Forrester v. Scott

Vanclief, C. It is alleged in the complaint in this action that in May, 1886, the defendant wrongfully excavated a water-ditch upon and across the east half of the east half of section 19, township 1 north, range 5 west, San Bernardino base and meridian, then and now the property of the plaintiffs. The prayer of the complaint is, that defendant be enjoined perpetually from maintaining or using the ditch upon the land described, and that the ditch be abated, etc. Judgment passed for the defendant, and plaintiffs appeal from the judgment, and from an order denying their motion for a new trial.

■ The court found that the plaintiffs were never the owners of nor entitled to the possession of the land described, or any part thereof. Whether or not this finding is justified by the evidence is the only question presented or necessary to be considered on this appeal.

The plaintiffs claim title to the land under a grant of the United States to the Southern Pacific Railroad Company on March 3, 1871, evidenced by the twenty-third section of an act of Congress of that date, entitled “ An act to incorporate the Texas Pacific Railroad Company, and for other purposes.” (16 Stats, at Large, 573.) This grant was made in aid of the construction of a branch line of road from “Tehachapi Pass, by way of Los Angeles, to the Texas Pacific railroad, at or near the Colorado River.” The rights, privileges, conditions, limitations, and restrictions of this grant were the same as those of the grant to the Southern Pacific Railroad Company by the act of July 27, 1866, entitled “An act. granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast ” (14 Stats, at Large, 292), except that it contained an express proviso “ that this section 23 of the act of March 3,1871, shall in no way [400]affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company, or any other railroad company.”

It was admitted on the trial that the land in suit is within the primary (twenty miles) limits of said grant of March 3,1871, to the Southern Pacific Company, and also within the indemnity (thirty miles) limits of the grant to the Atlantic and Pacific Railroad Company, but not within the primary (twenty miles) limits of the latter company; also, that each of these railroad companies accepted the grant made to it according to the terms and provisions of said acts of Congress of July 27, 1866, and of March 3,1871; also, that more than one thousand acres wdthin the primary limits of the Atlantic and Pacific company’s grant had been sold and disposed of by the United States prior to the date of said grant, for which no indemnity has been selected; that the Atlantic and Pacific company never constructed any railroad in the state of California, and that the Southern Pacific Company did construct that section of its road adjoining the land in controversy within the time designated in said acts of Congress, which section of the road was accepted by the commissioners of the United States, and that their acceptance was approved by the President of the United States, as provided for in said acts.