Transcript of Record — Great Northern Railway Co. v. United States
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TRANSCRIPT OF RECORD
Supreme Court of the United States
OCTOBER TERM, 1941 . |
No. 149 |
-—-e—_—eer rr
hod
GREAT NORTHERN RAILWAY COMPANY,
, | PETITLONER,
Us.
= THE UNITED STATES OF AMERICA
GN WRIT OF CERTIONARL TO THE UNITED STATES CIRCUIT COURT
OF APPEALS FOR THE NINTH CIRCUIT "
* fi :
PETITION FOR CERTIORARI FILED JUNE 9, 1$1.
CERTIORARI GRANTED OCTOBER 13, 11.
RAYMOND J. MacDONALD; as Trustee of an
_ express trust for ‘oth rs,
Appellant, -
VS.
UNITED STATES OF AMKRICA,
Appellee.
corporation,
vs.
’ UNITED .STATES. OF AMERICA,
a 88 - Ap
- Granseript of Record |
ie pers from the District Court of the
| United States*for the District of Montana. _
x. re
—--
PARKER PRINTING COMPANY, 845 SANSOME STREET. SAN FRANSISCO
Answer of Great. Northern Railway Co...............
ee oS ts Erie
Answer of Intervener to Plaintiff’s Complaint... -
Answer of ‘Plaintiff to Complaint of Intervenor
Answer ‘of Defendant to Complaint of Inter-
Appeal: z . | |
Designation of Contents of Record «on
(Great Northern Railway Co.) (Cirenit
Court of Appeals).
Designation of Contents of Record on
(Great Northern Railway Co.) ——
Designation of Contents of Record on
(MacDonald). (Cireuit Court of Ap--—
. 110
' peals) .. a ae
iiistiiratice of . Contents of Wes’ on
(MacDonald) (District i >) aia
Notice of (Great Northern Railway. Cot)...
Notice of (MacDonald) Wea se
13
. 106
ti - ° Raymond J. MacDonald‘vs.
Index ae Page
. Statement of Points on (Great Northern
Railway Co. ) (Ciréuit Court of Appeals) 113
Statement. of Points on (Great Northern
Railway Co.) (District Court)... 104: -.
Statement of Points on CMaeDonadt) (Cir- |
enit Court of Appeals)... eis Sere pal other! 110
Statement of Points on ( MacDonald) (Dis
trict Court) .nncenm a a
Attorneys, Natnes a Addresses of........ seer ‘ie
_ Bond on Appeal, Defendant's... mane |e
Cennaeth oi Sa Re ee 2
Certifieate of Clerk to Transcript of Record... |
Co omplaint in Intervention a orp es
‘Complaint of Plaintiff | oe aR RO salen 3 :
Conelusions of Law, Amended... atk ne | 96
| ecision of the Court ....... . ; 2 ae
“Designation of Contents of Record on ‘Appeal:
. ‘by Appellant Great. Northern Alpacas Com- |
pany, (Cireuit Court of Appeals)..... ——. 113
Designation of Contents of Record on Appeal
_ by en MacDonald (Cireuit Court ete,
Appeals) . BREN Dene, | Bae
Diiieaation 3 ‘of Contents. of Record on Appeal ;
by intervenor (District Court) 00 822:
Designation of Portions of Record to-be Con-
tained in Record on n Appeal, by Defendant: on . 106
United States of America 3 iii
age? a .”. Jydex. Page ~~
ras
Findings of Facet and. Conclusions of Law,
’ Amended . 93
Judgment .... St Pas | _ 99 ..,
Minutes of Court: on Hearing of Motions... a
Motion and Petition for Leave to Intervene... 13
‘Motion of Intervenor for J udgment on Plead-
eae S SRLETE ST 59
Motion of Plaintiff for J udgment on ee: 10
Names and Addresses of Attorneys of Record... 1
‘Notice of Appeal by Intervenor...0.-0020000— 81
Notice of Appeal, Defendant’s. = . 101
Notice of Motion for Judgment on Pleadings wat 10
Notice of Motion for Leave to Intervene’... 12 §
J Objection of Ptaintiff to Motion for ‘Leave to
Intervene ............. viii 41.
Order Extending Time to File Transcript in
OC AY. Liniteee s. 107
. Order for Amended Findings of Fact. and. Con- :
clusions of Law = f. 92
‘ Order Granting Motion for J udgment and ‘De- |
nying Intervention . “aera Fy
Reply of Plaintiff to Answer of etheoner am cn: ae
Statement ‘vf’ Points on Appeal by Appellant
Great Northern shorted Co. rom Qourt
of . en ; . 2, 113
eg
* ‘Statement of Points on Appeal by Soe
>
iv’ Raymond J. MacDonald vs.
| a Index
Pave |
MacDonald ( Circuit Court of Appeals)... 116 Be
Statement of Points on Appeal by Intervenor
(District Court) — iachctescdetiadccambas a
Statement of Points to be Relied ‘Upon ‘a Ap-
pellant Great’ Northern Railway Co. (Dis- : :
_triet Court)... se useaaes ob OES: um 104,
Rema for Amended. Findings of Fact and
‘ Conclusions. of . Law: 0.02... i * 90°
* peiinsdlitiais? in U. 8. C. C. A., Ninth C ireuit - $443 117
Order of submission femet 119
_ Order directing filing of | —— a decree. .. 120
Opinion, Healy, J. aaa SP eh Aen Gone -. 120
Dissenting opinion, Wilbur, J. 7.7.0 -...... 136
Decree Ra Bs ee poe 156
Order staying issuance of mandate _ ; <j aoe
Clerk’s certificate - 7 ae =, ae
Order allowing certiorari : (50
—7 908 : alae
a”
-? 4
a »
NAMES AND ADDRESSE S OF! pr oo
: OF RECORD:
‘W: H. HOOVER,
_. J. E. CORETTE, JR,” .
- L. V. KETTER, © ee oeeier
All of Butte, Montana.
Attorneys for ‘Appellant Raymond J. Mac- *
Donald, as ‘Trustee.
F.G. DORETY;,
St. Paul, Minnesota, :
WEIR, CLIFT & BENNETT,,
Helena, Montana. 7”. °
Attorneys. for Appellant Great Northern
: Railway Company. foe 2
JOHN B..TANBIL,.°)/) 5. 4! { +
“United States Attorney, c yee, Ne -"
ROY F. ALLEN, eager ete et
Assistant: United States Attorney,
Billings, Montana.
and
AUBREY LAWRENCE, -
Special Assistant to the. Siete General,
‘Washington, D. C.
Attorneys for ‘Appellee, United States of
America: fi")
“Page numbering appearing at foot of page of original certifies!
_ . Transcript of Record. . ; 7. “i
Fs
«
2G. " Reinmond 5 Mesbouaid va:
In the Nistriet Court’ of the United--States in and
for’ the District of Montana. XY
2 No. 32. ae
Civil. De ew EN
“U NITED STATES OF AMERICA, a
eo
\ =) a ;
“GREAT | NORTHERN RAILW AY COMPANY, a
| corporation, | :
; Defendant. o
ae RAYMOND J. MacDONALD,
~ ‘as Trustee of an Express Trust for Others, *
5 Intervener,
"Be it remembered, that on Mareh 23, 1939) the
plainiiff filed its ¢omplaint herein, which is in the
_ words and. figures following, towit: [2] }
_ District Court of the United States
_ For the District of Montana
Great Falls Division.
No. 32 Civil .
UNITED STATES OF AMERICA,
‘ ean - Phrag
oe 44 ei 4
GREAT NORTHERN RAILWAY COMPANY, a
corporation, pre fe:
Defendant.
¥ “United States of America Stes waa
COMPLAINT : P.
N ow comes the above-nained plaintiff, the United:
. States of America, and files this its complaint by
its undersignéd solicitor, the. duly appointed, quali-
fied and acting United States Attorney -in and for
the District of Montana. This suit. is. brought,
filed and prosecuted by the special direétion of :
the Attorney General of the United | States and at .
tle request’ of the Secretary, of the Interior of the
\ United States and in its own behalf, and for cause — ,
- :- @
ef action alleges: —
peers Tey I. ae
That the defendant is aerailway corporation,—or-
ganized under the laws of the State of Minnesota
for the purpose ef ‘operating and maintaining .a
railway and’ businesses incident thereto, ‘and that
the said Great Northern Railw ay Company has been
‘at‘all the times herein involved. operating and main-
taining a railway, engaged i in part in the transpor- °
tation of goods in interstate commerce.
