WASHINGTON & I. B. CO. V. COEUR D'ALENE BY. & NAV. CO.
765
WASHINGTON
& I. R. Co.
t7. CoEUR D'ALENE
Ry. & NAv. Co.
(Circuit Court, D. Idaho.
October 21, 1892.)
L
The act of March 8, 1875, (1 Supp. Rev. St., 2d Ed., Ill,) among other things grants a right of way over public lands to any "duly-organized" railroad company which shall have filed with the secretary of the interior a copy of its articles of inCOl'J;'oraation and "due proof" of its organization. HeLd, that the "due organization, and the furnishing oi "due proof" thereof, are conditions precedent to the acquirement of any right to such right of way. II. &ME. Under this act, when a railroad company, organized under a territorial statute requiring its route to be set out in some detail in its articles of incorporation, subsequently changes its route, by filing supplemental articles, so as to cross certain public lands. it is "organized," for the purpose of building a road over such lands, only from the date of the supplemental articles, and can only acquire a right of way on furnishing due proof, in the manner specified. of such organization. S. SAME. Where tbe only evidence tbat a railroad has filed the documentary proof of organization is a copy, certified by the commissioner of the general land omce, of a communication from the president of the railroad to the secretary of the interior, stating that the former transmits therewith the necessary documents, which communication is indorsed as received at the interior department on a certain date, sucb date is the earliest at which the railroad can have acquired the right of way. 4. SAME-DuE PROOF OF ORGANIZATION.
PUBLIO LANDS-RAILROAD RIGHT OF WAY-How AND WHEN ACQUIRED.
II.
Laws Mont. T. July 6, 1886, § 1l01, provide tbat the due incorporation of a comshall. without further proof or acts, operate as its organizatlon. Held. that the filing with the secretary of the interior of a copy of articles of incorporation of arailroad under said statute, and a copy of the statute, operates as proof of the orga)lization, within the meaning of 1 Supp. Rev. St. 91, and the right of way over publio lands therein granted is acquired at tbe date of such filing. A survey by a railroad wbioh bas not yet complied with the conditions of tbe statute confers no rights, as against another railroad which has complied with such ' conditions, but has as yet made no survey. Section 4 of the aot (1 Supp. Rev. St" 2d Ed., 91) provides, among other things, that a profile of the road, if on surveyed public lands. shall be filed within 12 months. A railroad surveyed three routes over unsurveyed public lands, and by mistake filed a plat showing the wrong route. Another railroad had previously made an unautnori'zed survey. but tOOK no further steps until the first road was completed and in operation. Held, the first road was not required to ille any plat. and the ee<:ond road was not misled or damaged by the filing of the erroneous plat. LANDS-ERRONEOUS PLiT FILED BY :MIsTAKE.
SAJlIIl-UNAUTHORIZED SWVIllY.
At Law. Action of ejectment by the Washington & Idaho Railroad Company against the Coeur d'Alene Railway & Navigation Company and others for a right of way over public lands. Judgment for defendants. D. a. Lockwood, for plaintiff. McBride & Allen and Albert Hagan, for defendants. BEATTY, District Judge. This action is ejectment for a ranroad right of way, consisting of a strip of ground 200 feet wide by 4,100 feet long, at the town of Wallace, Idaho, and on the unsurveyed public lands of the United States. Only the first-named defendant appears in the action, and each party, for its claim to the premises in controversy, relies upon the provisions of the act of congress approved March 3, 1875, (1
768
vol. 52.'
