N. Pac. R.R. Co. v. Smith, 171 U.S. 260 (1898)

NORTHERN PACIFIC RAILROAD COM¬ PANY et al., Plffs. in Err., v.

PATRICK R. SMITH.

(See S. C. Reporter’s ed. 260-276.)

Grant to railroad company — extent of occu¬ pation.

tent to locate a town site thereon, but with¬ out filing a plat or obtaining the adoption of the town site or a patent therefor until after a railroad is located thereon, does not prevent the land from being a part of the public do¬ main for the purposes of a grant to the rail¬ road company.

right of way has been occupied for railroad purposes, under a grant of 200 feet on each side of the track, does not prevent a railroad company from claiming the full width of the grant as against persons who had occupied the premises for the purpose of making a town site location thereof, but had not ac¬ quired a right thereto as against the railroad company when the road was built.

[No. 93.]

Argued 'November If, 5, 1897. Ordered for Reargument January 10, 189S. Reargued March 21, 1898. Decided May 31, 1898.

IN ERROR to tbe United States Circuit Court of Appeals for the Eighth Circuit to re¬ view a judgment of that court affirming the judgment of the Circuit Court of the United States for the District of North Dakota, in favor of the plaintiff, Patrick R. Smith, in an action brought by him against the Northern Pacific Railroad Company to recover the pos-

Note. — .4s to pre emption rights, see note to United States v. Fitzgerald, 10 : 785.

That patents for land may he set aside for fraud, see note to Miller v. Kerr, 5 : 381.

As to errors in surveys and descriptions in patents for lands; how construed, — see note to Watts v. Lindsey, 5 : 423.

As to land grants to railroads, see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 : 794.

157

260-263

Supreme Court of the United States.

Oct. Term,

session of land in the city of Bismarck and territory of Dakota, now state of North Da¬ kota. Judgments of the Circuit Court of Ap¬ peals and of the Circuit Court reversed, and cause remanded to the latter court with di¬ rections to enter a judgment in favor of the defendants.

See same ease below, 19 U. S. App. 131/ 58 Fed. Rep. 513, 7 C. C. A. 397.

Statement by Mr. Justice Shiras:

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 plain-

tiff respectfully ‘shows to this court and alleges that the plaintiff is, and ever since the organization of the 9tate 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 the 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 stall 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 govern¬ ment, the state of North Dakota), to wit: Lots numbered fiVe, six, seven, eight, nine, ten, eleven, and twelve, in block number eight, ac¬ cording to the recorded plat of the city of Bismarck, Dakota Territory, together with the hereditaments, privileges, and appurte¬ nances thereof and thereto belonging.

“That said defendant more than six years prior to the commencement of this action wrongfully and unlawfully went into posses¬ sion of the premises above described. That said defendant ever since said entry has wrongfully and unlawfully retained and with¬ held, and still does wrongfully and unlawfully retain and withhold, the possession thereof from the plaintiff. And that the use and oc¬ cupation 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.”

158

*“The defendant for amended answer tothe

complaint herein:

“First. For a first defpnse, 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 ha^ 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 com¬ plaint.

“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 de¬ fendant is a corporation created by the said act of Congress. Denies each and every al¬ legation 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 what¬ ever.

“Second. For a second defense —

“That on the ninth day of May, 1889, the plaintiff impleaded the defendant in the dis¬ trict court within and for the county of Bur¬ leigh, in the sixth judicial district for the ter¬ ritory 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 judg¬ ment: 1st. That the complaint be dismissed.

2d. For its costs and disbursements in this action.”

•The findings of fact and law made by the

trial court were as follows:

“The property in controversy, the same be¬ ing 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 North Dakota to ‘Bismarck,’ was part of an eighty (80) aore tract of land which was entered by John A. McLean as mayor of the city of Bismarck, in behalf of its inhabitants, under the town-site act (Re¬ vised Statutes, § 2387), and was patented to him thereunder July 21, 1879.

“The corporate authorities of that city sub¬ sequently and more than six years prior to the commencement of the action conveyed these lots to Patrick R. Smith, the plaintiff.

171 U. S.

Nobthekn Pacific Kau.koad Co. v. Smith.

