# Northern Pacific Company v. Smith

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United States Supreme Court
171 U.S. 260
Northern Pacific Company v. Smith
This was an action brought by Patick R. Smith on the 28th day of December, 1891, in the circuit court of the United States for the district of North Dakota, against the Northern Pacific Railroad Company. The complaint and answer were as follows:
'The complaint of the above-named plaintiff respectfully shows to this court, and alleges, that the plaintiff is, and ever since the organization of the state of North Dakota has been, a citizen thereof, and that prior thereto he was during all the time hereinafter mentioned a citizen of the territory of Dakota.
'That during all the time hereinafter mentioned the above-named defendant has been, and still is, a corporation created by, and existing under and in virtue of, an act of congress of the United States of America entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on th Pacific Coast, by the northern route,' approved July 2, 1864.
'That on the 14th day of September, A. D. 1876, the plaintiff became. and ever since has been, and still is, duly seised, in fee simple, and entitled to the possession, of the following described real property, situated in the city of Bismarck, in the county of Burleigh, and territory of Dakota (now, and since the organization thereof under a state government, the state of North Dakota), to wit: Lots numbered five, six, seven, eight, nine, ten, eleven, and twelve, in block number eight, according to the recorded plat of the city of Bismarck. D. T., together with the hereditaments, privileges, and appurtenances thereof, and thereto belonging.
'That said defendant more than six years prior to the commencement of this action wrongfully and unlawfully went into possession of the premises above described. That said defendant ever since said entry has wrongfully and unlawfully retained and withheld, and still does wrongfully and unlawfully retain and withhold, the possession thereof from the plaintiff. And that the use and occupation thereof during said time was worth at least five thousand dollars a year. That the damage to the plaintiff by the wrongful withholding of the possession of the premises as aforesaid is the sum of thirty thousand dollars.
'Wherefore the plaintiff demands judgment against said defendant for the possession of said premises, and for the sum of thirty thousand dollars, his damages as aforesaid, together with his costs and disbursements herein.' 'The defendant, for amended answer to the complaint herein:
'First. For a first defense, alleges:
'That the land mentioned in the complaint is situated within two hundred feet of the center line of the roadbed of its line of railroad constructed through the state of North Dakota, and has been for more than twenty years in its lawful possession as its right of way, roadbed, and depot grounds, and that the same was granted to it as a right of way by the act of congress described in the complaint.
'Admits that at all times mentioned in the complaint the plaintiff was a resident of the city of Bismarck, in the state of North Dakota, and further admits that the defendant is a corporation created by the said act of congress. Denies each and every allegation in the complaint not hereinbefore specifically admitted, and it specifically denies that by reason of any of the allegations or things in the said complaint set forth the plaintiff has been damaged in any sum whatever.
'Second. For a second defense:
'That on the 9th day of May, 1889, the plaintiff impleaded the defendant in the district court within and for the county of Burleigh, in the Sixth judicial district for the territory of Dakota (now the state of North Dakota), for the same cause of action for which he has impleaded it in this action.
'That at the time of the commencement of this action said action was pending in said court and is still pending therein.
'Third. For a third defense:
'That on the 31st day of January, 1878, the defendant recovered judgment against the plaintiff for the possession of a portion of the property described in the complaint, to wit, that portion thereof described as lots eleven and twelve for six cents damages, and for $_____ costs, and that said judgment was rendered upon the cause of action mentioned in the complaint, which judgment is in full force, unreversed, and unsatisfied.
'Wherefore the defendant demands judgment: (1) That the complaint be dismissed; (2) for its costs and disbursements in this action.' The findings of fact and law made by the trial court were as follows:
'The property in controversy-the same being eight lots in the city of Bismarck, in North Dakota, described as lots five (5) to twelve (12), both inclusive, in block eight (8), in the city of Bismarck, which was formerly known as 'Edwinton,' and the name of which was changed by act of the legislature of the territoty of a kota to 'Bismarck'-was part of an eighty (80) acre tract of land which was entered by John A. McLean, as mayor of the city of Bismarck, in behalf of its inhabitants, under the townsite act (Rev. St. § 2387), and was patented to him thereunder July 21, 1879.
