author: Mr. Justice White MR. Justice Blackmun, Mr. Justice Rehnquist,

text:
    DELAWARE v. PROUSE
    No. 77-1571.
    Argued January 17, 1979
    Decided March 27, 1979

      White, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Blackmun, J., filed a concurring opinion, in which Powell, J., joined, post, p. 663. Rehnquist, J., filed a dissenting opinion, post, p. 664.

      Charles M. Oberly III argued the cause for petitioner. With him on the brief were Richard R. Wier, Jr., Attorney General of Delaware, and Carolyn Berger, Fred S. Silverman, and Kathleen Molyneux, Deputy Attorneys General.

      David M. Lukoff argued the cause for respondent. With him on the brief were Richard M. Baumeister, Frank Askin, and Eric Neis ser.

        Frank Carrington, Wayne W. Schmidt, Glen R. Murphy, and James P. Costello filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging reversal.

   Mr. Justice White

delivered the opinion of the Court.

The question is whether it is an unreasonable seizure under the Fourth and Fourteenth Amendments to stop an automobile, being driven on a public highway, for the purpose of checking the driving license of the operator and the registration of the car, where there is neither probable cause to believe nor reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable law.

I

At 7:20 p. m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser stopped the automobile occupied by respondent. The patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent's motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver’s license and registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as “routine,” the patrolman explained, “I saw the car in the area and wasn’t answering any complaints, so I decided to pull them off.” App. A9. The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment.

The Delaware Supreme Court affirmed, noting first that “[t]he issue of the legal validity of systematic, roadblock-type stops of a number of vehicles for license and vehicle registration check is not now before the Court,” 382 A. 2d 1359, 1362 (1978) (emphasis in original). The court held that “a random stop of a motorist in the absence of specific articulable facts which justify the stop by indicating a reasonable suspicion that a violation of the law has occurred is constitutionally impermissible and violative of the Fourth and Fourteenth Amendments to the United States Constitution.” Id., at 1364. We granted certiorari to resolve the conflict between this decision, which is in accord with decisions in five other jurisdictions, and the contrary determination in six jurisdictions that the Fourth Amendment does not prohibit the kind of automobile stop that occurred here. 439 U. S. 816 (1978).

II

Because the Delaware Supreme Court held that the stop at issue not only violated the Federal Constitution but also was impermissible under Art. I, § 6, of the Delaware Constitution, it is urged that the judgment below was based on an independent and adequate state ground and that we therefore have no jurisdiction in this case. Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935). At least, it is suggested, the matter is sufficiently uncertain that we should remand for clarification as to the ground upon which the judgment rested. California v. Krivda, 409 U. S. 33, 35 (1972). Based on our reading of the opinion, however, we are satisfied that even if the State Constitution would have provided an adequate basis for the judgment, the Delaware Supreme Court did not intend to rest its decision independently on the State Constitution and that we have jurisdiction of this case.

As we understand the opinion below, Art I, § 6, of the Delaware Constitution will automatically be interpreted at least as broadly as the Fourth Amendment; that is, every police practice authoritatively determined to be contrary to the Fourth and Fourteenth Amendments will, without further analysis, be held to be contrary to Art. I, § 6. This approach, which is consistent with previous opinions of the Delaware Supreme Court, was followed in this case. The court analyzed the various decisions interpreting the Federal Constitution, concluded that the Fourth Amendment foreclosed spot checks of automobiles, and summarily held that the State Constitution was therefore also infringed. This is one of those cases where “at the very least, the [state] court felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner it did.” Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568 (1977). Had state law not been mentioned at all, there would be no question about our jurisdiction, even though the State Constitution might have provided an independent and adequate state ground. Ibid. The same result should follow here where the state constitutional holding depended upon the state court's view of the reach of the Fourth and Fourteenth Amendments. If the state court misapprehended federal law, “[i]t should be freed to decide . . . these suits according to its own local law.” Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5 (1950).

Ill

The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a “seizure” within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief. United States v. Martinez-Fuerte, 428 U. S. 543, 556-558 (1976); United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975); cf. Terry v. Ohio, 392 U. S. 1, 16 (1968). The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of “reasonableness” upon the exercise of discretion by government officials, including law enforcement agents, in order “ 'to safeguard the privacy and security of individuals against arbitrary invasions. . . ” Marshall v. Barlow’s, Inc., 436 U. S. 307, 312 (1978), quoting Camara v. Municipal Court, 387 U. S. 523, 528 (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against “an objective standard,” whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon “some quantum of individualized suspicion,” other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not “subject to the discretion of the official in the field,” Camara v. Municipal Court, 387 U. S., at 532. See id., at 534-535; Marshall v. Barlow’s, Inc., supra, at 320-321; United States v. United States District Court, 407 U. S. 297, 322-323 (1972) (requiring warrants).

In this case, however, the State of Delaware urges that patrol officers be subject to no constraints in deciding which automobiles shall be stopped for a license and registration check because the State’s interest in discretionary spot checks as a means of ensuring the safety of its roadways outweighs the resulting intrusion on the privacy and security of the persons detained.

IV

We have only recently considered the legality of investigative stops of automobiles where the officers making the stop-have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, supra, Border Patrol agents conducting roving patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate all warrantless automobile stops upon less than probable cause. Given “the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,” 422 U. S., at 881, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, supra, and held:

“Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” 422 U. S., at 884 (footnote omitted).

Because “the nature of illegal alien trafile and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,” id., at 883, “a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” Ibid.

The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, supra, in which we addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic “to a virtual, if not a complete, halt,” 428 U. S., at 546, at a highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol’s checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist’s Fourth Amendment interests:

“[The] objective intrusion- — the stop itself, the questioning, and the visual inspection- — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of a checkpoint stop.” Id., at 558.

Although not dispositive, these decisions undoubtedly provide guidance in balancing the public interest against the individual’s Fourth Amendment interests implicated by the practice of spot checks such as occurred in this case. We cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving-patrol stop on a major highway and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce was not limited to roving-patrol stops on limited-access roads, but applied to any roving-patrol stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See 422 U. S., at 882-883; United States v. Ortiz, 422 U. S. 891, 894 (1975). We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment than that occasioned by a stop by border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety. For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. “At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers’ authority, and he is much less likely to be frightened or annoyed by the intrusion.” Id., at 894-895, quoted in United States v. Martinez-Fuerte, 428 U. S., at 558.

y

But the State of Delaware urges that even if discretionary spot checks such as occurred in this case intrude upon motorists as much as or more than do the roving patrols held impermissible in Brignoni-Ponce, these stops are reasonable under the Fourth Amendment because the State’s interest in the practice as a means of promoting public safety upon its roads more than outweighs the intrusion entailed. Although the record discloses no statistics concerning the extent of the problem of lack of highway safety, in Delaware or in the Nation as a whole, we are aware of the danger to life and property posed by vehicular traffic and of the difficulties that even a cautious and an experienced driver may encounter. We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program. Furthermore, we note that the State of Delaware requires a minimum amount of insurance coverage as a condition to automobile registration, implementing its legitimate interest in seeing to it that its citizens have protection when involved in a motor vehicle accident.

