Neither the City of Bismarck, as owner of the townsite, nor its
grantee Smith, can, under the circumstances disclosed in this
record, disturb the possession of the Northern Pacific Railroad
Company in its right of way extending two hundred feet on each side
of its said road.
The finding of the trial court that only twenty-five feet in
width has ever been occupied for railroad purposes is
immaterial.
By granting a right of way four hundred feet in width, Congress
must be understood to have conclusively determined that a strip of
that width was necessary for a public work of such importance, and
it was not competent for a court, at the suit of a private party,
to adjudge that only twenty-five feet thereof were occupied for
railroad purposes in the face of the grant and of the finding that
the entire land in dispute was within two hundred feet of the track
of the railroad as actually constructed, and that the railroad
company was in actual possession thereof by its tenants.
The precise character of the business carried on by such tenants
is not disclosed, but the Court is permitted to presume that it is
consistent with the public duties and purposes of the railroad
company, and at any rate, a forfeiture for misuser could not be
enforced in a private action.
This was an action brought by Patrick R. Smith on the 28th day
of December, 1891, in the Circuit Court of the United States for
the District of North Dakota, against the Northern Pacific Railroad
Company. The complaint and answer were as follows:
"The complaint of the above-named plaintiff respectfully
Page 171 U. S. 261
shows to this court, and alleges that the plaintiff is, and ever
since the organization of the State of North Dakota has been, a
citizen thereof, and that, prior thereto he was during all the time
hereinafter mentioned a citizen of the Territory of Dakota."
"That during all the time hereinafter mentioned, the above-named
defendant has been, and still is, a corporation created by and
existing under and in virtue of an act of Congress of the United
States of America entitled"
"An act granting lands to aid in the construction of a railroad
and telegraph line from Lake Superior to Puget Sound on the Pacific
Coast, by the northern route,"
"approved July 2, 1864."
"That on the 14th day of September, A.D. 1876, the plaintiff
became. and ever since has been, and still is, duly seised, in fee
simple, and entitled to the possession, of the following described
real property, situated in the City of Bismarck, in the County of
Burleigh, and Territory of Dakota (now, and since the organization
thereof under a state government, the State of North Dakota),
to-wit: Lots numbered five, six, seven, eight, nine, ten, eleven,
and twelve, in block number eight, according to the recorded plat
of the City of Bismarck, D.T., together with the hereditaments,
privileges, and appurtenances thereof, and thereto belonging."
"That said defendant, more than six years prior to the
commencement of this action, wrongfully and unlawfully went into
possession of the premises above described. That said defendant
ever since said entry has wrongfully and unlawfully retained and
withheld, and still does wrongfully and unlawfully retain and
withhold, the possession thereof from the plaintiff. And that the
use and occupation thereof during said time was worth at least five
thousand dollars a year. That the damage to the plaintiff by the
wrongful withholding of the possession of the premises as aforesaid
is the sum of thirty thousand dollars."
"Wherefore the plaintiff demands judgment against said defendant
for the possession of said premises, and for the sum of thirty
thousand dollars, his damages as aforesaid, together with his costs
and disbursements herein. "
Page 171 U. S. 262
"The defendant, for amended answer to the complaint herein:"
"First. For a first defense, alleges:"
"That the land mentioned in the complaint is situated within two
hundred feet of the center line of the roadbed of its line of
railroad constructed through the State of North Dakota, and has
been for more than twenty years in its lawful possession as its
right of way, roadbed, and depot grounds, and that the same was
granted to it as a right of way by the act of Congress described in
the complaint."
"Admits that, at all times mentioned in the complaint, the
plaintiff was a resident of the City of Bismarck, in the State of
North Dakota, and further admits that the defendant is a
corporation created by the said act of Congress. Denies each and
every allegation in the complaint not hereinbefore specifically
admitted, and it specifically denies that, by reason of any of the
allegations or things in the said complaint set forth the plaintiff
has been damaged in any sum whatever."
"Second. For a second defense:"
"That on the 9th day of May, 1889, the plaintiff impleaded the
defendant in the District Court within and for the County of
Burleigh, in the Sixth Judicial District for the Territory of
Dakota (now the State of North Dakota), for the same cause of
action for which he has impleaded it in this action."
