Joseph McKenna

“ Tarpey, ejectment may be brought for every part of it. The action, of course, may be defeated; but it may prevail, and a title which may prevail for the company in ejectment surely may be attributed to it for taxation, to be defeated in the latter upon the same proof or concession by which it would be defeated in the former. An averment that there is a controversy about the character of lands not yielded to, an expression of doubt about it not acted on, is not sufficient. This view does not bring the railroad company to an unjust dilemma. The company has the title, or nothing ”

“ It is, however, now conceded that the railroad has a taxable interest, counsel for appellant saying:
'The question for decision is not whether the railway company has any interest in its grant, or in the lands in question, which may be subjected to some form of taxation, but whether the lands themselves are taxable, whether the present assessment which is on the lands themselves can be sustained. We may well concede that the taxing power is broad enough to reach in some form the interest of the railway company in its grant. ”

“ If it have the title to any of the lands, this title cannot be diminished to a claim or an interest because it has not, or may not have, title to others. If there is uncertainty, it must be resolved by the railroad. Suppose, to use the language of counsel, 'neither the assessor nor the railway company can place its hand on a single specific parcel, and say whether it belongs to the company or to the United States.' We nevertheless say again, as we said, by the chief justice, in Railroad Co. ”