The independent., 1903-03-12
THE M'LUCAs CASE
Supreme Court Decision Has Aroused
Public Sentiment I'm Opposition


case which is of vast importance to
a great number of property owners OF
this state, and particularly those
whose property adjoins the rlgnt OIL
way of the various railroads or the
state. The case | refer to is entitled
.acLucas VS.. ST. Joseph and Grand ISL
and Railroad Co. The syllabus OF the
opinion, as appeared in the neWspa-
pers, is as follows:
81. Under the provisions OF Sec
ton 4, article IL, of the constitution
of Nebraska, railroad constructed
and operated in this state is public
highway.
%. 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 a part of railroads
right of way, while such road is De-
ing operated as common carrier,
cannot be divested by adverse posses
sion"
The facts in this case, briefly stated,
are about as follows: In 1877 the rail-
road company obtained deed from one
Ryburn, who homesteaded the land IN
controversy, to a strip 100 feet wide
for the right of way, and in 1914 nled
this deed, and had it recorded here.
an 1883 part of this homestead was
laid out into lots blocks, streets and
alleys, and plated as subdivision to
the city of Fairbury, extending on
botn sides Of this right Of way, and IN
conformity with the 100 feet right OF
eyay, which plat was duly recorded
afterwards lots and blocks were sold
to various purchasers, and deeds made
and recorded giving the metes and
bounds as shown by this plat. In
1886, McLucas Bros. purchased a num-
Der of these lots and placed their deed
of record, and Immediately erected
stock yards, scales and made other
lasting and valuable improvements
thereon, conforming the same to
distance of fifty feet from the center
of the right of way, and have con-
tinued to SO occupy the same ever
since, openly, exclusively, notoriously,
and adversely, claiming the premises
as their own, and had no notice until
the commencement of this suit in 1898,
that the railroad company claimed any
part of the land in dispute. The rail-
road company now claims a right OF
way 200 feet wide, under grant from
the United States government, dated
July %, 1866. This means about 70
acres to the mile along the st. Joseph
& Grand Island railroad, and about 50
acres to the mile along the Union
Pacific railroad where it claims
right of way 400 feet wide, under
similar grant. To McLucas Bros. this
case does not mean very much, but to
the railroads in this state it means
gain of $50 100000 at least, and to the
people whose lands are taken it means
a loss of $50,000000 at least.
The above case was taken from the
district court of this, Jefferson, coun-
ty and while the amount involved IN
this particular case is small, yet the
statements contained in the second
section of the syllabus are SO sweep
ing as to call for more than mere
passing notice. Not only is the rule
laid down above, novel, but startling
as we'll. I am not lawyer, and make
no pretension to that branch OF learn
ing; l am just a plain, common, ordi-
nary farmed and nurseryman. But
when l read that the public has the
same interest in the preservation and
maintenance of the railroads as the
state has in the maintenance of its
highways, | began to wonder when
the state has acquired title to the rail-
roads and when the section foreman
would be coming along calling US out
TO work out our poll tax on the sec
tion, and if the public had such a deep
interest in railroads, why it was that
the. good people of Omaha and other
cities were struggling SO hard for the
passage of the late lamented H. r.
$780, If the above rule be sound, then
why seek to tax the terminals of the
railroads without including the school
houses, court houses, the capitol, the
university, and other public buildings
and grounds? | suppose if the income
of the railroads were not sufficient to
pay the regular quarterly dividends
on the stock, watered and otherwise,
and at the same time furnish sufficient
revenue to maintain the road in a.
good condition, that the railroads will
apply to our legislature for an appro-
priation to meet such deficiency, be-
cause of this GREAT PUBLIC inter-
est which the state has in their