52 F. 765 | U.S. Circuit Court for the District of Idaho | 1892
This action is ejectment for a railroad right of way, consisting of a strip of ground 200 feet wide by 4,100 feet long, at the town of Wallace, Idaho, and on the unsurveyed public lands of the United States. Only the first-named defendant appears in the action, and each party, for its claim to the premises in controversy, relies upon the provisions of the act of congress approved March 3, 1875, (1
From the testimony it appears the plaintiff company was organized July 3, 1886, under the laws of Washington Territory, but whether duly organized according to those laws has not been shown, nor are they, as they then existed, now accessible to the court; but from the fact that plaintiff, in its articles of incorporation, set out in some detail the general description of the proposed route its road would take, it may be presumed the statute of said territory provided, as most statutes upon the same subject do, that such route and the termini must be described in the articles of incorporation. It appears by plaintiff’s said articles that its proposed road was to run from a point in said territory to the town of Wardner, in Shoshone county, Idaho, which did not include the right of way or ground in controversy. It follows, therefore, by plaintiff’s own showing, that when it was so organized it was not for the purpose of building a road over this ground, and that it did not then claim any .right of way over it. It did, however, by supplemental articles of incorporation, entered into on the 8th day of November, 1886, provide for an extension of its road through the town of Wallace, over the premises in controversy, and therein described the route of the same. This lattér date is therefore the earliest at which plaintiff was organized to build a road over such premises.
The defendant (the Coeur d’Alene Railway & Navigation Company) was incorporated under the laws of Montana territory on the 6th day of July, 1886, and in its articles describes and includes, as a portion of its proposed railroad route, the premises in question. On the 20th day of the same month it filed with the secretary of the interior a copy of its said articles, and a copy of the Montana statute under which it was incorporated, copies of both of which, officially certified to by the commissioner of the general land office, are in evidence. Section 801 of said Montana statute provides that the due incorporation of a company shall, without further proof or acts, operate as its organization; hence filing with the secretary proof of the incorporation operated also as proof of the organization. It thus appears that defendant, by said 20th day of July, had fully complied with the statute, and was on that date authorized to take any steps necessary for the possession and acquisition of the right of way in controversy, and in this respect was prior to plaintiff. On October 29, 1886, defendant ran the survey of its line over such premises, being the day after the plaintiff surveyed its route over practically the same line. But, as before concluded, the plaintiff was not authorized to take any possession of the premises prior to the 22d day of December, 1886. Its said survey, on the 28th day of October, 1886, conferred no rights whatever upon it as against defendant.
It is also urged by plaintiff that defendant surveyed three different lines at said town of Wallace, indicated on exhibits as “A,” “B,”and“C,” the last being the one in dispute, and that on the 8th day of November, 1886, it filed in the local land office a plat of its route in which line B was indicated as the one adopted, and that plaintiff was thereby misled to its injury. The evidence shows that the filing of line B was not to