Central Pac Ry Co v. Alameda County, Cal

• Decision Date: 15 February 1932
• Docket Number: No. 258,258
• Citation: 284 U.S. 463,52 S.Ct. 225,76 L.Ed. 402
• Parties: CENTRAL PAC. RY. CO. et al. v. ALAMEDA COUNTY, CAL., et al
• Court: U.S. Supreme Court

284 U.S. 463

52 S.Ct. 225

76 L.Ed. 402

CENTRAL PAC. RY. CO. et al.

v ALAMEDA COUNTY, CAL., et al.

No. 258.

Argued Jan. 7, 1932.

Decided Feb. 15, 1932.

Messrs. C. F. R. Ogilby, of Washington, D. C., and Frank Thunen and Guy V. Shoup, both of San Francisco, Cal., for petitioners.

Mr. Earl Warren, of Oakland, Cal., for respondents.

[Argument of Counsel from page 464 intentionally omitted] Mr. Justice SUTHERLAND delivered the opinion of the Court.

Petitioners brought this suit against respondents in a state superior court to quiet their title to certain lands lying within Alameda county, Cal. The bill alleges that the lands described constitute parts of the right of way granted by the Acts of Congress approved July 1, 1862, and July 2, 1864 (c. 120, 12 Stat. 489; c. 216, 13 Stat. 356), to the Central Pacific Railroad Company, predecessor in interest of the Central Pacific Railway Company, and leased to the Southern Pacific Company; that the county of Alameda and the other defendants, without the permission or consent, and against the will of petitioners, and without right or legal authority, had been and were then using the lands for highway or road purposes and thereby wrongfully excluding petitioners therefrom. To this bill respondents filed an answer and cross-complaint, denying some of the allegations of the bill, admitting others, and alleging affirmatively that the county of Alameda was the owner of the described lands, and was in possession and entitled to the possession thereof.

The trial court found that three of the described parcels, held in fee by the Central Pacific Railway Company were subject to an easement in favor of the county to maintain an existing right of way for highway purposes. A decree, entered accordingly, was affirmed by the state Supreme Court. 299 P. 75.

An abridged statement of facts found by the trial court and set forth at length in the opinion of the state Supreme Court follows:

A public highway between Niles and Sunol, through and along the bottom of Niles Canyon, was laid out and declared by the county in 1859, and ever since has been maintained. During that time it has served as one of the main arteries of travel between the bay regions of southern Alameda county and the Livermore Valley. In establishing the highway, the county acted by authority of, and in compliance with, the requirements of state statutes then in force. That portion of the canyon containing the segments of the highway here in question is narrow, deep, and rugged, and through it runs the Alameda creek. Steep cliffs make it impracticable to maintain a highway through the canyon except along the bottom thereof. In pursuance of the act of Congress of 1862, supra, granting a right of way four hundred feet wide across the public lands to the Central Pacific Railroad Company, the company designated as part of its right of way the route through Niles Canyon, which right of way, on account of the narrowness of the canyon, embraced part of the land occupied by the highway A single track railroad was completed in 1868, over which trains have since been operated, but thereby the free use of the highway never has been interfered with.

About the years 1910-11, owing to the effect of flood waters, a part of the highway was moved from one side of the creek to the other and beyond the railroad right of way; the discontinued portions being formally abandoned. When this suit was begun, the highway was within the right of way for stretches of about one-half a mile at the westerly end of the canyon, about one mile and a half at the easterly end, and for a short distance between the two. The physical conditions of the canyon are such as to render the use of the lands over these stretches for highway purposes a practical necessity. In reconstituting the highway in 1910-11, the line of the then existing road was substantially followed, except for the abandoned portions.

The trial court found that 'the said highway did not exist throughout in its present location hereinabove particularly described prior to March 27, 1911, but that these parts of the old road No. 247 (the road of 1859) not ex- pressly abandoned by the Board of Supervisors on said date and now included within the limits of county road No. 4974 (the road of 1910-11), are a part of the present traveled road.' The testimony of witnesses in respect of the identity of these parts of the new and the old roads is meager and leaves much to be desired in the way of certainty, as, owing to the great lapse of time, well might be expected. But that a road through the canyon was laid out and established in 1859, under and in accordance with the state law, and was thereafter used by the public, is not open to serious controversy, although the point is urged that the present road departs from the line of that first established. The original road was formed by the passage of wagons, etc., over the natural soil, and we know, as a matter of ordinary observation, that in such cases the line of travel is subject to occasional deviations owing to changes brought about by storms, temporary obstructions, and other causes. But, so far as the specific parcels of land here in dispute are concerned, we find nothing in the record to compel the conclusion that any departure from the line of the original highway was of such extent as to destroy the identity of the road as originally laid out and used. Even in the case of highways sought to be established by prescription, where the user must be confined to a definite line, slight deviations are not regarded as material. Nelson v. Jenkins, 42 Neb. 133, 137, 60 N. W. 311; Burleigh County v. Rhud, 23 N. D. 362, 364, 136 N. W. 1082; Moon v. Lollar, 203 Ala. 672, 85 So. 6; Gentleman v. Soule, 32 Ill. 271, 278, 83 Am. Dec. 264; Bannister v. O'Connor, 113 Iowa, 541, 543, 85 N. W. 767.

Here the question is not whether there had been such deviations from the original line of travel as to negative the claim that a road had been brought into existence by prescription, but whether there had been such substantial departures from portions of the line of the road established in 1859 as to constitute an abandonment of those portions of that road, and the substitution, pro tanto, of a new one so removed in location as to cause it to depend for its legality, not upon the original establishment, but upon independent facts and considerations. The burden of sustaining the affirmative of this proposition plainly rests upon the party who asserts it, since proof of the establishment of a road raises a presumption of its continuance; that is to say, the respondents having shown the establishment by the county of a road through Niles Canyon in 1859, the continuing identity of that road must be presumed until overcome by proof to the contrary, the burden of which rests upon the petitioners. Barnes v. Robertson, 156 Iowa, 730, 733, 137 N. W. 1018; Beckwith et al. v. Whalen, 65 N. Y. 322, 332; Eklon v. Chelsea, 223 Mass. 213, 216, 111 N. E. 866; Taeger v. Riepe, 90 Iowa, 484, 487, 57 N. W. 1125; Town of Oyster Bay v. Stehli, 169 App. Div. 257, 262, 154 N. Y. S. 849. This is in accordance with the general principle that a condition once shown to exist is presumed to continue. In the light of this presumption, and the absence of evidence clearly contravening it, we cannot say that the findings below are wholly without support. The conclusion follows that the portions of the highway now in question, prior to the grant of the railroad right of way of 1862, formed part of a legally constituted public road, which, since its establishment in 1859, has been in continuous use. In this view, the decree below must be affirmed upon principles settled by this court in respect of cognate cases.

By the Act of July 26, 1866, c. 262, 14 Stat. 251-253, Congress dealt with the acquisition of a variety of rights upon the public domain. By sections 1-7, mineral lands, whether surveyed or unsurveyed, are opened to exploration and occupation, subject to regulations prescribed by law, and to the local customs and rules of miners in the several districts. Section 8 (43 USCA § 932), the one with which we are here concerned, provides that 'the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.' By section 9 (43 USCA § 661) it is provided that rights to the use of water for mining, agricultural, or other purposes, which have vested and accrued and are recognized and acknowledged by local customs, laws, etc., shall be maintained and protected; 'and the right of way for the construction of ditches and canals for the purposes herein specified is...