APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds
MR. JUSTICE LAMAR delivered the opinion of the court.
The Minidoka & Southwestern Railroad Company was authorized by its charter to build its road along a line which ran through the Minidoka Irrigation Project in the State of Idaho. Homesteaders without patents but lawfully in possession of irrigable land within the reclamation area, granted rights of way over their settlement to the Railroad Company.
With the Company began to build the United States sought to enjoin the work on the ground that a railroad could not be built across lands within a reclamation area without the consent of the Government. It was also claimed that the necessary embankments, excavations, bridges and culverts would interfere with the success of the irrigation works. The Company answered and relied on the conveyances from the homesteaders. After a hearing the District Court denied the injunction but made provision that the culverts should be so built as not to interfere with the flow of water through the canals and ditches (176 Fed. Rep. 762). This decree was reversed by the Circuit Court of Appeals (190 Fed. Rep. 491) on the ground that the lands in the reclamation area, though in possession of settlers, were public lands within the meaning of the Right of Way Act (March 3, 1875, c. 152, 18 Stat. 482) and that before its road could be built through the Minidoka Irrigation works the Company must obtain the consent of the Secretary of the Interior. From that decree an appeal was taken to this court.
It has always been the policy of the Government to encourage the building of railroads in the Western States, and many land grants have been made by it to aid in their construction. Congress has also provided a means by which those companies having no such grants could acquire rights of way over any portion of the public land by filing a map of definite location and securing its approval
by the Secretary of the Interior (18 Stat. 482). This law, however, by its very terms applies only to "public lands" and hence cannot be construed to empower the Secretary to authorize the building of roads across lands which had been segregated from the public domain by the entry and possession of homesteaders or preemptors. Bardon v. Northern Pac., 145 U.S. 535, 538; United States v. Buchanan, 232 U.S. 72, 76, and cases cited. On the other hand, settlers, without patent, were not in a position to make deeds to rights of way, not only because they had no title but also because they were prohibited from alienating such land before final proofs. Rev. Stat., § 2291. The consequence was that neither the Government nor the homesteaders could make such grants, and as the Company could not build without an assured title to its right of way, it was practically impossible to construct railroads through territory which consisted partly of public lands and partly of that which was in the possession of settlers. But it was greatly to their interest and to that of the Government that such a highway should be constructed and in order to meet the difficulty, Congress, on March 3, 1873, c. 266, 17 Stat. 602 (Rev. Stat., § 2288), passed an act providing that any bona fide settler might convey by warranty against his own act any part of his claim "for church, cemetery, or school purposes or for the right of way of railroads." Under this act the appellant could have constructed its road along the strip conveyed to it by the homesteaders unless, as claimed by the Government, the provisions of Rev. Stat., § 2288 as amended (March 3, 1905, c. 1424, 33 Stat. 991) have been repealed as to lands within irrigation projects and the completed Minidoka Irrigation Works.
Counsel for the United States contend that the Reclamation Act (June 17, 1902, c. 1093, 32 Stat. 388) requires that when an irrigation project is undertaken the Secretary of the Interior shall define its limits and withdraw all the
irrigable land therein from the public domain and from the operation of the general land laws: It is argued that when thus withdrawn the irrigation area constitutes a unit in which the United States has such a special interest as to require that it shall be subject to the supervision of the Secretary -- he, in order to secure the success of the undertaking, having it in his power to decide whether a railroad should be built, and if so, along what line and across what lots it should be constructed. It is also argued that settlers having no patents ought not to be in a position to grant a right of way over lands which they do not own and may never acquire and thereby impose a burden upon the claim if it should afterwards come into the hands of other homesteaders.
These considerations, however, have not induced Congress to change its policy of encouraging the construction of railroads along routes designated by charters and over land in the possession of settlers. Neither have they induced Congress to confer upon the Secretary the power to grant rights of way through irrigation lands in the possession of homesteaders.
It is true that the Reclamation Act of June 17, 1902 (c. 1093, 32 Stat. 388), provides that when the Secretary of the Interior determines upon an irrigation project he must define its limits and "withdraw the irrigable lands therein from all forms of settlement, except under the homestead law," and all settlements therein shall be "subject to the limitations, charges, terms, and conditions provided in the Reclamation Act." And it is further true that the provisions of this statute do, in several important respects, modify the homestead law. The Secretary can limit the size of the homestead to ten acres, instead of the 160 acres permitted by the general law. The settler, instead ...