USA > Nebraska > Douglas County > Omaha > History of the city of Omaha, Nebraska > Part 45
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THE INITIAL POINT.
the road, the first being dated November 1, 1863, in which he said: “ I, Abraham Lin- coln, President of the United States, do hereby fix so much of the western boundary of the State of lowa as lies between the north and south boundaries of the United States township, within which the City of Omaha is situated, as the point from which the line of railroad and telegraph * *
shall be constructed." The sec- ond order, dated March 7, 1864, uses this language: " I, Abraham Lincoln, President of the I'nited States, do, upon the applica- tion of the said company, designate and establish such first above named point on the western boundary of the State of Iowa, east of and opposite to the east line of sec- tion ten, in township fifteen, north of range three, east of the sixth principal meridian, in the Territory of Nebraska." This left a line of one mile, north and south, upon which the railroad company could fix their initial point to build from, westward.
Mr. Poppleton also quoted the various acts of Congress relating to the establish- ment and construction of the Union Pacific Railroad, among them that of February 24, 1871, authorizing the issuance of bonds for the building of the Union Pacific bridge at Omaha, using this significant language: " Provided that nothing in this act shall be so construed as to change the eastern ter- minus of the Union Pacific Railroad from the place where it is now fixed, according to law." He also quoted the debates in Con- gress with respect to the I'nion Pacific Rail- road, all tending to show that Congress at no time claimed the right to charter corpora- tions for the construction of railroads within the limits of a State, and that the pur- pose was to authorize the construction of a railroad from the Missouri River through the various territories to the east line of the State of California; that the initial point, as fixed by the railroad company, based upon the orders of President Lincoln, was on the east line of section ten, where it
touches the west bank of the river, and that from this point the road was located, and the location was approved by the presi- dent; that from this point it was built and accepted by the government, and its bond subsidy delivered, and land grant adjusted and administered. He said that to contend that Congress and the president intended to fix the terminus on the Iowa shore is to con- tend that Congress had the power to charter a corporation to build and operate a railroad within State limits. The bill, as originally offercd, fixed the eastern terminus of the main trunk within the State of Kansas, and of the Omaha line within the interior of the State of lowa; but, the objection being made that Congress lacked power to author- ize the building of a railroad within State limits, the eastern terminus of the main trunk was fixed in the Territory of Nebraska, and of the Omaha branch on the western bound- ary of Iowa. The official reports of Secre- taries of the Interior Usher, Harlan and Browning were quoted from, and also the of- ficial reports of the government directors of the Union Pacific Road, in which the initial point at Omaha was referred to repeatedly; and Mr. Poppleton stated that for eight years, in all the official acts and declara- tions with reference to the road, Omaha has been treated as the eastern terminus.
lle held that there could be no better evi dence of the intentions of Congress not to grant the power to bridge the Missouri, in the act of 1862, than the fact that this authority was given in express words in the act of 1864. The bridge to be built was to enable the Union Pacific, and other roads terminating on the Nebraska shore, and roads terminating on the lowa shore, to maintain "a more perfect connection" with each other, and with roads to be built on either side of the river in the future. If the bridge is an extension of the railroad, and the initial point is in lowa, east of and opposite to section ten, the bridge should have been constructed at that point. If
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HISTORY OF THE CITY OF OMAILA.
established there, as claimed; when and how was the terminus changed? When the presi- dent fixed the eastern terminus, his power was exhausted. If the company is bound to run its trains to the terminus, and it is estab- lished at the point contended for by the de- fendants, the mandamus could only lie to compel the operation of the road to a point nearly three miles north of the bridge in controversy.
A franchise to build a bridge, or establish a ferry, granted to a railroad company, does not constitute said bridge or ferry a part of its railroad any more than a franchise to erect a rolling mill, or work a coal mine, would constitute such mill or mine an ex- tension of its railroad.
Referring to the demand that continnous trains be operated across the bridge, Mr. Poppleton said that, at the time the law was passed, it was safe to say that such a feat as running a single train three thousand miles had never been at- tempted. It was intended that the line was to be connected and continuous in the sense that the trains of different companies were to be run in elose connection with each other. The change of trains at the foot of the mountains may be more economical for the Union Pacific Company, and safest and best for passengers and freight; but, in the theory of the defendant, the duty is imperative to run the same train from one end of the road to the other.
