A railroad company whose road is laid out so as, under the
provisions of the Act of March 3, 1875, 18 Stat. 482, entitled "An
act granting to railroads the right of way through the public lands
of the United States," to cross a part of such public unsurveyed
domain cannot take part thereof in the actual possession and
occupation of a settler, who is entitled to claim a preemption
right thereto when the proper time shall come, and who has made
improvements on the land so occupied by him, without making proper
compensation therefor as may be provided by law.
The Washington & Idaho Railroad Company, a corporation
organized under the laws of Washington Territory, on September 18,
1888, filed a bill of complaint in the District Court of the First
Judicial District of the Territory of Idaho against S. V. William
Osborn, asserting a right to construct and maintain a railroad
across lands in possession of the defendant.
Page 160 U. S. 104
The cause was put at issue by answer and replication, and the
court made the following findings of facts:
"First. T hat on the 5th day of July, 1886, the plaintiff became
a duly organized corporation, under the laws of Washington
Territory, for the purpose of constructing, equipping, operating,
and maintaining a railroad from the Town of Farmington, in
Washington Territory, by the most practical route, in a generally
northern direction, to a point at or near Spokane Falls, in said
territory, and by junction with said line near the forks of Hangman
Creek, in said territory, in a generally northeasterly direction
across the Coeur d'Alene Indian reservation, to a point near the
mouth of the St. Joseph River, on Coeur d'Alene Lake; thence in a
northerly direction along the east side of the Coeur d'Alene Lake
to the Coeur d'Alene River; thence in a generally easterly
direction to the Coeur d'Alene Mission; thence in a southeasterly
direction to the valley of the South Fork of the Coeur d'Alene
River, via the Town of Milo, to Wardener, Idaho Territory. And that
afterwards, to-wit, on the 8th day of November, 1886, by amended
articles of incorporation, the plaintiff became a corporation
organized to construct a like railroad from said Town of Milo,
following the South Fork of the Coeur d'Alene River, to the Town of
Mullen, and that the premises in controversy herein are situated in
the valley of the said South Fork, and between said towns of Milo
and Mullen."
"Second. That each and all the allegations contained in the
second, third, fourth, fifth, and sixth subdivisions of plaintiff's
complaint are true."
"Third. That the defendant is a native-born citizen of the
United States, over the age of twenty-one years, and has never had
the benefit of the preemption or homestead laws of the United
States, and is in all respects qualified in law to initiate
proceedings to obtain title to one hundred and sixty acres of the
agricultural lands belonging to the United States, and that the
lands and premises hereinafter described, and every part thereof,
are a part of the unsurveyed public lands of the United States, and
agricultural in character, not reserved from sale, and subject to
settlement under the laws of the United States. "
Page 160 U. S. 105
"Fourth. That in the year 1885, one Seth McFarren and one Samuel
Norman settled upon the premises hereinafter described, who in that
year erected a house and other buildings thereon, marked off the
corners of the same, and partly fenced the same on its exterior
boundaries as defined by their corner stakes, and that said
McFarren and Norman resided constantly upon said premises, living
in the dwelling house aforesaid, and constantly engaged in
improving said premises, until the 18th day of March, 1886, at
which date, by a deed of conveyance, in consideration of the sum of
two thousand dollars, they conveyed the said premises and all the
improvements thereon to the defendant, and that the defendant at
the time of said purchase caused the said premises to be surveyed
by a surveyor and erected new corner posts at each corner thereof,
and caused such posts to be plainly marked, so as to indicate the
corners of said premises, and with the name of said Osborn as the
claimant, and that after said purchase the defendant filed in the
office of the County Recorder of Shoshone County, Idaho, his
declaration to hold said premises under the preemption law, under
the possessory land act of said territory, and that said premises
contain less than one hundred and sixty acres, and are described as
follows, to-wit. . . ."
