The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1881-06-24
RAILROAD MATTERS.


Company, TO appraise certain lands In this |
county required by the Northern Pacific |
Company for its railway. IL was only con- |
templated to have appraised the lands on
even numbered sections, TO which titles had
been obtained from the United Sta.es and
the right to which attached prior TO The filing
of The company's location In the Helena
Land Office in 1872. Subsequent 10 the APP
pointment of The Board, telegram from the
principal attorney of the company to Colo
mel Dodge, referring 10 an opinion of the At
torney General, and decision of the Supreme
Court, holding that under them the company
was granted absolute right of way, without
naturalization, from the date of Its charter,
over all public lands on Its line, suspended
proceedings until further advices were re-
ceived. This week Col. Dodge received
further instructions from the company, adj
herring TO the position asserted In The tele-
gram. In consequence the Commissioners
have been notified their services will not
now be required, the company asserting its
belief In a legal right 10 build without in
Identifying those who have obtained u. s.
| title on even numbered sections. The case
eiiciting the opinion by tbe Attorney Gen.
| eral and the decision of the court was not
one 10 which the Northern Pacific Company
was party, but Is held TO cover the case of
| that company in relation TO its land grant.
| The charter of The Northern Pacific Com
pany, approved July %, 1854, provides as
| follows:
SEC 2. And be IL further enated That the
right of way through the public lands be, and
| the same il hereby, granted 10 said " North
ern Pacific Railroad Company" its successors
and assigns, for the construction of railroad
and telegraph as proposed; and the right,
power, and authority is hereby given to said
corporation to take from public lands adja-
cent to the line of said road material of earth,
stone, timber and so forth, for the construc-
ton thereof; said way is granted to said
railroad to the extent Of two hunderd feet in
width on each side of said railroad, where it
may pass through The public domain, includ-
ing all necessary ground for station buildings,
! workshops, depots, machine shops, switches,
sidetracks, turntables, and water stations !:
and the right of way shall be exempt from
taxation within the Territories of the
| United States.
BY another section grant of lands to aid
In construction was made, but 1t is under
Section the company holds that absolute
grant of right of way, from the date of the
charter, over all lands then "public" OH the
line proposed, was granted. The line "pro-
posed" was merely defined as " from point
on Lake Superior westerly by the most ell
gible railroad route as shall be determined
by said company, within the territory Of the
United States, on line north of the forty
fifth degree of latitude, to some point on
Puget Sound" No copy of the decision re-
ferred to has yet been received here, and Its
scope Is unknown. We do not consider the
question by any means definitely settled, be-
cause the company assumes that it has a
certain right under it. The company is only
the other, and, unless the decision so fully
covers the case as to render opposition use-
less, IL will be sturdily contested. The
Herald, In recent article on Eminent
Domain" says:
"The kind of title that railroad acquires
depends upon how and from whom the title
comes. If from those who own the absolute
title the railroad company receives an abso-
lutte deed in fee simple, the transfer Is rs com.
plete AZ If one individual owner sod to an
other. But If the court appoint appraisers
and enters Judgment of condemnation and a
decree Of possession, ID is only an easement
of right of way so long as the land may be
needed for that special purpose.
awhile the Government owned the land
absolutely Ii had a perfect right to grant a
full title or only an easement TO a company
, as an individual owner could; but such q
, grant would be liable to the same rules OF
construction as If from private owners. II
the Government had given a right of way
across particular piece Of land while IL was
the sole lawful owner, the subsequent pur.
chaser would have TO take the land SO encum
} bered and could not recover for the item Of
: right of way. We still think such party
might recover for the cost of maintaining
, fences, unless the railroad company under
take to maintain them. But Ii is always Z
, principle of law that every grant affecting I
realty shall lie clearly and definitely ex
pressed, else Ii fails entirely. Now we ap
; prehend that this grant of right of way viii
be found to have failed for lack of perciston.'
There may be something in the suggestion
It is anticipated copies Of the decision will
reach here in week, when this matter car
be discussed with all Its elements In view
There Is no equity in this seizure Of lands
purchased every acre from the Government
In good faith, at double price, without an,
expressed reservation, placed under improve
ment, and in some cases damaged by tn
roadway In matters of fencing and irrigatin.
many times more than the mere value Of thu
land taken; we wait to see If there Is law II
7 It.
d We suggested last week that the failure o
% the company TO construct Its road within tn
+ term specified In the charter, might hav
% some significance where Government title 3
v lands is obtained subsequently. We motto
IS since the decision of the U. s. Suprem