Apart from the legal effect of that judg ment as res judicata, it is thus quite apparent that Smith thereby was visited with notice of the claim of the railroad company.

[269]on the public lands, with a view to pre- | a tenant of other parties, and that he was
emption, do not confer a vested right in the ousted therefrom by a final judgment in an
land so occupied; that the power of Congress action of ejectment at the suit of the railroad
over the public lands, as conferred by the company on January 31, 1878.
Constitution, can only be restrained by the
courts in cases where the land has ceased to
be government property by reason of a right
vested in some person or corporation, that
such a vested right, under the pre-emption
laws, is only obtained when the purchase
money has been paid, and the receipt of the
proper land officer given to the purchaser.
Frisbie v. Whitney, 9 Wall. 187 [19: 668];
The Yosemite Valley Case, 15 Wall. 77 [21:
82];Buxton v. Traver, 130 U. S. 232 [32:
920]; Nor.hern Pac. R. R. Co. v. Colburn,
164 U. S. 383 [41:479].

If, then, one seeking to appropriate to himself a portion of the public lands cannot, no matter how long his occupation or how large his improvements, maintain a right of possession against the United States or their grantees, unless he has, by entry and payment of purchase money, created in himself a vested right, is one who claims under a town-site grant in any better position?

No cases are cited to that effect; nor does there seem to be any reason, in the nature of things, why rights created under a townsite settlement should be carried back, by operation of law, so as to defeat the title of a party who had, under color of right, taken possession and made valuable improvements before the entry under the town-site act.

It is one of the findings of fact that, in the year 1872, the Lake Superior & Puget Sound Land Company occupied a tract of land, including within its boundaries the land in dispute, but it is also found tnat no plat thereof was filed in the register's office until February 9, 1874, a year after the railroad company had gone into possession and constructed its road, and that the patent was not granted to the mayor in behalf of the city of Bismarck till July 21, 1879. It is also one of the findings that the corporate authorities did not convey these lots to Patrick R. Smith till after the grant of the patent.

The record contains no copy of the deed to Smith, nor statement of any consideration paid by him, nor of the date when, if ever, he went into actual possession.

But suppose it be conceded, for the sake of the argument, that the Lake Superior & Puget Sound Land Company made the first entry, and that the city of Bismarck and Smith as its grantee could avail themselves of such entry, still the proof is that the railroad company completed its road over the land before the town site was patented, and before Smith obtained his conveyance. To acquire the benefit tendered by the act of 1864 nothing more was necessary than for the road to be constructed. The railroad company by accepting the offer of the gov ernment obtained a grant of the right of way, which was at least perfectly good as against the government. And be it further conceded, but not decided, that the railroad company when it changed its route, after the filing of its map of definite location, lost its priority of right under the grant of the act of 1864 as against subsequent grantees of the United States who obtained title before the actual construction of the railroad, and that the railroad company could only legally proceed under the exercise of its right of eminent domain, it still remains, as we think,[271] under the facts of this case, that Smith could not maintain his present action seeking to oust the company from possession of its right of way and railroad constructed thereon.

There is abundant authority for the proposition that, while no man can be deprived of his property, even in the exercise of the right of eminent domain, unless he is compensated therefor, yet that the property holder, if cognizant of the facts may, by permitting a railroad company, without objection, to take possession of land, construct its track, and operate its road, preclude himself from a remedy by an action of ejectment. His remedy must be sought either in a suit in equity, or in a proceeding under the statute, if one be provided, regulating the appropriating of

Such were the facts in the case of McAulay v. Western Vermont R. R. Company, 33 Vt. 311 [78 Am. Dec. 627], and where Chief Justice Redfield delivered the opinion of the court, a portion of which we quote:

[270] *In such a state of facts will the law over-private property for railroad purposes.
turn the title of the railroad company by
imputing to Smith the antecedent possession
of the Lake Superior & Puget Sound Land
Company? Whatever may be his rights to
the land outside of that in possession of the
railroad company, must it not be inferred
that he bought subject to the public high-
way? It is found that in the month of June,
1873, the railroad had been constructed
across this tract, and has since remained
and been operated upon it; and it is hard to
imagine what notice more distinct and act-
ual could be given than that afforded by the
operation of a railroad. Moreover, this rec-
ord discloses that Smith on or about Novem-
ber 1, 1876 (more than three years after the
completion of the railroad), went into posses-
sion of a portion of the land in dispute as
171 U. S. U. S., Book 43.


