as long and only as long as that use continues. The Government conveys the fee simple title in the land over which the right-of-way is granted to the person to whom patent issues for the legal subdivision on which the right-ofway is located, and such patentee takes the fee, subject only to the railroad company's right of use and possession. All persons settling on a tract of public land, to part of which right-of-way has attached, take the same subject to such right-of-way, and at the total area of the subdivision entered, there being no authority to make deduction in such cases. If a settler has a valid claim to land existing at the date of the filing of the map of definite location, his right is superior, and he is entitled to such reasonable measure of damages for right-of-way as may be determined upon by agreement or in the courts the question being one that does not fall within the jurisdiction of the Department of the Interior.

Within the past year we had a situation where we relocated a portion of our main line right-of-way located at 1875 right-of-way for about 10 miles. We took it up and filed a relinquishment of that old 1875 right-of-way.

Later we found our engineering department wanted to maintain a power line on that old 1875 right-of-way, which we had already relinquished inadvertently. We filed an application with the Department for a license to maintain that power line on the old 1875 rightof-way. In some cases it crossed the right-of-way of a woman named Mrs. Lewis. The Government granted the license for the power line to cross the 1875 right-of-way where it crossed Government land, but it rejected the application upon the theory that the 1875 rightof-way, upon abandonment, immediately accreted to Mrs. Lewis' land, which substantiates the ruling of the Department itself at the present to Mrs. Lewis or the adjoining landowner gives her fee simple title to the underlying 1875 right-of-way. The Government does not own it. It immediately goes over.

I think it should be said here that this bill, H.R. 3229 and companion bills, has no application to 1875 right-of-way. You can reject. that and discard it.

Passage of H.R. 3229, H.R. 3346, and H.R. 5745 would only serve to cloud the title of landowners abutting 1875 railroad right-of-way and result in much needless litigation and expense.

THESE BILLS WOULD PENALIZE RAILROADS HOLDING GRANTED RIGHT-OFWAY FOR WHAT THEY HAVE A LEGAL RIGHT TO DO

Enactment of the bills under consideration here would penalize the Union Pacific for exercising its constitutional, statutory, and contractual rights. Stated otherwise, the acts which are used as a justification for the pending bills are acts strictly within the rights of the company.

The question has been raised a number of times whether the leasing of unused railroad right-of-way constitutes abandonment thereof. "Thompson on Corporations," one of the leading works on corporate law (2d ed., vol. 3, sec. 2489), states:

2489. Lease of superfluous railroad property. It is plain that the rule forbidding a railroad company to alienate its property so as to disable itself from the performance of its public duties is not violated by an lease of property belonging to the company not in use or likely to be used for the operation of the road, and this more especially where the lease safeguards the right of the company to take back the property when needed for railroad purposes, by provisions for its termination within a reasonable time. The property may be used for purposes other than those for which the corporation was organized;

as said by one of the cases: "It is no objection to the validity of such a lease that the business in which the property is said to be used is one which the corporation is not authorized to carry on and that the rental is a share of the net profits." The property may be leased to tenants for the purpose of carrying on any legitimate business and particularly where the business to more profitable operation of the road, such, for example, as elevators, warehouses, hotels, pipelines, and coal and lumber yards.

Many court cases have considered the question of what use a railroad company can make of its right-of-way where it has been held that the right-of-way is less than fee title. Generally speaking, railroads are entitled to use the right-of-way which they have forany use indispensable to, or which will facilitate the fulfillment of, the objects of their corporate existence. (See 44 Am. Jur. 338.)

Whether or not the use or proposed use of its right-of-way by a railroad company is necessary for railroad purposes is—

primarily a matter to be determined by the company in the exercise of its judgment, and the courts will not interfere with the use and occupancy of its right-of-way by a railroad company, in the absence of a finding, supported by evidence, that such use and occupancy is not necessary for railroad purposes, is in bad faith, and is not the result of the honest exercise of the judgment of the company. (See 44 Am. Jur. 340.)

The courts have said that granting acts of railroad right-of-way are to be given a liberal construction in order to facilitate the carrying out of the purposes of the grant. Thus, in the case of United States v. Denver and Rio Grande Ry. Co. (150 U.S. 1), the Supreme Court of the United States had before it for interpretation the act of March 3, 1875. The Court pointed out the act should be given a liberal construction, and at page 14 of the opinion it said:

It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication. In Winona & St. Peter Railroad v. Barney, 113 U.S. 618, 625, Mr. Justice Field, speaking for the court, thus states the rule upon this subject: "The acts making the grants *** are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purposes declared on their face, and read all parts of them together."

