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Section 3 of the Union Pacific Act of 1862 (Act) sets out a few specific reservations to the checkerboard grant, which divided land surrounding the railway right-of-way into checkerboard blocks and granted odd-numbered lots to the railroad while reserving even-numbered lots to the Government. The grant is not to include land sold, reserved, or otherwise disposed of by the United States, such as land to which there are homestead claims. 12 Stat. 492. Mineral lands are also excepted from the operation of the Act. Given the existence of such explicit exceptions, the United States Supreme Court refuses to add to this list by divining some implicit congressional intent. The intent of Congress in making the railroad grants is clear: It is to aid in the construction of the road by a gift of lands along its route, without reservation of rights, except such as are specifically mentioned.
Under the Union Pacific Act of 1862 (12 Stat 489), land surrounding the right of way for a transcontinental railroad was divided into "checkerboard" blocks, with odd-numbered lots being granted to the Union Pacific Railroad and even-numbered lots being reserved for the United States. Companies owning specific odd-numbered sections of land in Carbon County, Wyoming, as successors in fee of the Union Pacific Railroad to land granted under the Act, brought an action in the United States District Court for the District of Wyoming to quiet title against the United States, when the United States, as the owner of even-numbered sections of land adjoining that of the companies, constructed a road across odd-numbered sections owned by one of the companies in order that the public could have access to a reservoir which had been constructed on the United States' land. The District Court granted summary judgment for the successors of the Union Pacific Railroad, but the United States Court of Appeals for the Tenth Circuit reversed on appeal, concluding that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach even-numbered sections that were held by the United States (570 F2d 881).
Does the United States have an implied right to build road across land granted to railroad under Union Pacific Act of 1862 (12 Stat 489) in order to provide access to land kept by government under Act?
The court refused to recognize an implied easement for the benefit of the Government and instead chose to preserve the predictability of land titles that had existed for more than a century. The court held that as to lands granted to the Union Pacific Railroad and retained by the United States pursuant to the Union Pacific Act, the United States had no implied right of way--under (1) the Union Pacific Act, (2) the doctrine of easement by necessity whereby a private landowner who conveys a portion of his land while retaining the rest is presumed to have reserved an easement to pass over the granted property when such passage is necessary to reach the retained property, or (3) the Unlawful Inclosures of Public Lands Act making it unlawful to enclose any public lands--to construct a road across even-numbered lots owned by the Union Pacific Railroad's successors in fee in order for the United States to provide public access to odd-numbered lots reserved for the federal government under the Union Pacific Act.