railroad, also ground adjacent to such right of way for station buildings, depots, machineshops, side tracks, turn-outs, and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of road. Sec. 2. That any railroad company whose right of way, or whose track or road-bed upon such right of way, passes through any canon, pass, or defile, shall not prevent any other railroad company from the use and occupancy of the said canon, pass, or defile for the purposes of its road, in common with the road first located, or the crossing of other railroads at grade. And the location of such right of way through any canon, pass, or defile shall not cause the disuse of any wagon or other public highway now located therein, nor prevent the location through the same of any such wagon road or highway, where such road or highway may be necessary for the public accommodation; and where any change in the location of such wagon road is necessary to permit the passage of such railroad through any canon, pass, or defile, said railroad company shall, before entering upon the ground occupied by such wagon road, cause the same to be reconstructed, at its own expense, in the most favorable location, and in as perfect a manner as the original road, provided that such expense shall be equitably divided between any number of railroad companies occupying and using the same canon, pass, or defile. Sec. 3. That the legislature of the proper territory may provide for the manner in which private lands and possessory claims on the public lands of the United States may be condemned; and, where such provision shall not have been made, such condemnation may be made in accordance with section three of the act entitled 'An act (to amend an act entitled "An act") to aid in the construction of a railroad and telegraph line from the Missouri river to the Pacific ocean, and to secure to the government the use of the same for postal, military, and other purposes, approved July 1, 1862,' approved July 2d, 1864.

Sec.

4. That any railroad company desiring to secure the benefits of this act shall, within twelve months after the location of any section of twenty miles of its road, if the same be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land-office for the district where such land is located a profile of its road, and upon approval thereof by the secretary of the interior the same shall be noted upon the plats in said office, and thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way; provided that, if any section of said road shall not be completed within five years after the location of said section, the rights herein granted shall be forfeited as to any such uncompleted section of said road."

It is, in effect, claimed by the appellant that the grant made by the first section of the

act operates in favor of all railroads passing through any lands of the United States, notwithstanding the same may have been taken as a homestead, which shall locate its line of road across said lands at any time before a patent shall be issued for the same; in other words, that a homestead continues to be "public lands of the United States" until a patent issues to the homestead claimant. It may be well doubted whether this question is presented by this record, for the reason that it does not appear that the appellant has filed with the secretary of the interior a copy of its articles of incorporation, and due proof of its organization under the same, as required by the first section of the act; nor does it appear that it ever claimed the benefits of said act, as required in the fourth section, by filing with the register of the land-office of the proper district a profile of its road, or that the same was ever approved by the secretary of the interior. These are plain requirements of the act; and, without entering at large upon their discussion at this time, I think it sufficient to say that, before the appellant could acquire any rights under the act as against one in possession of the land in question, it must show a compliance with its terms. But it is claimed by the appellant that the allegations in the answer that the defendant lawfully entered into and took possession of a strip of land embraced within, and constituting a part of, the tract in the complaint described, for said right of way for its said railroad, and that it did this in pursuance of the act of congress referred to, shows a compliance with said act; but this would be enlarging and extending the allegations of the answer far beyond their scope. Not only so, but the answer is bad, in substance, in failing to allege what the defendant company did by way of compliance with said act. It alleges nothing but legal conclusions. In such case where the right claimed depends entirely on the existence of facts which are not disclosed, the simple fact that the party claimed the right is no evidence of the existence of the necessary facts to confer it. But there is one other objection which, owing to its importance, I think proper to notice. It appears from the bill of exceptions that the plaintiff settled on the land in controversy as a homestead in the month of December, 1886, or January, 1887, and in the month of February, 1887, made the necessary filing, in the proper land-office, of its said settlement and claim. Inasmuch as no patent had been issued for said land, and the plaintiff's right thereto was still possessory, the five years not having expired from the date of the commencement of his residence, the appellant claims that at the time of its entry thereon the same was public land, and within the power of congress to dispose of as it might think fit, and that the grant made by said act of March 3, 1875, is such disposition; and counsel cites the Yosemite Valley Case, 15 Wall. 77, and Frisbie v. Whitney, 9 Wall. 189. Waiving for the present the particular

