Transcript of Record — Stalker v. Oregon Short Line R. Co.
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- SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1911. s
No. 225.
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ALEXANDER R. STALKER AND EMALINE STA
PLAINTIFFS IN ERROR, Saf
v8.
OREGON SHORT LINE RAILROAD COMPANY.
(22,056)
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1911.
No. 220.
ALEXANDER R. STALKER AND EMALINE STALKER,
PLAINTIFFS IN ERROR,
v8.
OREGON SHORT LINE RAILROAD COMPANY.
IN ERROR TO THE SUPREME COURT OF THE STATE OF IDAHO.
INDEX.
Original Print
Writ GE GHIOE. 0 cnc ccc cccece SececcntenkusKengcctetemenmeesboss:s ] 1
Motwers 1) WEE Of GYTONs .< cccce cs ccc scceeiaccenscsaeedeceavaes 3 2
Transcript on appeal from district court .......--6 eee eee eee eee ees 4 2
CII coi ccadavccucececescccuknscenaueadas Leeuarreaendeces 4 2
Complaint ........ 60 ccc cece cece eee eee eee e cee e ence eeens 6 3
Vo, | A eee Pere rrr Ter Tree ee ry ee er 9 4
Findings of fact... 0.0... 00. cece eee eee eee eee eee e een enees 10 5
Craelinies Lae. cnc ses cae as cen dv cee ccens saseccione ccs 14 7
MMRUGING foo ened ce Re Roe ee Re Ree ORES a eee ce eeen yeas 14 7
Statement on motion for new trial..........0... eee e eee eee eee 16 8
Stipulation of facts... 2... 0.6666 c cee eee eee eee eee es 16 8
Testimony of A. R. Stalker...... 5.560. e eee eee renee ees 24 12
Specifications of error... 0.6.0.6 e cece eee cee teen es 25 13
rnGiatt G8 HAW sc ccoco calcd es cca o Pees ee ub ateeceetacnneeesees 27 14
Order settling statement............ cece cece eee e eee ee ees 28 14
Order denying new trial...... 0... cece eee ee cee eee eee eens 28 14
Notice of appeal... 6... ccc e eee erect e teen eee e nner ees 29 15
Certificate to tramscript....... 0.66 cee cee reece ee eee e eee eee 30) 15
Argument and submission. ....- 06.00. see0ee sere e rece rere cee es 1 16
Decree, May 15, 1907........ 0s eee eee eee eee e nent e teen eens 3 16
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Argument and submission. ...............___
Decree, Oe OR eck ccc cecenccs,
Opinion, filed keene
Petition for ie, ree
Opinion, filed February 27, 1908..............
Bond on writ of error..................... _.
Citation and service..........................
Certificate of lodgment................ .....
Clerk’s certificate to transeri pt of record.......
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ALEXANDER R. STALKER ET AL. VS. OREGON SHORT LINE B. R. co. 1
1 UNITED STATES OF AMERICA, 88:
The President of the United States of America to the Honorable
the Judges of the Supreme Court of the State of Idaho, Greeting:
Because in the record and proceedings, as also in the rendition
of the judgment of a plea which is in the said Court before you,
or some of you, being the highest court of law or equity of the said
State in which a decision could be had in the said suit between The
Oregon Short Line Railroad Company, plaintiff, and Alexander R.
Stalker and Emaline Stalker, defendants, wherein was drawn in
question the validity of a treaty or statute, of or an authority exer-
cixed under, the United States, and the decision was against their
validity ; or wherein was drawn in question the validity of a statute
of, or an authority exercised under, said State, on the ground of
their being repugnant to the Constitution, treaties, or laws of the
United States, and the decision was in favor of such their validity ;
or wherein was drawn in question the construction of a clause of
the Constitution, or of a treaty, or statute of, or commission held
under the United States, and the decision was against the ttle, right,
privilege, or exemption specially set up or claimed under such
clause of the said Constitution, treaty, statute, or commission; a
manifest error hath happened, to the great damage of the said
Alexander R. Stalker and Emaline Stalker, as by their complaint
appears. We being willing that error, if any hath been, should be
duly corrected, and full and speedy justice done to the parties
aforesaid in this behalf, do command you, if judgment be
2 therein given, that then under your seal, distinctly and
openly, you send the record and proceedings aforesaid, with
all things concerning the same, to the Supreme Court of the United
States, together with this writ, so that you have the same in the
said Supreme Court at Washington, within 80 days from the date
hereof, that the record and proceedings aforesaid being inspected,
the said Supreme Court may cause further to be done therein to
correct that error, what of right, and according to the laws and
customs of the United States, should be done.
Witness the Honorable Melville W. Fuller, Chief Justice of the
United States, the 15th day of February in the year of our Lord
one thousand nine hundred and ten.
[Seal United States Cireuit Court, Idaho. |
A. L. RICHARDSON,
Clerk Circuit Court United States,
District of Idaho.
Allowed.
ISAAC N. SULLIVAN,
Chief Justice Supreme Court of Idaho.
1—225
MERE Ea ROR IEE LE PRS PEIN BE. RA pt
“ee
PRE
SLITS STORE
2 ALEXANDER R. STALKER ET AL. Ys.
3 UNITED States oF AMERICA,
Supreme Court of Idaho, gs:
In obedience to the commands of the within writ, I herewith
transmit to the Supreme Court of the United States a duly certified
transcript of the complete record and proceedings in the within en.
titled case, with all things concerning the same.
In witness whereof, I hereunto subscribe my name, and aflix the
seal of said Supreme Court of Idaho, in the City of Boise, this 18th
day of February, 1910.
[Seal of Supreme Court, State of Idaho. |
I. W. HART,
Clerk of the Supreme Court of Idaho.
Costs of Suit.
Plaintiff’s Costs..........0. $13.80, p’'d by A. R. Stalker and
Emaline Stalker,
Defendant's Costs............ 3.26“ « Oregon Short Line
Railroad Compiny,
Costs of Transcript........... 41.965 “ “ A R Stalker and
Emaline Stalker.
I. W. HART,
Clerk Sup. Ct. of idaho,
4&5 In the Supreme Court of the State of Idaho, November
Term, 1906. ;
No. 1270.
OREGON Suort Line Rartroap Co., Respondent,
A. R. STALKER and Saciarne STALKER, Appellants.
Transcript on Appeal.
On Appeal From the District Court of the Third Judicial District
of the State of Idaho in and for Ada County.
Hugh E. McElroy and Frank Martin, Attorneys for Appellants,
P. EL. Williams, F, §. Dietrich, and Wyman & Wyman, Attorneys
for Respondent.
Filed Jan. 10, 1907. Ola Johnesse, Clerk.
ian
THE OREGON SHORT LIN® RAILROAD COMPANY. 3
6 In the District Court of the Third Judicial District of Idaho
in and for the County of Ada.
Orecox SHort Line Rairtroap Co., a Corporation, Plaintiff,
v3.
Wituiam H. Roway, Josern Minis, Cuartorre A. Mixts, A. R.
Stalker and Emaline Stalker, His Wife, and Mary L. Durkin
and E. G. Dunkin, Her Husband, Defendants.
Complaint.
Comes now the plaintiff, and for cause of action against the above
named defendants, alleges:
|
That the plaintiff is, and for many years immediately last past
has been, a corporation, organized and existing under and by virtue
of the laws of the state of Utah, the same being a railroad
7 corporation.owning and operating a systemof railroads inand
through the State of Idaho and other states and at all times
herein mentioned having fully complied with all of the provisions
of the Constitution and Statutes of the State of Idaho relating to
railroad and other foreign corporations.
Il.
That ever since on or about August 1, 1888, the plaintiff and its
predecessors in interest have been, and it now is, the owner in fee
and entitled to the exclusive possession of that certain tract of land,
situate, lying and being in the County of Ada, State of Idaho, the
same being a portion of the East half (42) of the Southwest quarter
(14) of Section seven (7), Township three (3) north, Range one
(1) East of Boise Meridian, more particularly described as follows,
to wit:
Commencing at station 522 plus 99 on the center line of the Boise
Branch of the Oregon Short Line Railread Company, said station
being 1096 feet east of the intersection of said center line with the
Boise Meridian, measured along said center line; thence, 100 feet
due north to place of beginning: thence due north 410 feet: thence
easterly, parallel to said center line 1304.2 feet: thence due south
410 feet: thence westeriv parallel to said center line, 1304.2 feet to
place of beginning.
Ii.
8 That as above stated, plaintiff claims title in fee to the said
_ premises, and the defendants claim estates or interest therein
or in a portion thereof adverse to this plaintiff,
4 ALEXANDER R. STALKER ET AL. vs.
IV.
That the claims of the said defendants are without any right
whatever, and that the said defendants have not wny estate, right,
title or interest whatever in said land or premises or any part thereof.
Wherefore the plaintiff prays:
First.
That the defendanis be required to set forth the nature of their
claims, and that all adverse claims of the defendants and each of
them may be determined by a decree of this Court.
Second.
That by said decree it be declared and adjudged that the defend-
ants have no estate or interest whatever in er to said land and prem-
ises or any part thereof, and have no righi to the possession thereof
and that the title of the plaintiff is good and valid and that it has a
right to the exclusive possession of said premises and the whole
thereof.
Third.
That the defendants be forever enjoined and debarred from assert-
ing any claim whatever in and to said land and premises ad
9 verse to the plaintiff and from maintaining or asserting
possession of said premises or any part thereof or any right
thereto, and have such other relief as to this lionorable Court shall
seem meet and agreeable to equity, and for its costs of suit.
P. L. WILLIAMS,
F. S. DEITRICH
WYMAN & WYMAN,
Attorneys for Plaintif..
(Duly verified.)
(Title of Court and Cause. )
Answer of Defendants A. R. Stalker and Emaline Stalker.
Now comes the said defendants, A. R. Stalker and Emaline
Stalker, and for answer to the complaint herein, say:
1. That at all times herein mentioned defendants were and sti}]
are husband and wife.
2. That on or about August 4, 1891. the property in controversy
was duly conveyed by the United States to Joseph G. Reed; pur-
suant to entry thereof under the land laws of the United States:
that prior to the issuance of said patent, the said Reed, on or about
July 27th, 1889, after final proof, duly conveved said premises by
warranty deed to one W. TT. Rowan, defendant herein: that there-
after and on or about March 80th, 1901. said Rowan executed
10 a plat of a part of said property under the name of Rowan’s
Addition to the town of Meridian. Ada County, Idaho, and
THE OREGON SHORT LINE RAILROAD COMPANY. 5
on April 2, 1901, filed said plat in the office of the County Recorder
of said County; that thereafter by intermediate conveyances, the
said Rowan and his grantees duly conveyed to the defendant, A. R.
Stalker, that part of said premises designated on said plat as lots 5
and 6, in block 4, in said Rowan’s Addition, and to the defendant
Emaline Stalker, that part of said premises designated as lots 7 and
8 in block 4 of said Addition, said conveyances being made prior
to the commencement of this action, and thereupon these defendents
became and still are the lawful owners of said premises, holding a
fee simple title thereto.
8 Defendants further say that they deny that ever since on or
about August 1, 1888, the plaintiff and its predecessors in interest
have been or now are the owner- in fee or entitled to the exclusive
possession of the tract of ground described in paragraph 2 of the
complaint or the part thereof described in paragraph 2 of this
answer.
HUGIL E. McELROY,
Attorney for Said Defendants.
(Duly verified.)
Findings of Fact and Conclusions of Law.
(Title of Court and Cause.)
In this cause the defendants above named, William H.
11 Rowan, Joseph Mills, Charlotte A. Mills, and Mary L.
Dunkin and E. G. Dunkin, her husband, having each been
duly served with summons, and each of said defendants last named
having failed to file an answer or demurrer or appearance of any
kind within the time specified in the summons, and no further time
having been granted, and the default of each of said defendants
having been heretofore duly entered, and the defendants, A. R.
Stalker and Emaline Stalker, after service of process upon them,
having appeared by their attorneys, Hl. E. McElroy, Esq.. and Frank
Martin, Esq.. and having answered the piaintiff’s complaint herein,
and thereafter, the court having heard the testimony, and having
read the stipulations signed by the attorneys for the respective
parties and filed herein, and counsel for the respective parties hav-
ing made their argunients, and the Court being fully advised in the
— makes the following findings of fact and conclusions of
aw:
Findings of Faet.
The Court finds:
I.
That the plaintiff. Oregon Short Line Railroad Company, is and
for many vears last past has been. a corporation organized and exist-
ing under and by virtue of the laws of the State of Utah, the same
<PRE> AO SRO Ie!
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6 ALEXANDER R. STALKER ET AL. VS.
being a railroad corporation owning and operating a system
12 of railroads in and through the State of Idaho, and other
States, and at all times hereinafter mentioned, having fully
complied with all of the provisions of the Constitution and Statutes
of the State of Idaho relating to railroad and other foreign corpora-
tions.
II.
That ever since on or about August 1, 1888, the plaintiff and its
predecessors in interest have been, and, at the time of the com-
mencement of this action, the plaintiff was and it now is, the owner
and entitled to the exclusive possession of that certain tract of land
situated, lying and being in the County of Ada, State of Idaho, the
sume being a portion of the East half of the Southwest quarter of
Section 7, Township 8 North, Range 1 East of Boise Meridian, more
particularly described as follows, to-wit:
Commencing at station 522 plus 99 of the center line of the Boise
Branch of the Oregon Short Line Railroad Company, said. station
being 1096 feet east of the intersection of said center line with the
Boise Meridian, measured along said center line: thence 100 feet
due north to place of beginning: thence due north 410 feet: then e
easterly parallel to said center line 1304.2 feet: thence due south
410 feet; thence westerly parallel to said center line 1304.2 feet to
place of beginning, including the land described in the second
paragraph of the answer of the defendants A. R. Stalker and Ema-
line Stalker, to-wit: Lots 5, 6, 7 and 8 in block 4 in Rowan’s Ad-
dition to the town of Meridian.
13 II.
That the defendants, and especially the defendants A. R. Stalker
and Emaline Stalker, for some time prior to the commencement of
this action, and at the time the same was commenced, claimed in-
terests in said premises adverse to the right and title of the plaintiff.
That all and each of the claims of said defendants and each of them
are, and at the time of the commencement of this action were, with-
out any right whatever, and no one of the defendants has any estate,
right, title or interest, whatever, in the land and premises above
described as belonging to the plaintiff.
IV.
That the defendants A. R. Stalker and Emaline Stalker were at
all the times metitioned in their answer, and they now are, husband
and wife.
A
That no part of the property above described as belonging to the
plaintiff was, on August 4, 1891. or at any other time, conveved by
the United States to Joseph G, Reed, or to any person or corporation
except the plaintiff. That said Reed did not. by deed or otherwise,
convey any portion of said premises to W. FH. Rowan, and said
lind
a
THE OREGON SHORT LINE RAILROAD COMPANY. 7
Rowan did not, by conveyances intermediate or otherwise, convey
any portion of said premises to the defendant, \. R. Stalker, or to
the devendant Emaline Stulker, and neither the defendant
14 Emaline Stalker nor the defendant A. R. Stalker, ever be-
came or was or is the owner of said premises or any part of
the premises deseribed ax being the property belonging to the plain-
tif, and neither of the said defendants ever held fee simple or any
title thereto.
Conclusions of Law.
And, as conclusions of law from the foregoing findings of fact,
the Court finds:
I,
That plaintiff is entitled to the exclusive possession of the premises
described in the complaint and the foregoing findings as belonging
to it, and it is further entitled to a decree quieting its title and en-
joining the defendants and each and all of them from interfering
with the plaintiff’s exclusive possession thereof, and from claiming
title thereto, or any interest therein; and its costs in thir action in-
curred.
Dated this 23d day of July, 1906.
GEORGE H. STEWART, Judge.
Deeree.
(Title of Court and Cause.)
