THE DECISIONS OF THE Supreme Court of the United States, AT OCTOBER TERM, 1893. [Authenticated copy of opinion record strictly followed, except as to such reference words and figures as are inclosed in brackets.] UNITED STATES, Piff. in Err., v. DENVER & RIO GRANDE RAILWAY (See S. C. Reporter's ed. 1-15.) Railway company, when entitled to benefits of the Act of March 3, 1875-right to take timber from public lands. Messrs. Lawrence Maxwell, Jr., Solic itor Gen., and Wm. A. Maury, Assist. Atty. Gen., for plaintiff in error. Messrs. Edward O. Wolcott and Joel F. Vaile for defendants in error. Mr. Justice Jackson delivered the opinion of the court: The record in this case presents for our con. sideration and determination the following questions: First, is the defendant,* a [3 1. The Denver & Rio Grande Railway Com-railway company, duly chartered and organpany, duly chartered and organized in 1870 under the laws of the territory of Colorado, for the purpose of locating, constructing, and operating an extensive system of railway and telegraph lines is entitled to the benefits of the Act of Congress approved March 3, 1875 (18 Stat. at L. 482) entitled "An Act Granting to Railroads the Right of Way through the Public Lands of the United States." 2. The Denver & Rio Grande Railway Company was authorized under the Act of March 3, 1875, to take from the public lands adjacent to the line of the railroad, timber or other material necessary for the construction of its roadway, station buildings, depots, machine shops, side tracks, turnouts, water stations, etc., and use the same on portions of its line not adjacent to the place from which such timber or material was taken. [No. 8.] Argued Oct. 10, 1893. Decided Oct. 23, 1893. IN ERROR to the Circuit Court of the United States for the District of Colorado, to review a judgment of that court, modifying and partially reversing a judgment of the U. S. District Court of said district in favor of the United States, plaintiff, against the Denver & Rio Grande Railroad Company, for the value of timber taken by the defendant from the public domain. Affirmed. The facts are stated in the opinion. NOTE.-As to land grants to railroads, see note to Kansas Pac. R. Co. v. Atchison, T. & S. F. R. Co. 28: 794. ized in 1870 under the laws of the territory of Colorado, for the purpose of locating, constructing, and operating an extensive system of railway and telegraph lines, entitled to the benefits of the Act of Congress approved March 3, 1875 (18 Stat. at L. 482) entitled "An Act Granting to Railroads the Right of Way Through the Public Lands of the United States;" and, second, if so entitled, is the defendant authorized or permitted, under a proper construction of said Act, to take from the public lands adjacent to the line of the railroad, timber or other material necessary for the construction of its roadway, station buildings, depots, machine shops, side tracks, turnouts, water stations, etc., and use the same on portions of its line remote from the place from which such timber or material may be taken; or does the Act limit the railroad company to timber or other material found in the vicinity of the place where the work of construction is going on? These questions, constituting the matters in controversy between the parties, arise in this way: The plaintiffs in error, who were the plaintiffs below, brought their suit against the defendant in the District Court of the United States for the District of Colorado, to recover the value of timber alleged to have been taken by the defendant from the public domain between October 1, 1882, and November 1, 1883. The defendant, by its answer, interposed a general denial of the allegations of the complaint, and for a further defense justified the taking of the timber under the special Act of Congress approved June 8, 1872 (17 Stat. at L. 339) and under the general Act of March 3, 1875. The case was tried upon the following agreed state ment of facts: "1. That the timber sued for in said action was cut by William A. Eckerly & Company, as agents for the Denver & Rio Grande Railway Company, and delivered to said railway company. "2. That the attached statement correctly shows the kinds and amounts of timber so cut and delivered, and also shows the time of cutting, the purposes for which it was cut and used, and the prices paid for cutting and delivering the same. trict of Colorado, which modified the judg ment of the district court by charging the defendant first, with the sum of $1000, as the value of the timber used for repairs on that portion of the road east of Cebolla, Colorado, which had been completed prior to June 8, 1882; and for the further sum of $1229. 