Anderson v. Chicago & North-Western Railway Co.

Citation168 N.W. 196,102 Neb. 578
Decision Date15 June 1918
Docket Number20090
PartiesCHARLES W. ANDERSON, APPELLEE, v. CHICAGO & NORTH-WESTERN RAILWAY COMPANY, APPELLANT
CourtSupreme Court of Nebraska

APPEAL from the district court for Dawes County: WILLIAM H WESTOVER, JUDGE. Reversed, and dismissed.

Judgment of the district court reversed, and cause dismissed.

A. A McLauglin, Wymer Dressler and Lyle Hubbard, for appellant.

J. E Porter, contra.

LETTON, J. MORRISSY, C. J., and ROSE, J., dissent. HAMER, J., not sitting.

OPINION

LETTON, J.

Plaintiff is the owner of five head of cattle which were killed by a train of the defendant on the Fort Robinson military reservation in Dawes county. The answer admits the killing, and that the railway through the reservation is not fenced, and pleads as a defense that the reservation is under the exclusive jurisdiction and control of the government of the United States, and not under the control or subject to the laws of the state of Nebraska; that the United States government, exercising its jurisdiction through its duly appointed officers, has ordered and determined that the reservation shall not be incumbered with right of way fences, but shall remain free and open to be used for military maneuvers and for drill grounds, and that the government has expressly ordered and commanded the defendant not to fence its right of way through the same; that, for that reason, the laws of the state of Nebraska as respects fencing of railroads have there been superseded, and the defendant is not liable on account of the absence of a fence. Both parties moved for a directed verdict. The court instructed for plaintiff, and defendant appeals.

In 1885 congress granted a right of way to the Fremont, Elkhorn & Missouri Valley Railway Company through the Fort Robinson military reservation, the location of same to be subject to the approval of the secretary of war. This approval was granted, and the railroad built accordingly. In 1887 (Laws 1887, ch. 83) jurisdiction over the reservation was ceded to the United States by the state of Nebraska. About half of the length of the right of way through the reservation was fenced by the defendant. In 1911 a controversy arose between the officer in command at the reservation and the defendant regarding the extension of the fences through the reservation. The matter was referred to the war department, and in a letter from the acting secretary of war to the superintendent of the defendant railway company the following is found: "The state, by act of March 29, 1887, ceded exclusive jurisdiction over this reservation, subject to the usual reservations for service of process, and no statute of the state requiring railways to fence their rights of way can be regarded as operative within the reservation of Fort Robinson. Your right of way across that reservation divides it into two nearly equal parts. To place fences thereon would very greatly restrict the use of the reservation for drill and maneuver purposes, and, even though you should put in numerous passage-ways, would cause great inconvenience to the troops there stationed. To permit the fencing of your right of way across the reservation would, therefore, militate against the efficiency of the troops stationed at Fort Robinson and would largely defeat the purpose for which the government maintains the reservation.

"By reason of the above considerations, I am constrained to inform you that the government will not permit the erection of fences along the right of way of your company within the Fort Robinson military reservation, and you are hereby notified to remove all such fences heretofore erected by your company."

Efforts were made by the defendant to procure a modification of this order, and on October 30, 1911, a letter was sent to the attorney for the defendant by the acting secretary of war containing the following: "Referring to your letters, dated September 11 and October 19, 1911, asking for a reconsideration of the war department's decision not to permit the C. & N. W. Ry. to fence its right of way through the Fort Robinson military reservation, I have the honor to inform you that this matter was most carefully considered prior to the decision of the department, made known to you in office letter of May 23, 1911, and that, since the receipt of your letter of September 11, the case has been thoroughly reviewed with the result that the department is constrained to adhere to its former decision in the premises.

"The commanding officer, Fort Robinson, states that the entire reservation is inclosed by fences with the exception of the wood reserve about six miles from the post proper; that the entire reservation is used for instruction and maneuver purposes; that the railroad passes diagonally through the reservation, separating it into two parts, and, if fenced in as proposed by the railway company, it will greatly interfere with the use of the land for maneuver and drill purposes." Following these communications, defendant made no further efforts to fence the line.

Under the laws of this state, defendant would be liable for the value of the cattle killed on the reservation, unless the action of the war department relieves it from the duty to fence. In Chicago, R. I. & P. R. Co. v. McGlinn, 114 U.S. 542, 29 L.Ed. 270, 5 S.Ct. 1005, several of the questions involved in this case have been decided. That action was for the value of a cow alleged to have...

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  • Anderson v. Chi. & N. W. Ry. Co.
    • United States
    • Supreme Court of Nebraska
    • 15 Junio 1918
    ...102 Neb. 578168 N.W. 196ANDERSONv.CHICAGO & N. W. RY. CO.No. 20090.Supreme Court of Nebraska.June 15, Syllabus by the Court. If the War Department of the United States, in control of a reservation for military purposes, jurisdiction over which has been ceded by the state of Nebraska to the ......

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