The Union Pacific Act of 1862 granted public land to the Union
Pacific Railroad for each mile of track that it laid, and this was
done under a system whereby land surrounding the railroad
right-of-way was divided into "checkerboard" blocks, with
odd-numbered lots being granted to the railroad and even-numbered
lots being reserved for the Government. Petitioners, the railroad's
successors in fee to certain odd-numbered lots in Wyoming lying in
the vicinity of a reservoir area used by the public for fishing and
hunting, brought an action to quiet title against the United States
after the Govrnment had cleared a road across the Leo Sheep Co.'s
land to afford the public access to the reservoir area. The
District Court granted petitioners' motion for summary judgment,
but the Court of Appeals reversed, holding that, when Congress
granted land to the Union Pacific Railroad, it implicitly reserved
an easement to pass over the odd-numbered sections in order to
reach the even-numbered sections held by the Government.
Held: The Government does not have an implied easement
to build a road across petitioners' land. Pp.
440 U. S.
678-688.
(a) The tenuous relevance of the common law doctrine of easement
by necessity to the Government's asserted reserved right here is
insufficient to overcome the inference prompted by the omission of
any reference in the 1862 Act to such a right. Pp.
440 U. S.
679-682.
(b) Nor does the canon of construction that, when grants to
federal lands are at issue, any doubts "are resolved for the
Government, not against it,"
Andrus v. Charlestone Stone
Products Co., 436 U. S. 604,
436 U. S. 617,
support the Government's position, since such grants "are not to be
so construed as to defeat the intent of the legislature,"
United States v. Denver & Rio Grande R. Co.,
150 U. S. 1,
150 U. S. 14. Pp
440 U. S.
682-683.
(c) Nor is the Unlawful Inclosures of Public Lands Act of 1885
of any significance in this case, since petitioners' unwillingness
to entertain a public road without compensation cannot be
considered a violation of that Act, it having been recognized in
Camfield v. United States, 167 U.
S. 518, that obstruction of access to even-numbered lots
by individually fenced odd-numbered lots was not a violation of the
Act. Pp.
440 U. S.
683-687.
570 F.2d 881, reversed.
Page 440 U. S. 669
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
This is one of those rare cases evoking episodes in this
country's history that, if not forgotten, are remembered as dry
facts, and not as adventure. Admittedly, the issue is mundane:
whether the Government has an implied easement to build a road
across land that was originally granted to the Union Pacific
Railroad under the Union Pacific Act of 1862 -- a grant that was
part of a governmental scheme to subsidize the construction of the
transcontinental railroad. But that issue is posed against the
backdrop of a fascinating chapter in our history. As this Court
noted in another case involving the Union Pacific Railroad,
"courts, in construing a statute, may with propriety recur to
the history of the times when it was passed; and this is frequently
necessary, in order to ascertain the reason as well as the meaning
of particular provisions in it."
United States v. Union Pacific R. Co., 91 U. S.
72,
91 U. S. 79
(1875). In this spirit, we relate the events underlying pasage of
the Union Pacific Act of 1862.
Page 440 U. S. 670
I
The early 19th century -- from the Louisiana Purchase in 1803 to
the Gadsden Purchase in 1853 -- saw the acquisition of the
territory we now regard as the American West. [
Footnote 1] During those years, however, the area
remained a largely untapped resource, for the settlers on the
eastern seaboard of the United States did not keep pace with the
rapidly expanding western frontier. A vaguely delineated area
forbiddingly referred to as the "Great American Desert" can be
found on more than one map published before 1850, embracing much of
the United States' territory west of the Missouri River. As late as
1860, for example, the entire population of the State of Nebraska
was less than 30,000 persons, which represented one person for
every five square miles of land area within the State.
With the discovery of gold at Sutter's Mill in California in
1848, the California gold rush began, and with it, a sharp increase
in settlement of the West. Those in the East with visions of
instant wealth, however, confronted the unenviable choice among an
arduous 4-month overland trek, risking yellow fever on a 35-day
voyage via the Isthmus of Panama, and a better than 4-month voyage
around Cape Horn. They obviously yearned for another alternative,
and interest focused on the transcontinental railroad.
The idea of a transcontinental railroad predated the California
gold rush. From the time that Asa Whitney had proposed a relatively
practical plan for its construction in 1844, it had, in the words
of one of this century's leading historians of the era, "engaged
the eager attention of promoters and politicians,
Page 440 U. S. 671
until dozens of schemes were in the air." [
Footnote 2] The building of the railroad was not
to be the unalloyed product of the free enterprise system. There
was, indeed, the inspiration of men like Thomas Durant and Leland
Stanford and the perspiration of a generation of immigrants, but
animating it all was the desire of the Federal Government that the
West be settled. This desire was intensified by the need to provide
a logistical link with California in the heat of the Civil War.
