Southern Pacific Co. v. Burr

Works, J. — The following opinion was prepared by Belcher, C. C., when this case was pending in Department One: —

“ This is an action to recover possession of about five acres of land situate in Placer County. The case was tried before the court, without a jury, and judgment was given for defendant. The plaintiff moved for a new trial, and, the motion being denied, appealed from the judgment and order. The land in controversy is situated within and forms a part of the right of way granted to the Central Pacific Railroad Company of California by act of Congress passed July 1, 1862, entitled ‘ An act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean, and to secure to the government the use of the same for postal, military, and other purposes.’ Section 2 of the act provides ' that the right of way through the public lands be and the same is hereby granted to said company for the construction of said railroad and telegraph line; . . . . said right of way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad, where it may pass over the public lands.’ The plaintiff is the successor in interest of the original [282]grantee, and, as such, claims a right to the possession of the disputed premises. The defendant is the successor in interest of one Skillinger, to whom a patent for a quarter-section of land, embracing the disputed premises, was issued by the United States in December, 1880, and, as such, he claims title in fee. The defendant had the land inclosed, and the plaintiff offered to allow him to maintain his inclosure, and use the land, on condition that he would accept a lease thereof and pay a nominal rent therefor. He accepted a lease for a year, but at the expiration of the term refused to renew it, saying that he owned the land, and ‘ he wouldn’t pay a cent.’

“At the trial, the defendant was permitted, against the objections of the plaintiff, to prove that the quarter-section patented to Skillinger was agricultural land, and that it was occupied as early as 1853, and continuously thereafter; that one Mitchell lived on it from 1860 till after the railroad was constructed across it, and was a qualified pre-emptor; that Mitchell was succeeded by one Summers, who was a citizen of the United States, and, with his family, resided on the land for a time, and then sold it to one Fuller; that Fuller sold it to a Mrs. Warren, who filed on it and then sold it to Skillinger, who afterwards filed on it himself. We are unable to see that this testimony was relevant or material for any purpose. When the act of 1862 was passed, and until after the railroad was constructed, the quarter-section was public land of the United States, and Congress had full power to withdraw it from sale, or to sell or grant it, as it pleased. ( Western Pacific Railroad Co. v. Tevis, 41 Cal. 489; Farley v. Irrigating Co., 58 Cal. 142.)