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are determined after an actual examination of the country, or from a knowledge of it, and is designated by a line on a map showing the general features of the adjacent country, and the places through or by which it will pass. The officers of the land department are expected to exercise supervision over the matter, so as to require good faith on the part of the company in designating the general route, and not to accept an arbitrary and capricious selection of the line, irrespective of the character of the country through which the road is to be constructed. When the general route of the road is thus fixed in good faith, and information thereof given to the land department by filing the inap thereof with the commissioner of the general land office, or the secretary of the interior, the law withdraws from sale or pre-emption the odd sections, to the extent of forty miles on each side. The object of the law in this particular is plain. It is to preserve the land for the company to which, in aid of the construction of the road, it is granted. Although the act does not require the officers of the land department to give notice to the local land officers of the withdrawal of the odd sections from sale or pre-emption, it has been the practice of the department, in such cases, to formally withdraw them. It cannot be otherwise than the exercise of a wise precaution by the department to give such information to the local land officers as may serve to guide aright those seeking settlements on the public lands, and thus prevent settlements and expenditures connected with them which would afterwards prove to be useless. Nor is there anything inconsistent with this view of the sixth section as to the general route, in the clause in the third section making the grant operative only upon such odd sections as have not been reserved, sold, granted, or otherwise appropriated, and to which pre-emption and other rights and claims have not attached when a map of the definite location has been filed. The third section does not embrace sales and pre-emptions in cases where the sixth section declares that the land shall not be subject to sale or pre-emption. The two sections must be so construed as to give effect to both, if that be practicable.”
In the later case of St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 17, 11 Sup. Ct. 389, where the land involved was situated in the state of Minnesota, and where the primary limits of the grant to the Northern Pacific Company extended only 20 miles on each side of the road, the supreme court, in considering the same grant, said:
“The withdrawal made by the secretary of the interior of lands within the forty-mile limit on the 13th of August, 1870, preserved the lands for the benefit of the Northern Pacific Railroad from the operation of any subsequent grants to other companies not specifically declared to cover the premises. The Northern Pacific act directed that the president should cause the lands to be surveyed forty miles in width on both sides of the entire line of the road, after the general route should be fixed, and as fast as might be required by the construction of the road, and provided that the odd sections of lands granted should not be liable to sale, entry, or pre-emption before or after they were surveyed, except by the company. They were therefore excepted by that legislation from grants, independently of the withdrawal by the secretary of the interior. His action informally announcing their withdrawal was only giving publicity to what the law itself declared. The object of the withdrawal was to preserve the land unincumbered until the completion and acceptance of the road.”
And, after referring to what the court had ruled in the previous case of Buttz v. Railroad Co. in respect to the withdrawal of the lands, added:
"After such withdrawal no interest in the lands granted can be acquired, against the rights of the company, except by special legislative declaration, nor, indeed, in the absence of its announcement after the general route is fixed."
And the court, in the St. Paul & P. R. Co. Case, further held, in answer to the objection that no evidence was produced of any selection by the secretary of the interior from the indemnity lands to make up for the deficiencies found in the lands within the place limits, that:
"It is sufficient to observe that all the lands within the indemnity limits only made up in part for these deficiencies. There was therefore no occasion for the exercise of the judgment of the secretary in selecting them, for they were all appropriated.”
It does not seem to me that the language used by the supreme court in these cases admits of any other construction than that the odd sections included within the indemnity as well as the primary limits of the grant to the Northern Pacific Company were withdrawn, for the benefit of the grantee, from sale, pre-emption, homestead entry, or other disposition. Indeed, one of the counsel for the defendants, in one of the briefs filed in this case, admits that in the case last cited the supreme court held “that, as between railroads, the withdrawal from operation of law upon filing map of general route under the senior grant operated to except all the lands in the indemnity as well as primary limits from the operation of the junior grant,” but, he adds, "this must be true as between railroads, in view of the terms of the grant excluding lands previously granted, reserved, or claimed at the time of filing map of definite location by the railroad at the time of the junior grant.” This latter observation of counsel is answered by the decision of the supreme court in the Buttz Case that there is nothing inconsistent with its view of the sixth section of the act "in the clause in the third section making the grant operative only upon such add sections as have not been reserved, sold, granted, or otherwise appropriated, and to which pre-emption and other rights and claims have not attached when the map of the definite location has been filed. The third section does not embrace sales and pre-emptions in cases where the sixth section declares that lands shall not be subject to sale or pre-emption.” A withdrawal, however made, before the line of road is definitely fixed, is, as said by this court in the Araiza Case, "as applicable to lands within the indemnity limits as to those within the primary limits of the grant; for up to that time the grant is no more attached to specific tracts of the one class of lands than of the other, neither being in any way identified.” The sixth section of the act of July 2, 1864 (13 Stat. 365), making the grant to the Northern Pacific Company, being in substance, and almost literally, the same as the sixth section of the act of July 27, 1866, making the grant to the Southern Pacific Railroad Company, the language of the supreme court above quoted is equally applicable to the act in question here (U. S. v. Southern Pac. Ř. Co., 146 U. S. 600, 13 Sup. Ct. 152), and renders necessary, in my opinion, the conclusion announced in Railroad Co. v. Araiza, supra.