"It being admitted, as it seems to be, that the plaintiff had full knowledge of the proceedings of the company to construct and locate their road upon his land, before and during all the time of the construction, and that he did not interfere in any way to prevent the occupation of the land for the purposes of the road otherwise than by forbidding the hands working on the road until his damages were paid, and that only on one occasion, it becomes an important inquiry whether he can maintain ejectment for the land by reason of the nonpayment of his damages.



. . It is undoubtedly true that, ac- of the citizen, to wit, to make compensation or ording to our general railroad statutes and give security for it. For this injury the the special charters in this state, the pay-citizen is entitled to redress. But his redress ment or deposit of the amount of the land cannot extend beyond his injury. It cannot damages assessed or agreed is a condition extend to taking the personal chattels of the precedent to the vesting of the title, or of any railroad company. They are not his and canright in the company to construct their road, not increase his remedy. The injury was and that if they proceed in such construction to what the landholder had himself, not to without this, they are trespassers. And what he had not. Then why should the mathis has been repeatedly so held by this terials laid down for the benefit of the public court. be treated as dedicated to him? In the case of a common trespasser the owner of the land may take and keep his structures, nolens volens, but it is not so in this case; for though the original entry was a trespass it is well settled that the company can proceed, in due course of law, to appropriate the land, and consequently to reclaim and avail itself of the structures laid thereon."

"This may have led to the misapprehension in the present case, but it certainly is a very [272]serious misapprehension. In these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infor that the party intends to waive his claim for present payment, will conclude the right to assert the claim in any such form as to stop the company in the progress of their In Provolt v. Chicago, R. I. & Pac. R. R. works, and especially to stop the running Co. 57 Mo. 256, it was held that the conduct of the road after it has been put of a landholder in standing by while a railin operation, whereby the public acquire road company constructed its road, precluded an important interest in its continuance.him from recovering physical possession of the The party does not, of course, lose land covered thereby. Judge Wagner, after his claim or the right to enforce it in all quoting with approval the language of Chief proper modes. He may possibly have some Justice Redfield in McAulay v. Western Verrights analogous to the vendor's lien in mont Railway Co., hereinbefore cited, said: England, and here till the legislature cut it "The plaintiff did not attempt to obstruct off. But it is certain, according to the Eng- or in any wise impede the progress of the lish decisions, that he cannot stop the work, work. The plain inference was that he and especially the trains upon the road, if waived his right for prepayment of his damhe has in any sense, for the shortest period, ages and only intended to follow his clearly given to the company, either by his remedy on his judgment. His conduct express consent, or by his silence, to under- surely led the company to believe such stand that he did not intend to object to their was his and induced them proceeding with their construction and opera- to pursue tion. If there was, then, a waiver in fact, either express or implied, by acquiescence in the proceedings of the company to the extent of not insisting upon payment as a condition precedent, but consenting to let the damages be and remain a mere debt, with or without a lien upon the roadbed, as the law may turn out to be, then it is impossible to regard the defendants in any sense in the light of trespassers or liable in ejectment."

