The right conferred by the Act of July 1, 1862, 12 Stat. 489, c.
120, as subsequently amended, upon the corporation afterwards known
as the Union Pacific Railway Company, Eastern Division, to
construct its road substantially in a direct line to Denver, and
from thence northerly, to connect with the Union Pacific Railroad
at Cheyenne, and to acquire a grant of public lands thereby upon
each side of its railroad as constructed, was not affected by the
Act of March 3, 1869, 15 Stat. 324, c. 127, in such a way as to
make the Union Pacific, Eastern Division, terminate at Denver
and
Page 148 U. S. 563
to cause its land grants to terminate there, but, on the
contrary, the act of 1862, being a grant
in praesenti, the
company's right to lands upon each side of its road became fixed
from the moment it proceeded, under the act of 1866, to establish
its line of definite location so as to make the same extend from
Kansas City westwardly to Denver and thence northwardly to
Cheyenne, and the act of 1869 is not to be construed as breaking
the continuity of the line.
If there were any doubt with regard to the interpretation of the
act of 1869, the construction placed upon it by the Land Department
for eighteen years, under which lands have been put upon the market
and sold, would be entitled to considerable weight.
This case arose upon demurrers and a plea to a bill in equity
filed by the United States against the Union Pacific Railway
Company and 173 other corporations and individuals to procure the
surrender and cancellation of certain land patents issued to the
Kansas Pacific Railway and the Denver Pacific Railway and Telegraph
Company, and for a decree declaring all conveyances of such lands
clouds upon the title of the United States.
The bill averred, in substance, that by an Act of Congress of
July 1, 1862, 12 Stat. 489, incorporating the Union Pacific
Railroad Company, such company was authorized to construct a road
from a point on the one hundredth meridian of longitude, between
the south margin of the valley of the Republican River and the
north margin of the valley of the Platte River, in the Territory of
Nebraska, to the western boundary of Nevada, and was granted every
odd-numbered section of land, amounting to
five alternate
sections of land per mile, afterwards extended to
ten
sections by the Act of July 2, 1864, 13 Stat. 356, on each side of
said railroad, on the line thereof, and within the limits of
ten miles (subsequently increased to
twenty) on
each side of the road, and that whenever the company should have
completed
forty consecutive miles of its road (afterwards
reduced to
twenty by the same act of 1864) patents should
issue for such public lands as had been granted to it, and had been
earned in accordance with the provisions of the act.
By the same act, it was further provided that the Leavenworth,
Pawnee and Western Railroad Company, which had
Page 148 U. S. 564
been chartered by the Territory of Kansas in 1855, was
authorized to construct a line of road from the Missouri River at
the mouth of the Kansas River, to the aforesaid point on the one
hundredth meridian. The corporate name of the said Leavenworth,
Pawnee and Western Railroad Company of Kansas was, subsequently to
the passage of this act, changed to that of the Union Pacific
Railroad Company, Eastern Division.
On July 3, 1866, Congress passed another act, 14 Stat. 79, c.
159, amending those of July 1, 1862, and July 2, 1864, and
providing that the Union Pacific Railway Company, Eastern Division,
should be authorized to so change the line of its definite location
as to connect with the Union Pacific Railroad at a point not more
than fifty miles westward from the meridian of Denver, in
Colorado.
The bill further averred that after the passage of this Act of
July 3, 1866, the Union Pacific Railway Company, Eastern Division,
so changed its line the of definite location as to make the same
extend from its point of beginning at Kansas City, Missouri,
westward, and substantially in a direct line to the City of Denver,
Colorado, and from that point northward and substantially in a
direct line to a connection with the Union Pacific Railroad at
Cheyenne, Wyoming, and proceeded to build its road on that line
towards Denver.
Before the Union Pacific had completed its line to Denver, and
on March 3, 1869, Congress passed another act, 15 Stat. 324, c.
127, authorizing the Union Pacific Railway Company, Eastern
Division, to contract with the Denver Pacific Railway and Telegraph
Company, a Colorado corporation, for the construction, operation,
and maintenance of that part of its line of railroad and telegraph
between Denver and its point of connection with the Union Pacific
Railroad at Cheyenne, and to adopt the roadbed already graded by
the said Denver Pacific Railway and Telegraph Company as said line,
and to grant to said Denver Pacific Railway and Telegraph Company
the perpetual use of its right of way and depot grounds, and to
transfer to it all its rights and privileges subject to all the
obligations pertaining to said part of its line. It was also made
the
Page 148 U. S. 565
duty of such road to extend its railroad and telegraph to a
connection at the City of Denver so as to form with that part of
its line herein authorized to be constructed a continuous line of
railroad and telegraph from Kansas City by way of Denver to
Cheyenne. It was further declared, section 2, that
"All the provisions of law for the operation of the Union
Pacific Railroad, its branches and connections, as a continuous
line, without discrimination, shall apply the same way as if the
road from Denver to Cheyenne had been constructed by the said Union
Pacific Railway Company, Eastern Division."
