Chapter 1 - § 1.4 • GRANTS TO RAILROADS

• Jurisdiction: Colorado

§ 1.4 • GRANTS TO RAILROADS¹⁹⁵

§ 1.4.1—Union Pacific Grants¹⁹⁶

In the 1860s, Congress passed a series of acts designed to provide a source of funding for railroad construction throughout the western states and territories (the "Pacific Railroad Acts").¹⁹⁷ The combined effect of the Pacific Railroad Acts was to grant to Union Pacific the odd-numbered sections of land along its route at a rate of ten sections per mile of railway. These sections could then be sold, mortgaged, or timbered. The grant was to take effect as the railway line was located and the sections selected by the railway company. After completion of segments of the railway, the railway company was to be issued patents for the land from the United States government upon payment of certain survey costs.

Pursuant to the Pacific Railroad Acts, once the railroad had designated the route of the road, an area sufficiently extended to include the granted sections was reserved from sale.¹⁹⁸ When the identification of the sections was complete so as to authorize the grantor to take possession, legal title to the granted land passed; an action for possession could be maintained by the company or its grantees even before the patent issued. The patent is evidence that the land was granted, but was not essential to transfer the legal right.¹⁹⁹

Thus, the location of the granted lands depended on the establishment of the railroad's route; once that route was settled, the location of the granted lands became certain.²⁰⁰ Accordingly, the sections selected were removed from public lands upon the filing of the map of the railroad route. A patent issued to a railroad company pursuant to the Pacific Railroad Acts relates back to the date of the initial right in the railway company; a delay in the issuance of the patent does not affect the railway company's rights in the interim.²⁰¹ A grant, such as one made pursuant to the Pacific Railroad Acts, functions as an appropriation that takes a tract of land out of the public domain; its validity and effect do not depend upon whether it is subject to cancellation for failure to fulfill some requirement of the grant.²⁰²

Federal acts required that certain conditions be met before a patent could issue. Until the railroad complied with those conditions, it acquired no title.²⁰³ However, the fact that a patent issued is conclusive proof that all necessary conditions were, in fact, previously fulfilled.²⁰⁴ Thus, the issuance of a patent constitutes a conclusive determination by the land department that the lands granted are nonmineral in character, and the inclusion of a mineral reservation in such patents is void.²⁰⁵

However, the right to irrigation ditches and reservoirs used in connection with water rights, which become vested under the local customs and laws²⁰⁶ prior to the issuance of the patent to the railroad, is superior to the right of the railroad under the patent.²⁰⁷

The Union Pacific railroad was constructed under the above-mentioned Pacific Railroad Acts. The right-of-way grant vested in the railroad a limited fee.²⁰⁸ A subsequent patentee (i.e., one whose patent was based upon an entry subsequent to the grant of the right of way, the filing of the map, and the construction of the railroad) acquired no interest in the land within the right of way, even though the subsequent patent did not mention or exclude the right of way.²⁰⁹

§ 1.4.2—Denver and Rio Grande Railway Grant

The Act of June 8, 1872²¹⁰ granted to the Denver and Rio Grande Railway Company the right of way over the public domain one hundred feet in width on each side of the track. The company was granted "the same rights, powers, and privileges conferred upon the Union Pacific Railroad Company" by § 3 of the Act of July 2, 1864.

§ 1.4.3—General Right of Way Act of 1875

The General Right of Way Act²¹¹ granted the right of way through the public lands of the United States, to the extent of 100 feet on each side of the central line of the railroad, to "any railroad company duly organized . . . which shall have filed with the secretary of the interior a copy of its articles of incorporation and due proofs of its organization under the same."²¹² The Act further provided:

That any railroad-company desiring to secure the benefits of this act, shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way.²¹³

This Act was in the nature of a general offer to the public, which took effect and became operative as a grant to a particular company only when it accepted its terms by a compliance with the conditions precedent prescribed in the Act itself.²¹⁴ Among the railroads claiming right-of-way grants under this Act was The Canon City and San Juan Railway Company.²¹⁵

Where a preemption entryman had made an entry and filed a declaratory statement before the railroad company located its...