Van Dyke v. Arizona Eastern Co

• Citation: 248 U.S. 49,63 L.Ed. 119,39 S.Ct. 29
• Decision Date: 09 December 1918
• Docket Number: No. 59,59
• Parties: VAN DYKE et al. v. ARIZONA EASTERN R. CO
• Court: United States Supreme Court

248 U.S. 49

39 S.Ct. 29

63 L.Ed. 119

VAN DYKE et al.

v ARIZONA EASTERN R. CO.

No. 59.

Argued Nov. 19, 1918.

Decided Dec. 9, 1918.

Messrs. Richard E. Sloan, of Phoenix, Ariz., and William C. Prentiss, of Washington, D. C., for plaintiffs in error.

Messrs. Charles L. Rawlins, of Globe, Ariz., and Eugene S. Ives, of Tucson, Ariz., for defendant in error.

Mr. Justice McKENNA delivered the opinion of the Court.

Error to review a judgment of affirmance of a judgment rendered in the Superior Court of Gila County, Arizona, quieting the title of the Railroad Company to 2.23 acres of land in the N. W. 1/4 of the S. E. 1/4, Sec. 30, T. 1 N., R. 15 E., Gila County Arizona.

The trial court made findings of fact which were concurred in by the Supreme Court. 18 Ariz. 220, 157 Pac. 1019. And we see no reason for not accepting them, notwithstanding plaintiffs in error urge a review of them. They are as follows:

The railroad, as the successor of the Gila Valley Globe & Northern Railway Company, acquired its rights, including rights of way and all other assets. In March, 1906, the latter company platted a line of railroad from Globe to Miami, Arizona, about nine miles in length, passing over and across certain public land, and, November 5, 1908, filed in the local land office its map or profile of definite location as provided by the Act of Congress of March 3, 1875. Prior to that time the land covered by the map as well as the land in dispute was thrown into the Crook National Forest Reserve. April 16, 1909, written application to the United States Department of Agriculture, Forest Service, with map of right of way attached, was made by the railroad to enter and extend its line across a portion of the forest reserve. The railroad was given permission on July 6, 1909, to enter the reservation and to locate and construct its road therein. The map and profile of its road was approved September 21, 1909, by the Secretary of the Interior in accordance with the act of Congress.

In April, 1909, the Globe Company commenced the construction of its road and completed it in September of that year, and it and the appellee company have operated trains ever since October, 1909. Before construction was commenced, to wit, in November and December, 1908 the Globe Company amended its line of survey and changed the course of its road upon and across the land in dispute and along its entire length to the extent of 100 feet in width on each side of the center line of its railroad and constructed its road on the amended location conforming on the ground to the staked and marked line.

At the time of the amended location the land was held by the Miami Land & Improvement Company, a corporation, as mineral land and the Globe Company accepted a deed from it to a right of way across the land. By executive order the land in dispute was restored to the public domain December 22, 1909, on which date appellant, Cleve Van Dyke, filed upon the same under the homestead law. He had theretofore accepted it under an option to purchase as a mineral location from the Miami Improvement Company. On that date he went off the land, but immediately returned and established his residence with a view to homesteading. In due course he made final proof and on February 12, 1912, a patent without any reservation was issued to him for his homestead.

December 30, 1909, the Globe Company filed its amended map and profile of its right of way in the local land office which was regularly and duly approved March 4, 1911.

Van Dyke attempted to show that he had established residence upon the land prior to December 22, 1909, the date upon which he filed his homestead entry. But it is clear that he did not go upon the land prior to its inclusion in the Forest Reserve. He was upon the land under the option to purchase mentioned and he attempted to show that he was there under a verbal permit from the Forest Supervisor with the intention of entering the land as a homestead and that he made application to the Forestry Department for an examination and listing thereof under the Act of June 11, 1906; application, however, was rejected.

That he did not rely upon the settlement prior to December 22, 1909, is clearly shown by his testimony. He said:

'It is a fact that about midnight on the 22d of December, 1909, I took up residence in the house testified to. That is, I went off the ground and back on again at midnight.'

December 22d was the first time the land could have been settled upon without permission from the national government, and this permission he did not obtain.

Upon these facts the Supreme Court said certain contentions arose: (1) It is that of the railroad that its rights were fixed and established in August and September, 1909, when it completed the construction of its railroad. (2) Opposing, plaintiffs in error assert that because the railroad changed its route as located by its original map and profile approved by the Secretary of the Interior it acquired no rights until it filed with the local land office on December 30, 1909, its amended map of location, which was too late; Van Dyke having taken the land as...