Great Northern Ry Co v. United States, 149

CourtUnited States Supreme Court
Citation62 S.Ct. 529,315 U.S. 262,86 L.Ed. 836
Docket NumberNo. 149,149
Decision Date02 February 1942

315 U.S. 262
62 S.Ct. 529
86 L.Ed. 836



No. 149.
Argued Jan. 13, 14, 1942.
Decided Feb. 2, 1942.

Mr. F. G. Dorety, of St. Paul, Minn., for petitioner.

[Argument of Counsel from pages 262-266 intentionally omitted]

Page 266

Mr. Vernon L. Wilkinson, of Washington, D.C., for respondent.

[Argument of Counsel from pages 266-270 intentionally omitted]

Page 270

Mr. Justice MURPHY, delivered the opinion of the Court.

We are asked to decide whether petitioner has any right to the oil and minerals underlying its right of way acquired under the general right of way statute, Act of March 3, 1875, c. 152, 18 Stat. 482, 43 U.S.C.A. §§ 934—939.

The United States instituted this suit to enjoin petitioner from drilling for or removing gas, oil and other minerals so situated, and alleged in its complaint substantially that petitioner, in 1907, acquired from the St. Paul, Minneapolis and Manitoba Railway all of the latter's property, including rights of way granted it under the Act of March 3, 1875, a portion of which crosses Glacier County, Montana; that petitioner acquired neither the right to use any portion of such right of way for the purpose of drilling for or removing subsurface oil and minerals, nor any right, title or interest in or to the deposits underlying the right of way, but that the oil and minerals remained the property of the United States; and, that although no lease had been issued to petitioner under the Act of May 21, 1930, 46 Stat. 373, 30 U.S.C.A. §§ 301—306, petitioner claimed ownership of the oil and minerals underlying its right of way and threatened to use the right of way to drill for and remove subsurface oil.

Petitioner admitted certain allegations of fact, denied the allegation that title to the oil and minerals was in the United States, and asserted that it proposed to drill three separate oil wells—the oil from the first to be sold commercially, that from the second to be refined, the more volatile parts to be sold and the residue to be used on petitioner's locomotives, and that from the third to be used in its entirety by petitioner as fuel.

Pursuant to a motion therefor by the United States, judgment was rendered on the pleadings and petitioner was enjoined from 'using the right of way granted under

Page 271

the Act of March 3, 1875, 18 Stat. 482, for the purpose of drilling for or removing oil, gas and minerals underlying the right of way'. The Circuit Court of Appeals affirmed. 9 Cir., 119 F.2d 821. The importance of the question and an asserted conflict with Rio Grande Western R. Co. v. Stringham, 239 U.S. 44, 36 S.Ct. 5, 60 L.Ed. 136, moved us to grant certiorari. 314 U.S. 596, 62 S.Ct. 69, 86 L.Ed. —-.

The Act of March 3, 1875, from which petitioner's rights stem, clearly grants only an easement, and not a fee. Section 1 indicates that the right is one of passage since it grants 'the', not a, 'right of way through the public lands of the United States'. Section 2 adds to the conclusion that the right granted is one of use and occupancy only, rather than the land itself, for it declares that any railroad whose right of way passes through a canyon, pass or defile 'shall not prevent any other railroad company from the use and occupancy of said cayon, pass, or defile, for the purposes of its road, in common with the road first located'.1

Section 4 is especially persuasive. It requires the location of each right of way to be noted on the plats in the local land office, and 'thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way'.2 This reserved right to dispose of the lands subject to the right of way is wholly inconsistent with the grant of a fee. As the court below pointed out, 'Apter words to indicate the intent to convey an easement would be difficult to find' (119 F.2d 825). That this was the precise intent of Section 4 is clear from its legislative history.3 While Section 4 pro-

Page 272

vides a method for securing the benefits of the Act in advance of construction,4 no adequate reason is advanced for believing that it does not illumine the nature of the right granted. The Act is to be interpreted as a harmonious whole.

