United States v. Oregon Short Line R.

In 1873 the United States granted to the Utah and Northern Railroad Company a right of way over the public lands for the construction of a railroad running northerly through Idaho into Montana. Act March 3, 1873, 17 St.L. 612. The company filed a series of maps of the definite location of its road, eleven of which were approved in 1882. Four other maps showing the line of the road through the Fort Hall Indian Reservation in the Territory of Idaho were disapproved for the reason that the grant did not entitle the company to build through the reservation. The latter had been set up by treaty made in 1868 with the Shoshone and Bannack tribes. Treaty of July 3, 1868, 15 St.L. 673.

Among the provisions of that treaty was one to the effect that, with certain exceptions not here pertinent, no persons “shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and henceforth they [the Indians] will and do hereby relinquish all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the limits aforesaid”. Article 2.

Despite infirmities in its right of…

(concurring).

While I concur in the result, I think it wholly unnecessary to construe the statute in question, and believe that the case should be decided upon the following theory:

As stated by the majority, this action was brought to recover “on the bond”. Therefore liability is measured by the bond. Appellees were required to pay “damages which may accrue” under the terms of the bond, and the dispute arises over the meaning of the word “damages”' and the word “accrue”.

The word “damages” has at least two meanings. It might mean “loss due to injury” in the broad sense (see Webster’s New Int.Dict., 2nd Ed.); or it might have the narrow meaning, contended for by appellees, shown by 1 Bouv.Law Diet., Rawle’s 3d Revision, p. 749, as follows: “The indemnity recoverable by a person who has sustained an injury, either in his person, property, or relative rights, through the act or 'default of another”. Compare: Boston Sand Co. v. United States, 278 U.S. 41 , 49 S.Ct. 52 , 73 L.Ed. 170 .

While it is often said that a surety contract is to be strictly construed, such statement means only that the obligation is not to be extended to any' other subject,, to any other person, or to any…