Kinion v. Kansas City, Ft. Scott & Memphis Railroad , 118 Mo. 577 ( 1893 )

Black, P. J.

Plaintiff commenced this action of' ejectment in the Howell county circuit court in 1891 to recover eighty acres of land, alleging an ouster in March, 1882. The defendant admitted possession of a strip one hundred feet in width across one corner of the land, the strip containing three and one-half acres; but denied possession and disclaimed as to all the balance of the land described in the petition.

On the trial the parties made the following admissions :

The land described in the petition was government, land in 1881. The Kansas City, Springfield and Memphis Railroad Company, a corporation organized under the laws of this state, made its preliminary survey over the land in April, 1881, and in August, 1881, made a, definite location of its line and then cleared out the right of way and commenced the construction of the road. The articles of incorporation of the company were approved by the secretary of the interior on the fifteenth of February, 1882, who also approved the map of definite location crossing the land in question on the seventeenth of June, 1882. The above named company completed its road , in 1882, and continued to own the same until the year 1888, when the road was transferred to the defendant railroad company.

Kinion, the plaintiff, settled on the eighty acres in February, 1881, made a homestead entry on the thirteenth of January, 1882, and made final proof on the twenty-fifth of October, 1888. The patent to him, as we understand the record, makes no mention of an •exception of this right of way. The proof in the case is clear that the plaintiff knew the railroad company had located its line of road over the land when he made his homestead entry.

The defendant claims the right of way under the act of congress of March 3, 1875 (18 IT. S. Stats, at Large, p. 482). The first section of that act provides: “That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state, * * * which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent ■of one hundred feet on each side of the central line of .said road.”

And the fourth section is in these words: “That any railroad company desiring to secure the benefits of ■this act, shall, within twelve months after the location ■of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the secretary ■of the interior the same shall be noted upon the plats in said office; and thereafter all such lands over which .such right of way shall pass shall be disposed of subject to such right of way. Provided, That, if any section of' said road shall not be completed within five years after-the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section, of said road.”

Although the plaintiff settled upon the land in-February, 1881, still he acquired no right thereto as-against the United States or anyone claiming under the United States, until he made his homestead entry-on the thirteenth of January, 1882. All this he concedes. But his claim is this: That the railroad company acquired no rights and was a trespasser, until the seventeenth of June, 1882, when the profile plat was. approved by the secretary of the interior. To this contention of the plaintiff we do not agree.

The act of congress operated as a grant of the right: of way to the company, and the grant took effect from the date of the acceptance of the provisions thereof in the manner pointed out by the act. According to the-fourth section a company desiring to secure the benefits-thereof must take the following steps: First, it must locate the road; and it necessarily follows that the company has the right to go upon the public lands for the-purpose of making the location, and in doing so it is not a trespasser. Second, the company is required to file a profile plat, within twelve months thereafter, with the register of the local land office. It is then provided, that upon the approval of the profile by the secretary of the interior, the same shall be noted upon the plats, in the land office; and thereafter the land over which the right of way is located shall be disposed of, subject, to the right of way.

Now it is conceded that the company took the first, step to accept the provisions of this act, and this, too, long prior to the time the plaintiff made his homestead, entry. While it does not appear that the company-ever filed a profile plat with the register of the local land office, still it does appear and is a conceded fact that the company made a profile plat, and this plat was duly approved by the secretary of the interior, and this was done within the twelve months within which the profile should have been filed with the register of the local land office. The approval of the profile plat seems to be made the final act perfecting the company’s claim to the right of way. As this act was performed, and that, too, within the time allowed by the law for filing the plat with the register of the local land office, we cannot see that the company lost any of its rights by a failure to file the plat with the register of the local land office. The plat having been presented to and approved by the secretary of the interior it became the duty of the land office officials to make the proper notations on the plat books in the land office. The approval of the profile plat by the secretary of the interior perfected the grant of right of way to the company, and that grant took effect by relation as of the date of the location of the road over the land, that is to say, August, 1881; while the plaintiff’s homestead title took effect as of the date of the homestead entry, namely, the thirteenth of January, 1882. The company was, therefore, prior in time, and in our opinion also prior in right. It has a perfect title to the right of way as against the plaintiff.

We do not stop to consider what effect a failure to file the profile with the register of the local land office within twelve months after the location of the road would have as to a homestead claimant who had no notice of the location of the railroad when he made his homestead entry; for it is an undisputed fact that plaintiff knew the road had been located across this land, the right of way cleared, and the work of construction of the road commenced when he made his homestead entry. He therefore made his entry subject to all the rights of the company.

But it is said the act of the third of March, 1875, was not intended to apply to cases where the company can get the right of way from the occupying claimant, and we are cited to section 2288, Revised Statutes, United States, 1878, to show that the company could have acquired the right of way from the plaintiff. That section gives the homestead occupant the right to convey a railroad right of way across the homestead before his homestead title thereto is perfected; but it can have no application to the case in hand, because the plaintiff was not a homestead occupant when the company entered and located its road. According to the plaintiff’s claim, the company would be bound to procure the right of way from persons who settle Upon the lands under the pre-emption and homestead laws' after the location of the railroad and before the approval of the profile plat by the secretary of the interior. Such a construction defeats the leading object of the act; for it was manifestly designed to encourage the construction of railroads over public lands by granting a right of way without compensation.

On the admitted facts in this case, the judgment should have been for the defendant. The judgment is, therefore, simply reversed.

All concur, except Babolay, J., who dissents.