That the venture was much too risky and much too expensive for
private capital alone was evident in the years of fruitless
exhortation; private investors would not move without tangible
governmental inducement. [
Footnote
3]
In the mid-19th century, there was serious disagreement as
Page 440 U. S. 672
to the forms that inducement could take. Mr. Justice Story, in
his Commentaries on the Constitution, described one extant school
of thought which argued that "internal improvements," such as
railroads, were not within the enumerated constitutional powers of
Congress. [
Footnote 4] Under
such a theory, the direct subsidy of a transcontinental railroad
was constitutionally suspect -- an uneasiness aggravated by
President Andrew Jackson's 1830 veto of a bill appropriating funds
to construct a road from Maysville to Lexington within the State of
Kentucky. [
Footnote 5]
The response to this constitutional "gray" area, and source of
political controversy, was the "checkerboard" land-grant scheme.
The Union Pacific Act of 1862 granted public land to the Union
Pacific Railroad for each mile of track that it laid. [
Footnote 6] Land surrounding the
railway right-of-way was divided into "checkerboard" blocks.
Odd-numbered lots were granted to the Union Pacific; even-numbered
lots were reserved by the Government. As a result, Union Pacific
land in the area of the right-of-way was usually surrounded by
public land, and vice versa. The historical explanation for this
peculiar disposition is that it was apparently an attempt to disarm
the "internal improvement" opponents by establishing a grant scheme
with "demonstrable" benefits. As one historian notes in describing
an 1827 federal land grant intended to facilitate private
construction of a road between Columbus and Sandusky, Ohio:
"Though awkwardly stated, and not fully developed in the Act of
1827, this was the beginning of a practice to be followed in most
future instances of granting land for the
Page 440 U. S. 673
construction of specific internal improvements: donating
alternate sections or one half of the land within a strip along the
line of the project and reserving the other half for sale. . . . In
later donations, the price of the reserved sections was doubled, so
that it could be argued, as the Congessional Globe shows
ad
infinitum, that, by giving half the land away, and thereby
making possible construction of the road, canal, or railroad, the
government would recover from the reserved sections as much as it
would have received from the whole."
P. Gates, History of Public Land Law Development 345-346 (168).
[
Footnote 7]
In 1850, this technique was first explicitly employed for the
subsidization of a railroad when the Illinois delegation in
Congress, which included Stephen A. Douglas, secured the enactment
of a bill that granted public lands to aid the construction of the
Illinois Central Railroad. [
Footnote 8] The Illinois Central and proposed connecting
lines to the south were granted nearly three million acres along
rights of way through Illinois, Mississippi, and Alabama, and, by
the end of 1854, the main line of the Illinois Central from Chicago
to Cairo, Ill., had been put into operation. Before this line was
constructed, public lands had gone begging at the Government's
minimum price; within a few years after its completion, the
railroad had disposed of more than one million acres, and was
rapidly
Page 440 U. S. 674
selling more at prices far above those at which land had been
originally offered by the Government.
The "internal improvements" theory was not the only obstacle to
a transcontinental railroad. In 1853, Congress had appropriated
moneys and authorized Secretary of War Jefferson Davis to undertake
surveys of various proposed routes for a transcontinental railroad.
Congress was badly split along sectional lines on the appropriate
location of the route -- so badly split that Stephen A. Douglas,
now a Senator from Illinois, in 1854 suggested the construction of
a northern, central, and southern route, each with connecting
branches in the East. [
Footnote
9] That proposal, however, did not break the impasse.
The necessary impetus was provided by the Civil War. Senators
and Representatives from those States which seceded from the Union
were no longer present in Congress, and therefore the sectional
overtones of the dispute as to routes largely disappeared. Although
there were no major engagements during the Civil War in the area
between the Missouri River and the west coast which would be
covered by any transcontinental railroad, there were two minor
engagements which doubtless made some impression upon Congress of
the necessity for being able to transport readily men and materials
into that area for military purposes.
Accounts of the major engagements of the Civil War do not
generally include the Battle of Picacho Pass, because, in the words
of Edwin Corle, author of The Gila, "[i]t could be called nothing
more than a minor skirmish today." [
Footnote 10] It was
Page 440 U. S. 675
fought 42 miles northwest of Tucson, Ariz., on April 15, 1862,
between a small contingent of Confederate cavalry commanded by
Captain Sherod Hunter and Union troops under Colonel James H.
Carleton consisting of infantry, cavalry, and artillery components
known as the "California Volunteers." The battle was a draw, with
the Union forces losing three men and the badly outnumbered
Confederates apparently suffering two men killed and two captured.
Following the battle, the Confederate forces abandoned Tucson,
which they had previously occupied, and Carleton's Union forces
entered that city on May 20, 1862.
The Battle of Glorieta Pass has similarly endured anonymity.
