7 Mont. 330 | Mont. | 1888
This is an action in the nature of an action of ejectment, andj in addition, brought to recover damages for trespasses, and to obtain an injunction restraining the defendant from the commission of
“ 1. The plaintiffs, at the times in the pleadings specified, derived all their right, title, and interest in and to the land mentioned in the pleadings by virtue of a deed of warranty from the Northern Pacific Railroad Company, a corporation duly organized under the act of Congress approved July 2, 1864.
“ 2. The title, right, and interest of the said Northern Pacific Railroad Company to the said land is derived from the acts of Charles B. Lamborn, the land commissioner of the said company, in selecting the said land, and the proceedings of O. P. Chisholm, the register, and John T. Carlin, the receiver, of the United States land-office at Bozeman, territory aforesaid, as mentioned in the following documents, duly filed in the said land-office, to, wit:—
“Land Department, Northern Pacific Railroad Co. List No. 3.
“Territory of Montana, U. S. Land-office at Bozeman, 1885.
“The Northern Pacific Railroad Company, under and by virtue of the acts of Congress, entitled ‘An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route/ approved July 2,1864, and ‘A resolution authorizing the Northern Pacific Railroad Company to issue its bonds for the construction of its road, and to secure the same by mortgage, and for other purposes/ approved May 31, 1870, and under and in pursuance of the rules and regulations prescribed by the commissioner of the general land-office, hereby makes and files the following lists of selections of public lands claimed by the said company as inuring to it, and to which it is entitled under and by virtue of the grants and provisions of the said act oí Congress; and the location of the line of route of the
“ United0 States Land-oitice, Bozeman, M. T., March 20, 1885.
“We hereby certify that we have carefully and critically examined the foregoing list of lands claimed by the Northern Pacific Railroad Company, under the grant of said company by act of Congress approved July 2, 1864, and joint resolution approved May 31, 1870, and selected by said Northern Pacific Railroad Company, by Charles B. Lamborn, the duly authorized agent; and we have tested the accuracy of said list by the plats and records of this office, and that we find the same to be correct; and we further certify that the filing of said list is allowed and approved, and that the whole of said lands are surveyed public lands of the United States, and within the limit of fifty miles on each side, and that the same are not, nor is any part thereof, returned and denominated as mineral land or lands, nor claimed as swamp lands, nor is there any homestead, pre-emption, state, or any other valid claim to any portion of said lands on file or of record in this office. We further certify that the foregoing list shows an assessment of the fees payable to us allowed by the act of Congress approved July 1, 1864, and contemplated by the circular of instructions dated January 24, 1867, addressed by the commissioner of the general land-office to the registers and receivers of the United States land-offices; and that
(Signed) “ 0. P. Chisholm, Register.
“ John T. Carlin, Receiver.
[Here follows affidavit of O. P. Chisholm, as to foregoing being a true copy of list No. 3.]
“3. The said land is more than forty miles from the line of the said Northern Pacific railroad, and less than fifty miles therefrom, and is a part of the so-called ‘ lieu lands ’ of said company, within the indemnity limits, if properly selected by the land commissioner of said- company.
“ 4. The defendant’s intestate, in 1881, inclosed the land in controversy with other land, and on the first day of May, 1885, filed on the same in the said United States land-office at Bozeman aforesaid, under the desert-land laws of the United States. The said filing was rejected, and an appeal taken therefrom to the general commissioner of the land-office at Washington, D. C., where the same is still pending.
“ 5. The defendant’s intestate did not occupy the land in controversy as a resident, but lived upon the adjoining land, belonging to his father.
“ 6. The defendant’s intestate was using the land in controversy, at the times mentioned in the complaint, for ( pasturage, and warned the employees of the plaintiffs to desist from their labor for the plaintiffs thereon, and notified plaintiffs and their said employees to refrain from entering upon the said land, ami declared to them that they would not be permitted to possess the same.”
Prom these findings of fact the court found the following conclusions of law: —
“ 1. The deed to the plaintiffs from the Northern Pacific Railroad Company was in due form to convey to the plaintiffs the right, title, and interest of said company to
“ 2. The selection of the land in controversy by the said Lamborn, as the land commissioner of the Northern Pacific Railroad Company, according to the documents specified in and made a part of the second finding of fact herein, was not legal, and no right, title, or interest in said land vested in the said company by reason thereof.
