W. H. MUNGER, District Judge.
These suits involve the same question. They were Commenced by complainant in the court below to remove cloüds upon the title to its alleged right of way through certain tracts of land in Weld county, Colo, (between Denver in that state and Cheyenne, Wyo.), and-to procure injunctions prohibiting any [3]*3interference with the full use and enjoyment of such claimed right of way. Complainant claims a right of way 400 feet in width through the tracts in question by virtue of the grant of right of way by Congress to the Union Pacific Railroad and its branches. The respondents deny that complainant has a right of way through the tracts of land in question 400 feet in width by virtue of any act of Congress, and farther allege certain facts as an estoppel.
[1] In the determination of the case it becomes important to first inquire what right of way, if any, was granted by Congress through the lands in question.
July I, 1862, Congress passed the first of the Pacific Railroad acts under which complainant bases any right. Act July 1, 1862, c. 120, 12 Stat. 489. This act in brief provided for the incorporation of the Union Pacific Railroad Company and the construction of a railroad commencing at the one-hundredth meridian in Nebraska, between the south margin of the valley of the Republican river and the north margin of the valley of the Platte river, and extending to the western boundary of Nevada; also authorized the construction of certain branch lines, commencing at the Missouri river, to connect with the main line at the one-hundredth meridian. This act granted to said main line and branches a right of way over the public lands of the United States 400 feet in width, and, to aid in the construction of the roads, granted five alternate sections of public lands designated by odd numbers within the limits of ten miles on each side of each of said roads, which hadi not been sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached at the time the line of said road should be definitely fixed. An exception was also contained as to mineral lands. To aid further in the construction, a grant of bonds was made. The act provided also that, upon the acceptance of the act by the company, andl the filing of a map within two years of the passage of the act, designating the general route of said road as near as might be, the Secretary of the Interior should cause the lands within IS miles of said designated route to be withdrawn from pre-emption, private entry, and sale, thus affording the company protection in its grant of lands from subsequent disposition by sale, pre-emption or homestead entry in case of a deviation or variation between the general and finally adopted route to the extent of 5 miles on each side of the line of general route. By the ninth section of the act, the Leavenworth, Pawnee & Western Railroad Company was designated as one of the branches, given the benefit of the same grant of right of way and lands in aid of its construction, such branch road to' connect with the main line at the one-hundredth meridian. These respective grants were made subject to the right to the use of the said roads by the government for postal, military and other purposes, the particulars in respect to which it is unnecessary here to specify.
The grant of the right of way and of the aid lands were each in presentí. The grant of the right of way differed! from the grant of lauds in this: The grant of right of way was absolute, containing no reservations or exceptions, while as to the alternate sections [4]*4of land, it excepted from the grant the lands which had been “sold, reserved or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed.” These grant.s, while in presenti and effective from the date of the passage o? the act,_ remained! as a float until the filing of the map of the definite location. Upon the filing of the map of the definite location, the grant became fixed and definite. As to the right of way, parties who, after the passage of the act and before the map of definite location was filed, acquired any of the public lands by purchase, pre-emption or homestead entry, took the same subject to the right of way being definitely located thereon. R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578.
The act contained the following provision:
“And the better to accomplish the object of this act, namely, to promote the public interest and welfare .by the construction of said road and telegraph line, and keeping the same in working order, and to secure to the government at all times (but particularly in time of war) the use and benefit of the same for postal, military and other purposes, Congress may, at any time, having due regard for the rights of said companies named herein, add to, alter, amend or repeal this act.”
As the right of way claimed! by complainant in these cases is based upon the grant to the branch line designated as the Leavenworth, Pawnee & Western Railroad Company, we shalj deal with the amendatory acts only to the extent that that branch was affected.
On July 2, 1864, Congress passed an act (Act July 2, 1864, c. 216, 13 Stat. 356) amending the act of July 1, 1862. This amendatory act doubled the. land grant by giving to the roads ten of the alternate sections on each side of the line thereof, subject to the same exceptions as in the original act, and directed the withdrawal by the Secretary of the Interior of the lands within the limits of twenty-five miles on each side of the road upon the. filing of a map showing the general route. Section 9 of the amendatory act contained this provision :
“That any company authorized by this act to construct its road and telegraph line from the Missouri river to the initial point aforesaid may construct its road and telegraph line so as to connect with the Union Pacific Railroad at any point westwardly of such initial point, in ease such company shall deem such westward connection more practicable or desirable; and in aid of the construction of so much of its road and telegraph line as shall be a departure from the route hereinbefore provided for its road such company shall be entitled to all the benefits and be subject to all the conditions and restrictions of this act.”
