Oregon Short Line R. Co. v. Quigley of the defendants, except as far as the same have been conveyed to the plaintiff, are superior to the rights of the plaintiff in and to the lands in question. Fourth. That the defendants should recover their costs in this action. And judgment is ordered accordingly." Judgment was entered for defendants, from which plaintiff appealed. Reversed. P. L. Williams and F. S. Dietrich, for appellant. AILSHIE, J. (after making statement of facts). The first question presented for our consideration is: Were the lands in dispute, on June 20, 1878, public lands of the United States over which Congress had the power to make such disposition as it saw fit by legislative grant? In this connection it should be remembered that up to that date the settlers, Quigley and Hendricks, had performed no act by which to initiate an inchoate right except that of settlement upon the lands. The power of Congress over the public lands is plenary so long as title thereto remains in the government, and no right of property therein has vested in another. Northern Pac. R. R. Co. v. Smith, 171 U. S. 268, 18 Sup. Ct. 794, 43 L. Ed. 160; Norton v. Evans, 82 Fed. 806, 27 C. C. A. 168; Frisbie v. Whitney, 9 Wall. 187, 19 L. Ed. 668; The Yosemite Valley Case, 15 Wall. 77, 21 L. Ed. 82; Campbell v. Wade, 132 U. S. 34, 10 Sup. Ct. 9, 33 L. Ed. 240; Buxton v. Traver, 130 U. S. 232, 9 Sup. Ct. 509, 32 L. Ed. 920. It appears to have been uniformly held by the federal courts that an entry in the proper land office does not create any vested right in the entrymen as against the United States, and that Congress may, by subsequent legislation, dispose of the land to any one notwithstanding such entry. King v. McAndrews, 111 Fed. 871, 50 C. C. A. 29; Norton v. Evans, supra; R. R. Co. v. Smith, supra; Frisbie v. Whitney, 9 Wall. 187-196, 19 L. Ed. 668; Wagstaff v. Collins, 97 Fed. 3, 38 C. C. A. 19; Campbell v. Wade, supra; Shiver v. U. S., 159 U. S. 491, 16 Sup. Ct. 54, 40 L. Ed. 231; Southern Pac. Co. v. Burr, 86 Cal. 279, 24 Pac. 1032. In the light of these authorities there is no room for doubt but that Congress had unrestricted power of disposition over these lands on June 20, 1878. Of course, while it is the rule that no vested right is acquired as against the United States until all the prerequisites for acquirement of title have been complied with, it still remains true that parties may, as against each other, acquire a preference right to take title to the public lands, and in all such cases the first in time is first in right. Ard v. Brandon, 156 U. S. 537, 15 Sup. Ct. 406, 39 L. Ed. 526; N. P. R. R. Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98, 41 L. Ed. 480; Frisbie v. Whitney, supra; The Yosemite Valley Case, supra. In the consideration of this question it should be borne in mind that the line of authorities holding that the lands which have been settled upon with a view to pre-emption or homestead are no longer public lands are cases arising over land grants in aid of the construction of roads or indemnity lands therefor, and not over Oregon Short Line R. Co. v. Quigley rights of way. In those grants Congress has in most, if not all, cases limited the right of the railroad company to such lands as have not been occupied by bona fide settlers, or to which no homestead rights have attached or been initiated. Nelson v. N. P. R. R. Co., 188 U. S. 108, 23 Sup Ct. 302, 47 L. Ed. 406. And the courts have held in such cases that the right of the settler might be initiated at any time prior to the filing the map of definite location, or, as held in some cases, the actual construction of the road. No such reservation or exception, however, appears to have been made in any of the acts granting rights of way alone. St. Joseph & Denver City R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578. It is next urged by respondents that no right vested in the railway company upon the passage and approval of the act, but that the vesting of title to the right of way was dependent upon the filing of a map of definite location, as provided by section 4 of the act of March 3, 1873. There could be only two purposes served by the filing of the map under the provisions of this section-the one for the information of the government and its land-office officials to apprise them of the occupation and disposition of the public lands belonging to the government; the other purpose for the information of settlers and purchasers who desire to acquire rights in such public lands. In this case the government is not complaining of such failure, and it does not appear upon what theory a settler can be heard to complain. of the failure to perform an act by another which is solely for the information and benefit of the government. If, on the other hand, such failure has deprived the individual of any of his rights, or hindered him in the acquisition of any interest which he might otherwise have acquired, then he would certainly have a right to urge such objection. In this case the railroad was actually constructed over the land and was being operated at the date of the passage of the act of June 20, 1878, and constituted actual, rather than constructive, notice to Quigley and Hendricks, and all the rest of the world, as to the exact location of this right of way. By the actual location