The
subject-matter in controversy in this suit is the right of
the complainant to hold and enjoy a certain right of way for
a railroad through the state of Nevada. This right of way is
based upon the provision of the act of congress entitled
'An act granting to railroads the right of way through
the public lands of the United States,' approved March 3
1875 (18 Stat. 482). On April 19, 1901, the Utah & California
Railway Company conveyed all its rights and interests in the
roadbed and right of way in Lincoln county, Nev., to the San
Pedro, Los Angeles & Salt Lake Company. The other defendants
are the agents, attorneys, and servants of the respective
corporations. The conflict between the parties which resulted
in the institution of the present suit was commenced by the
order of the commissioner of the general land office, made
January 16, 1901, directing a hearing before the local land
office in Carson City, Nev., to determine the rights of the
respective corporations to the rights of way herein involved.
Pursuant to said order, after notice duly given, this hearing
was had March 11, 1901, and upon the proofs then submitted
the register and receiver found the following facts:
'(1)
That during the years between August 28, 1889, to and
including February, 1890, the Oregon Short Line & Utah
Northern Railway Company caused to be surveyed a line of
route commencing at Milford, territory of Utah, and running
in a westerly direction to within about four miles from the
town of Pioche, in the county of Lincoln, state of Nevada
and between the same dates the said company caused to be
graded a large portion of said roadbed, and constructed about
3 1/2 miles of track leading from the town of Milford in a
westerly direction; that in the year 1890 all grading and
construction work was abandoned, and the 3 1/2 miles of track
theretofore laid was torn up and removed from said line or
route, and since the year 1890 the said Oregon Short Line &
Utah Northern Railway Company not having done any work or
made any improvements upon its line of survey in the state of
Nevada. (2) That in the year 1893 the right of way and the
grading done on said line of survey within the state of
Nevada was assessed by the assessor of Lincoln county, state
of Nevada, for state and county taxes, to the Oregon Short
Line & Utah Northern Railway Company; that when the said
taxes became due the said Oregon Short Line & Utah Northern
Railway Company failed and refused to pay said taxes or any
part thereof, and the said property was advertised and sold
by the sheriff of Lincoln county, and was bid in by the
treasurer of Lincoln county for the said county, and the said
property has never been redeemed from said sale by the Oregon
Short Line & Utah Northern Railway Company, or by any one in
its behalf, and the tax title to said property is now vested
in Lincoln county, for the use and benefit of said county and
the sate of Nevada. (3) That by reason of the fact that the
Oregon Short Line & Utah Northern Railway Company has not
complied with the provisions of section 4 of the act of
congress of March 3, 1875, concerning rights of way for
railroads over public land, that company has forfeited all
rights, and privileges it had under its survey reverted to
the government in the year 1896. (4) That in the year 1896
the Utah & California Railway Company caused to be surveyed a
line of route from the boundary line between the then
territory of Utah, through the county of Lincoln, in the
state of Nevada, and over the line theretofore surveyed by
the Oregon Short Line & Utah Northern Railway Company; that
prior to the date of said survey all rights and privileges
obtained by the Oregon Short Line & Utah Northern Railway
Company by its survey made in the years 1889 and 1890 had
been forfeited to the government of the United States by
reason of the fact that the said company had failed to comply
with the act of congress of March 3, 1875, and the said Utah
& California Railway Company
had the right to make the survey and locate its line of route
over the said line theretofore surveyed and located by the
said Oregon Short Line & Utah Northern Railway Company. (5)
That certain maps offered in evidence by the Utah, Nevada &
California Railroad Company, which had been returned by the
honorable commissioner of the general land office at
Washington, under date of September 16, 1899, for correction,
and on the 25th day of December, 1899, forwarded by the
register, by registered package, addressed to the Utah,
Nevada & California Railroad Company, Salt Lake City, Utah,
were not returned to the United States land office at Carson
City, Nevada, or to the register or receiver thereof, until
the 1st day of March, 1901, although the said registered
package had been received and receipted for on the 23d day of