The question remains, however, whether in the service of these important ends the discretionary spot check is a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail. On the record before us, that question must be answered in the negative. Given the alternative mechanisms available, both those in use and those that might be adopted, we are unconvinced that the incremental contribution to highway safety of the random spot check justifies the practice under the Fourth Amendment.

The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained. Furthermore, drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves. Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers. If this were not so, licensing of drivers would hardly be an effective means of promoting roadway safety. It seems common sense that the percentage of all drivers on the road who are driving without a license is very small and that the number of licensed drivers who will be stopped in order to find one unlicensed operator will be large indeed. The contribution to highway safety made by discretionary stops selected from among drivers generally will therefore be marginal at best. Furthermore, and again absent something more than mere assertion to the contrary, we find it difficult to believe that the unlicensed driver would not be deterred by the possibility of being involved in a traffic violation or having some other experience calling for proof of his entitlement to drive but that he would be deterred by the possibility that he would be one of those chosen for a spot check. In terms of actually discovering unlicensed drivers or deterring them from driving, the spot check does not appear sufficiently productive to qualify as a reasonable law enforcement practice under the Fourth Amendment.

Much the same can be said about the safety aspects of automobiles as distinguished from drivers. Many violations of minimum vehicle-safety requirements are observable, and something can be done about them by the observing officer, directly and immediately. Furthermore, in Delaware, as elsewhere, vehicles must carry and display current license plates, which themselves evidence that the vehicle is properly registered; and, under Delaware law, to qualify for annual registration a vehicle must pass the annual safety inspection and be properly insured. It does not appear, therefore, that a stop of a Delaware-registered vehicle is necessary in order to ascertain compliance with the State's registration requirements; and, because there is nothing to show that a significant percentage of automobiles from other States do not also require license plates indicating current registration, there is no basis for concluding that stopping even out-of-state cars for document checks substantially promotes the State’s interest.

The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting, every occupant of every vehicle on the roads to a seizure— limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable — at the unbridled discretion of law enforcement officials. To insist neither upon an appropriate factual basis for suspicion directed at a particular automobile nor upon some other substantial and objective standard or rule to govern the exercise of discretion “would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches . . . .” Terry v. Ohio, 392 U. S., at 22. By hypothesis, stopping apparently safe drivers is necessary only because the danger presented by some drivers is not observable at the time of the stop. When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular - driver for a spot check would be more productive than stopping any other driver. This kind of standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U. S. 266, 270 (1973); Camara v. Municipal Court, 387 U. S., at 532-533.

VI

The “grave danger” of abuse of discretion, United States v. Martines-Fuerte, 428 U. S., at 559, does not disappear simply because the automobile is subject to state regulation resulting in numerous instances of police-citizen contact, Cady v. Dombrowski, 413 U. S. 433, 441 (1973). Only last Term we pointed out that “if the government intrudes . . . the privacy interest suffers whether the government’s motivation is to investigate violations of criminal laws or breaches of other statutory or regulatory standards.” Marshall v. Barlow’s, Inc., 436 U. S., at 312-313. There are certain “relatively unique circumstances,” id., at 313, in which consent to regulatory restrictions is presumptively concurrent with participation in the regulated enterprise. See United States v. Biswell, 406 U. S. 311 (1972) (federal regulation of firearms); Colonnade Catering Corp. v. United States, 397 U. S. 72 (1970) (federal regulation of liquor). Otherwise, regulatory inspections unaccompanied by any quantum of individualized, articulable suspicion must be undertaken pursuant to previously specified “neutral criteria.” Marshall v. Barlow’s, Inc., supra, at 323.

An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one’s home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed. As Terry v. Ohio, supra, recognized, people are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles. See Adams v. Williams, 407 U. S. 143, 146 (1972).

YII

Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver’s license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. The judgment below is affirmed.

So ordered.

MR. Justice Blackmun,

with whom Mr. Justice Powell joins,

concurring.

The Court, ante, this page, carefully protects from the reach of its decision other less intrusive spot checks “that do not involve the unconstrained exercise of discretion.” The roadblock stop for all traffic is given as an example. I necessarily assume that the Court’s reservation also includes other not purely random stops (such as every 10th car to pass a given point) that equate with, but are less intrusive than, a 100% roadblock stop. And I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court’s balancing process, and the value factors under consideration, would be quite different.

With this understanding, I join the Court’s opinion and its judgment.

Mr. Justice Rehnquist,

dissenting.

The Court holds, in successive sentences, that absent an articulable, reasonable suspicion of unlawful conduct, a motorist may not be subjected to a random license check, but that the States are free to develop “methods for spot checks that ... do not involve the unconstrained exercise of discretion,” such as “[questioning ... all oncoming traffic at roadblock-type stops . . . .” Ante, at 663. Because motorists, apparently like sheep, are much less likely to be “frightened” or “annoyed” when stopped en masse, a highway patrolman needs neither probable cause nor articulable suspicion to stop all motorists on a particular thoroughfare, but he cannot without articulable suspicion stop less than all motorists. The Court thus elevates the adage “misery loves company” to a novel role in Fourth Amendment jurisprudence. The rule becomes “curiouser and curiouser” as one attempts to follow the Court’s explanation for it.

As the Court correctly points out, people are not shorn of their Fourth Amendment protection when they step from their homes onto the public sidewalks or from the sidewalks into their automobiles. But a random license check of a motorist operating a vehicle on highways owned and maintained by the State is quite different from a random stop designed to uncover violations of laws that have nothing to do with motor vehicles. No one questions that the State may require the licensing of those who drive on its highways and the registration of vehicles which are driven on those highways. If it may insist on these requirements, it obviously may take steps necessary to enforce compliance. The reasonableness of the enforcement measure chosen by the State is tested by weighing its intrusion on the motorists’ Fourth Amendment interests against its promotion of the State’s legitimate interests. E. g., United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975).

In executing this balancing process, the Court concludes that given the alternative mechanisms available, discretionary spot checks are not a “sufficiently productive mechanism” to safeguard the State’s admittedly “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Ante, at 659, 658. Foremost among the alternative methods of enforcing traffic and vehicle safety regulations, according to the Court, is acting upon observed violations, for “drivers without licenses are presumably the less safe drivers whose propensities may well exhibit themselves.” Ante, at 659. Noting that “finding an unlicensed driver among those who commit trafile violations is a much more likely event than finding an unlicensed driver by choosing randomly from the entire universe of drivers,” ibid., the Court concludes that the contribution to highway safety made by random stops would be marginal at best. The State’s primary interest, however, is in traffic safety, not in apprehending unlicensed motorists for the sake of apprehending unlicensed motorists. The whole point of enforcing motor vehicle safety regulations is to remove from the road the unlicensed driver before he demonstrates why he is unlicensed. The Court would apparently prefer that the State check licenses and vehicle registrations as the wreckage is being towed away.

