Southern Pac. R. Co. v. Orton

• Decision Date: 15 December 1879
• Citation: 32 F. 457
• Parties: SOUTHERN PAC. R. CO. v. ORTON. [1]
• Court: United States Circuit Court, District of California

32 F. 457

SOUTHERN PAC. R. CO. v. ORTON. ^[1]

United States Circuit Court, D. California.

December 15, 1879

[Copyrighted Material Omitted]

This is an action to recover possession of certain lands situate in Tulare county. The plaintiff claims title under a congressional grant made to aid in the construction of the Southern Pacific Railroad, and a patent issued in pursuance of the grant; and the defendant claims as a pre-emptioner.

The Southern Pacific Railroad Company became duly incorporated under the general statute of the state of California of 1861 providing for the incorporation of railroad companies, (St 1861, 607,) by filing its articles of association in the office of the secretary of state on December 2, 1865. The act requires, among other things, the articles of association to state 'the place from and to which the proposed road is to be constructed, and the counties into and through which it is intended to pass, and its length as near as may be. ' Id. 608, Sec. 2. It also provides, that, upon filing the articles, the parties named therein 'shall be a body politic and corporate, by the name stated in such articles of association, and shall be capable in law to make all contracts, acquire real and personal property, purchase, hold, convey any and all real and personal property whatever, necessary for the construction, completion, and maintenance of such railroad, and for the creation of all necessary buildings and yards, or places and appurtenances, for the use of the same, and be capable of suing and being sued, and have a common or corporate seal, and make and alter the same at pleasure, and generally to possess all the powers and privileges for the purpose of carrying on the business of the corporation that private individuals and natural persons now enjoy. ' Id. Sec. 3. Section 17, pt. 1, authorizes 'such examination and surveys for the proposed railroad to be made as may be necessary to the selection of the most advantageous route for the railroad. ' Part 2: 'To receive, hold, take, and convey, by deed or otherwise, the same as a natural person might, or could, do, such voluntary grants and donations of real estate, and other property of every description, as shall be made to it, to aid and encourage the construction, maintenance, and accommodation of such railroad. ' Part 6: 'To cross, join, and unite its railroad with any other railroad, either before or after construction, at any point upon its route,' etc. Part 7: 'To change the line of its road, in whole or in part, whenever a majority of the directors shall so determine, as is provided hereinafter; but no such change shall vary the general route of such road, as contemplated in the articles of association of such company. ' Part 8: 'To receive by purchase, donation, or otherwise, any lands or other property of any description, and to hold and convey the same in any manner the directors may think proper, the same as natural persons might, or could, do, that may be necessary for the construction and maintenance of its road, or for the erection of depots, turn-outs, workshops, warehouses, or for any other purposes necessary for the convenience of such companies, in order to transact the business usual for such railroad companies. ' Section 18 is as follows: 'If, at any time after the location of the line of such railroad, in whole or in part, and the filing of the map thereof, as provided by this act, it shall appear to the creditors of such company that the same may be improved, such directors may, from time to time, alter or change the line in any manner they may think proper, and cause a new map to be filed in the office where the map showing the first location is filed, and may thereupon take possession of the land embraced in such new location, that may be required for the construction and maintenance of such road of such new line, either by agreement with the owner, or owners, of such lands, or by such proceedings as are authorized under the provisions of this act, and use and enjoy the same in place of the line for which the new is substituted; but nothing in this act shall be so construed as to confer any powers on such companies to so change their road as to avoid any point named in their articles of association, except as provided in section 17, subd. 7, of this act.'

The said articles of association, filed December 2, 1865, set forth that the corporation was formed 'for the purpose of constructing, owning, and maintaining a railroad from some point on the bay of San Francisco, in the state of California, and to pass through the counties of Santa Clara, Monterey, San Luis Obispo, Tulare, Los Angeles, and San Diego, to the town of San Diego, in said state; thence eastward, through the said county of San Diego, to the eastern line of the state of California, there to connect with a contemplated railroad from the eastern line of the state of California to the Mississippi river. ' At the time of the formation of this corporation, Kern county did not exist; it having been created out of the southern part of Tulare and the northern part of Los Angeles counties on April 2, 1866. St. 1865-66, 796. So that a road running through the western portion of Kern county, as it now is, would on December 2, 1865, have run through Tulare and Los Angeles counties; and the Southern Pacific railroad, as now located and constructed, in fact runs through Tulare and Los Angeles counties, as they existed at the time of the filing of said articles of association, and that part of it in the present Kern county at no great distance from the line then contemplated, as, according to the articles, it was to pass out of San Luis Obispo into Tulare and Los Angeles before reaching Santa Barbara, which is not named in the articles, and left to the westward. At this time, also, no authority had been given by congress for the construction of any railroad from the Mississippi river to the eastern line of the state of California; although the thirty-third and thirty-fifth parallels of latitude had been publicly discussed as probable lines of future railroads, and it was, therefore, uncertain at what point of the line any road to be projected and constructed would intersect the eastern line of the state.

This being the condition of things, congress, on July 27, 1866 passed 'An act granting lands to aid in the construction of a railroad and telegraph line from the state of Missouri to the Pacific coast.' 14 St. 294. By the first section, the Atlantic & Pacific Railroad Company was incorporated and authorized to construct a railroad from the town of Springfield, in the state of Missouri, to the western boundary line of the state; thence 'to the head-waters of the Colorado Chiquito, and thence along the thirty-fifth parallel of latitude, as near as may be found suitable for a railway route to the Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route to the Pacific. ' Section 3 provides as follows: 'And be it further enacted that there be, and hereby is, granted to the Atlantic and 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 the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway and its branches, 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 pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the commissioner of the general land-office; and whenever prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers.' 14 St. 295. Section 4 provides that when 25 miles of the road have been completed according to the act, inspected by commissioners, and verified by them to the president, 'patents of lands as aforesaid shall be issued to said company, confirming to said company the right and title to said lands, situated opposite to and coterminous with said completed section of said road. ' Section 6 is as follows: 'And be it further enacted that the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry, or pre-emption before or after they are surveyed by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862, shall be, and the same are hereby, extended, to all other lands on the line of said road, when surveyed, excepting those hereby...