Kindred v. Union Pacific Railroad Company

• Decision Date: 10 June 1912
• Docket Number: No. 51,51
• Citation: 56 L.Ed. 1216,32 S.Ct. 780,225 U.S. 582
• Parties: L. P. KINDRED et al., Appts., v. UNION PACIFIC RAILROAD COMPANY
• Court: U.S. Supreme Court

225 U.S. 582

32 S.Ct. 780

56 L.Ed. 1216

L. P. KINDRED et al., Appts.,

v UNION PACIFIC RAILROAD COMPANY.

No. 51.

Argued November 9, 1911.

Decided June 10, 1912.

Messrs. Edward D. Osborn, A. M. Harvey, and Frank Doster for appellants.

[Argument of Counsel from pages 583-588 intentionally omitted] Mr. Maxwell Evarts for appellee.

[Argument of Counsel from pages 588-590 intentionally omitted] Mr. Justice Van Devanter delivered the opinion of the court:

The ultimate question to be decided on this appeal is whether the appellee, the Union Pacific Railroad Company, has a right of way 400 feet in width across certain lands in the state of Kansas, formerly within the Delaware Diminished Indian Reservation. The facts out of which the question arises are there:

By the treaty of 1829 (7 Stat. at L. 327) with the Delaware Indians, it was provided that certain lands in the fork of the Kansas and Missouri rivers should be 'conveyed and forever secured' to those Indians 'as their permanent residence.' By the treaty of 1854 (10 Stat. at L. 1048) parts of the reservation so established were relinquished and the remainder retained for a 'permanent home.' Article 11 of this treaty declared that at the request of the Delawares the diminished reservation should be surveyed and each person or family assigned such portion as the principal men of the tribe should designate, the assignments to be uniform; and article 12 provided that railroad companies, when their lines of railroad necessarily passed through the diminished reservation, should have a right of way on payment of a just compensation. The treaty of 1860 (12 Stat. at L. 1129), after reciting such a request as was contemplated by the preceding treaty, provided that 80 acres of the diminished reservation should be assigned and set apart for the exclusive use and benefit of each Delaware and his heirs; that the tracts assigned should not be alienable in fee, leased, or otherwise disposed of, except to the United States or to other members of the tribe, and should be exempt from levy, taxation, sale, or forfeiture until otherwise provided by Congress; and that if any Delaware should abandon the tract assigned to him, the Secretary of the Interior should take such action in respect of its disposition as in his judgment might seem proper. Article 3 of this treaty gave to the Leavenworth, Pawnee, & Western Railroad Company, a Kansas corporation, a preferred right to purchase the unassigned lands in the reservation, and declared: 'It is also agreed that the said railroad company shall have the perpetual right of way over any portion of the lands allotted to the Delawares in severalty, on the payment of a just compen- sation therefor, in money, to the respective parties whose lands are crossed by the line of railroad.'

The act of July 1, 1862 (12 Stat. at L. 489, chap. 120), relating to the location, construction, and maintenance of the Union Pacific and other railroads, authorized the Leavenworth, Pawnee, & Western Railroad Company, before mentioned, to locate, construct, and maintain a railroad from the Missouri river, at the mouth of the Kansas river in Kansas, to a connection with the Union Pacific Railroad on the 100th meridian of longitude in Nebraska, and granted to it, as also to other companies named in the act, a right of way in the following terms:

'Sec. 2. . . . That the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; and the right, power, and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber, and other materials for the construction thereof; said right of 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 over the public lands, including all necessary grounds for stations, buildings, workshops, and depots, machine shops, switches, side tracks, turntables, and water stations. The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants hereinafter made.'

Other portions of the act required the Leavenworth, Pawnee, & Western Railroad Company to file with the Secretary of the Interior within six months after the date of the act an acceptance of its conditions, and within two years after such date a map of the general route of its road, and to complete 100 miles, commencing at the mouth of the Kansas river, within two years after such acceptance, and 100 miles per year thereafter until completion; and made provision for an official examination and approval of the completed road in sections of 40 consecutive miles. The company seasonably filed an acceptance of the conditions of the act and a map of the general route of its road, showing that the route extended from the mouth of the Kansas river to and across the Delaware Diminished Reservation. That part of the road was constructed on that route and put into operation within two years from the date of the act, and was duly examined and approved by the proper officers of the United States. Under Congressional authority the route for the remaining part of the road was subsequently changed so that the connection with the Union Pacific Railroad would be made at a point farther west than was originally intended, and the later construction conformed to this change, but this has no bearing here. The appellee, the Union Pacific Railroad Company, became in 1898, and now is, the successor in interest and title of the Leavenworth, Pawnee, & Western Railroad Company.

By the treaty of 1866 (14 Stat. at L. 793), provision was made for the removal of the Delawares from their home on the diminished reservation to lands secured for them...