Weiser v. Union Pacific

2010 UT 4
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Glen C. Weiser, 	No. 20080124
Plaintiff and Appellant,
v.
F I L E D
Union Pacific Railroad Company,
Defendant and Appellee. 	February 5, 2010
---
Second District, Farmington
The Honorable Rodney S. Page
No. 910749302
Attorneys: 	Steven W. Call, Elizabeth M. Peck, Salt Lake City,
for plaintiff
J. Clare Williams, Jeffery J. Devashrayee, Reha Deal,
Salt Lake City, for defendant
---
WILKINS, Justice:
INTRODUCTION
¶1 	In this direct appeal we are asked to determine the
effect of a filed but unperfected pre-emption claim on the
conveyance of property to the Utah Central Railroad Company under
a perfected right-of-way grant by Act of Congress in 1870. 	Under
federal law, a general right-of-way grant to a railroad is
effective against pre-emptions that have only attached, but not
against those that are perfected. 	In this case, the railroad
grant is superior to the individual pre-emption claim advanced by
Weiser. 	Accordingly, we affirm the decision of the district
court finding ownership in favor of Union Pacific.
BACKGROUND
¶2 	Plaintiff Glen C. Weiser and defendant Union Pacific
Railroad dispute ownership of a tract of land in Davis County,
Utah (the Property). 	Weiser’s ownership claim originates from a
federal land patent to the Property received by his most remote
predecessor-in-interest, George Tomlinson, issued by President

No. 20080124 	2
Ulysses S. Grant on September 25, 1873. 	Prior to receiving the
patent, and pursuant to the federal Pre-emption Act of 1841,
Tomlinson filed a Declaratory Statement of Pre-emption on April
17, 1869. 	Final proof of pre-emption, including payment, was
completed by July 6, 1872.
¶3 	Union Pacific’s ownership claim also originates from a
federal land grant. 	Between May 1869 and January 1870, Union
Pacific’s predecessor-in-interest, the Utah Central Railroad
Company (Utah Central), built a railroad line from Ogden to Salt
Lake City in the Utah Territory. 	On December 15, 1870, Congress
passed an Act (the Act, the Grant or the 1870 Railroad Grant)
granting Utah Central “a Right of Way through the public Lands
for the Construction of a Railroad and Telegraph . . . to the
extent of two hundred feet in width on each side of said railroad
where it may pass through the public domain.” 	This description
directly overlays nearly all of the Property. 	As a condition to
the Grant, the Act required Utah Central, within three months of
passage of the Act, to “file with the Secretary of the Interior a
map to be approved by him, exhibiting the line of the railroad”
and to confirm acceptance of the terms and conditions. 	The Act
was passed on December 15, 1870, and Utah Central was required to
meet the conditions by March 15, 1871. 	Utah Central submitted
its acceptance of the terms and conditions on March 2, 1871, and
submitted a map on March 6, 1871. 	Although the Act did not
require certification, the Secretary of the Interior rejected the
map because it was not certified. 	Utah Central then submitted a
certified map, which the Secretary received on March 29, 1871 and
subsequently accepted.
¶4 	In 1935, the District Court for Davis County entered a
final judgment and decree that quieted title to the Property in
favor of another of Weiser’s predecessors-in-interest. 	At that
time, the Railroad did not have any recorded interest in the
Property on the Davis County or State of Utah records, and was
not included as a party to the action.
¶5 	In 1982, Union Pacific began construction of a
semi-truck loading facility on the Property, of which Weiser
became aware in 1987. 	Weiser requested in writing that Union
Pacific surrender and vacate the Property, supported by a title
report showing Weiser to be the record owner to the Property in
fee simple. 	Union Pacific refused, and Weiser commenced an
action in 1991 to obtain possession of, and quiet title to, the
Property, as well as bringing other state law claims.
¶6 	In September of 2002 the Utah Transit Authority (UTA)
purchased the Property from Union Pacific pursuant to an

3 	No. 20080124
appropriation by the Utah Legislature to the Utah Department of
Transportation for a commuter rail corridor.
PROCEDURAL HISTORY
¶7 	Weiser filed this action in 1991. 	In 1995, the
district court granted Weiser’s motion for partial summary
judgment, finding that the 1870 Railroad Grant was a nullity due
to failure to meet the conditions of the Grant. 	The district
court denied Union Pacific’s motion to reconsider, and this court
dismissed Union Pacific’s appeal for lack of jurisdiction. 	See
Weiser v. Union Pac. R.R. Co., 932 P.2d 596, 597-98 (Utah 1997).
In 2000, Union Pacific again sought reconsideration of the grant
of partial summary judgment, based on prior case law affirming
the validity of the Railroad Grant in regard to other landowners.
The district court granted the motion to reconsider, reversed its
prior ruling, and thereafter granted Union Pacific’s motion for
summary judgment. 	In doing so, it felt compelled by the doctrine
of stare decisis to change its decision. 	Citing the United
States Supreme Court decision in United States v. Northern
Pacific Railroad Co., 177 U.S. 435 (1900), the district court
held that “lapse of a Land Grant statute before the filing of a
profile map only authorizes the federal government to seek
forfeiture of the railroad Land Grant” and does not automatically
void the Grant. 	Because the federal government had not
challenged the Grant, and had expressly accepted the late-filed
map, the district court held that the federal government made
effective the land grant in Utah Central Railroad. 	Further, the
district court held that title to the Property received by
Weiser’s predecessor through federal patent was “of no effect”
because it was subsequent to the effective date of the land
grant. 	In so ruling, the district court rejected Weiser’s
arguments that res judicata and collateral estoppel prevented the
court from reversing its own previous ruling.
¶8 	As part of its rulings on the summary judgment motions,
the district court also concluded that Utah Central received not
merely a right of way, but a limited fee interest in the
Property, subject to reverter back to the federal government if
Utah Central or its successors used the Property for an
unauthorized purpose. 	In addition, the district court concluded
that the quiet title decree of 1935 was of no effect because a
state law action could not circumscribe the rights granted to
Utah Central by the United States under the 1870 Railroad Grant.
The court also held that sale of the Property to UTA did not
trigger reversion because federal law allows a railroad to
transfer right-of-way property for similar use to a state