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Justice v. Nesquehoning Valley R. R. Co. 87 Pa. 28, was a case where a railroad company was a trespasser, and its entry upon land not in conformity with law, and it was held that these irregular proceedings did not operate as a dedication to the landowners of the property of the company, placed upon the land, so as to entitle said landowners to include said property in an assessment of damages under the railroad law, and recover their value as an accession to the value of the land taken by the company. In delivering the opinion of the supreme court, Chief Justice Agnew said:

"This is not the case of a mere trespass by one having no authority to enter, but of one representing the state herself, clothed with the power of eminent domain, having a right to enter, and to place these materials on the [273] and taken for a public *use-materials essential to the very purpose which the state has declared in the grant of the charter. It is true the entry was a trespass, by reason of the omission to do an act required for the security


a course and expend large sums of money which, otherwise, they would not have done. If plaintiff intended to rely on his rights and make present payment a condition precedent he should have objected and forbidden the company to interfere or to do any work on his land till the question of damage was settled. But this he did not do. He acquiesced in the proceedings of the company to the extent of not insisting upon the prepayment as a condition* precedent; and af-[274] ter having done so, we do not think that he can maintain ejectment.

"If from negotiation in regard to the price of the land, or for any other reason, there is just ground of inference that the works have been constructed with the express or implied assent of the landowner, it would seem wholly at variance with the expectations of the parties and the reason of the case, that the landowner should retain the right to enter upon the land, or to maintain ejectment. There are other effective and sufficient remedies. A court of equity would unquestionably interfere, if necessary, and place the road in the hands of a receiver until the damages were paid from the earnings. 2 Redf. Am. Railw. Cas. 2d ed. 353. But the only question we are called upon to decide is whether under the facts and circumstances of this case eject ment will lie, and we think it will not."

A similar question was decided in the case of the Omaha and Northern Nebraska R. W. Co. v. Redick, 16 Neb. 313. This was an action of ejectment for the possession of a 40

within the city limits, then this grant shall a view to maintaining and operating the said cease and terminate and be without force or road in connection with and as a part of its effect from the date of such abandonment; through line to and from its terminus in New and upon the further condition that the said Orleans, designated in section of ordinance company, at the time of laying their track | No. 6695, administration series, passed on the upon Thalia street, shall pave said street from ninth day of November, 1880; such line to Pilie street to Rampart street, including all cross the Mississippi river from a poin: at or intersections of said Thalia street, with blocks near Westwego to a point on the east bank of the best hard Boston granite, oblong in of the river in front of the Upper City Park, shape, not less than eleven inches and not late Foucher property; thence to extend by more than fourteen inches in width, and not the best and most practicable route to the[321] less than sixteen inches nor more than twenty-designated terminus, between the new canal, four inches in length, and from nine to ten Claiborne canal and Carrollton avenue: inches in thickness; they shall be well quar- "Now, therefore, for the purpose of securing ried, having parallel sides and ends, and the to the city of New Orleans the advantages. upper side free from lumps. The blocks ad- that will result from locating and permajoining the gutterstones shall be cut at an an-nently maintaining the terminus of the New gle of forty-five degrees with the sides, so as Orleans Pacific Railway within the limits of to be laid diagonally, and said pavement shall the city of New Orleans, as herinabove extend from curb to curb; and the said com- recited; pany shall at the time of laying their track pave with round or cobblestone pavement, laying with gutterstones the gutters of said street, from the end of the block paving at Rampart street to Claiborne street, with the privilege of using for the pavement the cobblestones removed from that part of the street to be paved with square block-the rails to be laid in the pavement so that the top of the [320]rails shall be flush with the surface *of the pavement; and upon the further condition that said railway company shall at all times keep said pavement from curb to curb in repair; and the further condition that all construction work within the city limits shall be executed under the direction and supervision of the city surveyor and completed to the satisfaction of the administrator of improvements and the administrator of commerce; and it is further made a condition of this grant that said railway company shall complete its road from the crossing of the Mississippi river, at or near Baton Rouge, to the terminus in this city, within two years from the promulgation of this ordinance.

"Sec. 1. Be it ordained by the council of the city of New Orleans, That the New Orleans Pacific Railway Company, or its assigns, be, and are hereby, authorized and empowered to locate and maintain a railroad with all necessary tracks, switches, turnouts, sidings, and structures of every kind convenient, useful, and appurtenant to said railroad, from such point on the river front as its crossings from Westwego shall be located at in the vicinity of the Upper City Park, along the western border of the said city park, and from thence by the best anu most practicable route to its designated terminus east of Carrollton avenue.