. IL.
a hat jurisdiction is, vested in this Court under i
- Revised Statutes, Sections 563, and 629, and amend- © '
‘ments thereto, now being’ Section’ 41, Title 28,
~~ United States Code. [3]
= IIt..
That under the Act of March 3, 1875 (18 Stat.
482), the St. Paul, Minneapolis and Manitoba Rail-
‘way Company, a-railroad corporation, was granted
—-
*
: ©
Sx Raymond J. MacDonald vs.
a ‘right of way through the public lands of the
United States. That on the eleventh day of October, ©
@907, the St. Paul, Minneapolis and Manitoba Rail-
. way Company conveyed to the Great Northern
Railway all its rights of property, including ‘*vari-
ous lands granted to it by the United States of —
: America and by the State of Minnesota to aid in
- the construction of a railroad, hereinbefore descyrib-
ed,”’ ete. That the said Great Northern 0 a
. Company is now operating and-maintaining a rail-
read on the right of way over publie lands granted
to the St. Paul, Minneapolis and Manitoba Railway
Company under the Act of March 3, -1875.
5, Sal |
That a portion, of said right of way, so granted
ond now in use by the* Great: Northern Railway
Company intoperating and maintaining a railroad,
crosses Sections 7, 16, 17 and 18 in Township -33
North, Range 5 West, and. Sections 1, 2 and ‘12 in
Tornship 33 North, Range 6 West, all in Glacier.
* County, State of Montana. © |
ar ene Ste ¥. .- aa
That- under ‘the’ Act of March 3, 1875, the St._
Paul, Minneapolis and Manitoba Railway Company
‘or its Successor, thé Great Northern Railway Com-
pany, aequired neither the’ right to use any portion
- of said right of way for the purpose of drilling for’
-and remeving subsurface oil. and minerals, ‘or any
-yight,-title or interest i or to, the vil or mineral
United States of America : 5
deposits underlying the said right of way, but that
such oil and minerals remained the property of the
United States, and subject to its control and dispo-
sition. [4] :
X .. wee
_« That the defendant, the Great Northern Railway |
Company, claims and asserts ownership to the oils:
and minerals underlying its right of way as afore-
- said and the right to take and remove the same and
_fs about to and has threatened to use portions of
the right of way, crossing the lands hereinbefore
. described; for the purpose of drilling for and re-
moving subsurface oil. —
gable
“That unless the said Great Northern Railway ~
Company, the defendant, be restrainéd and enjoined
from drilling for and removing oil underlying the ; .
surface of the right of way hereinbefore described
the United States will be deprived of its property
and the right thereto and will suffer irreparable.
injury.
; - <. what *
_ That any operation or- proceeding for, or the’
taking of any oil, gas or minetals from’ the subsur-
face of the right of way hereinabove described con-
Stitutes a violation of the terms. and provisions of
the said Act -of March 3, 1875.
ee >
- That no lease has been issued to the defendant,
the Great. Northern Railway Company under the
2
6. - . Rayrtond J.MacDonaldvs. =~
Act of May 21, 1930 (46 Stat. 373), to drill upon
or remove deposits of oil and gas under the said
right of way of the defendant, nor has any appli-
cation therefor been made. -
WHEREFORE, the plaintiff prays ‘that a per-
maient injunction be issued restraining and enjoin-
nf the Great Northern Railway Yompany from in-
any manner using the right of way granted, as here-
inbefore described, for the purpose of drilling for
and removing oil, gas and minerals underlying its
right of way except under a lease issued pursuant
to the provisions of the said Act of May 21, 1930,
and that a permanent [5] injunction issue, restrain-
ing the defendant, the Great Northern ‘Railway
Company, from drilling for or removing any oil,
gas or minerals beneath the surface of. its right of
way. crossing the lands hereinbefore described, or |
any other lands granted under the Act of March
3, 1875, and now owned or used by the said defend-
~ ant exeept under a lease issued pursuant to.the pro-
' visions of the said Act.of May 21, 1930..
JOHN B. TANSIL,
United States Attorney [6]
United States of America
* District’ of ° Montana—ss.
4
John B. Tansil, being first duly sworn, on oath
deposes. and says: oa
That he is the duly appointed, wedi and act-—
ing Attorney of the United States, in ‘and for the
District of: Montana, and as such, makes this veri- ~
_ United States of America Hh
fication to the foregoing Complaint; that he has
‘read the said Complaint. and knows the contents
thereof, and that the saine is true to thé best of his
know ledge, information and betief.
JOHN 8B. TANSIL,
Subscribed and sworn to before me this 21st daty
of March, 1939. ae
(Notarial Seal) ‘ROY F. ALLAN,
Notary Public in and for the District of Montana,
residing at Billings, Montana.
_ My commission expires June 29, 1941.
[Endorsed]: Filed March 23, 1939. [7]
Thereafter, on April 18, 1939, Answer ‘of Great
Northern Railway, Company, Defendant, was duly
filed herein in the wwords and figures following, ta-
wit: [8]
[Title of District Court and ees
. ANSWER
ut comes. the defendant above named. and an-
swers the,-complaint of the plaintiff herein as
’ follows: Ls ; '
Defendant admits the allegations i in valieiiia I,
II, bana IV, VI and IX of said = er ;
| a Il. ; :
Defendant denies paragraph V of said complaint |
and each and every allegation therein contained.
Fa]
, ° tended action.
‘.
“severe loss if restrained or enjoined from so doing.
~8* °° -Raymond. J. MacDonald vs.
ITT.
Answering paragraph VIT of said complaint, de-
fendant admits that unless it is restrained there-
from, it will proceed to drill for and remove the oil
underlying the surface of the right of way deseribed
in faid complaint, but denies that said oil, or any
part thereof, is the property of the United States,
and denies that the United States will be deprived
of any property or that it will suffer any irrepara-
. ble or other injury as a result of defendant’s in-
ae EY; .
Defendant deniés paragraph VIII of said Com-
plaint, and each and every allegation therein con-:
tained. [9] ae , he
Vi
Further answering said complaint, arid as an af
firmative defense thereto, defendant, alléges ‘that
: there is oil underlyi ing said right of way of a charac-
ter and, quantity suitable for use as fuel upon de-
ferdant’s locomotives operated upen its interstate
railroad. which passes over said right of way,.and
that. it is economically practicable and desirable for
defendant to remove said oil and use the same upon
its said locomotives, and that defendant will suffer
See oo. ¢
Defendant further alleges that said oil has a com-
mercial valué substantially in excess of the cost of
producing the same, and .that. if defendant is per-
miited to remove ‘said oil, it_can sell the same coni- |
©
U nited States of America. 9
mercially for lafRe amounts of money which would
be of great value and assistance to defendant in the -
operation of its‘railroad.
VIi.
Defendant: further alleges that the said oil con-
tains volatile portions which can be removed by re-
finement and used for gasoline and other similar
products, leaving a residue which is suitable for
‘locomotive fuel, and that the greatest net proceeds
and best economic results can be obtained from said
oil by refining the-same and by disposing of the
‘more volatile portions commercially and using the.
_ residue as fuel oil. [10]
> Bee
Unless restrained by this Court, dsicnedinit, in- *
tends to and will drill three separate wells upon said
right of way, The oil produced from well number
one will be sold commercially and the proceeds used,
tin the operation of defendant’s rajlroad. The oil _
produced from well number two will be refined/the
more volatile portions being sold commercially and .
the residue being used as fuel oil upon defendant’s -
locomotives. The oil produced from well number —
three will be used in its entirety as fue! oil upon,
defendant’s locomotives. .
™ -
a
Vee, , : e -
10 - Reymond: J. MacDonald vs.
Wherefore, defendant prays that the complaint
herein be’ di$missed.
T. B. WEIR’ 3
Attorney for Defendant, |
| : ae Helena, Montana: or
F. G. DORETY,
~* St. Paul, Minnesota ~
WEIR, CLIFT & BENNETT,
H elena, Montana.
