Johnson v. Spokane International Ry. Co.
| Decision Date | 31 December 1913 |
| Citation | 25 Idaho 379,137 P. 894 |
| Parties | JOHN F. JOHNSON, Respondent, v. SPOKANE INTERNATIONAL RY. CO., Appellant |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Eighth Judicial District for Bonner County. Hon. John M. Flynn, Judge.
Action to recover damages for a railway right of way. Judgment for plaintiff. Reversed.
Reversed and remanded, with directions. Costs awarded to the appellant.
Allen & Allen and H. H. Taylor, for Appellant.
Where a railroad company has complied with the right of way act by filing with the Secretary of the Interior a copy of its articles of incorporation and proofs of its organization under the same, and constructed a railroad over the land, it obtains a full and complete right of way under that act without the necessity of filing a profile or map as provided in sec. 4 of the act. (Jamestown & Northern R. Co. v Jones, 177 U.S. 125, 20 S.Ct. 568, 44 L.Ed. 698; Dakota Central R. R. Co. v. Downey, 8 Land Dec. 115.)
At the time the plaintiff filed upon the land the appellant with its employees was in full and complete possession of the right of way for 100 feet in width, and this actual possession was notice to all the world that the same was taken for railroad purposes and definitely fixed the line of the road over the land. (Lynch v. Lower Yakima Irr. Co. , 73 Wash 173, 131 P. 829.)
Any person settling upon the land between the termini of the road took it subject to any right of way which the company might thereafter construct the road upon, notwithstanding the fact that no definite line or map was filed showing the right of way. (St. Joseph & D. C. R. R. Co. v. Baldwin, 103 U.S. 426, 26 L.Ed. 578; Stuart v. Union P. R. Co., 227 U.S. 342, 33 S.Ct. 338, 57 L.Ed. 535.)
G. H. Martin, for Respondent.
There are just two methods by which a railway company may acquire its right of way across the public domain: one by filing the map provided for in section 4; the other by actual construction of the road. (Dakota Cent. R. R. Co. v. Downey, 8 Land Dec. 115; Jamestown etc. R. Co. v. Jones, 177 U.S. 125, 20 S.Ct. 568, 44 L.Ed. 698.)
Until the line of road is definitely fixed, either by the filing of the map or the actual construction of the road, it may be changed at the will of the railroad company. (Van Wyck v. Knevals, 106 U.S. 360, 1 S.Ct. 336, 27 L.Ed. 201.)
In this case it is held that "the route must be considered as definitely fixed when it has ceased to be the subject of change at the volition of the company. "
It is held in Sioux City etc. Land Co. v. Griffey, 143 U.S. 32, 12 S.Ct. 362, 36 L.Ed. 64, that the surveying and staking of the line does not definitely fix its location.
Under the act it requires either actual construction or the filing of the map provided for in sec. 4 of the act to vest the company with title to the right of way. (Denver etc. R. Co. v. Hanoum, 19 Colo. 162, 34 P. 838.)
A road is complete or constructed when that is done which is necessary to make it a railroad; that is to say, when it is made ready and put in proper condition for the placing and running of regular trains upon it, for its "operation" as it is usually termed. (De Graff v. St. Paul etc. R. Co., 23 Minn. 144.)
This action was brought to recover damages alleged to have been sustained by reason of the appellant railway company locating and constructing its line of railroad across 160 acres of land claimed by the respondent, situated in sec. 18, township 60 north, range 1 east, Boise meridian, in Bonner county.
It is alleged in the complaint that the respondent made his homestead entry on said land on April 16, 1906, and submitted his final proof in July, 1911, and obtained his patent for said land on November 20, 1911; that after respondent had made his homestead entry, the railway company, without his consent, entered upon his land and constructed its railroad across the same, and since its construction has been operating its trains over said line of road.
The complaint and amended complaint were not verified, and the answer of the defendant denies generally the allegations of the complaint, and by way of affirmative defense avers that it filed with the Secretary of the Interior a certified copy of its articles of incorporation and made due proof of its organization on May 3, 1905, as provided by the right of way act of Congress, approved March 3, 1875, and that in the fall of 1905, and before the plaintiff had made entry of said land as a homestead, and while said land was government land, the defendant entered upon said land, clearing its right of way to the extent of 100 feet wide and fully graded and constructed its road thereon, all of which was done and completed prior to April 16, 1906, the date respondent made his homestead entry for said land; that when respondent filed his homestead entry upon said land the defendant was in actual possession of said strip of land and was using the same for railroad purposes, and that appellant took possession of the right of way across said land, definitely surveyed and located its right of way thereon, cut and removed the timber from the right of way and constructed its road thereon prior to April 16, 1906, and also sets up the statute of limitations.
On the issues thus made the action was tried by the court with a jury and a verdict was rendered by the jury in favor of the respondent for $ 501.55, on which verdict a judgment was entered. A motion for a new trial was denied by the court, and the appeal is from the order denying the new trial.
Several errors are assigned, but the real question at issue is: Did the appellant corporation acquire a right of way over said land under the provisions of the act of Congress of March 3, 1875, before the respondent made his said homestead entry for the land?
It clearly appears from the evidence that the railroad company had definitely located its right of way across said land in 1905, and in the fall of that year cleared its said right of way of timber, the same being quite heavily timbered. It is stipulated that the defendant is, and ever since the year 1903 has been, a corporation duly organized and existing under the laws of the state of Washington, for the construction of a standard gauge railroad and for the common carriage of passengers from Spokane, Washington, through Bonner county, Idaho, to connect with the Canadian Pacific system at the state line, and that on June 3, 1905, it filed in the office of the Secretary of the Interior at Washington, D. C., a copy of its articles of incorporation and due proof of its organization, as required by said act of Congress granting to railroads a right of way through the public lands of the United States.
The evidence shows that in the summer of 1905, the defendant surveyed and located the central line of its railway through and over said lands of the plaintiff, and that said land so remained public land of the United States until April 16 1906, the date when plaintiff made his homestead entry, and that between the time of making said survey and the said entry...
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