United States v. Oregon & C.R. Co.

• Decision Date: 21 August 1893
• Docket Number: 1,936.
• Citation: 57 F. 426
• Parties: UNITED STATES v. OREGON & C. R. CO. et al.
• Court: U.S. District Court — District of Oregon

57 F. 426

UNITED STATES v. OREGON & C. R. CO. et al.

No. 1,936.

United States Circuit Court, D. Oregon.

August 21, 1893

Franklin P. Mays and George H. Williams, for the United States.

Earl C Bronaugh and W. D. Fenton, for defendants.

BELLINGER District Judge.

This is a suit by the United States to enjoin the railroad companies defendants, and all persons holding under them, from asserting title to certain lands included in a grant to the Oregon Central Railroad Company, and assigned by that company to the Oregon & California Railroad Company and claimed by the United States to have been forfeited, and to enjoin the prosecution of any suits or actions by either of said companies, or by those claiming under them, on account of the title claimed to have been derived through such grant.

The defendant companies, after answering the bill of complaint filed their cross bill, praying to have their title quieted to the lands in question, to which the United States fully answered.

The facts in the case are stipulated by the parties. The question in dispute arises in this way: On May 4, 1870, congress passed an act granting lands to the Oregon Central Railroad Company to aid in the construction of a railroad and telegraph line 'from Portland to Astoria, Oregon, and from a suitable point of junction near Forest Grove to the Yamhill river, near McMinville, in the state of Oregon.' The line of this road from Portland to the point of junction near Forest Grove runs directly west, and the road from such point of junction runs nearly south to the Yamhill river. In July, 1871, the Oregon Central Railroad Company filed in the office of the secretary of the interior a map showing the location of the line of the road from Portland to a point on the Yamhill river near McMinville, and also from a junction near Forest Grove towards Astoria to a point one mile north of the summit of the range of hills dividing the Tualatin from the Nehalem valley, a distance of 20 miles. The map of definite location from Astoria to said point was filed June 23, 1876. On February 16, 1872, the secretary of the interior accepted the first 20 miles of completed road, commencing at Portland, and on June 23, 1876, he accepted 27 1/2 miles from the 20-mile post to the Yamhill river. On September 8, 1880, the Oregon Central Railroad Company sold and conveyed to the Oregon & California Railroad Company its said road and all its title and right to the said land grant. On January 31, 1885, no part of the road from Forest Grove to Astoria having been built, congress passed an act forfeiting so much of the lands granted as aforesaid 'as are adjacent to and coterminous with the uncompleted portions of said road, and not embraced within the limits of said grant for the completed portions of said road.' On July 8, 1885, the commissioner of the general land office issued instructions to the local land officers at the land office at Oregon City for their guidance under the forfeiture act, with which was inclosed a diagram showing the limits of the forfeited lands, and of that part of the grant not affected by the forfeiture act. This diagram shows that the road runs from Portland west to Forest Grove, where it turns almost at a right angle, and runs south to McMinville. From Forest Grove two lines are drawn, one due north, the other due west, both terminating at the 20-mile limits. The granted lands lying within the quadrant formed by these lines and the 20-mile limits, and also the lieu lands within such lines and the 25-mile limits, are designated on the diagram as 'Forfeited.' The diagram also shows the forfeited lands on the line from Forest Grove to Astoria. These instructions were affirmed by the secretary of the interior on April 5, 1887. The receiver in charge of the Oregon & California Railroad Company duly protested against the action of the land department so far as it related to the granted lands within the quadrant.

On August 8, 1885, such receiver got permission from the United States circuit court to bring suit against the receiver and register at Oregon City to restrain them from permitting filings upon the granted lands within the quadrant. Thereafter such suit was brought in said circuit court, and, a demurrer having been filed to the complaint, the court held that injunction would not lie to control the action of public officers in the determination of questions involving the exercise of official judgment, and the demurrer was sustained. Koehler v. Barin, 25 F. 165. It is claimed in behalf of the railway companies that the grant made by the act of 1870 was to one company for one road from Portland to Astoria and McMinville, as expressed in the title; that, inasmuch as the grant was made without reference to the fact that, beyond the point of junction at Forest Grove, the grant on the Astoria and McMinville sections necessarily overlapped, and there was no attempt to apportion this overlapping portion between these two sections, the company could build either section first, and to that which was first completed the grant within the full prescribed limits would in justice apply; that therefore the restriction of forfeiture in the act of 1885 to lands not embraced within the limits of the grant to the completed portion of the road saved the grant, on the line of the Astoria section, for 20 miles beyond Forest Grove.

If the act in question is construed to provide a continuous line of road from Portland to Astoria, with a branch or connecting road beginning at Forest Grove, as claimed by the government instead of one road from Portland to Astoria and from Portland to McMinville, as claimed by the companies, the lands saved to the company under the forfeiture act will be limited to a line drawn at the terminus at Forest Grove of the McMinville branch at right angles to the line of that road, and by a line similarly drawn at the end of the constructed main line at Forest Grove at right angles to its line, thus forming the quadrant over which this controversy arises. In 1887 this question was considered by Secretary of the Interior Lamar, reviewing the instructions of the commissioner of the general land office, who held that the act of May 4, 1870, contemplated two distinct roads,--a road from Portland to Astoria, and a road from Forest Grove to McMinville,--and that the forfeiture by the act of 1885 of 'so much of the lands granted * * * as are adjacent to the uncompleted portions of said road' would have divided the forfeited lands from the unforfeited lands by a line drawn through Forest Grove at right angles to the unconstructed line, had it not been for the qualifying phrase 'and not embraced within the limits of said grant for the completed portions of said road;' that, by this saving clause, so much of the grant adjacent to the McMinville line as is coterminous with the completed line was saved to the company; that the words in the granting act, 'a railroad and telegraph line from Portland to Astoria, and from a suitable point of junction near Forest Grove to the Yamhill river near McMinville,' must be construed as though the words used had been 'a railroad and telegraph line from Portland to Astoria, and a railroad a...