Page images
PDF
EPUB

estimates of bidders who were interested in making a careful calculation as to cost.

It is also said that no specifications for the bridge were filed with the county clerk prior to the letting of the contract; but it appears that the notice for bids, given by the board, and which was on file with the county clerk, gave specifications of the proposed bridge with considerable fullness and detail. Another objection was that the advertisement for proposals to build the bridge called for the construction of a stone or cement bridge, while the one contracted for, as we have seen, was cement reinforced with iron and steel. This was a departure, but not a wide one, for ordinarily steel and iron are used to a considerable extent in cement structures. This bridge is spoken of by witnesses as a cement bridge. The testimony is that it has cement concrete piers and cement concrete abutments reinforced by iron and steel structures. The floor of the bridge is of cement concrete constructed on steel beams, and the only exposed steel portions of the bridge are the side trusses above the floor. Officers are, of course, required to comply with mandatory provisions of the statute, but it is plausibly argued by the defendant that there has been substantial compliance with the mandatory provisions, and that mere irregularities and informalities in the methods employed should not defeat the completion of a public improvement.

Under the circumstances of this case, the plaintiffs were hardly in a position to invoke the equitable jurisdiction of the court and enjoin a public improvement so nearly completed. They appear in court in the capacity of private suitors for the protection of their personal interests. They bring the action under chapter 334 of the Laws of 1905. Until that act was passed private parties could not interpose an action of injunction against a proposed improvement until a tax or charge had been placed against them or their property and was about to be enforced. The act named expanded the remedy of injunction, and gives the taxpayer a right of action against a public officer or board to enjoin them from entering into any contract or doing any unauthorized act that might result ultimately in the creation of a burden or the levying of a tax against his property. He does not, however, sue in behalf of the state, or in any representative capacity. As was said in Water, Light & Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883: "This statute gives the right of action at the inception of any attempt to create such an illegal burden. The plaintiff is not suing in behalf of the public, or in the public's interest, but in its own name for the protection of its own property. A judgment in its favor may result in relieving all the property in the city from paying taxes to liquidate the indebtedness which the city is trying to create; but that would be only an incident in the protection of its own property. and not a reason why it should not be permitted to

maintain an action at this time." As the plaintiffs were suing for themselves only, and for the protection of their own interests, they are to be governed, and their rights measured by the ordinary rules applicable to private suitors.

The plaintiffs come into a court of equity asking a permanent injunction against the payment of the contractor for work which was in progress for months, upon which a large amount of money had been expended, and when the contractor is not even a party to the action. Assuming that originally they had a right to interpose and enjoin, it has been forfeited by their silence and delay. The contract was let and the work was in progress for about six months before they made any complaint, or took any steps to assert their rights. With a knowledge that the contract had been made, and that the bridge was be-ing built, they stood silently by and suffered the contractor to make a special bridge to fit that crossing and to incur expenses and liabilities of a burdensome character. To allow them to enjoin a public improvement which would so seriously affect others after such inaction and delay would be grossly inequitable. As was said in Commissioners of Morris County v. Hinchman, 31 Kan. 736, 3 Pac. 509, "it is a well-established rule in equity that if a party is guilty of laches or unreasonable delay in the enforcement of his rights he thereby forfeits his claim to equitable relief." Brown v. Merrick County, 18 Neb. 355, 25 N. W. 356, is a case where certain taxpayers sought to enjoin the county commissioners from paying for the construction of a public bridge. It was contended that the board had failed to comply with the law in several particulars; but there was no charge of bad faith against the board or of fraud in contracting for the building of the bridge, and it was said that so long as the board acted within its authority no injunction would lie to restrain it, and that “a taxpayer who seeks to enjoin the payment of money for the erection of a public bridge, which he claims is being constructed in violation of law, must act with reasonable promptness. If he is guilty of gross laches, and knowingly permits the contractor to incur liabilities in good faith in the construction of the greater portion of the work, an injunction will be denied." See, also, Sleeper v. Bullen, 6 Kan. 300; H. & S. Railroad Co. v. Com'rs of Kingman County, 48 Kan. 70, 28 Pac. 1078, 15 L. R. A. 401, 30 Am. St. Rep. 273; Tash v. Adams, 10 Cush. (Mass.) 252; Kellogg v. Ely, 15 Ohio St. 64; Lamb v. Railroad Co., 39 Iowa, 333.

