Bybee v. Oregon Co

• Decision Date: 20 April 1891
• Citation: 139 U.S. 663,35 L.Ed. 305,11 S.Ct. 641
• Parties: BYBEE v. OREGON & C. R. CO
• Court: U.S. Supreme Court

139 U.S. 663

11 S.Ct. 641

35 L.Ed. 305

BYBEE v. OREGON & C. R. CO.

April 20, 1891.

This was an action originally begun in the state court for Jackson county, Or., and removed to the circuit court of the United States upon the petition of the defendant, upon the ground that the case involved the validity of conflicting grants of land from the United States. The plaintiff sued to recover for damages to a water-ditch and water-right, occasioned by the construction of the defendant's road. His complaint alleged, in substance, that on the 3d of September, 1883, he was the owner of an undivided half of a certain water-ditch and water-right on the sought side of Rogue river, in Jackson county, and in lawful lpossession of the same, as tenant in common with one Daniel Fisher; that upon this day the plaintiff and Fishe, f or the consideration of $250 paid to them, executed a deed to defendant of a right to construct and operate its railroad and telegraph line across the said water-ditch, but upon condition that it should not in any way destroy or injure the same, or obstruct their use and enjoyment of it as a means of conveying water through the same; and that the defendant accepted the deed, received possession of the water-ditch, and constructed its railroad and telegraph line across the same, but in such a manner as to permanently obstruct and destroy it, and render it impossible to use it for the conveyance of water, and refused to make any compensation to the plaintiff for his interest therein.

The answer of the defendant in substance denied the ownership of plaintiff and Fisher in any portion of the waterditch or water-right alleged to have been destroyed by the defendant, and denied their lawful possession thereof. It further denied that the deed set forth in the complaint contained any condition whatever, or that defendant ever assented to any condition connected with such deed, or received possession of the ditch under this deed; and alleged as a separate defense to the complaint that it was incorporated to construct and operate a railroad and telegraph line from Portland, in Oregon, and running thence southerly through the Williamette, Umpqua, and Rogue river valleys to the California line on the southern boundary of Oregon. That by section 3 of an act of congress, approved July 25, 1866, there was granted to it a right of way through the public lands of the United States, to the extent of 100 feet in width n each side of the said railroad where it might pass through such lands. That the lands through and over which the portion of the said waterditch, alleged to have been injured by defendant, was constructed and is situated, were at the date of said act public lands of the United States, over and upon which the defendant had the right, by virtue of the grant made in that act, to locate its right of way and construct its railroad and telegraph line. That in locating said right of way and constructing said road it became necessary for the defendant to appropriate to its use 100 feet in width on each side of its road, through and over which said land a portion of said water-ditch alleged to have been injured by defendant was located and constructed, and that the defendant did accordingly locate its right of way over the ground through which the water-ditch was dug, and constructed its road over such right of way; and that any injury which may have been done to said ditch was done in the course of such construction.

The answer further alleged that on May 17, 1879, the said Daniel Fisher attempted to appropriate to his own use, under the mining laws of the United States, a portion of said right of way, and constructed thereon the said ditch; that the only claim of right ever made by Fisher to locate and dig that portion of such ditch was obtained by virtue of his pretended compliance with certain provisions of the mining laws; that he had no other interest or ownership in such land than the right so acquired, and plaintiff's only interest therein was acquired under and through said Fisher; and that defendant took nothing by the deed mentioned in the complaint, as it then owned, by virtue of the said grant of the United States, all the rights and property pretended to be conveyed by said deed, and never received any consideration whatever for the sum alleged to have been paid by it for such pretended conveyance.

To this separate defense in the answer the plaintiff demurred, upon the grounds (1) that it did not state facts sufficient to constitute a defense; (2) that the facts stated in the complaint estopped the defendant from setting up the right of way mentioned in such defense, or any benefit under the congressional grant of the right of way of July 25, 1866, set forth in such defense; (3) that defendant had forfeited and lost all its right under suh g rant over the land where the ditch was situated by its failure to complete its railroad road on or before the 1st day of July, 1875, and had at no time since owned any right or interest in such land or right of way over the same.

The court below overruled the demurrer in an opinion reported in 11 Sawy. 479, 26 Fed. Rep. 586, and, the plaintiff not desiring to plead further, entered a final judgment in favor of the defendant, to reverse which the plaintiff sued out this writ of error.

John H. Mitchell, for plaintiff in error.

[Argument of Counsel from pages 666-673 intentionally omitted]

Page 673

C. H. Tweed and J. Hubley Ashton, for defendant in error.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.

Two questions are presented by the record in this case: First, whether the defendant lost the power to take possession of its right of way by its failure to construct its road within the time limited by the acts of congress; and, Second, whether it is estopped to claim that it took nothing under its deed from the plaintiff, and may set up a separate and independent title in itself.

1. By section 2 of an act of congress approved July 25, 1866, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from the Central Pacific Railroad in California to Portland, in Oregon,' (14 St. 239,) there was granted to such company organized under the laws of Oregon, as the legislature of said state should thereafter designate, to aid in the construction of its road, 'every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile,' not otherwise disposed of by the United States, with the right to select from the odd sections, within 10 miles beyond the limits of the granted lands, other lands in lieu of any which might have been so disposed of prior to the location of the line; and by section 3 there was granted to it the right of way through the public lands, to the extent of 100 feet in width on each side of said railroad, where it might pass over the public lands, including all necessary grounds for stations, etc.

By section 6 the companies were required to file their assent to the act within one year; to complete the first 20 miles within two years, and at least 20 miles in each year thereafter, and the whole on or before the 1st of July, 1875.

Page 674

Section 8 provided that in case the company should not complete the same as provided in section 6, 'this act shall be null and void, and all the lands not conveyed by patent to said company or companies, as the case may be, at the date of any such failure, shall revert to the United States;' but by a subsequent act of June 25, 1868, (15 St. 80,) the time for completing the road was extended to July 1, 1880.

That the company did not complete its road by the time limited by the act of 1868, namely July 1, 1880, is conceded by both parties, and is evident from the fact that the defendant took this deed from the plaintiff on December 3, 1883, wherein, for the consideration of $250, it was agreed that the defendant might enter upon plaintiff's water-ditch, and construct and operate its railroad and telegraph line over the same. Indeed, it appears to have been a matter of such common knowledge in the state of Oregon that the road was not constructed until after 1880 that the court below was inclined to take judicial notice of the fact.

The act making the grant in aid of this road does not, in its words of conveyance, differ materially from a large number of similar acts passed by congress in aid of the construction of roads in different parts of the west, which have been considered by this court as taking effect in praesenti, although the particular lands to which the grant is applicable remain to be selected and identified when the road is located, and the map is filed with the secretary of the interior. The act then operates as a grant of all odd-numbered sections within the limits, except so far as they may have been in the ean time 'granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of.' And in all the cases in which the question has been passed upon by this court, the failure to complete the road within the time limited is treated as a condition subsequent, not operating ipso facto as a revocation of the grant, but as aughorizing the government itself to take advantage of it, and forfeit the grant by judicial proceedings, or by an act of congress, resuming title to the lands. Thus, in Schulenberg v. Harriman, 21 Wall. 44, the act of congress granting the lands provided in what manner the sales should

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be made, and enacted that if the road were not completec within 10 years no further sales should be made, and the lands should revert to the United States. That was decided to be no more than a provision that the grant should be void if the condition subsequent were not performed. Said Mr. Justice FIELD in that case: 'It is settled law that no one can take advantage of the non-performance of a condition subsequent annexed...