"Sec. 2. Be it further ordained, etc., That the city of New Orleans agrees to lease unto the New Orleans Pacific Railway Company, its successors and assigns, for the period of ninety-nine years, and at the price of five hundred dollars per annum, payable annually in advance, all that strip or parcel of ground on the river front of said Upper City Park, south of Tchoupitoulas street, or south of an extension of Tchoupitoulas street, in a west"Sec. 3. Be it further ordained, That upon wardly direction, and between a prolongathe failure of said company to comply within tion of the east and west boundary lines of three days with any notice of the department said park to the river, with all the batture of improvements to repair any portion of the formed thereon, or which may form during street or streets through which said company the term of said lease, with the right to esshall lay its tracks, they shall be fined tablish and maintain upon said grounds such twenty-five dollars for each and every day ferry facilities, wharves, piers, warehouses, they fail to comply with said notice; said fine yards, tracks, depots, stations, sheds, elevato be recoverable before any court of compe-tors, and other structures as shall be necestent jurisdiction."

In 1881 the New Orleans Pacific Railway Company purchased a railroad already constructed by the New Orleans, Mobile & Texas Railroad Company on the west bank of the Mississippi river, extending from Bayou Goula, a point near Baton Rouge on the west bank, to Westwego, also on the west bank, and just opposite New Orleans. Subsequently on March 29, 1881, the city council passed an ordinance, No. 6938, as follows:

sary and convenient for the transfer of cars,
engines, passengers, and freight, and in the
transaction of its business. No vessel shall
occupy or lie at such wharves without the
consent of said company, its successors or as-
signs, and all vessels lying at or using said
wharves with such consent shall be exempt
from the payment of levee or wharf dues to
the city of New Orleans; the proceeds of such
lease shall be applied by the city to the im-[322)
provement of said park.

"Whereas the New Orleans Pacific Railway "Sec. 3. Be it further ordained, etc., That
Company has purchased the road heretofore the said New Orleans Pacific Railway Com-
constructed under the charter of the New Or-pany, its successors and assigns, shall have
leans, Mobile, & Texas Railroad Company, on the right to extend its tracks from the said
the west bank of the Mississippi River, be- ground so leased between the Upper City Park
tween Bayou Goula and Westwego, and with and the river front, easterly along saiu river

front to connect with the Belt road at Louisiana avenue, and to connect at Jackson street with tracks heretofore authorized to be constructed between Jackson and Julia streets "Sec. 6. Be it further ordained, etc., That by section 3 of ordinance 6695, administra- the right of way, franchises, and privileges tion series, adopted November 9, 1880, and by herein and heretofore granted to the New ordinance No. 6732, same series, adopted De- Orleans Pacific Railway Company are and cember 3, 1880, provided that between Louis- were granted on condition and in consideraiana avenue and Jackson street the trains of tion that the said grantee shall permanently said company shall be run only between sun-establish its terminus within the city limits, set and sunrise on said track, except in case and shall maintain said terminus during the of emergency and necessity beyond the rea-existence of the charter of said company, for sonable control of the company. which period the said franchises, rights of

contract of lease for the purpose of carrying out the provisions of the second section of this ordinance.



