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Opinion of the Court.

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render the law providing for the taking of the land invalid. Shoemaker v. United States, 147 U. S. 282, 302. Mr. Justice Shiras, in delivering the opinion of the court in the case cited, said: "The validity of the law is further challenged because the aggregate amount to be expended in the purchase of land for the park is limited to the amount of $1,200,000. It is said that this is equivalent to condemning the lands and fixing their value by arbitrary enactment. But a glance at the act shows that the property holders are not affected by the limitation. The value of the land is to be agreed upon, or, in the absence of agreement, is to be found by appraisers to be appointed by the court. The intention expressed by Congress, not to go beyond a certain expenditure, cannot be deemed a direction to the appraisers to keep within any given limit in valuing any particular piece of property. It is not unusual for Congress, in making appropriations for the erection of public buildings, including the purchase of sites, to name a sum beyond which expenditure shall not be made, but nobody ever thought that such a limitation had anything to do with what the owners of property should have a right to receive in case proceedings to condemn had to be resorted to." If it appeared by proof that the appropriation for the purpose indicated had been exhausted before the proceedings had been commenced to take the land in controversy, or during the hearing, then the provision in the joint resolution directing that no obligation or liability upon the part of the government should be incurred or any expenditure made except out of the appropriations already made and to be made during the then session of Congress, would give rise to a very serious question. It is not now presented. Congress has the power, even now, to appropriate moneys for this purpose in addition to that which it appropriated in the two acts of 1893 and 1894. This court cannot, therefore, upon the record as it stands give judgment for the land owner on the ground that the appropriation for the land has been exhausted in other ways, and that Congress prohibited the incurring of any obligation to a greater extent than the moneys then appropriated.

Third. Another objection taken in the court below, though

Opinion of the Court.

not decided by that court, but which counsel for defendant in error now urges as an additional ground for the affirmance of the judgment, is that the land proposed to be taken in this proceeding was already devoted to another public use, to wit, that of the railroad company, and that it does not appear that it was the intention of Congress to take land which was devoted to another public use. The defendant in error concedes what is without doubt true, that this is a question of intention simply; the power of Congress to take land devoted to one public use for another and a different public use upon making just compensation cannot be disputed. Upon looking at the two acts of Congress and the joint resolution of June 6, 1894, above referred to, in the latter of which it is stated, "There is imminent danger that portions of said battlefield may be irreparably defaced by the construction of a railway over the same, thereby making impracticable the execution of the provisions of the act of March 3, 1893," we think it is plainly apparent that Congress did intend to take this very land, occupied and used by this company for its railroad.

Further elaboration is unnecessary. It is so plain to our minds that extended argument would be unprofitable.

Fourth. It is also objected that the exception below is valid, wherein it is stated that all the land of the railroad company ought to be taken, if any were to be taken. The use for which the land is to be taken having been determined to be a public use, the quantity which should be taken is a legislative and not a judicial question. Shoemaker v. United States, 147 U. S. 282, 298. As to the effect of the taking upon the land remaining, that is more a question of the amount of compensation. If the part taken by the government is essential to enable the railroad corporation to perform its functions, or if the value of the remaining property is impaired, such facts might enter into the question of the amount of the compensation to be awarded. Monongahela Nav. Co. v. United States, 148 U. S. 312, 333, 334.

Fifth. It is also objected that the petition does not allege that the Secretary of War has decided it to be necessary to take this land. A perusal of the petition shows that the

Opinion of the Court.

allegation therein contained upon this subject is not very clear. It might possibly be regarded as sufficiently alleged in an argumentative kind of way, but it certainly is not as plainly alleged as it ought to be. The petition, however, can be easily amended on application to the court below before further proceedings are taken.

This, we think, completes the review of the material questions presented by the record. The first and important question in regard to whether the proposed use is public or not, having been determined in favor of the United States, we are not disposed to take any very technical view of the other questions which might be subject to amendment or to further proof upon the hearing below.

The judgment of the Circuit Court in each case must be reversed, and the record remitted to that court with directions to grant a new trial in each.

SIOUX CITY AND ST. PAUL RAILROAD COMPANY v. UNITED STATES.

PETITION FOR REHEARING.

Received December 17, 1895. - Decided January 13, 1896.

The court adheres to its opinion and decision in this case, 159 U. S. 349, and corrects an error in statement in it, which does not, in any degree, affect the conclusions which were there reached.

THE case is stated in the opinion,

Mr. J. H. Swan and Mr. George B. Young for petitioners.

MR. JUSTICE HARLAN delivered the opinion of the court.

In the opinion of this court, 159 U. S. 349, 367, it was said: "Upon examination of the certified list of lands, based on the

Opinion of the Court.

diagram originally furnished by the railroad company to the Secretary of the Interior and transmitted by the General Land Office to the local land office on the 26th of August, 1867, it is found that the actual area of the odd-numbered sections within the place limits of the Sioux City road, excluding oddnumbered sections within the conflicting place limits of the two roads, contained only 247,476.85 acres; and the actual area within the conflicting place limits of the two roads, according to the same diagram, was 70,705.29 acres." This was not strictly correct. The diagram referred to was prepared in the Department of the Interior, but it was based on the original survey made and furnished by the railroad company. Other sentences in the same connection are subject to the like criticism. But this inaccuracy of statement does not affect in any degree the grounds upon which the court reached the conclusion that the diagram of 1867 should not control, and that the measurement and diagram of 1887 should be taken as the basis for determining the area of the odd-numbered sections within place limits.

None of the other matters mentioned in the petition for a rehearing require special notice. The views therein presented were fully considered by the court before the original opinion was filed. The point now pressed by counsel as to errors in the matter of addition is immaterial, even if it be well taken; for whatever the excess in the quantity of land received by the railroad company, the result, in the present case, will be the same as stated in the opinion, namely, that the railroad company is not entitled to any of the lands here in dispute, whatever may be the aggregate quantity of acres.

The application for rehearing is

Denied.

Statement of the Case.

MISSOURI v. IOWA.

ORIGINAL.

No. 10. Original. Submitted December 17, 1895. Decided February 8, 1896.

At the request of the parties, this court, after deciding where is the true and proper southern boundary line of the State of Iowa, appoints a commission to find and remark the same with proper and durable monuments.

THE State of Missouri, through its Attorney General, filed in this court in vacation its bill, in which, after setting forth the former proceedings had herein for the determination of the boundary line between it and the State of Iowa, which are reported in 6 How. 659, and 10 How. 1, it was further said:

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Complainant states that it is highly important to the States of Iowa and Missouri that the question of boundary should be speedily and finally settled; that heretofore the peace of the people of the States of Missouri and Iowa, especially in the county of Mercer, in the former, and the county of Decatur, in the latter, have been seriously disturbed in consequence of frequent conflicts of jurisdiction arising from differences of opinion as to the location of the said state line between said counties.

"Complainant further states that the State of Missouri has no adequate relief at law, and, as the controversy herein involves questions of jurisdiction and sovereignty, it is respectfully prayed that the State of Iowa may be made a defendant in this proceeding, and that she may be permitted to answer the matters and things herein set forth, and upon a final hearing that the northern boundary line of the State of Missouri, it being the boundary line between the complainant and defendant, be by the order and decree of this court ascertained and established; that the rights of possession, jurisdiction, and sovereignty of the State of Missouri to all the territory south of the line heretofore marked and run out by said J. C. Sullivan

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