No. 20080124 	4
department of transportation or its nominee, which it determined
UTA was.
¶9 	On December 5, 2005, the district court held an
evidentiary hearing wherein it rejected evidence proffered by
Weiser on the issue of pre-emption. 	Weiser asserts that the
proffered evidence would have shown that his predecessor,
Tomlinson, filed his declaration of pre-emption against the
Property before the Grant to Utah Central was enacted by
Congress, thus preserving his rights in the Property and removing
it from public land and therefore not subject to the 1870
Railroad Grant. 	However, the district court refused to consider
the evidence, ruling that because the effective date was that of
the land patent, not the date of the declaration of pre-emption,
the evidence regarding the date of the declaration and steps
toward pre-emption was irrelevant. 	The court did allow Weiser to
proffer the evidence for purposes of the record.
¶10 	Ultimately, on December 21, 2007, the district court
entered final judgment determining that Weiser had no remaining
interest in the Property and that the Property belonged to Union
Pacific. 	Accordingly, the district court dismissed all of
Weiser’s state law claims with prejudice. 	In addition, the court
dismissed Union Pacific’s claim that it had obtained title to the
Property through adverse possession, holding that Union Pacific’s
interest in the Property lay solely in the federal land grant.
¶11 	In January 2008, Weiser appealed the judgment of the
district court. 	This court transferred the case to the court of
appeals under Utah Code section 78A-3-102(4) (2008). 	The court
of appeals denied motions for summary disposition by both
parties. 	Subsequently, this court vacated the order transferring
the case to the court of appeals and recalled the case.
¶12 	On appeal, Weiser presents seven questions for review,
asserting that the district court erred in (1) determining that
the effective date of a claim under the Pre-emption Act of 1841
is the date the deed or land patent was conveyed as opposed to
when the declaration of pre-emption was first entered; (2)
refusing to receive Weiser’s proffered evidence that would have
established that his predecessor-in-interest had lawfully
exercised his right of pre-emption before the 1870 Railroad Grant
was made, thereby establishing the subject property as not part
of the affected public lands; (3) reversing its prior summary
judgment based on reliance on stare decisis instead of applying
res judicata and collateral estoppel; (4) concluding that the
1870 Railroad Grant to Utah Central conveyed a limited fee
interest in the subject property rather than a lesser right of
way or easement; (5) determining that sale of the Property to UTA

5 	No. 20080124
did not trigger reversion to Weiser; (6) failing to give binding
effect to the 1935 district court judgment quieting title of the
Property in favor of Weiser’s predecessor; and (7) dismissing all
of Weiser’s state law claims with prejudice. 	We address each
issue in turn.
ANALYSIS
I. 	WEISER SUFFICIENTLY PRESERVED HIS PRE-EMPTION CLAIM
¶13 	Weiser first challenges the district court’s finding
that the effective date of a claim under the Pre-emption Act of
1841 is the date the deed or land patent was conveyed. 	However,
a threshold issue is whether Weiser preserved this claim for
appeal. 	Union Pacific asserts that he did not, such that neither
the district court nor the opposing party had notice of the issue
or the opportunity to properly respond.
¶14 	“To preserve an issue for appellate review, a party
must first raise the issue in the trial court, giving that court
an opportunity to rule on the issue.” 	Searle v. Searle, 2001 UT
App 367, ¶ 17, 38 P.3d 307 (internal quotation marks omitted).
Further, “‘[f]or an issue to be sufficiently raised, even if
indirectly, it must at least be raised to a level of
consciousness such that the trial judge can consider it.’”
LeBaron & Assocs. v. Rebel Enters., 823 P.2d 479, 483 (Utah Ct.
App. 1991) (quoting James v. Preston, 746 P.2d 799, 802 (Utah Ct.
App. 1987)). 	In this case, the district court judge had the
opportunity to consider the issue, as evidenced by the conclusion
of law set forth in the court’s final judgment. 	The court
stated,
[T]he Court rejected Weiser’s argument that
the Property was taken out of the public
lands because Weiser’s original predecessor
(Tomlinson) had acquired a homestead or pre-
emption interest in the property. 	Weiser
contended that Tomlinson’s interest in the
property was superior to the Railroad’s
because Tomlinson presented his Declaratory
Statement of Pre-emption on April 17, 1869,
before the Conditional Grant was approved by
Congress and therefore the Property was not
part of the “public lands” at the time
Congress approved the Conditional Grant.
Weiser contended that his position was
supported by case authority. 	The Court
rejected Weiser’s arguments and concluded