maintain thercon at its

Own expense

"Sec. 4. Be it further ordained, etc., That way, grants, and privileges shall last and the said New Orleans Pacific Railway Com-continue; and should the said railway company, its successors and assigns, shall have pany at any time hereafter remove its termithe right, and the same is hereby conferred nus from within the city limits, then this for the term of its charter and from and after grant shall cease and terminate and be withthe expiration of the existing lease of the city out force and effect from the date of such wharves, to inclose and occupy for its pur- removal; and the further condition that the poses and uses, that portion of the levee bat-construction work within the city limits ture, and wharf in the city of New Orleans in shall be executed under the direction and front of the riparian property acquired or supervision of the city surveyor, and comacquired between Thalia and pleted to the satisfaction of the administraTerpsichore streets, and to erect and tor of public improvements and the administrator of commerce; and the further consuch ferry facilities, wharves, piers, ware-dition *that said railway company shall con-324 houses, elevators, yards, tracks, depots, struct or control a line of road, ready for stations, sheds and other structures as shall public use, from a crossing of the Mississippi be necessary and convenient for the transfer river to its designated terminus in this city, of cars, engines, passengers, and freight, and within two years from the promulgation of in the transaction of its business. No vessel this ordinance." The New Orleans Pacific Railway Comshall occupy or lie at such wharves without the consent of said company or its successors pany, on June 20, 1881, entered into a writor assigns, or discharge or receive cargo there-ten agreement with the Texas & Pacific Railat, and all vessels lying at or using said way Company, a corporation organized under wharves by such consent and on the business the laws of the United States, by the terms of the company shall be exempt from the whereof the New Orleans Pacific Railway payment of levee or wharf dues to the city of Company consolidated itself with the Texas New Orleans. & Pacific Railway Company on the terms and conditions specified in the agreement, "by granting, bargaining, selling," etc., "unto the Texas & Pacific Railway Company all the franchises, corporate rights, or privileges of the New Orleans Pacific Railway Company, together with its track, roadbed, buildings, rolling stock, engineer's tools, bonds, stocks, grants, privileges, property (real and personal), and every right, title, and interest in and to any franchises or property, real or personal, and all rights of every name and kind in which the New Orleans Pacific Railway Company had any right, privilege, or interest, situated and being in the state of Louisiana or in the state of Texas, or elsewhere, it being declared by the agreement that the object of the agreement was to so merge the rights, powers, and privileges of the New Orleans Pacific Railway Company into the Texas & Pacific Railway Company under its own chartered name and organizathat the Texas & Pacific Railway Company tion should, without impairing any existing right, exercise in addition thereto, all the powers, rights, privileges, and franchises and own and control all the properties that the New Orleans Pacific Railway Company then exercised and owned, or by its charter and by-laws it had the right to exercise, own or control."

"Said wharves and other structures shall be lighted and policed by said company at

its own expense.

"Any vessel lying at these wharves with [323]the consent of the company, *but not on its business, or not for the purpose of discharging or receiving freight or passengers to or from said company as a carrier, shall be liable to the city for usual wharf or levee dues.

"Any vessel using said wharf to receive any freight not coming to or going from said company as a carrier shall pay usual wharf age dues to the city.

"In consideration of the permission herein given the company will build three hundred feet of new wharf at such point between Terpsichore and Jackson streets, for the city, as the administration of commerce may indi cate, and will pave Pilie street between Thalia and Terpsichore streets, and Terpsichore street between Pilie and Front with square blocks of granite or with blocks of compressed asphalt, and keep the same in good order. "The rights conferred by this section shall not be held to interfere with the rights of the city to police any part of the river front.

"Sec. 5. Be it further ordained, etc., That the mayor be, and he is hereby, authorized and directed to enter into a proper notarial

Thereafter, on July 11, 1882, the city coun- | 1883, the company demanded from the city cil adopted ordinance No. 7946, as follows: surveyor lines and levels for a track on the "An Ordinance Supplementary to Ordinances river front from Louisiana avenue to Jack6695, 6732 and 6938, Administration Series, son street, and the city surveyor not furGranting certain Rights to the New Or-nishing them, instituted suit June 11, 1883, leans Pacific Railway Company and its As- in the civil district court for the parish of signs, and Providing for the Selection of a Orleans, where the same is still pending, to Site for the Claiborne Market. compel the city surveyor by writ of manda[325] *Whereas by section 2 of ordinance 6695, mus to furnish such lines and levels. The administration series, a right was given to company also paid $1,000 rent for the two the New Orleans Pacific Railway Company, years ending March 8, 1882 and 1883, under or its assigns, to locate, construct, and main- an alleged lease of the batture in front of the tain an extension of its railroad through upper city park and made a tender of $500 Claiborne street, with a right to construct for rent under said alleged lease for the year a passenger depot on the neutral ground of ending March, 1984, and acquired by private Claiborne street, at or near the intersection ownership four squares of ground adjoining of Claiborne street with Canal street, with a the upper city park, two squares fronting the proviso that should it become necessary for river and two in the rear thereof. the building of the depot or laying tracks to remove the Claiborne market, then the New Orleans Pacific Railway Company, or its assigns, should rebuild the same at their own expense on such lots as the city shall designate; and