The Act is to be liberally construed to carry out its purposes. United States v. Denver, etc., Railway Co., 150 U.S. 1, 14, 14 S.Ct. 11, 15, 37 L.Ed. 975; Nadeau v. Union Pacific R. Co., 253 U.S. 442, 40 S.Ct. 570, 64 L.Ed. 1002; Great Northern R. Co. v. Steinke, 261 U.S. 119, 43 S.Ct. 316, 67 L.Ed. 564. But the Act is also subject to the general rule of construction that any ambiguity in a grant is to be resolved favorably to a sovereign grantor—' nothing passes but what is conveyed in clear and explicit language'—Caldwell v. United States, 250 U.S. 14, 20, 21, 39 S.Ct. 397, 398, 63 L.Ed. 816, and cases cited. Cf. Great Northern R. Co. v. Steinke, supra. Plainly there is nothing in the Act which may be characterized as a 'clear and explicit' conveyance of the underlying oil and minerals. The Act was designed to permit the construction of railroads through the public lands and thus enhance their value and hasten their settlement. The achievement of that purpose does not compel a construction of the right of way grant as conveying a fee title to the land and the underlying minerals; a railroad may be operated though its right of way be but an easement.5

Page 273

But were are not limited to the lifeless words of the statute and formalistic canons of construction in our search for the intent of Congress. The Act was the product of a period, and, 'courts, in construing a statute, may with propriety recur to the history of the times when it was passed'. United States v. Union Pacific R. Co., 91 U.S. 72, 79, 23 L.Ed. 224. And see Winona & St. Peter R. Co. v. Barney, 113 U.S. 618, 625, 5 S.Ct. 606, 609, 29 L.Ed. 1109; Smith v. Townsend, 148 U.S. 490, 494, 13 S.Ct. 634, 635, 37 L.Ed. 533; United States v. Denver, etc., Railway Co., 150 U.S. 1, 14, 14 S.Ct. 11, 15, 37 L.Ed. 975.

Beginning in 1850 Congress embarked on a policy of subsidizing railroad construction by lavish grants from the public domain.6 This policy incurred great public disfavor7 which was crystallized in the following resolution adopted by the House of Representatives on March 11, 1872:

'Resolved, that in the judgment of this House the policy of granting subsidies in public lands to railroads and

Page 274

other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.' Cong.Globe, 42d Cong., 2d Sess., 1585 (1872).

After 1871 outright grants of public lands to private railroad companies seem to have been discontinued.8 But, to encourage development of the Western vastnesses, Congress had to grant rights to lay track across the public domain, rights which could not be secured against the sovereign by eminent domain proceedings or adverse user. For a time special acts were passed granting to designated railroads simply 'the right of way' through the public lands of the United States.9 That those acts were not intended to convey and land is inferable from remarks in Congress by those sponsoring the measures. For example, in reporting a bill granting a right of way to the Dakota Grand Trunk Railway (17 Stat. 202), the committee chairman said: 'This is merely a grant of the right of way'.10 Likewise, in reporting a right of way bill for the New Mexico and Gulf Railway Company (17 Stat. 343), Mr. Townsend of Pennsylvania, the same Congressman who sponsored the Act of 1875, observed: 'It is nothing but a grant of the right of way.'11

Page 275

The burden of this special legislation moved Congress to adopt the general right of way statute now before this Court. Since it was a product of the sharp change in Congressional policy with respect to railroad grants after 1871, it is improbable that Congress intended by it to grant more than a right of passage, let alone mineral riches. The presence in the Act of Section 4, which, as has been pointed out above, is so inconsistent with the grant of a fee, strongly indicates that Congress was carrying into effect its changed policy regarding railroad grants.12

Also pertinent to the construction of the Act is the contemporaneous administrative interpretation placed on it by those charged with its execution. Cf. United States v. Johnston, 124 U.S. 236, 253, 8 S.Ct. 446, 454, 31 L.Ed. 389; United States v. Moore, 95 U.S. 760, 763, 24 L.Ed. 588; Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 315, 53 S.Ct. 350, 358, 77 L.Ed. 796. The first such interpretation, the general right of way circular of January 13, 1888, was that the Act granted an easement, not a fee.13 The same position was taken in the regulations of March 21, 1892, 14 L.D. 338, and those of November 4, 1898, 27 L.D. 663. While the first of these circulars followed the Act by 13 years, the weight to be accorded them is not dependent on strict contemporaneity. Cf. Swendig v. Washington Water Power Co., 265 U.S. 322, 44 S.Ct. 496, 68 L.Ed. 1036. This early administrative gloss received indirect Congressional approval when Congress repeated the language of the Act in granting canal and reservoir companies rights of way by the Act of March 3, 1891, c. 561, 26 Stat.

Page 276

1101, 43 U.S.C.A. § 946, and when Congress made the Act of 1875 partially applicable to the Colville Indian Reservation by Act of March 6, 1896, c. 42, 29 Stat. 44. Cf. National Lead Co. v. United States, 252 U.S. 140, 146, 40 S.Ct. 237, 239, 64 L.Ed. 496.

The circular of February 11, 1904, 32 L.D. 481, described the right as a 'base or qualified fee'. This shift in interpretation was probably due to the description in Northern Pacific R. Co....

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