George Shiras, Jr.

“ Upon principle and authority, we therefore conclude that neither the city of Bismarck, as owner of the town site, nor its grantee, Smith, can, under the facts and circumstances shown in this record, disturb the possession of the Northern Pacific Railroad Company in its right of way, extending 200 feet on each side of its said road. The finding of the trial court that only 25 feet in width has ever been occupied for railroad purposes is immaterial. ”

“ In these great public works the shortest period of clear acquiescence, so as fairly to lead the company to infer that the party intends to waive his claim for present payment, will conclude the right to assert the claim in any such form, as to the company, in the progress of their works, and especially to stop the running of the road after it has been put in operation, whereby the public acquire an important interest in its continuance. ”

“ Ct. 756, whete, upon the foregoing authorities and others, it was held that if a landowner, knowing that a railroad company has entered upon his land, and is engaged in constructing its road, without having complied with a statute requiring either payment by agreement, or proceedings to condemn, remains inactive, and permits it to go on and expend large sums in the work, he is estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and will be restricted to a suit for damages. ”

“ The party does not, of course, lose his claim, or the right to enforce it in all proper modes. He may possibly have some rights analogous to the vendor's lien in England, and here till the legislature cut it off. But it is certain, according to the English decisions, that he cannot stop the work, and especially the trains upon the road, if he has in any sense, for the shortest period, clearly given the company, either by his express consent or by his silence, to understand that he did not intend to object to their proceeding with their construction and operation. ”

“ It may be that a large portion of this tract is in only the constructive possession of the company, or it may be occupied by buildings not used excusively for railroad purposes; and as to all such ground I do not think any estoppel extends.
I am also of the opinion that the legal title conveyed by the town-site patent and the deed to plaintiff must prevail in this action at law over any equities the company may have acquired by occupancy.
Notes
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”