UNITED STATES SUPREME COURT DECISIONS ON-LINE

A railroad company whose road is laid out so as, under the provisions of the Act of March 3, 1875, 18 Stat. 482, entitled "An act granting to railroads the right of way through the public lands of the United States," to cross a part of such public unsurveyed domain cannot take part thereof in the actual possession and occupation of a settler, who is entitled to claim a preemption right thereto when the proper time shall come, and who has made improvements on the land so occupied by him, without making proper compensation therefor as may be provided by law.

The Washington & Idaho Railroad Company, a corporation organized under the laws of Washington Territory, on September 18, 1888, filed a bill of complaint in the District Court of the First Judicial District of the Territory of Idaho against S. V. William Osborn, asserting a right to construct and maintain a railroad across lands in possession of the defendant. clubjuris

Page 160 U. S. 104

The cause was put at issue by answer and replication, and the court made the following findings of facts:

"First. T hat on the 5th day of July, 1886, the plaintiff became a duly organized corporation, under the laws of Washington Territory, for the purpose of constructing, equipping, operating, and maintaining a railroad from the Town of Farmington, in Washington Territory, by the most practical route, in a generally northern direction, to a point at or near Spokane Falls, in said territory, and by junction with said line near the forks of Hangman Creek, in said territory, in a generally northeasterly direction across the Coeur d'Alene Indian reservation, to a point near the mouth of the St. Joseph River, on Coeur d'Alene Lake; thence in a northerly direction along the east side of the Coeur d'Alene Lake to the Coeur d'Alene River; thence in a generally easterly direction to the Coeur d'Alene Mission; thence in a southeasterly direction to the valley of the South Fork of the Coeur d'Alene River, via the Town of Milo, to Wardener, Idaho Territory. And that afterwards, to-wit, on the 8th day of November, 1886, by amended articles of incorporation, the plaintiff became a corporation organized to construct a like railroad from said Town of Milo, following the South Fork of the Coeur d'Alene River, to the Town of Mullen, and that the premises in controversy herein are situated in the valley of the said South Fork, and between said towns of Milo and Mullen."

"Second. That each and all the allegations contained in the second, third, fourth, fifth, and sixth subdivisions of plaintiff's complaint are true."

"Third. That the defendant is a native-born citizen of the United States, over the age of twenty-one years, and has never had the benefit of the preemption or homestead laws of the United States, and is in all respects qualified in law to initiate proceedings to obtain title to one hundred and sixty acres of the agricultural lands belonging to the United States, and that the lands and premises hereinafter described, and every part thereof, are a part of the unsurveyed public lands of the United States, and agricultural in character, not reserved from sale, and subject to settlement under the laws of the United States. "

Page 160 U. S. 105

"Fourth. That in the year 1885, one Seth McFarren and one Samuel Norman settled upon the premises hereinafter described, who in that year erected a house and other buildings thereon, marked off the corners of the same, and partly fenced the same on its exterior boundaries as defined by their corner stakes, and that said McFarren and Norman resided constantly upon said premises, living in the dwelling house aforesaid, and constantly engaged in improving said premises, until the 18th day of March, 1886, at which date, by a deed of conveyance, in consideration of the sum of two thousand dollars, they conveyed the said premises and all the improvements thereon to the defendant, and that the defendant at the time of said purchase caused the said premises to be surveyed by a surveyor and erected new corner posts at each corner thereof, and caused such posts to be plainly marked, so as to indicate the corners of said premises, and with the name of said Osborn as the claimant, and that after said purchase the defendant filed in the office of the County Recorder of Shoshone County, Idaho, his declaration to hold said premises under the preemption law, under the possessory land act of said territory, and that said premises contain less than one hundred and sixty acres, and are described as follows, to-wit. . . ."

"Fifth. That during all the time since the 18th day of March, 1886, the defendant has resided upon said premises and still resides thereon, making the same his home, and has made improvements thereon to the value of eight thousand dollars, consisting of an hotel, barn, stables, ice house, cellar, fences, clearing and cultivating sixty acres of the land, etc., and that prior to the making of any survey for a railroad by plaintiff over the same in the year 1886, the defendant enclosed all of said premises by a substantial fence, excepting a portion of the line on the south side thereof, where the base of the mountain and fallen timber made a natural barrier sufficient to turn stock, and with the exception of a few places on the north line of said premises, where the steep bank of the river formed a natural barrier sufficient to turn stock, and that at the time said defendant settled thereon he intended, and ever since has intended, and now intends, to obtain title to said premises under

Page 160 U. S. 106

the preemption laws of the United States as soon as the same shall be surveyed by the government, and that the defendant is not the proprietor of 320 acres of land in any state or territory, and did not quit or abandon a residence on his own land to reside upon the public lands in this territory, and that the defendant has not settled upon or improved the said premises to sell the same on speculation, but in good faith to appropriate the same to his own exclusive use, and that he has not directly nor indirectly made any agreement or contract in any way or manner with any person whatsoever by which the title which he may receive from the government shall inure in whole or in part to the benefit of any person except himself."

The conclusions of law found by the court were, in substance, that Osborn, the defendant, was, and at all times since the 18th day of March, 1886, had been, the owner of, as against all persons except the United States, and in possession of, the land in dispute; that the title and right of possession of defendant in and to said premises were prior and paramount to the right of way of the plaintiff over the same, and that the defendant was entitled to a judgment. A judgment dismissing the bill was entered on October 4, 1888, and this judgment was on appeal to the Supreme Court of the Territory of Idaho, on March 19, 1889, affirmed.