197 U.S.

1
25 S.Ct. 302
49 L.Ed. 639

NORTHERN PACIFIC RAILWAY COMPANY, Plff. in Err.,

v.
WILLIAM S. ELY, Marvin Arnold, Julia Arnold et al. NO 102.
NORTHERN PACIFIC RAILWAY COMPANY, Plff. in Err.,
v. WILLIAM S. ELY et al. NO 88.
Nos. 120, 88.
Submitted December 15, 1904.
Decided February 20, 1905.

Messrs. C. W. Bunn and James B. Kerr for plaintiff in error.

Messrs. Harold Preston, William E. Cullen, F. T. Post, and Samuel R.
Stern for defendants in error.
Mr. Chief Justice Fuller delivered the opinion of the court:

This was a suit brought by the Northern Pacific Railway Company, successor to
the Northern Pacific Railroad Company, in the superior court of the county of
Spokane, state of Washington, against a large number of persons, to quiet title,
remove clouds, and recover possession of certain parcels of real estate, alleged
to be portions of its right of way in that county.

The complaint alleged that plaintiff was the owner and entitled to a strip of
land, 400 feet wide, on which defendants had wrongfully entered. Some of the
defendants were defaulted. Separate answers were interposed by others,
separate trials had, separate verdicts rendered, and bill of exceptions granted.
As to one defendant, the case was submitted to the court for trial, and findings
of fact and conclusions of law were made and filed.

A single decree was rendered in favor of contesting defendants, from which the
railway company appealed to the supreme court of the state, where the decree
was affirmed. 25 Wash. 384, 54 L. R. A. 526, 87 Am. St. Rep. 766, 65 Pac.

555.
4

The opinion of that court was filed June 29, 1901, and judgment of affirmance
entered July 30, 1901. On May 4, 1903, the case of Northern P. R. Co. v.
Townsend, 190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct. Rep. 671, was decided.
May 28, 1903, the railway company was allowed a writ of error from this court,
the judgment of the state supreme court being described as entered June 29,
1901. The case was docketed July 23, 1903, and is now numbered 88. June 30
a second writ of error was taken out and filed below, the papers correctly
describing the judgment as entered July 30, 1901, and was docketed here
August 13, 1903, and is now numbered 102.

Plaintiff moved for leave to amend the record in No. 88 so that the date of the
judgment might be correctly given, and that thereupon No. 102 be dismissed,
or, in the alternative, that No. 88 be dismissed. We grant the latter application,
and dismiss No. 88 without prejudice to proceeding in No. 102. Wheeler v.
Harris, 13 Wall. 51, 20 L. ed. 531; Silsby v. Foote, 20 How. 290, 15 L. ed. 822.

The facts on which the state supreme court proceeded are thus stated:

'It may be conceded, we think, that the right of way which embraces the land in
dispute was granted to the Northern Pacific Railroad Company by act of
Congress in 1864, and that, to the title to the right of way thus granted to the
Northern Pacific Railroad Company, the Northern Pacific Railway Company
has succeeded. It may also be conceded, for the purposes of this case, that the
Northern Pacific Railway Company has complied with all the terms and
provisions of the act of Congress aforesaid, and has constructed its railroad
through the whole of the line of road between the points named in the granting
act; that a map of definite location was filed October 4, 1880, prior to the
acquiring of the title to the land in question by the defendants or their
predecessors or grantors; and that said railroad had been continuously operated
since its construction. The defendants, answering, claim title by patent from the
United States government. The land was acquired under the pre-emption and
homestead acts, respectively, and all the defendants or their grantors have been
in quiet, peaceful, undisturbed, and undisputed possession of said land for more
than ten years immediately prior to the commencement of this action, many of
them for nearly twenty years. Valuable improvements have been made by the
defendants, the said land consisting of town lots in the city of Spokane, and
having been platted and laid out as additions to the city of Spokane by the
defendants or their grantors after acquiring title to the same from the United
States government. During all these years no claim whatever to these lands has
been made by the appellant. It has stood by and seen improvements made

