Leo Sheep Company v. United States – Oral Argument – January 16, 1979

Media for Leo Sheep Company v. United States

Audio Transcription for Opinion Announcement – March 27, 1979 in Leo Sheep Company v. United States
Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Warren E. Burger:

Justice Stewart.

We’ll resume arguments in Leo Sheep Company against the United States.

Mrs. Beale.

Sara Sun Beale:

Mr. Chief Justice and may it please the Court.

When Congress made the railroad land grants that reserved a total of approximately 100 million acres of public lands that were interspersed, checkerboard fashion with the lands that it had granted to the railroads.

The railroad received the odd-numbered sections that completely surrounded each of the retained public sections.

It’s not possible to either enter or leave any of the retained public sections without passing over some portions of the lands that were granted to the railroads.

The question before this Court is whether Congress reserved a legal and forcible right to enter and leave those 100 million acres of public lands.

We submit that Congress’ intent to reserve a right of access was manifest in the pattern and in the plan of the railroad grants.

In the same way, as a private grant towards intention to reserve a right of access to lands that he retains when he makes a grant maybe implicit or manifest in the pattern of the grants.

It was settled that common law that where a private grantor conveys away lands that completely surround another portion of lands that he retains.

He is presumed or assumed to have reserved some right of access so that he can enter and leave that lands that he retained in order to make use of them.

William J. Brennan, Jr.:

Who is the private landowner doesn’t have the right of eminent domain, does he?

Sara Sun Beale:

Well, that’s certainly true and one of the suggestions that the petitioners have made here is that perhaps Congress intended to first grant out these 100 million acres of land and then use the power of eminent domain in order to secure access to issued these checkerboard sections one by one.

And we’ve suggested in our brief that it is inconceivable that Congress could have purposely intended to set up a pattern or a mechanism that would be — that cumbersome and unworkable.

It would have completely overpowered the state territorial and federal courts to have set up that kind of mechanism.

And moreover, we can see from the history of the use of these grants that the Federal Government did not turnaround after making the grant and begin a concerted pattern of condemnation on these rights of way.

So we think not only was that an unworkable way of gaining access to these lands but we find no evidence that that is what Congress either did intend in the legislative history and no evidence that that in fact is what occurred after the land grants were made.

So although, it is true that Congress does that United States retained the right to use the power of eminent domain were necessary.

We think that that really does not provide the key to interpreting what Congress intent was when it made that checkerboard pattern of land grants.

William H. Rehnquist:

Mrs. Beale, I suppose it’s well-established that the question of the construction of a federal grant is a federal question but what body of law does one turn to in deciding that federal question.

Is it a general common law of real property?

Sara Sun Beale:

Well, I think that that may provide some kind of basis for interpreting what Congress’ intent is?

Of course the general cases, teaching how to interpret the Acts applies.

We would look to the legislative intent.

We would look to the administrative construction.

And we might also look to the context in which the grants were made, the historical context.

And we might also look to the — in doing now, we might look to the common law basis for land grants to see how one might interpret the intent of Congress.

So I think all of those would provide a guide.

William H. Rehnquist:

Do you see —

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Potter Stewart:

Are we — excuse me, go ahead.

William H. Rehnquist:

Do you see any difference in the common law between an implied easement and easement of necessity?

Sara Sun Beale:

Well, one can try the things — I should make our point here.

We are not claiming that there was a common law easement of necessity created when Congress made these grants.

What we are saying and this goes back to my prior answer you is that the assumption that underlies the common law rule about easements of necessity and that also plays a part in other kinds of implied easements about attempting to construe the intent of the parties.

And about what the grantor’s intent must have been in this kind of circumstance is the guide here.

So we are not claiming a common law easement by necessity.

What we are seeking to do is to ascertain the intent of Congress by looking to rules about common law easements by necessity and there are broader rules about easements by implications, so there are some differences.

Potter Stewart:

You’re claiming reservation, aren’t you?

Sara Sun Beale:

Of reserved —

Potter Stewart:

Not an easement by necessity, does it?

Sara Sun Beale:

That’s exactly right.

A reserved easement and implied —

Potter Stewart:

Since the grantee with the power of eminent domain can never show an easement by necessity because it — there is no necessity.