It farther provided, however, that the branch lines should not receive bonds from the United States to aid in the construction of such portion of the road as should be extended to a connection with the Union Pacific Railroad west of the one-hundredth degree of longitude. The Leavenworth, Pawnee & Western Railroad Company'in the meantime changed its name to the Union Pacific Railroad Company, Eastern Division. By this amendatory act the grant of the right of way and the alternate sections in aid of the .construction of the road was extended over the public lands west of the one-hundredth meridian, [5]*5continued as a float as under the original act until the definite location of the road. Mo., Kas. & Texas Ry. Co. v. Kas. Pac. Ry. Co., 97 U. S. 491-494, 24 L. Ed. 1095; U. S. v. Kas. Pac. Ry. Co., 99 U. S. 455-57, 25 L. Ed. 289; Stuart v. U. P. R. Co., 178 Fed. 753, 103 C. C. A. 89.
We are cited to the case of U. P. R. Co. v. Harris, 215 U. S. 386, 30 Sup. Ct. 138, 54 L. Ed. 246, as holding that the grant of the right of way west of the one-hundredth meridian did not take effect until the passage of the subsequent act of July 3, 1866 (Act July 3, 1866, c. 159, 14 Stat. 79). That case and the effect of the decision was fully considered by this court in Stuart v. U. P. R. Co., supra. In the opinion written by Mr. Justice Van Devanter, then Circuit Judge, the Harris Case was by him analyzed. With that opinion we are now content.
The act of 1866 extended the time to designate the general route of the road and to file a map> thereof until the 1st day of December, 1866, and provided that its connection with the main line of the • Union Pacific should not be at a point more than fifty miles westwardly from the meridian of Denver in Colorado. This act of 1866 contained no grant of lands or right of way; simply extended the time in which to file the map showing the general route of the road and fixed the most westwardly point at which it could connect with the main line of the Union Pacific. Such being our interpretation of the before-mentioned acts of Congress, it follows that the grant of the right of way, after the passage of the act of July 2, 1864, existed as an inchoate right over any of the public lands, west of the one-hundredth meridian to any point upon the main line of the Union Pacific which might be selected by the Union Pacific Railroad Company, Eastern Division. If, then, the lands in question were unappropriated public lands on July 2, 1864, the company’s right to construct its road over the same and obtain a right of way 400 feet in width is undeniable and the subsequent entry of the lands by individuals under the land laws of the United States was subject to such inchoate right being exercised by the company.
In the meantime, in the year 1867, the Denver Pacific Railway & Telegraph Company incorporated under the laws of the state of Colorado and prior to March 3, 1869, located and graded a line of road from Denver to a connection with the main line of the Union Pacific at Cheyenne, Wyo. That road not having a right of way over the public lands, Congress by an act passed March 3, 1869 (Act March 3, 1869, c. 127, 15 Stat. 324), authorized and empowered the Union Pacific Railroad Company, Eastern Division, to contract with the Denver Pacific Railway & Telegraph Company for the construction, operation, and maintenance of that part of its line of railroad and telegraph between Denver and the connection with the main line of the Union Pacific at Cheyenne, to adopt the roadbed already graded by said Denver Pacific Railway & Telegraph Company as its line, and to grant to Denver Pacific Railway & Telegraph Company the perpetual use of its right of way and depot grounds, and to transfer to_ it all the rights and privileges, subject to all the obligations pertaining to said part of its line, and all the provisions of law for the [6]*6operation of the Union Pacific and its branches and connections as a continuous line should apply the same as if the road from Denver to Cheyenne had been constructed by the said Union Pacific Railroad Company, Eastern Division, but the Union Pacific Railroad Company, Eastern Division, was. not authorized to fix the rates of tariff for the Denver & Pacific Railway & Telegraph Company. The two companies, the Union Pacific Railroad Company, Eastern Division, and the Denver Pacific, were authorized to mortgage their respective portions of said road for an amount not exceeding $32,000 per mile to enable them respectively to borrow money to construct the road, and each of the companies should receive patents to the alternate sections of land along their respective lines of road in like manner and within the same limits as then provided for by law in case of lands granted to the Union Pacific Railway Company, Eastern Division. This act, in the case of U. S. v. U. P. Ry. Co., 148 U. S. 562, 13 Sup. Ct. 724, 37 L.Ed. 560, was construed not as a new and independent grant, but as a continuation of the grant before made to the Union Pacific Railroad Company, Eastern Division, and an adoption of the grade of the Denver Pacific Railroad Company between Denver and Cheyenne, as a part of the continuous line of the Union Pacific, Eastern Division, from the Missouri river to its connection with the main line at Cheyenne.