Of counsel. 3
( Affidavit of Service attachéd to Answer omitted)
[Endorsed] Filed April 18, 1939. [11]
Thereafter, on June 2, 1939, Motion and Notice
of Motion for Judgment on the Pleadings was duly
filed herein, which is in the words and ‘igcuigscee fol-
Jowing, towit: [12]
[Title of District Court and Cause. ]
NUTICE OF MOTION
The plaintiff moves the Court for judgment i in its.
favor upon all the pleadings and upon all issues in
the action. Said motion will be based upon the plead-
ings and upon the records and files in said action,
JOHN B. TANSIL |
United States Attorney
Billings, Montana ~~
United States of America ae
To: F. G. Dorety. . |
Attorney for Defendant’
St. Paul, Minnesota eis
Please ‘take notice, ‘that the undersigned will
bring the above motion on for hearing before this
Court at Courtroom... ., on the 20th day of..
-» June, 1939, at 10 o’clock in the forenoon of that-day .
; or as soon thereafter as counsel can be heard.
JOHN.B. TANSIL
United States Attorney
Billings, Montana “
(Affiday it of. Service attached to Notice of Motion |
omitted)
[Endorsed] Filed sia 2, 1939, [13]
rr
. Thereafter, on June 29, 1939, Notice of Motion
ey" Leave to Intervene was duly filed herein by Ray-
ond J. MacDonald, as Trustee of an express trust
_.. for. others, which is in the words and figures fol-
~ lowing, towit: [14] | Si :
In the District Court of the United States .
' _. for the District of Montana
Great Falls Division
ye No. 32 Civil
UNITED STATES OF AMERICA, : ,
y Plaintiff, ae
Vv.
,
GREAT [NORTHERN RAILWAY COMPANY,
a corporation,
Tr Diitensiant.
4
.* 12 ‘Raymond J. MacDonald vs.
-s RAYMOND J. MacDONALD,: as ‘Trustee of an
_ Express Trust tor Others, : :
Intervener.
J
NOTICE OF MOTION FOR’ LEAVE TO.
- INTERVENE See
“To: The United States of America, Plaintiff, and
Great Northern Railway Company, Defendant,
and all persons interested in the above entitled
cause. ° 3
You, and each of you, will_please take notice that
on Thursday, June 22nd, 1939, at 10: 00 o'clock
A. M., in the-Court Room of the above entitled
‘Court in the Federal Building at Billings, Montana,,
the undersigned, Raymond: J. MacDonald, as Trus-
tee of an express trust for others, through his under- °
signed solicitors, will move the-above ntitled Court
- for leave to file a Petition in Interv tion in the
"above entitled cause. \
A ‘copy of said Petition for Leave to Interv ene
and of the proposéd Complaint in Intervention of
Ray mond J. MacDonald, as such ‘Trustee, is\serv ed
‘upon you, herewith. _
re ' -W.H. HOOVER \
L,.V. KETTER. ghee NN
_J.E. CORETTE, JR.
Solicitors for Intervener. \.
- [Bhiorsea: ‘Filed yuu 59, 1939. [15]
me - - United States of America | ‘13
Thereafter, on June 22, 1939, a Motion and Peti-
_tion for Leave to Intervene was filed by Raymond
| J. MacDonald, as Trustee of an-Express Trust for
Others, which is in the words and figures as follows,
towit: [16] —— rales ———-— |
[Title of District Court and. Cause.].
MOTION AND PETITION FOR LEAVE TO
* INTERVENE
Comes Now, ‘Sire J. MacDonald, as Trustee
of an Express Trust for Others, ‘hereinafter some- :
‘times referred to.as the “Petitioner” , and moves. ;
and petitions the above entitled Court for leave and
permission to intervene: in the above entitled. action
upon the following grounds: ao
I. |
That jurisdiction is vested in this Court under
Revised Statutes, Sections, 563, and 629, and amend-
“ments thereto, now being Section 41, Title 28,
United States Code Annotated. :
er mae
- Petitioner’s claim, as hereinafter stated, is _in
agreement with Plaintiff’s claim-jnd contention to
the extent that Plaintiff prays that a permanent in-.
junction be issued restraining and enjoining the .
Great Northern Railway Company from in any way
) using the right of wdy ‘which was granted to it by
the Act of March 3rd, 1875, for the purpose of drill-
3 ing for and removing oil, _zas and: minerals under-
‘lying this right of way,and [17] that a permanent
“14, ; Raymond J. MacDonald vs vs.
injunction issue restraining ‘the. Defendant, the. -
‘ Great Northern Railway Company, from drilling
for or remov ing any oil} gas or minerals beneath the
surface of its right of way crossing any, part of the
‘SW1, of Section 17,. ‘Township 33 North, Range 5_
West, Glaeier County, Montana, which is a part of
fhe land described ‘in Plaintiff’s Complaint in the
' - above entitled action, but \Petitioner’s claim is ad-
verse. to Plaintiff’s contentién and claim as to the
_ present ownership of the minerals located under-
“ neath the right of way .of the Defendant, Great
Northern Railway Company, where. that sigh of
" way crosses the NE1% of the. ‘said SW, of said.
Section 17, Township 33 North, Range- 5 West,
M.M. Glacier County, Montana. Petitioner's claim
is elias to the claim: of the Defendant, Great
' Northern Railway Gompany, in that said Defendant
and Pétitioner each claim title to the oil, gas and
minerals underneath the: said right of way of: the —
Defendant across the N EYASW of said Sec-
: tion 17. : eA hy. :
ITT. | Ra:
That by a declaration of trust in writing, dated
September 18th, 1934, and executed by him, the
above named intervener stated and declared that he
holds the SW1, of Section 17, Township 33 North,
Range 5 West, M. M., Glacier County, Montana, to-
> gether with 614% handgwrness’ royalty of all the oil,
gas and other minera]s beneath the surface of said
premises, .in trust for various and numerous named ,
persons and corporations. therein, and: that all
\
‘United States of America - 15
moneys received: by ‘him as royalty: payments, or
otherwise, for and. on account of said lands and.
&
royalty interest so held by Mim:in trust, are to be
. paid to the: various and ‘numerous ‘persons’ men-.
. tioned therein as: beneficiaries . of said trust, after:
the deduction of reasonable and necessary expenses
of the ‘administration of said trust. That said
declaration of ‘trust has not been cancelled or ‘ter-
minated, and’it is still in [18] full force and effect,
and the said intervener, as such trustee, at afl times -
since the date of said declaration of trust, has‘ held,
and does yet hold, the aforesaid land, and the said
royalty interest, as .such trustee.
IV.
nee
That on or about July 11th, 1910, one: Lemuel J. |
" Hawkins made homestead entry under the Act of
May 20th, 1862, of the Congress of the United
States, and Amendments thereto, on the whole of
the Swy, of Section «17, Township. 33 North,
Range 5 West, M. M.,:now in Glacier County, Mon-
tana, and that thereafter a patent to the whole of
said SWY, of said Séction 17 was duly issued and
delivered by the United States of America to the
said Lemuel J. Hawkins, which patent is dated
January 23rd, 1914. That intervener is the succes- .
sor in interest of the said Lemuel J. Hawkins, the
patentee to said SW1, of said Section 17, except to
‘a 614% royalty of the oil, gas and other minerals -
beneath the surfate of said descriked premises.
“16 Raymond J. MacDonald vs.
oo: re . Vv. ‘ - 'e a2
That by virtue of said patent, the whole of the 160
_ aeres. within the exterior boundary lines of the said .
SW, of said Section’ 17 was granted to the said -
patentee, Lemuel J. Hawkins, subject to the right '
-of way of the Defendant, Great Northern Railway -
Company, over the said NE of-said SW14 of said
Section 17. That said patent did not contain any E
except®n or reservation of the oil, gas: or other
minerals in or under the said SW !4-of Section 7,
or any part thereof. , | : . e
3 WA
“The Plaintiff and Defendant each claim title: to. *
the minerals underlying the right. of" way of the De-.
_ fendant over the: NE of the said ‘SW VY, of said
Section 17, which right of way was ‘granted by the
Act of March 3rd, 1875, as alleged’ in the Complaint.
