# Barden v. Northern Pacific Railroad Company

* related portals: Supreme Court of the United States, Northern Pacific Railway.
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## Dissenting Opinion

    Brewer
United States Supreme Court
154 U.S. 288
Barden v. Northern Pacific Railroad Company
This action was brought by the Northern Pacific Railroad Company against Richard P. Barden, William, Muth, James P. Boyce, and Ada F. Boyce, for possession of certain lands. Defendants' demurrer to the complaint was overruled, and judgment for plaintiff was entered thereupon. Defendants brought error.
This was an action for the possession of certain parcels of land containing veins or lodes of rock in place, bearing gold, silver, and other precious metals, situated within section 27 of township 10 north, range 4 west of the principal meridian of Montana, claimed by the Northern Pacific Railroad Company-the plaintiff below, the defendant in error here-as parts of the land granted to it by the act of congress of July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route,' and the acts and resolutions supplementary and amendatory thereof. 13 Stat. c. 217, p. 365.
By its first section the plaintiff was incorporated and authorized to construct and maintain a continuous railroad and telegraph line, with the appurtenances, from a point on Lake Superior, in the state of Minnesota or Wisconsin, and thence westerly, by the most eligible route, as should be determined by the company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget sound, with a branch by the valley of the Columbia river to a point at or near Portland, in the state of Oregon. The company was invested with all the powers, privileges, and immunities necessary to carry into effect the purposes of the act.
By the third section a grant of land, other than mineral, was made to the company in words of present conveyance to aid in the construction of the railroad and telegraph line and for other purposes. Its language is: '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 said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights 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 whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved. occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.' The grant thus made is accompanied with certain conditions or provisos,-these among others: 'That all mineral lands be, and the same are hereby, excluded from the operations of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd-numbered sections, nearest to the line of said road, may be selected, as above provided; and that the word 'mineral' when it occurs in this act shall not be held to include iron or coal.'
By the fourth section it was enacted: 'That whenever said Northern Pacific Railway Company shall have twenty-five consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated, the president of the United States shall appoint three commissioners to examine the same, and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed in a good, substantial, and workmanlike manner, as in all other respects required by this act, the commissioners shall so report to the president of the United States; and patents of lands, as aforesaid, shall be issued to said company, confirming to said company the right and title to said lands, situated opposite to and coterminous with said completed section of said road; and from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed, and in readiness as aforesaid, and certified by said commissioners to the president of the United States, then patents shall be issued to said company conveying the additional sections of lands as aforesaid; and so on as fast as every twenty-five miles of said road is completed as aforesaid.'
By the sixth section it was enacted: 'That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after they are surveyed, except by said company, as provided in this act; but the provisions of the act of September, 1841, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An act to secure homesteads to actual settlers on the public domain,' approved May 20, 1862, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company; and the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.'
The complaint alleges that the general route of the railroad extending through Montana was fixed February 21, 1872, and the lands in controversy were within 40 miles of such general route, and were public lands not reserved, sold, granted, or otherwise appropriated, and were free from pre-emption or other claims or rights; that thereafter, July 6, 1882, the line of the road, extending opposite and past the described lands, was definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office, and that the demanded parcels were within 40 miles of the line thus definitely fixed; that thereafter the plaintiff constructed and completed that portion of its railroad and telegraph line extending over and along the line of definite location; that thereafter the president of the United States appointed three commissioners to examine the same, and they reported to him that that portion of the railroad and telegraph line had been completed in a good, substantial, and workmanlike manner, in all respects, as required by the act of July 2, 1864, and the act supplementary thereto and amendatory thereof; that the president accepted the line as thus constructed and completed; that at the time of filing the plat of definite location in the office of the commissioner of the general land office, namely, July 6, 1882, the described land was not known mineral land, and was more valuable for grazing than for mining purposes; that in 1868 all the lands in township 10 north, of range 4 west, were duly surveyed, and the township plat was, September 9, 1868, filed in the United States district land office for the district of Helena, Mont., that being the district in which said township is situated, and by that survey the land of the township was ascertained and determined to be agricultural, and not mineral, and that said determination and report have continually remained in force; that after the completion of the railroad the plaintiff listed the section, including the lands described, and other lands, as portions of the grant, and on November 8, 1868, filed the list in the district land office at Helena, and paid the fees allowed by law; that the list was accepted and approved by the receiver and register, and certified to the commissioner of the general land office, and has since remained in the same district land office and in the office of the commissioner; that at the time of the acceptance, approval, and allowance of the list, and at all times prior thereto, no part of the land was known mineral land, or was of greater value for mining purposes than for grazing, agricultural, or town-site purposes; that during the year 1888 certain veins or lodes of rock in place, bearing gold and silver and other precious metals, were discovered on said described land, and thereafter William B. Wells, William Muth, Harpin Davies, and Richard P. Barden, citizens of the United States, without the consent and against the will of the plaintiff, entered upon said land, and made locations of said veins and lodes upon certain lots thereof, as follows, to wit: The Vanderbilt quartz lode mining claim on lot 68, August 10, 1888; the Four Jacks and the New York Central & Hudson River quartz lode mining claims on lots 72, 74, and 75, respectively, May 9, 1889; and the Chauncey M. Depew quartz lode mining claim, on lot 73,-all of said lots being within section 27, township 10 north, range 4 west; that the defendants are in possession of said lots, claiming under said locations, through mesne conveyances from the locators, and have been and are extracting ore therefrom; and that the same are mineral lands.
And the complaint further alleges that the United States have failed, neglected, and refused to issue to the plaintiff a patent for said land, though all acts required by law to entitle the plaintiff to a patent have been fully performed; that the title to the premises has vested in the plaintiff under and by virtue of the acts of congress, and its compliance therewith; that the lots designated are of the value of over $6,000; and that the value of the ore wrongfully extracted and taken from them by the defendants is over $100.
Wherefore, the plaintiff prays judgment against defendants for the recovery of the possession of the said lots, for the value of the ore so extracted, and for costs.
To this complaint the defendants demurred on the ground that it did not state facts sufficient to constitute a cause of action, and entitle the plaintiff to the relief prayed. The demurrer was argued before the circuit judge and the district judge holding the circuit court of the ninth circuit, at Helena, in the state of Montana, and they differed in opinion upon the demurrer; the circuit judge holding that it was insufficient, and should be overruled, and the district judge dissenting therefrom. Judgment was accordingly entered, overruling the demurrer, and the defendants were allowed 10 days within which to answer the complaint. But they came into court, and stated that they would abide by their demurrer, and declined to file an answer, whereupon their default was entered; and, on application of the plaintiff's attorneys, it was ordered that judgment be entered against them for the recovery of the possession of the lots designated, the value of the ore taken therefrom, and costs of suit, which was accordingly done. To the ruling of the court in overruling the demurrer, exception was taken by the defendants, and to reverse the judgment they have brought the case to this court on writ of error.
W. W. Dixon and Sol. Gen. Maxwell, for plaintiffs in error.
[Argument of Counsel from pages 294-304 intentionally omitted]
E. W. Toole, Wm. Wallace, M. F. Morris, W. W. Dixon, Atty. Gen. Miller, and Asst. Atty. Gen. Shields, for plaintiffs in error.
Jas. McNaught and Jas. C. Carter, for defendant in error,-on reargument.
James McNaught, A. H. Garland, and Jas. C. Carter, for defendant in error,-on argument at October term, 1892.
[Argument of Counsel from pages 305-311 intentionally omitted]
Mr. Justice FIELD, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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