New-York tribune., 1879-05-06
THE FACTS AND THE OPINION.

ing opinion
THE FACTS AND THE OPINION.
The cause before the Court involved the
conf ctpg claims Of the two railroad corporatons-tho
Denver and Rio Grande Railway Company and the
Canon City and San Juan Railway Company-to the oc
cupancy and of the Grand or Big Canon OF the Arkah
sas railroad purposes The Denver Company was H.
oorporacd in 1870 in conformity to the laws OF the
then Territory OF Colorado. portion OF the line ran
tbroueb the Big Canon Of the Arkansas point at or
near the mouth of the Arkansas River By an act OF
Congress approved June g. 1872 the right of way over
the public domain 100 feet in width on each side OF the
track was granted to the Denver Company An act OF
Congress- approved March 3. 1870 corrected former
Acts by declaring the Denver Company to be "lawfui
corporation under the laws of Colorado" On the same
day Congress passed giving to any railroad duly
organized the fright Of way through the puDhc lands
of United States to the extent OF 100 ieet on each
side of the road" 1t however provided that any
railroad company whose hight OF way or whose track OF
road-bed upon such right of way. passes through any
cafon pass dee, shall not prevent any other rail-
road company from the use and occupancy OF SAID
canon pass or dee for the purposes of its road, in
with the road first located, or the crossing OF
other railroads grade" railroad desiring to secure
such benefits required to file with the Register OF the
Land Once profile OF IT'S road within twelve months
after survey.
The Canon City and San Juan Railway Company was
Incorporated February 10. 1877, with capital OF
100000, to construct railroad from Canon CITY
though the Grand Canon into Lake County. Col By
act of Congress March 3, 1877, the Denver Company
was given ten years TO complete its road. On April
20, 1873. the Canon City Company filed It's complaint
for injunction and relief against the Denver Company
in the District Court. Colorado claiming that it had
ACQUIRED prior right to construct It's road through the
Grand Canon. After an injunction against the De
fendant. the case removed to the United States
Circuit Court. On April %, 1873, the Denver Company
filed bill IN the Circuit Court for an injunction against
the Canon City Company. The decree was rendered
against the Denver Company. An appeal carried
the United States Supreme Court which has reversed
the decision Of the Circuit Court The opinion OF the
Court is delivered by Justice Harlan ChiefJusce Waite
dissenting.
After dsposng OF some preliminary and technical mo-
tons, which denied, the Court proceeds to exam
nation OF the upon its merits. The proper con
sructon of the ACT OF June 3, 1872 is first considered
The work done the Denver Company in 1871 in caus
ing % survey through the Grand Canon aud several
miles wesiward before the Act OF 1872 mentioned The
Court continues An tins wasconsstent with pur-
pose upon the part Of the Denver Company. to avail
itself ultimately, and within the time prescribed by law,
the granted right of way through the Grand Canon.
OF company had done prior to the passage OF
the Act Of 1872. toward eecting the objects OF its IN
corporation, Congress- 1t is fairly TO bepresumed.
not uninformed 1t is here suggested by counsel FOR
tho Denver Company that the surveys made in the
further action its part sufficient location aud ap-
pTOpraton OF at least tha part Oi the designated route
10 this proposition cannot yield our assent. The
surveys 1871 and 1872, although defective in some
particulars, and not equivalent to actual location or ap-
preparation OF the way, quite as complete ana eX-
tended the survey which the Canon City Company
caused TO be made IN 1877.
Our next inquiry is 10 the extent to which the
rights OF the Denver Company affected or modified
by the act Of MarcA g. 1870 When That aGt was passed
Its grant of the rght OF way by the act o June s. 1872
had not been acted upon as 10 the Grand Canon OF the
Arkansas There had not been on March ., 1879, an
actual location Of Its line through that dee, nor any
occupancy IN good fath FOR the purpose OF constructing
It's road. The five years originally given TO that COM
pany within which 10 compete iti railway to point ON
June 3, 1917 Before. however the expiration OF that
PERIOD the time extended 10 ten years from the pas
such extension that the Denver Company had the right
on April 49, ISIS. TO taks possession OF the Grand
ton Of It's road through that pass Nhen there ore. IL
accepted the benefits OF the act of March g. 1877, IL
mus be held to assened to the provisions OF the
act OF March B. 1879. Ne may well presume that the
extension OF time accordsd to the Denver Company by
Inc act of March g. s77 would not nave been given ex
cept subject to the conditions contained IN the act OF
March 8, 1870.
Ii results from what said that the Court be-
low erred IN eujonIng the Denver Company from pro-
ceeGiug with the construction OF It's road In the Grand
Canon. The Denver Company should have been allowed
proceed with the construction OF its road unOOsructed
by the Oter company Where the Grand Canon Il broad
enough 10 enable Doth companies TO proceed without
interference with each other IN the construction OF their
respective fOads they shOuId be aOWeu 70 10 80 But
in the narrow portions OF the dce, where TINS course IL
mpracncable the Court, by proper orders should
Ognze the prior right OF the Denver and RIO Grande
Halfway Company 10 construct lIs road Further, II III
any OF III Impossible To lay
down more than one road-Ded ana track, the Court
while recognizing the prior right Of the Denver Com
pany to construct aud operate that track for ITS
business should by proper orders, and upon such
may be Just and eq lltabe establish and
right of the Canon Clu Company TO the road
bed and track, ater c0mpietlon In common with the
Denver Company.
The dccrecs these are, therefore. reversed
with directions aside tho order granting nuctOn
against the Denver and Rio Grande Railway Company,
and also the order dlssOlymg Che injunction granted IN
its favor and Gsmissng Its bill. by proper orders
entered IN each SUIT tbe Court below VIII recognize the
prior right OF that company 10 occupy and tne
Grand Can for the purpose OF constructing its road
tHrcln, and will enOn the Canon CITY and san Juan |
Railway Company from interfering Obstrucung that
company such occupancy and construction. IL
may be mat during the pendcncy OF these the
Court below, since the rendition OF the DEGREES
pealed from. the Canon CITY and San Juan Railway |
Company has constructed Its rOadbed aud track in
Grand Canon, portion thereof. In event
the cost thus lncUfrod IN those portions OF the
which admit OF only rOad-bed for railroad
purposes may Dc ascertsDed ana provided Tor such
ana upon and conditions |
equities OI the parties may require"
ChieJustce Waite. IN dissenting from the judgment
IN tAc case, says: in my opinion the grant right
OF the Denver ana Rio Grande Railway Company
contained IN the act OF Juno ;, le12 Ia tLln
license 10 cnOr upon and such OF the puDc
the United states should bo unoocuped and not APP
pfOpatcd 10 other purposes when the permanent lOc
tiOn OF It's road, W!th ylew 10 actual constructions
should bo made think, alsO the Canon City
Juan Company made the first perman location with
to actual construction through the pass In CON
trOYery. Consequently J! secured th0 preieronce OF
routes. subject 10 reasonable OF the II Occu-
ped II nece ssaTy, by the Denver Company common
VITA ltsciI.'
NAVY ORDERS.