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Opinion of the Court.

As already stated, in the fall of 1887 the company constructed its railroad upon line "C" and across the land in controversy. But no amendment of the said map was made, nor was any approval of the Secretary of the Interior obtained to any new map covering line "C."

The plaintiff contends that the effect of the filing and approval of the map line "B" was to vest in the said company a right of way one hundred feet wide on each side of the centre line of its road, as indicated upon said map, which right could not be changed without the consent of the granting power first had and obtained. Regarding this question as one entirely between the Coeur d'Alene Railway and Navigation Company and the United States, it should be observed that the act of Congress, under which both parties claim the land in question, by its fourth section provides that, in case of unsurveyed lands of the United States, as these were, the plat need not be filed until twelve months after a survey thereof. It is, however, said that while the company might not have been required under the act to file its map at the time such filing was made, yet it had the right to do so under certain regulations of the Secretary of the Interior, in force during the period of this controversy, and that when such map was approved by the Secretary the company had secured the benefit of the act upon the line there shown, and could not thereafter alter the same. We agree with the Circuit Court of Appeals in thinking that, so far as the United States are concerned, there is nothing in the act forbidding a railroad company, having adopted one line of survey along the route provided for in its articles of incorporation, and having filed a plat thereof, to subsequently, and within the time allowed it by law for so doing, adopt another route, and that no reason is apparent why, instead of filing a second plat, it may not construct the road on the line surveyed and adopted, so long as the rights of others have not intervened. Such an actual construction and appropriation of one line would preclude the company from asserting any claim to the other lines, and hence the contention that, by running several lines through unsurveyed lands, the company sought to obtain more than the


Opinion of the Court.

statute gave, namely, one right of way, is met by the fact that it claimed and constructed but one line.

If the United States could not, and do not, complain, there is no foundation for the plaintiff company to do so, as it was found by the trial court that the platting of line "B," instead of line "C," was through a mistake, and that such mistake was not discovered until after the completion of the defendant's railroad and depot over and upon the ground in controversy, and that the filing of the plat showing line "B" was not done for the purpose of, in any manner, deceiving the plaintiff or any one else, and that the plaintiff was not, in any manner, misled or prejudiced by the filing of said plat or by said mistake.

Even if the Coeur d'Alene Railway and Navigation Company was duly organized as a railroad company, and, as such, was entitled to construct and maintain its road over the land in controversy, without being estopped by having filed an inaccurate map, still the plaintiff contends that the right of way in question belongs to it by virtue of a prior survey made on its behalf. The facts relevant to this contention are that the articles of incorporation, under which the plaintiff claims the land in controversy, were not filed in the office of the secretary of the Territory of Washington till the 10th day of November, 1886, and that a copy of such articles and proof of organization were not filed in the office of the Secretary of the Interior till December 22, 1886. It was, indeed, shown and found that, on October 28, 1886, W. H. Burrage, claiming to be acting for the plaintiff, surveyed a line up the Cœur d'Alene River, through the town of Wallace, and over the ground in controversy, which was the line described in the articles of incorporation subsequently filed by the plaintiff company in the offices of the secretary of the Territory and of the Secretary of the Interior.

The conclusion of the courts below, on this state of facts, was that at the time of the making of said survey by W. H. Burrage over the lands in controversy, on October 28, 1886, the plaintiff was not a corporation organized for the purpose of constructing, or authorized to construct, a railroad over the

Opinion of the Court.

land in controversy; was not authorized to take possession of the said premises, or to locate a line of railroad thereon; and that the said survey on October 28, 1886, conferred no right whatever on it, the plaintiff, as against the defendant, the Coeur d'Alene Railway and Navigation Company.

The argument on behalf of the plaintiff is that when, on December 22, 1886, the Washington and Idaho Railroad Company had filed its articles of incorporation and proof of organization in the office of the Secretary of Interior at Washington, D. C., it had a right to adopt the survey previously made by Burrage, as and for the location of its route under the general right-of-way act, and that when it so adopted said survey it related back to the date when the survey was made.

