440 U.S. 668 (1979), 77-1686, Leo Sheep Co. v. United States

Docket Nº:No. 77-1686
Citation:440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677
Party Name:Leo Sheep Co. v. United States
Case Date:March 27, 1979
Court:United States Supreme Court

Page 668

440 U.S. 668 (1979)

99 S.Ct. 1403, 59 L.Ed.2d 677

Leo Sheep Co.


United States

No. 77-1686

United States Supreme Court

March 27, 1979

Argued January 15, 16, 1979




The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid, and this was done under a system whereby land surrounding the railroad right-of-way was divided into "checkerboard" blocks, with odd-numbered lots being granted to the railroad and even-numbered lots being reserved for the Government. Petitioners, the railroad's successors in fee to certain odd-numbered lots in Wyoming lying in the vicinity of a reservoir area used by the public for fishing and hunting, brought an action to quiet title against the United States after the Govrnment had cleared a road across the Leo Sheep Co.'s land to afford the public access to the reservoir area. The District Court granted petitioners' motion for summary judgment, but the Court of Appeals reversed, holding that, when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach the even-numbered sections held by the Government.

Held: The Government does not have an implied easement to build a road across petitioners' land. Pp. 678-688.

(a) The tenuous relevance of the common law doctrine of easement by necessity to the Government's asserted reserved right here is insufficient to overcome the inference prompted by the omission of any reference in the 1862 Act to such a right. Pp. 679-682.

(b) Nor does the canon of construction that, when grants to federal lands are at issue, any doubts "are resolved for the Government, not against it," Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 617, support the Government's position, since such grants "are not to be so construed as to defeat the intent of the legislature," United States v. Denver & Rio Grande R. Co., 150 U.S. 1, 14. Pp 682-683.

(c) Nor is the Unlawful Inclosures of Public Lands Act of 1885 of any significance in this case, since petitioners' unwillingness to entertain a public road without compensation cannot be considered a violation of that Act, it having been recognized in Camfield v. United States, 167 U.S. 518, that obstruction of access to even-numbered lots by individually fenced odd-numbered lots was not a violation of the Act. Pp. 683-687.

570 F.2d 881, reversed.

Page 669

REHNQUIST, J., lead opinion

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

This is one of those rare cases evoking episodes in this country's history that, if not forgotten, are remembered as dry facts, and not as adventure. Admittedly, the issue is mundane: whether the Government has an implied easement to build a road across land that was originally granted to the Union Pacific Railroad under the Union Pacific Act of 1862 -- a grant that was part of a governmental scheme to subsidize the construction of the transcontinental railroad. But that issue is posed against the backdrop of a fascinating chapter in our history. As this Court noted in another case involving [99 S.Ct. 1405] the Union Pacific Railroad,

courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it.

United States v. Union Pacific R. Co., 91 U.S. 72, 79 (1875). In this spirit, we relate the events underlying pasage of the Union Pacific Act of 1862.

Page 670


The early 19th century -- from the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853 -- saw the acquisition of the territory we now regard as the American West.1 During those years, however, the area remained a largely untapped resource, for the settlers on the eastern seaboard of the United States did not keep pace with the rapidly expanding western frontier. A vaguely delineated area forbiddingly referred to as the "Great American Desert" can be found on more than one map published before 1850, embracing much of the United States' territory west of the Missouri River. As late as 1860, for example, the entire population of the State of Nebraska was less than 30,000 persons, which represented one person for every five square miles of land area within the State.

With the discovery of gold at Sutter's Mill in California in 1848, the California gold rush began, and with it, a sharp increase in settlement of the West. Those in the East with visions of instant wealth, however, confronted the unenviable choice among an arduous 4-month overland trek, risking yellow fever on a 35-day voyage via the Isthmus of Panama, and a better than 4-month voyage around Cape Horn. They obviously yearned for another alternative, and interest focused on the transcontinental railroad.

The idea of a transcontinental railroad predated the California gold rush. From the time that Asa Whitney had proposed a relatively practical plan for its construction in 1844, it had, in the words of one of this century's leading historians of the era, "engaged the eager attention of promoters and politicians,

Page 671

until dozens of schemes were in the air."2 The building of the railroad was not to be the unalloyed product of the free enterprise system. There was, indeed, the inspiration of men like Thomas Durant and Leland Stanford and the perspiration of a generation of immigrants, but animating it all was the desire of the Federal Government that the West be settled. This desire was intensified by the need to provide a logistical link with California in the heat of the Civil War. That the venture was much too risky and much too expensive for private capital alone was evident in the years of fruitless exhortation; private investors would not move without tangible governmental inducement.3

In [99 S.Ct. 1406] the mid-19th century, there was serious disagreement as

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to the forms that inducement could take. Mr. Justice Story, in his Commentaries on the Constitution, described one extant school of thought which argued that "internal improvements," such as railroads, were not within the enumerated constitutional powers of Congress.4 Under such a theory, the direct subsidy of a transcontinental railroad was constitutionally suspect -- an uneasiness aggravated by President Andrew Jackson's 1830 veto of a bill appropriating funds to construct a road from Maysville to Lexington within the State of Kentucky.5

The response to this constitutional "gray" area, and source of political controversy, was the "checkerboard" land-grant scheme. The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid.6 Land surrounding the railway right-of-way was divided into "checkerboard" blocks. Odd-numbered lots were granted to the Union Pacific; even-numbered lots were reserved by the Government. As a result, Union Pacific land in the area of the right-of-way was usually surrounded by public land, and vice versa. The historical explanation for this peculiar disposition is that it was apparently an attempt to disarm the "internal improvement" opponents by establishing a grant scheme with "demonstrable" benefits. As one historian notes in describing an 1827 federal land grant intended to facilitate private construction of a road between Columbus and Sandusky, Ohio:

Though awkwardly stated, and not fully developed in the Act of 1827, this was the beginning of a practice to be followed in most future instances of granting land for the

Page 673

construction of specific internal improvements: donating alternate sections or one half of the land within a strip along the line of the project and reserving the other half for sale. . . . In later donations, the price of the reserved sections was doubled, so that it could be argued, as the Congessional Globe shows ad infinitum, that, by giving half the land away, and thereby making possible construction of the road, canal, or railroad, the government would recover from the reserved sections as much as it would have received from the whole.

P. Gates, History of Public Land Law Development 345-346 (168).7

In 1850, this technique was first explicitly employed for the subsidization of a railroad when the Illinois delegation in Congress, which included Stephen A. Douglas, secured the enactment of a bill that granted public lands to aid the construction of the Illinois Central Railroad.8 The Illinois Central and proposed connecting lines to the south were granted nearly three million acres along rights of way through Illinois, Mississippi, and Alabama, and, by the end of 1854, the [99 S.Ct. 1407] main line of the Illinois Central from Chicago to Cairo, Ill., had been put into operation. Before this line was constructed, public lands had gone begging at the Government's minimum price; within a few years after its completion, the railroad had disposed of more than one million acres, and was rapidly

Page 674

selling more at prices far above those at which land had been originally offered by the Government.

The "internal improvements" theory was not the only obstacle to a transcontinental railroad. In 1853, Congress had appropriated moneys and authorized Secretary of War Jefferson Davis to undertake surveys of various proposed routes for a transcontinental railroad. Congress was badly split along sectional lines on the appropriate location of the route -- so badly split that Stephen A. Douglas, now a Senator from Illinois, in 1854 suggested the construction of a northern, central, and southern route, each with connecting branches in the East.9 That proposal, however,...

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