"That at the time of the commencement of this action, said
action was pending in said court and is still pending therein."
"Third. For a third defense:"
"That on the 31st day of January, 1878, the defendant recovered
judgment against the plaintiff for the possession of a portion of
the property described in the complaint, to-wit, that portion
thereof described as lots eleven and twelve for six cents damages,
and for $_____ costs, and that said judgment was rendered upon the
cause of action mentioned in the complaint, which judgment is in
full force, unreversed, and unsatisfied."
"Wherefore the defendant demands judgment: (1) that the
complaint be dismissed; (2) for its costs and disbursements in this
action. "
Page 171 U. S. 263
The findings of fact and law made by the trial court were as
follows:
"The property in controversy -- the same being eight lots in the
City of Bismarck, in North Dakota, described as lots five (5) to
twelve(12), both inclusive, in block eight (8), in the City of
Bismarck, which was formerly known as 'Edwinton,' and the name of
which was changed by act of the Legislature of the Territory of
Dakota to 'Bismarck' -- was part of an eighty (80) acre tract of
land which was entered by John A. McLean, as Mayor of the City of
Bismarck, in behalf of its inhabitants, under the Townsite Act
(Revised Statutes, sec. 2387), and was patented to him thereunder
July 21, 1879."
"The corporate authorities of that city subsequently, and more
than six years prior to the commencement of the action, conveyed
these lots to Patrick R. Smith, the plaintiff."
"The eighty (80) acre tract on which these lots were situated
was selected as the location of a portion of this townsite and
surveyed prior to June 20, 1872. In the year 1872, the attorney of
the Lake Superior & Puget Sound Land Company (the company that
first made this selection) commenced, and thereafter continued, to
sell lots upon this townsite according to a plat thereof which was
then made, and subsequently, on February 9, 1874, recorded in the
office of the register of deeds of the county in which the land was
situated. By the first of January, 1873, thirty buildings had been
erected on the townsite, and from that time until the patent was
issued, the population of the city, and the improvements in it,
continued to increase. It was upon the townsite thus selected, and
the plat thus made, which was afterwards adopted as the plat and
site of the City of Bismarck, that the patent to McLean was based,
and this patent contained no reservation of any right of way to the
Northern Pacific Railroad Company."
"The congressional township embracing the premises in question
was surveyed in the months of October and November, 1872, and the
plat thereof filed in the General Land Office in March, 1873."
"On February 21, 1872, the Northern Pacific Railroad
Page 171 U. S. 264
Company filed in the Department of the Interior the map of its
general route east of the Missouri River. This route passed about
three-quarters of a mile south of this eighty-acre tract. On May
26, 1873, it filed with the Secretary of the Interior, in the
office of the Commissioner of the General Land Office, and he
accepted, its map fixing the definite location of its line. The
Interior Department thereupon designated such line upon its record
maps for its use, and copies of such record maps were forwarded to,
and remain on file in, the office of the register and receiver of
the land office at Bismarck, having jurisdiction of that part of
the public domain embracing the premises in question. The line thus
fixed passed about two miles south of this eighty-acre tract.
During the year 1872, grading was done by the company on this line,
extending in a continuous line from its grading east of the
township in which this tract was located to a point one-quarter of
a mile west of the west line of this eighty-acre tract, extended
south to its intersection with the grading. During the year 1872,
there was a line staked out across this tract substantially where
the railroad is now constructed, but no grading was done on this
line until the spring of 1873. In the year 1873, the railroad was
constructed across this tract, and has since remained, and been
operated, upon it. The grading on its line of definite location,
two miles south, was abandoned. The lots in question are within two
hundred feet of the main track of this railroad, as actually
constructed, and more than two miles from its line of definite
location, as shown on its map filed to definitely fix this line,
and have been occupied by the defendant, through its tenants,
during the period in question, but no part of the same, except the
rear twenty-five feet thereof, has ever been occupied for railroad
purposes."
