Page:North Dakota Reports (vol. 48).pdf/137



From a judgment of the District Court of Williams County, Fisk, J. plaintiff appeals.

Affirmed.

Murphy & Toner, for appellant.

The Welo entry was a necessary part of plaintiff’s chain of title and should have been pleaded, and not having been pleaded, evidence of it was and is inadmissible. Shuttuck v. Smith, 6 N. D. 56, see p. 75; Pease v. Sanderson, 188 Ill. 597, 59 N. E. 425; LaBaron v. Shepherd, 21 Mich. 263; Strong v. Whybank, 204 Mo. 341, 102 S. W. 968; 12 L. R. A. (NS) 240; Sturtevant v. McDougall, 45 Wash. 532, 88 Pac. 1035; Cargar v. Fee, 140 Ind. 572, 39 N. E. 93; Pittsburg R. R. Co. v. O’Brien, 142 Ind. 218, 41 N. E. 528; Stuart v. Lowery, 49 Minn. 91, 51 N. W. 662.

In Ry. Co. v. O’Brien, supra, it is held that where the source of a party's title is specifically set out, no other source can be proven.

Decisions of the land department on questions of fact are not reviewable by the courts, and the land department having the facts before it approved the grant. Noble v. Ry. Co. 147 U. S. 165; Ry. Co. v. Stringham, 110 Pac. 868; Ry. Co. v. Ry. Co. 84 Pac. 1097; Comford v. G. N., 18 N. D. 570.

Whether the right of way granted to lay ties and steel on, build grades on, a side turnout, or a water tank, it is granted for right of way, and the title, the right of disposition, and the right of private persons to acquire title thereto is the same as to any and all lands granted under the act, after actual acquisition. Ry. Co. v. People 98 Ill. 350; Ry. Co. v. Ry. Co. 152 Fed. 849; Pfaff v. Ry. Co. 108 Ind. 144, 9 N. E. 93; Carmody v. Ry. Co. 111 Ill. 69.

The doctrine that the person most at fault should suffer in a contest over title has no application to a contest over a title acquired by grant as in this case. Stalker v. Ry. Co. 225 U. S. 142; Moran v. Ry. Co. 120 N. W. 192.

The grant here is not subject to the rules and construction of private grants. United States v. Van Horn, 197 Fed. 611.

The grant evidenced by an approved map and plat under the Act of