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tend to defeat the purpose of the fourth section by inviting intervenors to initiate rights made desirable by the disclosure of the land most available to the railroad company, and rights presumably hurtful to the railroad enterprise, which Congress intended to encourage and promote.

The principle applicable is fully discussed in Shepley v. Cowan, cited above, where, after discussing certain prior cases, the court said (p. 338):

“But whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases, the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right.”

The initiatory act, to which the final act of approval relates, is the filing with the Secretary of the Interior of the map of definite location. The mere surveying and staking of a route is the tentative act of the railroad. It might at will select a different route and move its stakes. But when it adopts a route definitely and then causes a map of such route to be filed in the land office of the district, in duplicate, and then filed with the Secretary of the Interior, a right is thereby initiated which, until disposed of, rightly precludes the creation of a later right and gives to the company, as prior in time, priority in right. The foundation for this doctrine of relation is so fully stated and so thoroughly vindicated by the opinion in Weyerhaeuser v. Hoyt, cited above, that we need say nothing more.

It is next said that the register did not, after a copy of the approved map of station grounds had been transmitted

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to him, mark the proper township plat and tract books, as required by the regulations of the Land Department, so as to show the station land selected. This notation on the books of the local land office is for the purpose of giving notice to future enterers. But this was not required to be done until the receipt in the Land Office of the approved plat of station grounds. That approval did not occur until December 15, 1888. Reed filed his right of preëmption October 18, 1888, a date antecedent to any possible notation. He could not, therefore, have been misled but, on the other hand, had the constructive notice which came from the then pending proceedings before the Secretary of the Interior. But aside from this, there are two answers to the contention: First, if we are right in holding that the grant vested in the company when the plat was approved, as of the date when filed, the failure of the officer in the district land office to properly mark the plat could not operate to defeat the grant; and, secondly, the railroad company having done everything which it was required by law to do, should not be affected by the negligence of the register in not doing a duty upon which the vesting of title as against the United States did not depend. If the taking effect of the grant had been made to depend upon his properly marking the plat books, there would be no room for the doctrine of relation to the initiatory step of filing the plat of selection. As that is not the case, his neglect to do something not vital to the vesting of title will not defeat the title so vested.

When the plat of station grounds was approved by the Land Department, the grounds so selected were segregated from the public lands, and it was the duty of the Land Department to withdraw the land so granted from the market. If a subordinate failed to make the proper notation by which this withdrawal would have been recorded, it was not the fault of the railroad company. In Van

Opinion of the Court.

225 U. 8.

Wyck v. Knevals, 106 U. S. 360, 367, this court said of the effect of the approval of a map of definite location:

“No further action is required of the company to establish the route. It then becomes the duty of the Secretary to withdraw the lands granted from market. But if he should neglect this duty, the neglect would not impair the rights of the company, however prejudicial it might prove to others. Its rights are not made dependent upon the issue of the Secretary's order, or upon notice of the withdrawal being given to the local land-officers.

We therefore conclude that the subsequent issue of a patent to the land entered by Reed was subject to the rights of the railroad company theretofore acquired by approval of its station ground map. The patent is not an adjudication concluding the paramount right of the company, but insofar as it included lands validly acquired theretofore, was in violation of law, and inoperative to

pass title.

Certain other questions have been touched upon in the briefs. None of them need special notice.

We find no error in the judgment of the Idaho court, and it is, therefore

Affirmed.

225 U.S.

Syllabus.

CHICAGO & ALTON RAILROAD COMPANY v.

KIRBY.

ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS.

No. 226. Argued April 25, 1912.-Decided May 27, 1912.

The implied agreement of a common carrier is to carry safely and

deliver at destination within a proper time; evidence of diligence

and no unreasonable delay excuses. A carrier who agrees to expedite assumes a more burdensome liability

and can exact a higher rate than where mere carrier's liability exists. An interstate carrier can assume an extra liability for expediting, pro

vided it makes and publishes a rate therefor and opens it to all. To agree with a particular shipper to expedite a shipment at regular

rates, where no rate has been published for special expediting, is a discrimination and as such a violation of the Elkins Act of February 19, 1903, 32 Stat. 847, c. 708, and relief on the contract will be

denied. The broad purpose of the Commerce Act to compel the establishment

of reasonable rates and uniform application will not be defeated by sanctioning special contracts giving special advantages to particular

shippers. To guarantee a particular connection and transportation by a par

ticular train amounts to giving a preference when not open to all and provided for in the published tariffs, and under the Elkins act

is an illegal discrimination. A shipper is presumed to know what the published rates are, and if

they do not contain provisions for the special service guaranteed to him he must be taken as having contracted for a rate discriminatory

in his favor. Where plaintiff sues only on a special contract for prompt delivery

by specified train, and there is no count for negligence as a carrier only, his claim for damages based on such negligence is not pre

sented, and cannot be considered, on the record. 242 Illinois, 418, reversed.

The facts, which involve the validity under the Elkins Act of a special contract for prompt delivery of goods by an interstate carrier, are stated in the opinion.

Argument for Plaintiff in Error.

225 U.S.

Mr. Garrard B. Winston and Mr. William Patton, with whom Mr. Silas H. Strawn was on the brief, for plaintiff in error:

The guarantee of special delivery upon which alone this suit was brought is an unlawful discrimination, and, therefore, void. New Haven R. R. Co. v. Int. Com. Comm., 200 U. S. 361, 391.

The case was brought in assumpsit, not upon the common-law obligation of the railroad to carry within a reasonable time without negligent delay, but upon a special contract of guarantee to connect Kirby's car of horses with the “Horse Special” of the Michigan Central Railroad Company. Armour Packing Co. v. United States, 209 U. S. 56, 80.

The contract set out in the declaration being for a special service not noted in, but on the contrary prohibited by, the published tariffs, even if made, was void, as being in violation of the sections of the Interstate Commerce Act prohibiting discrimination, and no recovery can be had thereon. Tex. & Pac. Ry. Co. v. Cotton Oil Co., 204 U. S. 439.

No service, privilege or facility may be extended to a shipper by a carrier which is not provided for and set out in the filed and published tariff.

The facility and service of specially expedited transportation, or transportation by a particular connection or train, is such that it requries publication to be lawful. Barnes on Interstate Transp., § 415; Elliott on R. R. (2d ed.), § 1684; Shiel v. I. C. R. Co., 12 I. C. C. Rep. 211; Diamond M. Co. v. B. & M. R. Co., 9 I. C. C. Rep. 311; St. L., H. & G. Co. v. M. &0. R. Co., 11 I. C. C. Rep. 90; Re Rates and Practices of M. & O. R., 9 I. C. C. Rep. 373, 380; Re Rates on Cotton, 8 I. C. C. Rep. 121; Com. Club of Duluth v. N. P. R. Co., 13 I. C. C. Rep. 288; Victor Fuel Co. v. A., T. & S. F. R. Co., 14 I. C. C. Rep. 119; K. C. Hay Co. v: St. L. & S. F. R. Co., 14 I. C. C. Rep.

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