Northern Pac. R. Co. v. Walker

• Decision Date: 01 January 1891
• Citation: 47 F. 681
• Parties: NORTHERN PAC. R. CO. v. WALKER, County Auditor, et al.
• Court: U.S. District Court — District of North Dakota

47 F. 681

NORTHERN PAC. R. CO. v. WALKER, County Auditor, et al.

United States Circuit Court, D. North Dakota.

1891

John C Bullitt, Jr., and Fred. M. Dudley, for plaintiff.

Edgar W. Camp, E. C. Rice, Wm. F. Cochrane, Marion Canklin, and Herman Winterer, for defendants.

Before CALDWELL and THOMAS, JJ.

CALDWELL J.

This action is brought by the complainant against the county auditors of 12 counties in North Dakota to perpetually enjoin them from collecting the taxes levied for the year 1889 upon that portion of the place lands granted to the complainant by the act of congress of July 2, 1864, situated in said counties. On filing the bill a temporary restraining order was granted. The cause is now before the court upon a demurrer to the bill.

1. The bill is not multifarious because brought against the tax collectors of 12 different counties. The questions of law and fact involved are common to all of the defendants, and the same relief is prayed against each of them. This community of interest in the questions at issue, and the relief sought make it proper to join all the defendants in one suit. It avoids a multiplicity of suits without imposing on any one of the defendants needless or oppressive costs or delay. Story Eq. Pl. Secs. 285, 285a, 534; Railway Co. v. McShane, 3 Dill. 303, 22 Wall. 444. The rule is now settled that a bill will be sustained 'by a single plaintiff against a numerous body of persons to establish his own right, and defeat all their opposing claims, where the claims of those persons are legally separate, arose at different times and from separate sources, and are common only with respect to their interests in the questions involved, and in the kind of relief to be obtained by or against each.' 1 Pom.Eq.Jur. § 274. The rule goes beyond what is necessary to sustain the present bill; for in this case the defendants' claims not only rest on the same law and facts, but arose at the same time and from the same source.

2. THE first ground upon which the injunction is asked, is that the lands are not taxable. It is said they are not taxable because no patent has been issued to the company for them, and that the commissioner of the general land-office, under the directions of the secretary of the interior, has required the railroad company to file in the office of the commissioner of the general land-office, or in the office of the United States land district in which the lands are situated, an affidavit, made by some person acquainted with the character of the lands, showing that they are non-mineral, and refuses to certify the lands for patent until such affidavit is filed, and that the secretary of the interior and the president have refused to certify or patent the lands, claiming that they are unable to ascertain or determine whether or not the lands are mineral in character.

The third section of the act making the grant reads as follows:

'That there be and is hereby granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe transportation of the mails, troops, munitions of war, and public stores over the route of said railway, 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 as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad where it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land-office: * * * provided, further, that all mineral lands be and the same are hereby excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road may be selected as above provided.'

The supreme court has decided that by force of the provisions of this section the title to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the grant, passed to the railroad company, and that no patent is necessary to invest the company with the title to such lands. Construing the grant, the court say:

'The language of the statute is 'that there be and hereby is granted' to the company every alternate section of the lands designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but when once identified the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. ' St. Paul & P.R. Co. v. Northern Pac. R. Co., 139 U.S. 1, 11 S.Ct. 389.

The averments of the bill as to the definite location of the road, and the survey and identification of the lands, are full and explicit. The bill alleges that the railroad company definitely fixed the line of its railroad, and filed a plat thereof in the office of the commissioner of the general land-office, on May 26, 1873, and July 20, 1880; that the lands mentioned in the bill are the odd-numbered sections within the limits of the grant, on either side of the line of the railroad so definitely fixed; that the railroad has been built and accepted by the government, and is now being operated by the company; that at the date the line of the road was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office, the lands mentioned were public lands, to which the United States had full title, and that they were upon the records of the district land-office, and of the office of the commissioner of the general land-office, free from pre-emption or other claims or rights. It is further averred that the lands have been surveyed by United States surveyors, and by them reported to be non-mineral lands, and agricultural in their character, and that they were not on July 2, 1864, or May 26, 1873, or July 20, 1880, known mineral lands, and no mineral, other than coal or iron, has ever been discovered upon or in them. It is also averred that in compliance with the directions of the secretary of the interior the railroad company has filed lists of said lands in the district land-offices, claiming them under the act of congress, and that these lists were approved by the district land-officers, and transmitted to the commissioner of the general land-office. Assuming these averments to be true, the lands are within the terms of the grant, and the title to them has vested in the company. The reports of the deputy-surveyors of the United States, that the lands were agricultural and not mineral lands, have the force of depositions, and are prima facie evidence, at least, of the character of the lands. Kirby v. Lewis, 39 F. 75, and cases cited; Cowell v. Lammers, 10 Sawy. 253, 21 F. 200.

But it is said that mineral may be discovered in some of these lands at some future time, and that when such discovery is made it will then be apparent that such lands did not pass by the grant. Mineral lands are undoubtedly excluded from the grant but there must be a time and mode of determining, once for all, what lands are mineral. The determination of this question...