Intervener alleges that neither Plaintiff nor the
[19] Defendant is er can be the owner of such oil, '
- gas and other minerals underlying the right of way
- of che Defendant over the: NE14 of the said SW
of ‘said Section 17, and that such oil, gas and other
minerals are owned by the intervener herein as the~
- guecessor in interest’ of Lemuel J. Hawkins, the
_ patentee of said SW! of said Section M%. ras 8
| Vil.
The interest of this’ Intervener ‘will not bb fully
and adequately presented to the above entitled Court
in the above entitled cause by the Plaintiff, and: the~ ;
Def endant therein, and this intervener is'so situated
United States of America === WT
| as to, be adversely affected by a-decision of the abave
_ entitled cause, if such - a. decision were drtived at
‘without the complete. and adequate presentation of
the interests of this intervéner and without the con-
sideration by the Court of those interests. |
Vit. ,
The etait of the intervener’ involves questions ‘of.
law. which’ are the same as the questions of law in---
volved iif the above entitled cause between the Plain-
tiff and Defendant therein,’ and the intervener’s
claim and the\ above entitled action between the
Plaintiff and the Defendant: have questions of law .
in common. The Intervener is entitled to intervene
under the provisions of Rule 24, subsections a and b,
of the Rules of Civil Practice for ‘the District
. Courts of the United. States,
“IX, i
The question of law involved in the above en-
titled action is whether, under: the Railroad Land .
Grant Right of Way Act of March 3rd, 1875, and
acts supplemental theréto and amendatory acer |
title to the minerals underlying — of Way so ret
5 granted are vested:
“1st. Inthe United States, the Plaintiff
_ herein, or [20] | ie
a | “Tn the ee herein, the Great
- Northern Railw mpany, or .
.. 8rd: In this Petitioner, as’ the successor in
interest of I patentee of a subdivision over
which the right of way passes. — \ ;
18 Raymond J. MacDonald vs.
These questions. ought: not ‘to -be determined by a
consideration only of the asserted rights of the
Plaintiff and Defendant herein, but should be de-
termined after a consideration of the rights of this :
intervener and other patentees or their successors in
interest who have simildir rights to those of this
Petitioner, and Petitioner believes that the Plain- -
tiff and the Defendant herein havé no reason to-:
’ stress and, will not stress the rights of this Peti-—
tioner or of parties” similarly situated, and that a °
full and complete judicial and equitable disposition
of the pending .case. cannot be made without con-
sideration by this Court of the rights of this Peti-
tioner and othe: persons having similar rights’ to
‘this Petitioner. ,
. x
The title of the United States to the inline
underlying the right of way of the reat Northern
Railway Company, where that right. of way crosses
“over the said SW14 of said Section 17, ‘was extin-
guished by the subsequent Act of the United States
in granting, issuing and delivering the -patent to
Lemuel J. Hawkins, covering the whole of said
SW'4 of said Section 17, as hereinbefore set. forth.
8
, a es
That denial of intervention’ would constitute
denial of relief to which this Petitioner is entitled,
in that this Petitioner:s rights might be lost or sub-
stantially affected, if intervention is not allowed by
this Court and if the rights of this Petitioner and
— pa F SEN gee riet mt
- of ra
United States of America ree 19 .
of other parvies_having similar rights are not fully
and completely resented to the Court in the above
: "entitled cause. [21] . le
‘3 XII.
Petitioner avers that his interest in the litigation
is substantial and that his attempted infervention
is made in good faith and in subordination to and
-in recognition of the main proceeding and expressly
recognizes the jurisdiction of this Court therein,
and-alleges further that, no remedy other than the -
intervention proposed herein is available for pro-
_ tection of Intervener’s rights to minerals underly-
"ing said railway right of way for the reason that
the Plaintiff claims said minerals, and your Peti-
: tioner. is without statutory authority to litigate or
quiet his title against Plaintiff in an independent
suit sae caall for that purpose.
| | XIII. |
Petitioner avers that intervention ‘will not unduly
‘delay or prejudice the adjudication of the rights
of the original parttes hereto.
arv.,
Petitioner. avers that, in the interest of justice -
and equity and to secure a complete adjudication of
__ the title to minerals underlying its grant under the _
Act of March 3rd, 1875, Defendant, the Great North-
ern Railway Company, interposes no objection to
the granting by this Court of Petitioner’s interven-
tion, *
Go
———
20 ~ Raymond J. MacDonald vs.
Wherefore, Petitioner prays that this Motion .
and Petition for Leave and Permission to Intervene
in the above entitled action be granted and that this
Petitioner's Complaint in Intervention, which is
attached hereto,. and Intervener’ gs Answer to Plain-
tiff’s Complaint, which is attached hereto, each be
ordered filed in the above entitled cause, and that
the Defendant, Great Northern Railway Company,
be required to ansyey this Petitioner’s said Com-
plaint in inervenngh2= a
Respee
y submitted, —
-W. H. HOOVER
L: V. KETTER -
J. E.. CORETTE, JR.
Attorneys for Petitioner
[Endorsed]: Filed June 22, 1939. [23]
9
Thereafter, on June 22, 1939, Intervener’s Com-
plaint- in Intervention was filed herein, which is
'-in the words and figures following, towit: [24]
_ [vitle of ‘District Court and Causé.] :
I NTERVENER ‘S COMPLAINT IN
INTERVENTION
—CGomes Now the ‘above named. Intervener and,
by leave of court first had and obtained, for his
cause of action against the above named defendant,
compli lins and SAVS:
is
*
United States of America: _ 21
That the gr rounds upon which ‘the jnrisdietion of
-this- court depends are: eae
(1) That the court already his jurisdiction, the
action-in which this intervention is made; having
been brought by the United States of America. |
(2) That the matter in controversy exceeds, ex-
clusive of interest and costs, the sum or value of
$3000.00, and arises under the laws of the United
‘States and between citizens of* different states.”
= Il.
That by a declaration of trust in writing dated
September 18, 1934, and executed by him, the above |
named intervener stated and declared that he holds —
[25]
the SW14 of Section 17, ownskin 33 North, Rang»
5 West, M.M., Glacier County, Montana; tovcther
with 614% landowners royalty .of all the oil, gas,
and other minerals beneath the surface of said
premises, in trust for ‘various and numerous named
persons and corporations therein, and that’ all
monies received by him as royalty payments,. or
otherwise, for and on account of ‘said lands and
royalty interest so held by. him in trust, are to be -
paid to the various and numerous persons men-
tioned therein as beneficiaries of said trust, after
the deduction of zeasonable and neeessery expenses
of the administration of said trust. That said deela-
ration of trust has not been cancelled or terminated,
and it is still in full foree and effect, and the said
intervener,. as such trustee, at all times since the’
22 Raymond J. MacDonald vs. °.
&»
date of said declaration of trust,.was held, and
- does yet hold, the aforesaid land, and the said roy-
alty interest, as such trustee.
IIT.
That this intervener is a citizen of the State of
Montana.
: | oe =
That the above named defendant is a corporation
‘ organized and existing underamd by virtue of the
laws of the State of Minmesota, with its principal
office and place of business at St. Paul, Minnesota.
F
That under and pursuant to the provisions of the
‘ wet of March 3, 1875 of the Congress of the United
States (18 Revised Stats. 482; Title 43, Sections
934-939, hoth inclusive, of the United States Code —
Annotated), the St. Paul, Minneapolis, and Mani-
- . toba Railway Company, a railway corporation, -
predecessor in interest of the above named defend-
‘ant, Great Northern Railway Company, having
theretofore filed with the Secretary of the Interior
a copy of its Articles of Incorporation, and due
proofs of its organization [26] under the same, did
on or about the 23rd day of January, 1891 file
with the Register of the Land Office at Helena, Mon-
tant, in the District where the land! was located, a
profile of a certain section of twenty )miles of its
railroad as it was theretofore located across public
lands in said district.
United States of America. . 2
RIS HE oe
That said railroad as. so located and indicated on
said profile crossed the Northeast Quarter of the
Southwest Quarter (NEYSW4) ‘ef Section 17,
Township 33 North, Range 5 West, M.M,, now in’
Glacier County, Montana, and other public lands.
VITI..
