Atchison, T. & S. F. RY. Co. v. Dugan, 26 N.M. 611 (1921)

Jan. 15, 1921 · Supreme Court of New Mexico · No. 2320

26 N.M. 611

ATCHISON, T. & S. F. RY. CO. v. DUGAN, et al.

[No. 2320,

Jan. 15, 1921.]

SYLLABUS BY THE COURT.

Dugan v. Montoya, 24 N. M. 102, 173 Pac. 118, followed.

Appeal from District Court, McKinley County; Reynolds, Judge.

Action by the Atchison, Topeka & Santa Fe Railway Company against Sarah Dugan and others. Judgment for plaintiff, and defendants appeal.

Affirmed.

H. B. Jamison, of Albuquerque, and A. T. Hannett and E. A. Martin, both of Gallup, for appellants.

C. M. Botts, W. C. Reid, and George S. Downer, all of Albuquerque, for appellee.

OPINION OF THE COURT.

ROBERTS, C. J.

The decision of this court in the case of Dugan v. Montoya, 24 N. M. 102,173 Pac. 118, is controlling in this case, and requires the affirmance of the judgment of the lower court. The law and facts- are the same in both cases. Appellants argue that the cour.t in that case did not consider and decide the question as to whether the grantees of the quarter section of land involved were the owners of the reversion of the 27.72 acres claimed by the railroad as station grounds, and as such had a right to litigate out with the railroad the question as to whether it required the land claimed, or had forfeited the same by nonuser. In the case referred to we said:

"In the case of Oregon Short Line v. Stalker, 14 Idaho, 362, 94 Pac. 56, it was stated that the only person who was in a position to take advantage of the fortfeiture of the right of way was the United States government.”

We there clearly held that they had no such right, and this view is, we believe, supported by all the authorities.

The judgment is affirmed.

PARKER, J., concurs. Raynolds, J., having heard the case below did not participate in this opinion.