                                                               F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                MAR 20 2001
                              TENTH CIRCUIT
                         __________________________         PATRICK FISHER
                                                                     Clerk

UNION PACIFIC RAILROAD COMPANY, a
corporation,

       Plaintiff-Appellee,

v.                                                    No. 99-7115
                                                       (E.D. Okla.)
CITY OF ATOKA, STATE OF OKLAHOMA, a             (D.Ct. No. 98-CV-606-S)
municipal corporation,

       Defendant-Appellant,

and

JOHN J. CROWLEY and SUE A. CROWLEY,
husband and wife; JEFFREY W. GLASS and
WENDI C. GLASS, husband and wife; RANDY
M. COMBS and TERESA A. COMBS, husband
and wife; J.D. WILSON and SHANNON LEE
WILSON, husband and wife; DONNIE L.
ALLEN and MARY L. ALLEN, husband and
wife; CHARLES DALE, and DODD DUNCAN,
individually,

       Defendants-Appellees.

----------------

STATE OF OKLAHOMA, ex rel. Oklahoma
Department of Transportation,

       Amicus Curiae.
                        ____________________________
                              ORDER AND JUDGMENT *


Before BRORBY, McKAY, and KELLY, Circuit Judges.



       This suit was brought by Union Pacific Railroad Company (“Union

Pacific”) against the City of Atoka, Oklahoma (“Atoka”), to quiet title to land

located within the corporate limits of Atoka. Atoka cross-claimed, asserting

Union Pacific’s interest in its right-of-way is conditioned on its continued use of

the land for railroad purposes. The railroad used the land as a spur on its right-

of-way for nearly seventy years,    1
                                        but subsequently sold it to private individuals.

The district court granted summary judgment in favor of Union Pacific, holding

the railroad owned its right-of-way land in fee simple absolute not subject to

reversion on abandonment, and Atoka appeals. On appeal, we must determine, as

a matter of law, the nature of Union Pacific’s right-of-way grant made pursuant to



       *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

       1
         “[T]he term ‘right of way’ has a two-fold signification. It sometimes is used to
describe a right belonging to a party, a right of passage over any tract; and it is also used
to describe that strip of land which railroad companies take upon which to construct their
road-bed.” Joy v. St. Louis, 138 U.S. 1, 44 (1891).


                                              -2-
the Act of July 25, 1866. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

affirm.



                                   BACKGROUND

      In the Act of July 25, 1866, Congress made land and right-of-way grants

primarily to the Kansas and Neosho Valley Railroad Company.           See Act of July

25, 1866, ch. 241 §§ 1-8, 14 Stat. 236-38. However, Congress also created in the

Act a railroad construction competition among three railroad companies,

including Union Pacific, Southern Branch.      2
                                                   See id. § 11, 14 Stat. at 238-39. Each

competitor sought to “construct and complete its road” and tie its railroad line to

the point near the southern boundary of Kansas, where the Kansas and Neosho

Valley Railroad was to cross the same point.        Id. ; see also Missouri-Kansas-Texas

R.R. Co. v. Early , 641 F.2d 856, 857 (10th Cir. 1981). The competitor’s incentive

to win the construction race was the right to build a track, and acquire land

grants, from southern Kansas, through Indian Territory, to a point near Preston,

Texas. Early, 641 F.2d at 857-58. Union Pacific won the race.          Id . at 858.



      2
          The Union Pacific, Southern Branch, later became known as the Missouri,
Kansas & Texas Railroad Company, which merged into the Missouri Pacific Railroad
Company. In 1997, the Missouri Pacific Railroad Company merged into the Union
Pacific Railroad Company, a party in this appeal. Because Union Pacific is a successor in
interest, we will refer to Union Pacific as if it were the original grantee.


                                            -3-
Union Pacific constructed its rail line, which passed through portions of Atoka,

Oklahoma, pursuant to the July 25 Act.



