Oregon Short Line Railroad Co. v. Murray City

• Citation: 2 Utah 2d 427,277 P.2d 798
• Decision Date: 10 December 1954
• Docket Number: No. 8122,8122
• Parties: d 427 OREGON SHORT LINE RAILROAD COMPANY, a corporation, and Union Pacific Railroad Company, a corporation, Plaintiffs and Respondents, v. MURRAY CITY, a municipal corporation, Defendant and Appellant, Statewide Plumbing and Heating Company, Inc., a corporation, Defendant.
• Court: Supreme Court of Utah

Page 798

277 P.2d 798

2 Utah 2d 427

OREGON SHORT LINE RAILROAD COMPANY, a corporation, and Union

Pacific Railroad Company, a corporation, Plaintiffs and Respondents, v. MURRAY CITY, a municipal corporation, Defendant and Appellant,

Statewide Plumbing and Heating Company, Inc., a corporation,

Defendant.

No. 8122.

Supreme Court of Utah.

Dec. 10, 1954.

Wendell Day, City Atty., Murray, Fabian, Clendinin, Moffat & Mabey, Salt Lake City, for appellant.

Marvin J. Bertoch, M. J. Bronson, A. U. Miner, Bryan P. Leverich, Howard F. Coray, Salt Lake City, for respondents.

McDONOUGH, Chief Justice.

This is a dispute over the ownership of a strip of land eleven city blocks long and approximately four rods wide within the corporate limits of Murray City. Its arrival in this court has been presaged by a series of quarrels between the railroad and the city, dating at least from 1919, usually occasioned by the city's installation of public improvements and apparently settled in a manner unsatisfactory to both parties. When Murray City began laying sewer pipes along this strip, known as Second West Street, some preliminary negotiations for a contract indemnifying the railroad against damage were entered into but they failed and the railroad brought suit, obtaining a temporary injunction against the city and the present appeal is prosecuted from the subsequent trial. After the issuance of the temporary injunction, the railroad discovered that the projected sewer line would be laid some 17 feet beyond its ballast and would not interfere with its signal system and hence acquiesced in the city's operation. Therefore, the real question to be determined here is the rights of the respective parties in the land.

The lower court held that, by appropriation of the public domain by construction of trackage thereon in 1871 and by warranty deeds obtained within the decade following, the railroad acquired the fee title to a portion of the contested strip approximately 33 feet east of the center of its tracks and 11 feet west of the center. The trial court also found that Murray City holds fee title to land to the west of the tracks because of appropriation and use by the public when that land was in the public domain. Murray City appealed, contending that the entire strip was appropriated as a highway prior to the construction of the railroad and that the railroad tracks ran down the center of the portion so appropriated and that the railroad's deeds were subject to the highway right of way acquired by the public. The railroad cross appealed, contending that the trial court erred in finding that the public acquired a right of way over any portion of the strip while it was public domain and in holding that Murray City had the right to lay sewer lines without permission from the railroad.

Inasmuch as there are several points of law involved on this appeal the facts giving rise to each will be discussed in relation to those points. The first question is whether the railroad could acquire property under the Federal Act of 1866 referring to 'highways' over public lands, 43 U.S.C.A. § 932, since the Act specifically granting the railroads the right-of-way over public lands, 43 U.S.C.A. § 934, was not passed until March, 1875, nearly four years after the construction of this railroad.

R.S. § 2477, 43 U.S.C.A. § 932 reads:

'The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.'

Although there is authority for strict interpretation of the word 'highways' as used in this statute, Burlington, K. & S. W. R. Co. v. Johnson, 38 Kan. 142, 16 P. 125; Red River, etc., R. Co. v. Sture, 32 Minn. 95, 20 N.W. 229, it has frequently been held in cases following Flint & P. M. R. Co. v. Gordon, 41 Mich. 420, 2 N.W. 648, that a railroad is a highway within the meaning of the statute. 73 C.J.S., Public Lands, & 168, p. 819; Tennessee & C. R. Co. v. Taylor, 102 Ala. 224, 14 So. 379; Sams v. Port Royal, etc.., R. Co., 15 S.C. 484; Verdier v. Port Royal R. Co., 15 S.C. 476; Atchison, T. & S. F. R. Co. v. Richter, 20 N.M. 278, 148 P. 478, L.R.A.1916F, 969.