thereon, and, in the case of defendant Brown, an agreement was entered into
between him and General Sprague, who was then the general superintendent of
the Northern Pacific Railroad Company, that they would plat their lots so that
the streets of the addition which the railroad company was dedicating would
correspond with and meet the streets which Brown was dedicating to the city of
Spokane, and the agreement was carried out by arranging the streets in
accordance therewith. These streets have been used by the public for from ten
to eighteen years. The testimony shows that, in addition to the improvement
which these defendants have made upon their lots, many thousands of dollars
have been paid by them for assessments levied upon abutting land for the
improvement of streets running through this right of way; that the appellant has
never paid these assessments; that they have never been assessed to the
appellant, and that no question has ever been raised by the appellant as to the
right and obligation of the defendants to pay the same. While the record does
not show that any of the lands owned by the defendants were deeded to them by
the appellant, it does show that the Northern Pacific Railroad Company has
deeded to other parties lots in the city of Spokane situated within the 400 feet of
right of way, upon which valuable improvements have been made by act. St.
Joseph & D. C. R. Co. v. Baldwin,
8

It may be added that it was only as to some of the parcels that the filing of the
map of definite location and the construction of the railroad preceded the filing
of the entries. But we regard the case as falling within the rule holding the
grant of the right of way effective from the date of the act. St. Joseph & D. C.
R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 578.

The supreme court held that the action was barred by the statute of limitations;
that the company was estopped from asserting title by reason of the
circumstances; and that: 'Where, through the negligence and laches of a railroad
company, the occupancy by others of portions of the right of way granted to it
by the government has ripened into title by adverse possession, the company
cannot set up the defense that the right of way was granted for public purposes
only, and that it would be against public policy to permit either its abandonment
by the company or the acquisition of adverse rights therein by way of estoppel
or of the bar of the statute of limitations.'

10

As before stated, on the 4th day of May, 1903, the decision of this court in
Northern P. R. Co. v. Townsend, 190 U. S. 267, 47 L. ed. 1044, 23 Sup. Ct.
Rep. 671, was announced. We there ruled that individuals could not, for private
purposes, acquire by adverse possession, under a state statute of limitations, any
portion of a right of way granted by the United States to a railroad company in
the manner and under the conditions that the right of way was granted to the

Northern Pacific Railroad Company. At the same time it was not denied that
such right of way granted through the public domain within a state was
amenable to the police power of the state. And we said: 'Congress must have
assumed, when making this grant, for instance, that in the natural order of
events, as settlements were made along the line of the railroad, crossings of the
right of way would become necessary, and that other limitations in favor of the
general public upon an exclusive right of occupancy by the railroad of its right
of way might be justly imposed. But such limitations are in no sense analogous
to claim of adverse ownership for private use.' We are not prepared to overrule
that decision, and tested by it, the judgment in this case must be reversed. But
we were then dealing with the original right of way, which was of a width of
400 feet. April 28, 1904, an act of Congress entitled 'An Act Validating Certain
Conveyances of the Northern Pacific Railroad Company and the Northern
Pacific Railway Company,' was approved (33 Stat. at L. 538, chap. 1782),
reading as follows:
11

'That all conveyances heretofore made by the Northern Pacific Railroad

Company or by the Northern Pacific Railway Company, of land forming a part
of the right of way of the Northern Pacific Railroad, granted by the government
by any act of Congress, are hereby legalized, validated, and confirmed:
Provided, That no such conveyance shall have effect to diminish said right of
way to a less width than one hundred feet on each side of the center of the main
track of the railroad as now established and maintained.

12

'Sec. 2. That this act shall have no validating force until the Northern Pacific
Railway Company shall file with the Secretary of the Interior an instrument in
writing, accepting its terms and provisions.'

13

The terms and provisions of the act were accepted by the railway company
June 22, 1904, and the acceptance, duly certified, was filed in the Interior
Department July 7, 1904.

14

In Townsend's Case it was said, among other things:

15

'Manifestly, the land forming the right of way was not granted with the intent
that it might be absolutely disposed of at the volition of the company. On the
contrary, the grant was explicitly stated to be for a designated purpose, one
which negated the existence of the power to voluntarily alienate the right of
way or any portion thereof. The substantial consideration inducing the grant
was the perpetual use of the land for the legitimate purposes of the railroad, just
as though the land had been conveyed in terms to have and to hold the same so

long as it was used for the railroad right of way. In effect the grant was of a
limited fee, made on an implied condition of reverter in the event that the
company ceased to use or retain the land for the purpose for which it was
granted . . . Congress having plainly manifested its intention that the title to and
possession of the right of way should continue in the original grantee, its
successors and assigns, so long as the railroad was maintained, the possession
by individuals of portions of the right of way cannot be treated, without
overthrowing the act of Congress, as forming the basis of an adverse possession
which may ripen into a title good as against the railroad company.' 190 U. S.
271, 272, 47 L. ed. 1046, 1047, 23 Sup. Ct. Rep. 672, 673.
16

The act of April 28, 1904, in view of our decision in that case, was obviously
intended to and did have the effect to narrow the right of way to 200 feet in
width, so far, at least, as, outside of that strip, the original right of way had been
parted with.

