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estimates of bidders who were interested in maintain an action at this time." As the making a careful calculation as to cost. plaintiffs were suing for themselves only, and

It is also said that no specifications for the for the protection of their own interests, they bridge were filed with the county clerk prior are to be governed, and their rights measured to the letting of the contract; but it appears by the ordinary rules applicable to private that the notice for bids, given by the board,

suitors. and which was on file with the county clerk,

The plaintiffs come into a court of equity gave specifications of the proposed bridge asking a permanent injunction against the with considerable fullness and detail. An- payment of the contractor for work which other objection was that the advertisement was in progress for months, upon which a for proposals to build the bridge called for large amount of money had been expended, the construction of a stone or cement bridge,

and when the contractor is not even a party while the one contracted for, as we have seen, to the action. Assuming that originally they was cement reinforced with iron and steel. had a right to interpose and enjoin, it has This was a departure, but not a wide one,

been forfeited by their silence and delay. The for ordinarily steel and iron are used to

contract was let and the work was in progress a considerable extent in cement structures.

for about six months before they made any This bridge is spoken of by witnesses as a complaint, or took any steps to assert their cement bridge. The testimony is that it has

rights. With a knowledge that the contract cement concrete piers and cement concrete

had been made, and that the bridge was beabutments reinforced by iron and steel struc- ing built, they stood silently by and suffered tures. The floor of the bridge is of cement the contractor to make a special bridge to concrete constructed on steel beams, and the fit that crossing and to incur expenses and only exposed steel portions of the bridge are

liabilities of a burdensome character. To althe side trusses above the floor. Officers are, low them to enjoin a public improvement of course, required to comply with mandatory which would so seriously affect others after provisions of the statute, but it is plausibly such inaction and delay would be grossly inargued by the defendant that there has been equitable. As was said in Commissioners of substantial compliance with the mandatory Morris County v. Hinchman, 31 Kan, 736, 3 provisions, and that mere irregularities and Pac. 509, “it is a well-established rule in informalities in the methods employed should equity that if a party is guilty of laches or not defeat the completion of a public improve unreasonable delay in the enforcement of his ment. Under the circumstances of this case, rights he thereby forfeits his claim to equithe plaintiffs were hardly in a position to in- table relief.” Brown v. Merrick County, 18 voke the equitable jurisdiction of the court Neb. 355, 25 N. W. 356, is a case where cer

tain taxpayers sought to enjoin the county completed. They appear in court in the ca- commissioners from paying for the construcpacity of private suitors for the protection of tion of a public bridge. It was contended their personal interests. They bring the ac- that the board bad failed to comply with tion under chapter 334 of the Laws of 1905. the law in several particulars; but there was Until that act was passed private parties no charge of bad faith against the board or could not interpose an action of injunction of fraud in contracting for the building of against a proposed improvement until a tax the bridge, and it was said that so long as or charge had been placed against them or the board acted within its authority no intheir property and was about to be enforced. junction would lie to restrain it, and that "a The act named expanded the remedy of in- taxpayer who seeks to enjoin the payment of junction, and gives the taxpayer a right of money for the erection of a public bridge, action against a public officer or board to en- which he claims is being constructed in viojoin them from entering into any contract lation of law, must act with reasonable or doing any unauthorized act that might re promptness. If he is guilty of gross laches, sult ultimately in the creation of a burden and knowingly permits the contractor to inor the levying of a tax against his property. cur liabilities in good faith in the construcHe does not, however, sue in behalf of the tion of the greater portion of the work, an state, or in any representative capacity. As injunction will be denied." See, also, Sleepwas said in Water, Light & Gas Co. v. Rail- er v. Bullen, 6 Kan. 300; H. & S. Railroad Co. way Co., 74 Kan. 661, 87 Pac. 883: "This v. Com'rs of Kingman County, 48 Kan. 70, 28 statute gives the right of action at the incen- Pac. 1078, 15 L. R. A. 401, 30 Am. St. Rep. tion of any attempt to create such an illegal | 273; Tash v. Adams, 10 Cush. (Mass.) 252; burden. The plaintiff is not suing in behalf Kellogg v. Ely, 15 Ohio St. 64; Lamb v. Railof the public, or in the public's interest, but road Co., 39 Iowa, 333. in its own name for the protection of its The bridge was necessary for the convenown property. A judgment in its favor may ience of the people. No fraud is charged result in relieving all the property in the against the board in the letting of the concity from paying taxes to liquidate the in- tract. The board had power to build the debtedness which the city is trying to create; kind of a bridge that was contra sted for, and but that would be only an incident in the there is no claim that it is not worth the conprotection of its own property, and not a tract price. The case is unlike those citej reason why it should not be permitted to by plaintiff's where the commissioners were

