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Statement of the Case.

and, on the 27th day of May, 1889, was returned as served on the said defendants, by the delivery of a copy thereof to their authorized agent. On May 31, 1889, the separate answer of the Coeur d'Alene Railway and Navigation Company was filed, denying the plaintiff's title, and claiming that defendant had, in good faith, and without any knowledge that the plaintiff claimed any interest therein, entered into possession of the described land and, in the belief that it was the owner thereof, had constructed thereon its railroad and its depot, at an expense exceeding seven thousand dollars; that the plaintiff knew that the defendant was constructing its railroad and depot as aforesaid, and permitted the same to be done without making any claim to said premises, wherefore defendant claimed judgment that the plaintiff should take nothing by the action; that the plaintiff should be declared to be estopped from claiming title to said premises; and that the defendant should have such other and further relief as should be just and equitable.

On the 3d day of July, 1890, by virtue of an act of Congress of that date, the said Territory of Idaho became a State; and on August 27, 1890, the defendants filed a petition in the District Court of the First Judicial District of the State of Idaho, praying for the removal of said case to the Circuit Court of the United States, Ninth Circuit, in and for the District of Idaho; and the case was so proceeded in that, on December 6, 1892, a final judgment was entered, adjudging that the plaintiff, the Washington and Idaho Railroad Company, should take nothing by the action, and that the defendant, the Cour d'Alene Railway and Navigation Company, should have judgment against the said plaintiff for its costs.

The trial in the Circuit Court was by the court, a jury having been waived by both parties. The court made the following findings of facts:

"First. That on the 6th day of July, 1886, the defendant, the Coeur d'Alene Railway and Navigation Company, filed its articles of incorporation in the office of the secretary of the Territory (now State) of Montana, and also filed in the office of the county clerk and recorder of the county of Lewis

Statement of the Case.

and Clarke, in said Territory, a certified copy of its said articles of incorporation, which articles of incorporation are, in words and figures, following, to wit:

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"We, Daniel C. Corbin, Samuel T. Hauser, Anton H. Holter, of the city of Helena, in the county of Lewis and Clarke, Territory of Montana; Stephen S. Glidden, of Spokane Falls, Washington Territory; James F. Wardner, of Wardner, in the Territory of Idaho; James Monaghan, of Cœur d'Alene, Idaho Territory; and Alfred M. Esler, of said Helena, Montana, do by these presents, pursuant to and in conformity with article 3 of chapter 15 of the Revised Statutes of Montana, entitled "railroad corporations," and all acts supplemental thereto or amendatory thereof, associate ourselves together and form a corporation for the purpose of locating, constructing, maintaining, and operating railroads in the Territories of Montana and Idaho, and to that end we do hereby certify as follows:

"First. The name of such corporation by which it shall be known shall be "The Coeur d'Alene Railway and Navigation Company."

"Second. The termini of said railroad are to be located in the county of Missoula, Territory of Montana, and in the counties of Kootenai and Shoshone, in the Territory of Idaho, and, if said corporation shall so determine, termini may also be located in the county of Nez Perces, in said Territory of Idaho; said railroad shall pass through said counties of Missoula, Kootenai, and Shoshone, and if said corporation shall so determine, then said railroad shall also pass through said county of Nez Perces, and the general route of said railroad shall be as follows: Commencing at or near the town of Thompson's Falls, in said county of Missoula, or at some convenient point between said Thompson's Falls and the western boundary line of said Territory of Montana; thence running westerly or southwesterly to that certain tributary of Coeur d'Alene River known as the South Fork; thence down the South Fork and Coeur d'Alene River to Old Mission, connecting with steamboats or other water craft, to be owned and

Statement of the Case.

operated by said corporation, said steamboats or other craft to ply between said Old Mission and the town of Cœur d'Alene; and, if said corporation shall so determine, then said railroad shall again commence at said town of Coeur d'Alene, and run northwesterly to Rathdrum, in said county of Kootenai, or such point on the line of the Northern Pacific railroad between Rathdrum and the western boundary of Idaho Territory as said corporation may hereafter determine, with the right and privilege, if said corporation shall see proper, to run a branch or extension of said road in a southerly direction from said Shoshone County to the said county of Nez Perces; said steamboats or other water craft between the points in that behalf above specified to be used in connection with and as constituting a part of said railroad.

"Third. The amount of capital stock necessary to construct such roads, including said connections, is five hundred thousand dollars, divided into five thousand shares of one hundred dollars each.

