#### THE BURLINGTON AND MISSOURI RIVER RAILROAD CO. IN NEBRASKA v. THE UNITED STATES.

No. 12399

May 21, 1883.

A railroad corporation of Iowa was authorized by *Aol of Congress July*2, 1864 (13 Stat. L., 356), to extend its road tlirongli the Territory of Nebraska, and an unconditional grant of lands was made to it for that purpose by the same act.

By *.Resolution of April*10, 1869 (16 Stat. L., 54), Congress authorized said corporation to assign and convey to a railroad company, to be organized under the laws of the State of Nebraska, all the rights, powers, and privileges granted by the Act of 1864, and subject to all conditious aud requirements therein contained.

The corporation then conveyed said lands, with other privileges, to the claimant, a company organized in Nebraska.

Held :

The unconditional grant of lands by Congress to the Iowa corporation, which were assigned by authority of Congress to the claimant corporation in Nebraska, does not bring the latter company within the terms of the *Act of March*3, 1875, ch. 133 (Suppl. Rev. Stat., 171), which prohibits *619the payment, to any railroad company for the transportation of any property or troops of the United States over such road which in whole or in part was constructed by the aid of a grant of public land on the condition that the same should be a public highway for the use of the Government, free from toll or other charge, &o.'

The following are the facts found.'by the court:

I. The claimant is a corporation, duly created, organized, established, and existing under the general incorporation laws of Nebraska, and as such owns and operates it railroad between Plattsmouth and Kearney, in the State of Nebraska.

II. The rights, powers, and privileges mentioned in a certain joint resolution of Congress entitled “A resolution in relation to the Burlington and Missouri Biver Bailroad Branch of the Union Pacific Bailroad,” approved April 10, 1869 (16 Stat. L., 54), as having previously been granted to and conferred upon the Burlington and Missouri Biver Bailroad Company, were, pursuant to said resolution, assigned and conveyed by said company to the Burlington and Missouri Biver Bailroad Company in Nebraska, the claimant in this case, by whom the line of railroad from Plattsmouth to Kearney, known as the Burlington and Missouri Biver Bailroad in Nebraska, was constructed.

III. Certain services were rendered by the claimant to-the United States in the transportation of passengers and freight on its said railroad, for which accounts were rendered to the Quartermaster-General and approved by him, with some corrections, as follows :

1st. An account for §1,684.20, approved by the Quartermaster-Genera], without correction. $1,684 20

Record, 24.

2d. An account for $188.79, aproved by the Quartermaster-General, without correction. 1. 188 79

Record, 20.

3d. An account for §1,692.74, corrected by Quartermaster-General to $888.66.(.... 888 66

Record, 21-23, 26.

4th. An account for $973.86, approved by the Quartermaster-General, without correction.'. 973 86

Record, 28.

Stli. Au account for $944.36, corrected by the Quartermaster-General to $943.08.1. 943 08

Record, 29.

Total. $4, 678 59

*620The above services are the same as those for which payment is claimed in the petition.

IN. All the transportation named in the next preceding finding was performed by the claimant within six years before the filing of this petition, with the exception of $12 of the first item thereof and the $188.79 constituting the second item thereof.

Y. The value of all the transportation performed as aforesaid by the claimant for the United States within six years before the filing of this petition, computed at the ordinary tariff rates of said railroad in force at the times at which said services were rendered, is $4,477.80.

*Mr. George A. King*for the claimant:

The only question in this case is whether the claimant has the right to charge the Government regular tariff rates, or. whether it was constructed by the aid of a grant of land on condition that it should be a public highway for the use of the Government of the United States, free from toll or other charge for transportation. In the latter case it would be entitled to only 50 per cent, of its bills. (Atchison, *Topeka and Santa Fé li. B. Co.*v. *United*States, 15 0. Ols. R., 126.)

May 15, 1856, Congress made a grant of lands to the State 'of Iowa, including, among others, six alternate sections on each side of the road from Burlington to a point opposite the mouth of the Platte River; such road to be free from-toll or other charge upon the transportation of property or troops of the United States. (Oh. 28, 11 Stat. L., 9.)

July 1, 1862, was passed the Act incorporating the Union Pacific Railroad Company (12 Stat. L., 489), which provides that the company shall transport mails, troops, &c., whenever required to do so by any Department of the Government, at fair and reasonable rates of compensation, not to exceed the amounts paid by private parties for the same kind of service.

• July 2, 1864, Congress passed an act amending the charter of the Union Pacific Railroad Company, in which, among other things, the Burlington and Missouri River Railroad Company was authorized to extend its road into Nebraska to connect with the Union Pacific. (13 Stat. L., 356.)

