64 F. 506 | 9th Cir. | 1894
The Northern Pacific Railroad Company brought a suit against the city of Spokane and others to restrain and enjoin the defendants'from laying out and extending a certain street known as “Mill Street,” over and across the right of way of the complainant’s railroad in said city. The bill alleges that by virtue of the act of congress approved July 2, 1864, entitled “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific Coast, by the Northern route,” and the several acts amendatory and supplemental thereto, there was granted to the complainant a right of way through the public lands, to the extent of 200 feet in width on each side of its road, wherever it may pass through the public domain, and that there was further granted to the complainant, for aid in the construction of its road, among other lands, section 19,
Bo far as the facts are concerned, it is reasonably dear that the railroad company dedicated the land in controversy to the public for street purposes. The evidence is that about the year 3880 or 1881, after the town of Bpokane had been laid out and platted by the original town-site proprietors, the railroad company laid out what is known as “Railroad Addition,” adjacent to the original town, and, by agreement- with the original town-site proprietors, made the streets of the addition conform to those of the original town, continuing the streets and the names thereof through the addition and across the right of way, and thereupon filed a plat of the addition, upon which its right of way was designated as “Railroad Street,” and certain streets were platted as crossing the same, among which was Mill street. There is no indication upon the plat that ii: was the intention of the railroad company to close Mill street where the same crosses Railroad street, but, on the contrary, the lines of the plat show Mill street to be open across Railroad street. In the words of dedication which accompany the plat, however, the railroad company used the following language:
“The streets shown upon said j)lat are dedicated to the use of the public until vacated, except that strip of land, 225.7 feet in width, designated as ‘Railroad Street,’ which is reserved for the tracks a.nd uses of said railroad company.”
It is contended that the words of reservation concerning Railroad street operate to except from the dedication all the land contained within the north and south lines of that street, and to cut in twain
It is contended, further, that the railroad company had no such interest in the land inclosed within the limits of Railroad street as to authorize it to dedicate to the public the right to cross the same; that its right of way was granted by the United States solely for railroad purposes;- and that, although the fee to section 19 passed to the company under section 3 of the granting act, there was, nevertheless, no merger of the right of way in the fee of the land so granted. In the view we take of the law of the case, it is not necessary to consider whether the right of way conferred by congress was merged in the fee' of the land over which the same was located, and which was granted to the company in aid of the construction of the road. It clearly was not contemplated by congress thát the right of way of the northern Pacific Railroad Company should not be crossed at innumerable places. There is nothing in the language of the grant to indicate an intention that the grantee should be deprived of the power to permit the public to cross from one side to the other of the granted strip, or that there should be reserved to congress the sole authority to determine at what points and under what circumstances such crossings should be established. The grant was in that respect unrestricted in its terms. Its only limitation was the implied one that the railroad company might not divert the granted strip to other and foreign uses, and might not cede to the public rights and easements so1 extensive or of such a nature as to interfere with its duties to regularly and properly operate a railroad.
“It is plain that, under tlie act of congress donating lands for the construction of a railroad and the charter of the railroad company, the strip of land — the right of way — is devoted to a certain specified purpose, and cannot be diverted from that purpose.”
The language so quoted from the decision in that case must be considered in the light of the question then before the court. It was a case of a special assessment against the right of way of the Dlinois Central Railroad to pay for the improvement of a street, upon the theory that the right of way was benefited by the street improvement. The court held that the right of way granted by congress for a special purpose was not chargeable with such an assessment; that the strip so devoted to public use was not land which could be laid off into lots and blocks, and sold by the railroad company for its own advantage, or used as private property is used by individuals; and that, therefore, its value, for the purpose for which it was dedicated, was not capable of being enhanced by the improvement of an adjacent street. • This is far from holding that a railroad company may not, in recognition of public interests, and for the promotion of the public welfare, dedicate to the public an easement over its right of way which does not interfere with its own use of the same for a railroad. The decree is affirmed, with costs to .the appellees.