120 N.W. 875 | N.D. | 1909
This is an action, in statutory form, to determine adverse claims to real property. The real property involved is a strip of land 100 feet wide and about three-quarters of a mile long, adjacent to the right of way of the appellant Great Northern Railway Company, and extending diagonally from the north line of a quarter section of land now owned by respondent, described as the S. ^ of N. W. %. and N. of S. W. J4 of section 36, township 157 N., range 94 W., in Ward county, N. D., to the White Earth river, which passes within a short distance from the east line of this land. Appellant claims title to this strip of land by virtue of compliance on the part of its lessor the St. Paul, Minneapolis & Manitoba Railway Company, with the provisions of an act of Congress, dated March >3, 1875 (18 Stat. 482, c. 152), granting right of way across the public lands to railway companies. The claim of respondent to the land rests upon the title conveyed by the United States to her grantor, one William MeTavish, a settler upon the public lands under the provisions of the homestead act, and a patent issued to him upon final proof of settlement and residence.
The provisions of the act of March 3, 1875, so far as they are pertinent to the points presented by this appeal are as follows:
“Section 1. The right of way through the public lands of .the United States is hereby granted to any railway company duly organized under the laws of any state or territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proof of its organization under the same, to the extent of 100 feet on each side of the central line of said road; also the right to take from the public 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,*573 turnouts, and water stations not to exceed in amount 20 acres for each station to the extent of one station for each ten miles of its road. * * *
Sec. 4. Any railroad company desiring to secure the benefits of this act, shall, within twelve months after the location of any section of 20 miles of its road, -if the same be upon surveyed lands, and if upon unsurveyed lands, within twelve months after the survey thereof by the United- States, file with the register of the land office for the district where such land is located a profile of its -road; and upon approval thereof by the Secretary of the Interior the same shall be noted upon the plats in said -office; and thereafter all such lands over which such a right -of way shall pass shall be disposed of subject to such right of way: provided, that if any section of said road shall not be completed within five years after the location of said section, the rights herein -granted shall be forfeited as to- any such uncompleted section of said road.”
The facts, with reference to which there is little controversy, appear to be that the St. Paul, Minneapolis & Manitoba Railway Company, to whose interest appellant -claims to succeed as lessee, -o-n April 6, 1880, filed with the Secretary of the Interior of the United States copies of its articles of incorporation, and proofs of its organization under the same. In the year 1887 it constructed its railroad across the land in question, now owned by respondent, and placed certain buildings and other structures upon this land. These constructions -consisted of a water tank, pumping plant, section house, a small depot building and stockyards. All -of these, except the stockyards, were placed on the northerly side, and within 100 feet of the railway track. The stockyards were placed -on the southerly side -of the track. The evidence is -conflicting as to the- original size of this structure; but w-e think a decided weight -of the testimony shows that, prior to the year 1895, it extended somewhat less than 100 feet from the -central line of the track. In 1895- these stockyards were greatly increased in size, in that they were more than doubled in width, and extended- in length to a point about 2-00 feet distant from the track, and -have continued to- occupy that space from that time to the present. On or shortly prior to April 18, 1887, appellant’s lessor filed with the Secretary of the Interior of the United States a plat or profile of its line of route, designated as “Map of located line of the St. Paul, Minneapolis & Manitoba Railway from Minot, Dakota T., to the Great Falls, Montana T.”
Respondent’s grantor, William McTavish, first settled upon the land in question in the spring of the year 1888. No survey of the land had then been made.by the government. McTavish was not a citizen of the United States, and did not declare his intention to become such until October 31, 1894. He was, however, a resident of that part of Dakota Territory which, on November 4, 1889, became the state of North- Dakota. In 1888 he was employed as a
The entire controversy presented by this appeal turns upon the construction to be given the act of March 3, 1875, granting right of way over the public lands to railroad companies. This act has -heretofore been twice before this court for consideration. Jamestown & Northern Ry. Co. v. Jones, 7 N. D. 619, 76 N. W. 277; Doughty v. Minneapolis, St. Paul & Sauk Sainte Marie Ry. Co., 15 N. D. 290, 107 N. W. 971. Appeals in both cases were taken from this court to the Supreme Court of the United States, and the Judgment in the first-mentioned case was reversed, the other affirmed. Jamestown & Northern Ry. Co., v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698; Minneapolis, St. Paul & Sault Sainte Marie Ry. Co. v. Doughty, 208 U. S. 251, 28 Sup. Ct. 291, 52 L. Ed. 474. In both of these cases the question in controversy was what constitutes definite location of a right of way under the act of March 3, 1875. In the case of Railway Company v. Jones it was settled that a right of way be definitely located within the meaning of the act, and the grant became operative by actual construction of the railroad. In the case of Railway Company v. Doughty, it was decided that the doctrine of definite location by actual' -construction of the railroad would not be extended to a case where the only evidences of appropriation consisted of a survey of the line of route, and the adoption
The same rule of definite location cannot, however, be applied to. station grounds, for the obvious reason that the shape, distance from .the line of route, and boundaries generally^ of the station grounds are not described by the terms of the act. The extent of appropriation for this purpose may not exceed 20 acres for each station, and it must be taken adjacent to the right of way. These conditions met, there is no further restriction, and whether the station grounds extend in a narrow strip along the right of way, or in a square, oblong, or triangular form to a considerable distance from the track, depends entirely upon the selection made by the railroad company. It follows, therefore, that, if station grounds may be definitely located within .the meaning of the act of March 3, 1875, by actual appropriation for railroad purposes, the element of notice to an intending settler requires .some act on the part of the railroad company giving unmistakable evidence of its intention to appropriate certain land for that purpose. Compliance with section 4 of the act by filing in the district land office an approved plat of the line of route upon which the form and extent of its station grounds are shown would unmistakably operate as such notice. Where such plat is not filed, however, the railroad company must establish the fact of definite location by acts of construction or appropriation to its uses, as definite and unmistakable in character as would be shown by compliance with section 4.
It is conceded that the grant of McTavish under his patent relates back to October 31, 1894, the date at which he declared his intention to become a citizen of the United- States. There is some contention that, being a resident of North Dakota at the time of its admission to statehood, his rights relate back to November 4, 1889. Between these conflicting dates it is unnecessary for us to decide, as the weight of -testimony indicates that any notice-of appropriation of station grounds given by the railroad company in 1889 was substantially unchanged in 1894. This notice consists only in .the construction of stockyards, extending at both dates somewhat less than 100 feet from the center line of ¡the track. We -fail to see in such construction any clear and unmistakable notice of appropriation of any amount of ground for station uses beyond that actually covered by the structure itself; and, as this was wholly within the right of way, which it is conceded the railroad company had acquired by actual construction -of its track, there is no intention manifest on its part to appropriate, at this point, any grounds whatever outside the limits of its right of way. Certainly there is no act of the railroad company shown in the evidence which can be held to operate as notice to an intending settler prior to 1895 that it intended to claim any part of a strip of land 100 feet wide entirely outside of, and adjacent to, the south side of its right of way, and extending along it for a distance of three-quarters of a mile.
The rulings of the land department are throughout consistent with the theory of Secretary Vilas in Dakota Central Ry. Co. v. Downey, 8 Land Dec. Dep. Int. 115, that while the title to station
Our conclusion is that appellant has failed to show any claim to station grounds upon the land in question, either -by actual appropriation for that purpose, or by compliance with the terms of .section 4 of the act of -March -3, 1875, prior to the time that .the titl-e of respondent’s -grantor attached, and that respondent is entitled to a decree quieting her title .to this land. As this was the judgment of the district court, its decree is affirmed.