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

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* Dissenting Opinion Field
United States Supreme Court
146 U.S. 570
United States v. Southern Pacific Railroad Company
Mr. Justice FIELD, dissenting.
I am not able to agree with the court in its judgment in these cases, or in the reasons offered in its support.
The cases were fully and elaborately considered by the circuit and district judges in the court below. 46 Fed. Rep. 683, 692. Their opinions are not only able and convincing, but lead to conclusions which seem to me consonant with justice and fair dealing. To my sense of right, there is something repugnant in any other conclusion, in view of the inducements held out by the government and the work done and the expenses incurred by the railroad company.
Congress desired to connect by a railway the states on the Mississippi with the Pacific coast, and for that purpose, by the act of July 27, 1866, created a corporation known as the Atlantic & Pacific Railroad Company, and gave it a grant of lands to aid in the construction of a railway between Springfield, in the state of Missouri, and the Pacific coast. 14 St. p. 292. The eighteenth section authorized the Southern Pacific Railroad Company, a corporation under the laws of California, to connect with the Atlantic & Pacific Railroad at such point near the boundary line of California which it should deem most suitable for a railroad line to San Francisco, and in consideration thereof, and to aid in its construction, gave it grants of lands similar to those which the Atlantic & Pacific Railroad Company had received, and subject to the same conditions and limitations.
On the 3d of March, 1871, congress passed an act to incorporate the Texas & Pacific Railroad Company, and to aid in the construction of its road; and, for the purpose of connecting that road with the city of San Francisco, it authorized, by its twenty-third section, the Southern Pacific Railroad Company 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 the Colorado river, with the same rights, grants, and privileges, and subject to the same limitations, as those contained in the grant by the act of July 27, 1866, with a proviso '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.' On the 3d of April following, one month only after the passage of this act, the Southern Pacific Company designated the line of its road from Tehachapa Pass, by way of Los Angeles, to Ft. Yuma, on the Colorado river, on a map which it filed on that day in the office of the commissioner of the general land office. Afterwards the Southern Pacific was amalgamated or consolidated with other companies, the consolidated company being called the Southern Pacific Railroad Company. It then proceeded to build the railroad along the line designated from Tehachapa Pass, by way of Los Angeles, to the Colorado river, and completed the same within the time required by the act of congress. Its several sections were examined from time to time, and reported to the president of the United States, by commissioners appointed by him for that purpose; and the whole line was accepted by the president, and patents of the United States for the greater part of the lands thus earned were issued to the company. Ever since the completion and acceptance of the road the company has performed to the satisfaction of the government all the services, such as carrying the mails, transporting troops and supplies, in all respects as required by the act of congress; and the services have been accepted by the United States.
The Atlantic & Pacific Railroad Company, subsequently to this definite location of the Southern Pacific Company, and nearly a year after the construction of its road had been commence, and on March 12, 1872, filed in the office of the secretary of the interior-not the office of the commissioner of the general land office-two maps of portions of the line of road in the state of California, and some time afterwards filed maps of other portions of its line, but it never constructed any portion of the road authorized to be constructed by it in the state of California; and for its failure in that respect congress, on July 6, 1886, passed an act declaring a forfeiture of the land in that state. The proposed line of the Atlantic & Pacific Railroad, which was never built, crosses the line of the road of the Southern Pacific Company, which was built as stated.
The present suit is brought to cancel the patents issued to the Southern Pacific Company, and, wherever there is any portion for which a patent has not been issued, to annual its alleged title.
The opinion of the majority of the court proceeds upon the ground that the grant to the Atlantic & Pacific Railroad Company, though the road in aid of which it was granted was never constructed, and the grant was subsequently forfeited by the United States, operated to divest the government of the fee of such lands so completely that the grant to the Southern Pacific Company to build its road could in no way be carried out; that its action, although taken with the approval of the officers of the government, and strictly in conformity with its grant, gave nothing whatever to that company; and that the United States are for that reason authorized to ask for the cancellation of the patents and the surrender of the lands granted, necessarily carrying with them the railroad and other works constructed by the company. And this is prayed in the face of the evident intention of congress that the Southern Pacific Company should have these identical lands, so far as the government had the right to grant them, as its reward in part for building the road.
