opinion: 'Of course, nothing that has been said in any wise imports that a right of way granted through the public domain within a state is not amenable to the police power of the state. Congress must have assumed when making this grant, for instance, that in the natural order of events, as settlements were made along the line of the railroad, crossings of the right of way would become necessary, and that other limitations in favor of the general public upon an exclusive right of occupancy by the railroad of its right of way might be justly imposed. But such limitations are in no sense analogous to claim of adverse ownership for private use.' It seems clear from the quotation last made that the federal Supreme Court recognizes the power of the state to determine whether the whole of a right of way which has been created by federal grant through an act of Congress is actually needed as against the requirements of the public service which arise with the increase of commerce and transportation necessities. It has been repeatedly held by this court that the power exists in this state when public necessity requires it for one railway or public service corporation to condemn a part of the right of way of another railway company or public service corporation which is not necessary for the exercise of the latter's franchise. (Citing authorities.) It has also been repeatedly held by other courts that a right of way of a railroad company which has been acquired for that express purpose through a federal grant is not exempt from the operation of state laws of eminent domain. (Citing authorities.) It is true the most, if not all, of the last-cited cases related to crossings of other railroads over a right of way acquired by federal grant, whereas, the tract here sought is not for mere crossing purposes, but is a longitudinal tract, about three-fifths of a mile in length, to be carved out of claimant's right of way. The principle as to the power of eminent domain is, however, the same in both cases, depending upon the necessities of the occupying railroad and those of the public service. This court has held that a longitudinal portion of a right of way may be condemned by another railway corporation where the occupying railway does not actually need it, and where it is needed by the other in the interest of the public service."

[5] That complainant's right of way was acquired by virtue of an act of Congress does not exclude, under a proper state of facts, the doctrine of equitable estoppel, we think recognized by the court in Spokane & British Columbia Ry. Co. v. Washington & Great Northern Ry. Co., 219 U. S. 166, 31 Sup. Ct. 182, 55 L. Ed. 159, heard on error from the Supreme Court of the state of Washington, a case involving rights under a grant by Congress of a railroad right of way, the court refusing to consider the question of estoppel for the reason that that was not a federal question.

In the case before us, the Greeley, Salt Lake & Pacific Railway Company was given life by action on the part of the Union Pacific Railway Company (complainant's predecessor), and given a permanent situs upon a portion of its unused and unrequired right of way. was started in its operation as a public carrier by the Union Pacific Railway Company, its property represented to include such unused and unrequired portion of the right of way mortgaged by officers of the Union Pacific Railway Company. Through the foreclosure of such mortgage respondent, Colorado & Southern Railway Company, acquired its rights. To permit complainant to now come into a court of equity and successfully invoke the court's aid by a decree holding that the Colorado & Southern Railway Company is a mere licensee would be to sanction a most palpable fraud.

The respondent, the Greeley & Denver Railway Company owns and operates a line of road from Denver to Greeley and operates and

maintains its street railroad over and along certain of the streets and avenues of said city of Greeley, and in March, 1908, the city council of the city of Greeley granted to it a franchise to construct and operate its right of way over and across certain of the streets of the city of Greeley. The portions of its line of road which encroaches upon complainant's claimed 400-foot right of way is the portion on Seventh avenue from the south side of Tenth street to the north side of Seventh street in said city, and the only portion within the 100-foot strip is where it crosses complainant's right of way on Third street practically at right angles. The Greeley & Denver Railway Company has expended large sums of money in the construction and equipment of its road in the full faith and belief that said streets were properly and legally laid out and used by the public as such for some 40 years, and had no actual knowledge that complainant claimed any interest outside of the 100-foot right of way until about the time of the commencement of this action; that the ordinance of March, 1908, by which it, the Greeley & Denver Railway Company, was authorized to construct its road over certain of the streets and alleys of the city was published as required by law and that the acts and doings of said respondent, in constructing its track along said streets and avenues were well known to the general public, and complainant had knowledge of such construction work on Seventh avenue but made no complaint to said Greeley & Denver Railway Company until it commenced the construction of its road on Third street across complainant's right of way at right angles, when complainant commenced this action.

The Denver, Laramie & Northwestern Railway Company owns and operates a railroad from Denver into the city of Greeley and has under construction its line of road northerly from the city of Greeley. It organized the Greeley Terminal Railway Company, said terminal company owning and holding its terminal facilities and right of way. in said city. Such terminal company obtained from the city council · of Greeley authority to construct its line through and over certain of the streets in said city, but none of the right of way of the Denver, Laramie & Northwestern Railway Company or the Greeley Terminal Railway Company encroaches upon the 100-foot strip of complainant's right of way. It has at large expense purchased and obtained property from individuals apparently owning through mesne conveyances from the Union Colony, and in possession of portions of said 400-foot right of way outside of the 100-foot strip, removed buildings and obstructions there from and prepared the same for the laying of its tracks without any complaint upon the part of complainant until the commencement of this action.

