*2
GARRECHT,
WILBUR,
Before
HEALY,
Judges.
Circuit
HEALY,
Judge.
Circuit
prevailed
in a
below
The United States
Railway
enjoin the Great
suit to
drilling
removing
for or
Company from
oil,
underlying
and minerals
gas
provisions
except pursuant to the
May
seq.,
authorizes
301 et
U.S.C.A. §
purpose.
for such
leases
westerly
Northern extends
The Great
It has
Puget Sound.
from Minnesota
prede
lines.
In 1891its
branch
numerous
Minneapolis
Paul,
& Man
cessor, the Saint
pursuant
Company,
Railroad
itoba
Way Act March
Right
General
934 et
43 U.S.C.A.
18 Stat.
§
by Congress for
the In
the land
Department of
seq.,1 filed
way purposes
become a
location
map of definite
terior a
importance.
complaint
passing through Glacier considerable
portion
its road
so drafted
and answer in the suit
County,
In 1907
were
Montana.1a
*3
present
whether
rail
property
the to
the
to
the
conveyed
of
all its
minerals, or
underlying
road
the
discovery of oil
owns
the
Northern. With
Great
adjacent
the
of
1875 act sub
the
County
whether
terms
in Glacier
on lands
in surface
reserved
United
of
estate
right
way,
of
the nature
the
were
of railroad
any
rail
divided between
number
to
152. —An
“Chap.
using
occupying
through
right
and
the
companies
same
public
the
roads tlie
of
pass, or defile.
canyon,
of
lands
the United States.
legislature
of
House
“See.
That
the
the
and
“Be it
the Senate
enacted
may
for
proper
Territory
provide
of
the
of
United States
Representatives
of
the
Congress
and
private
pos-
That
tlie
manner
which
lands
America
assembled,
right
through
of
claims
sessory
public
lands
on the
lands
public
of
tlie
granted
condemned;
to
be
and
hereby
may
United
States
the United
States
organized un
such
not have been
provision
where
shall
company duly
any railroad
may
such condemnation
be made
or Territory,
the
of any
made,
der
laws
State
in accordance
section
of
or
with
three
the
District
except
the
Columbia,
Congress
act entitled
to aid in
‘An act
con-
the
the
United States,
telegraph
railroad
and
struction
Secretary
have filed with the
shall
line from the
incorpo
Missouri River
to the Pa-
articles
copy
Interior
its
organiza
cific
and
secure to the Govern-
proofs
Ocean,
to
ration,
and due
postal,
one
ment
of the same for
mil-
the extent of
same,
tion under
approved July
and other
itary,
purposes,
of the central
hundred
on eaeh side
feet
eighteen
hundred
and
road;
take,
first,
sixty-two,’
of said
also
line
eighteen
adjacent
approved
July
line
second,
hundred
from the
lands
public
and sixty-four.
earth,
road, material,
stone,
of said
That
railroad-company
“Sec. 4.
necessary
any
for
construction
de-
timber
siring
adjacent
ground
secure
of this act,
also
benefits
railroad;
said
station-buildings,
within
twelve
shall,
months
after
for
such
any
twenty
location
section of
turn
miles
side-tracks,
machine
depots,
shops,
road,
upon
not
exceed
if the same be
surveyed
water-stations,
outs,
if
lands,
and,
upon unsurveyed
for
twenty
station,
each
lands,
in amount
acres
within
twelve months
survey
for each ten
after
-to the extent
one station
thereof
United
miles
its road.
file
register
of the land office
company
for the
any
That
district
“
Missouri K. & T.
Co. v.
Co.,
142,
gon
957;
R.
517,
Line
225 U.S.
32
Short
303,
70 L.Ed.
271
46 S.Ct.
U.S.
1027;
636,
Great North
481,
56 L.Ed.
City,
S.Ct.
U.S.
Noble v. Oklahoma
297
Steinke,
119,
816;
43 S.
494,
562,
ern R.
v.
261 U.S.
Co.
Clair-
80 L.Ed.
56 S.Ct.
Compare Railway
316,
564.
551,
67 L.Ed.
Ct.
225 U.S.
mont v. United
475,
Alling, 1878,
463,
25
1201;
99 U.S.
556,
Co. v.
787,
v.