Nor is the Court impressed with the deterrence rationale, finding it inconceivable that an unlicensed driver who is not deterred by the prospect of being involved in a traffic violation or other incident requiring him to produce a license would be deterred by the possibility of being subjected to a spot check. The Court arrives at its conclusion without the benefit of a shred of empirical data in this record suggesting that a system of random spot checks would fail to deter violators. In the absence of such evidence, the State’s determination that random stops would serve a deterrence function should stand.

On the other side of the balance, the Court advances only the most diaphanous of citizen interests. Indeed, the Court does not say that these interests can never be infringed by the State, just that the State must infringe them en masse rather than citizen by citizen. To comply with the Fourth Amendment, the State need only subject all citizens to the same “anxiety” and “inconvenien[ce]” to which it now subjects only a few.

For constitutional purposes, the action of an individual law enforcement officer is the action of the State itself, e, g., Ex parte Virginia, 100 U. S. 339, 346-347 (1880), and state acts are accompanied by a presumption of validity until shown otherwise. See, e. g., McDonald v. Board of Election, 394 U. S. 802 (1969). Although a system of discretionary stops could conceivably be abused, the record before us contains no showing that such abuse is probable or even likely. Nor is there evidence in the record that a system of random license checks would fail adequately to further the State’s interest in deterring and apprehending violators. Nevertheless, the Court concludes “[o]n the record before us” that the random spot check is not “a sufficiently productive mechanism to justify the intrusion upon Fourth Amendment interests which such stops entail.” Ante, at 659. I think that the Court’s approach reverses the presumption of constitutionality accorded acts of the States. The burden is not upon the State to demonstrate that its procedures are consistent with the Fourth Amendment, but upon respondent to demonstrate that they are not. “On this record” respondent has failed to make such a demonstration.

Neither the Court’s opinion, nor the opinion of the Supreme Court of Delaware, suggests that the random stop made in this case was carried out in a manner inconsistent with the Equal Protection Clause of the Fourteenth Amendment. Absent an equal protection violation, the fact that random stops may entail “a possibly unsettling show of authority,” ante, at 657, and “may create substantial anxiety,” ibid., seems an insufficient basis to distinguish for Fourth Amendment purposes between a roadblock stopping all cars and the random stop at issue here. Accordingly, I would reverse the judgment of the Supreme Court of Delaware.

       In its opinion, the Delaware Supreme Court referred to respondent as the operator of the vehicle, see 382 A. 2d 1359, 1361 (1978). However, the arresting officer testified: “I don’t believe [respondent] was the driver. . . . As I recall, he was in the back seat App. A12; and the trial court in its ruling on the motion to suppress referred to respondent as one of the four “occupants” of the vehicle, id., at A17. The vehicle was registered to respondent. Id., at A10.

        United States v. Montgomery, 182 U. S. App. D. C. 426, 561 F. 2d 875 (1977); People v. Ingle, 36 N. Y. 2d 413, 330 N. E. 2d 39 (1975); State v. Ochoa, 23 Ariz. App. 510, 534 P. 2d 441 (1975), rev’d on other grounds, 112 Ariz. 582, 544 P. 2d 1097 (1976); Commonwealth v. Swanger, 453 Pa. 107, 307 A. 2d 875 (1973); United States v. Nicholas, 448 F. 2d 622 (CA8 1971). See also United States v. Cupps, 503 F. 2d 277 (CA6 1974).

        State v. Holmberg, 194 Neb. 337, 231 N. W. 2d 672 (1975); State v. Allen, 282 N. C. 503, 194 S. E. 2d 9 (1973); Palmote v. United States, 290 A. 2d 573 (D. C. App. 1972), aff’d on jurisdictional grounds only, 411 U. S. 389 (1973); Leonard v. State, 496 S. W. 2d 576 (Tex. Crim. App. 1973); United States v. Jenkins, 528 F. 2d 713 (CA10 1975); Myricks v. United States, 370 F. 2d 901 (CA5), cert. dismissed, 386 U. S. 1015 (1967).

       The court stated:
      “The Delaware Constitution Article I, § 6 is substantially similar to the Fourth Amendment and a violation of the latter is necessarily a violation of the former.” 382 A. 2d, at 1362, citing State v. Moore, 55 Del. 356, 187 A. 2d 807 (1963).

        Moore was decided less than two years after Mapp v. Ohio, 367 U. S. 643 (1961), applied to the States the limitations previously imposed only on the Federal Government. In setting forth the approach reiterated in the opinion below, Moore noted not only the common purposes and wording of the Fourth Amendment and the state constitutional provision, but also the overriding effect of the former. See 55 Del., at 362-363, 187 A. 2d, at 810-811.

       We have found only one case decided after State v. Moore, supra, in which the court relied solely on state law in upholding the validity of a search or seizure, and that case involved not only Del. Const. Art. I, § 6, but also state statutory requirements for issuance of a search warrant. Rossitto v. State, 234 A. 2d 438 (1967). Moreover, every case holding a search or seizure to be contrary to the state constitutional provision relies on cases interpreting the Fourth Amendment and simultaneously concludes that the search or seizure is contrary to that provision. See, e. g., Young v. State, 339 A. 2d 723 (1975); Freeman v. State, 317 A. 2d 540 (1974); cf. Bertomeu v. State, 310 A. 2d 865 (1973).

       See Marshall v. Barlow’s, Inc., 436 U. S. 307, 315 (1978); United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975); Cady v. Dombrowski, 413 U. S. 433, 439 (1973); Terry v. Ohio, 392 U. S. 1, 20-21 (1968); Camara v. Municipal Court, 387 U. S. 523, 539 (1967).

       See also United States v. Martinez-Fuerte, 428 U. S. 543, 554 (1976); United States v. Ortiz, 422 U. S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U. S. 266, 270 (1973); Beck v. Ohio, 379 U. S. 89, 97 (1964); McDonald v. United States, 335 U. S. 451, 455-456 (1948).

       See, e. g., United States v. Ramsey, 431 U. S. 606, 616-619 (1977); United States v. Martinez-Fuerte, supra, at 555; cases cited in n. 6, supra.

        Terry v. Ohio, supra, at 21. See also Scott v. United States, 436 U. S. 128, 137 (1978); Beck v. Ohio, supra, at 96-97.

       See, e. g., United States v. Santana, 427 U. S. 38 (1976); United States v. Watson, 423 U. S. 411 (1976); Ker v. California, 374 U. S. 23 (1963) (warrantless arrests requiring probable cause); United States v. Ortiz, supra; Warden v. Hayden, 387 U. S. 294 (1967); Carroll v. United States, 267 U. S. 132 (1925) (warrantless searches requiring probable cause). See also Gerstein v. Pugh, 420 U. S. 103 (1975).

       See Terry v. Ohio, supra; United States v. Brignoni-Ponce, supra.

      In addition, the Warrant Clause of the Fourth Amendment generally requires that prior to a search a neutral and detached magistrate ascertain that the requisite standard is met, see, e. g., Mincey v. Arizona, 437 U. S. 385 (1978).

         United States v. Martinez-Fuerte, supra, at 560.

       In addressing the constitutionality of Border Patrol practices, we reserved the question of the permissibility of state and local officials stopping motorists for document questioning in a manner similar to checkpoint detention, see 428 U. S., at 560 n. 14, or roving-patrol operations, see United States v. Brignoni-Ponce, 422 U. S., at 883 n. 8.

