Statement of the Case.

227 U.S.

STUART v. UNION PACIFIC RAILROAD

COMPANY.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 135. Argued January 22, 1913.-Decided February 24, 1913.

It has already been decided by this court that the Kansas Pacific Railway Company had a right to build west of the one hundredth meridian.

It has also been heretofore decided that the Pacific Railroad Acts of July 1, 1862, and July 2, 1864, should be considered and construed as one act.

A right of way is a substantial and obvious benefit and if a railroad is entitled to a right of way under an act, it is entitled thereto under a later act extending the route and granting all benefits given under the earlier act.

Even though the record may not show that all the maps of definite location had been filed, a railroad company may acquire under the acts of 1862 and 1864 a right of way by actual construction of the road.

A railroad obtaining a right of way under the acts of 1862 and 1864 retains title thereto whether occupied by it or not.

All persons acquiring public lands after the passage of the Pacific Railroad Acts took the same subject to the right of way conferred by them on the proposed roads. Railroad Co. v. Baldwin, 103 U. S. 426. Where the claimants to the same land have both paid the taxes thereon continuously, they stand on equal footing, and the payment does not establish adverse possession.

Under the acts of 1862 and 1864 the Kansas Pacific Railway Company had authority to build west of the one hundredth meridian to Denver and was entitled to a right of way two hundred feet from the center of the track, and that right is superior to claims initiated after the act of 1864, even if prior to the construction of the road; and this right is not defeated by adverse possession.

178 Fed. Rep. 753, affirmed.

THE facts, which involve the title to certain portions of the right of way of the Kansas Pacific Railway now

owned by the Union Pacific Railroad, are stated in the opinion.

Mr. Charles A. Murray, with whom Mr. Thomas B. Stuart, Mr. Louis T. Michener, Mr. Perry G. Michener and Mr. Joseph C. Helm were on the brief, for petitioners.

Mr. Clayton C. Dorsey for respondent.

Mr. Joseph C. Eving, by leave of the court, filed a brief as amicus curiæ.

MR. JUSTICE MCKENNA delivered the opinion of the

court.

Suit to quiet title to the E. 1⁄2 of the N. W. 14 and the N. E. 4 of the S. W. 14 and the N. W. 14 of the S. E. 14 of Section 20, Township 38, Range 67 West, situated in the city and county of Denver (formerly in Arapahoe County), State of Colorado.

The suit was brought in the District Court of the city and county of Denver against the Kansas Pacific Railway Company, the Colorado Eastern Railroad Company and the Union Pacific Railroad Company and removed on the petition of the latter company to the United States Circuit Court for the District of Colorado, on the ground of a separable controversy. A motion to remand was made and denied. The railroad company answered, joining issue as to so much of the lands as constituted a tract 200 feet in width on each side of its road. It asserted title as successor of the Kansas Pacific Railway Company, which had been granted the tract as a right of way, it was alleged, by the acts of Congress generally denominated the Pacific Railroad Acts.

The discussion in the case will turn upon the title of the railroad rather than upon the title of petitioners. There is

no question of their title if that of the respondent company be not good. The Circuit Court held that the title of the company was good and dismissed the bill. The Circuit Court of Appeals decided that the dismissal of the bill was error; that the court should have recognized the company's title to the right of way and have quieted petitioners' title to the remainder. The decree of the Circuit Court was modified accordingly. 178 Fed. Rep. 753.

The Pacific Railroad Acts have been before this court so many times that it seems unnecessary to make further quotation from them. The first of them was passed July 1, 1862 (12 Stat. 489, c. 120): the second one, July 2, 1864 (13 Stat. 356, c. 216), and two others respectively on July 3, 1866 (14 Stat. 79, c. 159); and March 3, 1869 (15 Stat. 324, c. 127). Their relation constitutes the controversy in the case, and, simply stated, it is whether the right of way granted to the Leavenworth, Pawnee & Western Railroad Company, the name of which was changed in 1863 to Union Pacific Railway Company, Eastern Division, and in 1864 to the Kansas Pacific Railway Company, terminated at the one hundredth meridian or extended westward of that point to Denver. The petitioners contend for the former; the railroad company, for the latter.

The explicit contention of petitioners is that the right of way granted to the Kansas Pacific Railway Company (we use the latest name) does not extend to the lands in question, for that company, under its first name of Leavenworth, Pawnee. & Western Railroad Company, and all other eastern branches of the main line were authorized to build only to the one hundredth meridian, and no farther.

The main line was, under the act of July 1, 1862, authorized to be constructed by the Union Pacific Railroad Company westward through Cheyenne to the western boundary of Nevada and possibly farther to meet the Central Pacific Railroad, which was authorized to

build from the coast eastward. To the main line so constituted grants of land and bonds were made and a right of way was granted through all public lands "200 feet in width on each side of said railroad where it may pass over public lands." The initial point of the Union Pacific was to be the "100th meridian between the

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south margin of the valley of the Republican and the north margin of the valley of the Platte, in the Territory of Nebraska."

Section 9 of the act authorized the Leavenworth, Pawnee & Western Railroad to construct a road from the Missouri river at the mouth of the Kansas "to the aforesaid point on the 100th meridian

upon the same terms and conditions in all respects" as provided for the main line. The road was required to be so located through Kansas as to be between the mouth of the Kansas river and the designated point on the one hundredth meridian, and, it was provided, that the several roads from Missouri and Iowa authorized by the act to connect with the same could make the connection within the limits prescribed in the act, providing it could be done without deviating from the general direction of the whole line to the Pacific coast.

There is no uncertainty in the act of 1862. The initial point of the main line was the one hundredth meridian, and at that point the Leavenworth, Pawnee and Western Railroad Company (now the Kansas Pacific Railway) and other eastern branches were to connect with the main line.

The next act is that of July 2, 1864, and on its provisions arise the principal controversy in the case. It is contended by the respondent railroad company that the act authorized the Kansas Pacific road (then, as we shall see, the Union Pacific Railroad, Eastern Division) to build westward of the one hundredth meridian, and granted it, besides certain sections of the public lands, a right of way

400 feet wide, 200 feet either side of the center of its track. Petitioners oppose the contention and insist that the act only aimed to provide for the convenient connection of certain branch roads with the main trunk line at or near the one hundredth meridian and did not extend a right of way to any branch beyond the one-hundredth meridian. Comparing the two acts, petitioners say that the act of 1862 referred solely to the right of way through public lands. The act of 1864 referred solely to condemnation of right of way through private lands and to granting facilities of connection with the Union Pacific through ferries and bridges over navigable rivers. The permission to build westwardly, it is further urged, was not given to all branches but only to such as were made branches by the act of 1864. The contentions are earnestly argued and are made to rest mainly on § 9 of the act.

The act of 1864 was entitled "An Act to amend" the act of 1862, and it was provided by § 9 that " any company authorized by this act to construct its road and telegraph line from the Missouri river to the initial point aforesaid [100th meridian] 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 case 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 herein before 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: Provided further, however, That the bonds of the United States shall not he issued to such company for a greater amount than is herein before provided, if the same had united with the Union Pacific Railroad on the one hundredth degree of longitude; nor shall such company be entitled to receive any greater amount of alternate sections of public lands than are also herein provided." (Italics ours.)