UNITED STATES.,. UN'ION l'AC.
CO.
551
inequality here, but it is one which results solely from the language of the statute. . An order will, be entered vacating the order .heretOfore made in so far as it provides for a different deposit of the money than the one originally designated by the debree of March 28, 1888
UNITED STATES '11. UNION PAC.
Ry.
et al.
(Oirouit·Oourt, D. Oolorado. February 7,1889.)
1.
PUBLIC LANDS-RAILROAD GRANTS-CONSTRUCTION.
:a.
Under the Union Pacific Railroad acts defendant company had a land grant in pr03senti from ,Kansas City to Cheyenne via Denver, and its road was in pro-, cess of construction. The Denver Pacific Railway & Telegraph Company had graded a frdm Cheyenne to Denver. Subsequently, by act March 8.. 186\).. entitled" An act to authorize the transfer of lands granted to"· defendant company. to the latter, defendant was authorized to contract w,ith that company for the construction and operation of defendant's road between Denver and Cheyenne, "and to grant to said Denver Pacific Railway & Telegraph (Jompanv the perpetual use of its right of way and depot grounds, and to transfer to it all the rights and privileges" pertaining to that part of the. . road. The act further provided that "said companies are hereby authorized to mortgage their respective portions of said roads, as herein defined," fora certain amount per mile, "and each of said companies shall receive patents to the alternate sections of land aJonp; their respective lines of road," in the same manDeras under the previous grant to defendant. Held that. under the act of1869; defendant's grant remained a continuous p;rant from Kansas City to Cheyenne, and the oilly eff.ect of the act was to divide the grant between the two companies. . While it is true that, under the general rule that railroad land grants are to be limited to lands situated at right angles to the general line of the road, there would be a tract south and west of Denver which might not be covered by the grant, because outside of the angles of both branches of the road, yet, where the land department has construed the grant and the act of 1869 to embrace such tract, and has issued patents accordingly, and such construction has remainedunichallenged for 15 years, and rights of third persons have attached·. the court will not Bet aside such patents, there being some doubt as to the true constJ::UCtion of the acts.
SAME-INTERPRETATION BY LAND DEPARTMENT.
In Equity.
Bill to set aside land patents.
On demurrer to bill.
H. W. Hobson, Dist. Atty.· for complainant. Teller Oscar Reuter, Bartelo Blood, Hugh Butler, A. L. Doud, W. H.M;ahone, Wells, McNeal Taylor, Albert Smith,Wm; B.MU18, H. P. H. Bromwell, and EdwardL. Johnson, for-defendants.' BREWER, J. This is a bill filed by theUnited States against the Union Pacific Railway Company and 173 other parties, to set aside patents to several tracts ofland lying south-west and adjacent to the city of Denver. Prior to the 3d ofMarch , 1869, the Kansas Pacific The facts are Railway Company, then known as the Union Pacific'Railway Company, Eastern Division, was engaged in constructing a lineoL railway from
552
FEDERAL REPORTER,
vol. 37.
Kansas City to Cheyenne, passing through Denver. Under the Union Pacific Railroad acts it had a land grant along the entire line. The Denver Pacific Railway & Telegraph .Company,.a corporation organized under the laws of the territory of Colorado, had graded a road-bed from Cheyenne to Denver. On that day, at the instance of the Kansas Pacific Railway Company, congress passed an act authorizing it to contract with the Denver company for the construction of the line from Denver to Cheyenne. The contract was made, the road was built, lands were selected by the companies along the entire line as though it were one continuous line, with a single grant, and patents issued therefor. Now, the contention of the government is that the act of 1869 modified the prior Union Pacific Railroad acts so as to cut off the. grant of the Kansas Pacific at Denver, and to make a new and independent grant to the Denver Pacific from Denver to Cheyenne; and, if that were the true construction of that act, this would result. The Kansas Pacific Railroad enters Denver from the east, running in an easterly and westerly direction. The Denver Pacific enters from the north, running in a northerly and southerly direction. .The two roads make a junction something in the nature of a right angle. Now, it is familiar law that railroad grants are limited by lines drawn at the termini at right angles to the general direction of the road, so that the KansasPacific grant would be terminated by a line running through Denver in a I)ortherly and southerly direction, while the Denver Pacific grant would likewise be limited by a line run through Denver in an easterly and·westerly direction. Obviously all lands lying to the south-west of Denver, west of the terminus of the Kansas