Northern Pacific Railway Company v. Soderberg

Leave to United States to intervene December 8, 1902.

Reargued December 12, 1902.

Decided February 23, 1903.

This was a bill filed by the railway company in the circuit court for the district of Washington to enjoin the defendant Soderberg from taking, removing, or disposing of granite from a quarter section of land of which he had taken possession under a mineral location, and for an account of the granite quarried or removed.

The bill alleged the incorporation of the Northern Pacific Railroad Company under an act of Congress of July 2, 1864 (13 Stat. at L. 365, chap. 217), with power to construct a railroad from Lake Superior to Puget sound, with a branch line via Columbia river to Portland; the grant of every alternate odd-numbered section of public land, note mineral, to the amount of twenty alternate sections per mile, on each side of the line when passing through the territories; acceptance of the act by the railroad company; a joint resolution of Congress approved May 31, 1870, authorizing the company to issue bonds for the construction of the road, with a privilege to the company of building its main road by the valley of the Columbia river, with a branch across the Cascade mountains to Puget sound; the definite location on March 26, 1884, of the Cascade branch of the road; the completion and acceptance of the road coterminus with its public lands; the conveyance on August 3, 1896, of all its property to the Northern Pacific Railway Company, which has since continuously operated such road.

The bill further alleged that the quarter section in dispute was rough, mountainous land, the principal value of which consisted in the existence of a ledge of granite of good merchantable quality, and valuable for building stone; that the defendant in 1898 entered upon this quarter section and began to quarry, remove, and dispose of such granite under a mineral location of the land in question, contending that such land is excepted from the general land grant, and that the question whether this land is mineral or nonmineral has not yet been determined by the department. Wherefore an injunction was prayed.

The answer raised no issue of fact, but averred that the lands were mineral in character and as such excepted from the grant, and that defendant having complied with the rules and regulations of the Land Department and made the proper proof, it was assumed and decided that the defendant was entitled to a patent. That he paid the proper fees to the receiver, who forwarded the proofs and records to the Land Department with a recommendation that a patent issue. The patent, however, does not seem to have been actually issued until after the beginning of this suit.

The court heard the case upon a stipulation of facts, and entered a decree dismissing the bill, and quieting the title to the defendant to the lands in question. 99 Fed. 506. On appeal to the circuit court of appeals this decree was affirmed. 43 C. C. A. 620, 104 Fed. 425.

Messrs. C. W. Bunn and James B. Kerr for appellant.

Mr. J. T. Ronald for appellee on original argument.

Mr. R. A. Ballinger for appellee on reargument.

Assistant Attorney General Van Devanter and Mr. Arthur B. Pugh for United States.

Mr. Justice Brown delivered the opinion of the court: