Spokane & B.C. Ry. Co. v. Washington & G.N. Ry. Co.

• Decision Date: 13 April 1908
• Citation: 95 P. 64,49 Wash. 280
• Court: Washington Supreme Court
• Parties: SPOKANE & B. C. RY. CO. v. WASHINGTON & G. N. RY. CO. et al.

95 P. 64

49 Wash. 280

SPOKANE & B. C. RY. CO. v. WASHINGTON & G. N. RY. CO. et al.

Supreme Court of Washington

April 13, 1908

Appeal from Superior Court, Ferry County; D. C. Carey, Judge.

Action by the Spokane & British Columbia Railway Company against the Washington & Great Northern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

M. J. Gordon, Charles A. Murray, G. V. Alexander and Thomas R. Benton, for appellants.

W. T Beck and Alfred M. Craven, for respondent.

ROOT J.

This was an action by plaintiff to enjoin defendants from interfering with the use of a right of way for railway purposes through the Colville Indian reservation in this state. From a judgment and decree in favor of plaintiff, the defendants appeal.

By an act of Congress approved June 4, 1898 (30 Stat. 430) there was granted to the appellant Washington Improvement &amp Development Company and to its assigns a right of way for its railway, telegraph, and telephone lines through the Colville Indian reservation, beginning on the Columbia reiver near the mouth of the Sans Poil river, running thence northerly through said reservation toward the international line. There was also granted grounds adjacent for the purposes of stations, other buildings, side tracks, and switch tracks. The act provided for the filing of maps showing the route when determined upon, said maps of definite location to be approved by the Secretary of the Interior. These maps were subsequently filed, and were approved by the honorable Secretary prior to November 27, 1899. Before the commencement of this action the Washington Improvement & Development Company transferred all of its rights, privileges, and immunities acquired under this act of Congress to the appellant Washington & Great Northern Railway Company. Since the filing and approval of the maps of definite location as aforesaid, this respondent, acting under authority of Act Cong. March 3, 1875, c. 152, 18 Stat. 482 (U. S. Comp. St. 1901, p. 1568), and Act Cong. March 2, 1899 c. 374, 30 Stat. 990 (U. S. Comp. St. 1901, p. 1581), located a route for its railway over practically the same line indicated by the maps filed by the Washington Improvement & Development Company as aforesaid, and filed its maps with the Secretary of the Interior, who approved the same on October 17, 1905. The act of June 4, 1898, under which appellants claim, contained the following provision: 'Provided, that when a map showing any portion of said railway company's located line is filed herein as provided for, said company shall commence grading said located line within six months thereafter, or such location shall be void, and said location shall be approved by the Secretary of the Interior in sections of twenty-five miles before the construction of any such section shall be begun.' Section 5 of the statute reads as follows: 'That the right herein granted shall be forfeited by said company unless at least twenty-five miles of said railroad shall be constructed through the said reservation within two years after the passage of this act.' Neither the Washington Improvement & Development Company nor its successor, the Washington & Great Northern Railway Company, commenced grading within six months after the approval of its maps of definite location, nor did it construct 25 miles of railroad, nor any, within two years after the passage of the act. For these reasons the respondent claims that appellants' location of the strip indicated by its maps became void and forfeited, and that respondent had a right to go upon the same strip of land and survey and locate its line of railway; that, having surveyed and marked out its proposed line of railway upon substantially this same strip of ground after the expiration of the two years, and its said maps of location having been approved by the Secretary of the Interior, respondent claims that its location thereupon is legal, and that appellants have no rights whatever in the premises, and should be enjoined from in any manner interfering (which appellants were doing) with the respondent's use and occupancy thereof.

Appellants maintain that the provisions of the statute requiring the commencement of work within six months from the approval of the maps of definite location and the construction of 25 miles of railroad within two years after the passage of the act were conditions subsequent, and that any breach or alleged breach of said conditions can be brought in question only by the government; that the respondent is not in a position to urge these matters, and cannot avail itself of any forfeiture on account of any such breach. It will be seen that the matters in issue are federal questions, and the determination thereof by this court must be made in the light of the decisions of the Supreme Court of the United States in so far as the latter apply thereto, and an examination convinces us that every question here raised is controlled by decisions heretofore made by that high court. In the light of those decisions we are led to the following conclusions: The statute under which the Washington Improvement & Development Company located its line through this Indian reservation constituted a grant in praesenti. It was a 'floating' grant until the company filed its map of definite location, and the same was approved by the Secretary of the Interior. The grant then became definite and fixed. It attached to the particular strip of land indicated by the map thus filed and approved, and the title to said premises became thereupon vested in the railway company. The provisions requiring the commencement of grading within six months and the construction of at least 25 miles of railroad within two years were conditions subsequent. Upon the failure of the railway company to comply with either of these conditions, the United States government, by a judicial proceeding or an act of Congress, or possibly by other appropriate proceeding equivalent to 'office found,' as known in the common law, could have declared a forfeiture and made a re-entry. Until this should be done, the title remained in the railway company, and could not be disturbed by respondent or any other third party. It was a matter between the appellants and the government. Had Congress theretofore authorized the Secretary of the Interior or land department to declare forfeiture in cases of this kind, it is possible that the action of the Secretary of the Interior in approving the map of location filed by the respondent after the expiration of the two years, during which appellant should have commenced grading, and should have constructed 25 miles of railroad, but did not, might be deemed to be a declaration of forfeiture and a re-entry on the part of the government. But no statute or authority of this character is called to our attention, and we are aware of none.

It has been many times held by the United States Supreme Court that the claiming of a forfeiture provided for in a land grant can only be made under authority of the legislative department such as an act of Congress declaring or directing a forfeiture, or authorizing such to be made, or by a judicial proceeding by the government, and that persons claiming under...