"Fifth. That during all the time since the 18th day of March,
1886, the defendant has resided upon said premises and still
resides thereon, making the same his home, and has made
improvements thereon to the value of eight thousand dollars,
consisting of an hotel, barn, stables, ice house, cellar, fences,
clearing and cultivating sixty acres of the land, etc., and that
prior to the making of any survey for a railroad by plaintiff over
the same in the year 1886, the defendant enclosed all of said
premises by a substantial fence, excepting a portion of the line on
the south side thereof, where the base of the mountain and fallen
timber made a natural barrier sufficient to turn stock, and with
the exception of a few places on the north line of said premises,
where the steep bank of the river formed a natural barrier
sufficient to turn stock, and that at the time said defendant
settled thereon he intended, and ever since has intended, and now
intends, to obtain title to said premises under
Page 160 U. S. 106
the preemption laws of the United States as soon as the same
shall be surveyed by the government, and that the defendant is not
the proprietor of 320 acres of land in any state or territory, and
did not quit or abandon a residence on his own land to reside upon
the public lands in this territory, and that the defendant has not
settled upon or improved the said premises to sell the same on
speculation, but in good faith to appropriate the same to his own
exclusive use, and that he has not directly nor indirectly made any
agreement or contract in any way or manner with any person
whatsoever by which the title which he may receive from the
government shall inure in whole or in part to the benefit of any
person except himself."
The conclusions of law found by the court were, in substance,
that Osborn, the defendant, was, and at all times since the 18th
day of March, 1886, had been, the owner of, as against all persons
except the United States, and in possession of, the land in
dispute; that the title and right of possession of defendant in and
to said premises were prior and paramount to the right of way of
the plaintiff over the same, and that the defendant was entitled to
a judgment. A judgment dismissing the bill was entered on October
4, 1888, and this judgment was on appeal to the Supreme Court of
the Territory of Idaho, on March 19, 1889, affirmed.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case is before us on appeal from a judgment of the Supreme
Court of the Territory of Idaho affirming a decree of the District
Court of that territory, which decree dismissed
Page 160 U. S. 107
a bill of complaint brought by the Washington and Idaho Railroad
Company against William Osborn.
The railroad company was organized under the laws of the
Territory of Washington, and was constructing its road from a point
in that territory, by a route through the Territory of Idaho, to
the Town of Missoula, in the Territory of Montana. In constructing
its road through the Territory of Idaho, the plaintiff company
encountered, in Shoshone County, a tract of land in possession of
Osborn, across which the company desired to run the line of its
road. Osborn refusing to grant permission, the railroad company
instituted, under the laws of the Territory of Idaho, proceedings
in condemnation to condemn a right of way for its railroad over and
through the land of Osborn. Under these proceedings, damages were
assessed in favor of Osborn in the sum of $6,670. The railroad
company then filed its bill, alleging that prior to the
commencement of said proceedings for condemnation the company did
not know, nor could obtain sufficient information to advise it, of
the nature and character of Osborn's title, and that from the
testimony in those proceedings the company was advised and believed
that Osborn had no title or right to the possession of the premises
and right of way sought to be condemned, and that in equity and
good conscience it should not be compelled to pay Osborn any
compensation for said right of way.
Conceding, but not deciding, that it was competent for the
railroad company to abandon its condemnation proceedings, and to
challenge the defendant's title by a bill in equity, we shall now
consider the merits of the case as disclosed in the findings of
facts.
The plaintiff's side of the controversy is substantially this:
the Washington and Idaho Railroad Company, as a corporation of the
Territory of Washington, having filed with the Secretary of the
Interior a copy of its articles of incorporation, and due proofs of
its organization under the same, was entitled, under the Act of
March 3, 1875, c. 152, 18 Stat. 482, entitled "An act granting to
railroads the right of way through the public lands of the United
States," to a right of way through the public lands of the United
States to the extent of
Page 160 U. S. 108
one hundred feet on each side of the central line of its road,
and as the trial court found that the land claimed by Osborn was a
part of the unsurveyed public domain of the United States, and that
Osborn had never filed or entered the said land in any United
States land office under any existing law of the United States, the
company claims that it is within the doctrine of the many decisions
of this Court, which holds that a party, by mere settlement upon
the lands of the United States, although with a declared intention
to obtain a title to the same under the preemption laws, does not
thereby acquire such a vested interest in the premises as to
deprive Congress of the power to divest it by a grant to another
other party.