It can always condemn?

Sara Sun Beale:

Well, one could certainly make that argument and some of the state courts have certainly suggested that under state law, no easement by necessity can be — yes, sir.

Potter Stewart:

Exactly.

You’re claiming a reservation.

Sara Sun Beale:

That’s correct.

Potter Stewart:

And so —

Sara Sun Beale:

And we are —

Potter Stewart:

And the —

Sara Sun Beale:

— using that —

Potter Stewart:

To follow up my Brother Rehnquist question, now are we hearing the area of real property law or we are — are we in the area of simple legislative construction?

Sara Sun Beale:

We believe that this is primarily a question of legislative construction.

What we think in trying to interpret what it was that Congress was doing that not only may Congress intent be judged by what its assumptions were about property law but also that there is an underlying logic to the common law dealing with easements by necessity which is that a grantor must have intended to reserve a right to make use of the property that he retained that that’s manifest in the pattern of his grant.

And that is what we really rely upon —

Potter Stewart:

Do it also follows that in the — that the grant to the railroad was also a grant of an easement over the retained property of the Government, wouldn’t it?

Sara Sun Beale:

Well, we think not.

And again, by looking to the circumstances of —

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Potter Stewart:

The same circumstances applied, each one is land lock so to speak, isn’t it?

Sara Sun Beale:

Well, that’s not quite true in the sense that for many, many years of — before the land grants were made the Federal Government had developed a well-established policy of allowing locations of roadways, all across the public domain.

Potter Stewart:

Right.

Sara Sun Beale:

Now, that was not established by statute until 1866.

But this Court has clearly in the Alameda County case which we cite in our brief.

Interpreted that 1866 Act as con — as a recognition of a preexisting right that was broader then, really.

Anything that would be needed to gain access to the checkerboard land grants, any is different in kind from simple right of access back and forth from one checker to another.

So we think that the context of the most logical assumption is that Congress knew that it had a policy of allowing runways to be located across the public domain.

Otherwise, they never could have been settled anywhere.

And that provides one part of the context with this Act but the other part of the context is that when it left a 100 million acres land lot in a checkerboard fashion that it must have been intended to reserve a legal right to get in and out, ingress and egress for those sections.

Not a right dependent upon the fact that no one would challenge them.

It didn’t intend that all federal officers, agents and grantee should be trespassers who could be thrown off.

William H. Rehnquist:

Miss Beale, to go back to the Alameda County and the custom that was established, would the roads established person that customer that drives survive a patent of the Government sections to a landowner?

Sara Sun Beale:

Yes.

The patents were taken subject to the runways that were established?

William H. Rehnquist:

How about —

Sara Sun Beale:

Now, I think there’s a good body of case law to that effect —

William H. Rehnquist:

How about roadways that weren’t actually established?

Sara Sun Beale:

You mean, if no roadway —

William H. Rehnquist:

Yes.

Sara Sun Beale:

— had ever been established?

William H. Rehnquist:

By the time of the patent.

Sara Sun Beale:

No.

The custom that was established pursuant or that was recognized in that statute would not have affected those.

They would be like any other private property and presumably one would go to — through another area if the owner at that point took his land and had built an improvement or whatever.

Potter Stewart:

Well since 1862, countless roads have been constructed through these areas, have they by state and local governments by the power of eminent domain?

Sara Sun Beale:

Well, certainly the power of eminent domain had been used of variety of different methods were used to locate these roads.

Pursuant to the statute that I just described, the state followed varying methods.

One of the states at least and perhaps others passed the statute that dedicated all of the section lines as public roads, so that as settlers came in, those were recognized as public roads.

Other states relied more upon prescription in some place counties, territorial governments, set up roads in — and a variety of methods were used to locate those roads.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Potter Stewart:

But in any event in the last 116 years, many, many new roads had been constructed through these areas, haven’t they?

Sara Sun Beale:

Yes.

And we —

Potter Stewart:

Often — often as through the exercise of eminent domain by — by state and local governments, isn’t that true?

Sara Sun Beale:

Well — first of all, I’d like to be clear on when we’re saying these areas.

I mean the areas where the checkerboard grants were located.

