State v. Cording

162 N.W. 652, 101 Neb. 243, 1917 Neb. LEXIS 89

• Court: Nebraska Supreme Court
• Decided: May 5, 1917
• Docket: No. 19540
• Status: Published

Opinions

Sedgwíck, J.

The state brings this original action in this court to recover 80 acres of land. In 1872 the state conveyed a large tract of land “for works of general improvement” to the Omaha & Southwestern Railroad Company, pursuant to and in harmony with the act of congress under which the lands were granted to the state. The deed from the state to the railroad company conveyed lands adjoining section 7, and described seven-eighths of the section by particular descriptions, omitting one-half of one quarter of the section, being about 80 acres, and the land here in controversy. The deed stated that the land conveyed by the state was 626.18 acres, the number of acres shown by the government survey to be included in the entire section.

The question might well have been raised whether this 80 acres of land that is now in question was intended to be conveyed and was omitted by mistake. The state for about 40 years construed this deed as conveying the entire section. During that time this defendant purchased this 80 acres of land, and took a conveyance purporting to convey the title, and had held it under this color of title for about 20 years. This 80 acres of land was assessed for taxation prior to 1889 and in that year, and continuously from the year 1889 until the present time. The state has received the benefit of these taxes, and all of the officers of the state from the time of th.e conveyance by the state in 1872 knew that in construing its deed as a conveyance of the entire section the state, would be able to collect taxes thereon, and has continued in various ways to construe its deed as conveying this 80 acres of land in question, and has acquiesced in the construction which this defendant and his grantors placed upon the deed and upon the intention of the state in executing the same. In State of Michigan v. Jackson, L. & S. R. Co., 69 Fed. 116, the court of appeals of the sixth federal circuit said: “While it is necessary and right to restrain or annul the unauthorized acts of its agents by which its interests might be impaired, yet there must come a time, after long-continued acquiescence in public action with knowledge of it, when, in the interest of its citizens, the state itself shall be precluded from despoiling others by the assertion of its original rights.” Relying upon this construction of the intention of the state in making this conveyance, this defendant has improved the land in question, and the state ought not now to deny that it was the intention of the state to convey the whole section by its deed.

Upon these facts we find in favor of the defendant, and the action is Dismissed.