RAILROAD REPORTS

OREGON SHORT LINE R. Co. v. QUIGLEY et al.

(Supreme Court of Idaho, March 15, 1905.)

[80 Pac. Rep. 401.]

Public Land Congressional Power. The power of Congress over the public lands is plenary so long as title thereto remains in the government and no right of property therein has vested in another. Same Title of Settler.-No right of property, as against the government, vests in a settler on public lands until he has complied with all the prerequisites for acquiring title and paid the purchase money. Same Railroad Right of Way-When Grant Vests.-Act Cong. March 3, 1873, c. 291, 17 Stat. 612, granting a right of way to the Utah & Northern Railway Company, and requiring the filing of a map of definite location with the Secretary of the Interior, is substantially complied with, so far as settlers are concerned, by the actual construction and operation of the road.

Same Same Same. The grant for right of way became definitely fixed by the actual construction of the road as effectually as it could have been by the filing of a map of location.

Same Same Scope of Grant.—The grant by Congress of a right of way 100 feet wide on each side of the central line of the track was a conclusive determination of the reasonable and necessary quantity of land to be dedicated to such use, and carried with it the right of possession to the whole of such grant.

Estoppel. As a general rule of law, the grantee named in a deed of conveyance is not estopped to deny the title of his grantor. Same. The estoppel exists only where there is an obligation to restore the possession in some event or upon some contingency.

Public Lands-Right of Way-Interest Granted.* The grant by Congress of a right of way is not an absolute fee for all purposes,

*For the authorities in this series on the subject of federal grants of public lands to railroad companies, see foot-note appended to United States v. St. Anthony R. Co. (U. S.), 10 R. R. R. 346, 33 Am. & Eng. R. Cas., N. S., 346 (right of railroad companies to cut timber on adjacent lands); United States v. Denver & R. G. R. Co. (U. S.), 10 R. R. R. 422, 33 Am. & Eng. R. Cas., N. S., 422 (burden of proof on lumber company acting as agent for railroad in cutting timber from public domain, where the company relies on the federal statute conferring right to cut such timber); Oregon & California Railroad v. United States (C. C. A.), 7 R. R. R. 943, 30 Am. & Eng. R. Cas., N. S., 943 (effect of delay in making survey upon rights of settler occupying lands within indemnity limits of grants, in advance of their selection by railroad company to supply deficiency in place of limits, under Act of May 4, 1870, ch. 69; Southern Pac. Railroad v. United States (U. S.), 8 R. R. R. 837, 31 Am. & Eng. R. Cas., N. S., $37 (indemnity selections, construction of federal statute); Nelson v. Northern Pac. Ry. Co. (U. S.), 7 R. R. R. 367, 30 Am. & Eng. R. Cas., N. S., 367 (land within exterior limits within meaning of Act of Congress of May 14, 1880, ch. 89, § 3); Northern Pac. Ry. Co. v. Soderberg (U. S.), 7 R. R. R. 911, 30 Am. & Eng. R. Cas., N. S., 911 (mineral lands, what are); San Jose Land & Water Co. v. San Jose Ranch Co. (U. S.), 6 R. R. R. 824, 29 Am. & Eng. R. Cas., N. S., 824 (rights of subsequent grantees to forfeited land); Clark v. Herington

Oregon Short Line R. Co. v. Quigley

but is in the nature of a conditional grant, and limited to use and occupation for railway purposes. The franchise and right of way are inseparably attached to each other.

Same Same Same. The company could not, by its grant, convey any part of the right of way in such manner or for such purposes as would sever the right of possession from the franchise to operate and maintain a railway line thereon.

Same Same-Adverse Possession.t-It therefore follows that adverse possession cannot ripen into a right which would divert the use and occupation of such right of way from that to which Congress made the dedication.

Limitations. The statute of limitations will not run against an action to maintain the integrity of the right of way granted by Congress for a specific use and purpose.

(Syllabus by the Court.)

Appeal from District Court, Bannock County; Alfred Budge, Judge.