It was further provided that each of said companies should
receive patents to alternate sections of land along their
respective lines of road, as therein defined, in like manner, and
within the same limits, as provided by law in the case of lands
granted to the Union Pacific Railway Company, Eastern Division.
Upon the same day, a joint resolution was passed, 15 Stat. 348,
authorizing the Union Pacific Railway Company, Eastern Division, to
change its name to the Kansas Pacific Railway Company.
In pursuance of these acts, the new Kansas Pacific Railway
Company entered into a contract with the Denver Pacific of the
nature and for the purpose set out and authorized by the acts, and
in pursuance thereof the Kansas Pacific completed its line to
Denver, and the Denver Pacific completed its line from Denver to
Cheyenne.
The bill thereupon charges that is procuring the passage and
accepting the terms of the Act of March 3, 1869, the Kansas Pacific
abandoned its intention of building a line of road to connect with
the Union Pacific at Cheyenne, and therefore that Denver became the
terminus of its road, and the company surrendered all its rights to
that portion of the land grant lying beyond its terminus at Denver,
and by operation of this act sections of public land within
prescribed limits were granted to the Denver Pacific as a new and
independent grant; that, the Kansas Pacific and the Denver Pacific
having completed their lines of road, they respectively became
entitled to certain portions of the land grant independently of
each other, notwithstanding the fact that, through their
connections
Page 148 U. S. 566
at Denver, they formed a continuous line of railway from Kansas
City to Cheyenne, and their rights to public lands, under the
several acts aforesaid, extended only laterally along the lines of
said roads respectively, and were comprised and limited by lines
drawn through the terminus of each of said roads at right angles to
the general direction of the lines of said roads. The bill then
referred to a map, Exhibit A, as showing the lines of said roads as
connected at the City of Denver, their general courses and
directions as they extend eastwardly and northwardly from the City
of Denver, and the lines by which the rights of said respective
companies to public lands, under the acts aforesaid, are limited;
that west of the legal terminal limit of the Kansas Pacific land
grant, and south of the legal terminal limit of the Denver Pacific
land grant, lies a large triangular tract of land of about 200,000
acres, substantially within a radius of twenty miles of the point
of connection of the two roads at Denver, which the bill alleges
was not within the legal limit of the land grant to either of the
two companies, and to the odd-numbered sections of which they
asserted claim, and for which they procured patents from the
Interior Department, the surrender and cancellation of which said
patents it was the object of the bill to secure.
The bill further alleged the consolidation, in January, 1880, of
the Kansas Pacific and the Denver Pacific and the Union Pacific
Railroad Companies into one corporation, under the corporate name
of the Union Pacific Railway Company, which became the successor in
interest of the three prior corporation; that certain persons, who
were made defendants to the bill, claimed title to certain lands of
this tract by direct or mesne conveyances from these companies, of
the exact nature of which titles plaintiff is ignorant; that under
an Act of March 3, 1887, providing for the adjustment of land
grants made by Congress to aid in the construction of railroads,
etc., the Secretary of the Interior ascertained that the lands
described in the bill had been erroneously and illegally patented,
as herein set out, and thereupon made a demand upon the Union
Pacific Railway Company, as successor in interest to
Page 148 U. S. 567
the others, for a reconveyance of the tracts of land so
erroneously patented, which was refused.
The persons claiming title under these patents having been made
parties to the bill, it prayed that the patents and other
outstanding deeds and other evidences of title be decreed to be
void and surrendered for cancellation as clouds upon the
plaintiff's title, and for such other relief as might seem
proper.
To this bill demurrers were filed by most or all the defendants,
except one Standley, who filed a plea setting up divers statutes
and decisions in the land office, upon which it is claimed the
patents rested, but which need not be specifically stated. Upon the
hearing upon these demurrers and plea, the court made an order
sustaining them, 37 F. 551, and, the plaintiff having elected to
stand by its bill as originally filed, it was further ordered that
the same be dismissed. Thereupon the plaintiff appealed to this
Court.
MR. JUSTICE BROWN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The object of this bill is to procure the surrender and
cancellation of certain patents issued for a triangular tract of
land of about 200,000 acres in extent, lying upon the outside of
the right angle, or elbow, made by the junction at Denver of the
Kansas Pacific Railway, whose general course is east and west, with
the Denver Pacific Railway and Telegraph Company, whose general
course is north and south. These roads are now consolidated under
the name of the Union Pacific Railway Company.