and enjoin a public

improvement so nearly ta

wholly without authority to act. Here there sent of defendants J. H. Hazen and Lena was power, but it was defectively exercised. Ilazen, and with their knowledge and without The delay of the plaintiffs in challenging the objection from them at once made lasting and proceedings was unreasonable, and the court valuable improvements thereon, and that on rightly held that they were not entitled to the said date or on a later date between that equitable relief sought.

time and March 19, 1904, the defendants J. Judgment affirmed. All the Justices con- H. Ilazen and Lena Hazen, being together, curring.

verbally jointly agreed with the plaintiff to execute to him a deed to said property, pur

suant to the arrangement with Miller and fii Kan. 815)

plaintiff's rights thereunder. That from the CRAVE v. CHENEY.

7th of March, 1904, to this date the plaintiff (Supreme Court of Kansas. July 5, 1907.) has been in open and notorious possession of 1. QU'IETING TITLE-EVIDENCE-SUFFICIENCY. the property in controversy. That on the In an action to quiet title, evidence held

20th of March, 1901, the defendants J. H. sufficient to sustain a judgment for plaintiff on

Ilazen and Lena Ilazen, by deed of general the theory that a deed to defendant was subsequent to an oral agreement of the grantors to Warranty, conveyed the quarter section of convey the property to plaintiff in pursuance of land of which the tract in controversy is a an arrangement by which he was already in

part, without reservation to the defendant possession and had made improvements thereon, of which defendant had notice.

Valentine Crane. That Crane at that date, 2. SAME-PARTIES.

and at all times after March 7, 1901, had In an action to quiet title to certain land actual knowledge of the occupancy, posseswhich defen:lant's grantors had orally agreed

sion, and improvements of the plaintiff." to convey to plaintiff prior to their execution of

Conclusions of Law. "The court concludes the deed to defendant, whether plaintiff had a partner was immaterial as the agreement was as a matter of law that the quarter section made with plaintiff alone.

of land of which the tract in controversy is 3. FRAUDS, STATUTE OF-CONTRACT TO Cox

a part was on August 9, 1901, the homestead VEY LAND-IMPROVEMENTS BY VENDEE.

of J. II. Hazen and Lena Hlazen. That the Where a purchaser has made improvements and invested money on the strength of an oral

attempted agreement of J. II. IIazen to transagreement to convey land, the statute of frauds fer a portion thereof without the consent of does not apply.

his wife was void. The court concludes as a (Ed. Note.--For cases in point, see Cent. Dig.

matter of law that the defendants J. II. vol. 23, Frauds, Statute of, 88 301-324.]

