H.A. & L.D. Holland Co. v. Northern Pac. Ry. Co.

• Decision Date: 18 May 1914
• Docket Number: 2332.
• Citation: 214 F. 920
• Parties: H. A. & L. D. HOLLAND CO. v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

214 F. 920

H. A. & L. D. HOLLAND CO. v. NORTHERN PAC. RY. CO.

No. 2332.

United States Court of Appeals, Ninth Circuit.

May 18, 1914

Turner & Geraghty and Post, Avery & Higgins, all of Spokane, Wash for appellants.

C. W Bunn, of St. Paul, Minn., and E. J. Cannon and Graves, Kizer & Graves, all of Spokane, Wash., for appellee.

Before GILBERT and ROSS, Circuit Judges, and DIETRICH, District Judge.

DIETRICH District Judge.

The appellants are severally the owners of property in the city of Spokane, abutting on what is referred to in the record as 'Railroad street,' which is a strip of land 225.7 feet wide, occupied in part by the railroad tracks of the defendant company, and intersected by cross-streets. Upon February 6, 1912, by ordinance, the city required the defendant to separate its grade from the street grades, and this it proposes to do by means of a dirt fill, approximately 15 feet high and 85 feet wide, with retaining walls of stone or concrete. To prevent the creation of such an obstruction in front of their property in what they contend is a public street appellants have brought these suits. 'Railroad street' is embraced in the north half of section 19 township 25 north, range 43 east, B.M., and lies 100 feet upon the southerly side and 125.7 feet upon the northerly side of the center line of the defendant's main track. Title to the whole of section 19 was acquired under the provisions of the Northern Pacific Land Grant Act of July 2, 1864 (13 Stat. 365). By the first section of that act the Northern Pacific Railroad Company was created, with power to construct and operate a continuous line of railroad from Lake Superior to Puget Sound. The material parts of sections 2 and 3 are as follows:

'Sec. 2. And be it further enacted, that the right of way through the public lands be, and the same is hereby, granted to said 'Northern Pacific Railroad Company,' its successors and assigns, for the construction of a railroad and telegraph as proposed; and the right, power, and authority is hereby given to said corporation to take from the public lands, adjacent to the line of said road, material of earth, stone, timber, and so forth, for the construction thereof. Said way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turntables, and water stations; and the right of way shall be exempt from taxation within the territories of the United States. * * *

'Sec. 3. * * * That there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast, and to secure safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preemption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.'

The railroad company duly signified its acceptance, and upon October 4, 1880, definitely located its line of road through this section 19, which was then unreserved public land subject to the grant, by filing a plat thereof in due form in the office of the Commissioner of the General Land Office, as required by law, and constructed its road upon the line so fixed. On January 20, 1881, it platted a part of the section as 'Railroad addition to Spokane Falls,' and filed a map thereof in the auditor's office of Spokane county. Upon this map most of the streets, both those parallel with and those crossing the railroad track, are shown to be 75 feet wide, but Railroad street, as already stated, 225.7 feet, with the exception of the easterly end, where it gradually widens out into an unplatted area. A single railroad track is delineated as extending along Railroad street and near the center thereof; also, two short side tracks and a depot or station building. The material part of the written dedication indorsed upon the plat is as follows:

'The width of streets and alleys and size of lots and blocks are as designated in the plat and explanation. The streets shown upon said plat are dedicated to be used by the public until lawfully vacated except the strip of land 225.7 feet in width designated as Railroad street which is reserved for the tracks and use of said railroad company.'

Thereafter, lots were sold by reference to this plat, among which were those now owned by the plaintiffs, and by the purchasers buildings were constructed thereon. In 1896, through a judicial sale, the defendant succeeded to all the property and franchises of the railroad company.

It is urged by the plaintiffs that the townsite plat, with its indorsements, constitutes a statutory dedication, but if insufficient for that purpose the actual use of the strip by the public, and the conduct and representations of the railroad company's agents and officers were such as to create a common-law dedication and an estoppel in pais. Upon the other hand, the defendant resists these contentions, and further asserts that the railroad company was incapable of divesting itself of title to the land, and that neither private persons nor the public could acquire any rights therein without the consent of Congress. It is conceded that the city could not legally authorize such exclusive occupancy of a street as would be required for the construction and maintenance of the proposed grade, and the controlling question therefore is whether the strip of land is a public street.

1. Our first inquiry relates to the nature of the railroad company's estate. If title vested in it by operation of section 3 of the grant, there is no room for controversy touching the extent of its rights, for upon that assumption it became clothed with full power of disposition, such as is ordinarily incident to unrestricted private ownership. But a different case is presented if the strip constitutes a part of the right of way granted by section 2. Lands falling within this provision are acquired upon the implied condition that they be used for railroad purposes, and the rights conferred are limited to such use. Generally speaking, it is not within the power of the grantee to defeat the designated purpose of the grant by a voluntary alienation of title, or by abandoning possession to an adverse claimant.

'Manifestly, the land forming the right of way was not granted with the intent that it might be absolutely disposed of at the volition of the company. On the contrary, the grant was explicitly stated to be for a designated purpose, one which negated the existence of the power to voluntarily alienate the right of way or any portion thereof. The substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad, just as though the land had been conveyed in terms to have and to hold the same so long as it was used for the railroad right of way. In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. ' Northern Pacific Railway Co. v. Townsend, 190 U.S. 271, 23 Sup.Ct. 672, 47 L.Ed. 1044.

That Railroad street is part of the right of way so acquired, we entertain no doubt. Physically it is embraced within the boundaries thereof; the grant was in praesenti, and was given precision by the filing of the map of definite location; the construction of the road was not a condition precedent to the transfer of title, but title passed upon the selection of a definite route, attended with notice to the government of such selection, through the filing of the map of definite location. N.P.R. Co. v. Murray, 87 F. 648, 31 C.C.A. 183; Land Co. v. Griffey, 143 U.S. 32, 12 Sup.Ct. 362, 36 L.Ed. 64; Tarpey v. Madsen, 178 U.S. 215, 20 Sup.Ct. 849, 44 L.Ed. 1042; Missouri, etc., R. Co. v. Cook, 163 U.S. 491, 16 Sup.Ct. 1093, 41 L.Ed. 239; Railroad Co. v. Dunmeyer, 113 U.S. 629, 5 Sup.Ct. 566, 28 L.Ed. 1122; Van Wyck v. Knevals, 106 U.S. 360, 1 Sup.Ct. 336, 27 L.Ed. 201; Railroad Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578. There is nothing to the contrary in Jamestown, etc., R. Co. v. Jones, 177 U.S. 125, 20 Sup.Ct. 568, 44 L.Ed. 698, or Stuart v. U.P.R. Co., 227 U.S. 342, 33 Sup.Ct. 338, 57 L.Ed. 535, or N.P.R. Co. v. Smith, 171 U.S. 260, 18 Sup.Ct. 794, 43 L.Ed. 157. In the first and second of these cases it was decided only that the definite location of a route may, not must, be made by the actual construction of the road. In the Smith Case it was apparently the opinion of the court that the filing of the map of definite location did not necessarily exhaust the railroad company's power of selection, and that, under the circumstances there shown, it acquired a right of way along the line of the road as...