Central Pacific R.R. Co. v. McCann

COOPER, C.

—Defendant’s demurrer to the third amended complaint having been sustained, judgment was entered in his favor. This appeal is by plaintiff from the judgment and for the purpose of reviewing the order sustaining the demurrer. The complaint, which is in ejectment, shows that the lands described therein vested in plaintiff under an act of Congress of July 1, 1868, unless a pre-emption claim of one David Shay had attached thereto at the time the line of plaintiff’s road was definitely fixed, which was prior to November 15, 1867, hut the

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date is riot given. Section 3 of the act is as follows: “That there be, and is hereby, granted to the said company) .... every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached at the time the line of said road is definitely fixed.”

The sixth allegation of plaintiff’s amended complaint is as follows:

“6. The plaintiff is informed and believes that one Daniel Shay, a qualified pre-emptor, settled upon the said land during the year 3859, and continued to reside upon it, performing all the acts required of a pre-emptor, until after the said railroad was definitely fixed) and prior to the time the said road was definitely fixed he applied at the proper landoffiee to make a pre-emptionffiling therefor, and was refused permission so to do by the register thereof, but did not appeal from such refusal— and during the year 1867, after the said road had been definitely fixed, he moved off the said land, without having filed any claim for it.”

The defendant does not claim under Shay, and there is no privity shown in any manner between defendant and said Shay. The sole and only question discussed in the briefs is as to whether or not the paragraph of the complaint here quoted shows that the pre-emption claim of Shay had attached to the lands at the time the line of plaintiff’s road was definitely fixed. If it had attached then the lands were not vested in plaintiff under the said act. The court below held that the said paragraph of the complaint showed that the pre-emption claim had attached, and that plaintiff did not become the owner of the lands under said act. In this we think the learned judge of the , court below was in errof.