refusing to give an instruction which, in effect, left that question to the jury. But the defendant also asked the court to give the jury the following instruction, which was refused: "The plaintiff having neither pleaded nor proved any special damages resulting from the alleged frightening of his horses, he can recover nothing from that cause." This instruction was refused, and such refusal was clearly error. It impliedly conceded more to the plaintiff than he was entitled to; that is, it seems to assume that, if the plaintiff had alleged and proved something of that kind, it would have formed a proper basis for a recovery, which may well be doubted. But, whether that is so or not, such a claim was not included in the pleadings, and could not be considered by the jury. Evidence which was properly excepted to was also allowed to go to the jury on this subject, which was also error. The case seems to have been tried, so far as appears, without any very definite rule as to its scope under the pleadings, or the measure of damages, and entirely at variance with what is here said. The judgment appealed from will therefore be reversed, and the cause remanded to the court below for a new trial.

(14 Colo. 327)

DENVER & S. F. Ry. Co. v. SCHOOL-DIST.
No. 22 IN ARAPAHOE COUNTY.1
(Supreme Court of Colorado. Feb. 28, 1890.)
CONDITIONAL CONVEYANCE-SCHOOL LANDS-RAIL-
WAYS EJECTMENT.

1. Lands were granted on condition to be used for school purposes. Afterwards, in the expecta-tion that the school would be removed, but without a contract to that effect, grantor conveyed other lands in lieu thereof, and then conveyed the first lands to defendant's grantor. The school was not removed. Held, that defendant received no title.

2. Under a supposed license from its grantor, defendant entered and began constructing its railroad upon such lands. Shortly after, the school trustees, protesting that the school-district owned the lands, attempted to settle the matter with defendant, and, failing therein, built a fence around them, and notified the contractors not to enter; but the fence was torn down, and the railroad completed. Held, there was no acquies cence by plaintiff to estop it from bringing ejectment.

Commissioners' decision. Appeal from district court, Arapahoe county.

Wells, McNeal & Taylor, for appellant. Enos Miles, for appellee.

school purposes, and that when such use should cease the property should revert to him; that on February 15, 1887, the appellee, not desiring to use the lots longer for school purposes, asked Magnus for other lots, which he on that day conveyed; that, in consideration of such conveyance, appellee agreed to vacate the lots in question, and remove the school-house therefrom, at the close of the term then in session. It is then alleged that Magnus, relying upon appellee's agreement to vacate the premises, on March 2, 1887, conveyed the same to David G. Peabody; that thereafter Peabody conveyed the undivided one-half of said lots to William J. McGavock; that on July 1, 1887, and after the close of the school term, Peabody and, McGavock, relying upon plaintiff's good faith and intention to perform the agreement made with Magnus, gave permission to defendant to enter upon and construct its railway over the strip of land described in the complaint, which was done at a cost of over $1,000. It is then alleged that appellant was not informed that plaintiff intended to use the lots for school purposes; that appellee had notice while the work was in progress that appellant was in possession of the land under the license given by Peabody and McGavock, and gave appellant no notice that it had or claimed any right or interest in the same; that afterwards, and on October 1, 1887, Peabody and McGavock conveyed the premises in question, with other lands, to appellant. It is further averred that some time in September, 1887, after defendant had completed its railroad over the lots mentioned, appellee proposed to "Peabody and McGavock that, if they would convey to plaintiff, in lieu of the second aforesaid site conveyed to it by said Magnus, which had become unacceptable to plaintiff, an acceptable school-site, plaintiff would forthwith remove its school-house thither, and would convey said site conveyed to it by said Magnus to said Peabody and McGavock; and that said Peabody and MeGavock offered to plaintiff, and plaintiff accepted, for its school-site, lots 1, 2, 3, and 4, in block 13, of said Englewood, situate in the said school-district of plaintiff; and said McGavock being then absent from the state, and unable to join in the conveyance of the said last-named lots, plaintiff requested said Peabody to execute to plaintiff, and said Peabody did, to-wit, on the 8th day of September 1887, execute to plaintiff, his written agreement to convey jointly with said McGavock, upon his return to Denver, the said last-named lots to plaintiff, in consideration of one dollar and the removal of plaintiff's school-house; that plaintiff, in disregard of its aforesaid promises and agreements, and after said last-mentioned agreement, wrongfully re-entered upon the lots described in the complaint, and wrongfully reopened its school in said school-house," etc. No more

of the answer need be recited. The affirmative defenses were put in issue by the replication, and upon the issues thus formed a

trial was had, which resulted in a judgment for the appellee for possession of the premises.

