156 P. 127 | Mont. | 1916
delivered the opinion of the court.
This action was commenced on )\lay 16, 1912, for the recovery of damages alleged to have resulted to plaintiff from the appropriation and occupation by the defendant of a strip of land 200 feet in width and covering an area of twenty-eight acres, as a right of way for its railroad. The strip is a part of a tract of 160 acres situate in Missoula county, acquired by plaintiff by patent from the United States under a timber and stone entry made in compliance with the provisions of the federal laws applicable. The facts presenting the questions at issue are, briefly stated, as follows:
Prior to April 16, 1906, one Whitmore had filed in the United States land office at Missoula a homestead entry on the land. On that date the plaintiff instituted a contest of this entry, seeking to have it canceled, claiming a prior right to acquire patent. The contest was decided in his favor by the register and receiver on April 28, 1907, and the entry was ordered canceled. After the usual appeals the order became final, and on April 6, 1908, Whitmore relinquished his claim. On the same day the plaintiff tendered his filing, which was accepted, with the result that thereafter, upon the termination of contests instituted by other persons questioning plaintiff’s right of entry, patent was issued to him. In the meantime the Chicago, Milwaukee & St. Paul Railway Company of Montana (hereafter referred to as the Montana Company) appropriated and occupied the strip for a right of way, having begun the work of clearing and construction in September, 1906. During the year 1907 (the exact date does not appear) Whitmore executed to the company a quitclaim deed to the strip for a consideration of $1,000. On March 12, 1907, the company filed in the land office at Missoula a map, showing a survey and location of its line, which included the strip in controversy. This was approved by the secretary of the
No contention is made that the court committed any error in the ascertainment of the amount of damages. It is thus conceded that if the defendant is liable at all, the award made by the jury must stand. The theory of the case adopted by the court and counsel for the plaintiff was that the Montana Company did not acquire title by virtue of any of the occurrences prior to April 6, 1908, and hence that by its assumption of possession on January 1, 1909, under its conveyance from the Montana Company, the defendant became a trespasser, and liable to the plaintiff for all the damages it would have been liable for, had it sought to condemn the strip for a right of way in the first instance.
Counsel contends that the judgment should be reversed for three reasons: (1) That plaintiff did not have title at the time the acts complained of occurred; (2) that the defendant had title to the strip under the Act of Congress approved March 3, 1875, either by actual construction of its road, or by the filing of its map of definite location and the subsequent approval of it by the secretary of the interior; (3) that plaintiff’s cause of action is barred by the limitation prescribed by subdivision 3 of section
It will be noted that the date at which plaintiff acquired his patent does not appear. It is fair to assume that he acquired it subsequent to the completion of defendant’s road. Whether this is so, however, is not important. Under the rule applicable, his title cannot relate to a date earlier than that of his entry. The
In Hastings & Dak. R. R. Co. v. Whitney, supra, the court, after referring to its former decisions, said: “In the light of these decisions the almost uniform practice of the Department has been to regard land upon which an entry of record, valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption settlement, sale or grant until the original entry be canceled or declared forfeited, in which case the land reverts to the government as part
The underlying principle is that one person cannot initiate title to public land by invading an apparently valid existing right in another to the same land. (Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732.) This rule is entirely in accord with the theory of the statute under which plaintiff established his right of entry. (Act Cong. May 14, 1880, c. 89, 21 TT. S. Stats. 140, amended by Act Cong. July 26, 1892, c. 251, 27 U. S. Stats. 270, U. S. Comp. Stats. 1913, secs. 4536-4538.) The statute does no't confer any right to the land covered by the canceled entry, but merely the right to acquire the title by making entry as required by the land laws; for, after providing that the register of the local land office shall give notice to the successful contestant of the result of the contest, it declares that he shall be “allowed thirty days from date of such notice to enter said lands.” The extent of plaintiff’s right was therefore a mere preference right of entry—a personal privilege which he might or might not exercise-—granted to him- in consideration of his conducting the contest of Whitmore’s entry to a successful conclusion. (Graham v. Great Falls W. P. & T. Co., 30 Mont. 393, 76 Pac. 808.) That his title subsequently acquired by his
It has always been the policy of the Congress to encourage the building of railroads in the western states, as is witnessed
Counsel for plaintiif rely with confidence upon the case of Enid & Anadarko R. R. Co. v. Kephart, 19 Old. 1, 91 Pac. 1049. That case is distinguishable in its facts from this case, in that the question of the office of a conveyance to the railroad company from an entryman whose entry was prima facie valid was not therein involved or considered. It is not in point.
This disposition of the first two contentions of counsel renders it unnecessary to consider the third. The judgment and order are reversed, with directions to dismiss the action.
Beversed.