Hazen and Lena Hazen by this verbal agreeError froin District Court, Pawnee County; / ment with the plaintiff to adopt the contract Chas. E. Loodell, Judge.

with Miller and convey the land to plaintiff Action by I. W. Cheney against Val. Crane, was joint consent, verbally given, and that Judgment for plaintiff, and defendant brings plaintiff's immediate possession was in law error. Affirmed.

sufficient to take such agreement out of the G. W. Finney and W. H. Vernon, Sr., for statute of frauds and make it binding. The plaintiff in error. G. Polk Cline, for defend court concludes as a matter of law that the ant in error.

occupancy of the premises by the plaintiff

at the time defendant Crane acquired his PER CURIAM. The defendant in error

title thereto was notice of any and all intercommenced this action in the district court est that plaintiff might have therein. It is of Pawnee county to quiet his title against

therefore by the court considered, ordered. the claims of the plaintiff in error. The court

and adjudged and held that the plaintiff is found and filed findings of fact and conclu- the owner in fee simple of the land in controsions of law which read:

versy. The court finds that the land in conFindings of Fact. "That on August 9, troversy was, on the 29th of August, 1904, of 1901, J. H. Hazen and Lena Hazen were hus- the value of $150; that his title thereto be band and wife, and were jointly occupying quieted against defendant and all persons." as their home the quarter section of land of The finding of fact to the effect that the which the tract in controversy is a part.

Hazens jointly agreed to convey to Cheney That on that date defendant J. H. Ilazen en- is assailed on the ground that it has no suptered into ai parol contract to sell the tract port in the evidence, and also for the reason in controversy to S. A. Miller for the sum of that at the time this agreement is found to

$12.50. That the defendant Lena Hazen had have been made the Hazens had already sold

no knowledge of such agreement, and was in the property to Crane and received $800 as no way a party thereto at the time. The part payment therefor. court finds that Miller forthwith entered upon As to the first objection, the evidence upon the land and made lasting and valuable im- this subject is conflicting, and therefore we provements thereon. The court finds that on feel bound by the finding of the court thereon. the 4th of March, 1901, Miller made verbal The second proposition does not seem to be assignment of his interest under such agree- supported by the evidence. The court ig. ment to plaintiff. That on the 7th of March, nored this subject in its findings, which indi19904, plaintiff took possession of the land in cates that the evidence on that point was not controversy. That at the time of taking pos- | deemed sufficient to challenge consideration. session he did so with the knowledge and con- It seems quite clear that Hazen could not convey or make a binding contract concern- c. 120), giving to certain railroad companies a ing Crane's land. If the land at the time this right of way through the public lands, and no

right with respect to such tract was thereby contract was made had been sold by the

granted. Hazens, that fact was important and would

[Ed. Note.For cases in point, see Cent. Dig. undoubtedly have been shown. The date of vol. 41, Public Lands, $ 211.] the deed by the Hazens, and when the money (Syllabus by the Court.) was paid by Crane, were facts apparently

Error from District Court, Saline County; material and easily shown, but Crane rested upon his unaided memory of these facts and

R. R. Rees, Judge. placed the date in March. When pressed for

Action by Morris Harris and others against a more specific answer, he fixed the time

the Union Pacific Railroad Company. Judg"along about the first part or within the first ment for plaintiffs, and defendant brings erhalf of March." This was indefinite and un

ror. Affirmed. satisfactory. The agreement with the Hazens N. H. Loomis, R. W. Blair, and H. A. took place March 14th, while Cheney's im- Scandrett, for plaintiff in error. 2. C. Milprovements were in course of erection. The likin, for defendant in error. evidence, therefore, indicated that the trade with Crane might have been after the con- MASON, J. April 22, 1861, Bernhard Blou tract with Cheney. There is not a word of settled upon a quarter section of "unoffered" evidence that any negotiation had been made government land, and May 13th in the same with Mrs. Hazen by Crane, or that she had year he filed a declaratory statement claimany knowledge thereof before she executed ing a right thereto under the pre-emption law. the deed, March 29th, and whatever negotia- He remained continuously in possession, but tions may have been had with Hazen alone September 5, 1865, he entered the land as a were void. In any event there is nothing in homestead. He proved it up as such Decemthe evidence to indicate that Hazen had a ber 3, 1870, receiving a patent March 15, contract concerning the land which he was 1872. July 1, 1862, Congress passed an act in a position to enforce before he received (12 Stat. 489, c. 120) incorporating the Union the deed. The court was therefore justified Pacific Railroad Company, and giving to it in eliminating this whole question from its and to the Leavenworth, Pawnee & Western consideration.