No sane railroad manager would care to have his motive power and rolling stock massed on the east side of the Missouri River when the bridge may be disabled by accident, or its approaches swept away by the ice gorges and floods which are the reg- ular spring product of that capricious stream, and an embargo placed upon business more lasting and effectual than mountain snows. These things may seem trivial to a " citizen of Council Bluffs," anxious to take the train or ship a package of merchandise on the Iowa shore, but to the company, which has
forty thousand dollars a day at stake, they are considerations which have dictated the establishment and retention of terminus, trains and works, on the west bank of the Missouri River for the ten years in which the company has been engaged in construc- tion and operation of their roads. It lies upon the very surface of this case that it originates in a neighborhood contention, rather than a public and national grievance. The real parties responsible for the main- tenance and continuance of the bridge trans- fer are those railroad companies which re- fuse to use it and the legislation which has compelled this refusal. Aside from the pro- hibitory legislation of Iowa, and this suit, the vexed transfer question would have been long ago solved by a general use of the bridge by all railroads having termini on the Missouri River at or near Omaha and Council Bluffs. To lay upon the Union Pacific Railroad Company alone the bur- den of operating this bridge, with all its through trains, in addition to its transfer business, to cause the destruction and re- moval of its works and headquarters, built up on a construction of the law now sought to be overturned, to the injury and ruin of a community of twenty thousand people, from whom it has received large do- nations and benefits, would be to inflict on it and them a great injustice. But to do it in the face of ten years of construction, dec- laration and action of all the officers and agents of the United States, establishing and executing the law in direct opposition and conflict with the interpretation contended for by defendant, may well be regarded as a calamity by both road and people.
Mr. Rogers, on behalf of the citizens of Council Bluffs, made an elaborate argument. He said that the purpose of the government was to construct a line of road west from the one hundredth meridian and connecting with the Missouri River by three trunk lines: one south of the Kaw, in Kansas; one from the western boundary of Iowa; and
295
THE INITIAL POINT.
the other at Sioux City, Iowa. A fourth branch, to run from St. Joseph, provided the
consent of the State of Kansas could be first secured, was also anthorized. Mr. Rogers
west longitude, and declared it to be within branch roads to the one hundredth degree of which the company should construct their ern boundary of the State of Iowa, from Company, which fixes the point on the west- president of the Union Pacific Railroad upon this subject, and delivered to the vice- vember last, an executive order was made proper to add that, on the 17th day of No- lowing language was used: "I deem it gress, dated March 9, 1864, in which the fol- quoted President Lincoln's message to Con-
to the town of Omaha, in Nebraska." Con- the limits of the township in Iowa opposite
gress had authorized the construction of the
grounds had been secured and used in connec- track in connection with their road. Transfer bridge, and the operation of a continuous
tion with said track, and the whole owned and operated by the company; but, instead of using the bridge as a part of its line and as a means of connecting its road with the Iowa roads terminating at Council Bluffs, it had, under the unauthorized name of "The Omaha Bridge Transfer," undertaken to in- terpose the bridge and its approaches as an independent and distinct line of travel and transportation between the lowa roads and the Union Pacific Railroad, effecting the connection by means of distinct trains, a distinct time table, and a distinct tariff of fares and rates, ten dollars per car being charged on freight, and fifty cents per pas- senger for transportation across the bridge.