Also described as La Glorieta Pass or Apache Canyon, Glorieta Pass
lies in the upper valley of the Pecos River, in the southern
foothills of the Sangre de Cristo range of the Rocky Mountains near
Santa Fe, N.M. Here, in the early spring of 1862, a regiment of
Colorado volunteers, having moved by forced marches from Denver to
Ft. Union, turned back Confederate forces led by Brigadier General
Henry Sibley which, until this encounter, had marched triumphantly
northward up the Rio Grande Valley from Ft. Bliss. As a result of
the Battle of Glorieta Pass, New Mexico was saved for the Union,
and Sibley's forces fell back in an easterly direction through
Texas before the advance of Carleton's column of Californians.
[
Footnote 11]
These engagements gave some immediacy to the comments of
Congressman Edwards of New Hampshire during the debate on the
Pacific Railroad bill:
"If this Union is to be preserved, if we are successfully to
combat the difficulties around us, if we are to crush out
Page 440 U. S. 676
this rebellion against the lawful authority of the Government,
and are to have an entire restoration, it becomes us, with
statesmanlike prudence and sagacity, to look carefully into the
future and to guard in advance against all possible considerations
which may threaten the dismemberment of the country hereafter."
Cong.Globe, 37th Cong., 2d Sess., 1703 (1862). As is often the
case, war spurs technological development, and Congress enacted the
Union Pacific Act in May, 1862. Perhaps not coincidentally, the
Homestead Act was passed the same month.
The Union Pacific Act specified a route west from the 100th
meridian, between a site in the Platte River Valley near the cities
of Kearney and North Platte, Neb., to California. The original plan
was for five eastern terminals located at various points on or near
the Missouri River, but, in fact, Omaha was the only terminal built
according to the plan. [
Footnote
12]
The land grants made by the Union Pacific Act included all
Page 440 U. S. 677
the odd-numbered lots within 10 miles on either side of the
traek. When the Union Pacific's original subscription drive for
private investment proved a failure, the land grant was doubled by
extending the checkerboard grants to 20 miles on either side of the
track. Private investment was still sluggish, and construction did
not begin until July, 1865, three months after the cessation of
Civil War hostilities. [
Footnote
13] Thus began a race with the Central Pacific Railroad, which
was laying track eastward from Sacramento, for the Government land
grants which went with each mile of track laid. The race culminated
in the driving of the golden spike at Promontory, Utah, on May 10,
1869.
II
This case is the modern legacy of these early grants.
Petitioners, the Leo Sheep Co. and the Palm Livestock Co., are the
Union Pacific Railroad's successors in fee to specific
odd-numbered
Page 440 U. S. 678
sections of land in Carbon County, Wyo. These sections lie to
the east and south of the Seminoe Reservoir, an area that is used
by the public for fishing and hunting. Because of the checkerboard
configuration, it is physically impossible to enter the Seminoe
Reservoir sector from this direction without some minimum physical
intrusion upon private land. In the years immediately preceding
this litigation, the Government had received complaints that
private owners were denying access over their lands to the
reservoir area or requiring the payment of access fees. After
negotiation with these owners failed, the Government cleared a dirt
road extending from a local county road to the reservoir across
both public domain lands and fee lands of the Leo Sheep Co. It also
erected signs inviting the public to use the road as a route to the
reservoir.
Petitioners initiated this action pursuant to 28 U.S.C. §
2409a to quiet title against the United States. The District Court
granted petitioners' motion for summary judgment, but was reversed
on appeal by the Court of Appeals for the Tenth Circuit. 570 F.2d
881. The latter court concluded that, when Congress granted land to
the Union Pacific Railroad, it implicitly reserved an easement to
pass over the odd-numbered sections in order to reach the
even-numbered sections that were held by the Government. Because
this holding affects property rights in 150 million acres of land
in the Western United States, we granted certiorari, 439 U.S. 817,
and now reverse.
The Government does not claim that there is any express
reservation of an easement in the Union Pacific Act that would
authorize the construction of a public road on the Leo Sheep Co.'s
property. Section 3 of the 1862 Act sets out a few specific
reservations to the "checkerboard" grant. The grant was not to
include land "sold, reserved, or otherwise disposed of by the
United States," such as land to which there were homestead claims.
12 Stat. 492. Mineral lands were also excepted from the operation
of the Act.
Ibid.
Page 440 U. S. 679
Given the existence of such explicit exceptions, this Court has,
in the past, refused to add to this list by divining some
"implicit" congressional intent. In
Missouri, K. & T. R.
Co. v. Kansas Pacific R. Co., 97 U. S.
491,
97 U. S. 497
(1878), for example, this Court, in an opinion by Mr. Justice
Field, noted that the intent of Congress in making the Union
Pacific grants was clear:
"It was to aid in the construction of the road by a gift of
lands along its route, without reservation of rights, except such
as were specifically mentioned. . . ."