32
Buttz
56 L.Ed.
1893,
438;
Townsend,
66,
Smith
Co.,
55,
L.Ed.
Northern Pacific R.
119 U.S.
634,
37
13 S.Ct.
148 U.S.
L.Ed.
Choctaw O.
7 S.Ct.
Mackey,
L.Ed. 533.
U.S.
& G. R. Co. v.
construction;
and that in those instances
included
prior to
actually
had
built over
right where the road
acreages in addition
extensive
unnecessary to file
public
land it was
donation
largest,
way. The
map
of definite location. Dakota C. R.
alter
Pacific,
embraced
Downey, 8
This ad
Co. v.
Land Dec. 115.
lands
public
sections
nate odd-numbered
holding
followed
ministrative
road,
of about
total
or a
on each side of
Northern R.
history court
&
Co.
a matter
40,000,000
It is
acres.
Jamestown
Jones, 177 U.S.
L.Ed.
policy had met
lavish
applied in Stalker v.
and was later
the Gen
prior
adoption of
disfavor
Oregon
R.
32 S.
S. L.
U.S.
1875.4 The
Act of
Right
Way
eral
636, 56
Ct.
L.Ed. 1027.
in a
reflected
public sentiment
change in
house
passed
the lower
resolution
section,
authorizing
after
The 4th
The resolution
mentioned,
procedure
significant
above
house,
judgment
declares
ly provides that “thereafter all such lands
subsidies
policy
“the
over which such
shall
corporations
other
railroads and
disposed
shall
to such
every
discontinued, and that
ought
to be
way.”
provision
A
somewhat similar
equal
public policy and
consideration
Portland,
appears
Dalles
*5
requires that
people
justice to the whole
Company,
and Salt
Railroad
17
Lake
purpose
the
public
held for
lands should be
52,
April 12, 1872;
provi
approved
but no
settlers,
securing
homesteads
actual
any
sion of the kind is found in
of the
may be
purposes, as
and for educational
attempts
earlier acts. Elaborate
are made
the
provided by
the time of
law.”5 At
as,
explain away
language,
this
for ex
Way Act
passage
.Right of
of the General
ample,
saying
it
is a
statement
mere
lands in
great
the
title to the
bulk
the
obvious;
ought
but the clause
to be
was
and
in
western states
territories
meaning
says.
taken
what it
as
If
force
States,
and if railroad construc
United
filing
approval
profile
of the
and
of the
tion was to continue
all it
essential
at
was
intended that the fee
title
public
grant
over
railroad, surely
should vest in the
language
purpose.
grant
domain for this
The 1875
utterly incompatible
so
would not have
bounty;
in
was not
the nature of a
rather
employed
in the direction for future
legislation
promote
it was
calculated
set
disposition immediately following. Apter
tlement and to enhance
value of
convey
words to indicate the
an
intent to
public
domain
the build
made accessible
easement would be
find.
difficult to
We
railways.
ing of
Denver
United States v.
point.
need not labor the
The act is to be
Ry. Co.,
1,
&
Grande
150
14
Rio
U.S.
S.Ct.
given,
pos
read
aas whole and effect
if
outset,
make
ver-
deductions
similar
is
this and
acts
repeated in the
biage
regulations of
is
easement,
nor a
14 Land
neither a mere
Dec.
The
absolute,
fee,
im-
revision
made on an
phraseology of the
November
Land Dec.
reverter
the event that
(27
664)
slightly plied
is
condition
different,
to use or retain the
but the
said
ceases
to mere-
given by
present
does not
take
The
case
involve the
adjacent public
pur
for station and
kindred
lands material
phase
poses;
concerning
construction has
and
timber
express
opinion.
taking
to authorize
been held
act we
building
rolling
also, as
for use in the
further
illustrative
of the
timber
See
interpretation,
operating
purposes.
1903, 32
stock for
administrative
United
33;
States v. Denver &
G.
Land Dec.
35 Land Dec.
R.
su
pra.
1899, 28 Land Dec. 412.
fendant,
petitioner
grant-
and that
situated
it is
so
purposes for
land for the
ed,
adversely
and as
a decision ar-
incidents
affected
it the
and carries
complete
rived at
presentation
without
fee.”
attending the
usually
[239
remedies
petitioner
al-
his interest. The
further
6, 60 L.Ed.