Looking to the condition of the country, and the purposes intended to be accomplished by the act, this language of the court furnishes the proper rule of construction of the act of 1875. When an act, operating as a general law, and manifesting clearly the intention of Congress to secure public advantages, or to subserve the public interests and welfare by means of benefits more or less valuable, offers to individuals or to corporations as an inducement to undertake and accomplish great and expensive enterprises or works of a quasi-public character in or through an immense and undeveloped public domain, such legislation stands upon a somewhat different footing from merely a private grant, and should receive at the hands of the court a more liberal construction in favor of the purposes for which it was enacted. Bradley v. New York & New Haven Railroad, 21 Connecticut, 294; "Pierce on Railroads," 491.

Whenever the Union Pacific permits use of its right-of-way by others such use has been beneficial to the company as a railroad and to the public as well. To illustrate, we lease or license use of our right-of-way for industrial, manufacturing and agricultural purposes. We also allow highways to be built on the outer portions thereof. Leases for industrial and manufacturing purposes are for

a term of 5 years with a provision that either the Union Pacific or the lessee can terminate the arrangement upon not less than 30 days written notice, having in mind that we might need the area for railroad purposes. In cases where lessees construct substantial improvements on the right-of-way the policy is to extend our right of termination to 1 year. At present we have in effect about 2,000 leases on our 400-foot granted right-of-way for industrial and manufacturing purposes. Such lessees are engaged in almost every conceivable type of business and in many cases they have erected expensive and permanent improvements and have occupied our right-of-way for many years. Being traffic producers we are glad to have them renew their leases.

By leasing sites on the right-of-way for industrial and manufacturing purposes we do not only develop a very substantial volume of rail traffic, particularly carload, but we also avoid the expense of building and maintaining the large freight stations and team trackage required when shippers are located off trackage.

For many years the Union Pacific has leased the use of the outer portions of its right-of-way for highway purposes for substantial distances. That is specifically provided for by act of Congress of May 25, 1920. In the case of county highways such leases are for a term of 25 years, terminable by the Union Pacific on 90 days' written notice. The consideration is $5 per annum regardless of length. Leases for State highways are for a term of 50 years in order that the project can qualify for Federal aid. These leases also provide for a consideration of $5 per annum regardless of length and are terminable. by the railroad company on 6 months' notice, with the understanding that we will pay for the cost of relocating the highway, including land.

The Union Pacific has endeavored to maintain its rights to the granted right-of-way with as little annoyance as possible to the abutting owners, most of whom are farmers and ranchers. Until the passage of the Norris Act, approved June 24, 1912, the Supreme Court of the United States, in various decisions, maintained that adverse possession could not lie as against the granted right-of-way, but since the passage of that act adverse possession does avail, according to the statutes in effect in the different States. This being the case, it has become obligatory on the part of the Union Pacific to either lease to the abutting owners or eject them from the limits of the right-of-way.

Accordingly, abutting owners all along the line in Nebraska, Kansas, Colorado, and Wyoming were asked to take leases, couched in easy terms, and running for a period of 20 years, at the nominal rental of $1 per annum regardless of length. These leases can be terminated by the Union Pacific if the right-of-way is required for railroad purposes. They contain conditions requiring the lessees to keep the leased premises free from weeds and brush, or any substance that may carry fire, and to plow and maintain fireguards on the outer boundary of the right-of-way; also to keep the premises clear of all obstructions to a clear view, either from the train or from those desiring to cross the right-of-way, thereby permitting the premises to be occupied and cultivated while at the same time using them advantageously for the interests of the traveling public, shippers, and railroad employees,

especially in the way of safety. There are now in effect about 2,000 20-year agricultural leases on our 400-foot right-of-way.

We have 1,878 miles of agricultural leases, counting a mile on one side and on the other side, 1,878 miles of those 20-year agricultural leases.

Another consideration here is that to permit the hundreds of persons and companies who have licenses to cross our granted right-of-way with highways, pole lines, wire lines, pipelines, etc., to acquire feesimple title to the occupied portion, as these bills would in effect do, after 6 years, would violate the terms of our mortgages. Such crossing arrangements are given in the form of a license rather than an easement or deed for the reason that the Union Pacific's mortgages, and undoubtedly the same is true with other railroads, provide that the continuity of its lines of railroad shall not be broken. The purpose of such a provision is, of course, obvious.

