GEORGE V. RIDDLE.
689
GEORGE et al. v. RIDDLE et at (Circuit Court, D. Washington, S. D. ;\fay 22, 1899.)
PUET,IO LANDS-NoRTHERN PACIFIC RAfLIWAD GRANT-RIGHTS ACQUIRED BY PRIVATE ENTRY-COMPELLING CONVEYANCE BY PATENTEE.
The provision of section 6' of the l!-ct of July 2, 1864 (13 Stat. 365), making a grant of lands to the Northern Pacific Railroad Company, that "the odd sectionsof,land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed by. company as provided by this act." affected only lands wlthl11 lImIts of the grant as fixed by the definite location of the road; and the fact that land at the time of its cash entry by an individual was within 40 miles of the line of road as shown bY the map of general route theretofore filed, the lands not having been withdrawn from private entrv, did not affect the validity of such entry, where the land was outside the limits of the grant as subsequently fixed by the map of definite location, and was never elaimed under the grant by the railroad company. Nor could the purchaser be deprived of the equitable title to such land by the arbitrary action of the land department. taken after the definite location of the railroad, and after his grantees had entered into possession and made improvements, in eanceling his entry without notice to such grantees or the return of the purchase money, and in patenting the land to on a subsequent entry; and where such entry was made with knowledge of the facts, and of the possession and claims of the grantees of the former purchaser, a court of equity will compel a conveyance from the patentee to the equitable owners.
Suit in equity against the holder of a United States patent for land, of which the plaintiffs claim to be the equitable owners, Jor a decree directing a conveyance of the legal title, and to cancel a mortgage given by the patentee. Richard H. Ormsbee, Melvin M. Godman, Thomas H. Brents, and Wellington M. Clark, for complainants. B. L. & J. L. Sharpstein, for defendants. HANFORD, District Judge. The undisputed facts in this case, briefly stated, are as follows: On November 8, 1870, the land in controversy appeared upon the plats in the land office for the district in which the same are situated to be vacant, unappropriated public land, offered for sale under the then existing land laws of the United States at private cash entry; and on said date James K. Kennedy made application to purchase the same, and paid the price therefor to the receiver. The officers accepted the application and money, and issued to said purchaser a patent certificate, stating that he had purchased and paid for the land according to law, and was entitled to receive, a patent therefor; but no patent has ever been issued to him or to his vendees. Nearly two years after the entry, and before any proceedings to cancel the same had been commenced, said purchaser sold part of the land to one George, and the remaining part to one Bruce; and immediately thereafter these vendees caused their deeds to be properly recorded in the public records of 'Valla Walla county, in which the land is situated, and inclosed the same by substantial fences, and commenceJ cultivation thereof, and have made valuable improvements thereon; and they and their successors in interest have, ever 94 F.-44
690
94 FEDER,6.L.REU?ORTER.
since the date mentioned, held actual, visible, and exclusive possession of said land, except'as hereinafter recited; and the plaintiffs now claim to be. the equitable owners, as the lawful successors in interest of their ancestors, George and Bruce, the vendees of the original purchaser from the g6vernment. The land is part of an odd-numberedsection, but not part ofthe.grant}o the Nori;hern Pacific Railroad ()()mpany, because not within, the limitS of the granted land" as fixed and determined by thedefiiIite locati0n of the line of the raih,'oad, and it has not been selected6r claimed by the railroad company.as lieu landi. Nevertheles's the land department has assumed to cancel the above-mentioned' cash entry on the ground that at the date of the entry the land was not subject to sale, because situated,witpin 40 miles of'the of the general route of the Northern Pacific Railroad, as indicated on a map filed in the general land officeon· the 13th of August, 1870.: The only aufo,ority for canceling the entry 'Claimed by the land department or the defendants is found in the 6th Section of the charter of the Northern Pacific Railroad (Act JU:!y 2, 1864 [13 8ta1.365]), which reads as follows: "Sec. 6. 'And be it further the president of the United States shall cause the lands to .be surveyed for forty miles in width on both sideS of the entire line of said. road/ after the general route shall be fixed, and af\ fast as may be required by :theconstructioJ:l< of !laid railroad; and the odd sections of land hereby granted shall not be liable to sale,or entry, or pre-emption before or after they are surveyed, except by said company as provided iIi this act.