'The corporate authorities of that city subsequently, and more than six years prior to the commencement of the action, conveyed these lots to Patrick R. Smith, the plaintiff.
'The eighty (80) acre tract on which these lots were situated was selected as the location of a portion of this town site, and surveyed, prior to June 20, 1872. In the year 1872 the attorney of the Lake Superior & Puget Sound Land Company (the company that first made this selection) commenced, and thereafter continued, to sell lots upon this town site according to a plat thereof which was then made, and subsequently, on February 9, 1874, recorded in the office of the register of deeds of the county in which the land was situated. By the 1st of January, 1873, thirty buildings had been erected on the town site, and from that time until the patent was issued the population of the city, and the improvements in it, continued to increase. It was upon the town site thus selected, and the plat thus made, which was afterwards adopted as the plat and site of the city of Bismarck, that the patent to McLean was based; and this patent contained no reservation of any right of way to the Northern Pacific Railroad Company.
'The congressional township embracing the premises in question was surveyed in the months of October and November, 1872, and the plat thereof filed in the general land office in March, 1873.
'On February 21, 1872, the Northern Pacific Railroad Company filed in the department of the interior the map of its general route east of the Missouri river. This route passed about three-quarters of a mile south of this eighty-acre tract. On May 26, 1873, it filed with the secretary of the interior, in the office of the commissioner of the general land office, and he accepted, its map fixing the definite location of its line. The interior department thereupon designated such line upon its record maps for its use, and copies of such record maps were forwarded to, and remain on file in, the office of the register and receiver of the land office at Bismarck, having jurisdiction of that part of the public domain embracing the premises in question. The line thus fixed passed about two miles south of this eighty-acre tract. During the year 1872, grading was done by the company on this line, extending in a continuous line from its grading east of the township in which this tract was located to a point one-quarter of a mile west of the west line of this eighty-acre tract, extended south to its intersection with the grading. During the year 1872 there was a line staked out across this tract substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the year 1873 the railroad was constructed across this tract, and has since remained, and been operated, upon it. The grading on its line of definite location, two miles south, was abandoned. The lots in question are within two hundred feet of the main track of this railroad, as actually constructed, and more than two miles from its line of definite location, as shown on its map filed to definitely fix this line, and have been occupied by the defendant, through its tenants, during the period in question; but no part of the same, except the rear twenty-five feet thereof, has ever been occupied for railroad purposes.
'In the year 1877 the defendant commenced an action in the district court of Burleigh county, territory of Dakota (now the state of North Dakota), in which county the premises next hereinafter described were and are situated, against certain parties, including the plaintiff herein, to recover the possession of part of the premises here in question, which portion is particularly described as follows: Commencing at the southeast corner of a in and Third streets in the city of Bismarck, the same being the northwest corner of block eight (8); running thence east along the south line of said Main street a distance of fifty (50) feet; thence south, parallel with the east line of said Third street, a distance of seventy-five (75) feet, to said east line of said Main street, a distance of fifty (50) feet, to said Third street; thence north, along said east line of said Third street, a distance of seventy-five (75) feet, to the place of beginning. And such proceedings were duly had in said action in said court (the same being a court of competent jurisdiction of the parties and subject-matter of said action) that the defendant in the action herein (the plaintiff in the action last above referred to) duly recovered in said action a judgment against the defendants in that action, including the plaintiff in this action, for the possession of the premises last above described and for nominal damages for the withholding thereof.
'That the value of the use and occupation of the premises in question for six years prior to December 28, 1891, the date of the commencement of the action, is the sum of twenty-six thousand dollars.
'From the foregoing facts I find, as conclusions of law, that the plaintiff is entitled to the possession of the premises above described, and to recover from the defendant the sum of twenty-six thousand dollars, with interest thereon from the 28th day of December, A. D. 1891, at the rate of seven per cent. per annum, and his costs and disbursements.'
C. W. Bunn, for plaintiff in error.
Hiram F. Stevens, for defendant in error.
Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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