As we have before said, the grant of the lands and the right of way was an inchoate right, consisting of a float, until the line was definitely fixed between Denver and Cheyenne over the route then graded by the Denver Pacific Company, and in the case of U. S. v. U. P. Ry. Co., supra, it was specifically held that this inchoate right to that portion of the land grant was transferred to the Denver Pacific Company. If the inchoate right to the granted lands could be transferred by authority of Congress we perceive no reason why the inchoate right to the right of way could not also be thus transferred.
[2] The road filed a map after the passage of the act of July 2, 1864, showing the general route of its line forming a connection with the' main line at the one-hundredth meridian, and after the passage of the act of 1866 it filed another map showing the general route to Denver, thence northerly along the South Platte river to the Cache le Poudre river, thence westerly to a point near what is now Ft. Collins, the main line of the Union Pacific not having at that time been constructed that far westerly; the exact point of junction could not be determined. We regard the filing of the map of general route unimportant in the determination of this controversy. A map showing the general route of the proposed line of road was a requirement for the purpose of enabling the Interior Department to withdraw from disposition lands which might accrue tó the Company under the grant of alternate sections. As to the right of way, that remained a float until the filing of a map of definite location or, without such map, until the actual construction or completion of sections of the road and acceptance thereof by the government. Then only did the right of way become fixed, definite, and certain. The language of the several acts plainly distinguishes the difference in this respect between the grant of [7]*7the right of way and the grant of lands. Bybee v. O. & C. R. Co., 139 U. S. 663, 11 Sup. Ct. 641, 35 L. Ed. 305; U. S. v. Southern Pac. R. Co., 146 U.S. 570-599, 13 Sup. Ct. 152, 36 L. Ed. 1091; Nielsen v. Northern Pac. R. Co. (C, C. A.) 184 Fed. 601.
[3] We next proceed to ascertain if the lands in question were, on the 2d' of July, 1864, public lands. The only claim made that at that date any portion of the lands had been withdrawn from the category of public iands is based upon the fact “that one Andrew Lemon on June 23, 1865, filed in the local land office liis declaratory statement under the pre-emption laws as- to a portion of the lands. In such declaratory statement lie alleged his settlement upon the land as of May 1, 1864, it thus appearing that, while his settlement antedated the "passage of the act of July 2, 1864, he filed no declaration of claim in the land office until nearly one year after the passage of that act. The mere settlement upon the land did not initiate in him any right which defeated the grant of right of way. His rights in that respect at most could only date from the time he filed his declaratory statement in the local land office. Northern Pac. R. Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98, 41 L. Ed. 479; Russian-American Packing Co. v. U. S., 199 U. S. 570, 26 Sup. Ct. 157, 50 L. Ed. 314.
The question remains to be considered whether the complainant is now estopped from asserting a claim as against respondents to the right of way over such lands the full width of four hundred feet. The facts upon which the claim of estoppel is based may be briefly summarized as follows:
After the passage of the act of March 3, 1869, and under date of March 19, 1869, the Union Pacific Railway Company, Eastern Division, and the Denver Pacific Railway & Telegraph Company entered into a contract in writing,. whereby the Denver Pacific Railway & Telegraph Company completed a line of road between Denver and Cheyenne, and the Union Pacific Railway Company, Eastern Division, transferred to it its grant of right of way and aid lands acquired under the before-mentioned acts of Congress. The road between Denver and Cheyenne was constructed, and the commissioners appointed to examine and! report to the President made a report showing the construction of the road, which report was accepted by the President of the United States and the Secretary of the Interior. Under date of August 10, 1869, the Denver Pacific Railway & Telegraph Company executed upon all its property, including the right of way and the odd-numbered sections granted to aid in the construction of the road, a mortgage or trust deed, to secure an issue of bonds, in the sum of $2,500,000. The trustees therein named qualified and under the terms and authority given by said mortgage or trust deed executed and acknowledged their written authorization and power of attorney to John Evans, one of their number, authorizing him to make conveyances of any of the mortgaged property upon request of the Denver Pacific Railway & Telegraph Company, such power being authorized by the laws of the then territory of Colorado andi the terms of the trust deed. Pursuant to the authorhy given in said deed of trust, John Evans, as trustee, duly conyeyed, on or about the 13th day of April, 1870, to [8]*8Horace Greeley, as trustee, in trust for Nathan C. Meeker, Robert A. Cameron, Henry T. West and their associates, known and designated as the Union Colony, section 17 and a portion of section 5,0which included a part of the lands in controversy in this action, reserving as the right of way of the railway company a strip only 200 feet in width.