The Court held that, although a railroad right-of-way under the
grant may not have been located until years after 1862, by the
clear terms of the Act, only claims established prior to 1862
overrode the railroad grant; conflicting claims arising after that
time could not be given effect. To overcome the lack of support in
the Act itself, the Government here argues that the implicit
reservation of the asserted easement is established by "settled
rules of property law" and by the Unlawful Inclosures of Public
Lands Act of 1885.
Where a private landowner conveys to another individual a
portion of his lands in a certain area and retains the rest, it is
presumed at common law that the grantor has reserved an easement to
pass over the granted property if such passage is necessary to
reach the retained property. These r;ghts-of-way are referred to as
"easements by necessity." [
Footnote 14] There are two problems with the Government's
reliance on that notion in this case. First of all, whatever right
of passage a private landowner might have, it is not at all clear
that it would include the right to construct a road for public
access to a recreational area. [
Footnote 15] More importantly, the easement is not
Page 440 U. S. 680
actually a matter of necessity in this case, because the
Government has the power of eminent domain. Jurisdictions have
generally seen eminent domain and easements by necessity as
alternative ways to effect the same result. For example, the State
of Wyoming no longer recognizes the common law easement by
necessity in cases involving landlocked estates. It provides
instead for a procedure whereby the landlocked owner can have an
access route condemned on his behalf upon payment of the necessary
compensation to the owner of the servient estate. [
Footnote 16] For similar reasons, other
state courts have held that the "easement by necessity" doctrine is
not available to the sovereign. [
Footnote 17]
The applicability of the doctrine of easement by necesity in
this case is, therefore, somewhat strained, and ultimately of
Page 440 U. S. 681
little significance. The pertinent inquiry in this case is the
intent of Congress when it granted land to the Union Pacific in
1862. The 1862 Act specifically listed reservations to the grant,
and we do not find the tenuous relevance of the common law doctrine
of ways of necessity sufficient to overcome the inference prompted
by the omission of any reference to the reserved right asserted by
the Government in this case. It is possible that Congress gave the
problem of access little thought; but it is at least as likely that
the thought which was given focused on negotiation, reciprocity
considerations, and the power of eminent domain as obvious devices
for ameliorating disputes. [
Footnote 18] So both as a matter of common law
Page 440 U. S. 682
doctrine and as a matter of construing congressional intent, we
are unwilling to imply rights-of-way with the substantial impact
that such implication would have on property rights granted over
100 years ago, in the absence of a stronger case for their
implication than the Government makes here.
The Government would have us decide this case on the basis of
the familiar canon of construction that, when grants to federal
lands are at issue, any doubts "are resolved for the Government,
not against it."
Andrus v. Charlestone Stone Products Co.,
436 U. S. 604,
436 U. S. 617
(1978). But this Court long ago declined to apply this canon in its
full vigor to grants under the railroad Acts. In 1885, this Court
observed:
"The solution of [ownership] questions [involving the railroad
grants] depends, of course, upon the construction given to the acts
making the grants; and they are to receive such a construction as
will carry out the intent of Congress, however difficult it might
be to give full effect to the language used if the grants were by
instruments of private conveyance. To ascertain that intent we must
look to the condition of the country when the acts were passed, as
well as to the purpose declared on their face, and read all parts
of them together."
Winona St. Peter R. Co. v. Barney, 113 U.
S. 618,
113 U. S. 625
(1885). The Court harmonized the longstanding rule enunciated most
recently in
Andrus, supra, with the doctrine of
Winona in
United States v. Denver & Rio Grande R.
Co., 150 U. S. 1,
150 U. S. 14
(1893), when it said:
"It is undoubtedly, as urged by the plaintiffs in error, the
well settled rule of this court that public grants are construed
strictly against the grantees, but they are not to be so construed
as to defeat the intent of the legislature,
Page 440 U. S. 683
or to withhold what is given either expressly or by necessary or
fair implication. . . ."
". . . When an act, operating as a general law, and manifesting
clearly the intention of Congress to secure public advantages, or
to subserve the public interests and welfare by means of benefits
more or less valuable, offers to individuals or to corporations as
an inducement to undertake and accomplish great and expensive
enterprises or works of a quasi public character in or through an
immense and undeveloped public domain, such legislation stands upon
a somewhat different footing from merely a private grant, and
should receive at the hands of the court a more liberal
construction in favor of the purposes for which it was
enacted."
Thus, invocation of the canon reiterated in Andrus does little
to advance the Government's position in this case.
Nor do we find the Unlawful Inclosures of Public Lands Act of
1885 of any significance in this controversy. That Act was a
response to the "range wars," the legendary struggle between
cattlemen and farmers during the last half of the 19th century.
