NORTHERN PAC. R. CO. V. WRIGHT.
67
387, ·7 Sup. Ct.. Rep. 610... careful exatnimttion of all the facts alleged in the bill,andof the authorities'applicable to· such facts, we are of opinion court did not ew' in sustainmg the demurrer. The of the circUit court is affirmed. ' NORTHERN PAC. R.'CO. v. wItIGHT, County Troosurer. (Circuit Court ot Appeals, Ninth. CircIl1t. No. 59. PUBLIC LAN,DS-RAILROAD GRANTS-S'J:A'J:ETAXATION.
January 16, 1893.)
The grant ot lands to the Northern Pacifio Railroad Company under Act July 2, 1864, (13 St. at Large, p. 365,) was a present grant, whioh attached to the specifio sections as they beoaI1l.e capable of identification by the definite location ot the road; and upon a report by· the government surveyors that the lands surveyed are nonmineral suoh lands become SUbject to state taxation, although not segregated trom the pUblio domain, and although the land commissioner refuses to issue patents therefor until further satisfied that the lands are in faot 51 Fed. Rep. 68, atlirmed·.
Appeal from the Circuit Court of the United States for the District of Montana. In Equity. Bill by the Northern Pacific Railroad Company against F. E. Wright, treasurer of Fergus county, Mont., to enjoin the collection of taxes. . A demurrer to the bill was sustained, (51 Fed. Rep. 68,) and a decree entered dismissing the same. Complainants appeal. Affirmed. Fred M. Dudley, for appellant. H. J. Haskell, for appellee. Before McKENNA and GILBERT, Circuit Judges, and HAWLEY, District Judge. HAWLEY, District Judge. Tli.is is an appeal from an order and judgment of the circuit court for the district of Montana sustaining a demurrer to complainant's bill, which was brought against the county treasurer of Fergus county, Mont., to obtain a decree that the assessments and taxes levied for the year 1891 upon certain lands granted to complainant by the act of congress approved 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," (13 U. S. St. 365,) were illegal, and constitute a cloud upon complainant's title to said land, and to restrain the treasurer from selling said land fm.' said taxes. Railroad Co. v. Wright, 51· Fed. Rep. 68. The bill alleges, among other things, that the lands in question were within the limits of the grant; that the complainant's railroad has been completed and accepted; but the comm.issioner of the general land office has refused to issue patentS to complainant for said lands, as required by section 4: of the because complainant has failed and refused to :file with the commissioner affidavits showing the nOnnllneral character of the land; that the
68
FEDERAL REPORTER,
vol. 54.
qUet\tionas to whether SfLf,d lands" passed to complainant' is now pending! and .undecided before said commissioner of the general land officej that said lands have been surveyed by United States surveyors, and have beeJl' by them to be nonmineral lands; that complainant has prepared and filed lists in the United States district land offices, claiming the said lands as a portion of the lands granted to it by said actjthat said lists were filed, accepted, and approved by the United States land officers, and by them transmitted to the commissioner of the general land office; that the commissioner has required complainant to file in the general land office aff!,davits that the lands are nonmineral, and has to approve' or .' ceJ;tify fol' 'pattlnt said lists, until such affida'Vits are filed; that none of said lands have ever been certified or pafunted to complaina,nt; that neither the government of the nor its agents orofficera have ever determined what :la.nds in the sta..tl;lof Montana passed to complainant by virtue of said grant; that complainant has not, nor has anyone in its behalf, ·filed any affidavit by persons havin:." knowledge of the mineral or noomineral character of said lands; that the United States., ,hqlds the said lists suspended and unapproved for the reason' that it is claimed that said lands may be mineral in characft-0D;l thegvant; that the lands granted to never been segregated from the public lands, awl haN(l ne.v;er been identified, and. the boundaries of the speci;fio lands in·){Ol1tana.. so grftnted, have neyer been ascertained or de. termined.' .,.. .' .' .. , Counsel for appellant the decision rendered by the circuit court, and argues at great length, frol1lseveral different standpoints, to the effect that the averments of the bill clearly show that all the facts to determine :whetp.er the lands in question are within the description contained in the act of congress have never been ascertained; that they cannot be identified as lands coming within .;tJ!.\l.provisiollS of act, and have not been segregated from tp,e publicd9wain;that until such time as they are fully defined ftlld segregated from the public domain the lands. cannpt'betaxed '\lythe sta.te; that the lauds are not taxable untU the United Stl:\.tes ceases to hold or claim any such interest in them as to justify the withlto1ding of patents therefor; that they are not taxable while there remains any duty unperformed by the United States or its officers ofdetel,'mining the facts upon the existence of which depends appellant's right to have patents issued t9 it for said lands; that the determination of such facts is necessarily a condition precedent to the issuance of .such patents; that the lands are not taxable until appellant has and filed affidavits of their npnmineral character in the interior department of the government, if the officers of that department have any authority to demand such affidavits; and, finally, that the lands. are subject to e.xploration and location as mineral lands, and for this reason are not taxable. In support of this argum.ent. counsel cites a vast number of authorities, state andnati,onaJ, including numerous rulings made by the interior department. The sum ap.d substance of the elltire argument made
NORTHERN PAC. R. 00. 11. WRIGHT.