In the year 1870, a committee, representing- an association of persons desirous of settling in the territory of Colorado, selected the site of the present city of Greeley andl the surrounding country as the location for such settlement, and duly incorporated the Union Colony of Colorado under the laws of the then territory of Colorado. That immediately upon the incorporation of the Union Colony, it acquired by good and sufficient warranty deeds of conveyance from the respective entrymen and patentees the title other than that of the Denver Company to a right of way, if any, to all of the lands involved in this controversy, together with other lands. None of the deeds to the Union Colony for any of such lands contained reservations of any character of any right of way of the Denver Pacific Railway & Telegraph Company or any other company, excepting the tract before -mentioned conveyed by Evans, trustee, although the Denver Pacific Railway & Telegraph Company had constructed its road over the premises prior to the acquisition of title by the Union Colony Company. After so acquiring title, and before August 23, 1870, the Union Colony ■surveyed and platted into blocks, lots, streets, alleys and avenues, the town. (now city) of Greeley and duty filed with the county recorder of Weld county its plat, and on the 21st day of October, 1870, the Union Colony made, executed and delivered to the Denver Pacific Railway & Telegraph Company a right of way of 50 feet on each side of the center line or track of said Denver Pacific Railway & Telegraph Company through said town of Greeley, the entire width of said right of way being 100 feet, commencing at the southeast corner of the town plat of said town of Greeley and running north through blocks 101, 100, 82, 79, 62, 39, 22, 19 and 2, as platted, and a right of way of 200 feet along the' line or track of said railway company within blocks 42 and 59, being one hundred and fifty feet through said blocks on the east side of said railway company’s track and fifty feet on the west side, said two hundred foot strip being for depot grounds and depot purposes, and in said deed said Union Colony agreed to lay out and construct along and east of said right of way a street sixty-six feet wide, running north and south within said blocks 42 and 59, and the railway company, in consideration of said deed, agreed to erect within three months from the date thereof a good and-substantial building for a freight and passenger depot.
The Union Pacific Railway Company, Eastern Division, pursuant to an act of Congress of March 3, 1869 (15 Stat. 348), changed its name to Kansas Pacific Railway Company, and in January, 1880, the 'Union Pacific Railroad Company (main line), the Kansas Pacific Railway Company, and the Denver Pacific Railway & Telegraph Company entered into articles of consolidation, forming a new and consolidated company under the name of “the Union Pacific Railway Company,” which acquired all the right and interest of the three com-[9]*9panics in the respective roads. The Union Pacific Railway Company made purchases of portions of lots lying within the claimed 400-foot right of way from the grantees of the Union 'Colony, paying valuable considerations therefor as follows: March 3, 1886, from Henry Hoyt; March 15, 1886, from Joseph Joyce; under date of August 11, 1900, the complainant, Union Pacific Railroad Company, from James M. Freeman and Emma Freeman; on October 25, 1901, the complainant, Union Pacific Railroad Company from the Greeley Sugar Company. All of said deeds were .by the Union Pacific Railway Company duly filed for record, and the railway company for the first time went into actual possession and occupancy of said lands. At various times complainant and its predecessors in title, being desirous of constructing, maintaining and operating various railroad tracks upon certain streets, avenues, alleys, and public places in Greeley, within the now claimed 400-foot right of way, applied to the board of trustees of the town of Greeley, and the city council of the city of Greeley, after the town became a city, for the right and privilege so to do, and said bodies did thereupon under the laws of the state of Colorado, enact certain ordinances to that end, which were duly approved by the mayor, and thereafter the complainant and its predecessors accepted said ordinances and grants, and did construct, maintain, and operate, and complainant is now maintaining and operating, the tracks authorized by said ordinances. Such ordinances, according to their respective numbers, their respective dates of approval, and the names of the respective grantees therein designated, are:
Ordinance No. 50, approved March 16, 1886, to the Union Pacific Railway Company (complainant’s predecessor).
Ordinance No. 102, approved September 17, 1901, to Union Pacific Railroad Company (complainant).
Ordinance No. 104, approved December 5, 1901, to Union Pacific Railroad Company (complainant).
Ordinance No. 107, approved May 20, 1902, to Union Pacific Railroad Company (complainant).
Ordinance No. 111, approved December 2, 1902, to Union Pacific Railroad Company (complainant).
Ordinance No. 191, approved June 15, 1909, to Union Pacific Railroad Company (complainant).
Under the laws of the state of Colorado in effect during the year 1909, the city council of Greeley had no power to grant the use of, or the right to lay down any railroad track in any street to complainant except irpon the written consent of the owners of the land, representing more than one-half of the frontage of the street, or so much thereof as’ was sought to be used for railroad purposes. Under the statute complainant didl, prior to the passage of said Ordinance No. 191, file with the city council of Greeley the written consent of the owners of land representing frontage of the streets sought to be used for its railroad purposes under said ordinance. All the persons signing such, consent were grantees of and claimed title as the owners of lots fronting on said street and derived their title under the Union Colony.
