Taggart v. Great Northern Ry. Co.

• Decision Date: 25 November 1912
• Docket Number: 1,542.
• Citation: 208 F. 455
• Court: U.S. District Court — District of Washington
• Parties: TAGGART v. GREAT NORTHERN RY. CO.

208 F. 455

TAGGART v. GREAT NORTHERN RY. CO.

No. 1,542.

United States District Court, E.D. Washington, Northern Division.

November 25, 1912

France & Helsell, of Seattle, Wash., for complainant.

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

RUDKIN District Judge.

This is a controversy between a railway company and a settler over a right of way through certain lands which were heretofore public lands of the United States. The railway company claims its right of way under the Act of Congress of March 3, 1875 (18 Stat. p. 482, c. 152), sections 1 and 4 of which read as follows:

'Section 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 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, sidetracks, turn-outs and water stations, not to exceed in amount twenty acres for each station, to the extent of one station to 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 complainant, on the other hand, claims title under a patent from the United States, issued pursuant to the homestead laws. The case has been submitted to the court on the application for a temporary restraining order and for a final decree upon the merits upon an agreed statement of facts. Omitting jurisdictional and other facts not deemed material, the agreed case is this:

During the year 1906 the Washington & Great Northern Railway Company, a corporation organized and existing under and by virtue of the laws of the state of Washington, and authorized to locate and construct lines of railroad within the state, surveyed and located a line of railway from Wenatchee in a northerly direction along the west bank of the Columbia river to the mouth of the Okanogan river, and thence northerly to the international boundary line between the United States and the Dominion of Canada. The line of road as thus surveyed and located crossed lot 4 of section 13, township 28 N., of range 23 E.,W.M., in a northerly and southerly direction. The lot thus described is the lot in controversy here, and was at that time unoccupied public land of the United States, and so remained until the 17th day of September, 1907. The line of road as thus surveyed and located by the Washington & Great Northern Railway Company was adopted by resolution of its board of directors as the definite location of its line of railway, and the railway company, having filed with the Secretary of the Interior of the United States a copy of its articles of incorporation and due proofs of its organization under the same, on the 2d day of January, 1907, filed in the United States land office at Waterville, Wash., maps showing the definite location of its line of railway as surveyed and located through the public lands of the United States, a copy of which maps is attached to the agreed statement. The maps thus filed were duly approved by the Secretary of the Interior on the 23d day of March, 1908, and were returned to the local land office, where the proper notations were made upon the plats, showing the located line across the public lands of the United States. In the month of July, 1907, the Washington & Great Northern Railway Company conveyed to the defendant, the Great Northern Railway Company, all its right, title, and interest in and to the right of way thus located and acquired, and the Great Northern Railway Company has since been and is now the owner of the same.

The Great Northern Railway Company filed with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, 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 the 31st day of July, 1909, filed with the register and receiver of the United States land office at Waterville maps of such revision and of such amended definite location. A copy of this amended map is attached to the agreed statement and made a part thereof. 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 map 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 day of January, 1912, the local land office at Waterville, Wash., by direction of the Commissioner of the General Land Office, called the attention of the Great Northern Railway Company to the fact that its 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 on May 21, 1909, which reads as follows:

'When the railroad is constructed, an affidavit of the engineer and certificate of the

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