       In 1977, 47,671 persons died in motor vehicle accidents in this country. U. S. Dept. of Transportation, Highway Safety A-9 (1977).

       See, e. g., Del. Code Ann., Tit. 21, §§2701, 2707 (1974 and Supp. 1977); §2713 (1974) (Department of Public Safety “shall examine the applicant as to his physical and mental qualifications to operate a motor vehicle in such manner as not to jeopardize the safety of persons or property . . .”).

       §2143 (a) (1974).

       § 2118 (Supp. 1977); State of Delaware, Department of Public Safety, Division of Motor Vehicles, Driver’s Manual 60 (1976).

       It has been urged that additional state interests are the apprehension of stolen motor vehicles and of drivers under the influence of alcohol or narcotics. The latter interest is subsumed by the interest in roadway safety, as may be the former interest to some extent. The remaining governmental interest in controlling automobile thefts is not distinguishable from the general interest in crime control.

       Cf. United States v. Brignoni-Ponce, supra, at 883.

       Del. Code Ann., Tit. 21, §2126 (1974).

       §§ 2121 (b), (d) (1974).

       See n. 16, supra; §2109 (1974).

       See n. 17, supra; §2109 (1974).

       See, e. g., §§4101-4199B (1974 and Supp. 1977).

       Cf. Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978) (warrant required for federal inspection under interstate commerce power of health and safety of workplace); See v. Seattle, 387 U. S. 541 (1967) (warrant required for inspection of warehouse for municipal fire code violations); Camara v. Municipal Court, 387 U. S. 523 (1967) (warrant required for inspection of residence for municipal fire code violations).

       Nor does our holding today cast doubt on the permissibility of roadside truck weigh-stations and inspection checkpoints, at which some vehicles may be subject to further detention for safety and regulatory inspection than are others.

      Indeed, this distinction was expressly recognized in United States v. Brignoni-Ponce, 422 U. S. 873, 883 n. 8 (1975):
      “Our decision in this case takes into account the special function of the Border Patrol, the importance of the governmental interests in policing the border area, the character of roving-patrol stops, and the availability of alternatives to random stops unsupported by reasonable suspicion. Border Patrol agents have no part in enforcing laws that regulate highway use, and their activities have nothing to do with an inquiry whether motorists and their vehicles are entitled, by virtue of compliance with laws governing highway usage, to be upon the public highways. Our decision thus does not imply that state and local enforcement agencies are without power to conduct such limited stops as are neccessary to enforce laws regarding drivers’ licenses, vehicle registration, truck weights, and'similar matters.”


source: Caselaw Access Project

author: Mr. Justice Rehnquist

license: Public Domain

text:
    LEO SHEEP CO. et al. v. UNITED STATES et al.
    No. 77-1686.
    Argued January 15, 16, 1979
    Decided March 27, 1979

      Rehnquist, J., delivered the opinion of the Court, in which all other Members joined except White, J., who took no part in the consideration or decision of the case.

      Clyde 0. Martz argued the cause for petitioners. With him on the briefs were Howard L. Boigon, John A. MacPher-son, and T. Michael Golden.

      Sara Sun Beale argued the cause for respondents. With her on the brief were Peter R. Steenland, Jr., Raymond N. Zagone, and Edward J. Shawaker.

        Russell H. Carpenter, Jr., Stuart C. Stock, C. George Niebank, and Alan C. Furth filed a brief for Union Pacific Land Resources Corp. et al. as amici curiae urging reversal.

        Henry A. Burgess, William C. Farmer, and David M. Bridges filed a brief for Energy Transportation Systems, Inc., as amicus curiae urging affirmance.

   Mr. Justice Rehnquist

delivered the opinion of the Court.

This is one of those rare cases evoking episodes in this country’s history that, if not forgotten, are remembered as dry facts and not as adventure. Admittedly the issue is mundane: Whether the Government has an implied easement to build a road across land that was originally granted to the Union Pacific Railroad under the Union Pacific Act of 1862 — a grant that was part of a governmental scheme to subsidize the construction of the transcontinental railroad. But that issue is posed against the backdrop of a fascinating chapter in our history. As this Court noted in another case involving the Union Pacific Railroad, “courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it.” United States v. Union Pacific R. Co., 91 U. S. 72, 79 (1875). In this spirit we relate the events underlying passage of the Union Pacific Act of 1862.

I

The early 19th century — from the Louisiana Purchase in 1803 to the Gadsden Purchase in 1853 — saw the acquisition of the territory we now regard as the American West. During those years, however, the area remained a largely untapped resource for the settlers on the eastern seaboard of the United States did not keep pace with the rapidly expanding western frontier. A vaguely delineated area forbiddingly referred to as the “Great American Desert” can be found on more than one map published before 1850, embracing much of the United States’ territory west of the Missouri River. As late as 1860, for example, the entire population of the State of Nebraska was less than 30,000 persons, which represented one person for every five square miles of land area within the State.

With the discovery of gold at Sutter’s Mill in California in 1848, the California gold rush began and with it a sharp increase in settlement of the West. Those in the East with visions of instant wealth, however, confronted the unenviable choice among an arduous 4-month overland trek, risking yellow fever on a 35-day voyage via the Isthmus of Panama, and a better than 4-month voyage around Cape Horn. They obviously yearned for another alternative, and interest focused on the transcontinental railroad.

The idea of a transcontinental railroad predated the California gold rush. From the time that Asa Whitney had proposed a relatively practical plan for its construction in 1844, it had, in the words of one of this century’s leading historians of the era, “engaged the eager attention of promoters and politicians until dozens of schemes were in the air.” The building of the railroad was not to be the unalloyed product of the free-enterprise system. There was indeed the inspiration of men like Thomas Durant and Leland Stanford and the perspiration of a generation of immigrants, but animating it all was the desire of the Federal Government that the West be settled. This desire was intensified by the need to provide a logistical link with California in the heat of the Civil War. That the venture was much too risky and much too expensive for private capital alone was evident in the years of fruitless exhortation; private investors would not move without tangible governmental inducement.

In the mid-19th century there was serious disagreement as to the forms that inducement could take. Mr. Justice Story, in his Commentaries on the Constitution, described one extant school of thought which argued that “internal improvements,” such as railroads, were not within the enumerated constitutional powers of Congress. Under such a theory, the direct subsidy of a transcontinental railroad was constitutionally suspect — an uneasiness aggravated by President Andrew Jackson’s 1830 veto of a bill appropriating funds to construct a road from Maysville to Lexington within the State of Kentucky.