Action by the Oregon Short Line Railroad Company against (U. S.), 4 R. R. R. 463, 27 Am. & Eng. R. Cas., N. S., 463 (approval of selection by land department); Southern Pac. R. Co. v. Bell (U. S.), 1 R. R. R. 286, 24 Am. & Eng. R. Cas., N. S., 286 (authority of secretary of interior to withdraw); United States v. Southern Pac. R. Co. (U. S.), 1 R. R. R. 273, 24 Am. & Eng. R. Cas., N. S., 273 (right to lands within conflict where grants conflict by crossing or lapping, effect of priority of location); note, 19 Am. & Eng. R. Cas., N. S., 214 (forfeiture); note, 1 Am. & Eng. R. Cas., N. S., 597_(nature and scope of grants to railroad companies); note, 1 Am. & Eng. R. Cas., N. S., 601 (indemnity lands); note, 11 Am. & Eng. R. Cas., N. S., 879 (pre-emption, use of lands for railroads a public use); note, 1 Am. & Eng. R. Cas., N. S., 618 (titles under land grants, how acquired); Northern Pac. R. Co. v. DeLacy (U. S.), 1 Am. & Eng. R. Cas., N. S., 657 (abrogation of grant to Northern Pac. R. Co.); Burlington Gas Light Co. v. Burlington, C. R. & N. Ry Co. (U. S.), 11 Am. & Eng. R. Cas., N. S., 878 (abutting owner cannot enjoin use of public land by railroad); Northern Pac. R. Co. v. Musser Sawtry, L. L. & M. Co. (U. S.), 1 Am. & Eng. R. Cas., N. S., 617; United States v. Winona & St. Peter R. Co. (C. C. A.), 1 Am. & Eng. R. Cas., N. S., 454; Wisconsin Cent. R. Co. v. Forsythe (U. S.), Am. & Eng. R. Cas., N. S., 487 (conflicting claims); Barden v. Northern Pac. R. Co. (U. S.), 1 Am. & Eng. R. Cas., N. S., 512; Lake Superior Ship Canal & Iron Co. v. Cunningham (U. S.), 1 Am. & Eng. R. Cas., N. S., 564 (construction of grants); Southern Pac. R. Co. v. United States (C. C. A.), 22 Am. & Eng. R. Cas., N. S., 598 (definite location of road, what is); Southern Pac. R. Co. v. United States (C. C. A.), 1 Am. & Eng. R. Cas., N. S., 603 (fraudulent location); Southern Pac. R. Co. v. Brown (U. S.), 5 Am. & Eng. R. Cas., N. S., 711; Southern Pac. R. Co. v. Groeck (U. S.), 1 Am. & Eng. R. Cas., N. S., 617 (location of road, selection of land granted); United States v. St. Paul & S. C. R. Co. (U. S.), 1 Am. & Eng. R. Cas., N. S., 656 (reverter not caused by mere failure to build road within period prescribed by congress); Southern Pac. R. Co. v. United States (C. C. A.), 22 Am. & Eng. R. Cas., N. S., 598; Central Pac. R. Co. v. Nevada (U. S.), 4 Am. & Eng. R. Cas., N. S., 264 (state taxation of land granted by congress to railroad); Burlington Gaslight Co. v. Burlington, C. R. & N. Ry. Co. (U. S.), 11 Am. & Eng. R. Cas., N. S., 878 (use by railroad of land reserved for public is a public use).

For the authorities in this series on the subject of adverse possession against railroad companies, see foot-notes appended to Chicago, B. & Q. R. Co. v. Hammond (Ill.), 12 R. R. R. 561, 35 Am. & Eng. R. Cas., Ñ. S., 561; Bubenzer v. Philadelphia, B. & W. R. Co. (Del. Ch.), 12 R. R. R. 214, 35 Am. & Eng. R. Cas., N. S., 214.

Oregon Short Line R. Co. v. Quigley

Elizabeth Quigley and others. Decree for defendants, and plaintif appeals. Reversed.

The plaintiff commenced this action in the lower court against the defendant to quiet its title to a right of way 200 feet wide across two adjoining tracts of land of 160 acres each, which were originally settled upon by Joseph Hendricks and Andrew Quigley, respectively. The plaintiff, the Oregon Short Line Railway Company, is the grantee and successor to the Utah & Northern Railway Company. On March 3, 1873, an act of Congress was approved granting a right of way to the Utah & Northern Railway Company over the public lands in the territories of Montana, Utah, and Idaho, which act is as follows (17 Stat. 612, c. 291):

"An act granting the right of way through the public lands to the Utah and Northern Railroad Company.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that for the purpose of enabling the Utah and Northern Railroad Company, a corporation organized under the laws of the territory of Utah, to build and extend its line by way of Bear River Valley, Soda Springs, Snake River Valley, and through Montana territory to a connection with the Northern Pacific Railroad, by the most advantageous and practicable line, to be selected by said company, the right of way through the public lands in the territory of Utah, Idaho, and Montana is hereby granted to said company. Said right of way hereby granted to said company is to be the extent of one hundred feet in width on each side of the central line of said road where it may pass over the public lands. There is also hereby granted to said company all necessary ground, not to exceed twenty acres for each ten miles in length of the main line of said railroad, for station buildings, work shops, depots, machine shops, switches, side-tracks, turn-tables and water stations. And whenever it may be necessary to use material from the public lands for the construction of said road, it may be done; but no private property shall be taken for the use of said company, except in the manner now provided by section three of an act entitled, 'An act to amend an 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-two,' approved July second, eighteen hundred and sixty-seven.