Immediately after the making and filing by the Union Colony of the [10]*10town plat before mentioned in 1870, said Union Colony began to sell and dispose of the lots, blocks, and parcels of land except streets, avenues, and alleys shown thereon, including all the lots, blocks and parcels of land abutting upon lines drawn 50 feet distant from and parallel to and on either side of the center line of the track of the Denver Pacific Railway & Telegraph Company, except the additional strip 100 feet wide through blocks 42 and 59 conveyed to the company as before stated for depot purposes.
Prior to the year 1874 the Union Colony had sold and conveyed by bargain and sale deeds which made no exceptions of or reference to any reserved railroad right of way, practically all of the said lots, blocks and parcels of land abutting upon said 100-foot right of wavstrip, and prior to the year 1880 the Union Colony had so sold and conveyed all of the said land, including all of the land now claimed to be owned by the respective respondents herein, lying within the 400-foot strip now claimed by complainant and outside of ■ the 100-foot strip. Such sales were made to a large number of persons for good and valuable considerations, in reliance upon said title of the Union Colony and without knowledge of any claim of the Denver Pacific Railway & Telegraph Company to any portion thereof, and their conveyances were forthwith recorded in the office of,the recorder of Weld county. Such deeds purported to convey the fee-simple title to the respective parcels of land described therein. The purchasers of said lands thereupon entered into the actual and exclusive possession, occupancy and use of the respective parcels of land so conveyed to them, and thereafter, from time to time, such lots, blocks, and parcels of land passed by deed of conveyance, for valuable considerations, from party to party, none containing any exceptions or reservations as to any right of way of the Denver Pacific Railway & Telegraph Company and its successors. 'The grantees of the Union Colony, from time to time, made, executed, and delivered mortgages or trust deeds upon their respective lots and lands, the same covering or affecting lots or parcels of land wholly or partly within the 400-foot strip now claimed by complainant but outside of the 100-foot strip, and upon many of said lots and parcels of land, partly or wholly within said strip, buildings and other structures, both residence and business, some large and extensive, have been erected by such grantees and occupied by them for their respective purposes, upon'the faith of their respective titles under the Union Colony. The total of all such improvements so placed upon any or all of the premises on either side of the 100-foot strip and lying within said claimed 400-foot strip within said city aggregate at least $250,000, many of such buildings and improvements upon such property still standing upon the said property. Many of such grantees of the Union Colony, shortly after' their purchase of said properties, erected around the boundaries of the same, and particularly along the line of the 100-foot strip, fences or other boundary monuments, and the Denver Pacific Railway & Telegraph Company and its successors, including complainant, have from time to time erected and maintained their own fences along the same line, and in the business portion of the city of Greeley buildings have been erected along such line. Such [11]*11private fences were constructed from 30 to 40 years ago and still remain along such line. Complainant herein, nor any of its predecessors in title, have used or occupied any portion of said lots or lands outside of the said 100-foot strip excepting only certain lots or parcels of land which the complainant or its predecessors in interest purchased from grantees of the Union Colony, as before specified, and excepting tracks laid upon streets, avenues, or alleys of the city under ordinances or franchises from said town.
The city of Greeley from time to time granted rights and privileges to various parties to construct telegraph, telephone, electric light and power lines and gas mains and pipes, over, under, andi along such streets and alleys and portions thereof lying within such claimed 400-foot strip, and said railway tracks, lines, mains, and pipes have been constructed in pursuance thereof; some for 21 years. The city of Greeley has, from time to time since 1889, laid, constructed, maintained, and is now maintaining, its municipal water and sewer pipes and appurtenances, through, under, and along such claimed 400-foot strip and the railway tracks and along divers of such intersecting streets, avenues, and alleys, and the various grantees of the Union Colony, in occupation and possession of the various lots and parcels of land abutting upon the 100-foot strip have connected their respective buildings with such mains and pipes for water and sewer purposes. All of the foregoing rights and privileges were granted, and all of said lines and tracks were laid, and all of said water and sewer mains and pipes and connections therewith were constructed and maintained without any protest or objection upon the part of complainant or its predecessors until shortly before the commencement of this suit.
