view that there was a contract, within the prohibition of the statute. If the superintendent of im!Digration chooses to make a supplemental report to the collector, to the effect that the basis of this report is the evidence of the previous contract contained in the letters of Grilli and Serafino, and no other evidence, the collector may amend his return on or before the 3d day of March, setting forth that such a report has been filed. The further hearing of the case is postponed until the 4th day of March.
(O£rcuU Court, D. Montana. January 15,1891.)
RAILROADs-RIGHT 011' WAy-PLEADINGS.
the allegations of the, petition, sets up an easement of way under a grant by Act Cong. July 2, 1864, over the land, Which at that time was public land, and alleges that plaintiff's entry thereon was subject to the grant, but fails to averspecitically a compliance with all the provisions of ,the statute which are prerequisites to the takillg effect of the grant, and the replication admitted the grant, but alleged that of way across his farm was not the route selected under the terms of the statute, whioh,had been located some years before several miles further south, and that the company's olaim to a right of way under the grant was exhausted thereby,: it was error to enter judgment for defendant on the pleadings.
ll. AWARD II'OR DAMAGES-A(JTION-PLEADIJIG.
road Company for a right of way across plaintiff's land, the answer, after denying
Where, in an action on an award of damages against the Northern Pacific Rail-
Where a complaint ill an action on an award appraising damages sustained by plaintiff from the building of 'a railroad across his land sets out his ownership of the land, that defendant, a ,railroad corporation, has constructed its road over his premises, and appropriated a way therefor, the appointment of oommissioners by a court of competent jurisdiction, their award, and the failure of defendant to pay the same: a cause of action i,s stated, without negativing any defense which defendant may nave.
EVIDENOB-JUDICIAL NOTIOE-MAP 011' RIGHT 011' WAY.
Where the issue is as to the selection and location by defendant railroad company of a right of way across IlUblic land, under Aot Congo July 2, 1864, and the defendant omits to plead the specific acts constituting the alleged location the court can" not take judicial notice of the filing of the, map of its route with the secretary of the interior on February' 21, 1872, or that, the route thereby fixed was its general route, and not its definIte route, the tIxingof which required further surveys, although the map by the tIling became a part of the department records.
At Law. J. H. Slwb(ff' and J. W. Kinsley, for plaintiff. Oullen, Sand(ff's Shelton, for defendant.
KNOWLES, J. This case was brought in the territorial district court. On motion of defendant, judgment was rendered against the plaintiff from this judgment to the upon the pleadings. The plaintiff supreme court of the territory, and the case was pending there when Montana became a state in the Union. From this latter court it was -transferred to this court l under the provisions of the act under which Montana. was admitted into the Union. The ruling of the court in granting the motion for judgment on the pleadings is assigned as error. The aotionin this case was brought on what may be called an award
M'KEOIN fl. NORTHERN PAC. R. CO.
appraising the damages plaintiff sustained by reason of the building by defendant of its railroad over and across plaintiff's land, described in his complaint, and appropriating a portion thereof fora way for said railroad. land to be in plaintiff; The complaint sets forth the ownership of that defendant is a railroad corporation, formed by an act of the congress of the,United States; that defendant constructed its road over said premand has appropriated 400 feet wide by 220 rods long for its way therefor; tile appointment of commissioners by a court of competent jurisdiction to assess plaintiff's damages; their award, and the failure on the part of defendant to pay the same. The complaint stated a cauae of action. Pllrintiff not, required to negative any defense might have in its complaint. U. 8. v. WilliamB, 6 Mont. 379, 12 Pac,. Rep. 851. ,In an,swer to this complaint the defendap,t first denied specificallyall the, allegations in the complaint, and then set forth new matdefendant sought ter, constituting a further defense. In this new to set forth an easement in the nature of a way fOT its road over and across plaintiff's land by virtue o(a grant to it under t11,e act of congresa of July 2, 1864, incorporating the Northern Pacific Railroad Company. It was incumbent for the defendant to set forth the material issnable facts showing this eaB8meQt in this.new matter. They could not be presented under the denial of title in plaintiff. " American Co. v. Bradford, 27 Cal. 368; Saunders v. Wilson, 15 Wend. 338. Did the defendant set forth in this new matt.erfacts sufficient to show that it had received a grant of a way for its road over plaintiff's land? The pleadings being under review in this court, it is a pertinent inquiry. In this new matter it is set forth that defendant had a grant of a way over the public lands of the United States by said act ofcongreas of July 2, 1864; that at said date the lands claimed by plaintiff