of the track upon the ground they were saved the necessity of consulting records and files of the land office in order to ascertain the definite location of such road. The road having been constructed prior to the passage of the act, the filing thereafter of a map of definite location could serve no one except the government. In Jamestown & Northern Railroad Co. v. Jones, 177 U. S. 125, 20 Sup. Ct. 568, 44 L. Ed. 700, it was held that the grant of a right of way to the plaintiff which required the filing of such maps with the Secretary of the Interior was complied with, so far as the settler was concerned, upon the actual construction of the road, and that the entry of the defendant was subject thereto. The grant for right of way became definitely fixed by the actual construction of the road as effectually as it could have been by the filing of a map of location. It ceased to be a floating grant as soon as the road was constructed, and no one could thereafter Oregon Short Line R. Co. v. Quigley be misled as to the exact situs of the right of way. Every person thereafter acquiring title to any of the public lands through which this line of road was then constructed took the same subject to the right of way granted by the act of June 20, 1878. St. Jo. & Denver City R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 579; Bybee v. Oregon & Cal. R. R. Co., 139 U. S. 663, 11 Sup. Ct. 641, 35 L. Ed. 305; Doran v. C. P. R. R. Co., 24 Cal. 246. It is also contended in this case that, notwithstanding the grant of the 200-foot right of way, the railroad company cannot take a decree quieting title to more than it occupies and uses or is actually necessary for the use for which the grant was made. We do not think this position can be sustained. Under these grants the question of the reasonable amount of land necessary for such use is not open to consideration and determination by the courts. The grant by Congress to the Utah & Northern Railway Company of a right of way 100 feet on each side of the central line of its track was a conclusive determination of the reasonable and necessary quantity of land to be dedicated to such use and carried with it the right of possession in the grantee therein named and its successor. N. P. R. R. Co. v. Smith, supra; Pac. Co. v. Burr, New Mexico v. U. S. Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. Ed. 407. Respondents have devoted much space in their briefs to the contention that the appellant's predecessor in interest, Gould, having taken deeds from Quigley and Hendricks to a 66-foot right of way, is therefore estopped at this time to deny the grantor's right or title. At the time the deed was executed it only conveyed to the grantee, Gould, the right of possession, for the reason that neither party had, or claimed to have, at that time any right or title in the property other than a right of possession at sufferance of the government. Neither party having any title, Quigley and Hendricks, being in possession, could maintain such possession as against Gould and the railroad company until such time as the latter might acquire a better right and title from the owner of the fee. Under the deed the grantee took a perpetual right of way so far as the grantor was able to convey, and the grantee was placed under no obligations to acknowledge his grantor as landlord, or ever at any time restore to him the possession so acquired. As a general proposition of law, the grantee named in a deed of conveyance does not hold in privity with his grantor, but rather holds adversely to the grantor, and is not estopped to deny the title of his grantor. Bybee v. Oregon & Cal. R. R. Co., supra; Merryman v. Bourne, 9 Wall. 592, 19 L. Ed. 683; Robertson v. Pickrell, 109 U. S. 608, 3 Sup. Ct. 407, 27 L. Ed. 1049; 11 A. & E. Encv. of Law (2d Ed.) 400, 440; 3 Wash. on Real Property (6th Ed.) sec. 1914; Schuler et al. v. Ford et al. (Idaho), 80 Pac. 219. To this rule, as to most all other general rules, there are exceptions, but no reason has been called to our attention why this case should come under any of the exceptions to the general rule, and the doctrine of estoppel Oregon Short Line R. Co. v. Quigley be applied to the grantee named in the general deed of conveyance. The grantors have lost nothing by the transaction, nor have they been prejudiced in any of their rights or lulled to repose by any act of the grantee. On the contrary, they have profited by the transaction to the extent of the purchase price which they received for the execution of the quitclaim deeds. It is finally argued by respondent that this action is barred by the statute of limitations in that the defendants and their predecessors in interest have been in the adverse possesison of the whole of this right of way, except the 66 feet granted by their quitclaim deed, for the period of 27 years last past, and that the plaintiff is therefore barred from the prosecution of the action. It is also claimed that, in addition to the defense of the bar of the statute, the plaintiff is guilty of such laches in the assertion. of his claim that he can no longer be heard in a court of equity. While the defendants and their predecessors have been in the actual possession of the premises and continued to cultivate the same, still the case does not present all the facts going to constitute