It is not denied or doubted, as counsel well observed, that the Southern Pacific Company 'promptly, completely, in good faith, and to the satisfaction of every department of the government having any concern with the matter, constructed and equipped its road, put it into operation, and placed in possession of the government every facility and advantage sought by it in making the grants, and has thus fully earned its entire reward; and yet, in the face of all this, the government, by these suits, seeks to wrest these lands from the company, not because it wishes to apply them to some purpose of its own to which they had been devoted prior to the grant, nor because it needs them in order to enable it to fulfill some prior engagement with other parties, but simply in order to restore them to the public domain, where they were at the time of the grant, in order that it may deal with them as its own absolute property, and as it pleases.' The cases would thus seem to be destitute of any substantial equity.
The opinion assumes that the grant to the Atlantic & Pacific Company when its map of definite location was filed, though that was after the concession to the Southern Pacific Company, took effect and vested an absolute title to the lands designated in the Atlantic & Pacific Company from its date, which could not be affected by any subsequent events which would make the concession to the Southern Pacific available. In support of that view it cites several decisions of the court in which it has been held that similar railroad grants were grants in praesenti, and operated only upon lands at the time free from exceptions stated, such as lands to which a preemption or homestead right has attached, or have been reserved for special purposes, and that lands thus excepted or reserved do not fall under the operation of the grants if subsequently the cause of the original exception or reservation has ceased, but remain as public or ungranted lands.
Such grants have been treated as grants in praesenti in determining controversies between parties as to the date of their respective titles under the grants, or against conflicting grants. They are grants in praesenti, so as to cut off all intervening claims except such as are expressly named; and if the work, in aid of which the grants are made, is executed in accordance with their provisions, the title of the grantees will take effect as of their date, except as to specially reserved parcels. We do not disagree with the majority of the court on this point. It is true, also, that lands excepted or reserved from such grants at their date are not subsequently brought under their operation if the cause or purpose of their exception ceases. They remain ungranted lands. Such was the case of Bardon v. Railroad Co., 145 U.S. 535, 12 Sup. Ct. Rep. 856. But it is evident that such exceptions and reservations of one grant do not apply and control a second grant, unless such second grant is specially stated to be within them. When the second grant in question in this case was made, all the rights which the United States had in the lands described therein passed to the Southern Pacific Company, subject only to the rights specially reserved of the first grantee, and released of all restrictions upon their use except as thus designated. Until something was done under the first grant towards its execution, it was competent for congress to give effect to other grants, and to limit the extent of their subordination.
Neither grants in praesenti nor grants with special exceptions or reservations have ever been held, that I am aware of, to prohibit a second grant of the same lands, subject to the condition that it shall not affect or impair any rights under the elder grants. There can be no circumstances under which such second conditional grant may not be made. Whether it will ever become operative, and pass the title to the lands described, will depend upon circumstances which cannot be stated with certainty in advance. May events may arise to defeat or limit the operation of the first grant. It may be forfeited, or portions of its lands may be surrendered, and new legislation, taken in execution of the reserved power to alter, amend, or repeal the act making the grant, may change the whole condition of the lands.
From these views it would seem that the questions arising in this case should not be difficult of solution. Before anything was done under the grant to the Atlantic & Pacific Railroad Company, even to indicate the route of the road it would construct, authority was issued by the government to the Southern Pacific Company to build a road north from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas & Pacific Railroad, at or near the Colorado river, with a proviso, however, that the authority thus given should not in any respect impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company or of any other railroad. Congress had power to confer such authority and to make a grant for its execution. Surely congress can make a grant of lands which it owns or claims to own at any time, if it annex a condition that the grant shall not affect or impair the rights of a previous grantee. It would, as it seems to me, be an extravagant and utterly unwarranted assertion to say that congress, having made a grant for a railroad to run in one direction, is thereby prohibited from making another grant for a railroad to run in a different direction, if a condition is annexed that the second grant shall not affect or impair the rights of the first grantee. The questions, and the only questions, for consideration in such a case would be-First, what are the rights thus reserved to which the second grant is subordinate? and, second, have they been affected or impaired by the later grant? The previous grant to the Atlantic & Pacific Railroad Company, made six years before, did not stand in they way of congress making the conditional concession to the Southern Pacific. If unlimited, it would have affected the extent of the grant to the first company, but a limitation upon its operation was placed by the proviso. No line of railroad had been then defined or marked by the Atlantic & Pacific Railroad Company. It might, so far as congress saw, have selected a different route from the one it did afterwards select. Congress waited six years for that company to make a selection before it made the concession to the Southern Pacific Company. The company was not bound to wait indefinitely for the years to elapse before moving in the enterprise it was to undertake, and to further which congress had afforded assistance. The condition attached to the concession was not an exception from the grant of any lands that the Atlantic & Pacific Railroad Company might claim under its grant without performing its conditions. It merely rendered the concession to the Southern Pacific Company subordinate and subject to any rights that the Atlantic & Pacific Company may then have acquired or might thereafter acquire under its grant, upon the performance of its conditions. What, then, were those rights, present or prospective, which were reserved to the Atlantic & Pacific Company? Plainly, they were the right to construct a railroad and telegraph to the Pacific coast, from the Colorado river, by the most practicable route, with a right of way 200 feet in width, and to use certain lands granted for that purpose to aid in their construction, and, when constructed, the right to operate the road and use the telegraph line. They were permissive rights, and not compulsory. Have they been affected or impaired by the concession to the Southern Pacific Company? In no respect whatever. They were affected and impaired by the company's failure to perform the conditions annexed to its grant, and in no other way, until its forfeiture was declared. It never did anything towards a compliance with its conditions except to file, in detached parts, what it termed a map of the location of its road, six years after the date of the grant and one year after the Southern Pacific Company had located its road, under its concession, and commenced its construction. Its rights, whether present or prospective, were never invoked, and in consequence nothing was ever obtained in virtue of them. The building of another road in another direction by the Southern Pacific Company under its concession did not, therefore, affect or impair any rights of the Atlantic & Pacific, as none were ever claimed or exercised by it. Had the company performed the conditions of its grant, and exercised its rights, it would have taken the lands under the grant against any possible pretension of the Southern Pacific Company; but having abandoned all such rights, by simply refusing to do anything, the Southern Pacific Company rightly proceeded with its work and constructed its road. The grant to it was a full conveyance of all the rights of the United States, free from all restraints except as specially designated, and the rights then reserved were never subsequently affected or impaired by the Southern Pacific Company, and they were lost entirely by the forfeiture of the grant.
The case, in a nutshell, is this: The grant to the Atlantic & Pacific Railroad Company was indeed prior in point of time and of right, and the grant to the Southern Pacific Railroad Company was subordinate to the prior grant. But, when the prior grant was forfeited by the failure of the Atlantic & Pacific Railroad Company to perform its conditions, that grant fell off, and the underlying grant to the Southern Pacific Railroad Company, all the conditions of which had been performed, remained in full force and effect.
I consider the principle involved in these cases as one of great importance, more so than the value of the property, although that runs into millions of dollars expended by the company upon the encouragement of the government. But it is infinitely more important that it should be established that the government and its officers are bound by the same principles of justice in their dealings which are held to govern the conduct of individuals.
In my opinion the judgment of the court below should be affirmed, and I am authorized to state that Mr. Justice GRAY concurs with me in this dissent.
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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