road; and upon approval

thereof by the Secretary of the Interior the

, same shall be noted upon the plats in said

. . Office; and thereafter all such lands over

which such right of way shall pass shal be

disposed of subject to stich right of way:-

Provided, That if any section of said road

shall not be completed within five years after

the location of said section, the rights herein

granted shall be forfeited as to any such

uncompleted section of said road. |

Sec. 5. That this act shall not apply to any

lands within the limits of any‘miJitary, park,

or Indian reservation, or ‘other lands spe-

cially reserved from sale, unless such right

of way shall be provided for .by treaty-

stipulation or by act of Congress heretofore —

Sec. 6. That Congress hereby reserves the

| tight at any time to alter, amegd, or repeal |

this act, or any part thereof...

Approved, March 3, 1875.

SUPREME COURT OF THE UNITED STATES.

No. 149.—OcToBER TERM, —_—

Great Northern Railway Company, ) On Writ of Certiorari to.

_ Petitioner, : the United States Cir-

| vs. -{ euit Court of Appeals

The United States:of America. for the Ninth -Circuit.

[February 2, 1942.]

Mr. Justice Murrny delivered the dpinion of the Court,.

We are asked to decide whether petitioner has any right to the

oil and minerals underlying its right of way acquired under the

general right of wey moter, Act of March 3, 18%, ec. 152, 18

Stat. 482.

The United States instituted this auit. to enjoin oltihinin from

drilling for or removitig gas; oi] and other. minerals’ so situated,

and alleged in its complaint substantially that petitioner, in 1907,

acquired from the St. Paul, Minneapolis and, Manitoba Railway

all of. the latter’s property, including rights of way granted it

under the Act of March 3, 1875, a portion of which crosses Glacier

County, Montana» that petitioner acquired. neither the right to

usé any portion of: such right of way for the purpose of drilling

for or removing subsurface oil and minerals, nor any right, title

or interest in of to the deposits underlying the right,of way, but

that the oil and minerals remained the property of the United

States; and, that although no leasé had been issued to petitioner

under the Act of May 21, 1930, 46 Stat. 378, petitioner claimed

ownership of the oil and minerals underlying its right of way and

threatened.to use the right of way to drill. for and remove sub-

surface oil. nt ee,

Petitioner admitted certain allegations of tact, denied the alle-

gation that title to the oil and minerals was in the United States, ,

and asserted ‘that it proposed to drill three separate oil wells—

the oil from the first to be sold commercially, that from the second

to be refined, the more yolatile patts to be sold ang the residue to

be used’ on petitioner’s locomotives, and that from the third to be

‘used in its entirety by petitioner as fuel. :

~.Purstant to a motion therefor by the United States, judgment

wes rendered on the pleadings and petitioner was enjoined from

“using the right of way granted under the Act of March 3,: 1875,

Great Northern*Ry. Co. vs United States. !

18 Stat. 482, for the purpose of drilling for or removing oil, gas

and minerals underlying the right of way’’. The Cireuit Court.

of Appeals affirmed. 119 F. 2d 821. The importance of the ques-

tion-and an asserted conflict with Rio Grande Ry. v. Stringham,

239 U. S.44, moved us to grant certiorari. 314 U. 8S. —..,

The Act of March 3, 1875, from ve petitioner’s rights stem,

clearly grants only. an easement, and not a fee., Section 1 saenates

that the right is one of passage since it grants “the’”, not a, ‘right

of way through the publie lands of the United: Sfates’’. Section 2

adds to the conclusion that the right granted is one of use and occu-

pancy' only, r@fther than the land itself, for it declares that any

raiiroad whose,right of way passes through a canyon, pass or defile .

. ff

shali not prevent any other railroad company from the. use and

occupancy of said canyon, pass, or defile, for the purposes gf its

road, in common with the road first located’’.'