263-266

“The eighty (80) acre tract, on which these tot* were situated, was selected as the loca¬ tion of a portion of this town site, and sur¬ veyed 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 town site according to a plat thereof, which was then made, and subsequently, on Febru¬ ary 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 town site, and from that time until the patent was issued the population of the city and the improvements in it continued to in¬ crease. It was upon the town site 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 Mc¬ Lean was based, and this patent contained no reservation of any right of way to the North¬ ern 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, 1S73.

“On February21, 1872 the Northern Pacific

Railroad “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 of¬ fice 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 re¬ main on file in the office of the register and receiver of the land office at Bismarcx, hav¬ ing 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 in¬ tersection 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 oper¬ ated upon it. The grading on its line of definite location two miles south was abandoned. The lots in question are withiD two hundred feet of the main track of this railroad as actually constructed and more than two miles from its line of definite loca¬ tion as shown on its map filed to definitely fix this line, and have been occupied by the de¬ fendant, through its tenants, during the period in question; but no part of the same,

171 U. S.

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 prem¬ ises 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 the “southeast corner ofMain[265J 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 begin¬ ning. Anu such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the par¬ ties and subject-matter of said action) that the defendant in the action herein (the plain¬ tiff 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 con¬ clusions of law, that the plaintiu is entitled to the possession of the premises above de¬ scribed, and to recover from the defendant the sum of twenty-six thousand dollars with interest thereon from the 28th day of Decem¬ ber, A. D. 1891, at the rate of seven per cent per annum, and his costs and disbursements.”

Mr. C. W. Bunn for plaintiff in error on both arguments. Mr. G. IF. Holcomb filed a supplemental brief for plaintiff in error by leave of the court.

Mr. Hiram F. Stevens for defendant in error on both arguments.

Mr. Justice Shiras 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 “to that com-

pany, its successors and assigns, the right of way through the public lands to the extent of 200 feet in width on each side of said rail¬ road where it may pass through the public domain.

Liuring 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 rail-

159

266-208

Supreme Court op the United States.

Oct. Term

road was constructed across this tract, and has since remained and been operated upon it. The lots in question are within 200 feel of the main track of this railroad as actu¬ ally 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 Browing & Wringrose and of Patrick K. Smith, the defendant in error, as the ten¬ ant 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 terri¬ tory of Dakota against Browing & Wring- rose and said Patrick R. Smith, which action resulted, on January 31, 1878, in a final judg¬ ment, still subsisting, against said Smith ana the other defendants.

On the trial of the present action, which was brought in the circuit court of tfhe Unit¬ ed 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 cor¬ porate authorities of the city of Bismarck of the said lots as part of a town-site plat patented to John A. McLean, as mayor oi 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. 1870, he became and ever since has been and still is duly seised in fee simple and en¬ titled to the possession” of the property in ,

dispute. *In the findings it is stated thatthe city authorities conveyed these lots to Pat¬ rick R. Smith, the plaintiff, subsequently to the granting of the patent to the mayor on Julj' 21, 1879.

The defendant, the Northern Pacific- Railroad Company, at the trial relied on its grant of right of way from the United States on June 2, 1864, on its possession of lots six, seven, eight, nine, and ten since the construc¬ tion of the railroad in 1S73, and of lots eleven and twelve since their recovery under the action and judgment in 1878, and the com¬ pany likewise put in evidence the record of said suit and recovery as constituting res judicata.

The learned judge of the circuit court, af¬ ter stating the . foregoing facts, and some others not necessary to be here mentioned, entered judgment that the plaintiff was en •titled 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. 32 U. S. App. 5i 3.

When it was made to appear that, by the 2d section of the act of June 2, 1864, there was granted to the Northern Pacific Rail-

160

road Company a right of way through the public lands, to the extent of 200 feet in width on each side of said railroad; that, in pursuance of said grant, the railroad com¬ pany had constructed its road in 1873, in¬ cluding in its right of way the land in dis¬ pute; that, on November 24, 1873, commis¬ sioners, appointed under the 4th section of said act, reported that they had examined the Dakota division of said railroad (in¬ cluding that portion of the same which cov¬ ered the land in controversy) and that they had found its construction and equipment throughout to be in accordance with the in¬ structions 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 Presi¬ dent; and that the company had maintained and operated said railroad since its said con¬ struction to the time of trial, undoubtedly *there was thus disclosed a prima facie titl'e[268J and right of possession of the' disputed tract.

