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except the rear twenty-five feet thereof, has ever been occupied for railroad purposes.

"The eighty (80) acre tract, on which these lots were situated, was selected as the location of a portion of this town site, and sur- "In the year 1877 the defendant commenced veyed prior to June 20, 1872. In the year an action in the district court of Burleigh 1872 the attorney of the Lake Superior & county, territory of Dakota (now the state of Puget Sound Land Company-the company North Dakota), in which county the premthat first made this selection-commenced ises next hereinafter described were and are and thereafter continued to sell lots upon this situated, against certain parties, including the town site according to a plat thereof, which plaintiff herein, to recover the possession of was then made, and subsequently, on Febru- part of the premises here in question, which ary 9, 1874, recorded in the office of the portion is particularly described as follows: register of deeds of the county in which the Commencing at the southeast corner of Main[265] land was situated. By the first of January, and Third streets in the city of Bismarck, the 1873, thirty buildings had been erected on the same being the northwest corner of block town site, and from that time until the eight (8), running thence east along the patent was issued the population of the city south line of said Main street, a distance of and the improvements in it continued to in- fifty (50) feet; thence south, parallel with crease. It was upon the town site thus the east line of said Third street, a distance selected and the plat thus made, which of seventy-five (75) feet to said east line of was afterwards adopte! as the plat and site said Main street, a distance of fifty (50) feet, of the city of Bismarck, that the patent to Mc- to said Third street; thence north, along said Lean was based, and this patent contained no east line of said Third treet, a distance of reservation of any right of way to the North- seventy-five (75) feet to the place of beginern Pacific Railroad Company. ning. Anu such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the parties and subject-matter of said action) that the defendant in the action herein (the plaintiff in the action last above referred to) duly recovered in said action a judgment against the defendants in that action including the plaintiff in this action, for the possession of the premises last above described and for nominal damages for the withholding thereof.

"The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof filed in the General Land Office in March, 1873.

"On February 21, 1872 the Northern Pacific [264]Railroad Company filed in the Department of the Interior the map of its general route east of the Missouri river. This route passed about three quarters of a mile south of this eighty-acre tract. On May 26, 1873, it filed with the Secretary of the Interior, in the office of the Commissioner of the General Land Office, and he accepted, its map fixing the definite location of its line. The Interior Department thereupon designated such line upon its record maps for its use, and copies of such record maps were forwarded to and remain on file in the office of the register and receiver of the land office at Bismarck, having jurisdiction of that part of the public domain embracing the premises in question. The line thus fixed passed about two miles south of this eighty-acre tract. During the year 1872 grading was done by the company on this line extending in a continuous line from its grading east of the township in which this tract was located to a point onequarter of a mile west of the west line of this eighty-acre tract extended south to its intersection with the grading. During the year 1872 there was a line staked out across this tract substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the year 1873 the railroad was constructed across this tract and has since remained and been operated upon it. The grading on its line of definite location two miles south was abandoned. The lots in question are within two hundred feet of the main track of this railroad as actually constructed and more than two miles from its line of definite location as shown on its map filed to definitely fix this line, and have been occupied by the defendant, through its tenants, during the period in question; but no part of the same,

"That the value of the use and occupation of the premises in question, for six years prior to December 28, 1891, the date of the commencement of the action, is the sum of twenty-six thousand dollars.

"From the foregoing facts I find, as conclusions of law, that the plaintin is entitled to the possession of the premises above described, and to recover from the defendant the sum of twenty-six thousand dollars with interest thereon from the 28th day of December, A. D. 1891, at the rate of seven per cent per annum, and his costs and disbursements."

Mr. C. W. Bunn for plaintiff in error on both arguments. Mr. C. W. Holcomb filed a supplemental brief for plaintiff in error by leave of the court.

Mr. Hiram F. Stevens for defendant in error on both arguments.

Mr. Justice Shiras delivered the opinion of the court:

By the second section of the act of July 2, 1864, creating the Northern Pacific Railroad Company, there was granted to that com-[266] pany, its successors and assigns, the right of way through the public lands to the extent of 200 feet in width on each side of said railroad where it may pass through the public domain.

