Dugan v. Montoya

Decision Date16 February 1918
Docket NumberNo. 2098.,2098.
Citation173 P. 118,24 N.M. 102
CourtNew Mexico Supreme Court
PartiesDUGANv.MONTOYA, Probate Judge, et al.

OPINION TEXT STARTS HERE

Syllabus by the Court.

By act of July 22, 1854 (Act Cong. July 22, 1854, c. 103, 10 Stat. 308), sections 16 and 36 of each township in the territory of New Mexico were reserved for the purpose of being applied to schools in said territory. By act of July 27, 1866 (Act Cong. July 27, 1866, c. 278, 14 Stat. 292), Congress provided for the incorporation of the Atlantic & Pacific Railroad Company, which said corporation proposed to build a railroad through the then territory of New Mexico. Section 2 of the act gave the said railroad company a right of way through the public lands of the United States, “including all necessary grounds for station buildings, workshops, depots, *** switches,” etc. On January 15, 1891 (Act Cong. Jan. 15, 1891, c. 73, 26 Stat. 718), an act was passed for the relief of the inhabitants of Gallup, N. M., which said act authorized the probate judge of Bernalillo county to enter in trust for the occupants and inhabitants of said town, for town-site purposes, the southeast quarter of section 16, township 15 north, range 18 west, subject to the provisions of sections 2387, 2388, and 2389 of chapter 8 of the Revised Statutes of the United States (U. S. Comp. St. 1916, §§ 4791-4793). Pursuant to this act the probate judge of Bernalillo county, on June 17, 1891, applied to enter said land. Application was made for the full quarter section. The receiver issued to said probate judge a final receipt, which had noted thereon that it was “subject to the station grounds and right of way of the Atlantic & Pacific Railroad Company, containing 27.72 acres of land, as shown by survey map on file in this office.” The patent excepted such station grounds, containing 27.72 acres, from the operation thereof. In 1884 the Atlantic & Pacific Railroad Company filed with the secretary of the interior a map showing its claim to said station grounds.

Held, (a) that the relief act of January 15, 1891, did not grant to the probate judge of Bernalillo county such quarter section of land, but simply authorized him to enter the same in trust for the occupants and inhabitants of the town of Gallup for town-site purposes; that such entry was subject to the provisions of the general town-site law; that, until such entry was made pursuant to the provisions of such law, the probate judge of such county took no title to the land.

(b) Under the provisions of section 2388, R. S. U. S., the probate judge was only authorized to enter land, the title to which was in the United States, at the date of the application; that it was incumbent upon the proper officers of the land department of the United States, upon application being made to enter lands for town-site purposes, to determine whether or not such lands were subject to entry, and that such determination on the part of said officers was judicial in character.

(c) When the application was made herein the officers of the land department at Santa Fé determined that the title to the right of way and station grounds of the Atlantic & Pacific Railroad Company had vested in such company, consequently had passed from the United States, and the action of such officers in so determining is not subject to collateral attack.

The act of July 22, 1854, reserving sections 16 and 36 from entry for the purpose of being applied to schools of the territory, did not convey such section to the territory, but amounted simply to a reservation thereof, and the title to such remained in the United States, and such lands were a part of the public lands of the United States, reserved from entry, however. The granting act to the Atlantic & Pacific Railroad Company of lands for right of way and station purposes granted a right of way over public lands of the United States, and contained no exceptions or reservations. Where it clearly appears from the statute that the term “public lands” is intended to include lands which have theretofore been reserved by Congress for a specific purpose, such intention will prevail.

A railroad company, by complying with the act of Congress, giving it a right to lands for right of way and station purposes, acquires more than an easement in such lands. To say the least, it takes a limited fee therein, to which no other person can acquire any right or title, either by adverse possession or by grant from the company itself. A claim of lots in a town site which embraces a part of such right of way and station grounds is not entitled to a deed from the probate judge including any portion thereof.

While the railroad company was granted “necessary grounds” for the purposes named, under which grant it filed a map with the land office showing its claim to designated land for such purpose, which claim has ever since been acquiesced in by the United States government, a private individual cannot litigate with the railroad company the question of the necessity of such land for the purpose claimed.

The question of forfeiture for nonuser could only be asserted by the United States, either by legislative declaration or in a proper judicial proceeding, and until such forfeiture has been asserted the land would not revert to the United States, but the title would remain in the grantee.

Appeal from District Court, McKinley County; Raynolds, Judge.

Action by Daniel P. Dugan against Alejandro Montoya, as Probate Judge of the County of McKinley, and others. Judgment for plaintiff, and defendant named appeals. Reversed, and remanded with instructions to enter judgment for appellant.

Railroad company complying with Act Cong. July 27, 1866, c. 278, giving right to lands for right of way and station, acquired more than an easement and took a limited fee, to which no one could acquire any title by adverse possession or by grant from railroad itself.

