Northern Pac. R. Co. v. Murray

• Decision Date: 09 May 1898
• Docket Number: 372.
• Citation: 87 F. 648
• Parties: NORTHERN PAC. R. CO. v. MURRAY.
• Court: U.S. Court of Appeals — Ninth Circuit

87 F. 648

NORTHERN PAC. R. CO. v. MURRAY.

No. 372.

United States Court of Appeals, Ninth Circuit.

May 9, 1898

Crowley & Grosscup, for plaintiff in error.

Parsons Parsons & Parsons and Carroll B. Graves, for defendant in error.

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

BELLINGER District Judge.

This action grows out of the construction and maintenance by the Northern Pacific Railroad Company of its branch line from Yakima to Swank Creek, in the state of Washington, upon lands claimed by the defendant in error. By section 2 of the act of congress of July 2, 1864, creating the Northern Pacific Railroad Company, it is provided as follows:

'Sec 2. * * * 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 land 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.'

At the date of the passage of this act the lands in dispute were unoccupied public lands of the United States. On May 10, 1884, the railroad company definitely located its branch line of road from Yakima to Swank Creek, and on May 24th filed a plat of such location in the office of the commissioner of the general land office, which was approved by the secretary of the interior; and on January 8, 1885, the lands so located were withdrawn from sale. Subsequent to the grant, and prior to the definite location of the line of road, on July 5, 1873, one Frederick Ludi received a patent for a portion of the tract including the land now used for right of way by the company, in accordance with steps theretofore taken by him to that end; and on June 5, 1873, one William Berry in like manner received a patent for the tract which includes the remaining portion of the lands in dispute. The defendant in error succeeded to these titles in 1888, through one Smith, grantee of Ludi and Berry. In the year 1886 the railroad company built its road on the lands in dispute, and has since maintained and operated it there. But the line so constructed and maintained is not upon the line as definitely located in 1884. It is conceded that a definite location of a line of road takes effect, as to the right of way, by relation from the date of the grant.

The first question to be considered is whether the grant of right of way is fixed by the location of the road as constructed, without reference to variations of such location from that shown by maps filed in the land office by the grantee company. If so, the company has a right of way, effective by relation from July 2, 1864, the date of the granting act, and has priority over the title under which the defendant in error claims. By section 3 of the granting act, the grant becomes definite when the line of road is definitely fixed, and a plat thereof is filled in the office of the commissioner of the general land office, so that the limits of the grant become fixed when the line of route is thus located. In this case such line was established by a map of definite location filed in May, 1884, nearly 20 years after the granting was passed. It is undisputed that the right of way, as thus ascertained, was vested in the company as of the date of the act of congress, and it does not follow the line of construction where that deviates from the line of such location. Smith v. Railroad Co., 7 C.C.A. 397, 58 F. 513. It is conceded that the route must be considered as definitely fixed when its map of location is filed, upon the authority of decisions of the supreme court of the United States, where the question related to the limits of nd grants, but it is sought to distinguish the question thus presented from that arising in this case. As to this, the circuit court of appeals for the Eighth circuit, in the case cited, says:

'But it is not perceived how the line of this railroad can be consistently held to be definitely and unalterably fixed, under the act of congress, by filing its map of definite location, and yet be subject to another and subsequent definite fixing, on a different line, by its actual construction, for this is simply to say that a line which is 'definitely fixed' is indefinitely changeable.

Nor is it perceived how this act of congress can be held to give the company the power to select and definitely fix one line of railroad for the purposes of its land grant, and another and a parallel line for the purposes of its right of way.'

Every consideration upon which the land grant companies are held to the lines of location designated in maps filed for that purpose by them, when the question was with reference to the grant of lands, applies equally in cases involving rights of way. The company makes its own selection of route, and it takes its own time in doing so. It is not concluded by any survey and selection it may make. As stated by the court in Land Co. v. Griffey, 143 U.S. 32, 12 Sup.Ct. 362:

'It may survey and stake many, and finally determine the line upon which it will build by a comparison of the cost, and advantages of each; and only when, by filing its map, it has communicated to the government

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