witnesses, has had opportunities of estimating the amount proper to be awarded to the complainant which we have not. We should, therefore, be very careful not to interfere, unless for some manifest error in law, with the judgment of the learned judge in matters of this nature to which no accurate measurement of damages can be applied. I am of opinion that this appeal should be dismissed with costs.

Compensation to Landowner for Injuries Resulting from Operation of Railway. See ante, Gainesville, H. & W. R. Co. v. Hall, and note p. 51-57. Eminent Domain-Farm Crossing as an Element in Assessing Damages.On an appeal from condemnation proceedings by a railway company, where the trial is had before the grading of the roadbed is completed, and the company introduces evidence that the engineer's profile shows that he has ordered an under-crossing through which cattle could pass under the railroad from one side to the other, but there is nothing in the profile filed by the railroad company, nor in the report filed in the county clerk's office by the commissioners appointed to assess the damages for the land appropriated, showing such crossing, the court should have instructed the jury, when requested by the owner of the land, that the company was not obliged, under the evidence, to maintain such under-crossing. ́ Lind v. Chicago, Kansas & W. R. Co., 42 Kan. 352. And see, generally, Atchison, etc., R. Co. v. Gough (Kan.), 10 Am. & Eng. R. Cas, 151; Kansas City, etc., R. Co. v. Kregelo (Kan.), 20 Id. 241; Cedar Rapids, etc., R. Co. v. Raymond (Minn.), 30 Id. 345, note 348.

Duty of Railway Company to Maintain Farm Crossing.-See Clouse v. Canada S. R. Co. (Ont.), 14 Am. & Eng. R. Cas. 456; Canada S. R. Co. v. Erwin (Can.), 35 Id. 311; Canada S. R. Co. v. Clouse (Can,), 35 Id. 296; Keffe v. Sullivan Co. R. Co. (N. H.), 22 Id. 301; Gulf, etc., R. Co. v. Ellis (Tex.), 35 Id. 292: Gulf, etc., R. Co. v. Rowland (Tex.), 35 Id. 286;. Fremont, etc., R. Co. v. Lamb (Neb.), 5 Id. 367; Cedar Rapids, etc., R. Co. v. Raymond (Minn.), 30 Id. 345; Jones v. Seligman (N. Y.), 3 Id. 236; Curtis v. Chicago, etc., R. Co. (Iowa), 13 Id. 593; Illinois Cent. R. Co. v. Willenborg (Ill.), 26 Id. 358.

LARSEN

V.

OREGON RAILWAY & NAVIGATION Co.

(Oregon Supreme Court, May 16, 1890.)

Right of Way Through Public Lands.-To entitle a railroad company to a right of way through the public lands of the United States as against one in possession of such lands, it must appear that such railroad company complied with the act of congress of March 3, 1875; that is, it must have filed with the secretary of the interior a copy of its articles of incorporation, and due proof of its organization under the same, and it must also have claimed the benefits of said act by filing with the register of the land-office of the proper district a profile of its road.

Homestead Claims-Right of Way Through. When a homestead claimant settles upon the public lands of the United States, and in due time files upon said homestead claim as required by the act of congress granting

homesteads to actual settlers upon the public lands of the United States, said homestead claim thus becomes separated from the public domain, and ceases to be public lands of the United States; and thereafter a railroad company, by complying with the act of March 3, 1875, does not acquire a right of way through the homestead claim of such settler. And held, further, that the act of congress of March 3, 1875, does not purport to grant a right of way through the claims of those who had, prior to the time such right attached, acquired possessory rights in such public lands, and that by the third section of the act such rights are only to be taken by condem

nation.

Measure of Damages-Absence of Special Damages-Breaking Close.When a railroad company, without the consent of the owner of land, constructs its road over and across such owner's land, and runs its cars thereon, and no special damages are alleged, the correct measure of damages is the difference between the annual rental value of the premises with the railroad track down, and the road operated as it is, and what the rental value of the premises would have been if the road had not been there; and when it also appeared that the defendant, in effecting an entry, broke the plaintiff's close, but no special damages are alleged, the measure of damages for such breaking would be such sum as would restore the premises to such a condition of safety for use as they were in before such breaking. Instruction as to Special Damages-Frightening Horses.-When there was no allegation of special damages, the refusal of the court to give this instruction was held erroneous: 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."

APPEAL from Gilliam County Circuit Court.

This is an action for trespass alleged to have been commit-. ted by the defendant on the plaintiff's lands in Gilliam county, Or. The complaint alleges, in substance, that on the first day of May, 1888, the plaintiff was the owner and in the possession of certain real property mentioned in the complaint, and that, while the plaintiff so owned and possessed said lands, the defendant, willfully, unlawfully, and with force and arms, broke his close and entered said premises, and that said defendant at said time broke down a fence inclosing a portion of same, and did wrongfully, willfully, and unlawfully, without plaintiff's consent, and against his will, then and there construct and build a railway over, through, and across said premises; that defendant has since said March 1, 1888, and up to the date of the filing of this complaint, maintained, used, occupied, and operated said road over, across, and through said premises, and continuously run trains upon. same, whereby plaintiff was prevented from using, occupying, and enjoying his said premises as fully as he might otherwise have done, and whereby plaintiff's horses were prevented from watering at their usual and customary watering place upon said premises, all to the damage of the plaintiff in the sum of $1,000, for which sum he demands judgment, etc. The answer denies the allegations of the complaint, except it admits that it built and operated its railroad across said

premises as alleged. By way of separate defense the answer alleges that on the 1st of May, 1888, the tract of land described in the complaint, and continuously since that time, was and is public land of the United States; that, in pursuance of the provisions of an act of congress entitled "An act granting to railroads the right of way through the public lands of the United States," approved March 3, 1875, the defendant duly acquired a right of way upon and over said land for its railroad, extending from Heppner, in Morrow county, Or., to a point of junction near Willows, in Gilliam county, Or., with the main line of the defendant's railroad from Portland, Or., to Umatilla Junction, in said state; that about the month of July, 1888, 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 has been in continuous possession thereof to the present time; that during the time it has been so in possession the defendant has constructed upon said right of way a railroad which forms a part of its said line from Heppner to said point of junction with said main line; and that since the 1st day of December, 1888, the said defendant has been running trains of cars upon and over its said railroad, and did so run its cars upon and over the same, and on the 28th of December, 1888, which said runing of said cars is the supposed trespass mentioned in the complaint. To this answer no reply was filed. The remaining facts appear in the opinion.

W. W. Cotton, for appellant.

A. S. Bennett, for respondent.

Method of

STRAHAN, J.-In disposing of this appeal, it will be most convenient to first consider the new matter in the answer, and then to refer to the exceptions taken upon the trial; for the reason that, if the answer contains sufficient to give the defendant a right of way over the land in controversy, the judgment would have to be reversed, for the reason there is no reply, and whatever facts contained therein which are well pleaded stand admitted on the record.

consideration.

1. The appellant claims that the act of congress of March 3. 1875, (18 St. at Large, 482,) granted to it the right of way through the lands in controversy. So much of Right of way that act as is material is as follows: "Be it enacted through pub by the senate and house of representatives of the United States of America, in congress assembled, that the right of way through the public lands of the United States is hereby granted to any railroad company duly or

lie lands.

ganized under the laws of any state or territory except the District of Columbia, or by the congress of the United States, which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad, also ground adjacent to such right of way for station buildings, depots, machine shops, 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 roadbed 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 ap. proval 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."

Homestead
claims-Right

of way
through.

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 constituing 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