
    No. 1296.
    Vicksburg, Shreveport & Pacific Railroad Company vs. Milo Elmore et al.
    Parties without titles, occupying lands, may be joined as defendants in a suit for the lands by plaintiff asserting ownership. 2 Howard, 644; 1 Woods, 624; 28 An. 644.
    Purchasers, under foreclosures of mortgages of railroad franchises and property, may organize a corporation under such name as they may adopt, which, by the organization, succeeds to such franchises and property and takes the corporate capacity of the corporation against which the foreclosure proceedings were conducted. Act 38, 1877; 148 U. S. 397.
    The grant of lands by the United States in aid of a railroad, the State named as trustee for the road, the lands to revert to the United States if the road is not completed in ten years, the lands being identified by the grant and the listing approved, as directed by the act of Congress, vests title in the railroad company, although the road is not built within the limited time specified in the act, the grantor not insisting on the reversion, but accepting the subsequent completion of the road as compliance with the grant. Act of Congress 3d June, 1856; 11th Statute at Large 18; 21 Wall.4 4; 41 An 896; 42 An. 1019.
    The State, a mere trustee, can not declare a forfeiture of thellands granted. Act 39 of 1879; 44 An., 984.
    Those who settle on such lands in the face of the grant can not hold against the railroad company, and are possessors in bad faith, though the settlements are in contemplation of homestead entries and are made after the ten year limit in the grant and the non-completion of the road within that period; for all gave notice that the grant by its terms takes effect from its date, and that conditions subsequent, i. e. the non-completion of the road, may be W'ai ved and can be insisted on only by the United States by declaring the lands open for entry or equivalent act revoking the grant. O. C., Arts. 50,3, 3450, 3453; 42 An. 1019; 41 An. 896.
    The claim of a possessor in bad faith for alleged improvements is, at best, sparingly admitted; on the other hand he is liable for fruits during the entire period of his possession, and this court, without clear proof of same, will not disturb a verdict which compensates a claim for such improvements by the liability o£ the possessor for fruits, the verdict not being complained of by the plaintiff. C. C. 503, 508, 2314; 16 La. 422; 12 An. 546; 33 An. 744; 41 An. 896; 42 An. 1007; 7N. S. 112; 6 Rob. 192; 6 An. 356.
    The verdict of the jury responds to the issues when the plaintiff suing for the land and its revenues, the defendant claiming the value of the improvements, the verdict determines that the demand for improvements is compensated by that for revenue, and the judgment following such verdict is unobjectionable. C. P. 519, 526; 5 M.j456; ¿ R. 84.
    Nor will such verdict and judgment be set aside merely because, after being charged, the jury were permitted to leave the court and separate before giving their verdict.
    
      R. W. Richardson, J. PPBAL from the Fifth District Court, Parish of Ouachita.
    
      Qunby & Sholars, C. Newton and Frank Vaughan for Defendant and Appellant.
    
      Stubbs & Russell for Plaintiff and Appellee.
   The opinion of the court was delivered by

MoEnery, J.

This is a petitory action instituted by the plaintiff corporation against the defendants, who it is alleged “without any shadow of right or title” have entered upon a tract of land owned by plaintiff and described as the S. E. 1-4 of the S. W. 1-4; the E. 1-2 of the N. W. 1-4; the W. 1-2 of the N. E. 1-4; the S. W. 1-4 of the N. E. 1-4; the E. 1-2 of the S. W. 1-4; the S. E. 1-4 of the N. E. 1-4, Section 17, T. 17, R. 1, E., containing four hundred acres. It is alleged that the defendants are trespassers and have destroyed a large quantity of valuable timber and are still wasting the same to the great injury and damage of plaintiff; and that said defendants have occupied and cultivated said land for a period of five years. The prayer of petitioner is that the plaintiff recover judgment against the defendants, decreeing plaintiff to be the lawful owner of said land, and in the sum of five hundred ($500) dollars on account of the destruction of the timber on said land, and for four thousand ($4000) dollars for the use and occupancy of said land to the last day of January, 1892, and eight hundred ($800) dollars annually from said date until the delivery of the property to petitioner.

The defendants filed an exception to the suit on the grounds, (1) that there is a misjoinder of parties; (2) that the allegations in the petition are vagne, indefinite and insufficient; (8) that plaintiff is without capacity to bring this suit, there being no such corporation under the laws of Louisiana as the Vicksburg, Shreveport & Pacific Railroad Company.

The exception was overruled and the defendants answered in substance as follows: That the plaintiff corporation has no title whatever to the land sued for, and that the claim for damages is extortionate, far exceeding the value of the land.