Potter Stewart:

Yes, the general areas where we have the checkerboard system as a the result of the 1862 statute.

Sara Sun Beale:

Well, and that would include both the land granted to the railroads —

Potter Stewart:

Exactly.

Sara Sun Beale:

— as well as to the —

Potter Stewart:

Exactly.

Sara Sun Beale:

— to the — the public and I guess what I — my clearest answer would be that the record here is not precise as to what was done in each locality.

And as to who owned the land when a particular road was located either on land granted to the railroad, land granted to the United States, there were some grant to a private party.

Whether the land was owned by the Federal Government and the county decided more than an easement, decided more to look than to locate a road.

In any event, the current authority for locating easements or whatever cost fairly and just as we’ve mention to the 1976 statute adopted by Congress’ party to federal land policy in Management Act.

And if a private owner of a railroad land that was originally patented to the railroad needed to locate an easement to get in and out of his checker.

Now, that’s not the case here because of course the Leo Sheep Company and Palm Livestock Company have tailored grazing it permit and they do not require — there having a problem of access.

But if they did, they could apply to the Secretary of Interior and get an easement in and out, if need be.

So there is a mechanism and the particular statute passing 1866 is no longer enforced.

But — but there is a mechanism and I would emphasize to the Court that we did not go into in great length the reasons why believe that no reciprocal easement was created across the federal lands for one reason because it is so clear that in this particular case, no such easement was required or claimed.

And indeed we think that that was as it — this is a general matter quite true that the federal statutory provisions, the policies, the new provision are quite adequate and have been quite adequate to ensure that the grantee over the railroad have had access, and that’s really not a problem.

Potter Stewart:

Of course 116 years to avoid this basic question hand arisen before in a 116 years and it occurred to me the reason is that they — as a practical matter doesn’t often arise because there are roads through this area.

There is access by public roadway.

Sara Sun Beale:

Well, certainly now there’re many roadways.

We have cited in our brief some of the early cases which do in fact recognize the theory that we put forth here that there is an implied reservation so that there — the grantees of the United States and federal agents and so forth can go in and out.

That’s another answer to why this wasn’t a problem.

And we should emphasize that the right that we claim here is in essence only when to have important applications in areas like this.

Where — where there are not a pattern of roadways already built up.

We claim only the necessary access in and out, ingress and egress and in developed areas, that’s simply not a problem.

Potter Stewart:

But not for the Government, for the public.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

Well, for governmental purposes which would include —

Potter Stewart:

That this is by the public to this late —

Sara Sun Beale:

Certainly would include that and it would also —

Potter Stewart:

It’s a public roadway, isn’t it?

Sara Sun Beale:

That — yes, it is.

It is a one lane —

Potter Stewart:

It’s not for just — to federal use?

Sara Sun Beale:

Well, I — perhaps, it is not absence that it’s limited to the use of federal officers and agents.

But it’s a —

Potter Stewart:

It’s not, is it?

Sara Sun Beale:

— federally built — that’s correct.

It’s a federally constructed reservoir and it’s a federally used in that sense.

Potter Stewart:

This is accessed by — for the general public?

Sara Sun Beale:

That’s correct.

Potter Stewart:

To this recreational area?

Sara Sun Beale:

That’s correct.

It’s a one lane to —

Potter Stewart:

This is generally — ordinarily be served by a public road.

Sara Sun Beale:

That’s correct, in that sense.

So I would emphasize as I say that the right that we claim here is a narrow one that we find to be implicit in the pattern of the grants and not a common law easement by necessity.

And we think really the burden of the petitioner’s argument is to establish that there is another reasonable alternative.

Congress must have intended that there could be used made of these retained 100 million acres.

And the question is really whether there is any reasonable alternative to the construction that we’ve put for it.

I’ve already suggested that we find — that we believe the use of eminent domain to secure a right of access to each of these sections.

Would’ve been totally unworkable and moreover, there’s no suggestion and its clear from the history that that method was not used.

And we think likewise the suggestion that Congress provided only that the settlers should work it out among themselves that perhaps stay in local laws if eminent domain would be used.

That perhaps people would not object to the passage of Government settlers and so forth is really not one that can be implied as what Congress intended.

