Jamestown & N.R. Co. v. Jones
| Decision Date | 04 June 1898 |
| Docket Number | 6731 |
| Citation | 76 N.W. 227,7 N.D. 619 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Stutsman County; Glaspel, J.
Action by the Jamestown & Northern Railroad Company against Theodore J. Jones. Defendant had judgment, and plaintiff appeals.
Affirmed.
Ball Watson & Maclay, for appellant.
Prior to the enactment of the general act of 1875, similar grants had been made to other companies. In construing similar acts the Supreme Court has held that they constituted a present grant, and that the title acquired by settlement subsequently made upon land over which the right-of-way was granted, was subject to such grant. Baldwin v. Railroad, 103 U.S 426; Railroad v. Dyer, 1 Sawyer, 641; Railroad v. United States, 92 U.S. 733; Railroad v Cook, 163 U.S. 491; Railroad v. Railroad, 160 U.S. 77. The rights of a railroad company under the act of 1875, are fixed by the date of filing map of definite location. Larson v. R. Co., 23 P. 974; Hamilton v. R. Co., 28 P. 408; Enoch v. R. Co., 33 P 966; Reidt v. R. Co., 34 P. 150; Kinion v. R. Co., 24 S.W. 636. When plaintiffs map was approved March 13th, defendants rights had not attached to the land. They could not attach until he made his filing in June. Mere settlement or cultivation was not enough to segregate the tract from the category of public lands. Railroad v. Dunmeyer, 113 U.S. 629, 5 S. C. Rep. 566; Railroad v. Whitney, 132 U.S. 357, 10 S. C. Rep. 112; Campbell v. Wade, 132 U.S. 34, 10 S. C. Rep. 9; Frisbie v. Whitney, 9 Wall. 187; Whitney v. Taylor, 158 U.S. 85; Yosemite Valley Case, 15 Wall. 77; Railroad v. Colburn, 164 U.S. 383; Doran v. Railroad, 24 Cal. 245; Bybee v. Railroad, 139 U.S. 679; Hamilton v. Railroad, 28 Pac. Rep 408; Railroad v. Burr, 24 P. 1032. This land was in actual use for purposes of business and trade in February, 1883, when Jones made entry thereon and consequently was not subject to pre-emption entry. Subd. 3, § 2258, Revised Statutes, U. S.; Ex parte Davidson, 57 F. 883. Assuming that defendant lawfully initiated a settlement on February 23rd, 1883, yet he lost the same as against the rights of plaintiff by his failure to file declaratory statement within three months from the date of his settlement. § 2265, U. S. Rev. Stat. By failure to make his final proof within thirty months thereafter, Jones rights became forfeit, plaintiffs rights instantly attached to the land and became paramount. § 2267, U. S. Rev. Stats; Hamilton v. Railroad, 28 P. 408; Alexander v. Railroad, 40 S.W. 104; Kinion v. Railroad, 24 S.W. 636; Sproat v. Durland, 35 P. 682.
S. E. Ellsworth, for respondent.
The act of March 3rd, 1875, does not operate as a present grant. It entitled any company to obtain the right-of-way upon performing certain conditions. Spokane Falls, etc. R. Co. v. Zeigler, 61 F. 372, 167 U.S. 65; Red River, etc. R. Co. v. Sture, 20 N.W. 229. A railroad company cannot acquire rights under the act of March 3, 1875, without full compliance with the terms of the act including the filing of a profile of its road with the register of the proper land office, and the title when acquired dates from the last act necessary to such compliance. Lilienthal v. Ry. Co., 56 F. 701; Larsen v. Ry. Co., 23 P. 975; Hamilton v. Ry. Co., 28 P. 408; Enoch v. Ry. Co., 33 P. 966; Chicago, etc., Ry. Co. v. Van Cleave, 33 P. 472; Reidt v. Ry. Co., 34 P. 150; Kinion v. Ry. Co., 24 S.W. 636. The act of March 3, 1875, grants to railroad companies, the right-of-way only over the public lands of the United States. "Lands to which any claims or rights of others have attached do not fall within the designation of public land." Bardon v. Northern Pac. R. Co., 145 U.S. 806; Wilcox v. Jackson, 13 Pet. 516; Newhall v. Savage, 92 U.S. 76. The preemption laws are a means of disposing of public lands, and an entry of record under them, valid on its face is such an appropriation of the tract entered as segregates it from the public domain and precludes it from subsequent grant. Spokane, etc. R. Co. v. Ziegler, 61 F. 392; Witherspoon v. Duncan, 71 U.S. 210; United States v. Turner, 54 F. 228. Such entry prevails against individuals and the government as well. I Copps Pub-Land Laws, 387; Kansas Pac. R. Co. v. Dunmeyer, 113 U.S. 629; Hastings, etc. Ry. Co. v. Whitney, 132 U.S. 357; Sturr v. Beck, 133 U.S. 541. One who has settled on public lands with intention to obtain title under the pre-emption laws has a "possessory claim" within the meaning of section 3, of the act. Washington, etc., R. Co. v. Osborn, 169 U.S. 