Lewis v. Rio Grande W. Ry. Co.

• Decision Date: 08 October 1898
• Citation: 54 P. 981,17 Utah 504
• Court: Utah Supreme Court
• Parties: JOHN S. LEWIS, RESPONDENT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

54 P. 981

17 Utah 504

JOHN S. LEWIS, RESPONDENT, v. THE RIO GRANDE WESTERN RAILWAY COMPANY, APPELLANT

Supreme Court of Utah

October 8, 1898

Appeal from the fourth district court, Utah county, Hon. Warren N Dusenberry, Judge.

Action by John S. Lewis against the Rio Grande Western Railway Company, in ejectment, for a strip of land used by defendant company as a right of way. Judgment for plaintiff for the recovery of the land, and a certain sum for mesne profits. Defendant appeals.

Reversed and remanded.

Messrs Bennett, Harkness, Howat, Bradley and Richards and Thurman and Wedgewood, for appellant.

The construction of a railroad is one act, though covering a period of time, providing the work is prosecuted in good faith and with reasonable diligence. On March 20, 1879, the legal title to the easement vested, and from that time the grant was complete and the title and possession were united. Railway Co. v. Alling, 99 U.S. 463.

The respondent entered May 1, 1878. At that time, and until 1885 he was a mere licensee of the government, authorized only to enter upon unoccupied land, and with no present right to acquire any interest in the land Frisby v. Whitney, 9 Wall. 187; Yosemite Case, 15 Wall. 77; Buxton v. Traver, 130 U.S. 232.

Respondent's purchase of the improvements of prior occupants was after the final survey of 1877, and could not give him any prior right. Sproat v. Durland, 35 P. 682; Quimby v. Conlan, 104 U.S. 420.

If appellant was not in fact the prior occupant of the strip, it became so by relation and by perfecting the grant March 20, 1879, and while the respondent was a mere licensee, without any interest in the land. Kinion v. K. C. etc. Ry., 24 S.W. 636.

The appellant claims, under the grant of congress, which makes no provision for a patent, and in such case no patent is necessary. Lumber Co. v. Rust, 168 U.S. 592; Shaw v. Kellogg, 18 S.Ct. R. 640.

There is nothing in the condition of the act of congress which can give any relation to the respondent's patent. Washington & I. Ry. Co. v. Osborne. 160 U.S. 103 R. S. Utah, sec. 1967 and sec. 3513

If Lewis was in fact the prior occupant, had he sued for damages, he could have recovered. 158 U.S. 10-11; 87 F. 648.

J. W. N. Whitecotton, Esq., for respondent.

The statute of limitations did not begin to run against respondent till the patent issued. Steele v. Boley, 7 Utah 54; Redfield v. Parks, 132 U.S. 239.

Respondent contends that his case is the same as that of Osborne, in 160 U.S. 103. The respondent contends that the patent in the act of ejectment for lands derived from the United States, when regular on its face, is conclusive evidence of title in the patentee. Gibson v. Chateau, 13 Wall. 92; Ferry v. Street, 4 Utah 521; Steele v. Smelting Co., 106 U.S. 454.

Bartch, J., delivered the opinion of the court. ZANE, C. J., and MINER, J., concurring.

OPINION

Bartch, J.

The plaintiff brought this suit in ejectment for a strip of land used by the defendant railway company as a right of way for the purposes of its railroad, and at the trial obtained judgment for the recovery of the land, and a certain sum for mesne profits.

The agreed and admitted facts are, in substance, as follows: The strip of land in question forms a part of the E. 1/2 of the S.W. 1/4, and the W. 1/2 of the S. E. 1/4 of sec. 2, T. 10, S. of R. 5 East, Salt Lake Meridian. These government subdivisions constituted the respondent's preemption or homestead claim, being the same lands for which he received a patent from the United States. They were unsurveyed lands until December 11, 1884, when, with other adjoining tracts, they were surveyed, and the survey approved March 12, 1885, and filed in the Utah land office, June 30, 1885. The plaintiff, in "November, 1877, bought certain improvements made by parties who had occupied the lands in summer for dairy purposes," and, about May 1, 1878, moved, with his family, on to the quarter section, of which the strip of land in dispute forms a part with intent to pre-empt the same and acquire title thereto when surveyed, and, except as to the land in dispute, has occupied the same ever since, and, after it was surveyed, filed, on August 7, 1885, his pre-emption claim. The United States patent therefor was issued to him on July 3, 1890, and it contains no exception of a right of way for a railroad, or of railroad rights.

The Utah & Pleasant Valley Railway Company, of which defendant company is a successor, was duly organized on December 11, 1875, and its articles of incorporation properly filed on the same day. The termini of its authorized line of route were Provo and Pleasant Valley, its line extending a distance of fifty miles, and over the disputed premises. In 1876, that company made a preliminary survey of its line from Springville to and over the demanded strip, and marked the line with numbered stakes at the angles, but the curves were not put in or marked on the ground. In 1877, and before November, the survey and location were completed from Springville to, over and beyond the strip in question, the curves were put in, the cuts and fills marked, brush cut wherever it appeared on the line, and grading was done on the line from Springville toward the mouth of Spanish Fork canyon. In 1878, the location of the remainder of the line was completed, and the grading finished from Springville to the land in dispute, and in 1879, the railroad was completed from Springville to Pleasant Valley, a distance of forty-six miles. The railway company, under the act of congress of March 3, 1875, filed with the secretary of the interior its articles of incorporation and proofs of its organization, and they were approved March 20, 1879. A map and profile of the line of route over the strip in question were approved by the secretary of the interior December 22, 1881. The title was traced from the Utah & Pleasant Valley Railway Company, through foreclosure proceedings, to one Spackman, from him to the Denver & Rio Grande Western Railway Company, and from it to the appellant, it having obtained it in June, 1889. The demanded premises were fenced, and, since 1879, have been continuously occupied as a right of way, for a railroad operated thereon, by the appellant and its predecessors in title. Both parties have paid taxes, the respondent on the quarter section, the appellant and its predecessors on the line of railroad.

This appeal is from the judgment.

Bartch, J., after stating the case as above, delivered the opinion of the court.

The appellant contends that in fact, as well as by legal relation, it was the first occupant of the strip of land in controversy; that the strip was appropriated as a right of way for its railroad under the act of congress of July 3, 1875; and that it acquired title to at least an easement therein before the respondent obtained any interest in the land.

In the first section of the act of congress mentioned (18 U.S. Stat. at Large, p. 482) it is provided: "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, * * * 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."

This is an express provision for the granting of rights of way to railroad corporations, over the public lands of the United States. The terms imposed upon any railroad company, to secure the benefits of the act, are that such company must have been duly organized under the laws of a state or territory, and that its articles of incorporation, and due proofs of its organization thereunder, have been filed with the secretary of the interior. In the case at bar, it is admitted that the Utah & Pleasant Valley Railway Company, predecessor of the appellant, was duly organized under the laws of the territory of Utah, on December 11, 1875; that under the act of congress, referred to, it filed a copy of its articles of incorporation and due proofs of its organization under the same; and that the same were approved by the secretary of the interior on the 20th of March, 1879.

The railroad company was thus...