The Oakley herald. [volume] (Oakley, Idaho) 1908-1961, 1912-08-23

4 W HiC >tlPuduOu agreeing 10 construct
and maintain at its own cost and to the
satisfaction of the Reclamation engineers
in charge of the project, crossings for all
canals and laterals hitherto or hereafter
constructed, and to pay to the United
States an amount equal to the estimated
reclamation building charge for the lands
included within its right of way Ia width
of 200 feet fixed by the act of 1879. The
company was unwilling to- pay this sum
money or to undertake to construct and
i mail lin crossings for canals and laterals
hereafter constructed. 1t had substant-
tally completed the grading of its line and
an injunction suit was instituted upon re-
quest of this Department to prevent fur
ther construction.
The railroad company alleges that it
has purchased from the homestead entry.
men their interest in the right of way to
the extent of 100 feet only and that it has
paid them what it estimates will be the
reclamation building charge for the area
included within said Ioo-foot strip. 1t
suggests that the Department will be paid
by the homestead entrymen and that the
requirement of payment for 200 feet as in
any case unreasonable since 100 feet is all
the railroad desires.
With respect to the last point: 1t is at
least doubtful whether the Department
has any authority to limit the right of way
to less than zoo feet under the crcum
stances of this case. In the case of the
| Northern Pacific r. r. Co. VS.. Smith (r71
U.S.,aoo) the Sup. Court held (syllabus);
"By granting right OF way 400 feet
in width Congress must be understood
to have conclusively determined that a
strip of that width was necessary for
public works of such importance and it
WAS not competent for a court, at the
suit of private party, to adjudge that
only IS feet thereof were occupied for
railroad purposes in the face of the
grant and the finding that the entire land
in dispute was within 200 feet of the
railroad as actually constructed and
that the railroad company was in actua
possession thereof by its tenant"
The words of the Railroad Right of wa,
Act of 1875 are:
"The right ofway through the public
lands .'.,.is hereby granted ..... to tn,
extent of 100 feet on each side of ths
central line of said road"
In view of this language it is doubt
full whether the Government could recov
er from the entrymen reclamation build
ing charge for the two 5o-foot strips or
each side of the roo-foot strip which the
railroad has already contracted for with
the entrymen. The only certain way to
protect the public interest is to recover
this amount from the railroad company as
a condition precedent to the approval OF
its application.
AS to the railroads having paid the
entrymen what it estimates will be the re-
clamation building charge for the 100
foet strip:
These lands are what is called the
| ~~-~
South Side Pumping Unit of the Mini
doka Project. The unit is not completed
and the reclamation building charge has
not been fixed 1t would be entirely pos
sible for any entrvman to abandon or
relinquish his entry and keep the money
which the railroad has thus paid him. If
the strip occupied by the railroad right
of way does not pay its proport onate part
Of the charge then the lands of all other
settlers in the project must bear higher
charge to make good the loss, and the OBJ
vious way to prevent this is for the rail
road to pay the amount of the charge to
the Government The fact seems to be
that the railroad has proceeded on the
theory that it did not have to deal with
the Government at all.
Attached to the letter of Senator
Borah is petition signed by the en-
trymen who have conveyed Alright of
way through their several homestead
entries to the railroad. These petit