(167 U. S. 65)

SPOKANE FALLS & N. RY. CO. v. ZIEGLER.

(May 10, 1897.) No. 211.

REMOVAL OF CAUSES-EMINENT DOMAIN-PUBLIC LANDS-COMPENSATION TO POSSESS

ORY CLAIMANT.

1. Though a complaint by a settler claiming title under the pre-emption laws of the United States against a railroad company states that defendant claims under the laws of the territory of Washington authorizing railroad companies to appropriate land for right of way, it discloses a cause of action arising under the laws of the United States, so as to authorize a removal from a state court to the federal court, the court having judicial knowledge that the authority of the territory to legislate as to the matter in question is derived from the act of congress of March 3, 1875 (18 Stat. 482), granting to railroad companies the right of way through the public lands of the United States.

2. A railroad company seeking to appropriate public lands in the actual possession of a settler, who is entitled to claim a pre-emption right thereto when the proper time shall come, and who bas made improvements thereon, must make compensation therefor.

3. Even if the holder of a possessory claim is not entitled, under the act of March 3, 1875 (18 Stat. 482), to the same measure of compensation for land taken by a railroad company as if he had secured his patent from the United States, yet, plaintiff having been in possession, and done all the law required to give him a patent, before defendant seized the land, the grant of a patent after such seizure, but before suit was brought, conferred on him the right to damages as the owner of the fee, and not merely to pay for improvements.

In Error to the United States Circuit Court of Appeals for the Ninth Circuit.

*This action was commenced in the superior court of Spokane county, state of Washington, wherein William H. Ziegler, on October 5, 1891, filed his complaint against the Spokane Falls & Northern Railway Company, a corporation organized under the laws of the territory of Washington, seeking to recover the value of a certain piece of land taken by the company for its roadbed and right of way, and also to recover damages for the alleged diminution in value of the tract of land through which the strip extended, caused by the construction of the toad and the use of the same as a steam railway. Upon petition of the defendant company, alleging that the suit arose under the laws of the United States, and that the rights of the parties depended upon the construction thereof, the case was removed into the circuit court of the United States for the district of Washington, Eastern division.

In his complaint the plaintiff alleged that on May 1, 1889, he was in possession, as a pre-emptor under the laws of the United States, of the E. 1⁄2 of the S. E. 14 of section 4. township 25 N., range 43 E., Willamette meridian, in the said county, containing about 80 acres, and had then made all such improvements, had lived on the land for such length of time, and had done all*such acts as were necessary to entitle him to a patent to the land from the United States

upon making final proofs and paying the purchase price required by statute, and had then made final proofs and filed the same in the land office of the United States at Spokane Falls, and had tendered the purchase price of the land, or $21⁄2 per acre, to the receiver of that office, and had demanded from the register and receiver of the office a final receipt evidencing the plaintiff's entry of the land and payment therefor; that the defendant company was authorized by its articles of incorporation to build, equip, maintain, and operate a line of steam railway from the city of Spokane Falls (now the city of Spokane) in a northerly direction to the Columbia river; that on the said date the company, acting in pursuance of the laws of the territory of Washington authorizing railway companies to appropriate lands for railway tracks, entered upon and seized, without making compensation to the plaintiff, and without his consent, a strip of land 50 feet wide, extending through the said land, and built thereon its tracks, and had ever since been using the same as a line of steam railway. The plaintiff averred that the said land was in close proximity to the city of Spokane, and at the time of the taking of the same by the company was very valuable for the purpose of being divided into blocks and lots; that the company's road extended diagonally across the land, and prevented the portions of the land abutting on the road from being platted advantageously; that the operating of a line of steam railway through the land largely diminished its value for residence purposes, or for any purpose; that the road was built upon a grade which was higher at some places and lower at others than the natural surface of the land, by reason whereof cuts and fills were made, which diminished the value, for residence purposes, of the land abutting on the road, and made it necessary that all streets laid out across the road should conform to the grade thereof. It was further averred by the plaintiff that since the taking of the said strip of land and the building of the road thereon by the company the final proofs made by him and filed in the lande office as aforesaid had been passed upon and accepted as satisfactory by the proper officers; that the money tendered as aforesaid had been accepted, and that a patent to the land had been duly executed and delivered to him by the United States. The plaintiff demanded judgment for $30,000, asserting that the value of the said strip of land taken was $5,000, and that the tract of land through which it extended was damaged by the construction and operation of the road to the extent of $25,000.