November, 1899, by A. C. Cleveland, one of the directors of
the Utah, Nevada & California Railroad Company; and, the said
company not having made the corrections as called for by the
honorable the commissioner's letter above referred to,
for more than a year after receiving notice thereof, the said
maps should not be filed. (6) That the attempted transfer of
the Oregon Short Line & Utah Northern Railway Company to the
Utah, Nevada & California Railroad Company is without merit,
because at the date of the attempted transfer the said Oregon
Short Line & Utah Northern Railway Company had no right or
title to, or claim upon, the said right of way in the state
of Nevada, that company having forfeited all right and claim
to said right of way by failure to comply with the act of
congress of March 3, 1875, as hereinbefore mentioned; and the
claim that the Utah, Nevada & California Railroad Company is
auxiliary to the Oregon Short Line & Utah Northern Railway
Company is without merit, in so far as the said franchise is
concerned. Our conclusions drawn from the foregoing facts are
that the claims of the Oregon Short Line & Utah Northern
Railway Company and the Utah, Nevada & California Railroad
Company are without merit, the right under which they claim
having been forfeited. We therefore recommend that the maps
of the line of route as surveyed by them be rejected, and
that the maps of the Utah & California Railway Company, filed
in the United States land office at Carson City, state of
Nevada, on the 27th day of February, 1897, as corrected, be
approved, and that the said company be granted the right of
way.'
An
appeal was taken from the decision of the local land office,
and on April 24, 1901, the secretary of the interior rendered
the following decision:
'The
Commissioner of the General Land Office-- Sir: With your
office letter of the 23d instant were forwarded articles of
incorporation and proofs of organization filed by the Utah
& California Railway Company and the Utah, Nevada &
California Railroad Company, together with maps of location
filed by said companies, respectively, and in said letter
it is recommended that the articles of incorporation filed
by the last-mentioned company be accepted and filed, and
that the map of location showing the second section of
road, filed by said company, be approved under the
provisions of the act of March 3, 1875 (18 Stat. 482), so
far as the same crosses surveyed public land. On May 3 and
June 7, 1890, this department approved four maps of
location filed by the Oregon Short Line & Utah Northern
Railway Company, showing its line of route as surveyed and
located from the Utah-Nevada boundary line, near the
seventh standard parallel, by way of Cloverdale Junction,
to a point near Pioche, a distance of 70.53 miles. Said
company at an expense of several thousand dollars graded
nearly the entire line of its road as shown upon said maps,
constructed tunnels, and did other work preliminary to the
occupation and operation of a railroad upon said located
line. It became financially embarrassed, and all of its
property, including that above described, was purchased at
foreclosure sale by the Oregon Short Line Railroad Company,
a corporation organized under the laws of the state of
Utah. The work of construction along this line was
discontinued in 1890 or 1891, and was not resumed until
during the present month, when the Utah, Nevada &
California Railroad Company entered upon the construction
of the line of said road and is now actively proceeding
therewith from the Utah-Nevada line towards Cloverdale
Junction, Nev. The Utah, Nevada & California Railroad
Company was incorporated in February, 1899, under the laws
of the state of Nevada. Its articles of incorporation
and proofs of organization, as submitted, have been
examined by your office and found to be satisfactory, and
it is shown to be entitled to acquire a right of way and to
construct and operate a railroad in the state of Nevada.
Its maps of location, filed as before stated, show two
sections of located road, beginning at the Utah-Nevada
state line, and following the old line located by the
Oregon Short Line & Utah Northern Railway Company to
Cloverdale Junction, which maps your office finds fully
conform to the regulations governing the filing of such
maps. It is proceeding with the construction of the road
along said line of location, with the consent of the Oregon
Short Line Railroad Company and the Oregon Short Line &
Utah Northern Railway Company. Indeed, it is an auxiliary
to these companies. That the rights secured by the approval
of the maps of location of the Oregon Short Line & Utah
Norther Railway Company, in May and June, 1890, have
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