U.S.
136.]
leged
questions
that his claim involved
distinguishable.
its facts the case
On
law which were the same as those involved
issue, the
been in
If subsurface
had
in
defendant,
plaintiff
between the
case
compel
to reverse
decision would
us
provisions
and that under the
present
judgment; but subsurface
24(a)
(b)
of Rule
Rules
involved,
judgment
were not
Procedure,
following
Civil
sec-
U.S.C.A.
properly
Utah court was
affirmed as
723c, petitioner
tion
entitled to come in.
represent-
government
stood.
Leave was denied.
and we are informed
ed in
suit
Not
themselves filed no brief.
ruling.
defendants
We see no error in the
The sole
significant
having its attention called to
issue in the case
was whether
between this and earlier
differences
subsurface
included
dealt,
merely
it had
the court
with which
minerals. The entire
so far
opin-
language
paraphrased
of former
grant,
as it rested on the
was involved
accept
the dicta
Now are asked
ions.
we
only
alleged
government
the suit. The
shortcomings
despite
gospel,
its manifold
the act
had
that under
the Great Northern
dicta. We choose to believe the
even as
acquired
underlying
no interest in the
oil
guide.
is a
statute
safer
deposits,
prop-
but that these
remained
erty
States,
subject
United
May
The act of
disposition.
its control and
In no sense was
301, provides that the
30 U.S.C.A. §
the interest of the United States adverse
may,
Interior
if he deems
purpose
MacDonald.
that of
For the
interest,
deposits of
it in the
“lease
suit the two interests were identical.
the
A decision
gas in or under lands embraced
oil and
against the
railroad would deter-
way acquired
other
question, leaving the
mine
rights
basic
wheth
of the United
law
subsequent patentees
gov-
fee or mere ease
er the same be a base
adjudication.
to future
On
ernment
little
than a
ment.” This statute is
more
hand,
against
holding
were the
to be
other
declaration, as it
enacted
self-serving
at a time
lying
mean
the decision would
government,
ownership
when
under
that the United States retained no miner-
become a
of contro
oil had
*7
rights
it
al
which
could thereafter have
However,
versy.
an earlier act of June conveyed
the
and other
to
homesteaders
43 U.S.C.A.
is
34 Stat.
§
way.
along
right
the
To that
patentees
interpretation of
of some
in the
the
value
extent, only, petitioner
in-
has an obvious
act,
grant.
which
1875
That
declared
favor-
terest in the suit and in an outcome
way,
forfeiture of unused
refers
government.
the
able to
to
as an easement.
the
24, permit
(a)
Subdivision
of Rule
petition
appellant MacDon
The
pro
ting
vides,
right,
intervention
a matter of
as
alleged
for leave to intervene
that
ald
certain
here,
pertinent
so far as
land,
quarter
section of
described in
rep
application
granted “when the
complaint
shall be
government’s
being part
as
by
applicant’s
by
laud crossed
the Great Northern’s resentation of the
interest
right of
had been the
of a
parties
may
inadequate
is or
existing
be
patent
predecessor
homestead
to his
con
applicant
may
is or
be
and the
bound
exception
taining no
of the oil or other
judgment in the action.” Both conditions
minerals
it. The whole area
within
to
must be shown
exist. There
no rea
quarter
government’s rep
the exterior boundaries of
sec son to believe that the
had,
averred,
petitioner
tion
included
in
resentation of MacDonald’s interest is
patent, subject
here,
to
adequate
inadequate
in the
the railroad’s
or that it was
be
matter,
alleged
gov
was
that both the
For that
both here
be
low.
low,
presented
the railroad
an
ernment and
claim
he
elaborate brief on the
underlying
the minerals
and was heard
title to
merits of
case
thereon as
quarter section,
though
way
fully
as it
this
he had been allowed to in
crosses
as
whole,
ownership
peti
government
thereof is in the
On
but that
tervene.
vastly greater
patent;
of the homestead
in
success of its suit than the in
to have a
tioner
virtue
would seem
terest
petitioner
interest of
in the
would not
patentees along
adequately represented by plaintiff
Other
or de- tervener.
828
149;
Co.,
Stephenson
to
R.
W.
claim of
v. St. L. S.
same
568;
Tex.Civ.App.,
govern-
181
has. The
S.W.
Stevens
intervene as MacDonald
Galveston,
Co.,
deter-
H.
Tex.Com.
force that to
& S.
R.A.
argues
ment
with much
App.,
neces-
212
Co. v.
would be
S.W.
Oil
subsequent
it
Carter
mine
sary
patents Welker,
Similarly
types
Cir., 112
F.2d
to
numerous
consider
statutes and
orders,
many
granted
where land is
for use for school
classification
if purposes
grantee
immaterial
it has been held that the
become
of which would
all
enjoined
were adverse.
drilling
main case
cannot be
from
for or re
the decision
deter- moving
underlying
was to
Dees
purpose
the action
oil
the land.
scope
Cheuvronts,
240 Ill.
and for all
49
84 A.L.R.
S.W.2d
Field, who
Hulen, Cir.,
160;
language of Mr.
Attorney
“The
5
5 F.2d
Gen
Justice
court,
Co.,
opinion
would
Marquette
Pere
R.
delivered the
eral v.
263 Mich.
860,
else. The difference be
431, 248 N.W.
A.L.R.
be unaccountable
94
Rice v.
would not
easement
the fee
49, 64,
186
40
tween an
Spring
Clear
Coal
Pa.
A.
(hat
3,
passage
fore
act of March
escaped
attention
his
1875, supra,
policy
new
and that
was
result
court,
the inevitable
whole
against
consequences
granting
which
of excessive
committing
it
companies. Assuming
there
upon such difference.”
depend
might
change
policy
awas
attitude or
on the
subject of
inter-
decision
part
Congress,
by Congress
way is
stated
granted in the
est
granting
exactly
language
act
same
insisted
“But,
may not
if
follows:
which had
grant
been used
theretofore
surely more than
granted,
the fee
fee
would neverthe-
granted,
ordinary easement
an
—one
imply
conclusively
less
an intent of Con-
fee, perpetuity
having the attributes
gress
the same
theretofore
possession; also
use and
and exclusive
granted by use of the same words notwith-
it,
and,
corporeal,
fee,
like
remedies of the
standing
change
policy.
the assumed
It
property.”
incorporeal,
however,
respondent,
contended
way to
rights of
granting
acts
Some
changed purpose
re-
passage prior
railroads
incorporation
sulted
in the act of
3, 1875,
are as follows:
supra,
March
3, 1875, supra,
March
sentence
of a
which
Gulf,
and it
language
grant-
and Mobile
claims
Atlantic and
modifies
771,
3, 1849,
ing
clause
Ohio,
9 Stat.
statute
reduces the
March
estate
a mere easement.
This
772.
language is found in section 4 of the act
20,
September
Grant,
Illinois Central
quoted
opinion.
which is
in full in the main
Stat. 466.
1850.
The words
relied
change
to cause this
1, 1862, 12
Grant, July
Union Pacific
are:
“And thereafter all
such
over
Stat. 489.
which such
shall
shall be
Grant, July
Pacific
Amended Union
disposed
subject
way.”
such
356.
13 Stat.
phrase, my
conclude,
This
associates
so lim-
Grant,
1864,
July
Pacific
the effect
clause in sec-
365.
Stat.
tion
of the act as to
no more than
way,
an easement
Grant,
reserving
July
Placerville
disposition.
for future
Stat. 94.
Grant,
potent
I am unable
City
ascribe
effect
July
Leavenworth
4 of
statement in
the act that sub-
212.
§
Stat.
sequent
“over
such right
Grant,
Oregon
California &
R. R.
pass”
shall
shall be
to such
25, 1866, 14
July
Stat. 239.
me that this
seems
is a
Grant, July
Pacific R.
Atlantic &
R.
priority
mere statement of the obvious
at-
27, 1866, 14
292.
Stat.
taching
prior grants.
The qualifying
Grant,
Stockton R. R.
March
phrase
necessary
is made
in this
of-
14 Stat. 548.
fer of a
not because of a
Grant,
Pacific R.
Texas &
R.