During the year 1872 there was a line staked out across the tract, a portion of which is in dispute in this case, substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the latter year the rail

road was constructed across this tract, and has since remained and been operated upon it. The lots in question are within 200 feet of the main track of this railroad as actually constructed, and have been occupied by the defendant during the entire period since the construction of the road, excepting lots eleven and twelve, which during about three years were in the adverse possession of the firm of Browing & Wringrose and of Patrick R. Smith, the defendant in error, as the tenant of said firm.

In 1877 an action of ejectment, to recover possession of said lots eleven and twelve, was brought by the Northern Pacific Railroad Company, in the district court of the territory of Dakota against Browing & Wring rose and said Patrick R. Smith, which action resulted, on January 31, 1878, in a final judgment, still subsisting, against said Smith and the other defendants.

road Company a right of way through the public lands, to the extent of 200 feet in width on each side of said railroad; that, în pursuance of said grant, the railroad company had constructed its road in 1873, including in its right of way the land in dispute; that, on November 24, 1873, commissioners, appointed under the 4th section of said act, reported that they had examined the _Dakota division of said railroad (including that portion of the same which covered the land in controversy) and that they had found its construction and equipment throughout to be in accordance with the instructions furnished for their guidance by the Interior Department, and accordingly recommended the acceptance of the road by the government; that said report had been, on December 1, 1873, approved by the President; and that the company had maintained and operated said railroad since its said conOn the trial of the present action, which struction to the time of trial, undoubtedly was brought in the circuit court of the Unit-*there was thus disclosed a prima facie title[268] ed States for the district of North Dakota and right of possession of the disputed tract. in 1893, and which brought into question the To overthrow the railroad company's case title and possession of lots five, six, seven, the plaintiff depended on an alleged conveyeight, nine, and ten, as well as of lots eleven and twelve, the plaintiff, Patrick R. Smith, set up, as the basis of his title and right of possession, a deed of conveyance by the corporate authorities of the city of Bismarck of the said lots as part of a town-site plat patented to John A. McLean, as mayor of said city, on July 21, 1879. The record does not disclose a copy of such deed to Smith, nor its date. In his complaint Smith alleged that "on the fourteenth day of September, A. D. 1876, he became and ever since has been and still is duly seised in fee simple and entitled to the possession" of the property in 267]dispute. *In the findings it is stated that the city authorities conveyed these lots to Pat rick R. Smith, the plaintiff, subsequently to the granting of the patent to the mayor on July 21, 1879.

The defendant, the Northern Pacific Railroad Company, at the trial relied on its grant of right of way from the United States on June 2, 1864, on its possession of lots six, seven, eight, nine, and ten since the construction of the railroad in 1873, and of lots elever and twelve since their recovery under the action and judgment in 1878, and the company likewise put in evidence the record of said suit and recovery as constituting res judicata.

The learned judge of the circuit court, af ter stating the foregoing facts, and some others not necessary to be here mentioned, entered judgment that the plaintiff was en titled to recover the possession of all of said lots and the sum of $26,000, as the value of the use and occupation of the premises in question, for six years prior to December 28. 1891, the date of the commencement of the action; and that judgment was affirmed by the circuit court of appeals. 32 U. S. App.

573.

When it was made to appear that, by the 2d section of the act of June 2, 1864, there was granted to the Northern Pacific Rail

ance made to him after July 21, 1879, by the city authorities of the city of Bismarck, of the lots in dispute in this suit, and gave evidence that the 80-acre tract on which these lots were situated was selected as a portion of a town site and surveyed prior to June 20, 1872, by the Lake Superior & Puget Sound Land Company, and that said land company made and, on February 9, 1874, recorded, a plat thereof, and that said town site and plat was afterwards adopted as the town site of the city of Bismarck under the town site act of the United States (§ 2387, Rev. Stat.) and was patented as such town site to John A. McLean, mayor of said city, on July 21, 1879. The congressional township embrac ing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof was filed in the General Land Office in March, 1873.

It is evident that when in 1873 the Northern Pacific Railroad Company took possession of the land in dispute, as and for its right of way, and constructed its road over and upon the same, if the tract so taken was then part of the public lands, only the United States could complain of the act of the company in changing the location of its tracks from that previously selected. But, so far as this record discloses, the United States did not object to such change of location, but rather, by having, through the commissioners and the President, approved and accepted this part of the road when constructed, must be deemed to have acquiesced in the change of location as properly made.