To overthrow the railroad company’s case the plaintiff depended on an alleged convey¬ ance made to him after July 21, 1879, by the city authorities of the city of Bismarck, of the lots in dispute in tins suit, and gave evi¬ dence that the 80-acre tract on which these lots were situated was selected as a portion of a town site 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, 1S74, recorded, a plat thereof, and that said town site and plat was afterwards adopted as the town site of the city of Bismarck under the town site act of the United States (§ 2387, Rev. Stat.) and was patented as such town site to John A. McLean, mayor of said city, on July 21,

ing tne premises in question was surveyed in the months of October and November, 1S72, and the plat thereof w’as filed in the General Land Office in March, 1873.

It is evident that when in 1873 the North¬ ern Pacific Railroad Company took posses¬ sion 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 loca¬ tion, but rather, by having, through the com¬ missioners and the President, approved and accepted this part of the road when con¬ structed, 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 cer¬ tainly was, unless the occupation, at that time, of those who afterwards, in 1879, ob¬ tained a patent for a tract of 80 acres, includ¬ ing the land in question as part thereof, for a town site, deprived it of that character.

It has frequently been decided by this court that mere occupation and improvement

171 XL S.

ia»7

269-27i

N uKTUEKN Pacific Railroad Co. v. Smith.

(269] on the public lands, with a view *to pre¬ emption, 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 pre-emption 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 [19: 668]; The Yosemite Valley Case, 15 Wall. 77 [21: 82] ;Buxt on v. Traver, 130 U. S. 232 [32: 920] ; Northern Pac. R. R. Co. v. Colburn, 164 U. S. 383 [41:479].

If, then, one seeking to appropriate to him¬ self a portion of the public lands cannot, no matter how long his occupation or how large his improvements, maintain a right of pos¬ session against the United States or their grantees, unless he has, by entry and pay¬ ment of purchase money, created in himself a vested right, is one who claims under a town-site 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, wrhy rights created under a town- site 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 town-site 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, in¬ cluding within its boundaries the land in dis¬ pute, but it is also found tnat no plat thereof was filed in the register’s office until Feb¬ ruary 9, 1874, a year after the railroad com¬ pany had gone into possession and con¬ structed 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.

*In such a state of facts will the law over¬ turn 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 high¬ way? 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 act¬ ual could be given than that afforded by the operation of a railroad. Moreover, this rec¬ ord discloses that Smith on or about Novem¬ ber 1, 1876 (more than three years after the completion of the railroad ) , went into posses¬ sion of a portion of the land in dispute as 171 U. S. U. S., Book 43.

a tenant of other parties, and that he waa 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 judg¬ ment as res judicata, it is thus quite appar¬ ent that Smith thereby was visited with no¬ tice 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 os its grantee could avail themselves of such entry, still the proof is that the rail¬ road company completed its road over the land before the town site 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 gov¬ ernment obtained a grant of the right of way, which was at least perfectly good as against the government. And be it further con¬ ceded, 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 em¬ inent domain, it 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 there¬ on.

There is abundant authority for the propo¬ sition 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 cog¬ nizant of the facts may, by permitting a rail¬ road company, without objection, to take possession of land, construct its track, and operate its road, preclude himself from a rem¬ edy 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 McAulay v. Western Vermont R. R. Company, 33 Vt.

311 [78 Am. Dec. 627], and where Chief Justice Redfield delivered the opinion of the court, a portion of which we quote:

“It being admitted, as it seems to be, that the plaintiff had full knowledge of the pro¬ ceedings of the company to construct and lo¬ cate their road upon his land, before and dur¬ ing 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 rea¬ son of the nonpayment of his damages.

161

11

271-274

Supreme Court op the United States.

Oct. Term,

o . . It is undoubtedly true that, ac¬ cording to our general railroad statutes and the special charters in this state, the pay¬ ment 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*these great pub¬ lic works the shortest period of clear acquies¬ cence, so as fairly to lead the company to in¬ fer 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 stop 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 Eng¬ lish 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 to the company, either by his express consent, or by his silence, to under¬ stand that he did not intend to object to their proceeding with their construction and opera¬ tion. ... If there was, then, a waiver in fact, either express or implied, by acquiescence in the proceedings of the company to the ex¬ tent of not insisting upon payment as a condi¬ tion precedent, but consenting to let the dam¬ ages be and remain a mere debt, with or with¬ out 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 R.R. Co. 87 Pa. 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 prop¬ erty 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, haying a rio-ht to enter, and to place these materials on the

and taken for a public *use — materials essen¬ tial to the very purpose which the state has declared in the grant of the charter. It is time the entry was a trespass, by reason of the omission to do an act required for the security 162 J

of the citizen, to wit, to make compensation or give security for it. Fpr 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 can¬ not increase his remedy. The injury was to what the landholder had himself, not to- what he had not. Then why should 'the ma¬ terials 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 sointhiscase; forthough the original entry was a trespass it is well set¬ tled 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, R. I. & Pac. R. R.