Cattlemen had entered Kansas, Nebraska, and the Dakota Territory
before other settlers, and they grazed their herds freely on public
lands with the Federal Government's acquiescence. [
Footnote 19] To maintain their dominion
over the ranges, cattlemen used homestead and preemption laws to
gain control of water sources in the range lands. With monopoly
control of such sources, the cattlemen found that ownership over a
relatively small area might yield effective control of thousands of
acres of grassland. Another exclusionary technique was the illegal
fencing of public lands, which was often the product of the
checkerboard pattern of railroad grants. By placing fences near the
borders of their parts of the
Page 440 U. S. 684
checkerboard, cattlemen could fence in thousands of acres of
public lands. Reports of the Secretary of the Interior indicated
that vast areas of public grazing land had been preempted by such
fencing patterns. [
Footnote
20] In response, Congress passed the Unlawful Inclosures Act of
1885. [
Footnote 21]
Section 1 of the Unlawful Inclosures Act states that
"[a]ll inclosures of any public lands . . . constructed by any
person . . . to any of which land included within the inclosure the
person . . . had no claim or color of title made or acquired in
good faith . . . are declared to be unlawful."
23 Stat. 321, 43 U.S.C. § 1061. Section 3 further
provides:
"No person, by force, threats, intimidation, or by any fencing
or inclosing, or any other unlawful means, shall prevent or
obstruct, or shall combine and confederate with others to prevent
or obstruct, any person from peaceably entering upon or
establishing a settlement or residence on any tract of public land
subject to settlement or entry under the public land laws of the
United States, or shall prevent or obstruct free passage or transit
over or through the public lands:
Provided, This section
shall not be held to affect the right or title of persons, who have
gone upon, improved, or occupied said lands under the land laws of
the United States, claiming title thereto, in good faith."
23 Stat. 322, 43 U.S.C. § 1063. The Government argues that
the prohibitions of this Act should somehow be read to include the
Leo Sheep Co.'s refusal to acquiesce in a public road over its
property, and that such a conclusion is supported by this Court's
opinion in
Page 440 U. S. 685
Camfield v. United States, 167 U.
S. 518 (1897). We find, however, that
Camfield
does not afford the support that the Government seeks. That case
involved a fence that was constructed on odd-numbered lots so as to
enclose 20,000 acres of public land, thereby appropriating it to
the exclusive use of Camfield and his associates. This Court
analyzed the fence from the perspective of nuisance law, and
concluded that the Unlawful Inclosures Act was an appropriate
exercise of the police power.
There is nothing, however, in the
Camfield opinion to
suggest that the Government has the authority asserted here. In
fact, the Court affirmed the grantee's right to fence completely
his own land.
"So long as the individual proprietor confines his enclosure to
his own land, the Government has no right to complain, since he is
entitled to the complete and exclusive enjoyment of it, regardless
of any detriment to his neighbor; but when, under the guise of
enclosing his own land, he builds a fence which is useless for that
purpose, and can only have been intended to enclose the lands of
the Government, he is plainly within the statute, and is guilty of
an unwarrantable appropriation of that which belongs to the public
at large."
Id. at
167 U. S. 528.
Obviously, if odd-numbered lots are individually fenced, the access
to even-numbered lots is obstructed. Yet the
Camfield
Court found that this was not a violation of the Unlawful
Inclosures Act. In that light, we cannot see how the Leo Sheep
Co.'s unwillingness to entertain a public road without compensation
can be a violation of that Act. It is certainly true that the
problem we confront today was not a matter of great concern during
the time the 1862 railroad grants were made. The order of the day
was the open range -- barbed wire had not made its presence felt --
and the type of incursions on
Page 440 U. S. 686
private property necessary to reach public land was not such an
interference that litigation would serve any motive other than
spite. [
Footnote 22]
Congress obviously believed that, when development came, it would
occur in a parallel fashion on adjoining public and private lands,
and that the process of subdivision, organization of a polity, and
the ordinary pressures of commercial and social intercourse would
work itself into a pattern of access roads. [
Footnote 23] The
Camfield case
expresses similar sentiments. After the passage quoted above
conceding the authority of a private landowner to fence the entire
perimeter of his odd-numbered lot, the Court opined that such
authority was of little practical significance,
"since a separate enclosure of each section would only become
desirable when the country had been settled, and roads had been
built which would give access to each section."
Ibid. It is some testament to common sense that the
present case is virtually unprecedented,
Page 440 U. S. 687
and that, in the 117 years since the grants were made,
litigation over access questions generally has been rare.
