RY. (S. Ct. 1908). SPOKANE AND BRITISH COLUMBIA RAILWAY COMPANY, Respondent,
vs.
WASHINGTON & GREAT NORTHERN RAILWAY COMPANY et al.,
Appellants
No. 6859
SUPREME COURT OF WASHINGTON
49 Wash. 280, 95 P. 64
April 13, 1908, Decided
Appeal from a judgment of the superior court for Ferry county,
Carey, J., entered February 5, 1907, upon findings in favor of
the plaintiff, after a trial on the merits before the court
without a jury, in an action for an injunction.
COURTS -- DECISIONS -- FEDERAL QUESTIONS. Whether provisions of
an act of Congress constituted conditions subsequent is a Federal
question, upon which the decisions of the United States courts
are controlling.
PUBLIC LANDS -- GRANTS -- RAILROAD RIGHT OF WAY -- CONDITIONS
SUBSEQUENT -- FORFEITURE -- WHO MAY CLAIM. Act of Cong. of June
4, 1898, granting a railroad right of way through the Colville
Indian Reservation becomes a grant in praesenti upon the filing
and approval of the map of definite location; and the provision
in section 5 of the act that the grant shall be forfeited unless
grading shall be commenced within six months, and twenty-five
miles of railroad be completed within two years, is a condition
subsequent which can only be taken advantage of by the government
by a judicial proceeding or appropriate legislative action in the
nature of "office found."
M. J. Gordon, Charles A. Murray, George V. Alexander, and Thomas
R. Benton, for appellants.
W. T. Beck, and Alfred M. Craven, for respondent.
ROOT, J. HADLEY, C.J., FULLERTON, CROW, RUDKIN, and MOUNT, JJ.,
concur. ROOT
{*281} This was an action by plaintiff to enjoin defendants from
interfering with the use of a right of way for railway purposes
through the Colville Indian reservation in this state. From a
judgment and decree in favor of plaintiff, the defendants appeal.
By an act of Congress approved June 4, 1898, there was granted to
the appellant Washington Improvement and Development Company, and
to its assigns, a right of way for its railway, telegraph, and
telephone lines through the Colville Indian reservation,
beginning on the Columbia river near the mouth of the Sans Poil
river, running thence northerly through said reservation toward
the international line. There was also granted grounds adjacent
for the purposes of stations, other buildings, side tracks, and
switch tracks. The act provided for the filing of maps showing
the route when determined upon, said maps of definite location to
be approved by the secretary of the interior. These maps were
subsequently filed, and were approved by the honorable secretary
prior to November 27, 1899. Before the commencement of this
action, the Washington Improvement & Development Company
transferred all of its rights, privileges, and immunities
acquired under this act of Congress to the appellant Washington &
Great Northern Railway Company.
Since the filing and approval of the maps of definite location as
aforesaid, this respondent, acting under authority of the act of
Congress of March 3, 1875, and the act of Congress {*282} of
March 2, 1899, located a route for its railway over practically
the same line indicated by the maps filed by the Washington
Improvement & Development Company, as aforesaid, and filed its
maps with the secretary of the interior, who approved the same on
October 17, 1905.
The act of June 4, 1898, under which appellants claim, contained
the following provision:
"Provided, That when a map showing any portion of said railway
company's located line is filed herein as provided for, said
company shall commence grading said located line within six
months thereafter, or such location shall be void, and said
location shall be approved by the secretary of the interior in
sections of twenty-five miles before the construction of any such
section shall be begun."
Section 5 of the statute reads as follows:
"That the right herein granted shall be forfeited by said company
unless at least twenty-five miles of said railroad shall be
constructed through the said reservation within two years after
the passage of this act."
Neither the Washington Improvement & Development Company nor its
successor, the Washington & Great Northern Railway Company,
commenced grading within six months after the approval of its
maps of definite location, nor did it construct twenty-five miles
of railroad, nor any, within two years after the passage of the
act. For these reasons the respondent claims that appellants'
location of the strip indicated by its maps became void and
forfeited, and that respondent had a right to go upon the same
strip of land and survey and locate its line of railway; that
having surveyed and marked out its proposed line of railway upon
substantially this same strip of ground after the expiration of
the two years, and its said maps of location having been approved
by the secretary of the interior, respondent claims that its
location thereupon is legal, and that appellants have no rights
whatever in the premises, and should be enjoined from in any
manner interfering {*283} (which appellants were doing) with the
respondent's use and occupancy thereof.