In January, 1881, the Greeley, Salt Lake & Pacific Railway Company was incorporated under the laws of the state of Colorado for the purpose of operating a line of railroad from Greeley in a westerly direction. Said corporation was created by persons interested in and connected with the Union Pacific Railway Company, Sidney Dillon being the president of both railroads, and, the stock of the Greeley, Salt Lake & Pacific Company was, at the time of its organization, and for many years afterwards, owned and controlled by or in the interest of the Union Pacific Railway Company. Said Greeley, Salt Lake & Pacific Company immediately after its organization applied to the board of trustees of the town of Greeley for permission to construct and operate its track across, along and over certain streets and alleys and other public places in the town of Greeley, and ordinances were passed granting such right, and the said Greek}'-, Salt Lake & Pacific Company also purchased right of way from various lot owners and condemned other property, for right of way, all within complainant’s claimed 400-foot right of way, but outside of the 50 feet from the center of its main track. All of such titles by purchase and condemnation proceedings and by such ordinances were procured and accepted by said Greeley Company while the same was under the control and ownership of the Union Pacific Company, and the said Greeley, Salt Lake & Pacific Company constructed its road along and over such lands and within the claimed 400-foot right of way, and said Greeley, Salt Lake & \Pa[12]*12cific Company, about the 1st of June, 1883, executed and delivered to Frederick L. Ames and Ezra H. Baker (who were then directors of the Union Pacific Railway Company) as trustees, its certain mortgage or deed of trust, wherein and whereby the said Greeley, Salt Lake & Pacific Company conveyed to the said Ames and Baker, for the purpose of securing an issue of bonds by said Greeley Company, all of the railroad property and franchises of its said company, together with all rights of way and easements acquired or owned or which it might thereafter at any time acquire or own, for the purpose of right of way, and all depots and other houses, structures and fixtures of the Greeley, Salt Lake & Pacific Company.
On the 18th of March, 1890, the Union Pacific Railway Company, still owning or controlling the stock and bonds of the Greeley, Salt Lake & Pacific Company, caused the said company, with divers other Colorado railroad corporations, whose stock or bonds were then controlled or owned by the Union Pacific Railway Company, to be consolidated under the statutes of Colorado into the Union Pacific, Denver & Gulf Railway Company, and the Union Pacific Railway Company continued to. be the owner, and in control of the stock and a large amount of bonds, of the consolidated Gulf Company, until the subsequent appointment of receivers hereinafter mentioned. After the consolidation of said companies into the Union Pacific, Denver & Gulf Railway Company said company executed and delivered to the American Loan & Trust Company of Boston its mortgage or deed of trust, to secure an issue of its bonds, upon all of the property, right of" way, etc., of such Gulf Company, and a requisite portion of the bonds of said Union Pacific, Denver & Gulf Railway Company were exchanged for the first-mortgage bonds formerly issued by the Greeley, Salt Lake & Pacific Company, at the time of said consolidation outstanding, said) bonds of the Greeley Company being then owned by the Union Pacific Company. That by virtue of such exchange of securities all of the bonds of the Greeley, Salt Lake & Pacific Railway Company passed into the treasury of the Union Pacific, Denver & Gulf Railway Company and by it pledged as collateral security for its bonds.
In November, 1894, the then trustees in the mortgage before mentioned by the Denver Pacific Railway & Telegraph Company to John Edgar Thompson, Adolphus Meier and John Evans, as trustees, instituted a suit in the Circuit Court of the United States for the district of Colorado, to foreclose saidi mortgage. Receivers were appointed, who took possession and operated said road, and such proceedings were had therein that a decree of foreclosure was entered directing the sale of the mortgaged premises, and the master directed to make the sale, which he did, in March, 1898. By such sale complainant became the purchaser and received a deed for the mortgaged premises, which was duly confirmed by the court in May, 1898. In the latter part of October or first of November, 1894, the American Loan & Trust Company,, as trustee, filed a bill in the Circuit Court of the United State’s for the district of Colorado, to foreclose the mortgage before mentioned, executed by the Union Pacific, Denver & Gulf Railway. Receivers were appointed and such proceedings had .therein that a decree of foreclo[13]*13sure and sale was entered and the property of said Union Pacific, Denver & Gulf Railway Company was sold on the 16th day of November, 1898, by the master, to J. Kennedy Tod, Henry Budge, and E. C. Henderson. Said sale was confirmed by the court, and in December, 1898, the purchasers conveyed the same to the Colorado Southern Railway Company, which company has since been in the possession of and operating said road.
Certain fundamental rules of estoppel are stated by text-writers as follows:
“It is a fundamental rule of law that, where a party’s declaration or conduct has induced a third party to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission if the consequences would be to work an injury to such third person or to someone claiming under him. * * * The doctrine of estoppel is applied to promote justice and fair dealing.” 2 Beach on Modern Equity Jurisprudence, § 1092.
“A person who negligently and culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict cannot afterwards dispute lhat fact in an action against the person whom he himself assisted in deceiving.” Bigelow on Estoppel, 565.
“He who is silent when conscience requires him to speak shall be debarred from speaking when conscience requires him to keep silent.” 2 Herman on Estoppel, § 937.
“Where a party negligently and culpably stands by and allows another to contract on the faith of an understanding which he can contradict, he is afterwards estopped from disputing the facts in an action against the person whom he has assisted in deceiving, upon the principle that between innocent parties he who causes the injury must suffer.” Section 938, Id.