"In the year 1877, the defendant commenced an action in the
District Court of Burleigh County, Territory of Dakota (now the
State of North Dakota), in which county the premises next
hereinafter described were and are situated, against certain
parties, including the plaintiff herein, to recover the possession
of part of the premises here in question, which portion is
particularly described as follows: commencing at
Page 171 U. S. 265
the southeast corner of Main and Third Streets in the City of
Bismarck, the same being the northwest corner of block eight (8);
running thence east along the south line of said Main Street a
distance of fifty (50) feet; thence south, parallel with the east
line of said Third Street, a distance of seventy-five (75) feet, to
said east line of said Main Street, a distance of fifty (50) feet,
to said Third Street; thence north, along said east line of said
Third Street, a distance of seventy-five (75) feet, to the place of
beginning. And such proceedings were duly had in said action in
said court (the same being a court of competent jurisdiction of the
parties and subject matter of said action) that the defendant in
the action herein (the plaintiff in the action last above referred
to) duly recovered in said action a judgment against the defendants
in that action, including the plaintiff in this action, for the
possession of the premises last above described and for nominal
damages for the withholding thereof."
"That the value of the use and occupation of the premises in
question for six years prior to December 28, 1891, the date of the
commencement of the action, is the sum of twenty-six thousand
dollars."
"From the foregoing facts I find, as conclusions of law, that
the plaintiff is entitled to the possession of the premises above
described, and to recover from the defendant the sum of twenty-six
thousand dollars, with interest thereon from the 28th day of
December, A.D. 1891 at the rate of seven percent per annum, and his
costs and disbursements."
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
By the second section of the Act of July 2, 1864, creating the
Northern Pacific Railroad Company, there was granted
Page 171 U. S. 266
to that company, its successors and assigns, the right of way
through the public lands, to the extent of two hundred feet in
width on each side of said railroad where it may pass through the
public domain.
During the year 1872 there was a line staked out across the
tract, a portion of which is in dispute in this case, substantially
where the railroad is now constructed, but no grading was done on
this line until the spring of 1873. In the latter year, the
railroad was constructed across this tract, and has since remained
and been operated upon it. The lots in question are within two
hundred feet of the main track of this railroad, as actually
constructed, and have been occupied by the defendant during the
entire period since the construction of the road, excepting lots
eleven and twelve, which during about three years were in the
adverse possession of the firm of Browning & Wringrose and of
Patrick R. Smith, the defendant in error, as the tenant of said
firm.
In 1877, an action of ejectment to recover possession of said
lots eleven and twelve was brought by the Northern Pacific Railroad
Company, in the District Court of the Territory of Dakota, against
Browning & Wringrose and said Patrick R. Smith, which action
resulted on January 31, 1878, in a final judgment (still
subsisting) against said Smith and the other defendants.
On the trial of the present action, which was brought in the
Circuit Court of the United States for the District of North Dakota
in 1893, and which brought into question the title and possession
of lots five, six, seven, eight, nine and ten, as well as of lots
eleven and twelve, the plaintiff, Patrick R. Smith, set up, as the
basis of his title and right of possession, a deed of conveyance by
the corporate authorities of the City of Bismarck of the said lots
as part of a townsite plat patented to John A. McLean, as mayor of
said city, on July 21, 1879. The record does not disclose a copy of
such deed to Smith, nor its date. In his complaint, Smith alleged
that "on the fourteenth day of September, A.D. 1876, he became, and
ever since has been, and still is, duly seised, in fee simple, and
entitled to the possession" of the property in dispute.
Page 171 U. S. 267
In the findings it is stated that the city authorities conveyed
these lots to Patrick R. Smith, the plaintiff, subsequently to the
granting of the patent to the mayor on July 21, 1879.
The defendant the Northern Pacific Railroad Company at the trial
relied on its grant of a right of way from the United States on
June 2, 1864, and on its possession of lots six, seven, eight,
nine, and ten since the construction of the railroad, in 1873, and
of lots eleven and twelve since their recovery under the action and
judgment, in 1878, and the company likewise put in evidence the
record of said suit and recovery as constituting
res
judicata.
The learned judge of the circuit court, after stating the
foregoing facts, and some others not necessary to be here
mentioned, entered judgment that the plaintiff was entitled to
recover the possession of all of said lots, and the sum of $26,000,
as the value of the use and occupation of the premises in question
for six years prior to December 28, 1891, the date of the
commencement of the action, and that judgment was affirmed by the
circuit court of appeals. 69 F. 579.