Nonetheless, the present times are litigious ones, and the 37th
Congress did not anticipate our plight. Generations of land patents
have issued without any express reservation of the right now
claimed by the Government. Nor has a similar right been asserted
before. [
Footnote 24] When
the Secretary of the Interior has discussed access rights, his
discussion has been colored by the assumption that those rights had
to be purchased. [
Footnote
25] This Court has traditionally recognized the special need
for certainty and predictability where land titles are concerned,
and we are unwilling to upset settled expectations to accommodate
some ill-defined power to construct public
Page 440 U. S. 688
thoroughfares without compensation. [
Footnote 26] The judgment of the Court of Appeals for
the Tenth Circuit is accordingly
Reversed.
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
[
Footnote 1]
Except as otherwise noted, this historical discussion draws on
C. Ames, Pioneering the Union Pacific (1969); R. Athearn, Union
Pacific Country (1971); R. Howard, The Great Iron Trail (1962); J.
McMaster, A History of the People of the United States During
Lincoln's Administration (1927); 2 A. Nevins, Ordeal of the Union
(1947); H. White, History of the Union Pacific Railway (1895).
[
Footnote 2]
2 Nevins,
supra, n
1, at 82.
[
Footnote 3]
That exhortation came from some of the great visionaries of the
19th century. On the floor of the House, Thomas Hart Benton
compared eastern Kansas to Egypt and extolled the wealth that would
be shared by a private railroad to California. Athearn,
supra, n 1, at 22-23.
Senator William H. Seward of New York, a man not known for his
timidity, proclaimed
"that a railroad is necessary, and ought to be built; and I
think it has been scientifically demonstrated . . . that not only
one such road is feasible, but that at least three, four, or five
routes offer the necessary facilities for the security of this
great object."
Cong.Globe, 35th Cong., 1st Sess., 1584 (1858). In his book An
Overland Journey, Horace Greeley was equally enthusiastic. He went
so far as to calculate the economic feasibility of the proposed
railroad line by estimating potential revenue, based on the value
of current shipments of gold from California, passenger fares that
could be obtained, and the cost to the Government of transporting
and maintaining an army in the West and providing mail services. H.
Greeley, An Overland Journey 310-316 (C. Duncan ed.1964) .
But despite his enthusiasm, Greeley appreciated that the effort
was beyond private capital alone. "The amount is too vast; the
enterprise too formidable; the returns too remote and
uncertain."
"[W]hat assurance could an association of private citizens have
that, having devoted their means and energies to the construction
of such a road, it would not be rivaled and destroyed by a similar
work on some other route?"
Id. at 324.
[
Footnote 4]
2 J. Story, Commentaries on the Constitution 166-172 (5th ed.
1891).
See Cong.Globe, 35th Cong., 2d Sess., 579-585
(1859) (Sen. Andrew Johnson) .
[
Footnote 5]
2 J. Richardson, A Compilation of the Messages and Papers of the
Presidents 1789-1897, pp. 483-493 (1896).
[
Footnote 6]
Act of July 1, 1862, 12 Stat. 489.
[
Footnote 7]
Government grants to aid the development of transportation
facilities gained momentum during the administration of John Quincy
Adams, who did not share Madison's and Monroe's reservations about
the constitutionality of the Government's involvement in such
activities. Checkerboard land grants achieved currency during the
canal era. Apparently the first such grant was to aid construction
of rhe Wabash and Erie Canal in Indiana.
See P. Gates,
History of Public Land Law Development 341-356 (1968).
[
Footnote 8]
Act of Sept. 20, 1850, 9 Stat. 466. This was not, however, the
firt time land grants were used to subsidize a railroad. In 1833,
Congress permitted a grant that had been intended for canal
construction to be used instead for the building of a railroad.
Gates,
supra, n 7, at
357.
[
Footnote 9]
Asa Whitney's original proposal had contemplated an eastern
terminus on the south shore of Lake Michigan, and a western
terminus in northern California or Oregon. Senator Gwin of
California, a Southern sympathizer, urged a route running from
Memphis through Ft. Smith and Albuquerque to Los Angeles. Thomas
Hart Benton of Missouri, eschewing both the extreme northern and
extreme southern routes, advocated "a great central national
highway" -- beginning in St. Louis. 2 Nevins,
supra,
n 1, at 82-83.
[
Footnote 10]
E. Corle, The Gila 232 (1951).
[
Footnote 11]
See generally M. Hall, Sibley's New Mexico Campaign
(1960); W. Whitford, The Colorado Volunteers in the Civil War
(1971). The Confederate forces in New Mexico have since been lauded
for their courage, if not for their optimism. One Southern
commander is reported to have responded to a Union demand for
surrender: "We will fight first and surrender afterwards!" G.
Harris, A Tale of Men Who Knew Not Fear 18 (1935).
