
    The Standard Oil Company v. J. B. Cook.
    No. 12,432.
    (66 Pac. 1000.)
    
      Ejectment — Limitation of Action. Agreed statement of facts examined, and held, that the action was not barred.
    Error from Labette district court; A, H. Skidmore, judge.
    Opinion filed December 7, 1901.
    Division two.
    Affirmed.
    
      T. N. Sedgwick, for plaintiff in error.
    
      Nelson Case, for defendant in error.
   Per Curiam:

This was an action in ejectment, brought by J. B. Cook to recover possession of certain real estate claimed by the Missouri, Kansas & Texas Railway Company to form a part of its right of way and station grounds in the city of Chetopa, and by the railway company leased to plaintiff in error. The claim of defendant in error, defending as lessee of the railway company and on the strength of the railway company’s title, is precisely that made in and disallowed by this court in the case of M. K. & T. Rly. Co. v. Cook, 47 Kan. 216, 27 Pac. 847, affirmed by the-United States supreme court in 163 U. S. 491, 41 L. Ed. 239. These former decisions, while not involving the identical property in controversy in this case, do-involve the identical claim of right here sought to be relitigated, and must be held decisive of this action on the merits.

The only remaining question is the plea of the statute of limitations. Under the agreed statement of facts, we do not see how the statute of limitations can bar this action. The legal title originating in and emanating from the patentee from the government drew'to the patentee and his successive grantees the right to possession and constructive possession of the property involved. Plaintiff in error received its lease from the railway company in January, 1895. This was the first act of the railway company, or its lessee, taken in opposition to the constructive possession and right to possession of defendant in error, and this action was commenced in August, 1898. Again,' this lease was made to, and actual possession taken by, plaintiff in error while the determination of the right of the railway company to occupy more than 100 feet of right of way or station grounds in the city of Chetopa, under- grant from the government and the location of its line of road, was pending and undetermined between the lessor of plaintiff in error and defendant in error herein.

It follows that the plea of the statute of limitations must be denied, and judgment affirmed.

Cunningham\ Greene, Pollock, JJ.  