691
the George tract was in. possession of said pu'rchaser,' he' neglected to keep up the fences, said defendant made entry upon the land in his father's through a gap in the fence, and erected a house thereon, and. thereafter filed an application in the land office to enter the entire "tract, including the portion in possession of the Bruce family, under the homestead law. At and previous to the time of initiating his homestead claim, said defendant was fully informed as to all. the facts jn regard to the cash, entry and sale of the land to GeotgeandBruce, and their possession,: cultivation, and improvement of itl '3:8 a'J)'ove recited. In the face of all these facts the land departme;nt allowed the entry of Riddle to stand, and a patent for the land has been issued to him. After he received his patent and before the issuance of the patent, and while Bruce and. George were in possession of the land, asserting their ownership, Riddle mortgaged 'the lundtio Krutz, his co-defendant. It seemS hardly neceS)Sary to make any comment upon the above facts, and the rights of the complainants are so obvious that the ground for discussion of legal questions is very narrow. It seems tome that it would be difficult to a more flagrant case of dishonest landjumping, and, if the proofil'wei'enot in,disputable, it would scarcely be believed that the land department could have given support to Riddle's claim. With entire fairness to the defendants, the preliminary part of the argument made in lheirbehalf may be condensed into the simple proposition that the patent is a conveyance of the legal title to the land from the' government to the defendant George M. Riddle, and, so far as affects the inquiry in this case, the defendll.uts have a perfect and vested right to the land, nnless the complainants, ,show' affirmatively that their rightto the land isparamonnt in equity; This much must be. conceded in their favor, and the whole controversy must be determined by a decision of the. single question whether the cash entQ' made by Kennedy is valid, notwithstanding the attempted cancellation of it by the land department. The facts being undisputed, the decision of the land department was necessarily a decision of a question of law, and, jf erroneous, the court is not precluded from considering the case freely, as ifthere had been no such attempted adjudication. Individuals Who purchase land from the government pursuant to the public land laws of the United States acquire thereby vested rights, which cannot bedevested by the mere arbitrary pronouncement of officers of the land department. Cornelius v. Kessel, 128 U. S. 456-463, 9 Sup. Ot. 122. The argument against the validity of Kennedy's cash entry rests entirely upon the authority of the decisions in the following cases: Buttz v. Railroad Co.; 119 TJ; S. 55, 7 Sup. Ct. 100; Railroad Co. v. Orton, 6 Sawy. 1'57, 32 Fed. 457; Knevals v. Hyde, 6 F.ed. 651. 'l'hesecases are relied uPon to support the con· tention that the clause of the sixth section of the NOrthern Pacific Railroad Company's charter above quoted must operate by its own force to· withdraw from market all odd-numbered sections of land within the specified limits on each side of the line of the general route of the raH'I'oad, immediately upon filing the map thereof in the general land office; and: the V'alidity of said: cash entry hn10t questioned by the defendants on any other ground than this: that the land was
()92
94 FEDERAL RllJP,OaTER.
notsubjeet to sale 8, 1870, because it was situated by, .t4e, D,?-apof tlle,; general route of the within $:8id limitsl as NortherJi facific' Railroad Company previously '. this land was within t4e limits of the grant as the same had been fixed by the definite of the line of the oJ;'thern Pacin,c, 'Railroad, the cases citedwouId attentioll, and it would be necessary to d{:termine"whether, il\ view of the later dec1arl\.i;ions of the supreme court, they might be safely trustwortpy guides leading to the correct interpretation, of the grant.. '.the statement in the opinion by Mr. Justice Field in the CilSe of Butfz'v, Railroad Co" that "When the general route of .!h,e is thus'fi.xed in good faith, and information thereof give:t;l to the lalld departIDenJ py filing the map thereof wHb of the generallap,d, office 01' the secretary of tl;1e interior, the l::tw withdraws from sale or pre:-emption the {ldd sections to the extent of 40 is not warranted by wordilo( the charter, ,and is inconsistent ",WI. recent decisions of the sUP!'eWfl, in th,e' IIp,lI,road Co. v. Sanders, 166U. 17 Sun. Ct. 671; wherein 'court, in ,the delivere 4J1y::,:h;fr. 9uotillgfrom1J.1eslxth sectIOn the clause WhICl;1IS supJ}p.sed to VIZ. "the odd sections oOl:\-lldhereby g'ranted shall! ,n,qtbe liable tp sale or entry or preemption before or after they are surveyed, exceptby said company, as provided in this act," fllakes the follq'ring comment: "But this section Is not to ,be construed witholIt, reference' to other sections of the art., It must be, taken .1n cO,nnectloJl, with 3, IWlrnifestly con,that right of pre-emption or other claiD;is lI:nd rights might accrue or become attllched to the lands granted after the 'genera1 route of the road was fixed,·and'before theHne of definite location was established; · · · The third and sixth sections must be taken, together, .aDd, So taken, it must be judged tbat nothing in tbe sixtb sectilW, i preventell the government from disposing of.apy of the lands Pl.'lor to the the line of definite location, or, for the reasons stated, from receiving, under the existing statutes, applications to purchase SUch lands. as mineral lands." ,