In Flint & P. M. R. Co. v. Gordon, supra, the Michigan court considers the indications of the intent of Congress taken from historical circumstances as controlling in the construction of the statute. The predecessor of the statute under consideration, enacted in 1852, 10 Stat. 28, specified that a right of way was granted for 'all Rail and Plank Roads and Macadamized Turnpikes passing through the Public Lands' for construction completed within 15 years from the date of passage of the statute. This act, the court reasons, was intended to grant the right of way to roads constructed by private companies because the states and territories already had the tacit acquiescence of the United States for construction of public-sponsored highways across the public domain, and it was allowed to expire because Congress deemed it best to make a general provision in the Act of 1866 both to continue the building of these roads by private industry and to give sanction of law to the custom of taking public lands for common wagon roads. In view of the known policy of encouragement of the settlement of the uninhabited lands in the West, the court concludes that the legislative intent in suffering the Act of 1852 to expire and in not providing specifically for railroads again until 1875 could only be explained as an expression that Congress intended the Act of 1866 to cover such private construction:

'As bearing upon the construction of the act of 1866 we may well take notice of the fact that, at the time the United States were seeking to stimulate and encourage the construction of railroads in the newer sections of the country by making large grants of land to the projectors, two motives may be said to have influenced this action: First, the general benefit to the country by encouraging new settlements; second, the general benefit to the interest of the United States, as proprietor of other lands, by giving to such other lands additional market value, and creating increased demand for them. It would certainly be very remarkable if, while thus pursuing a policy of liberal encouragement to railroads, the United States should purposely withhold a favor so unimportant to the government as permission to cross the public domain; a permission, too, almost certain, so far as it had influence, to be beneficial. It would be specially remarkable if, in so withholding this privilege, the United States were, in fact, discriminating against this form of thoroughfare.' [41 Mich. 420, 2 N.W. 653.]

Inasmuch as the railroad here has acquired warranty deeds from patentees of the land in dispute to all but approximately 758 feet of the area covered by its tracks and appurtenances, whether it did take land for right of way purposes under the Act of 1866 is important only as to this small section. Naturally, if Murray City has proven that the public had already accepted the Congressional grant for a highway prior to the time the railroad was built, then the land was segregated from the public domain and the land taken by the railroad in warranty deeds would be subject to the highway. Ball v. Stephens, 68 Cal.App.2d 843, 158 P.2d 207; Leach v. Manhart, 102 Colo. 129, 77 P.2d 652.

Appellant Murray City could produce no direct evidence that there was a public road in existence prior to 1871, the date of the railroad construction, and relied upon inferences arising from this evidence: (1) the 24th District School was built sometime after 1874 east of the railroad track, when the only means of ingress and egress was the street now known as Second West, (2) two witnesses testified that they could remember the road's being used, both east and west of the tracks, as early as 1899, (3) four early deeds from contiguous landowners described among the courses 'a county road' (the earliest of these deeds is dated December 16, 1874), (4) one of the four deeds refers to Second West Street as 'a four rod street' (however, Second West Street does not extend at the present time as far south as the property conveyed by this deed), (5) an official highway plat of Salt Lake County adopted in 1898, (6) houses have stood beyond the east side of the tracks for as long as the witnesses above mentioned can remember (1899) and (7) dates of patents issued to the land over which the railroad runs cover a period from 1872 to 1875.

It is true that the railroad could not validly claim under the Act of 1866 an acceptance of the Congressional grant of a right of way if that land had been withdrawn from the public domain. When a valid entry has been made by a citizen, that portion of the public land covered by the entry is segregated from the public domain, is appropriated to the private use of the entryman, and is not included in subsequent grants made by Congress. Holt v. Murphy, 207 U.S. 407, 28 S.Ct. 212, 52 L.Ed. 271; McMichael v. Murphy, 197 U.S. 304, 25 S.Ct. 460, 49 L.Ed. 766; Hastings & D. R. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363, Kansas Pac. R. Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, 28 L.Ed. 1122. However, the present case does not involve a protest by a patentee or his successor, for, indeed, the railroad here owns by deed the fee title to all but 758 feet of land under its tracks by deed. It is said in Enid & Anadarko R. Co. v. Kephart, 19 Okl. 1, 91 P. 1049, that a railroad company appropriating land for its right of way across land covered by homestead entry is an unlawful trespasser, and obtains no right either in law or equity. However, even assuming that an inference could be drawn that the patentees were in occupation as homesteaders five years prior to receiving their patents (there is nothing in evidence to indicate whether their rights were thus obtained or whether their occupation was for a shorter time under preemption laws), the railroad's right of way is not...