       The Act makes two grants: (1) alternating sections of land on each side of

the road granted to the State of Kansas for the benefit of the railroad in financing

the construction of its line, and (2) right-of-way land granted directly to the

railroad company for construction of the rail line itself.   Compare July 25 Act § 1,

with July 25 Act §§ 6, 8.    See generally Railroad Co. v. Baldwin   , 103 U.S. 426,

428 (1880) (examining St. Joseph and Denver City Railroad Company’s grants

authorized by the Act of July 23, 1866, 14 Stat. 210). In this case, the subject

land was granted pursuant to the right-of-way grant, not the alternating sections

grant. Under the right-of-way grant, Congress authorized Union Pacific to

construct its railroad through Indian Territory and public lands, granted one

hundred feet in width on each side of the railroad, and provided “all necessary

ground for station buildings ... switches, side-tracks, turn-tables, and water-

stations.” July 25 Act §§ 6, 8.



       The subject property is located within the corporate limits of the City of

Atoka. For years, Union Pacific used the land as a part of its railroad, but the

company re-routed its mainline in 1906 and 1907. The company then used the


                                              -4-
subject property as a spur. Union Pacific held ownership in the property until

1995, at which time the railroad sold the parcel to private individuals.



       Union Pacific filed an amended complaint adding private individuals, who

are the grantees and their successors claiming an interest in the abandoned spur

parcel, as defendants to the suit.   3
                                         Atoka filed a counter-claim against the Union

Pacific and cross-claims against the individual defendants. The parties then filed

cross-motions for summary and partial summary judgment. The district court

granted Union Pacific’s motion for summary judgment and denied Atoka’s motion

for partial summary judgment, holding as a matter of law that Congress, in the

Act of July 25, 1866, granted the railroad a right-of-way in fee simple absolute

with no right of reversion.   4
                                  The district court entered judgment for Union Pacific,


       3
         John and Sue Crowley, Jeffrey and Wendi Glass, Randy and Teresa Combs, J.D.
and Shannon Lee Wilson, Donnie and Mary Allen, Charles Dale, and Dodd Duncan are
the grantees and successors who claim an interest in the parcel. Union Pacific added
them as individuals defendants, and they filed cross-claims against Atoka claiming the
railroad owned the land in fee simple, and filed counter-claims against Union Pacific.

       4
          The district court also held it was not bound to give an unpublished Oklahoma
Court of Civil Appeals decision, involving private individuals who bought a small parcel
of land adjacent to the railroad’s right-of-way, collateral estoppel effect. On appeal,
Atoka briefly explains the nature of the case before that court, but fails to further raise or
even mention the issue of collateral estoppel. We deem the issue waived on appeal. See
Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir. 1992), modified on
other grounds on reh’g, 995 F.2d 992 (10th Cir. 1993) (recognizing an issue mentioned in
the brief on appeal, but not addressed, is considered waived).

                                              -5-
and dismissed all cross claims and counterclaims as moot.



       We review the district court's summary judgment ruling       de novo . Pirkheim

v. First Unum Life Ins. , 229 F.3d 1008, 1010 (10th Cir. 2000). “Summary

judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.’”       Id. (quoting Fed. R. Civ. P. 56(c)). “Cross-

motions for summary judgment are to be treated separately; the denial of one does

not require the grant of another.”     Buell Cabinet Co. v. Sudduth , 608 F.2d 431,

433 (10th Cir.1979). The parties agree there are no genuine issues of material

fact in dispute.



                                       DISCUSSION

       We must determine as a matter of law whether Union Pacific acquired fee

simple absolute title in its right-of-way land granted by the Act of July 25, 1866.

Atoka argues we should construe the right-of-way land grant as a “limited fee”

which reverts to Atoka when the railroad fails to use the land for railroad




                                             -6-
purposes.   5
                Atoka claims such a construction of the July 25 Act is appropriate for

alternative reasons: first, the Supreme Court and Tenth Circuit interpret all

railroad right-of-way land grants made in the 1860s as “limited fees,” and second,

Congress’ right-of-way grant in the July 25 Act is more limited than that provided

in the Act of July 26, 1866, ch. 270, 14 Stat. 289.    6




       Union Pacific’s right-of-way title, granted by the July 25 Act, depends on

the construction given to the Act in light of Congress’ intent at the time the grant

was made. See Leo Sheep Co. v. United States,         440 U.S. 668, 682 (1979) (“To

ascertain [Congress’] intent we must look to the condition of the country when

the [railroad land grant] acts were passed, as well as to the purpose declared on

their face, and read all parts of them together.” (quotation marks and citation

omitted)). In 1850, “Congress embarked on a policy of subsidizing railroad

construction by lavish grants from the public domain.”        Great Northern Ry. Co. v.