When it was made to appear that, by the second section of the
Act of June 2, 1864, there was granted to the Northern Pacific
Railroad Company a right of way through the public lands to the
extent of two hundred feet in width on each side of said railroad;
that in pursuance of said grant the railroad company had
constructed its road in 1873, including in its right of way the
land in dispute; that, on November 24, 1873, commissioners
appointed under the fourth section of said act reported that they
had examined the Dakota division of said railroad (including that
portion of the same which covered the land in controversy), and
that they had found its construction and equipment throughout to be
in accordance with the instructions furnished for their guidance by
the Interior Department, and accordingly recommended the acceptance
of the road by the government; that said report had been on
December 1, 1873, approved by the President, and that the company
had maintained and operated said railroad since its said
construction to the time of trial -- undoubtedly
Page 171 U. S. 268
there was thus disclosed a
prima facie title and right
of possession of the disputed tract.
To overthrow the railroad company's case, the plaintiff depended
on an alleged conveyance made to him after July 21, 1879, by the
city authorities of the City of Bismarck, of the lots in dispute in
this suit, and gave evidence that the eighty-acre tract on which
these lots were situated was selected as a portion of a townsite
and surveyed prior to June 20, 1872, by the Lake Superior &
Puget Sound Land Company, and that said land company made, and on
February 9, 1874, recorded, a plat thereof, and that said townsite
and plat were afterwards adopted as the townsite of the City of
Bismarck, under the Townsite Act of the United States (sec. 2387,
Rev.Stat.), and patented, as such townsite, to John A. McLean,
mayor of said city, on July 21, 1879. The congressional township
embracing the premises in question was surveyed in the months of
October and November, 1872, and the plat thereof was filed in the
General Land Office in March, 1873.
It is evident that when, in 1873, the Northern Pacific Railroad
Company took possession of the land in dispute as and for its right
of way and constructed its road over and upon the same, if the
tract so taken was then part of the public lands, only the United
States could complain of the act of the company in changing the
location of its tracks from that previously selected. But, so far
as this record discloses, the United States did not object to such
change of location, but rather, by having, through the
commissioners and the President, approved and accepted this part of
the road when constructed, must be deemed to have acquiesced in the
change of location as properly made.
But was the land in question part of the public domain in the
spring of 1873? It certainly was unless the occupation at that time
of those who afterwards, in 1879, obtained a patent for a tract of
eighty acres, including the land in question as part thereof, for a
townsite, deprived it of that character.
It has frequently been decided by this Court that mere
occupation and improvement on the public lands, with a
Page 171 U. S. 269
view to preemption, do not confer a vested right in the land so
occupied; that the power of Congress over the public lands, as
conferred by the Constitution, can only be restrained by the courts
in cases where the land has ceased to be government property by
reason of a right vested in some person or corporation; that such a
vested right, under the preemption laws, is only obtained when the
purchase money has been paid and the receipt of the proper land
officer given to the purchaser.
Frisbie v.
Whitney, 9 Wall. 187;
Yosemite
Valley Case, 15 Wall. 77;
Buxton v.
Traver, 130 U. S. 232;
Northern Pacific Railroad v. Colburn, 164 U.
S. 383.
If, then, one seeking to appropriate to himself a portion of the
public lands cannot, no matter how long his occupation or how large
his improvements, maintain a right of possession against the United
States or their grantees unless he has, by entry and payment of
purchase money, created in himself a vested right, is one who
claims under a townsite grant in any better position?
No cases are cited to that effect, nor does there seem to be any
reason in the nature of things why rights created under a townsite
settlement should be carried back, by operation of law, so as to
defeat the title of a party who had, under color of right, taken
possession and made valuable improvements before the entry under
the Townsite Act.
It is one of the findings of fact that in the year 1872, the
Lake Superior & Puget Sound Land Company occupied a tract of
land, including within its boundaries the land in dispute, but it
is also found that no plat thereof was filed in the register's
office until February 9, 1874, a year after the railroad company
had gone into possession and constructed its road, and that the
patent was not granted to the mayor, in behalf of the City of
Bismarck, till July 21, 1879. It is also one of the findings that
the corporate authorities did not convey these lots to Patrick R.
Smith till
after the grant of the patent.
