Southern Pac. R. Co. v. Townsend

• Citation: 62 F. 161
• Court: U.S. District Court — Southern District of California
• Decision Date: 28 May 1894
• Parties: SOUTHERN PAC. R. CO. v. TOWNSEND et al.

62 F. 161

SOUTHERN PAC. R. CO. v. TOWNSEND et al.

United States Circuit Court, S.D. California.

May 28, 1894

Joseph D. Redding, for complainant.

Joseph H. Call and Anderson & Anderson, for defendants.

ROSS District Judge.

This suit was brought in the superior court of Los Angeles county. To the bill, James R. Townsend and a corporation styled Big Rock Creek Irrigation District are made defendants, and in it it is alleged that at a certain stated date the complainant was the owner and seised in fee of certain lands designated according to subdivisions of the public surveys of the United States, situated in Los Angeles county, Cal., and aggregating 1,435.68 acres, which the complainant then agreed in writing to sell, and defendant Townsend to buy, for the sum of $3,589.20 in United States gold coin, of which sum Townsend at the time, paid $717.84. The remainder of the purchase money was, by the terms of the contract, to be paid at certain designated dates, with interest thereon, as provided for. The contract provided that the vendee should have the immediate possession and enjoyment of the property, in consideration of which he should pay all taxes and assessments imposed thereon, and, upon the full performance on the part of Townsend, his legal representatives or assigns, of his part of the contract, the complainant should execute to him, his heirs or assigns, 'upon request and the surrender of this contract, a deed of grant, bargain, and sale for the conveyance of said premises, reserving all claim of the United States to the same as mineral land. ' The bill alleges that the defendant Townsend failed to make any of the deferred payments at maturity, or al all, and failed to pay any interest thereon, and that the whole of such payments, together with the interest thereon, remain unpaid. It alleges that on October 19, 1892, complainant demanded of him payment of the several sums due under the contract, and at the time of demanding such payment, tendered to him a good and sufficient grant, bargain, and sale deed conveying the lands from the complainant to him in conformity with the terms of the contract, upon the return and surrender of the duplicate original contract then in his hands, the return of which complainant, at the time, requested. The bill further alleges that defendant Townsend entered into possession of the property under the contract, and still continues in such possession; that complainant is, and always has been, willing and ready and able to perform all of its part of the agreement, and, upon the full performance by the said defendant of his part thereof, to execute to him its grant bargain, and sale deed for the property, and offers to execute, and bring into court to be delivered to the defendants, or either of them entitled thereto, such deed, on the full performance on the part of the vendee of all of the conditions of the contract. The bill further alleges, on information and belief, that the defendant Big Rock Creek Irrigation District claims to have some interest in the contract, 'and in fact is now the assignee of the said defendant James R. Townsend; that whether this be so or not the plaintiff is not fully informed at the present time, and therefore demands of said defendant the Big Rock Creek Irrigation District to make answer to this complaint, setting forth what interest it or they have in said contract and land mentioned therein, and furthermore, if they are the assignees of the said defendant James R. Townsend, that the allegations of this complaint may apply to it or them likewise, and that they may be called upon to perform the said contract in all of its terms; and the plaintiff herewith offers to the said Big Rock Creek Irrigation District a grant, bargain, and sale deed for said land, duly executed, which shall be delivered to said defendant upon the performance of all the terms of said contract and the surrender of same. ' The prayer of the bill is for judgment that there is due to (from) defendant Townsend to plaintiff, upon the contract, $3,876.31, being the amount of the deferred payments, with interest; that he be required to make the payment thereof within 30 days from the entry of the decree, and otherwise perform the conditions of the contract; and that, in the event of his failure so to do within that period, defendant Townsend, and all persons holding the premises under him, be forever barred and foreclosed of all right, interest, and claim in and to the property under and by virtue of the contract, and be barred and foreclosed of all right to a conveyance thereafter; and that complainant be let into possession of the property; and that the contract be annulled; and for such other and further relief as the court may deem just and equitable. Within due time the defendant Townsend filed a demurrer to the bill, and the defendant Big Rock Creek Irrigation Company filed a petition for the removal of the suit, pursuant to the act of congress approved March 3, 1887, to this court, upon which petition an order of removal was made. A motion to remand the case to the superior court is now made by the complainant.

The petition for removal set up that the defendant Big Rock Creek Irrigation Company was, at the time of the commencement of the suit,-- November 1, 1892,--and still is, a corporation organized and existing under an act of the legislature of the state of California approved March 7, 1887, entitled 'An act to provide for the organization and government of irrigation districts, and to provide for the acquisition of water and other property and for the distribution of water thereby for irrigation purposes;' that the plaintiff executed to the defendant Townsend the contract set up in the bill; and 'that prior to the commencement of this suit, and after the execution of said contract, said Townsend, for a valuable consideration, did sell and convey unto your petitioner, by a good and sufficient deed, all his right, title, and interest in and to said lands. ' The petition alleges that the complainant claims to own the lands in question in fee simple, under and by virtue of the act of congress approved March 3, 1871, entitled 'An act to incorporate the Texas & Pacific Railroad Company, and to aid in the construction of its road, and for other purposes' (16 Stat. 573), but denies that complainant owns the said lands, or acquired any interest therein, under that act of congress or any other act, for the reason, among other reasons, that the lands in question were not, at the time that act took effect, public lands of the United States, but were reserved lands, to which other parties had acquired rights. It avers that the suit not only involves the construction of the act of congress of March 3, 1871, but also the act of congress approved March 3, 1891, entitled 'An act to repeal timber culture laws, and for other purposes' (26 Stat. 1095), with the provisions of which act petitioner alleges it has complied, and under and in accordance with sections 18 to 21 of which 'it is in the actual possession and occupancy of the said lands described in the complaint herein, and holds the same for right of way for ditches and canals and for reservoir purposes. ' The petition further alleges that the defendant Big Rock Creek Irrigation Company has located its ditches, canals, and reservoirs upon the lands in question, and holds the whole thereof for those purposes; that, at the time they were so appropriated by defendant comp...