No. 20080124 	6
that the period of time for perfecting an
interest in Property through the doctrine of
pre-emption is determined by the date that
the final proof of pre-emption was completed
on July 6, 1872 and not on April 17, 1869
when Tomlinson’s Declaratory Statement of
Pre-emption was made. 	Because the Court
concluded that the date of proof is the
controlling date for the purpose of
determining when whether [sic] the Property
was part of the public lands, the Court
determined that the evidence proffered by
Weiser at an evidentiary hearing that
Tomlinson[‘s] Declaratory Statement was made
on the public record on April 17, 1869
(before the Conditional Grant was approved by
Congress) was irrelevant.
¶15 	As shown, the district court considered the issue of
the relevant date for establishing a pre-emption claim. 	Although
it is not apparent that Weiser presented specific legal authority
for his position, the court was aware of, considered, and made an
explicit ruling on the issue, noting that Weiser asserted case
law authority for the proposition. 	As such, Weiser sufficiently
preserved the issue for appeal.
II. 	THE DISTRICT COURT DID NOT ERR IN HOLDING THAT TOMLINSON’S
DECLARATORY STATEMENT OF PRE-EMPTION WAS INSUFFICIENT TO REMOVE
THE PROPERTY FROM DISPOSITION UNDER THE 1870 RAILROAD GRANT
¶16 	Having determined that Weiser preserved his pre-emption
claim for appeal, we turn to the merits of the claim. 	We review
statutory construction and other questions of law for
correctness, according no deference to the decision of the
district court. 	See Reese v. Tingey Constr., 2008 UT 7, ¶ 6, 177
P.3d 605.
¶17 	The 1870 Act of Congress provides that the Railroad’s
right of way goes through the “public lands.” 	Thus, the validity
of Weiser’s claim hinges on whether the filing of a declaratory
statement of pre-emption, without having paid the full purchase
price, is sufficient to remove a piece of land from all the
inherent vulnerabilities of land within the public domain. 	If
Weiser’s predecessor-in-interest’s actions sufficiently removed
the Property from the public lands, the Property would not have
been subject to the 1870 Railroad Grant. 	If, on the other hand,
the Property was not removed from the public lands, it would have
passed to Utah Central under the Grant. 	Thus we look at the

7 	No. 20080124
effect of the declaratory statement of pre-emption on
classification of the Property as part of the public lands.
¶18 	“The words ‘public lands’ are habitually used in our
legislation to describe such as are subject to sale or other
disposal under general laws.” 	Salt Lake Inv. Co. v. Oregon Short
Line R.R. Co., 148 P. 439, 444 (1914), (quoting Union Pac. R.R.
Co. v. Harris, 215 U.S. 386, 388 (1910)), aff’d, 246 U.S. 446
(1918). 	In contrast, “under the general land laws of the United
States one who, having made an entry, is in actual occupation
under the pre-emption or homestead law cannot be dispossessed of
his priority at the instance of any individual.” 	Union Pac. R.R.
Co. v. Harris, 215 U.S. 386, 389. 	Thus, public lands to which a
homestead or pre-emption claim has attached, through the filing
of a declaratory statement, are no longer subject to sale.
Indeed, “‘lands originally public cease to be public after they
have been entered at the land office and a certificate of entry
has been obtained.’” 	Whitney v. Taylor, 158 U.S. 85, 90 (1895)
(quoting Hastings & Dakota R.R. Co. v. Whitney, 132 U.S. 357, 361
(1889)). 	However, public lands which have been settled or spoken
for under the homestead or pre-emption acts could remain subject
to other disposal under certain circumstances. 	In Harris, the
United States Supreme Court stated that “the power of Congress
over lands which an individual is seeking to acquire under . . .
the pre-emption . . . law remains until . . . payment of the full
purchase price.” 	215 U.S. at 388; see also N. Pac. R.R. Co. v.
Smith, 171 U.S. 260, 269 (1898) (explaining that the power of
Congress over public lands is limited only by a vested right,
which, in the context of pre-emption laws, “is only obtained when
the purchase money has been paid, and the receipt of the proper
land officer given to the purchaser”). 	Thus, although filing a
declaratory statement is sufficient to remove land from being
subject to individual or local disposition under “like laws,”
full payment is required to protect the land against disposition
by Congress. 	Harris, 215 U.S. at 389 (“In other words, one who
has taken land under the pre-emption or homestead law acquires an
equity of which he cannot be deprived by any individual under the
like laws.”).
¶19 	In contrast, relying on Whitney v. Taylor, Weiser
argues that filing the declaratory statement was all that was
required for Tomlinson to remove the Property from disposition by
the Grant. 	In Whitney, the Supreme Court stated that “Congress
. . . has provided for the filing of [a declaratory statement] as
the proper means for an assertion on record of a claim under the
pre-emption law, and that is all that is necessary to except the
land from the scope of the grant.” 	Whitney, 158 U.S. at 96.
However, the railroad land grant in Whitney expressly provided

1 The complete language of the grant to the Central Pacific
Railroad in Tarpey is as follows, in relevant part:
That there be, and is hereby, granted to the
said company, for the purpose of aiding in
the construction of said railroad and
telegraph line, and to secure the safe and
speedy transportation of the mails, troops,
munitions of war, and public stores thereon,
every alternate section of public land,
designated by odd numbers, to the amount of
five alternate sections per mile on each side
of said railroad, on the line thereof, and
within the limits of ten miles on each side
of said road, not sold, reserved, or
otherwise disposed of by the United States,
and to which a pre-emption or homestead claim
may not have attached, at the time the line
of said road is definitely fixed.
Tarpey v. Madsen, 53 P. 996, 997 (Utah 1898) (quoting Pac. R.R.
Act, Pub. L. No. 37-120, 12 Stat. 489, 492 (1862)).
No. 20080124 	8
that only lands “to which a pre-emption or homestead claim may
not have attached” were granted. 	Id. at 90. 	Further, the Court
announced that “the principle to be deduced” from the case is
that the filing of a declaratory statement, with subsequent
acceptance and recording on the books of the local land office,
is sufficient to “except[] [the subject tract of land] from the
operation of a railroad land grant containing the ordinary
excepting clauses. 	Id. at 92 (emphasis added). 	The inclusion of
such an excepting clause appears to denote a distinction between
“checkerboard” land grants to a railroad that could be sold for
profit, and general right-of-way grants for the railroad’s own
use. 	“Checkerboard” grants, in contrast to the continuous strip
of land conveyed in a right-of-way grant, consisted of “alternate
section[s] of public land . . . on each side of [a] railroad,”
and contained clauses that excepted tracts of land to which pre-
emption or homestead claims had attached. 	Tarpey v. Madsen, 53
P. 996, 997 (Utah 1898), rev’d on other grounds, 178 U.S. 215
(1900), (quoting Pac. R.R. Act, Pub. L. No. 37-120, 12 Stat. 489,
492 (1862)). 1 	Right-of-way grants, on the other hand, such as
the 1870 Railroad Grant at issue here, do not contain such
excepting language. 	The United States Supreme Court has
explained a key difference between the two:
[T]he grant of the right of way differed from
the grant of alternate odd-numbered sections
in that, while both were expressed in the
words of a grant in praesenti, the former was

