Grandin v. La Bar
| Decision Date | 03 May 1893 |
| Docket Number | 6731 |
| Citation | 57 N.W. 241,3 N.D. 446 |
| Court | North Dakota Supreme Court |
[Copyrighted Material Omitted]
Judgment reversed and new trial ordered.
A rehearing was ordered in this case on the petition of respondents, and the case has been again fully argued. It is first urged upon us that the evidence offered by the defendant in the court below to show that a contest between defendant and plaintiffs' grantor, concerning this same land, was pending in the interior department, was properly excluded. We did not recite that evidence in the original opinion, and will here state that plaintiffs have been permitted to introduce in evidence an authenticated copy of an opinion rendered in that contest by the secretary of the interior a short time prior to the trial below. Defendant sought to show that the contest was still pending, by showing that defendant had filed a motion for review before the secretary of the interior. For that purpose, S. B. Pinney, Esq., was placed upon the stand, and testified that he was the attorney for the defendant, La Bar, in the contest proceedings, and that he filed a motion for review in said case, and served a copy of said motion on the attorneys for the adverse party, and a paper which Mr. Pinney testified was a copy of said motion was offered in evidence. This paper, as well as the testimony of the witness, was objected to as irrelevant, incompetent, and immaterial, and both were excluded by the court. It is claimed that the parol evidence that the paper was a motion for review was not competent to establish the fact, and the paper itself was inadmissable, because not the best evidence, since § 891, Rev. St. U.S. provides that authenticated copies of papers in the land office shall be evidence equally with the originals. But that statute does not exclude the examined copy. It does not exclude what was before proper evidence. It simply makes that evidence which without this statute was not evidence.
It is urged, however, that it was not shown that the motion was made within the time prescribed by the rules of the department. A sufficient answer is that, when the evidence was excluded, the defendant had not rested, nor had the witness been excused. A party cannot put in all his evidence at once. The defect might have been cured in the further testimony. It was no ground for exclusion at that time. But it is proper to add that this court inadvertently went too far on this point in the original opinion We held this evidence improperly excluded, and then assumed that, if admitted, it would have been conclusive upon the question of the pendency of the contest, and hence ordered the complaint dismissed. The plaintiff might have rebutted this evidence. The order should have been for a new trial.
It is contended, however, that the secretary of the interior was without jurisdiction to entertain a motion for review; that when the United States parts with its title, the jurisdiction of the interior department ceases; and, granting that the approval of the secretary of the interior is necessary to pass title to lands selected by the Northern Pacific Railroad Company in the indemnity belt, yet, as stated in the original opinion, such approval may be shown by a decision in any given case, and as, in the opinion of the secretary filed in this case, the selection of the land in controversy was expressly approved, therefore the title at once passed from the general government, and stripped the interior department of jurisdiction. The position has nothing to recommend it except its novelty. It must be true in every jurisdiction that no judgment or decision can be final until the expiration of the time fixed by law or the rules of such jurisdiction in which to apply for a rehearing or review. Otherwise, a review would always be a farce. True, if no such application be made within the time limited, the decision at once becomes final from the date of its rendition; but, if such application be made, it suspends the operation of the decision, and if, on the review, a different conclusion be reached, the former decision becomes of no force or effect whatever. But counsel's brief is devoted principally to an attempt to establish the proposition that the title of the United States to the lands within the indemnity belt of the Northern Pacific Railroad Company passed by the grant of upon the filing of the map of definite location of its line, and hence the jurisdiction of the interior department had ceased, and all further controversies concerning the title to or right in this land must be waged in court. It was to this point that the original opinion was directed, and we will briefly add to what was then said, in order to more directly meet the objections urged by counsel. We stated that the grant was in praesenti, as to place lands. It is insisted that it is in praesenti, to the amount of 20 sections per mile, provided such amount can be found subject to the grant, and within the lateral limits of 50 miles from the line of definite location. Much stress is laid upon the wording of the grant. The language is "that there be, and hereby is, granted, * * * every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, * * * whenever on the line thereof," etc. This same language was held in U. S. v. Burlington, & M. R. R. Co., 98 U.S. 334, 25 L.Ed. 198, to be a grant in quantity absolute. But in that case the grant was limited by no lateral lines whatever. It was simply an absolute grant of land to the amount of 10 alternate sections per mile. We think that case very instuctive in its bearing upon this case. The government had patented to the Burlington & Missouri River Railroad Company more than a million acres of land outside the 20 mile limit, which would have covered the 10 alternate sections in that case. By far the greater portion of the land thus patented was opposite the western portion of the line. Subsequently, an action was brought to annul these patents on the ground that the company was entitled to nothing outside of the 20 mile limit. The patents were sustained, the courts holding, as already stated, that it was a grant in quantity. But it was urged, also, that, if the company could go outside of that limit, it could not take land opposite one 20 mile section to make good losses accruing opposite a section further east. Said the court: "When no lateral limits are assigned, the land department of the government, in supervising the execution of the act of congress, should undoubtedly, as a general rule, require the land to be taken opposite each section." It appeared that the map of definite location was filed in June, 1865, but the land outside the 20 mile lateral limit was not withdrawn from sale until May, 1872. "Between the definite location of the road in 1865 and the withdrawal of lands outside the 20 mile limit in 1872, the greater part of the land opposite the eastern sections of the road was disposed of by the government, and therefore most of the land covered by the patents lies opposite the western sections." It would seem perfectly clear that, if title to land outside the 20 mile lateral limit passed to the company upon filing the map of definite location, then the government could not have disposed of the land opposite the eastern section after the filing of such map, and the railroad company, under the rule there declared as to the duty of the land department, would have been required to exhaust all lands in the alternate sections opposite each 20 mile section of the road before it could ask indemnity, for losses opposite one section, out of lands opposite a section further west. The case is direct authority against the position, even in that case, that title to land outside a 20 mile lateral line passed from the government upon filing the map of definite location. True, there was no specified lateral limit in that grant; but in the subsequent case of Wood v. Railroad Co., 104 U.S. 329, 26 L.Ed. 772, it was held that the...
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