',.838
, purpose of cOl'lgres$,to bestow upon the courts the right to interfere by " injunction or oth.erwisewith the action of the departments in matters · .requiring theexercisE;l ofjudicial, as distinguished from ministerial, duties. The fact that great injury may. be caused, not only to the complainaBt, but to the settlers upon these lands, and to the region in which , the lands are situated,by throwing them open to settlement while the , title thereto is in dispute,cannot becol1sidered in determining the ques· tion presented by this motion. It might not be difficult to convince any · one who has any knowledge of the lamentable evils entailed upon the , community and the settlers themselves by the action of the land department in throwing open the lands upon the Des Moines river to settlement when the title was in dispute, of the unwisdom of inviting settlers to occupy lands which are claimed under. specific grants from thegovernment without first having the question of title determined by the su· preme court; but .the certainty of the evils resulting from such action on the part of the department cannot be urged asa reason why the court should usurp ajurisdiction not cOllfer:red upon it.. In the case of Litchfield v. Register. supra, it was held to be a fatal objection to the bill that the persons asserting their rights as legal pre-emptors were not made parties thereto·. Any objection, good upon the final hearing, may be urged against the granting of a temporary injunction; and, as already stated. the individuals seeking to .pre-empt the lands in the bill described are named in the bill, but are not made parties thereto, and, as is held in the casejust cited, they are in fact the real parties to the controversy. Motion for injunction is therefore refused. o
DENVER
& R.G. R. Co. "'.
UNITED STATES,
(two cases.)
(Oircuit Oourt, D. Oolorado. 1.
May 10. 1888.)
PUBLIC LANDS-LICENSE TO RAILROADS TO CUT TIMBER.
Act Congo June 8,1872, (17 U. S. St. at Large. 339,) granted to the D. & R. G. R. Co. the right to take stone, timbe!".. etc., from public lands for the con· struction '!tud repair of its railwaY"jrovided it was completed within five years from its passage; and in case 0 .d,llfault the act was to be null and as to the'unnnished portion of the roa'4.' This act was amended to change the five years to ten. By act Congo March 3; 1875. a general grant to railroads was made, similar to the special grant of the act of 1872, except that it limited the right to material.to .that necessary for the construction alone. Held, .that the D. & R. G. R. Co. was entitled to the 'priVileges of both acts. -PLACE OF USE.
,
For the rights gran..ted under the. general act of 1875; the portions of the D. . & R. G. R. built before and after June 8. 1882, are .to be treated as one . ""road, and timber can be .taken from the entire line for the construction of ; any portion of the line provided for in -the original organization.
a
SAME.
DE:l\VER & R. G. R. CO. V. mu'rED STATES.
839
4.
SAME-PURPOSES OF
USF;. Under these acts. section and depot houses, stlow-sheds. and fences are a part of the railroad. '
Under these acts, no timber can be taken from the public lands for the reo pair of any portion of the D. & R. G. R. Oo.'s track not completed before June 8, 1882, and for that portion only f.rom the lands adjacent thereto. 6. SAME-ADDITIONS. After a railroad line is once completed it has no right under act Congo March 3. 1875, to take timber from the public lands to build new switches and side tracks. . Error from district court, district of Colorado; HALLETT, Judge. The United States" plaintiff, sued the Denver & Rio Grand Railroad Company and others, defendants, in two suits, for cutting timber illegally on the publiclands. Judgments for plaintiff, and defendants bring error. Both suits were consolidated. . Wolcott VO:ile, for plaintiff in error. H. W. Hobson, U. Atty., for defendant.
5.
SAME-REPAIRS.
