Van Kirk Land & Construction Co. v. Green

• Decision Date: 05 February 1902
• Citation: 31 So. 484,132 Ala. 348
• Court: Alabama Supreme Court
• Parties: VAN KIRK LAND & CONSTRUCTION CO. v. GREEN.

31 So. 484

132 Ala. 348

VAN KIRK LAND & CONSTRUCTION CO. v. GREEN.

Supreme Court of Alabama

February 5, 1902

Appeal from circuit court, Pike county; John P. Hubbard, Judge.

Action by the Van Kirk Land & Construction Company against William S. Green. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Geo. F Moore and Gordon Macdonald, for appellant.

Asa E Stratton, D. A. Baker, and T. L. Borom, for appellee.

DOWDELL J.

This cause was tried upon an agreed statement of facts. Based upon this agreed statement of facts, the general charge requested in writing was refused to the plaintiff and given for the defendant.

The land in question was embraced in the grant of the United States government to the Mobile & Girard Railroad Company in the act of congress of June 3, 1856, and the agreed statement of facts shows that the grant was duly accepted by the state of Alabama as trustee, in accordance with the terms and provisions of said act of congress making the grant; that the line of said railroad company was duly laid out and located and that prior to January 1, 1890, 84 miles of said railroad, from Girard to Troy, Ala., had been constructed and was in operation. It is further shown that the land in controversy was opposite to and coterminous with the 84 miles which had been constructed and in operation, though not opposite to and coterminous with the first 20 miles of said road. And it is further shown that said railroad, as constructed, was also in operation on the 29th day of September, 1890, the date of the act of congress commonly known as the "Forfeiture Act," and that in June, 1890, the Mobile & Girard Railroad Company by deed conveyed said land to the plaintiff; and on this title the plaintiff relied for a recovery. The defendant, for recovery, relied upon a certificate of homestead entry issued to him from the land office at Montgomery, Ala., in the year 1893, and further claimed that under and by virtue of the act of congress approved September 29, 1890, the land in question was forfeited to the government, and was restored to the public domain and made subject to homestead entry. It is further contended by the appellee that, under said forfeiture act of congress, in the allotment of the lands made to the Mobile & Girard Railroad Company by the land commissioner, and approved by the secretary of the interior, as the land in question was not embraced in such allotment, the same became thereby forfeited to the government, and restored to the public domain.

These several acts of congress relating to the original grant, and to the forfeiture of lands under said grant, have been heretofore under consideration, both by the supreme court of the United States and this court. It has been definitely settled that by the act of June 3, 1856, the title to the lands passed in præsenti, and the conditions expressed in them were conditions subsequent and not precedent, and that a forfeiture could only be worked by direct legislative action or judicial proceedings. U.S. v. Tennessee & C. R Co., 176 U.S. 242, 20 S.Ct. 370, 44...