586
,EDERAL
UNITED STATES V. CHILDEBS.
(DiBtrict Oourt, D. Orego,n. June 27, 1882.) GRANT TO THE NORTHERN PACIFIC RAILROAD COMPANY.
By the act.. of July 2, 1864, (13 8t. 365) the sections along tb,e line of the Northern Pacific Railroad Company, for 40 miles on either,side of the line in the territories and 20 miles in thestafes, is apart and devoted to construction of the road of said' corporation; but said act is not a present grant of said lands to said corporation, but only in effect an agreement or provision that the same shall be conveyed t.o it absolutely when and as fast as ally 25 miles of said road is constructed and accepted by the United States; and in the mean time the legal title to the unearned and unpatented sections is in the United States, who may, therefore, maintain legal proceedings against anyone that unlawfully cuts timber thereon.
Information for Cutting Timber on Public Lands. J. F.WatBon,for plaintiff. DEADY, D. J. The defendant is accused by the information herein of the crime of cutting timber on the pnblic lands of the Unite,d States, within the jurisdiction of this court, with the intent to dispose of the same, contrary to the statute of, the United States. The defendant pleads "not guilty," and. submits the case to the Murt for judgment upon the following statement of facts, which it is agreed between him. self and the district attorney shall stand' be' Qo:o.sidered. as the special verdict of a jury; duly found and given in the, case, npon a trial of the issue made by said plea,. to-wit: .·· That the defendant, in the year 1880, went upon the north-east t of section 1, of township 2 north, range 8 east, of the Wallamet meridian, situate on the south bank of the Columbia river, near Shell Rock, about 12 miles above the Cascades, in the county of Wasco. and state of Oregon, under a contract with the Northern Pacific Railroad Company to purchase the same of it in five years thereafter, with a permit therein to cut timber thereon for the improvement of the premises; that the defendant built a house thereon and constructed a flume upon which to float wood to the river, and afterwards sold his improvements upon the premises to a third person for $1,000, and abm.doned them; that during his occupancy of the premises he cut about 600 tree'8 from about 10 acres of the same, from which he made about 1,200 cords of firewood, that he boated to the Dalles, a distance of about 28 miles, and sold it for $4,800; that said timber was worth while uncut about 50 cents a tree. or 25 cents a cord; and that the premises are within the limits of the grant to the Northern Pacific Railroad Company, as provided in sections 3 and 4 of the act of July 2, 1864, (13 St. 365,) granting lands to aid in the construction of said railway, but being as yet' unearned' and unpatented because ·not opposite to and coterminous with' any' complete section' or portion of the road of said corporation." . ..I?., .. ,
UNITED STATES V. CHlL'DERS.
587
By section 3 of said act of July 2, 1864, it is provided "that there be and hereby is granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose 'of aiding in the construction" of its road and telegraph line to the Pacific coast, the odd-numbered sections of the public lands of the United Stated for 40 miles on each side of the line of said road, through the territories, and 20 miles through the states, not otherwise appropriated "at the time the line of said road is definitely fixed, .and a plat thereof filed in the office of the commissioner of the general land-office;" and by section 4 it is further provided "that whenever said Northern Pacific Railroad Company shall have 25 consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated" by the act, and that fact shall be made to appear to the president by report of commissioners, as therein provided, "patents of lands aforesaid shall be issued to said company confirming to the said company the right and title to said lands situate opposite to and coterminous with said completed section