This case was begun by the filing in the district court for Bernalillo county, in the territory of New Mexico, by the district attorney for the territory, of an intervening petition on behalf of the territory, praying for an order against the receiver of the Atlantic & Pacific Railroad Company requiring him to pay the amount of taxes claimed to be due upon the improvements on the right of way of said railroad company in the county of Bernalillo, and upon station houses and other improvements at seven different stations in said county. The taxes claimed were for the years 1893, 1894, and 1895.
The case was submitted upon the following agreed statement of facts:
All the locomotives, passenger coaches, express and mail cars, cabooses, box, flat, and coal cars, push cars, hand cars, and all other equipments owned, possessed, or used by said receivers or said company upon the entire line aforesaid $452,960 Track tools, and all other personal property not having its situs or domicile in some other state or territory, including office and station furniture, law library, books, stationery, supplies, and material, etc., at Albuquerque, Mitchell, Coolidge, Wingate, Gallup, and Manuelito 78,000 Personal property within the city limits of Albuquerque 200,000 Personal property within the city limits of Gallup 5,000
Subsequently the case came on to be heard, upon the intervening petition of the territory and the answer thereto [172 U.S. 171, 177] of the United States Trust Company and of the receiver. C. W. Smith, and the agreed statement of facts. Upon the hearing the judge of the district court ordered the receiver to pay to the treasurer of the county of Bernalillo the sum of $43,254.70, the amount ascertained by a special master to be the aggregate of the taxes levied upon the additional assessments and penalties. An appeal was taken from this order by the United States Trust Company, and also by the receiver, C. W. Smith, who had obtained from the court permission to take such an appeal. The order appealed from was reversed upon hearing before the supreme court of the territory, the court determining that the additional assessments placed upon the rolls were illegal and void. 47 Pac. 725. An application was made for a rehearing, which the court denied, and an appeal was taken to this court.
The sections of the act of July 27, 1866, with which we are concerned, are inserted in the margin;1 also sections 2807, 2822, 2834, and 2835 of the [172 U.S. 171, 178] of a railroad and telegraph as proposed; and the right, power and authority is hereby given to said corporation to take from the public lands adjacent to the line of said road material of earth, stone, timber, and so forth, for the construction thereof. Said way is granted to said railroad to the extent of one hundred feet in width on each side of said railroad where it may pass through the public domain, including all necessary grounds for station buildings, work shops, depots, machine shops, switches, side tracks, turn tables and water stations, and the right of way shall be exempt from taxation within the territories of the United States. ...
Sec. 3. And be it further enacted, that there be, and hereby is, granted to the Atlantic and Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores, over the route of said line of railway and its branches, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the commissioner of the general land office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections and not including the reserved numbers. ...
Sec. 5. And be it further enacted, that said Atlantic and Pacific Railroad shall be constructed in a substantial and workmanlike manner, with all the necessary draws, culverts, bridges, viaducts, crossings, turn outs, stations and watering places, and all other appurtenances, including furniture and rolling stock, equal in all respects to railroads of the first class when prepared for business, with rails of the best quality, manufactured from American iron. And a uniform gauge shall be established throughout the entire length of the road. And there shall be constructed a telegraph line, of the most substantial and approved description, to be operated along the entire line. ...
Sec. 7. And be it further enacted, that the said Atlantic and Pacific Railroad Company be, and is hereby, authorized and empowered to enter upon, purchase, take and hold any lands or premises that may be necessary and proper for the construction and working of said road not exceeding in width one hundred feet on each side of the line of its railroad, unless a greater width be required for the purpose of excavation or embankment; and also any lands or premises that may be necessary and proper for turn [172 U.S. 171, 179] outs, standing places for cars, depots, station houses, or any other structures required in the construction and working of said road. And the said company shall have the right to cut and remove trees and other material that might, by falling, encumber its roadbed, though standing or being more than two hundred feet from the line of said road. And in case the owner of such lands or premises and the said company cannot agree as to the value of the premises taken, or to be taken, for the use of said road, the value thereof shall be determined by the appraisal of three disinterested commissioners who may be appointed upon application by either party to any court of record in any of the territories in which the lands or premises to be taken lie; and said commissioners in their assessment of damages shall appraise such premises at what would have been the value thereof if the road had not been built. And upon return into court of such appraisement, and upon the payment into the same of the estimated value of the premises taken for the use and benefit of the owner thereof, said premises shall be deemed to be taken by said company, which shall thereby acquire full title to the same for the purposes aforesaid . ...
Sec. 8. And be it further enacted, that each and every grant, right and privilege herein are so made and given to and accepted by said Atlantic and Pacific Railroad Company, upon and subject to the following conditions, namely: That the said company shall commence the work on said road within two years from the approval of this act by the president, and shall complete not less than fifty miles per year after the second year, and shall construct, equip, furnish and complete the main line of the whole road by the fourth day of July, Anno Domini eighteen hundred and seventy-eight.