In this case the default of the defendants, William Rowan, Joseph
Mills, Charlotte A. Mills, and Mary L. Dunkin and E.G, Dunkin,
having been heretofere duly entered according to law, and
15 the defendants, A. R. Stalker and Emaline Stalker, his wife,
having appeared by their attorneys, H. E. McElroy, Fsq.,
and Frank Martin, Esq., and the court having considered the evi-
dence and the arguments of counsel and being fully advised and
having made and filed its findings of fact and conclusions of law ;
Now. therefore, in accordance with said findings of fact and con-
clusions of law, it is ordered, adjudged and decreed that the plain-
tiff Oregon Short Line Railroad Company, a corporation, is the
owner and is entitled to the exclusive possession of the premises de-
scribed in the complaint, to-wit:
Commencing at station 522 plus 99 on the center line of the Boise
Branch of the Oregon Short Line Railroad Company, said station
being 1096 feet east of the intersection of said center line with the
Boise Meridian, measured along said center line; thence 100. feet
due north to place of beginning: thence due north 410 feet, thence
easterly parallel to said center line 1504.2 feet; thence due south
410 feet; thence westerly parallel to said center line 1304.2 feet to
place of beginning, of which the premises described in the answer,
ces io
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8 ALEXANDER R. STALKER ET AL. V8.
to-wit, lots 5, 6, 7 and 8 in block 4 in Rowan’s Addition to the town
of Meridian are a part, all of which premises are situate in Adg
County, Idaho, and form a part of the east half of the southwest
quarter of Section 7, Township 3 north, Range 1 east of Boise
Meridian; and that no one of the defendants has any right, title,
interest or estate in or to any part or portion of said premises,
16 and the defendants and each of them are perpetually en-
joined from interfering with the plaintiff’s exclusive pos-
session of said premises, and the whole thereof, and from claiming
any right, title, estate or interest in or to any portion of said
premises,
And it is further adjudged that the plaintiff recover from the de-
fendants its cost herein incurred, amounting to $
Dated this 23rd day of July, 1906.
GEORGE I. STEWART, Judge.
Statement on Motion for New Trial,
This cause came on for trial on the 2d day of July, 1906, the same
being tried by the Court without a jury, Messrs. Wyman & Wyman,
and I*. S. Dietrich, appearing for the plaintiff. and the said defend.
ants, A. R. Stalker and Emaline Stalker, by Hugh E. McElroy and
Frank Martin, their attorneys, the other défendants making default
herein, the said trial being had upon the issues made by the com-
plaint and the answer of said defendants A. R. Stalker and Emaline
Stalker;
Whereupon the said plaintiff offered in evidence the certain stipu-
lations, to-wit:
A certain stipulation, signed by the counsel for the respective
parties as follows:
Stipulation of Facts.
For the purpose of avoiding expense it is hereby stipulated
17 and agreed by the plaintiff herein, and the defendants, A. 2.
Stalker and Emaline Stalker (the other defendants being in
default) that in addition to the facts admitted hy the pleadings, the
following are the facts herein involved. to-wit:
I.
The plaintiff is the successor in interest of the Tdaho Central Rail-
way Company, a corporation, organized under the laws of Wyoming,
and is the owner of all the rights and title in and to the tract of land
1304.2 feet long and 410 feet wide particularly described in para-
graph IT, of the complaint, acquired by said Idaho Central Railway
Company, a corporation, by reason of the acts and facts hereinafter
particularly stated, and appearing in any further proofs which may
be offered.
THE OREGON SHORT LINE RAILROAD COMPANY. 9
IL.
That said “The Idaho Central Railway Company” at all the times
herein mentioned was a railroad corporation duly organized under
the laws of the Territory (now State ) of Wyoming. That on July 1,
1887, said Railway Company filed with the Honorable Secretary of
the Interior a duly certified copy otf its articles of incorporation
and due proofs of its organization under the same, as required by law
and in full compliance with the rules and regulations of the Honor-
able Secretary of the Interior.
18 LLL.
That said Railway Company was organized for the purpose of
operating and constructing a line of railroad from Boise City, Idaho,
to Nampa, Idaho, the same being the line of railroad between Boise
and Nampa now owned and operated by the plaintil, and connecting
with the railroad of the Oregon Short Line Railroad Company at
Nampa.
iY.
That at all times prior to October 15, 1555, the east half of the
southwest quarter and the west hull of the southeast quarter of
secuon seven (7), Lownship three (8) north, Kiauige ole (1) east of
Boise Meridian was (with the exception of such rights, Hany, ds suid
Idaho Central Railway Company had acquired iereim by comipli-
ance with the provisivus of te act of Colgress appror ed Mareh 3,
15.5, entitled “s\n .Aet granting to raiiroads the rigut of way Wirough
the public lands of Wie Cuited States), unoccupied and unclaimed
pubic laud of the ited States. Lhat upou said October Ld, L555,
one Joseph G, Keed, bemg auly qualilied so to do, filed upou suid
tract of land, in the Land Oilice, Boise City, preempuon euury No.
4UL1, claiming residence established the same aay. Lihat thereatter,
to-wit, on April 24, L559, suid heed made final proof upou sald tract
of land, and patent Issued to hint theretor August 4, Loud. “Phat said
lands wud the other lands la said Lowhslip were surveyed and
ly opened to entry upon the Ist day of July, Lovo.
V.
That upon June 10th, 1557, the Board of Directors of said Idaho
Central diailway Company adopted a route Lor its said railroad trom
Nampa to Boise City, sud route berg Ue sate as that now occupied
by said railroad track, the center line of suid radiroad tack corre-
sponding to the center line of said route, and said track always hav-
ing been in the sane place, that Is, the identical place now occupied
by the same. ‘That said route passed wid passes vver and trough
said tract of laud so entered by suid Reed.
V1.
That thereafter said Idaho Central Railroad Company caused to
be made and filed in duplicate with the Register of the ( hited States
2—220
me iat beth
ARES NN Io
10 ALEXANDER R. STALKER ET AL. VS.
Land Office at Boise City, Idaho, the same being the Land Office of
the District in which said land was and is situated, a profile or map
of alignment of its said road in due form, the center line of which
corresponds to the center line of said railroad as the same was there.
after constructed, and has ever since been maintained and now exists
over and across said tract of land. That said profile map was upon
February 17th, 1888, duly approved by the Honorable Secretary of
the Interior, and sent back to the said Land Office at Boise.
20 VIL.
That said railroad from Nampa to Boise was constructed along and
upon said route prior to, and was in operation upon, September 1,
1888,
VIII.
That upon September 12, 1888, said Idaho Central Railway Com-
pany caused to be filed, in duplicate, with the Register of said Land
Otlice at Boise City a profile map showing said tract of land as de-
scribed in the complaint and hereinbefore described, and claiming
the same as station grounds for station buildings, turnouts, sidetracks,
depot, and water station. That said profile map of said station
grounds was by the said Register transmitted to the Honorable See-
retary of the Interior, and filed in his oflice September 20, 1588, and
by him approved December 15, 1888, and then returned to the said
Kegister of said Land Office.
IX.
That said Joseph G. Reed, by Warranty deed conveyed to W. H,
Kiowan, the land embraced in his said pre-ciupuion entry, and for
Which patent issued to him .\ugust 4, 1oY¥1, us hereinvetore stated.
Phat thereafter said Kowan executed and tiled a plat with the
County Kecorder of Ada County, ldaho, covering a portion of suid
land embraced in said pre-elupuon entry, and a poruicn of said tract
claimed by the plaintiff as its station grounds, said plat being
21 designated as Kowan’s addition to the town of Meiidian,
und thereupon said Rowan conveyed to suid defendants, A.
K. Stalker and bmatine Stalker, lots 5, 6, « and d, in block 4, of said
Kiowan’s addition, all of which said lots are embraced within said
tract claimed by plaintiff as its station grounds,
This stipulation shall not preclude plainuit or defendant from
ollering competent evidence not inconsistent herewith.
Dated October 19th, 1905,
Whereupon, plaintiff offered in evidence the following stipulation,
signed by the attorneys for the respective parties, to-wit:
In addition to the facts agreed upon in the written stipulation
heretofore made, it is further agreed that the attached blue print isa
correct copy of the original map or plat of the station grounds claimed
by plaintiff, filed with the Secretary of the Interior, the same being
THE OREGON SHORT LINE RAILROAD COMPANY. 11
the map or plat referred to in the stipulation of facts heretofore made
all of the certificates and endorsements thereon being also found
upon the original.
It is further agreed that the attached copy of the minutes of a
meeting of the Board of Directors of the said Idaho Central Railway
Company is a correct copy of the minutes of a meeting of the Board
of Directors of said Idaho Central Railway Company, held August
6, 1888, as said minutes appear in the minute book of the said Com-
pany. And the said ininutes refer to and authorize the execu-
22 tion and filing by the officers of the said Idaho Central Rail-
way Company, of the original map or plat of which the at-
tached blue print is a copy.
It is further agreed that the Register and Receiver of the said
United States Land Office at Boise, Idaho, upon the return of the
said profile or plat of the said depot grounds, after the same had
been approved by the Secretary of the Interior, failed and neglected
to note the same upon the plats in the said Land Office, and that
the same has never been noted upon the said plats to this date;
and that at all times since the commencement of this action said
profile or plat has been missing from the United States Land Office
and cannot be found.
| The minutes above referred to are as follows:
A special meeting of the trustees of the Idaho Central Railway
Company, was called to meet on this 6th day of August, 1888, for
the purpose stated in said request, written notice of said meeting
was on the 27th day of July, 1888, mailed to each member of the
said Board of Trustees, said written notice containing a full state-
ment of each of the said purposes as stated in the said request for
said meeting.
And be it remembered that on the 6th day of August, 1888, at
Cheyenne, Wyoming, at the law office of Corlett, Lacy & Ruier,
| the same being the office of this Company, at said City of Chey-
| enne, at the hour of 10 o'clock in the forenoon of said day, the trus-
tees of said Idaho Central Railway Company, met pursuant to said
call, the following trustees being present, to wit: James M.
23 Stewart, James A. McGee, Edward Dickinson, Robert Blick-
ensderfer and John H. Mickey.
The meeting was called to order by Edward Dickinson, President
of this Company and ex-officio President of the Board of ‘Trustee-.
the eall for this meeting was thereupon read by the Secretary, and
on motion duly seconded it was resolved: That the President of
this Company be instructed to authorize and ratify the survey of
certain tracts of Jand in Section 22, Tp. 2 N. of Ro 2 W. and in
Section 7, Tp. 3. N. of Ro1 E.. all in Ada County. Idaho Territory,
for station build ngs, depots, machine shops, side tracts, turnouts
' and water stations, each tract to consist of twenty acres.
On motion duly ~econded it was resolved: That the board of trus-
tees authorize the President of this Company to present the plats of
such survey for the approval of the Secretary of the Interior, 1
order that the Company may obtain the use of the grounds under
12 ALEXANDER R. STALKER ET AL. VS.
the act of Congress of March 3, 1875, for the purpose above set
forth.
On motion duly seconded it was thereupon resolved: That the
President and Secretary of this Company be authorized to reconvey
to John T. Wilburn such of the land conveyed by him by deed of
August 6, 1887, as is not covered by the located right of way of this
Company and to receive in exchange therefor deeds for the lands
covered by the located right of way.
On motion duly seconded it was further resolved: That the Presi-
dent of this Company be authorized to procure a survey of
24 the most feasible route for the railway of this Company
from some point on the Idaho Central Railway west of the
ranch of William R. Ridenbaugh into Boise City in the Territory
of Tdaho.
On motion duly seconded it — further resolved: That the arrange-
ments by the officers of this Company with the trustees of the first
mortgage indenture bonds of the Idaho Central Railway Company
to take three bonds at 110 in lieu of one per cent. of the aggregate
of the principal money mentioned in the certified bonds secured by
said mortgage, be and the same is hereby ratified and in all things
confirmed and approved.
On motion duly seconded the meeting thereupon adjourned.
E. D. DICKINSON,
JAMES A. McGER, Secretary.
The map in said stipulation referred is hereto attached and made
a part hereof.
Whereupon the plaintiff rested.
Defendants then offered the following evidence, to-wit:
A. R. Sranker, being first duly sworn, testified as follows:
T am one of the defendants in this case. T first became acquainted
with the land in controversy in this case seven years ago this spring,
Since that time T have resided within. two miles and a quarter of
Meridian. So far as I know during that time the plaintiff has not
oceupied said land for railroad purposes or used the same
25 for any purposes whatever, At the time T purchased these
lots T had no knowledge that the property was claimed by
the plaintiff. :
(Foregoing evidence objected to by plaintiff as immaterial and
objection overruled and exception noted.)
Plaintiff admits that defendant. Emaline Stalker, had no other
knowledge of these matters than her husband, A. R. Stalker,
Cross-examination :
“At the time T purchased the land in controversy plaintiff was
maintaining one side track and a depot building and a small bnild-
ing upon its right of Way adjacent to this tract of land claimed by
it as station grounds. This tract of land claimed by the plaintiff
as its station grounds is situated in what is called the town of Merid-
ian. Meridian has about seven hundred or eight hundred inhabit-
THE OREGON SHORT LINE RAILROAD COMPANY. 13
ants I should think. When I purchased there were no buildings
upon this tract of land. There was a strect on the north side and
also on the west side of the tract.”
Specifications of Error.
Defendants specify the following particulars in which the evi-
dence is insufficient to justify the decision and findings of the
court: :
1. That finding No. 2 is wholly unsupported by the evidence in
the following particulars:
(a) The evidence does not show that the plaintiff is the owner
or is entitled to the exclusive possession of the property de-
26 scribed, but on the contrary, the stipulations filed herein
show that these defendants hold title in fee simple to said
premises, under patent from the United States, issued to their pre-
decessor in interest, Joseph G. Reed, subject, however, to the ease-
ment, if any, acquired by plaintiff for the use of said premises for
railway purposes only, by compliance with the provisions of an act
of Congress approved March 8, 1875 entitled “An Act granting to
railroads the right of way through public lands of the United
States.”
(b) That the stipulations and evidence herein show that. plaintiff
failed to comply with the requirements of the law above referred to,
and that the premises herein described were never segregated from
the public domain as required by said law, and that the Register and
Receiver of the United States Land Office at Boise, Idaho, having
jurisdiction of said land, failed and neglected to note the profile or
plat of the grounds claimed by plaintiff upon the plats of said Land
Office as required by law, and patent for said lands issued to the
predecessor in interest of defendants without the same being segre-
gated from the public domain and thereby said predecessor in in-
terest and his grantees, these defendants took title and interest to
said premises free and clear of any claim of the plaintiff.
2. That finding No. 3 is unsupported by the evidence, it being
admitted by the evidence in this case that the only interest claimed
by plaintiff is that of an easement for none other than rail-
27 way purposes, and that the title in fee simple rests in these
defendants, and that the same was acquired without knowl-
edge of any claim of plaintiff to said premises, and that plaintiff
failed to comply with the law granting such easement and failed to
secure the segregation of said premises from the public domain.
8. That finding No. 5 is unsupported by the evidence, it being
admitted by the stipulations of plaintiff that said premises were con-
veved by the United States to Joseph G. Reed, without any segrega-
tion of said premises or of the easement therein claimed by plaintiff,
free and clear of claim: of plaintiff, and that defendants have ae-
quired by regular conveyance the title of said Reed.
PEN AW I ERB EOMOEEEE
14 ALEXANDER R. STALKER ET AL. VS.
Errors of Law.
1. The Court erred in not finding specifically the facts in relation
to the title claimed by plaintiff and finding either for or against the
claim of plaintiff to an easement in these premises for railway pur-
poses only and not a claim to title in fee simple.
2. Assuming that the Court intended to find for plaintiff as to the
title of the plaintiff to an easement in said premises for railway pur-
poses the Court erred in directing judgment other than for the pro-
tection and establishment of said easement.
3. That the Court should have found as a conclusion of law that
defendants were the absolute owners of the premises in contro-
versy.
28 Defendants propose the foregoing as their statement of the
case on motion for a new trial and pray that the same may
be settled and allowed.
(Signed) H. E. McELROY,
(Signed) FRANK MARTIN,
Attorneys for Defendants, Residing at Boise, Idaho.
Received of Hugh E. McElroy and Frank Martin, for amendment,
a copy of the foregoing draft of statement of the case this 25th day
of July, 1906.
(Signed) WYMAN & WYMAN,
Attorneys for Plaintiff
Order Settling Statement.
I hereby certify that the foregoing statement of the ease is a true
and correct statement and contains all the evidence introduced by
the parties at said trial, reduced to narrative form and that the same
is hereby settled and allowed.
Done this 17th day of September, 1906,
(Signed) GEORGE If. STEWART, Judge.
O. K.
(Signed) WYMAN & WYMAN.
(Title of Court and Cause.)
Order Denying New Trial.