Section 4 is especially persuasive. It requires - ‘the location of —

each right ‘of way to be noted on the plats in the local land office,

and ‘‘thereafter all such lands over which such right of way shall

“pass shall be’ disposed of subject to such right of way’’.2 This re-

served right to dispose of the lands subject to the right of way is

wholly imeonsistent with the grant of a fee. As the court be-

low pointed out, ‘‘Apter words to ingjeate the intent to convey

an easement would be difficult -to’ find’’. That this. was the

precise intent of Seetion 4 is clear froni its: levistative:‘history 4

While Section 4 provides a method for securing the benefits of the

Act in advance of construction, no adequate reason is advanced

for believing that it does not Hlumine the nature of the right

granted: The Act is to be ‘interpreted as a harmonious whole. ;

1 Emphasis added. e : .

2 Emphasis added. ; :

3 This chause first appeared in, a special right of way statute, Portland,

Dalles, and Salt Lake “Act of April 12, 1872, 17 Stat.” 52. Congres¥man

Slater reported’ that bill for the Pubtie Lands Committee, afd, in discussing

the reason for the clause, said:

]

Mr. Siater: The point fof this ‘elause} is vane this: the land over

which this right of way padses is toobe sold sabject to the right ee way. it

simply provides that this might of way shall be amg ine umbrance upon th

land for one hundred fet apon exch side of the line Of the road: that those

who may afterward make ‘locations for settiement shall net interfere with

this right of: way,

Mr. SPEER of Pennsylvania: It grants no land to any railroad conipiny ,

Mr. SLaTrx: No, sir, [Cong. Globe, 42d Cong., 2d Sess., 2137 —

4The right of way may be located by construction.” Dakota, (. R. |

owney, S L. D. 1:5; Jamestown any Northe ri kd. Co, v. Jones, 177 1" 5s

25; Stalker v. Oregon Short Line, 225 U. 8 - 142...

, ; ;

’

nem 6s @ & & mata 8 @ Mm. a mm

’ a. a meee @

” >:

a ee ee. ee ee eee

* + L 7 ;

3 Great Northern Ry. Co. vs. United States. — 3

The Act is to be liberally construed to carry out its purpdses.

nited. States v. Denver, &c. Ratiway, 150 U. S.1, 14; Nadeau v.

nion Pacific R. R. Co., 258 U. 8. 442; Gt. Northern Ry. v. Steinke,

51 U. S. 119. But the Act is also subject to the-general rule of

mstruction that any ambiguity in a grant is to be resolved fav-

‘ably to a sovereign grantor—‘‘nothing passes but what is con-

eyed in clear and explicit language’’—Caldwell v. United States,

90 U. S. 14, 20-21, and cases cited. Cf. Gt. Northern Ry. v.

teinke, supra. Plainly there is nothing in the Act which may be

haracterized-as a ‘‘clear and explicit’? conveyance of the under-

ring oil and minerals, The Act was designed to permit the con-

rruction of railroads through the public léids and thus énhanece

urpose does not compel a construction of the right of way grant

s conveying a. fee title to the land. and the underlying minerals;

railroad may. be operated though its right of way be but an

asement.® acne | ;

But we are not limited to the lifeless Words of the statute and

ormalistic canons of construction in our search for the intent of

Yonrress. The Act was the product of a period, and, ‘‘courts, in -

onstruing a statute, may with propriety recur to the history of

he times when it was passed’’. United States v. Union Pacific

t. R. Co., 91 U. 8. 72, 79. And see Winona & St. Peter RR. Co.

. Barney, 113 U. 8, 618, 625; Smith v. Townsend, 148 U. 8, 490,

94; United States v. Denver, &c. Railway, 150 U. S. 1, 14.

Béginning in 1850. Congress embarked on‘a policy of subsidizing 7

aileoad construcfion by lavish grants from the public domain.® .

