Southern Pac. R. v. Ambler Grain & Milling Co.

An action was brought by the appellant against the appellee to remove a cloud on the appellant’s title to a strip of land in Los Angeles county, Cal., claimed by the appellant to be part of the 200-foot right of way granted to it by an act of Congress approved March 3, 1871 ( 16 Stat. 573 ).

It is admitted that William M. Tileston, predecessor in interest of the appellee, filed a homestead entry upon the subdivision embracing- the strip in controversy on August 5, 1870, improved and cultivated the land and resided upon it, and on May O', 1871, commuted his claim to a cash entry, upon which a patent to Tileston was issued on November 10, 1874.

The cause was submitted upon a stipulation of facts and upon briefs of counsel. The court below entered a judgment declaring the appellee to be the owner in fee simple of the strip in question, and decreeing that the appellant had no right or title therein. From that judgment was taken the present appeal.

The appellant challenges the adverse conclusion of the court below upon two grounds:

(1) The inchoate right of the homestead entryman did not withdraw the land from the operation of the right of way grant, even though it did withdraw it…

(concurring).

I concur in the judgment of affirmance. I am not prepared to concur in the conclusion that lands in the right of way grant made by section 2 of the Act of 3866 quoted in the main opinion are reserved from the grant, as is the case of lands granted by section 3 of the act where such lands have been properly entered as a homestead. There seems to bo no direct decision upon that question, and appellant confesses that it has been unable to find one. There are many reasons for holding that the interest of the United States therein was granted in praesenti by the right of way grant. If it is held otherwise, as in tho case of lands granted in aid of the railroad company under section 3, then, as held in tho main opinion, upon tho relinquishment or abandonment of the claim by the entryman, title would revert to the government and the railroad company would have no right under the original grant to build across such lands without additional legislation. In tho meantime other rights might intervene to prevent Congress from granting such right. Under the Act of March 3, 3875 (43 USCA §§ 934-939), it is definitely held by the Supreme Court that the right of the government to…