The record showed that the railroad company did not establish its terminus in the rear of the city of New Orleans at the place designated by ordinance 6695 of November 9, 1880, and referred to in ordinance 6732 of December 3, 1880; that the company did not "Whereas, by ordinances Nos. 6732 and as stated or required in ordinance 6938 of 6938, administration series, certain rights March 29, 1881, make its terminus on the have also been granted to said company and west bank of the Mississippi river at Westits assigns with reference to the said Clai-wego, and there erect it wharves, inclines, borne street and to Thalia street, and the company has built its road from Baton Rouge to New Orleans, crossing Thalia street, and established its terminus in the city limits at Thalia street and the levee, and is preparing also to cross from Westwego to the City Park, and thence to Claiborne street; now, therefore,

and structures, necessary for the purpose of crossing the river at that point so as to reach the east bank on the batfure in front of the City Park; and that the company did not build its road from the batture along the edge of the park through the designated streets to the point in the rear of the city where the proposed terminus was to be lo"Sec. 1. Be it ordained by the council of cated under and in accordance with the prothe city of New Orleans, that the administra- visions of the city ordinances, which have altor of improvements, the administrator of ready been stated. And the record also discommerce, and the administrator of water-closed that instead of making Westwego its works and public buildings, be, and they are hereby, authorized and directed, within sixty days from the passage of this ordinance, to select such lots as may be needful and proper for a new site for said market; and when such selection shall have been made they shall deposit a proces verbal thereof in the office of the administrator of waterworks and public buildings.

terininus on the west bank of the river, the[327] railroad was prolonged nine miles further down the bank of the river to a point designated as Gouldsboro; and this latter point being approximately opposite the foot of Thalia street on the east bank of the river, wharves and inclines were constructed at Gouldsboro, whence the traffic of the road was carried across the river to the foot of "Sec. 2. Be it further ordained, That when-Thalia street in the city of New Orleans, ever said company or its assigns shall find it where depots and structures have been esnecessary to remove said building it shall be tablished by the company. rebuilt on said lots so selected and as prescribed in said original ordinance.

"Sec. 3. Be it further ordained, That in crossing the new canal under its charter, and according to the said ordinances, the said railway company, or its assigns, shall do so by means of a proper drawbridge." [328] The company also sent its officers with certain city officers in the summer of 1882 to inspect lots thought suitable at that time for the Claiborne market, when the removal of the market might be decided upon; and stated by its officers that the lots would be purchased, the market taken down and another market put up, but that if this was not satisfactory to the city, the city should remain silent for a while, because if it were known the railroad wanted the lots, too much would be asked for them. In the summer of

On the 15th of April, 1884, the city council adopted an ordinance, No 685, council series, as follows:

"An Ordinance Repealing certain Sections of the Ordinance No. 6938, A. S., Granting Privileges to the New Orleans Pacific Railway Company.

"Be it ordained, That § two (2) of the ordinance No. 6938, A. S., passed March 1881, granting to the New Orleans Pacific Railway Company a lease of the Upper City Park batture property, be, and the same i3, hereby repealed and revoked."

June 16, 1886, the city council adopted an ordinance, No. 1828, council series, as follows: "An ordinance repealing certain rights granted to the New Orleans Pacific Railway Company under ordinanc~ 6695, A. S., adoptled November 9, 1880; No 6732, A. S., adopted

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