Atchison v. Richter.

• Decision Date: 12 January 1915
• Docket Number: No. 1667.,1667.
• Court: New Mexico Supreme Court
• Parties: ATCHISON, T. & S. F. RY. CO.v.RICHTER.

20 N.M. 278

148 P. 478

ATCHISON, T. & S. F. RY. CO.

v.RICHTER.

No. 1667.

Supreme Court of New Mexico.

Jan. 12, 1915.On Rehearing, March 10, 1915.

Syllabus by the Court.

An entryman of coal lands of the United States who has filed a declaratory statement in the United States Land Office, under the provisions of sections 2347-2349, R. S. U. S. (sections 4659-4661), has a possessory right to the land of such a character as to render unlawful an entry thereon by a railroad corporation for railroad purposes, previous to condemnation proceedings.

The railroad improvements put upon the lands included within a coal entry, previous to condemnation proceedings, even when the entry upon the land is a willful and violent trespass, do not become a fixture to the land, and are not to be taken into consideration, in subsequent condemnation proceedings, in estimating the compensation to be awarded the owner.

Additional Syllabus by Editorial Staff.

Under Laws 1905, c. 97, § 9, providing that if an order be made letting the plaintiff in condemnation proceeding into possession the damages awarded shall draw interest from the date of such order, the owner is entitled to interest from the time his possession is invaded by the condemnor, either with or without an order of court.

Appeal from District Court, Bernalillo County; H. F. Raynolds, Judge.

Condemnation proceedings by the Atchison, Topeka & Santa Fé Railway Company against Johanna Richter. From a judgment for Richter, the railway company appeals. Reversed and remanded for new trial.

It is an ancient and well established doctrine of the common law that, where personal property is affixed to real estate by a trespasser or disseisor, the same becomes a part of the real estate and becomes the property of the true owner of the fee, but this doctrine has no application in condemnation proceedings.

R. E. Twitchell, of Santa Fé, E. W. Dobson, of Albuquerque, and Sam Bushman, of Gallup, for appellant.

A. T. Hannett, of Gallup, and Vigil & Jamison, of Albuquerque, for appellee.

PARKER, J.

The appellant brought proceedings to condemn 1.86 acres of land which it was occupying for railroad purposes. The commissioners appointed by the court assessed the value of the premises at $3,000. Objections to the report being filed by appellant, the court resubmitted the matter to the same commissioners who made a second return fixing the value of the premises at $4,500. Exceptions to the report were filed by appellant and overruled by the court, whereupon appellant appealed from the award to the district court. A trial was had in Bernalillo county, on change of venue, resulting in a verdict for $7,750 in favor of appellee, and a judgment was rendered thereon; motion for a new trial having been overruled. The railway company appeals.

There is but one main controversy in the case, and that is as to the measure of compensation to be applied. At the instance of the appellee, the court applied the rule that the measure of compensation, under the facts in the case, was the value of the land and the improvements put upon the land by the appellant, in the form of railway trackage, consisting of rails, ties, roadbeds, culverts, etc. Appellant contested this proposition, and insisted that the proper measure of compensation was the value of the surface of the land taken, without the improvements. A solution of this question, under the facts in this case, depends upon two further considerations, viz.: First, the nature and character of the right of appellee at the time of the entry by appellant; and, second, the character of the entry by appellant.

[1] 1. It appears that appellee filed a declaratory statement in the United States Land Office for the purchase of the land as coal lands, on March 8, 1907. On account of faulty verification of the declaratory statement, it was reverified on September 8, 1907. The appellant entered upon the land in October, 1907, and completed its railroad in November, 1907. Appellee made final payment for the land on January 14, 1908, and a patent was issued to her January 18, 1909.

Appellant urges that, under the circumstances, appellee was not in a position to assert any of the rights of an owner of the land, as against appellant, at the time of its entry thereon, and that the character of its entry therefore is immaterial. Counsel argue that, at the time appellant entered and laid its tracks, appellee was neither an owner of the title nor the owner of a possessory right to the land, and that therefore none of the doctrines in regard to willful trespass, as affecting the measure of compensation, have any application.

