HASTINGS & D. RY. CO. V· .sT. PAUL, S. & T. F. RY. CO.
HAOTINGS& D. Ry. CO.
S. & T. F. Ry. CO.
(Oirct£it OOt£'I't. D. Minnesota. December 12,1887.)
PUBLIC LANDS-RAILROAD GRANTs-WHEN TITLE VESTS.
Lands in controversy between two railroad companies. grantees under acts of congress,--'-complainant under act of 1866, and defendant under acts of 1857 ang1865,-were within the place limits of complainant's road, and witldn the indemnity limits of the road of defendant. Complainant's definite location was made before any selection by defendant. The lands in dispute were conveyed to defendant in 1871 and 1872. Complainant's road along these lands was finished in 1879, and application made for entry in 1883. which be-, ing refused, complainant brought suit in 1886. As against the holding of t!:le United supreme court that no title passes to indemnity lands untilselection, and that as to place lands the title vests on completion, and relates back to the date of grant, and is specifically fixed by the definite location of the road upon the tracts of the place limits, defendant urged the administration ,of these grants by the land department, both in Minnesota and in Washington, as a construction and determination of the law. Held, that there is no reason why, both parties being e,ither may not insist as against the other, oponthe fullmell,sure of tberights given it by the grants. In such R case, neither party can set up the statute of limitationsasR defense until it begins to run.
SAME-RAILROAD GRANTS-WHEN "l'iTLE VESTS-LIMITATION OF ACTIONS.
Bill by complainant, the Hastings & Dakota Railway Oompany, for p'ossession of lands held adversely by defendant, the St. Paul, Stillwater & Taylor's Falls Railway Oompany. Gordon E. Cole, for complainant. Tlwmas Wilson, for defendant.
BREWER, J. These two companies above named are land-grant companies. The acts of congress under which the defendant daims are those of 1857 and 1865, while the complainant claims under the act of 1866. The lands in controversy are lands within the place limits of the complainant's road, and within the indemnity limits of the road of the defendant. The supreme court of the United States has in several cases within the last six or seven years affirmed these two propositions: That no title passes to indemnity lands until selection; and that, on the other' hand, in the case of place lands, the title vests on the completion of the road, but relates back to the date of the grant, and is specifically fixed by the definite location of the road upon the tracts within the place limits. In other words, if the road is finished, then the lands in place, not already otherwise appropriated at the time of the definite location, become the property of the company that has done the work, the donees of the grant, and the title takes effect and dates back to the date of the grant. In this case the definite location of the complainant's road was made before any selection was made by the defendant. Applying these two ptopositxons affirmed and reaffirmed by the supreme court, there would seem to be· no chance for dispute upon the legal proposition' that the title these lands was in. the cOlllplainant, rather than in the defeildlmt.
But as against that proposition the defendant has very strenuously urged that there waS the lariddepartment, both in this state and in Washington, in the administration of these grants, which has the effect of law,-is:itselfboth a construction and a determination of the law. It is also contended that the complainant has slept upon its and that its claim. is stale. It. is true that the lands were qonveYl;Jd to defendanUn 1811 and 1872; bU.t on. the other hand it i13ulsotruethat thecomplaintmt's road was not'flnished along these lands until 1,879, and thisbiUwasfiled iri 1886.' There is some testimony showing that in 1883 complainant made application for an entry of these lands, which was refused.' Whatever force there may be. and I am not prepared to say that there would not he force, in these defenses, if interposed on behalf of a bona fide purchaser, some one who had parted with -vah,lefor the property,. yet'the question here is presented simply the two railroad companies,-np grantee, no mortgagee, no bonafide purchaser, or third party, being interested in this case, and in this question. Both of these patties lleneficiaries of a grant; neither one bought the land, neither paidariy money. The United States governmentsimply made a donation: of these lands, and as between two parties, each of whom claims a right to the benefit onhe gift, I think that until the statute of limitations runs,-and there is no pretense in this case that it husrun 1-neither party Can interpose the of the claim as ll:-defense;The United States goverrlment byits congress donated these lands, and there is no reason why, under strch circumstances, either party may not insist as against the other upon the fullineasure of the ' , rights given it by the grants. For these reasons the decree will go in favor of the complainant. Ordered accordingly.
'V. HERRESHOFF MANUF'G
'(Circuii Oourt, lJ. Rl'ode Ieland. November 7, 1887.)
The tria,h which resulted in a verdict for plaintiff, came to an end February Ie, 1887. 'lJefendant secured an extension of time to file a motion for a new trial, stRting that he did not intend to proceed under his exceptions. The time was further extended .on an ea; partellpplication. The motion was then filed ,aqd .argued. before both the district .and the circuit judges. A new trial was refused, and defendant. at the nex,t term, and eight months after the trial, moved for signature of his bill of exceptions, and petitioned for a, writ of error fouJlded thereon. Held, that the motion should be overruled,a.nd the writ refused. the exceptions having been waiveli, bnth expressly and by implication', and the bill being presented for signature neither within the term, nor within a reasonable time. 1
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OF-WAIVER OF-REFUSAL TO . SIGN.
must be prepaJ.'ed and before the end of the term at whicb the dause was, tried, Sweet v. Perkms, 24 Fell. Rep·.7'77 i or within such time as the partif'lI by. '.their t, ma.de p.art oftihe record,",maystiPuhite';' Oi-Within. the'time aI... IO,wed by the orqerto that effect, made 111 and appearing in,the re.:lord, Hake v. Strubel, (til.) 12 N. E. Rep. 676., ' A distinction is to be observed in thiji rllilpeet between'the settling and allowance' of'a' bill, 'which !san act judicilil ill its