» RAILROAD RIGHT-OF-WAY IN THE AMERICAN WEST, from page 9 intended to exploit that technology in the subjugation of the vast and remote expanses stretching to the Pacic Ocean. Even before and during the Civil War the value of the rapid new form of transportation provided by railroads, for both military and national expansion purposes, became clear to leaders at the federal level. During the 1850s and 1860s the US Congress issued various railroad grants, most notably the Pacic Railroad Act of 1862, amended in 1864, under which the creation of RR R/W upon the public domain was authorized, and which also bestowed title to countless sections of that land, although much of it was as yet unsurveyed, upon numerous railroads. In hindsight, the wisdom of such grants may be questionable, and certainly as we now know, their lack of linguistic specicity was destined to precipitate untold numbers of controversies, but the grants were clearly not absolute in nature, and quite signicantly, as noted by the CCOA, mineral rights were expressly excluded and reserved unto the US. Even at the time of the earliest grants, the true or exact nature of the legal interest embodied and conveyed in those grants was at least somewhat unclear, and there is scant if any evidence that any deep thought or concern was given to that matter. National urgency was present and seemingly boundless opportunities beckoned, so legal technicalities were denitely not the foremost considerations of the day, thus the railroad work went furiously forward, based at least in part upon the unsound notion that the railroads had been legally endowed with full control over all RR R/W. During the 1870s however, serious concerns relating to the land rights associated with RR R/W began to arise, in eect the tremendous power of the railroads became clear to all, and settlers began to realize that they were eectively competing with the railroads for valuable lands, so many of them came to view the railroads as enemies. e political impetus generated by this swing in the public perception of railroads motivated the General Right-of-Way Act of 1875, widely regarded as the most important nineteenth century Act of it’s kind, which was enacted with the objective of limiting such grants going forward. Aside from less relevant matters, the Act of 1875, as well as many subsequent Acts which were modeled upon it and were enacted in the same spirit, claried that all RR R/W created thereaer upon the public domain was to be granted to the railroads only as an easement interest, while the fee interest in the lands bearing the railroads was retained by the US, for subsequent disposal to settlers. Reams have been devoted to railroad title controversies set in every western state, and the resultant litigation and legislation that came to pass during the late 1800s and early 1900s, yet much more still could be written on that subject, particularly on the matter of railroad abandonment and it’s legal consequences, but that separate pathway leads to the aforementioned Brandt case. For the sake of brevity here, we will The Oregon Surveyor | Vol. 38, No. 3 10 observe only, as did the CCOA, that during the rst century of railroad construction and development in this country the US Congress “passed laws governing subsurface oil and gas pipelines through federal lands, providing for annual rental payments to the government” while pointing out that such federal action was fully consistent with the federal retention of existing subsurface interests such as mineral rights, under all prior federal laws pertaining to RR R/W. As all experienced land rights professionals know, the intent of a grantor always represents a powerful factor, whenever disputes over land rights arise, and as this case richly demonstrates, when the US is the grantor that rule is only amplied in signicance. Having thus set the stage for the players, we next turn to the portion of this saga outlining the acts of the parties themselves, commencing with the relevant acts of their predecessors, in whose shoes the present litigants stand. In the relevant areas, Southern Pacic was a predecessor of UP, and was evidently the holder of the RR R/W at issue, operating trains thereupon, during the 1950s. SF already had an existing corporate relationship with Southern Pacic, the two entities were legally sisters, subsidiaries or branches of the same organization, functioning as partners, and presumably some SF facilities already existed within the relevant RR R/W, so their relationship was genuinely close and mutually benecial at the time of it’s advent. With the national economy humming along during the post war boom, and the need for further development of rail and pipeline delivery services plain to see, the original pipeline easement and rental agreement, which would later prove to be so problematic, was forged. Also during the 1950s however, trouble was already brewing elsewhere for UP, as a federal case originating in Wyoming, and quite ironically involving UP itself, played out (US v UP - 353 US 112) in which the Supreme Court of the United States (SCOTUS) claried that the land rights held by railroads under all federal grants were limited in scope to those uses which could be properly characterized as serving railroad purposes. As of that date, it appears at least possible that no issues or violations had arisen as a consequence of the land use being made by SF in California within the RR R/W, since the two entities were in legal eect unied, so the operations of either one were closely tied in a mutually contributory manner to the operations of the other. e seeds of future diculty for UP had already been judicially planted however, as the myth that RR R/W typically constitutes a fee interest had just been conclusively exploded. e ensuing period of three decades, starting in the early 1950s, apparently saw a continuation of the primarily amicable and harmonious relationship between the pipeline operations and the rail operations, and presumably both expansion of services and mutual protability marked this period, leading to an unspecied number of additional easements being granted to SF. rough a series of corporate machinations however, the close relationship of the rail and
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