The bridge was necessary for the convenience of the people. No fraud is charged against the board in the letting of the contract. The board had power to build the kind of a bridge that was contrasted for, and there is no claim that it is not worth the contract price. The case is unlike those cited by plaintiffs where the commissioners were

wholly without authority to act. Here there was power, but it was defectively exercised. The delay of the plaintiffs in challenging the proceedings was unreasonable, and the court rightly held that they were not entitled to the equitable relief sought.

Judgment affirmed. All the Justices concurring.

(77 Kan. 815)

CRANE v. CHENEY.

(Supreme Court of Kansas. July 5, 1907.) 1. QUIETING TITLE-EVIDENCE-SUFFICIENCY. In an action to quiet title, evidence held sufficient to sustain a judgment for plaintiff on the theory that a deed to defendant was subsequent to an oral agreement of the grantors to convey the property to plaintiff in pursuance of an arrangement by which he was already in possession and had made improvements thereon, of which defendant had notice.

2. SAME-PARTIES.

In an action to quiet title to certain land which defendant's grantors had orally agreed to convey to plaintiff prior to their execution of the deed to defendant, whether plaintiff had a partner was immaterial as the agreement was inade with plaintiff alone.

3. FRAUDS, STATUTE OF CONTRACT TO CONVEY LAND-IMPROVEMENTS BY VENDEE.

Where a purchaser has made improvements and invested money on the strength of an oral agreement tc convey land. the statute of frauds does not apply.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 23, Frauds, Statute of, §§ 301-324.]

Error from District Court, Pawnee County; Chas. E. Lobdell, Judge.

Action by I. W. Cheney against Val. Crane. Judgment for plaintiff, and defendant brings error. Affirmed.

G. W. Finney and W. H. Vernon, Sr., for plaintiff in error. G. Polk Cline, for defendant in error.

PER CURIAM. The defendant in error commenced this action in the district court of Pawnee county to quiet his title against the claims of the plaintiff in error. The court found and filed findings of fact and conclusions of law which read:

Findings of Fact. "That on August 9, 1991, J. H. Hazen and Lena Hazen were husband and wife, and were jointly occupying as their home the quarter section of land of which the tract in controversy is a part. That on that date defendant J. H. IIazen entered into & parol contract to sell the tract in controversy to S. A. Miller for the sum of $12.50. That the defendant Lena Hazen had no knowledge of such agreement, and was in no way a party thereto at the time. The court finds that Miller forthwith entered upon the land and made lasting and valuable improvements thereon. The court finds that on the 4th of March, 1904, Miller made verbal assignment of his interest under such agreement to plaintiff. That on the 7th of March, 1904, plaintiff took possession of the land in controversy. That at the time of taking possession he did so with the knowledge and con

sent of defendants J. H. Hazen and Lena Hazen, and with their knowledge and without objection from them at once made lasting and valuable improvements thereon, and that on said date or on a later date between that time and March 19, 1904, the defendants J. H. Hazen and Lena Hazen, being together, verbally jointly agreed with the plaintiff to execute to him a deed to said property, pursuant to the arrangement with Miller and plaintiff's rights thereunder. That from the 7th of March, 1904, to this date the plaintiff has been in open and notorious possession of the property in controversy. That on the 29th of March, 1904, the defendants J. H. Hazen and Lena Hazen, by deed of general warranty, conveyed the quarter section of land of which the tract in controversy is a part, without reservation to the defendant Valentine Crane. That Crane at that date, and at all times after March 7, 1904, had actual knowledge of the occupancy, possession, and improvements of the plaintiff.”

Conclusions of Law. "The court concludes as a matter of law that the quarter section of land of which the tract in controversy is a part was on August 9, 1901, the homestead of J. II. Hazen and Lena Hazen. That the attempted agreement of J. II. Hazen to transfer a portion thereof without the consent of his wife was void. The court concludes as a matter of law that the defendants J. H. Hazen and Lena Hazen by this verbal agreement with the plaintiff to adopt the contract with Miller and convey the land to plaintiff was joint consent, verbally given, and that plaintiff's immediate possession was in law sufficient to take such agreement out of the statute of frauds and make it binding. The court concludes as a matter of law that the occupancy of the premises by the plaintiff at the time defendant Crane acquired his title thereto was notice of any and all interest that plaintiff might have therein. It is therefore by the court considered, ordered. and adjudged and held that the plaintiff is the owner in fee simple of the land in controversy. The court finds that the land in controversy was, on the 29th of August, 1904, of the value of $150; that his title thereto be quieted against defendant and all persons."

