Dyke v. Arizona Eastern Railroad

157 P. 1019, 18 Ariz. 220, 1916 Ariz. LEXIS 96

• Court: Arizona Supreme Court
• Decided: June 2, 1916
• Docket: Civil No. 1470
• Status: Published

Opinions

ROSS, C. J.

Action by appellee railroad company to quiet title to right of way extending across the northwest quarter of the southeast quarter of section 30, township 1 north, range 15 east, Gila county; the appellant Cleve W. Yan Dyke being tbe homestead patentee of said premises from the government of the United States. Fifty feet on each side of the center line of the track, or 100 feet of the right of way, are not involved in this suit; the area in question being tbe excess of 100 feet up to 200 feet, amounting to 2.28 acres. The case was tried to the court without a jury, and judgment entered quieting appellee’s title as prayed. The court made findings of fact, which we condense below, together with such other facts as we deem essential to a determination of the case:

The appellee, a railroad corporation, succeeded the Gila Valley, Globe & Northern Eailway Company, and acquired all its rights, property, franchises, rights of way and all of its other assets. In March, 1906, the Gila Valley, Globe & Northern Eailway Company surveyed and platted a line of railroad from Globe to Miami, Arizona, about nine miles in length, passing over and across certain public lands, and thereafter, on November 5, 1908, filed in the local land office its map or profile of definite location of its railroad under the act of Congress of March 3, 1875. Prior to the filing of said map or profile, to wit, July 1, 1908, under executive order the land covered by map or profile as well also the land in dispute was thrown into the Crook national forest reserve. April 19, 1909, the Gila Valley, Globe & Northern Eailway Company made application to the commissioner of the general land office for permission to enter the Crook national forest reserve, and on the sixth day of July was granted permission to go into, over, and upon the national reserve and to locate and to construct its said railroad thereon. The map and profile of its railroad was approved September 21, 1909, by the Secretary of the Interior pursuant to the act of Congress approved March 3, 1875.

The Gila Valley, Globe & Northern Eailway Company commenced in April, 1909, the construction of its railroad and completed the same in September, 1909, and it and appellee have operated its trains ever since October 5, 1909. Before construction was commenced, on, to wit, November and December, 1908, the Gila Valley, Globe & Northern Eailway Company amended its line of survey and changed the course of said line and located it upon and across the lands described in the complaint, marked and staked the amended lines and right of way on the ground along the entire length of said premises to the extent of 100 feet in width, on each side of the center line of said railroad so located. The road was constructed on the amended location conforming on the ground to the staked and marked line.

At the time of the amended location and at the time of the construction of the road and until November, 1909, the premises in dispute were held by the Miami Land & Improvement Company, a corporation, as mineral land by regular location, and on September 27,1909, the Gila Valley, Globe & Northern Railway Company accepted a deed from.the Miami Land & Improvement Company conveying to it a right of way across the premises in question in width 50 feet on each side of the center of track and across the entire length of premises.

The land in dispute was, by executive order, restored to the public domain and became open to settlement on December 22, 1909, on which date appellant Cleve W. Van Dyke filed upon the same under the homestead law. He had theretofore occupied the same under an option to purchase it as a mineral location from the Miami Land & Improvement Company. On that date he went off the ground, but immediately returned establishing residence with a view of homesteading. In due course he made final homestead “proof, and on February 12, 1912, a patent without any reservation was issued to him for his homestead. December 30, 1909, the Gila Valley, Globe & Northern Railway Company filed its amended map and profile of its right of way in the local land office, which was regularly and duly approved March 4, 1911.

Appellant Cleve W. Van Dyke attempted to show that he established residence upon the premises prior to December 22, 1909, the date upon which he filed his homestead entry. It is clear that he did not go upon the premises prior to the inclusion of the land in the forest reserve. He was on the land under an option from the Miami Land & Improvement Company, claiming it as mineral ground, for some time prior to the date of his homestead filing; he attempted to show that he was there under a verbal permit from the forest supervisors and with the intention of entering the land under the homestead law, and he did actually make application to the forestry department for an examination and listing thereof under the act of June 11, 1906; application, however, was rejected. That he did not rely upon the settlement prior to December 22, 1909, is clearly shown by his own testimony. He said:

“It is a fact that about midnight on the 22d of December, 1909, I took up my residence in the house testified to. That is, I went off the ground and back on again at midnight.”