The response to this constitutional “gray” area, and source of political controversy, was the “checkerboard” land-grant scheme. The Union Pacific Act of 1862 granted public land to the Union Pacific Railroad for each mile of track that it laid. Land surrounding the railway right-of-way was divided into “checkerboard” blocks. Odd-numbered lots were granted to the Union Pacific; even-numbered lots were reserved by the Government. As a result, Union Pacific land in the area of the right-of-way was usually surrounded by public land, and vice versa. The historical explanation for this peculiar disposition is that it was apparently an attempt to disarm the “internal improvement” opponents by establishing a grant scheme with “demonstrable” benefits. As one historian notes in describing an 1827 federal land grant intended to facilitate private construction of a road between Columbus and Sandusky, Ohio:

“Though awkwardly stated, and not fully developed in the Act of 1827, this was the beginning of a practice to be followed in most future instances of granting land for the construction of specific internal improvements: donating alternate sections or one half of the land within a strip along the line of the project and reserving the other half for sale. ... In later donations the price of the reserved sections was doubled so that it could be argued, as the Congressional Globe shows ad infinitum, that by giving half the land away and thereby making possible construction of the road, canal, or railroad, the government would recover from the reserved sections as much as it would have received from the whole.” P. Gates, History of Public Land Law Development 345-346 (1968).

In 1850 this technique was first explicitly employed for the subsidization of a railroad when the Illinois delegation in Congress, which included Stephen A. Douglas, secured the enactment of a bill that granted public lands to aid the construction of the Illinois Central. Railroad: The Illinois Central and proposed connecting lines to the south were granted nearly three million acres along rights of way through Illinois, Mississippi, and Alabama, and by the end of 1854 the main line of the Illinois Central from Chicago to Cairo, Ill., had been put into operation. Before this line was constructed, public lands had gone begging at the Government’s minimum price; within a few years after its completion, the railroad had disposed of more than one million acres and was rapidly selling more at prices far above those at which land had been originally offered by the Government.

The “internal improvements” theory was not the only obstacle to a transcontinental railroad. In 1853 Congress had appropriated moneys and authorized Secretary of War Jefferson Davis to undertake surveys of various proposed routes for a transcontinental railroad. Congress was badly split along sectional lines on the appropriate location of the route — so badly split that Stephen A. Douglas, now a Senator from Illinois, in 1854 suggested the construction of a northern, central, and southern route, each with connecting branches in the East. That proposal, however, did not break the impasse.

The necessary impetus was provided by the Civil War. Senators and Representatives from those States which seceded from the Union were no longer present in Congress, and therefore the sectional overtones of the dispute as to routes largely disappeared. Although there were no major engagements during the Civil War in the area between the Missouri River and the west coast which would be covered by any transcontinental railroad, there were two minor engagements which doubtless made some impression upon Congress of the necessity for being able to transport readily men and materials into that area for military purposes.

Accounts of the major engagements of the Civil War do not generally include the Battle of Picacho Pass, because in the words of Edwin Corle, author of The Gila, “[i]t could be called nothing more than a minor skirmish today.” It was fought 42 miles northwest of Tucson, Ariz., on April 15, 1862, between a small contingent of Confederate cavalry commanded by Captain Sherod Hunter and Union troops under Colonel James H. Carleton consisting of infantry, cavalry, and artillery components known ■ as the “California Volunteers.” The battle was a draw, with the Union forces losing three men and the badly outnumbered Confederates apparently suffering two men killed and two captured. Following the battle, the Confederate forces abandoned Tucson, which they had previously occupied, and Carleton’s Union forces entered that city on May 20, 1862.

The Battle of Glorieta Pass has similarly endured anonymity. Also described as La Glorieta Pass or Apache Canyon, Glorieta Pass lies in the upper valley of the Pecos River, in the southern foothills of the Sangre de Cristo range of the Rocky Mountains near Santa Fe, N. M. Here in the early spring of 1862 a regiment of Colorado volunteers, having moved by forced marches from Denver to Ft. Union, turned back Confederate forces led by Brigadier General Henry Sibley which, until this encounter, had marched triumphantly northward up the Rio Grande Valley from Ft. Bliss. As a result of the Battle of Glorieta Pass, New Mexico was saved for the Union, and Sibley’s forces fell back in an easterly direction through Texas before the advance of Carleton’s column of Californians.

These engagements gave some immediacy to the comments of Congressman Edwards of New Hampshire during the debate on the Pacific Railroad bill:

“If this Union is to be preserved, if we are successfully to combat the difficulties around us, if we are to crush out this rebellion against the lawful authority of the Government, and are to have an entire restoration, it becomes us, with statesmanlike prudence and sagacity, to look carefully into the future, and to guard in advance against all possible considerations which may threaten the dismemberment of the country hereafter.” Cong. Globe, 37th Cong., 2d Sess., 1703 (1862).

As is often the case, war spurs technological development, and Congress enacted the Union Pacific Act in May 1862. Perhaps not coincidentally, the Homestead Act was passed the same month.

The Union Pacific Act specified a route west from the 100th meridian, between a site in the Platte River Valley near the cities of Kearney and North Platte, Neb., to California. The original plan was for five eastern terminals located at various points on or near the Missouri River; but in fact Omaha was the only terminal built according to the plan.

The land grants made by the Union Pacific Act included all the odd-numbered lots within 10 miles on either side of the track. When the Union Pacific's original subscription drive for private investment proved a failure, the land grant was doubled by extending the checkerboard grants to 20 miles on either side of the track. Private investment was still sluggish, and construction did not begin until July 1865, three months after the cessation of Civil War hostilities. Thus began a race with the Central Pacific Railroad, which was laying track eastward from Sacramento, for the Government land grants which went with each mile of track laid. The race culminated in the driving of the golden spike at Promontory, Utah, on May 10, 1869.

II

This case is the modern legacy of these early grants. Petitioners, the Leo Sheep Co. and the Palm Livestock Co., are the Union Pacific Railroad’s successors in fee to specific odd-numbered sections of land in Carbon County, Wyo. These sections lie to the east and south of the Seminoe Reservoir, an area that is used by the public for fishing and hunting. Because of the checkerboard configuration, it is physically impossible to enter the Seminoe Reservoir sector from this direction without some minimum physical intrusion upon private land. In the years immediately preceding this litigation, the Government had received complaints that private owners were denying access over their lands to the reservoir area or requiring the payment of access fees. After negotiation with these owners failed, the Government cleared a dirt road extending from a local county road to the reservoir across both public domain lands and fee lands of the Leo Sheep Co. It also erected signs inviting the public to use the road as a route to the reservoir.

Petitioners initiated this action pursuant to 28 U. S. C. § 2409a to quiet title against the United States. The District Court granted petitioners’ motion for summary judgment, but was reversed on appeal by the Court of Appeals for the Tenth Circuit. 570 P. 2d 881. The latter court concluded that when Congress granted land to the Union Pacific Railroad, it implicitly reserved an easement to pass over the odd-numbered sections in order to reach the even-numbered sections that were held by the Government. Because this holding affects property rights in 150 million acres of land in the Western United States, we granted certiorari, 439 U. S. 817, and now reverse.

