The independent., 1903-03-19
THE M'LUcAs CASE
Charles Wooster Adds to Comments of Mr..
GsIbraith-ThInks Rehearing should

GaIbrafth-Thlnks KehcnrinR Shoulo
Editor Independent: | have read
with much interest the letter of Mr..
Galbraith in The Independent OF
March II in regard to the late deci-
sion of the supreme court in the case
of McLucas vs. st. Joseph & Grand
Island Railway company. Mr.. Cal
braith's suggestion that he would ike
to hear from others in the columns OF
The Independent reminds me that !
had already intended to write you on
that subject. AS he states, the deci-
sion which is to the effect that title
to any part Of railroad right OF way
cannot be acquired by adverse posses
sion, is one OF great importance to
those whose property joins railroad
right of way, and not only that, but
to land owners generally, for no one
knows how soon it may be that
railroad may cross his own farm. In
much larger sense, 1t is a question
of great Importance to every citizen
of the state whether freeholder or
not. For in it is involved the ques-
ton as to whether the corporations, a
creature of the law, is to be preferred
to the citizen who makes the law.
That that has been done in this case
think would be evident to any un-
prejudiced person on reading the opin-
ion in the case, written by Commls-
sioner Kirkpatrick, and the briefs OF
the attorneys, pro and con, as it has
r;xyt1n tn l nor
the opinion and those briefs now be-
fore me and therefore can speak OF
them only from memory.
In reading the briefs Of the attOr-
neys on either side was impressed
with the fact that they appeared to
be much more solicitous as to author
tiles, as to what other courts had said
in similar cases, than to the real mer-
it's of the case in hand. What should
it matter to the supreme court Of the
state Of Nebraska what some judge
in Kansas, Tennessee, Vermont or
Michigan may have said? They are
all human. Who knows to what in
fuences they may have been subject,
or what favors they may have received
from the railway companies in whose
favor they decided as against the peo-
Pile? Perhaps, like Commissioner
Kirkpatrick, they had been railroad
attorneys SO that to work for rail-
roads had become second nature to
them. Who knows of the fat fees
they may have received from those
self-same railroads, now they may
have feared the powers Of those rail-
roads as to the qualification OF their
political ambitions, or how, at the
time they handed down those opinions,
their pockets may have bulged with
railroad passes? The arguments and
conclusions of learned judges, with
out doubt, may be protitably studied,
but ought not to be servilely followed,
and both courts and attorneys would
do we'll to give more attention to the
equities of the case in hand and less
to musty precedents. We elect our
judges 1--WE didn't elect the supreme
court commissioners to administer
justice under the constitution and the
law, and we would like to have them
do it, remembering always that in
the law they should lean to
the side of the weak and defenseless
rather than to the side of the great
and powerful.
In his opinion Commissioner Kirk
patrick (perhaps it might have been
one of the attorneys, held that one
occupying part of a railroad right of
way, no matter though he may have
been in actual possession for 80 years,
was not in adverse possession until
such time as an attempt might be
made to dispossess him, and that un-
til that time the statutes of limita-
tions would not begin to run, most
absurd proposition and. if held to be
of general application, would COM
pletely nullify the statute of limita-
tions. But it is a good enough con-
tention for corporation lawyers and
judges who wish to make the worse
appear the better side.
In determining the question at is
sue Commissioner Kirkpatrick said
the decisive consideration with him
was the fact that title to any part of
a public highway, meaning a common
wagon road, could not be acquired by
adverse possession, and that, since
the constitution declared railroads to
be public highways, that settled 1t.
But the cases are by no means paral-
lei and the law which annlies to tha