Taggart v. Great Northern Ry. Co.

• Decision Date: 02 February 1914
• Docket Number: 2304.
• Citation: 211 F. 288
• Parties: TAGGART v. GREAT NORTHERN RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F. 288

TAGGART v. GREAT NORTHERN RY. CO.

No. 2304.

United States Court of Appeals, Ninth Circuit.

February 2, 1914

C. J France and Frank P. Helsell, both of Seattle, Wash., for appellant.

F. V Brown, of Seattle, Wash., and Charles S. Albert and Thomas Balmer, both of Spokane, Wash., for appellee.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

ROSS Circuit Judge.

The question in this case is whether the appellant, who was complainant in the court below, took the title to the tract of land conveyed to him by the patent of the government issued pursuant to his entry thereof under the homestead laws, subject to a right of way over it claimed to have been acquired by the appellee railway company under and by virtue of the provisions of the act of Congress of March 3, 1875 (18 St.at Lg. 482), the first and fourth sections of which provide 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 under the laws of any state or territory except the District of Columbia, or by the Congress of the United States, 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; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, machine shops, side-tracks, turn-outs, and water-stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its 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: Provided, that if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.'

The stipulation upon which the cause was tried shows these, among other, facts: During the year 1906 the Washington & Great Northern Railway Company, a corporation of the state of Washington, and by its laws authorized to locate and construct lines of railroad within the state, surveyed and located a line of railway from Wenatchee northerly along the west bank of the Columbia river to the mouth of the Okanogan river and northerly therefrom to the international boundary line between the United States and the Dominion of Canada. The line of road so surveyed and located crossed lot 4, section 13, township 28 north of range 23 east, W.M., in a northerly and southerly direction. That is the lot over which the present controversy arose, and was at that time vacant and unoccupied public land of the United States. The line of road so surveyed and located by the Washington & Great Northern Railway Company was duly adopted by resolution of its board of directors as the definite location of its line of railway, and the company, having filed with the Secretary of the Interior of the United States a copy of its articles of incorporation and due proof of its organization under the same, filed, January 2, 1907, in the United States Land Office at Waterville, in the state of Washington, maps showing the definite location of its line of railway as so surveyed and located. The maps so filed were duly approved by the Secretary of the Interior March 23, 1908, and were returned to the local land office at Waterville, where the proper notations were made by its officers upon the plats, showing the located line across the public land of the United States. In July, 1907, the Washington & Great Northern Railway Company conveyed to the Great Northern Railway Company, the appellee herein, all its right, title, and interest in and to the right of way thus located and acquired, which grantee company then became and has ever since been the owner thereof. The Great Northern Railway Company filed with the Secretary of the Interior a copy of its articles of incorporation and due proof of its organization thereunder, and during the years 1908 and 1909 revised the survey and location of the road as theretofore made by its predecessor in interest, and on July 31, 1909, filed, with the Register and Receiver of the United States Land Office at Waterville, maps of such revision and amended definite location. The difference between the central line of the road as shown on the original maps and the central line of the road as shown on the amended maps does not exceed 20 feet at any point where the lines cross lot 4, but at other places the variation is as much as 200 feet. On the 12th of January, 1912, the local land office at Waterville, by direction of the Commissioner of the General Land Office, called the attention of the Great Northern Railway Company to the fact that the amended map of definite location was not accompanied by a relinquishment under seal of all rights under the original approval of the maps filed by the Washington & Great Northern Railway Company, as to the portions thereof amended by the map filed by the Great Northern Railway Company, as required by section 19 of the Circular of the General Land Office issued May 21, 1909, which reads as follows:

'When the railroad is constructed, an affidavit of the engineer and certificate of the president must be filed in the local office, in duplicate, for transmission to the General Land Office. No new map will be required except in case of deviations from the right of way previously approved, whether before or after construction, when there must be filed new maps and field notes in full, as herein provided, bearing proper forms, changed to agree with the facts in the case. The map must show clearly the portions amended, or bear a statement describing them, and the location must be described in the forms as the amended survey and amended definite location. In such cases the company must file a relinquishment, under seal, of all rights under the former approval as to the portions amended, said relinquishment to take effect when the map of amended definite location is approved by the Secretary of the Interior.'

February 6, 1912, the Great Northern Railway Company released and relinquished to the United States all its right, title, and interest in and to the right of way pertaining to the line of railway as shown upon the maps filed by its predecessor and approved by the Secretary of the Interior, 'excepting and excluding, however, any and all of such right of way that is or may be situated within the limits of the right of way pertaining to the revised and relocated line of said company's railway shown upon the maps thereof filed in the United States District Land Office at Waterville, Wash., on the 31st day of July, 1909.'

The relinquishment expressly provided that it should not take...