Appellants maintain that the provisions of the statute, requiring
the commencement of work within six months from the approval of
the maps of definite location and the construction of twenty-five
miles of railroad within two years after the passage of the act,
were conditions subsequent, and that any breach or alleged breach
of said conditions can be brought in question only by the
government; that the respondent is not in a position to urge
these matters, and cannot avail itself of any forfeiture on
account of any such breach. It will be seen that the matters in
issue are Federal questions, and the determination thereof by
this court must be made in the light of the decisions of the
supreme court of the United States in so far as the latter apply
thereto, and an examination convinces us that every question here
raised is controlled by decisions heretofore made by that high
court. In the light of those decisions, we are led to the
following conclusions:
The statute under which the Washington Improvement & Development
Company located its line through this Indian reservation
constituted a grant in praesenti. It was a "floating" grant until
the company filed its map of definite location, and the same was
approved by the secretary of the interior. The grant then became
definite and fixed. It attached to the particular strip of land
indicated by the map thus filed and approved, and the title to
said premises became thereupon vested in the railway company. The
provisions requiring the commencement of grading within six
months and the construction of at least twenty-five miles of
railroad within two years were conditions subsequent. Upon the
failure of the railway company to comply with either of these
conditions, the United States government by a judicial proceeding
or an act of Congress, or possibly by other appropriate
proceeding equivalent to "office found," as known in the common
law, could have declared a forfeiture and made a reentry. Until
{*284} this should be done, the title remained in the railway
company, and could not be disturbed by respondent or any other
third party. It was a matter between the appellants and the
government. Had Congress theretofore authorized the secretary of
the interior or land department to declare forfeiture in cases of
this kind, it is possible that the action of the secretary of the
interior, in approving the map of location filed by the
respondent after the expiration of the two years during which
appellant should have commenced grading and should have
constructed twenty-five miles of railroad but did not, might be
deemed to be a declaration of forfeiture and a reentry on the
part of the government. But no statute or authority of this
character is called to our attention, and we are aware of none.
It has been many times held by the United States supreme court,
that the claiming of a forfeiture provided for in a land grant
can only be made under authority of the legislative department,
such as an act of Congress declaring or directing a forfeiture,
or authorizing such to be made, or by a judicial proceeding by
the government, and that persons claiming under other provisions
of the statute, such as the homestead or exemption laws, cannot
urge a breach of conditions subsequent by the grantees. Among the
many decisions of the United States supreme court bearing upon
the matters herein discussed, we may call attention to the
following:
In the case of Schulenberg v. Harriman, 21 Wall. 44, 22 L. Ed.
551, that court, speaking by Mr. Justice Field, among other
things, said:
"The provision in the act of Congress of 1856, that all lands
remaining unsold after ten years shall revert to the United
States, if the road be not then completed, is no more than a
provision that the grant shall be void if a condition subsequent
be not performed. . . . And it is settled law that no one can
take advantage of the non-performance of a condition subsequent
annexed to an estate in fee, but the grantor or his heirs, or the
successors of the grantor if the grant proceed from an artificial
person; and if they do not see {*285} fit to assert their right
to enforce a forfeiture on that ground, the title remains
unimpaired in the grantee. The authorities on this point, with
hardly an exception, are all one way from the Year Books down.
And the same doctrine obtains where the grant upon condition
proceeds from the government; no individual can assail the title
it has conveyed on the ground that the grantee has failed to
perform the conditions annexed. . . . In the present case no
action has been taken either by legislation or judicial
proceedings to enforce a forfeiture of the estate granted by the
acts of 1856 and 1864. The title remains, therefore, in the state
as completely as it existed on the day when the title by location
of the route of the railroad acquired precision and became
attached to the adjoining alternate sections."
In the case of Noble v. Union River Logging R. Co., 147 U.S. 165,
176, 13 Sup. Ct. 271, 37 L. Ed. 123, the court, speaking by Mr.
Justice Brown, said:
"The lands over which the right of way was granted were public
lands subject to the operation of the statute, and the question
whether the plaintiff was entitled to the benefit of the grant
was one which it was competent for the secretary of the interior
to decide, and when decided, and his approval was noted upon the
plats, the first section of the act vested the right of way in
the railroad company. The language of that section is 'that the
right of way through the public lands of the United States is
hereby granted to any railroad company duly organized under the
laws of any state or territory,' etc. The uniform rule of this
court has been that such an act was a grant in praesenti of lands
to be thereafter identified. Railway Company v. Alling, 99 U.S.