Sec. 9. And be it further enacted, that the United States make the several conditional grants herein, and that the said Atlantic and Pacific Railroad Company accept the same, upon the further condition that if the said company make any breach of the conditions hereof, and allow the same to continue for upwards of one year, then, in such case, at any time hereafter, the United States may do any and all acts and things which may be needful and necessary to insure a speedy completion of said road.
Sec. 10. And be it further enacted, that all people of the United States shall have the right to subscribe to the stock of the Atlantic and Pacific Railroad Company until the whole capital named in this act of incorporation is taken up by complying with the terms of subscription.
Sec. 11. And be it further enacted, that said Atlantic and Pacific Railroad, or any part thereof, shall be a post route and military road, subject to the use of the United States for postal, military, naval and all other government service, and also subject to such regulations as congress may impose restricting the charges for such government transportation.
Sec. 20. And be it further enacted, that the better to accomplish the object of this act, namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times, but particularly in time of war, the use and benefits of the same for postal, military and other purposes, congress may at any time, having due regard for the rights of said Atlantic and Pacific Railroad Company, add to, alter, amend or repeal this act. [172 U.S. 171, 180] Compiled Laws of 1884 of New Mexico, relating to taxations. 2
Frank W. Clancey, for appellant. [172 U.S. 171, 181] Victor Morawetz and C. N. Sterry, for appellee.
Mr. Justice McKENNA, after stating the facts in the foregoing language, delivered the opinion of the court.
The right of way is granted to the extent of 100 feet on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then, is meant by the phrase 'the right of way'? A mere right of passage, says appellant. Per contra, appellee contends that the fee was granted; or, if not granted, that such a tangible and corporeal property was granted that all that was attached to it became part of it and partook of its exemption from taxation.
To support its contention, appellant urges the technical meaning of the phrase 'right of way,' and claims that the primary presumption is that it was used in its technical sense. Undoubtedly that is the presumption, but such presumption must yield to an opposing context and the intention of the legislature otherwise indicated. Examining the statute, we find that whatever is granted is exactly measured as a physical thing, not as an abstract right. It is to be 200 feet wide, and to be carefully broadened so as to include grounds for the superstructures indispensable to the railroad.
The phrase 'right of way,' besides, does not necessarily mean the right of passage merely. Obviously, it may mean one thing in a grant to a natural person for private purposes, [172 U.S. 171, 182] and another thing in a grant to a railroad for public purposes, as different as the purposes and uses and necessities, respectively, are.
In Keener v. Railroad Co., 31 Fed. 128, Mr. Justice Brewer defined the words 'right of way' as follows: 'The term 'right of way' has a twofold significance. It sometimes is used to mean the mere intangible right to cross,-a right of crossing, a right of way. It is often used to otherwise indicate that strip which the railroad company appropriates for its use, and upon which it builds its roadbed.'
Mr. Justice Blatchford said in Joy v. St. Louis, 138 U.S. 44 , 11 Sup. Ct. 256: 'Now, the term 'right of way' has a twofold signification. It is sometimes used to describe a right belonging to a party,-a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their roadbed.' That is, the land itself, not a right of passage over it. So, this court in Railway Co. v. Roberts, 152 U.S. 114 , 14 Sup. Ct. 496, passing on a grant to one of the branches of the Union Pacific Railway Company of a right of way 200 feet wide, decided that it conveyed the fee. The effect of this decision is attempted to be avoided by saying that the distinction between an easement and the fee was not raised. The action was ejectment, and was brought in Kansas, and under the law of that state title could be tried in ejectment. Title was asserted by Roberts, who was plaintiff in the state court, and this court evidently considered it involved in the case. The language of Mr. Justice Field, who delivered the opinion of the court, would be unaccountable else. The difference between an easement and the fee would not have escaped his attention and that of the whole court, with the inevitable result of committing it to the consequences which might depend upon such difference.
Washburn in his work on Easements, on page 10, says: 'Whether the thing granted be an easement in land or the land itself may depend upon the nature and use of the thing granted.' To sustain this view the learned author cites Jamaica Pond Aqueduct Corp. v. Chandler, 9 Allen, 159. In that case the court said: 'Whenever a grant is made of a [172 U.S. 171, 183] right or easement in lands which fall within the class sometimes described as 'noncontinuous,'-that is, where the use of the premises by the grantee for the purpose designated in the deed will be only intermittent and occasional, and does not embrace the entire beneficial occupation and improvement of the land,-the reasonable interpretation is that an easement in the soil, and not the fee, is intended to be conveyed. Among the most prominent of this class of easements is a way.' An ordinary way, of course, the court meant, one the use of which would be noncontinuous,-only intermittent and occasional; but a way not of that character, whose use would be continuous, not occasional, and which would embrace the entire beneficial occupation and improvement of the land, might require the fee for its enjoyment,-certainly would require more than a mere right of passage. 'Unlike the use of a private way,-that is, discontinuous,-the use of land condemned by a railroad company is perpetual and continuous.' Railroad Co. v. Trimmer, 53 N. J. Law, 3, 20 Atl. 761.