Now on this 31st day of Octoher, 1906, the motion of defendants,
A. R. Stalker and Emaline Stalker, for a new trial herein
29 duly came on for hearing, upon the statement of the case
heretofore settled, allowed and filed, Messrs, Wyman & Wy-
man and F. S. Dietrich appearing for plaintiff and Frank Martin
and Hugh FE. McElroy, Esqs.. appearing for defendants, A. R
Stalker and Emaline Stalker, and the Court having duly considered
THE OREGON SHORT LINE RAILROAD COMPANY. 15
said motion ordered that the same be and is hereby denied, to which
ruling counsel for defendants except.
GEORGE H. STEWART, Judge.
Filed October 31, 1906. W. L. Cuddy, Clerk.
(Title of Court and Cause.)
Notice of Appeal.
To the said plaintiff, the clerk of said Court and Messrs. Wyman «&
Wyman, P. L. Williams and F. 8. Dietrich, attorneys for plain-
tiff:
Take notice that defendants, A. R. Stal'ser and Emaline Stalker,
hereby appeal to the Supreme Court of the State of Idaho from the
judgment entered in the above entitled canse in the above Court in
favor of the plaintiff and against these defendants on the 23rd day
of July, 1906, and from the whole thereof ;
Also. that said defendants hereby appeal to said Supreme Court
from the order of the above Court, made and entered October
30 31. 1906, overruling the motion of defendants for a new
trial in said cause.
Dated this 3d day of December, 1906.
HUGH E. McELROY axp
FRANK MARTIN,
Attorneys for Defendants, A, R. and Emaline
Stalker, Appellants Ilerem.
Service of said notice by copy acknowledged this 3d day of De-
cember, 1906.
WYMAN & WYMAN,
Attorneys for Plaintiff.
Endorsed: Filed December 3, 1906.
Certificate to Transcript.
It ix hereby stipulated by the attorneys for plaintiff and defend-
ants. A. R. Stalker and Emaline Stalker, parties to the above cause,
that the foregoing transcript contains a true, full and correct copy of
the judgment roll in said action together with the statement on
motion for new trial, except the map, the order denying motion for
new trial and the notice of appeal. We further certify that an un-
dertaking on appeal from the judgment in said cause and from the
order denying said motion for new trial, in due form, was properly
filed in this cause on December 5th, 1906.
Dated 24th day of Dee., 1906.
HUGH FE. MceELROY ayxp
FRANK MARTIN,
Attorneys for Appellants.
P. L. WILLIAMS,
FP. S. DIETRICH,
WYMAN & WYMAN,
Attorneys for Respondent.
16 ALEXANDER R. STALKER ET AL. V8.
Copy received this 10th day of January, 1907.
WYMAN & WYMAN,
Attorneys for Respondent.
31 The following entries appear of record under the dates
named:
No. 1270.
Orecon Snort Line Rairoap Co., Respondent,
vs.
A. R. Sratker and EMALINE STALKER, Appellants.
Boise, Ipano, April 15, 1907.
This cause having been herewfore set for hearing, now on this
day the same was calied, Hugi &. McElroy appearing as counsel for
appellants, and D. Worth Clark being entered and appearing as
counsel for respondents. After argument the cause was submitted
and by the court taken under advisement,
Boise, Inauo, May 15, 1907.
This cause having been heretofore heard, submitted and taken
under advisement by the court, and the court having fully con-
sidered the same, now on this day the cause was again called, and the
decision of the-eourt is delivered by Chief Justice Ailshie, to the
effect that the judgment of the lower court be reversed.
It is therefore considered, adjudged and decreed by the court
that the judgment of the District Court of the Third Judicial Dis-
trict in and for the county of Ada in the above entitled cause be and
the same hereby is reversed. Costs are awarded to appellauts.
Boise, nano, June 14, 1907.
A petition for a rehearing having been heretofore filed by re-
spondents in this cause, it is now ordered that a rehearing therein
be granted.
32 Boise, Ipano, January 3, 1908.
Ordered that this cause be set for hearing on January 14th, 1908,
Boise, Ipano, January 14, 1908.
This cause having been heretofore set for hearing, now on this day
the same was called, H. E. McElroy and Frank Martin appearing for
appellants and D. Worth Clark appearing for respondent. After
argument the cause was submitted end by the court taken under ad-
visement.
Bose, Ipano, February 27, 1908.
This cause having been heretofore reheard and again submitted
and taken under advisement by the court, and the court having
fully considered the same, now on this day the cause was aguiu
Tite |
THE OREGON SHORT LINE RAILROAD COMPANY. 17
called, and the decision of the court is delivered by Justice Sullivan
to the effect that the judgment of the lower court be attirmed.
It is therefore considered, adjudged and decreed by the court, that
the judgment of the District Court of the Third Judicial District
in and for the county of Ada in the above entitled cause be and the
same hereby is aflirmed. Costs awarded to the respondent.
33 Filed May 15,1907. I. W. Hart, Clerk.
In the Supreme Court of the State of Idaho, February Term, 1907.
OrEcon Snorr Line Rattroap Company, Respondent,
A. R, STALKER et al., Appellants.
Railroad Grant—Right to Station and Depot Site—Forfeiture and
Abandonment of Right.
t. Where a railway company filed a profile map of its right of
way and depot and station grounds and had the same approved by
the Secretary of the Interior, but failed and neglected to have the
selection noted on the plats in the local land office, and the map so
furnished was lost or destroved, and no notation of the selection was
ever made on the plats of the local land office, and the company
failed and neglected for more than seventeen years to take posses-
sion of the grounds claimed for depot and station site, and exercised
no acts of ownership or right of possession over the premises, and
eight days after the filing of such profile map a preemptor settled
and filed upon the legal subdivisions comprising and including the
station and depot grounds claimed by the company, and thereafter
made final proof upon and received patent for the entire legal sub-
division, and had no notice, either actual or constructive, that the
railway company claimed any station and depot grounds within the
limits of his preemption claim, and received no such notice or in-
formation until long after the receipt cf his patent for the land,
Held, that the railway company under such facts and cireumstances
will be deemed to have forfeited and abandoned its right to claim
depot and station grounds under the act of Congress of March
34 3d, 1875, and that it will not be allowed to maintain an aetion
of ejectment against the grantees and successors in interest
of the patentee of such lands.
2. Where injury must result to one of two parties on account of
the failure to discharge an act, the duty of doing which is imposed
upon a third par.y, the consequent loss must fall upon that party
in whose interest the act should have been performed, and on
whom the daty devolved to see that such act was in fact performed.
(Syllabus by the Court.)
38—225
DAS ERE OY EN errs coos |
18 ALEXANDER R. STALKER ET AL. Vs.
Appeal from the District Court of the Third Judicial District in and
for the County of Ada.
Hon. George H. Stewart, Judge.
Action in Ejectment by the Plaintiff to Recover Possession of Cer-
tain Lots and Ground Claimed as Depot and Station Site.
Judgment for plaintiff and defendants appealed. Judgment re.
versed.
Hugh FE. McElroy and Frank Martin for appellants.
P. L. Williams. F. S. Dietrich, Wyman & Wyman and D. Worth
Clark for respondent.
Atrsntie, (. J.:
This is an action in ejectment instituted by the plaintiff. the
Oregon Short Line Railroad Company, to recover possession of four
lots in Rowan’s addition to the town of Meridian in Ada County.
The Railroad Company claims this ground under the provisions of
the act of Congress of March 3, 1875 (18 U. S. Stat. at Large, 482),
granting rights of way and depot and station grounds to railway
corporations that comply with and bring themselves under the pro-
visions of that act. The defendants answered denving the allegation
of the complaint and alleging a fee simple title to the lots in ques
tion through patent issued by the United States to their
35 grantor. The case was determined on an agreed statement
of facts, and it must be conceded that these facts are very
meager and in some respects indefinite. Judgment was entered in
favor of the plaintiff in the lower court and the defendanis moved
for a new trial and the motion was denied and they appealed from
the judgment and order. The facts that can be gathered from the
stipulation are substantially as follows: That on July Ist, 1887, the
Idaho Central Railway Company, the plaintiff's grantor and prede-
cessor in interest, filed with the Secretary of the Interior a certified
copy of its articles of incorporation, and duly and regularly quali-
fied to take and hold rights of way under the act of Congress of
Mareh 3. 1875. Thereafter and on September 12, 1888, the plain-
tiff filed with the Register of the United States Land Office at Boise.
a profile map showing the definite location of its track and line of
road from Nampa to Boise, and also its proposed station grounds,
turnouts, tracks and depots. Its profile map was filed in duplicate
and was transmitted by the Register to the Secretary of the Interior,
and was by the Secretary approved on December 15, 1888. and there-
after returned to the Register of the Boise Land Office. Tt also ap-
pears that the Register and Receiver of the Land Office at Beise
failed and neglected to note the depot and station grounds, side-
tracks and turnouts on the plats in the land office “and that the same
has never been noted upon the said plats to this date and that at all
times since the commencement of this action said profile or plat has
THE OREGON SHORT LINE RAILROAD COMPANY. 19
heen missing from the United States Land Office and cannot be
found.” On October 18, 1888, one Joseph G, Reed filed upon 160
acres of public land which included and embraces the land in dis
pute in this case, and he thereafter and on April 24, 1859, made
final proof and patent issued te him on August 4, 1591.
36 Reed thereafter by warranty deed conveyed the land te one
W. H. Rowan, who platted the land now claimed by the rail-
way Company as depot and station grounds, and filed the plat thereof
with the County Recorder as an addition to the town of Meridian.
Rowan thereafter conveyed to the defendants Stalker the four lots
now in question. It appears that the railway company has never oc-
cupied or used any of the ground that it now claims for depot and
station purposes. On the other hand, the only specific evidence we
have of the entryman or his grantees exercising any particular acts of
dominion or ownership or right of possession over this ground, is
that of Rowan’s platting the’ ground as an addition to the town of
Meridian. This. however, is very clear evidence that Rowan at
that time claimed the ground as his own and did not recognize it
as belonging to the railway company or the railway company having
any right thereto. We are not advised, however, as to when this
ground was platted for town-site purposes. It is stipulated that the
road from Nampa to Boise was constructed und in operation prior
to September 1, 1888. This fact is abundantly sufficient under a
long line of authorities to give the entrymen who thereafter filed
upon the land notice of the definite location of the line of road so as
w withdraw the right of way from entry and purchase. See care
cited and reviewed in O. S. L. R. R. Co. v. Quigley, 10 Idaho, 770.
The evidence, on the other hand, does not show that the comprany
had established a station at Meridian at that time. On the contrary,
it is admitted that it had not taken possession of any ground outside
of its right of way and was not apparently occupying or claiming
any station or depot grounds or exercising any right of possession
over any ground that it claimed or intended to claim outside of or
beyond that granted for right of way.
av The appellants claim that in order for the railway com-
jany to withdraw the twenty acres allowed it for station
purposes, it Was necessary, as a condition precedent, that it file its
ap and plat thereof and have the same approved by the Seeretary
of the Interior and also have the Register and Reciever note the
selection and reservation on the plats in the local land office in order
to give notice of the claim to an entryman who might file upon
and receive patent for the legal subdivision in which such station
grounds are located. See. 4 of the act of March 3. 1ST5. is as fol
tows: “That any railroad-company desiring to secure the benefits
of this act, shall, within twelve months after the location of any see-
tion of twenty miles of its road. if the same be upon surveved lands,
and. if upon unsurveved lands. within twelve months after the
survey thereof by the United States, file with the register of the
land office for the distriet where such land is located a profile of it<
road; and upon approval thereof by the Seeretary of the Interior,
the same shall be noted upon the plats in said office; and thereafter
20 ALEXANDER R. STALKER ET AL. VS.
all such lands over which such right of way shall pass shall be dis.
posed of subject to such right of way; Provided, That if any section
of said road shall not be completed within five vears after the loca.
tion of said section, the rights herein granted shall be forfeited as to
any such uncompleted section of said road.” Tt will be noted that
to literally follow the provisions of this statute there is no method
pointed out for the company to acquire the right to the use of sta-
tion grounds except by actually entering upon. appropriating and
using the land for such purposes. The statute does not in so many
words say that the company shall make and file a profile of its sta-
fon grounds, but rather of its right of way. Still the Department of
the Interior seems to have required profiles of rights of way
38 te include station grounds the same as the right of way, and
has considered the rieht of appropriation and use vested in
the same manner, (In re St. Paul, Minneapolis and Manitoba Ry.
Co., 26 L. D. 181: Tn re Hamilton Pope, 28 L. D. 402.) The pur-
pose of filing such plats and maps and their approval by the depart-
ment has been to give notice both to the government and the pros-
pective settler and purchaser of the lands as to the location of the
road and the grounds claimed for such purposes. Where, however,
the road is actually under construetion, or has been constructed prior
to the selection by the settler, it has been uniformly held thet the
construction of the road upon the ground furnished actual notice
and supplied the place of constructive notice given by the filing of
plats. Now. if the reasoning of these eases is followed a step fur-
ther, we would conclude that in the case of depot grounds the plat
in the local land office must either show the grounds claimed by
the company, or in the absence of such a constructive notice. then
the company must be in possession of the grounds claimed for such
purposes in order to furnish the settler with actual notice. Tt seems
to be the purpose and intent of the government to give either actual
or constructive notice to settlers and purchasers of the public lands
over which rights of wav are claimed and on which depot grounds
are selected. The act of March 3, 1875, seems to reanire that the
purehaser of lands over which a right of way is claimed or on which
depot grounds are selected. shall pay for the entire legal subdivision,
and that he takes the title to the whole thereof “subject to such right
of way,” savs the statute. The rules of the Interior Department
also require that the settler shall pay for the whole subdivision and
his patent is accordingly issued therefor, Tt seems to he a conceded
fact in this ease that the profile map or plat filed by the company
with the Secretary of the Interior showed these grounds as
39 claimed by the company for depot purposes, and the whole
trouble revolves about the fact that this selection was never
noted on the plats in the local land office. and that plat was lost or
misplaced and was never supplied.
Counsel for respondent contend that this was a mere clerical duty
required to be performed by the Register and Receiver of the land
office and that their failure to do so was no fault of the railway com-
pany. Counsel for appellant. however, contend that since the only
acts required to he performed by the company in order to reserve this
THE OREGON SHORT LINE RAILROAD COMPANY. 21
land was the filing of the plat or map and having it approved and
the selection noted on the plats in the local land office, it was the
duty of the company to see to it that all these acts were performed
and that the failureto do so was more the fault of the company than
it was of the settler or purchaser of these lands, and that the loss
should therefore fall upon the one most culpable and blamable
therefor. It appears to us that since the railway company had not
taken actual possession of the grounds claimed for depot and station
site, and have never done so, and have never exercised any acts of
control or ownership or evidenced any claim of the right of posses-
gion. and have never seen to it that the selection was properly noted
on the plat, the loss should more justly and properly fall upon it
than upon the settler and purchaser. Defendant testifies that he
never had any notice or information that the company claimed ans
more ground than was embraced in its right of way and it does not
appear that his grantor or the original settler and patentee ever had
any notice or knowledge of such claim on the part of the railway
company. Tf this claim can he maintained against the defendant
there is not a doubt but that a like claim could be maintained against
any other settler along the line of respondent’s road between
40 Boise and Nampa. Tt is easy to understand howa settler would
take a forty or eighty acre tract with a railroad right of was
running across it, but it would be very different with one taking a
forty or eighty acre tract, or even a hundred and sixty, where he had
not only to give a 200 foot right of way. but twenty acres additional
for depot grounds. And again, where he has neither actual nor con-
structive notice of the claim nor of its definite location within the
hounds of his preemption he has absolutely no protection. — Tere
the matter ran for over seventeen years before the company asserted
any right or claim to this ground. During such time as it main-
tained a station at Meridian all its buildings and side tracks were on
its right of way. It seems to us that whatever right the railway cor-
pany may have initiated by filing its profile map with the Secretary
and procuring his approval therof, it forfeited and lost: the same
through failure to perfect and mature the claim by either completing
the constructive notice in having the selection noted on the land
ollice plats or in the absence of that by taking possession of the
grounds ¢loin
The statute. efter enumerating the aet~ to he performed, namely ;
filing the profile map, and its approval by the Secretary and the
notation on the plats of the local office, provides that “thereat rT, —
subsequently, afterward, after) that—all such lands over which
tights of way pass “shall be disposed of subject to such right of
way.” This of course has reference only to the purely constructive
novice where the read has not been huilt and no possession has beec
teken. The “thereafter” used in this statute must refer as much to
the notation on the plats of the loeal land office as te the filing of
the plat itself, but when once done would probably relate back to
the date of the first act—that is to the filing of the plat;
4] provided the land had not in the meanwhile heen “disposed
’
of.’
vo
22 ALEXANDER R. STALKER ET AL. VS.
The judgment in this case should be reversed and a new trial
granted, and it is so ordered, and the cause is remanded. Costs of
appeal awarded in favor of appellants.
Sullivan, J., coneurs. .
42 In the Supreme Court of the State of Idaho, November Term,
1906.
No, —.
OREGON Suorr Line Rartroap Co., Respondent,
Vs.
A. R. Starker and EMAuine SraLKer, Appellants.
Petition for Rehearing.
On Appeal from the District Court of the Third Judicial District of
the State of Idaho in and for Ada County.
Hugh E. MeElroy and Frank Martin, Attorneys for Appellants.
P. L. Williams and D. Worth Clark, Attorneys for Respondent.
Filed ——. —, 1907, ——— ——, Clerk,
43 To the Honorable Supreme Court of Idaho:
Tn view of the importance and far reaching effect of the decision
rendered in this cause, and believing, after a careful reading of the
opinion filed, that the sume was rendered under a misapprehension
of the facts as shown by the record, and under a Misepprehension of
the law as applied to those facts, we respectfully petition the court to
grant a re-hearing in this cause,
Nature of the Cause of lection.
It is said in the opinion that “This is an action in ejectment, in-
stituted by the plaintiff, the Oregon Short Line Railroad Company,
to recover possession of four lots in Rowan’s addition to the Town of
Meridian, in Ada County.” We would respectfully suggest to the
court that this action is net in any sense an action in ejectment,
This action is merely the ordinary action. to quiet title, brought
under the statutes of the State of Tdaho. No possession is alleced
in the defendant, and this action is brought to determine any ad-
verse Claims of the defendant. It is primarily then an aetion to quiet
title and not an action of ejectment. We eall this manifest error
to the attention of the court for the purpose of enabling the eourt to
correct its decision in this reeard. if it desires to do x0.
The Statement of Facts.
It is said in the opinion “That the agreed statement of facts
44 in this case is very meager and in some respects indefinite.”
As we understand this action there was but one question de-
THE OREGON SHORT LINE RAILROAD COMPANY. 23
cided by this court, and that was: Did Reed, the patentee, take legal
subdivisions covered by his patent, subject to or exclusive of the rail-
road company’s right of way and station grounds? It being ad-
mitted in the argument that this question depended upon one fact,
that fact being, whether or not it was necessary for the railroad
company to see to it that the local land oflicers at Boise made the
necessary notation upon the plats in the land office. The stipulated
facts in this ease very clearly show that the maps of these station
grounds were filed in the local land oflice at Boise prior to the date
of the homestead entry of Reed, and that these maps were subse-
quently approved by the Secretary of the Interior and returned to
the local land office at Boise, and were subsequently lost, without any
notation being made upon the plats, and that the plaintiff did all
that it was required to do in every way, and was not negligent in
any particular, unless it was its duty to attempt to compel the offi-
cers of the local land oflice to do their duty and make this notation
upon the plats. Upon the point decided by the court it seems to us
that the stipulated facts show everything necessary for a decision.
Effect of Possession of Land.
Again it is said in the opinion of the court,
“That it appears that the railroad company has never occupied
or used any of the ground that it now claims for depot and station
grounds, On the other hand the only specific evidence we have of
the entryman or his grantees exercising any particular acts of
dominion or ownership or right of possession over this eround is
that of Rowan’s platting the ground as an addition to the Town of
Meridian. This, however, is very clear evidence that Rowan at that
time claimed the ground as his own and did not recognize it as be-
longing to the railroad company.”
45 We fail to understand what rights, if any, Rowan could
acquire in this land by platting it, Certainly that would not
give him any title and would not be evidence of any title, nor would
it be evidence of title such as Rowan could found a claim of adverse
possession upon, and it does not seem to Us that in arriving at a
decision in this case the fact that Rowan platted this land should
in any manner or to any extent influence the decision of the court.
On the other hand, the railroad company having filed its map and
the same having been approved, the railroad company had the legal
title and therefore the legal possession.
Ri spond nt Cannot Lose Rights hy ive qleet of Officials,
Again it is said in the decision:
“Tt was the duty of the company to see to it that all those acts
were performed and that the failure to do so was more the fault of
the company than it was of the settler or purchaser of these lands,
and that the loss should therefore fall upon the one most culpable
and blamable therefor.”
We do not understand that it was the fault of either the company
24 ALEXANDER R. STALKER ET AL. VS.
or the settler that this notation was not made upon these plats. The
land officers at Boise failed to do their plain duty under the statute.
And we do not believe that either the company or the settler were at
fault in that matter because neither had any power to compel a per-
formance of this duty. Neither do we understand that either the
railroad company or the settler were in any way culpable or blamable
on account of such failure of duty upon the part of the land officers,
The company did all that they were required to do under the statute,
It was not within their power to compel the land officers to make
this notation upon the plats. It was not within their power to pre-
serve the maps, and in this particular case the maps finally were
lost; and following the line of reasoning adopted by the court
46 we might say that the company was more culpable and blam-
able on account of the loss of these maps than was the settler,
because the inference would be, from the reasoning of the court, that
it was the duty of the company to guard these maps and see to it that
they should remain safely deposited in ‘he oflice of the Register and
Receiver at Boise. We do not so understand the law, and in that
regard call the attention of the court to the case of Van Wyck vs,
Knevals, 106 U.S., 360 (27 L. Ed. 201). In that case the following
language was used:
“The inquiry then arises, when is the route of the road to be con-
sidered as definitely fixed so that the grant attaches to the adjoining
sections? The complainant in the court below, who derives his title
from the company, contends that the route is definitely fixed within
the meaning of the act of Congress when the company files with the
Secretary of the Interior a map of its lines, approved by its directors,
designating the route of the proposed road. On the other the de-
fendant, the appellant here, who acquired his interest by a subse-
quent settlement on the lands and a patent therefor, contends that
the route cannot be definitely fixed so that the grant attaches to any
particular sections and cuts off the right of settlement thereon until
the lands are withdrawn from market by order of the Secretary of
the Interior and notice of the order of withdrawal is communicated
to the land officers in the district in which the lands are situated.
We are of the opinion that the position of the complainant is the
correct one. The route must be considered as definitely fixed when
it has ceased to be the subject of change at the volition of the com-
pany. Until the map is filed with the Secretary of the Interior the
company is at liberty to adopt such a route as it may deem best, after
an examination of the ground has disclosed the feasibility and ad-
vantages of different lines, but when a route is adopted by the com-
pany and a map designating it is filed with the Secretary of the
Interior, and accepted by that officer the route is established. It is,
in the language of the act, “definitely fixed,” and cannot be the sub-
ject of future change, so as to affect the grant, except upon legislative
consent. No further action is required of the company to establish
the route. It then becomes the duty of the Secretary to withdraw
the land granted from the market: but if he should neglect his duty
the neglect would not impair the rights of the company, however
prejudicial it might be to others.”
THE OREGON SHORT LINE RAILROAD COMPANY. 25
This is the decision of the court of final resort in this class of cases,
and it seems to us fairly and squarely decides that the neglect of an
officer cannot operate to defeat the grant.
In the case of Lytle et al., vs. The State of Arkansas et al., 9 How.
U.S., 314 (13 L. Ed., 153), the court lays down the general
47 rule governing this question in the following language:
“It is a well established principle that where an individual
in the prosecution of a right does everything which the law requires
him to do and he fails to attain his right by the misconduct or neglect
of a public officer the law will protect him.”
In the case of Goist vs. Bottum, 5 L. D., 645, the Secretary of the
Interior, in discussing a kindred question, uses the following lan-
guage :
“Both parties throughout seem to have acted in entire good faith
and done that which the law required in order to secure title to the
desired land. The whole ditliculty has arisen from the failure of the
local officers to keep their records properly posted. Matters being
thus in equi librio a most careful scrutiny of the whole case is im-
peratively demanded.”
And again, on page 646, in the same decision, the court uses the
following language:
“It follows naturally from this premise that the failure of the
local oflicers to have noted upon the proper records of their oflice his
claim against said tract cannot be permitted to work to his prejudice,
inasmuch as he had done all the law required of him and the officers
alone were derelict in this duty.”
In the case of Linville vs. Clearwaters et al., 11 L. D., 356, the
court uses the following language:
“The entry of Clearwaters having been allowed segregated the
land, even though it may not have been entered of record, and the
failure to place it of record would not affect his rights.”
There are a great many other decisions found reported in de-
cisions of the Department of the Interior to the same effect, and, as
before shown, these decisions of the Department of the bnterior are
in accordance with the Decision of the Supreme Court of the United
States, the court of last resort in this class of cases,
In the case at bar it cannot be contended that the plaintiff failed
to do anything that it was required to do under the statutes. There-
fore the only question is, whether or not the plaintiff can be held
liable for the neglect of the local officers in failing to make
48 the proper notation upon the plat. That being true, it seems
to us that this question falls squarely within the decisions
cited above, and that these decisions are controlling.
Similar to the rules of law laid down in the above authorities
is the rule of law ao to the destruction of a record. This rule, as laid
down in the second edition of the American and English Eneyclo-
pedia of Law, is as follows:
*A grantee in an instrument evidencing a conveyance to him
who has complied with the requirements of the law in effecting the
record of the instrument cannot lose the effeet given to such reeorda-
tion by a subsequent destruction of the record, as by fire or other
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26 ALEXANDER R. STALKER ET AL. VS.
cause, and in the absence of any statutory requirement he is not
obliged to record the instrument a second time or to do any other
act to notify purchasers in order to protect his rights acquired there.
under.”
24 Am. Eng. Ene. of Law, p. 153 (2nd edition),
The weight of authority also seems to be that when a grantee has
duly deposited for record a valid instrument, at the proper time, in
the proper office, and with the proper officer, he has performed his
whole duty, and subsequent purchasers will be charged with con-
structive notice notwithstanding the officer does not properly spread
the instrument on the record book or fails to record it at all’
Polk vs. Cosgrove, 4 Biss. U. S., 437.
Hudson vs. Randolph, 66 Fed. Rep., 216.
Seibold vs. Rogers, 110 Ala, 438,
Buckner vs. Davis. 43S. W., 445 (Ky.).
Deming vs. Miles, 85 Neb., 739; 37 Am. St. Rep., 464.
Schell vs. Stein, 18 Am. Rep., 416 (Pa.).
Nichols vs. Revnolds, 36 Am. Dee., 238 (R. I.).
Throckmorton vs. Price, 91 Am. Dee., 334.
The only object of the recording statutes is to give notice, and the
statutes all provide that it is the duty of the person desiring to give
notice to have his instrument recorded. How much stronger then
are the decisions in regard to the failure of an officer to record an
instrument than it would be necessary to go in the ease at
49 bar. In this case the object of the statute is not so much a
question of notice to the publie as it is the fixing of a floating
grant. As soon as the grantee selects land subject to the erant and
in the mode prescribed by the Department advises the Department
of such selection the grantee has done all the law requires and the
grant has fixity not only of the grantee but of the thine eranted.
Besides that, it is not the duty of the railroad company to deliver
these maps to the local land office so that the proper notations may
be made upon the plats, but that is done by the Secretary of the Tn-
terior, Tt is only the railroad company’s duty to deliver the plats
to and file them with the loeal land officers. They are then for-
warded by the local land officers to the Secretary of the Tnterior, who
either approves or rejects them, and if he approves the Seeretary
then returns the maps to the local land officers for notation upon
the plats. It will thus be seen how much stronger the decisions
affecting the recording of instruments are in our favor, and how
much further they eo than it is necessary to go in this ease. Of
course we do not contend that the decisions as te the reeording of
instruments are controlling of the ease at bar. but we do contend
that the reasoning is analogous, and that such decisions go much
further than it would be necessary to go by the court in this ease in
order to decide it in our favor.
THE OREGON SHORT LINE RAILROAD COMPANY. 27
Title Passed Upon Approval of Maps.
As was said in the case of Phanix & Eastern Railway Company vs.
Arizona Railway Company, 84 Pac., 1097:
“Tt appears to us that the act of Congress contemplates for the
acquisition of title by a railroad company that the company shall
perform three acts: First, it shall file with the Secretary of the In-
terior a copy of its Articles of Incorporation and due proofs of its
organization, thus formally advising all persons interested, and more
particularly the grantor, the United States, that it proposes to avail
itself of the grant; second, it shall locate its road; third, it shall
fle with the Register of the land office for the district where the
land is located a profile of its road and secure the approval
50 of it by the Secretary of the Interior, thus consummating the
acquirement of legal title to the right of way.”
The following authorities hold that the legal title vests upon the
approval of the profile by the Secretary of the Interior except in cases
where rights are aequired by actual construction of the road.
Noble vs. Union ete., Ry. Co., 147 U. S., 165 (37 L. Ed. 123).
Enoch vs. Spokane F. & N. Ry. Co.. 33 Pac., 966.
In the late case of Catheart et al. vs. Minnesota & Manitoba Retl-
way Company, 34 1. D.. G19 Mr. Secretary Hitchcock uses the fol-
lowing language:
“Tt would seem that the approval of the map of definite location of
the right of way and station grounds and selection of said lots was
an adjudication by the Secretary of the Interior that the same were
needed for such purposes, and while it does not appear that said lots
outside of the right of way and station grounds have as yet been
used by the company in the construction, maintenance, and operation
of its road, testimony was submitted to the effect that it was and still
‘< the intention of the company to use the same for terminal pur-
poses. Tf there was any part of lot three and four left to which
Catheart’s right under this settlement could attach after the appro-
nriation of the railroad company for its right of way and station
erounds and the forty acres to which it was entitled under its grant,
he might be allowed to make entry of said lots, subject to the com-
pany’s rights to the portion claimed by it under its grant. but said
company’s rights appear to cover the entire lots. In view of the
situation in this ease it) would not seem to make any difference
whether the grant in question to the railroad company he held to
convey a base fee or merely an easement. Under the decision of the
court in the case of Northern Pacific Railroad Company vs. Smith
(supra). until a forfeiture has heen declared for misuser or nonuser
said lots cannot be entered by Catheart and such forfeiture could
not he enforced in a private action.
As to the townsite applicants it appears that the rights of the rail
road eommpany under its grant attached on July 13, 1900, upon the
filing of its map of definite loeation of right of wav and. station
erounds, and appropriation of lets 8 and 4, and that the road was
28 ALEXANDER R. STALKER ET AL. V3.
constructed through said lands long prior to the passage of the act
extending the townsite laws to lands within such reservation. Most
of the townsite xettlers came upon the land subsequent to the comple.
tion of the road or with the knowledge of its intended construction.
Tt was held in the case of Link vs. Union Pacifie Railroad Company,
6 L. D., 322, that the construction and operation of a railroad jg
sufficient to put subsequent settlers within the limits of the grant on
inquiry as to the rights of the road and parties claiming adversely
thereto.”
See also:
Northern Pacific Railroad Co. ve. Smith. 171 U. S.. 260 (43
L. Ed., 157).
51 Under these authorities when the Secretary of the Interior
approved our maps for these station grounds at Meridian that
Was an adjudication of the fact that they were necessary for such
purpose, and that the grant attached at the time of filing the map.
This grant having attached by the filine of the map, and our rights
thereto having heen adjudicated in our favor by the Secretary of the
Interior, and our road having heen eonstrneted. may we ask when
our rights were lost or forfeited? The Government has never com-
plained. The United States has therefore granted us certain lands.
and after such grant was made had no power to take it away from
us except perhaps for fraud or some condition subsequent contained
in the grant.
Necessarily, therefore. anv subsequent right granted hv the Gov-
ernment to these same lands mnst be subject to our right of way
and station grounds theretofore granted. Certainly a third party
whose rights subsequently attached under our grantor is not in a
position to insist upon the United States declaring a forfeiture on
account of the neglect of its own officers. The real question, as we
understand it, is a question of title. The court by usine the ex-
pression “forfeited” in discussing our rights seems to assume that
we at one time had rights in this land. Tf we did if sur erant ever
attached then we fail to understand how we lost it, or what right
the appellants here have to insist upon a forfeiture.
In the opinion of the court in this ease it is said that the defend-
ant never had any notice or information that the company claimed
any more ground than was embraced in its right of wav, and it does
not appear that his grantor or the original settler and patentee ever
had any notice or knowledge of any such claim on the part of the
railroad company. Tt seems to us that the facts in this ease very
clearly show that Rowan knew of the railroad claims. as it is
52 ineredible that Rowan. if he believed that he had absolute
title in fee simple to this ground with the exclusive right
of possession thereof never took possession and did not undertake to
exercise any dominion thereover until after the vear 1900. Tle sold
lots and buildings were erected all around and adjacent to this par-
ticular tract comprising the railroad station grounds. There cer-
tainly can be no question under the evidence in this ease but that
both Rowan and Stalker knew that the railroad company claimed
station grounds at this point. Tt mav he that they did not know the
THE OREGON SHORT LINE RAILROAD COMPANY. 29
exact boundary lines of such station erounds, but knowing that there
were station grounds at this point it certainly became their duty to
inquire as to the boundary lines of these station grounds.
Again it is said in the decision:
“Tt seems to us that whatever right the railway company may have
initiated by filing its profile map with the Seeretary and procuring
his approval thereof it forfeited and lost the same through failure te
perfect and mature the claim by either completing the constructive
notice in having the selection noted on the land office plats or in the
absence of that by taking posse=sion of the grounds claimed.”
Wo submit that if the railroad company had any right there the
only person who could take advantage of the forfeiture thereof would
he the United States Government, and as long as the Government
does not complain that ne ene else can complain. Tt seems, however,
that this conrt in deciding this question has gone upon the theory
that the notation upen the plat: of the loeal land office is a condition
precedent to the grant of the rieht ef way. Tf that is true then no
rights could he acquired by the railroad company until these plats
were approved, Certainly if this act was 9 necessary one and one
upon the performance of which our title depends. then we could not
in any way acquire title nmless this act was done. The rule, however,
cooms to he that under the Act of Mareh 3. 1875. the grant hecomes
fixed definitely either by the actual construction of the rail-
53 road before the filing of the profile thereof or in advance of
construction by filing a profile as provided in Section 4.
Jamestown ete.. R. R. Co. vs. Jones, 17% U. S.. 125, 44 L.
Fad., 698.
R. CG. W. Rv. Co. vs. Telluride ete. Co.. 175 U. S.. 639, 44
L. Ed., 395.
This act does not operate as an absolute grant in presenti, but in-
stead is simply an offer to all the railroad companies and takes effect
as a grant to any particular company when such company complies
with the provision of the act by locating it< road and filing a profile
thereof in the land office, this rule. however, being subject to the
qualification that the erant hecomes fixed definitely by the actual
construction ef the railroad before the filine of the profile thereof,
Spokane Falls ete. Ry. Co. vs. Zigler, 167 U. S., 65, 42 TL.
Ed., 79.
In this respect we again quote the lnnenage contained in Railroad
Company vs. Downey. & TD. 115. this lanenage being quoted in
the respondent’s brief in this ease:
“Tt seems to me clear that the purpose of Coneress in this fourth
section was only to provide means by which railroads could define or
definitely loeate a rieht of way two hundred feet in width, with station
erounds, ete. desired hy the road, which was to he thereafter con-
structed. and that. as in the case af other erants or floats, the richt
of the erantee in its relation to cettlers on publie lands attached from
the date of filing the map of definite location.”
Also the quotation from the opinion rendered by the Tlonorable
Secretary of the Interior in the matter of the St. Paul, Minneapolis
eG
80 ALEXANDER R. STALKER ET AL. VS.
and Manitoba Railway Company, reported 26 L. D., 181. After
quoting in full Section Four of the act of March 3, 1875, the Hon.
orable Secretary says:
“Where a company has complied with the law by filing its Articls
of Incorporation and due proofs of organization it is clearly entitled
to a grant under the act of March 3.1875 (supra). To secure this
right, however, it must file maps of the location of its road. and
plats of necessary station grounds. Tt is true the law makes the maps
and plats filed by the companies subject to approval by the
54 Secretary of the Interior, and it would seem that until ap-
proved no right is vested in the company thereunder.
After filing the maps and plats as required by the statute the com-
pany has done every act necessary to be performed on its part.
Much time must necessarily elapse before these maps ean go
through the regular course of examination and he presented to the
Secretary of the Interior for his approval.
Ts the company’s right in jeopardy. althoueh it may be in the
actual use of the land during this period, and ean its right be made
to depend upon the action of others. as would be the result of vour
office decision? Tt is not believed that such was the intention of
Congress, but rather that in determinine whether a map should he
approved the condition existing at the time of its filing must con-
trol.”
We submit, therefore, that this question is not a question of
whether the appellant or the respondent were at fault or blamable
or culpable heeause under the facets in this ease neither the appellant
nor the respondent were at fault or blamable or eulpable. The ay
pellant no doubt acquired the title to his property in good faith: at
least there is no specifie evidence that he did not acquire it in good
faith. The respondent certainly acquired whatever rights it has in
good faith, and under the Act of March 8, 1875, the respondent did
every act and thing required of it by the statutes, but when these
plats came back to the local land officers at Boise they failed to do
their duty under the statute. Under the deeisions above cited the
right of the railroad company became definitely fixed when the maps
were filed and approved by the Secretary of the Interior. There was
then nothing further to do by the railroad company. These maps
had passed out of their hands and out from under their control,
When they were approved by the Secretary the railroad company’s
right attached. The railroad company had no power to compel the
Register and Receiver at Boise to make notations upon Government
plats. These plats upon which these notations were to be made were
Government property entirely under the control of the Register and
Receiver. There were simply a record in his office the same
5D ax any other book or paper in the offiee, and if the Register
and Receiver failed to properly keep his records it does not
seem to us that such failure would be the fault of the railroad com-
pany or that they would he either culpable or blamable therefor.
We submit, therefore. that under the decisions above cited our rights
became complete when the Secretary of the Interior approved the
maps, and that those rights could not be lost by the fault or eareless-
ness or negligence of public officials.
THE OREGON SHORT LINE RAILROAD COMPANY. 31
We therefore respectfully submit that a re-hearing should be
granted in this case.
Respectfully submitted,
P. L. WILLIAMS,
Db. WORTH CLARK,
Attorneys for Respondent.
Endorsed: Petition for Rehearing. Filed May 25, 1907. I. W.
Hart, Clerk.
56 In the Supreme Court of the State of Idaho. November
Term, 1907.
(On Rehearing.)
‘
Filed Feb. 27, 1908, I. W. Hart, Clerk.
Orecox Snorr Line Raipway Company, Respondent,
A. R. SraLker et al., Appellants.
Railroad Grant—Right to Station and Depot Grounds—Filing of
Profile Maps—Maps of Station Grounds — Approved of bv See-
retary of Interior—Notations of Plat of Local Land Otfice—Duty
of Local Officers—Neglect of —Nature of Title—Title.
1. Under the provisions of section 1 of an act of Congress approved
Mareh 3. 1875, 18 U.S. Statutes at Large, p. 482. granting to rail-
roads the right of way and station grounds through, over and upon
the public lands of the United States, a right of way is granted to
the extent of one hundred feet wide on each side of the central line
of the railroad, upon a compliance with the provisions of said act;
and there is also granted by the provisions of said section, ground
adjacent to such right of way, not exceeding twenty acres for station
buildings, ete., to the extent of one station for each ten miles of the
railroad,
2. Under the provisions of section 4 of said act, a railroad com-
pany desiring to secure the benefits of that act must file with the
register of the land oflice of the district where such land is located. a
profile of its road, and upon approval by the Secretary of the In-
terior, the same shall he noted upon the plats in said office, and
thereafter such lands, over which such right of way shall pass, shall
he disposed of subject to such right of way. The provisions
a7 of that section have no application to the method of securing
station gro mids.
8 Under the rules and regulations of the Interior Department,
approved January 15, TS8s. 12 1. D. 423. it is provided that if a
railroad company de-ires to avail itself of the provisions of that act
which erants ground adjacent to the right of way for station build-
ings, ete.. it must file for approval in each separate instance a plat
showing in connection with the public survey, the surveyed limits
32 ALEXANDER R. STALKER ET AL. VS.
and areas of the ground desired; and it is also provided in such regu-
lations that when there is received from the ollice of the Secretary
of the Interior a copy of an approved plat of the grounds selected
by the company for station purposes, etc., the local vilicers wil]
mark the towuship plat accordingly and make the lecessury holes
on the tract books, and note on the certilieate of entry of any of such
lands, in addition to the note concerning the right of way, that the
entry is permitted subject to the use and occupation of such rail-
road company for station purposes.
4. Said act of 1575, contams no requirements for the filing of
maps and plats designating the station grounds selected, and all
proceedings relative thereto are governed by the rules and regula-
tions of the Interior Department.
5. Where a railroad company desires to avail itself of the benetits
of said act in regard to station grounds, and does everything re-
quired by the law and ‘the regulations of the Luterior Department,
its right cannot be defeated through the neglect of the local officers
to make the proper notation, elc., required to be made by the rules
and regulations on the plats aud books of such vilice.
6. Where the railroad company filed in the local land otlice a plat
properly designating its station grounds on the 12th day of Sep-
tember, 1555, and on the lollowlug Ldsth day of Uctober, an
08 entryman entered the government subdivision on which
such station grounds were located, under the preemption
laws, and thereafter such plats were approved by the Secretary of the
Interior and returned to the local land oflice and the same were lost
or misplaced by such oflicers, and the proper hotations were not
made by them on their plats, the right of the railroad company
cannot be defeated because of such loss or neglect of duty by the
local oflicers.
7. The grant of the right of way and ground for station building
in said act, are grants in presenti, differing only from absolute pres-
ent grants in that the thing granted is indefinite and the name of
the grantee is not known, and in order to make the grant effectual,
it is necessary that there be a specific grantee and a definite location
of the thing granted.
S. After a railroad corporation complies with the provisions of
said act, such corporation becomes a grantee Just as specifically and
definitely as if its name had been written in said act.
¥. When a grantee selects lands subject to said grant and in
the mode prescribed by the Department of the Interior, and advises
the Department of such selection by filing its maps, he has done
all that the law requires of him, and the grant then becomes a fixity,
not only as to the grantee, but as to the thing granted,
10. Neither the law nor the regulations of the Interior Depart-
ment requires the grantee to go into the courts to compe! the local
land officers to perform the duties imposed on them by the regula-
tions or the statute. Their neglect of duty cannot defeat the ap-
pellant’s rights.
11. It is a well established rule of law that where an individual in
the prosecution of a right does everything that the law requires
THE OREGON SHORT LINE RAILROAD COMPANY. 33
him to do, and he fails to attain his right because of the mis-
59 conduct or neglect of a public officer, the law will protect him.
12. The rule that the one most at fault must suffer, when
two innocent persons are involved, has no application in this case,
as the railroad company is not at fault in any degree.
13. It is a well established rule as to the recordation of instru-
ments affecting real property, that when a grantee has duly de-
posited for record a valid instrument at the proper time, in the
proper office, and with the proper oflicer, he has performed his
whole duty, and subsequent purchasers will be charged with con-
structive notice, notwithstanding the officer does not spread the in-
strument on the records or fails to record it at all.
14. Under the provisions of said act of March 3, 1875, the nature
of the grant made as to the right of way and station grounds is a
base, qualified or limited fee and is more than a mere easement,
giving the exclusive possession and right of use of the land for the
purposes contemplated by the law, a reversionary interest remaining
in the United States to be conveyed by it to the person to whom
the land may be patented, whose rights will be subject to those of
the grantee of the right of way and station grounds,
15, Such grounds have the attributes of the fee, to wit, per-
petuity and exclusive use and possession.
16. When the Secretary of the Interior approved the maps for
the station grounds in question, that was an adjudication of the faet
that such station poms, were necessary for the purposes mentioned,
and the grant attached, and relates back to the time of filing the
maps.
17. As the grant in question took effect. the question of forfeiture
of such grant cannot be raised in this case, as the United States
is the proper party to raise such question.
60 1S. The conclusive presumption attending a United States
patent for lands proceeds upon the assumption that the pat-
ent was issued in a case where the department had the jurisdiction
to execute it. But if the department had no jurisdiction to convey
such land, freed from the rights of another, such presumption does
not prevail.
(Syllabus by the Court.)
Appeal from the Distriet Court of Ada County.
Hon. George H. Stewart, Judge.
Action to quiet title.
Judgment in favor of plaintiff.
Affirmed.
Hugh FE. McElroy and Frank Martin for appellants.
P.L. Williams, FL S. Dietrich, Wyman & Wyman, and D. Worth
Clark, for respondent.
61 SULLIVAN, J.:
This case was originally heard at the Mav term, 1907. of this
court, and the opinion therein was filed on May 15th, 1907. That
5—225
34 ALEXANDER R. STALKER ET AL. VS.
opinion appears in — Pac., —, and in it the facts as stipulated and
shown by the record, are set forth quite fully. A rehearing was
granted and the case was again orally argued and further briefs
presented by respective counsel at the November term: of this court,
The main question for decision is, did Reed, the preemption
claimant and patentee, under his preemption claim, take the leg.
subdivisions of the land included in his patent, subject to or ex.
clusive of the Railroad Company’s station grounds located thereon?
It appears that Reed initiated whatever right he had to the land
by a preemption filing dated October 18, 1888, and thereafter on
April 24, 1889, made his final preemption proof, and later received
a patent from the United States for said lands. It is stipulated by
the parties that at the date of said Reed’s preemption filing, the
railroad was actually completed and in operation across said land,
and that the railroad company caused to be made and filed in dupli-
‘ate with the register of the U. S. land office at Boise City, Tdaho,
that being the United States land office of the district in which said
land is situated, 2 profile or map of alignment of its said road in due
form, the center line of which corresponds to the center line of said
railroad as the same was thereafter constructed ; that said profile map
was upon February 17, 1888, duly approved by the Honorable Sec-
retary of the Interior and sent back to the said United States land
office at Boise; that said railroad from Nampa to Boise was con-
structed along said route prior to and was in operation on Sep-
tember Ist, 1888; that on September 12, 1888, said Railway Com-
pany caused to be filed in duplicate with the register of said
62 land office at Boise City, a map in duplicate showing the
tract of land now in controversy claimed for station grounds,
station buildings, turn-outs, side tracks, depot and water station:
that said map was by the said register transmitted to the Honorable
Secretary of the Interior and filed in his office September 20, 1888,
and was by him approved December 15, 1888, and returned to the
said register of the land oflice at Boise City.
And it appears from the record that the register of the local
land office failed to note upon the plats in his office the station
ground as shown by said maps as he was required to do by the regu-
lations of the Interior Department concerning railroad rights of
way over public lands under an act of Congress, which rules and
regulations were approved by the Acting Secretary of the Interior
January 13, 1888. 12 L. D. 423.) This record shows that the Rail-
road Company did all that it was required to do under said act
of Congress and the said regulations of the Interior Department, to
obtain the grant of the right of wav and the erant of the station
grounds. That being true, the question aries, shall the Railroad
Company lose its right simply because the officer of the government,
to wit, the register of the local land office. failed and neglected to
perform the duty required by him under said reeulation. to wit. to
note upon the plats in his office the station ground as indicated on
said maps filed with him.
There is no provision or requirement in the act of March 3. 1875.
(18 Stat. at Large, p. 482) requiring maps to be filed covering or
THE OREGON SHORT LINE RAILROAD COMPANY. 35
desionating station grounds. Section 1 of said act of Congress is as
follows:
“That the right of way through the publie lands of the United
States is hereby granted to any railroad company duly organized
under the laws of any State or Territory, except the District of Co-
lumbia, or by the Congress of the United States, which shall
is 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: also the right to take, from the publie
lands adjacent to the line of said road, material, earth, stone, and
timber necessary for the construction of said railroad; also, ground
adjacent to such right of way for station buildings, depots, machine
shops. side tracks, turn-outs, and water stations, not to exceed in
amount twenty aeres for each station, to the extent of one station
for each ten miles of its road.”
And the Ith Seetion of said act is as follows:
“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 surveved lands, and,
if upon unsurveved 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 wav shall pass shall be disposed of
subject to such right of wav: Provided, That if any section of said
roul shall not be completed within five vears after the location of
said section, the rights herein granted shall be forfeited as to any
such uncompleted section of said read.”
