113 P. 455 | Idaho | 1911
Lead Opinion
This action was prosecuted by the Minidoka; & Southwestern Railway Co. for the purpose of obtaining
The Minidoka & Southwestern Railroad Co. is a corporation organized and existing under the laws of the state of Idaho and operating between Minidoka and Twin Falls. In the year 1902, the Secretary of the Interior made an order withdrawing a large tract of land under the provisions of see. 3 of the act of June 17, 1902 (32 Stat. 388, U. S. Comp. St. Supp. 1909, p. 597), which is commonly known as the Reclamation Act. The land withdrawn is now commonly known as the Minidoka Reclamation Project. The respondent’s right of way from Rupert to Burley lies over and across this project., The order of the Secretary of the Interior with reference to these lands had the effect of withdrawing them from sale or entry under any of the laws of the United States excepting the homestead laws, and as to homestead entries, such entries were not subject to the commutation provisions of the general laws. The respondent corporation was organized in 1904, and about February of that year filed with the Secretary of the Interior a copy of its articles of incorporation and due proof of its organization and also profile maps or plats of definite location of its proposed line of road, which were accepted and approved by the Secretary of the Interior August 10, 1904, and thereafter, and in the same year, the respondent actually constructed its road upon the ground, the center line of its right of way corresponding to the center line of the railroad track as the same was actually constructed on the ground. Subsequently the government, through its agents and employees, began the construction of its canals and ditches for the reclamation of the lands previously withdrawn, and in course of their construction they entered upon the respondent’s right of way and within the fence inclosing the same, and began excavating and building a line of ditch and canal
The railroad company filed a copy of its articles of incorporation and due proof of its organization, together with a profile map of its road under and in accordance with the provisions of the act of March 3, 1875 (18 Stat. 482, U. S. Comp. St. 1901, p. 1568), known as the Eailroad Eight of Way Act of Congress. This map and plat was accepted and approved by the Secretary of the Interior and the proper notations made in accordance with the provisions of the act. If the land over which the company claims a right of way, and subsequently built its road, was at the time “public lands of the. United States,” then the company would, on a compliance with the provisions of the act, be entitled to a right of way 200 feet wide or, as the act states, ‘ ‘ 100 feet on each side of the central line of said road. ’ ’
It is contended by. counsel for the government that under the provisions of see. 5 of the act of March 3, 1875, the railroad company could not lawfully acquire a right of way across this reclamation project after the withdrawal of the lands for reclamation purposes. It is argued that after the withdrawal the lands were no longer “public lands of the United States,” and were not, therefore, subject to the provisions of the Eight of Way Act. Sec. 5 of the act of March 3, 1875, provides as follows: “That this act shall not apply to any lands within the limits of any military, park or Indian reservation, or other lands especially reserved from sale.....” It is argued that since the lands of a reclamation project after being withdrawn are no longer subject to sale for any purpose and are not subject to disposition under
But for the purposes of this case we are not inclined to go into a technical analysis of the language employed, for the reason that the railroad company actually complied with the provisions of the act of March 3, 1875, and sought to acquire its right of way under and by virtue of that act, and the Secretary of the Interior approved the application and permitted the company to enter upon and construct its railroad over and across this project and to take possession of the right of way claimed, and thereby held that the lands were “public lands” subject to the operation of the act of 1875. The company, in accordance therewith and upon the
The provision of the act of August 30, 1890, under which the government claims the right to enter upon respondent’s right of way and construct ditches and canals, is a paragraph that was added to the Sundry Civil Appropriation Act of that date, and reads as follows:
“ .... That in all patents for lands hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States. . . . .”
It is contended by the government that this proviso or reservation applies to all lands, rights of way and easements granted by the government under any act of Congress whatever, and that this is true whether the grant was for a special purpose or for general purposes, while the railroad company contends, on the other hand, that this reservation contained in the act of August 30, 1890, was never intended to apply to a railroad right of way granted under the act of March 3, 1875, and that an attempt to apply it to that act and the right of way acquired under the provisions thereof, would defeat the purposes of the Right of Way Act and would be inconsistent with the spirit of .both acts.
In the first place, an examination of the debates which took place in Congress at the time of the passage of the act of August 30, 1890 (Vol. 21, Cong. Rec., pp. 7269-7987, 8270 and 9156), discloses no reference whatever to rights of way over public lands either for railroads or ditches and canals for “mining, agriculture, manufacturing, or other purposes.” On the contrary, these debates all had reference to lands “entered” or “taken up” by settlers and purchasers for usual and general purposes other than special purposes, such as rights of way for railroads, ditches and canals, mill-sites, etc.
