Phoenix & E. R. Co. v. Arizona Eastern R. Co.

• Citation: 84 P. 1097,9 Ariz. 434
• Decision Date: 30 March 1906
• Docket Number: Civil 910
• Parties: PHOENIX AND EASTERN RAILROAD COMPANY, a Corporation, Plaintiff and Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Defendant and Appellee
• Court: Arizona Supreme Court

84 P. 1097

9 Ariz. 434

PHOENIX AND EASTERN RAILROAD COMPANY, a Corporation, Plaintiff and Appellant, v. ARIZONA EASTERN RAILROAD COMPANY, a Corporation, Defendant and Appellee

Civil No. 910

Supreme Court of Arizona

March 30, 1906

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. Fletcher M. Doan Judge. Reversed.

On appeal to the United States Supreme Court.

Statement of facts: --

Action on complaint and cross-complaint to obtain, and enjoin interference with, possession of a railroad right of way. From a judgment against plaintiff, granting affirmative relief to defendant, plaintiff has appealed. Reversed.

T. J Norton, U. T. Clotfelter, L. H. Chalmers, and E. W. Camp, for Appellant.

Eugene S. Ives, for Appellee.

The Arizona Company became a specific grantee under the act of Congress on February 19th, the date upon which it filed its articles of incorporation and proofs of organization in the office of the register of the land-office at Tucson, and from and after that date was qualified to select and locate a railroad right of way on the public domain. Van Wyck v Knevals, 106 U.S. 360, 1 S.Ct. 336, 27 L.Ed. 201; Kueteni Valley R.R. Co., 28 L.D. 439; Washington etc. Ry. Co v. Coeur d'Alene R.R. Co., 52 F. 765.

The fact that the Phoenix Company had acquired a right of way on the south side of the river in October, 1902, is fatal to its acquiring any rights over the ground in dispute prior to the filing of its relinquishment of said south side right of way. Railroad Company v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, 28 L.Ed. 1122; Land Co. v. Griffey, 143 U.S. 32, 12 S.Ct. 362, 36 L.Ed. 64; Smith v. Northern Pacific Co., 58 F. 516, 7 C.C.A. 397; Oregon R.R. Co. v. Kirkenhall, 26 L.D. 594.

OPINION

NAVE, J.

-- Throughout this opinion, for brevity, the Phoenix and Eastern Railroad Company will be denominated the "Phoenix Company" and the Arizona Eastern Railroad Company the "Arizona Company." The Phoenix Company brought an action against the Arizona Company seeking to establish possession and right of possession of a strip of land, varying from one hundred feet to two hundred feet in width, eighteen miles long, lying on the north side of the Gila River, between Kelvin and Dudleyville, in Pinal County, for use as a right of way for its railroad, and to restrain the Arizona Company from interfering with this possession. It appears from the evidence, however, that the controversy was confined to a strip somewhat less than sixteen miles in length. The Arizona Company traversed this complaint and filed a cross-complaint praying for the same affirmative relief as that sought by plaintiff. The trial court found the facts adversely to plaintiff and entered judgment decreeing the Arizona Company to be entitled to the exclusive possession of the right of way in controversy, and perpetually enjoining the Phoenix Company from taking possession of any part thereof, from constructing or operating a railroad thereon, and from in any manner interfering with, hindering, or delaying the construction or operation, by the Arizona Company, of their line of railroad thereon. The Phoenix Company was duly incorporated and organized, under the laws of this territory, in August, 1901, for the purpose of constructing and operating a railroad from Phoenix to Benson. To secure the benefits of the act of Congress of March 3, 1875, (chap. 152, 18 Stats. 482, 1 Supp. Rev. Stats. 91; U.S. Comp. Stats. 1901, p. 1568,) it filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization, in July, 1902; and shortly thereafter surveyed, located, and commenced the construction of its road. In compliance with section 4 of the act (18 Stats. 483; U.S. Comp. Stats. 1901, p. 1569) the profile was filed on July 30, 1902, and approved on October 16, 1902. In December, 1903, the Phoenix Company caused surveys to be made which ultimately resulted in the determination to change a portion of its road, as originally located and shown upon this profile, from the south side of the Gila River to the north side thereof. This new way is distant from the former way from eight hundred feet to a mile. By the end of January, 1904, the Phoenix Company had completed fifty-two miles of its road, from Phoenix in an easterly direction, and was operating the same with a daily freight and passenger train. The roadbed was completed and the track laid for an additional fourteen miles and the roadbed partially completed nearly to the strip in controversy. On March 14, 1904, this company filed, in the local land-office at Tucson, Arizona, a profile of its road showing an amended location of the right of way which included the disputed strip, attached to which profile there was, in accordance with the rules of the land-office and in the form prescribed therein, an executed relinquishment of the portion of the right of way on the south side of the Gila River, opposite the strip in controversy, such relinquishment to take effect upon the approval of the new profile. The Arizona Company was incorporated under the laws of the Territory of Arizona on February 16, 1904. It filed a copy of its articles of incorporation and proofs of its organization. The date of that filing is disputed. We do not deem it necessary to determine it. This company was incorporated to construct and operate a railroad from Yuma to Clifton. The strip of land in controversy was so situated as to be reasonably and appropriately the object of location by either of these two companies. The Arizona Company caused a survey to be made along the north side of the Gila River, over the premises in dispute, and filed a profile thereof, in the local land-office in Tucson, Arizona, on March 14, 1904, two hours earlier than the filing by the Phoenix Company of the profile of its amended location.