Supp. Jlev. f?h,,2d Ed., 91 ,) by section 1 of which His provided that the right-col wQt"throl'lgh the public lands' to any railroad duly organized under the laws of any state or territory. * * * which of its articles shall have filed with the secretaryat' the of incorporation, and due proof of its organization under the same." be the subject It reqnires, the performance of certain' conditions prior to' the operation of the grant, The righ:tJs not to a corpbrlition to be, but to one 'that is, organizecli not, to one' w,hioh· shall subsequently file its .articles of incorporation, and due proof of its organization, but to that which has done. so. Thegoverument simply makes an, offer which r\pens in,to a grant or a instantt4e' prescribed conditions are performed. An attempttoexercise the privilege doesuot,. through relation, become a vested right by those the several steps recited in the statute-the organization of the company and the its articles of incorporation and the proof .of such organizabe taken by any corporation, before it can obtain any claim whatever to such right Qfway over the,public lands,and any of its acts or.claims to proCure.suchrlgh,t prior to a compliance with the statutory conditions,being without the authority oflaw, can confer no rights; and certainly not as al:tainst the which does comply with the law. Attention 'has not been directed to any construction of this statute: by the national courts,bQt the foregoing views maybe inferred from, if not fully sustained by, New Brightonc!cN. {J. R. Co. v. Y. c!cG. R. Co., 105 Pa. St. 13. Railroad Co. v.Sture, (Minn.) 229 jRailr()ad v. Davis, (F:la.) 7 South. Rep. 30; 20 N. W and Larsen v. Railway Co., (Or.) 23 Pac. Rep. 976. . From the testimony it appears the plaintiff company was organized July 3, 1889, ,under the laws of Washington Territory, but whether duly organized according to· those laws has not· been shown, nor are they, as they then existed, now accessible to the court; but from the 'facttba,t plaintiff, in its articles of incorporation,set out in some detail ·the general description of the proposed route its road would take, it may bepresumeqthe statute of said territory provided, as most statutes upon ·the same subJect do, that such route and the termini must be described in the articles of incorporation. It appears by pl,aintiff'ssaid articles ·that its proposed road was to run from a point in said territory to the town of Wardner, in Shoshone county, Idaho, whicb did not include the right of way or ground in controversy. It follows, therefore, by plaintiff's own showing, that' when it was so organized it was not for the purp9se of building a. road over this ground, and, it not . then "claim anf:right of way6vel' it. It by supplemental articles ofincdrpOration,entered into on the 8th day 'Of November,1886, provide for an extension 'of its road through the town of Wallace, over and therein described the route of the same. ·the premises This latter date is theref6re the earliest at which plaintiff was organized to build a road over such premises.·
ca.
I
'
WASHINGTON &; 1.R. 00. V. OOEUR D'ALENERY. &; NAV. CO.
767
That plaintiff has filed with the secretary of the interior copies of its articles of corporation, original and supplemental, and due proof of its organization, 1.$ cleatly shown. The only evidence tending to lish Illlcll facts is what is, certified by: the cOlUmissioner .of the geqeral land office to be a copy ofa communication .of the president of plaintiff corppany,. addre;;sed to the secretary of ,the interior on December 2, 1886,1n which it is stated that he transmits therewith, tOflaideecretary, "a copy of the .articles of incorporation," and a copyofthe Washington statute under which the incorporation was made,. which bears an indorsement of its receipt at the interior department, on the 22d day of December,1886., .andthat it "incloses copy of articles nf incorporation and due proofof organization." While . this is not an explicit statement that a oopy ortQe!jlupplemental articles was also filed, yet it maybe admitted it was it follows that the 22d day of.l)ecember, 1886, WaS earliest date when, by a compliance with the other conditions of the s1atuie,,(the plaintiff was fully authorized to enter upon the disfor the purpose of claiming or occupying them as a right puted of way for Upon,.this last-named date the grant from thegovprovideli. such premises were then unlflaiwed public lanll.. ;: . ... . ThedefemJant {the Coeur d'Alene Railway.& Navigation Company) was iR,coJ'PQrated under the laws of 1yIontana territory on the 6th day of July, 1886, and in its articles desc,ribes and includes, asa portion. of its proposed railroad route, the premises in question. On the 20th day of the same. month it filed with the secretary of the interior a copy of its said articles, and a copy of the Montana statute under which it was incorporated, copies of both of which, officially certified to by the commissioner of the general land office, are in evidence. Section 301 of said Montana statute provides that the due incorporation of a company shall, without further proof or acts, operate as its organization; hence filing with the secretary proof of the incorporation operated also as proof of the organization. It thus appears that defendant, by said 20th day of July, had fully complied with the statute, and was on that date authorized to take any steps necessary for the possession and acquisition of the right of way in controversy, and in this respect was prior to plaintiff. On October 29, 1886, defendant ran the survey of its line over such premises, being the day after the plaintiff surveyed its route over practically the same line. But, as before concluded, the plaintiff was not authorized to take any possession of the premises prior to the 22d day of December, 1886. Its said survey, on the 28th day of October, 1886, conferred no rights whatever upon it as against defendant. It is also urged by plaintiff that defendant surveyed three different lines at said town of Wallace, indicated on exhibits as "A,» "B," and "C," the last being the one in dispute, and that on the 8th day of November, 1886, it filed in the local land office a plat of its route in which line B was indicated as the one adopted, and that plaintiff was thereby misled to its injury. The evidence shows that the filing of line B was not to
FEDERAL REPORTER,
voL 52.