April 10, 1869, Congress, by a joint resolution, authorized *621tbe Burlington 'and Missouri Eiver Eailroad Company to assign and convey to a corporation to be organized-under the laws of Nebraska all the rights, powers, and privileges conferred by the last mentioned act, and subject to all the conditions and requirements therein contained. ^ (16 Stat. L., 54.) Such assignment was made. When a grant of land has been made to a railroad company on condition that it shall be a public highway for the use of the Government of the United States; free from toll or other charges, that condition or requirement ap-applies only to so much of the road as lies between the termini at the time the grant was made, and ‘ subsequent extensions are not affected. (14 Opins., 428; *United States x. Kansas Pacific Railway*Go., 99 U. S. B., 455; *United States x. Denver Pacific Railway Go.,*ibid., 460, affirming *Denver Pacific Railway Go.*v. *United States,*12 G. Gis. B., 237, and 13 ibid., 382.)

*Mr. John 8. Blair*(with whom was" *Mr. Thomas Simons,*Assistant. Attorney-General) for the defendants.

OPINION.

Drake, Ch. J.,

delivered the opinion of the court:

There is no controversy in this case over the fact of the claimant’s having rendered the services in transporting passengers and freight on its railroad for the Government, nor over the rates charged for the transportation. The only question is, whether the claimant’s apparent right of recovery is -cut off by any statutory provision. In order to the decision of this point it is necessary to examine certain Congressional legislation having relation, *first, to*the Burlington and Missouri Eiver Eailroad Company, a corporation in Iowa, and, *secondly,*to the claimant, a corporation in Nebraska.

By section 1 of the Act of May 15, 1856, *11 making a grant of lands to the State of Iowa, in alternate sections, to aid in the construction of certain railroads in said State”*(11 Stat. L., 9, eh. 28), there was granted to'the State “every alternate section of land,, designated by odd numbers, for six sections in width on each side of each of said roads.”

act it was declared—

> That the said lands hereby granted to the said State shall be subject to the disposal of the legislature thereof, for the purposes aforesaid, and no *622other; *and the said railroads shall l>e and remain public highways for the use of the Government of the United States, free from toll or other charge upon the transportation of any property or troops of the United States.*

Among tbe roads to be aided was one "'‘from Burlington, on • tbe Mississippi Biver, to a point on tbe Missouri Biver, near tbe moutb of Platte Biver,” wbicb was constructed by “Tbe Burlington and Missouri Biver Bailroad Company,” a corporation created under tbe laws of tbe State of Iowa.

Sections 18 and 19 of the *Act of July*2, 1864, ch. 216 *(13*Stat. L., 356), enacted as follows :

> Sec. 18." That the Burlington *and*Missouri Biver Bailroad Company, a corporation organized under and hy virtue of the laws of the State of Iowa, he, and hereby is, authorized to extend its road through the Territory of Nebraska from the point where it strikes the Missouri Biver, south of the mouth of the Platte Biver, to some point not further west than the one hundredth meridian of west longitude, so as to connect, hy the most practicable route, with the main trunk of the Union Pacific Bailroad, or the part of it which runs from Omaha to the said one hundredth meridian of west longitude. * ^ *

> Sec. 19. That for the purpose of aiding in the construction of said road, there he, and hereby is, granted to the said Burlington and Missouri Biver Bailroad Company every alternate section of public land (excepting mineral lands as provided in this act), designated hy odd numbers, to the amount often alternate sections per mile on each side of said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed. ** * **

It will at once be noticed that tbis grant of lands to tbe Burlington and Missouri Biver Bailroad Company is not accompanied with any condition like that imposed by section 3 of tbe Act of May 15,1856, providing that tbe roads aided “ shall be and remain public highways for tbe use of tbe Government of tbe United States, free from toll or other charge upon tbe transportation of any property or troops of tbe United States.” Tbe grant, therefore, was an unconditional one.

April 10,1869, Congress passed a joint “ *Resolution in relation to the Burlington and Missouri Biver Bailroad branch of the Union Pacific*Bailroad” (16 Stat. L., 54), in tbe following terms;

> That the act of Congress approved July two, eighteen hundred and sixty-four, granting certain lands to the Burlington and Missouri Biver Bailroad Company, to aid in extending its road through the then Territory of Nebraska, to connect with the Union Pacific Railroad, shall he so construed as to authorize said Burlington and Missouri Biver Bailroad Com*623pany to assign and convey to a railroad-company, to Tie organized under tlie laws of tlie State of Nebraska, all the'rights, powers, and privileges granted and conferred by said act, and subject to all conditions and requirements therein contained.