463. The railroad company became at once vested with a right of
property in these lands, of which they can only be deprived by a
proceeding taken directly for that purpose. If it were made to
appear that the right of way had been obtained by fraud, a bill
would doubtless lie by the United States for the cancellation and
annulment of an approval thus obtained. Moffat v. United States,
112 U.S. 24; United States v. Minor, 114 U.S. 233. A revocation
of the approval of the secretary of the interior, however, by his
successor in office was an attempt to deprive the plaintiff of
its property without due process of law, and was, therefore,
void. As was said by Mr. Justice {*286} Grier, in United States
v. Stone, 2 Wall. 525, 535: 'One officer of the land office is
not competent to cancel or annul the act of his predecessor. That
is a judicial act and requires the judgment of a court.' Moore v.
Robbins, 96 U.S. 530."
In Van Wyck v. Knevals, 106 U.S. 360, 1 Sup. Ct. 336, 27 L. Ed.
201, this language was employed:
"The route must be considered as 'definitely fixed' when it has
ceased to be the subject of change at the volition of the
company. Until the map is filed with the secretary of the
interior the company is at liberty to adopt such a route as it
may deem best, after an examination of the ground has disclosed
the feasibility and advantages of different lines. But when a
route is adopted by the company and a map designating it is filed
with the secretary of the interior and accepted by that officer,
the route is established; it is, in the language of the act,
'definitely fixed,' and cannot be the subject of future change,
so as to affect the grant, except upon legislative consent. No
further action is required of the company to establish the
route."
In Bybee v. Oregon & California R. Co., 139 U.S. 663, 11 Sup. Ct.
641, 35 L. Ed. 305, the court spoke as follows:
"An effort is made to distinguish this case from Schulenberg v.
Harriman, in the fact that the act not only declares that the
lands 'shall revert to the United States,' but that the act
itself 'shall be null and void,' from which it is argued that it
was the intention of Congress that the failure to complete the
road should operate ipso facto as a termination of all right to
acquire any further interest in any lands not then patented. It
is true that the language of this statute differs somewhat from
that ordinarily employed by Congress in connection with similar
grants; but the declaration that the lands 'shall revert to the
United States' is practically equivalent to a declaration that
the act granting such lands shall cease to be operative if the
company fail to complete its road within a specified time."
In Grinnell v. Railroad Company, 103 U.S. 739, 26 L. Ed. 456, the
court, speaking through Mr. Justice Miller, used this language:
"Another point equally fatal to the plaintiffs in error is, that
the assertion of a right by the United States to the lands {*287}
in controversy was wholly a matter between the government and the
railroad company, or its grantors. The legal title remains where
it was placed before the act of 1864. If the government desires
to be reinvested with it, it must be done by some judicial
proceeding, or by some act of the government asserting its right.
It does not lie in the mouth of every one who chooses to settle
on these lands to set up a title which the government itself can
only assert by some direct proceeding. These plaintiffs had no
right to stir up a litigation which the parties interested did
not desire to be started. It might be otherwise if the legal
title was in the government."
In St. Louis etc. R. Co. v. McGee, 115 U.S. 469, 6 Sup. Ct. 123,
29 L. Ed. 446, the court, speaking through Mr. Chief Justice
Waite, spoke as follows:
"It has often been decided that lands granted by Congress to aid
in the construction of railroads do not revert after condition
broken until a forfeiture has been asserted by the United States,
either through judicial proceedings instituted under authority of
law for that purpose, or through some legislative action legally
equivalent to a judgment of office found at common law. United
States v. Repentigny, 5 Wall. 211, 267, 268; Schulenberg v.
Harriman, 21 Wall. 44, 63; Farnsworth v. Minnesota & Pacific
Railroad Co., 92 U.S. 49, 66; M'Micken v. United States, 97 U.S.
217, 218; Van Wyck v. Knevals, 106 U.S. 360. Legislation to be
sufficient must manifest an intention by Congress to reassert
title and to resume possession. As it is to take the place of a
suit by the United States to enforce a forfeiture, and a judgment
therein establishing the right, it should be direct, positive,
and free from all doubt or ambiguity."
In the case of United States v. Repentigny, 5 Wall. 211, 18 L.
Ed. 627, Mr. Justice Nelson, speaking for the court, said this:
"We agree that before a forfeiture or reunion with the public
domain could take place, a judicial inquiry should be instituted,
or, in the technical language of the common law, office found or
its legal equivalent. A legislative act, directing the possession
and appropriation of the land, is equivalent to office found. The
mode of asserting or of assuming {*288} the forfeited grant, is
subject to the legislative authority of the government."
We think it will be readily seen that the foregoing decisions
leave us no discretion in the matter, but conclusively determine
the issues in this case adversely to respondent's contention and
to the conclusions reached by the honorable trial court.
The judgment and decree appealed from will therefore be reversed,
and the cause remanded with instructions to enter a judgment and
decree in favor of appellants.
DISPOSITION
Reversed.
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