deceive plaintiff, but was done by mistake, and that C was the line adopted;a.odthe one of which it was intended to file a plat. But can plaintiffcom.plain of this? The only provision of said act of congress requiring the' filing of such plat in the local land offioe is that of section 4, directing that,within 12 months after the location of any section of 20 mUes of toad, if upon surveyed lands, or if upon unsurveyed lands within 12 tIionths after the survey thereof by the United States, the plat of Bame sh8Jl be so filed·. It may be doubted that the filing of such plat is required for the pnrpose of giving notice to others who may desire to occupy such lands, but, as such filing is not required until after the lands are surveyed, it seems more probable that it is to operate as notice to the government that it may exclude from its sales of lands such located rights of way. However this may be, it appearing that, at the times above named, the larids were unsurveyed, the defendant was not required to file any plat. '. But it further appears that plaintiff, after making its unauthorized survey on said 28th day of October, did no other act upon the premises nor took anJ possession thereof, until it made another survey in the year 1888, prior' to which defendant had completed its road over said premises, and was in full operation and possession of the same. Plaintiff cannot, therefore, complain that it was misled or damaged by such erroneous filing of said plat. The judgment must be that plaintiff ta.ke nothing by this action,and that defendant recover its costs, and it is 80 ordered.
'O'HARROW
v.
HENDERSON.
769
Q'HARROW
HENDERSON
'et al.
(C1Ircuit Court, D. Ind:tana. Ootober 10, 1892.)
No. 7,958. RBMOVAL OJ!' CAUSES-JOINT DEFENDANTS-SEPAlUBLE CONTROVERSY.
An action for wrongful arrest and imprisonment and for malicious prosecution, instituted in a state court against two defendants jointly, cannot be removed by either into the federal court, under Act March 8, 1875, § 2, upon the ground of a separate controversy; and the fact that the defendant seeking removal has filed separate defe,nses doea not make allch cause of action aeparable.
At Law. Action by John W. Q'Hurrow against John W. Henderson and the Adams Express Company. On motion to remand. Granted. Statement by BAKER, District Judge: On the 1st day of April, 1885, the plaintiff, O'Harrow, filed his complaint in two paragraphs in the superiotcourt or Marion county, Ind., against the defendant Henderson and the express company. The first paragraph is for the recovery of damages for wrongful arrest and imprisonment withppt warrant or process of law. The second is Jor malicious prosecution. On the 17th day of April, 1885, the defendant the Adams Express Company filed its motion in writing to quash the return, of service of pr0gess upon it, which was overruled by the court. On the 17th day of April, 1885, the defendant Henderson filed his separate answer in three paragraphs. .Two paragraphs were special, and one in denial. On the 30th day of April, 1885, the defendant Henderson filed his separate, verified petition, accompanied by a proper bond, praying for the removal of the cause from the state courtintotbis court. On the 2d day or May. 1885, the prayer of the petition was granted,and the said cauS$ was ordered to be transferred into·tbiscourt. The plaintiff moves to remand. Claypool &: Ketc1uJnn, for plaintiff. Baker &: Daniels, for defendants. BAKER, District Judge. (after stating the !acf8.) This is an action sounding in tort for wrongful arrest and im prisonment and for malicious prosecution. The wrongs are alleged to have been jointly committed by the defendants. The cause must be remanded. One of two or mote defendants, sued as joint wrongdoers, cannot remove such cause of action from a state court into the United States circuit court. It has often been deCided that an action brought in a state court against two, jointly, for a tort, cannot be removed by either of them into the circuit court of the United States, under Act March 3, 18'(5, c. 137, § 2, upon the ground of a separate controversy between the plaintiff and himself. The fact that the defendant asking the removal has filed separate defenses does not make the cause of action separable, although the plaintiff might have brought the action against either alone. Pirie v. Tvedt, 115 U. S. 41, 5 Sup. Ct. Rep. 1034, 1161; Sloane v. Ander8on, 117 U. S. 275, 6 v.52F.no.9-49