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Energy Transp. Sys., Inc. v. Union Pac. Ry.

Citation: 7 ELR 20804
No. No. C76-129B, 435 F. Supp. 313/(D. Wyo., 08/11/1977)

In a case of first impression, the district court holds that a coal slurry pipeline company, as successor in interest to a Homestead Act patentee, has the right to construct and operate a coal slurry pipeline beneath land that is subject to a railroad right of way granted by the Pacific Railroad Acts of 1862 and 1864. In granting rights of way, Congress intended that railroads receive only an easement for the right of way while the United States would retain the subsoil, servient estate. Although the railroad cannot absolutely prohibit subsurface use by the recipient of an interest from the homestead patentee, it can prevent the company from building a pipeline that interferes with the railroad's valid use of the subsurface for trackage or roadbed changes. The railroad is thus permanently enjoined from interfering with use of the subsurface that does not interfere with railroad operations.

Counsel for Plaintiff
Henry A. Burgess
Burgess & Davis
101 W. Brundage St., Sheridan WY 82801
(307) 674-4449

Counsel for Defendant
Frederick G. Loomis
Loomis, Lazear, Wilson & Pickett
202 E. 18th St., Cheyenne WY 82001
(307) 632-5596

Howard F. Coray
1416 Dodge St., Omaha NB 68179