Hamilton v. Spokane and Palouse Railroad Company

• Decision Date: 08 December 1891
• Citation: 3 Idaho 164,28 P. 408
• Parties: HAMILTON v. SPOKANE AND PALOUSE RAILROAD COMPANY ET AL
• Court: Idaho Supreme Court

28 P. 408

3 Idaho 164

HAMILTON v. SPOKANE AND PALOUSE RAILROAD COMPANY ET AL

Supreme Court of Idaho

December 8, 1891

PUBLIC LANDS-PRE-EMPTION FILINGS-HOMESTEAD ENTRY-RAILROAD RIGHT OF WAY-DAMAGES.

ULTIMATE FACTS-CONCLUSIONS OF LAW.-Decision of court, under section 4407 of the Revised Statutes of Idaho, should contain only the ultimate facts found and the conclusions of law applicable to such facts.

HOMESTEAD ENTRY-RAILROAD RIGHT OF WAY-DAMAGES-PRE-EMPTION FILING.-One Wilkins filed declaratory statement November 7, 1888, and relinquished the same October 5, 1889, on which day Daniel made homestead entry of the same tract, and on April 29 1890, made cash entry of said tract, and on September 3 1890, conveyed by warranty deed to Hamilton a portion of said tract. The railroad company claims right of way over tract conveyed to Hamilton, by reason of compliance with act of Congress of March 3, 1875, and the approval of the plat by the Secretary of the Interior, July 11, 1889. Hamilton claims damages because of company grading its roadbed through said conveyed tract. Held, that Wilkins' pre-emption filing did not exempt said land from the grant of right of way to the company, as he relinquished the same before perfecting the title; that there was no priority of estate between said Wilkins and Daniel; that patent to Daniel would take effect by relation October 5, 1889, the date of Daniel's homestead entry, and would not antedate the grant to the company.

GRANTS TO AID RAILROAD IN CONSTRUCTION AND TO RIGHT OF WAY DISTINGUISHED.-Distinction between grants of land to aid in construction of railroads and grants of right of way commented upon. Railroad right of way over public lands under act of Congress of March 3, 1875. Action by Hamilton to recover damages for grading railroad roadbed across land claimed by him. Judgment for plaintiff. Defendant appeals. Reversed.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Judgment reversed, and judgment entered in favor of appellant.

Albert Hagan, for Appellant.

Under the practice of express findings, nothing is implied, but full findings are required without any request therefor. (Hayne on New Trial and Appeal, p. 718, sec. 239.) When a route is adopted by the company, and a map is filed with the Secretary of the Interior, and accepted by that officer, the route is then "established." It is, in the language of the act, "definitely fixed," and cannot be the subject of future change, so as to affect the grant, except upon legislative consent. (Van Wyck v. Knevals, 106 U.S. 366, 1 S.Ct. 336.) Whoever settles upon or appropriates for any purpose, under any law of the United States, any portion of the public lands on the possible line of the right of way of a road after the date of its "distinct location," does so subject to the grant of the right of way to the railway company. (Bybee v. Railroad Co., 26 F. 589, 590; Railroad Co. v. Alling, 99 U.S. 475; Doran v. Railroad Co., 24 Cal. 259; Railroad Co v. Tevis, 41 Cal. 492; Union P. R. Co. v. Douglas Co., 31 F. 540; United States v. Garretson, 42 F. 22; Turner v. Union, 5 McLean, 344, Fed. Cas. No. 14,251; Railroad Co. v. Meadows, 46 F. 254.)

J. A. C. Freund, for Respondent.

Public grants convey nothing by implication. (Charles River Bridge v. Warren Bridge, 11 Pet. 420; 1 Washburn on Real Property, 202; Bartram v. Turnpike Co., 25 Cal. 285; Lansing v. Smith, 4 Wend. 9, 21 Am. Dec. 89; Wilcoxon v. McGhee, 12 Ill. 381, 54 Am. Dec. 410.) A grant or a franchise must be strictly construed, and if a corporation is grantee, when there is a doubt the public should have the benefit, and the construction given against the corporation. (Spring Val. Water Co. v. San Francisco, 52 Cal. 112.) The cancellation of a homestead entry after a grant to the railroad, and the definite location of its line of road, does not inure to the benefit of the railroad company, but the land reverts to the government, and a person who makes a homestead entry of the same, and receives a patent therefor, after such cancellation of the first entry, is entitled to hold the same as against the railroad company. (Railroad Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112; Railway Co. v. Dunninger, 113 U.S. 629, 5 S.Ct. 566.) There must be a person in esse to give, as well as to take, in order to make a deed of an immediate estate by or to such person good. (3 Washburn on Real Property, 281, 282; Hunter v. Watson, 12 Cal. 363, 73 Am. Dec. 543.) Titles from the government and from individuals are governed by the same rules. (Brill v. Stiles, 35 Ill. 308, 85 Am. Dec. 364; Crear v. Crossly, 40 Ill. 178.)