[
Footnote 12]
The choice of the 100th meridian as the eastern end of the rail
line was not without significance. The 100th meridian has been
traditionally thought of as the parallel west of which it was
impossible to raise most crops without irrigation. Omaha, for
example, 300 miles to the east, receives an average of 25 inches of
rainfall per year, while Sidney, Neb., west of the meridian and
near the Wyoming line, receives an average of only 16 inches of
rainfall each year. Thus, in a sense, the 100th meridian
represented, not only to travelers but also to potential settlers,
the eastern boundary of the amorphous "Great American Desert."
"In general, historians have been content to postulate that
American institutions, orientations, and habits of thought which
developed east of the 100th meridian maintained their form and
retained their content after reaching the West, whereas, in fact, a
good many important ones did not. In the second place, historians
have generally been ignorant of or incurious about natural
conditions that determine life in the West, differentiate it from
other sections, and have given it different orientations."
Introduction of Bernard DeVoto to W. Stegner, Beyond the
Hundredth Meridian xviii-xix (1954).
[
Footnote 13]
Construction would not have begun then without the Credit
Mobilier, a limited liability company that was essentially owned by
the promoters and investors of the Union Pacific. One of these
investors, Oakes Ames, a wealthy New England shovel maker, was a
substantial investor in Credit Mobilier and also a Member of
Congress. Credit Mobilier contracted with the Union Pacific to
build portions of the road, and by 1866, several individuals were
large investors in both corporations. Allegations of improper use
of funds and bribery of Members of the House of Representatives led
to the appointment of a special congressional investigatory
committee that, during 1872 and 1873, looked into the affairs of
Credit Mobilier. These investigations revealed improprieties on the
part of more than one Member of Congress, and the committee
recommended that Ames be expelled from Congress. The investigation
also touched on the career of a future President.
See M.
Leech & H. Brown, The Garfield Orbit (1978).
In 1872, the House of Representatives enacted a resolution
condemning the policy of granting subsidies of public lands to
railroads. Cong.Globe, 42d Cong., 2d Sess., 1585 (1872);
see
Great Northern R. Co. v. United States, 315 U.
S. 262,
315 U. S.
273-274 (1942). Of course, the reaction of the public or
of Congress a decade after the enactment of the Union Pacific Act
to the conduct of those associated with the Union Pacific cannot
influence our interpretation of that Act today.
[
Footnote 14]
See generally 3 R. Powell, Real Property � 410
(1978). For a recent discussion and application of the "easement by
necessity" doctrine,
see Hollywyle Assn., Inc.. v.
Hollister, 164 Conn.389, 324 A.2d 247 (1973).
[
Footnote 15]
It is very unlikely that Congress, in 1862, contemplated this
type of intrusion, and it could not reasonably be maintained that
failure to provide access to the public at large would render the
Seminoe Reservoir land useless. Yet these are precisely the
considerations that define the scope of easements by necessity. As
one commentator relied on by the Government notes:
"As the name implies, these easements are the product of
situations where the usefulness of land is at stake. The scope of
the resultant easement embodies the best judgment of the court as
to what is reasonably essential to the land's use. . . . Changes in
the dominant parcel's use exert some, but not a great, influence in
determining the scope of such easements."
3 Powell,
supra, n 14, � 416, pp. 34-203 to 34-204 (footnotes
omitted).
See, e.g., Higbee Fishing Club v. Atlantic City
Electric Co., 78 N.J.Eq. 434, 79 A. 326 (1911) (footpath, not
roadway, proper scope of easement where use of dominant estate as
clubhouse could not have been contemplated by parties to original
grant).
[
Footnote 16]
Wyo.Stat. §§ 24-101 to 29-104 (1977);
see Snell v.
Ruppert, 541 P.2d 1042,
1046 (Wyo.1975) (statute "offers complete relief to the shut-in
landowner and covers the whole subject matter"; "[i]f a statute
covers a whole subject matter, the abrogation of the common law on
the same subject will necessarily be implied").
See also e.g.,
Quinn v. Holly, 244 Miss. 808,
146 So. 2d
357 (1962). In light of the history of public land grants
related in
440 U. S. it
is not surprising that "private" eminent domain statutes like that
of Wyoming are most prevalent in the Western United States.
[
Footnote 17]
E.g., State v. Black Bros., 116 Tex. 615, 629-630, 297
S.W. 213, 218-219 (1927);
see Pearne v. Coal Creek Min. &
Mfg. Co., 90 Tenn. 619, 627-628, 18 S.W. 402, 404 (1891).
[
Footnote 18]
The intimations that can be found in the Congressional Globe are
that there was no commonly understood reservation by the Government
of the right to enter upon granted lands and construct a public
road. Representative Cradlebaugh of Nevada offered an amendment to
what became the Union Pacific Act of 1862 that would have reserved
the right to the public to enter granted land and prospect for
valuable minerals upon the payment of adequate compensation to the
owner. The proposed amendment was defeated. The only Representative
other than Cradlebaugh who spoke to it, Representative Sargent of
California, stated:
"The amendment of the gentleman proposes to allow the public to
enter upon the lands of any man, whether they be mineral lands or
not and prospect for gold and silver, and as compensation proposes
some loose method of payment for the injuries inflicted. Now, sir,
it may turn out that the man who thus commits the injuries may be
utterly insolvent, not able to pay a dollar, and how is the owner
of the property to be compensated for tearing down his dwellings,
rooting up his orchards, and destroying his crops?"
