SAGE
v.
WINONA &: ST. P. R. CO.
297
point of intersection of the two veins, together with such right of way for the purpose of taking out mineral as is now accorded to the owners of a cross vein when it passes through an older location. As it is the right to the surface ground lying within the triangle that is now in dispute, we are unable to see that the defendant company can acquire a paramount right thereto as against the owner of the Excelsior claim, except by taking the same action under isting laws that other persons would be required to take if they desired to appropriate it as abandoned property. It is fnrtJher insisted by the plaintiff that the circuit court committed another error, to his prejudice, in instructing the jury, in substance, that the plaintiff ooght not to recover if it appeared that he was not entitled to the possession of the full quantity of land described in his declaration, to wit, 752-1000 of an acre, although it did appear that he was entitled to recover a triangular piece taining a less area. This assignment of error on the facts disclosed by the present record would seem to be well taken. In a suit in ejectment a plaintiff is not ordinarily limited in his recovery to the precise quantity of land specified in his declaration, but may recover a less quantity. We would not, however, be understood as expressing a definite opinion on the last assignment, for the reason that considerations may have been present to the mind of the trial judge which are not disclosed to us by the present record or by the briefs of counsel, which, in the present case, fully justified the instruction complained of. This is a matter which is accordingly left open for reconsideration on a second trial. For the error in the charge first above indicated the judgment of the circuit court is hereby reversed, and the cause is remanded, with directions to award a new trial.
WINONA &
ST.
P. R. 00.
et
al.
(Oircult Court of Appeals, Eighth Circuit. October 2, 1893.)
No. 224. 1. LACHEs-RAILROAD LAND GRANTS.
A land-grant railroad company, having both actual and constructive notice, is guilty of laches in delaying 14 years to assert title to lands lying within its grant limits, which have been selected as indemnity -lands by another land-grant company, certified as such to the state, and by it conveyed to the company, and large portions of which have been openly sola by the latter to purchasers and settlers; especially when, by such delay, documentary evid llce has been lost which would probably render unassailable defendant's title to a large portion of the disputed lands. Railway Co. v. Sage, 1 C. C. A. 256,49 Fed. Rep. 315, 4 U. S. App. 160, followed.
2.
SAME-QUIETING TITJ,E-PLAINTJFF OUT OF POSSESSION".
in possession. 8. FEDERAL COURTS-FOLLOWING STATE DECISIONS. The federal courts in Minnesota will follow the rule of the local courts permitting suits to remove cloud from title to be brought by one out of
The rule that neither limitations nor laches is available as a defense to
possession.
298 of Minnesota.
FlllDERAL REPORTER,
vol. 58.
Appealfrom the Circuit Court of the United States for the DIstrict Affirmed.
Statetnentby THAYER, District Judge:
This was a BUit brought by the Hastings & Dakota Railway Company, hereafter termed the "Hastings Company," against the Winona & St. Peter Railroad Compll.Q.y, hereafter. termed the "Winona Company," and the Winona & St. Peter Land Company, to settle the title to a large quantity of land situai'ed in the state of Minnesota, which was claimed by the railway companies, respectively, .under different overlapp[ng land grants. Before the suit was brought to a final hearhlg, Russell Sage, the appellant, became vested with all of thel'igh'ts of the Hastings Company, and was thereupon substituted as complainant. The bill of complaint contained the following allegations, in substance: That by an act of congress approved on July 4, 1866, (14 Stat. 87, 88,) there was granted to the state of Minnesota, for the purpose of aiding in the construction of a railroad from Hastings,. in the state of Minnesota, through the counties of Dakota, Scott, Carver, and McLeod, in said state, to such point on the western boundary of the state as its legislature might determine, every alternate section of land designated by odd numbers to the amount of five fullsectlons per mile on each side of said road; that by an act of the legislature of the state of Minneso,ta, of date March 7, 1867, the aforesaid grant was accepted by the state, and all of the lands, interests, rights, powers, and privileges granted thereby to the state were conferred upon the H1lstings Coompany, and the western terminus. of its road was fixed by ilie