Chicago, M. & St. P. Ry. Co. of Idaho v. United States

• Decision Date: 02 November 1914
• Docket Number: 2351.
• Citation: 218 F. 288
• Parties: CHICAGO, M. & ST. P. RY. CO. OF IDAHO v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

218 F. 288

CHICAGO, M. & ST. P. RY. CO. OF IDAHO v. UNITED STATES.

No. 2351.

United States Court of Appeals, Ninth Circuit.

November 2, 1914

On March 21, 1905, the Commissioner of the General Land Office made and published an order temporarily withdrawing from sale, pending a decision of the President as to the advisability of creating a national forest reserve, a large body of vacant, unappropriated public lands situate in the state of Idaho, and on November 6, 1906, the President, by proclamation, set apart as a public reservation, with the exception of some minor tracts, the lands thus temporarily withdrawn, to be known as the 'Coeur d'Alene Forest Reserve.'

On October 23, 1906, the defendant filed in the United States land office at Coeur d'Alene, Idaho, its profile, survey and plat of a proposed right of way for a railroad through the reserve, traversing certain subdivisions particularly specified. On March 20, 1907, the defendant filed in the local land office an amended map and profile, changing the proposed route of its right of way, and the previous map was returned from the General Land Office without approval by the Secretary of the Interior. On May 10, 1907, the defendant filed in the local land office another amended map and plat of its proposed right of way through the reserve, differing from the last, and, in accordance with the practice, the first amended plat was also returned without approval.

On the same day the defendant, desiring immediate permission to begin construction of its railroad, acting through its general counsel, George R. Peck, entered into the following agreement in writing with the acting forester of the Forest Service:

'Whereas the Chicago, Milwaukee & St. Paul Railway Company of Idaho desires immediate permission from the Forest Service to begin construction of the company's railroad in the Coeur d'Alene National Forest, Idaho, I hereby promise and agree on behalf of the company that it will execute and abide by stipulations and conditions to be prescribed by the forester in respect to said railroad; such stipulations and conditions to be as nearly as practicable like those executed by the company on January 18, 1907, in respect to its railroad within the Helena National Forest, Montana.

'Dated May 10, 1907.

(Signed) Geo. R. Peck.'

This agreement was indorsed:

'Approved and advance permission given to construct, subject to ratification hereof by the company.

'Dated May 10, 1907.

James B. Adams, Acting Forester.'

In pursuance of such agreement, defendant was permitted to and did at once enter upon the construction of its railway over and across the lands of the Coeur d'Alene Forest Reservation, and so continued until the road was completed; but in the meanwhile, on December 3, 1907, defendant informed the forester that it ought not to be required to file ant stipulation whatever.

After entering into the agreement, the Secretary of Agriculture drafted a stipulation, and requested defendant to enter into and execute it, and on August 14, 1908, the Secretary of the Interior demanded of the defendant that it comply with the requirements of the Secretary of Agriculture as a condition precedent to the approval of defendant's map of May 10, 1907. The defendant refusing to comply with such condition, the map was, on October 29, 1908, rejected, and taken from the files of the Department of the Interior, and returned to defendant without approval by the Secretary.

The United States, for its bill of complaint, sets up these facts, and further shows, in effect, that on February 11, 1904, the Secretary of the Interior publicly promulgated certain regulations and conditions designed for the propublicly promulgated certain regulations and conditions designed for the protection of the public interest respecting forest reservations, setting out such as are thought to have relation to the present controversy; that the stipulation prepared by the Secretary of Agriculture was as nearly as practicable like the stipulation referred to in the Peck agreement; that the defendant has, without regard to the terms and conditions of the stipulation agreed to be entered into, and wholly in disregard of the rules and regulations prescribed and required by the Secretary of Agriculture and the Secretary of the Interior for the protection of forest reserves, cut large quantities of timber upon the reserve, and has destroyed and is destroying and causing to be destroyed large quantities of young timber, has thrown and deposited great quantities of rock, earth, gravel, and debris in the St. Joseph river, thereby obstructing its navigation and rendering it unfit for use in driving logs, and has set and caused to be set fires along the right of way, which have escaped from control and destroyed other timber on the reserve, all to the great damage of plaintiff; that the defendant has been repeatedly warned against its acts of trespass and waste committed contrary to the terms of the proposed stipulation and the rules and regulations of the Department, but has wholly disregarded said warnings, and openly threatens and intends to continue such disregard of the requirements of the proper authorities of the government.