9 	No. 20080124
without limitation or exception, while the
latter was expressly made subject to the
limitation or exception that it should not
include any lands . . . to which a preemption
or homestead claim had attached, at the date
of definite location.
Stuart v. Union Pac. R.R. Co., 227 U.S. 342, 353 (1913). 	The
Court has also explained the policy behind the distinction.
The sections granted [in a checkerboard
grant] could be ascertained only when the
routes were definitely located. 	This might
take years, the time depending somewhat upon
the length of the proposed road and the
difficulties of ascertaining the most
favorable route. 	It was not for the interest
of the country that in the mean time any
portions of the public lands should be
withheld from settlement or use because they
might, perhaps, when the route was surveyed,
fall within the limits of a grant. 	Congress,
therefore, adopted the policy of keeping the
public lands open to occupation and pre-
emption, and appropriation to public uses,
notwithstanding any grant it might make,
until the lands granted were ascertained, and
providing that if any sections settled upon
or reserved were then found to fall within
the limits of the grant, other land in their
place should be selected. 	Thus, settlements
on the public lands were encouraged without
the aid intended for the construction of the
roads being thereby impaired.
R.R. Co. v. Baldwin, 103 U.S. 426, 429 (1880). 	On the other
hand, grants of rights of way need no such qualification because
“lands would not be the less valuable for settlement by a road
running through them. 	On the contrary, their value would be
greatly enhanced thereby.” 	Id. at 430. 	In addition, a “right of
way for the whole distance of the proposed route was a very
important part of the aid given” because if a railroad company
were “compelled to purchase its way over any section that might
be occupied in advance of its location, very serious obstacles
would be often imposed to the progress of the road.” 	Id.
Indeed, though under a checkerboard grant “any loss of lands by
settlement or reservation” could be replaced by giving “other

2 The complete relevant language of the 1870 Railroad Grant
is as follows:
That the right of way through the public lands be, and
the same is hereby, granted to the Utah Central
Railroad Company . . . ; and the right, power, and
authority is . . . hereby given to said corporation to
take from the public lands adjacent to the line of said
road material of earth, stone, timber, and so forth,
for the construction thereof. 	Said way is granted to
said railroad to the extent of two hundred feet in
width on each side of said railroad where it may pass
through the public domain, including all necessary
ground for station-buildings, work-shops, depots,
machine-shops, switches, side-tracks, turn-tables, and
water-stations.
Utah Cent. R.R. Co. Act, Pub. L. No. 41-2, 16 Stat. 395 (1870).
3 We also note that the district court concluded that the
(continued...)
No. 20080124 	10
lands,” under a right-of-way grant “no compensation . . . could
. . . be given by the substitution of another route.” 	Id.
¶20 	In this case, the 1870 Railroad Grant consists of a
continuous “right of way,” not alternate checkerboard sections,
“to the extent of two hundred feet in width on each side of said
railroad where it may pass through the public domain,” and does
not contain any excepting language. 	Utah Cent. R.R. Co. Act,
Pub. L. No. 41-2, 16 Stat. 395 (1870). 2 	From the plain language
of the statute it is therefore apparent that it is a right-of-way
grant that is “without limitation or exception” and is not
defeated by the filing of a declaratory statement. 	Stuart, 227
U.S. at 353. 	Indeed, “[h]ad a similar qualification upon the
absolute grant of the right of way been intended, it can hardly
be doubted that it would have been expressed. 	The fact that none
is expressed is conclusive that none exists.” 	Id.
¶21 	Prior to the enactment of the 1870 Railroad Grant,
Tomlinson had filed a declaratory statement of pre-emption.
However, payment of the full purchase price, and the resulting
land patent, were not completed until well after the effective
date of the Grant. 	Accordingly, though the Property was removed
from the public lands insofar as against adverse claims by other
individuals, it remained subject to the power of Congress because
Tomlinson did not have a vested right in the Property superior to
Congress’s power of disposition. 	Thus, Weiser’s claim of
ownership was preempted by the 1870 Railroad Grant, and is
therefore invalid. 3