If, as counsel for defendants insist should be done, the ruling of the supreme court referred to—that where, as here, the loss of lands within the granted limits is so great that all the lands included within the indemnity limits are insufficient to make good the loss, there is no occasion for the exercise of the judgment of the secretary of the interior in selecting from them, because, in such case, they are all appropriated—be regarded as unnecessary to the decision in that case, still, in the present case, according to the averments of the bill, the complainant sought to select the land in controversy in lieu of land lost to it within the primary limits of the grant, at the same time tendering all lawful fees, which selection was by the land department refused. Such refusal, if the right exists, entitled the company to resort to a court of equity for relief. Van Wyck v. Knevals, 106 U. S. 360, 1 Sup Ct. 336; Smelting Co. v. Kemp, 104 U. S. 636. But such application must be seasonably made (Curtner v. U. S., 149 U. S. 676, 13 Sup. Ct. 985, 1041); and it is here contended that it was not. This attempt on the part of the complainant to select the land in controversy was not made until the 13th day of January, 1891, although it contested defendant Groeck's right to the land in the local land office, as also, by appeal, throughout the department of the interior. This ineffectual effort in the department of the interior against the allowance of Groeck's entry was neither a selection of the land by complainant, nor, under the decision of the supreme court in Curtner v. U. S., supra, can it be held to relieve complainant of the plea of laches in the assertion of its rights. According to the averments of the bill, the land in controversy was withdrawn for complainant's benefit as early as 1867. On September 2, 1885, it was settled upon by the defendant Groeck; was patented to him by the United States April 11, 1890; and yet complainant never sought to select it until January 13, 1891,-nearly 25 years after the withdrawal of the land for complainant's benefit, and more than 5 years after the defendant Groeck's adverse entry upon it, according to the averments of the bill, which bill was not filed until more than a year thereafter, to wit, February 11, 1892. The bill contains no allegation as to when it was first discovered that all of the lands within the indemnity limits of the grant were insufficient to make good the loss sustained by complainant of lands within the primary limits, but it does allege that that fact was attested and certified to by the commissioner of the general land office in his annual report for the year 1883 to the president and to the department of the interior. Applying the rule announced by the supreme court in the case of St. Paul & P. R. Co. v. Northern Pac. R. Co., supra, to that fact, it is apparent that complainant's cause of suit existed at least as early as September 2, 1885, when defendant Groeck made his adverse settlement upon the land as a pre-emptor. Yet complainant waited until February 11, 1892, before bringing this suit to establish its claim to the land,-more than 61 years,—a period considerably longer than that prescribed by the statute of California for the bringing of an action for the recovery of real property. Code Civ. Proc. Cal. $$ 318, 319, 343, 738. Nor does the bill show any reason why its right of selection was not sooner exercised. As already said, it shows that as early as the year 1867 the lands included within the indemnity limits of its grant were withdrawn for complainant's benefit; but whether its right of selection was deferred by reason of the failure of the government to make a survey of the lands, or whether, for any other cause, complainant's failure to make the selection within a reasonable time was excused, is nowhere shown. The fact remains that it was not until February 11, 1892, that complainant came into a court of equity to enforce its rights to the land in question. Unless there be some excuse not disclosed by the bill as presented, it waited too long. As said by this court in De Estrada v. Water Co., 46 Fed. 280:
"It is true that the statutes of limitations applicable to actions at law do not apply to suits in equity, but courts of equity are governed by the analogies of such statutes. Norris v. Haggin, 136 U. S. 386, 10 Sup. Ct. 942. 'A court of equity,' said Lord Camden, 'has always refused its aid to stale demands where the party slept upon his rights, and acquiesced for a great length of time. Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. Where these are wanting the court is passive, and does nothing. Laches and neglect are always discountenanced, and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this court.'
This doctrine has been repeatedly recognized and acted on by the supreme court. Curtner v. U. S., 149 U. S. 676, 13 Sup. Ct. 985, 1041; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, and cases there cited. Demurrer sustained, with leave to the complainant to amend within the usual time, if it shall be so advised.
HOBBS v. STATE TRUST CO. et al.
(Circuit Court of Appeals, Fifth Circuit. June 4, 1895.)
No. 346. 1. VENDOR'S LIEN-EMINENT DOMAIN.
A railway company which had made a mortgage covering after-acquired property began proceedings to condemn land of H. The compensation awarded not being paid, H. began a suit to restrain the railway company. A compromise sum was then agreed on, but not paid, and the court in H.'s suit decreed a lien in H.'s favor on his land taken by the railway company, and ordered it sold. H. bought it in at the sale. Afterwards, in a foreclosure suit by the mortgagee of the railway, the mortgage was declared a valid lien on H.'s land, and it was ordered to be sold. Held error; that H. retained a valid vendor's lien and acquired a perfect title by the sale in
his suit. 2. EQUITY PRACTICE-BILL OF REVIEW.
