Southern Pac. Co. v. City of Reno

• Decision Date: 04 April 1919
• Docket Number: A-52.
• Citation: 257 F. 450
• Parties: SOUTHERN PAC. CO. et al. v. CITY OF RENO.
• Court: U.S. District Court — District of Nevada

257 F. 450

SOUTHERN PAC. CO. et al. v. CITY OF RENO.

No. A-52.

United States District Court, D. Nevada.

April 4, 1919

This is a suit to quiet title to a tract of land situated in the city of Reno, Nev., between Plaza street and the railroad tracks and extending from Virginia street to Sierra street. It is 300 feet long by 92 feet wide, and within 200 feet from the center of plaintiffs' railroad tracks as originally placed With reference to the government surveys, it is in the S.W. 1/4 of the N.E. 1/4 of section 11, township 19 N., range 19 E.M.D.B. & M.

The railroad was constructed as contemplated by Act July 1, 1862 (12 Stat. 489, c. 120), and on the 8th day of June, 1868 that portion of it adjacent to the tract of land in dispute had been approved, and was finally accepted by the United States government. July 18, 1863, the government surveys covering the territory later occupied by the town site of Reno, were completed, and on the 1st day of March of the following year the official plat was filed in the United States land office at Carson, Nev. Two days later, March 3 1864, Myron Lake filed in the same office a declaratory statement, in which he alleged that on April 22, 1861, he settled and improved the S.W. 1/4 of the N.E. 1/4, and lots 1, 2, 3, 4, and 8 of section 11, in township 19 N., range 19 E., and also declared his intention to claim the land as a pre-emption right under Act Sept. 4, 1841. A receiver's certificate was issued to him August 3, 1864, and a United States patent August 10, 1865. Prior to 1865 Lake had no improvements of any kind in the N.E. 1/4 of section 11. His fences, buildings, and cultivation, with the exception of the north end of the bridge across the Truckee river, were all on the south side of that stream, and in the south half of the section.

In Book A of Surveys, page 93, in the recorder's office of Washoe county, appear the records, plat, and field notes of survey of a possessory claim filed for record February 3, 1863, and numbered 88. The survey shows Lake's improvements, and covers 203 1/2 acres of land lying on both sides of the river. The north boundary line of the claim at all points is more than 200 feet south of plaintiffs' railroad, and still further south of the land in controversy. This survey purports to have been made for Myron Lake by the county surveyor. His certificate attached thereto complies with the provisions of an act of the territorial Legislature regulating surveyors and surveying, approved November 29 1861 (Laws Nev. 1861, p. 267). By that statute the county surveyor was required to execute any survey upon application of any individual or corporation, to keep a correct record thereof, and to make a certificate of such survey describing the tract and the number of acres contained. The certificate after the date of record, was evidence of possession for one year, and legal evidence in any court of the territory.

By deed dated March 27, 1868, Myron Lake conveyed the S. 1/2 of the N.E. 1/4, and the fractional lots lying north of the Truckee river in the N. 1/2 of the S.E. 1/4, all in section 11, to Charles Crocker. August 1, 1868, a map of the town of Reno was filed in the office of the county clerk of Washoe county. On this map the lands conveyed by Lake to Crocker were subdivided into lots and blocks, intersected by streets and alleys. One tract was left open and marked 'Plaza.' The parcel of land in controversy constitutes the west end of the Plaza. June 27, 1871, a second map of the town of Reno was filed in the office of the county recorder. This map differs from the first, in that the serial numbers of several blocks are changed. These are the only township maps of Reno in evidence.

From May 9, 1868, Crocker sold lots by reference to 'the official map of said town. ' All his conveyances of real estate, situated within the territory covered by these maps, refer to no lots, blocks, or alleys, by number, letter, or name, which do not have a corresponding number, letter, or name on the township maps. The tract in controversy, since the first maps were filed, has remained open and uninclosed. According to the plats the main Plaza extends along the north side of the railroad track for a distance of four blocks, about 1,450 feet, and from Sierra street to Peavine street. The freight sheds, platforms, and warehouses in a continuous line extend along the south side of the tract and the north side of the railroad for a distance of more than 1,100 feet, and along the south side of the tract in controversy for more than two-thirds its length. The warehouses, three in number, are about 50 feet wide, and have an aggregate length of about 600 feet. Hereafter in this opinion the land in controversy will be termed the Plaza.