«
BREWER, C. J. These two cases come here on eUror from the district court, judgments. having been rendered there in favor of the United States and against the plaintiff, in error, for the full amounts claimed·. Each case was tried on an agreed statement of facts. On June 8, 1872, congress passed an act making a grant to. the Denver & Rio Grande Railway Company. 17 U. S. St. at Large, 339. The material portion of that grant is as follows: "That the right of way over the public domain, one hundred feet in width with Buch public lands adjacenHhereto 88 on each Bide of· the track. may be needed for depots. shops. and other buildings for railroad purposes. and for yard-room and side tracks. not exceeding twenty acres at anyone station. and not more than One station in every ten miles, and the right to take from the public lands adjacent thereto stone, timber, earth, water, and otber material required for the construction and repair ofits railway and telegraph line. be, and the same are hereby, granted. and confirmed unto the Denver & Rio Grande Railway Compariy, a corporation Created under the incorporation laws of the territory of Colorado, its successors and assigns: ... ... * prOVided. that said company shall complete its railway to a point on the Rio Grande as far south as Santa Fe within five years of. the passage of this act, and s,ball complete fifty miles additional Bouth\of said point in eacb year thereafter; and in default thereof the rights and priVileges berein granted shall be rend.ered null and void so far as respects the unfinished portion of sliid road." Subsequently this proviso was changed so as to give ten years instead of five. 19 U. S. St. at Large, 405,On March 3,1875, congress passed an act, making a general grant "to any railroad company duly organized under the law'S of any state or territory," etc., which grant, for aUquestions that arise in this case, .is to the special grant to the· Denver & Rio Grande, except that in the grant the right to take material, earth, stone, and timber is limited to what may be necessary for the construction, and not, as ill the special grant, for construction· and repairs. The agreed statement of facts in the6rst case as follows: ThaHt is agreed-First. That the timber sued for in said action was cut h,
S40
FEDERAL REPORTER.
William A. Eckerly & Co., as agents for the Denver & Rio Grande Railway Company, and delivered to said railway company. Second. That the attached statement correctly shows the kind and amounts of timber so cut and delivered, and also shows the time of cutting, the purposes for which it was cut and used, and the prices paid for cutting and delivering the same. Third. That said timber was cut in Montrose county, Colo., and near the town of Montrose, and upon public, unoccupied, and unentered lands of the United States. Fourth. That the lands from which the'timber was cut were along and near and adjacent to the line 'of railway of said company. Fifth. ,That the portion of the line of railway through said county of Montrose, and in the vicinity of said town of Montrose, was not constructed or completed until after June 8, 1882, and that on June 8, 1882, said line of railway was only constructed and completed as far westward of Cebolla, in Gunnison county, Colo. Sixth. That said company had not completed its line of railway to Santa Fe on June 8, 1882, nor has it ever so completfJd it. Seventh. That of the timber cut as aforesaid a part was used on portions of the line of railway out to Grand Junction constructed and completed after June 8, 1882, and pm'poseof construction of railway, erection of section and depot houses, snow-$hetls, fences, etc. j and a part was shipped by the Denver & Rio Gl'ande Railway for similar purposes to the Denver & Rio Grande Western Railway, to be ,used in the territory of Utah, as shown in attached and $1,000 worth was used for repairs on portions of road completed prior to' June 8,1882. FJighth. 'l'hat as to all of its line of railWaY constructed after June 8, 1882, the said company strictly complied with all the requirements of the act of congress n,pproved March 3, 1875, entitled" Ail act gmutillg torai,lroads the right of way through the public lands of the United States." Ninth. That upon the foregoing agreed statement of facts the following questions are to be submitted to the court for decision: (a) Whether under the act of June 8, 1872, and an act of March 3, ,1877 ,amendatory thereof. the Denver & Rio Grande Railway Company had ll. right to cuttimber for any purposes on public land of the United States adjacent to portions of its line of raihvay COIls,tructed and completed after June 8, 1882. (b) What are "adjacent" within the meaning of' the act of congress, approved June 8, 1872, etl,t,itled "An act granth'lg the right of way through the public lands to the Denver & Rio Grande Railway Company," and the act of congress of March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States?" (c) Whether under acts said company could cut timber on public lands of the United States adjacent to the portions of the line of railway completed suhsequentl)' to June 8, 1882, to be used for purposes of repair, and for statIOn and section honses, and for fences and snow-sheds on those portions of said railway line constructed and completed prior to June 8, 1882. (ll) Whether tinder such statutes said railway company could cut timber from public lands adjacent to portions of the line of railway completed after June 8, 1882, to be used for any purposes on portions of the line of'railway constructed:and completed after June 8, 1882, and, if so,
VENVER '"
R. G. R. CO. V.
UNITED
S'U 'FDl.
