United States v. Oregon & C.R. Co., 3,340.

CourtUnited States District Courts. 9th Circuit. United States District Court (Oregon)
Citation186 F. 861
Decision Date24 April 1911
Docket Number3,340.
PartiesUNITED STATES v. OREGON & C.R. CO. et al. (TERRACE et al., Interveners).

186 F. 861

OREGON & C.R. CO. et al. (TERRACE et al., Interveners).

No. 3,340.

United States Circuit Court, D. Oregon.

April 24, 1911

[186 F. 862] [Copyrighted Material Omitted] [186 F. 863] [Copyrighted Material Omitted] [186 F. 864] [Copyrighted Material Omitted] [186 F. 865] [Copyrighted Material Omitted] [186 F. 866] [Copyrighted Material Omitted] [186 F. 867] [Copyrighted Material Omitted] [186 F. 868] [Copyrighted Material Omitted] [186 F. 869] [Copyrighted Material Omitted] [186 F. 870] [Copyrighted Material Omitted] [186 F. 871] [Copyrighted Material Omitted] [186 F. 872] [Copyrighted Material Omitted] [186 F. 873] [Copyrighted Material Omitted] [186 F. 874] [Copyrighted Material Omitted] [186 F. 875] [Copyrighted Material Omitted] [186 F. 876]

John McCourt, U.S. Atty., B. D. Townsend, and Tracy C. Becker, Special Counsel for the Government.

P. F. Dunne, Wm. D. Fenton, and Wm. Singer, Jr., for defendants.

A. W. Lafferty and Arthur I. Moulton, for cross-complainants.

C. I. Leavengood, Charles E. Shepard, Wm. H. Flett, Jno. Mills Day, and M. E. Brewer, for interveners.

WOLVERTON, District Judge (after stating the facts as above).

Counsel for the defendant railroad companies and S.T. Gage make the following points of contention in support of their demurrers to the bill of complaint, the cross-complaint, and the bills in intervention: I quote from their reply brief:

'(1) Rights acquired by the East Side Company under the act of 1866 deprived Congress of the power, by amendatory act of 1869, to impose new conditions on the estate; besides, the amendatory act expressly saved 'rights acquired' under the act of 1866
'(2) The controlling purpose of Congress in making the land grants, here and by the Union Pacific act, as expressly stated in each act, is the same; hence here, as there, any policy of Congress to promote settlement of the lands 'was manifestly subordinated to the higher purpose of having the road constructed with the aid of the land grant.' (Platt v. Union Pacific R. Co.) 99 U.S. 48-67 (25 L.Ed. 424).
'(3) The 'actual settler' proviso is not a condition, because it does not (a) inure specially to the grantor, nor (b) indicate that forfeiture shall attend its breach, and (c) is not compulsory; but if a condition it is void for (d) repugnancy to the grant, and (e) restraint of alienation.
'(4) The 'actual settler' proviso is a personal covenant between grantor and grantee, only. Specific performance cannot be enforced because (a) it is not compulsory, (b) lacks mutuality of right and remedy, and (c) is in the nature of a continuing contract. Besides, whether compulsory or prohibitive, it is (d) in restraint of alienation.
'(5) As the 'actual settler' proviso is not compulsory, withdrawal of the lands in suit from sale is not a breach; and the other alleged breaches would not operate forfeiture of these unsold lands, were the proviso a condition.
'(6) Were the 'actual settler' proviso a condition, broken as alleged, grantor has waived the breach by: (a) Apparent acquiescence in the many deeds [186 F. 877] of record made by the railroad company in violation of the proviso; (b) acceptance and use of the road; (c) annual issuance of land patents, from 1871 to 1906; and by (d) effect of the general forfeiture acts of January 31, 1885, and September 29, 1890.
'(7) The land patents are conclusive. Were they void, the title which they purport to convey was confirmed by the force and effect of the acts of March 3, 1891, and March 2, 1896; which acts also bar this suit as to all lands patented prior to October, 1902.
'(8) All causes of action sought to be presented by the bill, other than forfeiture and to quiet title, are also barred by laches and limitations; it appearing that as to those other causes of action complainant is not the real party in interest. Cross-complainants and interveners are also barred by laches and limitations.
'(9) Were the 'actual settler' proviso a condition, which has been broken, still this suit could not be maintained as one to enforce forfeiture, nor to quiet any title which complainant could acquire by such a judgment, because: (a) Grantor has not declared forfeiture; (b) the fact of forfeiture has not been adjudged at law; and (c) the defendant railroad company holds the legal title and possession.'

These will be considered, though not in the order of their statement; but in the meanwhile it will be necessary to determine the contentions of the cross-complainants and interveners.

It should be premised that the theory of the bill is not that the grants have not been fully earned so as to entitle the Oregon & California Railroad to have the patents issue, but that, being earned, and patents in large measure having issued, the company has failed to comply with certain terms attending the grants, which it is claimed are conditions subsequent qualifying the estate granted, and that thereby the estate, whether now held under patent or as yet in pursuance of the acts making the grants, has been forfeited to the United States.

The several acts, namely, the act of July 25, 1866, the acts of June 25, 1868 and April 10, 1869, amendatory thereof, and the act of May 4, 1870, contain all of the provisions of Congress relative to the granting of the public lands in question. Scarcely four years elapsed from the inception of the legislation until the last act was adopted, and, viewed as a whole, extending from the first to its final development and adaptation, it indicates a common purpose, and should be considered in pari materia.

