178 F. 302 | U.S. Circuit Court for the District of South Dakota | 1910
The act of March 3, 1875, entitled “An act granting to railroad the right of way through the public lands of the United States” (18 Stat 482, c. 152 [U. S. Comp. St. 1901, p. 1568]), contains the following provision:
“Sec. 5. That this act shall not apply to any lands within the limits of any military park, or Indian reservation, or other land specially reserved from sale unless such right of way shall be provided for by treaty stipulation, or by act of Congress, heretofore passed.”
By the act of Congress approved March 3, 1899 (30 Slat. 1233, c. 427 [U. S. Comp. St 1901, p. 1584]), it is provided:
“That in the form provided hy existing late the Secretary of the Interior may file and approve surveys and plats of any right of way, for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment, the public interest will not be injuriously affected thereby.”
It appears from the above provisions of the statutes of the United States that the Secretary of the Interior may grant or refuse to grant a railroad corporation a right of way over forest reservations. If he may do this, he may no doubt impose as a condition of granting the right of way that the railroad corporation shall execute a bond such as is sued on in this case. The bond is not contrary to good morals nor to any law, and therefore cannot he said to have been extorted from the railway company. The railway company and the surety company were willing to execute the bond in order that the railroad should obtain a right of way across the forest reservation. The following authorities support the proposition that the bond in question is valid: U. S. v. Bradley, 10 Pet. 343, see opinion page 359, 9 L. Ed. 448; Tyler v. Hand, 48 U. S. 573, see opinion page 582, 12 L. Ed. 824; Jessup v. U. S., 106 U. S. 147, 1 Sup. Ct. 74, 27 L. Ed. 85; U. S. Fidelity Co. v. U. S., 150 Fed. 550, see opinion page 553, 80 C. C. A. 446; Carnegie v. Hulbert, 70 Fed. 209, see opinion page 216, 16 C. C. A. 498; Rogers v. U. S. (C. C.) 32 Fed. 890.
In regard to the point made by the guaranty company that it cannot be held for damages caused while the receiver was, in possession of the railroad property I think the word “successors,” found in the condition of the bond, will hold the guaranty company for damages
“Regardless of the cause or circumstances under which such damage may occur.” American Surety Company v. Campbell, 138 Fed. 534, 71 C. C. A. 55.
In my opinion, the demurrers to the complaint must be overruled.