“ The documents hereinbefore specified do not show in lieu of what lost lands the said Northern Pacific Railroad Company selected the land in controversy; they do not show that the tract selected lies nearest the land lost, and in lieu of which it is taken; and it nowhere appears that said selection by said company has been approved by the Secretary of the Interior.
“ 4. The plaintiffs must show in this action that the Northern Pacific Railroad Company made a valid selection of the land in controversy; and having failed to do so, it is ordered, adjudged, and decreed that the defendant go hence without delay, and recover his costs and disbursements herein expended, and that judgment be entered accordingly.
(Signed) “ J. H. McLeaky, Judge of said Court.”
We do not deem it necessary to review all the findings of law of the court, but shall content ourselves with determining the question whether the Northern Pacific Railroad Company had acquired title to the land in controversy, and was thus enabled to impart title to the appellants. The claim of the railroad company rests upon section 3 of an act passed July 2, 1864, entitled “An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route.” Said section is as follows: “Be it further enacted, that there be,
It will be seen, then, from the construction which the supreme court has given to this statute, that the right to select these “ lien lands ” is a mere float, and vests no title in the company until the selection has been made according to law. It is insisted, on the part of the appellants, that the company has the right to make the
Washington, May 28, 1883.
The Commissioner of the General Land-office.
Sir, — It is my desire to open for settlement, as speedily as possible, all the lands within the indemnity limits of the grant to the Northern Pacific Railroad Company not actually required to supply the lands lost in place within the granted limits. The grant should be adjusted at the earliest possible time, that the orders of withdrawal may he vacated without unreasonable delay, as indicated in my letter of the 17th inst. The unparalleled demand for lands for actual settlement by great numbers of persons, not only from foreign countries, but from the . older states, seeking homes, under the settlement laws, along the line and in the vicinity of the Northern Pacific grant, requires, for the best interest of the eountry, and for all parties concerned, that the withdrawals should not be' maintained any longer than is actually necessary for the adjustment of the guaranteed rights of the company. In order to facilitate the work of making selections, I think you should instruct the local officers that, when clear lists of selections, free from conflict or other objection, are filed with the district officers, and approved by them, said selections should at once be marked upon their books, and forwarded for final examination, leaving the ascertainment of lands lost in place to our office, instead of requiring preliminary lists of such lost lands, together with the indemnity lands, tract for tract, from the company, as heretofore. I am satisfied that the. work of adjusting the grant will go forward much more rapidly under this plan than under the former practice.
Very respectfully,
H. M. Teller, Secretary.
And also to the letter of L. Harrison, assistant commissioner, which is as follows:—
Generar Land-office, February 25, 1885.
Register and Receiver, Bozeman, Montana Territory.
Gentlemen, — Referring to your letter of the 10th inst., you are advised that on May 28, 1883, the Honorable Secretary of the Interior decided that the Northern Pacific Railroad Company should not be required to designate the lost lands in making selections of indemnity lands. If clear lists of indemnity selections by said company, free from other objections, are presented, you will admit the same, note the selection on your records, and forward the lists to this office, without requiring the company to designate the lost lands.
Very respectfully,
L. Harrison,
Assistant Commissioner.
The selection was noted in the land-office at Bozeman on the 20th of March, 1885, and the selections were presumably forwarded to Washington for' final examination, according to the directions of the letter of Secretary Teller. An inspection of that letter shows ns that the secretary directed “ that when clear lists of selections,' free from conflict or other objection, are filed with the district officers, and approved by them, said selections should at once be marked upon their hooks, and forwarded for final examination, leaving the ascertainment of the lands lost in place to the office of the land commissioner at Washington, instead of requiring preliminary lists of such lost lands, together with the indemnity lands, tract for tract, from the company, as heretofore.” The only effect, then, of making such selections, filing them in the office of the register at Bozeman, and having them marked upon his books, was to give to the railroad company an inchoate right to the lands thus selected. The direction of the secretary was that they should be forwarded for final examination, and that the
But we do not decide that the order of the secretary, in directing that the lists might be filed in the local office and marked in the books of the officers there, and forwarded to the land-office at Washington for final examination for the ascertainment of the lands lost, is a void order.
We do not deem it necessary to discuss the other questions arising in this case. We are asked by the appellants to take judiciaUnotice of the great losses which the railroad company must have sustained by reason of the Indian reservations, and of the settlements which
We therefore affirm the judgment of the court below, with costs.
Judgment affirmed.