Pacific road and south of the terminus of the Denver Pacific, would be beyond the reach of either grant, and these are the lands which are the subject of this suit. Of course the important question, then, is to determine the true constructionof the act of March 3. That act reads as follows: "An act to authorize the transfer of lands. granted to the Union Pacific Railway Company, Eastern Division, between Denver and the point of its connection with the Union Pacific Railroad, to the Denver Pacinc Hailway&; Telegraph Company. and to expedite the completion of railroads to Denver, in the territory of Colorado. Be it enacted ):>y the senate and honse of representatives of the United States of America in congrt'ss assembled, that the Union Pacific Railway Company, .Eastern Division, be. and it hereby is, authorized to contract with the Denver Pacific Hailway &, Telegraph Company, a corporation eXisting .under the laws of the territory of Colorado, for the construction, operation. and maintenance of that part of its line of railroad and telegraph between Denver City and its point of connection with the Union Pacific Hailroad, which point shall be at Cheyenne. and to adopt the road-bed already graded by said Denver Pacific Railway &; Telegraph Company as said line, and to grant to said Denver Pacific Railway & Telegraph Company the perpetual use of Its right of way and depot gronnds, and to transfer to it all the rights and privileges, subjectto all the obligations, pertaining to said part of its line." . "Sec. 2. And be it further enacted, that the said Union Pacific Railway Company, Eastern Division, shall extend its railroad and telegraph to a connection at the city of Den vel', so as to form with that part of its line herein
UNITED STATES II. UNION PAC. BY. CO.
553
authorized to be constructed, operated, and maintained by the Denver Pacific Railway & Telegraph Company, a continuous line of railroad and telegraph from Kansas City, by way of Denver, to Cheyenne, and all the provisions of law for the operation of the Union Pacific Railroad, its branches and connections, as a continuous line, without discrimination, shall apply the same as if the road from Denver to Cheyenne had beeu constructed by the said Union Pacific Rail way Company, Eastern Division; but nothing herein shall authorize the said Eastern Division Company to operate the road or fix the rates of tariff for the Denver Parific Railway & Telegraph Company. "Sec. 3. And be it further enacted, that said companies are hereby authorized to mortgage their respective portions of said road, as herein defined, for an amount not exceeding $32.000 pel' mile, to enable them respectively to borrow money to construct the same; and that each of said companies shall receive patents to the alternate sections of land their respective lines of road, as herein defined, in like manner. and within the same limits, as is provided by law in the case oflands granted to the Union Pacific Hailway Company. Eastern Divlsiqn: providl'd that neither of the companies hereinbefol"e mentioned shall be entitled to subsidy in United States bonds under the provisions of this act." To determine the true meaning of this act it must be borne in mind that congress had already authorized a single line with a continuous grant from Kansas City to Cheyenne, and that that line was in process of construction. Now this act simply authorizes the Kansas Pacific to contract for the construction of a part of this line, and to transfer to the company with which it is authorized to contract a proportionate share of its own grant. There are no words of grant anywhere to be found in the act, nor is there any language which, by any construction, can be held to indicate a purpose on the part of congress to reduce the grant already made. In the first section the authority given is to contract for the construction, operation, amI maintenance of that part of its line of railroad, etc., and to grant a perpetual use of its right of way and depot grounds, and to transfer rights and privileges. The second section, which perhaps is not so vital, provides for the operation of the two parts as one continuous line of railroad and telegraph, and the third section authorizes each company to mortgage its respective portion of said road. The express language-the whole drift of the act-means simply transfer, nothing more. Such, also, is the purpose as indicated by the title, "An act to authorize the transfer of land," etc.; and that the title may sometimes have a significance, see U. S. v. Fi...her, 2 Cranch. 358; U. S. v. Palmer, 3 Wheat. 610, in which last case Chief Justice MARSHALL says: "The title of an act cannot control its words, but may furnish some aid in showing what was in the mind of the legislature." Furthermore, it must be borne in mind that the grant made by the Union Pacific acts was one inprf£8enti. Railway 00. v. Railway Co., 97U. S. 491. The rights of the Kansas Pacific were fixed and vested; and while it is true that grants from the government are to be construed favorably to the government and against the grantee, yet it is also true that the intent of congress controls, and should be sought from the language of the act making the grant, and that to work a forfeiture or reduce a grant alv. Mcready made the intent of congress should be clear. Railway