5 In Railway Co. v, Alling, 99 U. 8. 463; and Smith v. Townsend, 148 U. 8..

90, statutory rights ‘ef way were held to be but easements. And, it has been

eld that railroads do not have a fee in th portions of their rights of way.

quired by eminent domain proceedings. East Alabama Railway Com-

any v. Doe, 114 U. 8. 340; Quick v. Taylor, 113, Ind. 540; Railroad Co,. v.

xhmuck, 69 Kan. 272; Keown v. Brandon, 206 Ky. 93; Hall_v. Boston &

Maine Railroad, 211 Mass, 174; Roberts v. Sioux City & P. R. Co., 73 Nebr. |

8: Washington Cemetery v. P. P. & C. I. RB, B.-Co., 68 N. Y. 59}.

6 Typical were the Illinois Central Grant, Act of September 20, 1850; c. 61,

) Stat. 466; Union Pacifie Grant of July 1, 1862, ¢. 120, 12 Stat. 489;

Amended Union Pacifie Grant, Act of July 2, 1864, ¢. 216, 13 Stat. 356; and

Northern Pacific Grant, Act of July 2, 1864, ¢. 217, 13° Stat. 365. This last

rrant was the. largest, involving an estimated 4(,000,000 acres. In view of this

avish policy of grants from the public domain it is not surprising that the

tights of way conveyed in such land-gramt acts have been held to be limited

tees. Northern Pacifle Ry. Co. v. Townsend, 190 U. 8. 267. Cf. Missouri,

Kansas & Texas Ry. Co. v. Roberts, 152 U. 8S. 114. \

4 . Great Northern Ry. Co. vs. United States. _

This poficy incurred great public disfavor? which was- ebystal-

lized in the following resolution adopted by the House of aaa

oe sentatives on March, ‘11, 1872:

“‘Resolved\That in the judgment of this House the es of |

granting subsidies in public lands to railroads and other corpora-

tions ought to be discontinued, and that every.consideration of .

public polgy and equal justice to the whole people requires that

the public lands should be held for the purpose of securing home- .

steads to actual settlers, and for educational purposes, as may be |

provided by law.”’ Cong. Globe, 42d Cong., 2d Sess., 1585 (1872).

After 1871 outright grants of public lands to private railroad com-

panies seem to have been discontinued.* But, to, encourage. dével-

opment of the Western vastnesses, Congress had to grant rights to

lay track ’ across the public domain, rights which could not ‘be Se-'

cured against the sovereign by eminent domain proceedings or |

adve user. For a time special acts were passed granting to

desigfl&ted railroads simply ‘‘the right of way’’ through the pub-

lie lands of the United States. That those acts were not intended

to convey any land is inferable from remarks in Congress by those

. Sponsoring the measures. - or example, in reporting a bill grant-

ing a right of way to the Dakota Grand Trunk Railway (17 Stat. -

202), the committee chairman said: ‘‘This is merely a grant’ of

the right of way’’.’° Likewise, in reporting a right of way bill for

the New Mexico and Gulf Railway Company (17 Stat. 343), Mr.

Townsend of Pennsylvania, the same Congressman who sponsored

the Act of 1875, observed : ‘It is nothing but a grant of the right

of way’. .

The burden of this special legislation salvia Congress to adopt ;

‘the general right of way statute now before this Court. Sihee it

was a product of the sharp change in Congressional poli¢y with re-

‘spect to railroad grants after 1871, it is improbable that Congress

intended by it to grant more than.a right of passage, let alone min-

-7 See ‘‘Land Grants’’, 9 Encyclopedia of the Social Stiences (1933), p. 35;

Y ; — Grants to mnenge"s 3 Dictionary 6f American ee: (1940), p

8 Ibid. And ie Bt. Rept. No. 10, 43d Cong., 2d Sess. (1874); p p. 1 (SéF. No.

1656) recommending that a bill to Tass lands to aid in the, construction of a

railroad ot pass.. also the remarks of Mr. Dunnell in reporuns ng a special

right of way bill for the Public ‘Lands Committee, Cong, Globe, ‘ong.,- 2d

Sess., 2543 (1872), and those of Mr. Townsend, wlio was in charge f the bill

which became the Aet of 1875, in reporting to the House the Senate bill and

se substitute. Cong. Ree.; 43d Cong., 2d Sess., Vol. 3, pt. 1, 404 (1875).