But if it may not be insisted that the fee was granted, surely more than an ordinary easement was granted,-one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it, corporeal, not incorporeal, property.
In Smith v. Hall, 72 N. W. 427, the supreme court of Iowa says, speaking of the right of way of a railroad: 'The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad, which is usually a permanent improvement,-a perpetual highway of travel and commerce,-and will rarely be abandoned by nonuser. The exclusive use of the surface is acquired, the damages are assessed, on the theorty that the easements will be perpetual; so that ordinarily the fee is of little or no value unless the land is underlaid by a quarry or mine.'
Distinguishing the case from Wood v. Turnpike Co., 24 Cal. 474, in which it was held that 'a road or right of way is an incorporeal hereditament, and ejectment is maintainable only for corporeal hereditaments,' the court said: 'We think that case plainly distinguishable from this. Here there was a special grant of a right of way two hundred feet in width on each side of the road. This grant is a conclusive determination of the reasonable and necessary quantity of land to be dedicated to the public use, and it necessarily involves a right of possession in the grantee, and is inconsistent with any adverse possession of any part of the land embraced within the grant. It is true the strip of land now actually occupied by the roadbed and telegraph line may be only a small part of the four hundred feet granted, but this fact is of no consequence. The company may at some time want to use more land for side tracks, or other purposes, and it is entitled to have the land clear and unobstructed whenever it shall have occasion to do so.' The court quoted and approved the views expressed in City of Winona v. Huff, 11 Minn. 119 ( Gil. 75), that 'for a mere easement perhaps an action of ejectment would not lie; but wherever a right of entry exists, and the interest is tangible, so that possession can be delivered, an action of ejectment will lie.' The same distinction was made in Railroad Co. v. Trimmer, supra, and the court said that, if the interest of the railroad company was a naked right of way, it would constitute no such right of possession of the land itself as would sustain the action; for such a right would be an incorporeal one, upon which there could be no entry, nor could possession of it be given under an habere facias possessionem. In this case it was held that the interest taken by the railroad was not an easement.
The interest granted by the statute to the Atlantic & [172 U.S. 171, 185] Pacific Railroad Company, therefore, is real estate of corporeal quality, and the principles of such apply. One of these, and an elemental one, is that whatever is erected upon it becomes part of it. There are exceptions to the principle, but, as we are not concerned with them, we need not state them. Applications of the principle to railroads are illustrated by the decisions of this court and by those of other courts: As to rails put down against him from whom purchased (Railroad Co. v. Cowdry, 11 Wall. 459; U. S. v. New Orleans R. Co., 12 Wall. 362; Thompson v. Railroad Co., 132 U.S. 68 , 10 Sup. Ct. 29), even though the contract of purchase provided that the property should remain that of the vendor and he have a right to remove the same (Porter v. Steel Co., 122 U.S. 267 , 7 Sup. Ct. 1206, and cases cited); in determining the relation of the rails to the right of way ( Joy v. St. Louis, 138 U.S. 1 , 11 Sup. Ct. 243). In this case Mr. Justice Blatchford said: 'The track cannot be separated from the right of way, the right of way being the principal thing and the track merely an incident. A right of way is of no particular use to a railroad without a superstructure and rails; the track is a necessary incident to the enjoyment of the right of way.' See, also, Palmer v. Forbes, 23 Ill. 300; Hunt v. Iron Co., 97 Mass. 279; City of New Haven v. Fair Haven & W. R. Co ., 38 Conn. 422.
The principle has also illustrations in cases of taxation. People v. Cassity, 46 N. Y. 46; Appeal Tax Court of Baltimore City v. Baltimore Cemetery Co., 50 Md. 432; Osborne v. Humphrey, 7 Conn. 335; Parker v. Redfield, 10 Conn. 490; Lehigh Coal & Nav. Co. v. Northampton Co., 8 Watts & S. 334; Chicago, M. & St. P. Ry. Co. v. Board of Sup'rs of Crawford Co., 48 Wis. 666, 5 N. W. 3; City of Richmond v. Richmond & D. R. Co., 21 Grat. 604; Mayor, etc., of Baltimore v. Baltimore & O. R. Co., 6 Gill, 288; Osborn v. New York & N. H. R. Co., 40 Conn. 491; Richmond & D. R. Co. v. Commissioners of Alamance, 84 N. C. 504; Inhabitants of Worcester v. Western R. Corp., 4 Metc. (Mass.) 564.
