Tarpey v. Deseret Salt Co.

• Decision Date: 18 February 1888
• Citation: 5 Utah 494,17 P. 631
• Court: Utah Supreme Court
• Parties: D. P. TARPEY, RESPONDENT, v. DESERET SALT COMPANY, APPELLANT

17 P. 631

5 Utah 494

D. P. TARPEY, RESPONDENT, v. DESERET SALT COMPANY, APPELLANT

Supreme Court of Utah

February 18, 1888

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial.

Action in ejectment.Plaintiff showed following title:

1st.The land in controversy is an odd-numbered fractional section lying within the limits of the grant made by Congress to the "Central Pacific Railroad Company of California."

2d.The map of definite location of the line of said railroad was filed, as required by acts of Congress, on the 20th day of October, 1868.

3d.The amalgamation and consolidation of the said "Central Pacific Railroad Company of California" and the "Western Pacific Railroad Company," by articles of association bearing date June 22d, 1870, the new or consolidated company being designated the "Central Pacific Railroad Company."

4th.The amalgamation of the "Central Pacific Railroad Company," the "California & Oregon Railroad Company," the "San Francisco, Oakland & Alameda Railroad Company" and the "San Joaquin Valley Railroad Company," by articles of agreement dated August 20th, 1870.This consolidated company was also called the "Central Pacific Railroad Company."

5th.A selection made by the "Central Pacific Railroad Company" for patent of a portion of the land in controversy, viz., the N.W. 1/4 of the N. E. 1/4, the N.W 1/4 of the S.W. 1/4 and N.W. 1/4 of said section, and filed in the land office at Salt Lake City in 1885.The land so selected for patent being all the surveyed land in said section, and the only lands therein as to which the costs of survey, selecting and conveying had been paid.

6th.A lease, dated August 7th, 1885, from the "Central Pacific Railroad Company" to the plaintiff, demising the said lands to him for the term of five years, from the 1st day of January, 1886.

Affirmed.

Mr. P L. Williams, for appellant.

The grant to the railroad did not convey the legal title: Act of July 1, 1862, secs. 3 and 4, 12, Stat., 489;Act ofJuly 2, 1864, sec. 21, 13 Stat., 356;Railway Co. v. Prescott,16 Wall., 603;Railway Co. v. McShane,22 Wall., 444;North Pac. R. R. Co. v. Traill County, 115 U.S. 600.

In this casethe plaintiff, to recover, traces his title through supposed corporations, the legal organization or existence of which is nowhere shown.Is there any rule of law that excuses a plaintiff from making such proof?If these corporations, or any of them, did not in fact exist there is a complete break in the plaintiff's chain of title.

Mr. Charles S. Varian, for respondent.

The grants vested in the Central Pacific Railroad Company of California, its "associates, successors and assigns,"(section 15, act 1862), the full beneficial interest including right of entry and possession.The right to retain the patents, the evidence of the title, until the costs of survey were paid, was in the nature of a lien, which the government reserved.

It was not available to any other person than the Government.The purpose of these grants was to give substantial and beneficial aid to the companies.Their right to dispose of the lands is expressly recognized in the acts of Congress, and their mortgage of them has been held to be a disposition: Act of Congress, approved July 1st, 1862, secs. 3,4,5,6,9,10,11.Statutes at large, Vol. 11, p. 489; act of Congress, approved July 2d, 1864, secs. 3,4,5,8,9,11,14.Statutes at large, Vol. 13, p. 356;C. P. R. R. Co. v. Dyer, 1 Sawyer, 641; Ryan v. C. P. R. R. Co, 5 Sawyer, 265; S. P. R. R. Co. v. Orton, 6 Sawyer, 184-195;Swann & Billups v. Lindsey, (Ala.) Am. and Eng. R. R. cases, Vol. 14, p. 565;Railroad Co. v. Smith, 9 Wall., 95;Schulenberg v. Harriman,21 Wall., 44;Leavenworth R. R. Co. v. U.S.,92 U.S. 741;Missouri Ry. Co. v. Kansas Pacific Co.,97 U.S. 492;Platt v. Union Pacific Ry. Co.,99 U.S. 48;Ryan v. C. P. R. R.,99 U.S. 385;Van Wyck v. Knevals,106 U.S. 364;Grinnel v. R. R. Co.,103 U.S. 739;Kansas Pacific Co. v. Dunmeyer,113 U.S. 629;Walden v. Knevals,114 U.S. 373;Buttz v. Northern Pacific R. R. Co.,119 U.S. 55;Northern Pacific R. R. Co. v. Majors (Montana) Pacific Reporter, Vol. 2, 322;Doran v C. P. R. R. Co., 24 Cal. 256;N. P. R. R. Co. v. Lilly, (Mont.) Pacific Reporter, Vol. 9, 116;Wright v. Roseberry,121 U.S. 488;Denny v. Dobson, Nov. 28, 1887, Fed. Rep., Vol. 32, No. 14 p. 899.By Field, Circuit Justice.

