Northern P. Ry. Co. v. Smith

• Decision Date: 30 December 1921
• Docket Number: 4562.
• Parties: NORTHERN PAC. RY. CO. v. SMITH.
• Court: Montana Supreme Court

203 P. 503

62 Mont. 108

NORTHERN PAC. RY. CO. v. SMITH.

No. 4562.

Supreme Court of Montana

December 30, 1921

Appeal from District Court, Prairie County; C. C. Hurley, Judge.

Action by the Northern Pacific Railway Company against John Smith. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed and remanded, with directions.

Gunn Rasch & Hall, of Helena, for appellant.

Joseph C. Tope, of Terry, for respondent.

BRANTLY C.J.

Action in ejectment. After the issues were made up, the cause was submitted to the court without a jury upon an agreed statement of facts, the substance of which is the following:

Section 15, township 14 north of range 46 east of the Montana principal meridian in Prairie county, Mont., the land described in the complaint, is an odd-numbered section within the limits of the primary grant of land made to the Northern Pacific Railroad Company, the predecessor in interest of the plaintiff, by the act of Congress of June 2, 1864. Patent for the section was issued by the United States to the plaintiff on June 10, 1913. The government survey in the field of the township and section was made in May, 1909, and the official plat of the survey was approved by the United States Surveyor General of Montana on January 12, 1912. The plat was approved by the Commissioner of the General Land Office of the United States on August 14, 1912, and was filed in the United States Land Office at Miles City, Mont., the office of the district within which the section is situated, on November 15, 1912. At the time of the commencement of this action, in July 1917, the defendant had been in the possession of the section for more than 10 years, a sufficient time to acquire title by prescription if his possession could operate as adverse possession against the plaintiff prior to the survey and identification of the section by the approval of the official plat of the survey in 1912. The court decided in favor of the defendant, holding that he had "acquired title to the land in question by adverse possession and had absolute title thereto as against the plaintiff." Plaintiff moved for a new trial. The motion was denied. The cause is before this court upon appeals from the judgment and the order denying the motion.

By section 3 of the act of July 2, 1864 (13 Stat. at Large, p 365), the Congress granted to the Northern Pacific Railroad Company, its successors and assigns, in aid of the construction of its railroad, "every alternate section of public land, not mineral, designated by odd numbers to the extent of twenty (20) alternate sections per mile on each side of said railroad line as said company may adopt," and by section 6 made it the duty of the President of the United States to cause "the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad."

As disclosed by his written opinion, which we find incorporated in the record, the district judge adopted the view announced by the courts generally, which have considered grants by the federal government in aid of railroads similar to the one made to the Northern Pacific Railroad Company, that they were grants in præsenti, but that they were floats, and did not attach to any part of the public domain until the routes selected by the several grantees were definitely located. He held further that, after the route of the plaintiff road was definitely located, and while any of the lands within its boundaries remained unsurveyed, an intruder entering upon any unsurveyed portion thereof which was thereafter shown by an authorized survey to be the property of the plaintiff could not, by his occupancy, acquire title to it by adverse possession. He also held, however, that, though this is so when the land so occupied is surveyed, the plaintiff's title reverts to the date of the grant, and the title of the adverse holder or occupant runs from the date at which his tenure began. Accordingly he concluded that the defendant had acquired title to the land in question by adverse possession. The determinative question presented in this case, then, is whether the statute of the state of Montana providing for the acquisition of the title to land by adverse possession became operative before the segregation of the particular tracts or sections granted from the public domain and their identification by the approval of the government survey. It is apparent that the land in question was not segregated from the public domain and identified as an odd-numbered section, subject to the terms of the grant, until the approval of the official plat in 1912. In fact, there was no section 15, the one involved herein, until the survey had been completed and approved.

The operation of the grant was considered by the territorial Supreme Court of Montana in several cases, namely, Northern Pacific R. R. Co. v. Majors, 5 Mont. 111, 2 P. 322, Northern Pacific R. R. Co. v. Lilly, 6 Mont. 66, 9 P. 116, and United States v. Godwin, 7 Mont. 402, 16 P. 850. While in all of these cases it was held that the grant of Congress was in præsenti, in none of them was it held that the definite location of the route was in itself sufficient to give title to the railroad company to any particular portion of the lands included therein, until the survey required by section 6 of the act had been completed and approved. In the first of these cases, after examining a great number of decisions by the Supreme Court of the United States, the court said:

"These decisions also determine for us (where the act itself does not indicate the particular lands granted, but leaves their location to be specified in the future) when such a grant shall attach to the particular tracts, and become fixed and certain, until which it is a float, which in this case would be when the line of the road is definitely fixed, and the lands granted thereto ascertained. This is necessary to be done to give precision to the grant and attach it to the particular tracts of land. When such line is definitely fixed, and the sections of land designated by the survey, the grant then becomes certain, and, by relation, has the same effect upon the lands thus designated as if they were specifically described therein. Therefore we must conclude, now having in view simply sections 3 and 6 of the act in question, that the grant takes effect as of date of the act, and becomes attached to the specific tracts when definitely ascertained by the location of the route of the road and the survey of the lands."

It was said by the Supreme Court of the United States in Maguire v. Tyler, 8 Wall. 650, 19 L.Ed. 320:

"Where the documentary evidences of title produced by the claimant contain no sufficient lines or boundaries to show that any definite and distinct parcel of land was severed from the public domain, the universal rule as settled by repeated decisions of this court is that the concession in such a case creates no right of private property in any particular tract of land which can be maintained in a court of justice without an antecedent survey and location. * * * Several cases determine that, where there is a specific tract of land confirmed according to ascertained boundaries, the legal effect of the confirmation is to establish the right and locate the claim, but where the claim has no certain limits, and the decree of confirmation carries along with it the condition that the land must be surveyed, and severed from the public domain and the concessions of other parties, then it is beyond controversy that the title of the claimant, although confirmed, attaches to no land, nor has a court of justice any authority in law to ascertain and establish the boundaries, as that power is reserved either to the executive department or to Congress."

So in the case of Middleton v. Low, 30 Cal. 596, the Supreme Court of California in considering the question of a selection of lands in lieu of the sixteenth and...