United States v. Dalles Military Road Co.

• Decision Date: 07 October 1889
• Citation: United States v. Dalles Military Road Co., 40 F. 114 (D. Or. 1889)
• Parties: UNITED STATES v. DALLES MILITARY ROAD CO. et al.
• Court: U.S. District Court — District of Oregon

40 F. 114

UNITED STATES v. DALLES MILITARY ROAD CO. et al.

United States Circuit Court, D. Oregon.

October 7, 1889

L. L McArthur, U.S. Atty., and W. C. Johnson, for plaintiff.

James K. Kelly, C. S. Ward, and Dolph & Bellinger, for defendants.

Before SAWYER, Circuit Judge.

SAWYER J.

The first paragraph of the bill sets out the substance of the act of congress passed February 25, 1867, entitled 'An act granting lands to the state of Oregon, to aid in the construction of a military wagon road from Dalles City, on the Columbia river, to Fort Boise, on the Snake river,' found in 14 U.S.St. 409.The second paragraph in like manner sets out the substance of the statute of Oregon, passed October 30, 1868, entitled 'An act donating certain lands to Dalles Military Road Company,' found in the statutes of Oregon for 1868, p. 3.Notwithstanding these allegations in the second paragraph it is alleged in the third, 'that the state of Oregon never at any time, passed any laws whatsoever, for the specific purpose of carrying the act of congress into effect,' meaning only, it must be presumed, in view of the preceding allegations of the bill, that it never passed any law other than that set out, or any law prescribing any 'other special manner' of constructing the road than that prescribed in the said act of congress, as it was authorized to do by section 3 of that act.The bill then proceeds to aver: 'But long before the passage of the act of congress'the statelegislature did pass 'An act providing for private corporations, and the appropriation of private property therefor,' which act provided, that any road constructed by such corporation, should be constructed in a certain manner, of a certain width, etc., fully described in the act; also, for bridging and ferrying streams, with many other particulars, and that said act has been in force, at all times, since its passage on October 14 1862.This passage is excepted to as impertinent, the said statute being, as contended, inapplicable, and having no relation to the road as constructed, or required to be constructed by defendant-- the Dalles Company under and in pursuance of the congressional grant to the state of Oregon, and the statute of Oregon, set out in the bill transferring the said grant to the Dalles Company upon the same 'conditions and limitations' as in the act of congress prescribed, and no others.I am satisfied, that this exception must be sustained.Section 3 of the act of congress provides, 'that said road shall be constructed with such width, gradation, and bridges, as to permit of its regular use as a wagon road, and in such special manner, as the state of 'oregon may prescribe.'Congress was providing for the construction of this particular road, and made no reference to any other road, or to any existing statute of Oregon.It does not say, in 'such special maner,' as the statutes of Oregon have heretofore provided 'for roads constructed under its authority and laws,' or 'in such 'special manner' as the laws of Oregon now provide for the construction of roads, toll or otherwise, by corporations or private parties,' but in such other 'special manner, as the state of Oregon may prescribe. ' That is to say, may hereafter prescribe, when regranting the land to aid in the construction of the road, or in hereafter, contracting with parties to construct the road, either for the lands, or for a money consideration, to be paid in whole, or in part, out of the proceeds of the lands.The act of congress, evidently, contemplates future, not past action--such 'other special manner' as the state may prescribe for this particular road-- not such as it has already, heretofore prescribed for other roads, toll or otherwise.This is the only limitation prescribed by congress in this particular.

Upon examining the statute of Oregon, transferring the congressional grant to the Dalles Military Road Company, it will be seen that no 'special manner' of constructing the road was therein prescribed, and the Dalles Company was not limited to any description of road to be constructed, other than that found in the act of congress itself.The statute is a special, independent act, limited to the very object named in and contemplated by the act of congress, and referring to no other road or object.In the preamble it recites the act of congress verbatim in full, and then provides 'that there is hereby granted to Dalles Military Road Company incorporated * * * all lands, rights of way, rights, privileges and immunities heretofore granted or pledged to this state by the act of congress in this act heretofore recited, 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. 'Laws 1868, p. 5.There is no reference to any prior statute of Oregon, and no description at all of the road to be constructed by the defendant; no 'special manner' prescribed, nothing except the description in the act of congress itself.It simply adopts the provisions of that statute, and by that act the rights of the Dalles Company, so far as governing the land grant under the act of congress is concerned, are entitled to be judged.This is special legislation relating to a single specific subject-matter, and we are not to import into it other conditions which the legislature has itself omitted to incorporate.As the state of Oregon, in transferring the congressional grant of land to the defendant, in consideration of its building the road, did not prescribe any 'special manner' in which it should be built, or any manner other than that prescribed by congress itself, when the conditions prescribed by the act of congress were performed within the time limited, the right to the lands became fully and irrevocably vested.The terms of the statutory contract between the state and the Dalles Company are found in the two acts-- the act of congress granting the lands to the state on the conditions alone prescribed in it, and the state act in express terms granting them to the Dalles Company upon precisely the same conditions and limitations, no others having been inserted.The act of the state of Oregon without other conditions therein than those prescribed in the act of congress, operated as a transfer or assignment to the company of the congressional grant without restriction, and it was only necessary for the company to perform those conditions, in order to become entitled to the lands.Prior legislation, therefore, upon a subject-matter, having no reference to this specific road, or this specific land grant, cannot affect the question between the United States and those defendants as to whether the road was constructed by the Dalles Company in the manner and within the time prescribed in the act of congress, and the statute of Oregon strictly following the provisions of the act of congress, without prescribing any future conditions.It may have been necessary for the Dalles Company to perform conditions enjoined by the statutes of Oregon, other than those prescribed by the acts now in question, in order to entitle it to enjoy other rights under other laws of Oregon.But if so, those conditions, and the independent rights acquired by their performance, are wholly outside of and foreign to this investigation, and with which we now have no concern.Our inquiry is limited to the requirements of the statutory contract set out.The first exception must, therefore, be sustained, the matter excepted to being impertinent to this inquiry.

The next exception is to the allegation relating to maintaining the road after construction, in case it was constructed in accordance with the act.The allegation is that the road 'was not and never has been maintained as a public highway by either or any of the defendants herein, or any person or persons claiming any interest in the lands embraced within the limits provided for by the said act of congress ' And the other exceptions...