Kinion v. Kansas City, Ft. S. & M. R. Co.

• Citation: 118 Mo. 577,24 S.W. 636
• Court: United States State Supreme Court of Missouri
• Decision Date: 11 December 1893
• Parties: KINION v. KANSAS CITY, FT. S. & M. R. CO.

24 S.W. 636

118 Mo. 577

KINION v. KANSAS CITY, FT. S. & M. R. CO.

Supreme Court of Missouri, Division No. 1.

December 11, 1893.

PUBLIC LANDS — GRANT OF RAILROAD RIGHT OF WAY — EFFECT ON HOMESTEAD ENTRY.

1. Act Cong. March 3, 1875, § 4, gives a right of way over the public lands of the United States to any railroad company that, within 12 months after the location of a certain part of its road, shall file with the register of the land office for the district where such land is located a profile of its road; and provides that after the approval of the profile by the secretary of the interior all lands over which the right of way shall pass shall be disposed of subject to such right of way. Held, that a railroad company that made a location of its line in August, 1881, and had its profile approved by the secretary of the interior June 17, 1882, takes a title to such right of way superior to that acquired by one who, with knowledge of the location of the road, made a homestead entry on January 13, 1882, of land embracing the right of way, even though the railroad company did not file its profile with the register of the local land office. Barclay, J., dissenting.

2. Rev. St. U. S. § 2288, giving a homestead occupant the right to convey a railroad right of way across the homestead before his title thereto is perfected, has no application to the case of a homesteader who was not an occupant at the time of the location of the road, but who became such before the approval of the railroad company's profile of the location of its line by the secretary of the interior.

Appeal from circuit court, Howell county; Joseph Cravens, Judge.

Ejectment by B. J. Kinion against the Kansas City, Ft. Scott & Memphis Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Wallace Pratt, I. P. Dana, and Olden & Orr, for appellant. Jas. Orchard, for respondent.

BLACK, C. J.

Plaintiff commenced this action of ejectment in the Howell county circuit court in 1891 to recover 80 acres of land, alleging an ouster in March, 1882. The defendant admitted possession of a strip 100 feet in width across one corner of the land, the strip containing 3½ acres; but denied possession and disclaimed as to all the balance of the land described in the petition. On the trial the parties made the following admissions: The land described in the petition was government land in 1881. The Kansas City, Springfield & Memphis Railroad Company, a corporation organized under the laws of this state, made its preliminary survey over the land in April, 1881, and in August, 1881, made a definite location of its line, and then cleared out the right of way, and commenced the construction of the road. The articles of incorporation of the company were approved by the secretary of the interior on the 15th February, 1882, who also approved the map of definite location crossing the land in question on the 17th June, 1882. The above-named company completed its road in 1882, and continued to own the same until the year 1888, when the road was transferred to the defendant railroad company. Kinion, the plaintiff, settled on the 80 acres in February, 1881, made a homestead entry on the 13th January, 1882, and made final proof on the 25th October, 1888. The patent to him, as we understand the record, makes no mention of an exception of this right of way. The proof in the case is clear that the plaintiff knew the railroad company had located its line of road over the land when he made his homestead entry. The defendant claims the right of way under the act of congress of March 3, 1875. The first section of that act provides "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, * * * which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proof of its organization under the same, to the extent of one hundred feet on each side of the central line of said road." And the fourth section is in these words: "That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the secretary of the interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way. Provided: that if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road." Although the plaintiff settled upon the land in February, 1881, still be acquired no right thereto as against the United States, or any one claiming under the United States, until he made his homestead entry, on the the 13th January, 1882. All this he concedes. But his claim is this: That the railroad company acquired no rights, and was a trespasser, until the 17th June, 1882, when the profile plat was approved by the secretary of the interior. To this contention of the plaintiff we do not agree. The act of congress operated as a grant of the right of way to the company, and the grant took effect from the date of the acceptance of the provisions thereof in the manner pointed out by the act. According to the fourth section, a company desiring to secure the benefits thereof must take the following steps: First. It must locate the road; and it necessarily follows that the company has the right to go upon the public lands for the purpose of making the location, and in doing so it is not a trespasser. Second. The company is required to file a profile plat, within 12 months thereafter, with the register of the local land office. It is then provided that, upon the approval of the profile by the secretary of the interior, the same shall be noted upon the plats in the land office; and thereafter the land over which the right of way is located shall be disposed of subject to the right of way. Now, it is conceded that the company took the first step to accept the provisions of this act, and this, too, long prior to the time the plaintiff made his homestead entry. While it does not appear that the company ever filed a profile plat with the register of the local land office, still it does appear, and is a conceded fact, that the company made a profile plat, and this plat was duly approved by the secretary of the interior, and this was done within the 12 months within which the profile should have been filed with the register of the local land office. The approval of the profile plat seems to be made the final act perfecting the company's claim to the right of way. As this act was performed, and that, too, within the time allowed by the...