Minidoka & Southwestern Railroad v. Weymouth

AILSHIE, J. This action was prosecuted by the Minidoka; & Southwestern Railway Co. for the purpose of obtaining — 239 — an injunction restraining the defendants from trespassing upon and permanently occupying a part of the respondent’s railroad right of way between the towns of Rupert and Burley in Lincoln county. The judge of the trial court made an order and granted a writ enjoining and restraining the defendants, and they thereupon prosecuted this appeal. The Minidoka & Southwestern Railroad Co. is a corporation organized and existing under the laws of the state of Idaho and operating between Minidoka and Twin Falls. In the year 1902, the Secretary of the Interior made an order withdrawing a large tract of land under the provisions of see. 3 of the act of June 17, 1902 (32 Stat. 388, U. S. Comp. St. Supp. 1909, p. 597), which is commonly known as the Reclamation Act. The land withdrawn is now commonly known as the Minidoka Reclamation Project. The respondent’s right of way from Rupert to Burley lies over and across this project., The order of the Secretary of the Interior with reference to these lands had the effect of withdrawing them from sale or entry under any of the laws of the United States excepting the homestead laws, and as to homestead entries, such entries were not subject to the commutation provisions of the general laws. The respondent corporation was organized in 1904, and about February of that year filed with the Secretary of the Interior a copy of its articles of incorporation and due proof of its organization and also profile maps or plats of definite location of its proposed line of road, which were accepted and approved by the Secretary of the Interior August 10, 1904, and thereafter, and in the same year, the respondent actually constructed its road upon the ground, the center line of its right of way corresponding to the center line of the railroad track as the same was actually constructed on the ground. Subsequently the government, through its agents and employees, began the construction of its canals and ditches for the reclamation of the lands previously withdrawn, and in course of their construction they entered upon the respondent’s right of way and within the fence inclosing the same, and began excavating and building a line of ditch and canal — 240 — along and parallel with the respondent’s railroad track. This action was instituted to enjoin the appellants from trespassing upon and permanently occupying the right of way. The respondent defended its action upon the ground that under the provisions of the act of Congress of August 30, 1890 (26 Stat. 391, U. S. Comp. St. 1901, p. 1570), the government had reserved the right to enter upon and construct ditches and canals over and across any lands west of the 100th meridian that might be granted or patented to any entryman subsequent to the date of the act. The railroad company filed a copy of its articles of incorporation and due proof of its organization, together with a profile map of its road under and in accordance with the provisions of the act of March 3, 1875 (18 Stat. 482, U. S. Comp. St. 1901, p. 1568), known as the Eailroad Eight of Way Act of Congress. This map and plat was accepted and approved by the Secretary of the Interior and the proper notations made in accordance with the provisions of the act. If the land over which the company claims a right of way, and subsequently built its road, was at the time “public lands of the. United States,” then the company would, on a compliance with the provisions of the act, be entitled to a right of way 200 feet wide or, as the act states, ‘ ‘ 100 feet on each side of the central line of said road. ’ ’ It is contended by. counsel for the government that under the provisions of see. 5 of the act of March 3, 1875, the railroad company could not lawfully acquire a right of way across this reclamation project after the withdrawal of the lands for reclamation purposes. It is argued that after the withdrawal the lands were no longer “public lands of the United States,” and were not, therefore, subject to the provisions of the Eight of Way Act. Sec. 5 of the act of March 3, 1875, provides as follows: “That this act shall not apply to any lands within the limits of any military, park or Indian reservation, or other lands especially reserved from sale.....” It is argued that since the lands of a reclamation project after being withdrawn are no longer subject to sale for any purpose and are not subject to disposition under — 241 — any law of Congress except for homestead purposes, they are consequently not subject to the provisions of the Right of Way Act. If the word “sale” as here used is employed in a strict and technical sense, then the contention is undoubtedly sound; but if used in a general sense, implying any disposition of the lands by or on the part of the government, then, of course, the argument is unsound. The nature of the enumerations contained in section 5 indicates to my mind that the words “reserved from sale” are used in a general sense, and are intended to mean “reserved from disposition by or on the part of the government,” whether it be of actual sale, as that term technically signifies, or from entry under any of the laws of Congress or any disposition thereof which might be made by the Secretary of the Interior. This construction is reinforced by the enumeration which precedes it, namely, that the act shall not apply to any lands “within the limits of any military, park or Indian reservation.” Now, it is at once