The grants here were made to several large railroad corporations —

Lewis F. Powell, Jr.:

Mrs. Beale —

Sara Sun Beale:

— and.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

Yes, sir.

Lewis F. Powell, Jr.:

— may I interrupt just a minute.

Who would determine the location of these reserved rights of way?

Specifically, where would they go and who would decide it?

Sara Sun Beale:

Well, we think the principle that would be applied here is the general property law principle that applies to other kinds of easements by implication where there is no instrument that fixes the location and the general rule which we think is applicable here.

Is that they must be located in a manner that provides a minimal intrusion on the land that the easement crosses.

We think in many cases asked here, the location would be across the corner.

In the first instance, there would be an attempt to reach agreement between the two parties, the Government or the Government’s grantee and the grantee of the railroad.

And if that were not possible, which was the case here, the government or its grantee would have a choice of locating the easement where it was least intrusive.

So that in this case it was almost precisely on the corners except in one case there was a gate of some sort, a little down from the corner.

And the Government used that —

Lewis F. Powell, Jr.:

Did you see if there was — if there were no agreement that the Government would then determine where it should be located.

Sara Sun Beale:

Well —

Lewis F. Powell, Jr.:

Why would you go to court?

Sara Sun Beale:

Certainly it would be subject to —

Lewis F. Powell, Jr.:

Litigation?

Sara Sun Beale:

— either judicial proceedings —

Lewis F. Powell, Jr.:

Yes.

Sara Sun Beale:

— to determine whether the Government’s choice was reasonable.

Lewis F. Powell, Jr.:

Right.

Sara Sun Beale:

But in the first instance, the Government would need to try to satisfy the grantor, and if the grantor would not — of the railroad.

If the grantor of the railroad would not agree and would not say where he wanted it and the Government would have to try and determine what would be reasonable.

And I suppose either in this case — either of two methods could be used.

In this case, we located it where we felt it certainly was the least intrusive spot and the grantor brought an action against us, the railroad’s grantor.

I suppose we could also perhaps bring a suit to determine a declaratory judgment where it should be located.

Thurgood Marshall:

And this is a permanent road, the owner would never had anymore use of that corner?

Sara Sun Beale:

Well, in this particular case for example.

It’s a dirt road, I suppose if the owner needed to have it moved that might to make use of his property.

There might be some negotiation.

Thurgood Marshall:

But while the road —

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

All we have is the right of access.

Thurgood Marshall:

But while the Federal Government was using it and the public was using it, and he couldn’t use it?

Sara Sun Beale:

Well —

Thurgood Marshall:

Rather, the sheep could’ve used it?

Sara Sun Beale:

I think its cattle in this case despite the name of the company but —

Thurgood Marshall:

Well, sheep, cattle, bulldogs, whatever it is —

Sara Sun Beale:

Right, right.

Thurgood Marshall:

They couldn’t use it.

The land is gone so far as the private owner is concerned.

Sara Sun Beale:

That’s right.

In the sense that he couldn’t stop the public —

Potter Stewart:

So to that extent —

Thurgood Marshall:

Does he pay taxes on it?

Sara Sun Beale:

I think less the value of the easement.

His taxes would be reduced in the sense that his property would be valued by — would be less than the value of the — you know, subtract the value of the easement.

Potter Stewart:

Normally in — this is more than just an easement if — as we agree as this for the — for public, use as a public road.

It’s more than an easement for just to access, ingress and egress over a piece of property which the fee title owner retains title to as suggested by my Brother Marshall.

This is a — a road generally is — the title goes to the governmental body that owns and operates the road?

Sara Sun Beale:

Well, I’m not certain with the most usual —

Potter Stewart:

I mean, in other words, there couldn’t be grazing or anything else on this road, if it’s a road.

And if you’re right, it’s more than just an easement of once a day or once a week, the — an adjacent owner going over it?

Sara Sun Beale:

Well, I think its equally in the case of — lets go get to our paradigm case of the private grantor who would perhaps make a grant of this same size, a piece of property to adjacent pieces, a need to reserve a right of access.

In some case —

Potter Stewart:

Cross easements —

Sara Sun Beale:

Pardon me?

