CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1893.

UNITED STATES v. DENVER AND RIO GRANDE RAILWAY COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLORADO.

No. 3. Argued October 10, 1893.- Decided October 23, 1893.

After the expiration of the time limited by the act of June 8, 1872, 17 Stat. 339, c. 354, for the completion of its road to Santa Fé, if not before that time, the Denver and Rio Grande Railway Company was entitled to claim the benefit of the act of March 3, 1875, 18 Stat. 482, c. 151, upon complying with its conditions.

The act of March 3, 1875, 18 Stat. 482, c. 151, granting a right of way to railroads through the public lands, and authorizing them to take therefrom timber or other materials necessary for the construction of their roadways, station buildings, depots, machine-shops, sidetracks, turnouts, water stations, etc., permits a railway company to use the timber or material so taken on portions of its line remote from the place from which it is taken.

In its ordinary acceptation and enlarged sense, the term "railroad" includes all structures which are necessary and essential to its operation. While it is well settled that public grants are to be construed strictly as against the grantees, they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given. General legislation, offering advantages in the public lands to individuals or corporations as an inducement to the accomplishment of enterprises of a quasi public character through undeveloped public domain should receive a more liberal construction than is given to an ordinary private grant.

VOL. CL--1

1

Opinion of the Court.

It is not decided that the act of March 3, 1875, gave a right to take timber from the public domain for making rolling stock; nor what structure, if any, not enumerated in that act would constitute necessary, essential, or constituent parts of a railroad.

THE case is stated in the opinion.

Mr. Solicitor General, with whom was Mr. William A. Maury on the brief, for plaintiffs in error cited: Railway Co. v. Alling, 99 U. S. 463; United States v. Burlington & Missouri River Railroad, 98 U. S. 334; United States v. Chaplin, 31 Fed. Rep. 890; Leavenworth, Lawrence &c. Railway v. United States, 92 U. S. 733; Slidell v. Grandjean, 111 U. S. 412; Dubuque & Pacific Railroad v. Litchfield, 23 How. 66; Charles River Bridge v. Warren Bridge, 11 Pet. 420; Providence Bank v. Billings, 4 Pet. 514; Fertilizing Co. v. Hyde Park, 97 U. S. 659; Oregon Railway & Navigation Co. v. Oregonian Railway Co., 130 U. S. 1; Portland, Saco & Portsmouth Railroad v. Saco, 60 Maine, 196; Stevens v. Erie Railway, 6 C. E. Green, (21 N. J. Eq.,) 259.

Mr. Edward O. Wolcott, (with whom was Mr. Joel F. Vaile on the brief,) for defendant in error, cited: United States v. Denver & Rio Grande Railway, 31 Fed. Rep. 886; Edwards v. Darby, 12 Wheat. 206; Johnson v. Towsley, 13 Wall. 72; United States v. Moore, 95 U. S. 760; Brown v. United States, 113 U. S. 568; United States v. Bank of North Carolina, 6 Pet. 26; United States v. Chaplin, 31 Fed. Rep. 890 ; Henderson's Lessee v. Long, Cooke, (Tenn.,) 128; Courtright v. Cedar Rapids &c. Railroad, 35 Iowa, 386; United States v. Burlington &c. Railroad, 98 U. S. 334; Cother v. Midland Railway, 2 Phillips Ch. 469; Lake Superior &c. Railroad v. United States, 93 U. S. 442; Baltimore v. Baltimore & Ohio Railroad, 21 Maryland, 50; Missouri, Kansas &c. Railroad v. Kansas Pacific Railroad, 97 U. S. 491.

MR. JUSTICE JACKSON delivered the opinion of the court.

The record in this case presents for our consideration and determination the following questions: First, is the defendant,

Opinion of the Court.

a railway company, duly chartered and organized in 1870 under the laws of the Territory of Colorado, for the purpose of locating, constructing, and operating an extensive system of railway and telegraph lines, entitled to the benefits of the act of Congress approved March 3, 1875, 18 Stat. 482, c. 152, entitled "An act granting to railroads the right of way through the public lands of the United States;" and, second, if so entitled, is the defendant authorized or permitted, under a proper construction of said act, to take from the public lands adjacent to the line of the railroad, timber or other material necessary for the construction of its roadway, station buildings, depots, machine shops, side tracks, turnouts, water stations, &c., and use the same on portions of its line remote from the place from which such timber or material may be taken; or does the act limit the railroad company to timber or other material found in the vicinity of the place where the work of construction is going on?

