107 N.W. 971 | N.D. | 1906
The plaintiff brought this action to recover from the Minneapolis, St. Paul & Sault Ste. Marie Railway Company, compensation for injury to his land caused by the construction and operation of defendant’s railwajr across the same. A jury was waived, and the action was tried to the court. Judgment was ordered and entered in favor of the plaintiff, awarding him damages in the sum of $1,000. The defendant appealed from the judgment.
The appellant’s contention is that the facts found by the court show that the appellant railway company had acquired a right of way over the land in question by virtue of the act of congress, approved March 3, 1875, c. 152, 18 Stat. 482 [U. S. Comp. St. 1901, p. 1568], and that plaintiff took the land subject to defendant’s easement therein. No other question is presented by the assignments of error. By failing to settle a statement of the case containing specifications of error and incorporate same in the printed abstract, the appellant must be held to concede that the findings are supported by the evidence. It is expressly conceded that the findings cover all material issues presented by the pleadings. The facts upon which defendant relies to establish its claim to immunity from liability are found by the court substantially as pleaded in the answer; so the question really is as to the sufficiency of the facts pleaded in the answer to show that the defendant had acquired an easement in the land under the act of 1875, before plaintiff’s rights attached. On June 25, 1892, the plaintiff’s application to enter the quarter section in question was presented to and accepted by the register and receiver of the United States
This court held in Jamestown & Northern Railway Co. v. Jones, 7 N. D. 619, 76 N. W. 227, that the benefits of this act of 1875 could be acquired only by compliance with all the conditions imposed by section 4 of that act (18 Stat. 483 [U. S. Comp. St. 1901, p. 1569]), and that a settlement upon the land by a claimant under the federal land laws after the construction of the road, but before approval of the map of definite location, defeated the company’s acquisition of a free right of way under the act, as against the settler in possession. That decision was reversed by the United States Supreme Court in Jamestown & Northern Railway Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 698. That court held that the.grant took effect when a grantee qualified to take had definitely located the right of way claimed under the grant. It was held that the actual construction of the road constituted such definite loca
The judgment appealed from must therefore be affirmed.