Page 148 U. S. 568
By the original Act of July 1, 1862, incorporating the Union
Pacific Railroad Company, 12 Stat. 489, c. 120, this company was
empowered to construct a road from a point on the one hundredth
meridian, between certain north and south limits, to the western
boundary of Nevada, and by the same act a Kansas corporation was
empowered to construct its line from the Missouri River westwardly
to the initial point of the Union Pacific at the one hundredth
meridian, and to connect with the latter road at that point.
Subsequently, and in 1866, the Kansas corporation, whose name had
meantime been changed to the Union Pacific, Eastern Division, was
authorized to so change its line as to connect with the Union
Pacific at a point not more than fifty miles westward from the
meridian of Denver. Acting upon this, the company did change its
line so as to make the same extend from Kansas City westward in a
direct line to Denver, and thence northward in a direct line to
Cheyenne. By the original act, the Union Pacific was to receive a
grant of five alternate sections of land for every mile
(subsequently raised to ten) on each side of the road, and, as the
Kansas corporation was to construct its road "upon the same terms
and conditions in all respects" as the Union Pacific, it followed
that it was entitled to the same land grant. The act authorizing
the Kansas corporation to change its line of road, 14 Stat. 79, c.
159, provided that, upon the filing of a map showing the general
route of the road, the lands along the entire line thereof, so far
as the same might be designated, should be reserved from sale by
order of the Secretary of the Interior showing clearly that it was
designed to preserve the land grant to which the road was entitled
under the original act.
In this condition of things, the act of 1869 was passed, which
authorized this corporation, then known as the Union Pacific,
Eastern Division, to contract with the Denver Pacific, a Colorado
corporation, for the construction of that portion of its line
between Denver and Cheyenne, hereby clearly recognizing the
validity of the change of location, to adopt its roadbed, to grant
the Denver Pacific a
"perpetual use of its right of way and depot grounds, and to
transfer to it
Page 148 U. S. 569
all the rights and privileges, subject to all the obligations
appertaining to such part of its line."
Even supposing that the act of 1866 did not, upon its face,
authorize the change that was actually made -- that is, westwardly
to Cheyenne, by the way of Denver -- it is clear that by the Act of
March, 1869, this line was recognized as a proper compliance with
the act of 1866 and as a valid and continuous line from Kansas City
to Cheyenne.
The position of the government in this connection is that the
act of 1869 separated the grant of lands to the Denver Pacific from
that in aid of the Eastern Division of the Union Pacific, and
thereby made them two distinct and independent lines of road, each
with its own land grant. This construction would dissentitle the
Kansas Pacific Company to any lands west of its terminus at Denver,
or west of a north and south line across its twenty-mile limit, and
the Denver Pacific to any lands south of its terminus at the same
place, leaving a triangular piece of about 200,000 acres to revert
to the government. These are the lands in dispute.
We do not, however, so read the act. It did not declare that the
Union Pacific, Eastern Division, should end at Denver, or that the
Denver Pacific should begin at Denver, but simply that the former
might contract with the latter for the construction, operation, and
maintenance of a part of its line. Under the interpretation
contended for, if that part had been between the one hundredth
meridian and Denver, instead of between Denver and Cheyenne, it
would thereby have made a distinct and independent line of road,
though running in the same direction.
It is true that under the original act of 1862, the grant was
limited to the odd-numbered §§ "on each side of said
railroad, on the line thereof, and within the limits of ten miles
on each side of said road," but it does not follow that if the road
makes a curve or right angle, the grant ceases in any way to be
operative at that point. The railroad is entitled to its grant of
ten alternate sections to each mile of road, and is entitled to
have it selected within the limits of twenty miles on each side;
but there is no requirement that
Page 148 U. S. 570
the lands shall be reached by a line run at right angles to the
road. Considerable light is thrown upon the interpretation of the
statute of 1869 by the phraseology of section 2, which provides
that the Union Pacific, Eastern Division, shall extend its line to
Denver, "so as to form with that part of its line herein authorized
to be constructed" by the Denver Pacific "a
continuous
line of railroad and telegraph from Kansas City by way of
Denver to Cheyenne," and that
"all the provisions of law for the operation of the Union
Pacific Railroad, its branches and connections as a
continuous
line, without discrimination, shall apply the same as if the
road from Denver to Cheyenne had been constructed by the Union
Pacific Railway Company, Eastern Division."