The finding of fact to the effect that the Hazens jointly agreed to convey to Cheney is assailed on the ground that it has no support in the evidence, and also for the reason that at the time this agreement is found to have been made the Hazens had already sold the property to Crane and received $800 as part payment therefor.

As to the first objection, the evidence upon this subject is conflicting, and therefore we feel bound by the finding of the court thereon. The second proposition does not seem to be supported by the evidence. The court ignored this subject in its findings, which indicates that the evidence on that point was not deemed sufficient to challenge consideration. It seems quite clear that Hazen could not

convey or make a binding contract concerning Crane's land. If the land at the time this contract was made had been sold by the Hazens, that fact was important and would undoubtedly have been shown. The date of the deed by the Hazens, and when the money was paid by Crane, were facts apparently material and easily shown, but Crane rested upon his unaided memory of these facts and placed the date in March. When pressed for a more specific answer, he fixed the time "along about the first part or within the first half of March." This was indefinite and unsatisfactory. The agreement with the Hazens took place March 14th, while Cheney's improvements were in course of erection. The evidence, therefore, indicated that the trade with Crane might have been after the contract with Cheney. There is not a word of evidence that any negotiation had been made with Mrs. Hazen by Crane, or that she had any knowledge thereof before she executed the deed, March 29th, and whatever negotiations may have been had with Hazen alone were void. In any event there is nothing in the evidence to indicate that Hazen had a contract concerning the land which he was in a position to enforce before he received the deed. The court was therefore justified in eliminating this whole question from its consideration.

Considerable has been said about the partnership existing between Cheney and Manderschied, and it is claimed that because of such partnership Cheney could not maintain this action alone. We do not think this question important. The plaintiff's right to recover here rests entirely upon the agreement of the Hazens to convey to him in ratification and confirmation of his contract with Miller. The promise was made personally to Cheney. The partnership was not considered. Cheney alone, therefore, was the proper party to enforce the contract. The rights of the partnership must be adjusted between the parties interested.

As found by the court, Crane bought of Hazens with full knowledge of the rights of Cheney and subject thereto. The erection of improvements and investment of money by Cheney upon the strength of the promise of Hazens eliminates the statute of frauds. The findings of fact made by the court are sustained by the evidence, and they justify its conclusions of law and decree.

The judgment is affirmed.

(76 Kan. 255)

UNION PAC. R. CO. v. HARRIS et al.
(Supreme Court of Kansas. July 5, 1907.)
UBLIC LANDS - RAILROAD GRANTS-RIGHT
OF WAY.

A tract of land owned by the United States, but lawfully occupied by a settler who had filed a declaratory statement claiming a right to it under the pre-emption law. was not "public land. within the meaning of section 2 of the act of Congress of July 1, 1862 (12 Stat. 489,

c. 120), giving to certain railroad companies a right of way through the public lands, and no right with respect to such tract was thereby granted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Public Lands, § 244.]

(Syllabus by the Court.)

Error from District Court, Saline County; R. R. Rees, Judge.

Action by Morris Harris and others against the Union Pacific Railroad Company. Judgment for plaintiffs, and defendant brings error. Affirmed.