SULLIVAN, C. J. Morgan and Huston, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action brought by the respondent (plaintiff below) against the appellant (defendant below, and three other defendants, who are not appellants here) to recover $ 250, damages alleged to have been sustained by reason of appellant having graded a railway roadbed through land claimed by the respondent, and for hauling and piling dirt upon said land. The complaint alleges that the defendant is a railroad corporation; that the plaintiff, on the third day of September, 1890, was, and ever since has been, the owner of a piece or parcel of land, being a part of lot 4, section 7, township 39 north, range 3 west, Boise meridian, containing an area of two and twenty-eight hundredths acres, and described said parcel of land by metes and bounds; and, further, that the appellant, on the twentieth day of November, 1890, entered upon said land unlawfully and with force, against the wishes of respondent, and hauled a large quantity of dirt upon and graded a roadbed for a railroad track through said land, to plaintiff's damage in the sum of $ 250, for which sum judgment is demanded. The appellant by its answer admits that it is a duly organized and existing railroad corporation, and denies all other allegations of the complaint, except the allegation that it entered upon said land and graded a railway roadbed through said land. The answer further states that the appellant claims the right of way over the said tract of land by virtue of an act of Congress approved March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States"; and that it acquired the right of way over said land to the extent of one hundred feet from each side of the middle of its track by reason of a compliance with the terms and conditions of said act of Congress; and denies that plaintiff is damaged in any sum whatever by reason of said roadbed having been graded across said land. The court tried the cause without a jury, and entered judgment against the appellant for $ 250, damages and costs of suit. From that judgment the appellant brings the case to this court, and demands a reversal thereof, and assigns six specifications of error as ground therefor.

The first and second specifications of error are substantially as follows, and will be considered together: That there are no findings to sustain the judgment; that a written decision of the court is not a finding, and will not sustain a judgment; that, even if the written decision is a finding, it will not sustain the judgment. I do not think the objections raised by these specifications of error well taken. I am of the opinion that the written decision of the court below contains findings of fact and conclusions of law sufficient to sustain the judgment of the court below, provided such finding of facts warrants the conclusions of law. I will, however, say that the document containing the finding of facts and conclusions of law is contained in the transcript, and covers eighteen printed pages thereof. Said document contains a statement of the contents of the pleadings, the substance of the testimony, and a review and comment on the authorities cited by counsel on the argument of the case in the court below, and the reasons for the decision, but fails to technically comply with section 4407 of the Revised Statutes. Said section requires the trial court, when a case is tried to the court without a jury, to give its decision in writing, in which the facts found and the conclusions of law applicable to such facts must be separately stated. The decision should not contain a statement of the case and the reason for the decision. The said document is, technically speaking, an opinion, rather than a decision, within the meaning of the term "decision" as used in said section 4407. The "decision" should contain only the ultimate facts established by the evidence, and the conclusions of law resulting therefrom, and nothing more. (Hidden v. Jordan, 28 Cal. 301; Bryan v. Maume, 28 Cal. 238; Jones v. Block, 30 Cal. 227, McClory v. McClory, 38 Cal. 575; Sawyer v. Sargent, 65 Cal. 259, 3 P. 872; Hayne on New Trial and Appeal, sec. 242, p. 734.) The opinion of the court below will in many cases save us labor, and we are always glad to have it, but it should be entirely separate from the finding of facts and conclusions of law.

The four remaining specifications of error will be considered together, and are as follows: 3. "The evidence shows that the defendant, the Spokane and Palouse Railroad Company has acquired a right of way over said land, and constructed the road-bed thereover, prior to the time when the plaintiff acquired any right therein." 4. "That the defendant's map was approved July 11, 1889, by the Secretary of the Interior, and the homestead entry of William G. Daniel was not made until the fifth day of October, 1889, nor did the said Daniel sell the land in dispute to the plaintiff until September 3, 1890; therefore the said railroad company was prior in right." 5. "That the railroad line has already been built across...