It is urged, however, that the rule of construction declared in Railroad Co. v. Dennis, 116 [172 U.S. 171, 186] U. S. 665, 6 Sup. Ct. 625, and the cases there cited and approved, and repeated in Railroad Co. v. Thomas, 132 U.S. 184 , 10 Sup. Ct. 68; Railroad Co. v. Alsbrook, 146 U.S. 294 , 13 Sup. Ct. 72; Keokuk & W. R. Co. v. Missouri, 152 U.S. 306 , 14 Sup. Ct. 592; Railroad Co. v. Pendleton, 156 U.S. 667 , 15 Sup. Ct. 413; and Road Co. v. Sandford, 164, U. S. 578, 17 Sup. Ct. 198,-determines in favor of appellant's contention. That we do not think so is probably sufficiently indicated, but we cite the cases to preclude the thought that they have been overlooked, or that the rule announced by them is questioned. Indeed, we regard it as salutary, and not impaired by our decision, which simply rests on the terms of the statute.
The decree is affirmed.
[ Footnote 1 ] Section 1. ... And said corporation is hereby authorized and empowered to lay out, locate and construct, furnish, maintain and enjoy a continuous railroad and telegraph line, with the appurtenances, namely, beginning at or near the town of Springfield, in the state of Missouri, thence to the western boundary line of said state, and thence by the most eligible railroad route as shall be determined by said company to a point on the Canadian river; thence to the town of Albuquerque, on the river Del Norte, and thence, by way of the Agua Frio or other suitable pass, to the head waters of the Colorado Chiquito, and thence along the thirty-fifth parallel of latitude as near as may be found most suitable for a railway route to the Colorado river, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route to the Pacific. The said company shall have the right to construct a branch from the point at which the road strikes the Canadian river eastwardly, along the most suitable route as selected, to a point in the western boundary line of Arkansas at or near the town of Van Buren. And the said company is hereby vested with all the powers, privileges and immunities necessary to carry into effect the purposes of this act as herein set forth.
Sec. 2. And be it further enacted, that the right of way through the public lands be, and the same is hereby, granted to the said Atlantic and Pacific Railroad Company, its successors and assigns, for the construction
[ Footnote 2 ] Sec. 2807. The terms mentioned in this section are employed throughout this chapter in the sense herein defined:
First. The term 'real estate' includes all lands within the territory to which title or right to title has been acquired; all mines, minerals and quarries, in and under the land, and all rights and privileges appertaining thereto and improvements.
Second. The term 'improvements' includes all buildings, structures, fixtures and fences erected upon or fixed to land, whether title has been acquired to said land or not.
Third. The term 'personal property' includes everything which is subject of ownership, not included within the term 'real estate.'
Fourth. The term 'credit' includes every claim and demand for money, or other valuable thing, and every annuity or sums of money receivable at stated periods; but pensions from the United States and salaries, or payments expected, for services to be rendered are not included in the above term.
Sec. 2822. The assessor is required, between the first day in March and the first day in May of each year, to ascertain the names of all taxable inhabitants and all property in his county subject to taxation. To this end he shall visit each precinct in the county, and exact from each person a statement in writing, or list showing separately:
First. All property belonging to, claimed by or in the possession or under the control or man agement of such person, or any firm of which such person is a member, or any corporation of which such person is president, secretary, cashier or managing agent.
Second. The county in which such property is situated, or in which it is liable to taxation.
Third. A description by legal subdivisions, or otherwise, sufficient to identify it, of all real estate of such person and a detailed statement of his personal property, including average value of merchandise for the year ending March 1st; amount of capital employed in manufacture; number of horses, mules, cattle, sheep, swine and other animals; of carriages and vehicles of every description; jewelry, gold and silver plate; musical instruments; household furniture; moneys and credits; shares of stock of any corporation or company; and all other property not herein enumerated, with the value of the different classes of property in detail.
Sec. 2834. On or before the first Monday in March, annually, the assessor shall make out an assessment book or roll, with appropriate headlines, alphabetically arranged, in which must be listed all the property in the county subject to taxation. Such book shall contain the names of the persons to whom the property is assessed, with the several species of property and the value as hereinbefore indicated, with the columns of numbers and values as given by the person making the return, as fixed by the assessor, and as decided by the county commissioners. At the end of such book or roll all property assessed to 'unknown owners' shall be entered.
Sec. 2835. Each tract of land shall be valued and assessed separately except when one or more adjoining tracts are returned by the same person, in which case they may be valued and assessed together.