Frisbie v.
Whitney, 9 Wall. 187;
The
Yosemite Valley Case, 15 Wall. 77;
Buxton v.
Traver, 130 U. S. 232.
In brief, the plaintiff claims that, having been incorporated
and organized under a law of the Territory of Washington, and
having complied with the provisions of the Act of March 3, 1875,
the company became vested with a right of way through the public
lands of the United States, subject only to the exception contained
in the fifth section of said act, wherein it is enacted that the
act shall not apply "to any lands within the limits of any military
park or Indian reservation, or other lands specially reserved from
sale," and within which exception the defendant's claim does not
come.
It is claimed on the side of the defendant that while it is true
that his rights, arising out of mere prior possession and
cultivation of public lands, cannot prevent Congress from
conferring these very lands to other parties by a grant, yet that
Congress has not, in the present case, so conferred these lands to
the plaintiff company, but has, on the contrary, recognized and
preserved the defendant's rights by the provisions of the third
section of the Act of March 3, 1875.
In the case of
Buxton v. Traver, 130
U. S. 235, this Court said:
"A settlement upon the public lands in advance of the public
surveys is allowed to parties who in good faith intend, when the
surveys are made and returned to the local land office, to apply
for their purchase. If, within a specified time after the surveys,
and the return of the township plat,
Page 160 U. S. 109
the settler takes certain steps -- that is, files a declaratory
statement, such as is required when the surveys have preceded
settlement, and performs certain other acts prescribed by law, he
acquires for the first time a right of preemption to the land. . .
. He has been permitted by the government to occupy a certain
portion of the public lands, and therefore is not a trespasser, on
his statement that when the property is open to sale, he intends to
take the steps prescribed by law to purchase it, in which case he
is to have the preference over others in purchasing; that is, the
right to preempt it. The United States makes no promise to sell him
the land, nor do they enter into any contract with him upon the
subject. They simply say to him,"
"If you wish to settle upon a portion of the public lands and
purchase the title, you can occupy any unsurveyed lands which are
vacant and have not been reserved from sale, and when the public
surveys are made and returned, the lands not having been in the
meantime withdrawn from sale, you can acquire, by pursuing certain
steps, the right to purchase them."
It must therefore be conceded that Osborn did not, by
maintaining possession for several years and putting valuable
improvements thereon, preclude the government from dealing with the
lands as its own and from conferring them on another party by a
subsequent grant.
On the other hand, it would not be easy to suppose that Congress
would, in authorizing railroad companies to traverse the public
lands, intend thereby to give them a right to run the lines of
their roads at pleasure, regardless of the rights of settlers.
Accordingly, when we examine the Act of March 3, 1875, upon
which the plaintiff rests its claim of right to appropriate to
their use without compensation, the land and improvements of
Osborn, we find, in the third section, an express provision saving
the rights of settlers in possession. That section is in the
following terms:
"That the legislature of the proper territory may provide for
the manner in which private lands and possessory claims on the
lands of the United States may be condemned, and where such
provision shall
Page 160 U. S. 110
not have been made, such condemnation may be made in accordance
with section three of the act entitled"
"An act to aid in the construction of a railroad and telegraph
line from the Missouri River to the Pacific Ocean, and to secure to
the government the use of the same for postal, military, and other
purposes, approved July first, eighteen hundred and sixty-two,"
"approved July second, eighteen hundred and sixty-four."
The Legislature of the Territory of Idaho, in pursuance of said
third section, did provide a law for the condemnation by railroad
companies of the right of way over possessory claims (Rev.Stat.
Idaho, Title 7), and undoubtedly the defendant's claim was a
possessory one within the meaning of the legislation of Congress.
Indeed, as we have seen, the plaintiff company recognized the
applicability of this section, and instituted proceedings of
condemnation under the Idaho Act before it occurred to it to ask
the aid of a court of equity in taking possession of the
defendant's land and improvements without compensation.
We find no error in the judgment of the supreme court of the
Territory of Idaho, and it is accordingly
Affirmed.
