Union Pacific Railroad Company v. Morris Harris H M

The admitted facts are that on April 22, 1861, Bernhard Blou settled upon and improved the northeast quarter of section 12, township 14 south, of range 3, in Saline county, Kansas, and on May 13, 1861, filed the declaratory statement required by the pre-emption laws. Blou, by occupation, cultivation, and improvements, preserved all his rights under the pre-emption until September 5, 1865, when, having made no payment or final proof, he changed his pre-emption entry to one under the homestead act of May 20, 1862. He continued in occupation, on December 8, 1870, made final proof under his homestead entry, and, on March 15, 1872, received a patent.

By the act of July 1, 1862, the general Union Pacific Railroad act (12 Stat. at L. 489, 494, chap. 120), the Leavenworth, Pawnee, & Western Railroad Company, whose name was changed to the Union Pacific Railroad Company, Eastern Division, and thereafter to the Kansas Pacific Railway Company, was granted a right of way 200 feet in width on each side of its road, through the public lands of the United States. The plaintiff in error, hereinafter called the defendant, has succeeded to the right, title, and interest of the Leavenworth Company. The route of the company, as prescribed by the act, ran from Missouri up the Kaw river until it reached the Republican river, and then north along the left bank of that river to intersect with the one hundredth meridian in the territory of Nebraska. On July 17, 1862, the company filed its map of general route, and caused the lands within the limits of 15 miles thereof on either side of the proposed route to be withdrawn from sale. Under the amendatory act of July 2, 1864 (13 Stat. at L. 356, chap. 216), the company filed another map, designating the same general route. Neither of these routes came within 45 miles of the tract in controversy. Among the changes in the last named act is one providing in § 3 for the condemnation of a right of way 200 feet wide through land occupied by the owner or claimant. The act of July 3, 1866 (14 Stat. at L. 79, chap. 159), changed the route to extend westwardly towards Denver. Under this act the company located and constructed its road westwardly along the Smoky Hill river instead of northwestwardly along the Republican river, and, as located and constructed, the road passed through the quarter section which Blou was then seeking to acquire under the homestead law.

On January 20, 1873, Bernhard Blou executed and delivered to the Kansas Pacific Railway Company, the successor of the Leavenworth, Pawnee, & Western Railroad Company, a deed for a right of way through said quarter section, which deed the railway company accepted, and paid him the consideration named in it. The land in controversy is a strip 150 feet wide, lying immediately south of a line 50 feet south of the center of the track of the defendant through the quarter section. On November 10, 1882, Blou sold and conveyed to John Erickson, by warranty deed, all that part of the quarter section lying south of the railroad track, containing 101 acres. The defendants in error, hereinafter called the plaintiffs, derive title from Erickson. The plaintiffs and those under whom they claim had exclusive possession of the land in question from May, 1861, to August, 1902; broke and cultivated it, and paid all taxes assessed upon it since the issue of the patent. In August, 1902, the defendant fenced and took possession of the tract in controversy, whereupon this action to recover possession was commenced by the plaintiffs. The court found in their favor, and rendered judgment accordingly. This judgment was affirmed by the supreme court of the state (76 Kan. 255, 91 Pac. 68), and thereupon the case was brought here on error.

Messrs. Maxwell Evarts and R. W. Blair for plaintiff in error.

Messrs. T. F. Garver and Z. C. Millikin for defendants in error.

Statement by Mr. Justice Brewer:

Mr. Justice Brewer delivered the opinion of the court: