203 P. 503 | Mont. | 1921
delivered the opinion of the court.
Action in ejectment. After the issues were made up, the cause was submitted to the court without a jury upon an agreed statement of facts, the substance of which is the following:
Section 15, township 14 north of range 46 east of the Montana principal meridian in Prairie county, Montana, the land described in the complaint, is an odd-numbered section within the limits of the primary grant of land made to the Northern Pacific Railroad Company,' the predecessor in interest of the plaintiff, b3r the Act of Congress of June 2, 1864. Patent for the section was issued by the United States to the plaintiff on June 10, 1913. The government survey in the field of the township and section was made in May, 1909, and the official plat of the survey was approved by the United States surveyor-general of Montana on January 12, 1912. The plat was approved by the commissioner of the general land office of the United States on August 14, 1912, and was filed in the United States land office at Miles City, Montana, the office of the district within which the section is situated, on November 15, 1912. At the time of the commencement of this action, in July, 1917, the defendant had been in the possession of the section for more than ten. years, a sufficient time to acquire title by prescription if his possession could operate as adverse possession against the plaintiff prior to the survey and identification of the section by the approval of the official plat of the survey in 1912. The court decided in favor of the defendant, holding that he had “acquired title to the land in question by adverse possession and had absolute title thereto as against the plaintiff.” Plaintiff moved for a new trial. The motion was denied. The cause is before this court upon appeals from the judgment and the order denying the motion.
By section 3 of the Act of July 2, 1864 (13 Stats, at Large, p. 365), the Congress granted to the Northern Pacific Railroad Company, its successors and assigns, in aid of the construction
As disclosed by his written opinion, which we find incorpo
The operation of the grant was considered by the territorial supreme court of Montana in several cases, namely: Northern Pacific R. R. Co. v. Majors, 5 Mont. 111, 2 Pac. 322, Northern Pacific R. R. Co. v. Lilly, 6 Mont. 65, 9 Pac. 116, and United States v. Godwin, 7 Mont. 402, 16 Pac. 850. While in all of these cases it was held that the grant of Congress was in praesenti, in none of them was it held that the definite location of the route was in itself sufficient to give title to the railroad company to any particular portion of the lands included therein, until the survey required by section 6 of the Act had been completed and approved. In the first of these eases, after examining a great number of decisions by the supreme court of the United States, the court said: “These decisions also determine for us (where the Act itself does not indicate the particular lands granted, but leaves their location to be specified in the future) when such a grant shall attach to the particular tracts, and become fixed and certain, until which it is a float, which in this case would be when the line of the road is definitely fixed, and the lands granted thereto ascertained. This is necessary to be done'to give precision to the grant and attach it to the particular tracts of 'land. When such line is definitely fixed, and the sections of land designated by the survey, the grant then becomes certain, and, by relation, has the same effect upon the lands thus designated as if they were specifically described therein. Therefore. we must conclude, now having in view simply sections 3 and 6 of the Act in question, that the grant takes effect as of date of the Act, and becomes attached to the specific tracts when definitely ascertained by the location of the route of the road and the survey of the lands.”
So in the case of Middleton v. Low, 30 Cal. 596, the supreme court of California in considering the question of a selection of lands in lieu of the sixteenth and thirty-sixth sections granted to the state for school purposes prior to the survey by the United States of the lands selected, held that the right of selection by the state could not be exercised until after survey had been made by the United1 States, and that a selection previous to such survey could not vest the title in the state or a purchaser from the state. The court said: “The reasons operating to prevent the state or her vendee from acquiring a title by the aid of a selection made, as in that case [referring to Grogan v. Knight, 27 Cal. 515], before the congressional survey, are equally cogent to show that title to any particular parcel of the lands granted for the purposes of public schools does not vest in the state until such survey has been made.
This court recognized the same rule in the case of Clemmons v. Gillette, 33 Mont. 321, 114 Am. St. Rep. 814, 83 Pac. 879. It held that, though the grant of school lands to the state of Montana operated for some purposes as a grant in praesenti conveying the fee, yet, until the official survey had been made, and the plat approved by the federal authorities, the grant was not effective to vest in the state title to any specific portion of the land described by the designation of section numbers only.
In the ease of United States v. Birdseye, 137 Fed. 516, 70 C. C. A. 100, the circuit court of appeals, in considering the question whether a particular odd-numbered section, two lines of which had been surveyed, was sufficiently identified to vest title in the railway company and its grantee so that the latter could lawfully cut timber thereon, held: “The partial survey by the United States of a section of public land by running lines on two sides of it is insufficient to identify it as an odd-numbered section, within the grant to the Northern Pacific Railroad Company, so as to relieve one cutting timber thereon from liability to the United States.” Again, in Carroll v. United, States, 154 Fed. 425, 83 C. C. A. 245, the defendant attempted to justify the inclosure of unsurveyed lands within the Northern Pacific Railroad grant by producing a deed of conveyance of a part of the land involved from the railway company, but the court rejected the evidence, holding: “On
These authorities conclusively determine the proposition that the title to particular tracts or sections of the lands granted does not pass from the general government to the grantee until they have been surveyed and identified. Until this has been done the federal government retains a proprietary interest in them, to the extent that it will exercise the same dominion over them as over its ungranted lands. (United States v. Montana Lumber Mfg. Co., 196 U. S. 573, 49 L. Ed. 604, 25 Sup. Ct. Rep. 367.)
It is true that the cases of Middleton v. Low and Clemmons v. Gillette, supra, involved the title to lands granted to the state by Congress in aid of the common schools, yet the grants were grants in praesenti, the same in general character as the grants in aid of railroads.
Upon this branch of the. case we agree with the learned
In considering this subject the supreme court of Iowa, in Grant v. Iowa Land Co., 54 Iowa, 673, 7 N. W. 113, stated its conclusion as follows: “Plaintiff insists that the title acquired by the grantee relates back to the grant, and therefore he will be regarded as the owner of the land from the date of the grant itself. Upon this position an argument is based supporting the claim that the lands were taxable before they were identified under the grant. It is undoubtedly true that for certain purposes defendants’ title may be said to begin with the grant, and when the grant is applied to its subject it may be said that the title existed from the day the grant was made. But the grantee in fact had no title to the specific lands until the grant was applied thereto. Until the lands were identified the grant was a float, as it is called by the' United States supreme court. « * * This doctrine of relation is a fiction intended to subserve the ends of justice in protecting the rights of the claimant of property; it cannot be invoked to defeat rights, or create a liability.” The same conclusion was announced by this court in the ease of Tyler v. Tyler, 50 Mont. 65, 144 Pac. 1090. The following eases are also in point: Lynch v. De Bernal, 9 Wall. 315, 19 L. Ed. 714; Schlosser v. Hemphill, 118 Iowa, 452, 90 N. W. 842; State v. Lake St. Clair Fishing & Shooting Club, 127 Mich. 580, 87 N. W. 117. All of them furnish support also for the conclusion stated above as to the necessity for the survey of lands granted before the statute of limitations begins to run in favor of an alleged adverse occupant. It is well settled that the statute will not run
The judgment and order are reversed, and the district court is directed to render judgment in favor of plaintiff.
Reversed and remanded.