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United States v. Montana Lumber Co., 196 U.S. 573 (1905)

United States v. Montana Lumber

and Manufacturing Company

No. 128

Argued January 13, 1905

Decided February 20, 1905

196 U.S. 573


While the grant to the Northern Pacific Railroad Company under the Act of July 2, 1864, was in praesenti, and took effect upon the sections granted when the road was definitely located, by relation as to the date of the grant, the survey of the land and the identification of the sections -- whether odd or even -- is reserved to the government, and the equitable title of the railroad company and its assigns becomes a legal title only upon the identification of the granted sections. Until the identification of the sections by a government survey, the United States retains a special interest in the timber growing in the township sufficient to recover the value of timber cut and removed therefrom.

In a suit brought by the United States for that purpose, private surveys made by the railroad company cannot be introduced as evidence to show that the land from which the timber was cut were odd sections within the grant and included in a conveyance from the railroad company to the defendants.

Action by the United States against the Montana Lumber Company and the other defendants for the recovery of $15,000, for the value of 2,000,000 feet of lumber which had been cut by the lumber company on unsurveyed lands within the District of Montana and converted by the defendants to their own

Page 196 U. S. 574

use. It is alleged that the land from which the lumber was cut when surveyed will be in township 26 N., of range 34 W., of the Montana meridian. The railway company answered separately, denying the allegations of the complaint. The other defendants also denied the allegations of the complaint. Further answering, they admitted the cutting of the lumber, but alleged it was cut from land which, when surveyed, would be section 5 of said township, and that said section was within the limits of the grant made by Congress to the Northern Pacific Railroad Company, and that the lumber company was, at the time of the cutting, the owner of the lands by conveyances from the railway company.

The case was tried to a jury. A nonsuit was granted as to the railway company. Under instructions of the court, a verdict was returned for the other defendants.

On the trial of the case, the lumber company was permitted to introduce in evidence, over the objection of the plaintiff, a private survey of a portion of the township, made by one John J. Ashley, a civil engineer and surveyor, in the year 1886, for the Northern Pacific Railroad Company, for the purpose of ascertaining the location of the railroad sections contained in said township, in connection with other evidence that the timber sued for was taken from what Ashley had designated as section 5.

In rebuttal of this evidence, the plaintiff offered to prove by George F. Rigby, a surveyor and engineer, that he had made a survey of the same lands, and that the Ashley survey was incorrect, and that section 5, as located by Ashley, had been placed three-fourths of a mile too far east. The court ruled out the testimony. From the judgment entered upon the verdict for the defendants, the case was taken by writ of error to the circuit court of appeals. Whereupon the latter court stated the facts substantially as above, and reciting that there were two other cases pending involving the same questions, and that the court was divided in opinion, certified to this Court the following questions:

Page 196 U. S. 575

"First. Did the District Court for the District of Montana err in admitting in evidence the proof of the survey made by Ashley and the proof tending to show that the timber cut by the Montana Lumber & Manufacturing Company had been cut on what will be, when surveyed by the United States, section 5 of township 26 north, or range 34 west, Montana meridian?"

"Second. Did the court err in excluding the evidence offered on behalf of the plaintiff in error tending to show that the Ashley survey was erroneous?"

"Third. Did the court err in instructing the jury to return a verdict for the defendants in error on the ground that the United States had failed to prove its ownership of the land from which the timber was cut? "

Page 196 U. S. 576

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