The record contains no copy of the deed to Smith, nor statement
of any consideration paid by him, nor of the date when, if ever, he
went into actual possession.
Page 171 U. S. 270
In such a state of facts, will the law overturn the title of the
railroad company by imputing to Smith the antecedent possession of
the Lake Superior & Puget Sound Land Company? Whatever may be
his rights to the land outside of that in possession of the
railroad company, must it not be inferred that he bought subject to
the public highway? It is found that in the month of June, 1873,
the railroad had been constructed across this tract, and has since
remained and been operated upon it, and it is hard to imagine what
notice more distinct and actual could be given than that afforded
by the operation of a railroad. Moreover, this record discloses
that Smith, on or about November 1, 1876 (more than three years
after the completion of the railroad), went into possession of a
portion of the land in dispute as a tenant of other parties, and
that he was ousted therefrom by a final judgment in an action of
ejectment at the suit of the railroad company, on January 31,
1878.
Apart from the legal effect of that judgment as
res
adjudicata, it is thus quite apparent that Smith thereby was
visited with notice of the claim of the railroad company.
But suppose it be conceded, for the sake of the argument, that
the Lake Superior & Puget Sound Land Company made the first
entry, and that the City of Bismarck, and Smith, as its grantee,
could avail themselves of such entry; still the proof is that the
railroad company completed its road over the land before the
townsite was patented, and before Smith obtained his conveyance. To
acquire the benefit tendered by the act of 1864, nothing more was
necessary than for the road to be constructed. The railroad
company, by accepting the offer of the government, obtained a grant
of the right of way, which was at least perfectly good as against
the government. And be it further conceded, but not decided, that
the railroad company, when it changed its route, after the filing
of its map of definite location, lost its priority of right under
the grant of the act of 1864, as against subsequent grantees of the
United States, who obtained title before the actual construction of
the railroad, and that the railroad company could only legally
proceed under the exercise of its right of eminent domain; it
Page 171 U. S. 271
still remains, as we think, under the facts of this case, that
Smith could not maintain his present action seeking to oust the
company from possession of its right of way and railroad
constructed thereon.
There is abundant authority for the proposition that while no
man can be deprived of his property, even in the exercise of the
right of eminent domain, unless he is compensated therefor, yet
that the property holder, if cognizant of the facts, may, by
permitting a railroad company, without objection, to take
possession of land, construct its track, and operate its road,
preclude himself from a remedy by an action of ejectment. His
remedy must be sought either in a suit in equity or in a proceeding
under the statute, if one be provided, regulating the appropriating
of private property for railroad purposes.
Such were the facts in the case of
McAuley v. Western
Vermont Railroad Company, 33 Vt. 311, and where Chief Justice
Redfield delivered the opinion of the court, a portion of which we
quote:
"It being admitted, as at seems to be, that the plaintiff had
full knowledge of the proceedings of the company to construct and
locate their road upon his land before and during all the time of
the construction, and that he did not interfere in any way to
prevent the occupation of the land for the purposes of the road
otherwise than by forbidding the hands working on the road until
his damages were paid, and that only on one occasion, it becomes an
important inquiry whether he can maintain ejectment for the land by
reason of the nonpayment of his damages. . . . It is undoubtedly
true that, according to our general railroad statutes and the
special charters in this state, the payment or deposit of the
amount of the land damages assessed or agreed is a condition
precedent to the vesting of the title, or of any right in the
company to construct their road, and that if they proceed in such
construction without this, they are trespassers. And this has been
repeatedly so held by this Court."
"This may have led to the misapprehension in the present case,
but it certainly is a very serious misapprehension. In
Page 171 U. S. 272
these great public works, the shortest period of clear
acquiescence, so as fairly to lead the company to infer that the
party intends to waive his claim for present payment, will conclude
the right to assert the claim in any such form, as to the company,
in the progress of their works, and especially to stop the running
of the road after it has been put in operation, whereby the public
acquire an important interest in its continuance. The party does
not, of course, lose his claim, or the right to enforce it in all
proper modes. He may possibly have some rights analogous to the
vendor's lien in England, and here till the legislature cut it off.