       5
         Atoka contends the property reverts to Atoka pursuant to § 14 of the Act of April
26, 1906, 34 Stat. 137. However, because we hold there is no reversion to Atoka, we do
not address the Act of April 26, 1906.

       6
          The Act of July 26, 1866 authorized Union Pacific’s railroad line from the
southern boundary of Kansas, through Indian Territory, and branching east to Fort Smith,
Arkansas. July 26 Act, § 8. The July 26 Act granted land to the state of Kansas in
alternating sections for the benefit of the railroad company, and granted right-of-way land
to Union Pacific directly. Id. at §§ 1, 8.


                                             -7-
United States , 315 U.S. 262, 273 (1942). In this case, Congress’ grant to Union

Pacific occurred in 1866. However, by 1871, Congress discontinued “outright

grants” of land to railroad companies because the public disfavored this practice.

Id. at 274.



Supreme Court and Tenth Circuit case law

       Atoka first claims all railroad right-of-way land grants in the 1860s have

uniformly been interpreted as “limited fees,” and, thus, Union Pacific received a

limited fee grant in the July 25 Act. To support its contention, Atoka points to

various Supreme Court and Tenth Circuit cases that discuss grants made pursuant

to different acts and, in many instances, to different railroads.   7
                                                                        We note the issue



       7
         Atoka cites the following cases as support for its claim all 1860s grants are
“limited fees”: United States v. Union Pac. R.R. Co., 353 U.S. 112, 113, 118-19 (1957)
(discussing Union Pacific’s right-of-way granted by the Act of July 1, 1862); Great
Northern, 315 U.S. at 271, 273 n.6, 277-78 n.18 (discussing Great Northern’s right-of-
way granted by Act of March 3, 1875); Union Pac. R.R. Co. v. Laramie Stock Yards Co.,
231 U.S. 190 (1913) (discussing Union Pacific’s right-of-way granted by the Act of July
1, 1862); Northern Pac. Ry. Co. v. Townsend, 190 U.S. 267, 267-68, 271 (1903)
(discussing Northern Pacific’s right-of-way granted by the Act of July 2, 1864); New
Mexico v. United States Trust Co., 172 U.S. 171 (1898) (discussing Atlantic & Pacific’s
right-of-way granted by the Act of July 27, 1866); Baldwin, 103 U.S. at 429-30
(discussing St. Joseph & Denver’s right-of-way granted by the Act of July 23, 1866);
Wyoming v. Andrus, 602 F.2d 1379, 1380 n.2 (10th Cir. 1979) (discussing Union
Pacific’s right-of-way granted by Act of July 1, 1862, ch. 120, 12 Stat. 489, as amended
by Act of July 2, 1864, ch. 216, 13 Stat. 356); and Wyoming v. Udall, 379 F.2d 635, 637
(10th Cir.) (same), cert denied, 389 U.S. 985 (1967).


                                              -8-
before us is not other railroads’ ownership interests granted pursuant to different

congressional acts.   See Leo Sheep, 440 U.S. at 681 (recognizing the “pertinent

inquiry ... is the intent of Congress when it granted land to Union Pacific” at the

time of the grant).



       Furthermore, we cannot accept Atoka’s sweeping characterization that all

1860s grants are limited fees. To the contrary, the Supreme Court and this court

recognized Union Pacific’s predecessor-in-interest received its right-of-way in

fee, and not limited fee, in the Act of July 26, 1866.      See Missouri, K. & T. Ry.

Co. v. Roberts , 152 U.S. 114, 116-18 (1894);        Missouri, K. & T. Ry. Co. v.

