21 P. 421 | Idaho | 1889
This is an action brought by the plaintiff, in which it appears that the plaintiff, as a duly organized corporation, has duly filed its certificate of incorporation and dne proofs of its organization, under the act of March 8, 1875, and is entitled to a right of way for the purpose of constructing its railroad over the public lands of the United States; that the defendant claims that he is the owner of a part of said public land, and that he is entitled to the possession of the same as against the plaintiff; that thereupon, on the twenty-eighth day of July, 1888, plaintiff commenced proceedings in condemnation against said defendant to condemn the right of way for its road over and through the land so claimed by the defendant; that upon such proceedings the district court on the thirteenth day of August, 1888, appointed commissioners to appraise and assess the damages which the said Osborne would suffer by reason of the said condemnation for plaintiff’s right of way; that the commissioners took testimony, and reported, after viewing the premises and hearing the testimony, that the total damage sustained by the defendant by reason of the taking of the premises by the plaintiff were $6,670. The plaintiff declines, to make tender of that sum, or any sum, to the defendant, upon the ground that the defendant is not entitled to the possession of the premises as against the plaintiff. Plaintiff offers to pay the money into' court, and abide the determination of the question, and thereupon proceeds to ask judgment that it may be decreed to be the owner and entitled to the possession of the land, and also be entitled to enter upon the same for the purpose of constructing its railroad without the payment or tender of the damages so found by the commission; and asks for an injunction restraining and enjoining the defendant from interfering with it in the construction and operation of its road. The defendant, answering, alleged that he was in all respects qualified in law to initiate proceedings to obtain title to one hundred and sixty acres of agricultural land belonging to the United States; that the land upon which defendant was in possession was located and settled upon in the year 1885 by one Seth Mc-Farren and Samuel Norman, who in that year built a house and other buildings thereon, marked off the corners of the same, and partly fenced the same on its exterior boundary as
The appeal in this action is from the judgment and decree only. It does not appear that any motion for a new trial has been made, or any statement been filed in pursuance of section 4443 of the Revised Statutes of Idaho. We can, therefore, in disposing of this case, consider only the judgment-roll. If that appear to be correct, the judgment must be affirmed. (Gamble v. Dunwell, 1 Idaho, 268; People v. O'Conner, 1 Idaho, 759; Purdy v. Steel, 1 Idaho, 216; Caney v. Silverthorne, 9 Cal. 67.) The findings of the court in this case are conclusive of the facts, and the only question that remains is whether the conclusions of law are supported by the findings of fact. The court found as a matter of fact that on the fifth day of July, 1886, the plaintiff became a duly organized corporation under the laws of Washington territory, for the purpose of constructing and operating a railroad through a certain part of Shoshone county, and on the eighth day of November, 1886, filed amended articles of incorporation extending the line which the plaintiff proposed to construct. The property in question is covered by the extension. The court further finds that the defendant is a native-born citizen of the United States, has never had the
The only question presented in this case is whether the defendant’s possessory claim can be taken by the plaintiff without compensation. It appears that the defendant’s right was acquired before the organization of the plaintiff, and that the plaintiff had