3(...continued)
date of the land patent was the effective date for removing the
property completely from the scope of the 1870 Railroad Grant.
This is incorrect. 	As Harris sets forth, Congress’ power of
disposition over land remains only until “payment of the full
purchase price.” 	Harris v. Pac. R.R. Co., 215 U.S. 386, 388
(1910). 	Once a settler has paid for his property in full, in
addition to following the other requirements set forth by the
Pre-Emption Act, Congress lacks authority to remove the property
from him without providing compensation. 	Thus, although the
district court reached the correct result, we clarify that the
date of full payment (including “the receipt of the proper land
officer given to the purchaser,” N. Pac. R.R. Co. v. Smith, 171
U.S. 260, 269 (1898)), not that of the resulting land patent, is
the effective date for pre-emption.
11 	No. 20080124
III. 	THE DISTRICT COURT DID NOT ERR IN REFUSING TO ADMIT
WEISER’S EVIDENCE OF PRE-EMPTION
¶22 	Weiser contends that it was reversible error for the
district court to refuse to consider his pre-emption evidence.
We analyze such an evidentiary ruling under an abuse of
discretion standard. 	State v. Harrison, 805 P.2d 769, 780 (Utah
Ct. App. 1991).
¶23 	Here, Weiser sought to introduce, but was merely
allowed to proffer, evidence that Tomlinson complied with the
initial steps for reserving a pre-emption claim, including that
the declaratory statement was filed on April 17, 1869. 	Were the
filing date the effective date of pre-emption, this evidence
would have supported Weiser’s ownership claim by proving proper
pre-emption. 	However, where the district court correctly held
that the relevant date occurred after the 1870 Railroad Grant,
proof of the declaratory statement and other steps taken by
Tomlinson toward pre-emption was irrelevant. 	Thus, the district
court did not abuse its discretion in refusing the evidence.
IV. 	THE 1870 RAILROAD GRANT WAS VALID
¶24 	Weiser challenges the district court’s grant of partial
summary judgment in favor of Union Pacific, which ruling held the
1870 Railroad Grant to be valid. 	“An appellate court reviews a
trial court’s legal conclusions and ultimate grant or denial of
summary judgment for correctness, and views the facts and all
reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party.” 	Orvis v. Johnson, 2008 UT 2, ¶ 6, 177
P.3d 600 (internal citation and quotation marks omitted). 	Weiser
argues that the 1870 Railroad Grant is invalid because the

No. 20080124 	12
deadline specified in the Grant lapsed before Utah Central filed
and gained approval of a profile map as required. 	In contrast,
Union Pacific argues that the timely filing of an uncertified map
was sufficient to meet the condition of the Grant because the
Grant did not require a certified map. 	We need not address this
latter argument because regardless of whether the initially filed
map was sufficient, the Act also required that the Secretary
approve the map before the three-month deadline, which he did
not. 	Thus, Utah Central failed to meet the required conditions
before the specified deadline, as a factual matter. 	However, the
failure had no effect on the validity of the Grant.
¶25 	The district court correctly held that failure to meet
the deadline would not result in an automatic forfeiture.
Indeed, the United States Supreme Court has said that “lands
granted by Congress to aid in the construction of railroads do
not revert after condition broken until a forfeiture has been
asserted by the United States,” United States v. N. Pac. R.R.
Co., 177 U.S. 435, 441 (1900), and failure to meet a condition
“ought not to be treated as a forfeiture, unless the language of
the act be so clear and unambiguous as to admit of no other
reasonable construction.” 	Bybee v. Or. & Cal. R.R. Co., 139 U.S.
663, 677 (1891). 	On the other hand, as Weiser points out, the
1870 Act does state that “if such acceptance and service shall
not be so made, this grant shall be void.” 	Utah Central R.R. Co.
Act, Pub. L. No. 41-2, 16 Stat. 395 (1870). 	However, this clause
is part of section 4 of the Act, referring only to Utah Central’s
acceptance of the “terms, conditions, and impositions” of the
Act, which was to be served on the President. 	Id. 	The
requirement of filing a map is part of section 1 of the Act,
which has no express language as to the consequence of failing to
meet that requirement. 	Consequently, failure to file an approved
map by the deadline did not result in automatic forfeiture.
¶26 	If not resulting in automatic forfeiture, then the
failure must be specifically challenged to prove invalidity.
Union Pacific argues that only the government has standing to
challenge the Act, and as it has not done so, the Act remains
valid. 	The United States Supreme Court has agreed, saying, “A
third party cannot take upon himself to enforce conditions
attached to the grant when the government does not complain of
their breach.” 	Van Wyck v. Knevals, 106 U.S. 360, 369 (1882).
Also, when faced with a case in which a railroad failed to
complete the line within the time limit provided in the granting
act, the Court said that
no one can take advantage of the
non-performance of a condition subsequent

4 State v. Robison, 2006 UT 65, ¶ 19, 147 P.3d 448
(“[A]n appellate court may affirm the
judgment appealed from if it is sustainable
on any legal ground or theory apparent on the
record, even though such ground or theory
differs from that stated by the [district]
court to be the basis of its ruling [and]
even though such ground or theory is not
urged or argued on appeal by appellee, was
not raised in the lower court, and was not
considered or passed on by the lower court.”)
(quoting Bailey v. Bayles, 2002 UT 58, ¶ 10,
52 P.3d 1158) (second and third alterations
in original).
13 	No. 20080124
annexed to an estate in fee, but the grantor
or his heirs . . . . 	And the same doctrine
obtains where the grant upon condition
proceeds from the government; no individual
can assail the title it has conveyed on the
ground that the grantee has failed to perform
the conditions annexed.
Bybee, 139 U.S. at 675 (1891) (internal quotation marks omitted).
Thus we conclude that only the government has standing to
challenge its own land grant for a failed condition, and until
the government does so, the Grant conveying the right of way is
valid.
¶27 	In addition, Weiser challenges the district court’s
conclusion that it was bound by stare decisis because the 1870
Railroad Grant has been affirmed as valid by this court and the
United States Supreme Court. 	Though we may affirm the ruling of
a lower court on any ground apparent from the record, 4 we take a
moment to address this argument in order to provide clarification
for future cases. 	The district court’s conclusion was based on
several cases presented by Union Pacific. 	First, in Salt Lake
Investment Co. v. Oregon Short Line Railroad Co., we upheld the
1870 Act against an individual claim to title because the
individual patent, obtained through the Pre-emption Act of 1841,
was itself invalid on independent grounds. 	148 P. 439, 443 (Utah
1914). 	However, in that case, neither the parties nor the court
addressed the effect of the late map filing. 	We said only that
“[t]he grant required acceptance and was accepted in February,
1871, at which time the Utah Central Railroad Company filed with
the Secretary of the Interior its articles of incorporation and
map showing the route of its road, etc.” 	Id. 	In the subsequent
appeal, the United States Supreme Court said even less about the

