434 F2d 1314 Mortenson v. Burlington Northern Inc

434 F.2d 1314

Morten MORTENSON et al., Plaintiffs and Appellants,
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.


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


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.


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