This is an application, by petition, for a writ of mandamus to the judges of the Circuit Court of the United States for the District of Colorado, commanding them to proceed and give final decree, in accordance with the opinion and mandate of this court, in the suit of the Canon City and San Juan Railroad Company against the Denver and Rio Grande Railway Company. The history of this litigation is set forth in Railway Company v. Alling (99 U.S. 463), to which reference is here made. The present application is supported by an exemplified copy of the proceedings had in the Circuit Court at its May Term, 1879, after the filing therein of the opinion and mandate of this court.
The main contention of the Denver and Rio Grande Railway Company was that the court below had failed and refused to comply with the mandate of this court; that, upon filing the mandate, that company became entitled absolutely, and beyond the discretion of the Circuit Court, to a decree restoring it, at once and unconditionally, to the possession of the Grand Canon of the Arkansas River; dissolving the injunction granted against it in that suit; adjudging that it had the prior right to occupy and use that canon for the purpose of constructing its railroad therein; and requiring the Canon City and San Juan Railway Company, its officers, agents, servants, and employes, to refrain from interfering with or obstructing the Denver and Rio Grande Company in such occupancy and use of the canon, or in the construction of its railroad in and through the same.
It is essential to a proper understanding of the present application to recall some of the leading facts in this litigation. The controversy between these two companies arose out of their respective claims to occupy and use the Grand or Big Canon of the Arkansas River for railroad purposes. The Circuit Court, upon the original hearing, held that prior right and location to be with the Canon City Company, with liberty, however, to the Denver Company to exhibit its bill in any court of competent jurisdiction to compel the former company to so locate and construct its road as to permit to convenient and proper location by the Denver Company of its road, or, if two roads could not be conveniently onstructed and operated in the canon, to occupy the track and roadway of the Canon City Company. While the causes were under submission in this court at its last term, it was represented that, after the rendition of the decree in favor of the Canon City Company, the parties and corporations concerned had entered into binding agreements, whereby the Atchison, Topeka, and Santa Fe Railroad Company, in its own right, and in connection with the Pueblo and Arkansas Valley Railroad Company (the successor of the Canon City Company), had become and was equitably the owner of all the property, rights, and interests of the Denver Company, and entitled to the control of its affairs, business, and suits of every kind. Upon that ground, the Pueblo Company moved that the submission be set aside, and the appeals dismissed, while the Atchison Company moved that it have permission to intervene in this court, and, by its solicitor, consent to such dismissal.
These motions were denied, for the reasons given in the former opinion. It was there said, that if the directors of the Denver Company, in prosecuting the appeals to final judgment, violated any trust committed to their hands, or any agreement which was binding upon the corporation and the minority stockholders, remedy might be sought 'in some court of original jurisdiction, into which, upon proper pleadings, all persons interested may be summoned.' The court also said: 'If, since those decrees were entered, the Atchison, Topeka, and Santa Fe Railroad Company, or the Pueblo and Arkansas Valley Railroad Company have, by valid contracts, acquired a controlling interest in the property, rights, and affairs of the Denver Company, that interest can be asserted by appropriate proceedings, and will not be affected by any thing we may determine upon the issues presented by these appeals.'
Upon the merits of the cases it was held—
That the intention of Congress by the act of 1872 was to grant to the Denver Company a present beneficial easement in the particular way over which its designated routes lay, capable, however, of enjoyment only when the way granted was actually located, and, in good faith, appropriated for the purposes contemplated by the company's charter and the act of Congress;
That when such location and appropriation were made, the title, which was previously imperfect, acquired precision, and by relation took effect as of the date of the grant;