Great Northern Railway Co. v. United States

The Act of March 3,1875, from which petitioner’s rights stem, clearly grants only an easement, and not a fee. Section 1 indicates that the right is one of passage since it grants “the,” not a, “right of way through the public lands of the United States.” Section 2 adds to the conclusion that the right granted is one of use and occupancy only, rather than the land itself, for it declares that any railroad whose right of way passes through a canyon, pass or defile “shall not prevent any other railroad company from the use and occupancy of the said canyon, pass, or defile, for the purposes of its road, in common with the road first located.”^[1]

Section 4 is especially persuasive. It requires the location of each right of way to be noted on the plats in the local land office, and “thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way.”^[2] 3****This reserved right to dispose of the lands subject to the right of way is wholly inconsistent with the grant of a fee. As the court below pointed out, “Apter words to indicate the intent to convey an easement would be difficult to find.” That this was the precise intent of § 4 is clear from its legislative history.^[3] While § 4 pro

The Act is to be liberally construed to carry out its purposes. United States v. Denver & R. G. Ry. Co., 150 U. S. 1 , 14; Nadeau v. Union Pacific R. Co., 253 U. S. 442 ; Great Northern Ry. Co. v. Steinke, 261 U. S. 119 . But the Act is also subject to the general rule of construction that any ambiguity in a grant is to be resolved favorably to a sovereign grantor — “nothing passes but what is conveyed in clear and explicit language” -Caldwell v. United States, 250 U. S. 14 , 20-21, and cases cited. Cf. Great Northern Ry. Co. v. Steinke, supra. Plainly, there is nothing in the Act which may be characterized as a “clear and explicit” conveyance of the underlying oil and minerals. The Act was designed to permit the construction of railroads through the public lands and thus enhance their value and hasten their settlement. The achievement of that purpose does not compel a construction of the right of way grant as conveying a fee title to the land and the underlying minerals; a railroad may be operated though its right of way be but an easement.* **4^[5]

Beginning in 1850, Congress embarked on a policy of subsidizing railroad construction by lavish grants from the public domain.^[6] This policy incurred great public disfavor,^[7] which was crystallized in the following resolution adopted by the House of Representatives on March 11,1872:

“Besolved, That in the judgment of this House the policy of granting subsidies in public lands to railroads and

other corporations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that the public lands should be held for the purpose of securing homesteads to actual settlers, and for educational purposes, as may be provided by law.” Cong. Globe, 42d Cong., 2d Sess., 1585 (1872). After 1871 outright grants of public lands to private railroad companies seem to have been discontinued.^[8] But, to encourage development of the Western vastnesses, Congress had to grant rights to lay track across the public domain, rights which could not be secured against the sovereign by eminent domain proceedings or adverse user. For a time special acts were passed granting to designated railroads simply “the right of way” through the public lands of the United States.^[9] That those acts were not intended to convey any land is inferable from remarks in Congress by those sponsoring the measures. For example, in reporting a bill granting a right of way to the Dakota Grand Trunk Railway ( 17 Stat. 202 ), the committee chairman said: “This is merely a grant of the right of way.”^[10] Likewise, in reporting a right of way bill for the New Mexico and Gulf Railway Company ( 17 Stat. 343 ), Mr. Townsend of Pennsylvania, the same Congressman who sponsored the Act of 1875, observed: “It is nothing but a grant of the right of way.”^[11]

Also pertinent to the construction of the Act is the contemporaneous administrative interpretation placed on it by those charged with its execution. Cf. United States v. Johnston, 124 U. S. 236 , 253; United States v. Moore, 95 U. S. 760 , 763; Norwegian Nitrogen Co. v. United States, 288 U. S. 294 , 315. The first such interpretation, the general right of way circular of January 13, 1888, was that the Act granted an easement, not a fee.^[13] The same position was taken in the regulations of March 21, 1892, 14 L. D. 338, and those of November 4, 1898, 27 L. D. 663. While the first of these circulars followed the Act by 13 years, the weight to be accorded them is not dependent on strict contemporaneity. Cf. Swendig v. Washington Co., 265 U. S. 322 . This early administrative gloss received indirect Congressional approval when Congress repeated the language of the Act in granting canal and reservoir companies rights of way by the Act of March 3, 1891, c. 561, 26 Stat.