The defendant company filed its answer on February 19, 1892, wherein it denied the essential allegations of the complaint as to the damage to the said tract of land caused by the construction and operation of the road through the same, and in defense of the plain

tiff's demand of compensation for the strip of land taken alleged that on June 5, 1888, the company filed in the office of the secretary of the interior of the United States a copy of its articles of incorporation and due proof of its organization under the same, which were duly approved by the secretary on that date, and that thereupon the defendant became entitled to survey, locate, construct, and maintain its railroad through and over all lands between the termini of the road which were public lands of the United States at the time of the filing of said copy of the articles of incorporation and proof of organization, and became the owner of a right of way through the public lands to the extent of 100 feet on each side of the central line of the road upon such route as it might select, and also acquired the right to take from the public lands adjacent to the line of the road material, earth, stone, and timber necessary for the construction of the road, as granted by the act of congress entitled "An act granting to railroads the right of way through the public lands of the United States," approved March 3, 1875, and that by the filing of the said copy of the articles of incorporation and proof of organization, and the approval thereof as aforesaid, the grant in the said act became operative, and applied to the defendant company to the same extent as if it had been a special grant in the name of that company; that afterwards, and in the month of March, 1889, the company, acting under the provisions of the said act, and as authorized by its articles of incorporation, commenced the construction of its road between the city of Spokane Falls and the Columbia river, and between March 8 and April 8, 1889, surveyed the definite line of its road from a point in that city to a point 20 miles in a northerly direction therefrom, and caused such survey to be marked on the ground in the manner customary in surveying and marking lines for railways, and that the line so surveyed and marked ran through and over the land described in the complaint; that in June, 1889, the defendant had fully constructed and completed its road upon the said line of survey, through the said land, and within the year 1889 had fully completed the road from the city of Spokane Falls to the Columbia river, and had ever since operated the same; that at the time of the filing of a copy of the articles of incorporation and proof of organization with the secretary of the interior, and during all the time thereafter until the completion of the road, the lands described in the complaint were public lands of the United States, and the title thereto was in the United States, and the lands were subject to the grant contained in the said act of congress; that on August 3, 1889,-within 12 months after the location of the road over the said land, the company filed with the register of the land office where the land was located a profile of its road, which profile was duly approved by the secretary of the interior in De

cember, 1889; that the plaintiff's entry of the land was made, and the patent thereto issued, long subsequent to the construction of the road and the approval of the said profile; and that the sale and conveyance of the land by the United States to the plaintiff was subject to the defendant's said right of way. The defendant asked for a judgment quieting its title.

All of the foregoing allegations of the answer tending to show title to the said strip of land in the defendant were denied by the plaintiff in his replication, filed March 11, 1892.

The case was tried in the said circuit court before the court and a jury. At the close of the testimony the defendant requested the court to give the jury the following instruction:

"It appearing from the uncontroverted proof in this case that at the time the defendant filed its articles of incorporation and proofs of its organization with the interior department, on the 5th day of June, 1888, the plaintiff was a pre-emption claimant to the land in controversy, and did not pay for said land until after that date nòr until after the construction of said road over the premises, he is not entitled to a verdict for any amount, and the jury are instructed to return a verdict for the defendant."

This instruction was refused, to which refusal the defendant excepted. The court then, of its own motion, gave the jury certain instructions, and the defendant excepted to the portion thereof following:

"He [the plaintiff] is, in any event, to have the full value of the land they have taken for the right of way, and, if the land that is left to him is injured at all, then he is entitled, in addition to that, to have the difference between the value of the whole tract and the value of what is left of it, taking the value as it was when the road was built, and the market value, irrespective of the effect on the market value by reason of the building of the road."

Exceptions were also taken by the defendant to the rejection of certain testimony offered on its behalf, and to the admission of certain testimony for the plaintiff.

On April 27, 1892, the jury rendered a verdict in favor of the plaintiff, assessing his damages at the sum of $7,500, and also returned a special finding as follows: "We, the jury, in the case of William H. Ziegler against the Spokane Falls and Northern Railway Company, defendant, find specially that the defendant has appropriated for its right of way a strip of land twenty-five feet in width on each side of the center line of its track, extending across the plaintiff's land described in the complaint, and no more, and that the area of plaintiff's land so appropriated is one and eight-tenths acres, and no more; and the amount of damages awarded by our general verdict is computed upon the basis of the land appropriated for said right of

way, being a strip fifty feet in width, and containing one and eight-tenths acres." Judgment in the said amount was entered April 29, 1892.

