Northern Pac. R. Co. v. Hussey

• Decision Date: 02 April 1894
• Docket Number: 122.
• Citation: 61 F. 231
• Parties: NORTHERN PAC. R. CO. v. HUSSEY.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F. 231

NORTHERN PAC. R. CO. v. HUSSEY.

No. 122.

United States Court of Appeals, Ninth Circuit.

April 2, 1894

J. K Toole and Fred. M. Dudley, for complainant.

Thos C. Bach (Lewis Penwell, of counsel), for respondent.

Before McKENNA and GILBERT, Circuit Judges, and ROSS, District Judge.

ROSS District Judge.

The bill, to which a demurrer was sustained by the court below was brought by the Northern Pacific Railroad Company to enjoin the appellee from cutting, felling, and removing timber from unsurveyed lands within 40 miles of the road the company named was authorized to build, and did build, under and pursuant to the provisions of the act of congress approved July 2, 1864 (13 Stat. 365), entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's sound on the Pacific coast,' by which act the Northern Pacific Railroad Company was incorporated, and power conferred upon it to locate, construct, and maintain a continuous railroad and telegraph line from Lake Superior, by the most eligible railroad route, on a line north of the 45th degree of latitude, to a point on Puget sound, with a branch, by way of the valley of the Columbia river, to a point at or near Portland. To aid in the construction of the road the company was, by the third section of the act, granted, subject to certain exceptions not here necessary to be stated-- '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 road whenever 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 preemption 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.'

The third section of the act further provided that:

'Whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections. * * * '

By the sixth section it was enacted:

'That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad. And the odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after their survey except by said company, as provided in this act; but the provisions of the act of September, eighteen hundred and forty-one, granting preemption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May twentieth, eighteen hundred and sixty-two, shall be, and the same are, hereby extended to all other lands on the line of said road when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre when offered for sale.'

The bill alleges that the complainant accepted the grant, and located and constructed the line of railroad and telegraph it was authorized to build, completing the construction thereof prior to the year 1888; that the portion of the line of the road opposite the lands constituting the basis of this suit was definitely located, and a plat thereof filed in the office of the commissioner of the general land office, July 6, 1882, and its construction completed early in 1883, and accepted by the president on the 8th of May of that year. It is alleged that the lands respecting which the suit is brought have not been surveyed by the government, but are within 40 miles of the complainant's road, and, when surveyed, will fall within township 11 N. of range 6 E. of the principal Montana meridian; that none of these lands are or ever have been, known mineral lands, but are nonmineral in character; that they are broken and mountainous, not adapted to agricultural pursuits, but are covered with a heavy growth of timber, for which alone they are valuable; that these lands were, on July 2, 1864, and at the time of the definite location of the complainant's road, and of the filing of the map thereof in the office of the commissioner of the general land office, public lands of the United States, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights; that all of the said lands belong either to the complainant or to the United States, complainant's right and title thereto being that conveyed by the aforesaid act of congress; that the United States have neglected to cause the said lands to be surveyed, although requested to do so by complainant, for which reason it is impossible that the lands embraced by the grant to the complainant can be distinguished from those owned by the government; that, notwithstanding these facts, the defendant, in October, 1892, after making application to the land department of the government for permission so to do, and the refusal of his petition, entered, without any right, authority, or permission, upon the said body of unsurveyed lands, including what will be, when surveyed, odd-numbered as well as even-numbered sections, and commenced to cut down the timber thereon, and to manufacture the same into saw logs, lumber, and other merchantable commodities, and to remove the same therefrom, and to sell and dispose thereof for speculation and purposes of merchandise; that he has so cut...