The Government does not claim that there is any express reservation of an easement in the Union Pacific Act that would authorize the construction of a public road on the Leo Sheep Co.’s property. Section 3 of the 1862 Act sets out a few specific reservations to the “checkerboard” grant. The grant was not to include land “sold, reserved, or otherwise disposed of by the United States,” such as land to which there were homestead claims. 12 Stat. 492. Mineral lands were also excepted from the operation of the Act. Ibid. Given the existence of such explicit exceptions, this Court has in the past refused to add to this list by divining some “implicit” congressional intent. In Missouri, K. & T. R. Co. v. Kansas Pacific R. Co., 97 U. S. 491, 497 (1878), for example, this Court in an opinion by Mr. Justice Field noted that the intent of Congress in making the Union Pacific grants was clear: “It was to aid in the construction of the road by a gift of lands along its route, without reservation of rights, except such as were specifically mentioned . . . .” The Court held that although a railroad right-of-way under the grant may not have been located until years after 1862, by the clear terms of the Act only claims established prior to 1862 overrode the railroad grant; conflicting claims arising after that time could not be given effect. To overcome the lack of support in the Act itself, the Government here argues that the implicit reservation of the asserted easement is established by “settled rules of property law” and by the Unlawful Inelosures of Public Lands Act of 1885.

Where a private landowner conveys to another individual a portion of his lands in a certain area and retains the rest, it is presumed at common law that the grantor has reserved an easement to pass over the granted property if such passage is necessary to reach the retained property. These rghts-of-way are referred to as “easements by necessity.” There are two problems with the Government’s reliance on that notion in this case. First of all, whatever right of passage a private landowner might have, it is not at all clear that it would include the right to construct a road for public access to a recreational area. More importantly, the easement is not actually a matter of necessity in this case because the Government has the power of eminent domain. Jurisdictions have generally seen eminent domain and easements by necessity as alternative ways to effect the same result. For example, the State of Wyoming no longer recognizes the common-law easement by necessity in cases involving landlocked estates. It provides instead for a procedure whereby the landlocked owner can have an access route condemned on his behalf upon payment of the necessary compensation to the owner of the servient estate. For similar reasons other state courts have held that the “easement by necessity” doctrine is not available to the sovereign.

The applicability of the doctrine of easement by necessity in this case is, therefore, somewhat strained, and ultimately of little significance. The pertinent inquiry in this case is the intent of Congress when it granted land to the Union Pacific in 1862. The 1862 Act specifically listed reservations to the grant, and we do not find the tenuous relevance of the common-law doctrine of ways of necessity sufficient to overcome the inference prompted by the omission of any reference to the reserved right asserted by the Government in this case. It is possible that Congress gave the problem of access little thought; but it is at least as likely that the thought which was given focused on negotiation, reciprocity considerations, and the power of eminent domain as obvious devices for ameliorating disputes. So both as a matter of common-law doctrine and as a matter of construing congressional intent, we are unwilling to imply rights-of-way, with the substantial impact that such implication would have on property rights granted over 100 years ago, in the absence of a stronger case for their implication than the Government makes here.

The Government would have us decide this case on the basis of the familiar canon of construction that, when grants to federal lands are at issue, any doubts “are resolved for the Government, not against it.” Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 617 (1978). But this Court long ago declined to apply this canon in its full vigor to grants under the railroad Acts. In 1885 this Court observed:

“The solution of [ownership] questions [involving the railroad grants] depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.” Winona & St. Peter R. Co. v. Barney, 113 U. S. 618, 625 (1885).

The Court harmonized the longstanding rule enunciated most recently in Andrus, supra, with the doctrine of Winona in United States v. Denver & Rio Grande R. Co., 150 U. S. 1, 14 (1893), when it said:

“It is undoubtedly, as urged by the plaintiffs in error, the well-settled rule of this court that public grants are construed strictly against the grantees, but they are not to be so construed as to defeat the intent of the legislature, or to withhold what is given either expressly or by necessary or fair implication. . . .
"... When an act, operating as a general law, and manifesting clearly the intention of Congress to secure public advantages, or to subserve the public interests and welfare by means of benefits more or less valuable, offers to individuals or to corporations as an inducement to undertake and accomplish great and expensive enterprises or works of a quasi public character in or through an immense and undeveloped public domain, such legislation stands upon a somewhat different footing from merely a private grant, and should receive at the hands of the court a more liberal construction in favor of the purposes for which it was enacted.”

Thus, invocation of the canon reiterated in Andrus does little to advance the Government’s position in this case.

Nor do we find the Unlawful Inclosures of Public Lands Act of 1885 of any significance in this controversy. That Act was a response to the “range wars,” the legendary struggle between cattlemen and farmers during the last half of the 19th century. Cattlemen had entered Kansas, Nebraska, and the Dakota Territory before other settlers, and they grazed their herds freely on public lands with the Federal Government’s acquiescence. To maintain their dominion over the ranges, cattlemen used homestead and pre-emption laws to gain control of water sources in the range lands. With monopoly control of such sources, the cattlemen found that ownership over a relatively small area might yield effective control of thousands of acres of grassland. Another exclusionary technique was the illegal fencing of public lands, which was often the product of the checkerboard pattern of railroad grants. By placing fences near the borders of their parts of the checkerboard, cattlemen could fence in thousands of acres of public lands. Reports of the Secretary of the Interior indicated that vast areas of public grazing land had been preempted by such fencing patterns. In response Congress passed the Unlawful Inclosures Act of 1885.

Section 1 of the Unlawful Inclosures Act states that “[a] 11 inclosures of any public lands . . . constructed by any person ... to any of which land included within the inclosure the person . . . had no claim or color of title made or acquired in good faith . . . are declared to be unlawful.” 23 Stat. 321, 43 U. S. C. § 1061. Section 3 further provides:

“No person, by force, threats, intimidation, or by any fencing or inclosing, or any other unlawful means, shall prevent or obstruct, or shall combine and confederate with others to prevent or obstruct, any person from peaceably entering upon or establishing a settlement or residence on any tract of public land subject to settlement or entry under the public land laws of the United States, or shall prevent or obstruct free passage or transit over or through the public lands: Provided, This section shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.” 23 Stat. 322, 43 U. S. C. § 1063.

The Government argues that the prohibitions of this Act should somehow be read to include the Leo Sheep Co.’s refusal to acquiesce in a public road over its property, and that such a conclusion is supported by this Court’s opinion in Camfield v. United States, 167 U. S. 518 (1897). We find, however, that Camfield does not afford the support that the Government seeks. That case involved a fence that was constructed on odd-numbered lots so as to enclose 20,000 acres of public land, thereby appropriating it to the exclusive use of Camfield and his associates. This Court analyzed the fence from the perspective of nuisance law, and concluded that the Unlawful Inclosures Act was an appropriate exercise of the police power.

There is nothing, however, in the Camfield opinion to suggest that the Government has the authority asserted here. In fact, the Court affirmed the grantee’s right to fence completely his own land.

“So long as the individual proprietor confines his enclosure to his own land, .the Government has no right to complain, since he is entitled to the complete and exclusive enjoyment of it, regardless of any detriment to his neighbor; but when, under the guise of enclosing his own land, he builds a fence which is useless for that purpose, and can only have been intended to enclose the lands of the Government, he is plainly within the statute, and is guilty of an unwarrantable appropriation of that which belongs to the public at large.” Id., at 528.