Potter Stewart:

You’re talking about cross easements of adjacent landowners?

Sara Sun Beale:

Well, if you imagine the donut shape which is always the law book example —

Potter Stewart:

Yes.

Sara Sun Beale:

— the grantor reserves the little piece of the donut in the center.

Potter Stewart:

Right.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

And we refer to his having reserved an easement even though, it maybe necessary in some case to have a dirt road such as this.

He may have — he may subdivide that and put —

Potter Stewart:

But it’s not a public road?

Sara Sun Beale:

I’m sorry?

Potter Stewart:

The easement belongs to the fee title owner of the center of the donut —

Sara Sun Beale:

The easement belongs —

Potter Stewart:

— for his use.

It’s not for the use of the public.

Sara Sun Beale:

Well, it’s for the uses that he can offer it —

Potter Stewart:

His use including his visitors.

Sara Sun Beale:

That’s — well, that’s right and I guess I would say that are used (Inaudible) include the visitors to our reservoir.

Thurgood Marshall:

Mrs. Beale, one more question.

For all practical purposes insofar as the owner of this land is concerned.

If you succeed here and use this corner of his land, what is the difference so far as he is concerned and his rights by taking it this way or taking it by eminent domain outside the money?

Sara Sun Beale:

I think that the best answer to that is, if there is a system of public loads — roads later located in this area our right of access would no longer be enforceable.

In other words, if we can get in and out of our lands otherwise as soon as an area becomes built up —

Thurgood Marshall:

Would you take —

Sara Sun Beale:

— we no longer have a right —

Thurgood Marshall:

Well, would you take the road up and move it?

Sara Sun Beale:

Well, in this case and perhaps this is the easiest example of all.

All we did was come in and blade-off the grass to provide a track to go in and out.

Now in other cases perhaps it would be necessary for us to put on gravel or whatever and then take it up if we no longer needed that for right of access.

But the — and this goes back to the point that Mr. Justice Stewart was making also that the railroad grantee does retain the title to that land.

And if are easement or right of access or way of access in and out is no longer necessary for us to use then we no longer have a right.

We no longer have enforceable right and that is an important difference than what would happen in the case of eminent domain where we would take full permanent title to that land.

Potter Stewart:

Well, that’s my — that was going to be my question.

Ordinarily, when the Federal Government wants to build a public road and proceeds to acquire the property by condemnation proceedings does it try to acquire just and easement or does it try to acquire the fee?

Sara Sun Beale:

Well, Mr. Martz may have some comment on this.

It’s my understanding, very often we acquire only in easement.

Now, that may not be the case in the case of a eight-lane superhighway.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Potter Stewart:

Yes.

Sara Sun Beale:

Perhaps when the project is so large, a fee title is taken but in many cases only an easement is taken.

And I’m not certain where the dividing line is.

There maybe discretion.

William H. Rehnquist:

Miss —

John Paul Stevens:

Mrs. Beale, I was going to ask you about the eight-lanes superhighway as Justice Stewart has suggested, you can have anything from a — of a footpath to a swimming hole perhaps to the eight-lane superhighway.

If there’s no definition of the reservation for which you argue, would it be permissible under your theory of the case if — for the Government to say, what we really need is the superhighway?

Sara Sun Beale:

No, sir.

John Paul Stevens:

Why — why not?

Sara Sun Beale:

We believe that all that was implicitly reserved here is a reasonable right of ingress and egress to make use of these properties.

Now, we — certainly the problem is more difficult here than if the grants had spelled out by metes and bounds or whatever, what that would entail?

But there’s a whole body of common law which has developed in terms of or to meet the problem of trying to define what is reserved when there’s an implied easement.

And we think that that body of law would be looked to here to determine the extent.

And in essence, what we’re saying is what Congress could have reasonably foreseen as a need to get in and out to make use of those sections would govern.

Certainly what we have here I think is within what Congress would have intended.

Congress believed that these sections as Mr. Martz described yesterday would in fact that retained Government sections would be subject to homesteading and development.

Congress thought that putting the railroads out to the west would bring people from the east, allow them to settle and develop that land.

