153 N.W. 440 | N.D. | 1915
Lead Opinion
In April, 1913, plaintiff was the owner of the west one half, section 23, 139 — 79, Burleigh county, North Dakota, having purchased the same from the Northern Pacific Railway Company; in that month the defendant township improved the highway between said land and the section immediately to the west thereof, thereby taking 4 acres from plaintiff’s land, whereupon this action was brought for damages. A proper consideration of the case requires a review of facts beginning July 2, 1864, upon which date an act of Congress was approved granting the alternate sections of a strip of land from Lake Superior to Puget sound in aid of the construction of the Northern Pacific Railroad.
At the time the act of July 2, 1864, was approved, the land in controversy was Indian country, i. e., the claims of the Indian tribes had not at that time been extinguished, but the fee was in the United States,
It is appellant’s contention that the grant from the United States to the Northern Pacific Railroad Company of July 2, 1864, was in prcesenti, and that upon the filing of the plat of definite location title to all of said lands passed to the railroad company as of July 2, 1864, and therefore Congress was without power to burden said lands with highway easements on July 26, 1866, and plaintiff, as successor in interest of the said railroad company, is entitled to remuneration for the tract taken for such highway. Defendant, on the other hand, contends that while the grant of 1862 was in prcesenti, yet it attached to no particular tracts of land until May 26, 1873, when the plat of definite location was filed, and that in the interim from July 2, 1864, to May 26, 1873, Congress had power to sell or otherwise encumber any parcel or tract within the said strip, and that the company’s remedy was to select other lands in lieu thereof as provided in said act.
Plaintiff’s land was one of the alternate sections selected by the railroad under act of 1864. Por some reason not apparent to this court, the defense of prescription was waived by defendant, and we are asked to pass upon the controversy above outlined. Appellant in his brief cites Buttz v. Northern P. R. Co. 119 U. S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep. 100; St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; Bardon v. Northern P. R. Co. 145 U. S. 535, 36 L. ed. 806, 12 Sup. Ct. Rep. 856; Northern Lumber Co. v. O’Brien, 204 U. S. 190, 51 L. ed. 438, 27 Sup. Ct. Rep. 249; Walbridge v. Russell County, 74 Kan. 341, 86 Pac. 473; St. Louis & S. F. R. Co. v. Love, 29 Okla. 523, 118 Pac. 259, all of which we have examined with care, and which in our opinion are not in point; for instance, Walbridge v. Russell County is unlike the case at bar in that the grant to the Union Pacific Railway Company was made in 1862, and the certificate of definite location was filed July 11, 1866, or fifteen days before the approval of the act of Congress creating the highway easement. This difference justifies the language of the Kansas court, that “at the time of the grant for public road purposes in 1866, the lands in question belonged to the Union Pacific Railway Company.” In Buttz v. Northern P. R. Co. 119 U. S. 55, 30 L. ed. 330, 7 Sup. Ct. Rep.
On the other hand, the plain reading of the act of 1864 is that the lands granted should be those “not reserved, sold, granted or otherwise appropriated ... at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office.” Nothing can be plainer than that said railroad was to take such lands as the government had left in said strip on May 26, 1873.
Besides the plain reading above, we have the expression of the Supreme Court of the United States at least four times upon the same proposition. In Menotti v. Dillon, 167 U. S. 703, 42 L. ed. 333, 17 Sup. Ct. Rep. 945, it is said: “The Acts of 1862 and 1864 by necessary implication recognize the right of Congress to dispose of the odd-numbered sections, or any of them, within certain limits on each side of the road at any time prior to the definite location of the line of the railroad.” And again in the same opinion, it is said: “A grant of public lands in aid of the construction of a railroad is, until, its route is established, in the nature of ‘a float,’ and title does not attach to specific sections until they are identified by an accepted map of definite location. . . . The railroad company accepted the grant subject to the possibility that Congress might, . . . prior to the definite location of its line, sell, reserve, or dispose of enumerated sections for other purposes than those originally contemplated.” In Northern P. R. Co. v. Sanders, 166 U. S. 620, 41 L. ed. 1139, 17 Sup. Ct. Rep. 671, it is said: '“The company acquired, by fixing its general route, only an inchoate right to the odd-numbered sections granted by Congress, and no right attached to any specific section until the road was definitely located. . . . Until such definite location it was competent for Congress to dispose of the public lands on the general route of the road.” The act of 1866 did not take from the railroad company any lands to which it had then acquired an absolute right. The right it acquired was to earn such of the lands within the exterior lines of that route as were not sold, reserved, or disposed of at the time of the definite location of its road. The act did not violate any contract between the United States and the
While this point is not decided by any previous decision of our own court, it is interesting to note the case of Walcott Twp. v. Skauge, 6 N. D. 382, 71 N. W. 544, wherein it is said at page 388: “Highways once established over the public domain under and by virtue of this act, the public at once became vested with an absolute right to the use thereof, which could not be revoked by the general government, and whoever thereafter took the title from the general government took it burdened with the highway so established.” While appellant has specified four errors for review, they are all similar and all answered by the foregoing arguments. The judgment of the trial court is in all things affirmed.
Rehearing
On Rehearing.
A petition for rehearing was granted by this court, partly because appellant had been deprived of a hearing originally on account of the small sum involved. Upon such rehearing appellant merely urges that, notwithstanding the grant of the right of way aforesaid by the act of July 26, 1866, and its acceptance by chapter 33, Sess. Laws 1871 of the Territory of Dakota, that later enactments of the legislature, to wit, § 1348, Rev. Codes 1905, Comp. Laws 1913, § 1920, declared a policy of this state to compensate the owners of section lines when the same were laid out and opened as public highways. We very much doubt the power of the legislature to waive a right of way granted by Congress in 1866, and accepted in 1871, especially as the state did not own said right of way, but merely held as trustee for the public; but such a discussion