Page:North Dakota Reports (vol. 2).pdf/237

 ings thereon, dug a well, and made improvements to the value of $2,000. That in the United States land office, before the honorable commissioner of the general land office, a contest is now pending to determine the rights of the parties herein to said land, in which E. G. LaBar is plaintiff, and the Northern Pacific Railroad Company, the alleged grantor of plaintiffs, is defendant. That no patent for said tract of land has been granted by the United States to any person whomsoever. That no improvements have been made on said tract by the plaintiffs or any other persons whatsoever, save such as made and owned by defendant. That no person other than this defendant and his family have ever been or are in actual possession of said land or any part thereof.” The answer, it appears, joins issue on all material allegations of fact set out in the complaint as grounds of action and also pleads affirmatively a state of facts, which, if true, fully justifies the defendant in settling upon the land and in continuing to reside upon and cultivate the same as a pre-emption settler. If it be true, as claimed by counsel, that the coyrt will take judicial notice that this tract of land is situated within the said “indemnity limits,” it will still be necessary to prove at the trial that said railroad company, after losing certain of its lands in place within the original limits of its grant fixed by law, did, with the approval of the secretary of the in- terior, select, among other lands the tract in question in lieu of such lost lands, and made such selection when such tract was free from all other lawful claimants thereof; and if after such selection, the land was, before the entry of defendant, conveyed to these plaintiffs, as alleged in the complaint, then it-would follow that the plaintiffs would be in a position to apply to the courts for appropriate relief as ayainst the defendant. But all of these essential averments of fact are put squarely in issue by the pleadings. As the case has never been tried on the merits in the court below, it would be improper for this court to enter upon a discussion of the merits of the issues presented by the pleadings, particularly as the questions most material in the case are matters of pure fact. Elling v. Thexton, 7 Mont. 330, 16 Pac. Rep. 931.