# Cherokee Nation v. Southern Kansas Railway Co.

Supreme Court of the United States
135 U.S. 641
CHEROKEE NATION v. SOUTHERN KANSAS RAILWAY COMPANY
Appeal from the District Court of the United States for the Western District of Arkansas
No. 664 Argued: Mar. 12, 1890 --- Decided: May 19, 1890
The act of Congress of July 4, 1884, 23 Stat. 73, c. 179, granting a right of way through the Indian Territory to the Southern Kansas Railway Company, for a railroad, telegraph and telephone line, is a valid exercise of the power of Congress to regulate commerce among the several States and with the Indian tribes.
The Cherokee Nation filed in the court below a bill of complaint, seeking a decree enjoining the Southern Kansas Railway Company from entering upon the lands of that nation for the purpose of constructing its proposed railway, and, if that relief could not be granted, then that its bill might be treated as an original complaint and petition in appeal as provided in § 3, c. 179, act of July 4, 1884, 23 Stat. 73: Held,
(1) That these two causes of action, one of an equitable and the other of a legal nature, could not be joined in the same suit;
(2) That the court below erred in not treating the complaint as a petition of appeal which entitled the petitioners to have a trial de novo of the question of damages for the lands and rights proposed to be taken.
The Cherokee Nation is not sovereign in the sense that the United States or a State is sovereign, but is now, as heretofore, a dependent political community, subject to the paramount authority of the United States.
The United States may exercise the right of eminent domain in respect to lands in the Territories, as in any of the States, for purposes necessary to the execution of the powers belonging to the General Government, such an exercise being essential to their independent existence and perpetuity.
All lands held by private persons within the limits of the United States are held subject to the authority of the General Government to take them for such objects as are germane to the execution of the powers granted to it, provided only that they are not taken without just compensation being made to the owner.
In the execution of the power to regulate commerce Congress may employ, as instrumentalities, corporations created by it or by the States.
A railroad is a public highway, established primarily for the convenience of the people, and to subserve public ends, and is subject to governmental control and regulation; and for these reasons the corporation owning [p642] it may, under legislative sanction, take private property for a right of way, upon making just compensation to the owner.
The act granting a right of way to the Southern Kansas Railway Company through the Indian Territory authorized the company to enter upon the lands taken for right of way after it should have paid into court double the amount of the award of the referees appointed by the President: Held, that this was a sufficient provision to secure just compensation; that the Constitution does not require that compensation shall be made in advance of the appropriation of lands for a right of way; that it is sufficient if adequate provision be made to secure just compensation; that the title does not pass from the owner till such compensation is actually received; and that if the railway company fails to pay the amount ascertained it will thereafter be a trespasser, although before the termination of the proceedings instituted to ixs the compensation, it may have rightfully entered upon the lands for the purpose of constructing its road.
In equity. The case is stated in the opinion.
Mr. J.F. McDonald and Mr. John C. Fay (with whom was Mr. R.J. Bright on the brief) for appellant.
Mr. George B. Peck and Mr. A.B. Browne (with whom was Mr. A.T. Britton on the brief) for appellee.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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