“The principle that one should be estopped from asserting a right to property upon which he has by his own conduct misled another, who supposed himself to be the owner, to make expenditures, is often applied where one owning an estate stands by and sees another erecting improvements on it in the belief that he has the title or an interest in it, and does not interfere to I>revent the work or inform the party of his own title. There is in such conduct a manifest intention to deceive or such gross negligence as to amount to constructive fraud.” Section 975, Id.
In Wendell v. Van Renssalaer, 1 Johns. Ch. (N. Y.) 344—354, Chancellor Kent stated the rule as follows:
“There is no principle better established in this court nor one founded on more solid considerations of equity and public utility than that which declares that, if one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.”
Among the cases which recognize and fully sustain the foregoing principles are Trenton Banking Co. v. Duncan, 86 N. Y. 221; Anderson v. Armstead, 69 Ill. 452; Pence v. Arbuckle, 22 Minn. 417; Morgan v. Railroad Co., 96 U. S. 716, 24 L. Ed. 743; Kirk v. Hamilton. 102 U. S. 68, 26 L. Ed. 79; Evans et al. v. Snyder et al., 64 Mo. 516.
But it is claimed, on authority of Northern Pacific Railway Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. 671, 47 L. Ed. 1044, and Union Pacific R. Co. v. Kindred, 168 Fed. 648, 94 C. C. A. 112, that these [14]*14well-established and now elementary principles of estoppel as to ordinary property rights are not applicable in those cases for the reason that, Congress having granted the right of way for a public purpose, the grant cannot be impaired by alienation or otherwise. Whether these principles of estoppel could be applied for the benefit of a private use we need not now inquire. Each of the respondents are public corporations, in whose behalf the police power of the state could be exercised to condemn a necessary part of complainant’s right of way for public use to an extent which would not prevent complainant from fully performing its duty to the public, and it would seem to be a reasonable and just rule to say that property which can be acquired by the exercise of the power of eminent domain may be acquired for the same public use by the application of equitable estoppel. [4 J The decisions in the cases, of Northern Pacific Railway Co. v. Townsend, and Union Pacific R. Co. v. Kindred, supra, in no respect conflict with such view. In those cases the question involved ■ was simply whether a portion of the right of way could be acquired by a private person for an exclusively private use by an application of the doctrine of adverse possession. No principle of 'estoppel was involved or applicable to the facts in either of those cases.
In Northern Pacific Railway Co. v. City of Spokane, 64 Fed. 506, 12 C. C. A. 246, which involved the question of the dedication of a public road across the right of way, it was said:
“The nature of the right of way over 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 may obtain-by the exercise of its right of eminent domain. * * * It has been held that trustees holding 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 incompatible with the duties required.”
North Coast Ry. v. Northern Pac. Ry. Co., 48 Wash. 529, 94 Pac. 112, was a case in which plaintiff sought to condemn a portion of defendant’s right of way longitudinally. In that case it was contended that no part of the right of way was subject to appropriation by any other railroad Company, such contention being based upon the theory that Congress, in granting the right of way of 400 feet in width., conclusively determined that such width was necessary for the public purposes of the grant, basing the claim upon the decision in Northern Pacific Railway Co. v. Townsend, supra. The court, after quoting from the language in Northern Pac. Ry. Co. v. Townsend, said:
“It will be observed from tbe language quoted that the court had under consideration a question of title claimed through adverse possession by an individual for private purposes; and it was stated in unmistakable language that in such a ease the courts cannot say that the full amount of the original . grant' is no longer heeded. Such a case, involving only individual and private considerations, is very different from one which involves public necessities. In order that it might be clearly understood that the court recognized such’ a necessary distinction, the following language was used ih. the same [15]*15opinion: ‘Of course, nothing that has been said in any wise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.’ It seems clear from the quotation last made that the federal Supreme Court recognizes the power of the state to determine whether the whole of a right of way which has been created by federal grant through an act of Congress is actually needed as against the requirements of the public service which arise with the increase of commerce and transportation necessities. It has been repeatedly held by this court that the power exists in this state when public necessity requires it for one railway or public service corporation to condemn a part of the right of way of another railway company or public service corporation which is not necessary for the exercise of the latter’s franchise. (Citing authorities.) It has also been repeatedly held by other courts that a right of way of a railroad company which has been acquired for that express purpose through a federal grant is not exempt from the operation of state laws of eminent domain. (Citing authorities.) It is true the most, if not' all, of the last-cited cases related to crossings of other railroads over a right of way acquired by federal grant, whereas, the tract here sought is^not for mere crossing purposes, but is a longitudinal tract, about three-fifths of a mile in length, to be carved out of claimant’s right of way. The principle as to the power of eminent domain is, however, the same in both cases, depending upon the necessities of the occupying railroad and those of the public service. This court has held that a longitudinal portion of a right of way may be condemned by another railway corporation where the occupying railway does not actually need it, and where it is needed by the other in the interest of the public service.”
