Supreme Court of United States.
*128 Mr. A.B. Browne for plaintiff in error.
No appearance for defendant in error.
MR. JUSTICE McKENNA, after stating the case, delivered the opinion of the court.
In the summer of 1882 the plaintiff in error constructed its railroad across the land in controversy, and the finding of the court is that "at the time defendant settled upon said land plaintiff was and ever since has been engaged in operating a line of railroad thereover."
The defendant nevertheless was awarded three hundred dollars damages, and the plaintiff adjudged to have acquired no rights whatever by the construction of its road.
The act of 1875, upon which plaintiff relies, is as follows:
"That the right of way through the public lands of the *129 United States is hereby granted to any railway company duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, 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 one hundred feet on each side of the central line of said road;
"Also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad;
"Also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.
"SEC. 3. That the legislature of the proper territory may provide for the manner in which private lands and possessory claims on the public lands may be condemned; and where such provision shall not have been made, such condemnation may be made in accordance with section 3 of the act entitled `An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other purposes, approved July 1, 1862,' approved July 1, 1864.
"SEC. 4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way: Provided, That if any section of said road shall not be completed within five years after the location *130 of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road.
"SEC. 5. That this act shall not apply to any lands within the limits of any military park or Indian reservation, or other lands especially reserved for sale. . . ."
There is some uncertainty in the act. Its first section is expressed in words of present grant, but there is no definite grantee. We said in Hill v. Russell, 101 U.S. 503, 509: "There cannot be a grant unless there is a grantee, and consequently there cannot be a present grant unless there is a present grantee." And it was further said that in all cases where a grant was given a present effect, a State or some other corporation having all of the qualifications specified in the act had been designated as a grantee. In other words, when an immediate grant was intended an immediate grantee having all the requisite qualifications was named. In Noble v. Railroad Co., 147 U.S. 165, we said: "The language of that section is `that the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any State or Territory,' etc. The uniform rule of this court has been that such an act was a grant in proesenti of lands to be thereafter identified. Railway Co. v. Alling, 99 U.S. 463."
This case establishes that a railroad company becomes specifically a grantee by filing its articles of incorporation and due proofs of its organization under the same with the Secretary of the Interior. It was also so held by Mr. Secretary Vilas in Dakota Central Railroad Co. v. Downey, 8 Land Decisions, 115.
But what constitutes a definite location of the right of way? Upon the answer to that question the present controversy hinges. The State courts decided, as we have seen, that the right of way only became definitely located by the filing of a profile map of the road. The contention of the plaintiff in error is that the right of way may be definitely located by the actual construction of the road. And this was the ruling of the Interior Department in Dakota v. Downey, supra, and the ruling has been subsequently adhered to. St. Paul, Minneapolis *131 & Manitoba Ry. Co. v. Maloney et al., 24 Land Decisions, 460; Montana Central Rd. Co., 25 Land Decisions, 250; St. Paul & Minneapolis Ry. Co., 26 Land Decisions, 83.
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 four. Actual construction of the road is certainly unmistakable evidence and notice of appropriation.
Secretary Vilas said in Dakota Central R.R. Co. v. Downey:
"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. . . . This must undoubtedly be the rule when the road is constructed over unsurveyed lands, because then every condition necessary to the vigor of the present grant is complied with. The fact that the railroad company may locate and construct its road upon unsurveyed lands is clearly recognized in the fourth section of the act; and the regulations of the department have been made to apply to such cases, and authorize such construction.
"It seems to me that the fourth section of the act was written for another purpose and for another case. It relates to a case of a railroad company which desires to secure the present grant, and give to it fixity of location, before its road shall be constructed; and it is designed to provide a similar privilege in respect to rights of way which acts granting lands to aid in the construction of railroads have provided namely, the privilege of giving fixity of location to the subject of the grant before construction of the road.
"It does not become necessary for a road which has secured the benefits of this act, by taking the steps which give it the attitude of being named in the first section as a grantee, and by building a road through the public lands, whereby the subject of the grant has been defined, to file a map of definite location in order to entitle it to the benefits of the right of way.
"The fourth section is designed to provide a mode by which fixity of location can be secured to a grantee, in anticipation *132 of that construction by which location is defined in the section making the grant, and which shall have the effect, before the construction of the road, which the terms of the grant limit to the `central line of said road,' which only means without the fourth section a constructed road."
This decision and the subsequent decisions of the Interior Department were concerned with cases of construction on unsurveyed land, but we think the power applies also to surveyed lands. The only difference which the act of Congress makes between surveyed and unsurveyed land is the provision in section four for filing the profile of the road.
It follows from these views that the grant to plaintiff in error by the act of 1875 became definitely fixed by the actual construction of its road, and that the entry of the defendant in error was subject thereto.
This conclusion does not conflict with the doctrine announced in Van Wyck v. Knevals, 106 U.S. 360, and in Kansas Pacific Railway Co. v. Dunmeyer, 113 U.S. 629, that the title to lands passing under railroad land grants is considered as established at the date of the filing of the map of definite location. The same question is not here presented. Different considerations apply to the grant of lands than to the grant of the right of way.
The judgment of the Supreme Court of North Dakota is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