45, as the value of the timber shipped by the defendant to the Denver & Rio Grande Western Railway Company to be used in the territory of Utah; but as to the rest of the timber used on portions of the road west of Montrose, out to Grand Junction, for the purpose of constructing the defendant's railway, erecting bridges, section houses, depots, bunk houses, stock yards, water tanks, etc., held that the defendant was not liable therefor, and to that extent reversed the judgment of the district The plaintiffs prosecute the present writ of error to review and reverse this judg ment of the circuit court. The defendant has sued out no cross writ of error, and concedes its liability for the timber with which it has been charged by the judgment of the circuit court. "3. The said timber was cut in Montrose county, Colorado, and near the town of Mont-court. rose, and upon public, unoccupied, and unentered lands of the United States. 4]*4. That the lands from which the timber was cut were along and near and adjacent to the line of railway of said company. "5. That the portion of the line of railway through said county of Montrose, and in the vicinity of said town of Montrose, was not constructed or completed until after June 8th, 1882, and that on June 8th, 1882, said line of railway was only constructed and completed as far westward as Cebolla, in nison county, Colorado. If the defendant is not entitled to the benefits of the Act of March 3, 1875, or if that Act, properly construed, does not permit or allow the defendant to use timber taken from adjacent lands except for the construction of Gun-adjacent portions of its line of road and structures connected therewith, then the judgment of the circuit court is erroneous. If, however, the defendant can rightfully claim the benefits of the Act of March 3, 1875, 7. That of the timber cut as aforesaid, a and if that Act authorizes it to take from the part was used on portions of the line of rail-public lands adjacent to its line of road timway out to Grand Junction, constructed and completed after June 8th, 1882, and for the purposes of construction of railway, erection of section and depot houses, snow-sheds, fences, etc. "6. That said company had not completed its line of railway to Santa Fé on June 8th, 1882, nor has it ever so completed it. "And a part was shipped by the Denver & Rio Grande Railway for similar purposes to the Denver & Rio Grande Western Railway, to be used in the territory of Utah, as shown in the attached statement, and $1000 worth was used for repairs on portions of road completed prior to June 8th, 1882. "8. That as to all of its line of railway constructed after June 8th, 1882, the said company strictly complied with all the requirements of the Act of Congress approved March 3d, 1875, entitled, 'An Act Granting Railroads the Right of Way Through the Public Lands of the United States.'" On this agreed statement of facts there were submitted to the court for decision several legal propositions and questions, which were not, however, separately considered and passed upon, and need not be here specially noticed. The case made by the facts agreed upon was intended to be a test case to obtain a definite and positive adjudication by the court of the rights of the railway company 5]with regard to cutting timber* from public lands under the provisions of the two acts which have been referred to. The district court entered judgment for the plaintiffs for $24,926. 25, the agreed value of the timber taken. From this judgment the defendant took its writ of error to the Circuit Court of the United States for the Dis ber necessary for the construction of its railway, and use the same at points distant from the place at which the timber was taken, then the judgment below should be affirmed. By the Act of Congress approved June 8, 1872, "the right of way over the public domain one hundred feet in width on each side [6 of the track, together with such public lands adjacent thereto as may be needed for depots, shops, and other buildings for railway purposes, and for yard room and side tracks, not exceeding twenty acres at any one station, and not more than one station in every ten miles of the road, and the right to take from the public lands adjacent thereto stone, timber, earth, water, and other material required for the construction and repair of its railway and telegraphic lines," was granted and confirmed unto the defendant in error, its successors, and assigns. Attached to this grant was a proviso" that said company shall complete its railway to a point on the Rio Grande as far south as Santa Fé within five years of the passage of this Act, and shall complete fifty miles additional south of said point in each year thereafter, and in default thereof the rights and privileges herein granted shall be rendered null and void so far as respects the unfinished portion of said road." By the General Act of 1875 it was enacted: "Sec. 1. That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by |