Page:Federal Reporter, 1st Series, Volume 3.djvu/117

 110 FEDERAL REPORTBE. �right inherent in every government, and that it belongs alike to the states and to the United States. Each, within its own Bphere of governmental action, may exercise it. The United States T. Chicago, 7 How. 185; Kohi v. The United States, 91 U. S. 367. �Should a case of conflict between the state and federal government arise, the paramount authority of the United States under the constitution would, of course, prevail. Thus, if the United States has, by proper proceedings, condemned and taken land for a fort, arsenal, navy yard or light-house, or for a post-office, custom-house or court-house, it would not be in the power of the state, in the exercise of its right of eminent domain, to take the same property. But the present case does not corne within this principle. The United States has never condemned the right of way of the Union Pacific Eailway, and taken it for its own use for public purposes, •within the meaning of the rule just stated. It has only chartered that oompany, given it the right to construct and operate a railway, and granted to it the right of way over public lands along its line, together with the right to take private property for the same purpose upon making just com- pensation. The distinction between this and the oondemna- tion of land under the right of eminent domain for national purposes, is too plain to require elaboration. I am clearly of the opinion that the right of wayof the Union Pacific Eail- way is not property of the federal government set apart for its own public use, so as to exempt it from the operation of the law of the state of Nebraska, above quoted, respecting the Crossing and Connecting of railroads, and the condemnation of property for those purposes. It is the property of the cor- poration acquired under a law of the United States. If, however, it were conceded to be the land of the United States, unless held for governmental purposes, it would, even in that case, be subject to the state's power of eminent domain. Land owned by the United States, as a mere proprietor, and not used for any of the purposes of the national government, may be taken by the state for public use. U. S. v. Railroad Bridge Co. 6 McLean, 517. ����