Railroad Company, a Kansas corporation, a Considerable has been said about the party right of way 400 feet wide over "the public nership existing between Cheney and Man- lands" for the construction of a railroad derschied, and it is claimed that because of within certain limits, and upon certain consuch partnership Cheney could not maintain ditions. In conformity with this act and this action alone. We do not think this the amendments thereto a road was built question important. The plaintiff's right to by the Kansas company across the land recover here rests entirely upon the agree- above described prior to May 4, 1867.

Janment of the Hazens to convey to him in rati- uary 20, 1873, Blou made the company a fication and confirmation of his contract with deel for a right of way lying 50 feet on Miller. The promise was made personally each side of its track. Thereafter Blou's to Cheney. The partnership was not con- title to the land south of the track passed sidered. Cheney alone, therefore, was the to Morris Harris and others, and the Union proper party to enforce the contract.

Pacific Railroad Company succeeded to all rights of the partnership must be adjusted the rights of the Kansas corporation. In between the parties interested.

August, 1902, the company placed a fence on As found by the court, Crane bought of the land 200 feet south of the track and Ilazens with full knowledge of the rights of parallel to it, and began the construction of Cheney and subject thereto. The erection om side tracks and yards on the strip so enimprovements and investment of money by closed. Harris and his associates brought Cheney upon the strength of the promise of ejectment for all of the strip, except the •50 Ilazens eliminates the statute of frauds. The feet next to the track, and recovered judg. findings of fact made by the court are sus- ment, from which the defendant prosecutes tained by the evidence, and they justify its error. conclusions of law and decree.

The railroad company has no title, unless The judgment is affirmed,

it obtained one by the following grant made to the Union Pacific Company by section 2

of the act referred to and extended to the (76 Kan. 255)

Leavenworth Company by section 9: "That UNION PAC. R. CO. V. HARRIS et al.

the right of way through the public lands be, (Supreme Court of Kansas. July 5, 1907.)

and the same is hereby, granted to said com

pany for the construction of said railroad UBLIC LANDS - RAILROAD GRANTS - RIGHT OF WAY.

and telegraph line; and the right, power, and A tract of land owned by the United States, authority is hereby given to said company but lawfully occupied by a settler who had filed i to take from the public lands adjacent to a declaratory statement claiming a right to it

the line of said road, earth, stone, timber, under the pre-emption law, was not “public

within the meaning of section 2 of the and other materials for the construction act of Congress of July 1, 1862 (12 Stat. 489, thereof. Said right of way is granted to said


railroad to the extent of two hundred feet in width or each side of said railroad where It may pass over the public lands, including all necessary grounds for stations, buildings, workshops, and depots,

depots, machine shops, switches, side tracks, turntables, and water stations. The United States shall extinguish as rapidly ils may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants hereinafter made."