It will be observed from the provisions of said Ist section that “a
right of way is granted to the extent of one hundred feet on each
side of the central line of said read.” This provision refers to the
right of way; that is, the right of way granted is two hun-
(4 dred feet in width, one hundred feet on each side of the een-
tral line of the road. A subsequent provision in said section
also grants “grounds adjacent to such right of way for station build-
ings, ete., not to exceed in amount twenty aeres for such station, to
the extent of one station for each ten miles of its read.”
The only requirement with regard to maps and plats is found in
sald section -f where it is provided that the railroad company shall
“file with the regi-ter of the land office fer the district where such
land ts located. a profile of its said road.” and upon approval thereof
by the Seeretarv of the Interior, it is provided that the same shall
he noted upon the plats of said office. And it is further provided
that “thereafter all such lands over which such right of wav shall
pass shall he disposed of subject to sneh right of way.” Those pro-
Vistons apply only to the right of way. Under the provisions of said
act. the station grounds are no part of the right of wav but are
“adjacent to” the right of way. The word “profile” as used in that
act. is construed to mean a “map of alignment” by the 6th section of
36 ALEXANDER R. STALKER ET AL. VS.
regulations concerning railroad rights of way, (approved by See-
retary [Hitcheock, February 11, 1904, 82 L. D. 481.) Under the
provisions of said section 4, the railroad company desiring to ac-
quire the benefits of said act, must 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, such
profile must be noted upon the plats of the office by the district
officers, and said section also provides that “thereafter all such lands
over which such right of way shall pass shall be disposed of subject
to such right of way.” This requirement applies to the railroad
right of way and has no application whatever to the station grounds
provided for in the Ist section of the act. which must be “adjacent to
such right of way.” Said act of 1875 contains no requirement
65 for the filing of plats or maps designating the station ground
selected, and the procedure relative thereto must be looked
for in the rules and regulations of the Tnterior Department. 12
L. D. 423. In those regulations, the Acting Secretary constrnes
portions of said act. and under the regulations therein laid down,
it is provided that if the company desires to avail itself of the pro-
Visions of the law granting ground adjacent to the right of way
for station buildings. ete.. it must file for approval a plat showing in
connection with the public surveys. the surveved limits and areas
of the grounds desired, and upon approval of such maps by the
Secretary of the Interior. a copy must be transmitted to the proper
district land office and upon the receipt of such copy, the local offi-
cers are required to mark the proper township plat accordingly,
make the necessary notes on the tract hooks. and in disposing of the
tracts which may be included in the grounds so selected. the officers
must note on the certificate of entry. in addition to the note con-
cerning the right of wav. that the entry is permitted subject to the
use and occupation of such railrond eompany for station purposes,
In compliance with that regulation, maps were filed by the Com.
pany in duplicate, in the local land office on the 12th dav of Sep-
tember, 1888. showing the location of the station erounds, ete., as
required by said regulation. one of which maps was forwarded to the
Secretary of the Interior and approved by him on the 15th day of
December, 1888. and returned to the local land office. The record
shows that the Railroad Company did everything required to be done
both by the act of 1875 and the rules and regulations of the Depart-
ment in regard to the preparation and filing of the proper mans,
but the neglect of the local officers to note on the proper plats in
their office the location of such station grounds, it is claimed de-
feats the right of the railroad company to the grounds in
66 controversy. Tt is contende? that because said officers
neglected to make the proper .otations on their plats as re-
quired by said regulations, the Railroad Company has lost whatever
rights it might have secured had such offieers performed the duty
Imposed on them by said reeulation in that regard. :
Tt is clear. under the stipulated facts, that the Railroad Company
complied with all the duties Imposed on it both by the statute and by
BASIS
‘Sexi
THE OREGON SHORT LINE RAILROAD COMPANY. 37
the regulations of the Department to secure both the right of way
and the station grounds. The maps, after being returned by the
Secretary of the Interior and received by the local officers, were lost
without any notation having been made upon the plats in the local
office, Tt is not claimed that the respondent was in any manner at
fault in any one of those particulars, but that because of the neglect
of the local land officers to make the proper notations on their plats,
and the loss thereof, the railroad Company’s right to the station z
erounds has heen forfeited or never attached. Tt is contended that &
+t was the duty of the railroad Company to compel the officers of
the local land office at Boise to do their duty and make the proper
notations upon their plats as required hy the regulations of the land
department, We cannot agree with that contention. It would he
ist as reasonable to charge the loss of the plats to the Company
and hold it responsible for the loss.
Said plats were filed in_ the local Jand offiee on the 12th day of
September, TS88. and on the following 18th day of October, patentee
Reed made his entry. Tt does not appear from the record that said
map was not on file at the time he made the entry. There is nothing
in the record to show whether the final cortifieate to Reed or his
patent was expressly subject to the railroad’s right of way or station
erounds. Tt does not appear that the final certificate or pat-
67 ent did not contain such reservations.
While the Act of March 3. 1875, is ambiguons in some re-
spects, and its requirements are not altogether clear, the Land De-
partment has con-trued some of its provisions one way and the
courts another, the courts have agreed upon the proper construetion
of some of the provisions of said act. The courts have held that the
grants provided for in said section are grants in presenti, differing,
however, from absolute present grants in that not only is the thing
eranted indefinite, but also the grantee ix uncertain: that in order to
make the grant effectual. it becomes necessary that there he a spe-
cific grantee and a definite location of the thing granted. By all
authorities and decisions on the subject, it is conceded that as soon
asany corporation referred to in the first section of said act filed with
the Secretary of the Interior a copy of its articles of incorporation
aud due proofs of it oronnization.such corporation becomes a grantee
just as specifically and as definitely as if the name of the corpora-
tion were entered in the act itself. If that be true, the Railroad
Company becomes the grantee of station grounds with the same
force and effect as if the act of 1875 had specifically named it. The
erant. however, is still a floating one until by some proper means
the thing granted is located and defined. As soon as the grantee
selects land subject to the erant. in the mode prescribed by the
Department of the Interior. and advises the Department of such se-
lection by filing its maps. the grantee has done all that the law
requires of him. and the rant then becomes a fixity, not only as to
the grantee, but of the thing oranted,
But counsel for appellant contends that a notation upon the maps
is a condition precedent to the grant, It is urged that the law fixes
as definitely as language can the event after which the land shall be
38 ALEXANDER R. STALKER ET AL. VS.
disposed of subject to the claim of the Railroad Company, and that
event is after the notations made on the plats, which act is
68 required to be made there by the rules of the Land Depart.
ment and not by the law. We do not question the authority
of the Land Department to make proper rules and regulations in the
general conduct of its business, and it is conceded that the railroad
Company complied with those rules and regulations in filing proper
maps of its said station: but it contends that after it has done all
that the law and the regulations require, its grant cannot be defeated
by the neglect of an official to perform his duty; that its right to
said station ground attached from the date of its filing the map of
its station ground with the local officers and the approval thereof
by the Secretary of the Interior. We fully concur in that position,
In Railroad Co, v. Downey, 8 L. D. 115, which was a ease involy-
ing the station grounds of a railway company, the Honorable Secre-
tary of the Interior said:
“Tt seems to me clear that the purpose of Congress in this fourth
section was only to provide means by which railroads could define
or definitely locate the right of way of 200 feet in width, with sta-
tion grounds, ete., desired for the road whieh was to be thereafter
constructed; and that, ax in the ease of other grants, or ‘floats. the
right of the grantee in its relation to settlers on publie lands at-
tached from the date of filing the map of definite location.”
In the case at bar the Railroad Company did file its maps of
definite location of its right of way and station grounds prior to the
preemption claimant filing on said land.
There is not now nor has there been at any time any statute of
the United States or regulation of the Department of the Interior
that makes it the duty of an applicant for a railroad right of way
or station grounds to see to it that the local land officers perform the
duties imposed on them by the regulations or the statute. The fail-
ure of the local oflicers to make the required notation on the
69 plats was nothing more nor less than the failure of. such
officer to properly keep a record in his office. and such failure
cannot be charged up to the applicant and his rights defeated be-
cause of such neglect or failure. That negleet cannot defeat the ap-
plicant’s rights as the law does not impose on him the duty of seeing
to it that the local officer keeps his records as the regulations require.
The respondent having complied with the law and regulations of
the Land Department in filing its plats and securing the approval
thereof by the Secretary of the Interior, its rights cannot be defeated
heeause of official negleet of a clerical duty. TIad Reed. the pre-
emption claimant, made his entry prior to the date of the filing of
the maps by the Railroad Conipany and the local land officer failed
to comply with the land office regulations in regard to making the
proper entry in the land office hooks and on the proper plats of such
entry, and the railroad Company had filed the map of its station
grounds subsequent to such entry, under that state of facts no one
would contend that Reed had lost his prior right because the land
officers had failed to make the proper entries in the land office books
and plats, and it would not be necessary for Reed, under those facts,
THE OREGON SHORT LINE RAILROAD COMPANY. 89
to go into the courts to compel the land officers to perform their
duty in order to protect his rights from a subsequent entryman.
Neither was it necessary for the railroad company to resort to the
court to prohibit the local officers from losing or misplacing the
maps, nor to compel them to comply with the regulations of the
Land Department in the matier of keeping their books and making
the required notations on the land oflice plats.
In the case at bar, under the regulations of the Land Depart-
ment, it was the duty of the register to make some notation whereby
others might be informed as to the rights of the Company in and to
said station grounds, but their failure to do so cannot work to the
injury of the Railroad Company. similar question has
70 been passed upon a number of times by the Secretary of the
Interior. In the case of Goist v. Bottum, 5 L. D., 645, the
Secretary of the Interior in discussing a kindred subject, uses the
following language:
“Both parties throughout seem to have acted in entire good faith,
and done that which the law required in order to secure title to the
desired land. The whole difficulty has arisen from the failure of
the local officers to keep their records properly posted. Matters be-
ing thus in equilibrio a most careful scrutiny of the whole case is
imperatively demanded.”
And again on page 646 of the same decision, it is said:
“Tt follows naturally from this premise that the failure of the local
officers to have noted upon the proper records of their office his claim
against said tract, cannot be permitted to work to his prejudice in-
asmuch as he has done all the law required of him, and the otlicers
alone are derelict in this duty.”
In the case of Linville v. Clearwaters, 11 L. D. 356, it is said:
“The entry of Clearwaters having been allowed, segregated the
land. even though it may not have been entered of record, and the
failure to place it of record would not affect his rights.”
The Department of the Interior has, so far as we know, held to
this rule. and the cases decided so holding are very numerous and
among them are the following: Pomeroy v. Wright. 2 L. D. 164;
Coal v. Markrey. 2 L. D. S470. Post v. Strickler, 3 L. D. 42:
Hawkins v. Lann. 9 L. D. 18; Edward Young, 9 L. D. 32; Baird v.
Chapman, 10-1. 1D. 210: Richardson v. Moore, 10 LL. D. 415: Yates
v. Glafeke. 10 L, D. 675.
In the Matter of Edw. B. Chase, 1 L. D. 81, the Honorable Secre-
tary Teller said:
71 “Thus it appears in the light of the foregoing summary
of the history of this case that Chase’s application in ques-
tion was regularly and properly made at the time when the tract
applied for was vacant public land, and therefore subject te such
entry. The failure or refusal of the register to accept and properly
note upon their office records his original application, and amend-
ment of the same, could not jeopardize his rights in the premises.”
It is thus made to appear in the view taken of this question by the
Department of the Interior, that the failure or refusal of the register
40 ALEXANDER R. STALKER ET AL. VS.
to properly note upon his office records applications for public lands
would not jeopardize the rights of the parties. The rule there stated
is the rule of decision as made by the Land Department, and it js
also the law as laid down by the Supreme Court of the United States.
In Van Wyck v. Kneveals, 106 U.S. 860, Mr. Justice Field, speak-
ing for the court, said:
“The route must be considered as ‘definitely fixed’ when it has
ceased to be the subject of change at the volition of the company,
Until the map is filed with the Secretary of the Interior, the com-
pany is at liberty to adopt such a route as it may deem best, after an
examination of the ground has disclosed the feasibility and advan-
tages of different lines, but when a route is adopted by the company
and a map designating it is filed with the Secretary of the Interior,
apd accepted by that oflicer, the route is established: it is, in the lan-
guage of the act, ‘definitely fixed,” and cannot be the subject of
future change, so as to affect the grant, except upon legislative con-
sent. No further action is required of the company to establish the
route. It then becomes the duty of the Secretary to withdraw. the
land granted from the market; but if he should neglect this
72 duty, the neglect would not impair the rights of the com-
pany, however prejudicial it might prove to others.”
There it is held that if the Secretary of the Interior should neglect
his duty, such negleet would not impair the rights of the company,
however prejudicial it might be to others. That is the decision of
the court of final resort in this class of cases. and it seems to us fairly
and squarely decides that the neglect of an oflicer cannot operate to
defeat a grant.
In Lytle v. The State of Arkansas, 13 L. ed. 314. the Supreme
Court of the United States lavs down the general rule governing
this question in the following language:
“Tt is a well established principle that where an individual in the
prosecution of a right does evervthing which the law requires him
to do and he fails to attain his right by the misconduct or neglect
of a public officer, the law will protect hin.”
Under the law and regulations of the Interior Department, after the
railroad company has filed its map with the local officer, its duty
ends. It is made the duty of the local oflicer to forward the naps to
the Secretary of the Interior. In approving or rejecting such lifaps,
the Secretary of the Interior acts in a judicial capacity and after he
has acted and approved the maps, the title of the company is com-
plete. There ix nothing further for the railroad company to do,
As to what shall be done with the maps after the approval, and as
to what record shall be kept of them is a matter solely for the See-
retary of the Interior to say, as the law is silent and does not require
any record to be kept thereof. As the law does not require the See-
retary of the Interior or the local land oflicer to keep any records of
station grounds, the railroad company, if it went into court for the
purpose of compelling the register to make notations of such grounds
on his maps, would have no law to support such action and would
THE OREGON SHORT LINE RAILROAD COMPANY. 41
only have the regulations of the Department. We conclude
73 that the failure of the land oflicers to do their duty could not
in any way prejudice the rights of the railroad company to
the station grounds at Meridian.
If it be conceded that section 4 of said act of Mareh 3rd, 1875,
has the force and effect of a statute requiring a record of an instru-
ment affecting the title to real property, the great weight of au-
thority seems to be that when a grantee has duly deposited for record
a valid instrument at the proper time, at the proper office and with
the proper oflicer, he has performed his whole duty and subsequent
purchasers will be charged with constructive notice, notwithstanding
the officer does not spread the instrument on the records or fails to
record it atall, 24 Am. & Eng. Ene. of Law, 2nd ed. 71; Farabee v.
MecKerichan, 51 Am. St. Rep. 464.
A question is suggested as to the nature of the grant. The Ton-
orable Acting Secretary of the Interior in a Cireular approved Jan-
uary 13, 1888, 12 L. D. 428, declares that “The act of March 5.
1875. is not in the nature of a grant of lands: it does not convey an
estate in fee either in the ‘right of way’ or the grounds selected for
depot purposes. It is the right of use only, the title still remaining
in the United States.” That construction of that provision of said
act was simply the opinion of the Acting Secretary of the Interior
and was not binding on his suecessors in office, nor on the courts.
Secretary Hitchcock, in a circular containing regulations in’ re-
gard to acquiring rights of way. ete. under the provisions of said
Act of March 3, 1875, approved February 11, 1904, 352 L. D. 481,
said :
“The act of Mareh 3, 1875, is not in the nature of a grant of
lands: but it is a base or qualified fee, giving the possession and
right of use of the land for the purposes contemplated by the
74 law, a reversionary interest remaining in the United States,
to be conveved by it to the person to whom the land may be
patented, whose rights will be subject to those of the grantee of the
right of way.”
While that definition may not be entirely clear, it indicates or
contemplates an estate entirely different from a mere easement. We
think that Cefinition contensplates that the entire estate is by said aet
eranted to the railroad company limited and qualified only in’ that
the land shall be used for the purposes specified. Tf the land is for-
ever nsed for those purposes, the grant is absolute and perpetual and
the title will only revert when the land ceases to be used for the pur-
poses specified.
It was held by Secretary THiteheock in Melder v. White, 28 T.. D.
