# Transcript of Record — Stalker v. Oregon Short Line R. Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0500%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1912 - **Citation:** 225 U.S. 142 ## Text TENS TRANSCRIPT OF RECORD. - SUPREME COURT OF THE UNITED STATES. OCTOBER TERM, 1911. s No. 225. ea 2 at = 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 . AO SRO Ie! ee ee * % & ; z 3 ISNA RRO NEC | oe J‘ 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 a % 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 4—225 & “4 = & & %& rt NM * rf Pe & ee ¥ by ¥ * *% = = * NOAA ef ROSE EB OEAE AT fe SRA RR I SE 1 - ee a LT RUE Le Spe eae ars rap PREMIO IPT UHM: 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 t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0500%3A1. Public record. Not legal advice.