Oklahoma , 271 U.S. 303, 304, 308 (1926);          Early , 641 F.2d at 860. We examine

the cases discussing Union Pacific’s right-of-way interest granted by the July 26

Act because they clearly refute Atoka’s blanket assertion all 1860s fees are

“limited” fees, and are instructive in our consideration of the railroad’s right-of-

way interest granted by the July 25 Act.



       In Roberts , Mr. Roberts sought to recover possession of lands occupied by

the railroad as a right-of-way. 152 U.S. at 114. The Court examined Congress’

grant of right-of-way land to the railroad in the Act of July 26, 1866.       Id. at 115-

16. The court concluded “[t]he United States had the right to authorize the


                                             -9-
construction of the road of the Missouri, Kansas & Texas Railway Company

through the reservation of the Osage Indians, and to     grant absolutely the fee   of

the 200 feet as a right of way to the company.”     Id. at 116 (emphasis added). The

Supreme Court attached no conditions to the July 26 right-of-way, and explicitly

made a “grant of both fee and possession” to the railroad.      Id. at 118.



       Over thirty years later, the Supreme Court again considered the same

railroad’s right-of-way interest granted by the same July 26 Act.     8
                                                                          Oklahoma , 271

U.S. at 304. In Oklahoma , the Court held the Oklahoma Corporation Commission

could not lawfully order the railroad to construct and pay for an underpass

beneath the railroad’s right-of-way without paying the railroad just compensation.

Id. at 303-304, 308. The Court cited     Roberts exclusively, and held “[t]he

company owned its right of way lands and station grounds in fee.”          Id. at 308.



       In Early , Union Pacific’s predecessor in interest brought action to quiet

title in lands along its right-of-way that were encroached by abutting landowners.

641 F.2d at 856. The landowners cross-claimed and alleged that the railroad had



       8
         The right-of-way land at issue was located in McAlester, Oklahoma, which
appears to be located further south than the southernmost reach of the July 26 Act, and is
more accurately within the geographic scope of the July 25 Act.


                                           -10-
“acquired, at best, an interest in the nature of an easement, subsequently

abandoned, thereby causing ownership to vest in the owners of the abutting

property.” Id. The right-of-way land was governed by both the July 25 and July

26 Acts. Id. at 857-58. This court held, “ Roberts..., [and] Oklahoma, ... control

our determination .... The Act of July 26, 1866, when viewed in the light of the

times, clearly expresses the intent of Congress to grant to the railway a fee

interest in the Indian lands.”     Id. at 860. Although we acknowledged some

difficulty with the July 25 Act’s “cicuitous” language in §§ 6 and 8, we

recognized the July 26 Act cures any controversy surrounding the nature of Union

Pacific’s land grant. We unequivocally held the Acts provide the railroad with

fee title in its right-of-way lands.      Id.



       In this case, Atoka is essentially requesting this court to reconsider our

Early opinion, and re-characterize Union Pacific’s right-of-way interest granted

by the 1866 Acts as “a [limited] fee interest.” It suggests the    Early case granted

only “a fee interest,” not a grant in fee absolute. However, Atoka’s emphasis on

this phrase from Early is factually disingenuous and legally insufficient. The

Early panel affirmed the trial court’s explicit holding the July Acts vested “fee

simple absolute title in the railroad.”         Id. at 857, 860.




                                                 -11-
       “Under the doctrine of stare decisis , this panel cannot overturn the decision

of another panel of this court ... absent         en banc reconsideration or a superseding

contrary decision by the Supreme Court.”             United States v. Meyers , 200 F.3d 715,

719-20 (10th Cir. 2000) (recognizing         stare decisis is a “decision on a legal point”

or “precedent in which a court has decided identical factual issues” (quotation

marks and citation omitted)). Prior precedent “includes not only the very narrow

holdings of those prior cases, but also the reasoning underlying those holdings,

particularly when such reasoning articulates a point of law.”          Id. There has been

no en banc reconsideration of this issue and Atoka cites no superseding Supreme

Court ruling, instead relying on cases dating from 1881 to 1957.           See, supra n.7.