No. 20080124 	14
1870 Railroad Grant, stating only that “[t]he right of way was
granted December 15, 1870,” and merely affirmed the invalidity of
the individual patent. 	Salt Lake Inv. Co. v. Or. Short Line R.R.
Co., 246 U.S. 446, 447-49 (1918). 	Similarly, in Moon v. Salt
Lake County, we upheld the 1870 Act against an individual alleged
property owner. 	76 P. 222 (Utah 1904). 	There, the individual
argued that the subject property was not granted to the Railroad
because it was within the city limits. 	Id. at 224. 	The court
held that the Railroad’s grant included land within the limits of
Salt Lake City, thus the individual’s ownership claim failed.
Id. at 226. 	Again, the court did not specifically examine the
validity of the 1870 Railroad Grant, but seemed to simply presume
that it was valid. 	Thus, the issue of the effect of the late map
filing has not been adjudicated by this or any other court, and
it was error for the district court to reverse its summary
judgment based on these cases. 	Regardless, as mentioned, this
court can affirm the decision of the district court based on the
independent grounds previously discussed for validity of the 1870
Railroad Grant.
¶28 	Lastly, Weiser asserts that it was error for the
district court to reject his argument that res judicata and
collateral estoppel were the correct tools of analysis in
reviewing these cases. 	However, since neither case directly
addressed the validity of the 1870 Railroad Grant when
considering the map filing, neither is dispositive.
Consequently, we need not address the issue.
V. 	THE INTEREST CONVEYED BY THE 1870 RAILROAD GRANT IS
IRRELEVANT IN THIS CASE
¶29 	Weiser alternatively argues that even if the 1870
Railroad Grant was valid, it conveyed merely a right of way or
easement over the Property, not an interest in fee simple as the
district court concluded. 	Thus he argues that his predecessor-
in-interest was able to receive the remaining fee interest by
patent. 	We review the district court’s conclusions of law,
including interpretations of statute, for correctness. 	See Reese
v. Tingey Constr., 2008 UT 7, ¶ 6, 177 P.3d 605.
¶30 	The character of the 1870 Railroad Grant has not
previously been determined. 	However, similar railroad land
grants have received much attention by the United States Supreme
Court and many other state and federal jurisdictions.
Interpreting nearly identical language as that of the 1870
Railroad Grant, the Supreme Court explained that the term “right
of way” as used in federal railroad grants prior to 1871 is
“‘used to describe that strip of land which railroad companies

15 	No. 20080124
take upon which to construct their roadbed.’ 	That is, the land
itself – not a right of passage over it.” 	New Mexico v. U.S.
Trust Co., 172 U.S. 171, 182 (1898) (quoting Joy v. St. Louis,
138 U.S. 1, 44 (1891)) (emphasis omitted). 	Five years later, the
Supreme Court determined that an 1864 railroad right-of-way grant
was “of a limited fee, made on an implied condition of reverter
in the event that the company ceased to use or retain the land
for the purpose for which it was granted.” 	N. Pac. Ry. Co. v.
Townsend, 190 U.S. 267, 271 (1903). 	It is upon this language
that the district court relied in concluding that Union Pacific’s
interest was of a limited fee. 	However, in United States v.
Union Pacific Railroad Co., the Court clarified its
interpretation, holding that because the federal government
reserved the subsurface mineral rights unto itself in the grants
at issue, “[t]he most that the ‘limited fee’ cases decided was
that the railroads received all surface rights to the right of
way and all rights incident to a use for railroad purposes.” 	353
U.S. 112, 119 (1957).
¶31 	Whether the 1870 Grant should receive similar treatment
is unclear. 	Neither of the parties cited to Union Pacific
Railroad Co., nor many of the subsequent cases. 	Further, the
1870 Grant does not explicitly exclude the subsurface mineral
rights as did the grants at issue in Union Pacific Railroad Co.
Id. at 113-14. 	However, we need not make the determination
regarding the exact character of the 1870 Grant here. 	The
subsurface rights in the Property are not at issue in this case;
only the surface rights are affected by the parties’ use of the
Property. 	Based on the Supreme Court precedent discussed, it is
clear that Union Pacific owns at the very least the “surface
rights to the right of way and all rights incident to a use for
railroad purposes,” Union Pac. R.R. Co., 353 U.S. at 119, and at
most a “limited fee,” Townsend, 190 U.S. at 271. 	Exactly where
that interest lies along the spectrum is a question best answered
in a case where that interest is at issue and the court may
benefit from greater depth of briefing.
¶32 	Further, even if Utah Central was granted less than the
limited fee, the remaining interest would not have been conveyed
to Tomlinson. 	Referring to right-of-way grants to railroad
companies, the Supreme Court has said that “the land forming [a]
right of way . . . [is] taken out of the category of public lands
subject to pre-emption and sale, and the land department [is]
therefore without authority to convey rights therein” such that
subsequent homesteaders (or pre-emptioners) “acquire[] no
interest in land within the right of way.” 	Townsend, 190 U.S. at
270 (emphasis added). 	Accordingly, where Utah Central perfected
its grant before Tomlinson perfected his claim, Tomlinson’s

