17 Utah 504 | Utah | 1898
The plaintiff brought this suit in ejectment for a strip of land used by' the defendant railway company as a right of way for the purposes of its railroad, and at the trial obtained judgment for the recovery of the land, and a certain sum for mesne profits.
The Utah & Pleasant Valley Railway Company, of which defendant company is a successor, was duly or-ganised on December 11, 1875, and its articles of incorporation properly filed on the same day. The termini of' its authorized line of route were Provo and Pleasant Valley, its line extending a distance of fifty miles, and over the disputed premises. In 1876, that company made a preliminary survey of its line from Springville to and over the demanded strip, and marked the line with numbered stakes at the angles, but the curves were not put in or marked on the ground. In 1877, and before November, the survey and location were completed from Spring-
This appeal is from the' judgment.
after stating the case as above, delivered the opinion of the court.
The appellant contends that in fact, as well as by legal relation, it was the first occupant of the strip of land in controversy; that the strip was appropriated as a right of way for its railroad under the act of congress of July 3, 1875; and that it acquired title to at least an easement
In the first section of the act of congress mentioned (18 U. S. Stat. at Large, p. 482) it is provided: “That the right of way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, * * * which shall 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.”
This is an express provision for the granting of rights of way to railroad corporations, over the public lands of the United States. The terms imposed upon any railroad company, to secure the benefits of the act, are that such company must have been duly organized under the laws of a state or territory, and that its articles of. incorporation, and due proofs of its organization thereunder, have been filed with the secretary of the interior. In the case at bar, it is admitted that the Utah & Pleasant Valley Railway Company, predecessor of the appellant, was duly organized under the laws of the territory of Utah, on December 11, 1875; that under the act of congress, referred to, it filed a copy of its articles of incorporation and due proofs of its organization under the same; and that the same were approved by the secretary of the interior on the 20th of March, 1879.
The railroad company was thus admittedly in position to avail itself of the benefits of the act, and this it could do in manner specified in section 4 of the same act, which reads:
“That any railroad company desiring to secure the benefits of this act, shall, within twelve months after the
Under the provisions of this section, it is clear that a railroad company, in order to secure the benefits of the -act, must locate its line of road, and it therefore necessarily follows that it has the right to enter upon the public domain for that purpose, and that in so doing it is not a trespasser, but is simply availing itself of a privilege granted by the law. Then, after the location of its road, it must file a profile thereof with the register of the land office, as provided in the section, and, upon approval of the profile by the secretary of the interior, the same shall be noted upon the plats of the land office, and thereafter the land over which the right of way is located shall be disposed of subject to such right of way.
Referring again to the admitted facts, it will be seen that the railway company commenced the survey for its line of road in 1876, surveying a preliminary line over the land in question. Before November in 1877, the location of the road was completed over and beyond the demanded premises, and brush cut wherever it grew on the line. Tn 1878, grading was done, and in 1879 the road
From the facts admitted we think the railroad company substantially complied with the act of congress in the location of its road, and that when it made the location of its line by survey, which was done before November 1877, the exact date not appearing in the record it became entitled to a right of way over the demanded premises, unless the respondent’s right as to the quarter section had already attached. On this point it is insisted for the respondent, that he was lawfully in possession of the land in question when the railway company took possession thereof, and that its entry thereon was in violation of his rights. It therefore becomes necessary to determine who was the first occupant. From the admitted facts, it appears that the quarter section, with the other adjoining tracts was unsurveyed land of the United States; that the same was not surveyed until 1884, nor
Nor can the doctrine of relation avail the respondent, so as ,to have his patent and possession relate back to a date anterior to the occupancy of the railroad company. That doctrine is remedial, and can never be so applied as to make that wrong which was innocent when done, or to divest prior and paramount rights lawfully acquired. Nor did the respondent’s patent relate back so as to divest the railroad company of its easement, which it acquired as the first occupant. The fact that the patent contained no reservation of the right of way is, under the facts of this case, immaterial. Flint & P. M. Ry. Co. v. Gordon, 41 Mich. 420.
The respondent’s own settlement can alone be considered, unaffected by his purchase of improvements, and that dates from May 1, 1878. He had no claim to the land when, prior to November 1877, the railroad company made the location of its line of road, and has shown-no right of recovery against the appellant.
The judgment must, therefore, be reversed, and the cause remanded, wdth costs against the respondent.
It is so ordered.