That the mortgage of said lands granted to said corporation by the Federal government by Act 3 of June, 1856, is null and void, as the road could sell only twenty miles of said lands at a time, as said road was completed; and therefore the State, holding the lands in trust for the purpose of constructing the road, could not authorize the mortgage of said lands for the uncompleted portion of the road.

That on June 3, 1866, all the lands between the Ouachita and Red rivers reverted to the Federal government, as on that date the road had not been completed, and became part of the public domain, and the defendants had the right to enter upon and homestead the same.

That the road was not located as provided by act of the Legislature in 1857, and they deny that the lands granted to the railroad were ever transferred to plaintiffs, directly or indirectly, in the proceedings of Henry R. Jackson et a Is. vs. Jno. T. Ludeling et ais., or were ever seized or sold by the marshal, or that said lands could be seized or sold, in any manner, for debt, or transferred, until the road had earned the same by its completion. That the Federal government, through its Interior Department, has refused to issue patents to plaintiff for said lands. That the road was not constructed on the faith of the grant of said lands; that the Legislature in 1879 declared the grant forfeited, and in 1886 declared that said road had no title to said lands. That the United States Register of the Land Office advertised said lands for entry, and defendants went on the same in good faith, believing them to be subject to homestead occupation. Defendants, separating in their defence, aver that each has made application for homestead entry, and designates the quantity of land applied for by each. The answer sets out alleged oppressive acts of plaintiff and prays for damages to the amount of five hundred ($500) dollars.

The case was tried by jury and a verdict returned in favor of the plaintiff, as follows: “Pull possession of all the lands sued for in this case (situated in section 17) and all the improvements thereon; said improvements going in lieu of and to offset the claim of the plaintiff for rent and damages, including rents for the present year.” A judgment in favor of the plaintiff was entered in accordance with this verdict, except the order to deliver possession by January 1, 1894.

To this judgment the plaintiff excepted on the ground that it was not in accordance with the verdict, and assigned this as error. At this time we state that the delivery to the plaintiff could have been demanded when the judgment became final, and this extension of time could not injuriously affect the defendants.

Exception.

1. The petition charges that the defendants are trespassers upon the land to which the plaintiff asserts title. It is immaterial whether they set up claim to any particular part of the land as long as they are trespassers, without title, and possess the same, adversely to the true owner. They are sued jointly as naked possessors, and they haye a common issue in resisting plaintiff’s title. The defence of one is the defence of all the defendants, as each holds by virtue of the same title and are jointly interested in being maintained in possession. The primary question at issue is title to the property, and all the defendants are alike interested regardless of the quantity of land possessed by each. Derbes et al. vs. Romero, 28 An. 644.

2. There is no force in this objection. The petition contains every necessary and essential averment for maintaining the action.

8. We fail to see the application to defendants’ argument to the facts in this case. The record is against the pretensions of the defendants. The plaintiff acquired title through the foreclosure sale, December 1, 1879. The mortgage creditors purchased the mortgaged property and organized the present company. The organization was perfected, literally, in conformity to Act 88 of 1877, and a statement of the organization and formation of the corporation in compliance with Sec. 8 of the act was filed with the Secretary of State. The defendants objected to the copy of this statement certified by the Secretary of State being introduced in evidence, because the act of incorporation was not made by authentic act, and the copy was not. a copy of the authentic document which proves itself. The act did not require the formation to be by authentic act, and following the plain direction of the statute was sufficient. The statement of the formation of the company or corporation, when filed, became a part of the public archives and a certified copy of same is to all intents and purposes a copy of an authentic act, and authorizes its introduction as evidence. State vs. Cannon, Sheriff, 45 An., 1231; State vs. Lake, 45 An. 1207.

Merits.

The defendants aver that they have made application for homestead on the lands as a part of the public domain subject to homestead entry. Their claims are based on notices of the Register andl Receiver of the Land Office, at Monroe, La., inviting homestead settlers on the same. It is alleged that they had received instructions; that the lands granted to the railroad company, between the Ouachita and Red rivers, had been open to public entry. No such-instructions have been shown to have been issued, and it is a moral certainty that had they been issued, the original would be found in the government records at Washington. The fact, is that, in 1856, • Thomas A. Hendricks, Commissioner of the General Land. Office, withdrew these lands from sale, on the expected approval of the act of Congress of June 8, 1856, by the President, and it may be safely asserted that since that date they have never been open to entry. This is corroborated by the decree of the United States Supreme Court, recognizing the force and validity of the mortgage placed on the railroad and these lands, and their sale under the decree of the court, and the repeated action of one of the executive departments of the Federal government in recognizing, on the certificates of the Governor of Louisiana, the claim of the road to the lands granted to it by Congress. This recognition is not found in this record, but it is a part of the history of the corporation — not important in deciding this case, but merely stated incidentally. The fact still remains that the lands have not been restored to the public domain and that no department of the Federal government has done any act to disturb the rights of the road to these lands.