These questions, constituting the matters in controversy between the parties, arise in this way: The plaintiffs in error, who were the plaintiffs below, brought their suit against the defendant in the District Court of the United States for the District of Colorado, to recover the value of timber alleged to have been taken by the defendant from the public domain between October 1, 1882, and November 1, 1883. The defendant, by its answer, interposed a general denial of the allegations of the' complaint, and for a further defence justified the taking of the timber under the special act of Congress approved June 8, 1872, 17 Stat. 339, c. 354, and under the general act of March 3, 1875. The case was tried upon the following agreed statement of facts:

"1. The timber sued for in said action was cut by William A. Eckerly & Company, as agents for the Denver and Rio Grande Railway Company, and delivered to said railway company.

"2. That the attached statement correctly shows the kinds and amounts of timber so cut and delivered, and also shows the time of cutting, the purposes for which it was cut and used, and the prices paid for cutting and delivering the same.

Opinion of the Court.

"3. The said timber was cut in Montrose County, Colorado, and near the town of Montrose, and upon public, unoccupied, and unentered lands of the United States.

"4. That the lands from which the timber was cut were along and near and adjacent to the line of railway of said company.

"5. That the portion of the line of railway through said county of Montrose, and in the vicinity of said town of Montrose, was not constructed or completed until after June 8, 1882, and that on June 8, 1882, said line of railway was only constructed and completed as far westward as Cebolla, in Gunnison County, Colorado.

"6. That said company had not completed its line of railway to Santa Fé on June 8, 1882, nor has it ever so completed it.

"7. That of the timber cut as aforesaid, a part was used on portions of the line of railway out to Grand Junction, constructed and completed after June 8, 1882, and for the purposes of construction of railway, erection of section and depot houses, snow-sheds, fences, &c.

"And a part was shipped by the Denver and Rio Grande Railway for similar purposes to the Denver and Rio Grande Western Railway, to be used in the Territory of Utah, as shown in the attached statement, and $1000 worth was used for repairs on portions of road completed prior to June 8, 1882.

"8. That as to all of its line of railway constructed after June 8, 1882, the said company strictly complied with all the requirements of the act of Congress approved March 3d, 1875, entitled, An act granting railroads the right of way through the public lands of the United States.""

On this agreed statement of facts there were submitted to the court for decision several legal propositions and questions, which were not, however, separately considered and passed upon, and need not be here specially noticed. The case made by the facts agreed upon was intended to be a test case to obtain a definite and positive adjudication by the court of the rights of the railway company with regard to cutting timber

Opinion of the Court.

from public lands under the provisions of the two acts which have been referred to.

The District Court entered judgment for the plaintiffs for $24,926.25, the agreed value of the timber taken. From this judgment the defendant took its writ of error to the Circuit Court of the United States for the District of Colorado, which modified the judgment of the District Court by charging the defendant first, with the sum of $1000, as the value of the timber used for repairs on that portion of the road east of Cebolla, Colorado, which had been completed prior to June 8, 1882; and for the further sum of $1229.45, as the value of the timber shipped by the defendant to the Denver and Rio Grande Western Railway Company to be used in the Territory of Utah; but as to the rest of the timber used on portions of the road west of Montrose, out to Grand Junction, for the purpose of constructing the defendant's railway, erecting bridges, section houses, depots, bunk houses, stock yards, water tanks, &c., held that the defendant was not liable therefor, and to that extent reversed the judgment of the District Court. The plaintiffs prosecute the present writ of error to review and reverse this judgment of the Circuit Court. The defendant has sued out no cross writ of error, and concedes its liability for the timber with which it has been charged by the judgment of the Circuit Court.

If the defendant is not entitled to the benefits of the act of March 3, 1875, or if that act, properly construed, does not permit or allow the defendant to use timber taken from adjacent lands except for the construction of adjacent portions of its line of road and structures connected therewith, then the judgment of the Circuit Court is erroneous. If, however, the defendant can rightfully claim the benefits of the act of March 3, 1875, and if that act authorizes it to take from the public lands adjacent to its line of road timber necessary for the construction of its railway, and use the same at points distant from the place at which the timber was taken, then the judgment below should be affirmed.

By the act of Congress approved June 8, 1872, "the right of way over the public domain, one hundred feet in width on