Butterfield v. Central Pac. R.R. Co. of California

By the Court, Currey, C. J.: The plaintiff brought his action against the defendant for damages for an alleged trespass upon the northeast quarter of section eleven north, of range six east, of Mount Diablo meridian, of which he alleges he was the owner in the possession thereof. The alleged trespass consisted of the defendant’s entry upon the land mentioned and the location of the Central Pacific Railroad thereon. The plaintiff alleges in his complaint that the defendant by laying the railroad across said land has deprived him of the use of five acres of it, besides destroying the fences so as to expose the balance of it to the trespasses of cattle, sheep and swine, and that defendant threatens to continue from day to day the like acts of trespass ; and therefore, in addition to a claim for damages, the plaintiff asks that the defendant and its agents, servants and employes may be perpetually restrained from a continuance of the wrongs and injuries threatened.

The material allegations of the complaint are controverted by the answer; and for further answer the defendant avers, that said land was and is a part of the public lands of the: United States, and that by Act of the Congress of the United States a grant had before- the time of the commission of the alleged trespass been made to the defendant of the right to [266]construct the Central Pacific fiailroad upon and over the particular piece of land in question, and that the entry, of the defendant thereon and the appropriation of the land taken for such road was under and by authority of the Act of Congress.

To maintain the issue on his part the plaintiff offered in evidence at the trial a certificate which reads as follows:

“ Military Bounty Land Act of March 3d, 1855.

“Register’s Office, Marysville, )

“ September 20th, 1858. )

“ Military Land Warrant No. 79,801, in the name of Allen J. Tackett, has this day been located by Allen J. Tackett upon the northeast quarter of Section No. 25, in township eleven north, of range, six east, Mount Diablo meridian.

“ (Contents of tract located, 160 acres.)

“ E. O. F. Hastings, Register.”

In connection with this certificate the plaintiff proved the signature thereto to be that of E. O. F. Hastings and that he was the officer indicated thereby; and then further offered in evidence deeds of conveyance showing that whatever title accrued to said Tackett, had been conveyed to the plaintiff before the commission of the trespasses complained 'of. To the certificate the defendant’s counsel objected on the ground that it was irrelevant and incompetent evidence, that the same was not authorized by law, nor did it show that plaintiff had such a title and interest in the premises as to entitle him to maintain his action against the defendant, that the same did not show the land to have ceased to be public land at the time the alleged trespass was committed. At this stage of the trial the parties admitted in open Court that defendant was the corporation mentioned in the Act of Congress entitled, “An Act to aid in the'construction of a.railroad and telegraph line from the Missouri Biver to the Pacific Ocean, and to secure to the Government the use of the same for postal, military and other purposes,” approved July 1st, 1862,