28 P. 408 | Idaho | 1891
This is an action brought by the respondent (plaintiff below) against the appellant (defendant below, and three other defendants, who are not appellants here) to recover $250, damages alleged to have been sustained by reason of appellant having graded a railway roadbed through land claimed by the respondent, and for hauling and piling dirt upon said land. The complaint alleges that the defendant is a railroad corporation; that the plaintiff, on the third day of September, 1890, was, and ever since has been, the owner of a piece or parcel of land, being a part of lot 4, section 7, township 39 north, range 3 west, Boise meridian, containing an area of two and twenty-eight hundredths acres, and described said parcel of land by metes and bounds; and, further, that the appellant, on the twentieth day of November, 1890, entered upon said land unlawfully and with force, against the wishes of respondent, and hauled a large quantity of dirt upon and graded a roadbed for a railroad track through said land, to plaintiff’s damage in the sum of $250, for which sum judgment is demanded. The appellant by its answer admits that it is.a duly organized and existing railroad corporation, and denies all other allegations of the complaint, except the allegation that it entered upon said ■land and graded a railway roadbed through said land. The answer further states that the appellant claims the right of way over the said tract of land by virtue of an act of Congress approved March 3, 1875, entitled “An act granting to railroads the right of way through the public lands of the United States”; and that it acquired the right of way over said land to the extent of one hundred feet from each side of the middle of its track by reason of a compliance with the terms and conditions of said act of Congress; and denies that plaintiff is damaged in any sum whatever by reason of said roadbed having been graded across said land. The court tried the cause without a jury, and entered judgment against the appellant for $250, damages and costs of suit. From that judgment the appellant brings the case to this court, and demands a reversal thereof, and assigns six specifications of error as ground therefor.
The four remaining specifications of error will be considered together, and are as follows: 3. “The evidence shows that the defendant, the Spokane and Palouse Railroad Company, has acquired a right of way over said land, and constructed the road
There is no dispute as to the main facts. The principal point in the ease, then, is as to whether the conclusion of law deduced from the finding of facts is erroneous; in other words, is the respondent entitled to judgment on the facts found? The land in question was a part of what is known and designated as unoffered public lands of the United States.” That class of land is subject to entry under the pre-emption and homestead laws of the United States. It is also included in the act of Congress above referred to, through which railroads may acquire rights of way under said act of Congress. It will be observed that, the land in controversy had been filed upon under the pre-emption laws of the United States, and prior to the approval of appellant’s profile map, first by one James H. Day, and after his relinquishment by James L. Wilkins, who relinquished his said filing on the fifth day of October, 1889. The inchoate preemption rights of Day and Wilkins under said pre-emption filings were abandoned by such relinquishments.
There is no evidence showing that either of said pre-emption claimants had complied with the pre-emption law as to settlement, residence, improvement, and cultivation. The land covered by their said filings had not been disposed of by the gov-