84 P. 1097 | Ariz. | 1906
Throughout this opinion, for brevity, the Phoenix and Eastern Eailroad Company will be denominated the “Phoenix Company” and the Arizona Eastern Eailroad Company the “Arizona Company.” The Phoenix Company brought an action against the Arizona Company seeking to establish possession and right of possession of a strip of land, varying from one hundred feet to two hundred feet in width, eighteen miles long, lying on the north side of the Gila Eiver, between Kelvin and Dudleyville, in Pinal County, for use as a right of way for its railroad, and to restrain the Arizona Company from interfering with this possession. It appears from the evidence, however, that the controversy was confined to a strip somewhat less than sixteen miles in length. The Arizona Company traversed this complaint and filed a cross-complaint praying for the same affirmative relief as that' sought by plaintiff. The trial court found the facts adversely to plaintiff and entered judgment decreeing the Arizona Company to be entitled to the exclusive possession of the right of way in controversy, and perpetually enjoining the Phoenix Company from taking possession of any part thereof, from constructing or operating a railroad thereon, and from in any manner interfering with, hindering, or delaying the construction or operation, by the Arizona Company, of their line of railroad thereon. The Phoenix Company was duly incorporated and organized, under the laws of this territory, in August, 1901, for the purpose of constructing and operating a railroad from Phoenix to Benson. To secure the benefits of the act of Congress of March 3, 1875, (chap. 152, 18 Stats. 482, 1 Supp. Eev. Stats. 91; U. S. Comp. Stats. 1901, p. 1568,) it
The complaint and cross-complaint and various supple
By the act of Congress of March 3,1875, (chap. 152,1 Supp. Bev. Stats. U. S. 91, 18 Stats. 482, 483; U. S. Comp. Stats. 1901, pp. 1568, 1569,) it is enacted as follows:—
“Section 1. That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized . . . which shall have filed with the secretary of the interior a copy of its articles of incor-. poration and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road. ...”
“Sec. 4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof hy the United States, file with the register of the land-office for the district where such land is located a profile of its road; and upon approval thereof by the secretary of the interior the same shall he noted upon the plats in said office; and thereafter all such*439 lands over which such right of way shall pass shall be disposed of subject to such right of way. ...”
It is urged by the appellee that the grant of this act is available to a corporation by compliance with two conditions: 1. By filing with the secretary a copy of its articles of incorporation and due proofs of its organization; and 2. By filing with the register of the land-office a profile of its road; that the acquisition of the right of way is entirely within the control of the corporation seeking it, irrespective of the approval or disapproval by the secretary of the interior of the profile or of the sufficiency of the articles of incorporation and proofs of organization. If this contention be well founded it follows that the trial court had jurisdiction of the action and jurisdiction to grant the full measure of relief sought. These companies having filed copies of their articles of incorporation, due proofs of their organization, and profiles of their roads, if no further act remained to be done, the question which of the two had actually acquired the right of way, and was the owner thereof, would be an appropriate subject of inquiry and adjudication by the court. Appellee contends, furthermore, that by filing its profile before appellant’s profile of amended location was filed, appellee acquired the right of way; that proof of the fact is conclusive of the title and litigation.
For the purpose of determining the jurisdictional question we need not comment at length upon the serious objection to an interpretation of this act which reduces the acquirement of a light of way, as between two companies, to a race for the filing of the profile of its road and which eliminates from practical operation that portion of section 4, supra, which contemplates a location of the road and gives an unhurried time after such location for the company to file the profile. The objection to the jurisdiction rests upon the proposition that Congress has created a special tribunal for the decision of questions arising upon the administration of its public-land laws and that this jurisdiction cannot be taken away from it by the courts. It appears to us that the act of Congress contemplates that for the acquisition of title by a railroad company, the company shall perform three acts: 1. It shall file with the secretary of the interior a copy of its articles of incorporation and due proofs of its organization, thus formally advising all persons interested, and more particularly
It is impossible to ignore the secretary of the interior without evading the plain language of the act. That officer has an important function in the premises. Must he accept for filing under this act a copy of articles showing that the company
It does not follow, however, that the court was without jurisdiction to entertain an action between these parties with reference to the occupation of the right of way, or to grant some measure of relief to either. Pending the determination by the secretary of the interior of the matters being litigated before him it was proper to make such temporary orders with respect to the occupancy and use of the way in controversy
It is a matter of public interest to facilitate the construction of railroads through this vast territory. The reasons for this interest, founded in the potency of improved transportation in the development of our resources, need not be elaborated. One of these two companies should be permitted to proceed with the construction of its road over the ground in dispute pending the controversy before the secretary of the interior. Construction of a railroad may properly antedate the filing of the profile thereof. As neither company has yet secured the formal approval of a profile of the section of its ■road including the strip in controversy, the court not only may, but ought, in the interest of the public as well as in the interest of the company showing a greater immediate equity, by appropriate temporary orders, to protect one of these two companies in the construction of its road.