December 22d was the first time this piece of land could have been settled upon without permission from the national .government, and this permission he did not obtain.

The date that the appellee’s rights attached to the right of way is the principal question involved. It is the contention of the appellee that its rights were fixed and established in August and September, 1909, when it completed the construction of its railroad. Appellants contend that because it changed its route as located by the original map and profile •and approved by the Secretary of the Interior, and placed its line of railroad on a different route than that called for, it could have initiated and acquired no rights until it filed with the local land office on December 30, 1909, its amended map •of location, and that that came too late, appellant Van Dyke having already appropriated the land, especially as against the railroad company, on December 22, 1909, by taking it as a homestead. It is conceded, as we understand it, by the appellants that if the lands through which the appellee constructed its right of way had been at the time public lands of the United States, the appellee was not bound to follow the lines as shown by its map and profile, but was at liberty to con- • struct its railroad upon any.other of the public lands along "the general course of the original survey. It is said, how•ever, that after the approval of the map and profile and before the road was constructed the land in question, together with much other land in that community, was thrown into the •national forest reserve, and that this changed the rights of the appellee and restricted it to a specific right of way, to wit, the ■ one shown by its approved map and profile, or, if changed to another and different route, it should have been with the consent of the Interior Department and upon its permission, and that since no such permission to construct a road through the -disputed land was obtained, the appellee acquired no rights, . at least against the appellants, by virtue of the building of a road thereon.

A right of way over the public lands may be obtained in -two ways: (1) The actual construction of the road; (2) upon the approval of the Secretary of the Interior after the definite location and filing of the profile of the road in the local land office. Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. Ed. 698, 20 Sup. Ct. Rep. 568; Minneapolis, St. P. & S. Ste. M. R. Co. v. Doughty, 208 U. S. 251, 52 L. Ed. 474, 28 Sup. Ct. Rep. 291; Stalker v. Oregon S. L. R. Co., 225 U. S. 143, 56 L. Ed. 1027, 32 Sup. Ct. Rep. 636; Barlow v. Northern Pacific Ry. Co., 240 U. S. 484, 60 L. Ed. 760, 36 Sup. Ct. Rep. 456.

This is the construction given by the courts to the act of Congress of March 3, 1875, which was a general law providing the manner by which rights of way might be obtained over public lands of the United States. March 3, 1899 (30 Stat. 1233), Congress passed an act supplementing in a way the act of March 3, 1875, authorizing the Secretary of the Interior to permit the acquisition of rights of way over the forest reservation. The statute reads as follows:

“That in the form provided by existing law the Secretary of the Interior may file and approve surveys and plats of any right of way for a wagon road, railroad, or other highway over and across any forest reservation or reservoir site when in his judgment the public interests will not be injuriously affected thereby.”

Speaking of the meaning to be given to the above provision, in Chicago, M. & St. P. Ry. Co. v. United States, 218 Fed. 288-297, 134 C. C. A. 84, 93, the court said:

“It is somewhat obscure, and just what Congress intended to accomplish by its adoption is not readily apparent; but one thing seems to be of clear intendment, and that is that the Secretary of the Interior shall only file and approve surveys and plats of rights of way when in his judgment the public interests will not be injuriously affected. In other words, the Secretary of the Interior is made the arbiter as to when such surveys and plats shall be approved, and without such approval it is plain that a railroad company cannot acquire a right of way across a forest reserve. If in his Judgment the public interests would be injuriously affected, it would seem he could prevent, by refusal to approve the surveys and plats, any occupation of the reservations for right of way purposes. Having the power to prevent, it would seem to follow that he also has the power to approve surveys on conditions that would provide against threatened injury to the public interests, and also afford relief and reimbursement against such as might actually be sustained. Acting upon this principle, the Secretary of the Interior has, for the exercise of his judgment in the premises, heretofore adopted and promulgated certain rules and regulations and prescribed certain conditions calculated to safeguard the public interests in that regard. These require of the applicant for a right of way a stipulation that the right of way shall not be so located as to interfere with the proper occupation of the reservation by the government. . . . No construction can be allowed until an application for the right of way has been regularly filed in accordance with the laws of the United States and has been approved by the department, or has been considered and permission specifically given. The regulations have since been changed, so that the-applicant must enter into stipulation and execute such bond as-the Secretary of Agriculture may require for the protection of such reserves.”