Cong.Globe, 37th Cong., 2d Sess., 1910 (1862).
In debates on an earlier Pacific Railroad bill, it was
explicitly suggested that there be "a reservation in every grant of
land that [the Goverhment] shall have a right to go through it, and
take it at proper prices to be paid hereafter." The author of this
proposal, Senator Simmons of Rhode Island, lamented the lack of
such a reservation in the bill under consideration. Cong.Globe,
35th Cong., 2d Sess., 579 (1859). Apparently the intended purpose
of this proposed reservation was to permit railroads to obtain
rights-of-way through granted property at the Government's behest.
Senator Simmons' comments are somewhat confused, but they certainly
do not evince any prevailing assumption that the Government
implicitly reserved a right-of-way through granted lands.
[
Footnote 19]
M. Clawson & B. Held, The Federal Lands 57-58, 885 (1957)
.
[
Footnote 20]
H.R.Rep. No. 1325, 48th Cong., 1st Sess. (1884). For example, in
a letter to the House of Representatives the Secretary related two
instances in Colorado where cattle companies fenced in more than
one million acres each. Congressional concern was heightened by the
fact that these and other cattle corporations were foreign owned.
Id. at 2.
[
Footnote 21]
23 Stat. 321, as amended, 43 U.S.C. § 1061
et
seq.
[
Footnote 22]
There were exceptions, one of which,
Buford v. Houtz,
133 U. S. 320
(1890), reached this Court.
See n.
24 infra.
[
Footnote 23]
This expectation was fostered by the general land grant scheme.
Each block in the checkerboard was a square mile -- 640 acres. The
public lots were open to homesteading, with 160 acres the maximum
allowable claim under the Homestead Act. Act of May 20, 1862, 12
Stat. 392. The Union Pacific was required by the 1862 Act to sell
or otherwise dispose of the land granted to it within three years
after completion of the entire road, with lands not so disposed of
within that period subject to homesteading and preemption. Thus, in
1862, the process of subdivision was perceived, to a great degree,
as inevitable.
During the 1850 debates concerning the Illinois Central
Railroad, Senator Cass of Michigan outlined the dynamics that were
presumed to underlie the system of checkerboard grants:
"In all the new portions of the United States, this Government
owns a large proportion of the property. They sell it. They offer
it for sale. It is surveyed, thrown into market, and emigration is
invited. Tract after tract is sold, roads are made, villages and
towns are built up, and all the improvements that can be of value
to a country go on and increase the value of the lands. . . ."
Cong. Globe, 31st Cong., 1st Sess., 846 (1850).
[
Footnote 24]
This distinguishes the instant case from
Buford v. Houtz,
supra. The appellants there were a group of cattle ranchers
seeking,
inter alia, an injunction against sheep ranchers
who moved their herds across odd-numbered lots held by the
appellants in order to graze their sheep on even-numbered public
lots. This Court denied the requested relief because it was
contrary to a century-old grazing custom. The Court also was
influenced by the sheep ranchers' lack of any alternative.
"Upon the whole, we see no equity in the relief sought by the
appellants in this case, which undertakes to deprive the defendants
of this recognized right to permit their cattle to run at large
over the lands of the United States and feed upon the grasses found
in them, while, under pretence of owning a small proportion of the
land which is the subject of controversy, they themselves obtain
the monopoly of this valuable privilege."
133 U.S. at
133 U. S. 332.
Here, neither custom nor necessity supports the Government.
[
Footnote 25]
In 1887, the Secretary of the Interior recommended that Congress
enact legislation providing for a public road around each section
of public land to provide access to the various public lots in the
checkerboard scheme. The Secretary also recommended that, to the
extent building these roads required the taking of property that
had passed to private individuals, "the bill should provide for
necessary compensation." 1 Report of the Secretary of the Interior
for Fiscal Year Ending June 30, 1887, p. 15 (1887);
see
also 1 Report of the Secretary of the Interior for Fiscal Year
Ending June 30, 1888, p. xvii (1888).
[
Footnote 26]
See, e.g., Louisiana v. Garfield, 211 U. S.
70,
211 U. S. 76
(1908);
Iron Silver Mining Co. v. Elgin Mining & Smelting
Co., 118 U. S. 196,
118 U. S.
207-208 (1886);
Doolittle's Lessee v.
Bryan, 14 How. 563, 567 [argument of counsel --
omitted] (1853).