William J. Brennan, Jr.:

Mrs. Beale, then you would measure reasonable as of 1862 rather than as of today, isn’t it right?

Sara Sun Beale:

Well, only in the sense of what Congress could have comprehended and Congress did clearly comprehend development of those sections.

William J. Brennan, Jr.:

Well —

Sara Sun Beale:

If something perhaps like the process that the Court goes through in the case of implied water reservations where the notion is that at the time the conveyance for the grantor whatever was made or the reservation was made.

What Congress foresaw is the present and the foreseeable future needs is the guide.

And that is the same guide that’s used in the case of a private grantor and we would say clearly the roadway here is within that contemplation.

William J. Brennan, Jr.:

Would your position be the same assuming that within two or three years after the transfer to the railroad, the Government had sold all of the Section 1622 and 14 to a private owner.

Would that private owner have precisely the same claim the Government is now asserting?

And then the private owner developed the reservoir?

Sara Sun Beale:

I’m — it’s not clear to me why there would be any difference.

We do think that the right that Congress reserved was for the benefit of those pieces of — parcels of land so that they could be used.

In an instance, the benefit would be conveyed with the parcels of land.

William J. Brennan, Jr.:

In other words —

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

In other words, we do no good if we only had the right to use it.

But as soon as we conveyed it to the settlers that we expect to —

William J. Brennan, Jr.:

You don’t relied at all on the fact that it is the United States Government were to solve or anything like that?

It would be —

Sara Sun Beale:

No, not in that sense, no.

William J. Brennan, Jr.:

— it was precisely the same claim could be made by an assignee if the Government sent this?

Sara Sun Beale:

Yes.

And — and we think that is so precisely because of our understanding of what Congress was trying to do here which was to grant the odd-numbered sections to the railroads to encourage them to build this rail line, keeping these retained sections knowing that there would be enhancing value that they would be available for settlement and planning to sell those off at double the normal price recouping the investment that it had made to the railroad and allowing settlement to progress out west.

And only by reserving the right to get in and out in for its grantees and the settlers and so forth to have a right to grin — to get in and out of those sections could that plan really have been accomplished.

And that’s the problem of course with the petitioners’ argument.

Even if Congress has assumed that in many cases no one would have objected, its planned for the development of the rail lines and the settlement of these sections was dependent upon a right of these settlers to get in and make use of this land that would not be subject to veto power in essence by several large railroad corporations who owned the sections completely surrounding each one of the retained public sections.

William J. Brennan, Jr.:

May I just — I want to make sure I didn’t misunderstand something, earlier you said, you do not take the position however that the railroad had a corresponding right as against the reserved lands?

Sara Sun Beale:

That’s correct and we believe that is so because again, look in —

William J. Brennan, Jr.:

But why would they — they were going to sell to people who would be neighbors.

Why would that be different?

I just — I need some help on that?

Sara Sun Beale:

Well, because when the railroads, settlers, grantees, whatever came in.

They had the right under the 1866 Act to locate their roads across the public domain.

And we believe that was the mechanism that was used.

Now, we don’t disagree for moment that by enlarge most of these problems were worked out by agreement among the parties because everyone needed to get in and out but in the sense of a necessity for reserving a legal right of access.

William J. Brennan, Jr.:

I’m sorry, I must — I’m — perhaps not grasping the full period.

You say the grantees from the railroad had a right to locate roads over the reserved public lands.

But what if —

Sara Sun Beale:

Under —

William J. Brennan, Jr.:

— the public lands had been sold in the meantime?

Potter Stewart:

Exactly.

Sara Sun Beale:

Well, in essence at some point, one gets back to the same problem that it took place under the Homestead Acts and under the other location of the Preemption Acts and so forth which is that some grantee may have wanted to locate a road across someone else’s —

William J. Brennan, Jr.:

Well, am I correct — let me just stick with this to be sure I understand.

Am I correct in assuming that at least it was theoretically possible, if all the land was sold that the people in the odd-numbered sections would not have the right you say the people in the even-numbered sections would have?

Potter Stewart:

That’s right.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

Yes.

I said, had all —

William J. Brennan, Jr.:

And you said the —

Sara Sun Beale:

Happened at one cell through — suddenly without any location —

William J. Brennan, Jr.:

Is it reasonable that Congress so intended?

