Omaha daily bee., 1874-07-04
Opinion by Judge Dillon.

The decision of the United State,
Circuit Court, in two of the mos
important cases ever presented II
that court, was received at the off1ct
Of Col. Watson B. smith, clerk
yesterday. The cases involve the
right of the State and counties t.
levy taxes on lands embraced in the
land grants of the Union Pacific
and Burlington & Missouri railroads,
respectively. Judge Dillon has
filed an elaborate opinion in each
case. That in relation to the Union
Pacific lands we shall print in
another issue of the BEE. and
we therefore only premise that the
court holds that lands for which the
railroad company has received pat
ents are subject to taxation, while
other lands Of the company are not.
The effect of this is to exempt about
three-fourths of the lands Of the
company from taxation. Patents
been issued for lands for the first
hundred miles, and within the ten
mile limit.
The following l. the full text of
opinion i'm the case involving the
taxation of the B. & NJ. lands:
IN THE U. S. CIRCUITCOURT,
DISTRICT OF NEBRASKA-IN
EQUITY. MAY TERM, 1874.
Horatlo II. Hu~nnewell, suing for himself and
nth
Tho Burlington and Missouri River railroad
Company in Nebraska, the County of Cass
and other Counties.
l. The land grant to the Burling-
ton and Missouri River Railroad
Company Tact of July 2, 1854,
secs. IL, 20; 13 Stats. at Large,
PIP. $50, 364,) is nOtsubject to the
proyiso in section g., Of the origi-
nal act of July l, 1852, az Stats.
at Large, 4S9), giving to the pub
lac the right of settlement and pre-
emption if the lands granted be
not sold or disposed Of within
three years after the entire line Of
the road is com lleted.
=. Where the lands had not been
fully earned by the railroad COM
pany i'm 1871, and the cost Of
surveying paid as required by
sec. q of said act Of July 2, 1854,
before the period for assessing
lands for 1872 had passed, it was
held that the lands were taxable,
although the company did not
pay the local land officers fees
until a few days after the period
for making the assessment for
1872 had expired.
BEFo RE DILLON, CIRCUIT JUDGE.
Construction of land grant to the
Burlington Railroad Company;
Taxability of iIs lands; Act of
July 2, 1854, sec. q, construed.
This is a bill to restrain the col.
lection of taxes levied upon lands
granted by congress to the defen-
dant railroad company. 1t is filed
by the plaintiff, as a stakeholder Of
the company, after he had repre-
scented to its board of directors the
improperly Of of paying the taxes,
and requested them to bring action
to enjoin their collection, or other
wise take efficient measures to pro-
tect it therefrom, and after they had
declined to do SO, because it would
be q difficult and unpopular step to
take.
The taxes complained Of were, in
1872, levied by the several counties
made defendants, in which the
lands are situated, and were, in
point of form, regular in all respects.
They are sought to be avoided on
the ground that the lands upon
which they were levied were not
taxable, on account of certain pro-
visions of the acts by which they
were granted to the company. The
provisions of these acts of congress,
upon which the plaintiffs claim
rests, are the Sd and 18th sections Of
the act of 1861 ,(12 Statutes at Large,
PIP. 4S9, 1922 and sections Is, 10, 20,
and p of the act of 1864, (l3 Stat
utes at Large, PIP. 1856, S64).
The work of constructing the
railroad was commenced on the 4th
of July, 1859, at Plattsmouth on the
Missouri river, and was prosecuted
with such vigOr that it was COM
pleted to a junction with the Union
Pacific railroad at Kearney juno
ton, in the fall of 1872, and, its last
section was, on the 4th of Novem-
Der of that year, accepted by the
commissioners. Early in its enter
prise the company mortgaged its
lands to raise the means o. a part
| thereof, with which to carry for
ward the work, to which purpose
those means were applied and it
has applied the proceeds arising
from the sale of the lands, and has
pledged proceeds thereof for that
purpose.
On the 9TH of March, 1872, the
company paid to the United States
the cost of surveying the lands OPP
posite the first one hundred and
forty miles of the road, including
field work and Office work, and on
the 9th of May, 1872, paid tre cost
of survey ng the lands opposite the
| remainder of said lands.
On the 10th and Goth days OF
April and the LIST and I'd days OF
May, of the same year, the fees Of
the Register and Receiver in respect
of said laws were paid.
The revenue laws of the State re-
quire the Assessors to meet for the
purpose of e~qualizing their assess-
ments on the LIST Monday In April,
and to return their rolls to the coun-
ty clerk on the I'd Monday Of that
month, and the county commission
ers to sit as a board of equalization
on the Sd Monday and for the two
succeeding Jays. The sessions Of
said board for 1872 closed on the
18th day Of April.
The proper duplicates and war
rants to collect and enforce the tax
were placed in the hands Of the
treasurers of the several counties
which are implicated in the bill,
and, when the injunction was al.
lowed they were about to sell the
lands. About one-half Of the take.
go to the State.
The cause Is before the court o.
final hearing on the bill, answer
replication and proofs. This suit
relates to lands along the first IN
miles of the company's road. An
other suit by the same plaintiff re
lates to lands along the yendue O,