DONOHUE v. EL PASO & SOUTHWESTERN RAILROAD COMPANY

DONOHUE v. EL PASO & SOUTHWESTERN RAILROAD COMPANY. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF ARIZONA. • No. 516. Motion to dismiss or affirm. Submitted April 19, 1909. Decided April 26, 1909. Judgment of the Supreme Court of Arizona holding that ejectment should not be maintained against a railroad company where the owner had remained inactive and permitted the construction of the track affirmed without opinion on authority of Roberts v. Northern Pacific Railroad Company, 158 U. S. 1, and Northern Pacific Railroad Company v. Smith, 171 U. S. 260. The court below held that ejectment could not be maintained, saying in its opinion: “The only question requiring our attention, upon the record, as presented, is whether ejectment or trespass may b.e maintained, and we have no hesitancy in holding that they may not be. This has been determined so authoritatively that discussion by us is wholly unnecessary. In Northern Pacific Railroad Co. v. Smith, 171 U. S. 260, it is said: ‘This subject was fully considered by this court in the case of Roberts v. Northern Pacific Railroad, 158 U. S. 1, .where, upon the foregoing authorities and others, it was held that if a landowner, knowing that a railroad company has entered upon his land and is engaged in constructing its road without having complied with a statute requiring either payment by agreement or proceedings to condemn, remains inactive and permits it to go on and expend large sums in the work, he is estopped from maintaining either trespass or ejectment for the entry, and will be regarded as having acquiesced therein, and will be restricted to a suit’for damages. See also City of New York v. Pine, 185 U. S. 93.’ ” Mr. A. B. Browne, Mr. Alexander Britton and Mr. E. E. Ellinwood for the appellee in support of the motion. Mr. Charles F. Ainsworth for the appellant in opposition thereto. [MAJORITY — Per Curiam:] Per Curiam: Judgment affirmed. Roberts v. Northern Pacific Railroad Co., 158 U. S. 1; Northern Pacific Railroad Company v. Smith, 171 U. S. 260.