No. 20080124 	16
patent was incapable of conveying any interest in the Property.
Thus, whether the Grant was of a limited fee or something less is
irrelevant. 	Weiser’s claim of ownership fails.
VI. 	UNION PACIFIC’S SALE OF THE PROPERTY TO UTA DID NOT RESULT
IN REVERSION
¶33 	Weiser further contends that even if Utah Central
received the Property in limited fee, the Property reverted back
to the United States, and then forward to Weiser, when Union
Pacific sold it to UTA. 	The district court rejected this
argument and we review the court’s legal conclusion for
correctness. 	See Reese v. Tingey Constr., 2008 UT 7, ¶ 6, 177
P.3d 605.
¶34 	As previously discussed, the United States Supreme
Court has clarified that the nature of federal right-of-way
grants to railroad companies prior to 1871 are of a “limited fee,
made on an implied condition of reverter in the event that the
company ceased to use or retain the land for the purposes for
which it was granted.” 	N. Pac. Ry. Co. v. Townsend, 190 U.S.
267, 271 (1903). 	Though we refrain from determining whether
Union Pacific owns a limited fee interest, we do hold that Union
Pacific’s interest is subject to reverter. 	In Townsend, the
Court interpreted an act of 1864 granting to the Northern Pacific
Railroad Company “the right of way through the public lands . . .
for the construction of a railroad.” 	Id. at 268. 	Based on this
language, the Court explained that “the grant was explicitly
stated to be for a designated purpose, one which negated the
existence of the power to voluntarily alienate the right of way
or any portion thereof” and held that the grant was “made on an
implied condition of reverter in the event that the company
ceased to use or retain the land for the purpose for which it was
granted.” 	Id. at 271. 	Though the Court later clarified the
impact of the “limited fee” language in Union Pacific Railroad
Co., its clarification did not contradict the implied condition
of reverter, which condition remains in force. 	353 U.S. at 118-
19. 	Thus, because the 1870 Grant contains the same language
giving rise to the implied condition, whatever interest passed to
Utah Central is subject to a reversionary interest in the federal
government.
¶35 	Based on this implied condition of reverter, Weiser
argues that the sale by quitclaim deed to UTA terminated Union
Pacific’s use of the land and triggered the reversionary interest
to the United States. 	Thus, because Weiser’s predecessor
ultimately received a land patent for the Property, subject to

17 	No. 20080124
the right of way, Weiser contends that he holds the reversionary
interest and became the owner upon reversion.
¶36 	To the contrary, as Union Pacific contends, Congress
has specifically authorized railroad companies to transfer their
federally-granted property interests to certain local government
organizations. 	“For the purposes of this title the consent of
the United States is given to any railroad or canal company to
convey to the State transportation department of any State, or
its nominee, any part of its right-of-way or other property in
that State acquired by grant from the United States.” 	23 U.S.C.
§ 316 (1958). 	Union Pacific argues, and the district court
concluded, that UTA was a nominee of the Utah Department of
Transportation such that the sale was authorized by federal law
and did not trigger a reversion.
¶37 	To meet the requirements of section 316, (1) the
transfer must have been “[f]or purposes of [Title 23],” and (2)
UTA must be “a nominee” of the Utah Department of Transportation.
Id. 	Though Title 23 deals primarily with highways and other
roads, one of the enumerated purposes is to provide for the
“transportation needs of the 21st Century” including “national
and interregional personal mobility (including personal mobility
in rural and urban areas) and reduced congestion.” 	Id.
§ 101(b)(3)(D)(i). 	Certainly the public transportation projects
conducted by UTA help achieve this stated purpose.
¶38 	That UTA is a nominee of the Utah Department of
Transportation is less clear. 	Neither statute nor case law
specifically addresses what is required to be a nominee of a
State department of transportation, and neither Union Pacific nor
the district court explained its conclusion. 	However, a manual
provided by the Federal Highway Administration of the United
States Department of Transportation provides a hint of guidance.
The manual explains the process for federal land transfers under
similar federal statutes, 23 U.S.C. §§ 107(d) and 317.
Specifically, section 317 provides for the transfer of federal
lands for use in specific federal-aid projects and allows for
transfer to “the State transportation department, or its
nominee.” 	Id. § 317(b). 	Referring to such a nominee, the
federal manual suggests, “i.e. city, county, town, [or]
public-private partnership.” 	U.S. Dep’t of Transp., Fed. Highway
Admin., Manual for Federal Land Transfers for Federal-Aid
Projects 1.0, (Feb. 27, 2009), available at
http://www.fhwa.dot.gov/realestate/fltmanual/fltman1.htm. 	This
language is instructive inasmuch as it suggests that a local
government organization or quasi-governmental partner of a state