adverse possession. But, as we read the authorities, there are potent reasons why the bar of the statute and the plea of adverse possession cannot prevail in a case of this kind. This grant by Congress of a right of way is not an absolute fee for all purposes, but is in the nature of a conditional grant, and limited to use and occupation by the grantee and its successors and assigns for the purposes of maintaining and operating a railroad. The franchise and the right of way in such case are inseparably attached to each other while in the possession and under the control and management of the grantee and its successors. The company could not, by its grant, convey any part of its right of way in any manner that would sever the right of possession from the franchise to operate and maintain a railway line thereover. N. P. R. R. Co. v. Townsend, 23 Sup. Ct. 671, 190 U. S. 267, 47 L. Ed. 1044; East Ala. R. Co. v. Doe, 114 U. S. 340, 5 Sup. Ct. 869, 29 L. Ed. 136; Yellow River Improvement Co. v. Wood County (Wis.), 51 N. W. 1004, 17 L. R. A. 92; In re Canada Southern Ry. Co., 20 Am. & Eng. R. R. Cases, 196; Union Pac. Ry. Co. v. Kindred (Kan.) 23 Pac. 112; East Tenn., V. & G. R. Co. v. West (Tenn.) 14 S. W. 776, 10 L. R. A. 855; N. P. R. R. Co. v. City of Spokane (C. C.) 56 Fed. 917. And if it could. not do so by its solemn grant, it certainly could not do so by any act which might be construed into a recognition of adverse possession. It must follow that the statute of limitations does not run in such cases against an action to maintain the integrity of such a right of way. Southern Pac. R. R. Co. v. Hyatt, 132 Cal. 240, 64 Pac. 272, 54 L. R. A. 522. The contention that the plaintiff has mistaken its remedy, and that an action to quiet title will not lie in a case like this, is answered by this court adversely to respondent in Johnson v. Hurst (Idaho) 77 Pac. 791; Shields v. Johnson (Idaho) 79 Pac. 391; Fry v. Summers, 4 Idaho, 424, 39 Pac. 1118. It follows, therefore, from what has been said, that the judgment of San Antonio & A. P. Ry. Co. v. Kiersey the trial court must be reversed, and it is so ordered, and the cause is remanded, with directions to make and file conclusions of law in harmony with the views herein expressed, and enter judgment in accordance therewith. Costs awarded to appellant. STOCKSLAGER, C. J., and SULLIVAN, J., concur. * SAN ANTONIO & A. P. Ry. Co. v. KIERSEY et al. (Supreme Court of Texas, April 27, 1905.) Railroad Trestle Construction-Overflow-Injury to Land—Liability. In an action against a railroad company for damages to land by an overflow from the alleged negligent construction of a trestle, though the overflow was extraordinary, yet, if it could have been reasonably anticipated by railroad engineers of ordinary prudence and skill, and the trestle could have been so constructed as not to have caused the damage, a failure so to construct it would constitute negligence, but if the floods were unprecedented, and such as could not have been ordinarily anticipated by a prudent man skilled in the work, it would be the act of God, for which defendant would not be liable. Damages Evidence-Value of Land. It was error to admit the evidence of witnesses as to the value of the land before the construction of the trestle, though other witnesses had testified that the value of the land was the same just before the flood as it was just before the construction of the bridge. Measure of Damages. In such a case the difference between the value of the land just before and just after the overflow is the proper measure of damages. Damages Prior Overflows Separable Injuries. It was proper to refuse a requested instruction that, as it appeared that the damages occurred in part prior to two years before the filing of plaintiff's action, there was no evidence on which to compute the damages, where there was evidence of damage less than two years before the action, which damages were separable from any that might have accrued at a prior time. Overflows Injuries to Land-Liability-Instructions.-In an action for damages caused by an overflow from the construction of a railroad trestle, the court charged that plaintiff sued for damages to the land by the failure of defendant to so construct its road across a bayou as not to interfere with the passing of water, and that if defendant so constructed its road that it materially interfered with the passage of the water, and thereby it was caused to stand on plaintiff's land, and the injury would not have occurred but for the construction of the trestle, plaintiff would be entitled to recover, and that if defendant defectively constructed the trestle, and as a consequence the channel was filled up and the waters were diverted, etc., plaintiff was entitled to recover, without the limitation that the injury would not have occurred but for the building of the road. Held, that a portion of the charge relating to the obstruction of the flow of water, and another to the filling up of the channel, whereby water was diverted, failure to apply the limitation to both portions might have misled the jury, and it was error to refuse a special instruction *See foot-note appended to Earhart v. Cowles (Iowa), 12 R. R. R. 243, 35 Am. & Eng. R. Cas., N. S., 243, where all the preceding authorities in this series are collected. |