However, JUs unnecessary to review and cont1.'l\st the djflerent decisions in which this sta,tute has been c()nsideration, for the reason that the cafles cited by counsel for the defendants, are so different from the case ,under consideration that they do not bear at all upon the point to which attention must be directed infhis case. It must be kept in mind that the land here in controversy is not within the limits ()f the grant to the Northern Pacific Railroad Company, as fixed by the definite locatIQu of its line, so that the grant never in fact became attached to this land, and no right to the land is being asserted by the railroad company, or by virtue of any purchase from the railroad com· pany. In the case of Knevals v, Hyde the court did not have to construe the grallt to the Northern Pacific Railroad Company, nor any similar act of congress. ' The opinion contains no allusion whatever to any map of general route preliminary to the definite location of the railroad, and,the decision of the court is to the effect that the line of the railroad had been definitely fixed, that the grant had actually attache4to the land in controversy, arld, the equitable title thereto becatnevestedin,the company, prior to the origin of the adverse title claimed by the defendant. In each of the other -cases the title of. the
SANITARY REDUCTION WORKS V. CALIFORNIA REDUCTION CO.
693
railroad company under a grant from congress was involved, the land in controversy being within the limits of the grant as fixed by the definite location of the company's line. These cases are not in point here, for the reason that the lands involved in this case were not granted by act of congress to the Northern Pacific Railroad Company, and therefore are not within the terms of the sixth section, which provides for surveying a strip 40 miles in width on both sides of entire line after the general route shall be fixed, but says nothing about restricting sales or entries of odd-numbered sections within 40-mile limits. The restricting clause refers only to land granted by the act, and cannot by any rule of construction be extended so as to inter'fere with the sale by the government of lands not granted. "Any other interpretation wouldde'feat the evident purpose. of congress in excepting from railroad grants lands upon, which claims existed of record at the time the road to be aided was definitely located." Railroad Co. v. Sanders, 166 U. S. 630,17 Sup. Ct. 674; Menotti v. Dillon, 167 1'. S. 720, 17 Sup. Ct. 945. The whole case may be summed up in a few words: Kennedy's cash ('TItry was made in good faith in accordance with the laws existing at the time it was made, and the government has reeeived and retained his money. Naught appears to affect the validity of the entry, except the order canceling it, made upon no other ground than an assumption that it conflicted with the rights of the Korthern Paeific Railroad Company under its congressional grant. The entry does not conflict with the grant to the Northern Pacific Railroad Company, because the land istmtside of the limits of the grant, and the entry does not even conflict with any regulation or order of the land department in force at the time it was made or at the time the cancellation was ordered. I must therefore conclude that the plaintiffs have established their claims as equitable owners of the land in controversy, and they are entitled to have a decree requiring the Riddle to convey to them the legal title, and declaring the mortgage held by the defendant Krutz to be void in so far as it affects the land in controversy, and to have an injunetion forbidding any proceedings to foreclose said mortgage or to enforce any rights thereunder.
SA;\ITARY REDUCTION WORKS OF SAX FRAXCISCO v. CALIFORNIA REDUCTIOX CO. et al. (Circuit Court, l\'. D. California. 1'\0.12,714.
:\fay 25, 1899.)
1.
PHELIMINARY INJUNCTION-NATURE OF EVTDENCE BEFORE GRANTING.
The granting of a provisional injunction rests in the sound discretion of the trial court, and it is not necessary that the court should, before granting It, be satisfied, from the evidence before it, that the plaintiff should certainly prevail upon the final hearing of the cause.
2.
MUNICIPAL CORPORATIONS-MoDE OF GRANTING FRANCIIISES A::-<D PRIVILEGES -STA'fUTES OF CAJ,IFOHNIA.
St. Cal. 1893, p. 2!Y,J,. § 1, prescribing the manner in which franchises an,d privileges shall be granted by illunicipalities, and providing that they