       Atoka next suggests this court, in          United States v. Drumb , resolved that

Union Pacific acquired a right-of-way in limited fee pursuant to the July 25 Act.

152 F.2d 821 (10th Cir. 1946). Atoka claims this court’s disagreement with the

trial court’s conclusion in   Drumb that the railroad received full fee title to the

right-of-way controls our decision in this case, even though we did not analyze or

decide Drumb based on that point.           Id.



       In Drumb , the United States brought suit, on its own behalf and for the

benefit of certain Indian tribes, to quiet title to lands that were set aside for


                                                  -12-
railroad purposes but were later abandoned by the railroad having never been used

for railroad purposes.   Id. at 822. We listed the trial court’s holdings as follows:

       (1) That the grant vested the full fee title to the tract in the railroad
       company, and that the abandonment did not effect a reverter; (2) that
       the statute of limitations had run; (3) that the Act of April 26, 1906,
       34 Stat. 137, Section 14, vested the title in the City of McAlester; (4)
       that the railroad company did not abandon the tract because it
       acquired land on the other side of the tracks for railroad purposes.

Id. This court then stated, “We cannot agree with the trial court’s conclusions

Numbers 1, 2, and 4, but since we agree with the trial Court’s conclusion Number

3, it would serve no useful purpose to recite in detail the reasons why we do not

agree with the other conclusions of the court.”    Id. Thus, we did not discuss,

analyze or issue a holding on whether the railroad acquired a limited fee in the

Act of July 25, 1866.    Id. at 821-24.



       We are not bound by the     Drumb comment because the statement is dicta.

“Dicta are ‘statements and comments in an opinion concerning some rule of law

or legal proposition not necessarily involved nor essential to determination of the

case in hand.’”   Rohrbaugh v. Celotex Corp. , 53 F.3d 1181, 1184 (10th Cir. 1995)

(quoting Black’s Law Dictionary 454 (6th ed. 1990));      cf. Wilder v. Apfel , 153

F.3d 799, 804 (7th Cir. 1998) (“[W]hat the [agency] describes as ‘dicta’ are the

essentials of our first decision, the grounds on which we reversed .... Take [the

essentials] away and there wouldn’t be an opinion, just a conclusion.”). In

                                           -13-
Drumb , we limited our examination and resolution to the “trial court’s conclusion

Number 3 [that the Act of April 26, 1906, 34 Stat. 137, Section 14, vested the

title in the City of McAlester].” 152 F.2d at 822. In fact, we explicitly stated any

further discussion of the trial court’s alternative conclusions “would serve no

useful purpose.”   Id. The statement at issue is unessential to the determination of

the opinion, lacks analysis, and is “unsupported by citation to relevant authority”;

we are not bound by a prior panel’s dicta.      UMLIC-Nine Corp. v. Lipan Springs

Dev. Corp. , 168 F.3d 1173, 1178 (10th Cir.),        cert. denied , 528 U.S. 1005 (1999);

see also Bates v. Department of Corrections         , 81 F.3d 1008, 1011 (10th Cir. 1996).



       In summary, we reject Atoka’s argument that all 1860s right-of-way grants

are limited fees because, absent a supervening Supreme Court case or en banc

reconsideration, we are bound by a prior panel’s holding, but not its dicta.



Union Pacific’s right-of-way granted by the Act of July 25, 1866 compared with
that granted by the Act of July 26, 1866

       As we do not accept Atoka’s first argument, we turn our attention to its

alternative contention that the July 25 Act authorizes a more limited right-of-way

grant than the July 26 Act. This argument followed to its logical conclusion

suggests the July 26 Act contemplates a fee absolute grant, while the July 25 Act

merely provides a limited grant conditioned on the railroad’s continued use of its

                                             -14-
right-of-way for railroad purposes. According to Atoka, the fact that the two acts

have “technical differences in the granting language” intimates the acts convey

different ownership interests to the railroad. Specifically, Atoka suggests: (1)

Section 6 of the July 25 Act contains limitations, unlike Section 8 of the July 26

Act, that the right-of-way is granted “for the construction of the railroad as

proposed,” and (2) Section 6 of the July 25 Act implicitly incorporates limiting

language from Sections 1 and 3 of the same Act, which states the purpose of the

grant is to construct and operate a railroad. We disagree with Atoka’s reading of

the acts, and ultimately its contention the July 25 Act provides a more limited

right-of-way grant.