The Chicago, Burlington & Quincy Railroad Company obtained by purchase and by condemnation proceedings, at an expense of many thousands of dollars, for the construction of its line of road, property included within complainant's claimed 400-foot strip and outside of the 100-foot strip, such purchases and condemnation proceedings being from and against the parties who acquired title by mesne conveyances from said Union Colony and upon a considerable portion of said property were dwelling houses and business buildings which had for

a long time theretofore been occupied as such, and claimed to be owned by the parties having title through said Union Colony, and without any protest from complainant or any of its predecessors. All of which was acquired openly and publicly, without any protest upon the part of complainant until about the time of the commencement of this action.

Considering all of the foregoing facts, that the acquisition of the property by the respondents is for public and not for private use, that the portion of the same which encroaches upon complainant's alleged right of way is not now required by the complainant, and, so far as is disclosed by the evidence, will not be necessary in the near future, to enable complainant to fully and freely discharge its duties to the public, we think complainant fully estopped from now claiming as against these respondents that it is entitled to the present possession of the entire 400-foot right of way; that the decree of the court below was right, and it is, therefore, affirmed.

REED, District Judge (concurring in part, and dissenting in part). I concur in the foregoing opinion that appellant is now estopped from claiming or having a right of way over the lands in controversy through the defendant city of Greeley in excess of 100 feet in width, except through blocks 42 and 59 in said city where its right of way and depot grounds are 200 feet in width as decreed by the Circuit Court; but I am of opinion that appellant's alleged right of way dates only from the act of Congress of March 3, 1869.

The lands over which the appellant claims its right of way are in section 32, township 6, and sections 5, 8, and 17, township 5 north, in range 65 west, in Weld county, Colo., and about midway between Denver, Colo., and Cheyenne, Wyo. The subdivisions thereof over which the appellant claims its right of way, except those in section 17, had been sold by the United States, or were subject to uncanceled pre-emption, homestead, or other claims of record in the local land office at Denver and recognized by that office as valid, at the time of the passage of the act of March 3, 1869, and were not then public lands of the United States. Kansas Pacific Co. v. Dunmeyer, 113 U. S. 629, 637, 5 Sup. Ct. 566, 28 L. Ed. 1122.

Appellant claims its right of way over these lands under the act of Congress of July 1, 1862 (12 Stat. 489), as the successor in title and interest of the Leavenworth, Pawnee & Western Railroad Company, one of the grantees named in said act, whose name was subsequently changed to the Union Pacific Railroad Company, Eastern Division, and later to the Kansas Pacific Railway Company (which for convenience will hereinafter be called the Kansas Company) and the acts of July 2, 1864 (13 Stat, 356), July 3, 1866 (14 Stat. 79); and of the Kansas Company and the Denver Pacific Railway & Telegraph Company under the act of March 3, 1869 (15 Stat. 324).

The acts of 1862, 1864, and 1866 were reviewed at some length by this court in the recent case of Stuart v. Union Pacific Railroad Company (this appellant) 178 Fed. 753, 103 C. C. A. 89, and the applicable parts thereof are set forth in the opinion in that case, and

189 F.-2

need not be here repeated in full. The land involved in that suit is in the vicinity of, but easterly from, the city of Denver, and the road crossing it is that part of the line of the Kansas Company between the western boundary of Kansas and the city of Denver. A consideration of the act of March 3, 1869, was not necessary to a determination of that case, and it is there but little considered. That act is material to the determination of this controversy, and is as follows:

"Section 1. That the Union Pacific Railway Company, Eastern Division, be, and it hereby is, authorized to contract with the Denver Pacific Railway & Telegraph Company, a corporation existing under the laws of the territory of Colorado, for the construction, operation, and maintenance of that part of its line of railroad and telegraph between Denver City and its point of connection with the Union Pacific Railroad, which point shall be at Cheyenne, and to adopt the roadbed already graded by said Denver Pacific Railway & Telegraph Company as said line, and to grant to said Denver Pacific Railway & Telegraph Company the perpetual use of its right of way and depot grounds, and to transfer to it all the rights and privileges, subject to all the obligations pertaining to said part of its line.