The circular of February 11, 1904, 32 L. D. 481, described the right as a “base or qualified fee.” This shift in interpretation was probably due to the description in Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267 , 271, of a right of way conveyed in a land-grant act ( 13 Stat. 365 ) as a “limited fee, made on an implied condition of reverter.”^[14] But the earlier view was reasserted in the departmental regulations of May 21, 1909, 37 L. D. 787.^[15] After 1915, administrative construction bowed to the case of Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44 , which applied the language of the Townsend case to a right of way acquired under the Act of 1875. We do not regard this subsequent interpretation as binding on the Department of the Interior since it was impelled by what we regard as inaccurate statements in the Stringham case. Cf. Helvering v. Hallock, 309 U. S. 106 , 121.

Congress itself in later legislation has interpreted the Act of 1875 as conveying but an easement. The Act of June 26,1906, c. 3550, 34 Stat. 482 , declaring a forfeiture of unused rights of way, provides in part that: “the United States hereby resumes the full title to the lands covered thereby [by the right of way] freed and discharged from such easement.” This language is repeated in the forfeiture act of February 25, 1909, c. 191, 35 Stat. 647 . Also on June 26, 1906, an act^[16] was passed confirming the rights of way which certain railroads had acquired under

That petitioner has only an easement in its rights of way acquired under the Act of 1875 is therefore clear from the language of the Act, its legislative history, its early administrative interpretation and the construction placed upon it by Congress in subsequent enactments.

Petitioner, seeking to obviate this result, relies on several cases in this Court stating that railroads have a “limited,” “base,” or “qualified” fee in their rights of way.^[18] All of those cases, except Rio Grande Western Ry. Co. v. Stringham, 239 U. S. 44 , 47; Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531 ; and Noble v. Oklahoma City, 297

In the Stringham case, it was said that a right of way under the Act of 1875 is “neither a mere easement, nor a fee simple absolute, but a limited fee, made on an implied condition of reverter in the event that the company ceases to use or retain the land for the purposes for which it is granted, and carries with it the incidents and remedies usually attending the fee.” The railroad had brought suit to quiet title to a portion of its right of way. String-ham asserted title to that portion by virtue of a purported purchase of surface rights from a placer mine claimant. The Supreme Court of Utah reversed the judgment of the trial court and remanded the case, directing the entry of “a judgment awarding to the plaintiff title to a right of way over the lands in question.” 38 Utah 113 , 110 P. 868 . The railroad again appealed, asserting that it should have been adjudged “owner in fee simple of the right of way over the premises.” The Supreme Court of Utah affirmed the judgment of the trial court on the ground that the railroad’s proper remedy was by petition for rehearing of the first appeal. 39 Utah 236 , 115 P. 967 . Both judgments were brought to this Court by writ of

The conclusion that the railroad was the owner of a “limited fee” was based on cases arising under the land-grant acts passed prior to 1871, and it does not appear that Congress’ change of policy after 1871 was brought to the Court’s attention.^[20] That conclusion is inconsistent with the language of the Act, its legislative history, its early administrative interpretation and the construction placed on it by Congress in subsequent legislation. We therefore do not regard it as controlling. Statements in Choctaw, O. & G. R. Co. v. Mackey, 256 U. S. 531 , and Noble v. Oklahoma City, 297 U. S. 481 , that the 1875 Act conveyed a limited fee are dicta based on the Stringham case, and entitled to no more weight than the statements in that case. Ear more persuasive are two cases involving special acts granting rights of way, passed after 1871 and rather similar to the general act of 1875.^[21] Railway Co. v. Alling, 99 U. S. 463 , characterized the right so granted as “a present beneficial easement,” and Smith v. Townsend, 148 U. S. 490 , referred to it as “simply as an easement, not a fee.” We think that the Act of 1875 is to be similarly construed.

Since petitioner’s right of way is but an easement, it has no right to the underlying oil and minerals. This result does not freeze the oil and minerals in place. Petitioner is free to develop them under a lease executed pursuant to the Act of May 21, 1930, 46 Stat. 373 .

During the argument before this Court, it was fully developed that the judgment was rendered on the plead

Affirmed.

Me, Justice Roberts and Mr. Justice Jackson took no part in the consideration or decision of this case.