Missouri Railway Company v. Cook

This was an action of ejectment brought by the Missouri, Kansas & 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, Kan., August 17, 1887, against J. B. Cook and L. H. Printz, to recover possession of certain real estate situated in 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, 27 Pac. 847. 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then chief engineer of said company, which was the line from which the lands mentioned in stipulation No. 7 herein were withdrawn from market; but that line did not touch the southwest quarter of section thirty-four (34), township thirty-four (34), range twenty-one (21), which includes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 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 approv l 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, K. & T. Ry. Co. v. U.S., reported in 92 U.S. 733, 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.

'(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.'

James Hagerman and T. N. Sedgwick, for plaintiff in error.

Nelson Case, for defendants in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.