That the construction of said section of railroad
Ww as completed, and the same is now a -part of the
main line of railroad maintained and operated by —
the above named defendant from St. Paul, Minne-
- sota, to. the Pacifie Coast.
| VIII. *
That by virtue’ of the aforesaid act of Congress
and compliance therewith by ‘the said predecessor
_ of the above named defendant, a right of way 100
feet wide on each side of the central line of said
railroad as it passed over the public lands. herein- —
hefore described, was granted to said railway com-
pany, and the above described lands were by said act
‘required to be thereafter 7s any of repel to such
right of way.
. . x: .°
| That thereafter, to-wit, on or spite ho ai day
of October, 1907, the said predecessor in interest:
of the above named defendant, transferred and con-
veyed to the said defendant all its property, inelud-
dvr the said right of way over the lands hereinabove
described, and the said defendant, ever since said
r
ys ° ——”
ieee
A oth
ek
24 _ Raymond J. MacDonald vs.
date, has maintained and operated its main line of
railroad upon its said right of way as it passes over »
the [27] above described land.
oOo 7 e
> .
r a ¢
; X.
That after the filing’ of said profile, and after the
construction of said section of railroad, to-wit, on
or about July 11, 1910, one Lemuel J. Hawkins
made homestead entry ‘under the act of May .20,
1362 of the Congress of the United States, and
amendments thereof, on the whole of the SW¥ of-
Section 17, ‘Township 33 North, Range 5 West,:
M.M., now in Glacier County, Montana, which in- -
cluded the Northeast Quarter {NE'%4) of said quar-
fer section over which the said right: of way of the
~ defendant, passes.
a . XI.
That thereafter, a patent to the whole of the said
SW'!4 of said Section 17, Towhship 33 North, Range
5 West; M. M., was: duly issued and delivered by
the United States of America,to the said entryman,
which. patent is dated January 23,. 1914, and a copy
of which is hereto attached and marked Exhibit
“A”, to which reference is hereby made.
‘That by virtue of. said patent, the whole of the |
160 acres within the exterior boundary lines of the ~
‘uforesaid quarter section, was granted to the
_patentée subject to said right of way over the
' United
United States of America
said. Northeast Quarter - (NEM) of said q es be
section of, said patented laid. te’
XIII.
That said potent did not contain. any him sa |
, patented ie’ or any part ie
and all the/oil, gas, and other minerals therein and
thereundey were, (by said ‘patent, grarited by the
ates of America to the said patentee, as
a part of said lands; and the said patentee thereby
became /the owner of, and entitled to the possession-
of, said oil, gas and other minerals. [28]
XIV.
That thereafter, and while he was still the ow ner
of the aforesaid Jands and the oil, gas, and other
minerals therein contained, the said patentee die’;
and such proceedings were had in the District Court
of the Ninth Judicial District of the State of Mon-
~ tana, in and for the County of Glacier, i in the matter
of the estate of Lemuel J. Hawkins, deceased, then
ang therein said eouré pending, that a Decree of
| Distribution was duly, and regularly.made by said
court in said matter on the 26th day of January,
1931, by which the above described quarter section
of. land was distributed to Clissie A. Hawkins, ©
widow of the said Lemuel J.. Hawkins, deceased.
Thatfa certified copy of said Decree of. Distribution
was duly recorded in the office of the, County Clerk
' and Recorder of Glacier Connty, Montana, in, Book
#1 of Orders and Decrees at page 85.
s
26 _ “ Raymond J. MacDonald vs.
ay aie Ge hee oe
That thereafter, and while she was still the owner
of said quarter section of land, the said Clissie A.
_ Hawkins made, executed and delivered to Louis B.
O'Neill an oil and gas lease covering the whole of
said quarter section, and which, by mesne ‘assign--
ments, has been transferred and is now owned and
held by ‘Glacier Production Company, a coppora-
_ tion. That said oil and gas lease is dated October 15,
. 1931 and was recorded in the office of- the County
Clerk and: Recorder of Glacier County, Montana,
on June 9, 1932, in Book 3 of Oil and Gas Leases at
page 509.
| eee | ;
That under and by virtue of the terms of said
_ oil and gas leasé; the said land was leasedfér oil
and gas _— Lee. for a period ¢ of ten (10)
or gas is lied a from the land by. the lessee or his
assigns, and the lessor reserved a royalty [29]
| of Uth of the oil produced and saved from said
*~Jand, and-a royalty'of the market price at the well.
of 1th the gas produced-and sold or used off said -
land or in the manufacfure of: gas ipe. :
“i | oe.
> 45: 'f ae |
That the said oil-and gas lease is 8 ‘still in force
and effect: :
XVITI.
That thereafter, by a deed dated May 3ist, 1934,
and recorded June 4,” 1934, in Book 10 of: Deeds
“e
UO nited States of America 27
>
<3
at page 267 in the office of the County Clerk ion
‘Recorder of Glacier\ County, Montana, the said
Clissie A. Hawkins, who was still then and’ there
- the owner of said quarter section Of land, subject
to said oil and gas lease , eonveyea the same and
the whole thereof, to Raymond J. MacDonald,
_ Prustee, and intervéner herein} subject to said oil
‘and gas lease, but excepting ant reserving 614%
royalty of the oil, gas and all minerals beneath the
surface. of. said described premises. s
| XIX. © \
. «
\
That the intervener: now, and at all times since .
- the said conveyance to him, owns the said land, as
_ trustee under the declaration of trust aforesaid) and
all the wil, gas, and other minerals therein, except a
‘644%- royalty, as reserved in said deed by -~
’ grantor therein.
XX.
‘That the above. named defendant has no_right,
title, or, interest to or in the oil, gas, and other
minerals under or beneath the surface of the part -
of the said NE14SW.\4 of said Section 17, Town-
' ship 33 North, Range 5 West, M.M., Glacier County,
; Montana, that is within the 200 foot limits of said
right of way. [30] a
_ XXI.
That the sum or value of the last mentioned oil,
‘gas, or other minerals exceeds the sum’ of $3000.00.
: po
28 . Raymond J. MacDonald vs. -
| ~. 2 SE |
That the oil and gas, and. other minerals, or either
of them, beneath,the surface of the land within said
right of way limits are not a part of defendant’s
said right of way, and that the same can be with-
‘drawn. or extracted therefrom, by wells drilled on ©
intervener’s said quarter section, but -off of said
right ef way, without injury to said right of way,
and without interfering with the use thereof by
the defendant for a ane ae of way.
| XXHT
That the defendant, ‘Great Northern Railway =
Company, elaims.to be the owner of the oil and
_ —! gas under or beneath the surface of the part of the
said NE144SW14 of Section 17; Township 33 North,
Range 5 West, M.M., that is within the 200 foot |
limits of said right-of: way, and threatens to and _
will, unless restrained by this court, drill wells
thereon and take, extract, remove and appropriate
‘the same to its own use, and threatens so to do, and
‘will deprive this intervener of the same and the
reyalties to which he is entitled under the oil and
gas lease aforesaid, and of his reyersionary right
in and to said oil and gas, if such lease should be- Yo
come forfeited. /or cancelled, all to his: irreparable
; damage and injury.
XXIV.
That intervener -has no plain, speedy, or ade-—
quate remedy. in the ordinary course of the law.
yore
| hes United States of America -—29
" Wherefore, intervener prays that the defendant,
Great Northern Railway Company, be required to °
‘answer this complaint in intervention; that a per-
ra manent injunction be issued, restraining and en- ~
a joining it from, in any manner, drilling for [31]
~ oil, gas, or other minerals on its right of way as it~
crosses the lands hereinbefore described, and from:
- extracting, removing, and appropriating to its own
use the said oil, gas, and other minerals} and that
* +. the intervener have:and recover of the said defend-
‘ant its costs and disbursements herein incurred. °
ee J W. H. HOOVER
L. V. KETTER
J. E. CORETTE, JR.
Attorneys for Intétvener [32] |
“EXHIBIT A” ,
35.47.
Transcribed from Teton County. osords: Patent
_ Record 6-G page 124 compared.
