Missouri, K. & T. Ry. Co. v. Cook,
163 U.S. 491 (1896)

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U.S. Supreme Court

Missouri, K. & T. Ry. Co. v. Cook, 163 U.S. 491 (1896)

Missouri, Kansas & Texas Railway Company v. Cook

No. 178

Argued and submitted March 24, 1896

Decided May 26, 1896

163 U.S. 491


By the filing of the map of the line surveyed prior to December 24, 1867, for the route of the railroad now known as the Missouri, Kansas, and Texas Railway, the route of the road was definitely fixed within the intent and meaning of the Act of July 26, 1866, c. 270, 14 Stat. 289, granting lands to aid in its construction, and while the principal object in filing the map was to secure the withdrawal of the lands granted, it also operated to definitely locate the line and limits of the right of way.

The grant of the lands and the grant of the right of way were alike grants in praesenti, and stood on the same footing, so that, before definite location, all persons acquiring any portion of the public lands after the passage of the act took the same subject to the right of way for the proposed road.

The rights of the settler in this case were acquired after the line had been located, and were not affected by the subsequent act of the company in changing the location.

This was an action of ejectment brought by the Missouri, Kansas and Texas Railway Company, a corporation of the State of Kansas, and the Missouri Pacific Railway Company, a corporation of Missouri, in the District Court of Labette County, Kansas, August 17, 1887, against J. B. Cook and L. H. Printz, to recover possession of certain real estate situated in

Page 163 U. S. 492

the City of Chetopa in that county and described in the petition. Defendants filed a general denial. The case was tried by the court on an agreed statement of facts, and judgment rendered for defendants. Plaintiff thereupon took the case on error to the Supreme Court of Kansas, by which the judgment of the district court was affirmed. 47 Kan. 216. Thereupon a writ of error was taken out from this Court.

The agreed statement was as follows:

"1. The Missouri, Kansas and Texas Railway Company was on the 25th day of September, 1865, duly organized as a corporation under the name of the Union Pacific Railway Company, Southern Branch, and on the 3d day of February, A.D. 1870, its name was duly changed, and made the Missouri, Kansas and Texas Railway Company, and it is the railway company referred to in the Act of Congress approved July 26, 1866, entitled"

"An act granting lands to the State of Kansas to aid in the construction of a southern branch of the Union Pacific Railway and Telegraph, from Fort Riley, Kansas, to Fort Smith, Arkansas."

"2. The acceptance of the terms, conditions, and impositions of said act by the said Union Pacific Railway Company, Southern Branch, was signified in writing, under the corporate seal of said company, duly executed pursuant to the direction of its board of directors first had and obtained, which acceptance was made and deposited with the Secretary of the Interior within one year after the passage of said act."

"3. The land in the petition described is a part of the lands known as the 'Osage ceded lands,' granted to the United States by the treaty between the United States of America and the Great and Little Osage Indians, proclaimed January 21, 1867."

"4. Prior to the 24th day of December, 1867, a line was surveyed for the route of said railroad by G. M. Walker, then chief engineer of said company, which was the line from which the lands mentioned in stipulation No. 7 herein were withdrawn from market; but that line did not touch the southwest quarter of section thirty-four (34), township thirty-four (34), range twenty-one (21), which includes the land described in plaintiff's petition in this case, and afterwards, and between

Page 163 U. S. 493

May 1, 1870, and June 6, 1870, said company located its road on the line where now operated, and built same in substantial compliance with said act of Congress, but the route of said road on its present location has never been approved by the President of the United States unless such approval is shown by the other facts herein admitted."

"5. The premises in plaintiff's petition demanded lie wholly within one hundred feet of the center line of the main track of the railway so built and constructed as aforesaid, the center line of said main track being the center of the right of way of the railroad company."

"6. On the first day of December, 1880, the said Missouri, Kansas and Texas Railway Company leased said railway to said Missouri Pacific Railway Company, which has since possessed and operated the same as such lessee."

"7. Upon the completion of said railway through said Osage ceded land, the President of the United States issued to said Missouri, Kansas and Texas Railway Company patents under said Act of Congress approved July 26, 1866, for the alternate sections of land designated by odd numbers, to the extent of five alternate sections per mile on each side of said railroad, which are the same patents set aside in the case of Missouri, Kansas & Texas Railway Company v. United States, reported in 92 U. S. 733, 92 U. S. 760."

"8. The quarter section, including the land in question, was entered and purchased by one W. A. Hodges, from the government of the United States, on October 9, 1869, and a certificate in due form was on that day, by the proper officers, issued to him therefor, and thereafter, and on November 1, 1870, a patent in due form was issued therefor, pursuant to the said entry, by the government of the United States to said patentee, Hodges, which was duly signed and executed, and a perfect chain of title from said Hodges, patentee, now runs to and terminates in said defendant J. B. Cook, and he is the owner thereof, unless the same is owned by plaintiff by virtue of the facts herein admitted and the law governing the same. Defendant Printz is in possession of the premises in controversy as the tenant of defendant Cook. "

Page 163 U. S. 494

"9. None of the land in dispute lies within fifty feet of the line of the center of the main track of said railroad, nor does defendant claim any part of the strip of land within fifth feet on either side of the center of said track."

"The plaintiff at the time of constructing said road, erected a depot building on its right of way, and the land on which said building stands is adjacent to the land in dispute, which said depot has been used all the time since its erection for the purpose of receiving freight and passengers for shipment; nor does defendant claim any ground on which side tracks of said railroads are now located."

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