The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-04-27
HUSSEY CASE REVERSED.
The Circuit Court Of Appeals Decides
Contrary 10 Judge Knowles,
Of Montana
Timber Cutting stopped on Un-
surveyed Land Within the
Railroad Grant
The Trial OF WIN Hanks WIN begin IN
the United states Court This
MornIne.

copy Of the deciaion Of the United
States oirouit eourt Of appeals 81 BAn
Francisco has been teeeived here in the
case Of abe Northern Pacific Railroad COM
pany. appellant versus John ID. Hussey.
respondent. The appeal was tried before
Clrouit judges Meksnna and 0ilbsr, and
DistTio, JudRs Ross. The latter delivered
the opinion Of ,he court. Salt vas brought
By the Northsrn Paoine In She United
States court hers 70 snioin Husssy from
cutting timber fiem unsurvsyed land In
MsaRhsr county within forty miles Of the
railroad line. A demurrer 30 the complaint
was sustainsd By the lower courL and an
appeal taken. The . DIVISIONS OF the grant
Of the road gave IL every alternate sec
zion Of non-minsral land within tbs forty
nils limit; and the allegations of the COM
plant wee that the lands in qusa-
ti0n we're non-mineral, broken and moun-
tainous, not adst ted 10 agriculture. bat
valuable only for the timber on them. and
that az the time of the definite location Of
ths eompany's road ths lands wore public
and not reserved or appropriated, and that
being unsuFveved. 10 was impossible 20 dis.
tinRuish the lands embraced by the grant
railroad asked for the injunction on the
ground that 10 and the United States were
tenants in common of the unsurvsyed
lands In question; and that IL they wsfo
not, still the road bad such on interest In
the protection Of ell the unsutvsysd lands
within the limits Of the grant az TO entitle
10 20 the injunction.
Judge Ross. In the opinion Of ths circuit
court of appeals. takes up FIRST tho question
as TO whether the road and the government
we're tenants In common OF sae unsuTveyed
land within the limits of the grant. He
says the supreme court In numerous de
oisions. have held that the title Of tbs COM
pany attached TO laRds within the primary
limits OF Ito grant at the time the route
vas definitely hKSd. while it lie impossi-
BILE" he says. ITO distinguish the lands
granted 20 the railroad oom pany from those
retained By The government until the sur
vey 10 made. IL needs shly a survey 70 dis
tinguish those of the railroad. In which the
government has no Interest. from thOae of
the eovsrnmeht. In which the railroad hes
no interest. Tenants In common of a
tract Of land. although their estates be sew
eIal, have each an Undivided interest in the
whole.
ia is apparent that the com claimant has
no adequate remedy a. law. IL cannot
MAINTAIN an action for damages for the
cutting OF any trees upon the lands in ques-
tion. or any other action AZ Law, for the
reason that 10 would be essential TO the
maintenance OF such an action for the
plaintiff, TO show that the particular trees
for the land came from ths land OF the
plaintiff and this 10 int ossible 10 be ehoWn
In advance OF the government survey. Yet,
the complainant shows that Hussey, with
Out any right or authority whatever, in
other words as n mere trsspasser. has en-
tsred upon the body OF unsurveysd tHpds
within the limits OF the grant. aud, for
purposes Of speculation and saie, has Gem
menced 10 cut ths timber. and will, unless
restrained. continue these illegal acts and
remove the very thing which constitutes
tho chief. II not the only value of the lands
Every tree fsllod by the defendant aud
every tree intended to be cut By him. neoes-
sarily impairs the value OF the complain
ants interest in she grant, for the condi-
ton of she lands within the grant limits
necessarily renders 10 unesTtaia and i'm pos
sible TO ascertain how many Of such trees
have been OF will be cut from the lands be-
longing 10 complsinant. This very unesT
tAintJ would seem 10 vest in such grantee
the right 20 protect the whole 80 against
the mere tresgasser and wrongdosr."
The Judgment Of the lower court 10 re-
vsrsed and the Cause remsnded with Sirsc-
tons 60 override the demurrer 20 the bill Of
complaint. with leave TO defendant 10 an
sWef.