The defendant moved for a new trial, and upon the denial of his motion took the case on writ of error to the United States circuit court of appeals for the Ninth circuit. That court affirmed the judgment of the court below, and the defendant, after having been denied a rehearing, sued out a writ of error from this court.

A. T. Britton, A. B. Browne, and J. B. Allen, for plaintiff in error. George Turner, for defendant in error.

Mr. Justice SHIRAS, after stating the facts in the foregoing language, delivered the opinion of the court.

This action was brought by William H. Ziegler against the Spokane Falls & Northern Railway Company in the superior court for Spokane county, Wash., and was, on the petition of the railway company, removed into the circuit court of the United States for the district of Washington. The trial there resulted in a verdict and judgment in favor of Ziegler. That judgment the railway company, by a writ of error, took to the circuit court of appeals of the Ninth circuit. 15 U. S. App. 472, 9 C. C. A. 548, 61 Fed. 392, and 29 U. S. App. 69, 12 C. C. A. 488, 64 Fed. 960. The judg ment of the circuit court was there affirmed. The case is before us on a writ of error to the judgment of the circuit court of appeals, sued out by the railway company.

The plaintiff in error now contends that the judgment should be reversed, and the record sent back to the circuit court, with directions to remand the case to the state court whence it was taken on the petition of the plaintiff in error. The ground of this contention is that the plaintiff's statement in the state court did not disclose either that the parties were citizens of different states, or a cause of action involving a right claimed under the constitution or laws of the United States.

Whether it would be competent for the plainStiff in error, in the circumstances stated, to challenge the jurisdiction of the circuit court at this stage of the controversy, we need not consider, because we think that the plaintiff's statement did disclose a cause of action arising under the laws of the United States and cognizable by the circuit court.

In his complaint the plaintiff alleged that on May 1, 1889, he was in possession, as a preemptor under the laws of the United States, of a tract of land containing about 80 acres, and on said date had made all the improvements, and had lived on the land a sufficient length of time, and had done all other acts necessary to entitle him to a patent to the same from the United States; that the defendant company, being a corporation of the territory of Washington, on said date entered upon and seized a strip of said land 50 feet in width,

and appropriated it for railroad purposes, without the consent of the plaintiff, and without having compensated him therefor; and that the entry upon and seizure by the defendant of the land was under and pursuant to the laws of the territory of Washington authorizing railroad companies to appropriate land for right of way for railroad tracks.

We have judicial knowledge that the authority of the territory to legislate in respect to the right of a territorial railroad corporation to enter upon the public lands of the United States was derived from the act of congress entitled "An act granting to railroads the right of way through the public lands of the United States," approved March 3, 1875 (18 Stat. 482), whereby the right of way through the public lands of the United States was granted to any railroad company duly organized under the laws of any state or territory.

The plaintiff's complaint, therefore, discloses the case of a contest between a settler claiming title under the laws of the United States and a railroad company claiming a right under an act of congress; and of such a case the circuit court for the district of Washington clearly had jurisdiction. Doolan v. Carr, 125 U. S. 620, 8 Sup. Ct. 1228; Cooke v. Avery, 147 U. S. 375, 13 Sup. Ct. 340.

Passing from the question of jurisdiction, we come to the contention of the plaintiff in error that Ziegler, as a mere settler upon lands of the United States, although with an intention to obtain a title to the same under the pre-emption laws, did not have such a vested interest in the land as would avail against the railway company in asserting its right of way conferred by the act of congress.

An answer to this question is furnished by the case of Railroad Co. v. Osborn, 160 U. S. 103, 16 Sup. Ct. 219, where it was held that a railroad company whose road is laid out so as, under the provisions of the act of March 3, 1875, to cross a part of the public lands, cannot take part thereof, in the actual possession and occupation of a settler who is entitled to claim a pre-emption right thereto when the proper time shall come, and who has made improvements on the land so occupied by him, without making proper compensation therefor.

The court based its conclusion in that case upon the language of the third section of the act, which is as follows: "That the legislature of the proper territory may provide for the manner in which private lands and possessory claims on the lands of the United States may be condemned, and when such provision shall not have been made, such condemnation may be made in accordance with section three of the act entitled 'An act to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific Ocean,' &c., ap proved July 1, 1862."