Sara Sun Beale:

Well, we believe not only that it is reasonable that the plan shows that and that what has happened in the intervening years makes that clear too.

There — virtually no instances of the railroad grantees who in fact had the problem that you described.

The 1866 Act was used extensively.

The Title V provisions are used now and the problem that we have that we do see occasionally cropping up is the railroads and their grantees blocking access.

One of the entrances of course to this is that the only large block conveyance was to the railroads.

The only single party who could have blocked access is in any one area is the railroad who received all of these grants.

In the case of grants of — to small party’s homestead —

William J. Brennan, Jr.:

But they received but they understanding and they would resell, wasn’t it, that part of the idea?

Sara Sun Beale:

The railroads received the land —

William J. Brennan, Jr.:

On the understanding it would be financing and therefore, they were expected to resell, I know that they —

Sara Sun Beale:

They were —

Potter Stewart:

How do they sell it or else it would be subject to a homestead in your —

Sara Sun Beale:

They had to sell or dispose —

Potter Stewart:

Yes, and they —

Sara Sun Beale:

— which meant — and there was no requirement that the railroad lands be sold off to small landowners.

In fact, that didn’t happen in many areas.

The Government lands which are to be disposed off in a — essentially 160-acre parcels.

Single little parties scattered all over the west.

The only large block prints, the only party who could’ve frustrated the development of a whole area was the railroad who received —

William J. Brennan, Jr.:

Well that’s true, but they were expected to develop the land and thereby enhanced the value of the retained Government lands.

Sara Sun Beale:

Well, that’s —

William J. Brennan, Jr.:

But somehow they (Voice Overlap) —

Sara Sun Beale:

— why in the sense that the — and it’s perhaps maybe a little more complicated than that in the sense that the Platte case recognized that all the railroads had to do was to make some use of this land to finance the construction of the railroads within a certain point after the railroads were constructed.

They were able to and they did in many cases convey largely into holdings to a subsidiary to a mortgagor and that party just as much as the railroad could have blocked the development and settlement of the Government sections.

No grantee of the Government would have had that kind of power.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Sara Sun Beale:

It wasn’t possible for any single grantee of the Government in these 160-acre parcels to frustrate the development of the land granted to the railroad and it didn’t happen.

And I would emphasize again that we did not develop all of the reasons in our briefs.

Why we moved — we — that there is no retained or there was no grant of an easement across the Government lands because that question is not in the case.

That the part — the petitioners here have the Taylor Grazing Act permits and they used all of our lands whereas Mr. Justice Blackmun pointed out yesterday, what we want to do is use a corner of their lands.

I see my time is up.

Unless there are further —

William H. Rehnquist:

Mrs. Beale, I do have one further question.

Your answers to the questions posed by some of my colleagues on the opposite side of the bench indicate that the parties would be entitled to litigate in Court over the reasonableness of the Government — of the easement which the Government designated across the property.

Doesn’t that undercut to a certain extent your original argument that Congress couldn’t have intended a system whereby Congress had to go — the Government had to go and then condemn this by eminent domain because the Courts just couldn’t have handled it?

Sara Sun Beale:

Well, I guess that I would say, not in the sense that in most cases particularly before the land was developed to any great extent.

The obvious reasonable place would be the corner and there would be no point to the private grantee of the railroad going to Court to challenge that.

He’d get nothing out of it.

That would clearly be the least intrusive.

William H. Rehnquist:

That’s doing eminent domain to though, isn’t it?

I mean, the intent — many eminent domain cases, the private owner welcomes the Government putting in a road and that simply agrees not to seek any condemnation not — the expenses or value in exchange for the value to him of the road?

Sara Sun Beale:

Well, that maybe true and I guess our point is really that.

If Congress had thought that no one could enter these sections except as trespassers until it went out section by section and determined.

Did it have to bring an eminent domain proceeding and to bring those in cases where that was necessary?

That would be substantially more difficult process than what we suggest happened which is that there was a right to locate upon what appeared to be or to cross — what appeared to be at the reasonable and least intrusive spot.

And if it –if a dispute developed, then the parties would try and work it out.

