83 Neb. 680 | Neb. | 1909
Tbe facts stipulated by the parties disclose that one Fitzpatrick on the 18th of December, 1886, made homestead entry of the northwest quarter of the southeast quarter, and the northeast quarter of the southwest quarter, and lots 3 and 4, section 19, township 24, range 36, in Grant county, Nebraska. He departed this life while living upon the land, and his heirs in due time made final proof in support of his entry, residence and cultivation,' and a patent was issued to them embracing the whole' of the above described lands without reservation or. condition. The heirs afterwards conveyed the land to the plaintiff herein, who is now in possession.
In April, 1886, the Grand Island & Wyoming Central Railroad Company surveyed a line for a proposed road
By reference to the fourth section of the act of March 3, 1875, it would seem that the regular course of proceeding by a railroad company seeking to obtain a right of way over the public lands of the United States was to file a profile of its line in the land office of the district where its line was located, and this profile would be transmitted by the register and receiver to the secretary of the interior for his approval. If the secretary of the interior approved the line of survey, the map would be returned to the district land office, and when there filed all public lands thereafter disposed of, crossed by the survey, would be taken subject to the right of way granted to the railroad company. If we understand the contention of the appellee, it is to the effect that the Grand Island & Wyoming Central Railroad Company did not comply with the act of congress, in that it sent the map of its survey directly to
In a circular issued by the department of the interior and found in 12 Land Dec. 428, the following rule was announced: “All persons settling on public lands to which a railroad right of way has attached take the same subject to such right of way and must pay for the full area of the subdivision entered, there being no authority to make deductions in such cases.” The interior department has also held that it was improper to include in the patent issued any exceptions making the grant subject to a railway right of way acquired under the act of 1875. Dunlap v. Shingle Springs & P. R. Co., 23 Land Dec. 67; Oregon S. L. R. Co. v. Harkness, 27 Land Dec. 430; Denver & R. G. R. Co. v. Clack, 29 Land Dec. 478. The fact that the patent issued by the general government for the tract of land conveyed to the plaintiff’s grantors did not contain an exception of the right of way obtained by the defendant is therefore: wholly immaterial and can have no bearing upon the rights of the parties.
We discover no error in the record, and recommend an affirmance of the judgment appealed from.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.