841
what purposes. (e) Whether the terms of the statute giving said railway company the riglit to take timber "for the construction and repair of its railway lines" would in anywise comprise and comprehend the erection, building, and repair of section and depot houses, snow-sheds, fences, and rolling stock. (j) Had the said rail way company the right, under the act of March 3, 1875, to take from adjacent public lands material, earth, stone, and timber necessary for the construction of its road? (g) To what extent, and for what amount, the Denver & Rio Grande Railway Company is responsible for timber cut as aforesaid, and shipped to Utah for use on the Denver & Rio Grande Western Railway. (h) To what extent, and for what amount, said railway company is liable, if at all, upon the above agreed statement of facts, and upon the law as it shall be decided by the court. Tenth. That this case is a test case to obtain a definite and positive adjudication by a court of competent jurisdiction of the various points set out above, and of the rights of said railway company with regard to cutting timber from public lands under. the act June 8, 1872, under theaI11endatory act of March 3, 1877, and undetthe act of March 3, 1875. Eleventh. That judgment shall be entered by the courl upon the foregoing statement of facts, and upon the law as it.shall decide it, and at a valuation for said timber as set out in the anneXied statement. 'J'welfth; That the admissions made in this statement of facts shall bind the parties hereto only for this suit, and shltll not bind -them as to any other matter or case. There is some dispute between counsel as to the questions that are involved in and presented by these facts. I shall not attempt to consider any that Ida not think are fairly and clearly presented by the facts. The fourth paragraph stipulates that the lands from which the timber was cut were adjacent to the line of railway; hE'nce I shall not stop to consider how near land must be to be adjacent,-whether half a miJe·or ten miles. I certainly do not agree with the idea, which Seems to be expressed elsewhere, that the proximity of the lands is immaterial, or that congress intended to grant anything like a general right to take timber from public land where it was most conveniellt. The grant was limited to- adjacent lands, and I do not appreciate the logic which concludes that, if there be,no timber on adjacent lands. the grant reaches out and justifies the taking of timber from distant lands,-lands fifty or a hundred miles away; nor do I understand that the rule controlling the construction of ordinary public grants, to the effect that they are construed strictly against the grantee, does not apply to these grants. The first question is whether the railroad company can avail itself of both the special act of 1872 and the general grant of1875. It was held by the district judge that it could, and I agree with him in that conclusion. It is unnecessary to do more than refer to the opinion filed by my Brother HALLETT for sufficient reasons for his conclusion. The principal question, however, is this: My Brother HALLETT was of the opinion that the place of use of the timber on the line of the railway was to be considered as well as the place of cutting, in determining the rightfulness of the appropriation by the company. He thought that the right
842 to cuUimber"extended to only somllch' asshop.ld be used in the con,stru,ction of the road opposite, ornearly so, to the place of cutting; that if timber should be cut within a, half mile of the and then carriedon the cars of the company a hundred miles, and there used in the CQn!!truction of the road, it could not' pe said to be taken, within the view of the act, from adjacent lands. ,So he concluded that the right to take timber was limited by the place ;ofuse, and that,aseach section of ,the road of reasonable length was cOlllpleted, the right.t9 take timber on laJ:)ua adjoining such section was gone. In other words, the grant of tim1.:Ier w:as exhausted pari passu with the construction of the road. In this with all deference to the learned, judge, I think he was mistaken. of this nature are t01:le stxictl:r construed, they are to be flJJ.dyconstrued, and so as to carry into effect the intent of the lndeterrpining what is granted, we of course look first to the language Now, in these grants, the place of cutting, a8 w,ell as the use ,to cut may be put, are both expressed. 