_ Great: Falls 013718 |
The United States: of America,
“To All to Whom These Presents Shall Come, Greet-
ings:
Whereas, A Certificate of the Register’,of’ the
Land Offiée at Gireat Falls, Montana has been de-
_ posited in the General Land Office, whereby it ap-
" pears that, pursuant to the Aet of Congress of May
20, 1862, **T'o Secure’ Homesteads to Actual Settler
‘on the Public Domain’? and the acts supplemental
a
oi
30 | ensiisai J. MacDonald v8.
thereto, the claim of Lemuel J. Hawkins has been
established and duly consummated, in conformity “
to law, for the southwest quarter of Section seven-
teen in Township thirty-three north of Range five
west of the Montana Meridian, Montana, containing
ee hundred sixty acres, according to the Official
Plat of the Survey of the said Land, returned: to
the General Land Office of the Surveyor-General ; :
Now Know Ye, That there is, therefore, granted
by the, United States unto the said claimant the
- tract of land above described ; To Have and To Hold
the said tract of Jand, with. the appurcenanices
thereof, unto the said claimant and to the heirs and -
assigns of the said claimant forever; subject to any
vested and accrued water rights for.mining, agri--
cultural, manufacturing, or other’ purposes, and .
-rights to ditches and reservoirs used in. connection
_ With ‘sueh water rights, as may be recognized and
acknowledged by the local‘customs, laws, and deci-
sions of courts ; and there is':reserved from the
lands hereby granted, a right of way thereon for.
"ditches or canals constructed by the authority of the
United States. 3
In Testimony - ‘Whereof, x 4 Woodrow ’ Wilson
President -of. the United. States of America,- have
- caused thése Letters to be made Patent, and the
Seal of the General Land Office to’ be hereunto
affixed. Given.under my hand, at. the City of Wash-
ington, the Twenty-third day of January in the
year of our Lord one thousand nine hundred and.
“
b\
\ ‘United States of Ainerica ee
fourteen and of the Independence “of the United
\ States the one hundred :and thirty-cighth.
By -the President,; :
| WOODROW WILSON
By M. P. LEROY,
’ . Seeretary. [33]
[Genera Land Office Seal] | | L. Q. C. LAMAR
Recorder of the General Land OBlee
Recorded: Patent Number 379868
Filed for record Feb. 1 A. D_1918 at 9 i) Seles
AM. (No. 69161) |
E..C. GARRETT, .
) _* County Recorder. |
| ce... sea Deputy
ined McS. :
tate of onan eset \
| ‘y, I Lie Anderson, ‘polite Clerk and Ex-Officio
Recorder in and for said County of Glacier, State
of Montana, do hereby certify that the above.and
foregoing is: a full, true and correct copy and.the
«
"office on the Ist day of February A.D. 1918 at 9:00 |
o’clock A. M., and now remaining therein as Doct-
' # ment No. 69164. sty
_ In Witness Whereof, I have hereunto ait my
hand and affixed my Official Seal at Cut Bank,
~
v
whole thereof,"of an original patent filed in my |
* %
32 Raymond J. MacDonald vs.
~ Montana, this 3rd day of June A.D. 1939.
[Seal] 0 alg LEE ANDERSON;
a8 | ~ County Recorder .
ied FLORENCE WALFORD,
Deputy —
[Endorsed]: Filed June 22, 1939. [34]
“Thereafter, on June 22, 1939, Intervener’s Answer
to Plaintiff’s Complaint was daly filed herein, which
is in the words and figures following, towit: [35]
[Title of District Court and Cause.]
“}NTERVENER’S ANSWER TO PLAINTIFF'S
COMPLAINT
Comes Now the above named Intervener and, by
leave of Court first had and. obtained, for his
answer to the Complaint of the above named Plain-
+ tiff in theabove entitled action, answers and says:
}
\ ‘ '
That by a Declaration of Trust, in writing, dated |
September 18th, 1934, and executed by him, the G
above named Intervener stated and declared that
he holds the SW14 of Section 17, Township 33-——
North, Range 5 West, M.M., Glacier County, Mon- *
tana, together with 614% landowner’s royalty of.
all the oil, gas and other minerals beneath the s
. face of. said premises, in trust for various nd .
numerous named persons and corporations therein,
and that all moneys received by him as_royaltt
“ar : : . 3 , *
. . United States of America - 7 3
payments, or otherwise, for and on account of said
lands and royalty interest so held by him in trust,
are to be paid-to the various and numerous persons
mentioned therein. as’ beneficiaries of said trust,
after the deduction of reasonable and necessary
expenses [36] of the administration of said Trust.
_ That said Declaration of Trust has not been can-
celled or terminated, and it is still in full force and
effect, and the ‘said Intervener, as such Trustee, at
all times since the date of said Declaration of Trust,
has held, and does yet hold, the aforesaid land, and —
the said royalty interest; as suéh Trustee.
| ; II.
~ “That the NEW of said SWI of Section 17,
Township 33 North, Range 5 West, M.M., Glacier
County, Montana, is a part of the lands over which
it is alleged in Plaintiff’s Complaint that the right
of way of, the Defendant, Great North¢rn Railway
Company, passes and which it is alleged thereiri was © -
granted to its predecessor in interest under the Act
of Congress of March 3rd, 1875, (18 Revised Stats.
482; Title 43, Sections 934-939, both inclusive, of the
by Y. S. C. A.).
— ee —_
hat the Intervener admits the allegations of
paragraphs I, II, III, IV, V, VI, VIII, and
IX of said Complaint.
<e 7S IV.
Answering Paragraph VIE of said Complaint,
the Intervener denies that the oil underlying the
-
34 | Raymond J. MacDonald vs.
surface of the right of way as it crosses the above if |
described Iands owned by this Intervener,’ is the
property of the Plaintiff, that~it. has any right
thereto, or will suffer irreparable injury if the —
Defendant railroad company is not restrained or
enjoined from ‘dxilling for and. removing the oil
underlying the surface of said right of way as it
crosses the property ‘of the Intervener above
deseribed. - See,
Fyrther Answering Said Complaint, and as an
affirmative and separate defense thereto, the Inte: -
vener alleges:
bees
That by a Declaration of Trust, in Writing, dated
September 18th, 1934, and executed by ‘him, the -
above named In- [37] tervener stated and declared
that he holds the said Southwest Quarter (SW14)
of Section 17, Township.33 North, Range 5 West,
M. M., Glacier County, Montana, together with
614% landowner’s royalty of all the oil, gas, and
_other minerals beneath the surface of said premises,
in trust for various.and numerous persons and cor- -
porations named therein, and that all moneys. re-
ceived by him as royalty payments or otherwise for
and on account of said lands and royalty’ interest so
“held-by-him in trust are to be paid to the various
and numerous persons, named ‘therein, as .bene-—
ficiaries of said Trust, after the deduction of rea-
sonable and necessary expenses of the administra-
tion of said Trust. That said Declaration of Trust
\
United States of America 35
has not béen cangelled or terminated, is-still in full
- force and effect, and the said: Intervener, as such
Trustee, has at all times since the date of said
Declaration of Trust held,:and does yet hold, the—
aforesaid land, and the said royalty interest, as such
Trustee, and as such is the owner thereof.
a=
ea Gn Mire |
_ That under and. pursuant to the provisions of the -
Act of ‘March 3rd, 1875 of the Congress of the
7 United States (18 Revised Stats. 482; Title 43, Sec- :
tions 934-939, both inclusive, of the United States’
~ Code Annotated), the St. Paul, Minneapolis, and
Manitoba Railway Company, a railroad corpora-
tion, predecessor in interest of. the above named
Defendant, Great Northern Railway Company, hav-
ing: theretofore filed with thé Secretary of the In-
terior a copy of its Articles of Incorporation, and.
due proofs of its organization under the same, did,
‘on or about the 23rd day of January, 1891, file with
. the Register of the Land Office at Helena, Montana,
in the. District where the land was located, a profile
of a certain section of twenty (20) miles of its rail-
road as it was theretofore located across public
lands in said district. [38]
3,
That said railroad, as so located and indicated on
said profile, crossed the Northeast Quarter of the
’ Southwest ‘Quarter (NE14SW14) of Section 17,
Township 33 North, Range 5 West, M. M., now in
Glacier County, Montana, and other public lands.
1:
2
36 © Raymond J. MacDonald vs.
‘ ir |
That the construction of said section of railroad
was completed, and the same is now a part. of the,
main line of railroad maintained and operated by |
‘the above named defendant from_St Paul, ‘Minne.