The complaint and cross-complaint and various supplemental pleadings in this suit disclose that each company, when these pleadings were filed, was seeking the approval, by the secretary of the interior, of its profile, and each was resisting the approval of the profile filed by the other. At the time of the trial the secretary had not approved the profile filed by either company; nor, indeed, does it appear that the formal approval of the secretary has been given to either at the date of the writing of this opinion, although it is disclosed in the briefs that the matter has been fully litigated before that officer and his determination has been announced. The Phoenix Company, appellant, though it invoked the jurisdiction of the trial court and sought the relief granted to the appellee, now contends that the trial court did not have jurisdiction to entertain the suit or to grant the relief sought; or if the court had any jurisdiction, that its jurisdiction was limited to the granting of a temporary injunction pending the determination of the proceedings before the secretary of the interior, and that it could not determine the ultimate right of possession and decree a perpetual injunction to protect that possession; and, further, that upon the facts, whatever relief was granted should have been to appellant against appellee, instead of the reverse.

By the act of Congress of March 3, 1875, (chap. 152, 1 Supp. Rev. Stats. U.S. 91, 18 Stats. 482, 483; U.S. Comp. Stats. 1901, pp. 1568, 1569,) it is enacted as follows: --

"Section 1. That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized . . . which shall have filed with the secretary of the interior a copy of its articles of incorporation and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road. . . ."

"Sec. 4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land-office for the district where such land is located a profile of its road; and upon approval thereof by the secretary of the interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way. . . ."

It is urged by the appellee that the grant of this act is available to a corporation by compliance with two conditions: 1. By filing with the secretary a copy of its articles of incorporation and due proofs of its organization; and 2. By filing with the register of the land-office a profile of its road; that the acquisition of the right of way is entirely within the control of the corporation seeking it, irrespective of the approval or disapproval by the secretary of the interior of the profile or of the sufficiency of the articles of incorporation and proofs of organization. If this contention be well founded it follows that the trial court had jurisdiction of the action and jurisdiction to grant the full measure of relief sought. These companies having filed copies of their articles of incorporation, due proofs of their organization, and profiles of their roads, if no further act remained to be done, the question which of the two had actually acquired the right of way, and was the owner thereof, would be an appropriate subject of inquiry and adjudication by the court. Appellee contends, furthermore, that by filing its profile before appellant's profile of amended location was filed, appellee acquired the right of way; that proof of the fact is conclusive of the title and litigation.

For the...