Page:North Dakota Reports (vol. 1).pdf/262

, Plaintiff and Appellant, v. , Defendant and Respondent.

1. Title to Northern Pacific Indemnity Lands.

Title to the indemnity lands in the grant to the Northern Pacific Railroad Company does not pass from the United States until the selection of such lands by the company with the approval of the secretary of the interior. Until such approval such lands are not subject to taxation.

2. Action to Remove Cloud Brought by One Having no Title.

One in possession of real estate, but having no legal or equitable title thereto, cannot maintain an action to remove a cloud upon the title.

PPEAL from district court, Stutsman n county; Hon., Judge.

C. W. Davis, for appellant, N. B. Wilkinson, for respondent.

, C. J. The tax proceedings to enjoin which this action was instituted were clearly void. The land attempted to be taxed was not subject to taxation. It was property of the United States. Van Brocklin v. Anderson, 117 U. S. 151, 6 Sup. Ct. Rep. 670; Tucker v. Ferguson, 22 Wall. 527. The exemption of such property from taxation by the states rests upon the doctrine that there must inhere in every government the power to perpetuate itself. The supremacy of the federal government could be annihilated by hostile taxation by the states of federal agencies and property. With respect to property, the power to tax, save as limited by constitutional inhibition, acknowledges no restraint. All federal agencies and property might be thus transferred to the coffers of the states, were they subject to taxation. The land in question was embraced within the territory of the indemnity lands of the Northern Pacific Railroad Company, and was such land as the company might, under its grant, select to make good its losses of land within the "place" limits by reason of prior settlement, or for any reason. It is, however, averred in the complaint, and admitted by the demurrer, that the company has never made the selection of the