When we come to consider the language of the act itself, -we find that all its terms have special reference to lands “taken up” and lands on which “entries” are made ¿nd for which “patents” are issued. All these terms indicate a purpose to deal with land to which the government grants the absolute fee, and which are conveyed in quantity or bulk by legal subdivisions and indicate no purpose to refer to special and qualified estates or easements granted by Congress for definite and specific purposes. No patent is ever issued for a railroad right of way or a ditch or canal easement across the public domain, and while that fact would not relieve the grant from liability to use by the government for canal purposes if, in fact, the law subjects it to such burden, still it affords a strong indication that the Congress was legislating
It is also worthy of note, and throws some light on the legislative intent, to observe that under the act of August 30, 1890, it was provided that, “No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws, shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws.” It is at once apparent that this limitation as to the amount of land that can be entered could not apply to a railroad right of way, for the reason that rights of way are not taken by the acre and are not limited to any number of acres, but are merely limited by the width of the right of way and the extent or length of the road. It might require one hundred acres or it might be one thousand acres. The foregoing provision of the act is valuable in consideration of this case only in that it denotes the class of lands to which it was intended the act should apply, and this also indicates that it was lands that might be entered or on which settlement might be made, and clearly had reference to the settler, homesteader or purchaser of the public lands as distinguished from easements and rights of way.
The statutes should be construed together and in such a reasonable way as to give meaning and force to each provision thereof and render each effective and operative. To hold, however, that the act of August 30, 1890, applies to rights of way acquired under the act of March 3, 1875, would entirely defeat the objects of the latter act every time and at every place the government might see fit to construct a ditch or canal. And if the government can take any part of such right of way without compensation for ditch or canal purposes, under this act, it can take the whole right of way and thus wipe out the right of way, stop the operation of the railroad and defeat the purpose of the Right of Way Act.
“It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent. When the intention can be collected from’the statute, words may be modified, altered or supplied so as to obviate any repugnancy or inconsistency with such intention.”
In applying this rule to the construction of land grants, the supreme court of the United States, in United States v. Denver & Rio Grande R. R. Co., 150 U. S. 14, 14 Sup. Ct. 11, 37 L. ed. 975, said:
“It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantee, but they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication.”
In Winona & St. P. R. R. Co. v. Barney, 113 U. S. 618, 5 Sup. Ct. 606, 28 L. ed. 1109, Mr. Justice Field, speaking for the court said:
‘ ‘ The acts making the grants are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purposes declared on their face, and read all parts of them together.”
Applying this rule of construction, we are strongly of the opinion that it was not the intent or purpose of the act of
Counsel for appellant-have called: our attention to a letter -¡Of ¡instructions; from-Acting'Seoretary Pierce to the directors -¡of ;1ihé .reclamation¡service, ¡.Under¡.date of June 6, 1908 (36 ■Band Deer.’482);i inn which he construed-the act of August 30, ¡•.18,9.0; as applyin^etoaaqradiroAd.right; uf way, acquired under bthé'¡act>of)'Mar.eh.':3,¡íl87&.i ¡¡The aetingSsecretary holds that -¡raáLróa!d¡¡rights" of iwiayKarenpecessarily ¡granted and acquired under ¡the'land laws of'the ¡United rStatésp and that the act tofí)1870;is!as¡ríiueh*aílandi law.as atiylotheril&w of Congress, ■which.'"authorizes the.'disposition ofskny, others public lands. He concludes, therefore, that the governmentymay appropri;tite.; a¡ rhilróád) right rof .way fot they ¡purpose qf ¡constructing •its. :ditéhés-/and¡ eahalsiuüdér-’thei Reólaih'aliioniAet.í
Fi'Bb'e .reasoning!' employed b^.' the, kctingvkéeret'afy fails to appeal to us as being sound aDd logical.; Í>5ít'séémsbto overilb’ob.the tfué¡ ¡ spirit;, and ptirposes.mfs these'rdeverali act's, and .especially of -the-act' i of ■ ¡187f>i iunderu ¡frihlch'! ithebrékpondent ¡acquired Jitsfrighteof Kay:
di ¡While! any-iobinion..¡promulgated: by-¡the 'Department1 ¡of: ¡the ¡Interior,':douching,lithe public: 'domainy iso entitled'.:t<y much weight and constitutes a strong persuasive force;-withy (this 'c&urf,! yvet Sfe. are mot Abound! ibydthb. dSciáíóns> od&tthátf ídejíart¡meptiib.: apeaké ¡i® thikykind/'htiibkínéej tEeéá'ctifig .Sfebrqtáfyls communication fails to convince us of the correctness.¡of-his --comstructioa^íweiare’úmpellad tó< declined,qnMiow.dt.y
< rA'Si ¡we chave ¡Meretoforkl Observed,■' if ;the ¡govenmmeht/ean -take ■■.áüyii'pkrtiíofqfbÍAUE'ight¡ of frayU niitlibutioondenlnafiipin'/ for -"t'heycoñ’átruction'ofKditcheSi-and: eatialsp ithoahytkkeythe. ’whole .ofoiti»-; ©fir thecotíhef¡'band(i if; itbméedsManyf/p'aKtuof ¡the right íof «fray whichriis, mót ítictuaíllyT occupied;, by;therfailrofedicompany and'necessary io'.thetuse.and bpeiatiotinof its road, it has "a;ready-means of acquiring: the i ¡same ¡tinder, itheysta/fcptes of
The order appealed from should be affirmed, and it is so ordered. Costs are awarded to respondent.
