Rider v. B. & M. R. R.

Lake, Ch. J. The controlling principle in this case is not different from that applied by the supreme court of the United States in the case of the St. Joseph & Denver City Railroad Co. v. Baldwin, 103 U. S. Reports, 426. The statute giving the right of way there considered is not essentially different from the one granting the right of way here in controversy. In both statutes, words of present grant are employed to designate the right given. To the St. Joseph & Denver City company, the grant is in these words, viz.: “That the right of way through the public lands be, and the same is hereby granted to said St. Joseph & Denver City Railroad company,” etc. Sec. 6, act of July 23d, 1866,14 U. S. Statutes at Large, 211. The grant in this case is as follows: “And for the purpose of enabling said Burlington & Missouri River Railroad Company tp construct that portion of their road herein authorized, the right of way through the public lands is hereby granted to said company for the construction of said road.” Sec. 18, act of July 2d, 1864, 13 U. S. Statutes at Large, 364. Being a grant of a present interest, this language is notice from the passage of the act to all persons dealing with public lands within the prescribed limits of the grantee’s interest therein. In this respect the grant of the right of way differs from that donating land to aid in the construction of the road, which is expressly limited in its operation to the time when the route is definitely fixed. Vance v. B. & M. R. R. Co., 12 Neb., 285. Speaking upon this subject of right of way under the act of July 23d, 1866, in the case first above cited, Mr. [123] Justice Field said: “But the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions, except those necessarily implied, such as that the road shall be constructed and used for the purpose designated.” And again: “The uncertainty as to the ultimate location of the line of the road, is recognized throughout the act; and where any qualification is intended in the operation of the grant of lands from this circumstance, it is designated. Hád a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that none exists.” It is claimed, however, that the case wherein this language was used differs from the one we are now considering in this, that the right of way there upheld was on the first and only line adopted by the railroad company, while here it appears that another and different location had been made as early as the 15th of June, 1865, and the right now contended for was selected in pursuance of a change therein, by which the road was made to cross the plaintiff’s land. And it is urged that, although this change was authorized by act of Congress, yet it should not be held to confer any right upon the railroad company'as against a purchase from the United States, prior to the definite location of the new route; that the first location should “be held to be a fixing of any floating right of location, a segregation and definition of its claims for right of way.” We cannot assent to the application of this proposition to this case. If the plaintiff had acquired the government title to the land after the first location of the road, and before the passage of the act authorizing a change, there would be great strength in the position here taken. But as we view the effect of this act, it was, from the date of its passage,to bring section eighteen of the act of July 2,1864, above referred to, into full operation as to public lands, not [124] otherwise disposed of, which the new location might cross. The act authorizing this change is, “ Be it enacted,” etc., “ that the Burlington and Missouri River Railroad Company, or its assigns in the state of Nebraska, may so far change the location of that portion of its line that lies Avest of the city of Lincoln, in said state, as shown by the map thereof, now on file in the general land office of the United States, so as to secure a better and more practicable route, and to connect with the Union Pacific railroad at or near the Fort Kearney reservation, said new line to be located on the land grant made by the United States to aid in its construction. Provided, however, that said line shall not be located farther south than the southern boundary line of township -number seven, in said state, and said change shall not impair the rights to, nor change the location of said land grant, and the said company, or its assigns, shall receive no different or other or greater quantity of land than if this act had not been passed and no change had been made in the located line of said railroad.” It will be observed that there is nothing in this language evincing any intent or disposition on the part of congress to withdraw any right given by the act of July 2, 1864, which might be applicable to this new line, except that the location and extent c f the land grant as already determined should not be changed. We are of opinion that when the plaintiff’s grantor, Englebright,pre-empted thislandon the 7th day of June,1870, he took it subject to the right of the defendant to locate its new line across it. And the judgment of the district court, being in conformity with this view, is affirmed. Judgment affirmed.