An examination of the facts and of the laws of Congress on the subject of coal entries will show, we think, that appellee had, at the time of the entry by appellant, at least a possessory right to the land in controversy. Appellant's Exhibit B, to which attention is called in the briefs, shows that appellee settled on the land on May 31, 1906, filed declaratory statement in the United States Land Office for the W. 1/2 of the N. E. 1/4 of section 4 of township 15 N. of range 18 W., on March 8, 1907, and reverified the same, in accordance with instructions from the General Land Office, on September 8, 1907. Appellant's Exhibit D shows that on January 14, 1908, appellee paid for the N. W. 1/4 of the N. E. 1/4 (lot 2) of said section, containing 39.99 acres, and on January 18, 1909, received patent therefor.

This entry was made under the provisions of sections 2347-2349, R. S. U. S., 5 Fed. Stat. Ann. 55, 56 (U. S. Comp. St. 1913, §§ 4659-4661). Section 2348, supra, clearly shows by its provisions that the government contemplates that citizens may take possession of the public lands, and may open and improve coal mines thereon, in which event they shall have a preference right of purchase. Section 2349, supra, requires the filing of the declaratory statements, within a certain prescribed time after taking possession, in order to preserve the preference right, and section 2350 (U. S. Comp. St. 1913, § 4662) requires payment for the land within one year after the filing of the declaratory statement. This statute as clearly contemplates a right to possession of coal lands, as against any intruder, as does the other federal legislation in regard to homesteads and pre-emption claims.

Counsel for appellant argue that appellee had not possessory claim or right to the land at the time of the appellant's entry, and cite Spokane, etc., Ry. Co. v. Zeigler, 167 U. S. 65, 17 Sup. Ct. 728, 42 L. Ed. 79, to the point.

An examination of that case will show that the definition of “possessory claims,” as used in section 3 of the Act of March 3, 1875, c. 152, 18 Stat. L. 483, 6 Fed. Stat. Ann. 501 et seq. (U. S. Comp. St. 1913, § 4923), is not inclusive of all cases of “possessory claims” to parts of the public domain. In that case the pre-emption entryman had made final proofs, and, at the time of the entry by the railway company, nothing remained to be done except for the Land Department to examine the same and issue patent. Hence the court said:

“While it is true that, at the time when the company took possession of the plaintiff's land, the latter had not yet received his patent, but had only made the final proofs and filed the same in the Land Office of the United States and had tendered the purchase price thereof, and had demanded from the register and receiver of said Land Office a final receipt evidencing his entry of and payment for said land, yet it further appears that before the plaintiff brought this suit his purchase money had been accepted and a patent from the United States, for the said tract of land had been duly executed and delivered to him. The plaintiff, then, having been in possession of the land in question, and having done and performed all that the law required to give him a right to a patent, before the railroad company seized the land, we think the grant of the patent, subsequent to such seizure, but before the bringing of the suit, operated to confer upon the plaintiff the right to demand and recover damages as the owner of the fee. The railroad company having taken possession without the consent of the owner, and not having instituted proceedings to condemn, was a trespasser, and liable to indemnify the plaintiff in respect to his possession and title, as they were shown to exist at the time the suit was brought.”

It thus appears that the court was not attempting to give a general definition of “possessory claims” to portions of the public domain, but that it held simply that the facts before the court showed that the entryman had such a “possessory claim” at the time of the unlawful entry by the railway company. The court cites and relies upon Washington, etc., R. R. Co. v. Osborn, 160 U. S. 103, 16 Sup. Ct. 219, 40 L. Ed. 356. In that case Osborn had settled upon the unsurveyed public domain with intent to enter the land as a pre-emptor, and was shown to be qualified as such. The railroad company filed a bill to establish its right to a right of way over the lands without compensation. The court said:

“It must therefore be conceded that Osborn did not, by maintaining possession for several years and putting valuable improvements thereon, preclude the government from dealing with the lands as its own, and from conferring them on another party by a subsequent grant. On the other hand, it would not be easy to suppose that Congress would, in authorizing railroad companies to traverse the public lands, intend thereby to give them a right to run the lines of their roads at pleasure, regardless of the rights of settlers.”

In the case at bar, the possessory right of appellee is much clearer than in the last case cited. Here there was not only actual possession under a clear right, but the exact limits of the claim were defined by the declaratory statement filed in the United States Land Office. The right to purchase the land had...