The rule that before a bill of review can be filed the decree sought to be reviewed must be obeyed and performed, does not apply to a party who is not required by the decree to do anything.
Appeal from the Circuit Court of the United States for the Northern District of Alabama.
This was a bill of review filed by Thomas M. Hobbs against the State Trust Company and others to review and reverse a decree rendered in a suit by the State Trust Company against the Decatur, Chesapeake & New Orleans Railway Company and Thomas M. Hobbs for the foreclosure of a mortgage. The circuit court dismissed the bill. Complainant appeals. Reversed.
The Decatur, Chesapeake & New Orleans Railway Company on June 25, 1889, executed a deed of trust to the American Loan & Trust Company on all of its property, rights, and privileges then or thereafter acquired, as security for three millions of bonds running for 40 years, with interest coupons attached. $1,300,000 of these bonds were issued. In consequence of default in the payment of interest, the American Loan & Trust Company, trustee, on December 15, 1890, filed its bill in the United States circuit court for the Northern district of Alabama against the Decatur, Chesapeake & New Orleans Railway Company for the foreclosure of the deed of trust, the sale of the property, and the rights and privileges therein described, and the payment of the outstand ing bonds. On January 5, 1891, a decree was rendered accordingly. This decree not having been executed, on August 3, 1891, the State Trust Company of New York, the successor of the American Loan & Trust Company as such trustee in the deed of trust, filed its supplemental bill in the above suit, reiterating many of the matters in the original bill, and setting up that the appellant, Thomas M. Hobbs, and others claimed some lien or interest in the premises, for which they were made parties defendant, and praying that the lien of the deed of trust be declared superior to all others, that the defendants be forever barred, and that a foreclosure of the deed of trust be had for the benefit of the bondholders. Thereupon, the appellant, Thomas M. Hobbs, filed his answer to the original and supplemental bills, and therein averred that on August 1, 1890, the Decatur, Chesapeake & New Orleans Railway Company filed its application in the probate court of Limestone county, Ala., for the condemnation of right of way 100 feet wide in, through, and over his (the appellant's) land in Limestone county, Ala.; that thereupon answer was filed, the Jury was impaneled, a trial was had, the damages were assessed at $8,196.33, and a judgment of condemnation was rendered August 18, 1890, all in conformity to the statutes of Alabama; that payment of these damages not being made, as required by the constitution of Alabama, the appellant, on September 1, 1890, filed his bill in the chancery court of Limestone county, Ala., against the Decatur, Chesapeake & New Orleans Railway Company et al., and obtained a preliminary injunction restraining the defendants therein from taking the right of way until payment of the damages was made; and that thereupon, on September 3, 1890, a compromise was made by the appellant with the Decatur, Chesapeake & New Orleans Railway Company, by which such damages were fixed at $2,500, payment of which was to be made by September 15, 1890. Said Hobbs further answered that the Decatur, Chesapeake & New Orleans Railway Company having failed in the payment of the compromise sum, the appellant at the March term, 1891, of the chancery court of Limestone county, Ala., by amendment to his bill, brought the compromise before the court, and thereupon by decree the court declared a lien on the right of way in his favor to the extent of $2,500; that on April 13, 1891, the register, after due advertisement, made sale of the right of way at public auction to the appellant, the highest bidder, executed to him a deed, and placed him in possession,-all of which was duly confirmed by the court; that the rails and ties had been laid in and on the right of way and were a part of the real estate; and that the deed of trust was not filed in Alabama for record, nor did the appellant have any notice of it whatever, until after September 27, 1890. In the said answer the said Hobbs specifically averred as follows: "After this defendant thus bought the right of way on April 15, 1891, he severed, removed, and sold the rails thereon, as he had a right to do, they having become real estate when thus laid in the track, roadbed, and earth.” To the said answer were attached exhibits showing transcript of the proceedings before the probate court of Limestone county, Ala., instituted by the Decatur, Chesapeake & New Orleans Railway Company, to condemn the lands of Hobbs for the use of said railway company as a right of way, and the proceedings had in the chancery court for the Northwestern division in the Fifth district of Alabama, wherein the amount of the compromise between the railway company and said Hobbs was declared to be a lien upon the lands covered by the right of way for the amount of $2,500, and the same were ordered sold to satisfy said lien, etc. Issue was joined upon the said answer, and thereafter the cause was heard, and a decree pronounced, to the effect that the mortgage made by the Decatur, Chesapeake & New Orleans Railway Company to the American Loan & Trust Company was a valid and subsisting mortgage and constituted a first lien upon the mortgaged premises, property, and franchises described in said mortgage, and further decreeing a foreclosure of the lien and a sale of the railway property to satisfy the same.
The present case is one made by a bill of review filed April 6, 1893, by Thomas Maclin Hobbs, complainant below, appellant here, wherein the foregoing proceedings in cause No. 166 are recited, and the charge made that the said decree of foreclosure is erroneous, in this: That it makes the lien of the mortgage or deed of trust, therein referred to, superior to the lien or right of complainant, Thomas M. Hobbs, as to certain described lands; and asserting