'rhe place isthe public lands adjacent to the line of the road. The use' is the constrUGthe railroad, the railroad, butof the railroaq as a whQle, and ofcourse including therein eyerypart of it. It doel'! not purport to grant the righttotlJ.ke tim1;ler from adjacent public lands for use in the Qonstruction of the opposite the of cutting,and th,ese .last wOlds wiU have to llJe, implied in Qrder to place the limit on the grant given to it by the dililtrictjudge. It would have; been so easy to usesucb worda of limitation that their, omission makes strongly against an·.intent ,of such limitation. Let me JDake an illustration. Suppose the'QW,nElr of a,section ;of land mll.de ,jJ.,grantto.a railroad .company of.a stripoOfeeUn width through his land for a l'ight otway, and by the ,ilan1e instrument granted to the company the right to take stone and {rom land near this mght of way for the pur,pQSeof constructing its toad·. ,This :would be precisely to the case,atbar, the differenc.e 1eing,only one of size. "Now,would it be con.Wo,ded,that under such a grant,the COIl.'lpany' wtj.s liD:lited for each rod of distance to the stone and .earth which might happen to be opposite such rod:? Would not a fair ,one expressing the illtflllt..of the grantor, be thatthecompany could ,take stone and earth fromanx place which was near to the right of way for use in the construction of any part of the road ,through the .section? If that w0uldbe true in the lesser. ;illustra:tion,w0uld. it llo.t also be true in the larger case before. us? Can it be that congress intended to '. aid in the construction of only a part.of the ;raUroad? It must.have known that there were largeexients oHerritory ;inthis.,western;countrytreeless, and ,without suit&ble stone for culverts und, bridges. .Did it mean to aid in .the construction of such parts of the. road as tan through a timber country, or whertdhere was suitable stone, and leave the company unaided in the construction of other parts? It seems to me, both the language of the statute and the intent, oithe ,pntor are against the views entertained by my Brother HAI:.LET1\ this, the decision ofthe supreroe court in the case of .Rail1'(ji;td Co., 98 334, seems to me decisively against those
DENVER ell E. G; R.
co.
V. UNITED STATES.
843
views. In that caSe the facts were these: 'By the nineteenth seCtion of the act of July 2, 1864, ther,ewas granted to the railroad company, for the purpose of aiding in: the construction of its road, every alternate section of public land (except mineral land) designated by odd numbers, to the amount of 10 alternate sections per mile on each side of the road on the line thereof not reserved, etc. By. the twentieth section, whenever 20 consecutive miles were completed and accepted, patents were to be issued to the company for land on each side of the road to the amount designated. It was contended thl\t this grant was to be measured by the separate sections of 20 miles of road, and that, to fill out the grant, land must be taken opposite each section, respectively. But the court ruled otherwise, and held that the grant was in aid of the construction of the road as a whole, and might be filled out by lands anywhere along the line. I qU0te the language of the opinion: "The position that the grant was in aid of the constrnction of each section of twentymilea, taken separately, and must be limited to land directly opposite to the section, untenable. The grant waR to aid in the construction of the entire road. and not merely a portion of it. though the com" pany was not to receive patents for any land. except as each twenty mUllS were completed. The provision allowing it to obtain a patent then was intended for its aid. Rwas not required to take it; it was optional for it then, or to wait until the completion of other sections or aftha entire road. The grant was ofa quantity of land on eaoh Side of the road, the amount being at so many sections per mile, with a privilege to receive a patent for l:u,Jd 01'posHe thatp,ortion const.ructed" as, often as each section of twenty miles was completed. If this priVilege were not claimed, the land could be selected along the whole line of the road without reference to any particular section of twenty miles. When lateral limits are to a grant, the land within them must. of course, be exhal1stedbefore land for any deficiency can be taken elsewhere; and, when no lateral limits are assigned, the. land department of the government, in supervising the execution of the act of congress, shonlet undoubtedly as a general rule. require the land to be taken opposite to each section; but in some instances good reasons may exist why a selectiQn elsewhere ought to be permitted. If, as in the present case, by its neglectJor years to withdraw from sale 'land beyond twentymiles from the road, the land opposite to any section of the road has been taken up by others, and patented to. them, there can be nojust objection toaHowing the grantto'the company to be satIsfied by land situated elsewhere along the general· line of the road." This sustains me in the construction I place upon these grants, that only two things are necessary in determining the rightfulness of theappropriation of timber-First, that it be taken from public lands adjacent to the line of road; and,8eCond, that it be used ,in the construction of the road·. , ,This disposes of substantially all the questions in the case. One or two minor matters remain for notice. As appears from the agreed statement of facts, a part of the road was completed before June 8, 1882, the time limited by the special act and its amendment; and a portion has been constructed since. For convenience I shall call the first part the old line, and the latter part the new line. Now, the special right given by the special act-that is, the right to take timber for repairs-is by the proviso specifically limited l" ,