Oregon Short Line Railroad v. Quigley , 10 Idaho 770 ( 1905 )

AILSHIE, J.

(After Making Statement of Facts.) — The first question presented for our consideration is: Were the lands in dispute, on June 20, 1878, public lands of the United States over which Congress had the power to make such disposition as it saw fit by legislative grant? In this connection it should be remembered that up to that date the settlers, Quigley and Hendricks had performed no act by which to initiate an inchoate right except that of' settlement upon the lands. The power of Congress over the public lands is plenary so long as title thereto remains in the government and no right of property therein has vested in another. (Northern Pac. R. R. Co. v. Smith, 171 U. S. 268, 18 Sup. Ct. Rep. 794, 43 L. ed. 160; Norton v. Evans, 82 Fed. 806, 27 C. C. A. 168; Frisbie v. Whitney, 9 Wall. 187, 19 L. ed. 668; The Yosemite Valley Case, 15 Wall. 77, 21 L. ed. 82; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. Rep. 9, 33 L. ed. 240; Buxton v. Traver, 130 U. S. 232, 9 Sup. Ct. Rep. 509, 32 L. ed. 920.)

It appears to have been uniformly held by the federal courts that an entry in the proper land office does not create any vested right in the entrymen as against the United States, and that Congress may by subsequent legislation dispose of the land to anyone, notwithstanding such entry. (King v. M'Andrews, 111 Fed. 871, 50 C. C. A. 29; Norton v. Evans, supra; Northern Pac. R. R. Co. v. Smith, supra; Frisbie v. Whitney, 9 Wall. 187-196, 19 L. ed. 668; Wagstaff v. Collins, 97 Fed. 3, 38 C. C. A. 19; Campbell v. Wade, supra; Shiver v. United States, 159 U. S. 491, 16 Sup. Ct. Rep. 54, 40 L. ed. 231; Southern Pac. Co. v. Burr, 86 Cal. 279, 24 Pac. 1032.) In the light of these authorities there is no room for doubt but that Congress had unrestricted power of disposition over these lands on June 20, 1878.

Of course, while it is the rule that no vested right is acquired as against the United States until all the prerequisites for acquirement of title have been complied .with, it still remains true that parties may as against each other acquire a preference right to take title to the public lands, and in all such cases the first in time is first in right. (Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. Rep. 406, 39 L. ed. 526; Northern Pac. R. R. Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. Rep. 98, 41 L. ed. 480; Frisbie v. Whitney, supra; The Yosemite Valley Case, supra.)

In the consideration of this question it should be borne in mind that the line of authorities holding that the lands which have been settled upon with a view to pre-emption or homestead! are no longer public lands, are cases arising over land grants-in aid of the construction of roads or indemnity lands therefor, and not over rights of way. In those grants, Congress has-in most, if not all, cases limited the right of the railroad company to such lands as have not been occupied by bona fide settlers, or to which no homestead rights have attached or been initiated. (Nelson v. Northern Pac. R. R. Co., 188 U. S. 108, 23 Sup. Ct. Rep. 302, 47 L. ed. 406.) And the courts have-held in such cases that the right of the settler might he initiated at any time prior to the filing the map of definite location, or, as held in some eases, the actual construction of the road. No-such reservation or exception, however, appears to have been made in any of the acts granting rights of way alone. (St. Joseph etc. R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 578.)

It is next urged by respondents that no right vested in the railway company upon the passage and approval of the act, but. that the vesting of title to the right of way was dependent upon the filing of a map of definite location as provided by section 4 of the act of March 3, 1873. There could be only two purposes served by the filing of the map under the provisions of this section; the one for the information of the government and its land office officials to apprise them of the occupation and disposition of the public lands belonging to the government; the other purpose for the information of settlers and purchasers who desire to acquire rights in such public lands. In this case the government is not complaining of such failure, and it does not appear upon what theory a settler can be heard to complain of the failure to perform an act by another which is solely for the information and benefit of the government. If, on the other hand, such failure has deprived the individual of any of his rights or hindered him in the acquisition of any interest which he might otherwise have acquired, then he would certainly have a right to urge such objection. In this case the railroad was actually constructed over the land, and was being operated at the date of the passage of the act of June 20, 1878, and constituted actual, rather than constructive, notice to Quig-ley and Hendricks, and all the rest of the world, as to the exact; location of this right of way. By the actual location of the' track upon the ground they were saved the necessity of consulting records and files of the land office in order to ascertain-the definite location of such road. The road having been constructed prior to the passage of the act, the filing thereafter of a map of definite location could serve no one except the government.

In Jamestown etc. R. R. Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. Rep. 568, 44 L. ed. 700, it was held that the grant of aright of way to the plaintiff which required the filing of such-maps with the Secretary of the Interior was complied with, so-far as the settler was concerned, upon the actual eonstruetion-of the road, and that the entry of the defendant was subject thereto.

The grant for right of way became definitely fixed by the-actual construction of the road as effectually as it could have-been by the filing of a map of location. It ceased to be a-floating grant as soon as the road was constructed, and no one-could thereafter be misled as to the exact situs of the right of way. Every person thereafter acquiring title to any of thn public lands through which this line of road, was then constructed, took the same subject to the right of way granted by the act of June 20, 1878. (St. Joseph etc. R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 579; Bybee v. Oregon etc. R. R. Co., 139 U. S. 663, 11 Sup. Ct. Rep. 641, 35 L. ed. 309; Doran v. Central P. R. R. Co., 24 Cal. 246.)

