United States v. Dalles Military Road Co Same v. Oregon Cent Military Road Co Same v. Willamette Valley Wagon Road Co Same v. Kelly Same v. Cooper Same v. Rogers Same v. Grant Same v. Floyd

Citation11 S.Ct. 988,140 U.S. 599,35 L.Ed. 560
Decision Date25 May 1891
Docket NumberNo. 1,444,No. 1,447,No. 1,446,No. 1,445,No. 1,448,No. 1,218,No. 1,219,No. 1,248,1,218,1,219,1,248,1,444,1,445,1,446,1,447,1,448
PartiesUNITED STATES v. DALLES MILITARY ROAD CO. et al. SAME v. OREGON CENT MILITARY ROAD CO. et al. SAME v. WILLAMETTE VALLEY & C. M. WAGON ROAD CO. et al. SAME v. KELLY. SAME v. COOPER. SAME v. ROGERS. SAME v. GRANT. SAME v. FLOYD
CourtUnited States Supreme Court

Asst. Atty. Gen. Parker, for the United States.

Jas. K. Kelly and Rufus Mallory, for Dalles Military Road Co.

C. A. Dolph and C. B. Bellinger, for Oregon Cent. Military Road Co.

C. S. Wood and John E. Parsons, for Willamette Valley & C. M. Wagon road co.

Jas. K. Kelly, for appellee in 1,444-1,448.

[Argument of Counsel from pages 600-606 intentionally omitted]

BLATCHFORD, J.

