ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.
MR. JUSTICE MILLER delivered the opinion of the court.
This is a writ of error to the District Court of the United States for the Eastern District of Arkansas.
The suit was commenced by an action of forcible entry and detainer brought by Johnson, the present defendant in error, against the Iron Mountain and Helena Railroad Company, and the St. Louis, Iron Mountain and Southern Railway Company was in the progress of the case made a defendant on its own petition. The action was to recover possession of eighteen miles of a railroad which Johnson had built for the defendant, and from which he had been ejected by force and violence by the Iron Mountain and Helena Railroad Company. On the trial before a jury Johnson recovered a verdict on which a judgment was entered for restitution to the possession of the road.To reverse this judgment the present writ of error is brought.
Although there is some controversy about the validity and effect of the contract under which Johnson constructed and held possession of this eighteeen miles of road, part of a larger road of the defendant, the main facts on which his right to recover depend are simple and not much controverted.Whatever may be the truth about the validity and construction of the contract under which he built the road for the company, it is fully established that, after he had built it, and before they had paid him for it, he was in possession of it, using it by running his own locomotives over it, and that while thus in peaceable possession and claiming a right to hold it until he was paid for building it, he was by force and violence turned out of this possession by the railroad company, its officers and agents.
The statute of Arkansas relating to forcible entries and detainers is to be found in Chap. LXVII, Mansfield's Digest,  as follows:
"SEC. 3346. No person shall enter into or upon any lands, tenements, or other possessions, and detain or hold the same, but where an entry is given by law, and then only in a peaceable manner.
"SEC. 3347. If any person shall enter into or upon any lands, tenements, or other possessions, and detain or hold the same with force and strong hand, or with weapons, or breaking open the doors and windows or other parts of the house, whether any person be in or not; or by threatening to kill, maim, or beat the party in possession; . . . or by entering peaceably and then turning out by force, or frightening by threats or other circumstances of terror the party to yield possession; in such case every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this act."
"SEC. 3368. Nothing herein contained shall be construed to prevent any party from proceeding under this act by filing his complaint and causing an ordinary summons to be issued without filing the affidavit or giving the obligation hereinbefore required, and in all cases, when the judgment shall be for the plaintiff, the court shall award him a writ of restitution to carry such judgment into execution."
The main objection relied upon by plaintiff in error to the recovery of the plaintiff below is that a railroad is not real estate, nor such an interest in real estate that it can be recovered by actions applicable to that class of property. It is argued that a railroad is a complex kind of incorporeal hereditament, the possession of which is not authorized to be changed by an action of forcible entry and detainer. We do not think this objection would be a good one if in the state of Arkansas that action were left as it was at common law. The statute of that state, however, which we have just quoted materially enlarges the extend and operation of this action. The language of both §§ 3346 and 3347 makes it applicable to "lands, tenements, or other possession," and declares that "if any person shall enter into or upon any lands, tenements, or other possessions, and detain or hold them with force and the strong hand, or with weapons, . . . or frightening by threats or other circumstances of terror the party to yield possession, in such case every person so offending shall be deemed guilty of a forcible entry and detainer within the meaning of this act."
We do not see any reason in the nature of the ...