Cobb v. Clough

• Decision Date: 24 June 1897
• Citation: 83 F. 604
• Parties: COBB v. CLOUGH et al.
• Court: U.S. District Court — District of Minnesota

83 F. 604

COBB v. CLOUGH et al.

United States Circuit Court, D. Minnesota, Third Division.

June 24, 1897

This is a bill for an injunction against the governor and other officers of the state of Minnesota to enjoin them from selling, conveying, or clouding the title of the land grant of the Duluth & Iron Range Railroad Company, or from bringing suits to cloud the title thereto. The Duluth & Iron Range Railroad Company was made a party defendant, and filed its cross bill, and also made a motion for an injunction. From the original bill and cross bill, which are substantially the same, the following facts appear:

The complainant is the trustee of a mortgage made by the Duluth &amp Iron Range Railroad Company upon the land grant, and the defendants are the governor, state auditor, and treasurer as a board of land commissioners, and the state auditor as commissioner of the land office, and the governor state auditor, and attorney general as a committee, under the act of the legislature of Minnesota for the year 1897, to bring suits against the railroad company for a forfeiture of the grant. The facts, as appearing from the bill and admitted upon the hearing, are: On September 28, 1850, congress passed an act granting all the swamp and overflowed lands made unfit thereby for cultivation, to the state of Arkansas for the purpose of reclaiming the same. By act of congress approved March 12, 1860, this grant of swamp lands was extended to the state of Minnesota. By an act entitled 'An act granting certain swamp lands to the Duluth & Iron Range Railroad Company,' approved March 9, 1875, the legislature granted to the Duluth & Iron Range Railroad Company 10 sections per mile for each mile of its road completed, and the right to select the deficiency anywhere in the counties of St. Louis Lake, and Cook. This grant was made for the purpose of aiding the Duluth & Iron Range Railroad Company to construct a railroad from Duluth, by the shortest and most feasible route, to the northeast corner of township No. 60, range No 12 W., on the Mesaba iron range. And it was further provided 'That when the governor of the state shall be duly notified (by the company aforesaid), of the completion of each and every ten miles of said road, it shall be his duty to have same examined by sworn commissioners, and on their certificate of the completion of each consecutive ten miles in a good and substantial manner as contemplated by this act, he shall notify the secretary of state, who shall forthwith cause swamp land certificates to be issued to the president and directors of said railroad company for the number of acres to which they shall be entitled under this act,' etc. The time for the completion of the road was extended twice,-- once by the act of 1876, and again by the act of 1883. The act of 1883 extended the time until 1888, and provided that none of the lands should be deeded until the entire road was constructed. It further provided that the corporation might relocate and change the line of its road so as to make the northern terminus thereof at some convenient point to be selected by the corporation in township No. 62 N., of range No. 15 W. In 1881 the constitution of the state was amended by adopting the following provision: 'All swamp lands now held by the state, or that may hereafter accrue to the state, shall be appraised and sold in the same manner and by the same officers, and the minimum price shall be the same, less one-third as is provided by law for the appraisement and sale of school lands under the provisions of title one of chapter thirty-eight of the General Statutes. The principal of all funds derived from sales of swamp lands, as aforesaid, shall forever be preserved inviolate and undiminished. One-half of the proceeds of said principal shall be appropriated to the common school fund of the state. The remaining one-half shall be appropriated to the educational and charitable institutions of the state, in the relative ratio of cost to support said institutions. ' The bill then alleges that the railroad company accepted this act, surveyed its line as it is now constructed from Duluth to the iron mines, in township No. 62 N., of range No. 15 W., and filed its map of said survey on the 28th day of May, 1883, and on or before December, 1886, constructed the road, the same being 94.8 miles in length; that the governor appointed commissioners, who examined the road, and reported its completion, and that thereafter the state of Minnesota deeded to the company, at various times between May 2, 1888, and December 24, 1894, about 201,000 acres of land; that the various deeds contained a recital of the laws under which the grant was made, and of a compliance therewith, and of the construction of the road between the points selected, to wit, the city of Duluth and a point at the iron mines in township No. 62 N., of range No. 15 W. It further appears that the railroad company has selected 189,979.73 acres of land that has not yet been deeded, and the total number of acres to which it is entitled is 606,720 acres; that the company has already sold to various parties about 20,000 acres of these lands; that by an act of the legislature approved April 21, 1897, the above land grant, with all lands heretofore deeded to the railroad company, and by it conveyed to other parties, was forfeited to the state of Minnesota absolutely, and the proper officers of the state were directed to sell the same as school lands are sold; and by a further act of the legislature approved April 23, 1897, the governor, state auditor, and attorney general were authorized to institute legal proceedings against any of said parties to recover said lands. The bill alleged that, unless restrained by the order and injunction of this court, the state auditor and governor, and said board of land commissioners, would sell and convey said lands, and the timber thereon, or lease the lands, and thereby cloud the title of the complainant; and that the said governor, state auditor, and attorney general would bring various suits against the Duluth & Iron Range Railroad Company, the trustee of the mortgage, and the various parties, grantees of said railroad company, to recover said lands; and prayed an injunction.

Frank B. Kellogg, for complainant.

W. N. Draper and J. H. Chandler, for defendant Duluth & I.R.R. Co.

The Attorney General, Henry C. Belden, and W. P. Warner, for defendants state officers.

LOCHREN District Judge.

This case has been very fully argued on both sides, and there seems to be no dispute as to the facts. The matters set forth in the bill of complaint are admitted by the demurrers in the case, and this renders immaterial the last question raised by counsel for defendants, as to the verification of the bill. The demurrers admit the statements in the bill to be correct and therefore, although the bill is not verified in the manner usually done when the bill is made the basis of a temporary injunction, I think it obviates any objection upon that ground. The result of the demurrers is that all allegations stated in the bill which are material and well pleaded are admitted, but, of course, mere conclusions are not admitted. It seems that in the year 1860 congress granted swamp lands to the state of Minnesota for certain objects indicated, among which were internal improvements. In the year 1875 the legislature granted to the Duluth & Iron Range Railroad Company 10 sections per mile, to be selected within 10 miles of the railroad, to be built by the shortest and most feasible route, between fixed termini, Duluth being the southern terminus, and the other at some point in section 60, range 12, on condition that 20 miles of the road was to be built in 2 years, and the entire road in 5 years. The lands were to be certified and patented to the company as each 10 miles of road was completed and certified to be properly completed by commissioners appointed by the governor. Any deficiency in the 10 sections per mile within the 10-mile limit was to be made up by selections within the counties of St. Louis, Lake, and Cook. On filing the map of the route, all other swamp land within the 10-mile limit was thereby withdrawn from other disposition. The time for building the railroad was extended from time to time by acts of the legislature, and by an act of that body passed in 1883, I believe, the northern terminus of the railroad was changed further west, and a little north, necessitating a change of location of part of the line; and the railroad was finally completed within the time limited by the last act, and certified to be properly built, completed, and to be transacting business over its entire line, by a commissioner appointed by the governor to make examination...