NORTHERN PAC. R. CO. V. CITY OF SPOKANE.
It was known that the railroad would extend through towns and cities then existing, and through others that would spring up along its line, and that the rights of the company in and to its right of way would be subject to the power of the municipal corporations through which it passed to extend public streets across the same. That power which is implied in the general authority conferred by city charters for that purpose is conceded to have been vested in the municipal authorities of the city of Spokane; but it is said that, while the easement to cross the right of way might have been wrested from the company by proceedings in invitum, it had no authority to voluntarily cede the same. We see no valid ground on which to base this distinction. The nature of the right of way over the public lands which the railroad company obtained by the grant was not different from that which it acquired over private lands by purchase or by condemnation proceedings, under the laws of the several states through which it passed. Whether the company acquired the fee to the lands covered by its right of way or not, no reason is apparent why it may not dedicate public easements over and across the same, and by its own act grant to the public all the rights which the latter might obtain by the exercise of its right of eminent domain. Of course, the railroad company could confer upon the pnblic no greater estate than it possessed, and, in any view of the case, the dedication could not affect the reserved rights of the United States, whatever they might be. The public easement, so dedicated, is undoubtedly subservient to the exigencies of railroad use, and the public take the dedicated crol'lsing subject to the inconveniences which may result from the increase of traffic and transportation along the line of the road, and the possible necessity of laying more tracks thereupon; but the company, after such dedication, and after rights have been acquired thereunder, may not close up the street with a building, and may no1: say, as in this case, that because it is convenient to have a warehouse at this point, and because there is no place within the city so desirable for that purpose, it will revoke the rights which it has conferred upon the public by the dedication. One of the objects of congress in making the grant was to upbuild and develop the country through which the road was to plLSS, and it is in harmony with this purpose, as well as in line with the adjudicated cases, so far as they have approached the question under consideration, to hold that such public use is not inconsistent with or subversive of the railroad use, which was intended by congress. It has been held that trustees ho,lding lands for public uses, and corporations having public duties, may dedicate to public use for highways, when such use is not inconsistent with the purposes for which the lands were vested in trust, or incoltlpatibIe with the duties required (Rex v. Leake, 5 Barn. & Ado!. 469; Canal v. Hall, 1 Man. & G. 392); and that a railroad company may dedicate a highway across land already dedicated to public use as a railroad (State v. City of Bayonne, 52 N. J. Law, 503, 20 At!. 69); and that railroad corporations have the same rights to dedicate their lands to public use as any other proprietors, unless it is contrary to the provisions of their charters, or amounts to a breach of
510
"J'EDEnAL<REPORTER,
vol. 64. -
thm.ri duty tor tl1efr istockholders (Greenv. Canaan, 29 Conn. 157; WiUtMna, v.Ratlroa6 Co., 39 Conn. 509). '.Dhe .appellant. cites the v. City of Chicago: (Ill. Sup;) 30 N. E. 1036/Where . ,. .. act' of congress donating lands for the construetf1i>n:·ofa rat1l:'oadanditAe ,charter of the l'IlUrQall: companY, the strip of of, de:voted to·a certain specified purpose,. ,and cannot from that p u r p o s e , " , ' .
IilO quoted from the decision. in that case, must be Gon$WEtre,d int1l8 Jightof the quel;ltion then before the court. It special assessment against th\'! right of way of the Dlin.oilJOentral Railroad.to pay for the impr9vement .of a street, nppn't4e theQry that the right of. way ·was benefited by the street Theq9qrt held tll{Jt the rigb.tof way ,granted by for a:special.pul,'pose was not chargeable with .such an asthatthestripiso devoteqto public use was not land whiCh off intc;dQtaand blocks, and sold by the railroad com: panYfQrJja,9wnadyantage, or uSf}d as ,private property is used by indiv:i,duf¥ls; and itlil :value, fqr .the purpose for which it of. being by the impro'Vc-ment oian adjacent street. This is far frOOlllolding that a railroad compAAY ;rpaynot, in recognition of public interests, and for the promotioI).p:flthepublic we],fare, to the public an easement over itlJ .right of way which does not interfere with its own use of the same cfor a railroad. The decree is affirmed, with costs to the appellees. :HEWITT v. STORY et at of 4.ppeals, Ninth :Circuit. No; 102. R;
November 1, 1894.)
'ltndothets, in 1869, located It ditch appropriating, for the purpose of irrigatlngd:l!.elr, landsjtbe waste wa'-er of the A:.. river; remaining after the N. ,F., ditches, previously located, hlJ.d been supplied. Such ditcb·:W8.l,!l!,called the "B.. R. Ditch." .The water appropriated. by it being insUflicieIltfor their the owners of the B., R. ditch purchased shares in the' S.ll\ ditch, and diverted the water so acqUired through the B. R. ditch., ,SubsequentlY,by their consent, other :Owners of shares in the S. F., ditch, their water through the B.R. ditch, and in and after 1874 all belonging to the owners of the S. F. ditch was taken by them tll;rl:iugh the B. R. ditch, with the consent of the owners thereof, on .condition of contributing to the expense, of enlarging and repairing ,Stlbsequ6ntly, the rOllteof the.B. R. ditch was twice changed, and theWlJ.terbelonging to the <lwners of the S. F. ditch ,vas for more than five ,years. conducted through B. R. ditch, and all the water BUch ditch was allotted according tothe intcre.sts of the bwriersofsuchS.F. ditoh,who tookcomlliete possession, use, and control of, the, B. R. ditch, adversely to ,1UIy ,right or claim under the original! Complainant and his predecessors in title, the owners of the .orlginally supplied by the }3. R. and the locators of sucb· ditch, ·knew of' and', acquiesced. in such use, and shared in 'the water 6111y' according to their shares in S. Ii'. ditch" without objection to , su<lh contributed to the altel'atlon and repair of, the B. R. ditch only in prop0J,"Uon totheir shares in. thl) S, F. ditch. In 1887 complainant
OF WATER RIGHTs-IRRIGATING DITCHES.
the