Page:Federal Reporter, 1st Series, Volume 4.djvu/703

 H. P. a. co. V. ST, p., M. <& M. sï, 00. 689 �of Clay, Minnesota.- In 1872 the plaintiff company entered upon this land and took, without condemnation, so much of the same as is now occupied by it for right of way, and haa ever since operated its railroad across the same. �At the time of the passage of the aot of congress incorpo- rating the complainant company, the land in question -waa public land; but at the time of the definite location of the line of the road under that act said land was owned by ono J. S. Schreiber, who in the meantime had obtained a patent therefor, and from whom, through several mesne convey- ances, the title passed to the respondents. No proceedings under the statute of Minnesota' to recover damages for the right of way were ever instituted by said Schreiber, or any of bis grantees, against the complainant. The respondents claim, under these circumstanees, that they are the owners of the land and have the right to construct their railroad across it, and in doing so to cross the track of complainant, without making compensation. The complainant daims that it bas a vested right and a valuable property in its right of way, which cannot be taken by the respondents without con- demnation, under the statute, and payment of damages. NumerouB questions arising upon the admitted facts have been discussed by counsel, the more important of which are the foUowing: First. Whether, under the charter of the complainant company, (act of congress of July 2, 1864,) that company acquired the right of way over ail lands that were public at the time of its passage, or only over such as were public at the time of the location of the line. Second. Whether the respondents, or those under whom they claim, had a com« plete title to the hem in quo at the time the complainant entered upon the same; and, third, if so, whether by permit- ting the complainant to.take the right of way, and use the same for eight years, the respondents and their grantors lost their rights therein, and the complainant acquired a vested right. Fourth. Whether the respondents' right to claim so much of the land as is embraced within complainant 's right of way is barred by section î of the aforesaid act of congress. �Besides these questions, which aïise upon the admitted �v.e^no.S — 4:4. ����