[5] That complainant’s right of way was acquired by virtue of an act of Congress does not exclude, under a proper state of facts, the doctrine of equitable estoppel, we think recognized by the court }n Spokane & British Columbia Ry. Co. v. Washington & Great Northern Ry. Co., 219 U. S. 166, 31 Sup. Ct. 182, 55 L. Ed. 159, heard on error from the Supreme Court of the state of Washington, a case involving rights under a grant by Congress of a railroad right of way, the court refusing to consider the question of estoppel for the reason that that was not a federal question.
In the case before us, the Greeley, Salt Take & Pacific Railway Company was given life by action on the part of the Union Pacific Railway Company (complainant’s predecessor), and given a permanent situs upon a portion of its unused and unrequired right of way. It was started in its operation as a public carrier by the Union Pacific Railway Company, its property represented to include such unused and unrequired portion of the right of way mortgaged by officers of the Union Pacific Railway Company. Through the foreclosure of such mortgage respondent, Colorado & Southern Railway Company, acquired its rights. To permit complainant to now come into a court of equity and successfully invoke the court’s aid by a decree holding that the Colorado & Southern Railway Company is a mere licensee would be to sanction a most palpable fraud.
The respondent, the Greeley & Denver Railway Company owns and operates a line of road from Denver to Greeley and operates and [16]*16maintains its street railroad over and along certain of the streets and avenues of said city of Greeley, and in March, 1908, the city council of the city of Greeley granted to it a franchise to construct and operate its right of way over and across certain of the streets of the city of Greeley. The portions of its line of road which encroaches upon complainant’s claimed 400-foot right of way is the portion on Seventh avenue from the south side of Tenth street to the north side of Seventh street in said city, and the only portion within the 100-foot strip is where it crosses complainant’s right of way on Third street practically at right angles. The Greeley & Denver Railway Company has expended large sums of money in the construction and equipment of its road in the full faith and belief that said streets were properly and legally laid out and used by the public as such for some 40 years, and had no actual knowledge that complainant claimed any interest outside of the 100-foot right of way until about the time of the commencement of this action; that the ordinance of March, 1908, by which it, the Greeley & Denver Railway Company, was authorized to construct its road over certain of the streets and alleys of the city was published as required by law and that the acts and doings of said respondent, in constructing its track along said streets and avenues were well known to the general public, and complainant had knowledge of such construction work on Seventh avenue but made no complaint to said Greeley & Denver Railway Company until it commenced the construction of its road on Third street across complainant’s right of way at right angles, when complainant commenced this action.
The Denver, Daramie & Northwestern Railway Company owns and operates a railroad from Denver into the city of Greeley and has under construction its line of road northerly from the city of Greeley. It organized the Greeley Terminal Railway Company, said terminal company owning and holding its terminal facilities and right of way in said city. Such terminal company obtained from the city council of Greeley authority to construct its line through and over certain of the streets in said city, but none of the right of way of the Denver, Daramie & Northwestern Railway Company or the Greeley Terminal Railway Company encroaches upon the 100-foot strip of complainant’s right of way. It has at large expense purchased and obtained property from individuals apparently owning through mesne conveyances from the Union Colony; and in possession of portions of said 400-foot right of way outside of the 100-foot strip, removed buildings and obstructions therefrom and prepared the same for the laying of its tracks without any complaint upon the part of complainant until the commencement of this action.
The Chicago, Burlington & Quincy Railroad Company obtained by purchase and by condemnation proceedings, at an expense of many thousands of dollars, for the construction of its line of road, property included within complainant’s claimed 400-foot strip and outside of the 100-foot strip, such purchases and condemnation proceedings being from and against the parties who acquired title by mesne conveyances from said Union Colony and upon a considerable portion of said property were dwelling houses ■ and' business buildings which had for [17]*17a long time theretofore been occupied as such, and claimed to be owned by the parties having title through said_ Union Colony, and without any protest from complainant or any of its predecessors. All of which was acquired openly and publicly, without any protest upon the part of complainant until about the time of the commencement of this action.
Considering all of the foregoing facts,_ that the acquisition of the property by the respondents is for public and not for private use, that the portion of the same which encroaches upon complainant’s alleged right of way is not now required by the complainant, and, so far as is disclosed by the evidence, will not be necessary in the near future, to enable complainant to fully'and freely discharge its duties to the public, we think complainant fully estopped from now-claiming as against these respondents that it is entitled to the present possession of the entire 400-foot right of way; that the decree of the court below ivas right, and it is, therefore, affirmed.