27 Minn. 128 | Minn. | 1880
The defendant makes a great many exceptions to orders and rulings of the court below on matters of practice or upon evidence offered at the trial. We see none that affect the material facts of the case, and as it is evident that these orders and rulings did not prejudice the defendant in any way, we pass over them and come to the merits. Defendant claims that the act of March 3, 1865, (13 U. S. St. at Large, 526,) increasing the grant for the lines mentioned in the act of March 3, 1857, (11 U. S. St. at Large, 195,) from six to ten sections per mile, also changed that act so that no land can become attached to the grant until it shall be. indicated for the particular line by the secretary of the interior, and that, as none of these lands have been so indicated for the plaintiff’s line, none of them have become subject to its grant. We think section 2 of the act of 1865, which is claimed to have this effect, relates only to the selection of lands granted by that act, and was not intended to take away the company’s right to ascertain and identify the lands granted by the act of 1857, in the mode in that act prescribed.
The lands in controversy were all certified by the secretary of interior for the line of the defendant. The defendant’s line was located through the territory where the lands in controversy lie, in 1859; the plaintiff’s, in 1868. Until 1872 there was no selection of indemnity lands through this territory on behalf of either line. They were then selected first on behalf of defendant’s line. What is claimed as a selection in 1858 had no validity, for it does not appear ever to have been communicated or known to, or approved or acted on as a selection by, the secretary of the interior. As found by the court below, the lands in controversy may, for the decision of the case, be divided into four classes: First, those lying without the six, but within the fifteen-mile limits of defendant, and within the six-mile limits of plaintiff; second, those lying without the six-mile limits of each company, within the fifteen-mile limits of plaintiff, and with
As to the first of these classes — to wit, the lands within plaintiff’s six-mile limits — the members of the court are agreed in the result, to wit, that plaintiff is entitled to them, but arrive at such result upon diverse reasons. As to the second class, plaintiff’s claim to them, under the grant of 1857, is superior to defendant’s claim under the grant of 1864, (and it has no other claim to them,) and the plaintiff is entitled to them. As to the third class, the majority of the court are of opinion that the rights of the plaintiff and defendant are equal, and they are entitled to hold the land in that class in common. As to the land in the fourth class, the defendant is entitled to it. The result as to all accords with the decision of the court below.
Judgment affirmed.