[239 U.S. 44, 45] Messrs. Waldemar Van Cott, E. M. Allison, Jr., and William D. Riter for plaintiff in error.
No appearance for defendants in error.
Mr. Justice Van Devanter delivered the opinion of the court:
This was a suit to quiet the title to a strip of land claimed and used by the plaintiff as a railroad right of way under the act of March 3, 1875, chap. 152, 18 Stat. at L. 482, Comp. Stat. 1913, 4921, and to which the defendants asserted title under a patent for a placer mining claim. At the trial the facts were specially found and judgment for the defendants was entered upon the findings. In reviewing that judgment, the supreme [239 U.S. 44, 46] court of the state, accepting the findings below, held that the plaintiff, in virtue of proceedings had in the Land Department under the right-of-way act while the land was yet public, acquired a right of way 200 feet wide through the lands afterwards embranced in the mining claim, and that the defendants' title under the placer patent was subject to this right of way, and thereupon reversed the judgment and remanded the case with a direction to 'enter a judgment awarding to the plaintiff title to a right of way over the lands in question 100 feet wide on each side of the center of the track.' 38 Utah, 113, 110 Pac. 868. Acting upon this direction, the trial court vacated its prior judgment and entered another, adjudging the plaintiff to be 'the owner of a right of way' through the mining claim 100 feet wide on each side of the center line of the railroad, declaring the plaintiff's title to such right of way good and valid, and enjoining the defendants from asserting any claim whatever to the premises, or any part thereof, adverse to the plaintiff's 'said right of way.' The plaintiff again appealed, insisting that it was only adjudged to be the owner of a right of way when, according to the true effect of the right-of-way act, it had a title in fee simple, as was asserted in its complaint. But the judgment was affirmed, the court saying (39 Utah, 236, 115 Pac. 967):
Manifestly the first judgment was final within the meaning of Judicial Code, 237 [36 Stat. at L. 1156, chap. 231, Comp. Stat. 1913, 1214]. It disposed of the whole case on the merits, directed what judgment should be entered, and left nothing to the judicial discretion of the trial court. Tippecanoe County v. Lucas, 93 U.S. 108 , 23 L. ed. 822; Bostwick v. Brinkerhoff, 106 U.S. 3 , 27 L. ed. 73, 1 Sup. Ct. Rep. 15; Mower v. Fletcher, 114 U.S. 127 , 29 L. ed. 117, 5 Sup. Ct. Rep. 799; Chesapeake & P. Teleph. Co. v. Manning, 186 U.S. 238 , 46 L. ed. 1144, 22 Sup. Ct. Rep. 881. And as the question sought to be presented arises upon the first judgment,-it being final in the sense of 237,-it is apparent that the writ of error addressed to the second judgment presents nothing reviewable here. See Northern P. R. Co. v. Ellis, 144 U.S. 458 , 36 L. ed. 504, 12 Sup. Ct. Rep. 724; Great Western Teleg. Co. v. Burnham, 162 U.S. 339 , 40 L. ed. 991, 16 Sup. Ct. Rep. 850; Chesapeake & O. R. Co. v. McCabe, 213 U.S. 207, 214 , 53 S. L. ed. 765, 768, 29 Sup. Ct. Rep. 430.
What the act relied upon grants to a railroad company complying with its requirements is spoken of throughout the act as a 'right of way;' and by way of qualifying future disposals of lands to which such a right has attached, the act declares that 'all such lands over which such right of way shall pass shall be disposed of subject to such right of way.'
The right of way granted by this and similar acts is neither a mere easement, nor a fee simple absolute, but a limited fee, made on an implied condition of reverter in the event that the company ceases to use or retain the land for the purposes for which it is granted, and carries with it the incidents and remedies usually attending the fee. New Mexico v. United States Trust Co. 172 U.S. 171, 183 , 43 S. L. ed. 407, 411, 19 Sup. Ct. Rep. 128; Northern P. R. Co. v. Townsend, 190 U.S. 267, 271 , 47 S. L. ed. 1044, 1046, 23 Sup. Ct. Rep. 671; United States v. Michigan, 190 U.S. 379, 398 , 47 S. L. ed. 1103, 1110, 23 Sup. Ct. Rep. 742; Western U. Teleg. Co. v. Pennsylvania R. Co. 195 U.S. 540 , [239 U.S. 44, 48] 570, 49 L. ed. 312, 323, 25 Sup. Ct. Rep. 133, 1 Ann. Cas. 517. The judgment under review does not in words so characterize the plaintiff's right, nor was it essential that it should do so. It describes the right in the exact terms of the right-of-way act, and evidently uses those terms with the same meaning they have in the act. So interpreting the judgment, as plainly must be done, we think it accords to the plaintiff all to which it is entitled under the act.
In No. 4, judgment affirmed.
In No. 5, writ of error dismissed.