: The Forty-second and Forty-third Congresses (1871; -1875) passed at least

fifteen such acts.

- 10 Cong. Globe, 42d Cong., 2d‘ Sess., 3913 (1872). ' lL

11 Cong. Globe, #a Cong., 2d Sess., 4134 (1872). See also p. 2543.

Great Northern Ry. Co. vs.-United States. — 5

ral riches. The sibel of Section 4, which, as has —

een pointed out above, is so inconsistent_with the grant of a fee,

rrongly indicates that Congress was.carrying into effect its changed

oliey regarding railroad ae.

Also pertinent to the construcfion of the ‘Act is the contem-.,

oraneous administrative interpretation placed on it by those. .

harged with its execution. Cf. United States v., Johnson, 124

|. S. 236, 253 ; United States v. Moore, 95 U. S. 760, 763; Norwegian

iterpretation, the general right of way circular of January 13,

888, was that the Act granted an easement, not a fee.? The same;

osition was taken in the regulations of March 21, 1892, 14 L. D.

38, and those. of November 4, 1898, 27 L. D. 663. While the first

f these circulars followed the Act by 13 years, the. weight to be

ecorded them ‘is not dependent or: strict contemporaneity. Cf.

wendig v. Washington Co., 265 U. S. 322. This. early admin-

trative gloss received indirect Congressional approval when Con-.

ress repeated the language of the Act in granting canal and reser-

oir companies rights of way by the Act of March 3,. 1891, ¢, 561,

6 Stat. 1101, and when Congress made the Act of 1875 partially

pplicable to the ‘Colville, Indian Reservation by Act of March 6, |

896, c, 42, 29 Stat. 44. Cf. National Lead Co. v. United States, —

52 U. S. 14Q,,146. oe

The circular of February 11, 1904, 32 L. D. 481, deseribed the ~

ight as a ‘‘base or qualified fee’. This shift in interpretation

fas prebably due to the description in Northern Pacific Ry. v.

"ownsend, 190 U. S. 267, of a right of way conveyed in a land-

rant act ‘(13 Stat. 365) as a “‘limited fee, made on an ‘implied

ondition of reverter’’. 14 But the earlier view was reasserted” in

ne departmental regulations of May 21, 1909, 37 L. D. 787.15

ifter 1915 administrative construction bowed to the case of Rio

12 See note 3, ante. . ea Kees a

13°*The act of March 3, 1875, -s uot in the nature of a grant of. lands;

does not convey an estate in fee, eitlier in the ‘right of way’ or the grounds

lected for depot purposds. It is a right of use only, the title stilt ) maining |

. the United States. .

** All persons settling on public lands to which a railroad: right ol way has

tached, take the same subject to such right of way- and must pay for the

ill agea of the subdivision entered, there being no authority ta make —r-

ons"in such eases.’’ 12 L. D. 423, “#28.

1¢ See note 6, ante.

15 The decisions of the Lands Department construing. the 1875 Act are in

cord. Fremont, Elkhorn’ end Missouri Valley Ry. Co., 19 L. D. 588; ~

ary G. Arnett, 20 L. D. 15.; Joba W. Wehn, 32 L. D. 33; Grard Canyon

% Co. v. Cameron, 35 L. D. 495.

eS Greit Northern Ry. Co. Vs. United States.

Grande Ry. v. Stringham, 239 U. S. 44, which applied the. noe

of the Townsend case to a right of way acquired under the Act of

1875. We,do not regard: this subsequent interpretation as bind-

ing on the Department of the Interior since it was impelled. by what

we regard as inaccurate statements in. the Stringham case, Cf.

Helvering v. Hallock, 309 U. S. 106, 121.

Congress itself in later: legislation has interpreted the “ake of

1875 as conveying but an easement. The Act’ of June 26, 1906, c.