A claimant under the pre-emption law acquired no vested right in the land he occupied until he had fully complied with the law, paid the purchase money, and become entitled to a patent. 26 A. & E. Encycl. of L. 232. Therefore Congress had the unquestioned power in 1862 to grant a right of way across the quarter section upon which Blou had settled, notwithstanding that his occupancy was lawful and in connection with his filing insured him a preference when the land should be offered for sale. The question is whether the statute quoted is to be interpreted as evidencing an intention to do so. And this depends upon whether the phrase "public lands" was therein employed in such a sense as to make it inclusive of tracts in the situation of that occupied by Blou. In construing railroad land grants the words "public lands" are treated, not as designating all lands which are public in the sense that the government owns them and, technically speaking, may dispose of them as it sees fit, but as excluding at least every tract to which an individual has acquired under the settlement laws a valid claim that may ultimately ripen into a title, although no vested right has accrued to him at the time. This rule of construction has been definitely adopted by the federal Supreme Court. Thus, in Bardon v. N. P. Ry. Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806, it is said: "It is thus seen that, when the grant to the Northern Pacific Railroad Company was made on the 2d of July, 1864, the premises in controversy had been taken up on the pre-emption claim of Robinson, and that the pre-emption entry made was uncanceled; that by such pre-emption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land to which any claims or rights of others have attached does not fall within the designation of public land." And in N. P. Ry. Co. v. De Lacey, 174 U. S. 622, 19 Sup. 791, 43 L. Ed. 1111: "If there had been a pre-emption claim at the time of the passage of the act of 1861, the land would not have passed under that grant.” Of this expression it is said in United States v. Oregon & C. R. Co., 143 Fed. 765, 75 C. C. A. 66: “We think the clause last quoted is in prerise accord with the numerous decisions

of the same court to the effect that no land is 'public land,' within the meaning of such grants, to which there is at the time of the making thereof a live claim on the part of an individual under the homestead or preemption law, which has been recognized by the officers of the government, and has not ceased to be an existing claim." See, also, 6 Words & Phrases Judicially Defined, 5793, Railway Co. v. Johnson, 38 Kan. 142, 150, 16 Pac. 125, Hastings v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. Ed. 363, United States v. U. P. Ry. Co. (C. C.) 61 Fed. 149, United States v. Turner (C. C.) 54 Fed. 228, Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796, 39 L. Ed. 906, and Northern Lumber Co. v. O'Brien, 204 U. S. 190, 27 Sup. Ct. 249, 51 L. Ed. 438, affirming the same case in 139 Fed. 614, 71 C. C. A. 598, where it is said: "The words 'public land' have long had a settled meaning in the legislation of Congress, and, when a different intention is not clearly expressed, are used to designate such land as is subject to sale or other disposal under general laws, but not such as is reserved by competent authority for any purpose or in any manner, although no exception of it is made."

But it is insisted that a different rule should obtain here, because the statute quoted grants a mere right of way. Such a grant, however, differs only in degree-not in kind-from a grant of land. Even although it may not in strictness carry the fee to the strip designated, its practical operation is the same as though it did. The right it confers is much greater than an ordinary easement. 26 A. & E. Encycl. of L. 336, par. 9. It is true that land is ordinarily made more valuable by proximity to a railroad, and in a particular case the owner or prospective owner of a tract may be benefited rather than injured by the building of a road directly across it. But it cannot be said that a right of occupancy is not to some extent invaded by such an act, if done without compensation, or that the practical injurious effect of such invasion is necessarily slight and unsubstantial. It is noticeable that Congress has often explicitly recognized the moral right of the settler to be protected in this respect and so far as our observation goes has never explicitly ignored it. Nevertheless there is so great a difference between the entire loss of all claim to a tract, and the yielding up to a railroad of a right of way across it, that it might not be unreasonable to suppose that Congress, having the power to impose either hardship upon the settler, was willing to compel him to bear the less and not the greater. If the Bardon Case had been decided merely upon a presumption that Congress did not intend that settlers should lose their lands, the argument might well be made that the rule it announced does not applr where only a right of way is involved. But that case was not controlled solely by that consideration. If it had been, the grant

would have been held to relate to and to be claim may not have attached, at the time the inclusive of the lands already settled upon, line of said road is definitely fixed : Probut to be made in subjection to the prior vided that all mineral lands shall be exceptrights of the settlers. And in any given in- ed from the operation of this act; but stance, where a filing had been in force at where the same shall contain timber, the timthe time the act was passed, but had been ber thereon is hereby granted to said comcanceled before the road was definitely locat- pany. And all such lands, so granted by this ed, the right of the settler being thus dispos- Section, which shall not be sold or disposed ed of, a complete title would have been held of by said company within three years after to have vested in the company when the con- the entire road shall have been completed, ditions of the grant were met. But in the