- sota, to the Pacific Coast... — es
That by virtue of the aforesaid Act of Congress
and compliance therewith by the said predecessor of
_ the above named Defendant, a right of way 100 feet”
wide on each side of the central line of said rail-
road’ as it passes over the public lands hereinbefore
‘deseribed, was granted to said Railway Company,
and the above described lands *ere by said Act re-
- quired to.be thereafter disposed of, subject to such
right of way.
6.
That Dheseatei: to-wit: on or about the 1ith day
of October, 1907, the said predecessor i in interest of.
the above named Defendant, transferred and con-_
veyed to the said Defendant, all its property, ii-
_ eluding the said right of way over the lands. herein-
above described, and the said Defendant, ever since
said date, has maintained and operated its main
line of ‘railroad upon its said right of way as ‘it
passes over the above described land.
é ae ee 2
That after the filing ofgsaid profile, and ufter
the construction of said section of railroad, to-wit:
&
‘
:
:
United States of Amerita E a
on or [39] about July 11th, 1910, one Lemuel J.
Hawkins made homestead entry under the Act of -
May 20th, 1862, of the Congress of the United |
__ States, and amendments thereto, on the whole of the -
SW1, of Section 17, Township 33 North, Range 5
West, M. M., row in Glacier County, Montana,
‘which soiled the Northeast Quarter’ (NE'4) of
said quarter section over which the said right of
way ‘of the Defendant passes.
: 8.
That thereafter, a patent to the whole of the said |
Swi. of said Section 17, Township 33 North,
Range 5 West,.M. M., was duty issued and delivered
by the United States of America to the said entry-
‘man, which patent is dated January 23rd, 1914, and
a copy of which is hereto attached and marked Ex-
hibit ‘‘A’’,-to which reference As hereby made.
9.
That by virtue of said patent, the mee of the -
160 acres within the exterior boundary lines. of the
'- aforesaid quarter section was granted to the pat-
entee subject to said right of way over the said
Northeast’ Quarter (NEV) of said quarter, section .
_ of said patented We ee: oF
Me...
That said abit did not “contain any exception er
reservation of the oil, gas, or other minerals in or
undér the patented lands, or any part thereof, and
all the oil, gas and other minérals thergin and there- -
under were by said patent granted by the United,
. SS, 3
38 © | Raymond J.MacDonaldvs. _
* States of America to the said patentee, asa acy of |
_ said lands, and the said patentee thereby bécame the
owner and entitled to the possession of said oil, gas.
and other minerals, and_the Plaintiff; since the is-
suance of said patent, has not had, nor has it now,
- any right, title or interest therein. [40}
| — |
That thereafter, and while he was still the owner ,
_ of the aforesaid lands and the oil, gas and other
_ minerals therein eontained, the said patentee -died,
and .such proceedings were had in the District Court
of the Ninth Judicial District of the State of Mon-
tana, in and for the County of @lacier, in the matter
of the Estate of Lemuel J. Hawkins,*Deceased, then
and there in said -court pending, that a Decree of
Distribution was duly and regularly made by said -
Court in ‘said mattér on the 26th'day of January, —
1931, by which the above described quarter section
.of land was distributed to Clissie A. “Hawkins,
widow..of the said mul J. Hawkins, Deceased.
‘. That a certified copy of said Decree of Distribution
- was duly recorded in the Office of the County Clerk
and Recorder of Glacier County; Montana, i in Book 1
of Orders and Deerees, at page 85. = => >
| pe 12:
.That thereafter, and while she was still the owner
_ of said quarter section of land, the said Clissie <A.
Hawkins made, exécuted ‘arid delivered to Louis B.
O'Neill an Oil & Gas Lease covering the whole of
said quarter section, and which, by ‘mesne assign-
a
- effect.
i]
United States of America —=—S*«|._—«O9
ments, has been transferred and is now owned and
held by Glacier Production Company, a corporation.
That said Oil & Gas Lease is dated October 15, 1931,
and was. recorded in the Office of the County Clerk
and Recorder of Glacier County, Montana, on June
9th, 1932 is, 3 of Oil & Gas: Leases, at
‘Page § 7 y. @
33.
‘That under and by virtue of the terms of said Oil
& Gas Lease, the said land was Jeased for oi! and. .
_.gas mining purposes for a period of ten (10) years
from its date and so long ‘thereafter as oil-or gas is
‘ produced from the land. by the Lessee or his ‘as-
signs, and the Lessor reserved a royalty of one-
eighth of the oil produced and saved from said land, —
and [41] a royalty of the market price at the well
~ of one-eighth of the gas produced and sold or used
off-said land or in iar eae of gasoline.
! 14. .
That the ‘said Oil « Gas Lease i is still i in. force and jee
‘meer ak & "
Phat thereafter, by a Deed dated May 31st, 1934,
- and recorded. Juiie 4th, 1934, in Book 10 of Deeds,
at page 267, in the Office of thé County Clerk &
-- Recorder of Glacier County, Montana, the said
Clissie A. Hawkins, who was still then and there the
owner of said quarter section of land, subject to
said oil and gas lease, conveyed ‘the ‘same ind the |
whole thereof, to Raymond J. MacDonald, Trustes,
40 Raymond J. MacDonald Us. -
and intervener herein, subject to’ said Oil & Gas
Lease, but excepting and reserving: 614% roy alty of
the oil, gas and other miner als. beneath the surface
- * of said deseribed premises, _ ‘9 rack
oe ‘oe | | tly
That the said intervener now, and at all times
since’ the said conveyance to him, , owns the \ said
land, as Trustee under the” Declaration of Trust
aforesaid, and all the: oil, gas, and other minerals
therein, except 614 % royalty, as ‘reserved in said-
"Deed by the Grantor therein. — ..
Wve webiste io Pe aP pea as
That lietiher the above named Plaintiff nor the
above named: Defendant has any right, title. or in-
terest to or in the oil, gas and other minerals in,
under, or beneath the surface of the part of the said.
NEM4SW1, of said Section 17, Township 33 North,
Range 5 AV est, M. M., Glacier County, -Montana.
that is within the said right of way limits.
18.
That the oil and gas, and ster minerals, or either
2] of them, beneath the surface of the land within
aid. right of way limits, are not a part of Defend-
ant’s said: right of way, and that the same canbe
withdrawn or extracted therefrom by wells drilled
on Intervener’s said quarter section, but off of. said
right of way, without injury to said right ef way,
‘and without interfering with the use thereof by the
Defendant for a railroad right of wat.
4
ma
u
United States of America a
\"Wherefore. having fully: answ ered the Plaintiff's
Complaint, the Intervener prays that the Plaintiff
take nothing by his said action ‘insofar as the claim |
to relief is based upon Plaintiff’s claim, of owner-
ship of the oil, gas and other miner als beneath the
surface of the right of way.
Ww. H. HOOVER
L. V. KETTER ©
J.-E. CORETTE, JR.
Attorneys for Intervener
[Endorsed]: Filed June 22, 1939, 43]
Thereafter, on July .24, 1939, Objection to Motion
‘for leave to intervene was filed herein by. the plain-
‘tiff, and i is in the words and figuies follow1 ing, towit :
} +]
5
[Title of District Court and Cause]
3 one ECTION TO MOTION FOR LEAVE TQ.
INTERVENE © a e~
| " Comes Now the plaintiff, the United States of —
America, and objects to the motion and petition for
leave to intervene. of Raymond J. MaeDonald, as
Trustee of an express trust for others, and objects
to ‘the jurisdietfon of the court to hear and deter-
mine the same, or to grant said motion upon the
following grounds and for the following reasons:
& xo, }
That the. intervenor is not “a party permitted
under Rule 24 of the Rules of Civil Procedure to
Mi
ia
. : Raymond J. MacDonald'vs,
\ intervene, either as a master: of right or by permis-
‘gion of court.
| Il. |
That the petition and: complaint in inlerveution
does not state a ‘cause of action.
? II, 7
That the intervenor seeks to enlarge the issues of
the action and seeks to have tried issues not made
by the pleadings .betweert the United States of
America, plaintiff, against the [45] Great Northern
~ Railw ay Company, a Corporation, defendant.
‘ . ‘
\ TV.
° That the intervenor has no > interest in \ the subject ‘
matter of this action. :
oi VA
That the intervenor seeks to secure a declaratory
. judgment against the United States and that the
court has no sersediction: ‘to erent such declaratory
4jndgment. ees | °
VI. ee
That if the complaint or siotition’ in intervention
is ellowed, it will eqnstitute a suit brought against .
