The Helena independent., 1891-04-07
c. v. CANN0N'S PATENT
Said to be Cloud on Northern
Pacific Land Near
Helena.
Company Must First be in Actual
Possession Before Maintain-
ing a Suit.
Two Adverse Decisions to tho Company
Rendered In the United States
Circuit Court.

Circuit Court
The Northern Pacific lost point yester
day in the Hght against c. w. Cannon owe
the title to- some valuable land on the wes
side of,town near the Hauser boulevard
The cxse came up in the United States Cir
cult court. Cannon secured minera
patent to the land in October, 1881, con-
sistinc of the south half of the southeast
quarter and the southeast quarter of the
southwest quarter of section %, town II
north Of range, west. 1t is contended by
the company that Cannon falsely and
fraudulently represented to the officers OF
the land office that the land was
mineral and introduced false testimony
and afidavits to support his application
for the patent The company's claim to
the land is made under its grant from con-
gress of every alternate odd section on each
side of the line of its road for twenty
miles. 1t says Cannon's patent is Is cloud
upon it's title and prevents it from receiv-
ing patent to the ground to which it is en-
titled and asks that its title be decreed as
good and Cannon be forever restrained
from asserting any domain whatever to the
premises. 1t is further alleged that the
ground has been vacant. unoccupied, un-
fenced and unin,proved until within less
than five years priorto the commencement
of the company's suit.
In passing upon the questions in the case
Judge Knowles said "The reason as
signed for asking to have the patent set
aside is that it prevents the plaintiff from
receiving patent for the premises from
the United States. This may be an excuse
for not issuing the patent to plaintiff. but
not a legal one, if it is entitled to a patent.
What would be the effect of Gnnuling the
patent to Mr. Cannon? The decree would
effect only the parties to this action, and as
far as the United States is concerned, which
is not party herein, and said defendants
are concerned the patent would still exist.
lcannot view this case in any other light
than an action to determine the adverse
title to tract of land.
'The bill of complaint shows that this
case is one to determine the adverse title
of the defendant and not an action to can
eel the patent issued to defendant Cath
crime b. Cannon. If it could be considered
an action to cancel the patent for fraud,
should have doubts of the ability of the
plaintiff to msintain this action. The
fraud, if any, was perpetrated upon the
United States, and the United States and
the defendants arc the parties to the con-
veyance. Plaintiff had received its title, if
any, to the premises long prior to the issu-
ing of this patent.
'What is the nature of the company's
title? Is it legal or an equitable one? 1t
appears that it has no patent for the lands.
In considering this question 1 am much
perplexed, for it appears to me there are
two lines of decisions upon this point, one
of which holds that its title is legal one,
and the other that it is an equitable one.
By decisions of the supreme court it has
been held that as to the granting of lands
the Union Pacific company's graE3 and the
Northern Pacitic's are in substance the
same" Quoting from the supreme court
Judge Knowles said: The United States
made a magnificent grant to this company of
lands equal to forty or fifty thousand square
miles, an area as large as an average state
of the union. 1t thought proper to require
of the grantee the payment of the
costs of making the surveys neces-
sary to the location and ascer
tainment of these lands. To secure the
payment of these expenses, it decided to re-
tain the legal title in its own hands until
they are Paid. The government was as TO
the costs, in the condition of a trustee in a
conveyance to secure payment of money.
But if the land was liable to be sold for
taxes due to state, territorial or county or
Ranizations this security would be easily
lost. In this case the supreme court
held that the statute passed in 1870 upon
the subject OF the Northern Pacific paying
for the costs of the surveying of the lands
within its grant placed it in the same con-
ditlon as the Union Pacific and -. Kansas
Pacific SO far as its land grant isSsslcerned.
The three decisions constituting the grants
OF the Union, Northern and Kansas Pacific
arrive at the same conclusion that the title
in these companies is an equitable one;
that until these costs of surveying and con-
veylng are paid to railroad companies have
not complete equitable little
even to their land. The other line
of decisions are reviewed and the
judge says II hold that the latest express
sion of the supreme court is that the plain
tiff in this case has the legal title, if any, to
the premises. If this were a new question,
should be disposed to hold as was held by
Judge Deadly, in United States VS.. Childers,
that the terms used in the grant, taken al
together, show that it is not the intention
OF congress to grant present legal title to
the lands granted to the Northern Pacific
Railroad company, but only a title which
was to be perfected when patent should
issue therefor. But the views of the su-
preme court must control this 1t has been
held that grant of the legal title by an act
of congress to land owned by the United
States is entitled to greater weight than a
patent title executed by ministerial officer
OF the government.
1.-The next question for consideration is
should the plaintiff, having the legal title
that 1t was III the possession of the premi
ses in dispute. 1t is said that to within 8
cant. unoccupied, unfenced and unim-
proved, and not used for any purpose. The
Inference is that the premises were at the
commencement of this suit occupied by
some one, and it is not alleged that the
plaintiff is that person. The allegation
was probably made with the view of show
Ing that the statute of limitation had not
run against this action. The general rule is
that those who have legal title and are out
OF possession cannot maintain an action to
remove cloud upon their title. Possession
must first be obtained in an action at Law,
IL the statute law of the state gave tina
right to maintain an action where the plain
tlff owns legal title and is not in posses
sion, the same right might be enforced in 8
feuerai court, and where new equity ia
gwen by statute, that equity may be en-
forced III court of the United States.
There ls, however. no statute in Montana
which gives this right vhen the plaintiff is
not IN possession. The only statute upon
the subject has been interpreted to the eff.
1eet that 1t must appear atiirmatively that
the plaintiff is in the actual possession of
the premises from the title to which be
seeks to remove u cloud.''