The testimony in this case, upon each side, is practically uncontradicted. Looking to that testimony we find that the Phoenix Company, in December, 1903, more than two months prior to the incorporation of the Arizona Company, made and staked upon the ground surveys with a view to determining whether the portion of its road lying approximately between Kelvin and Dudleyville were not better located on the north side of the Gila River than on the south side; that not later than January, 1904, its officers reached the determination to locate the road on the north side and abandon
It is to be observed that of the disputed strip, about five miles, approximately one third of the whole, in scattered portions, were on private lands acquired or to be acquired from the patentees thereof, and about ten or eleven miles over public lands. The strip in dispute commences at the west line of section 6, township 4 south, range 14 east, near the town •of Kelvin, about three miles east of the point at which the Phoenix Company crossed the Gila River. For a mile after ■crossing the river the way of the Phoenix Company runs east on public land, thence for two miles on private land, purchased from the patentees, to the point at which the ■controversy begins. Beginning thus at private land, owned in fee by the Phoenix Company, roughly describing it from .a map in evidence, the disputed strip runs in an easterly
At the trial of the case the Arizona Company expressly “disavowed of record any claim in this action to any premises covered by any of these deeds of right of way” to the private lands on the sixteen-mile strip and similarly disavowed “on the record, any claim to any injunction restraining the Phcenix and Eastern Company from interfering with it on any lands covered by these deeds that are in evidence.” At the time of the trial the deeds covered all of the private lands lying upon the strip. Stress is laid, by appellee, upon the words “in this action,” used in the disavowal quoted, as implying that in some other action the Arizona Company may seek or is seeking to enforce, by right of eminent domain or otherwise, a claim to these lands also; but the disavowal, nevertheless, is significant in connection with the other facts in the case. The Arizona Company, without waiting to survey from either terminus of its road, surveyed a way remote from each terminus, so as to include these sixteen miles. Moreover, it does not here claim the entire sixteen miles, but claims ten separate, isolated pieces of public land varying in length from a few yards to four miles, and each (excepting only the final one at the east end) beginning and ending in
Bearing in mind our conclusion that the title to these isolated pieces of ground is still in the United States, and that the sole matter to be determined is which of these two companies shows the greater equities in support of its claim for temporary possession, it is not at all difficult to conclude that the Phoenix Company was and is entitled to proceed with the construction of its railroad over the disputed premises without interference by the Arizona Company. But it is vigorously urged on behalf of the Arizona Company that this would be a superficial view; that the Phoenix Company is in the position of endeavoring to hold two rights of way at the same time, one on the north side of the Gila River and one on the south side; that upon filing and obtaining the approval of its profile in 1902 it obtained title to the right.of way portrayed on that profile, which, for the portion between Kelvin and Dudleyville, was on the south side of the Gila River; that it is not contemplated by the act of Congress
Much stress is placed on the form of relinquishment of the right of- way on the south side of the river as executed by the Phcenix Company. This relinquishment, by its terms, was to take effect upon the approval of the new profile. In passing it may be observed that the form of the relinquishment was prescribed by the rules of the department. It is seriously contended that, since the new profile has not yet been approved, the Phcenix Company still has title to the old right of way on the south side of the river; that if it desired to avail itself of a new route on the north side it should have filed an absolute and immediate relinquishment of the way on the south side. There might be much force in this contention if the Arizona Company had been'in any way misled by the action of the Phcenix Company. But the fact is that tfie Arizona Company, at all times since its incorporation, and the
For these reasons, the judgment is reversed, and judgment will be entered in this court granting a-temporary restraining order in favor of the- appellant and against the appellee as indicated in this opinion; such order to be subject to modification or dissolution by the district court, or the judge thereof, should a change in the situation make such modification or dissolution necessary or proper.