terms of said· legislative act at any point on the western boundary· of ilie state of Minnesota between the Big Stone lake and the third standard parallel; that the Hastings Company thereupon surveyed a line of railroad on the route above indicated, and caused a map of definite location to be filed in the general land office of the United States on June 26, 1867, and subsequently constructed and completed said line of road in full accordance with said act of congress, and thereby became entitled to all of the odd numbered sections of .laud lying wit-hin 10 miles of its located line, to which no homestead or pre-emption claims had atta.ched plioI' to June 26, 1867, when l:ts map of definite location was filed. The bill further showed that under and by virtue of certain acts passed by the legislature of ilie tenitory of Minne8ota, and by the legislature of the state of Minneso.ta, ilie Winona Company was duly incorporated, and became entitled to such lands as were granted to the territory of Minnesota by an act of congress approved March 3, 1857, (11 Stat. 195, 197,) in aid of. building a line of railroad from Winona, Minn., via St. Peter, to a poInt on the Big Sioux river south of the forty-fifth parallel, and also to such additional lands as were granted to the state of l\finnesota in aid of building the same line of road by a subsequent act of congress, approved March 3, 1865, (13 Stat. 526, § 1;) that the Winona Company thus became entitled to all of the odd-numbered sectdons of land lying witllin 10 miles of its road, to which no homestead or pre-emption claims had attached at the date of its definite location, with ilie right to make up for any deficiency that might 1:)e occasioned by locations under the homestead and preemption laws, by selecting other odd-numbered seCJtions lying within 20 milell of its road. It was further alleged that, to make up for losses within ilie granted limits of the Winona. Company, there was selected in its behalf certain odd-numbered sections of land (the same being the sections now in controversy) which lay wiiliin 10 miles of the located line of the Hastings Company, and were thus within Its granted limits; that the said lands so selected for the Winona Company were each and all selected subsequent to June 26, 1867, after the road of the Hastings Company was definitely located; and that said lands of right belonged to the HaS'tingsCompany. It was further shown by the bill that tile lands now in controversy, which were selected for the Winona Company to make up for losses within It>s granted lImits, all lay within 20 miles of the road of the Winona Company; that iliey wel'e certified to the state of Minnesota by the secretary of· the interior for the benefit of the Winona Company as Iall,ds properly belonging to it; and tllat tile state had duly conveyed them to ilie Winona Company. In view
SAGE V.WINONA & ST. P. R. CQ.
299
of the premises, the blll charged that the Winona Oompany, and all persons to whom it might have conveyed any portion of said lands, held the title thereto in trust for the Hastings Oomp'any, and it accordingly prayed that the Winona Oompany, and its codefendant, the Winona & 81. Peter Land Company, to which, as the bill showed, some of the lands had been conveyed might be decreed to hold the title of said lands in trust for the Hastings Company, and that they might be compelled to' account for the proceeds of all of said lands which they had severally sold. The answer of the Winona CoiIllpany (so far as it Is deemed material to state its contents) averred, in substance, that all of the lands in controversy In this suit were withdrawn from the market by the secretary of the in· terior, and were reserved for the Winona Company in aid of building its road, as eady as February 12, 1867, some months before the Hastings Company filed its map of definite location, and that the latter company· acquired no right to any of said lands by fi.llng said alleged map on June 26, 1867. The Winona Company further alleged that a large portion of the lands in controversy were certified to the state of Minnesota by the secretary of the in'terior for the benefit of the Winona Company, as early as March 11, 1868, and were conveyed by the state to the Winona Company on September 2, 1868; that the residue of the lands were thus certified to the state for the Winona Oompany on April 3, 1871, and were conveyed by the stMa to the railway company on February 26, 1872. In view of the latter facts the defendant companies pleaded laches and the statute of llmitatl()iJls as a bar to theactlon. The circult court on the final hearing dismissed the bill, and the complain-' ant has appealed from such decree.