And if not, the landowner could go to Court and say, “Wait a minute, you should use my gate down here and not go across the corner”, or “Wait a minute, I want to locate a house on the corner and you should go further down”, and that is different.

If only those disputed cases are subject to litigation, we would think.

Thank you.

Warren E. Burger:

Very well.

Mr. Martz, do you have anything further?

Clyde O. Martz:

Mr. Chief Justice and may it please the Court.

I’d like to make a couple of comments and then see if the Court has any questions with me.

I thought that the counsel’s analysis of the relationship between the odd and even-numbered sections provided an answer to a question Mr. Justice Blackmun put to me yesterday which is really what at stake in this controversy.

Counsel says that the — if the successors and enters to the odd-numbered sections, one access across the alternate even-numbered sections if still in public ownership they may seek a permit from the Secretary of Interior.

There’s nothing in the law that says that permit has to be granted or that it would be granted free of terms and conditions and restrictions.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Clyde O. Martz:

If those lands have passed a private ownership by homesteading, counsel had made it very clear that the homestead had took a free title without any encumbrance upon if for the benefit of the alternate odd-numbered sections.

But if the United States either for access to the alternate even-numbered sections or for public access to a development such as Seminoe Reservoir wants to use the private lands of successors and enters of the railroad they can take that road without compensation, determine the size of the burden where the road will be located with the right in the landowner to either negotiate for some alternative.

Or to go to Court and seek a determination that the easement is excessive.

The landowner may have paid taxes upon the land subject to the taking of a road for an easement.

I think if the Court would look at United States against Ridge — Ringe in the Southern District of California cited on page 19 of our brief.

We see the burden that’s posed — that’s put on the ranching landowner of the Government exercising these rights of driving roadways or highways willy-nilly across ranch lands, breaking it up into parcels and destroying the utility of the land, now in the hands of purchasers for value based upon clear patents and a clear record title by examination.

If the Government has to go by con — the condemnation route, it will have to pay not just for the small bits of land on corner crossings but it must — going to have to address the impairment of value to the residual lands caused by the opening of unfenced public access routes across consolidated ranch areas.

This Court has said many times as cited on page 24 of petitioner’s brief that a construction that others title securities should be limited to cases where there is a compelling need and that litigation should be avoided as a consequence of a construction.

Here we have a case where we have had a uniformed administrative construction for a 100 and now 16 years.

It’s apparent that if the Court of Appeals decision is sustained, we’re going to impose an encumbrance upon some a 131,000 acres that had been patented under language like Section 3 in this and other Acts.

It’s not illogically that we’re also going to cloud a 100 million acres of title in these reserved even-numbered sections.

And as — the Government has pointed out in our argument, we’re going to have litigation over the size and burden of these rights of way.

Warren E. Burger:

That might be more complex than the kind of litigation we traditionally have over a condemnation, would it not?

Clyde O. Martz:

Much more so particularly when the values that counsel describes — I’m sorry Your Honor.

Warren E. Burger:

Go ahead.

Clyde O. Martz:

We shall I finish?

Warren E. Burger:

Yes.

Clyde O. Martz:

The values described are not significant unless there is an impairment of beneficial use of the adjoining lands.

It would not likely go to condemnation because the values are not significantly enough for that purpose.

Warren E. Burger:

Normally when the sovereign is going to condemn land for a road or for any other purpose, the sovereign says, it shall be here.

If none, devaluation is determined —

Clyde O. Martz:

Right.

That is correct.

Warren E. Burger:

— after that.

The Court is — or could it — does a question, does the Court ordinarily in a condemnation get into the question of where the road shall be?

Clyde O. Martz:

No, sir.

It does not.

The United States —

Warren E. Burger:

The road is day to day, they — the passageway is determined according to need and presumably the engineers take into account the most economical way to put the road in?

Clyde O. Martz:

Well, the United States can take the road any point it thinks is in the best interest of the project and then damages are computed on the basis of the burden resulting to the private lands.

Audio Transcription for Oral Argument – January 15, 1979 in Leo Sheep Company v. United States

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Clyde O. Martz:

Thank you Your Honor.

Warren E. Burger:

Thank you counsel.

The case is submitted.