And it was held that the right of a settler in possession of unsurveyed lands of the United States, who had made improvements with the intention of procuring a title under the pre-emption laws as soon as the same

should be surveyed by the government, was a possessory claim within the meaning of the statute, for which compensation must be made by a railroad company seeking to appropriate a part of it for its tracks.

The final contention on behalf of the plaintiff in error is that the trial court erred in holding and deciding that the words "possessory claims," used in said act of congress, were intended to protect more than the improvements of a settler, and thus, in effect, holding and deciding that the settler was entitled to receive pay for the land as though he was the owner in fee.

Even if it were the law, as is assumed in this contention, that the plaintiff, as the holder of a possessory claim, was not entitled to the same measure of compensation as if he had secured his patent from the United States, it would be difficult to convict the trial judge of any error in that respect. In the charge the judge instructed the jury as follows: "As I have said, the court holds the plaintiff to be the owner of the land, but I do not wish to be understood by that saying that he was then the owner in fee; that he had a title in fee, or other rights than such as belonged to a settler under the preemption law of the United States, which gave him a possessory right and a vested interest in the property, so that no part of it could be lawfully taken from him without compensation being paid for it; and in determining the amount of damages to be awarded to him you will take into consideration the condition the title was in at the time the road was built, and award him the value of the property as you find it to be, considering the title to be involved as it was by reason of the matter being undetermined in the land department as to his right to it, and there being a contest, and that he was obstructed in obtaining his patent to it by reason of a dispute as to its right. Now, taking that into account, you will award him such amount of damages as will compensate him for so much of the land as the railroad company has appropriated for the right of way, and for whatever injurious effect the road may have caused to the land which he owned, the balance of the eighty-acre tract described in his complaint."

Under this instruction the railroad company would seem to have received the benefit of any distinction that could be fairly made between a possessory title and one that had natured into a patent. But upon the facts disclosed by this record we do not think that the railroad company was entitled to the benefit of such a distinction. While it is true that at the time when the company took possession of the plaintiff's land the latter had not yet received his patent, but had only made the final proofs, and filed the same in the land office of the United States, and had tendered the purchase price thereof, and had demanded from the register and receiver of said land office a final receipt evidencing his

entry of and payment for said land, yet it further appears that before the plaintiff brought this suit his purchase money had been accepted, and a patent from the United States for the said tract of land had been duly executed and delivered to him. The plaintiff, then, having been in possession of the land in question, and having done and performed all that the law required to give him a right to a patent, before the railroad company seized the land, we think the grant of the patent subsequent to such seizure, but before the bringing of the suit, operated to confer upon the plaintiff the right to demand and recover damages as the owner of the fee. The railroad company, having taken possession without the consent of the owner, and not having instituted proceedings to condemn, was a trespasser, and liable to indemnify the plaintiff in respect to his possession and title, as they were shown to exist at the time the suit was brought.

To avoid possible misunderstanding, it may be observed that, as mentioned by the circuit court of appeals, this case arose under section 2456 of the Code of Washington territory, which authorized any corporation organized for the construction of a railroad, canal, or bridge to take lands, but required "compensation to be made to the owner thereof, irrespective of any increased value thereof by reason of the proposed improvement by such corporation." See 15 U. S. App. 478, 9 C. C. A. 548, and 61 Fed. 392.

The judgment of the circuit court of appeals is affirmed.

(167 U. S. 43)

DAVIS v. COMMONWEALTH OF MASSA-
CHUSETTS.
(May 10, 1897.)
No. 229.

CONSTITUTIONAL LAW-FREE SPEECH-USE OF

PARKS.

A city ordinance providing that no person shall make any public address in any of the public grounds of the city, "except in accordance with a permit from the mayor," does not violate the fourteenth amendment to the constitution of the United States.

In Error to the Superior Court of the County of Suffolk, State of Massachusetts.

It was charged against the plaintiff in error, in the municipal court of the city of Boston, that "in and upon certain public grounds of said city, within said district, called the 'Common,'" he "did make a public address, the same not being then and there in accordance with a permit from the mayor of said city, against the peace of said commonwealth, the form of the statute of said commonwealth, and the revised ordinance of said city in such cases made and provided."