But it is certain, according to the English decisions, that he
cannot stop the work, and especially the trains upon the road, if
he has in any sense, for the shortest period, clearly given the
company, either by his express consent or by his silence, to
understand that he did not intend to object to their proceeding
with their construction and operation. . . . If there was then a
waiver in fact either express or implied, by acquiescence in the
proceedings of the company to the extent of not insisting upon
payment as a condition precedent, but consenting to let the damages
be and remain a mere debt, with or without a lien upon the roadbed,
as the law may turn out to be, then it is impossible to regard the
defendants in any sense in the light of trespassers, or liable in
ejectment."
Justice v. Nesquehoning Valley Railroad, 87 Penn.St.
28, was a case where a railroad company was a trespasser, and its
entry upon land not in conformity with law, and it was held that
these irregular proceedings did not operate as a dedication to the
landowners of the property of the company placed upon the land so
as to entitle said landowners to include said property in an
assessment of damages under the railroad law and recover their
value as an accession to the value of the land taken by the
company. In delivering the opinion of the supreme court, Chief
Justice Agnew said:
"This is not the case of a mere trespass by one having no
authority to enter, but of one representing the state herself,
clothed with the power of eminent domain, having a right to enter
and to place these materials on the land taken for a
Page 171 U. S. 273
public use -- materials essential to the very purpose which the
state has declared in the grant of the charter. It is true, the
entry was a trespass by reason of the omission to do an act
required for the security of the citizen, to-wit, to make
compensation or give security for it. For this injury, the citizen
is entitled to redress. But his redress cannot extend beyond his
injury. It cannot extend to taking the personal chattels of the
railroad company. They are not his, and cannot increase his remedy.
The injury was to what the landowner had himself, not to what he
had not. Then why should the materials laid down for the benefit of
the public be treated as dedicated to him? In the case of a common
trespasser, the owner of the land may take and keep his structures,
nolens volens, but it is not so in this case, for, though
the original entry was a trespass, it is well settled that the
company can proceed in due course of law to appropriate the land,
and consequently to reclaim and avail itself of the structures laid
thereon."
In
Provolt v. Chicago, Rock Island & Pacific
Railroad, 57 Mo. 256, it was held that the conduct of a
landholder in standing by while a railroad company constructed its
road precluded him from recovering physical possession of the land
covered thereby. Judge Wagner, after quoting with approval the
language of Chief Justice Redfield in
McAuley v. Western
Vermont Railway Co., hereinbefore cited, said:
"The plaintiff did not attempt to obstruct or in any wise impede
the progress of the work. The plain inference was that he waived
his right for prepayment of his damages, and only intended to
follow his remedy on his judgment. His conduct surely led the
company to believe such was his purpose, and induced them to pursue
a course, and expend large sums of money, which otherwise they
would not have done. If plaintiff intended to rely on his rights
and make present payment a condition precedent, he should have
objected and forbidden the company to interfere or to do any work
on his land till the question of damage was settled. But this he
did not do. He acquiesced in the proceedings of the company to the
extent of not insisting upon the prepayment as a condition
Page 171 U. S. 274
precedent; and, after having done so, we do not think that he
can maintain ejectment."
"If, from negotiation in regard to the price of the land or for
any other reason, there is just ground of inference that the works
have been constructed with the express or implied assent of the
landowner, it would seem wholly at variance with the expectations
of the parties and the reason of the case that the landowner should
retain the right to enter upon the land or to maintain ejectment.
There are other effective and sufficient remedies. A court of
equity would unquestionably interfere, if necessary, and place the
road in the hands of a receiver until the damages were paid from
the earnings. (2 Redf.Am.Rw.Cas. 2d ed. 353.) But the only question
we are called upon to decide is whether, under the facts and
circumstances of this case, ejectment will lie, and we think it
will not."