The act of 1862 fixed the point of inter- section of the northernmost branch of the Pacific Railroad at Sioux City, on the east side of the Missouri, and the southern branches at St. Joseph, Missouri, also on the east side of the river, and at Kansas City, Missouri, where the river turns eastward, and provided that the central branch should begin " at a point on the western boundary
the State of Iowa, south of Sioux City, is ident." By law, the western boundary of of the State of Iowa to be fixed by the pres-
coincident with the middle of the main channel of the river; but Congress did not
intend to make this line, in the middle of a
navigable river, the actual starting point of
either on the Nebraska or lowa shore. If the railroad, but meant a point on dry land,
tory of Nebraska," or, " a point on the west- point on the eastern boundary of the terri- lowa referred to at all ? Why not say " a they meant the Nebraska side, why was
Iowa?" The language used must mean a ern shore of the Missouri River, opposite cable to the actual boundary of the State of point on the Iowa shore as nearly as practi-
tion were asked, " What is the western boun- means "near," " at," or " by." If the ques- designating the situation of a place, often lowa. The word " on" in our language,
dary of Iowa? " the answer would be, " The
Missouri River." " A point on the western
boundary of the State of Iowa" means a have said so. Did Congress intend to leave had meant the Nebraska shore, they would point in Iowa on the Missouri River : i. e., the Iowa shore of the river. If Congress
provided for, or did they mean to impose the transit of the Missouri River wholly un-
the duty of providing the means of said transit upon the Union Pacific Railroad Company? Clearly, the latter. Congress had in contemplation a great, continuous,
trans-continental highway from the Atlantic to the Pacific. This proposed national high- way is intersected at the western boundary of Iowa by a great, navigable river, difficult of passage. The Iowa lines of railway formed the next link in the chain east of the river, and terminated on the eastern shore. Did Congress intend to leave here a hiatus in the line? They provided against this at the terminus of the other branches, at Sioux City, St. Joseph, and Kansas City. Did they intend to leave this vitally important river transit liable to fall into the control of
296
HISTORY OF THE CITY OF OMAHA.
third parties, to be managed for selfish and speculating ends, without the least regard to the public interests ? Can it be that a mat- ter of such great moment, so clearly provided for in fixing the starting points at the north- ern and southern branches of the road, was totally neglected as respects the central and principal branch ? The terminus of the cen- tral branch was intended to be on the east- ern side of the river.
The acts of 1862 and 1864 are to be con- sidered together. We have, then, an act providing for a line of railway which must necessarily cross the Missouri River, and re- quiring it to commence " at a point on the western boundary of the State of Iowa" (which boundary is the Missouri River), and, further, in order " to make convenient and necessary connections with other roads *
* * to establish and maintain all necessary ferries upon and across the Mis- souri River, and other rivers which its road may pass in its course;" also, " to construct bridges over said Missouri River, and all rivers, for the convenience of said road, pro- vided that any bridge or bridges it may construct over the Missouri River, or any other navigable river on the line of said road, shall be constructed with suitable and proper draws," etc., etc. What room is there for doubt that Congress regarded the Mis- souri River as a river which the road must pass " in its course " and because its starting point was fixed on the Iowa side? If there was doubt as to the right of the company to pass beyond the middle of the river and come to the Iowa shore in the original char- ter of 1862, that doubt is set at rest by the ninth section of the amended charter of 1864, which, in terms, authorizes the com- pany to construct a bridge over the Missouri River, which presupposes that the eastern end of it shall rest upon the Iowa shore, and this is done " to enable the Union Pacific Railroad to make convenient and necessary connections with other roads," not to enable "other roads " to make connection with the
Union Pacific, by running their trains across the bridge of the latter company.
The second order of President Lincoln fixed the initial point "on the western boundary of the State of Iowa, east of and opposite to the east line of section ten, in township fifteen, north of range thirteen, east of the sixth principal meridian, in the Territory of Nebraska." The words, “ in the Territory of Nebraska," evidently re- ferred solely to the location of the said sec- tion ten. In the executive message of the president, he declares the point in question to be within the limits of the township in Iowa opposite to the Town of Omaha, in Nebraska, the second order having been made at the request of the railroad company for the purpose of fixing the starting point more definitely and precisely. If the point fixed be on the Nebraska side. it must be in section ten, a fractional section, bounded on the east by the river. The point described in the order cannot be found any- where except on the Iowa shore, or in the middle of the river.