17

The rule in the state of Washington as to adverse possession is thus stated by

the supreme court in this case:

18

'One holding land adversely to the rights of another can be devested only by the
action of the other, even with a better right, within the time prescribed by the
statute of limitations; and this is true, even though he may have originally
entered under a void grant of sale. But his claim ripens into a perfect title and
becomes absolute, if such possession is not disturbed within the time
prescribed. As is said by 3 Washburn on Real Property, 5th ed. p. 176:

19

"The operation of the statute takes away the title of the real owner, and
transfers it, not in form, indeed, but in legal effect, to the adverse occupant. In
other words, the statute of limitations gives a perfect title. The doctrine is stated
thus strongly because it seems to be the result of modern decisions, although it
was once held that the effect of the statute was merely to take away the remedy,
and did not bind the estate, or transfer the title." 25 Wash. 388, 54 L. R. A. 530,
87 Am. St. Rep. 768, 65 Pac. 556.

20

In Sharon v. Tucker, 144 U. S. 533, 543, 36 L. ed. 532, 535, 12 Sup. Ct. Rep.
720, 722, where the statute of limitations in force in the District of Columbia
was applied, Mr. Justice Field, speaking for the court, said: 'It is now well
settled that, by adverse possession for the period designated by the statute, not
only is the remedy of the former owner gone, but his title has passed to the
occupant, so that the latter can maintain ejectment for the possession against
such former owner, should he intrude upon the premises. In several of the states

this doctrine has become a positive rule, by their statutes of limitations

declaring that uninterrupted possession for the period designated to bar an
action for the recovery of land shall, of itself, constitute a complete title.
Leffingwell v. Warren, 2 Black, 599, 17 L. ed. 261; Campbell v. Holt, 115 U. S.
620, 623, 29 L. ed. 483, 485, 6 Sup. Ct. Rep. 209.'
21

This was quoted in Toltec Ranch Co. v. Cook, 191 U. S. 532, 538, 48 L. ed.
291, 292, 24 Sup. Ct. Rep. 166, 167, and it was remarked:

22

'Adverse possession, therefore, may be said to transfer the title as effectually as

a conveyance from the owner; it may be considered as tantamount to a
conveyance.'

23

So far as title to portions of the right of way could be lawfully acquired from
the railway company, defendants below, appellees in the supreme court had
acquired title to their parcels by adverse possession, and occupied the same
position as if they had received conveyances, which the act of April 28, 1904,
operated to confirm. The act is remedial, and to be construed accordingly. The
lots of some of the defendants were outside of the 200 feet. The lots of others
were partly within and partly without the strip. But the act was passed after the
judgment of the supreme court was rendered, and while the case was pending
here, and it must be left to the state courts to deal with the matter in the light of
the conclusions at which we have arrived.

24

In Kansas P. R. Co. v. Twombly, 100 U. S. 78, 25 L. ed. 550, which was a writ
of error to the supreme court of the territory of Colorado, the act authorizing
the action was repealed while the writ was pending in this court, and we, in the
exercise of appellate jurisdiction, declined to send the case back to the court
below with instructions to enter a judgment of nonsuit, and affirmed the
judgment because we found no error.

25

In the present case, the parties will not be compelled to resort to some form of
original proceeding to obtain relief under the act of April 28, 1904, as, apart
from that statute, the decree must be reversed, and thereupon the record will be
open for such adjudication as the then situation may demand.

26

In No. 88, writ of error dismissed; in No. 102, decree reversed and cause
remanded for further proceedings not inconsistent with this opinion.

27

Mr. Justice Harlan was of opinion that the decree of the state supreme court
should be affirmed for the reasons given, and, therefore, dissented.