By the second section of the act of July 2, 1864, creating the Northern Pacific Railroad Company, there was granted to that company, its successors and assigns, the right of way through the public lands, to the extent of 200 feet in width on each side of said railroad where it may pass through the public domain.
During the year 1872 there was a line staked out across the tract, a portion of which is in dispute in this case, substantially where the railroad is now constructed, but no grading was done on this line until the spring of 1873. In the latter year the railroad was constructed across this tract, and has since remained and been operated upon it. The lots in question are within 200 feet of the main track of this railroad, as actually constructed, and have been occupied by the defendant during the entire period since the construction of the road, excepting lots 11 and 12, which during about three years were in the adverse possession of the firm of Browning & Wringrose and of Patrick R. Smith, the defendant in error, as the tenant of said firm.
In 1877 an action of ejectment, to recover possession of said lots 11 and 12, was brought by the Northern Pacific Railroad Company, in the district court of the territory of Dakota, against Browning & Wringrose and said Patrick R. Smith, which action resulted on January 31, 1878, in a final judgment (still subsisting) against said Smith and the other defendants.
On the trial of the present action, which was brought in the circuit court of the United States for the district of North Dakota in 1893, and which brought into question the title and possession of lots 5, 6, 7, 8, 9, and 10, as well as of lots 11 and 12, the plaintiff, Patrick R. Smith, set up, as the basis of his title and right of possession, a deed of conveyance by the corporate authorities of the city of Bismarck of the said lots as part of a town-site plat patented to John A. McLean, as mayor of said city, on July 21, 1879. The record does not disclose a copy of such deed to Smith, nor its date. In his complaint, Smith alleged that 'on the 14th day of September, A. D. 1876, he became, and ever since has been, and still is, duly seised, in fee simple, and entitled to the possession,' of the property in dispute. In th findings it is stated that the city authorities conveyed these lots to Patrick R. Smith, the plaintiff, subsequently to the granting of the patent to the mayor on July 21, 1879.
The defendant the Northern Pacific Railroad Company at the trial relied on its grant of a right of way from the United States on June 2, 1864, and on its possession of lots 6, 7, 8, 9, and 10 since the construction of the railroad, in 1873, and of lots 11 and 12 shince their recovery under the action and judgment, in 1878; and the company likewise put in evidence the record of said suit and recovery, as constituting res judicata.
The learned judge of the circuit court, after stating the foregoing facts, and some others, not necessary to be here mentioned, entered judgment that the plaintiff was entitled to recover the possession of all of said lots, and the sum of $26,000, as the value of the use and occupation of the premises in question for six years prior to December 28, 1891, the date of the commencement of the action; and that judgment was affirmed by the circuit court of appeals. 32 U.S. App. 573, 16 C. C. A. 336, and 69 Fed. 579.
When it was made to appear that by the second section of the act of June 2, 1864, there was granted to the Northern Pacific Railroad Company a right of way through the public lands, to the extent of 200 feet in width on each side of said railroad; that in pursuance of said grant the railroad company had constructed its road in 1873, including in its right of way the land in dispute; that on November 24, 1873, commissioners appointed under the fourth section of said act reported that they had examined the Dakota division of said railroad (including that portion of the same which covered the land in controversy), and that they had found its construction and equipment throughout to be in accordance with the instructions furnished for their guidance by the interior department, and accordingly recommended the acceptance of the road by the government; that said report had been on December 1, 1873, approved by the president; and that the company had maintained and operated said railroad since its said construction to the time of trial,-undoubtedly there was thus disclosed a prima facie title and right of possession of the disputed tract.