St. Louis & San Francisco Railroad Co. v. Budd

• Decision Date: 16 March 1914
• Citation: 165 S.W. 265,112 Ark. 105
• Parties: ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. BUDD
• Court: Arkansas Supreme Court

165 S.W. 265

112 Ark. 105

ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. BUDD

Supreme Court of Arkansas

March 16, 1914

Appeal from Washington Circuit Court; J. S. Maples, Judge; affirmed.

Judgment affirmed.

W. F Evans and B. R. Davidson, for appellant.

1. If the railroad company in building its road across the tract of land in question, treated it as Government land, made a survey across the same and filed its map and articles of association with the Secretary of the Interior, filed its map in the General Land Office and in the local land office before the homesteader had obtained a patent for it, made no effort to purchase the right-of-way from the homesteader, or to condemn a right-of-way across the same, but treated it as a location and grant of right-of-way from the Government, and the homesteader made no objection and took no action to obtain damages for the same, and the railroad company was permitted to remain in possession of same for more than thirty years, then the United States statute regulating the width of the right-of-way would control, and appellant would be entitled to a right-of-way 200 feet wide. 1 Rev. Stat. U S. (2 ed.) 91, §§ 1, 4; 172 U.S. 171-184; 63 F 417-420; 50 Ark. 250; 51 Ark. 237; Id. 491.

Brown, who was the only person who could controvert the right of the railroad company to a right-of-way 100 feet wide on each side of its line, not only did not do so, but on the contrary recognized it when in executing his deed he conveyed subject to this right-of-way. 40 S.W. 104.

2. Appellee in purchasing that portion of the forty-acre tract lying west of the right-of-way, recognized the railroad company as owning such right-of-way, and can claim title only to that portion of the tract lying outside of the right-of-way.

And he, having accepted a lease from appellant for a period of years, for the portion of the right-of-way he now occupies, and having entered upon and used the same under said lease, can not now claim ownership thereof. 13 Ark. 385; 15 Ark. 102; 28 Ark. 153; 43 Ark. 28; 45 Ark. 177; 53 Ark. 532.

J. E. London and H. L. Pearson, for appellee.

The United States can not grant to a railroad company a right-of-way across any public lands to which any person has a valid claim, whether such claim afterward ripens into title or not. 92 U.S. 761; 104 U.S. 329; 1 P. 319; 27 N.W. 69; 15 N.W. 317. A grant to a railroad company by an act of Congress of a right-of-way over public lands, does not include lands which at the time of the grant are subject to an existing uncancelled homestead entry. 26 Utah 179; 72 P. 931; 120 N.W. 875; 76 N.W. 227.

OPINION

MCCULLOCH, C. J.

This controversy involves the title and right of occupancy of a strip of land, 100 feet wide, constituting a part of northeast quarter of section 25, township 14 north, range 30 west, running parallel with appellant's railroad and claimed as a part of the right-of-way.

Appellee Budd is the owner of that part of said quarter section which embraces the strip in controversy, and occupies it, claiming ownership.

This is an action instituted by appellant against him to recover possession.

The case was tried before the court sitting as a jury upon an agreed statement, in writing, of the facts, and other testimony, oral and documentary.

Appellant's predecessor, the Missouri, Arkansas & Southern Railway Company, was incorporated in the year 1881, and filed its map of survey, copy of articles of incorporation, etc., with the Secretary of the Interior of the United States. It claims the strip of land in controversy under the act of Congress of March 3, 1875, granting a right-of-way through the public lands 100 feet wide on either side of the center line of the railroad.

The quarter-section of land in controversy was entered as a homestead by one James W. Brown in the year 1877. He filed his homestead claim in the United States Land Office and subsequently complied with the homestead law and made final proof and received his patent in the year 1883. Appellee claims title to his part of said quarter-section under mesne conveyances from Brown and now asserts title and right of occupancy of the strip in controversy under the homestead entry of Brown.

The trial court found that appellant was entitled to a strip of land 100 feet wide, being fifty feet on each side of the center of the track, but refused to find in favor of appellant, as requested, that the latter was entitled to a right-of-way of 200 feet, being 100 feet in width on each side of the center of the track.

The first question presented relates to the priority of the conflicting claims, whether the appellant is entitled to the right-of-way under the act of March 3, 1875, or whether the homestead entry of Brown was superior.

It seems clear, under the decisions of the Supreme Court of the United...