apparent that the lands in military, park and Indian reservations are not sold. They are simply set aside for these special purposes. Again, the reason of the exception and reservation should be considered. There would be no more reason, apparently, for making the reservation apply to lands that were subject to homestead only than there would be for applying it to lands that were not subject to “sale” within the literal and technical meaning of that term. But for the purposes of this case we are not inclined to go into a technical analysis of the language employed, for the reason that the railroad company actually complied with the provisions of the act of March 3, 1875, and sought to acquire its right of way under and by virtue of that act, and the Secretary of the Interior approved the application and permitted the company to enter upon and construct its railroad over and across this project and to take possession of the right of way claimed, and thereby held that the lands were “public lands” subject to the operation of the act of 1875. The company, in accordance therewith and upon the — 242 — faith of the act of Congress and the action of the Secretary of the Interior, actually constructed its road upon the ground, and has ever since been operating the same over this right of way. For these reasons we do not feel disposed to enter upon any very critical analysis of the acts of Congress granting the railroad company the right to cross the lands of this reclamation project. We are of the opinion, however, that the lands were such “public lands” as the Railroad Right of Way Act applies to, and that the company regularly acquired a right of way through the lands embraced within the Minidoka Reclamation Project. A somewhat similar view of the statute has apparently been taken by the federal court for the district of Idaho in United States v. Minidoka & S. W. R. Co., 176 Fed. 762. The provision of the act of August 30, 1890, under which the government claims the right to enter upon respondent’s right of way and construct ditches and canals, is a paragraph that was added to the Sundry Civil Appropriation Act of that date, and reads as follows: “ .... That in all patents for lands hereafter taken up under any of the land laws of the United States or on entries or claims validated by this act west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States. . . . .” It is contended by the government that this proviso or reservation applies to all lands, rights of way and easements granted by the government under any act of Congress whatever, and that this is true whether the grant was for a special purpose or for general purposes, while the railroad company contends, on the other hand, that this reservation contained in the act of August 30, 1890, was never intended to apply to a railroad right of way granted under the act of March 3, 1875, and that an attempt to apply it to that act and the right of way acquired under the provisions thereof, would defeat the purposes of the Right of Way Act and would be inconsistent with the spirit of .both acts. — 243 — We have heretofore had occasion to pass upomthis provision of the act of Congress, in Green v. Wilhite, 14 Ida., 238, 93 Pac. 971, and there held that the right,iof -way-reserved to the government for the construction of ditches and canals over lands granted and patented by the goyernifient applies to works commenced and ditches and canals,>conr structed at any time subsequent to the issuance of.- patent. The only question, therefore, upon which we must now pass, is whether or not this provision of the act of August 30, 189(1, can be reasonably construed to reserve to the government .a right of way for ditches and canals through, over or across railroad rights- of way acquired under the provisions of, the act of March 3, 1875. In the first place, an examination of the debates which took place in Congress at the time of the passage of the act of August 30, 1890 (Vol. 21, Cong. Rec., pp. 7269-7987, 8270 and 9156), discloses no reference whatever to rights of way over public lands either for railroads or ditches and canals for “mining, agriculture, manufacturing, or other purposes.” On the contrary, these debates all had reference to lands “entered” or “taken up” by settlers and purchasers for usual and general purposes other than special purposes, such as rights of way for railroads, ditches and canals, mill-sites, etc. When we come to consider the language of the act itself, -we find that all its terms have special reference to lands “taken up” and lands on which “entries” are made ¿nd for which “patents” are issued. All these terms indicate a purpose to deal with land to which the government grants the absolute fee, and which are conveyed in quantity or bulk by legal subdivisions and indicate no purpose to refer to special and qualified estates or easements granted by Congress for definite and specific purposes. No patent is ever issued for a railroad right of way or a ditch or canal easement across the public domain, and while that fact would not relieve the grant from liability to use by the government for canal purposes if, in fact, the law subjects it to such burden, still it affords a strong indication that the Congress was legislating — 244 — with reference only to such lands as are patented, as distinguished from easements and rights of way for specific purposes and for which no patents are issued. It is also worthy of note, and throws some light on the legislative intent, to observe that under the act of August 30, 1890, it was provided that, “No