Elkhorn Land & Town Lot Co. v. Dixon County

• Decision Date: 26 October 1892
• Citation: 53 N.W. 382,35 Neb. 426
• Parties: ELKHORN LAND & TOWN LOT CO. v. DIXON COUNTY ET AL
• Court: Nebraska Supreme Court

53 N.W. 382

35 Neb. 426

ELKHORN LAND & TOWN LOT CO. v. DIXON COUNTY ET AL

Supreme Court of Nebraska

October 26, 1892

ERROR to the district court for Dixon county. Tried below before NORRIS, J.

AFFIRMED.

Davis & Gantt, for plaintiff in error.

J. J McCarthy, contra.

OPINION

MAXWELL, CH. J.

This action was brought by the plaintiff against the defendants to have an alleged cloud removed from certain lands possessed by it in Dixon county caused by the levy of taxes thereon by the county clerk of Dixon county in July, 1871. The petition is too long to copy here. The cancellation of the alleged cloud is sought on two grounds, which will be noticed in their order.

First--It is alleged, in substance, that the plaintiff derives title from the state; that the state derived title under the act of September 4, 1841, granting five hundred thousand acres of land to each new state for purposes of internal improvement that on April 16, 1870, the state selected the lands in question, which selection was approved by the United States October 13, 1871; that on February 15, 1869, the legislature of the state passed an act donating certain of said lands to such railroad companies as complied with said act by building ten or more miles of railroad; that after February 15, 1869, and before November, 1871, the F., E. & M. V. R. Co. built its third ten miles of railroad and thereupon the governor appointed commissioners, who approved of the same, whereupon, on the 30th day of November, 1870, the governor, in compliance with said law, issued letters patent for said lands to said railroad company, which afterwards conveyed to the plaintiff. It will be observed that the lands were not assessed until the next year after the railway company had obtained its patents. The company, therefore, had not only earned its lands but the state had recognized its right to the same and conveyed its title.

The case falls directly within that of White v. B. & M. R Co., 5 Neb. 393. In that case the section of road in dispute had not been accepted until sometime after the lands were assessed. The evidence that the company had earned the lands by the construction of the required twenty miles of railroad was the certificate of approval, and until that was obtained its absolute right to the lands did not attach; therefore, the tax was held to be void. In the case at bar, however, the railway company was the owner of the land when the...