Donohoe v. El Paso & Southwestern Railroad

CAMPBELL, J. — Appellee is a railroad corporation organized under the laws of the territory, and has the power of eminent domain. In conformity with its charter rights it constructed and is operating a railroad within this territory. Appellant seeks in this action to recover the possession of a strip of land over which the railroad is constructed, rent and profits for its detention for a period of five years, and for injuries to the land so occupied. The strip of land in controversy forms a part of appellant’s homestead entry, which he made upon the public lands in December, 1900, and for which he received a patent in 1903. Appellant testified at the trial, and the court found, that the first time he saw the land in question was in June, 1901, and that there was a railroad grade upon it at that time, and “that the plaintiff saw and had knowledge of said right of way and railroad grade, and that the same was the right of way and railroad grade of [295] the El Paso and Southwestern Eailroad Company, the defendant, and that said grade was built upon said right of way and completed over a part of it, and tracks and siding were laid upon said grade. The grade and track were completed just about the north end of said tract of land, and later the grade and railroad track were laid through and completed. After the railroad was completed the plaintiff saw it, and had knowledge of its existence, and since then the said railroad company has been operating and running its trains over said right of way and lands, with the full knowledge of plaintiff, and to the knowledge of plaintiff said railroad company has occupied said right of way, running, and operating its trains thereover, for three years.” Erom a judgment in favor of defendant, plaintiff has appealed. The only question requiring our attention upon the record as presented is whether ejectment or trespass may be maintained, and we have no hesitancy in holding that they may not be. This has been determined so authoritatively, that discussion by us is wholly unnecessary. In Northern Pacific R. R. Co. v. Smith, 171 U. S. 260, 18 Sup. Ct. 794, 43 L. Ed. 157, it is said: “This subject was fully considered by this court in the ease of Roberts v. Northern Pacific R. R., 158 U. S. 1, 15 Sup. Ct. 756, 39 L. Ed. 873, where, upon the foregoing authorities and others, it was held that, if a land owner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with a statute requiring either payment by agreement or proceedings to condemn, remains inactive and permits it to go on and expend large sums in the work, he is estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and will be restricted to a suit for damages.” See, also, City of New York v. Pine, 185 U. S. 93, 22 Sup. Ct. 592, 46 L. Ed. 820. Appellant complains of rulings of the court admitting and rejecting evidence, but we see no merit in his objections. He also complains that there is no evidence in the record to justify some of the findings of fact made by the court; but, since it appears from the abstract of record he has incorporated in it only a small portion of the testimony, we cannot pass upon the merits of his contention. Where an appellant fails so completely to comply with the rules of the court, we will not make an excursion into the reporter’s transcript of testimony [296] to supply what lie has deliberately omitted. Liberty Mining & Smelting Co. v. Geddes (Ariz.), 90 Pac. 332. The judgment of the district court is affirmed. KENT, C. J., and SLOAN and NAVE, JJ., concur.