Washington And Idaho Railway Company v. Northern Pacific Railway Company

• Decision Date: 19 March 1889
• Citation: 2 Idaho 550,21 P. 658
• Parties: WASHINGTON AND IDAHO RAILWAY COMPANY v. NORTHERN PACIFIC RAILWAY COMPANY
• Court: Idaho Supreme Court

21 P. 658

2 Idaho 550

WASHINGTON AND IDAHO RAILWAY COMPANY v. NORTHERN PACIFIC RAILWAY COMPANY

Supreme Court of Idaho

March 19, 1889

LANDS GRANTED TO NORTHERN PACIFIC RAILWAY COMPANY BY CONGRESS-LAW CONSTRUED.-Section 3 of the act of Congress of July 2, 1864 provides: "That there be and thereby is granted to the Northern Pacific Railroad Company (for the purpose of securing the construction of a railroad and telegraph, etc.) every alternate section of public land, not mineral designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line as said company may adopt,.... free from pre-emption of other claims or rights at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office," etc. Held, to be a grant in praesenti, and to vest in the company an equity in the lands, subject to be defeated however, on noncompliance with terms of the grant.

ACT OF CONGRESS OF MARCH 3, 1875.-Held, also, that lands included in such grant are not within the operation of the act of March 3, 1875, granting the right of way to railroads, etc.

APPEAL from District Court, Shoshone County.

Affirmed.

Woods & Heyburn, for Appellant.

The language of the act under which the plaintiff claims its grant reads: "That the right of way over the public lands of the United States is hereby granted to any railroad company, etc." Public lands within the meaning of the act are those lands the title of which remains in the United States. They are termed public lands, because all the people of the county have an interest in them. The fact that they are temporarily reserved from sale does not affect their character as public lands. (Bouldin v. Phelps, 30 F. 554, 555.) The title remains in the United States until the conditions imposed are all complied with. (United States v. Taylor, 35 F. 486; Bouldin v. Phelps, 30 F. 547; Northern Pac. R. R. v. Traill Co., 115 U.S. 600, 6 S.Ct. 201.) "The grant being inchoate, the valid legal title still remains in the government. Where the case remains sub judice, the legal title cannot pass out of the United States, and the United States stands in an impregnable position on that legal title, even though such title be held by the United States for those having the equitable title to the lands." (Bouldin v. Phelps, 30 F. 554, 555, 558, 564; Estrada v. Murphy, 19 Cal. 271; Malarin v. United States, 1 Wall. 290; United States v. Taylor, 35 F. 486.) It is the settled law of the land that these acts cannot be questioned in a collateral proceeding, but must stand as valid and binding upon all of the world until the grant is set aside by the court in an action commenced in the name of the United States for that express purpose. (Steel v. Smelting Co., 106 U.S. 451, 1 S.Ct. 389; Kemp v. St. Louis Smelting Co., 104 U.S. 636.)

J. H. Mitchell, Jr., and Albert Hagan, for Respondent.

Same as in 21 P. 658.

BERRY J.

OPINION

BERRY, J.

This case comes into this court on appeal from a judgment entered in favor of the defendant upon an order sustaining a demurrer to the complaint. Stripped of all minor questions, and which are not essential to the case, the main issue, and that on which all else in the case depends, is as to which party is entitled to the possession of certain parts of sections 25 and 27, in township 49 north, of range 1 east, of Boise meridian, in Shoshone county. The plaintiff claims a right of way for its road through them, under the act of March 3, 1875. It claims to have fulfilled all the conditions of that act, and compliance with all the rules and regulations of the land department of the United States; and that since the third day of November, 1886, it was and is entitled to all the benefits of the act of March 3, 1875, whatever those rights may be. The complaint demands judgment, declaring the company's ownership of a right of way for the plaintiff's road on and over these two sections of land with right of possession, etc. The defendant, on its part, claims both of these sections, under the land grant to the Northern Pacific Railroad Company by act of Congress, July 2, 1864. The lands are a part of the public domain, and subject to the operation of the act under which the plaintiff claims, unless they are removed from the operation of that act by the grant previously made to the defendant. The act of Congress of March 3, 1875, grants to railroad companies complying with its conditions the right of way over the public lands of the United States, except such lands be contained within "any military, Indian, or park reservation, or the lands shall be otherwise specially reserved from sale." The case made by the plaintiff shows its right to a right of way over the lands, providing the defendant has not a prior claim. It is contended by the defendant that the odd sections "within the forty-mile limit" of its grant are not "public lands," within the meaning of the act of March 3, 1875, but that they are private property, granted to the defendant for certain purposes, specified in the granting act, and in which the defendant, prior to the act of 1875, had a vested right. In support of this claim the defendant cites section 3 of the granting act to the defendant, of July 2, 1864, providing "that there be, and hereby is, granted to the Northern Pacific Railroad Company [for certain specific purposes in the act declared] every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, . . . . free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office," etc.

Whether this act did or did not vest in the defendant a present property in these lands, which would become absolute as of the time its plat of route should be filed, against preemption or other claims arising after the date of the act has been the subject of some discussion in the courts, and the decisions, at first view, are apparently conflicting. We think this supposed conflict is more apparent than real, and arises chiefly from changed circumstances under which the same and similar acts have from time to time been considered. The policy of the United States with reference to the public lands has ever been to retain their primary disposal exclusively to itself. With that exclusive control it will allow no interference, either by state or territorial governments, nor by any means which itself does not institute and put in motion; and we are cited to no case, and know of no case, where the government of the United States has ever allowed the public lands to be made subject to taxation and sale for taxes, under state or territorial laws, so long as it for any purpose holds the title. Improvements on public lands may be taxed, and often are taxed, as personal property, and sold for taxes, but the soil, never. The reason is obvious. A departure from this rule will not be presumed for reasons less than a plain declaration by Congress of such intent. There is no such intent expressed in this grant, and the intent will not be implied as against the government. (Railroad Co. v. United States, 92 U.S. 733.) What the company may do, in pursuance of the expressed object of the grant, in the sale and transfer of equities in lands, whether earned and title perfected, or the equities still...