The bill prays that defendant be required to enter into the proposed stipulation, to cease obstructing St. Joseph river and trespassing upon the reserve, and to discontinue constructing or operating its railroad within said reserve until it shall have executed and filed with the Secretary of the Interior the required stipulation and complied with the rules and regulations pertaining to forest reserves, for damages for cutting timber, etc., and for further relief.

Exceptions to the bill and a demurrer were interposed and denied. The answer controverts the legal effect of the temporary withdrawal order of the Secretary of the Interior of March 21, 1905, as it pertains to the matters in suit, also the authority of that officer to promulgate the rules and regulations prescribed by the order of February 11, 1904, and avers that on February 17, 1906, the Secretary of the Interior accepted for filing and duly filed due proofs of the defendant company's organization, made in pursuance of the act of Congress of March 3, 1875, entitled 'An act granting to railroads the right of way through the public lands of The united States,' but did not accept the map of location of its proposed railroad, being the same as filed in the local land office, as alleged in the bill of complaint. The answer also controverts the alleged purpose and effect of the Peck agreement, or that defendant in pursuance of said agreement entered into possession of the right of way for advance construction of its railroad through the reserve, but admits that defendant through its general counsel informed the forester that it ought not to be required to file any stipulation in the premises.

Further answering, the defendant avers that long prior to the proclamation of November 6, 1906, it had, by virtue of the provisions of the act of March 3, 1875, and compliance therewith, acquired and become vested with all the rights, privileges, and authorities conferred and to be conferred by said act, and thereby was entitled to take for its railroad a right of way and to construct its road thereon, and to take from the public lands material, earth, stone, and timber necessary for construction purposes, without payment to the government, all without regard to any rights claimed to have been conferred by the agreement of March 10, 1907; that such agreement was wholly without consideration, and, further, that the Peck agreement was entered into under a mistake of fact on the part of both the United States and the defendant as to the rights the defendant had acquired for construction of its railroad across the reserve under the act of March 3, 1875, prior to the proclamation of the President setting aside such reserve. But, without this, it is further averred that the defendant has the right to the benefits of the act of March 3, 1875, without payment of compensation of any kind to the United States, and that for the foregoing reasons the defendant has refused to ratify or confirm the Peck agreement of May 10, 1907.

The answer further calls in question the reasonableness of the terms and conditions of the stipulation prepared by the Secretary of Agriculture, and known as 'Exhibit G,' as to whether it is as nearly as practicable in conformity to the conditions of the stipulation entered into with respect to the Helena Forest Reserve, and controverts the authority of the Secretary of the Interior to prescribe such or any conditions or impose the same upon the defendant. It admits the cutting of timber, but denies liability, and denies obstruction of the St. Joseph river, and all liability for destruction of timber by fire. Lastly, it is averred that defendant constructed its road over the reserve with full knowledge on the part of the United States that defendant had not ratified the Peck agreement, and that it has so and continuously refused to ratify the same, and that by reason thereof the plaintiff is estopped now to insist that defendant execute the stipulation referred to in such agreement.

After a hearing upon the evidence, the court pronounced in favor of the plaintiff, and the defendant appeals.

F. M. Dudley, of Seattle, Wash., H. H. Field, of Chicago, Ill., and Geo. W. Korte, of Seattle, Wash., for appellant.

J. L. McClear, U.S. Atty., of Coeur d'Alene, Idaho, J. R. Smead, Asst. U.S. Atty., of Boise, Idaho, D. F. McGowan, Asst. Sol., Department of Agriculture, of Missoula, Mont., for the United States.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge (after stating the...