The action of the president, in approving the map or location of the route filed in the interior department, was an entirely distinct act from his designation of the point from which the road should commence, in which he gives his sanction to the point on the western shore of the river, at which the route laid down on the map begins, as the " precise point of departure of their said branch road from the Missouri River." Since the road was to be in fact built westward from the Missouri River, the " point of de- parture " from the river had to be fixed on, and so necessarily to be shown in the map of the route. The construction of the road was commenced on the west side of the river, and prosecuted westerly to completion before the bridge was begun and before its location had been fixed. The track laid down from that point in section ten was never used and never intended to be. After it had served its purpose of lengthening out the first forty
297
THIE INITIAL POINT.
miles of road, the track was taken up, and all pretense of running the road to said initial point was abandoned. Their actual stopping place is in the immediate vicinity of the west end of the bridge, from which the track runs continuously across the bridge into Council Bluffs. Mr. Rogers quoted from the official reports of Second Comptroller Broadhead, Chief Engineer G. M. Dodge, and Govern- ment Directors Wilson, Wade, Price, Harri- son, Ruddock, and others, to the effect that the bridge was a part of the line of the road, the report of the second comptroller being with respect to the extra charge made by the I'nion Pacific Company in its bills for trans- portation for the government, on account of the bridge, the comptroller holding that it should be operated as a part of the road.
As to the claim that Congress had no right to invade the State of lowa with a railroad charter, Mr. Rogers referred to the fact that Congress had granted authority for the build- ing of the Union Pacific bridge and its east- ern approaches on the solid ground of Iowa, and that the Texas Pacific Road ran across nearly the whole of the State of Texas, and entirely across California, which road had been chartered by Congress. "Can it be maintained," he asked, " that, in providing for the great national trans-continental high- way for purposes of inter-state and inter- national commerce, and as a means of con- veying government mails, troops and muni- tion of war, Congress is precluded from en- abling it to cross a State line in order that it may connect with another link in the chain of communication, terminating on the other side of said line?" The debates in Congress referred to occurred upon the act of 1862; two years afterwards the amendatory act was passed, conferring in express terms the power of the company to bridge the Mis- souri, and, if necessary, to pass State bound- aries for that purpose.
Mr. Rogers proceeded at great length, go- ing over all the points involved with careful minuteness. The case was taken under ad-
visement by the supreme court, and a decis- ion rendered affirming the decision of the lower court, which fixed the eastern ter- minus of the road on the Iowa side of the river, and holding that the writ of man- damus granted by Judge Dillon was prop- erly granted. Mr. Justice Bradley, however, dissented from the opinion rendered by his associates, in the following terms: "I am obliged to dissent from the judgment of the court in this case. The Missouri River is, by common acceptation, the western bound- ary of lowa, and the fair construction of the charter of the Union Pacific Railroad Com- pany, which adopts that boundary as its eastern terminus, is that the road was to ex- tend from the Missouri River westwardly. The subsequent express authority given to construct a bridge across the river, in my judgment, confirms this view of the subject; and, as a mandamus is a severe remedy, re- quiring a clear right and clear duty to sup- port it, I think it ought not to be granted in this case, especially as it requires the com- pany to use the bridge as a part of their con- tinuous line with all their trains, which may impose much inconvenience on them, with- out corresponding benefit to the public."
The majority decision of the supreme court was, at the time, considered by many of the citizens of Omaha a great disaster. Certain it was that the transferring of pas- sengers and baggage on the Iowa side of the river was for many years a great source of annoyance to the traveling public; and Omaha's reputation was so intimately con- nected therewith that an injury was thereby inflicted the extent of which it would be difficult to estimate. A large sum of money was expended by the railroad company in the erection of a depot, round house, hotel, platforms, etc., etc .; and for ten years the " transfer," situated three miles east of the river, presented a busy scene. In the mean- time the Chicago & Northwestern Road had secured entrance to Omaha from the north, by way of its own bridge at Blair, and the
298
HISTORY OF THE CITY OF OMAHA.
Chicago, Quincy & Burlington had com- pleted its bridge at Plattsmouth; so that two of the four trunk lines connecting Omaha with Chicago were no longer dependent upon the Union Pacific bridge, and the transfer gradually lost its importance. One of the conditions of the voting of bonds in 1889 to aid in the erection of a union depot and a viaduct on Tenth Street was that all eastern
roads should be granted access, upon reason- able terms, to said depot when completed; and, as contracts have since been made with several roads by which their trains cross the bridge, it is safe to say that within a short time the transfer question, once so impor- tant, will cease to vex or worry either the people of Omaha or the general commercial public.