of said road; and frofu time to time, whenever 25 additional consecutive miles shall have been constructed, completed, and in readines8,as aforesaid, and verified by said commissioners to the president ot of the United States, then patents shall be issued to said company conveying the additional sections of land, as aforesaid, and so on as fast as every 25 miles of said road is completed, as aforesaid:" provided, that only 10 sections of land per niile "shall be conveyed to said company" on the line of the road east of the western boundary of Minnesota until the whole of said road east of said boundary is finished. Section 6 of the act provides that theprel:lideht shall canse the lands to be surveyed 'for 40 miles in width oli' both sides of said road, "after the general routes'hall be fixed, and as fast as may be required by the construction of said railroad; andtlie odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed, except by said company, as provided in this act." Upon this state of law and fact, the question is, did the act of July 2, 1864, 8upra, vest in or pass the title to the odd sections along the line of the road to the Northern Pacific Railroad Company as soon as said line wasdefillitely fixed, and the plat thereof filedin the general land-office, or does it remain in the United States until it is earned by the company by the of the road opposite thereto and the issu'e of the patent therefor? The case of 'Schulenberg' v.' Harriman, 21 Wh.ll. 44, is a leading
5,8.8'
case, on t,hiIJ, subject. There the a,ct under conside:ration-June 3, 1856, 11 Stat. 20-was held to be a present grant·to the state of Wisconsin, and that the,legal title thereby passed to the state. But besides the word s of grant similar to those in section 3 of the Northern Pacific Railroad act, "thfl,t there be and is hereby granted," the Wisconsin act also provided that the lands embraced therein should "be subject to the disposaZ of the legislature," and that in ·case the road they were given to aid in the construction of was not built in 10 years, the lands remaining unsold should revert to the United States; and no provision was in the act for issuing patents to the lands, nor did it contain any clause which purported to or could be construed to restrain or limit the, operation of the words The court held that the legal title to the Ifl,nda p8tssed t{)the state, and therefore it was the owner of logs cut thereon, and to the benpfit of.' the usual remedies for their r,elIlOval or The o( the cas.e is succinctly stated by Justice Field, in his follow;s::
I I
I
.. They [the autboritieslestablish the conclusion that unless tliere are other clauses in a statute the operation of words pf prl'\sent grant, these must be t.alrell tbeiruaturalsense to import an immediate transfer of title, proceel,l.ings be required togive precision to that although title and attach it to specific tracts." · \<'
But in my judgment the clauses in section 40fthe act under consideratio,n, ,?oncerningthE! ponveyance oLthe lanq.s, granted to the. cor" porationas each section of ,25 miles of the road constr'llcted and accepted by the grantor, does restrain the operatic;>n of: tlle. words of present gran,t in seetioll 8, so that it that .while it was ofcoj).gress to set ,devote lands in question to the yonstruction of the NO. lithem Paaific Hail. road, yet it dig not to part w:iththe title to then:;umtiland DIlly 89 ;fast as they were earned by the completion of the, work. .thequesw.on is. further confirmed by the provisions , contained in sections 8 and' 9 of the act, the plain effect whic1/.: that if .the corq.pany does not. th:e wQrkand road as rapidly as therein provided, the '{JnitedStates complete may tahrthe construc,tionofthe road into o)Vn to tha;t end, ,rq.aydisposeof or appropriate th,e.'unearne,q. an!! unpittented land in. any wilY necessary to. insure a i;omple. tion ,road.",. , : . \; , Such a power is compatible and the idea lands. )'fer.e devoted bycoogress to the of
UNITED' STATES V. CBlliDBBS.