Sam Bushman and H. C. Denny, both of Gallup, for appellant.

A. T. Hannett and J. W. Chapman, both of Gallup, for appellee.H. B. Jamison, of Albuquerque, amicus curiae.

ROBERTS, J.

This action was instituted in the court below by appellee against appellant as probate judge of the county of McKinley, state of New Mexico, and all or any parties unknown, interested in the land described in the complaint. The action was brought under the provisions of section 5516, Code 1915. This authorized the occupants of land embraced within lands patented to the probate judge as a town site, where such occupant had not reserved title thereto under the provisions of sections 5519 to 5522, inclusive, Code 1915, by reason of such party having failed to make the statement and filing the same as required by the latter sections, or by reason of the failure of the probate judge to give notice of such entry, or the receiving of the patent, to institute suit in the district court against the probate judge and others interested, to secure a determination of the question of the party's right to a deed.

Appellee in his complaint alleged that he had failed to give the required notice; hence had not received a conveyance from the probate judge to the lots in question, and that the lots were embraced within the town site patented to the probate judge. Appellant defended upon the ground that his predecessor in office did not receive a patent to the land of which the lots in question were a portion. The court, after hearing evidence, entered judgment, directing the probate judge to execute to appellee a deed to the lots in question. No findings of fact were made. From such judgment the probate judge prosecutes this appeal.

The case below was not well tried. Some of the important facts which should have been established by evidence were seemingly taken for granted by both sides. We shall state the facts as we understand them from the admissions of the parties and the evidence offered.

On July 22, 1854, an act was passed by Congress to establish the office of surveyor general of New Mexico, Kansas, and Nebraska, to grant donations to actual settlers therein, and for other purposes. 10 Stats. at Large, p. 308. Section 5 of the act, which applied to New Mexico, reads as follows:

“And be it further enacted, that when the lands in the said territory shall be surveyed, under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township, in said territory, shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory, and in the states and territories hereafter to be created out of the same.”

The lots in question were within the southeast quarter of section 16, township 15 N., range 18 W., N. M. P. M.

By the act of July 27, 1866 (14 Stats. at Large, 292), Congress provided for the incorporation of the Atlantic & Pacific Railroad Company, which was incorporated for the purpose of building a railroad from a point on the Missouri river to the Pacific Coast, and which said proposed road was to be built through New Mexico. Certain named individuals were authorized to form a corporation, and were required to do certain acts within specified periods, in order for the corporation to be entitled to the benefits of the act. The evidence in the record is silent as to compliance by the railroad company with such requirements, but it was seemingly taken for granted by both parties in the court below that the railroad company was entitled to the benefits of the act, and we shall so assume. Section 2 of the act, in so far as material, reads as follows:

“And be it further enacted, that the right of way through the public lands be, and the same is hereby, granted to the said Atlantic & Pacific Railroad Company, its successors and assigns, for the construction of a railroad and telegraph as proposed; and the right, power, and authority is hereby given to said corporation to take from the public...

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4 cases
  • Clarke v. Boysen
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • May 14, 1930
    ...27 L. Ed. 201; Oregon Short Line v. Stalker, 14 Idaho, 362, 94 P. 56; Id., 225 U. S. 142, 32 S. Ct. 636, 56 L. Ed. 1027; Dugan v. Montoya, 24 N. M. 102, 173 P. 118; Atchafalaya Bank v. Dawson, 13 La. 497. Until such forfeiture has been asserted, the title to the right-of-way remains in the ......
  • Offutt Housing Co. v. Sarpy County
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    ...that a legislative act is to be interpreted according to the plain intention of the legislative body.' See, also, Dugan v. Montoya, 24 N.M. 102, 173 P. 118; United States v. Bisel, 8 Mont. 20, 19 P. 251; United States v. Blendaur, 9 Cir., 128 F. Cotulla v. Laxson, 60 Tex. 443, involved a pe......
  • Atchison, T. & S. F. Ry. Co. v. Dugan
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    • New Mexico Supreme Court
    • January 15, 1921
    ...ATCHISON, T. & S. F. RY. CO. v. DUGAN ET AL. No. 2320.Supreme Court of New MexicoJanuary 15, 1921 Syllabus by the Court. Dugan v. Montoya, 24 N.M. 102, 173 P. 118, Appeal from District Court, McKinley County; Raynolds, Judge. Action by the Atchison, Topeka & Santa Fé Railway Company against......
  • Atchison v. Dugan
    • United States
    • New Mexico Supreme Court
    • January 15, 1921
    ...RY. CO.v.DUGAN ET AL. No. 2320.Supreme Court of New Mexico. Jan. 15, 1921. OPINION TEXT STARTS HERE Syllabus by the Court. Dugan v. Montoya, 24 N. M. 102, 173 Pac. 118, followed. Appeal from District Court, McKinley County; Raynolds, Judge. Action by the Atchison, Topeka & Santa Fé Railway ......

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