CHAPTER XXXII.
THE UNION DEPOT - LEGAL COMPLICATIONS - EASTERN RAILROAD CONNECTIONS AND TERMINAL FACILITIES.
Beyond doubt, the passenger depot build- ing which was to have been erected on the site of the old Union Pacific depot would have been a substantial, convenient and costly structure. The plans and specifica- tions called for a building having no supe -. riors in its line in this country, and the es- timated cost was one million dollars. The work was being done by a corporation styled the Union Depot Company, composed of officials of the Union Pacific and Burlington & Missouri River Railway Companies, the funds being provided by those railway com- panies. It was expected that the building would be completed by July 1, 1891, to an extent to admit of its being used, but that it would not be entirely finished until a year and a half after that date. It was to cover, with its train sheds, nearly three and a half acres of ground. The main building would have had a frontage of 160 feet on Tentlı Street, with a depth of 140 feet, and was to be constructed of pressed brick and stone, and furnished with all modern conveniences. The plans showed the main building for stories high, with an ornamental tower 260 feet high. There was to be, to the east of the main building, three train sheds, built of iron, one, seven hundred and fifty feet long, over the main tracks, and two, over the stub tracks, to be between five hundred and six hundred feet in length. The en- trance to the main building was to be at the west end, on a level with the Tenth Street viaduct, twenty-five feet above the track level. The southwest corner of the building was to be thirty feet east of the east side of the viaduct and the northwest corner seven-
ty-five feet, connected by a covered ap- proach for carriages. A separate building, 180 feet long, for express and baggage pur- poses, was to have been erected to the east of the depot, in the basement of which were to have been located the electric, heating and ventilating plants. Everything necessary to make this one of the most complete and convenient depots in the country was to have been provided. It was estimated that the cost of the building and the viaduct would reach one and a half million dollars, which expense was to have been shared equally by the two railroad companies. All the Iowa roads were to have been admitted to bridge and depot facilities, so that the transfer delays and difficulties would be done away with. The following named were the officers of the Union Depot Com- pany: Thomas L. Kimball, president; George W. Holdrege, vice-president; and J. G. Taylor, secretary and treasurer. These gentlemen, with W. II. Holeomb and Erastus Young, of the Union Pacific, and W. P. Durkee, of the Burlington & Missouri. con- stituted the board of directors.
The lack of adequate depot facilities, and the delay in transferring to other railways on the eastern side of the Missouri, had long been sources of annoyance to the citizens of Omaha. The depot building which the Union Pacific Company erected in the sev- enties had never been an object of pride with the people, but, on the contrary, the railroad company had been accused of not fairly carrying ont its obligations in that regard; hence, when city bonds to the amount of $150,000 were asked for in the fall of
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HISTORY OF THE CITY OF OMAHA.
1889, to aid in the erection of a new depot and the necessary viaduct, strict pledges were demanded, as follows:
" Provided, however, that said bonds shall not be issued until there shall have been ex- ecuted and delivered to the City of Omaha, two certain bonds, as follows, to-wit:
" First. The written bond of the said Omaha Union Depot Company, in the sum of $200,000, as liquidated and agreed dam- ages, to be also signed by the Union Pacific Railway Company and the Chicago, Bur- lington & Quincy Railroad Company, as sureties for said Omaha Union Depot Con- pany, conditioned for the construction and maintenance of said union depot by said Omaha Union Depot Company in the man- ner and form as above specified, with the necessary tracks, side-tracks, turn-outs, swit- ches and approaches, including the said via- duct or approach over and upon Tenth Street, in a good, workmanlike manner; said viaduct or approach to be completed on or before Jannary 1, 1891, and said union depot to be opened for use on or before Jan- uary 1, 1892, unless the construction of such structures, or either of them, shall be delayed by strike or strikes, or by injunctions or other judicial proceedings. To the extent of such delays the last named times shall be extended.
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