·554
REPORTER,
vol. 87,
Gee, 115 Ct; Rep, 123. That the intent of congress was as suggested, appears also from the debate at the time of the passage of the act. Senator Harlan l'!aid : ",This ,bill does not grant an additional a'c;re of land, or a single dollar of bpnds or anything else. It eri,abllis tW() compan,ies to arrange for ,the I construction of a line; that is all there IS in the bill." 'Tbe langl1age ,of the act, the title of the act, and the tone of the debate, all point unmistakably" as it seems to me, to the construction I have· given. Indeed, there is but a single expression which throws doubt Upon this, and that is that portion of the third seetiSm which that each'of'said companies shall receive patents to,tbe land al()ng their respective lines oftoad; and yet that is perfectly consistent with the idea of,divisionand transfer. .Perhaps an expression woul dhave been more exact; and like this, "their portion of the yet the meaning of the, expression is perfectly clear. I do not place much reliance on the actofJune20,1874, {ISD.S. St. at Large, 111,) .for that seemed designed simply to regulate the 'operation of the Uriion Pacific Railroad system; and yet it closes with this general languilge, which is, to ,say the least, in harmony with that which has been heretofore suggested: . "And it is hereby provIded that for all thepu rposes of said act, and of the acts amendatorytheteof, the railway ,of. the Denver Pacific Rail WilY & Telegraph .Company shall be del;lllwd llnd taken· to be, a part and I;lxtensiop of the Toa!l of the K\i<usllos :(>aeific RaUroad"to the point 9f junction thl'lreof with the road of the Union Pacific Railroad Company at Cheyenne, as provided in the act of 'March 3, '1869.'" ,. . " 1 ,
theactof,1869 in no,manne,r diminished the grant, but that itrema,ined al;! a continnousgrunt from Kansas City to Cheyenne, and that: its ouly effecti\Vas to divide the grant between the two compa.
. I therefQrehold:
But it is the govermnent that, even ifthe grant is to be construed as a single and continuous one, lands ",ere not ,within its scope.. 'l'qe grant was "of every alternate section of.public land desiguatedby odd numbers, to the.amount of five alternate sections on each side of.said on the line there()f." 12 U. S. St. Large,489, § 3. This aPJ,ountwas afterwards raised to ..1O sections. 13 U. S. St. at Large, 356. Now, treating this as acontinnous line, it forms; as'I said, about a right angle at Denver. It is insisted by the counsel for the government that. the grant is to be limited to lands situated at right angles to the general line of tberoad. Hence. in comingfrom the east to Denver, no land fans within the grant lying west of .Denver, and: in cOD'j.,ing to Denver, none south of Denver. Of course, within the right angle the fun amount of lands could not be found, because there, is an overlapping of the two lines of direction, whereas opposite to the right angle, and south-west of Denver, the lands would not be reached by any line run at righ.t angles to the line of dirention. It is alsoinsisted that whatever lands may be lost at the right angle on the one side of the road cann()t be made up by land/! taken from the other side. U. S, v. Railroad 00" 98 U. S. 334. Thereis some plausibility in this
UNITED:
tAC.RY.'CO.
555
contention ,but tnefactis that4heselectiori is largely inatter (iadministration. Few railroads, the recipients land grants, l"url'theirliries in a constant and straight direction, either north or or westj but they are bniltalong such routes as best subserve the purposes of their' business, making tnanycurves,and going in and the selection of land which will best fill out the intent ofthe grant must be, in the nature of things, as it has been, in fact, largely intrusted to the officers of the land department, and their determination cannot be successfully challenged. But assuming that there may be doubt as to whether the construction which I have placed upon the act of 1869 is the true one, and whether the proper administration of the grant lookibg upon it as a continuous one' should have included these lands, the fact remains that this act was so construed, and this grant so administered, more than 15 years ago, and hall reml:i.ined unchallenged from that time until within the last two years. The question was brought directly before the lImd department, decided by it, and on appeal its'decision affirmed by the secretary of the interior. The lands were awarded to the railroad pany, and from time to time, as demanded, have been patented. Innocent parties have bought on the faith of the title as evidenced by the patents from the government, and at this late day something more than a mere doubt must exist to justify the divesting oftitles thus sanctioned, and sanctioned for so long a time. U. S. v. Rctilway Co., ante, 68. in the supreme court of the United States, Authorities are not that in cas.eElof doubt the courts will not lightly distmb an tion placed by the executive departmeQts of the govenHnent.Justice TRIMBI.:E Ilaidin of Edwarqs' Lessee v. Daroy, ,12 Wheat. 