Northern Pacific Company v. Colburn

On April 23, 1892, defendant in error, as plaintiff, filed in the district court of the county of Gallatin, Mont., his complaint against the railroad company to recover a sum of money paid as the contract price of a tract of land conveyed by it to him. The contract was alleged to have been made on January 16, 1886, by the company, with Nathan Frost, who, in the same year transferred his interest to John R. Foster, who, in 1888, in like manner conveyed to the plaintiff. Payments by the terms of the contract were to be made, and were made, on January 16 of the years 1886, 1887, 1888, 1889, 1890, and 1891. The complaint further alleged that the railroad company did not have, and could not convey, any title to the land; that in January, 1891, in certain proceedings in contest, the secretary of the interior decided that the land did not pass under the land grant to the railroad company, but was subject to entry and patent under the general land laws of the United States; and that during that year a patent was issued to the plaintiff.

The railroad company answered, setting up the act of congress of July 2, 1864 (13 Stat. 365), making to it a land grant of 20 alternate sections per mile on each side of its road in the territories of the United States; the filing on February 21, 1872, in the office of the commissioner of the general land office, of its map of general route, as provided in section 6 of the act; the like filing on July 6, 1882, of its line of difinite location; the construction of its road; that this land was not mineral; was free from pre-emption and other claims; was in an odd-numbered section, within 40 miles of its line of general route, and 20 miles of its road as definitely located and constructed, and situated within the territory of Montana; and alleged that thereby it acquired full title. It set forth in terms the contract of January 16, 1886, with Nathan Frost, the various transfers by which, on January 15, 1888, the plaintiff obtained title thereto, admitted the payments, and alleged an execution and delivery to the plaintiff of a deed, in conformity to the terms of the contract; and, further, that his possession had never been disturbed, or his title assailed or impaired. It admitted that, at the time of the filing of the map of definite location, one Horace F. Kelly claimed to be occupying and cultivating the land, but denied that he had made any entry or filing in the local land office. It alleged that, in 1888, Foster, plaintiff's immediate grantor, contested the right of the railroad company to this land; that a contest thereon was had in the land office, and finally on appeal before the secretary of the interior, who held that Kelly's cultivation and occupation created a claim which he could have perfected under the public land laws, and therefore excepted the land from the scope of the company's grant. It denied that a patent had been issued to the plaintiff, or to any one else, and alleged that, prior to plaintiff's purchase of the contract from Foster, he knew of the claim that the land was not within the scope of the company's land grant, and was not its property.

To this answer a demurrer was filed by the plaintiff, which was sustained by the circuit court, and a judgment rendered for the plaintiff. Thereupon the case was taken to the supreme court of the state, which affirmed the judgment (13 Mont. 476, 34 Pac. 1017), and then the railroad company sued out this writ of error.

C. W. Bunn, for plaintiff in error.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.