The other matters alleged as defences in the answers do not concern these defendants and are personal to the grantor. It is immeterial to them whether the road in its construction was diverted from its original line; how the State disposed of the trust confided to it by the General government; in what manner the lands were sold by the corporation; whether they were exempt from seizure and sale for debt; in what manner the road acquired possession of these lands; all these matters are questions for the Federal government to consider, and so long as it is satisfied with the manner in which the trust was exe cuted and the road built, no one else can complain. It is very certain that the defendants can not act for the government, and by any act of theirs, or any judicial proceeding they may invoke, restore these lands to the public domain against the wishes and desires of the Federal government, the grantor.

We have mentioned these defences, as the defendants assert this case presents issues not heretofore decided by this court. But we think they are all embraced within the issues in the cases of the Railroad vs. Sledge, 41 An. 896; Mower vs. Kemp, 42 An. 1007, and State vs. Railroad Company, 44 An. 981. In these cases we decided that the government of the United States, not having asserted by legislative act or judicial construction the forfeiture for the breach of the condition, the apparent legal title is in the railroad company acquiring rights under the foreclosure of the mortgage. In other words the title of the railroad to the lands granted is good against anybody except the government of the United States. We did not discuss the rights of the road as against the Federal government, as our decree would not be binding upon that authority.

In the case of Railroad vs. Sledge the defendant entered upon the railroad land with the intention of acquiring the right to enter the land if ever it should be open to public entry. In this case the defendants made affidavits for homestead entries. But the land was not open for such purposes. The defendants may have been deceived, but this does not alter the character of their entry upon the lands of the plaintiff. They went on them without any color of right or authority and stand in the same position as the defendant Sledge in the case referred to. Possession is solely the prima facie evidence of title. The entry on the land was unlawful, and as no title other than the trespass is exhibited, the defendant can not dispute the apparent title of plaintiff. Stille vs. Shull, 41 An. 816.

Judgment affirmed.

On Application eor Rehearing.

Miller, J.

The earnestness of the argument for a rehearing in this case has prompted us to a careful re-examination and, if our conclusions prove disappointing to the defendants, we trust they will be accepted as the result of a diligent effort on our part to give to the controversy, previous phases of which have been before us, our best attention.

"When defendants, sued for land, hold by different titles, they can not, as a general rule, be joined because their defences,, necessarily, are different. In this case the defendants exhibit no title whatever, common or individual. There is, it is true, on the part of some of the defendants the averment that they made homestead entries cf portions of the lands, but, in our view, such entries, even if sustained by proof, would not, under the circumstances of this case, distinguish the position of those who assert such entries from that of trespassers. Hence we have the case of plaintiff asserting title to a tract of land on which various persons have settled. The defendants are not distinguished by any difference in the titles they hold, for they hold none. They stand on one common ground of naked possession. We are aware of no rule or test by which plaintiff could divide his action. On the other hand, all these defendants have a common interest in disputing plaintiff’s title. If plaintiff had brought as many different suits as there are defendants, all could join in the defence, and to the consolidation of the suit there could be no objection. If consolidation to save costs would have been authorized, the propriety is enforced of joining all these defendants in one suit. We think, therefore, the exception of misjoinder is not well taken. Support of this view is to be found in the general rules of pleading and, we are inclined to believe, admits of abundant support in authority. We find one ease in point and those cited in plaintiff’s brief, to which we have not had access, seem to sustain the pleadings in this case. Derbes vs. Romero, 28 An. 644; 16 H. 288; 18 H. 263; 2 H. 642. In the cases of Gaines vs. City of New Orleans etals. the defendants, charged as possessors in bad faith, were joined in one bill, as we remember the cases. Gaines vs. Agnelly et als., 1 Woods, 238; Gaines el als. vs. City of New Orleans, 1 Woods, 104.

The defendants put at issue the corporate capacity of plaintiff. The Vicksburg, Shreveport & Texas Railroad Company was created in 1853 to construct a railroad from the Texas line to Vicksburg via Greenwood, Shreveport and Monroe. In aid of this railroad, or as the act expressed it a railroad,” between these points and the line stated, Congress granted in 1856 alternate odd sections of land for six sections in width on each side of the road. The grant stipulated the road should be constructed in ten years or the lands should revert to the United States. It is not disputed that the grant was accepted by the company, lands selected and the listing approved by the government, as provided by the Act of Congress of 1856. 11 Statutes at Large, 18.

