United States v. Denver & R.G.R. Co.

• Decision Date: 29 August 1911
• Docket Number: 4,377.
• Citation: 190 F. 825
• Parties: UNITED STATES v. DENVER & R.G.R. CO. et al.
• Court: U.S. District Court — District of Colorado

190 F. 825

UNITED STATES v. DENVER & R.G.R. CO. et al.

No. 4,377.

United States Circuit Court, D. Colorado.

August 29, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Jno. H Knaebel, M. C. Burch, and W. A. Norton, for complainants.

J. F. Vaile and E. N. Clark, for Denver & R.G.R. Co. and Greenlaw.

Horace N. Hawkins, for Rio Grande, P. & N.R. Co., Pagosa Lumber Co., and Sullenberger.

C. C. Dawson, for Rio Grande & P.S.R. Co., New Mexico Lumber Co., and Biggs.

B. W. Ritter, for T. C. Graden and Graden Mercantile Co.

Richard McCloud, for Savage.

LEWIS District Judge.

In 1870 the Denver and Rio Grande Railway Company was organized under the laws of the Territory of Colorado. Its purpose, as shown by its articles of incorporation, was to locate, construct and operate railways and telegraph lines along the routes described in a general way in its articles of association; said lines being eight in number and designated as, 1, The Denver and Rio Grande Railway, 2, The Denver and Southern Railway, 3, The South Park Railway, 4, The Western Colorado Railway, 5, The Merino Valley Railway, 6, The San Juan Railway, 7, The Gallisteo Railway and 8, The Santa Rita Railway.

By act approved June 8, 1872, the congress granted to said company a right of way two hundred feet wide over the public domain, 'together with such public lands adjacent thereto as may be needed for depot, shops and other buildings for railroad purposes, and for yard room and sidetracks, not exceeding twenty acres at any one station, * * * and the right to take from the public lands adjacent thereto stone, timber, earth, water and other material required for the construction and repair of its railway and telegraph lines * * * Provided, that said company shall complete its railway to a point on the Rio Grande as far south as Santa Fe within five years after the passage of this act, and shall complete fifty miles additional south of said point in each year thereafter, and in default thereof the rights and privileges herein granted shall be rendered null and void so far as respects the unfinished portion of said road.' (17 Stat. 339.)

By act of March 3, 1877 (19 Stat. 405), the time limit in the above act was extended to ten years; and the ten years expired June 8, 1882.

The railway company had constructed and was operating many miles of its system prior to June 8th, 1882, and thereafter greatly extended some of its lines. It claimed the benefit of the congressional grant on all mileage completed on said date.

The Railway Company was succeeded by The Denver and Rio Grande Railroad Company shortly after the organization of the latter company in July, 1886, and it immediately acquired all of the property, rights and franchises of the Railway Company and has claimed, and been adjudicated to be entitled to, the benefits of said congressional grant as the successor of said Railway Company.