N. H. Loomis, R. W. Blair, and H. A. Scandrett, for plaintiff in error. Z. C. Millikin, for defendant in error.

MASON, J. April 22, 1861, Bernhard Blou settled upon a quarter section of "unoffered" government land, and May 13th in the same year he filed a declaratory statement claiming a right thereto under the pre-emption law. He remained continuously in possession, but September 5, 1865, he entered the land as a homestead. He proved it up as such December 8, 1870, receiving a patent March 15, 1872. July 1, 1862, Congress passed an act (12 Stat. 489, c. 120) incorporating the Union Pacific Railroad Company, and giving to it and to the Leavenworth, Pawnee & Western Railroad Company, a Kansas corporation, a right of way 400 feet wide over "the public lands" for the construction of a railroad within certain limits, and upon certain conditions. In conformity with this act and the amendments thereto a road was built by the Kansas company across the land above described prior to May 4, 1867. January 20, 1873, Blou made the company a deed for a right of way lying 50 feet on each side of its track. Thereafter Blou's title to the land south of the track passed to Morris Harris and others, and the Union Pacific Railroad Company succeeded to all the rights of the Kansas corporation. In August, 1902, the company placed a fence on the land 200 feet south of the track and parallel to it, and began the construction of side tracks and yards on the strip so enclosed. Harris and his associates brought ejectment for all of the strip, except the 50 feet next to the track, and recovered judgment, from which the defendant prosecutes error.

The railroad company has no title, unless 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 Leavenworth Company by section 9: "That the right of way through the public lands be, and the same is hereby, granted to said company for the construction of said railroad and telegraph line; and the right, power, and authority is hereby given to said company to take from the public lands adjacent to the line of said road, earth, stone, timber, and other materials for the construction 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, machine shops, switches, side tracks, turntables, and water stations. The United States shall extinguish as rapidly as 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 1864, 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. "We think the clause last quoted is in precise 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 'publie 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 apply 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 inclusive of the lands already settled upon, but to be made in subjection to the prior rights of the settlers. And in any given instance, where a filing had been in force at the time the act was passed, but had been canceled before the road was definitely located, the right of the settler being thus disposed of, a complete title would have been held to have vested in the company when the conditions of the grant were met. But in the Bardon Case it was decided that the grant did not pass title to a tract which was burdened with a pre-emption filing at the date of the enactment, notwithstanding its subsequent cancellation. This result was reached by so defining "public land" as to exclude all lands to which individual interests had attached. In the opinion it was further said: "As the land pre-empted then stood on the records of the land department, it was severed from the mass of the public lands, and the subsequent cancellation of the pre-emption entry did not restore it to the public domain so as to bring it under the operation of previous legislation, which applied at the time to land then public. The cancellation only brought it within the category of public land in reference to future legislation. This, as we think, has long been the settled doctrine of this court. *** Three justices, of whom the writer of this opinion was one, dissented from the majority of the court in the Leavenworth Case; but the decision has been uniformly adhered to since its nouncement, and this writer, after a much larger experience in the consideration of public land grants since that time, now readily concedes that the rule of construction adopted that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims, is better and safer, both to the government and to private parties, than the rule which would pass the property subject to the liens and claims of others."

While the phrase "public land" is capable of a variety of meanings, and may be variously employed in different statutes, the presumption is reasonable that, where used in a similar connection in contiguous sections of the same act, it is intended to have the same force. Section 3 of the act of 1862 reads: "And be it further enacted, that there be, and is hereby granted to the said company, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores thereon, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of said railroad, on the line thereof, and within the limits of ten miles on each side of said road, not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead

claim may not have attached, at the time the line of said road is definitely fixed: Provided that all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to said company. And all such lands, so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption, like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company." This language is not essentially different, so far as concerns the question under consideration, from that interpreted in the Bardon Case, which is as follows: "That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile, on each side of said railroad line as said company may adopt through the territories of the United States, and 10 alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the Commissioner of the General Land Office."

Manifestly, therefore, in the act of 1862 the section following that by which the right of way is granted uses the term "public land" as excluding tracts occupied by settlers. It refers to lands to which pre-emption or homestead claims have attached, not as forming a separate class of public lands, but as lands which have been withdrawn from that category-have ceased to be public lands-by the fact of such claims having attached. Two conditions were necessary in order that land should pass by the grant there contained: It must have been free from pre-emption or other filing when the act was passed, or the act would not have applied to it, because it would not have been public land at that time; and it must have remained in that condition until the line of the railroad was definitely fixed, because a filing prior to that time would have taken it out of the operation of the act by bringing it within the exception there stated. This is necessarily the interpretation that results from the decisions cited. By attributing the same meaning to the expression "public lands" as used in section 2, a harmonious and consistent construction is reached. The right of way was granted upon

« PreviousContinue »