Western Pacific Railroad v. Tevis

By the Court, Rhodes, C. J.: The respondent, Kerr, settled on the land in controversy in 1854, with the intention of preempting it, and has ever since lived upon and improved it. In 1856 he filed his declaratory statement, but that was of -no avail to him, as the township in which the land is situated was then unsurveyed. The township was afterward surveyed, and the township plat was filed in the Land Office at Sacramento, on the 20th of February, 1868. Kerr filed a declaratory statement in that Land Office on the 13th of May, 1868', and in due time proved up Ms preemption claim, paid the purchase money, and received his certificate of purchase. The plat and location of the railroad was filed in the Land Office on the 30th of January, 1865. The question is whether the respondent, Kerr, or the petitioner, the railroad company, is entitled to the money which, in the proceedings to acquire the right of way for'the railroad, was paid into Court on account of the right of way over this land.

The right of way over the public lands of the United States, became perfect upon the filing of the plat of the loca[493]tion of the railroad in the proper Land Office. This right did not extend to a parcel of land in or to which a private person had acquired a title or interest, which he could maintain as against the United States. At the time the plat of the location of the road was filed, Kerr had not filed„his declaratory statement. It was held by this Court, in Hutton v. Frisbie, 37 Cal. 475, that Congress has the power, at any time after a settler has settled upon and taken steps to acquire a preemption right to a tract of public land, but has not perfected his right by the payment of the price of the lands, to withdraw the lands from the operation of the preemption laws, and confer a right of entry upon another. The same doctrine was laid down by the Supreme Court of the United States in Whitney v. Frisbie, 9 Wall. 187. It follows that Congress has the power, under similar circumstances, to grant to another the right of way over the lands, or any other right which is of less magnitude than the entire title, or the l’ight to acquire the title by purchase.

But it is contended by Kerr, that under the provisions of the third and fourth sections of the Act of Congress of July 2d, 1864 (13 U. S. Stats. 356), he is entitled to damages for the right of way for the railroad. The fourth section throws no light on the question. The lands therein mentioned are the alternate sections, which, with certain exceptions and reservations, were granted to the respective railroad companies. The third section provides that “ in case the owner or claimant of such lands or premises and such company cannot agree as to the damages [for the right of way over such lands], the amount shall be determined by the appraisal of three disinterested Commissioners,” etc. This section applies, in terms, to lands within the Territories; but conceding that the provision is applicable to lands within the States, so far as the matter of compensation is concerned, the question arises whether the respondent comes within the provision. He was not the owner of the land at the time when the