Argument for Appellant.

by our statute and claims title adversely to the plaintiff and all others except the United States.

APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. W. W. Woods, Judge.

Action to have title quieted to certain land and to recover compensation for a railway right of way. Judgment for defendants. Affirmed.

Featherstone & Fox, for Appellant (E. J. Cannon and Cullen & Dudley, of Counsel).

The running of the statute of limitations was suspended during the pendency of the contest between the respondents and appellant in the land department of the United States. (St. P. M. & M. Ry. Co. v. Olson, 87 Minn. 117, 94 Am. St. 693, 91 N. W. 294; Braun v. Sauerwein, 10 Wall. 218, 19 L. ed. 895; Gaines v. Thompson, 7 Wall. 347, 19 L. ed. 62; Johnson v. Towsley, 13 Wall. 72, 20 L. ed. 485; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800; Cosmos Exp. Co. v. Gray Eagle Oil Co., 112 Fed. 4, 7, 50 C. C. A. 79 et seq., and cases cited, 190 U. S. 301, 308, 23 Sup. Ct. 692 et seq.; Craig v. Leitersdorfer, 123 U. S. 189, 210, 8 Sup. Ct. 85, 31 L. ed. 114 et seq.; Martinson v. Marzolf, 14 N. D. 301, 103 N. W. 937; Matthews v. O'Brien, 84 Minn. 505, 88 N. W. 12; McHenry v. Nygaard, 72 Minn. 2, 74 N. W. 1106; Zimmerman v. McCurdy, 15 N. D. 79, 106 N. W. 125, 12 Ann. Cas. 29; Le Fevre v. Amonson, 11 Ida. 45, 81 Pac. 71.)

Since the jurisdiction to determine what lands passed under the grant was vested in the interior department, equally with the jurisdiction to determine the better right to public lands as between contesting claimants, the rule of law prohibiting courts from taking jurisdiction of any cause which would infringe upon the land department's jurisdiction is as applicable to the contest between the appellant and a homestead, claimant as it is to a contest between two home. stead claimants. (Litchfield v. Register and Receiver, 9 Wall. 575, 19 L. ed. 681; S. C. & St. P. R. Co. v. United States, 34

Argument for Respondents.

Fed. 835; Phoenix & E. R. Co. v. Arizona E. P. Co., 9 Ariz. 434, 84 Pac. 1097; Humbird v. Avery, 110 Fed. 465, 195 U. S. 480, 502, 25 Sup. Ct. 123, 49 L. ed. 286; Brown v. Hitchcock, 173 U. S. 473, 19 Sup. Ct. 485, 43 L. ed. 772; Northern Lumber Co. v. O'Brien, 124 Fed. 819; French v. Fyan, 93 U. S. 169, 23 L. ed. 812; Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. 985, 30 L. ed. 1039; Barden v. N. P. R. R. Co., 154 U. S. 288, 14 Sup. Ct. 1030, 38 L. ed. 992.)

It is a necessary conclusion from the foregoing premises that the pendency of the contest between the appellant and the respondents before the officers of the interior department from 1902 to 1908 precluded the running of the statute of limitations in favor of the respondents and against the appellant. (St. P. M. & M. Co. v. Olson, 87 Minn. 117, 94 Am. St. 693, 91 N. W. 294; Delacey v. Commercial Trust Co., 51 Wash. 542, 130 Am. St. 1112, 99 Pac. 575; Blumer v. Iowa R. Land Co., 129 Iowa, 32, 113 Am. St. 444, 105 N. W. 342, 206 U. S. 482, 27 Sup. Ct. 769, 51 L. ed. 1148; Frink v. Hoke, 35 Or. 17, 56 Pac. 1093.)

The possession pleaded by the respondents was not adverse within the meaning of the statute, nor sufficient to set the statute of limitations in motion in their favor. (Reynolds v. Willard, 80 Cal. 605, 22 Pac. 262; Tuffree v. Polhemus, 108 Cal. 670, 41 Pac. 806; Altschul v. O'Neill, 35 Or. 202, 57 Pac. 95, and cases cited; Litchfield v. Sewell, 97 Iowa, 247, 66 N. W. 104 et seq.; Doe v. Beck, 108 Ala. 71, 19 So. 802; Delacey v. Commercial Trust Co., 51 Wash. 542, 130 Am. St. 1112, 99 Pac. 574; Flewelten v. Randall, 32 Tex. Civ. 361, 74 S. W. 49; Port Townsend v. Lewis, 34 Wash. 413, 75 Pac. 982.)

C. W. Beale, Walter H. Hanson and James A. Wayne, for Respondents.

The grant to the Northern Pacific Railroad Company to said lot No. 10 was a grant in praesenti, and the legal title thereto passed to said company on December 12, 1882, the date of the filing of its map of definite location of its railroad. (New York Indians v. United States, 170 U. S. 1, 17, 18 Sup.

Opinion of the Court-Sullivan, C. J.

Ct. 531, 42 L. ed. 927; Iowa R. R. Co. v. Blumer, 206 U. S. 482, 491, 27 Sup. Ct. 769, 51 L. ed. 1148; Balderston v. Brady, 17 Ida. 567, 107 Pac. 498.)

The Northern Pacific Railroad Company was entitled to the possession up to the time that this lot was conveyed to the appellant in 1896, and might have maintained an action of ejectment from the date of the filing of its map of definite location up to the time of the transfer in 1896 to appellant; and adverse possession could commence at the date of filing map of definite location of railroad. (Toltec Ranch Co. v. Babcock, 24 Utah, 183, 66 Pac. 879.)