So far from this language indicating that this was not to be
considered a single line, it is difficult to see how Congress could
have expressed more clearly, by inference, that they were not to be
treated as independent roads. This construction is also reinforced
by the Amendatory Act of June 20, 1874, 18 Stat. 111, which
provides that
"for all the purposes of said act, [of 1862] and of the acts
amendatory thereof, the railway of the Denver Pacific Railway and
Telegraph Company shall be deemed and taken to be a part and
extension of the Kansas Pacific Railroad to the point of junction
thereof with the road of the Union Pacific Railroad Company at
Cheyenne, as provided in the Act of March third, 1869."
Indeed, it is difficult to avoid the conclusion that the act of
1862 being a grant
in praesenti, the rights of the Union
Pacific, Eastern Division, to the lands upon each side of its road
became fixed from the moment it proceeded, under the act of 1866,
to establish its line of definite location so as to make the same
extend from Kansas City westwardly to Denver, and thence
northwardly to Cheyenne; and, in fact that was practically the
ruling of this Court in
Missouri, Kansas &c. Railway v.
Kansas Pacific Railroad Company, 97 U. S.
491,
97 U. S.
496-498. But however this may be, it is entirely clear
that the act of 1869 should not be construed to have the effect of
breaking the continuity of the line unless its language
imperatively
Page 148 U. S. 571
requires it. So far from this being the case, the very title of
the act, "to authorize the transfer of lands" granted to the Union
Pacific to the Denver Pacific, "and to expedite the completion of
railroads to Denver," indicates that it was never intended to
operate as a forfeiture, or as a reduction in amount, of any lands
to which the Union Pacific, Eastern Division, had become entitled
by filing its line of definite location, or to create distinct
lines of road, but was merely designed to permit the Union Pacific
to contract with the Denver Pacific for the construction,
operation, and maintenance of a portion of its line. It is true
that by the third section, which authorizes the "said companies" to
mortgage "their respective portions of said road," and provided
that "each of said companies shall receive patents to the alternate
sections of land along their respective lines," the two
corporations were thereby recognized as independent, yet
at the same time, it recognized them as two corporations engaged in
the construction of the same line of road, and evidently
contemplated a division between them of the land grant appropriated
to such line. The special proviso of section 3 was doubtless
inserted to entitle the Denver Pacific to take patents for its
portion of the land granted, direct from the United States.
In addition to all this, the facts set forth in the plea of
Joseph Standley, which, for the purposes of this case, may be taken
as true, indicate very strongly an acquiescence of the Interior
Department from the date of the Act of March 3, 1869, down to
December, 1887, a period of over eighteen years, in the
construction of the act contended for by the defendant. The plea
set forth that in compliance with the act of 1866 the Union
Pacific, Eastern Division, filed with the Secretary of the Interior
a map of the
general route of its line from the western
boundary of Kansas through Denver to Cheyenne, and that the
Secretary of the Interior on the same day directed the withdrawal
of lands in Colorado on the designated line of said route; that, in
pursuance of said direction, the commissioner of the land office
prepared a diagram showing the line of route, and the map of the
land grant, and forwarded the same to the register and receiver of
the land office at Denver,
Page 148 U. S. 572
directing the odd-numbered sections to be withdrawn on account
of this grant; that included in said diagram are all the lands
mentioned in the bill; that these lands were so withdrawn in
accordance with these instructions; that this map of the general
route was the only one ever filed; that the directions to withdraw
these lands were never vacated; that on August 21, 1869, the Denver
Pacific filed its map of definite location of the section between
Denver and Cheyenne, which was approved by the Secretary of the
Interior; that on May 26, 1870, the Kansas Pacific also filed its
map of definite location between the boundary of Kansas and Denver,
which was approved by the Secretary of the Interior; that under his
directions, the Commissioner of the General Land Office prepared
maps showing the limits of the land grants; that included in these
maps were all the lands described in the bill, and that in 1870, a
contest having arisen between the two roads as to the ownership of
certain sections, an adjustment was had by the Department of the
Interior of their several rights.
The plea further avers that in 1873, in a case then pending in
the General Land Office between the Kansas Pacific and one William
Hodge and John Tracy, the Commissioner of the Land Office formally
decided that the act of 1869 did not sever the original grant to
the Union Pacific, but that the grant was a continuous one through
Denver to Cheyenne; that his ruling in that particular was affirmed
in 1874 by the acting Secretary of the Interior, and that this was
the uniform construction put upon the act until 1887, when the
department reversed its former decision and for the first time held
that the lands covered by the bill were not included within the
land grant to either road.
If there were any doubts with regard to the interpretation of
the act of 1869, the construction placed upon it by the Land
Department for eighteen years, under which construction these lands
have been put upon the market and sold, would undoubtedly be
entitled to considerable weight.
We have no doubt of the correctness of the conclusion reached by
the court below, and its decree is therefore
Affirmed.
