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Opinion of the Court.

land in controversy; was not authorized to take possession of the said premises, or to locate a line of railroad thereon; and that the said survey on October 28, 1886, conferred no right whatever on it, the plaintiff, as against the defendant, the Coeur d'Alene Railway and Navigation Company.

The argument on behalf of the plaintiff is that when, on December 22, 1886, the Washington and Idaho Railroad Company had filed its articles of incorporation and proof of organization in the office of the Secretary of Interior at Washington, D. C., it had a right to adopt the survey previously made by Burrage, as and for the location of its route under the general right-of-way act, and that when it so adopted said survey it related back to the date when the survey was made.

We are unable to accept such a view of the law, but concur in the conclusion of the court below that the language of the act of Congress, under which both parties claim, wherein it provides that "the right of way through the public lands of the United States is hereby granted to any railroad company duly authorized under the laws of any State or Territory, which shall file with the Secretary of the Interior a copy of its articles of incorporation and due proofs of its organization under the same, to the extent of a hundred feet on each side of the central line of said road," plainly means that no corporation can acquire a right of way upon any line not described in its charter or in its articles of incorporation; that it necessarily follows that no initiatory step can be taken to secure such right of way by the survey upon the ground or otherwise; that until the power to build the road upon the surveyed line was in a proper manner assumed by or conferred upon the plaintiff company, its acts of making surveys were of no avail; and that, so far as the conflicting rights of the parties to this controversy are concerned, the status of the plaintiff is the same as if its survey of October 28, 1886, had not been made.

The case of New Brighton Railroad Co. v. Pittsburg Railroad Co., 105 Penn. St. 14, was, like the present, one of a contest between two railroad companies for a right of way, and where the effect of a survey of a line before the legal organization of the company had to be considered; and it was held that

Opinion of the Court.

surveying, locating, and designating, by proper marks, the property to be taken for railroad purposes, cannot be done by the projectors of a railroad company before its incorporation, but only by the president and directors of a duly incorporated company, their engineers and employés, and that an unauthorized preliminary survey, though well marked by a line of stakes indicating the location of a railroad, cannot be regarded as sufficient notice of a prior legal appropriation of the land, nor will the subsequent adoption of such survey by the company, after its incorporation, give it any right to the location as against another company, which had surveyed and taken possession of the land before the first-mentioned company had passed the resolution of adoption.

The cases cited by the plaintiff in error do not sustain their position.

Morris & Essex Railroad v. Blair, 9 N. J. Eq. 635, was a case of a contest for a right of way between two railroad companies, both duly incorporated, and it was held that the prior right attached to the company which first actually surveyed and adopted a route and filed their survey in the office of the Secretary of State, and also that the mere experimental surveying of a route will not confer any vested or legal right until it shall have been adopted.

The Supreme Court of Iowa, in Lower v. Chicago, Burlington &c. Railway, 59 Iowa, 563, held that though a railroad company may not for some reason have the legal right to condemn a right of way for a lateral line, it may cause another company of its own stockholders to be so organized as to have that power, and that when such subsidiary company has condemned the right of way, it may lease its line to the former company, and in this there will be no fraud upon those whose lands have been condemned.

It is not perceived that these decisions, accepting them as sound, disclose any error in the ruling of the court below.

It is further made to appear, by the eleventh finding, that "from the time of making the said survey by Burrage over the land in controversy on the 28th day of October, 1886, until long after the completion of the railroad, side tracks, and

Counsel for Parties.

depot of the defendant, the Cœur d'Alene Railway and Navigation Company, upon the ground in controversy, neither the plaintiff, nor any person for it, ever made any other survey, or did any other act upon the premises, or took any possession thereof."

While it may be that such a finding, standing alone, would not make out a case of estoppel, of which the defendant could avail itself in an action of law, it is entitled to consideration when we are asked to adopt a construction of the act of Congress which would enable the plaintiff company to take and enjoy the right of way enhanced in value by the improvements put thereon by the defendant. When a court of law is construing an instrument, whether a public law or a private contract, it is legitimate, if two constructions are fairly possible, to adopt that one which equity would favor.