The court has decided that these lands may not be taxed by the local sovereignties, but this on the ground that the lien of the United States for the costs of survey might thereby be destroyed: R. R. Co. v. Prescott,16 Wall., 603;R. R. Co. v. McShane,22 Wall., 462;N. P. R. R. Co. v. Traill County, 115 U.S. 600.

The lessor of plaintiff has been repeatedly recognized by the Congress of the United States, by the decisions of the supreme court, by the interior department.

HENDERSON, J. ZANE, C. J., and BOREMAN, J., concurred.

OPINION

HENDERSON, J.:

This is an action of ejectment for lands described in the complaint as "the north-west quarter of fractional section 9, in township 11 north, of range No. 9 west, Salt Lake base and meridian, and the N. E. quarter and the S.W. quarter of said section, in part covered with water: in all, 380 acres, more or less."The lands border on Great Salt Lake, and at the time of commencing the action were in the possession of defendant, and were used by it in its process of manufacturing salt by solar evaporation.The plaintiff proved his title to the lands by showing (1) that the land is an odd-numbered section, lying within the limits of the grant made by Congress to the Central Pacific Railroad Company of California by the act of July 1, 1862, (12 St., 489,) and the various acts amendatory thereof.(2) That the lands were not such as were included in the reservations and exceptions contained in the act; that they were not mineral, had not been pre-empted, or otherwise disposed of, etc.(3) That the map of definite location of the line of said railroad company was filed, as required by the act of Congress, on the 20th day of October, 1868.(4) The amalgamation and consolidation of the said Central Pacific Railroad Company of California and the Western Pacific Railroad Company, by articles of association and incorporation, bearing date June 22, 1870, the new or consolidated company being the Central Pacific Railroad Company.(5) The amalgamation of the Central Pacific Railroad Company, the California & Oregon Railroad Company, the San Francisco, Oakland & Alameda Railroad Company, and the San Joaquin Valley Railroad Company, by articles of association and incorporation, dated August 20, 1870.This consolidated company was also called the "Central Pacific Railroad Company."(6) A selection by the Central Pacific Railroad Company for patent of a portion of the lands, viz., the N.W. 1/4 of the N. E. 1/4, the N.W. 1/4 of the S.W. 1/4, and the N.W. 1/4 of said section, and filed in the land office at Salt Lake City in 1885, they being the only lands in said section as to which the costs of surveying and conveying had been paid.(7) That the Central Pacific Railroad Company mortgaged the lands in controversy October 1, 1870.(8) A lease dated August 7, 1885, from the Central Pacific Railroad Company to the plaintiff, demising the lands to him for the term of five years from January 1, 1886.The question presented by the record is whether this showing proves title prima facie in the plaintiff upon which he might recover; the claim made against it by the appellant being (1) that the acts of Congress above referred to do not convey the legal title in praesenti to the railroad company; that in view of the provisions of the act for subsequent patents, and for the payment of costs and expenses of survey and patent, the grant is in the nature of a promise to grant in the future; and that until the subsequent grant is made by patent, after payment of fees and expenses, it is but an equity, and is not such a legal title as is required to be shown in ejectment.(2) That the lands were not conveyed by the Central Pacific Railroad Company of California to the first amalgamated company, or by the first amalgamated company to the second; that the form and language of the articles of association put in evidence are insufficient for that purpose.(3) That no conveyances of the premises were proved from the Central Pacific Railroad Company of California to the amalgamated companies, and by the one to the other, and thence to the plaintiff, for the reason that the laws of the state of California were not shown or proved under which the amalgamated companies, and the constituent companies composing them, were organized, showing their legal right to organize, or hold and convey property.The record is made so as to present these questions, and we will notice them in the order above stated.

As to the first, the question as to whether the acts of Congress are to be construed as granting a legal title in praesenti has been much discussed by the courts.The question has been presented in various ways and forms under acts, so far as this question is concerned, precisely like the acts in question.In the following cases: Schulenberg v. Harriman, 21 Wall. 44, 22 L.Ed. 551;Railroad Co. v. U.S., 92 U.S. 733, 23 L.Ed. 634;Railway Co. v. Railway Co., 97 U.S. 491, 24 L.Ed. 1095;Railroad Co. v. Baldwin, 103 U.S. 426;Grinnell v. Railroad Co., Id., 739;Wright v. Roseberry, 121 U.S. 488, 30 L.Ed. 1039, 7 S.Ct. 985;Rutherford v. Greene's Heirs, 2 Wheat. 196, 4 L.Ed. 218--the supreme court of the United States have held that the title granted was a perfect legal title in praesenti, as distinguished from an equitable or inchoate interest arising...