It cer

But was the land in question part of the
public domain in the spring of 1873?
tainly was, unless the occupation, at that
time, of those who afterwards, in 1879, ob-
tained a patent for a tract of 80 acres, includ-
ing the land in question as part thereof, for
a town site, deprived it of that character.

It has frequently been decided by this
court that mere occupation and improvement

Apart from the legal effect of that judg ment as res judicata, it is thus quite appar ent 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]; Northern 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?

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

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 town-act of 1864 as against subsequent grantees of
site 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.

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 em-
inent 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 there-
on.

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, in-
cluding within its boundaries the land in dis-
pute, but it is also founà tnat no plat thereof
was filed in the register's office until Feb- There is abundant authority for the propo-
ruary 9, 1874, a year after the railroad com-sition that, while no man can be deprived of
pany had gone into possession and con-
structed 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.

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 "It being admitted, as it seems to be, that that he bought subject to the public high- the plaintiff had full knowledge of the proway? It is found that in the month of June, ceedings of the company to construct and lo1873, the railroad had been constructed cate their road upon his land, before and duracross this tract, and has since remained ing all the time of the construction, and that and been operated upon it; and it is hard to he did not interfere in any way to prevent imagine what notice more distinct and act- the occupation of the land for the purposes ual could be given than that afforded by the of the road otherwise than by forbidding the operation of a railroad. Moreover, this rec-hands working on the road until his damages ord discloses that Smith on or about November 1, 1876 (more than three years after the completion of the railroad), went into possession of a portion of the land in dispute as 171 U. S. U. S., Book 43.

11

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.

161

1

. . It is undoubtedly true that, ac- of the citizen, to wit, to make compensation or cording 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

"This may have led to the misapprehension a common trespasser the owner of the land in the present case, but it certainly is a very may take and keep his structures, nolens [272]serious misapprehension. In*these great pub-volens, but it is not so in this case; for though lic works the shortest period of clear acquies- the original entry was a trespass it is well setcence, so as fairly to lead the company to in- tled that the company can proceed, in due for that the party intends to waive his claim course of law, to appropriate the land, and for present payment, will conclude the right consequently to reclaim and avail itself of the to assert the claim in any such form as to structures laid thereon." 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 off.

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But it is certain, according to the English decisions, that he cannot stop the work, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given to the company, either by his express consent, or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. 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."

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

to

pursue

"The plaintiff did not attempt to obstruct or in any wise impede the progress of the work. The plain inference was that he waived his right for prepayment of his damages and only intended to follow his remedy on his judgment. His conduct surely led the company to believe such was his purpose and induced them 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 ejectment 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

"Now, therefore, for the purpose of securing to the city of New Orleans the advantages. that will result from locating and permanently maintaining the terminus of the New Orleans Pacific Railway within the limits of the city of New Orleans, as herinabove recited;

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 traek 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 quarried, having parallel sides and ends, and the upper side free from lumps. The blocks adjoining the gutterstones shall be cut at an angle of forty-five degrees with the sides, so as to be laid diagonally, and said pavement shall extend from curb to curb; and the said company 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 cobble-all stones 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 ex-avenue. ecuted under the direction and supervision of "Sec. 2. Be it further ordained, etc., That 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. 3. Be it further ordained, That upon the failure of said company to comply within three days with any notice of the department of improvements to repair any portion of the street or streets through which said company shall lay its tracks, they shall be fined twenty-five dollars for each and every day they fail to comply with said notice; said fine to be recoverable before any court of competent 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:

"Whereas the New Orleans Pacific Railway Company has purchased the road heretofore constructed under the charter of the New Orleans, Mobile, & Texas Railroad Company, on the west bank of the Mississippi River, between Bayou Goula and Westwego, and with

"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 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 and most practicable route to its designated terminus east of Carrollton

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-
wardly direction, and between a prolonga.
tion of the east and west boundary lines of
said park to the river, with all the batture
formed thereon, or which may form during
the term of said lease, with the right to es-
tablish and maintain upon said grounds such
ferry facilities, wharves, piers, warehouses,
yards, tracks, depots, stations, sheds, eleva-
tors, and other structures as shall be neces
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.

"Sec. 3. Be it further ordained, etc., That
the said New Orleans Pacific Railway Com-
pany, its successors and assigns, shall have
the right to extend its tracks from the said
ground so leased between the Upper City Park
and the river front, easterly along saiu river

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