69
cept as to the right of taxation by the states. It is conceded by both parties that the words contained in the act, "that there be and is hereby granted," are words of absolute donation, and import a grant in praesenti, and are sufficient to vest a present title in the grantee, and such have been the uniform decisions of the courts with reference to the act in question and other similar acts granting lands to other railroads. Railroad Co. v.. Smith, 9 Wall. 95; Schulenberg v. Harriman, 21 Wall. 44; Leavenworth, L. & G. R. Co. v. U. S., 92 U. S. 733; Missouri, K. & T. R. Co. v. R:ansa-s P. R. 97 U. S.491; Railroad Co. v. BaldWin, 103 U. S. 426; Wright v. Roseberry, 121 U. So 488, 7 Sup. Ct. 985; Wisconsin Cent. R. Co. v. Price County, 133 U. S. 509, 10 Sup. Ct. Rep. 341; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. at. Rep. 389; Deseret Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. Rep. 158. The title of appellant to the odd sections of land conferred by the·act was at first an imperfect one, because, as is substantially stated in all of the decisions above cited., until the lands were identified by the definite location of appellant's· railroad, it. could not be known what specific tracts of land would be embraced by such sections. Until such a location was made the grant was a float. But when the rou'J;eof the railroad was definitely fixed the odd sections granted became certain, and the title, which was previously imperfect, acquireq precision, and became attached to such sections, and took effect as of the date of the grant; alid to all such lands appellant had an indefeasible right or title, and was entitled to a patent thereto, if not mineral land excluded from the operation of the. act, or "not reserved, sold, granted, or otherwise appropriated, and free from pre-emption, or other. clafuts or rights," as specified in section 3 of the granting act. The iSSuance of a patent to such lands was not,' therefore, essential to the title of appellant to the lands in controversy here,although it would undoubtedly have been of some service to it. From the averments of the bill it appears that the line of appellant's road was definitely fixed on the 6th of July, 1882, long prior to the. assessment and .levy of the taxes on the lands. It is specifically alleged in the bill that the lands are agricultural, nonmineral lands, and that no mineral of any character has been discovered thereon, and that the lands were "free from pre-emption or other claims or rights" on the 6th of July, 1882. It therefore necessarily follows that the lands in question were subject to assessment and levy for taxes, notwithstanding the fact that patents from the government of the United States had not boon issued to appellant therefor, and that the proper officers of the government had refused to issue the patents until proof by affidavits was made that the lands were nonmineral. According to the allegations of the bill, the lands had been surveyed, their identi:ticar tion fixed, and their character as nonmineral lands ascertained. It seems to us too clear to require any extended discussion that appellant cannot, under the facts alleged in its bill, defeat the righll
by counsel Is that appellant is the owner of the absolute title to all the lands granted by the act of congress for every purpose ex·
70 ",;
FEDEf,lAL ' " .;;, ' i
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v91. 54.
vf ;
lands, pro?f!,! i?; of the It to a patent. 'Appellant, upon WeprI;JlClples of Jaw WhICh we facts bl-thebill,is the of the land, aliq,' from its enjoyit ,should', not be to use the title, of, the government to avoid "jpst share of state taxation." WisCQnsin ,Cent. B. Co. v. ',' " ,', ()f thecjrcuit court is ,aftirmed. '
the
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Kll;LLY v.SPARKS, et ux. . (01rcu1t Cow;t. D.:Ka.Dsa& Janl18.l"Y 26, HOME8TEAD-AcQUl8ITIONBY IN80LVJl:N'1'-VALIDITY.
InEquity.B1ll by James O. Kelly agaiIlstRichard M. Sparks and ¥ary Sparks, his wife, to subject real estate· claimed as a home'stea.dto the of a'judgment. Dismissed. 'Pa-rld OverIIleyer and J,. S. .Hur4 & Dunlap and Sample, for defendants. '
FO$TER, District Judge. This is procee4ing in the nature of a crediWJ,'8' bill to subject real estate occupied by defendants as a h9niestead to the payment of a judgm.ent recovered by complainant, in the district court'of Kingman county at the May term, 1887, for a transcript, of which was subsequently roed in Barbour county, where said land is situate4. It is alleged in the bill that said RiCMrd M. Sparks .and was at the time said debt was contracted and' said purchaBed, .insolvent, and largely indeboo<l to various and that between the months of November, 1885, said defendant Richard M. Sparks sold and disposed of a large amoUnt of his prQpe.rty, reaJ., and personal, which was subjecf:q, the payment of his debts, with the plJ,fpose and inte:nt to hinqer, delay, and defraud th!s complainant alid his other creditors; and that said Sparks, with the said fraudulent intent, and to keep the proceeds of, said sale from being subjooted tp the payment of bis debts, did about April, 1886, with' said purchase the land in controversy, 160 acres, and did expend large sums of IDqney, to wit, $5,000, in erecting buildings and making other ,on said land, and now occupies and claim.El, the same .as his homestead; that said land, w.as so purchased and improvements, made by said defendant with the intent and purpose of defrauding"his credito:rs. by covering up and concealing his money and prl>perty under a homestead claim, and thereby