The statute of limitation would not be suspended or tolled during the time of pendency of any contest before the interior department, and the officers of the department are without jurisdiction to hear or determine any controversy as to title of land from date of definite location of railroad, and subsequent to that time controversies concerning the land should. be submitted to the courts for determination. (Mo. Valley Land Co. v. Weise, 208 U. S. 234, 28 Sup. Ct. 294, 52 L. ed. 466; Sage v. Rudnick, 91 Minn. 325, 98 N. W. 89, 100 N. W. 106; So. Pac. R. Co. v. Whitaker, 109 Cal. 268, 41 Pac. 1083; Northern Pac. R. Co. v. Kranich, 52 Fed. 911; 9 Am. & Eng. Ency. of Law, 1st ed., 58; Edwards v. University, 1 Dev. & B. Eq. (N. C.) 325, 30 Am. Dec. 170.)

A claim of right which is subservient to the government and hostile to all others does not rob the adverse claimant of his right under the statute of limitations. (Blumer v. Iowa Land Co., 129 Iowa, 32, 113 Am. St. 444, 105 N. W. 342; Toltec Ranch Co. v. Babcock, supra; Northern Pac. R. Co. v. Kranich, supra; Allen v. McKay, 120 Cal. 332, 52 Pac. 828.)

SULLIVAN, C. J.-This is an appeal from the judgment of the district court adjudicating that the respondents, who are defendants, E. E. Pyle and Aletha J. Pyle, husband and wife, are the owners in fee of lot 10 in sec. 5, Tp. 45 N., Range 3 E., of Boise Meridian, and adjudging that the appellant, the Northern Pacific Railway Co., has no right, title or interest in or right of possession to said lot, and that the respond

Opinion of the Court-Sullivan, C. J.

ents are entitled to the payment of the sum of $9,200, awarded by the commissioners to be paid by the, Chicago, Milwaukee & St. Paul Railway Co. for a railway right of way over said lot.

On the 9th of March, 1908, the plaintiff in the original action, the Chicago, Milwaukee & St. Paul Railway Co. of Idaho, instituted proceedings in the district court of Shoshone county against the respondents Pyle and the Northern Pacific Railway Co. to condemn a strip of land extending across said lot 10 for a right of way for its proposed railway. Thereafter the defendants Pyle filed their answer and amended answer to said complaint. The Northern Pacific Railway Co., one of the defendants in said proceeding, refused to plead to the amended complaint, and thereafter proceedings were had which resulted in the appointment of three commissioners to assess and award the damages sustained by the defendants. For the facts in that proceeding, reference is made to the case of E. E. Pyle et ux. v. Woods, 18 Ida. 674, 111 Pac. 746, decided on November 26, 1910, by this court.

It appears that the Northern Pacific Railway Co. took no part in said condemnation proceedings whatever and offered no evidence as to any damages that would result to it from the Milwaukee Company's procuring such right of way, and said commissioners awarded to the said Pyles damages in the sum of $9,500, which was found they had sustained by reason of such condemnation and appropriation. Said commissioners also found that the Northern Pacific Railway Co. would not sustain any damages whatever. Thereafter on the 1st of May, 1908, on an ex parte application and while said Northern Pacific Co. was still in default, it secured an order from the trial court enjoining and restraining the payment of $9,200 of the $9,500 awarded as aforesaid. Repeated applications were made by the Pyles for an order of the court requiring the payment to them of said award, which the court failed to grant, and on the 14th day of February, 1910, nearly two years after said award was made, the court ordered said Northern Pacific Railway Co. to file its complaint herein, showing by what right it claimed said award that had been

Opinion of the Court-Sullivan, C. J.

made to said defendants Pyle. Upon the order of the trial court, the Northern Pacific Railway Co. filed its answer and cross-complaint in which it was alleged, among other things, that by act of Congress of the United States, approved July 12, 1864, entitled "An Act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound, on the Pacific Coast, by the northern route," and the acts and joint resolutions of Congress supplemental thereto and amendatory thereof, there was granted to the Northern Pacific Railroad Co. every alternate section of public land, not mineral, designated by odd sections, to the amount of twenty alternate sections per mile on each side of said railroad as said company may adopt, and whenever on the line thereof the United States has full title, not reserved, sold, granted or otherwise appropriated and free from preemption and other rights, at the time said road is definitely fixed and the plat thereof filed in the office of the commissioners of the general land office; that the line of said Northern Pacific Railroad opposite lot 10 was definitely fixed and the plat thereof filed in the office of the commissioner of the general land office, December 12, 1882; that thereafter the said Northern Pacific Railroad Co. duly constructed its said. railroad and telegraph line over and along said line of definite location, and the same having been examined by the commissioners appointed by the President of the United States for that purpose, was reported by said commissioners to have been so constructed and completed in the manner required by said act of Congress, and said railroad and telegraph line was thereupon accepted by said President of the United States; that said lot 10 is within less than forty miles of the line of said Northern Pacific Railroad and is within the limits of said grant; that said land is nonmineral in character, as appears by record in the United States land office for the district in which said land is located, and in the office of the commissioner of the general land office, and petitioner avers that said land was at the date of the grant to said Northern Pacific Railroad Co. and at the date of the filing of the map of definite location by said railroad company in the office of the