March change of policy as to the nature of the es-
3, 1871, 16 Stat. 573.
necessary
tate
because it
to indicate
some fashion how and when
Bay
Pepin
Green
and Lake
R. R.
of a railroad
Grant,
accepting
16 Stat. 588.
should accrue. Where the act
Portland, Dalles & Salt Lake R. R.
conveyed
praesenti
the land
was un-
Grant,
April
priorities,
to indicate
because the
Central
Grant,
Pacific R. R.
Feb.
*9
right
date
the act
grantee.
of
fixed the
of the
1875, 18 Stat. 306.
This was the
grants
specifically
case
to
companies.
then,
Consequently,
named railroad
Assuming,
during
period
that
in
general
way
right
of the act of
which
passed
these earlier acts were
it was
provided
March
supra,
the manner
by
intent of
the use of the
company
in which the railroad
should
phrase
ac-
way
“the
through public
cept
offer
grant-
in
contained
lands
granted”
grant
to
a
it follows
ing
T
by
act.
am confirmed in
view
this
that
was not the
intention of
several considerations.
to reserve
mineral
in the
convey
but
those
to the
Rail-
place,
February
In the first
on
Company. Flowever,
road
by
it is
grant-
claimed
Congress passed
an act
government
herein that
there
ing
was a
Oregon
a
to the
Central
change in governmental policy shortly
Railway Company containing
be- Pacific
provisions
applied
over
to the se-
lands
all
“and thereafter
§
same clause
curing
right way by
filing
of the
shall
a
road shall
said
which the line of
profile
by
Unit-
before the
located,
railroad was constructed.
sold,
disposed of
or
adopted
so
conclusion
subject to such
'Court
ed
Secretary
“a
announced
aforesaid”,
grant is of
of the Interior
located as
strip
Downey,
in
wide,
side
Dakota
on each
Central
Co.
land 100 feet
Land Dec.
that
held
road, through the
in which the
of said
central line
by
“designed
provide
a mode
lands,
lands
§
and the
fixity
which
side-tracks,
stations,
other need-
of location can be secured
depots,
grantee,
anticipation
a
in
and tele-
of that construc-
road
operating
said
ful uses
any
tion which
sec-
twenty
location is defined in the
exceeding
acres
graph, not
land”,
tion making the
have
strip
grant,
and which shall
place.”
phrase “a
one
so far
advised,
always
effect,
been the
construction of the
am
before the
Ias
road,
grant
than
rather
which the terms of the
limit
land itself
held to describe the
only
road’,
We thus
the ‘central line of said
which
an easement or
con-
other
means—without the fourth section—a
Congress saying that
This
subject to such fee.
structed road.” The court thus affirmed
the fee shall be
Department
that a
ruling
right
was created
of the Interior
indicate not
there
would
a dominant and
subsequent
under
servient estate but
the act of
ways,
States could
the United
be obtained
two
either
way first,
by actually
upon
describing
constructing
the railroad
whether
or not should be held to be
prior
unsurveyed
or, second, by
land,
filing pro-
a
provided by
railroad.
file of the road
4 in the case
grant to the
§
surveyed land;
surveyed
lands
after
me
which leads
The second consideration
fur-
the road
located. The court went
particular phrase
conclusion that this
to the
Department had done
ther than the Interior
by
diminishing
upon
plaintiff
relied
as
rail-
that the construction
holding
to a
easement
fee in the
mere
unsurveyed
surveyed as well
across
road
public
as
phrase
I believe the
not do so is because
does
acceptance
operated as
purpose.
entirely
The rail-
has an
different
Company
per-
the Railroad
upon
instances was located
road in most
right way.
title to
fected its
unsurveyed government land.
and across
apparent
from the deci
Conseqently,
thus becomes
location
provision
4 under
sion that
subsequent
dis
with relation to
government
§
of
priority
cussion relates
title as be
surveys
impossible
of ascertainment
was
uncertainty
possessory
tween the railroad and the
might
pat-
result
and
ent
rail
of homesteaders and others when the
lands theretofore
to the
upon
of its
possessory
filing
road’s claim is based
in adverse
claims.
map,
company profile
quality
to the
or effect
provides
The act
that the railroad
.
