Leo Sheep Co. v. U.S., 76-1138

• Decision Date: 28 February 1978
• Docket Number: No. 76-1138,76-1138
• Parties: LEO SHEEP COMPANY et al., Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 881

570 F.2d 881

LEO SHEEP COMPANY et al., Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants-Appellants.

No. 76-1138.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 26, 1977.

Decided May 17, 1977.

Rehearing and Rehearing En Banc Denied Feb. 28, 1978.

T. Michael Golden, Rawlins, Wyo. (John A. MacPherson of MacPherson & Golden, Rawlins, Wyo., and Davis, Graham & Stubbs, Denver, Colo., on the brief), for plaintiffs-appellees.

Peter R. Steenland, Jr., Dept. of Justice, Washington, D. C. (Peter R. Taft, Asst. Atty. Gen., Washington, D. C., James P. Castberg, U. S. Atty., Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., and Edmund B. Clark, Dept. of Justice, Washington, D. C., on the brief), for defendants-appellants.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

Leo Sheep Company and Palm Livestock Company, both Wyoming corporations, brought suit against the United States of America, the Secretary of the Interior, and the Director of the Bureau of Land Management for declaratory and injunctive relief under the Quiet Title Act, 28 U.S.C. § 2409a. The plaintiffs, as owners of certain odd-numbered sections of land in Carbon County, Wyoming, claimed that the United States had unlawfully entered their property by clearing a pathway across certain of their section corners, which interlocked with the even-numbered sections of the public domain. By answer the United States acknowledged clearing this path, and claimed it had the legal right to do so. After stipulating to the facts, both sides moved for summary judgment. The district court ruled in favor of the plaintiffs, and the United States now appeals.

The odd-numbered sections of land here involved were granted by Congress in 1862 to the Union Pacific Railroad. Act of July 1, 1862, ch. 120, 12 Stat. 489, 492(3) and (4), as amended, Act of July 2, 1864, ch. 216, 13 Stat. 356, 358(4). Leo Sheep, hereinafter referred to as the plaintiff, now owns the odd-numbered sections as successor-in-title to the railroad. By virtue of leases issued under section 3 of the Taylor Grazing Act, 43 U.S.C. § 315b, plaintiff also uses the interlocking even-numbered sections of the public domain for general grazing and pasturage, and thereby has integrated its operations into an undivided unit. However, the fact that plaintiff has grazing rights in the even-numbered sections is not urged by either party as being of any particular significance, and hence for the purposes of this case, at least, the even-numbered sections may be treated as simply being part of the public domain, which indeed they are.

Under the stipulation, we are here concerned with Section 15, Township 24 North, Range 83 West, 6th P.M., which is owned by the plaintiff as successor-in-interest to the railroad. The grant by Congress to the railroad in 1862 was of the odd-numbered sections, which made for a checkerboard effect. The aforesaid Section 15 is hence surrounded on all four sides by sections of the public domain. In 1938 the Bureau of Reclamation built the Seminoe Reservoir to the west and south of Section 15. Down though the years the reservoir and adjacent area have been used for fishing and hunting. Problems have arisen concerning the ability of the public to gain access to the area. In 1965, several livestock operators established Elk Mountain Safari, Inc., ¹ which proceeded to institute a system of "access fees" which the public had to pay before they could get into the area. The Government received complaints about this practice, and attempted to negotiate with the livestock owners to secure public access to the Seminoe Reservoir area. When these negotiations failed, the Government decided to relocate and improve an existing dirt road in that area in order to provide the public access to the reservoir area from a nearby public highway. The Government's effort to establish such a road is what generated the present dispute.

Reference is now made to the appendix which is a sketch of the area in question. Section 15, as well as other odd-numbered sections, which on the sketch are shaded, are owned by the plaintiff as the successor-in-title to the railroad. As indicated, the Seminoe Reservoir lies to the west and south of Section 15. Sections 14, 22, and 16 are public domain belonging to the United States. The Hanna-Leo Road, a county road, runs more or less north and south at the eastern edge of Section 14.