Obviously, if odd-numbered lots are individually fenced, the access to even-numbered lots is obstructed. Yet the Camfield Court found that this was not a violation of the Unlawful Inclosures Act. In that light we cannot see how the Leo Sheep Co.’s unwillingness to entertain a public road without compensation can be a violation of that Act. It is certainly true that the problem we confront today was not a matter of great concern during the time the 1862 railroad grants were made. The order of the day was the open range — barbed wire had not made its presence felt — and the type of incursions on private property necessary to reach public land was not such an interference that litigation would serve any motive other than spite. Congress obviously believed that when development came, it would occur in a parallel fashion on adjoining public and private lands and that the process of subdivision, organization of a polity, and the ordinary pressures of commercial and social intercourse would work itself into a pattern of access roads. The Cam-field case expresses similar sentiments. After the passage quoted above conceding the authority of a private landowner to fence the entire perimeter of his odd-numbered lot, the Court opined that such authority was of little practical significance “since a separate enclosure of each section would only become desirable when the country had been settled, and roads had been built which would give access to each section.” Ibid. It is some testament to common sense that the present case is virtually unprecedented, and that in the 117 years since the grants were made, litigation over access questions generally has been rare.

Nonetheless, the present times are litigious ones and the 37th Congress did not anticipate our plight. Generations of land patents have issued without any express reservation of the right now claimed by the Government. Nor has a similar right been asserted before. When the Secretary of the Interior has discussed access rights, his discussion has been colored by the assumption that those rights had to be purchased. This Court has traditionally recognized the special need for certainty and predictability where land titles are concerned, and we are unwilling to upset settled expectations to accommodate some ill-defined power to construct public thoroughfares without compensation. The judgment of the Court of Appeals for the Tenth Circuit is accordingly

Reversed.

Mr. Justice White took no part in the consideration or decision of this case.

       Except as otherwise noted, this historical discussion draws on C. Ames, Pioneering the Union Pacific (1969); R. Athearn, Union Pacific Country (1971); R. Howard, The Great Iron Trail (1962); J. McMaster, A History of the People of the United States During Lincoln’s Administration (1927); 2 A. Nevins, Ordeal of the Union (1947); H. White, History of the Union Pacific Railway (1895).

       2 Nevins, supra n. 1, at 82.

       That exhortation came from some of the great visionaries of the 19th century. On the floor of the House, Thomas Hart Benton compared eastern Kansas to Egypt and extolled the wealth that would be shared by a private railroad to California. Atheam, supra n. 1, at 22-23. Senator William H. Seward of New York, a man not known for his timidity, proclaimed “that a railroad is necessary, and ought to be built; and I think it has been scientifically demonstrated . . . that not only one such road is feasible, but that at least three, four, or five routes offer the necessary facilities for the security of this great object.” Cong. Globe, 35th Cong., 1st Sess., 1584 (1858). In his book An Overland Journey, Horace Greeley was equally enthusiastic. He went so far as to calculate the economic feasibility of the proposed railroad line by estimating potential revenue, based on the value of current shipments of gold from California, passenger fares that could be obtained, and the cost to the Government of transporting and maintaining an army in the West and providing mail services. H. Greeley, An Overland Journey 310-316 (C. Duncan ed. 1964).
      But despite his enthusiasm Greeley appreciated that the effort was beyond private capital alone. “The amount is too vast; the enterprise too formidable; the returns too remote and uncertain.” “[W]hat assurance could an association of private citizens have that, having devoted their means and energies to the construction of such a road, it would not be rivaled and destroyed by a similar work on some other route?” Id., at 324.

       2 J. Story, Commentaries on the Constitution 166-172 (5th ed. 1891). See Cong. Globe, 35th Cong., 2d Sess., 579-585 (1859) (Sen. Andrew Johnson).

       2 J. Richardson, A Compilation of the Messages and Papers of the Presidents 1789-1897, pp. 483-493 (1896).

       Act of July 1, 1862, 12 Stat. 489.

       Government grants to aid the development of transportation facilities gained momentum during the administration of John Quincy Adams, who did not share Madison’s and Monroe’s reservations about the constitutionality of the Government’s involvement in such activities. Checkerboard land grants achieved currency during the canal era. Apparently the first such grant was to aid construction of the Wabash and Erie Canal in Indiana. See P. Gates, History of Public Land Law Development 341-356 (1968).

       Act of Sept. 20, 1850, 9 Stat. 466. This was not, however, the first time land grants were used to subsidize a railroad. In 1833, Congress permitted a grant that had been intended for canal construction to be used instead for the building of a railroad. Gates, supra n. 7, at 357.

       Asa Whitney’s original proposal had contemplated an eastern terminus on the south shore of Lake Michigan, and a western terminus in northern California or Oregon. Senator Gwin of California, a Southern sympathizer, urged a route running from Memphis through Ft. Smith and Albuquerque to Los Angeles. Thomas Hart Benton of Missouri, eschewing both the extreme northern and extreme southern routes, advocated “a great central national highway” — beginning in St. Louis. 2 Nevins, supra n. 1, at 82-83.

       E. Corle, The Gila 232 (1951).

       See generally M. Hall, Sibley’s New Mexico Campaign (1960); W. Whitford, The Colorado Volunteers in the Civil War (1971). The Confederate forces in New Mexico have since been lauded for their courage, if not for their optimism. One Southern commander is reported to have responded to a Union demand for surrender: “We will fight first and surrender afterwards!” G. Harris, A Tale of Men Who Knew Not Pear 18 (1935).

       The choice of the 100th meridian as the eastern end of the rail line was not without significance. The 100th meridian has been traditionally thought of as the parallel west of which it was impossible to raise most crops without irrigation. Omaha, for example, 300 miles to the east, receives an average of 25 inches of rainfall per year, while Sidney, Neb., west of the meridian and near the Wyoming line, receives an average of only 16 inches of rainfall each year. Thus, in a sense the 100th meridian represented, not only to travelers but also to potential settlers, the eastern boundary of the amorphous “Great American Desert.”
      "In general, historians have been content to postulate that American institutions, orientations, and habits of thought which developed east of the 100th meridian maintained their form and retained their content after reaching the West, whereas in fact a good many important ones did not. In the second place, historians have generally been ignorant of or incurious about natural conditions that determine life in the West, differentiate it from other sections, and have given it different orientations.” Introduction of Bernard DeVoto to W. Stegner, Beyond the Hundredth Meridian xviii-xix (1954).

       Construction would not have begun then without the Crédit Mobilier, a limited-liability company that was essentially owned by the promoters and investors of the Union Pacific. One of these investors, Oakes Ames, a wealthy New England shovel maker, was a substantial investor in Crédit Mobilier and also a Member of Congress. Crédit Mobilier contracted with the Union Pacific to build portions of the road, and by 1866 several individuals were large investors in both corporations. Allegations of improper use of funds and bribery of Members of the House of Representatives led to the appointment of a special congressional investigatory committee that during 1872 and 1873 looked into the affairs of Crédit Mobilier. These investigations revealed improprieties on the-part of more than one Member of Congress, and the committee recommended that Ames be expelled from Congress. The investigation also touched on the career of a future President. See M. Leech & H. Brown, The Garfield Orbit (1978).
      In 1872 the House of Representatives enacted a resolution condemning the policy of granting subsidies of public lands to railroads. Cong. Globe, 42d Cong., 2d Sess., 1585 (1872); see Great Northern R. Co. v. United States, 315 U. S. 262, 273-274 (1942). Of course, the reaction of the public or of Congress a decade after the enactment of the Union Pacific Act to the conduct of those associated with the Union Pacific cannot influence our interpretation of that Act today.