      While mindful of the historical conditions existing at the time of the grant,

“[w]e begin with the plain language of the law.”     St. Charles Inv. Co. v.

Commissioner of Internal Revenue     , 232 F.3d 773, 776 (10th Cir. 2000);     see also

Leo Sheep , 440 U.S. at 682. Section 11 of the July 25 Act provided the winner of

the railroad construction race, in this case Union Pacific, with grants “according

to the provisions of this act.” The right-of-way grants inuring to Union Pacific

were governed by § 8 of the Act:

      That said [Union Pacific] . . . is hereby authorized and empowered to
      extend and construct its railroad . . . and the right of way through
      the Indian Territory, wherever such right is now reserved or may
      hereafter be reserved to the United States by treaty with the Indian

                                          -15-
      tribes, is hereby granted to said company, to the same extent as
      granted by the sixth section of this act through the public lands[.]


July 25 Act § 8 (emphasis added). Section 6 of the July 25 Act, in relevant part,

provides:

      [T]he right of way through the public lands be, and the same is
      hereby, granted to said [Union Pacific], its successors and assigns,
      for the construction of a railroad as proposed  .... Said way is
      granted to said railway to the extent of one hundred feet in width on
      each side of said road where it may pass through the public domain;
      also all necessary ground for station buildings, workshops, depots,
      machine-shops, switches, side-tracks, turn-tables, and water-stations.

(Emphasis added.)



      On the following day, Congress enacted legislation that pertained

exclusively to Union Pacific, but contained “[a] similar land grant procedure.”

Early , 641 F.2d at 858. Congress granted Union Pacific right-of-way land through

Indian Territory in Section 8 of the July 26 Act as follows:

      That said Pacific Railroad Company, southern branch [Union
      Pacific], its successors and assigns, is hereby      authorized and
      empowered to extend and construct         its railroad .... [T]he right of
      way through said Indian Territory is hereby granted to said company
      [Union Pacific], its successors and assigns, to the extent of one
      hundred feet on each side of said road or roads, and all necessary
      grounds for stations, buildings, work-shops, machine-shops,
      switches, side-tracks, turn-tables, and water-stations.

(Emphasis added.)



                                         -16-
       We disagree with Atoka’s argument that Section 6 of the July 25 Act

provides a more limited right-of-way grant than Section 8 of the July 26 Act.

Both acts contain identical language stating the railroad “is authorized and

empowered to extend and construct its railroad.”      See Act of July 25 § 8; Act of

July 26 § 8. Section 6 of the July 25 Act, which is incorporated into Section 8 of

the same Act, establishes the right-of-way through public lands “for the

construction of a railroad as proposed.” July 25 Act at §§ 6, 8. When we

construe these substantially similar phrases similarly, it is evident Congress

granted right-of-way lands in both acts in order for Union Pacific to “construct”

its railroad. See Kansas v. United States , 204 U.S. 331, 338 (1907) (recognizing

the similarity between the July 25 and July 26 Acts, and stating the acts “us[e] the

same language, except as to the routes”);    see also White v. Mercury Marine, Div.

of Brunswick, Inc. , 129 F.3d 1428, 1434 (11th Cir. 1997) (“It is a familiar canon

of statutory construction that courts should generally construe similar statutory

language similarly.”). Congress made no mention that the railroad was obligated

to “operate” a railroad   ad infinitum on that land. Because it is “our judicial

function to apply statutes on the basis of what Congress has written, not what

Congress might have written,” we cannot accept Atoka’s argument that Sections 6

and 8 of the July 25 Act provide a more limited right-of-way grant than that

offered in Section 8 of the July 26 Act.    United States v. Great Northern Ry. Co.    ,


                                            -17-
343 U.S. 562, 575 (1952).