The Plaza was used in early days by teamsters hauling freight to and from the railroad, and from the warehouse of D.W. Earl & Co. It is in testimony that the teamsters also used this as a camping ground. Shows, public meetings, and carnivals were held there, and as early as 1873 the town authorities granted permits for the use of the tract by private individuals. In 1907, by ordinance, the city provided that all open-air meetings should be held on the Plaza. The railroad company also granted and refused applications to use the ground. John Fulton, agent of the company at Reno from 1907 to 1912, testifies that the company, so far as he knew, took exclusive control of the Plaza, and used it for railroad purposes, such as spotting cars, unloading freight, and storing merchandise. He knew of no divided authority over the Plaza by the city and the company. From 1870 to 1899, the authorities at Reno maintained a fire house in the northeast corner of the tract, for which they paid a rental of $5 per year to the railroad company. In 1908 one-half the cost of paving the streets bounding the Plaza, amounting to $5,992.65, was assessed by the city to, and paid by, the railroad company. March 14, 1916, the authorities of Reno caused the Plaza to be plowed up for the purpose of parking and beautifying it as the property of the city. It is admitted that such a park will effectually prevent the railroad company from in any manner enjoying the use and possession of the tract.

Brown & Belford, of Reno, Nev., for plaintiffs.

Lester D. Summerfield, City Atty., of Reno, Nev., for defendant.

FARRINGTON, District Judge (after stating the facts as above).

The city of Reno contends that Myron Lake's pre-emption claim attached to the land in controversy before the right of way grant was made, and that Charles Crocker, having acquired Lake's title, sold a large number of town lots in Reno during the years immediately following 1866, by reference to an official map or maps then on file in the offices of the county clerk or county recorder of Washoe county; that Crocker caused these maps to be made and filed; on them there is an open space, marked 'Plaza,' extending along the north side of the railroad company's tracks, freight platforms, sheds, and warehouses; and that this constituted a valid common-law dedication.

No issue is raised as to whether plowing the tract and converting it into a park is consistent with or destructive of the public use for which the alleged dedication was originally designed. It is hardly possible that Crocker in this instance intended that the Plaza, or any part of it, should be converted into a park, and that the public should thus be shut off, wholly or partially, from access to the railroad, or that the open space, so convenient for receiving and delivering freight, should become a barrier against such activities. It is sufficient to say, in passing, that a dedication for one purpose does not necessarily justify use for another. Riverside v. Maclean, 210 Ill. 308, 71 N.E. 408, 66 L.R.A. 288, 102 Am.St.Rep. 164; Sachs v. Towanda, 79 Ill.App. 439; Hopkinsville v. Jarrett, 156 Ky. 777, 162 S.W. 85, 50 L.R.A. (N.S.) 465; Church v. Portland, 18 Or. 73, 22 P. 528, 6 L.R.A. 259; 7 Am. & Eng.Ency.L. 73.

Plaintiffs contend that the Plaza never was private property, but that it is a part of the right of way granted by the government of the United States in an act entitled 'An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean, and to secure to the government the use of the same for postal, military and other purposes,' approved July 1, 1862. 12 Stat.p. 489.

If this contention is meritorious, the Plaza, since the date of the act, could not in any manner, or for any kind of use, public or private, be alienated, dedicated, or otherwise disposed of without the consent and approval of Congress, because it had already been dedicated by the government itself to a use then deemed essential to the national prosperity and safety. The provision of the act granting the right of way is as follows:

'Sec. 2. And be it further enacted, that the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; * * * said right of way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad where it may pass over the public lands, including all necessary grounds for stations, buildings, workshops and depots, machine shops, switches, side tracks, turntables, and water stations. The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required in said right of way and grants hereinafter made.'

The provisions of section 3 of the act, which will be considered in construing section 2, are as follows:

'Sec. 3. And be it further enacted, that there be, and is hereby, granted to the said company, for the

...