Dissenting Opinion
Dissenting. — I am unable to concur in the conclusion reached by my associates. The Railroad Right of Way Act of March 3, 1875, by sec. 5 of its provisions, does not apply to “military, park, or Indian reservations or other lands especially reserved from sale.’' Under the act of June 17, 1902, known as the Reclamation Act, the land in the Minidoka Project was withdrawn from sale and was not subject to any kind of entry or sale except under the homestead law as modified by said act and to the extent that it prohibited the commutation of homestead entries. The land in that project was “especially reserved from sale,” hence the Railroad Right of Way Act of 1875 does not apply; or, if it applies in any manner whatever, it is subject to the reservations applicable to homestead entries.
The act of August 30, 1890, among other things, provides as follows:
“That in all patents for lands hereafter taken up under any of the land laws of the United States or entries or claims validated by this act west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States.”
That provision applies to all lands there referred to taken under any of the land laws of the United States. While it refers to “patents” for lands, it clearly applies to any and all lands taken up by private persons or corporations under any of the land laws of the United States. Railroads procure their titles, such as they get, which is a base fee, to rights of way and station grounds under the act of 1875, and it is clear to me that railroad companies come within the reserva
In the opinion of my associates, it is stated: “If the word ‘sale’ as here used (referring to the Railroad Right of Way Act of 1875) is employed in a strict and technical sense, then the contention (of appellant) is undoubtedly sound; but if used in a general sense, implying any disposition of the lands by or on the part of the government, then, of course, the argument is unsound.” And then the opinion proceeds to hold that the term “reserved from sale” does not mean “sale” at all, and says: “There would be no more reason apparently for making the reservation apply to lands subject to homestead only than there would be for applying it to lands that would not be for sale within the literal and technical meaning of that term.” While there may be no more reason for making said reservations apply to lands subject to sale than to homestead, Congress has specifically declared that the land laws which provide for the sale of public lands do not apply, and expressly provides that only homestead entries apply to such lands, which entries are all subject to the reservations made for the construction of canals and ditches for the reclamation of such land.
In Williamson v. Berry, 8 How. (U. S.) 544, 12 L. ed. 1188, it is held that the word “sale” is a word of precise legal import both in law and equity. “It means at all times a contract between parties, to give and pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought or sold.”
An examination of the public land laws of the United States shows that Congress has uniformly used the term “sale” in its proper and generally accepted meaning as defined by the supreme court of the United States in the case above cited, and always in connection with a transfer of title under the pre-emption law, the Timber and Stone Act,
The provisions of sec. 2357, Rev. Stats. (U. S. Comp. St. 1901, p. 1444), furnishes a test for determining whether the lands withdrawn under the Reclamation Act are “offered for sale” or “reserved from sale.” It provides:
*249 “The price at which the public lands are offered for sale shall be one dollar and twenty-five cents an acre, and at every public sale, the highest bidder, who makes payment as provided in the preceding section, shall be the purchaser; but no land shall be sold either at public or private sale for a less price than one dollar and twenty-five cents an acre; and all the public lands which are hereafter offered at public sale according to law and remain unsold at the close of such
In the case of Iowa v. McFarland, 110 U. S. 471, 4 Sup. Ct. 210, 28 L. ed. 198, the court had under consideration an act which provided for the admission of the state of Iowa into the Union, and an act authorizing the admission of the state of Illinois, both acts declaring that five per cent of the net proceeds of land lying within the state and afterward sold by Congress should be reserved and appropriated for certain public purposes in the state, and it is there Held that the words “lands sold by Congress” were limited to public lands lying within the state belonging to the United States at the time of the admission of the states into the Union, which were actually sold by Congress for a pecuniary consideration, and did not include lands that were not sold for a pecuniary consideration.
It was held in Adams v. Church, 193 U. S. 515, 24 Sup. Ct. 512, 48 L. ed. 769, that the homestead is a gift from the government to the homesteader. (See, also, Anderson v. Carkins, 135 U. S. 488, 10 Sup. Ct. 905, 34 L. ed. 272.)