assume,
grant
If
desiring
secure
we
as the court
the benefits of the act
decided,
may
company
that the railroad
also
up-
shall file the location of its railroad “if
unsurveyed
way by
lands,
acquire
con
within twelve
months
survey
thereof
structing
profile
after
United
line without filing
appears
States”,
map,
proviso
obvious that the
etc. It thus
that both the
§
apply
along
and settlers
line
because that section relates
would not
posses-
priority
conflicting
are entitled to certain
case
sory rights
filing profile
which are
defined until after
resulting from
claims
survey
involved,
government
qualified
of the lands
If the
4 is
railroad.
under §
years
might
not,
later.
proviso
1 is
§
types
have two different
estate
we
would
Another reason that leads me
this con-
pur
same
the same
clusion is based
the decision of the
we
incongruity
not arise if
pose.
does
This
Supreme Court in
& Northern
Jamestown
proviso
merely to
applying
construe
Jones,
Railroad Co. v.
177U.S.
rights accruing case
priority 568,
83J
Ry.
M.
Co.
Minneapolis,
S.
v.
within the limits of the
Paul & S.
ants
St.
258, 28
251,257,
acquire
S.Ct.
could
they
title to
lands because
Doughty, 208U.S.
Oregon
public
longer
L. R.
were no
S.
lands. For these
52 L.Ed.
Stalker
150,151,
636, 50
I
reasons
think the sentence
fourth
225 U.S.
supra.
these cases section of
act March
1875does not
In both of
L.Ed.
held to deal affect the
phrase
discussion is
character
under
granted.
priority.
question of
&
It
added that
should be
I turn to a
deci
consideration
other
Jamestown
Jones, supra, dealt
Northern Railroad Co.v.
affecting
sions
of the nature
who had
with the claims of a homesteader
right way
grant.
In
Grande
Rio
railway and
along
located
the line of the
Stringham,
239 U.S.
patent from the United States
secured a
supra, patent
L.Ed.
had been
government May
based
placer mining
extending
to a
claim
across
pro-
rights
of a
accruing
filing
before the
except
the railroad
without
map
file
the construction of the
after
ing mentioning
right way.
The
quarter
railroad, covering an
section
entire
contest
Company
initiated
the Railroad
rights
of the
of the
without
reservation
was therefore between the
company, evidently issued because
simple
claimed
fee
ruling
of the
that the rail-
patentee
placer
title
claimed
of the
road
company could not secure
mining claim.
true that
in
courts
by merely
surveyed public
across
adjudicating
rights
parties, might
of the
constructing its railroad above
to.
referred
have awarded the surface to the Railroad
decisions,
This, and
other
indicates
Company
and the
mining
sub-surface
department
there are cases in
placer mining
claimant if so advised
subsequent
intentionally
patents
way.
issued
cov- but the courts did not do this. On the con
ering portion
trary, they
defined the
of the Railroad
Company
being a limited
Furthermore,
fee. The Su
it should be noted on this
preme Court held that inasmuch as the low
point that
United States land
re
laws
er
had
court
defined
Rail
lating
acquisition
of land
individ
Company
land,
language
in the exact
is,
uals deal
that
with
that with
it had
given
all it was
part
in
of the national domain
the own
unnecessary
entitled to
it
ership
more
government subject
sale
fully
right.
define
disposal
definition
general
other
The
under
land
1875,
laws.
court
Com
Supreme Court,
Railroad
in
short
October
pany
part
was in answer
ly
to a claim on the
after the enactment of
Company
of the Railroad
that it was
held
en
that a railroad
did not
simple.
titled to a
title
fee
apply
in an Indian
court
sections
Reservation
simple
said its title was
anot
fee
because the
absolute
absolute title thereto was not in
but a limited fee and in effect
judgment
Leavenworth, etc.,
held that the
the United States.
R. R.
right.
granted them that
So that
Co. v. United
92 U.S.
23 L.
the contest between the two1claimants for
Ed. 634. At the same
time
held that
simple
fee
was resolved
holding
a similar
did
California
not cover
Company
the Railroad
wrongly
held a
fee
lands
land
claimed to
a Mexican
implied
grant,
with an
condition of
stating
reverter and
“public
that the words
that it was
lauds”
to decide whether
legislation
arc used in our
to de
the reversion would be
subject
to the United States
scribe such lands as are
to sale or
placer
or to
disposition
mining
claimant whom
other
to
convey
laws. The
government
attempted
had
declaration in
act March
§
1875, supra, clearly
absolute. The contest
indicates that
before the
required
it to determine
longer
the nature of
are no
lands and
company’s
right.