the legal title and control of them should remain in the United States until the lands were eamfldLy the company in the construction of the same, but incompatible with the idea of an absolute grant to the corporation in prcesenti that would entitle it to dispose of, encumber, or squander the lands in advance of the construction of the road, and thereby prevent the United States from completing it by this means in the contingency contemplated. In Rice v. Ry. Co. 1 Black, 358, it was heid that an act giving lands to the territory of Minnesota to aid in the construction of a railway therein, by wordso! present grant, "there is he:t:eby granted," did not pass the title to the territory, taken in connection with another provision in the act to the effect that no title should vest in the ritory. until 20 miles of the rO/i,d were completed and the secretary of the interior, when a patent should issue for somueh,o! the grant, and so on, as often as 81ny 20 :miles of the road were so completed and accepted.';l'his ruling was approved in Schutenberg Harriman, B'!lpra, 62·. And alth<;mgh there is nOrexpressdeclaratwnin the Nortb Pacifio act that the title shall yest in the corporatiqn until the completion Of the .portions of it, yet the legal of the clauses therein, which provide .for conveying and. confirming the title to the company by patent only upon the, completion of the road, or portions of it, is the s a m e . " . My conclusion, then, isjhat the legaHitde to ;the uDearnedportions ,of this grant-the odd-numbe,red seotionsopposite to which the road has not been complete4 and accepted-;-is still in the UnitedStl\tes. Subsequent t,o. the grant and the line.of' the.road, and prior to its construction,therelatio,D. between thaU:I;\ited·State:s and the corPl?ration is to. tbatofvendor and v:end'ee..."...the \latter being in .possession underaconiract to purchase and rece.ive, a conveyance· upon the payment of the purchase money or the performance of the act constituting the ·fOll th.e sale. \. The premises upon which the, defendantcut.the:tim.bedn question being a part olthese unearned landl'l, he is.guiltypfviolating section of the.act of June 3, ,1878,(20 St. 90,,} whi.ch .enacte tha.t any per:" ,son who shall unla.wfully,cut any timb,ergrowing on any lando! the United States, in OregoJ;l, with intent to eX;PQrt .01' diBPOEleiofthe. SIl>tDe) shall be guilty ofa D;liBdemeanor, and on fined' hot leBa than $100 or more '3ee Phe Timber Oases, 11 FED. REP. 81; :::.,
u. S.
'Smith, '. ,"
487. ',,:
.'
i
".
'80
"DBRAL BBPOBTBB.
LARNED
v.
GRIFFIN.
(Circuie Ooure, D. Massachusetts. July 6,lB82.) PRIVILEGE OF SUITORS AND Wn'NEsSEs.
Parties and witnesses attending in good faith any legal tribunal, with or without a writ of protect.ion, are privileged from arrest" on civil process during their attendance, and for a reasonable time in going and returning; and this immunity extends to all kinds of civil process, and affords absolute protection.
CoLT, D. J. In this case it appears that the defendant was arrested while in Boston, Massachusetts, in attendance beforea commissioner acting under a commission issued out of the superior court for Cook county, Illinois, to take the depositions of certain witnesses in a case pending in that court between the same' parties, and for the same cause of action as this suit. ' The defendant submitted to the arrest, and gave bail. The suit was first brought the state court, and afterwards duly removed here. The only question now before the court is whether the plea in abatement, setting up the privilege of the d'6fendant fromarrest,ean be susta.ined. To decide this we must determine-First, whether thedefehdant was privileged from arrest at the time; second; whether his remedy can be enforced by aples. in abatement; third, w,hether submitting to the arrest and giving a bailbond is a waiver of the privilege; fourth, whether answering to the merits is a waiver of the plea -in abatement. It has long been settled that parties and witnesses attending in good faith any legal tribunal,with or without a writ of protection, are privileged from arrest on civil process their attendance, and for a. reasonable time in going and returning. Thompson', Case, 122 Mass. 4:28; In fOe Healey, 58 Vt. 694; S. C. Reporter, April 5, 1882; Huddeson v. Prizer, 9 Phila. 65; Ex parte Hurst, 1 Wash. 186; Juneau Bankv. McSpedan, 5 Biss.64; Bridge, v. Sheldon, 7 FED. REP. 17,43; Personv. Gfie'r. 66 N. Y. 124; Bacon, Abr. "Privilege,B," 2; Meekins v. Smith. 1 H. Bl. 636; 1 Green!. Ev. § 316. And this protection extends to the attendance of parties and witnesses before arbitrators, commissioneril, and examiners. Spence v. Stewart. 3 East. 89; Arding v. Flower, 8 Term Rep. 534; Sanford v. Chaae. 3 Cow. 881; U. S. v. Edine, 9 S. & R.147; Huddeson v. Prizer, .9 Phila. 65; Wetherillv.Seitzinger, 1 Miles, 237; Bridgesv.Sheldon, 7 FED. REP. 17.43; 1 Green!. Ev. § 317.' It is clear, tperefore, that the defendant was privileged ·from arrest at the time it' was made. But whether his remedy is by plea in
in