A similar question was decided in the case of
Omaha &
Northern Nebraska Railway v. Redick, 16 Neb. 313. This was an
action of ejectment for the possession of a forty-acre tract of
land, brought by a landowner against a railroad company which had
constructed its road over said tract. It seems that the plaintiff,
as one of the directors of the railroad company, had known that the
company was constructing its road across his lands, and had
remained quiet. The court said:
"It is true that, under the constitution and laws of this state,
the assessment of damages, and payment or deposit of the amount is
a condition precedent to the vesting of the title or of any right
of the company to construct their road. But these conditions are
susceptible of being waived. . . . Whatever right the plaintiff may
have against the railroad company, growing out of this right of way
question, and whether he is estopped
in pais to assert any
and all of them, it seems clear that he is not entitled to a
judgment that would enable him to sever a line of commerce, which,
by his assent, if not through his active agency in part, was
constructed over this same property, and has enjoyed free passage
over it for at least seven years. "
Page 171 U. S. 275
The same conclusion was reached in
Lexington & Ohio
Railroad v. Ormsby, 7 Dana 276;
Harlow v. Marquette
&c. Railroad, 41 Mich. 336;
Cairo & Fulton
Railroad v. Turner, 31 Ark. 494;
Pettibone v. Lacrosse
& Milwaukee Railroad, 14 Wis. 443;
Chicago & Alton
Railroad v. Goodwin, 111 Ill. 273;
Kanaga v. Railway
Co., 76 Mo. 207;
Dodd v. St. Louis & Hannibal
Railway, 108 Mo. 581;
Evansville & Terre Haute
Railroad v. Nye, 113 Ind. 223.
This subject was fully considered by this Court in the case of
Roberts v. Northern Pacific Railroad, 158 U. S.
1, where, upon the foregoing authorities and others, it
was held that if a landowner, knowing that a railroad company has
entered upon his land and is engaged in constructing its road
without having complied with a statute requiring either payment by
agreement or proceedings to condemn, remains inactive, and permits
it to go on and expend large sums in the work, he is estopped from
maintaining either trespass or ejectment for the entry, and will be
regarded as having acquiesced therein, and will be restricted to a
suit for damages.
Upon principle and authority, we therefore conclude that neither
the City of Bismarck, as owner of the townsite, nor its grantee
Smith can, under the facts and circumstances shown in this record,
disturb the possession of the Northern Pacific Railroad Company in
its right of way, extending two hundred feet on each side of its
said road. The finding of the trial court that only twenty-five
feet in width has ever been occupied for railroad purposes is
immaterial. By granting a right of way four hundred feet in width,
Congress must be understood to have conclusively determined that a
strip of that width was necessary for a public work of such
importance, and it was not competent for a court at the suit of a
private party, to adjudge that only twenty-five feet thereof were
occupied for railroad purposes in the face of the grant, and of the
finding that the entire land in dispute was within two hundred feet
of the track of the railroad as actually constructed, and that the
railroad company was in actual possession thereof by its tenants.
The precise character of the business
Page 171 U. S. 276
carried on by such tenants is not disclosed to us, but we are
permitted to presume that it is consistent with the public duties
and purposes of the railroad company, and, at any rate, a
forfeiture for misuser could not be enforced in a private
action.
These views dispose of the case, and render it unnecessary to
determine whether the trial of the title of lots eleven and twelve
in the action between the railroad company and Smith, as a tenant
of Browning & Wringrose, resulting in a final judgment, was
well pleaded as
res adjudicata in the present action.
The judgment of the circuit court of appeals is reversed.
The judgment of the circuit court is also reversed, and the cause
remanded to that court, with a direction to enter a judgment in
favor of the defendant.
MR. JUSTICE GRAY and MR. JUSTICE WHITE concur in the judgment of
the Court only on the ground first stated in the opinion of the
Court -- that is, the sufficiency of the title of the railroad
company.
MR. JUSTICE HARLAN dissents.
MR. JUSTICE BREWER, concurring specially.
I concur in a reversal of the judgments below, but not in all
the conclusions reached in the foregoing opinion, nor in the
direction to enter judgment for the defendant. I think the estoppel
relied on goes only to the ground actually occupied by the railroad
company with its tracks, stationhouses, and other buildings used
exclusively for railroad purposes, and does not extend to the
entire four hundred feet of the right of way which the company
claims under the congressional grant. It may be that a large
portion of this tract is in only the constructive possession of the
company, or it may be occupied by buildings not used exclusively
for railroad purposes, and as to all such ground I do not think any
estoppel extends.
I am also of the opinion that the legal title conveyed by the
townsite patent and the deed to plaintiff must prevail in this
action at law over any equities the company may have acquired by
occupancy.