Thereafter, in September, 1857, the company executed and issued bonds to a large amount, secured as usual in railway mortgages on its road-bed, lands and franchises, and the mortgage specially embraced the four hundred and twenty thousand nine hundred and twenty-four acres of land embraced in the grant. On these bonds, extant and unpaid in 1879, by appropriate proceedings in the United States Circuit Court, Fifth Circuit and District of Louisiana, the bondholders foreclosed their mortgage and at the master’s sale under the decree of the court acquired, through a committee selected by them, the railroad, its lands and franchises covered by mortgage.

We do not appreciate that any objection is or can be urged to these, proceedings. They exhibit the usual method by which railroad franchises are transferred when bondholders exact their rights.

It has never been supposed that such proceedings end the corporate existence, for, if this were the case, railroad mortgages would confer no rights and railroad bonds disappear as securities. It must be accepted, then, that the sale passed the corporate franchises, to the purchasers. In that condition the purchasers availed themselves of the Act No. 38 of the Legislature of 1877, which authorizes, the purchasers of railway property and franchises to hold all such property and operate the railroad the same as the company that executed the mortgage. The act further authorizes the purchasers to fix and divide the stock bought, adopt a name and organize anew the company by electing a board of directors. When all this was effected the act provided for the filing of the organization certificate in the office of the Secretary of State, and, this done, the act declares the company shall be deemed a body corporate under the name chosen as fully as if chartered anew by the Legislature. We find from the record that all these ■ provisions were complied with by the purchasers, and the corporation once known as the Vicksburg, Shreveport & Texas Railroad Company has beceme the Vicksburg, Shreveport & Pacific Railroad Company, if there is any virtue in the judicial proceedings to foreclose the mortgage and the Legislative Act of 1877. There was no creation of any new corporation, but the continuation of a subsisting corporation under a new name. The act has stood unchallenged for years, nor is the court advised of any ground on which it can be assailed. It is not of easy application that there can be repugnancy to the organic law and legislation of this character, so necessary to give effect to the changes so apt to occur in the operation of railroads. The court conceives the present Vicksburg, Shreveport & Pacific Railroad Company must be deemed clothed with all the rights of its predecessor, and is a subsisting corporation and is competent to stand in judgment.

Nor can it be denied that the lands sued for in this case are embraced in the grant of 1856. Unless that grant has been withdrawn or annulled, the present corporation is vested with title to the lands. These defendants insist the lands have reverted to the United States by the lapse of time — i. e., the ten years. That the company did not build the road on the original line; that the Legislature of Louisiana has declared the grant forfeited, and other defences are advanced assailing the right of the corporation to the lands granted. It is true the railroad was not completed within the time stipulated in the grant. It is also true, we believe, there was a deviation from the line originally designed for the road. But it is equally true the road has been completed and the United Statef has never insisted on any cause of forfeiture and has never forfeited the giant. Prom time to time the certificates of the completion of the road have been filed in the office of the Commissioner of the General Land Office, and, though long after the ten-year limit, have been accepted as satisfactory evidence of compliance with the grant. So long as the grantor interposes no objection, we can not perceive the right of defendants to urge non-compliance with conditions we must deem waived by the grantor. We do not enlarge on this point because, in our view, unnecessary, especially in view of the elaborate decisions in 41 An. 896; 42 An. 1007, and 44 An. 981.

Nor can we understand how the State of Louisiana can forfeit lands or declare annulled the grant of 1856. The State has no interest. It was the trustee under the act of 1856, but its functions have long since ceased, and before the legislative act in Which it undertook to annul the grant. 44 An. 981.

We have given careful attention to the claims advanced in behalf of some of the defendants that they hold under homestead entries. If such entries had been made they would have been in the face of the grant and with the implied notice that the grant stood, notwithstanding all conditions and limitations, unless insisted on by the United States. In our view the proof fails to show any homestead entries except those held for cancellation by the officials of the land office. In our opinion the defendants stand simply as trespassers without title. It is well settled within our jurisprudence that claims for improvements by defendants in this position are admitted sparingly. We find no evidence in the record that defendants have made improvements of that character that some cases have recognized as affording a basis for a claim against the owner. 16 La. 414; 3 R. 317; 12 R. 254. But, waiving this question, it is settled that trespassers, without title and without knowledge or presumed knowledge of the title of the owner, owe fruits from the date of their possession, and we see no objection to the verdict and judgment that compensates any supposed liability for improvements by the claim of plaintiff for rents and revenues. 7 N. S. 112; 6 R. 192; 12 R. 256. The verdict was for plaintiff, with the addition of compensating the claim for improvements with that for revenue; judgment followed the verdict and both substantially responded to the issues, and we do not think the objection of the defendant on this ground is well taken.

It is undoubtedly better that juries should be kept together after the charge and it is impliedly required by the Oode. But merely because in this case there was a separation, we do not think the verdict should be set aside.

Rehearing refused.  