3550, 34 Stat. 482, deelaring a forfeiture of unused rights of way,

‘provides in part that: ‘‘the United States hereby resumes the

full title to the lands covered thereby: [by the right of way] freed

and discharged from. such easement’’. This language is repeated

‘in the forfeiture act of February@@5, 1909,-c. 191, 35 Stat. 647.

. Also on June 26, 1906, an act!® was passed confirming the rights of

way which certain railroads had acquired under the 1875 Act in the

_. Territories of Oklahoma and Arizona. The House committee re-

= port ‘on this bill said: ‘‘The right as originally conferred and as

proposed to be protected .by this bill simply grants an easement

_ or use for railroad purposes. Under the present law whenever the

railroad passes through a tract of public. land the entire tract is

patented to the settler or en n, subject .only to this ease-

ment’’.’7 It is settled that “‘ ybsequent legislation’ may be con- —

_ -sidered to assist in: the interpretation of prior legislation upon the -

game subject.’’ Tiger v. Western Investment Co., 221 U. S. 286,

309. See also Cope v. Cope, 137 U. S. 682; United States % Free-.

- man, 3 How. 556. ‘Pheee statutes were ‘approximately eontem-

St. Paul, Minneapolis and Manitoba Railway.

- That petitioner has only an easement in its rjghts of way acquired

-, under the Act of 1875 is therefore clear. from the language of the

Aet, its legislative’ history, its early administrative interpretation

and the construction placed upon it by Congress in subsequent en-

actments. - — ‘

Petitioner, ines to obviate this result, relies on set 3ral cases .

*. in this Court stating that railroads have a “limited”, **base’’,. 0

*‘qualified’’ fee in their — of way.! 18 All of those cases, exert

16 34 Stat. 481.

_ __ 17H. Rept. No, 4777, 59th Cong., Ist Sess.,.p. 2 (Ser. No. 4908) ; ef.

Rept. No. 1417, 59th Cong., Ist Sess., p. 2 (Ser. No, 4904).

18 Buttz, v. Northern Pacific Railruad, 119 U. S. 55; (Clairmont v_ United

Staies, 225 U. 8. 551; Missouri, Kansas & Texas Ry. Co. v. Roberts, 12 U. 5.

114; M. K. & T. Ry. v. Oklahoma, 271 U. S. 303; New/Mexico v.. United

States Trust Co., 172 Y. 8. 171; Northern Pacific Ry. v. Townsend, 190 U. 8.

_ ?

- ¢

oe per ‘

Great Northern Ry, Co. vs. United States. . oT |

Rio Grande Ry. v. Stringham, 239 U, 8. 44, Choctaw? 0. & G R. R.

Co. v. Mackey, 256 U. 8. 531; and Noble v. Oklahoma City, 297-U. S. .

481, deal with rights of way ‘convened by. land-grant acts before the i

shift in* Congressional policy occurred in 1871. “For that reason”

they are not controlling here‘? When Congress made outright

grants to a rail~oad of alternate sections of public lands along the

right of way, there: is-little reason to suppose. that it‘intended to

give only an easement in the right of way granted in the same act. |.

And, in rione.of those acts was there any provision | comparable to

that of Section 4 of the 1873 Act that “‘lands over which such

right oa way shall pass shall

of way’’. -None*of the ca

surface. oil and minerals./ -

In the Stringhagn case} it

volved the oe of — to’ sub-

Said that a right of way under the.