       See generally 3 R. Powell, Real Property ¶410 (1978). For a recent discussion and application of the “easement by necessity” doctrine, see Hollywyle Assn., Inc. v. Hollister, 164 Conn. 389, 324 A. 2d 247 (1973).

       It is very unlikely that Congress in 1862 contemplated this type of intrusion, and it could not reasonably be maintained that failure to provide access to the public at large would render the Seminoe Reservoir land useless. Yet these are precisely the considerations that define the scope of easements by necessity. As one commentator relied on by the Government notes:
      “As the name implies, these easements are the product of situations where the usefulness of land is at stake. The scope of the resultant easement embodies the best judgment of the court as to what is reasonably essential to the land’s use. . . . Changes in the dominant parcel’s use exert some, but not a great influence, in determining the scope of such easements.” 3 Powell, supra n. 14, ¶ 416, pp. 34-203 to 34-204 (footnotes omitted). See, e. g., Higbee Fishing Club v. Atlantic City Electric Co., 78 N. J. Eq. 434, 79 A. 326 (1911) (footpath, not roadway, proper scope of easement where use of dominant estate as clubhouse could not have been contemplated by parties to original grant).

       Wyo. Stat. §§ 24-9-101 to 2^9-104 (1977); see Snell v. Ruppert, 541 P. 2d 1042, 1046 (Wyo. 1975) (statute “offers complete relief to the shut-in landowner and covers the whole subject matter”; “[i]f a statute covers a whole subject matter, the abrogation of the common law on the same subject will necessarily be implied”). See also, e. g., Quinn v. Holly, 244 Miss. 808, 146 So. 2d 357 (1962). In light of the history of public land grants related in Part I of this opinion, it is not surprising that “private” eminent domain statutes like that of Wyoming are most prevalent in the Western United States.

        E. g., State v. Black Bros., 116 Tex. 615, 629-630, 297 S. W. 213, 218-219 (1927); see Pearne v. Coal Creek Min. & Mfg. Co., 90 Tenn. 619, 627-628, 18 S. W. 402, 404 (1891).

       The intimations that can be found in the Congressional Globe are that there was no commonly understood reservation by the Government of the right to enter upon granted lands and construct a public road. Representative Cradlebaugh of Nevada offered an amendment to what became the Union Pacific Act of 1862 that would have reserved the right to the public to enter granted land and prospect for valuable minerals upon the payment of adequate compensation to the owner. The proposed amendment was defeated. The only Representative other than Cradle-baugh who spoke to it, Representative Sargent of California, stated:
      “The amendment of the gentleman proposes to allow the public to enter upon the lands of any man, whether they be mineral lands or not, and prospect for gold and silver, and as compensation proposes some loose method of payment for the injuries inflicted. Now, sir, it may turn out that the man who thus commits the injuries may be utterly insolvent, not able to pay a dollar, and how is the owner of the property to be compensated for tearing down his dwellings, rooting up his orchards, and destroying his crops?” Cong. Globe, 37th Cong., 2d Sess., 1910 (1862).
      In debates on an earlier Pacific Railroad bill it was explicitly suggested that there be "a reservation in every grant of land that [the Goverinment] shall have a right to go through it, and take it at proper prices to be paid hereafter.” The author of this proposal, Senator Simmons of Rhode Island, lamented the lack of such a reservation in the bill under consideration. Cong. Globe, 35th Cong., 2d Sess., 579 (1859). Apparently the intended purpose of this proposed reservation was to permit railroads to obtain rights-of-way through granted property at the Government’s behest. Senator Simmons’ comments are somewhat confused, but they certainly do not evince any prevailing assumption that the Government implicitly reserved a right-of-way through granted lands.

       M. Clawson & B. Held, The Federal Lands 57-58, 8L-85 (1957).

       H. R. Rep. No. 1326, 48th Cong., 1st Sess. (1884). For example, in a letter to the House of Representatives the Secretary related two instances in Colorado where cattle companies fenced in more than one million acres each. Congressional concern was heightened by the fact that these and other cattle corporations were foreign owned. Id., at 2.

       23 Stat. 321, as amended, 43 U. S. C. § 1061 et seq.

       There were exceptions, one of which, Buford v. Houtz, 133 U. S. 320 (1890), reached this Court. See n. 24, infra.

       This expectation was fostered by the general land-grant scheme. Each block in the checkerboard was a square mile — 640 acres. The public lots were open to homesteading, with 160 acres the maximum allowable claim under the Homestead Act. Act of May 20, 1862, 12 Stat. 392. The Union Pacific was required by the 1862 Act to sell or otherwise dispose of the land granted to it within three years after completion of the entire road, with lands not so disposed of within that period subject to homesteading and pre-emption. Thus, in 1862, the process of subdivision was perceived, to a great degree, as inevitable.
      During the 1850 debates concerning the Illinois Central Railroad, Senator Cass of Michigan outlined the dynamics that were presumed to underlie the system of checkerboard grants: “In all the new portions of the United States this Government owns a large proportion of the property. They sell it. They’ offer it for sale. It is surveyed, thrown into market, and emigration is invited. Tract after tract is sold, roads are made, villages and towns are built up, and all the improvements that can be of value to a country go on and increase the value of the lands Cong. Globe, 31st Cong., 1st Sess., 846 (1850).

       This distinguishes the instant case from Buford v. Houtz, supra. The appellants there were a group of cattle ranchers seeking, inter alia, an injunction against sheep -ranchers who moved their herds across odd-numbere'd lots held by the appellants in order to graze their sheep on even-numbered public lots. This Court denied the requested relief because it was contrary to a century-old grazing custom. The Court also was influenced by the sheep ranchers’ lack of any alternative.
      “Upon the whole, wé see no equity in the relief sought by the appellants in this case, which undertakes to deprive the defendants of this recognized right to permit their cattle to run at large over the lands of the United States and feed upon the grasses found in them, while, under pretence of owning a small proportion of the land which is the subject of controversy, they themselves obtain the monopoly of this valuable privilege.” 133 U. S., at 332.
      ’Here neither custom nor necessity supports the Government.

       In 1887 the Secretary of the Interior recommended that Congress enact legislation providing for a public road around each section of public land to provide access to the various public lots in the checkerboard scheme. The Secretary also recommended that to the extent building these roads required the taking of property that had passed to private individuals, “the bill should provide for necessary compensation.” 1 Report of the Secretary of the Interior for Fiscal Year Ending June 30, 1887, p. 15 (1887); see also 1 Report of the Secretary of the Interior for Fiscal Year Ending June 30, 1888, p. xvii (1888).

       See, e. g., Louisiana v. Garfield, 211 U. S. 70, 76 (1908); Iron Silver Mining Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 207-208 (1886); Doolittle’s Lessee v. Bryan, 14 How. 563, 567 (1853).