were public lands, and that plaintiff entered upon the same subject to this grant to defendant; and that defendant has constructed its road over and across the premises described in plaintiff's complaint, and upon its right of way granted to it by the act of congress aforesaid. The grant of the right of WllY to the Northern Pacific Railroad Company over the public lands of the United States was in the nature of a floating grant. It attached to no particular piece of land, until it WlI.S marked out and properly designated and appropriated for the purposes contemplated in said grant. See Railroad 00. v. Alling, 99 U. S. 475, where a similar grant is interpreted. In People v. Jackson, 24 Cal. 630, the court said: "Having alleged title derived from the state under and by virtue of certain statutes. it is necessary for the plaintiff to allege specifically a performance by him or his grantor of all acts req uired by the provisions of these statutes." The new matter constituting the defense to plaintiff's complaint should have E!et forth the facts which showed that defendant had a grant of this way over plaintiff's premises, arid upon which it relied, as fully and as particularly as if being set forth in a complaint, and not in new matter constituting a defense. Porn. Rem. § 687. Did, the allegation that defendant had built its road over and across plaintiff's premises amount to .sufficient to show defendant's grant had v,45F.no.7-30
migHt' be' evidence of this fact, ,but it is not' 'the alltlglttioii o'l' 8.' material faet"\thich shows ijefendant's right; ,', The allegati¢i';"'l1nd 'upod to: it is really n:llEigation of a ;its'right df' thro'Yn iIfby'way can be formed'upon'il;legal condu'8iM. ,ld.'§ 52·tWhat shoulq hl'l.ve-:ilUegedc was the factS- showing 'tlHit'it had located; ana 'designat¢d !definitely this 400 feet', 'wide .' by, 220 rods to the 'f't6,ni, congress. This 'Congress-Ieftit to dO by'llppropriate' could be known",ht\t :pattictllar, of the,publie. domain! Was ,appropriated by ,. The not object to tHis new 'matter in atiy way;' Iieither 'did he directJy: ,Hectmtented himself with setting up'ri'ewmatter in '!J.replicatibn with the defense defendant sought to inte'rpose.,' All that deferu'lant':setforth' might be tru¢, and: yet the factS set forth by plaintiff would:s'powthat the defendant had' 'nev'e!." received: !l!1ygrant :ofa: premises! this' repli'cation; after adrilittingthe grant to Phiiiltiff set 'forth fep:dant of a. of ahd:t?at its. r?ad about October, across h13preullses, that thIS 'Was tiot the ongmlLl route selected the route fors<tid r6adwas determined, and notice ther-eo'fgive'n b)"aerendant to the propel' office of the United States, on the2htday offeb,ruai'Y, 1872, ahd that the way so selected did nottraverse or encroach upon any of the'lands'of plaintiff, but pftSsed said lflndsona line parallel, :to, and some miles distant therefrom to the south, and'that the line 'Ofthe l"oad to the land Of plaintiff, and ,the prernises desb.tibed in this controversy. ,The' defendant had It grant of but one right of way. Thegrant was for and telegraph 'Hne. , 'When that. was' once definitely fixed the grant was satisfied, and it could not be changed by the act of the defendanf alone. In 'th,ecase·of Van, Wyck 'v; Knevalsj' 106 U. S. 366, 367" 1 Sup; Rep. 336 1 tl1is langmtge' is used, whibh T tnink' applicable to this point: ", " , route must be considered, as deflnitely fixed when it has ceased to be the subject ofr-hange at the volftion:of the company. Until the map is filed with the secretary ufthe,interior. the company is at liberty to ,adopt such route t\S it may ,deem ,an examination of the grouild ha,s disclosed the feasibility and advantage of different lines. But when a route.is adopted company. a,nd a map\iesignat,ing it is filed with secretary of the..inby terlor, and accepted by that 'officer, the J"oute is establisned. It is, in the lanof the act, apd be of future so as to affect the grant, except upon legIslative consent. No further'actlOn as 'required by the company 0; establish the route." Admitting theallegations.inthe replication t6 he true, and defendant had'oQooreceived all itwiisJedtitled tourider its grant, and hudnoright under that grant :to bUildi'ts,road over plaintiff'S: ,In the: above decision the United States supreme court is oithe route as definitely fixed,!andinot of the general route designated' 1;0 prevehtthe sale ofpublic lands. The defendant the court should
take judicial notice that the map referred to as filed with the secretary sele<;ltEld February 21, 1872, was the map of the interior, of the general route of its road, and not of a route definitely fixed, and that said definite route was not then ,selected. :I do not.:think the court can take judicial notice of the fact as to whether or not the Northern Pacific R!tilroad Companyori February 21, 1872, or at any other time, filed its map selecting the fixed or.general route of its road, .or whether at thatornny time it. selected the definite route of its foad. The filing oia map was only one act in fixing a definiterollte. There had to be sUrveys" and the route had to be definitely defined; There had to be performed certain acts which would show that defendant's grant had become attached to certain and definite lands, and which it had adopted for that