In this case, inasmuch as the railroad company was granted a permit to enter upon the Crook national forest reserve and construct a road, it must be assumed that it conformed with all the rules and regulations of the department, and that it was rightfully upon the reservation and constructed its roadbed and laid its rails across the land in dispute with the sanction and permission of the properly constituted' authorities. The soundness of this assumption is impregnable-when we take in connection with the permission to enter into-the reservation the approval of the map of definite location-by the Secretary of the Interior. We have been unable to-discover any regulation requiring that the applicant for a right of way over a national forest should accompany it with a -map and profile definitely fixing and placing the location* of the right of way. The practice in the present case, of granting permission upon the original map and profile, is very strong and convincing proof that no such regulation existed at the time the permission was granted.

The permission to the appellee to enter the forest reserve and construct its road having been granted on the 19th of' April, 1909, it was in the months of August and September, when it constructed its road, acting within its legal rights indefinitely locating its right of way “by the actual construction of the road.” When the question as to whether the actual construction of the road caused the title of the right of way to be vested in the railroad company was before the-supreme court in Jamestown & N. R. Co. v. Jones, supra, Justice McKENNA used this language:

“The ruling gives a practical operation to the statute, and we think is correct. It enables the railroad company to secure the grant by an actual construction of its road, or in advance of construction by filing a map as provided in section 4 (Act of March 3, 1875). Actual construction of the road is certainly unmistakable evidence and notice of appropriation. ’ ’

In this opinion is quoted with approval what Secretary 'Vilas said in Dakota Central B. B. Co. v. Downey, 8 L. D. 115, as follows:

“ ‘As to the roadway the construction of the road fixes the boundaries of the grant, and fixes it by the exact rule of the statute.’ ”

Some point is endeavored to be made by appellants from the fact that the land in dispute was covered by a regular mining location, and that the railroad company purchased from the mineral claimant a right of way 50 feet on each side of the center of the track through the entire 40. That the railroad company, having indicated by its purchase what it needed for its right of way, ought to be limited to that; if 200 feet were necessary for a right of way, it could have bought it or condemned it if necessary.

As long as the ground in dispute retained its status as a valid mining location, unquestionably the appellee’s right of way was limited to its purchase of 50 feet on each side of the center of the track, but it was abandoned as a mining claim and immediately upon its abandonment it reverted to the public domain. Appellant Yan Dyke had an option upon it as a mining claim and subsequently bought it as such, but even before the appellee had constructed its road over it he had made application to the land department to have it examined and segregated from the forest reserve so that he might file a homestead thereon. The further fact that it was subsequently homesteaded as agricultural land satisfies us that there was not at the time it was being held as mineral land any known mineral deposits thereon.

The railroad company at the time that it surveyed and mapped its right of way over the land staked and marked 100 feet on each side of the center of the track. Thus, even while purchasing peace from the mineral claimant for a limited right of way, it was clearly and visibly claiming 200 feet.

We agree with the lower court and with counsel of appellants that the equities of the ease would seem to be with the homestead claimant, but equity must follow the law. Under the law, if the appellee is entitled to any right of way whatever, it is entitled to 100 feet on each side of the center of its track.

Congress itself has fixed the amount of the grant and determined what amount was reasonable and necessary for a railroad right of way. This was properly a legislative function and cannot he reviewed by the courts. Congress had the power to give a right of way as wide or narrow as it saw fit. Having said that it should he 100 feet on each side of the center of the track, it may be no more nor less. Oregon Short Line R. Co. v. Quigley, 10 Idaho, 770, 80 Pac. 401; Northern Pac. R. R. Co. v. Smith, 171 U. S. 260, 43 L. Ed. 157, 18 Sup. Ct. Rep. 794; Northern Pac. Ry. Co. v. Townsend, 190 U. S. 267, 47 L. Ed. 1044, 23 Sup. Ct. Rep. 671; Moran v. Chicago, B. & Q. R. Co., 83 Neb. 680, 120 N. W. 192; Central Pac. Ry. Co. v. Droge, 171 Cal. 32, 151 Pac. 663.

