ERROR TO THE SUPREME COURT OF THE STATE OF COLORADO
White, McKenna, Day, Lurton, Hughes, Van Devanter, Lamar; Holmes and Pitney took no part in the decision.
MR. JUSTICE McKENNA delivered the opinion of the court.
This case was submitted at the same time as No. 570, just decided. It is ejectment for lands, part of the right of way granted to the Leavenworth, Pawnee & Western Railroad Company by the act of July 1, 1862, c. 120, 12 Stat. 489, to which right of way plaintiff in error (designated herein as plaintiff) is the successor. The action was brought in the District Court of Arapahoe County, State of Colorado.
The sufficiency of the complaint is not questioned, and it is enough to say that it is, in legal effect, the same as in case No. 570, with only such differences as are necessary.
The answer of defendants in error (called herein defendants) set up three defenses and a counter claim. The first answer admits the incorporation of plaintiff and denies all other allegations of the complaint. The second defense alleges that under certain acts of Congress, subsequent to the act of 1862 and prior to the incorporation of the companies, the right of way of the companies was made 200 feet wide instead of 400 feet, that is, 100 feet from the center line of the railroad track. That the land sued for, which is in possession of the defendants, is more than 100 feet from such center line; that neither plaintiff nor any of its predecessors have been in possession of any portion thereof and have not used the same, nor has it needed to use the same for railroad purposes. That defendants, and those under the through whom they claim title, acquired the title under and by virtue of a patent from the
United States issued November 5, 1878, and various mesne conveyances and have been in the adverse possession of all of the property described continuously since the patent was issued, which is more than the full period of seven years next before the institution of the action; have paid and caused to be paid taxes thereon, and that defendants now plead and rely upon the statute of limitations of the State of Colorado.
The third defense alleges that the right received by the corporation which was created by the act of Congress of 1862 or by its successors or assigns was at most, the grant of a limited fee and made on the condition that the property should revert to the United States if it should not be appropriated and used for a railroad within a reasonable time or should cease to be used for railroad purposes. That thereafter, before the land was used for such purposes, the right of reverter which was retained by the United States, was conveyed by the United States to defendants and their grantors by a patent which was issued by the United States to the vendor of defendants in 1878. That neither plaintiff nor any of its predecessors used or occupied the land for railroad purposes or for any purposes whatever and on account thereof lost any and all right thereto and the property reverted to the United States and to defendants; that neither plaintiff nor any of its predecessors ever needed the property or any part thereof for railroad purposes and can never use the same for such purposes. That on account of failure to use or occupy the land for a period which now approximates fifty years next ensuing after the approval of the act of 1862, the limited fee which may have been granted to plaintiff ceased and determined and the property reverted to the United States and its grantees.
The counter claim repeats some of the allegations in regard to the width of the right of way and defendants' adverse possession of the land outside of the 100 feet on
either side of the center of the railroad track, alleges the value of improvements made thereon by defendants at $1,500 and claims the reimbursement thereof in case of recovery by plaintiff.
Plaintiff demurred to the second and third defenses and to the counter claim. The demurrer was sustained. The case was subsequently tried on the issues made by ...