The evidence tends to show that on September 15, 1880, Peter Magnus conveyed the premises above described, by quitclaim deed in the usual form, to the appellee. The deed contains the following covenant: "It is hereby agreed that the said above-described property is to be used for school purposes, and that, whenever it shall cease to be so used, the said property shall revert to the grantor herein, his heirs and assigns, and this said agreement is hereby declared to be a covenant running with the said lots." The premises had been occupied for school purposes prior to the execution and delivery of the deed, and were so occupied after the deed was made, and at the time the action was brought. Some time in the year 1886 some steps appear to have been taken to locate the schoolhouse in some other part of the district. In that year Peter Magnus conveyed a tract of land, called the "Public Square in Petersburg," to the school-district, for use in lieu of the premises in question. Under what circumstances this conveyance was made does not appear. The premises were never occupied by appellee for any purpose. The minutes of the meetings of appellee, which were introduced in evidence by appellant, show that on May 16, 1887, at an adjourned meeting of the school-district, the question whether the school-house should be located in the center of the district, or in the public square of Petersburg, was voted upon. "The highest number of votes carried it to the center; being 10 for, and 6 against." At the same meeting a committee was appointed, consisting of Thomas Skerrit, R. M. St. Clair, and Adolph Candler, to locate the school-house site as near the center of the district as practicable. On May 26, 1887, at a meeting of the school-district, R. M. St. Clair was elected a director or trustee in place of Thomas Skerrit.. The board then consisted of Robert M. St. Clair, Adolph Candler, and Thomas Lockhart. March 2, 1887, Magnus conveyed the premises in question, with other lands, to Peabody. After the appointment of the committee to select a school-site, Skerrit, as one of that committee, had some talk with Peabody about another site for the school-house, which resulted in an agreement for the conveyance of other lots, but the precise terms of that agreement nowhere appear. The negotiations between Skerrit and Peabody seem to have taken place some time in June, 1887. one of the school directors took any part in the matter. Whether Skerrit reported the negotiations and agreement is not disclosed. The agreement was never acted upon by appellee in any way, and no conveyance of the lots selected was ever made by Peabody, pursuant to the agreement. Immediately after the negotiations between Peabody and Skerrit, Peabody gave permission to appellant to construct its railway over the premises in

No

controversy. This permission seems to have been given with the understanding that the school-house was to be removed, but no agreement to that effect had been made by any one having authority to represent the appellee. Neither does it appear that any

one of the school trustees had notice that such an agreement had been made, or that permission had been given by Peabody to appellant to enter upon the premises. Some time in July or August, but at what time the record does not clearly disclose, the employes of appellant entered upon the premises and began work. Very soon after entry was made, at an informal meeting, the school trustees named determined to take the steps necessary to protect the property. Lockhart went to Denver, and called upon Manning, the right of way agent, to ascertain by what right appellant had taken possession of the property. The interview with Manning resulted in nothing except the assertion by him of a claim of right under Peabody, and the promise to meet the school trustees at the school-house, upon a day named, to adjust the matter. Manning failed to keep the engagement, and thereupon a wire fence was built about the premises. When the contractors came to lay the ties and iron, they were notified not to enter upon the land. The notice was disregarded, the fence was torn down, the grading completed, and the ties and iron laid. Before this suit was brought, another attempt appears to have been made by appellee to adjust the difference, and avoid litigation. The trustees visited Manning again. They were willing to accept other lots from Peabody, but they declined to surrender possession of the land in question, unless the expense of removing the schoolhouse was paid in advance. Manning refused to advance the sum of $225, which was the sum demanded, but undertook to pay for removing the building after the work had been done. This proposition was not satisfactory to appellee, and it refused to accept it.

The first question to be determined is whether the license given by Peabody to appellant to enter upon the land in controversy conferred any right of entry, and whether the deed subsequently made by Peabody and McGavock vested appellant with any interest in the premises whatever. The legal effect of the deed first made by Magnus to appellee is clearly apparent. It was in form an ordinary quitclaim deed, and divested the grantor of all his right, title, and interest in the land. The covenant providing that, when the premises should be no longer used for school purposes, the title should revert to the grantor, was clearly a limitation. The title conveyed, therefore, was a qualified fee. Whenever the event might occur upon which the limitation was based, the estate of appellee would immediately cease. Nevertheless, until the happening of that event, appellee had the same right in, and the same dominion over, the estate that it would have.