Act of 1875'is ‘‘neither & mere easement, nor a fea,simple absolute,

but a limited fee, madé@ on an implied condition of reverter in the

event that the company ceases to use. or retain the land for the

purposes for which it is granted, and. carries with it the incidents.

and remedies us| lly attending the. fee’, The railrqad had:

brought suit to quiet title to a portion of its right of way. String-

ham asserted titl¢ to that pertion by virtue of a purported pur-

chase of ‘surface rights from 2 placer mine claimant. The Su-

preme Court of Utah reversed the judgment of the trial court and.

remanded the case, directing the entry of ‘‘a judgment awarding

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

88 Utah 113; 116 P. 868. The railroad again appealed, _assert-

ing that it-should have been adjudged ‘‘owner in fee simple of the

right of way. over the. premiseg’, . The Supreme Court of Utah.

affirmed the. judgment of the trial court onthe ground that -the

railroaa’s proper remedy was by petition for rehearing of the first

appeal. 39 Utah 236, 115 P. 967. Both judgments were brought to ——

this Court by. writ Of error.. It was held that the second judgment

presented nothing reviewable. The first judgment was affirmed

since it.‘‘describes the right of way in the/exact terms of the.

right-of-way .act, and #idently uses those Terms with the same

meaning .they have in the act.’’ :

The conclusion that the rwilrdad was the owner of a ‘‘limited

fee’’ was based on cases arising under the land-grant acts passed

267; United States v. Michigan, 190 U. S. 379; Northern Pacifie Railway Co.

t. Ely, 197 U. S. 1;. Rio Grande Ry. v. Stringham, 239 U. S. 44; Choctaw, O.

&.G. R. R. Co, v. Mackey, 256 U. 8S, 551; Noble v. Oklahoma City, 297 U. 8.

481. ~ ae

” See note 6, ante.

é disposed of subject to such right A.

a. *

ee Great Northern Ry. Co, vs. United States.

prior to 1871 and it does not appear that Congress’ change of policy

after 1871 was brought to the Court’s attention.2° - That conelu-

sjon is onsistent with the language of the Act, its legislative

history, its. early admini ive interpretation amd the construc-

tion placed on it byeCongress/in subsequent legislation. We there-

' fore do not regard it as contfolling. Statements in Choctaw, 0. &

G.R. R. Co. v.-Mackey? 256 VU. S. 531, and Noble v. Oklahoma City,

297 U. S. 481, that the 1875 Act conveyed a limited fee are dicta

based on the Stringham. case and entitled to no more weight than

the statements in that case. Far more persuasive are two cases in-

_ volving special acts granting rights of way, passed after 1871 and

rather similar to the general act of 1875.7" Railway Co..v. Alling,

99 U. 8S. 463, characterized the right so granted as ‘‘a present bene-

ficial easement’’ and Smith-v. Townsend, 148 U: S. 490, referred,

to, it as ‘‘simply as an easement, not a fee’. We think‘that the

Act of 1875 is to be similarly construed.

Since petitioner’s right of way is but. an easement, it has no.

right to the underlying oil and minerals. This result does not

‘freeze the oil and minerais in place.. Petitioner is free to develop

them under a lease executed pursuant to the Act of May. 21, netic

46 Stat. 373.

- During the argument before this Court it was fully Socal

that the. judgment was rendered on the pleadings in which peti-

tioner denied the allegation of title in the. United States, and there

was no proof or stipulation that the United States h: - any title.

On this state of the record the United States was not enitled to

any judgment below. ‘However, we permitted the parties to cure

this defect by a stipulation showing that the United States has

‘ retained title to certain tracts of land over which petitioner’s right

of way passes, in a limited ‘area,*? and that petitioner intended to

drill. for and remove the oil underlying iis right of way over each.

of those tracts. Accordingly the judgment will be modified and

limited to the areas described in the stipuldtion. ..As so modified,

itis 4 Affirmed.

Mr. Justice Roserts and. Mr. Justice Jackson took no part in ‘the

consideration or decision of this case. |

-o——

2 No brief was filed by the defendazit or the United States.

- 21,17 Stat. 339; 23 Stat. 73.

22 Lots 1, 2 and 3, See. 12; lots 1, 4, 5, 9 and 10, Ree. 13, T. 29 N., R. 15. W.,

Montana Meridian, all being within the exterior boundaries of the Glaciet

National Park; NW\% SE Sec. 28; NW ‘See. 29; NEW NW% Sec. 30}

NE Sec. 34, T. 32-N., R. 24 E., Montana Meridian.

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.