412. that the Northern Pacific Railroad Company, hy Section 2,
Act of July 2. 1864. holds its right of way under a qualified fee
which. so lone as the qualification annexed is not at an end, eonfers
upon the Company the exclusive right of possession and that a set-
tlement upon sich right of way is not a settlement upon the public
land.
In Noble v. Union River L. R. Co.. 147 U.S. 162: 37 L. Ed. 123,
6—225
42 ALEXANDER R. STALKER ET AL. VS.
the Supreme Court of the United States, when considering the nature
of the grant under said Act of Mareh 3, 1875, said:
“The lands over which the right of way was granted were public
lands subject to the operation of the statute, and the question whether
the plaintiff was entitled to the benefit of the grant was one which
it was competent for the Secretary of the Interior to decide, and when
decided, and his approval was noted upon the plats, the first ection
of the Act vested the right of way in the railroad company. The
language of that section is ‘that the right of way through the public
lands of the United States iz hereby granted to any railroad
75 company duly organized under the laws of any state or terri-
tory.’ ete. The uniform rule of this court has been that such
an Act was a grant in presenti of lands to be thereafter identified”
In N. P. Ry. Co. vy. Townsend, 190 U.S. 267: 47 L. Ed. 1044, the
court had under consideration the nature and extent of the grant
of a right of way by an aet. the granting clause of which is essen.
tially the same as the granting clause in the Aet of March 3. 1875
We think no material distinction ean be justly drawn between the
two provisions. The court said: “Following decisions of this court
construing grants of rights of way similar in tenor to the grant now
being considered (New Mexico v. United States Trust Co.. 172 ULS.
171: Railroad Co. vy. Baldwin, 1083 U.S. £26) it must be held tna
the fee passed by the grant made in Section 2 of the Act of July 2.
1864.” The court proceeds to explain the kind of title passed yy sar
grant, and stated that the grant was for a specified purpose and the
land granted must be used for the specified purpose and could not
be voluntarily alienated. The court said:
“The substantial consideration inducing the grant was the per-
petual use of the land for the legitimate purposes of the railroad,
just as though the land had been conveyed in terms to have and to
hold the same so long as it was used for the railroad right of way.
In effect the grant was of a limited fee, made on an implied con-
dition of reverter in the event that the company ceased to tse or re
tain the land for the purpose for which it was granted.”
That is the conclusion of the court of last resort upon this question
and is conclusive.
The respondent. if it has any right to the premises in comntroversy
(and we think it has) is the owner of a limited fee and has a right
to the exclusive possession of the premises, and it t= not for the courts
to say when and when wd the railroad conmpany shall use its
76 right of way or station grounds, as it is pre-umed that at all
times it has need of the entire tract granted, since Congress
has granted twenty acres for the purpose of station grounds. — It is
suid in M. K. & T. Ry. Co. v. Watson, ST Pae.. GST, that “The estate
eranted to the U.P. Co. is corporeal in character rather than incor
poreal, and corresponds to the limited fee for particular uses, -ub-
ject to reverter, described in the Townsend ease.” The estate granite!
under the Act of March 3, 1875, is more than a mere easement. ft
amounts to a base qualifie?! or limited fee. and so long as the com-
pany maintains its line of road and its stetion where said -tation
ground is located, it has the rieht to the exclusive possession of the
same.
THE OREGON SHORT LINE RAILROAD COMPANY. 43
In New Mexico v. U. S. Trust Co., 172 U. S. 171; 43 L. Ed. 407,
the court discusses and defines the phrase “right of way.” The court
savs:
“What. then. is meant by the phrase ‘the right of way?’ A mere
right of passage. says appellant. Per contra, appellee contends that
the fee was granted, or, if not granted, that such a tangible and cor-
yoreal property was granted,” ete,
Further on in the opinion the court referred to the case of the
WK. & T. Rv. Co. v. Roberts, 152 U.S. 144: 38 L. Ed. 377, the
opinion in which wa- written by Mr. Justice Field. Referring to
the effect of that decision and the distinetion between an easement
and the fee. the court said :
“The effect of this decision is attempted to be avoided by saving
that the distinction between an easement and the fee was not raised.
The action was ejectment, and was brought in Kansas, and under
the law of that state, title could be tried in ejectment. Titie
7 was asserted by Roberts, who was plaintiff in the state court,
and this court evidently considered it involved in the case.
The laneauge of Mr. Justice Field, who delivered the opinion of the
court. would he unaccountable else. The difference between an ease-
ment and the fee would not have escaped his attention and that of
the whole court. with the inevitable result of committing it to the
consequence Which might Cepend upon such differences.”
And the court further said:
“But if it may not be insisted that the fee was granted, surely
more than an ordinary ea-ement was granted, one having the attri-
bute: of the fee. perpetuity and exclusive use and possession ; also
ihe remedies of the fee, and, like it. corporeal, not incorporeal, prop-
erty.”
There it is held that such grants have the “attributes of the fee,
perpetuity and exclusive use and possession.” There is nothing
in the contention of counsel that the appellant who holds the legal
title has the right to the use and possession of said station ground
until it is needed by the company, as the company, under the au-
thorities, las the exclusive right to the use, Possession and occupa-
tion of the ground, whether it< buildings and improvements cover
it all or not.
In the former opinion of this court rendered in this case, the court
proceeded upon the theory that a notation upon the plats in the local
land office wae a condition prece ont to the erant of station Grourics.
If it be conceded that the act of March 8. 1875, so far as filing plats
is concerned, applies te -tation grounds as well as to rights of way,
and that the spree aet- must he done in order te acquire title to
Sotion erounds as to rights of wav. the law seems to be that the
amint becomes fixe? definitely either by actual construction of the
tiilrowd before the fling of a profile map thereof, or in advanee of
: construction by filing a profile as provided in section 4
i8 Jamestown RR. Co. v. Jones, 177 U.S. 125: Rio Grande «©
Western Rv. Co. v. Telluride ete. Co. 175 U.S. 639.
it would appear from the rulings of the Land Department and
the decisions of the court that the rieht of the railroad attached at
LDS YI ON SPIRES
tag ys
Ag aR Oe
a SiG?
44 ALEXANDER R. STALKER ET AL. VS.
the date of its filing its maps. See R. R. Co. v. Downey, 8 L. D. 115,
In the matter of the St. P. M. & M. Ry. Co., 26 L? D. 181, after
quoting in full section 4 of the act of March 3. 1875, the Honorable
Secretary said: eee :
“Where a company has complied with the law by filing its Articles
of Incorporation and due proof of organization it is clearly entitled
to a grant under the act of March 3, 1875 (supra). To secure this
right, however, it must file maps of the location of its road, and plats
of necessary station grounds. It is true the law makes the maps
and plats filed by the companies subject to approval by the Secretary
of the Interior, and it would seem that until approved, no right ig
vested in the company thereunder,
“After filing the maps and plats as required by the statute, the
company has done every act necessary to be performed on its part.
“Much time must necessarily elapse before these maps can go
through the regular course of examination and be presented to the
Secretary of the Interior for his approval,
“Ts the company’s right in jeopardy, although it may be in the
actual use of the land during this period, and ean its right be made
to depend upon the action of others, as would be the result of vour
office decision? Tt is not believed that such was the intention of
Congress, but rather that in determining whether a map should be
approved the con ition existing at the time of its filing must control.”
See also Railroad Co. vy. Downey, 8 L. D. 115; Phenix &
79 Eastern Ry. Co. v. Arizona Rv. Co.. 84 Pac. 1097; Catheart
v. M. & M. Ry. Co., 34 L. D. 619: No. Pae. Ry. Co. v. Smith,
171. U. S. 260; 43 L. ed. 157. Under those authorities, when the
Secretary of the Interior approved the maps for the station grounds
at Meridian, that was an adjudication of the fact that such grounds
were necessary for the purposes of station grounds and the grant
attached at the time of filing the maps. If the grant took effect, the
question of forfeiture cannot under any theory enter into this case,
for the reason that under the repeated rulings of the Land Depatt-
ment and decisions of the courts, the only person who is in a position
to take advantage of the forfeiture of a right of way is the United
States government, aud, of course, under the facts as presented in
this ease, it would be absurd to say that the United States could for-
feit the railroad company’s rights on account of the failure of the
register of the local land office to make proper notations upon his
plats.
It is contended that Reed made final proof under his preemption
filing after due notice by publication, as required by law and as the
railroad company did not appear and contest his right to enter said
land, the company cannot now raise the question of the validity of
his entry—that it is res judicata. That contention might obtain if
the Land Department had jurisdiction to convey said land free from
the prior rights thereto of the railroad company, which right existed
at the time the Land Department issued the patent to Reed. As
that Department had no jurisdiction to act and execute
unless it reserve the rights of the railroa:
conclusive presumption attending patents
said patent,
| company therein, the
generally does not attach
THE OREGON SHORT LINE RAILROAD COMPANY. 45
to the patent under consideration. In St. L. S. & R. Co. v. Kemp,
104 U. S., 636, Mr. Justice Field, in discussing the conclusive pre-
sumption attending a United States patent for lands, said:
80 “Of course, when we speak of the conclusive presumption
attending a patent for lands, we assume that it was issued in
a eave where the department had jurisdiction to act and execute it.”
See Patterson v. Winn, 11 Wheaton, 380. The right of the rail-
road company having attached to said land prior to Reed’s entry the
land department could not divest it of its rights by conveying thie
land to him, as it had no authority to do so, We therefore conclude
that Reed, the patentee. did take the legal subdivision covered hy
his patent, which includes the lots in controversy, subject to the rail-
road company’s right of wav and. station grounds, and_ for that
reason the former decision of this court must be overruled and the
iudement of the trial court must he affirmed, and it is so ordered.
Costs of this appeal are awarded to the respondent.
Stewart, J.. concurs.
81 Aiusuig, C. J. (dissenting) :
After a very careful examination of the majority opinion, and of
all the cases cited by the respective parties, and all the authorities |
can find upon the subject, 1 am satistied that the conclusion reached
by the court on the former hearing is correct and should stand as the
judgment of this court. The former opinion, however, was written
on the theory that the act of Congress provided for tiling a prolile
map of station grounds aud thereby prescribed a method whereby a
railroad company could accept the grant and take a constructive
possession of the grounds as distinguished from actual possession,
Upon a further examination of this matter, Lam in accord with that
portion of the majority opinion, which, as [ understand it, holds
that the act of Congress makes no provision for filing a profile map
of station grounds, and that so far as the statute is concerned there
is no statutory method provided for acquiring a constructive pos-
session of station grounds and giving constructive notice to third
parties who might enter or purchase such grounds. The majority
opinion, however, seems to hold that in the absence of Congressional
action, the Secretary of the Interior has adopted a rule whereby he
permits the railroad company to file a profile map of its station
grounds at the same time and in the same manner it files a profile
of its right of way, and provides that the company may have the
advantage of a constructive possession of the grounds and be pro-
tected for the five year period in advance of construction of the road
the same as it can for its right of wav under section 4 of the act of
March 3, 1875. Tam wholly unable to agree with this latter propo-
sition. I have no doubt of the right of the Secretary of the Interior
to adopt rules and regulations for the transaction of the business of
that department and the practice to be pursued therein. On the
contrary, I am equally satisfied that the Secretary has no power or
authority to adopt or promulgate any rule or order whereby prefer-
ence rights may be conferred upon claimants to the public lands or
a eee
46 ALEXANDER R. STALKER ET AL. VS.
2 constructive right may be initiated in violation of the statu-
&2 tory rights of other claimants. The conditions on which the
public lands shall be granted are prescribed by the acts of
Congress and cannot be changed, supplemented or altered by the
Department of the Interior. The grant conferred by the act of Con-
gress is a mere gift made by the government to the railroad com-
pany and contains no element of a contract until after the grantee
has received and accepted the gift and acted upon it. Of course,
after it has entered into possession of the lands and commenced the
construction of its road. it might be said to have parted with a con-
sideration for the grant. Tt must be conceded that the donor, the
grantor in this case, has a right to attach any conditions it sees fit to
the vesting of any right in the donee. Tt may make that condition
depend upon acts to be performed by the donee or acts to be per-
formed by the donor, or both, or it may make it contingent upon
the happening of a certain event. Tt has been uniformly held by
all the courts that the title vests under section 1 of the act. upon the
construction of the read. and that in the latter event it was unneces-
sary to file any maps whatever. (St. Joe. ete. R. R. Co. v. Baldwin.
108 U.S. 426, 26 L. Ed. 579: Bybee v. Orecon, ete. R. R. Co.. 12%
U. S. 663, 35 L. Ed. 309: Oregon Short Line R. R. Co. v. Quigley,
10 Idaho, 770.) Where. om the other hand. the company seeks to
reserve the right in advance of construction of its road under the
provisions of section 4 of the act. it must comply with those condi- .
tions before the lands can be said to have been legally reserved from
the public domain so as te prevent any subsequent settler or pur-
chaser from acquiring a paramount right. This latter section re-
quires certain things to be done by the railroad company and certain
things to be done by the Department of the Interior. “The railroad
company must file with the register of the land office (who is under
the direction and control of the Secretary of the Interior and an
officer of the Interior Department) a profile map of its road. The
map must be approved by the Secretary of the Interior and the ap-
proval must be noted on the land office plats. The approval of the
plat by the Secretary is as much an act of the gcevernment
83 and of a government official as is the notation on the plats:
but according to the reasoning of my associates, the failure.
neglect or refusal of the public official te perform a duty cannot
prejudice a person or corporation dealing with the government.
Therefore, the failure to make the notation on the plat cannot affect
the railroad company. T wonld add further. by the same course of
reasoning: “Therefore, the failure of the Secretary to approve the
plats could not affect the right of the railroad company to take its
right of wav or station erounds.” The latter conclusion is just as
reasonable and logical in this case as is the former eonelusion drawn
by my associates. There happens to he he, however, authority on
the latter proposition. In Phenix — F. R. Co. v. Arizona Eastern R.
Co., two railroad companies had tiled their profile maps in aceord-
ance with the provisions of the act of Congress of March 8. °75. but
neither one of them had been approved by the Seeretary of the In-
terior. They went into court to determine their respective rights,
THE OREGON SHORT LINE RAILROAD COMPANY. 47
and the one that had first filed it- map with the Secretary contended
that its right attached and vested upon its filing the map with thé
Secretary. The supreme court of Arizona held in that case that no
right could vest or attach prior to the approval by the Secretary ;
that his approval was one of the conditions precedent. The ques-
tion of the proper notation on the plats did not arise in that case,
and of course, Was not considered. The court did use, however, the
following language: “In construing the act we should note the -ig-
nificance of the expression ‘thereafter’ (that is after the approval of
the profile by the Secretary and the noting of the same upon the
plats in the land office) ‘all such lands over which such right of way
shall pass shall be disposed of subject to such right of way.’ This
expression is by its implication inconsistent with the theory that the
legal title has passed prior to action by the Seeretary.” Tt is fur-
ther worthy of note that the writer of the foregoing opinion detined
“thereafter” as meaning “after the approval of the profile by the €
Secretary and the noting of same upen the plats in the land otlice.”
As to the grant contained in section 1 of the act ef 1875
Pp RS NEO IR ROR RID
S4 being a present grant ip the sense that upon the detinite lo- 7
cation of the right of way the title would be deemed to vest ¥
as of the date of the act. that has been settled beyond all question.
The act is not a grant in presenti in that sense at all, and it has
never been directly so held by any court. See Spokane & N. Ry.
Co. v. Ziegler, 61 Fed. 303, and cases cited: Hall v. Russell, 101
U. S. 509: Red River, ete. R. Co. v. Sture, 20 N. W. 229.) This
identical question was considered by the supreme court of Kansas in
Chicago K. & N. Ry. Co. v. Van Cleave, 33 Pace, 475, and the case
of Noble v. Ry. Co., was reviewed and considered at some length,
and the conclusion was reached that the observation that the grant
Was one in presenti was dicta only and not the decision of a question
involved in the case.