       We also reject Atoka’s artful, albeit flawed, reading of the July 25 Act

which lassos language from Sections 1 and 3 and incorporates it into the right-of-

way sections. Atoka suggests the Section 6 language “[t]hat the right of way

through the public lands be ... granted ... for the construction of a railroad   as

proposed ” opens the door for sections 1 and 3 to be read into the right-of-way

provisions. July 25 Act, § 6 (emphasis added). Section 1 states, among other

things, that land is granted to the State for the purpose of aiding the railroad “to

construct and operate a railroad”; and Section 3 states “[t]hat the grant of lands

hereby made [to the State] is upon condition that said company, after the

construction of its road, shall keep it in repair and use.” July 25 Act §§ 1, 3.

Atoka cites no case or authoritative rationale to support its reading of this Act.



       We can think of no reason why we should import the language from

Sections 1 and 3 into Sections 6 and 8, and one critical reason why we should not.

If we accepted such a reading we would obviate the structure and purpose of the

July 25 Act. See United States v. Lewis , 67 F.3d 225, 228-29 (9th Cir. 1995)

(requiring particular phrases be construed in light of the overall purpose and

structure of the act). As we previously mentioned, the Act is structured to make


                                             -18-
two grants: one, alternate sections of lands on each side of the proposed railroad

granted to the state to benefit the railroad in constructing its line; and two, the

right-of-way granted directly to the railroad company.           Compare July 25 Act § 1,

3 with July 25 Act §§ 6, 8. Sections 1 and 3       9
                                                       refer to the alternate sections of

land granted to the State for the benefit of the railroad; Sections 6 and 8 address

the right-of-way grant made directly to the railroad.          Id. Section 6 provides no

directive to refer to, much less import language from Sections 1 and 3 when

determining the extent of the railroad’s right-of-way grant.           See July 25 Act, § 6.



       Additionally, if we were to accept Atoka’s reading of the July 25 Act, we

would be thwarting, if not nullifying Congress’ intent; we must presume Congress

acted intentionally when it included language in Sections 1 and 3, conditioning

the State’s grant of alternating lands on the “construct[ion] and operat[ion of] a

railroad,” or the railroad’s “repair and use” of its road, but did not include the

same language in the same Act’s right-of-way sections.             Compare July 25 Act § 1,

3 with July 25 Act §§ 6, 8. “Where language appears in one section of a statute

but not in another section, we assume the omission was intentional.”             Universal


       9
          Read in its entirety, Section 3 refers to the alternating land grants made to the
state in Section 1. See July 25 Act § 3. Section 3 refers to Section 1 as those grants
“hereby made” and the land that is “reserved as aforesaid shall inure to the benefit of said
company.” Id. The section does not address the right-of-way grants made in Sections 6
and 8. Id.

                                            -19-
Constr. Co. v. Occupational Safety & Health Review Comm’n               , 182 F.3d 726, 729

(10th Cir. 1999). This court’s obligation is to “give effect to the intent of the

legislature as expressed rather than determine what the law should or should not

be.” Beck v. Northern Natural Gas Co.         , 170 F.3d 1018, 1024 (10th Cir. 1999)

(quotation marks and citation omitted). Because the July 25 Act establishes two

land grants and the land at issue is governed exclusively by the right-of-way

grants in Sections 6 and 8, the conditional language of Sections 1 and 3 setting

forth the alternating section grants lies outside our inquiry.     10
                                                                        In other words, we

will not inject language from the alternating land grants sections into the right-of-

way provisions.



       For all of the following reasons, we hold the July 25 Act conveyed to

Union Pacific a fee absolute title in its right-of-way with no right of reversion:

(1) not all 1860s right-of-way land grants are automatically construed as limited

fees; (2) our comment in      Drumb is dicta; and (3) Union Pacific’s right-of-way

granted by the July 25 Act is not more limited than that authorized in the July 26

Act.




       10
            Atoka candidly concedes the only issue in this case is the right-of-way grant.


                                             -20-
AFFIRMED .



             Entered by the Court:

             WADE BRORBY
             United States Circuit Judge




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