"Sec. 2. That the said Union Pacific Railway Company, Eastern Division, shall extend its railroad and telegraph to a connection at the city of Denver, so as to form with that part of its line herein authorized to be constructed, operated and maintained by the Denver Pacific Railway & Telegraph Company, a continuous line of railroad and telegraph from Kansas City, by way of Denver to Cheyenne. And all the provisions of law for the operation of the Union Pacific Railroad, its branches and connections, as a continuous line, without discrimination, shall apply the same as if the road from Denver to Cheyenne had been constructed by the said Union Pacific Railway Company, Eastern Division; but nothing herein shall authorize the said Eastern Division company to operate the road or fix the rates of tariff for the Denver Pacific Railway & Telegraph Company.

"Sec. 3. That said companies are hereby authorized to mortgage their respective portions of said road, as herein defined, for an amount not exceeding $32,000 per mile, to enable them respectively to borrow money to construct the same; and that each of said companies shall receive patents to the alternate sections of land along their respective lines of road, as herein defined, in like manner and within the same limits as is provided by law in the case of lands granted to the Union Pacific Railway Company, Eastern Division: Provided, that neither of the companies hereinbefore mentioned shall be entitled to subsidy in United States bonds under the provisions of this act."

After the passage of the act of 1862, the Kansas Company in July of that year filed with the Secretary of the Interior a map showing the general route of its road from the mouth of the Kansas river to Ft. Riley, Kan., thence northwesterly along the Republican river to a point on the 100th meridian of longitude in the then territory of Nebraska between the valleys of the Republican and Platte rivers, as required by that act. After the passage of the act of 1864, and in January, 1865, it filed another map designating substantially the same route shown in its map of 1862. February 21, 1866, after the expiration of the time for filing any map under the act of 1864, the company prepared another map, designating a route from Ft. Riley westwardly along the Smokey Hill river to the western boundary of Kansas and presented it to the Secretary of the Interior for approval. That officer refused to file or approve the same upon the ground that after. designating its route by the map of 1862, which had been duly approved, and upon which the lands had been withdrawn from market,

the route could not rightly be changed without legislative permission to do so; and in this he was sustained by the then Attorney General of the United States. And see United States v. Northern Pacific R. Co. 152 U. S. 284, 292, 293, 14 Sup. Ct. 598, 38 L. Ed. 443. Thereupon the company applied to Congress for such legislation and procured the passage of the act of 1866. Under that act the Kansas Company, on July 11th after its passage, prepared and filed with the Secretary of the Interior a map changing the route as designated in the maps of 1862 and 1864, from Ft. Riley northwesterly along the Republican river to the 100th meridian in Nebraska, to one westerly from Ft. Riley along the Smokey Hill river to the western boundary of Kansas, far to the south of the route from Ft. Riley northwardly as shown in the prior maps; and on November 28, 1866, it prepared and filed another map showing a continuation of that route westwardly from the Kansas boundary to Ft. Collins, Colo., by way of Denver. These maps were duly approved by the Secretary of the Interior; and upon the lines designated therein the road was built by the Kansas Company from Ft. Riley to Denver and accepted by the President in October, 1872, when its right to the lands and right of way as far as Denver became complete.

In the summer of 1867 the main line of the Union Pacific Railroad Company was constructed to a point 106 miles northeasterly from Denver, to what is now the city of Cheyenne in Wyoming, and the village of that name came into existence about August of that year. The Kansas Company had not then constructed its road westwardly from Ft. Riley beyond some point in Kansas near thereto, and the people of Denver were in much doubt of its ever being built to that city. In November, 1867, the Denver Pacific Railway & Telegraph Company was incorporated under the laws of Colorado by residents of that territory for the purpose of building a road from Denver to a connection with the Union Pacific Railroad at Cheyenne, and the citizens of Denver and the county of Arapahoe, in which that city is situated, subscribed and paid $500,000 in aid of its construction. Shortly thereafter that company (which will be called the Denver Company) surveyed and established its route for such road from Denver along the South Platte river to what is now the city of Greeley, and thence northerly to Cheyenne, and in 1868 graded its road from Denver to Cheyenne, and over the land in controversy, which land was in 1870, included in a plat of the village of Greeley, and is now within the limits of that city. On March 16, 1869, after the passage of the act of March 3d of that year, the Kansas Company, as it was authorized by that act to do, made a contract with the Denver Company to construct the road from Denver to Cheyenne upon the line and roadbed so established and graded by the Denver Company, and the Denver Company built the road pursuant to that contract and that act to a connection with the Union Pacific road at Cheyenne in about 1872, and afterwards maintained and operated the same upon that line as an independent road, but as a part of a continuous line from the mouth of the Kansas river to Cheyenne, until it was consolidated with and became a part of the road of the appellant; and