Messrs. C. W. Bunn and James B. Kerr for plaintiff in error.
No brief was filed for defendants in error.
Mr. Chief Justice Fuller delivered the opinion of the court:
This was anaction of ejectment brough
This was an action of ejectment brought in the superior court of Kittitas [197 U.S. 9, 10] county, Washington, to recover possession of part of its right of way, the land being partly within and partly without a right of way of 200 feet in width. Defendants asserted title by virtue of a homestead application, filed May 24, 1883, final proof July 12, 1888, and patent September 27, 1889; and adverse possession for the period named in the statute of limitations. Judgment was entered in favor of the railway company, and defendants carried the case by appeal to the supreme court of Washington, which held the statute of limitations applicable, reversed the judgment below, and remanded the case with directions to dismiss the action. 28 Wash. 353, 92 Am. St. Rep. 840, 68 Pac. 882.
The grant of right of way, unlike the land grant, was effective from the date of the act, and the fact that the railroad was not built until after defendants' entry does not affect the disposition of the case. St. Joseph & D. C. R. Co. v. Baldwin, 103 U.S. 426 , 26 L. ed. 578; Bybee v. Oregon & C. R. Co. 139 U.S. 663, 679 , 35 S. L. ed. 305, 308, 11 Sup. Ct. Rep. 687.
The judgment must be reversed on the authority of Northern P. R. Co. v. Townsend, 190 U.S. 267 , 47 L. ed. 1044, 23 Sup. Ct. Rep. 671, and remanded for further proceedings not inconsistent with the opinion of this court in Northern P. R. Co. v. Ely, 197 U.S. 1 , 25 Sup. Ct. Rep. 302, 49 L. ed.--.
Mr. Justice Harlan dissented.