Hannibal & St. Joseph R.R. Co. v. Smith

• Decision Date: 31 August 1867
• Parties: THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant, v. LEWIS SMITH, Respondent.
• Court: Missouri Supreme Court

41 Mo. 310

THE HANNIBAL AND ST. JOSEPH RAILROAD COMPANY, Appellant,

v.LEWIS SMITH, Respondent.

Supreme Court of Missouri.

August Term, 1867.

Appeal from Macon Circuit Court.

Ejectment for the N. W. 1-4 of the N. W. 1-4, and the E. 1-2 of the N. W. 1-4, and the N. E. 1-4 of the S. W. 1-4 of section 20, in township 58, and range 16, situate in Macon county in the State of Missouri. Entry laid October 2, 1855.

The respondent in his answer denied that appellant was entitled to the possession of said premises at the time alleged, or at any time since or prior thereto; and denied that he unlawfully withheld the possession thereof.

At the February term, 1866, the case was tried by the court sitting as a jury.

The appellant, to show title in itself, read in evidence--

First. An act of Congress entitled “An Act granting the right of way to the State of Missouri, and a portion of the Public Lands, to aid in the construction of certain Railroads in said State,” approved June 10, 1852.

By the 1st section the right of way is “granted to the State of Missouri for the construction of railroads from the town of Hannibal to the town of St. Joseph in said State, and from the city of St. Louis to such point on the western boundary of said State as may be designated by the authority of said State;”“and a copy of the location of said roads, made under the direction of the Legislature, shall be forwarded to the proper local land offices respectively, and to the General Land Office at Washington City, within ninety days after the completion of the same to be recorded.”

“§ 2. And be it further enacted, That there be, and is hereby granted to the State of Missouri, for the purpose of aiding in making the railroads aforesaid, every alternate section of land designated by even numbers, for six sections in width on each side of said road; but in case it shall appear that the United States have, when the line or route of said roads or either of them shall be definitely fixed by the authority aforesaid, sold any section or any part thereof granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the Governor of said State, to select, subject to the approval of the Secretary of the Interior, from the lands of the United States most contiguous to the tier of sections above specified, so much land in alternate sections or parts of sections as shall be equal to such lands as the United States have sold, or to which the right of pre-emption has attached as aforesaid; which lands, thus selected, in lieu of those sold, and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by even numbers as aforesaid, and appropriated as aforesaid, shall be held by the State of Missouri for the use and purpose aforesaid; Provided, that the lands to be so located shall in no case be further than fifteen miles from the line of the road in each case; Provided further, that the lands hereby granted shall be exclusively applied in the construction of that road for which it was granted and selected, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever; And provided further, that any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be and the same are hereby reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the route of the said railroads through such reserved lands, in which case the right of way only shall be granted.”

“§ 4. And be it further enacted, That the said lands hereby granted to the said State shall be subject to the disposal of the Legislature thereof for the purposes aforesaid and no other; and the said railroads shall be and remain public highways for the use of the Government of the United States free from toll or other charge, upon the transportation of any property or troops of the United States.”

Sec. 5 provides “that the lands thereby granted to the State shall be disposed of” only in a certain manner.

Second. An act of the General Assembly, approved September 20, 1852.

“§ 1. That all that portion of the lands granted to this State by the act of Congress entitled ‘An Act granting the right of way to the State of Missouri, and a portion of the Public Lands, to aid in the construction of certain Railroads in said State,’ approved June 10, 1852, so far as the same are applicable to the construction of a railroad from the town of Hannibal to the town of St. Joseph in this State, and which may be selected or located in conformity with its provisions, together with all the rights and privileges thereto belonging, or in said act granted, shall vest in full and complete title in the Hannibal and St. Joseph Railroad Company, for the uses and purposes, and subject to the conditions, reversion and provisions set forth and contained in said act of Congress.”

