Messrs. William T. Beck, W. C. Keegin, and A. M. Craven for plaintiff in error.
[219 U.S. 166, 168] Mr. Thomas R. Benton for defendants in error.
Mr. Justice Day delivered the opinion of the court:
In this case the Spokane & British Columbia Railway Company, plaintiff in error, began an action in the superior court of the state of Washington for Ferry county, to enjoin the Washington & Great Northern Railway Company, the Washington Improvement & Development Company, and others, from interfering with the use of a certain right of way for railway purposes through the Colville Indian Reservation in the state of Washington, which, it was alleged, belonged to the plaintiff. The plaintiff had judgment in its favor in the superior court. Upon proceedings in error, the judgment was reversed and a judgment entered in favor of the present defendants in error, defendants below. 49 Wash. 280, 95 Pac. 64. To that judgment a writ of error was sued out from this court.
The case presents a conflict between the right of way of the Spokane & British Columbia Railway Company [219 U.S. 166, 170] and a right of way theretofore granted by the United States to the Washington Improvement & Development Company, grantor of the Washington & Great Northern Railway Company. The case is stated in the supreme court of Washington as follows:
From this statement it is apparent that the case turns upon the rights of the defendants in error, the Washington & Great Northern Railway Company, in the right of way, as the successor of the Washington Improvement & Development Company, in view of the facts just stated. [219 U.S. 166, 172] The grant to the Washington Improvement & Development Company, to it and its assigns, by the act of Congress of June 4, 1898 (30 Stat. at L. 430, chap. 377), was of the right of way for its railway, telegraph, and telephone lines in and through the Colville Indian Reservation in the state of Washington, and its language is:
A description of the right of way is inserted, and in 3 of the act it is provided that maps of the route of its located lines through the reservation shall be filed in the office of the Secretary of the Interior, and after the filing of the maps no claim for a subsequent settlement and improvement upon the right of way shown by said maps shall be valid as against said company; the act then cites the proviso already quoted from the opinion of the supreme court of Washington, requiring the company to commence grading the located lines within six months 'or such location shall be void.'
Section 4 authorized the company to enter upon the reservation for the purpose of surveying and locating the line.
Section 5 provided that the right therein granted should be forfeited by said company unless at least 25 miles of said railroad shall be constructed through the said reservation withing two years after the passage of the act.
As found by the supreme court of Washington, the grading was not begun within the six months provided, nor were 25 miles of said railroad constructed through the reservation within two years after the passage of the act, as provided in 5. [219 U.S. 166, 173] Subsequently the maps of location of the plaintiff in error were approved by the Secretary of the Interior, and the contention is on its behalf that the rights of the defendant in error, as successor of the original grantee, had terminated because of the failure to keep the conditions of the granting act. On the part of the defendant in error it is contended that, inasmuch as the grant was in proesenti, and there has been no subsequent act of Congress or direct proceeding in behalf of the United States to forfeit the title of the grantee, its rights are unimpaired and superior in the conflicting right of way to those of the plaintiff in error.
The supreme court of Washington, reveiwing the decisions in this court, was of opinion that the rights granted in the act of June 4, 1898, had not been forfeited, and inured to the benefit of the Washington & Great Northern Railway Company as successor of the Washington Improvement & Development Company.
This court has had frequent occasion to consider acts of this character, and a brief review of its decisions will, we think establish the rule to be applied. The leading case is Schulenberg v. Harriman, 21 Wall. 44, 22 L. ed. 551. In that case there was an act of Congress making a grant of lands, conditioned that all lands remaining unsold after ten years should revert to the United States. It was there held that notwithstanding this condition, no one could take advantage of its nonperformance except the grantor or his heirs, or the successors of the grantor, if the grant proceeded from an artificial person, and that unless such persons asserted the right to forfeiture, the title remained unimpaired in the grantee; and it was further held that if the grant be a public one, the right to forfeiture must be asserted by judicial proceedings authorized by law, the equivalent of an inquest of office at common law, or there must be some legislative assertion of ownership for the breach of the condition. This doctrine was approved [219 U.S. 166, 174] in Grinnell v. Chicago, R. I. & P. R. Co. 103 U.S. 739 , 26 L. ed. 456; Van Wyck v. Knevals, 106 U.S. 360 , 27 L. ed. 201, 1 Sup. Ct. Rep. 336; and St. Louis I. M. & S. R. Co. v. McGee, 115 U.S. 469 , 29 L. ed. 446, 6 Sup. Ct. Rep. 123.
In New York Indians v. United States, 170 U.S. 1 , 42 L. ed. 927, 18 Sup. Ct. Rep. 531, this court, after referring to Schulenberg v. Harriman, 21 Wall. 44, 22 L. ed. 551, said:
In Bybee v. Oregon & C. R. Co. 139 U.S. 663 , 35 L. ed. 305, 11 Sup. Ct. Rep. 641, the grant provided that not only the lands should revert to the United States for failure to perform the conditions, but the grant itself should be null and void for noncompliance with the conditions. It was nevertheless held that the conditions were subsequent, and the title could not be forfeited except upon proper proceedings by the government, judicial in their character, or an act of Congress, competent for that purpose.
Applying the principles of those cases to the grant in question, we find that in its terms the granting clause is clear and distinct, and conveys an estate in proesenti. There is nothing in the conditions inconsistent with the vesting of the title, or requiring things to be done before the title can be vested. The company is required to commence grading its located line within six months, and the grant is to be forfeited unless at least 25 miles shall be constructed within two years after the passage of the act. These things may be done after the vesting of the title, and do not necessarily precede the vesting of the estate.
Reading this grant in the light of the former adjudications of this court, we think it must be held that it was [219 U.S. 166, 175] the intention of Congress that the grantee should perform these conditions after acquiring title and taking possession, and therefore that the conditions were subsequent. This being true, there could be no forfeiture on the part of the United States without some appropriate judicial or legislative action, which it is not claimed was taken in this case. We think the supreme court of the state of Washington was right in its construction of the grant under the circumstances shown.
The contention that the grant was abandoned by the grantee, or that the circumstances show estoppel to make claim under it, do not present questions reviewable here. The state court having, in our veiw, properly decided the Federal question made, upon which this court alone could take jurisdiction, its judgment must be affirmed.