been performed by the United States, and by the Northern Pacific Railroad Company, 571

or its successors,...

and "what quantities in lands or values said compan

ies have received in excess of the full amounts they were entitled to receive, either as a result of breaches of the terms, conditions, or covenants, either 581 expressed or implied, of said granting Acts..." (emphasi dded) The Act also confirmed the federal forest withdrawals and authorized appropriate compensation if any was due as a result, and declared a forfeiture of all unsatisfied indemnity selection rights of the company together with all claims to additional 59/ lands, but stated that the act did not affect the present title of the com60/

pany to rights of way actually used in the operation of the road. added).

(emphasis

A later act provided for direct appeal of the case from the District Court 61/ to the Supreme Court.

Section three of the Act again reserved to Congress the right to add to, alter, amend, or repeal earlier provisions and expressly stated that the 1929 Act "shall not be construed as in anywise evidencing the purpose or intention of Congress to depart from the policy of the United States expressed in the resolution of May 31, 1870, relative to the disposition of granted lands by said grantee, and the right is hereby reserved to the United States to, at any time, enact further legislation relating thereto."

The suit was filed in 1930 in the District Court for Eastern Washington. various motions to dismiss were referred to a master of the court who ruled on

The

57/ Ibid.

58/ Ibid., section 5.

59/ Ibid., section 2.

60/ Ibid., section 4.

61/Act of May 22, 1936, ch. 444, 49 Stat. 1369.

the motions, took testimony on some special pleas which had not been dismissed, and recommended decisions. Both sides filed exceptions to the various decision of the master and after the acceptance of the master's recommendations and denial of exceptions by the court, appeals were taken to the Supreme Court in 1940. The Court ruled on some issues, was evenly divided and reserved judgment on others, and returned others to the trial court for full trial. At this point a settlement agreement was submitted to the court by the parties, was accepted 62/ and incorporated as the decree of the court. Therefore, there was never a final

ruling on many issues as to breach of conditions.

The stipulation of the parties that later became the decree stated it was

Because

a full and complete settlement of all the rights and claims of the parties "which 631 have been presented or might have been presented herein under. there was no issue at that time as to the continued operation of the railroad, and the basic thrust of the litigation was to resolve questions as to land entitlements, the 1941 decree does not seem to foreclose the current inquiry.

Simultaneous with the progression of the litigation, Congress was holding hearings on the issue of eliminating the provisions in the law that required the land grant railroads to carry government goods and passengers at reduced rates. The facts as to the reduced rates and the relationship of the elimination of those provisions to issues on satisfaction of the purposes of the land grant statutes is another area beyond the scope of this report that should be

examined further.

62/ United States v. Northern Pacific Railway Company, 41 F. Supp. 273 (1941).

63/ Ibid., at 290.

Judicial Interpretation

As has been noted, the land grants made to Northern Pacific have generated considerable litigation over the years. The courts have considered the language of the grants and others similar to them in connection with various important issues, but the intent of Congress as to the relationship of the land grants

decided.

to the continued operation of the railroad does not seem to have been directly (Though time constraints have precluded an exhaustive search of all of the legion of railroad cases.) Some of the cases, however, have included language that bears on the issue.

641

The case of Schulenberg v. Harriman

was one of the first in which the Some of the general

Supreme Court considered railroad land grant language.

observations the Court made in that case have been followed consistently since. The Court held that grants made with language similar to that of section 3 of

the 1864 Northern Pacific legislation were grants "in praesenti", or present 651

grants, which, because the actual line of the road was not yet located, were considered to "float" (a term which came into use later) until the route was 66/ located, at which time title related back to the date of the act.

Furthermore, the Schulenberg Court stated: "A legislative grant operates as a law as well as a transfer of the property, and has such force as the intent 67/

of the legislature requires."

It further reasoned that the conditional langu

age of the grants, even where the grant contained the language "the land shall revert" created a conditional, rather than determinable, estate; and that breach

64/ 21 Wall. 44 (1874).

65/ Ibid., at 60.

66/ Van Wyck v. Knevals, 106 U.S. 360, 365 (1882)

67/ Schulenberg, supra, at 62.

681

As to

of condition could only be asserted by the government as grantor.
how this assertion of breach and forfeiture was to occur where the grantor a
Congress, the Court stated:

In what manner the reserved right of the grantor
for breach of the condition must be asserted so as to
restore the estate depends upon the character of the
grant. If it be a private grant, that right must be
asserted by entry or its equivalent. If the grant be
a public one it must be asserted by judicial proceed-
ings authorized by law, the equivalent of an inquest
of office at common law, finding the fact of forfeiture
and adjudging the restoration of the estate on that
ground, or there must be some legislative assertion of
ownership of the property for breach of the condition,
such as an act directing the possession and appropria-
tion of the property, or that it be offered for sale or
settlement. At common law the sovereign could not make
an entry in person, and, therefore, an office-found
was necessary to determine the estate, but, as said
by this court in a late case, "the mode of asserting
or of resuming the forfeited grant is subject to the
legislative authority of the government. It may be
after judicial investigation, or by taking possession
directly under the authority of the government with-
out these preliminary proceedings." 69/

Several factors are important to emphasize in this opinion: 1) conditions in railroad land grants are likely to be interpreted as conditions subsequent rather than determinable fees, 2) therefore, some action by the Federal Government is necessary to reassert title, and 3) that action may either be by judicial proceeding or legislative action.

If Congress decides to act legislatively, the action taken by Congress must be legally equivalent to the judgment of office found at common law. "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 judgment therein establishing the right, it should 701 be direct, positive and free from all doubt or ambiguity."

70/ St. Louis, Iron Mountain and Southern Railway Company v. McGee, 115 U.S. 469, 474 (1885).

said:

Also as to legislative declaration of forfeiture, the Supreme Court has

But while we think the practice of forfeiting by
legislative act is too well settled to be now disturbed,
we do not wish to be understood as saying that this
power may be arbitrarily exercised, or that the grantee
may not set up in defence any facts which he might lay
before a jury in a judicial inquisition. It would com-
port neither with the dignity of the Government nor with
the constitutional rights of the grantee, to hold that
the Government by an arbitrary act might devest the lat-
ter of his title when there had been no breach of the
conditions subsequent, or when the Government itself
had been manifestly in default in the performance of
its stipulations. The inquiry in each case is a judi-
cial one, whether there has been, upon either side, a
failure to perform, and it makes but little practical
difference whether such inquiry precedes or follows the
reentry or act of forfeiture. 71/

-

In other words, Congress may authorize a suit to be brought to ask the courts to ascertain whether existing statutory conditions have been breached and what remedy should result as was done in the 1929 legislation authorizing suit against Northern Pacific. Or Congress may declare legislatively that breach has occurred and prescribe the remedy, leaving it up to the grantee then to sue if it believes its rights were violated.

As to the language of the Nothern Pacific land grants themselves, in Northern 72/ Pacific Railway Company v. Townsend the Supreme Court interpreted the 1864 language "And be it further enacted, That the right of way through the public lands be, and the same is hereby, granted to said Northern Pacific Railroad Company, its successors and assigns, for the construction of a railroad and tele-, graph as proposed..." as conveying a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for

ཝུ

71/ Atlantic and Pacific Railroad Company v. Mingus, 165 U.S. 413, 434 (1897).

72/ 190 U.S. 267, 271 (1903).