A corporation bearing the name 'Oregon Central Railroad Company' was organized October 6, 1866, with its principal office at Portland, Or. This company, it is alleged, projected its line of road southward from Portland, on the westerly side of the Willamette river, and on October 10, 1866, the Legislative Assembly of the State of Oregon (Laws 1866, p. 81) by joint resolution, designated it as the company entitled to receive the grant under the act of Congress of July 25, 1866. This company also adopted a resolution on May 25, 1867, assenting to the provisions of the grant, and filed a copy thereof with the Secretary of the Interior July 6, 1867. On August 20, 1868, the company filed with the Secretary of the Interior a map of survey of its projected line. On April 22, 1867, another corporation was organized, under the same name, with its principal place of business at Salem, Or. This company, claiming that the one previously organized was not lawfully incorporated, procured, on October 20, 1868, the adoption of a joint resolution by the Legislative Assembly of Oregon, [186 F. 878] designating it as the organization entitled to receive the grant.

This resolution by preamble sets out that at the time of its adoption no such company as the Oregon Central Railroad Company, with its principal office at Portland, was organized or in existence, and that the previous joint resolution designating that company as the one entitled to receive the grant was adopted under a misapprehension of the facts. On June 8, 1869, the company last organized, with its principal office at Salem, being the East Side Company, adopted a resolution assenting to the provisions of the act of Congress of July 25, 1866, and specifically to the amendments thereto, which resolution was filed in the office of the Secretary of the Interior June 30, 1869. On October 29, 1869, this company filed its map of survey and location of the first 60 miles of its projected line of railroad on the East Side, and on December 24, 1869, completed the construction of its first 20-mile section; the same being approved on the 31st of that month. The allegations of the bill do not show that the company was engaged in the work of construction prior to the time of filing its assent, namely, June 30, 1869; but for the purposes of this controversy it may be assumed that such was the case, as it is not at all probable that the section was built in so short a time as intervened between the date of such filing and that of the completion of the section.

On July 2, 1870, the company first organized-- the West Side Company-- by resolution assented to the grant of May 4, 1870, and filed a copy of such resolution with the Secretary of the Interior July 20, 1870. The Oregon & California Railroad Company was incorporated March 17, 1870, and on March 29, 1870, it took over, by assignment and transfer, all of the property, rights, and franchises of the East Side Company, including its grant of public lands by virtue of the act of Congress of July 25, 1866, and the acts amendatory thereto. By resolution adopted April 4, 1870, this company accepted the grant upon the terms and conditions specified. A copy of the resolution was filed with the Secretary of the Interior April 28, 1870. Ever since such transfer, the latter company has exercised control in the construction of the East Side Road and over the grant of Congress to the East Side Company; and the West Side Company has never, since filing its assent to the West Side grant, claimed or assumed to exercise any control over the affairs, rights, or privileges of the East Side Company.

Now, bearing in mind the various acts of Congress touching these grants, the resolutions of the Legislature of the state, and the proceedings of these several corporations, we will consider the first contention of defendants' counsel, together with the incidental questions presented in support of the demurrer to the bill.

It is stoutly urged that these grants are in praesenti, and with reference to the East Side grant that it became operative, by relation back to the date of the act of Congress conferring the grant, upon the designation by the Legislature of the state of the Oregon Central Railroad Company...

To continue reading

Request your trial
12 cases
  • Elliott v. Thompson
    • United States
    • Idaho Supreme Court
    • December 31, 1941
    ... ... public lands as passing from the United States ... 4 ... Decisions by the Secretary of the Interior ... state of Oregon for the Dalles Military Road, because realty ... had never been listed ... ...
  • EI Du Pont De Nemours & Co. v. Claiborne-Reno Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 25, 1933
    ...words, is necessary in order to charge a party with covenant." Hale v. Finch, 104 U. S. 261, 268, 26 L. Ed. 732; United States v. Oregon & C. R. Co. (C. C.) 186 F. 861, 905; 2 Williston, Contracts (1920) § 670; 13 Corpus Juris, 303, § The common or ordinary meaning of language will be appli......
  • Long v. Union Trust Co.
    • United States
    • U.S. District Court — District of Indiana
    • May 4, 1921
    ...272 F. 699 LONG et al. v. UNION TRUST CO. et al. No. 401.United States District Court, D. Indiana.May 4, 1921 [272 F. 700] ... 566, 17 Sup.Ct ... 461, 41 L.Ed. 827; United States v. Oregon, etc., Co. (C.C.) ... 186 F. 861, 908; West Virginia Pulp & Paper Co. v ... ...
  • Brookings v. Scudder
    • United States
    • Missouri Supreme Court
    • December 6, 1922
    ... ... v. Nathan, 175 Mo. 32; Lindeke ... v. Realty Co., 146 F. 630; United States v. Railroad ... Co., 186 F. 861; Cherokee Const. Co. v. Bishop, ... Douglas v. Aurora Daily News Co., 160 Ill.App. 506; ... Oregon R. & N. Co. v. Demaus, 181 F. 781; Bonta ... v. Gridley, 78 N.Y.S ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT