41 F. 842 | U.S. Circuit Court for the District of Oregon | 1882
(after slating the facts as a,hove.) The language of the act authorizing the Northern Pacific Railroad Company to construct a railroad is:
“Said corporation is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at a point on Lake Superior, in the state of Minnesota, or Wisconsin; thence westerly by the most eligible railroad route, as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget’s sound, with a branch, via the valley of the Columbia river, to a point-at or near Portland, in the slate of Oregon, leaving the main trunk-line at the most suitable place, not more than three hundred miles from its western terminus.” 13 St. 366.
The controlling question presented, is, whether, upon reaching the Columbia river, instead of crossing the Cascade mountain range between the Columbia and Puget sound,- upon finding a more eligible route for its road, the company with its road could follow down the Columbia River valley to and past Portland, cross over, and go north to Puget sound, thereby altogether dispensing with its branch to Portland. In my judgment it was fully authorized to do so. The object of congress was to have a railroad constructed from some point on Lake Superior, to some point on Puget sound, and upan the most eligible route. No survey had yet been made in such manner as to determine the most desirable route. It was probably supposed that some reasonably practicable route might be found over the mountain range, and in that case it would probably be adopted. In that case also, it would be important to have a connection with -Portland, the largest town in this new north-west. But congress put no such limitation as to the route, upon the corporation. The language of the act is broad and comprehensive, with but the few limitations expressed, and congress doubtless, expressed the limitations as it intended them to be. It authorized^the corporation to “lay out, locate and construct * * * a continuous road.” It was limited as to its beginning to some point on Lake Superior, but it might be in either Wisconsin, or Minnesota, leaving the largest discretion in the company to determine the starting-point. Having determined this point, the road was to run “thence westerly by the most eligible railroad route, as shall be determined by the company. ” But it is to be “ within the United States, ” and “on a line north of the forty-fifth degree of latitude, to some point on Puget sound.” These were the only limitations put upon the company’s authority to locate its road. The corporation was to select the terminus on the Sound, as well as. the point of commencement. It was' to select the “most eligible railroad route,” and the question of eligjbil
And congress itself, in its resolution of May 81, 1870, before any location by the Oregon Central Railroad Company (16 St. 378,) recognized and approved this location of the main line as having been properly made, after it had been adopted by the company, that resolution “authorizing
The first map of general location of this portion of the line was filed in the interior department in March, 1865. True the secretary of the interior did not on this occasion give notice of a withdrawal of the lands from pre-emption sale, etc. But then the statute did not require him to do so. But section 6 provides that “the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed and as fast as may be required by the construction of said railroad, and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act.” Thus the act itself withdrew the lands upon the filing of the map or “after the general route shall have been fixed,” which was done by the filing of the map of the route selected. The company, by filing the map, had indicated its line and the grant, before uncertain, now became certain, and attached to the odd sections of the land within the 40-mile limit. No notice was required to be given by the secretary. Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. Rep. 100; Denny v. Dodson, 13 Sawy. 84, 32 Fed. Rep. 899. But if notice had been provided for, the failure of the secretary to act, would not have affected the rights of the company after it had performed its part. The neglect of the secretary of the interior would not impair the company’s rights. Van Wyck v. Knevals, 106 U. S. 366, 1 Sup. Ct. Rep. 336. And in this case as we have seen, “after the general route shall be fixed,” the odd sections are not liable to grant to any other party, and the general route was fixed within the meaning of the act on the filing of the map in March, 1865. Another map, designating the same line was filed August 13, 1870, upon which upon the same day, the secretary of the interior formally withdrew the lands, and issued his notice, and the road was actually constructed and completed on this line in the years 1871-2 and 3. The title therefore, became indefeasible, the conditions subsequent as to this part of the line, having been fully
The grant to the Northern Pacific Railroad Company was a grant in prxsenti, subject only to be defeated by a failure to perform the conditions subsequent, and by proper proceeding taken on the part of the United States to divest the title and revest it in the government. But the conditions having been fully complied with, so far as this port-i on of th e road was concerned, the title has now become perfect and indefeasible. The title is now, and it was at the time of the cutting of the timber in question perfect in the defendant, Kinney, the holder of the title of grantee of the Northern Pacific Railroad Company.
As to the last point I have recently gone over the -whole subject in the case of Francome v. Newhouse, 14 Sawy.--, 40 Fed. Rep. 618, and cited the numerous authorities on the points decided to which and the authorities therein cited, reference is made wdthout going over the subject again. See also the opinion of Mr. Justice Field in Denny v. Dodson, 13 Sawy. 69, 32 Fed: Rep. 899, and the opinion of this court in U. S. v. Road Co., 40 Fed. Rep. 114, (recently decided.)
The result is, that the plaintiff had no title to, or interest in the land in question, at the time of the timber-cutting complained of, and there must be judgment for defendants. ■ It is so ordered. Let the finding of fact, be in accordance with the statement preceding this opinion, and in the stipulation of the parties, as to the facts, on file in the case.