# United States v. Southern Pacific Railroad Company (146 U.S. 570)

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## Dissenting Opinion

    Field
United States Supreme Court
146 U.S. 570
United States v. Southern Pacific Railroad Company
Bills by the United States against the Southern Pacific Railroad Company and others to determine the adverse title to certain lands, and to restrain defendants from cutting timber thereon, or from hereafter setting up any claim of title thereto. Demurrers to the bills were overruled in the circuit court. 39 Fed. Rep. 132. A subsequent motion to modify this order was denied, and a motion for leave to file a second amended bill was granted. 40 Fed. Rep. 611. On final hearing decrees were entered for defendant, and the amended bills dismissed. 45 Fed. Rep. 596, 46 Fed. Rep. 683. The United States appealed. Reversed.
Statement by Mr. Justice BREWER: On July 27, 1866, congress passed an act granting lands to aid in the construction of a railroad from the states of Missouri and Arkansas to the Pacific coast. 14 St. p. 292. By the first section a corporation to be known as the Atlantic & Pacific Railroad Company was created, and authorized to construct and operate a road from a point near the town of Springfield, in the state of Missouri, westward through Albuquerque, 'and thence along the thirty-fifth parallel of latitude, as near as may be found most suitable for a railway route, to the Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route to the Pacific.' The third section making the land grant is, so far as touching any question in this case is concerned, as follows:
'Sec. 3. That there be, and hereby is, granted to the Atlantic & Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway and its branches, 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, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof filed in the office of the commissioner of the general land office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers: provided, that if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, so far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act.'
The eighteenth section was in these words:
'Sec. 18. That the Southern Pacific Railroad, a company incorporated under the laws of the state of California, is hereby authorized to connect with the said Atlantic & Pacific Railroad, formed under this act, at such point near the boundary line of the state of California as they shall deem most suitable for a railroad line to San Francisco, and shall have a uniform gauge and rate of freight or fare with said road, and in consideration thereof, to aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic & Pacific Railroad, herein provided for.'
On March 3, 1871, congress passed an act (16 St. p. 573) to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, the twenty-third section of which act reads:
'That, for the purpose of connecting the Texas Pacific Railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific railroad at or near Colorado river, with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions, as were granted to said Southern Pacific Railroad Company of California by the act of July 27, 1866: provided, however, that this section shall in no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company, or any other railroad company.'
Under the act of July, 1866, the Atlantic & Pacific Company proceeded to construct a part of its road, but did not work west of the Colorado river, the east line of the state of California. It did, however, file maps of that which it claimed to be its line of definite location from the Colorado river to the Pacific ocean, which, on April 11, 1872, and August 15, 1872, were accepted and approved by the secretary of the interior. On July 6, 1886, congress passed this act of forfeiture:
'At act to forfeit the lands granted to the Atlantic & Pacific Railroad Company, etc. Be it enacted by the senate and house of representatives of the United States of America in congress assembled, that all the lands, excepting the right of way, and the right, power, and authority given to said corporation to take from the public lands adjacent to the line of said road material of earth, stone, timber, and so forth, for the construction thereof, including all necessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turn tables, and water stations, heretofore granted to the Atlantic & Pacific Railroad Company by an act entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast,' approved July twenty-seventh, eighteen hundred and sixty-six, and subsequent acts and joint resolutions of congress, which are adjacent to and conterminous with the uncompleted portions of the main line of said road, embraced within both the granted and indeminity limits, as contemplated to be constructed under and by the provisions of said act of July twenty-seventh, eighteen hundred and sixty-six, and acts and joint resolutions subsequent thereto and relating to the construction of said road and telegraph, be, and the same are hereby, declared forfeited and restored to the public domain.' 24 St. p. 123.
On April 3, 1871, just a month after the passage of the act of March 3d, the defendant the Southern Pacific Company filed a map of its route from Tehachapa Pass, by way of Los Angeles, to the Texas Pacific railroad, and proceeded to construct its road, and finished the entire construction some time during the year 1878. Its road crossed the line, as located, of the Atlantic & Pacific Company. The lands in controversy in these cases are within the granted or place limits of both the Atlantic & Pacific and the Southern Pacific Companies at the place where these lines cross. As the Atlantic & Pacific Company did not construct its line, and as its rights were subsequently forfeited by congress, and as the Southern Pacific Company did construct its line, the latter claimed that by virtue of its grant and the construction of its road these lands became its property. It was to test this claim of title, and to restrain trespasses by the railroad company, and those claiming under it, on the lands, that these actions were brought in the circuit court of the United States for the southern district of California. In that court the decisions were in favor of the defendants, and decrees entered dismissing the bills, from which decrees the government brought its appeal to this court. See 39 Fed. Rep. 132; 40 Fed. Rep. 611; 45 Fed. Rep. 596; 46 Fed. Rep. 683.
Asst. Atty. Gen. Maury for appellant
[Argument of Counsel from pages 574-582 intentionally omitted]
Jos. H. Call, for appellant.
Jas C. Carter, for appellees.
[Argument of Counsel from pages 582-592 intentionally omitted]
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

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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