Appellee’s rights were not initiated on the 30th of December, 1909, when it filed its amended map and profile with the local land office, but long anterior to that, to wit, in the months of August and September, when it actually constructed its road. The appellant homesteader could not complain if the railroad company had never filed a map with the local land office showing the definite location of its right of way. As was said in Oregon Short Line R. Co. v. Quigley, 10 Idaho, 770, 80 Pac. 401:

“There could be only two purposes served by the filing of the map under the provisions of this section (section 4, act of March 3, 1875) — the one for the information of the government and its land office officials to apprise them of the occupation and disposition of the public lands belonging to the government; the other purpose for the information of settlers and purchasers who desire to acquire rights in such public lands. In this case the government is not complaining of such failure, and it does not appear upon what theory a settler can be heard to complain of the failure to perform an act by another which is solely for the information and benefit of the government.”

The appellants also insist that the appellee was not qualified under its charter to construct a road from Globe to Miami, Arizona, for the reason that its charter failed to designate such a line as within the project for which it was incorporated. The act of March 3, 1875, provides for the grant of rights of way through the public lands of the United States to any railroad duly organized under the laws of any state or territory or by Congress, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation and due proof of its organization under the same, to the extent of 100 feet on each side of the central line of said road. The record shows that the appellee made due proof before the Secretary of the Interior of its organization under the laws of the territory of Arizona, that its application for a right of way was duly approved by the Interior Department, and that it entered upon the forest reserve and constructed its road with the permission of the duly constituted authority, and that all of these acts were done before the appellant homesteader had initiated any lawful claim to the land. His rights must date from the 22d of December, 1909, the date upon which he made his application to file upon the land as a homestead. His occupation of the land before that date was tortious if not claimed under a valid mineral location. The land, in fact, was' held by his predecessor and himself until midnight, December 22, 1909, as a mineral claim, at which time he went off of the land and immediately returned and established a homestead residence; this homestead right, which was finally perfected into a patent, was initiated then on the 22d of December, 1909, and not before. He can claim no interest in the land by reason of a mineral location, for that had been abandoned and he had no interest in the land as a homesteader at the time the appellee constructed its road.

In Oregon Trunk Line v. Deschutes R. Go. (C. C.), 172 Fed. 739, it was objected that the grantee of the right of way was not competent under the law to receive such a right of way because it was a Nevada corporation ‘ ‘ organized under a law which prohibits it from building or owning or operating a railroad in the state of its creation,” and therefore not authorized or empowered to build a railroad in the state of Oregon and had no capacity to take the grant in question. The court, in passing upon the point raised and others of a kindred nature, said:

“The defendant, however, is not in a position to raise any of these questions. It had no title or interest in the property at the time the map was approved which was affected thereby. . . . The Secretary of the Interior had jurisdiction and authority to dispose of the public domain, and his approval of the plaintiff’s map was equivalent to the issuance of a patent to the land, and cannot be challenged by one who is not in privity with the government, or who had not acquired a right to be preferred in the acquisition of the land before such approval. ‘To enable one to attack a patent from the government,’ says Mr. Justice McKENNA, ‘he must show that he himself is entitled to it. It is not sufficient for him to show that there may have been error in adjudging the title to the patentee. He must show that by the law properly administered the title should have been awarded to him.’ Duluth & Iron Range R. R. v. Roy, 173 U. S. 590, 43 L. Ed. 820, 19 Sup. Ct. Rep. 550. See, also, Deweese v. Reinhard, 61 Fed. 777, 10 C. C. A. 55; Hartman v. Warren, 76 Fed. 157, 22 C. C. A. 30.”

The appellants not being able to connect themselves with the title to this piece of land at the time that the appellee constructed its road, and it not appearing that they were then interested in the land under the claim of right now asserted, it follows that they had no interest that would entitle them to question the decision of the Secretary of the Interior holding that the appellee possessed the capacity to accept the grant.

The judgment is affirmed.

FRANKLIN, J., concurs.