disposal
as such
That deter
gen
under the
mination, my opinion,
eral
was not
land laws. The
dictum.
cited herein
decisions
If
dealing
it could be said that the
with controversies
Court
mining
between
qualifying phrase
claimants
overlooked
gran
or homestead claimants and
4 of
§
rights way
quoted might
tees of railroad
the act above
are all con
weaken
authority
sistent with the
decision
view that such
but that matter was
subsequent claimants could not
called
the attention of the court
and re
accrue
way and,
opinion,
for a
land
sequently,
ferred to
wherein it is
con
said:
upon grants
contig
owners of lands
“What the act relied
to a rail
right way,
company complying
require-
or mining
uous
claim- road
*11
to
company
the
as a
the railroad
spoken
throughout
of
ments
of a
right
qualifying
way
The trial court
‘right way;’
by
that
and
found
the railroad com-
pany did
a
not
disposals
particular
which such
need to use
future
of lands to
that
part
right
way
attached,
that
the
occupied by
act declares
the
the
of shaft
shifting
such
‘all
way
which
tracks it could
such lands over
subject have avoided
disposed
Consequently,
the shaft.
shall
shall be
”
held
company
railroad
way.’
guilty
the
to such
was
trespass by
in the shaft and awarded
filling
Choctaw,
In
Co. Mack
O. & G. R. R.
v.
stipulated
$1,000.
the
damages,
amount of
582, 584,
ey,
U.S.
Supreme
The
Court of Montana found it
1076,
Supreme
L.Ed.
the
Court had occa
necessary to determine the effect of the act
again
give
to
sion
to
attention
the
3, 1875, supra,
March
a
granting
a
granted
granting
statute
by a
way to
company through
the railroad
company.
railroad
The statute
a
public lands, and reversed
decision.
the
February
was
opinion
While it is true that the
the state
quoted
ch.
25 Stat.
cited and
court,
or
federal court other than the
opinion
written
the footnote
Supreme Court,
upon this
is not binding
(256
page
Mr.
Brandéis
U.S.
Justice
court,
Supreme
a
aby
decision
state
Court
582).
statute
A reference to this
meaning
federal statute
a
apt
de
will show that it is much more
interpretation
Supreme
thereof
an
than the act of March
fine
easement
weighty
Court are entitled to
consideration.
considering.
court
which
are
The
we
Consequently,
quote
I
from that decision
had
to determine
in that
occasion
case
wherein the
said:
court
an assessment for better
whether
*
city on
rail
“* *
could be made
ments
road
while,
ground
as to the surface
company’s right
and station
claim,
least,
[pat-
plaintiffs
of their
quoting
Rio
grounds. After
Grande
mining
entees of the
could have ac-
claim]
Stringham, supra, the
said:
court
quired
reversionary
no more than a
inter-
owner
“In
the railroad is
absolute
effect
est which would
become effective
”
the land.
railway company
event the
ceased to
may
unnecessary
strip
purposes
which it
have been
that case use the
for
contended,
granted
granted.”
plaintiffs
say more than
was
to
subject
however,
plaintiffs’ patent
the local
“that
an
granted
assessment
authori-
given
surface
on the
ground
ties but the reason
conclusion absolute fee
claim, subject only
which
defines
railway company
gave
not dictum.
which
right
ground
such
‘to the exclusion
to use
Ry. Co.,
Stepan
In
Pac.
one,
every
providing
surface was
Mont.
263 P.
of,
* *
operations
or was
to facilitate the
used
used
of Montana considered the nature
Court
the
company
*
for,
purposes.’
right granted by
a railroad
the act of
under
which the
“Having found that the
use
Subsequent
location
ground
Little
Lode
surface
Johnnie
quartz lode
a
or vein
purpose,
put
and was
was not a railroad
persons
third
who sank
was discovered
operations
to facilitate the
right way.