Some stress is laid upon the fact that in the Eeclamation Act it is provided that certain reservations must be contained in the “patent,” and that a railroad company under the Eailroad Eight of Way Act of 1875 does not get a patent. There is nothing in that contention. The right of way is a grant from the government, and no formal patent is required to be issued therefor, but the railroad company, upon compliance with the law, acquires the same right under the law, and has the same title that it would get provided a formal
In the case of Curtner v. United States, 149 U. S. 662, 13 Sup. Ct. 1041, 37 L. ed. 890, the court had under consideration a railway right of way. Chief Justice Fuller, in the opinion of the court, said:
“The grant was in praesenti, and attached upon the filing of a map of definite location. When the identification of a granted section became so far complete as to authorize the grantee to take possession, the legal title of the granted land passed, and an action for possession could be maintained by the company or its grantees before the issue of a patent. The patent would have been evidence that the land named was granted, that the grantee had complied with the conditions of the grant, and that the grant was to that extent relieved from the possibility of forfeiture for breach of its conditions but was not essential to transfer the legal right.
“The company had on February 1, 1870, whatever title it could obtain,' and whatever rights belonged to it, and its cause of action then accrued. The land had already been certified to the state by the Commissioner of the General Land Office and the Secretary of the Interior, and their action in that regard was in law the same as if patents had been issued to the state.”
It is there in effect held that upon the filing of the map of definite location and approval by the Secretary of the Interior that the action of the Commissioner of the General Land Office and the Secretary of the Interior in that regard was, in law, the same as if patents had been issued for the right of way. There is no question but that upon complying with the statute in reference to the location of a railway right of way over the public domain subject to such locations, after the law has been complied with by the railroad company
In regard to the construction of statutes, my associates quote from Sutherland on Statutory Construction, sec. 218, as follows: “It is indispensable to the correct understanding of a statute to first inquire what is the subject of it, what object is intended to be accomplished by it. When the subject matter is, once clearly ascertained and its general intent, a key is found to all its intricacies.” Applying that rule to the Reclamation Act referred to, we will inquire first what object was intended to be accomplished by said Reclamation Act. The first object and purpose was to reclaim the land reserved from sale by constructing canals and ditches over the same, and to prevent any entries of the land that would in any manner interfere with the construction of such canals and ditches. One object and'purpose was to construct such canals and ditches at the least possible expense to the homesteader, and to accomplish that purpose the said land is reserved from entry under any of the land laws of the United States that would in any manner increase the cost of the construction of such canals and ditches or in any manner delay or interfere with the speedy construction thereof. And it was important not to permit any entries of any kind after the lands were reserved, whereby rights of way for canals and ditches would have to be purchased either by contract or condemnation proceedings. It was the object and purpose to thus prevent long delays which are required in condemnation suits to procure a right of way for such canals and ditches. Hence, under the only entry by which any such lands could be taken, a reservation was made for a right of way for ditches and canals across all such lands, thus preventing delay and expense. The intention, so far as the government work in constructing such canals and ditches is concerned, is thus clearly ascertained, the intent clearly
A grant of a right of way to a railroad company under the act of March 3, 1875, after the passage of the Reclamation Act of August 30, 1890, across land reserved under the provisions of said Reclamation Act, is burdened with the reservations for a right of way for canals and ditches as provided by said act. I think Acting Secretary Pierce, in his instructions to the director of the. reclamation service, June 6, 1908 (36 Land Dee. 482), correctly states the purpose of that provision of the Reclamation Act which reserves a right of way for ditches and canals constructed by the authority of the United States. He says:
‘ ‘ The purpose of this provision was to reserve to and retain in the United States a right of way over all lands within the territory mentioned which may be disposed of under any of the land laws of the United States after the passage of said act, and although it is declared that such reservation shall*254 be expressed in the patent, it does not follow that the reservation is less effective as to lands which are disposed of under land laws not requiring or authorizing the issuance of patents as evidence of the right of the grantee.....
“The act of March 3, 1875, is one of the land laws of the United States general in its operation. It is not a grant to a particular corporation but to any corporation duly organized which shall comply with the conditions prescribed by the act. Under this act ‘a railroad company becomes specifically a grantee by filing its articles of incorporation and due proofs of its organization with the Secretary of the Interior.’ (Jamestown & N. R. R. Co. v. Jones, 177 U. S. 125, 130 [20 Sup. Ct. 568, 44 L. ed. 698].) ....
“The act of June 17, 1902, authorizes the Secretary of the Interior to construct works for the storage, diversion and development of waters; to appropriate lands required for the construction and operation of such works, and to withdraw from all form of entry and disposal, except under the homestead law, lands believed to be susceptible of irrigation from such works.”
I think Assistant Secretary Pierce there sets forth clearly the correct construction of the acts of Congress referred to.
It is clear to me that it was not the intent of Congress to grant to the railroad companies rights that were not granted to the homestead entrymen on land reserved by the government for reclamation.
The trial court erred in granting said injunction. The injunction ought to be dissolved and the government permitted to proceed with its work without any interference from the railroad company.