It is also contended in this ease that notwithstanding the grant of the two hundred foot right of way, the railroad company cannot take a decree quieting title to more than it occupies and uses, or is actually necessary for the use for which the grant was made. We do not think this position can be sustained. Under these grants, the question of the reasonable amount of land necessary for such use is not open to consideration and determination by the courts. The grant by Congress to the Utah and Northern Railway Company of a right of way one hundred feet on each side of the central line of its track'was a conclusive determination of the reasonable and necessary quantity of laud to be dedicated to such use, aud carried with it the right of possession in the grantee therein named and its successor. (Northern Pac. R. R. Co. v. Smith, supra; Southern Pac. Co. v. Burr, supra; New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. Rep. 128, 43 L. ed. 412.)

Bespondents hare devoted much space in their briefs to the contention that the appellant’s predecessor in interest, Gould, having taken deeds from Quigley and Hendricks to a sixty-six foot right of way, is therefore estopped at this time to deny the grantor’s right or title. At the time the deed was executed if only conveyed to the grantee, Gould, the right of possession, for the reason that neither party had, or claimed to have, at that time any right or title in the property, other than a right of possession at sufferance of the government. Neither party having any title, Quigley and Hendricks, being in possession, could maintain such possession as against Gould and the railroad company until such time as the latter might acquire a better right and title from the owner of the fee. Hnder the deed the grantee took a perpetual right of way so far as the grantor was able to convey, and the grantee was placed under no obligations to acknowledge his grantor as landlord, or ever at any time restore to him the possession so acquired.

As a general proposition of law, the grantee named in a deed of conveyance does not hold in privity with his grantor, but Tather holds adversely to the grantor, and is not estopped to deny the title of his grantor. (Bybee v. Oregon etc. R. R. Co., supra; Merryman v. Bourne, 9 Wall. 592, 19 L. ed. 683; Robertson v. Pickrell, 109 H. S. 608, 3 Sup. Ct. Rep. 407, 27 L. ed. 1049; 11 Am. & Eng. Ency. of Law, 2d ed., 400, 440; 3 Washburn on Real Property, 6th ed., see. 1914; Schuler v. Ford, ante, p. 739, 80 Pac. 219.) To this rule, as to most all other general rules, there are exceptions, but no reason has been called to our attention why this case should come under any of the exceptions to the general rule and the doctrine of es-toppel be applied to the grantee named in the general deed of conveyance. The grantors have lost nothing by the transaction, nor have they been prejudiced in any of their rights or lulled to repose by- any act of the grantee. On the contrary, they have profited by the transaction to the extent of the purchase price, which they received for the execution of the quitclaim deeds.

It is finally argued by respondent that this action is barred by the statute of limitations, in that the defendants and their predecessors in interest have been in the adverse possession of the whole of this right of way, except the sixty-six feet granted by their quitclaim deed, for the period of twenty-seven years last past, and that the plaintiff is therefore barred from the prosecution of the action. It is also claimed that in addition to the defense of the bar of the statute, that the plaintiff is guilty of such laches in the assertion of his claim that he can no longer be heard in a court of equity. While the defendants and their predecessors have been in the actual possession of the premises, and continued to cultivate the same, still the case does not present all the facts going to constitute adverse possession. But as we read the authorities, there are potent reasons why the bar of the statute and the plea of adverse possession cannot prevail in a case of this kind. This grant by Congress of a right of way is not an absolute fee for all purposes, but is in the nature of a conditional grant, and limited to use and occupation by the grantee and its successors and assigns for the purposes of maintaining and operating a railroad. The franchise and the right of way in such case are inseparably attached to each other while in the possession and under the control and management of the grantee and its successors. The company could not by its grant convey any part of its right of way in any manner that would sever the right of possession from the franchise to operate and maintain a railway line thereover. (Northern Pac. R. R. Co. v. Townsend, 190 U. S. 267, 23 Sup. Ct. Rep. 671, 47 L. ed. 1044; Bast Alabama B. Co. v. Doe, 114 U. S. 340, 5 Sup. Ct. Rep. 869, 29 L. ed. 136; Yellow River Improvement Co. v. Wood County, 81 Wis. 554, 51 N. W. 1004, 17 L. R. A. 92; In re Canada Southern Ry. Co., 20 Am. & Eng. R. R. Cas. 196; Union Pac. Ry. Co. v. Kindred, 43 Kan. 134, 23 Pac. 112; East Tennessee etc. G. R. Co. v. Telford’s Exrs., 89 Tenn. 293, 14 S. W. 776, 10 L. R. A. 855; Northern Pac. R. R. Co. v. City of Spokane, 56 Fed. 917.) And if it could not do so by its solemn grant it certainly could not do so by any act which might be construed into a recognition of adverse possession. It must follow that the statute of limitations does not run in such cases against •an action to maintain the integrity of such a right of way. {Southern Pac. R. R. Co. v. Hyatt, 132 Cal. 240, 64 Pac. 272, 54 L. R. A. 522.)

The contention that the plaintiff has mistaken its remedy and that an action to quiet title will not lie in a case like this, is answered by this court adversely to respondent in Johnson v. Hurst, ante, p. 308, 77 Pac. 791; Shields v. Johnson, ante, p. 576, 79 Pac. 391; Fry v. Summers, 4 Idaho, 424, 3 Pac. 1118. It follows, therefore, from what has been said, that the judgment of the trial court must be reversed, and it is so ordered, and the cause is remanded, with directions to make and file conclusions of law in harmony with the views herein expressed, and enter judgment in accordance therewith. Costs awarded to appellant.

Stockslager, C. J., and Sullivan, J., concur.