The ordinance claimed to be violated was section 66 of the Revised Ordinances of the City of Boston (1893), and reads as follows:

"Sec. 66. No person shall, in or upon any of the public grounds, make any public address,

discharge any cannon or firearm, expose for sale any goods, wares or merchandise, erect or maintain any booth, stand, tent or apparatus for the purposes of public amusement or show. except in accordance with a permit from the mayor."

The proceedings were removed to the superior court of the county of Suffolk, where the accused renewed a motion which he had interposed in the municipal court to quash the complaint. The grounds assigned in support of this motion were seven in number, and, among other objections, it was substantially asserted that the ordinance violated rights alleged to be secured to the accused by the constitution of the state, and by the fourteenth amendment to the constitution of the United States. The motion to quash being overruled, and an exception noted, the accused was tried before the court and a jury.

At the trial the government put in evidence the ordinance heretofore referred to, and called the attention of the court to sections 35 and 39 of chapter 448 of the acts passed by the legislature of Massachusetts in the year 1854, which sections are as follows:

"Sec. 35. All other powers heretofore by law vested in the town of Boston or in the inhabitants thereof as a municipal corporation, or in the city council of the city of Boston, shall be and hereby are continued to be vested in the mayor, aldermen and common council of the said city, to be exercised by concurrent vote, each board, as hereby constituted, having a negative upon the proceedings of the other, and the mayor having a veto power as hereinafter provided.

"More especially they shall have power to make all such needful and salutary by-laws and ordinances not inconsistent with the laws of this commonwealth as towns by the laws of this commonwealth have power to make and establish, and to annex penalties not exceeding fifty dollars for the breach thereof, which by-laws and ordinances shall take effect and be in force from and after the time therein respectively limited without the sanction or confirmation of any court or other authority whatsoever.

"Sec. 39. The city council shall have the care and superintendence of the public buildings, and the care, custody and management of all the property of the city, with power to lease or sell the same except the common and Faneuil Hall. And the said city council shall have power to purchase property, real or personal, in the name and for the use of the city, whenever its interest or convenience may in their judgment require it."

In behalf of the accused, 11 instructions were requested to be given to the jury, all of which were refused, and exceptions were reserved to such refusal. But one of these requested instructions set up alleged rights under the constitution of the United States, as follows:

"(10) That said ordinance, and the proceedings under said ordinance and in enforcement

thereof, are in conflict with the constitution of the United States, and the first section of the fourteenth amendment thereof; that the power given to the mayor of the city of Boston by said ordinance is in derogation of the rights secured to the defendant by said amendment, and said ordinance is null and void."

There was a verdict of guilty. The exceptions taken during the trial were certified to the supreme judicial court of the commonwealth, where they were overruled. 162 Mass. 510, 39 N. E. 113. The superior court sentenced Davis to pay a fine and the costs of the prosecution, and the cause was brought here for review.

James F. Pickering, for plaintiff in error. Hosea M. Knowlton, for defendant in error.

Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.

In the brief of counsel for plaintiff in error, many presumed errors are elaborately discussed, all of which, when analyzed, rest on the assumption that there was a right in the plaintiff in error to use the common of the city of Boston free from legislative or municipal control or regulation. It is argued that:

"Boston Common is the property of the inhabitants of the city of Boston, and dedicated to the use of the people of that city and the public in many ways; and the preaching of the gospel there has been, from time immemorial to a recent period, one of these ways. For the making of this ordinance in 1862, and its enforcement against preaching since 1885, no reason whatever has been or can be shown."

The record, however, contains no evidence showing the manner in which the ordinance in question had been previously enforced, nor does it include any proof whatever as to the nature of the ownership in the common from which it can be deduced that the plaintiff in error had any particular right to use the common apart from the general enjoyment, which he was entitled, as a citizen, to avail himself of along with others, and to the extent only which the law permitted. On the contrary, the legislative act and the ordinance passed in pursuance thereof, previously set out in the statement of facts, show an assumption by the state of control over the common in question. Indeed, the supreme judicial court, in affirm ing the conviction, placed its conclusion upon the express ground that the common was absolutely under the control of the legislature. which, in the exercise of its discretion, could* limit the use to the extent deemed by it advisable, and could and did delegate to the municipality the power to assert such authority. The court said:

"There is no evidence before us to show that the power of the legislature over the common is less than its power over any other park dedicated to the use of the public, or over public streets, the legal title to which is in a city or town. Lincoln v. City of Boston, 148