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Dissenting Opinion
Clifford

United States Supreme Court

76 U.S. 95

Railroad Company  v.  Smith

ERROR to the Supreme Court of the State of Missouri.

The Hannibal and St. Joseph Railroad Company brought ejectment against Smith, in one of the county courts of Mis souri, to recover possession of certain lands.

The title of the railroad company was deduced from an act of Congress, entitled, 'An act granting the right of way to the State of Missouri, and a portion of the public lands to aid in the construction of certain railroads in said State,' approved June 10th, 1852. This act granted to the State of Missouri, for the purpose of making the railroad, every alternate section of land designated by even numbers on each side of the road.

The legislature of Missouri, in September, 1852, accepted the grant, and by statute vested the land granted in the railroad company.

Such was the title of the plaintiff.

That of the defendant, Smith, was deduced from the same 'swamp-land grant,' the act of Congress, namely, which is set out in the statement of the last reported case, approved September 28th, 1850, by which Fremont County in that case held its lands. But in this case the railroad interest was the actor; not as in the last one a defending party merely, with a swamp-land grantee in the position of assailant.

On the trial below of the present cause the defendant introduced evidence against objection tending to prove that the lands in suit were wet and unfit for cultivation at the date of the swamp-land act of 1850; and this was his title. No evidence was introduced by him tending to show that the land in suit was ever certified as swamp land by the Secretary of the Interior, or that the same was ever patented as such to the State of Missouri. Nor was this pretended. In fact the correspondence of the land department of the United States showed that the secretary had no sufficient evidence to enable him to make such certificates.

The court in which the suit was brought gave judgment for Smith, the defendant, and the railroad company appealed to the Supreme Court of Missouri. That court affirmed the judgment of the court below, and the railroad company now brought the case here.

Messrs. James Carr and W. P. Hall, for the plaintiff in error; Mr. Drake, contra.

Mr. Justice MILLER delivered the opinion of the court.

NotesEdit

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).