5 Originally codified at Utah Code Ann. §§ 11-20-1 et. seq.
(1969), the Utah Public Transit District Act was renumbered and
amended in 1990 and again in 2007, and we cite to the current
version.
No. 20080124 	18
transportation department may qualify as a nominee under the
statutory language.
¶39 	In this case, UTA is a public transit authority created
under the power granted by the Utah Legislature in the Utah
Public Transit District Act. 	Utah Code Ann. §§ 17B-2a-801 to
-825 (2009). 5 	UTA purchased the 1870 Grant right of way from
Union Pacific using funds appropriated by the Utah Legislature
during the 2000 General Session that were appropriated to the
Utah Department of Transportation with “the intent 	. . . that
the Utah Transit Authority shall: 	(1) continue to develop a
regional commuter rail project proposal, . . . ; (2) include use
of the Union Pacific right-of-way in the commuter rail
right-of-way acquisition; (3) coordinate the project with the
Utah Department of Transportation, local governments, and
interested citizens.” 	S.B. 1, 53rd Leg., Gen. Sess. (2000). 	We
find it significant that the legislature would appropriate funds
to the Utah Department of Transportation for use by UTA in
developing a regional commuter rail project and believe it
indicates the type of relationship indicative of a “nominee” of a
state department of transportation. 	Thus, where UTA is a local
governmental entity that cooperates with and receives state
funding through the Utah Department of Transportation, and its
operations are congruent with the overall purpose of the statute,
we deem it a nominee of the state department of transportation
for purposes of section 316 of title 23 of the United States
Code. 	As a result, Union Pacific’s transfer to UTA was under
proper federal authority and did not trigger a reversion.
¶40 	We also note that even had the sale triggered a
reversion, the property interest would not have reverted to
Weiser, but to the United States. 	As aforementioned, the Supreme
Court has said that “the land forming the right of way therein
was taken out of the category of public lands subject to pre-
emption and sale” such that subsequent homesteaders (or pre-
emptioners) “acquire[] no interest in land within the right of
way.” 	Townsend, 190 U.S. at 270. 	When the 1870 Railroad Grant
went into effect, it thereby eliminated any claim of interest
Weiser’s predecessor Tomlinson had in the Property, since the
interest was not then perfected. 	The interest could not be
after-perfected as to the Property because Tomlinson received no
interest under his patent in the first instance, not even a
reversionary one.

19 	No. 20080124
VII. 	THE 1935 QUIET TITLE JUDGMENT WAS OF NO EFFECT
¶41 	Weiser further contends that because a Davis County
District Court quieted title to the Property in his predecessor-
in-interest, under the doctrine of res judicata the issue of
ownership is now barred from being re-litigated. 	However,
“whatever incidents or rights attach to the ownership of property
conveyed by the government will be determined by the States,
subject to the condition that their rules do not impair the
efficacy of the grants or the use and enjoyment of the property
by the grantee.” 	N. Pac. Ry. Co. v. Townsend, 190 U.S. 267, 270-
71 (1903) (quoting Packer v. Bird, 137 U.S. 661, 669 (1890)).
Where the district court’s quiet title judgment purported to
limit the ownership interest of the Railroad as granted by the
federal government, it was of no force or effect and cannot
therefore have a binding effect on the parties before us.
VIII. 	WEISER’S STATE LAW CLAIMS WERE PROPERLY DISMISSED
¶42 	Weiser lastly argues that the district court improperly
dismissed his state law claims with prejudice. 	In his brief,
Weiser specifically urges the merit of his claims for forcible
detainer, trespass, and unjust enrichment. 	However, the success
of each of these claims is predicated upon Weiser’s ownership of
the Property. 	Where we have concluded that the district court
correctly found that Weiser does not own the Property, Weiser’s
state law claims necessarily fail and it was not error for the
district court to dismiss them with prejudice.
CONCLUSION
¶43 	The relevant date for preempting a piece of land from
the scope of a federal railroad grant depends on the type of
grant. 	If the federal grant is a general right of way, employing
no excepting language, a pre-emption claim that has attached, but
has not been perfected by full payment, is insufficient to remove
it from the effect of the grant. 	As the 1870 Railroad Grant is
for a right of way and does not employ excepting language, and
where Weiser’s predecessor had not yet perfected his title, the
attachment of the pre-emption claim did not prevent the Property
from passing to Utah Central upon enactment of the Grant. 	Thus,
although full payment, not receipt of a patent, was the proper
date for pre-emption, the district court properly held that Utah
Central’s interest was not preempted by Weiser’s predecessor.
Accordingly, it was not error for the district court to reject
Weiser’s evidence on the issue.

No. 20080124 	20
¶44 	In addition, although Utah Central failed to file the
accepted map within the stated deadline, only the federal
government has standing to challenge the failure, which it has
not done. 	Further, our previous case law upholding the 1870
Railroad Grant presumed its validity without deciding the effect
of the late-filed map. 	Thus, although the district court was not
bound by stare decisis, it correctly held the Grant to be valid.
¶45 	Next, we vacate the district court’s conclusion that
the 1870 Railroad Grant conveyed an interest in limited fee, and
hold only that the interest was of a corporeal nature somewhere
between mere surface rights and a limited fee. 	Nonetheless, this
interest was made subject to reversion if Utah Central or its
successors failed to use the Property for the purpose stated in
the Grant. 	Congress has since given permission for a railroad to
convey its granted interest to a state department of
transportation or its nominee. 	UTA is the apparent nominee of
the Utah Department of Transportation, thus its purchase of the
Property did not trigger reversion. 	And in any event, Weiser
does not hold a reversionary interest.
¶46 	Further, the district court was correct in holding that
the 1935 quiet title decree was invalid because the district
court did not have authority to circumscribe the rights properly
granted by Congress through the 1870 Railroad Grant.
¶47 	Finally, Weiser’s state law claims are predicated upon
his ownership of the Property. 	The district court properly held
that Weiser does not have ownership of the Property, and the
court was therefore correct in dismissing his state law claims
with prejudice.
¶48 	Affirmed in part and vacated in part.
---
¶49 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.