Co. 57 Mo. 256, it was held that the conduct of a landholder in standing by while a rail¬ road company constructed its. load, precluded him from recovering physical possession of the land, covered thereby. Judge Wagner, after quoting with approval the language of Chief Justice Redfield in McAulay v. Western Ver¬ mont 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 dam¬ ages 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 wouTd 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 com¬ pany to the extent of not insisting upon the prepayment as a condition* precedent ; andaf-

ter 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 up¬ on the land, or to maintain ejectment. There are other effective and sufficient remedies. A court of equity would unquestionably inter¬ fere, if necessary, and place the road in the hands of a receiver until the damages were paid from the earnings. 2 Redf. Am. Railw.

Cas. 2d ed. 353. But the only question we are called upon bo decide is whether under the facts and circumstances of this ease eject¬ ment will lie, and we think it will not.”

A similar question was decided in the case of the Omaha and Northern Nebraska R. W.

Co., v. Redick, 16 Neb. 313. This was an action of ejectment for the possession of a JO-

171 U. S.

Camou y. United States.

274-277

acre tract of land brought by a landowner against a railroad company, which had con¬ structed 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 suscepti¬ ble of being waived. . . . Whatever

right the plaintiff may have against the rail¬ road 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 com¬ merce 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.”

275] *The same conclusion was reached in Lex¬ ington d Ohio R. R. Go. v. Ormsby, 7 Dana, 276; Harlow v. Marquette, H. d 0. R. R. Co. 41 Mich. 336; Cairo and Fulton R. R. Co. v. Turner, 31 Ark. 494; Pettibone v. La Crosse and Milwaukee R. R. Co. 14 Wis. 443; Chica¬ go and Alton R. R. Co. v. Goodwin, 111 Ill. 273 [53 Am. Rep. 622] ;Kanaga v. St. Louis, L. d W. Ry. Co. 7 6 Mo. 207 ; Dodd v. St. Louis d H. Ry. Co. 108 Mo. 581 ; Evansville d T. H. Ry. Co. v. Rye, 113 Ind. 223.

This subject was fully considered by this court in the case of Roberts v. Northern Pac. R. R. Co. 158 U. S. 1 [39: 873], 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 with¬ out having complied with a statute requiring either payment t>y 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 tres¬ pass 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 there¬ fore conclude that neither the city of Bis¬ marck, as owners of the town site, nor its grantee Smith, can, undeT the facts and cir¬ cumstances shown in this record, disturb the possession of the Northern Pacific Railroad Company in its right of way extending 200 feet on each side of its said road. The find¬ ing of the trial court, that only 25 feet in width has ever been occupied for railroad purposes, is immaterial. By granting a right of way 400 feet in width, Congress must be understood to have conclusively de¬ termined that a strip of that width was neces¬ sary 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 25 feet thereof were occupied for railroad purposes in the face of the grant and of the finding that the entire land in dispute was I

171 U. S.

within 200 feet of the track of the railroad as actually constructed, and that the rail¬ road company was in actual possession thereof by its tenants. The precise charac¬ ter of the business ^carried on by such tenants

is not disclosed to us, but we are permitted to presume that it is consistent with the pub¬ lic duties and purposes of the railroad com¬ pany; and, at any rate, a forfeiture for mis¬ user could not be enforced in a private ac¬ tion.

These views dispose of the ease, and ren¬ der 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 judicata in the pres¬ ent action.

The judgment of the Circuit Court of Ap¬ peals is reversed ; the judgment of the Cir¬ cuit Court is also reversed, and the cause re¬ manded to that court with a direction to en¬ ter a judgment in favor of the defendants.

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.

Brewer, J., concurring specially: I con¬ cur in a reversal of the judgments below but not in all the conclusions reached in the fore¬ going 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, station houses, and other buildings used exclusively for railroad pur¬ poses, and does not extend to the entire 400 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 town-site patent and the deed to plaintiff must prevail in this ac¬ tion at law over any equities the company may have acquired by occupancy.