The decree of the court below is

Affirmed.

WASHINGTON AND IDAHO RAILROAD COMPANY

v. CŒŒUR D'ALENE RAILWAY AND NAVIGATION COMPANY.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF IDAHO.

No. 4. Argued November 13, 14, 1895. - -Decided December 2, 1895.

Affirmed upon the authority of Washington & Idaho Railroad Company v. Coeur d'Alene Railway & Navigation Company, ante, 77.

THIS case was argued with the preceding case. The facts are stated in the opinion.

Mr. A. A. Hoehling, Jr., and Mr. Samuel Shellabarger for appellant. Mr. J. F. Dillon, Mr. W. W. Cotton, and Mr. J. M. Wilson were on their brief.

Mr. A. B. Browne for appellee. Mr. A. H. Garland filed a brief for same.

Opinion of the Court.

MR. JUSTICE SHIRAS delivered the opinion of the court.

This was a suit in equity brought by the Washington and Idaho Railroad Company, a corporation of the Territory of Washington, in the District Court of the First Judicial District of the Territory of Idaho, against the Cœur d'Alene Railway and Navigation Company, a corporation of the Territory of Montana, and George P. Jones. An inspection of the record discloses that the matter in dispute was a right of way two hundred feet in width and about a mile in length, situated in Shoshone County in the Territory of Idaho, and which was claimed by both railroad companies. By a bill in equity the plaintiff company sought to have its title to said strip declared paramount, and to restrain the defendant company from trespassing upon the same, and from interfering with the plaintiff's peaceful possession. The result of the suit, in the District Court of the Territory of Idaho, was a final decree adjudging that the Coeur d'Alene Railway and Navigation Company was the owner and entitled to the possession of the land in question. From this decree an appeal was taken by the plaintiff company to the Supreme court of the Territory of Idaho. That court was of opinion that, as it appeared by the findings of fact in the District Court, at the time of the trial, the defendant had completed its line of road over the disputed ground and was in the actual use and occupation thereof, the plaintiff had an adequate remedy at law, and that the District Court, while justified in refusing the injunction prayed for, should have dismissed the bill and left the plaintiff to its action at law, and, as thus modified, the judgment of the District Court was affirmed.

From this judgment of the Supreme Court of the Territory an appeal was taken to this court.

We do not find it necessary to enter into a discussion of the merits of the case, nor to decide whether a court of equity could take jurisdiction of such a controversy, because we learn, from our own records, that the Washington and Idaho Railroad Company, without awaiting the result of the present appeal, but acting upon the view of the Supreme Court of the

Statement of the Case.

Territory, brought an action at law against the Coeur d'Alene Railway and Navigation Company in the District Court of the Territory, which action was, after the admission of Idaho as a State, transferred to and tried in the Circuit Court of the United States. The result of that action was a final judgment in favor of the defendant company, and this judgment, having been taken to the Circuit Court of Appeals for the Ninth Circuit, was there affirmed, and the judgment of the latter court has at the present term been by this court affirmed. See Washington and Idaho Railroad Co. v. Cœur d'Alene Railway and Navigation Co. and Northern Pacific Railroad Co., 160 U. S. 77.

The judgment of the Supreme Court of the Territory of Idaho is accordingly

Affirmed.

WASHINGTON AND IDAHO RAILROAD COMPANY v. OSBORN.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF IDAHO.

No. 5. Argued November 18, 14, 1895. - Decided December 2, 1895.

A railroad company whose road is laid out so as, under the provisions of the act of March 3, 1875, 18 Stat. 482, entitled "An act granting to railroads the right of way through the public lands of the United States," to cross a part of such public unsurveyed domain, cannot take part thereof in the actual possession and occupation of a settler, who is entitled to claim a preemption right thereto when the proper time shall come, and who has made improvements on the land so occupied by him, without making proper compensation therefor as may be provided by law.

THE Washington and Idaho Railroad Company, a corporation organized under the laws of Washington Territory, on September 18, 1888, filed a bill of complaint in the District Court of the First Judicial District of the Territory of Idaho against S. V. William Osborn, asserting a right to construct and maintain a railroad across lands in possession of the de

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