OpenJurist

434 F2d 1314 Mortenson v. Burlington Northern Inc

434 F.2d 1314

Morten MORTENSON et al., Plaintiffs and Appellants,
v.
BURLINGTON NORTHERN, INC., a Delaware corporation, Appellee.

No. 24093.

United States Court of Appeals, Ninth Circuit.

December 15, 1970.

Appeal from the United States District Court for the District of Montana; Russell E. Smith, Judge.

Floyd Small, Helena, Mont. (argued), of Milton G. Anderson, Sidney, Mont., and Dale Cox, Glendive, Mont., for appellant.

Cale Crowley (argued), of Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., Earl F. Requa, Gen. Counsel, St. Paul, Minn., for appellee.

Before CHAMBERS, BROWNING and KILKENNY, Circuit Judges.

PER CURIAM:

1

Here an effort is made to get mineral rights excluded by the terms of the grant from appellee's predecessor.

2

The district court was unable to distinguish this case from Russell v. Texas Co. (Northern Pacific Railway Co.) (9th Cir. 1957), 238 F.2d 636, and ruled against plaintiffs-appellants, 295 F. Supp. 158.

3

We are unable to distinguish Russell either. So we affirm.