On December 1st, 1902, the complainants exhibited their bill against defendant, the railroad company and its co-defendants, wherein it is charged that the defendants were then taking, and for several years theretofore had been taking, from public lands in southwestern Colorado large amounts of standing trees which were sawed up into great quantities of merchantable lumber of all kinds by some of the defendants at their mills, and being so manufactured into lumber were used in part by the defendant railroad company for repair purposes on its lines of railway, and in part for construction purposes on lines extended after June 8th, 1882, and that other parts of lumber so manufactured from said trees was converted by the other defendants to their individual use and profit with the knowledge, consent and acquiescence of the railroad company. The bill further alleges that the defendant's San Juan Railway was the nearest of its lines mentioned in the articles of incorporation of the original railway company to the locality from which said trees belonging to complainants were taken. It further charged that said timber was devoted to repair purposes on defendant's lines, other than the San Juan Railway, far remote from the section of country from which it had been originally taken; that its lines of railway were originally constructed as narrow gauge roads and that a large part of the timber had been taken for use in converting its line from narrow to broad gauge. That the other defendants went upon the public lands and took said timber and trees at the direction of, and as the agents and representatives of, the railroad company, under the claim made by it that it had the right to do so under the congressional grant. It charged that the congressional grant, according to its true intent and meaning, did not give the railroad company the right to take timber from adjacent public lands for construction purposes on any of that part of its lines built or extended after June 8th, 1882, nor for the purpose of converting a narrow gauge to a broad gauge road, nor for repairs of its lines at remote points, nor for repairs on any of its lines except the one to which the lands from which the timber was taken were adjacent. It charged that none of the timber was taken from lands adjacent to any of the defendant's lines, but from lands lying far remote therefrom. It further charged that the Rio Grande, Pagosa and Northern Railroad Company and the Rio Grande and Pagosa Springs Railroad Company were built and operated, under the direction and control of their managers, the defendants Sullenberger and Biggs respectively, for the purpose of reaching sawmills, which said two individuals respectively controlled and operated as managers, with the intent of transporting from said mills to the Rio Grande Railroad lumber made from trees taken from public lands far remote from the line of the Rio Grande road, and that such lumber was so transported. The bill charges in great detail an abuse of the rights and license claimed by the railroad company under the act of June 8th, 1872, and a wanton and reckless commission of waste in taking timber from complainants' lands, and that it threatens to continue therein, and thereby a great destruction of the value of complainants' estate in said lands will result.

The separate answer of the Denver and Rio Grande Railroad Company admitted that it had taken timber from public lands in the territory described in the complaint, that it had appointed its co-defendants, except the two railroad companies, its agents for the purpose of cutting timber from public lands, that it had authorized its said agents to cut timber on public lands and to prepare the same at their mills under orders given for that purpose, and to manufacture for it, out of said timber, ties, telegraph poles and other timber of such dimensions as was needed by it in the repair of its lines of railroad, that it had used the same on its lines of railroad constructed prior to June 8th, 1882, at various points, some of them remote from the place of taking, for repair purposes. It alleged that all of such timber so taken by its agents was taken from public lands of complainants lying adjacent to the line of its San Juan Railway, and it justified all of its acts in that regard as having been done under said congressional grant. It alleges that it changed extensive portions of its railway system from narrow to broad gauge many years prior to 1900, and that for many years such parts have been used as standard gauge railway lines, that the ties first used in construction of, and afterwards for repair of, its narrow gauge road were not adequately adapted to support a standard gauge track, that it first began standard gauge construction in 1881 and that it now has more than three hundred miles of standard gauge railway track, a part thereof being on lines constructed before June 8th, 1882, and a part thereof since that date. It denies that the two railroads of its two co-defendant railroad companies were constructed principally for the purpose of hauling out or carrying timber taken from the public domain and alleges such to be a small part of the business done by said roads, that they transport much lumber taken from private lands and also carry on a general transportation business and that they are common carriers for hire. It admits that it receives over said two roads from mills situated on or near them some timber manufactured from trees taken from public lands for repair purposes on its lines of road.

The answer denies all charges made in the bill against the defendants of acts of waste of timber taken from public lands and charges that it, through its agents, felled and took from public lands only such logs as were suitable for the immediate needs of the defendant, and that it and its agents at all times exercised the right and license granted it under the congressional grant in a fair and impartial manner, economically and prudently and without waste, it admits that it was its duty economically and without waste to select and take only such timber as was reasonably adapted to its use and within the limitations as to use fixed by said statute and for its own purposes only, and alleges that upon the reasonable exercise of such right the timber so taken from the public lands from time to time upon the taking thereof ceased to be the property of complainants. It alleges that it and its agents acting for it at all times acted in good faith in exercising the right given by the act of congress, and at no time took any timber from the public lands which it did not believe to be adjacent to its lines of railway as authorized under said act.

It makes reference to suits brought against it in the territorial court of New Mexico and in the federal court for the District of Colorado in which...