ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.
The only questions which appear in this case to have elicited much discussion in the court below, relate to the title of the Central Pacific Railroad Company to the lands granted by the acts of Congress of July 1, 1862, and July 2, 1864, upon the filing of a map of the definite location of its contemplated road with the Secretary of the Interior and its acceptance by him. Was it sufficient to enable the lessee of the company to maintain an action for the possession of the demanded premises? The lessee can, of course, as against a stranger, have no greater right of possession than his lessor. On the one hand it is contended, with much earnestness, that upon the filing of the map of definite location of the proposed road, and its acceptance by the Secretary of the Interior, a legal title vested in the grantee to the alternate odd sections, subject to various conditions, upon a breach of which the title may be forfeited, but that until then their possession may be enforced by the grantee. On the other hand, it is insisted, with equal energy,
that the grant gives only a promise of a title when the work contemplated is completed, and that until then possession of the lands cannot be claimed.
An examination of the granting act, and the ascertainment thereby of the intention of Congress, so far as practicable, will alone enable us to give a satisfactory solution to these positions.
The act of Congress of July 1, 1862, 12 Stat. 489, c. 120, provides for the incorporation of the Union Pacific Railroad Company, and makes a grant of land to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean. Its provisions, grants and obligations, specially relate in terms to that company; but other railroad companies are embraced within the objects of the act, and the clauses mentioning and referring to the Union Pacific Railroad Company are made applicable to them.Thus by the ninth section the Central Pacific Railroad Company of California was authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of California, "upon the same terms and conditions in all respects" as were provided for the construction of the railroad and telegraph line of the Union Pacific.And by the tenth section of the act that company, after completing its road across California, was authorized to continue the construction of its road and telegraph line through the Territories of the United States to the Missouri River, on the terms and conditions provided in the act in relation to the Union Pacific Railroad Company, or until its road should meet and connect with the road of that company. An equal grant of land, and of like extent and upon like conditions, was made to the Central Pacific Railroad Company of California, as was in terms made to the Union Pacific Railroad Company. By the same law the rights and obligations of both must be determined.
By the third section the grant was made.Its language is "that there be and is hereby granted, to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation
of the mails, troops, munitions of war and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed: Provided, That all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to said company." The act of July 2,1864, 13 Stat. 356, 357, c. 216, enlarged the amount of the grant to ten alternate sections on each side of the road.
By the fourth section, as amended by section 6 of the act of 1864, it was enacted: "That whenever said company shall have completed not less than twenty consecutive miles of any portion of said railroad and telegraph line, ready for the service contemplated by this act, and supplied with all necessary drains, culverts, viaducts, crossings, sidings, bridges, turnouts, watering places, depots, equipments, furniture and all other appurtenances of a first-class railroad, the rails and all the other iron used in the construction and equipment of said road to be American manufacture of the best quality, the President of the United States shall appoint three commissioners to examine the same and report to him in relation thereto; and if it shall appear to him that not less than twenty consecutive miles of said railroad and telegraph line have been completed and equipped in all respects as required by this act, then, upon certificate of said commissioners to that effect, patents shall issue conveying the right and title to said lands to said company, on each side of the road as far as the same is completed, to the amount aforesaid; and patents shall in like manner issue as each twenty miles of said railroad and telegraph line are completed, upon certificate of said commissioners."
By the terms of the act making the grant the contention of the defendant is not supported. Those terms import the transfer of a present title, not one to be made in the future. They ...