Hannibal & St. Joseph Railroad v. Moore

Currier, Judge, delivered the opinion of the court. The opinion of the court, delivered in this cause when it was previously here, embodies a statement of the main facts exhibited in the present record. (37 Mo. 338.) It is therefore unnecessary to repeat them here. The point now pressed upon our attention relates to the supposed effect upon the plaintiff’s title of the non-recording in Linn county of the map of lands taken by the plaintiff in that county. The act of September 20, 1852 (R.R. Laws, 117, § 7), directed the recording of such map.in the county where the lands- taken were situated, and it is insisted that the failure to cause such record to be made was a fatal omission. When this case was previously in this court, it was decided that the act of Congress of June 10, 1852 (10 U. S. Stat. at Large, 8) and the act of the Legislature of this State, of September 20, 1852, amounted to a legislative grant of the even-numbered sections of land within six miles of the line of the [444] plaintiff’s railroad, as soon as the lands were designated by a definite location of the road in accordance with these acts, unless such lands had been previously sold by the United States, or some pre-emption right had been acquired therein. No question is made- as to the location of the road; nor is it questioned that the land sued for is'included within the grant; nor is it urged that the land had been sold by the United States, or that any right of pre-emption had attached to it; nor is it disputed that the plaintiff’s proofs made a prima facie case. The defense rests upon the single fact of the non-recording of the aforesaid map in the county of Linn. Until such record was made, it is insisted that no title vested in the plaintiff; and further, that proof of the fact of the non-recording destroyed the plaintiff’s prima facie case. The objection taken is not available to the defendant. What might be its effect under a different state of facts, it is not necessary to inquire. The defendant does not fall within the exception stated in the former decision"! He sets up no rival claim or title. He does not pretend to hold under the United States, or as pre-emptor, or as having succeeded to the rights of a pre-emptor. He stands on his naked possession. As against him, the plaintiff’s prima facie case must prevail. With the concurrence of the other judges, the judgment will be affirmed.