103; Spokane, etc. R. Co. v. Ziegler, 167 U.S. 65. Upon such failure of Jones as would forfeit his right the land would revert to the government, but not to the railroad company. The railroad company upon the filing and approval of its map is granted rights upon lands which the government then owned or had not disposed of, but no right is acquired in lands subsequently reverting to the government. Kansas Pac. Ry. Co. v. Dunmeyer, 113 U.S. 629; DeLacey v. N. P. Ry. Co., 72 F. 726; Johnson v. Bridal Veil L. Co., 33 P. 528; Whitney v. Taylor, 158 U.S. 85. Where a claimant is prevented from making proof because land was covered by another entry and the local land officers refused to receive his proof, his entry is not invalidated by the expiration of the time allowed by law in which to make such proof. Shepley v. Cowan, 91 U.S. 338; Weeks v. Bridgeman, 159 U.S. 540.
Plaintiff claims that it is entitled to a right-of-way over the defendant's land. It is conceded that it has never purchased or condemned such right of way. All the title it has must rest upon the act of congress passed March 3, 1875, entitled "An act granting to railroads the right-of-way through the public lands of the United States." Section 1 of that act declares "that the right-of-way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the congress of the United States, which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad; also ground adjacent to such right-of-way for station buildings, depots, machine shops, side-tracks, turn-outs and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road." The plaintiff was organized as a railroad corporation on the 17th of September, 1881, under the laws of the then Territory of Dakota. After its organization it surveyed a line of route for its road from a point near the City of Jamestown, in a northwesterly direction, through the County of Stutsman, to the northern boundary thereof. The line ran through the premises in question. The survey was finished October 30, 1881. A map representing the survey was made, and thereafter the plaintiff, by resolution of its board of directors, adopted such survey as the definite route of its line of railroad. In 1882 the road was constructed, and since that time trains have been continuously run thereover by the plaintiff. On the 26th of January, 1883, the plaintiff filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same. On the 13th of March, 1883, plaintiff's map of definite location was filed with, and approved by, the secretary of the interior. But we find nothing in the case to show that it was ever filed in the office of the register of the land office, as required by section 4, of the act. We will assume, however, that it was in fact filed there, and was thereafter forwarded to the secretary of the interior; it being undisputed that since March 13, 1883, it has been on file in his office. Defendant claims title to the land under a settlement made by him, as a pre-emptor, on the 23rd day of February, 1883,--more than two weeks before the map of definite location was approved by the secretary of the interior. It is undisputed that he is the fee owner of the quarter section of land across which plaintiff claims a right-of-way, he having received a patent therefor. The only contention on the part of the plaintiff is that his right as owner is subject to the plaintiff's rights under the act of 1875. Plaintiff does not claim that it is the fee owner of the strip of land involved, but only that it has an easement therein under the act of congress. Not having condemned or purchased such easement it must, of course, show that it has obtained the same under that act.
Defendant at the outset, lays down the broad proposition that, when the grant became operative as to the plaintiff, the land in question was no longer public land, because of the fact that there were then outstanding two pre-emption and one homestead filings against it. And in this connection he cites a number of decisions in support of the well established doctrine that in cases of land grants (not, however, for a right-of-way) the character of the land as public land is fixed by its condition at the moment the grant attaches, and that, therefore, if any portion of the grant has been previously segregated from the public domain by entry, it does not fall within the terms of the grant, even though such entry be thereafter abandoned or set aside. Railroad Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; Railway Co. v. Dunmeyer, 113 U.S. 629, 5 S.Ct. 566, 28 L.Ed. 1122; Bardon...
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