No. 1,218 is a bill in equity filed by the attorney general of the United States, on their behalf, against the Dalles Military Road Company, James K. Kelly, C. N. Thornbury, the Eastern Oregon Land Company, and 12 other individual defendants. The bill sets forth that on the 25th of February, 1867, the congress of the United States passed, and, the president duly approved, an act (14 St. 409, c. 77) granting to the state of Oregon, to aid in the construction of a military wagon road from Dalles City, on the Columbia river, by way of Camp Watson, Canon City, and Mormon or Humboldt Basin, to a point on Snake river opposite Ft. Boise, in Idaho territory, alternate sections of public lands, designated by odd numbers, to the extent of three sections in width on each side of said road; that said act provided that the lands granted should be exclusively applied to the construction of said road, and to no other purpose, and should be disposed of only as the work progressed, and that any and all lands theretofore reserved to the United States, or otherwise appropriated by act of congress or other competent authority, should be, and the same were thereby, reserved from the operation of said act, except so far as it might be necessary to locate the route of said road through the same, in which case the right of way to the width of 100 feet was granted; that it was further provided that the grant should not embrace any mineral lands of the United States; that the lands thereby granted to said state should be disposed of by the legislature thereof for the purpose aforesid, and for no other; that the said road should be and remain a public highway for the use of the government of the United States, free from tolls or other charges upon the transportation of any property, troops, or mails of the United States, and that the said road should be constructed with such width, gradation, and bridges as to permit of its regular use as a wagon road, and in such other special manner as the state of Oregon might prescribe; that the said act also authorized the state to locate and use, in the construction of said road, an additional amount of public lands, not previously reserved to the United States or otherwise disposed of, and not exceeding 10 miles in distance from it, equal to the amount reserved from the operation of the act, to be selected in alternate odd sections, as provided therein; that the lands thereby granted to said state should be disposed of only in the following manner, that is to say, when the governor of the state should certify to the secretary of the interior that 10 continuous miles of said road were completed, then a quantity of the land granted by the act, not exceeding 30 sections, might be sold, and so on from time to time until said road should be completed, and, if it was not completed within 5 years, no further sales should be made, and the lands remaining unsold should revert to the United States; and that the United States surveyor general for the district of Oregon should cause the lands so granted to be surveyed at the earliest practicable period after the state should have enacted the necessary legislation to carry said act of congress into effect. The bill further sets forth that on the 20th of October, 1868, the legislative assembly of the state of Oregon passed, and the governor approved, an act (Laws Or. 1868, p. 3) entitled 'An act donating certain lands to Dalles Military Road Company,' which act, after setting forth the passage of the act of congress of February 25, 1867, granted to Dalles Military Road Company, incorporated March 30, 1868 all lands, right of way, rights, privileges, and immunities theretofore granted or pledged to the state by said act of congress, for the purpose of aiding said company in constructing the road mentioned and described in said act of congress, upon the conditions and limitations therein prescribed; that said act of the state also granted and pledged to said company all moneys, lands, rights, privileges, and immunities which might be thereafter granted to the state to aid in the construction of such road, for the purposes and upon the conditions mentioned in said act of congress, or which might be mentioned in any further grants of money or lands to aid in constructing said road; and that said act of the state authorized the company to locate, subject to the approval of the governor of the state, the lands mentioned in said act of congress within the 10-miles limit prescribed by the latter act, in lieu of lands reserved. The bill further sets forth that the state of Oregon never passed any law for the special purpose of carrying into effect the act of congress of February 25, 1867, but had passed, on the 13th of October, 1862, an act (Gen. Laws Or. 1862, reported by Code Commission, p. 3) entitled 'All act providing for private incorporations, and the appropriation of private property therefor,' which provided, among other things, that any road, other than a railroad, constructed by a corporation formed under the said act, should be cleared of standing timber for 30 feet in width, and should have a track in the center not less than 16 feet wide, finished and kept in good traveling condition, except when the cutting on said road was 6 feet or more deep on either side, in which case such track need not be more than 10 feet wide, with turnouts of 16 feet in width for every quarter of a mile of such narrow track; that all streams or other waters upon the line of such roads should be safely and securely bridged, except where the county court of the county wherein the line of such road might cross such srea ms or other water, or, if such stream or other water formed the boundary between two counties, then the county court of either of said counties might authorize the corporation to place a ferry-boat upon such stream or other water, to be kept and run for such toll as the county court might prescribe, and in the manner required of ferries established under the general statutes in relation to ferries, or except where such county court might authorize such corporation to connect their road with a ferry then or thereafter established over such stream or other water under the general statute in relation to ferries; and that those provisions of said act of October 13, 1862, had been at all times thereafter and still remained in force. The bill further sets forth that the Dalles Military Road Company is a private corporation, purporting to have been incorporated on the 30th of March, 1868, under the general laws of the state of Oregon; that the business in which it proposed to engage was the location and construction of a clay road from Dalles City, in the county of Wasco, Or., by way of Camp Watson and Ca non City, to a point on Snake river opposite Ft. Boise, in Idaho territory, about two miles below the mouth of Owyhee river; that James K. Kelly and two other persons were the incorporators thereof; that on the 11th of January, 1871, the company, by its then directors, five in number, in pursuance of the unanimous vote of the stockholders, made and filed supplementary articles of incorporation, which provided that the additional business in which the corporation proposed to engage was to accept and receive any and all grants of land and other things of value from the United States to the state of Oregon, and to purchase and hold land and other property which its directors might deem necessary and convenient for its interests, and to engage in any business incident to and connected with receiving any such grant, and in selling, conveying, purchasing, and holding any land or property that might come into the possession of the company, and also to establish and keep a toll-road on any part of the road belonging to it; and that the corporation was still in being, and the officers thereof were James K. Kelly, president, and C. N. Thornbury, secretary. The bill further sets forth that on the 1st of January, 1869, and on divers other days between that day and the 23d of June, 1869, the officers, stockholders, and agents of the company, and other persons acting in their and its interests, falsely and fraudulently represented to George L. Woods, then the governor of Oregon, that said road had been constructed as by law required, they then knowing that said representations were false, and that said road had not been constructed; that they made such representations for the sole purpose of fraudulently procuring from the said governor a certificate declaring that the road had been constructed in accordance with the act of congress of February 25, 1867, and of the act of the state of October 20, 1868; that the said governor, in consequence of such representations, made and issued a certificate, dated June 23, 1869, under his hand and the great seal of the state, and attested by the secretary of state, which set forth as follows: 'I, George L. Woods, governor of the state of Oregon, do hereby certify that this plat or map of the Dalles Military Road has been duly filed in my office by the Dalles Military Road Company, and shows, in connection with the public surveys, as ar as said public surveys are completed, the location of the line of...

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