"Fourth. The principal place of business of said corporation in the Territory of Montana shall be at Helena, in the county of Lewis and Clarke, and principal place of business of said corporation in the Territory of Idaho shall, until otherwise fixed by the board of directors of said corporation, be at Coeur d'Alene, in the said county of Kootenai.'

"Second. That the line of route of the railroad of the said Coeur d'Alene Railway and Navigation Company, as described in said article of incorporation, passes over and includes the ground in controversy in this action.

"Third. That on the 20th day of July, 1886, the defendant, the Cœur d'Alene Railway and Navigation Company, filed in the office of the Secretary of the Interior, at Washington, D. C., a certified copy of its said articles of incorporation, and proofs of its organization under the laws of the Territory (now State) of Montana, which certified copy of articles of incorporation and proofs of organization were duly approved on that day by the honorable Secretary of the Interior.

"Fourth. That in the summer and fall of 1886 the deVOL. CLX-6

Statement of the Case.

fendant, the Coeur d'Alene Railway and Navigation Company, constructed its railroad over said line of route as described in said articles of incorporation, from the said Old Mission up the main Coeur d'Alene River to the town of Kingston, and thence up the South Fork of the Coeur d'Alene River to the town of Wardner Junction, a distance of about fourteen miles; and that in the month of October, 1886, the said defendant, the Coeur d'Alene Railway and Navigation Company, for the purpose of extending its line of railroad, caused a survey to be made for its said line of railroad from said Wardner Junction, up the said fork of the Coeur d'Alene River, over the line described in its said articles of incorporation, through the towns of Wallace and Mullen, and marked the centre line of said road upon the ground by planting stakes at each station at one hundred feet, and at such other points as there were angles in the line, so that the line of route of said road could be readily traced upon the ground, and that the said surveying and marking of said line was completed on the 31st day of October, 1886. That in making said survey the engineers of said Coeur d'Alene Railway and Navigation Company ran three lines through said town of Wallace, called lines A, 'B,' and 'C,' said lines 'A' and 'B' both being on the south side of the South Fork of the Coeur d'Alene River, and the said line 'C' being on the north side of said river, and being the line upon which the railroad of the Coeur d'Alene Railway and Navigation Company was afterwards constructed, and upon the ground now in controversy in this action. That in the month October, 1886, and about one week after the commencement of the said survey by the engineers of the said Cour d'Alene Railway and Navigation Company, W. H. Burrage, an engineer, with a party of assistants claiming to be acting for the plaintiff, commenced surveying a line of route for a railroad from near the town of Wardner, up the South Fork of the Coeur d'Alene River, to the said town of Mullen, and that, in making said survey, the said Burrage and the party assisting him were several days and several miles behind the engineers surveying for the defendant, the Coeur d'Alene Railway and Navigation Company; and that in surveying their

Statement of the Case.

line through the town of Wallace, said Burrage surveyed the same on the north side of said river and over the ground in controversy; and that said Burrage and party also marked their line in a similar manner to what the engineers of the Cour d'Alene Railway and Navigation Company had done, and that said Burrage and party completed their survey on the 5th day of November, 1886, and that said portion of said line run by said Burrage over the ground in controversy was run on the 28th day of October, 1886, and that said line 'C' run by the engineers of the said Coeur d'Alene Railway and Navigation Company over the land in controversy was run on the 29th day of October, 1886; and that all of the parts of the line of the Coeur d'Alene Railway and Navigation Company, except said line 'C,' were run and marked prior to the line run by the said Burrage, said line 'C' being run by the engineers of the Coeur d'Alene Railway and Navigation Company as an amendment after they had completed the survey to the town of Mullen.

"Fifth. That in the summer and fall of 1887 the defendant, the Coeur d'Alene Railway and Navigation Company, extended its road from the town of Wardner Junction over its line of survey, a point about one mile east of the town of Wallace, and over said line 'C,' the ground in controversy in this action, through the town of Wallace; and at all times thereafter, up to and at the time of the commencement of this action, occupied and used the same as a railroad and for railroad purposes; and at the time of the commencement of this action had its roadbed and track, and side tracks and depot thereon, and was using the same exclusively for railroad purposes.

"Sixth. That at all the times above mentioned the lands in controversy, and all other lands along the line of said railroad of the defendant, the Coeur d'Alene Railway and Navigation Company, as described in its articles of incorporation, were unsurveyed public lands of the United States.

"Seventh. That on the 7th day of July, 1886, the articles of incorporation of the plaintiff, the Washington and Idaho Railroad Company, were filed in the office of the secretary of the Territory (now State) of Washington; that by said articles

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