THESE BILLS WOULD HAVE A SERIOUS IMPACT UPON NOT ONLY RAILROADS HOLDING GRANTED RIGHT-OF-WAY, BUT ALSO UPON LESSEES AND OTHER USERS OF SUCH RIGHT-OF-WAY

Aside from the legal propriety of these two bills, a matter which I shall deal with later, we submit that they are not only unjust and arbitrary, but they would cause widespread confusion and inconvenience. More important, they would cause very serious traffic, financial and practical problems for the Union Pacific and the present occupants and users of its granted right-of-way.

As previously stated, the Union Pacific has outstanding about 2.000 industrial and manufacturing leases on its 400-foot granted right-of-way and about 2,000 20-year agricultural leases. In addition, there are now in effect hundreds of agreements covering crossing of such right-of-way by highways, pole lines, wire lines, pipelines, et

cetera.

After passage of the Norris Act, mentioned above, certain occupants of our right-of-way claimed title by adverse possession based upon occupancy prior to June 24, 1912, the date the act was approved. In that litigation, where the Union Pacific was the adverse party, it was decided by the Supreme Court of Colorado in the case of Snow v. Union Pacific R. Co. (133 Pac., 1037) and Sides v. Union Pacific (133 Pac., 1040), and by the U.S. District Court for the District of Wyoming, in the case of Union Pacific Railroad Company v. Laramie Stockyards Company, that the act was retroactive insofar as it attempted to give title by adverse possession, and judgment was entered in favor of the adjoining landowners who had been in adverse possession of the right-of-way for the statutory period prior to the passage of the act on June 24, 1912. These cases were taken to the U.S. Supreme Court and the contention of the Union Pacific was upheld (Union Pacific Railroad Company v. Laramie Stockyards Company, 231 U.S., 190; Union Pacific Railroad Company v. Snow, 231 U.S., 204; and Union Pacific Railroad Company v. Sides, 231 U.S. 213).

In deciding these three cases in favor of the Union Pacific the Supreme Court simply said that to give retroactive effect to the adverse possession provisions of the Norris Act would make the act unconstitutional because the railroad company was given no oppor

tunity to stop the running of the State statutes of limitation, either by ejecting those who were using its right-of-way without permission or by requiring such users to execute leases recognizing its title. Accordingly, the Court construed the Norris Act as not allowing the adjoining landowner to acquire title to any portion of our right-ofway by adverse possession until the complete running of the State statutes of limitation after the 24th day of June 1912. The statute in Nebraska, for example, is 10 years. This was in 1912 that the Norris Act was passed. In 1914 Senator Norris introduced another bill in Congress which would have arbitrarily reduced the width of our 400-foot right-of-way to 100 feet, 50 feet on each side of the original center line of the main track, 100 feet wide. Mr. Loomis, then head of the Union Pacific law department, appeared before subcommittees and took the position, as I am taking here today, that Mr. Norris' second act, as I will call it, or second bill of 1914 was clearly unconstitutional. It was taking back something that Congress had already given to us. The bill was not passed.

In 1916 Congressman Taggart of Kansas introduced a similar bill to reduce our 400-foot granted right-of-way to 100 feet. Mr. Loomis again appeared and took the forthright position that the bill was clearly unconstitutional. No further action was taken on it.

But the bills now under consideration go much further than the Norris Act. They say that even though an industry or adjoining farmer has executed a lease to use a portion of the granted right-ofway, which lease in legal effect recognizes our interest or title to such right-of-way, such lessee by having possession of such right-of-way for 6 years places himself in a position to apply to the Secretary of the Interior to purchase or lease the involved area.

Of course, any attempt to give these bills retroactive application would be unconstitutional. But what about the future? We pursue this no further than to say that the railroad company would have only one choice if it wishes to protect its title to granted right-of-way, namely, to terminate all leases and licenses covering use of such rightof-way. Obviously, this would cause serious loss, and perhaps financial ruin, to many of our lessees and great inconvenience to others. Moreover, there can be no substantial question concerning the disastrous effect on the railroad company from a traffic standpoint when it is realized that it is the carload shippers located on our right-of-way who supply a very large proportion of rail traffic. It should also be added that our engineering department estimates it will cost the Union Pacific about $1 million to relocate its fences in order to protect the right-of-way now under 20-year agricultural leases if such leases are canceled.

It is proposed by these bills to actually divest the railroad company of its title to granted right-of-way by declaring a forfeiture by reason of the fact that lessees and others have been using it for 6 years.

Before entering into a discussion of the right of Congress to divest a railroad of any part of its granted right-of-way, may I call attention to a very significant fact: No forfeiture has ever been declared by Congress of the right-of-way of a completed road.

Yesterday the question was asked: "What constitutes a forfeiture?” Without going into detail of the court cases, a forfeiture means taking up your railroad. There can be no partial forfeiture of granted right