206-:210, that sl1ch uniform interpretation by the executive department was "entitled toverygreatrespect;" Justice STORY, in U.S. v. Bank, 6 Pet: 29-::39, tHat it 'Iwould; of itself, fUI'llish strong grounds for a liberal. c<Jnstructionj" Justice MILLER, in Peabody v. Stark, 16 Wall. 240-243, that "in the absence of a clear conviction ,on the part of meOlbers of the court· on either side of the. proposition in which all can freely unite, we incline to adopt the uniform ruling of the office of the internal revenue commisS. v. Moore, 95 S. 760-763, that "it sioner;" Justice SWAYNE, in oughtnot to be overruled without cogent reasonsj" Chief Justice WAITE in the case of U. S. v. Pugh, 99 U. S. 265-269, a case which, he says, is "by no means free from doubt," calls the principle contended for "a familiar rule of interpretation." Justice WOODS. in the case of BroWn v. U. S., 113 U. 8.·568,571,5 Sup. Ct: Rep. 648, after stating that, if' the question uilderconsideration were a new one, "the trne construction of the section would be open to doubt," condudes that the principlecontel'lded for, "in a case of doubt, ought to turn the srale." Justice HARLAN,ill the case of U. B. v. Philbrick, 120 U. S. 52, 59.7 Sup. Ct. Rep: 413'; says: "Since iUs not clear that the construction was erroneous, 'it ought not now to he overturned." Justice BUTCHFORD said in U. S. v. Hill, 120 U. 8. 169, 182,7 'Sup. Ct. Rep. 510, "that the principle coJitended for has heen applied by the supreme court as 0: ",holeso111e one for 'the establishmentalld: enforcement' of justice between' the government arid
of
a
556
I'EDERAL REPC,RTER,
those who put faith in the action of its constituted authorities, judicial, executive, and administrative;" and Justice FIELD, in Robertson v. DmlYfIIing, 127 U. S. 607, 613, 8 Sup. Ct. Rep. 1328, that" it ought not to be overruled without cogent reasons." It is well said by counsel that "it is interesting to note the growth of this principle in our Jaw. From the time Justice TRIMBJ,E announced it so cautiously in 1827 it has gained strength every time it was again considered by the court. Impelled by the force of its inherent justice, every judge who has taken it up has stated it more strongly than it was stated before." And this is a case where that doctrine is eminently worthy of application. The supreme court of the United States has also in two recent and important cases em· phasized the necessity of reliance upon the stability of title evidenced by patents from the government. See Ma'JJWeU Land Grant Case, 121 U. S. 325, 7 Sup. Ct. Rep. 1015; Iron C.(). v. U. S., 123 U. S. 307, 8 Sup. Ct. Rep.131. Such reliance should not be disturbed in the case at bar. The demurrer will be sustained.
McINT}'RE
et al. v. ROESCHI,AUB
et
al.
(Circuit Oourt, D. Oolorado. February 7, 1889.) PuBLIC LANDS-RAILROAD GltANTS-ExCEPT·IONS-HoMESTEAD ENTIl.YS.
The word" attached." in 12 U. S. St. at Large, 492, (the Union Pacific land grant act,) granting land "to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed, " means the filing of an entry in regular form by a settler; and the fact that subsequently to the definite loclltion of the road such an entry is set aside because made by,a person not entitled to hold a government claim, gives the company no right to the land. ,
IqEquity. Bill by Marion W. McIntyre and others against Henry F. Roeschlaub and others, to set aside a homestead entry. On demurrer to bill. Wells, McNeal « Taylor, for complainants. Teller « Oralwod; Rogers« Webber, and Daniel Witter, for defendante. BREWER, J.! I, This is a bill filed by the complainants against the deto, have a certain entry adjudged null and void, and to establish their title to the lands in controversy. The lands in controversy are a part of the body of lands lying ,south-west from Denver, the title to w.hich is inv,o,lved in the case of U. S. v. Railway Co., ante, 551, recently decided ,in this. court. The complainants claim under the railway company; the defendants by a homestead entry. So far as the general question as to t1w title of the railway company to these lands is concerned, I have nothing to add to what I said in the opinion .filed in that case, and if only question, decree would have to go for the complainants as prayed. But it further appears that, prior to the filing of the line of definite location, one Mary S. Hooper had filed in the proper