Laying aside for the time all other con-iderations, it seems to me
that the decisive and pivotal point to be determined with reference
to station grounds is: When does the right or title or estate attach
or vest In the railroad company? In the first place, the only men-
tion of depot and station grounds to be found in the act is in section
1 thereof. Section 4, which provides for filing the profile map,
» makes no mention of depot or station grounds. By an analysi- of
section 1 we find it contains the following grants: Ist. The right of
way through the public lands of the United States is hereby granted
to any railroad company organized, ete. 2nd. The right is alse
hereby granted to take from the publie lands adjacent to the line
of said rogd, material, earth, stone and timber necessary for the con-
struction of said railroad. Srd. The right is also hereby granted to
take ground adjacent to such right of way for station-buildings,
depots, ete. Now, remembering that under section 4. the easement
for right of way may be reserved for a period of five vears by mak-
ing a certain record, we naturally inquire how the “right to take”
shall be determined as to earth, stone and timber. and also as to
station and depot grounds. Bearing in mind that no method is pro-
vided for a constructive taking, we naturally inquire when the
sorry,
err
SHEA LIN IRENE AE PERT See
Pan
Bp tererssees serene agyee. sanamreyrmecuctartenniemt gto oe
48 ALEXANDER R. STALKER ET AL. VS.
taking occurs and what act: are necessary to constitute the
8&5 taking within the meaning of section 1 of the act. It is set-
tled law that as to third parties who seek to settle upon or
purchase the public domain, no lands are public lands which have
been filed upon prior to the time the elaim of such third party is
asserted. Hastings & Dakota R. Co. v. Whitney, 132 U. 8. 357° 33
LL. Ed. 363; Sturr v. Beck, 133 U.S. 541, 33 L. Ed. 761: Wither.
spoon v. Duncan, 71 U.S. 210; Red River, ete. R. Co. vs, Sture, 20
N. W. 229. It must therefore be conceded, it seems to me. that the
right to take timber and stone from lands adjacent to the line of
road must be determined by the status of the land at the time of the
actual taking. Tf at such time the land is the publie lands of the
United States, the company has the undoubted right to take there-
from stone, timber, ete., for the construction of its road. Tf. however,
the land has been filed on by the homesteader or pre-emptioner prior
to the date of the actual taking, then ¢he land is no longer publie
lands of the United States and is not within the purview of section
1 of the act. It seems to me that same thine is true of station and
depot grounds, The “right to take” grounds for such purposes
must be determined by the status of the lands at the time of the
actual taking. Sueh taking might be evidenced by staking it off
and marking it on the grounds, or by fencing it or constructing
buildings on it, or in any other manner that is ordinarily recognized
by the law as amounting to an actual possession of real estate. In the
case at bar there was not even a station at Meridian at the time the
preemptioner filed on this land. The company did not take posses-
sion of the ground in any manner. nor did it do any act that evi-
denced its intention of claiming station grounds, nor did it make
any claim to this ground for seventeen years thereafter.
It is apparent to me at once from the state of facts in this ease
that a grave and serious injustice and inequity will he done the
entryman on this land if the railroad company is permitted at this
late date to take twenty acres out of his land as claimed by the com-
pany. Tt is an admitted fact in the case that the preemptor filed on
the land, paid for it, and received his patent in absolute and
86 total ignorance of any claim: by the railroad company, and
he and his grantees continued in possession of the land for
some seventeen vears thereafter without the company asserting any
right or claim to the station grounds or attempting to take posses-
sion thereof, and vet in the face of that state of facts, it is proposed
to oust him of his possession and give this land to the railroad com-
pany. T decline to sanction a judgment that will have that effect.
Tam wholly unable to find a decision from any court that either sup-
ports or upholds the doctrine laid down in the majority opinion
when it comes to station or depot grounds. The confusion has, in
my judgment, arisen in this ease in an attempt to apply the law and
decisions with reference to rights of Way to station and depot
grounds.
Tf it should be admitted, on the other hand, that the grant for
station grounds may be definitely located and segregated in the same
method as is provided for rights of way, namely; by filing a profile
THE OREGON SHORT LINE RAILROAD COMPANY. 49
map of definite location, still it would seem that in cases where pos-
ession has not been actually taken, title does not pass until after
the notation on the land office plats. It will be noticed that section
$of the act of 1875, requires the claimant to file with the register
of the land office a profile of its road and upon approval thereof by
the Secretary of the Interior, and a notation thereof on the plats
of the land office, that “thereafter” all lands over which such right
of way shall pass shall he disposed of subject. to such right of way.
Conceding now that there is no necessity for a plat where the com-
pany has taken actual possession and constructed its road or station
buildings, we are then reduced to the proposition that the profile
map only serves the purpose of reserving the lands belonging to the
United States at the time the acts required in section 4 are performed
from the operation of the public land laws. In other words, it: pro-
tects the company for the period of five vears by giving a construct
ive notice which takes the place of actual occupation and reserves
all rights to the company for that period of time. With this in
view we must read section 4 to ascertain what acts the word
87 “thereafter” refers to. We are naturally led to the question:
Does it refer to the act of filing the profile map with the
register of the land office, or does it refer to the act of approval by
the Secretary of the Interior, or does it apply to the act of making
the notation on the plats of the land office, or does it apply to any
two of these acts, or does it apply to all of those acts? T submit that
by every rule applicable to the construction of the English language,
it must necessarily refer to all the acts previously enumerated, and
means that after the performance of these acts the rights claimed
shall be reserved to the company. and that all the lands in. which
sich rights have been acquired, by performance of all the acts
therein enumerated, shall he “thereafter” granted subject: to such
rights. This view ts clearly indiented in the case of Noble v. Union
River Logeine Ry. Co.. 7 U.S. 165, quoted from in the majority
opinion. In that case the statement of facts was prepared by the
same justice (Brown) who wrote the opinion. In making that
statement he said: “In January, 1889. the company, desiring to
avail itself of an act of Coneress of March 3, 1875 (18 Stat. at L.
482), granting to railroads a right of way through the public lands
of the United States, filed with the register of the land office at
Seattle a copy of its articles of incorporation, a copy of the territorial
law under which the company was organized, and the other doeu-
ments required by the act, together with a map showing the termini
of the road. its leneth, and its route through the public lands ae-
cording to the public surveys These papers were transmitted bv
the Commissioner of the Land Office. and by him to the Secretary
of the Interior, by whom they were approved in writing, and ordered
to be filed. They were accordingly filed at once and the plaintiff
notified thereof.” It should be observed that in this statement. of
facts the learned justice refers to the profile required to be filed
under section { of the act as a “map” and te all the documents
used in connection therewith as the “papers.” Keeping this in
mind. let ns note the language used in the opinion itself. In speak-
7—225
ake
e ae
50 ALEXANDER R. STALKER ET AL. VS.
ing of the action of the Secretary of the Interior, the writer of the
opinion enumerated all the acts required by section 4 of the
88 act of 1S75, and then adds that when these things were done
the granting act became operative. His language is: “Upon
being satisfied of this fact, and that all the other requirements of
the act had been observed, he was authorized to approve the profile
of the road, and to cause such approval to be noted upon the plats
in the land office for the district where such land was located. When
this was done, the granting section of the act became operative, and
vested in the railroad company a right of way through the public
lands to the extent of 100 feet on each side of the central line of
the road. Frasher v. O'Connor, 115 U.S. 102 (29:311)." There
the court indicated that all these acts are conditions precedent.
Further considering the power of the Secretary to act in the
premises and the time when the rights of the railroad company he-
came vested, the opinion savs: “The lands over which the right of
way was granted were public lands subject to the operation of the
statute, and the question whether the plaintiff was entitled to the
benefit of the grant was one which it was competent for the Secre-
tary of the Interior to decide, and when decided, and his approval
was noted on the plats, the first section of the act vested the right
of way in the railroad company.” See also Red River, ete., R. Co.
v. Sture, 20 N. W. 230.
Dakota Central R. R. Co. v. Downey, 8 L. D. 115, instead of sup-
porting the contention made by the majority of the court, is, to my
mind, against its conclusion. That was a case where the railroad
had already been constructed before the entryman filed upon. his
land, and the Secretary held that it was unnecessary in such case
for the company to file its map or have any notation made on the
land office plats. As heretofore suggested, the authorities are all
one way on that question. In the course of that opinion the Seere-
tary states what must be done where an attempt is made to reserve
the land prior to the construction of the road, and uses the following
language: “The cases in which notes are to be made on the entries
of public lands are those of entries made before the construetion
of the road, for the purpose of excepting the grant to the
89 railroad company, thus made upon the condition that the
road shall be completed within five vears. or the erant shall
be forfeited.”
Neither is the ease of Van Wyek v. Kneveals, 106 U.S. 360, in
point. That case considered the act of Congress of July 23, 18656,
eranting a right of way to the St. Joe & Denver City R. R. Co., and
also granting to the state of Kansas, for the benefit of that read,
the alternate sections of land within ten miles of the line of such
road. The language of that act is entirely different from the act of
March 3, 1875, and the distinetion has been pointed out between
the two acts in many decisions since that time wherein the Van
Wek case has been considered and distinguished. See 10° notes
on U.S. Reps.. 391,
It is suggested by the majority opinion that the act of March 3,
1875, is ambiguous in reference to station and depot grounds. Tf
THE OREGON SHORT LINE RAILROAD COMPANY. 51
that be true, the majority of the court have evidently reversed the
rule which requires a strict construction against a donee or grantee
of the United States and in faver of the grantor. In this case, after
the government had. as the railroad company claims, parted with
its title to this easement. If conveyed the entire title without reserva-
tion to the pre-emptor, Now. under the rule, if there is the slight-
est doubt as to whether the government parted with any title upon
the railroad company’s application for station grounds, that doubt
should be resolved in favor of the government and of its right to
absequently erant the title free of the servitude claimed by the
railroad company.
In Wigeins Ferry Co. v. FE. St. Louis. 107 U. S., 371, the Su-
preme Court of the United States said: “Tt is a rule of interpreta-
tion that every grant from the sovereign authority is, in case of
ambiguity. to he construed strietly against the grantee and in favor
of the government.”
In United States v. Michigan. 190 U.S. 101, the Supreme Court,
speaking through Mr. Justice Peckham, reiterated the same doctrine
and. among other things. said: “Any ambiouity must operate against
the grantee in favor of the public. This rule of construction ob-
tains in erants from the United States to states or corpora-
90 tions in aid of the construction of public works.”
Tt seems to me that mv assoctates erred when thev at-
tempted to apply to this case the rule applicable te a purchaser of
land where he deposits his deed with the recorder and that officer
fails to duly record the deed within the proper time. There is no
question abont that doctrine. and T take it ne one would seriously
contend that a purchaser of land would lose his property or he de-
vestod of his title by reason of the failure of the recorder to record
the deed. But there is no analogy between that case and the case
at bar. nor is the same prineiple necessary or applicable to attain
the ends of justice. In this case the government says fo the railroad
company: We will give vou certain publie lands and rights that now
belone to the United States. hut before vou ean be vested with that
nicht. and entitled to its enjoyment, vou chall do certain. things,
and the officer of the grantor, the government, shall alse do certain
things. Until all these acts are performed, the grantee acquires
nothing. and therefore las nothing to lose or forfeit. Tt is true,
ag tuted in the original opinion, the performance of the first net
creates an inchoate rieht which the railroad company may either
mature inte a vested right or it may allow it to lapse. Tt mav never
pursne its right to the extent of acquiring a property right therein
either as neainst the government or eubsequent settlers or pur-
chasers. Tt is one thine to have a valuable rieht already aequired
for which a consideration has been given, and Jose that right on
account of the negligence or failure to act on the part of a public
offictal, hut quite another thing to have a prospective, conditioned or
anticipative right. the aequisition of which is dependent upon eer-
tain acts to be done bw a publie official. and which acts are never
done by him. In the latter case. the failure to discharge those act=
does not deprive the company of any property right beeanse it had
52 ALEXANDER R. STALKER ET AL. VS.
not yet acquired any property right. In such case its prospects and
anticipations never ripened into a legal right. It is merely a failure
to vest the property right he is attempting to acquire. In this case.
the railroad company has parted with no consideration and
91 is purely a donee as distinguished from a purchaser, of what
ever rights it has acquired. On the other hand, the pre.
emptor is a purchaser for value and has parted with a consideration
for the property.
I am forced to the conclusion: Ist. That the railroad company in
this case should be bound by the status and condition of the land
as it found it at the time it sought to take the station grounds, and
that the attempt to take oceurred when it asserted its claim to the
grounds for such purpose and attempted to take actual possession
thereof. 2nd. That at the time the company sought to take the
ground it was no longer public lands of the United States. but was
the private property of the defendant. 8rd. That if it were con-
ceded that the act of Congress authorizes a constructive taking and
segregation of depot an’ station grounds, that in the ease at bar the
acts necessary to complete that constructive taking and appropria-
tion within the provisions of the act were never completed in that
the reservation wax never made upon the land office plats, and con-
sequently no notice thereof was ever given by either the company
or the government to subsequent purchasers and entrymen. 4th.
That the government never recognized the acts of the railroad com-
pany as amounting to an anpropriation and segregation of station
grounds for the reason that it thereafer granted the land in fee sim-
ple to the defendant’s predecessor without any reservation whatever
and free from the company’s alleged servitude.
For the foregoing reasons, T am convinced that the judgment of
this court as originally announced shonld stand. and T accordingly
dissent from the views expressed by the majority of the court on
this hearing.
92 In the Supreme Court of the State of Idaho.
ALEXANDER R. Starker and EMALINe StTa.ker, Plaintiffs in Error,
vs,
OREGON Snort Line Rartroap Company, Defendant in Error.
Petition for Writ of Error.
Your petitioners, Alexander R. Stalker and Emaline Stalker,
hereby set forth that on February 27th, 1908, the Supreme Court
of the State of Tdaho made and entered a final decision and judg-
ment herein in favor of the said defendant in error, Oregon Short
Line Railroad Company, and against vour petitioners, Alexander R.
Stalker and Emaline Stalker, the plaintiffs in error in the certain
action in this court entitled, Oregon Short Line Railroad Com-
pany, respondents, vs. A. R. Stalker et al., appellants, and con-
sidering themselves aggrieved by the said final decision of the Su-
preme Court, petitioners pray a writ of error from the said decision
THE OREGON SHORT LINE RAILROAD COMPANY. 53
and judgment to the United States Supreme Court and an order
fixing the amount of a cost bond.
Assignment of errors herewith.
FRANK MARTIN,
HNGH E. McELROY,
CARL A. DAVIS,
Attorneys for Petitioners, Alerander R. Stalker,
Emaline Stalker.
SraTE OF IDAHO,
Supreme Court, 88:
Let the writ of error issue upon the execution of a cost bond by
the said Alexander R. Stalker and Emualine Stalker, im the sum of
$500 00/100.
ISAAC N. SULLIVAN,
Chief Justice of the S ipreine Court of the Ntate of Idaho.
93 In the Supreme Court of the State of Idaho.
GraLKER and EMALINE SraLKER, Plaintiffs in Error,
vs.
RarLroap CoMPAany, Defendant in Error.
ALEXANDER R.
OrEGON Suort LINE
Assign nis of Error.
named petitioners, Alexander R. Stalker
and Emaline Stalker. and flex herewith their petition for writ of
error and say that there are errors ‘1 the records and proceedings
of the above entitled case, and for the purpose of having the same
reviewed in the Supreme Court of the United States, make the fol-
lowing assignments of errer:
1. That the Supreme Court of the State of Tdaho erred in holding
that when the Tdaho Central Railway Company, predecessor in in-
terest of the defendant in error, the Oregon Short Line Railroad
Company, filed in the local land office a map properly designating
station grounds claimed) bv it on September 12) TSSS, which map
embraced the land in controversy’, and on the following 18th day of
October, one Joseph Reed, a qualified entryman, entered the govern-
ment subdivision on which euch station grounds were located, under
the pre-emption laws. and thereafter such maps were approved hw
the Secretary of the Interior and returned to the local land office,
and the same were lost or misplaced by euch officers, and the proper
notations were not, and have never heen, made by them on their
plats. and thereafter said entryman July and reeularly made final
proof of said entry and a patent was duly and regularly issnied to said
entryman purporting to grant and convey to him a complete and
that the Department of the
perfect title to all of said land:
94 interior was without jurisdiction to dispose of said land to
said patentee and that said patent was void.
9 That the court erred in holding under said state of facts, that
Now comes the above
54 ALEXANDER R. STALKER ET AL. VS.
the grant to the railroad was perfected when the Secretary of the In.
terior approved the maps for the station ground in question and in
holding that the grant to the railroad company was then, or ever at
any time, perfected.
3. That the court erred in holding upon said state of facts that
the entryman took title subject to any claim to the premises on the
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