After working
a shaft
upon
railroad,
adopted the
the court
the-
years
claim for three
the discov-
ory
judgment
plaintiffs, and entered
applied
United States for
erers
patent
appealed from.
under
which
the name
grant-
company
“If the railroad
had
Lode”;
“Little
exterior
Johnnie
thereafter
mere easement over lands
ed a
wholly
boundaries
were
within the
individual,
patented
an
individual
such
strip
100-foot
on the east side of
rail-
portion
acquire
right to
might
use
plaintiffs
road track. The
abandoned work
por-
showing
obtaining patent
on the
after
claim
and the
necessary for the
by,
not used
nor
tion was
pri-
partially
shaft caved and became
filled
* *
*
company.
of, the railroad
use
company
or to
when
shift-
“However,
than an
is more
ed its
ing
filled
min-
tracks and
shaft.
easement;
base, qualified,
it is a
claimants
sued
fee,
is,
fee,
damages.
attributes of a
thus
contest
and has the
We
have a
between
possession
parties,
perpetuity
exclusive
claiming
two
one
under mineral
cases],
patent
is con-
[Citing
itself
the fee
absolute to
patentee,
legislative determination of the rea-"
clusive
and the other
*12
gravel
ballast,
necessary
to
and
quantity of land
stone for
to
and
and earth
sonable
use,
fills,
Evidently
carries make
bridges.
this
and
timber for
be dedicated to
Congress
right
possession
grantee
right
in the
with it
to
intended that no lesser
right
right
should be
and the use of the full width of
way.
of
as
granted, and
railroad com-
of
thus
hold,
must,
we
If
I think we
as
limited
pany is not
to so much thereof
right
company
would have a
to
necessary
actually
for
occupies what is
it
upon
right
sink wells for
water
its
grant
made.”
the use for which the
to be used to
in
steam the locomotives
make
cases.)
(Citing
upon
operating
right
way,
it is diffi-
plaintiffs
The court concluded that
they
to
cult
that
could not also
conclude
“subsequently acquired patent
could not bore for oil
in
for use
the locomotives for
land,
thereby they
title
ac- heat
machine and wheels for
quired
ground
in
no
surface
regard
In
lubrication.
this
least.”
company states in
“It is
brief:
common
knowledge
In
Oregon
Stalker v.
in fact
Short Line R. R.
that
railroads have
636, 640,
beginning,
U.S.
exercised such
S.Ct.
56 L.
Ed.
Court had under and have also
thousands of
drilled
wells
patent purporting
grant
consideration a
to
the removal
from beneath
for
of water
* * *
already incorporated
a fee
lands
way.
to
in an right of
is taken from
Water
application
for a railroad
station
right
operation
wells on the
for
grounds
under the act of March
it would be difficult to define
a
court, speaking
patent
issued
permit
company
terms that would
Reed,
application
while
of the railroad
operat-
take water but not to take oil for its
right
grounds
for
and station
ing purposes.”
pending,
was still
patent
said: “The
is not
rulings
With reference
In-
adjudication
paramount
an
concluding the
Department
they
terior
I
that
cannot see
right
company,
but in so
it in
far as
persuasive
legal
as to the
are
effect
validly acquired theretofore,
cluded lands
Congress.
Department
act of
was re-
law,
inoperative
in violation of
quired
concerning
make
some decisions
pass title.”
patents
through
land
Joy
Louis,
1, 44,
v. St.
U.S.
right way passed
which the
and to decide
“Now,
lying on behalf of United States. granted the rail- I conclude mere ease- was more than a sub-
ment, of the fee implied nature by the conditions ject namely, be used that it should the pur- its successors grantee, is, for granted, that pose for which it was longer purposes, and when all, used, the title if not so used so There- government. reverted to the thereto long opinion at least so fore, I am of developed oil as fuel or lubri- equivalent, is used or its right way, operate over the trains cant to purposes. I would it is used for accordingly. modify decree al. v. MOTOR
TERNSTEDT MFG. CO. et PRODUCTS CORPORATION.
No. 8623. Appeals, Court of Sixth
Circuit Circuit.
June Louis, Mo., Bruninga, of St. H. John Baillio, Mich., Detroit, F.
Alexander appellants. Clark, City of New York E. Merrell Clark, City, New York E. (Merrell Gross, H. King Harness William J. both Detroit, Mich., brief), appellee. HICKS, ALLEN, and HAMIL- Before TON, Judges. Circuit HAMILTON, Judge. Circuit Appellants, Manufacturing Ternstedt Company Corporation, and General Motors judgment appeal dismissing from a their complaint against appellee, Motor bill of