purpose. A court cannot take judieialnotice of such acts. Even the filing of the map is not such an act as a court can take judicial notice of. The court might take judicial notice perhaps of an executive act, but the filing of such a map is not an executive act. The filing of the trlltp in this case was really an act of. the defendant, and not of the secretary of the interior. When il1dorsed"Filed,"it became a recordof the interior department, and I cannot see why a court should be called upon to take judicial notice of that record any more than of any otheneco:rdin. that department. The cl1ae of U. 8. v. Williams, 6 Mont. 379, 12 Pae-Rep. 851, is not in point. In that case the question was whether' the court would take notice of certain executive regulations concerning the cutting of timber on the public domain, made by the interior: department in pursuance of an act of congress, and. which regulations were to have the force. of statutel!; The argument of counsel in this case took a wide range. and in my opinion was not confined to the issues made or sought to be,made in the pleadings. If the defen(1ant had properly set forth the facts. constituting an easement of a way over plaintifPil'1llnd, then the court would called upon to determine whether arnot plaintiff had properly met these allegations by his replication, or whether or not· the new matter set up in the replication was the proper way to meet allegations. If he had not, undoubtedly the defendant would havebeenentitledt.o judgment on the pleadings. In the presentstate of the. decisions in the federal courts there cannot be any. doubt but. that, if the. defendalltselected in proper manner and appropriated the right of way over plaintitPs premises as a part of the way foTite railroad and telegraph line,.in pursuance to the grant made to i10n July 2, 1864, and, the partofsaid premises now oceupiedas such way was public landl:lU,that date, plaintiff was not entitled to any damages for the same. He entered his land subject to this right of way. For the. reasons above .tbe court finds there was error in granting this motion' for judgment on the pleadings, and it is ordered that said judgment be, and the ,same:is hereby, set Q.Side, And that this cause be I>6t down Jor this POUlt.
UNITED STATES V. THOMPSON
(Df.strlct Oourt, D. Kentlucky.
bTBRNAL REVBNUE--REOOVBRY 011' FINE ON DISTILLER'S BOND.
The defendants, being distillers, having been indicted, tried, found guilty, and, fined for'a violation of section 3279, Rev. St. U. S., and execution issued thereon having been returned nUUa bona, thi,s action was instituted on the bond executed by the defendants to the United States, COntaining a covenant that the defendants "shall in all respects faithfUlly comply with all the provisions of law and regulations in relation to the duties and business of distillers, * * * and shall pay all penalties incurred or fines imposed on him for a violation of any of said provisions." BeZd, on demurrer to the petition, that the action was maintainable.
Action at Law on Distiller's Bond. Gee. W. Jolly, U. S. Atty. Samuel McKee, for defendant. BARR, J. The defendant John S. Thompson was indicted under section 3279 of the Compilation Internal Revenue Laws, 1889, ing tile proper sign upon his distillery, and was found guilty, and fined by thEY court $500 and costs. This is the penalty fixed by The fine remains unpaid,and the present action is on his distiller's bond; to recover the amount then'of from Thompson and his sureties: ' The defendants have filed a general demurrer, and insist no recovery can be had on the bond. The penalty of the bond is $800, and its condition is that if said Thompsons (there are two of them) "shall in all respects faithfully comply with all the provisions of law in relation to the duties and business of distillers, and Shall pay all penalties incurred or fines imposed on him fora violation of any of the said provisions, * ** then this obligation shall be void; otherwise it shall remain in full force." The petition 'alleges the indictment of J. S. Thompson, his trial and viction, and his sentence to a fine of $500 and costs, and that it was because of a violation of the law in regard to the distillery mentioned in the bond and within the period covered by it. The que!ltion presented is new, and undecided, as far as known to counselor the court. The counsel for the defendants insists that this action will not lie, because of the conviction and sentence under the indictment,and that a recovery 'on the bond would be punishing Thompson twice for the same It is evidently not the intention of the United States to collect the $500 fine heretofol'e imposed and also another $500 on the bond ,but the purpose is to collect the $500 fine already imposed; There is, therefore, no question of putting Thompson twice in jeopardy for the same offense. There is a most instructive opinion upon the meaning of "twice in 'ardy" by BLATCHl'oRD in Re Leszynsky, 16 Blatchf. 9, which clearly shows thl1Uhe pref'ent case is not within the fifth, amendment of the stitutionor the common-law rule as to "twice in jeopardy." The real question is, we apprehenu, whether the plaintiff, havingproceeded,by indictment, and having obtained a sentence thereunder of $500 fine, which may, under the law, be enforced against Thompson by a capias