Arizona citizen., 1879-08-22
fight Of Way for Railways Under Act
 Mnrch 3. 1875.

EDITOR CITIZEN The Southern Pa
 cific Railway Company is building its
 road over the public lands of Arizona
 under an act of Congress of general
 application. The City of Tucson, in
 order to clear the right of way beyond
 all dispute, paid certain settlers who
 had only possessory rights, small sums to induce them to relinquish by deed
 whatever rights they claimed to have
 to the land upon which they resided.
 The railway company holds that by law and opinions of the United States courts settlers have norights as against company that actually locates its line by surveys OF the ground prior to is- suance of patent or certificate of pur- chase; in other words, the facts of oc- cupation and filing with the local land office a declaration of pre-emp- tion or homestead, give such settlers no claim for damages against con- pany that locates its line as stated and
 builds its road accordingly. As more or less settlers east of here, are on land for which they have neither patent nor certificate of purchase, it II ay be of advantage to them to know just the opinion held by the Law De- psrtment of the railway company, in this particular, which is embraced in the following statement:
 The Act of Congress of March 8, 1875, grants the right of way through the public lands of the United States "to any railroad company duly or ganized under the laws of any State or Territory, to the extent of one hun dred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad: also ground adjacent to such right of way for station buildings, depots, machine 1 shops, side tracks, turn-outs and water stations not to exceed in amount twen- ty acres for each station for each ten miles of its road"
 The company holds that the provi- slons of this act are similar to those granting the right of way to the Gen. tral Pacific and other railways, and therefore the court decisions in refer. ence to those grants gre applicable to the general act above quoted. In the case of the Central Pacific Railroad Company vs. Dyer, Hurly, ct. al., Jus tice Field of the United States Su- pre1ne Court says:
 The defendants contend that the X right of way was subject to the same | Limitations prescribed by the act to grants of alternate sections, namely, that the land designated was not re- served or otherwise disposed of by the United States, or that a pre-emption or homestead claim had not attached |, to it at the time the line of the road was definitely fixed; and it is argued that the bill, in averring that the de fendants claim by purchases made from the government subsequent to the passage of the Act of Congress does not negative all possible right in them as they may still have ac- quired their interests before the def D mite location of the road. The con- struction for which the defendants thus contend is clearly incorrect. The grant of the right of way is a present iC grant operating immediately upon the , passage of the Act, without reserva- tion or exception and is subject to no conditions except those which are sub sequent or necessarily implied, such II as that the road shall be constructed within the period specified and be afterwards maintained and used for the purposes designated. All acauisi. C tions of land over which this right of lt way was thus granted, made sub sequent tO the passage of the act, were necessarily subject to the exer. else of this right. The reservations and exceptions found in the third sec. ton apply only to the grants of land , therein mentioned and do not apply to ; the grant of the right of way made in J the second section. The provision oft the seventh section requiring the | plaintiff within two years to designate !, the general route of the road as near as might be and file a map of the same in the Department of the In terior, in no respect affected the grant { of the right of way, it only furnished f the means by which the Secretary ' could withdraw the lands within a specified distance of such designated i route from pre-emption, private entry and sale"
 Reference is also made to the cases i of Doran and Williams Ys. Central Pacific Railroad Company, 24 Cal. 245 ic and Western Pacific Railroad Com pany vs. Tevis, fl Cal. 4S9. The com. f pany claim that unless patent had been obtained or certificate of pur- \ chase issued for public land prior to f March 8, 1875, that settler has no & rights to such land except as are sub F ject to the right of way two hundred $ feet wide.