Jared How and J. M. Gilman, (Homer E. Eller, on the brief,) for appellant. Thomas Wilson, (Lloyd W. Bowers, on the brief,) for appellees. Before CALDWELL and SANBORN, Circuit Judges, and THAY· ER, District Judge. THAYER, District Judge, after stating the case as above, deliv· . ered the opinion of the court. The record before us discloses that the case at bar, in all of its essential features of pleading and evidence, is like the case of Railway Co. v. Sage, (8th Circuit,) 4 U. S. App. 160, 1 C. C. A. 256, 49 Fed. Rep. 315, which was recently decided by this court. The lands now in controversy lie within the appellant's granted limits, as defined by the act of July 4, 1866, and also within the indemnity limits of the appeUee railway company. They aggregate something over 47" 000 acres, are of the alleged value of $240,000, and appear to be distributed along the line of the appellant's road from range 29 W. to and including range 42 W. It is shown by the testimony that a portion of the lands which are claimed by the appellant were certified to the state of Minnesota by the general government, as lands which of right belonged to the Winona Company, and that they were conveyed by the state to the latter company nearly 18 years before the present bill was filed, and that the residue of said lands were so certified and conveyed to it more than 14 years before the commencement of the present In the mean time,-that is to say, from the years 1868 and 1872, respectively, when the lands were deeded to the Winona Company,-that company has openly dealt with them
800
P'EDlllRAL REPORTER,
as its own, by advertising them extensively for sale, and by contracting to convey, and by conveying, a large portion thereof to its codefendant, the Winona & St. Peter Land Company, which has likewise dealt with them as its own, and by making numerous sales and conveyances of other portions of the land to actual settlers, who have entered upon and improved their several holdings. The facts disclosed by the record leave no room for doubt that the appellant's predecessor in interest, the Hastings Company, had actual as well as constructive notice, many years before the present bill was filed, that these lands had been certified to the state, that the state had deeded them to the Winona 'Company, and that many persons were purchasing and settling on the lands, and were making valuable improvements thereon, under deeds from the Winona Company, in the belief that such deeds conveyed to them an indefeasible title. It further appears that notwithstanding such knowledge, actual and constructive, the Hastings Company failed to assert any claim to the lands, or to take any action looking to the establishment of its alleged right, until the year 1886, when the present suit was instituted, although its road was in process of construction from and after the year 1870, and was completed past the lands now in dispute to the western boundary of the state by December 1, 1879. Moreover, the present record shows that through lapse of time the Winona Company has lost certain documentary evidence which would probably have rendered its title unassailable to all of the lands now in dispute that lay in and east of range 38, if this suit had been more seasonably brought. It appears that a letter was written by the commissioner of the general land office on July 10, 1865, directing the register and receiver of the land office at St. Peter, Minn., to withhold from pre-emption, homestead, and private entry certain odd-numbered sections lying within the indemnity limits of the Winona Company. The original letter directing such a withdrawal in favor of the Winona Company has been lost, and on the trial below the appellees were compelled to produce what purported. to be a copy of said letter; which was in fact a copy of a copy of the original letter, the original having been recorded in the office of the commissioner of the general land office. The copy, upon which the appellees are compelled at this time to rely, contains an order made on July 10, 1865, for the withdrawal of all odd-numbered sections within the 10 and 20 mile limits of the Winona Company, (the same being its indemnity limits,) "to the west line of township twenty-eight west." As there is no such township in the state of Minnesota as "number twenty-eight west," it is claimed by the appellant that the order of withdrawal was void for uncertainty, and that the subsequent grant to the Hastings Company, of July 4, 1866, took effect, even within the limits intended to be embraced by the order of withdrawal, no matter what such intended limits may have been. On the other hand, it is urged by the appellees that on July 10, 1865, all odd-numbered sections within the indemnity limits of the Winona Company were withdrawn for its benefit, to the west line of range 38 W.; that the original
