Bybee v. Oregon & C. Railroad Company

The answer of the defendant in substance denied the ownership of plaintiff and Fisher in any portion of the waterditch or water-right alleged to have been destroyed by the defendant, and denied their lawful possession thereof. It further denied that the deed set forth in the complaint contained any condition whatever, or that defendant ever assented to any condition connected with such deed, or received possession of the ditch under this deed; and alleged as a separate defense to the complaint that it was incorporated to construct and operate a railroad and telegraph line from Portland, in Oregon, and running thence southerly through the Williamette, Umpqua, and Rogue river valleys to the California line on the southern boundary of Oregon. That by section 3 of an act of congress, approved July 25, 1866, there was granted to it a right of way through the public lands of the United States, to the extent of 100 feet in width n each side of the said railroad where it might pass through such lands. That the lands through and over which the portion of the said waterditch, alleged to have been injured by defendant, was constructed and is situated, were at the date of said act public lands of the United States, over and upon which the defendant had the right, by virtue of the grant made in that act, to locate its right of way and construct its railroad and telegraph line. That in locating said right of way and constructing said road it became necessary for the defendant to appropriate to its use 100 feet in width on each side of its road, through and over which said land a portion of said water-ditch alleged to have been injured by defendant was located and constructed, and that the defendant did accordingly locate its right of way over the ground through which the water-ditch was dug, and constructed its road over such right of way; and that any injury which may have been done to said ditch was done in the course of such construction.

The answer further alleged that on May 17, 1879, the said Daniel Fisher attempted to appropriate to his own use, under the mining laws of the United States, a portion of said right of way, and constructed thereon the said ditch; that the only claim of right ever made by Fisher to locate and dig that portion of such ditch was obtained by virtue of his pretended compliance with certain provisions of the mining laws; that he had no other interest or ownership in such land than the right so acquired, and plaintiff's only interest therein was acquired under and through said Fisher; and that defendant took nothing by the deed mentioned in the complaint, as it then owned, by virtue of the said grant of the United States, all the rights and property pretended to be conveyed by said deed, and never received any consideration whatever for the sum alleged to have been paid by it for such pretended conveyance.

To this separate defense in the answer the plaintiff demurred, upon the grounds (1) that it did not state facts sufficient to constitute a defense; (2) that the facts stated in the complaint estopped the defendant from setting up the right of way mentioned in such defense, or any benefit under the congressional grant of the right of way of July 25, 1866, set forth in such defense; (3) that defendant had forfeited and lost all its right under suh g rant over the land where the ditch was situated by its failure to complete its railroad road on or before the 1st day of July, 1875, and had at no time since owned any right or interest in such land or right of way over the same.

The court below overruled the demurrer in an opinion reported in 11 Sawy. 479, 26 Fed. Rep. 586, and, the plaintiff not desiring to plead further, entered a final judgment in favor of the defendant, to reverse which the plaintiff sued out this writ of error.

John H. Mitchell, for plaintiff in error.

[Argument of Counsel from pages 666-673 intentionally omitted]

C. H. Tweed and J. Hubley Ashton, for defendant in error.

Mr. Justice BROWN, after stating the facts as above, delivered the opinion of the court.