We are unable to accept such a view of the law, but concur in the conclusion of the court below that the language of the act of Congress, under which both parties claim, wherein it provides that "the right of way through the public lands of the United States is hereby granted to any railroad company duly authorized under the laws of any State or Territory, which shall file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, to the extent of a hundred feet on each side. of the central line of said road," plainly means that no corporation can acquire a right of way upon any line not described in its charter or in its articles of incorporation; that it necessarily follows that no initiatory step can be taken to secure such right of way by the survey upon the ground or otherwise; that until the power to build the road upon the surveyed line was in a proper manner assumed by or conferred upon the plaintiff company, its acts of making surveys were of no avail; and that, so far as the conflicting rights of the parties to this controversy are concerned, the status of the plaintiff is the same as if its survey of October 28, 1886, had not been made.

The case of New Brighton Railroad Co. v. Pittsburg Railroad Co., 105 Penn. St. 14, was, like the present, one of a contest between two railroad companies for a right of way, and where the effect of a survey of a line before the legal organization of the company had to be considered; and it was held that

Opinion of the Court.

surveying, locating, and designating, by proper marks, the property to be taken for railroad purposes, cannot be done by the projectors of a railroad company before its incorporation, but only by the president and directors of a duly incorporated company, their engineers and employés, and that an unauthorized preliminary survey, though well marked by a line of stakes indicating the location of a railroad, cannot be regarded as sufficient notice of a prior legal appropriation of the land, nor will the subsequent adoption of such survey by the company, after its incorporation, give it any right to the location. as against another company, which had surveyed and taken possession of the land before the first-mentioned company had passed the resolution of adoption.

The cases cited by the plaintiff in error do not sustain their position.

Morris & Essex Railroad v. Blair, 9 N. J. Eq. 635, was a case of a contest for a right of way between two railroad companies, both duly incorporated, and it was held that the prior right attached to the company which first actually surveyed and adopted a route and filed their survey in the office of the Secretary of State, and also that the mere experimental surveying of a route will not confer any vested or legal right until it shall have been adopted.

The Supreme Court of Iowa, in Lower v. Chicago, Burlington &c. Railway, 59 Iowa, 563, held that though a railroad company may not for some reason have the legal right to condemn a right of way for a lateral line, it may cause another company of its own stockholders to be so organized as to have that power, and that when such subsidiary company has condemned the right of way, it may lease its line to the former company, and in this there will be no fraud upon those whose lands have been condemned.

It is not perceived that these decisions, accepting them as sound, disclose any error in the ruling of the court below.

It is further made to appear, by the eleventh finding, that "from the time of making the said survey by Burrage over the land in controversy on the 28th day of October, 1886, until long after the completion of the railroad, side tracks, and

Counsel for Parties.

depot of the defendant, the Cœur d'Alene Railway and Navigation Company, upon the ground in controversy, neither the plaintiff, nor any person for it, ever made any other survey, or did any other act upon the premises, or took any possession thereof."

While it may be that such a finding, standing alone, would not make out a case of estoppel, of which the defendant could avail itself in an action of law, it is entitled to consideration when we are asked to adopt a construction of the act of Congress which would enable the plaintiff company to take and enjoy the right of way enhanced in value by the improvements put thereon by the defendant. When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor.

The decree of the court below is



160 101

L-ed 355

97 f 776

160 101

L-ed 355

103 f 279


No. 4. Argued November 13, 14, 1895. - Decided December 2, 1895.

Affirmed upon the authority of Washington & Idaho Railroad Company v.
Cœur d'Alene Railway & Navigation Company, ante, 77.

THIS case was argued with the preceding case. The facts are stated in the opinion.

Mr. A. A. Hoehling, Jr., and Mr. Samuel Shellabarger for appellant. Mr. J. F. Dillon, Mr. W. W. Cotton, and Mr. J. M. Wilson were on their brief.

Mr. A. B. Browne for appellee. Mr. A. H. Garland filed a brief for same.

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