"Sec. 2. That said company shall be authorized and empowered to mortgage, in the usual manner, their franchise, roadbed, and all property belonging to said company, to an amount not to exceed fifteen thousand dollars per mile for the entire length of said road, upon such terms as may seem to them best; and upon said mortgage may issue mortgage bonds, not to exceed the same amount per mile; but in no case shall the United States be liable in any way whatever for anything done by said company.

Oregon Short Line R. Co. v. Quigley

"Sec. 3. That the rights herein granted shall not preclude the construction of other roads through any canyon, defile, or pass on the route of said road.

"Sec. 4. That the said railroad company shall locate the route of said railroad and file a map of such location within one year in the office of the Secretary of the Interior; and shall complete its railroad within ten years after the passage of this act; and nothing herein contained shall be construed as recognizing or denying the authority of the Legislature of Utah territory to create railroad corporations.

"Sec. 5. The Congress reserves to itself the right to alter, amend, or repeal this act whenever in its judgment the interests of the people may require it."

In 1875, and after the lands in dispute had been surveyed and were open to sale and settlement, Quigley and Hendricks each located on a 160-acre tract of land, and continued, with their families, to occupy their respective lands until they thereafter acquired patents from the government. In 1878 the Utah & Northern Railway Company decided to build their road by way of Marsh Valley, Portneuf river, and Snake River Valley, instead of over the originally planned route by way of Soda Springs and Snake River Valley. In the course of the construction of the road and during the spring of '78, they came to the claims occupied by Quigley and Hendricks, and, in order to immediately construct over the lands so occupied, the railway company, on May 28th, through its trustee, Jay Gould, purchased from Quigley and Hendricks a right of way 60 feet wide across their respective possessory claims, and took from each a quitclaim. deed, and at the same time took contracts from each wherein they agreed to execute to the railway company warranty deeds for such right of way upon receiving patent therefor from the government. The road was immediately constructed across these tracts of land, and was completed and in operation prior to the 20th of June following. On June 20, 1878, and after the construction and completion of the road, Congress passed an additional and supplemental act (20 Stat. 241, c. 362) to that of March 3, 1873, granting to the Utah & Northern Railway Company the right of way over the public lands by way of Marsh Valley, Portneuf river, and Snake River Valley, which act is as follows:

"An act creating the Utah and Northern Railway Company a corporation in the territories of Utah, Idaho, and Montana, and granting the right of way to said company through the public lands.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that the right of way through the public lands of the United States and other privileges heretofore granted by law to the Utah and Northern Railroad Company, are hereby modified and re-granted. so as to enable the Utah and Northern Railway Company and its assigns to build their road by way of Marsh Valley, Portneuf

Oregon Short Line R. Co. v. Quigley

River and Snake River Valley instead of by the way of Soda Springs and Snake River Valley as originally granted.

"Sec. 2. And said company is hereby made a railway corporation in the territories of Utah, Idaho, and Montana, under the same conditions and limitations and with the same rights and privileges that it now has and enjoys under its articles of incorporation. Provided, that said corporation shall at all times. hereafter be subject to all the laws and regulations in relation to railroads of the United States or of any territory or state through which it may pass. And suits against said corporation may be instituted in the courts of said territories or either of them having jurisdiction by the laws of such territory.

"Sec. 3. Congress may at any time add to, alter, amend or repeal this act."

No further transactions appear to have taken place between the railway company and Quigley and Hendricks or their successors in interest since the approval of the act of Congress of June 20, 1878. In the meanwhile the railway company have maintained and operated the road, and it is agreed that the company has used and occupied all of such right of way necessary or needful for its purposes during that time, and that the same has never at any time exceeded the 66 feet originally granted by quitclaim deed to Gould. No warranty deed has ever been given by Quigley and Hendricks, and does not appear to have ever been demanded by the railway company. On December 7, 1878, Quigley filed a homestead on his 160-acre tract, and received a final land-office certificate for the same on October 6, 1882, and thereafter received patent. Hendricks filed on his 160-acre tract on December 31, 1880, and received patent therefor December 23, 1882. In 1881 the railway company constructed fences along their right of way and across these tracts of land, the fences on each side of the track being 33 feet from the center of the track. The company did not file its map of location until May, 1881-some three years after the completion of the road. Quigley and Hendricks, their grantees and successors, have cultivated the lands on each side of the track continuously ever since the construction of the road up to within 33 feet of the center of the track. This action was commenced by the plaintiff to quiet its title to the full right of way of 200 feet wide, as granted by the act of Congress. The case was heard upon an agreed statement of facts, and the statement of facts was accepted and adopted by the court as his findings of fact, and upon such findings he drew his conclusions of law, which are as follows: "First. That the rights of the plaintiff under its grant from the United States did not attach to the lands in question until after the rights of the defendants had accrued. Second. That the plaintiff is estopped to assert or claim any rights in or to the lands in question, except the right of way thirty-three (33) feet in width upon each side of the center line of its roadbed as now located and used, being the right of way inclosed by the plaintiff with its fence. Third. That the rights