Third. A copy of the resolution of the board of directors of the Hannibal and St. Joseph Railroad Company, adopted on the 7th day of March, 1853, accepting the grant of land made to the State of Missouri by the Congress of the United States to aid in the construction of certain railroads in this State, and to apply a portion thereof to the Hannibal and St. Joseph railroad, as prescribed by the 4th section of the act of September 20, 1852, and filed in the office of the Secretary of State on the 17th March, 1853, duly certified by the Secretary of State.

Fourth. An exemplified copy of the map of the definite location and route of the Hannibal and St. Joseph railroad from the city of Hannibal to the city of St. Joseph, Missouri, with a line on the same denoting the line of said railroad, with lines and figures on the same denoting the sections, townships and ranges--filed in the General Land Office at Washington, June 10, 1853.

“General Land Office, September 19, 1860.--I, Joseph S. Wilson, Commissioner of the General Land Office, do hereby certify that the annexed transcript map and certificate, except the red shaded lines thereon is a true and literal exemplification of the map on the files of this office.”

Fifth. Evidence showing that the Hannibal and St. Joseph railroad was completed in the latter part of February, 1859, and that the land in controversy lies between three and four miles from said railroad.

Sixth. A list of lands certified November 18, 1854, to the Hannibal and St. Joseph Railroad Company by the Commissioner of the General Land Office, to which is prefixed the following caption:

“Hannibal and St. Joseph Railroad.--A list of vacant lands situate in the Palmyra, Milan and Plattsburgh Districts, State of Missouri, in the sections bearing even numbers, within six miles of the route of the Hannibal and St. Joseph railroad, accruing to said State in virtue of the grant made by the act of Congress approved June 10, 1852, as more particularly set forth in the general certificate hereto appended, to-wit: The N. W. one quarter of the N. W. one quarter, and the E. one-half of the N. W. one quarter, and the N. E. one quarter of the S. W. one quarter, all in section 20, township 58, range 16.

No evidence was presented showing that the plaintiff had filed a map of the location of the road through Macon county in the office of the county recorder, as required by sec. 7 of act of September 20, 1852.

The respondent to show title in himself, read in evidence:

First. The act of Congress entitled “An Act to enable the State of Arkansas and other States to reclaim the ‘Swamp Lands' within their limits,” approved September 28, 1850.

“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That to enable the State of Arkansas to construct the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands made unfit thereby for cultivation, which shall remain unsold at the passage of this act, shall be, and the same are hereby granted to said State.

Sec. 2. And be it further enacted, That it shall be the duty of the Secretary of the Interior, as soon as may be practicable after the passage of this act, to make out an accurate list and plats of the lands described as aforesaid, and transmit the same to the Governor of the State of Arkansas, and, at the request of said Governor, cause a patent to be issued to the State therefor; and on that patent, the fee simple to said lands shall vest in the said State of Arkansas, subject to the disposal of the Legislature thereof; Provided, however, that the proceeds of said lands, whether from sale or by direct appropriation in kind, shall be applied exclusively, as far as necessary, to the purpose of reclaiming said lands by means of the levees and drains aforesaid.

Sec. 3. And be it further enacted, That in making out a list and plats of the land aforesaid, all legal subdivisions, the greater part of which is “wet and unfit for cultivation,” shall be included in said list and plats; but when the greater part of a subdivision is not of that character, the whole of it shall be excluded therefrom.

Sec. 4. And be it further enacted, That the provisions of this act be extended to, and their benefits be conferred upon, each of the other States of the Union in which such swamp and overflowed lands, known and designated as aforesaid, may be situated.

Approved, September 28, 1850.”

[9 U. S. Stat. at Large, 519.]

Second. The 1st, 2d, 3d and 4th sections of the act of the General Assembly of the State of Missouri entitled “An Act donating certain swamp and overflowed lands to the Counties in which they lie,” approved December 13, 1855, the 1st and 2d sections of which are taken from the act of the General...