The independent., 1903-03-19
Nebraska in tho Lead-Ffrst State To Own
Railroads-When Shall Prosecutions
be Taken?

IiOH =, dILiClc Ii, III lue cOUSLlluIlOu VI
Nebraska, q railroad constructed and
operated in this state Is public high
way.
"2. The general public has the
same interest in the preservation and
maintenance of railroads as it has
in the maintenance of other highways
and the title to part of a railroad &
right of way, while such road is be-
ing operated as a common carrier
cannot be diyested by adverse posses
sion"
What was then written in reply to
Mr.. Galbraith's letter follows:
The opinion itself is rather too long
for publication here at this time, and
is indeed not necessary except to show
the reasoning by which the court ar
rived at the conclusions stated in the
syllabus.
The supreme courts of the various
states are hopelessly divided upon the
question raised in this case: Wheth-
er title to railroad right of way can
be divested by adverse possession.
This decision has placed Nebraska
along with Ohio, Iowa, Kansas, Ten
nessee and California. But Michigan,
Minnesota, Indiana, Illinois, Massa-
chusetts and New York hold to the
contrary view
While The Independent believes
with Mr.. Galbraith that the decision
is erroneous, being based upon a
faulty definition of the term "public"
as used in the constitutional section
quoted, yet it cannot agree with him
in his suspicious that the court has
succumbed to railroad influence. The
private ownership of what should
never have been anything but pub
lie highway, in the truest sense of
that word, has done more to increase
the complexities of modern jurisprud-
ence than probably any other one
thing, and it is small wonder that
courts have been perplexed. The
whole matter started off on the wrong
foot and every effort to catch step"
has simply added to the difficulties.
There should be no such thing as pri-
vate ownership of a highway of any
sort.
Section of article XI. of the con-
stitution provides that Railways
are hereby declared public highways,
and shall be FREE to all persons for
the transportation of their persons
and property thereon" Yet no person
ever dreamed that ALL persons could
use these public highways without
payment for the service, even if some
members of The legislature and some
judges and court commissioners do
ride ''free" in every sense of that
word. The term public in this sec
ton must be defined in harmony with
the word "free" in the same section.
Railways are public" highways just
as the Lindell hotel is a public"
hostelry; both are private property.
but neither can lawfully deny any
person transportation or lodging and
board, as the case may be, provil4d
he complies with the reasonable rl-ls
and regulations laid down or per
mitted by law.
There is not the slightest doubt that
railroad right of way is PRIVATE
just as truly as the LindelI
hotel is the private property of Hoov-
er q Son. The general public has the
same interest in the preservation and
of hotels as it has of
railroads, the only difference being
one OF degree In neither case ;'as the
public any ownership ia the thing it
is interested" in. AND the question
Of adverse possession goes 20 property
rights, to the right of ownership
In an editorial note in the Harvard
Law Review for June, 1901, Us H. L.
e., 146), commenting on property ex-
empt from the operation of the statute
,f limitations, the editor said:
"A novel extension OF this rule
that the statute does not run against
he sovoreign) has recently been made
~ the California court. -. The court
leld that as the land belonging to the
abroad had been set apart for pub
jc purposes, it was exempt from the
Of the statute. If the fee
: vested in the government. the Ie-
jstn Is clearly right If on the |
tner hand, the land has BEEN granted
way, the decision may we'll be doubt
d. On principle, there seems to |
e no reason for exempting the rail-
Dad. Although it has many public
uties to perform, yet it is strictly a
RIVATE corporation, formed by
agreement, and operated /