May 12, 1869, under tbe laws of Nebraska, a railroad Company was incorporated, under the name and style of “The Burlington and Missouri Biver Bailroad Company *in*Nebraska,” tbe object of which was declared in'its articles of incorporation to be “to build a railroad from the city of Plattsmouth westward to Kearney, on the Union Pacific Bailroad.” And by said articles the directors of the company were “ authorized to purchase and take the assignment of .the franchise and property of any other company authorized by tbe laws of the United States or any other State to construct a road in the State of Nebraska.”

November 20, 1869, the Burlington and Missouri Biver Bail-road Company executed the following assignment to the Burlington and Missouri Biver Bailroad ¿Company in Nebraska:

> Know all. men by these presents, that tbe Burlington & Missouri River Railroad Company, for tbe consideration named, and pursuant to a vote of tbe directors of said company, passed on tbe 19th day of November now current, do hereby assign, transfer, convey, and set over to the Burlington and Missouri River Railroad Company in Nebraska all the rights, powers, and privileges granted to and conferred upon them by an act of Congress approved July 2, 1864, entitled “An act to. amend an act entitled ‘An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, apd to secure to -the Government the use of the same for postal, military,'and other purposes,’ approved July 1,1862,” subject to all the conditions and requirements in said act contained; and that said Burlington & Missouri River Railroad Company hereby binds itself to execute any further instruments, and to make any further conveyances which shall at any timo be required to fully and completely transfer all tbe rights, title, and interest which by virtue of said act of Congress it now has or may hereafter acquire in any lands, powers, or privileges in Nebraska to the Burlington & Missouri River Railroad Company in Nebraska.

> In witness whereof, the said corporation has caused their seal to be hereto affixed, and the same to he signed by J. W. Brooks, its president, and countersigned by J. N. Denison, its treasurer, thereto, duly authorized, on this twentieth day of November, A. D. 1869.

> Bur. & Miss. River Railroad Co.,

> [seal.]- By J. W. Brooks, *President.*

> J. N. Denison, *Treas.*

Among tbe “rights, powers, and privileges” assigned, transferred, and set over to the Nebraska company by said instru*624ment was tbe above-named grant made to tbe Iowa company by section 19 of tbe Act of July 2, 1864.

In tbe *Act of March*3, 1875, eb. 133 (18 Stat. L., 452; Siippl. Rev.-Stat., 171), was enacted tbe following provision :

> Tliat no money shall hereafter he paid to any railroad company for the transportation of any property or troops of the United States over any railroad ■which in 'whole or in part was constructed by the aid of a grant of public land on the condition that such railroad should be a public highway for the use of the Government of the United States free from toll or other charge, or upon any other conditions for the use of such road, for such transportation; nor shall any allowance be made for the transportation of officers of the Army over any such road when on duty and under orders as military officers of the United States.

Tbe only question in this case is, whether this enactment operates to prohibit tbe payment of tbe money admittedly earned by “Tbe Burlington and Missouri River Railroad Company *in Nebraska”*in the transportation of property and troops of tbe United States. W.e do not think there is any ground for tbe question.

There is no doubt that tbe road of that company “was, whole or in part, constructed by the aid of a grant of public land,” but that mere fact did not bring it within tbe terms of tbe prohibition. To make tbe prohibition effective against payments to this company, it is necessary to show, not only that fact, but that tbe grant of public land was made either “on tbe condition that such railroad should be a public highway for tbe use of tbe Government of tbe United States free from toll or other charge,” or “upon other conditions for tbe use of such road for such transportation.”

To determine whether tbe land grant which aided in tbe construction of tbe road in Nebraska was made on any such conditions, it is only necessary to refer to section 19 of tbe Act of July 2,1864, above cited, to see, as we said before, that no conditions are there prescribed, and that tbe grant was an unconditional one. Tbe right to this unconditional grant was assigned to tbe Nebraska company with tbe express consent of tbe United States. When, therefore, that company received tbe aid of tbe laud grant, it did not thereby become “a public highway for tbe use of tbe Government, free from toll or other charge upon tbe transportation of property or troops of tbe United *625States,’7 simply because the graut was not made with, any such stipulation annexed to it. Heuce, transportation done by that company for the Government was doné as for any other customer, and should be paid for accordingly. The judgment of the court is that the claimant recover the.sum of $4,477.80.