person who shall after the passage of this act, enter upon any of the public lands with a view to occupation, entry or settlement under any of the land laws, shall be permitted to acquire title to more than three hundred and twenty acres in the aggregate, under all of said laws.” It is at once apparent that this limitation as to the amount of land that can be entered could not apply to a railroad right of way, for the reason that rights of way are not taken by the acre and are not limited to any number of acres, but are merely limited by the width of the right of way and the extent or length of the road. It might require one hundred acres or it might be one thousand acres. The foregoing provision of the act is valuable in consideration of this case only in that it denotes the class of lands to which it was intended the act should apply, and this also indicates that it was lands that might be entered or on which settlement might be made, and clearly had reference to the settler, homesteader or purchaser of the public lands as distinguished from easements and rights of way. The statutes should be construed together and in such a reasonable way as to give meaning and force to each provision thereof and render each effective and operative. To hold, however, that the act of August 30, 1890, applies to rights of way acquired under the act of March 3, 1875, would entirely defeat the objects of the latter act every time and at every place the government might see fit to construct a ditch or canal. And if the government can take any part of such right of way without compensation for ditch or canal purposes, under this act, it can take the whole right of way and thus wipe out the right of way, stop the operation of the railroad and defeat the purpose of the Right of Way Act. — 245 — Sutherland, in his work on Statutory Construction, at sec. 218, announces what we conceive to be the correct rule to apply in construing a statute. He says: “It is indispensable to a correct understanding of a statute to inquire first what is the subject of it, what object is intended to be accomplished by it. When the subject matter is once clearly ascertained and its general intent, a key is found to all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent. When the intention can be collected from’the statute, words may be modified, altered or supplied so as to obviate any repugnancy or inconsistency with such intention.” In applying this rule to the construction of land grants, the supreme court of the United States, in United States v. Denver & Rio Grande R. R. Co., 150 U. S. 14, 14 Sup. Ct. 11, 37 L. ed. 975, said: “It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantee, but they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication.” In Winona & St. P. R. R. Co. v. Barney, 113 U. S. 618, 5 Sup. Ct. 606, 28 L. ed. 1109, Mr. Justice Field, speaking for the court said: ‘ ‘ The acts making the grants are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purposes declared on their face, and read all parts of them together.” Applying this rule of construction, we are strongly of the opinion that it was not the intent or purpose of the act of — 246 — . Congress qtf'Atigakf 30; #890,¡Sorinclude railroad rights of way «within the :op eration-'ofothat ¿aeticr Counsel for appellant-have called: our attention to a letter -¡Of ¡instructions; from-Acting'Seoretary Pierce to the directors -¡of ;1ihé .reclamation¡service, ¡.Under¡.date of June 6, 1908 (36 ■Band Deer.’482);i inn which he construed-the act of August 30, ¡•.18,9.0; as applyin^etoaaqradiroAd.right; uf way, acquired under bthé'¡act>of)'Mar.eh.':3,¡íl87&.i ¡¡The aetingSsecretary holds that -¡raáLróa!d¡¡rights" of iwiayKarenpecessarily ¡granted and acquired under ¡the'land laws of'the ¡United rStatésp and that the act tofí)1870;is!as¡ríiueh*aílandi law.as atiylotheril&w of Congress, ■which.'"authorizes the.'disposition ofskny, others public lands. He concludes, therefore, that the governmentymay appropri;tite.; a¡ rhilróád) right rof .way fot they ¡purpose qf ¡constructing •its. :ditéhés-/and¡ eahalsiuüdér-’thei Reólaih'aliioniAet.í Fi'Bb'e .reasoning!' employed b^.' the, kctingvkéeret'afy fails to appeal to us as being sound aDd logical.; Í>5ít'séémsbto overilb’ob.the tfué¡ ¡ spirit;, and ptirposes.mfs these'rdeverali act's, and .especially of -the-act' i of ■ ¡187f>i iunderu ¡frihlch'! ithebrékpondent ¡acquired Jitsfrighteof Kay: di ¡While! any-iobinion..¡promulgated: by-¡the 'Department1 ¡of: ¡the ¡Interior,':douching,lithe public: 'domainy iso entitled'.:t<y much weight and constitutes a strong persuasive force;-withy (this 'c&urf,! yvet Sfe. are mot Abound! ibydthb. dSciáíóns> od&tthátf ídejíart¡meptiib.: apeaké ¡i® thikykind/'htiibkínéej tEeéá'ctifig .Sfebrqtáfyls communication fails to convince us of the correctness.¡of-his --comstructioa^íweiare’úmpellad tó< declined,qnMiow.dt.y < rA'Si ¡we chave ¡Meretoforkl Observed,■' if ;the ¡govenmmeht/ean -take ■■.áüyii'pkrtiíofqfbÍAUE'ight¡ of frayU niitlibutioondenlnafiipin'/ for -"t'heycoñ’átruction'ofKditcheSi-and: eatialsp ithoahytkkeythe. ’whole .ofoiti»-; ©fir thecotíhef¡'band(i if; itbméedsManyf/p'aKtuof ¡the right íof «fray whichriis, mót ítictuaíllyT occupied;, by;therfailrofedicompany and'necessary io'.thetuse.and bpeiatiotinof its road, it has "a;ready-means of acquiring: the i ¡same ¡tinder, itheysta/fcptes of — 247 — eminent domain. That remedy is both ample and speedy in this state. The order appealed from should be affirmed, and it is so ordered. Costs are awarded to respondent. Stewart, C. J., concurs.