shall be subject to settlement and pre-emption, Bardon Case it was decided that the grant like other lands, at a price not exceeding one did not pass title to a tract which was bur- | dollar and twenty-five cents per acre, to be dened with a pre-emption filing at the late paid to said company." This language is not of the enactment, notwithstanding its subse- essentially different, so far as concerns the quent cancellation. This result was reached question under consideration, from that inby so defining "public landl" as to exclude terpreted in the Bardon Case, which is as all lands to which individual interests had follows: "That there be, and hereby is, attached. In the opinion it was further said: granted to the Northern Pacific Railroad "As the land pre-empted then stood on the Company, its successors and assigns, for the records of the land department, it was sever- purpose of aiding in the construction of said ed from the mass of the public lands, and railroad and telegraph line to the Pacific the subsequent cancellation of the pre-ein- coast, and to secure the safe and speedy tion entry did not restore it to the public transportation of the mails, troops, munitions domain so as to bring it under the operation of war, and public stores over the route of of previous legislation, which applied at the said line of railway, every alternate section time to land then public. The cancellation of public land, not mineral, designated by odd only brought it within the category of public numbers, to the amount of 20 alternate secland in reference to future legislation. This, tions per mile, on each side of said railroad as we think, has long been the settled doc- line as said company may adopt through the trine of this court. * * * Three justices, territories of the United States, and 10 alof whom the writer of this opinion was one, ternate sections of land per mile on each side dissented from the majority of the court in of said railroad whenever it passes through the Leavenworth Case; but the decision has any state, and whenever on the line thereof been uniformly adhered to since its an- the United States have full title, not reserved, nouncement, and this writer, after a much sold, granted, or otherwise appropriated, and larger experience in the consideration of free from pre-emption, or other claims or public land grants since that time, now read- rights, at the time the line of said road is ily concedes that the rule of construction definitely fixed and a plat thereof filed in adopted that, in the absence of any express the office of the Commissioner of the General provision indicating otherwise, a grant of Land Office." public lands only applies to lands which are Manifestly, therefore, in the act of 1862 at the time free from existing claims, is bet- the section following that by which the right ter and safer, both to the government and of way is granted uses the term "public land" to private parties, than the rule which would as excluding tracts occupied by settlers. It pass the property subject to the liens and refers to lands to which pre-emption or honeclaims of others."

stead claims have attached, not as forming a While the phrase "public land" is capable separate class of public lands, but as lands of a variety of meanings, and may be various- which have been withdrawn from that cately employed in different statutes, the presump- gory-have ceased to be public lands-by the tion is reasonable that, where used in a sim- fact of such claims having attached. Two ilar connection in contiguous sections of the conditions were necessary in order that same act, it is intended to have the same land should pass by the grant there containforce. Section 3 of the act of 1862 reads: ed: It must have been free from pre-emption "And be it further enacted, that there be, and or other filing when the act was passed, or is hereby granted to the said company, for the act would not have applied to it, because the purpose of aiding in the construction of it would not have been public land at that said railroad and telegraph line, and to se- time; and it must have remained in that concure the safe and speedy transportation of dition until the line of the railroad was defthe mails, troops, munitions of war, and pub- initely fixed, because a filing prior to that lic stores thereon, every alternate section of time would have taken it out of the operation public land, designated by odd numbers, to of the act by bringing it within the exception the amount of five alternate sections per mile there stated. This is necessarily the interon each side of said railroad, on the line pretation that results from the decisions cited. thereof, and within the limits of ten miles on By attributing the same meaning to the exeach side of said road, not sold, reserved, or pression "public lands” as used in section 2, otherwise disposed of by the United States, a harmonious and consistent construction is and to which a pre-emption or homestead reached. The right of way was granted upon

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