In an effort to give the public access to the reservoir area, and at the same time minimize any possible trespass to plaintiff's lands, the Bureau of Land Management proposed to use a pre-existing road that ran westerly from the Hanna-Leo county road in Section 14, crossing the corner of Section 15 into Section 22, and to then relocate the road so as to run westerly across the top of Section 22, which was public domain, and then across the southwest corner of Section 15 into Section 16, again part of the public domain, and thereby gain access to the reservoir. ²

On or about December 20, 1973, the Bureau began to blade this pre-existing road which ran from the Hanna-Leo Road, a public highway, into Section 14. In this regard, the parties stipulated as follows:

(BLM) began blading a pre-existing road starting at a county road in the south half of Section 14, Township North, Range 83 West, 6th P.M., on Bureau of Land Management lands, continuing westerly across said Section 14 and crossing the SE corner of Section 15 (fee section of Plaintiff Leo Sheep Company) approximately 30 feet from the Section corner through a pre-existing cattleguard into Bureau of Land Management Section 22, thence continuing southwesterly approximately 1000 feet where the blading operation departed the pre-existing road and resumed a westerly course marking a new route to the NW corner of Bureau of Land Management Section 22 co-terminal with the SW corner of Plaintiff Leo Sheep Company Section 15, crossing said SW corner of Section 15 approximately four feet from said section corner, into Bureau of Land Management Section 16 and thence bladed westward to the shore of Seminoe Reservoir.

As indicated above, both the plaintiff and the Government moved for summary judgment based on a stipulation as to the pertinent facts. To resolve fully what is to us a rather complex problem by summary judgment is perhaps overly ambitious. Be that as it may, the Government's primary position in the trial court, as well as in this Court, has been that in the 1862 congressional grant to the Union Pacific Railroad, the plaintiff's predecessor in title, there was an implied reservation of an easement. The trial court concluded as a matter of law that there was no such implied reservation of an easement, nor was there any common law easement by way of necessity, and on this basis entered summary judgment in favor of the plaintiff. Our study of the matter convinces us that the trial court erred in concluding that there was no implied reservation in the congressional grant of 1862.

In its grant to the railroad in 1862, Congress granted the railroad the odd-numbered sections on both sides of the proposed railroad right-of-way extending back from the right-of-way some 10 miles. In 1864 the legislative grant was doubled to encompass lands lying within 20 miles on each side of the railroad. The even-numbered sections, which were not conveyed to the railroad, continued to be in the public domain. By granting to the railroad the odd-numbered sections, and retaining the even-numbered sections, a checkerboard effect resulted. With some exceptions, odd-numbered sections were surrounded on all four sides by even-numbered sections which were part of the public domain. Similarly, even-numbered sections owned by the Government as public land were also generally surrounded on all four sides by odd-numbered sections granted to the railroad. As a consequence, after the grant in 1862, either the Government had an implied easement to cross land granted the railroad to gain entry into an even-numbered section, or it had to get permission from the railroad to do so on the latter's terms. It is in this context that we must study the congressional grant in 1862 to the railroad of the odd-numbered sections in Carbon County, Wyoming.

A legislative grant of public land is a law as well as a conveyance, and such effect must be given to it as will carry out the intent of Congress. Missouri, Kan. and Tex. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 24 L.Ed. 1095 (1878) and Schulenberg v. Harriman, 88 U.S. 44, 62, 22 L.Ed. 551 (1875). Admittedly, there was no express reservation of an easement in the congressional grant of 1862 with which we are here concerned, but appellants contend that the intent of Congress was such that there was an implied reservation of an easement of access to the retained sections. In order to determine whether there was an implied reservation of an easement of access, we look solely to the intent of Congress, as such will not be defeated by application of the rules of common law. Missouri, Kan. and Tex. Ry. v. Kansas Pac. Ry., 97 U.S. 491, 24 L.Ed. 1095 (1878).

Accordingly, our problem is to ascertain the intent of Congress when in 1862 it granted land in Carbon County to the railroad. The dominant intent behind the grant was not to help, as such, the railroads. The dominant intent, though not without military overtones, the Civil War being then in progress, was to "open up" the West and develop it. To settle the West, the building of railroads was essential. But to build a railroad was a costly venture, and railroad companies would not build a railroad in what was then a virtual wilderness without financial inducement. And the grant of land by the Government to the railroad was that inducement. United States v. Union Pac. R. R., 91 U.S. 72, 23 L.Ed. 224 (1875).

This and other similar grants were made to give access to the unsettled territories and to encourage...