_ the United States without its consent.
VIL }
That the inte venor by his. petition seeks \to try
"and determine title to lands claimed by the United
States and thaigthe intervenor seeks by the said pe
tition i in interve ntion to. secure a judgment anise
\
+. Pecan acl Sal et
at
; te 1
United States of America ete
title to lands claimed by him as against the United
States. and its claim of ownership...
VITT..
That a judgment in the action will not bind the
Intervenop and will not a inane his interests or
rights. .
IX.
‘That the court is without jurisdiction to make the .
United States a party defendant to a cross bill of”
the tharacter sought by the intervenor through his
- pétition in intervention. — .
_ Dated this 22nd day of*Fune, 1939.
| JOHN B. TANSIL,
United States Aftorney ©
; ROY F. ALLAN ?
~e Assistant United States
Attorney
. AUBREY. LAWRENCE |
Special Assistant to the
_ Attorney General.
3 [Endorsed]: Filed July 24, ‘1939 Censidetied as
. filed on June 22, 1939, for purposes of argument on
that date. [46] :
—_—
: Poe on J uly? 24, 1939, Answer to Com-
plaint of Intervenor was filed by the Plaintiff -
herein, which is-in the words and figures followi ing,
towit : nae ie =e | ae
>
eg .
gH
2
44 ~ Raymond J. MacDonald vs.
[Title of District Court and Cause.] -
ANSWER. TO COMPLAINT OF
INTERVENOR.
Comes Now the United States of America and for —
answ er to the complaint i in intervention of Raymond
_ J. MacDonald, as .Trustee of an express trust for -
others, alleges:
* wd 28 Fok ‘ah 7 I. aie
That the intervenor ‘is not. a. party permitted
under Rule 24 of the Rules of Civil Procedure to
intervene, either as a matter of right or by -per-
mission of court. © pum tan
Sener ae
That the petition andgfomplaint in intervention’
does not state’a cause of action. |
: er
That the intervenor seeks: to enlarge.the issues of :
_ the action and seeks to have tried. issues not_made
by the pleadings between the United States of
America, plaintiff, against the Great Northern Rail--
way Cornpany, a Corporation, defendant.
a
That the interv enor has no ititerest in the subject
. matter of this:action. 48]
- Vv.
That the ee to secure a declaratory
'. judgment agdinst the United States and that the —
court has ne jurisdiction to grant such declaratory
judgment.
© * United States of America 45
VI: 7? |
That. if the complaint or petition in interven- a
tion is hllowed,. it avill constitute a suit brought
against the United States without its consent.
VII. . :
That the. intervenor by his petition seeks to try
and determine title to lands claimed ‘by the United. |
States and that the intervenor seeks by the said ~
petition in intervention to’ secure a judgment quiet-
ing. title to lands claimed by him as against the
U hited States and its claim of. ownership.
ee as _ VIL.
That a judgment “in. the: action will not’ bind the
intervener and will not prejudice his interests a
rights. ;
Face eae, Bay a
, That: the court is without jurisdiction to make ©
the United States a party defendant to. a cross bill
of the character sought ‘by 7 intervenor through
his petition’ in intervention,
The United States for further answer to the |
complaint in intervention of Raymond J. MacDon-
ald, as Trustee.of an express. trust for others, de-
nies generally each and every allegation of said
complaint except so much thereof as is hereinafter .
admitted or explained. _ |
Fs) ae ‘L. | Ge sree
Plaintiff admits paragraph I. of the said com-
plaint. of intervention insofar as it alleges ‘the-
' court has jurisdiction of the “action-as between the °
am?
4 .
46 ‘Raymond J. M acDonald vs.
United States and the Great Northern Railway ©
Company, a Corporation, and. admits the matter
[49] in controversy, exceeds, exclusive of interést -
and costs, the sum in value of Three Thousand
Dollars ($3,000.00) arid that the agtion arises under
the laws of the United States.
II. =
Plaintiff admits the allegations contained in para-
.graph II of. the complaint in intervention. »
Meietes Aaah
- Plaintiff Admits the allegations contained in para-
graph 111 of the complaint in intervention.
, Sapee sate
Plaintiff admits the allegations contained in para-:
graph IV of the complaint in “intervention. ,
Lf
Plaintiff admits the allegations contained i in para~
‘graph V of the complaint in intervention. Ap
ee fo
~~
Plaintiff admits the allegations contained in para-
_ graph VI of the complaint in intervention.
Rah aban) Go este VIL. . |
Plaintiff admits the allegations contained in para- —
graph VII of the complaint: in iiterzention,
- VIII. —
« Plaintiff admits the allegations contained in para-—
‘graph VIII of the complaint in jntervention.
a
United Statesof America =~ *— 47
)® ae
Plaintiff admits the allegations contained in para-
- graph IX ofthe complaint in intervention.
: - 7
Plaintiff admits fhe allegations ¢ontained in para-
_ graph X of the complaint in intervention insofar
as a homestead entry was made by the said Lemuel”
J. Hawkins: as. to the. SW14 of Section 17, Town-
‘ship 33 North, Range 5 West, M. M., now [50] ©
in Glacier County, Montana, but alleges that said
entry does not include'the lands contained within
the right “of way. of the Great Northern Railway
| Company and such portion of the SW, of Section
17, Township 33 North, Range 5 West, .M. M.,
Glacier County, which was within the right of way
~of the Great Northern Railway Company, had been
withdrawn from. public entry under the publie land ,
laws of the United States prior to said homestead —
entry of the said: Lemuel J. Hawkins.
kre ° 2 |
Plaintiff admits the allegations contained in para-
graph XI -of the complaint in intervention.
. KT, ;
Plaintiff specifically ia the allegations con-
tained in paragraph XII of the sees in in-—
tervention.
XIII.
Piaintiff specifically denies each and every alle-
gation contained in paragraph XIII of the com-
plaint in intervention. 7
48 Raymond J. MacDonald vs.
| aaa ‘
Plaintiff specificaily admits the allegations con-
tained in. paragraph XIV of the complaint in in-
tervention, except.as to the ownership of the inter-
- venor to the aforesaid lands and .the oil, gas and
other minerals therein contained. 9
: |) ae
Plaintiff admits the allegations of paragraph XV
of the complaint in intervention. = + ei2
| XVI.
Plaintiff admits the allegations of paragraph XVI -
of the complaint in intervention.
> XVII.
Plaintiff admits the allegatic ns—of_paragraph
y af Il of the complaint in intervention. Bay me
XVIII. |
Plaintiff admits “the allegation dof paragraph
XV III of. the confplaint i m- intervention, except
‘insofar as thé same may be construed to allege the
ownership in-any person Other than the United
_ States of the oil, gas ‘and minerals underlying the -
richt of way df the Great Northern Railway Com-
pany across said lands..
| XIX: ,
Plaintiff admits the allegations of paragraph
XIX of the complaint in intervention:
are ; > ae
Plaintiff. im answer to paragraph XX of the
ha
i: United States of America ae 49
-complaint in intervention alleges that it is the
. owner of al} oil, gas and. minerals under or beneath
the surface of that part ‘of the lands described.
therein, that is, within the right of way of the
Great Northern Railway Company,
XXI.
Piaintitt admits the. ‘allegations of paragraph
XXI of the complaigt in intervention.
XXH. 5g
Plaintiff in answer to -allegationis contained in
paragraph XXII of the complaint in _ intervention, |
alleges that the oil, gas and ather miner als beneath -
the surface of the right of way of the Great Nort
ern Railway Company across the lands involved in
this action are-the property of the United States, —
but alleges that it has no information or knowledge
sufficient to form a belief as to the truth of the —
_ remaining allegations of paragraph XXII of the
f complaint in sntervention anil, therefore, denies the
same. Se s Na
XXII.
Plaintiff denies the allegations contained in para-
graph XXIII of the complaint in intervention, ex-
at the Great [52] Northern’ Railway Com-
ys to be the owner of the oil, gas and other |
minerals Heneath the surface of: its right’-o/ way
across the lands described, and threatens and. will,
~ unless restrained by the court, to drill wells thereon,
extract and remove the same from: its’ own use.
'&
50 mermnene J. MacDonald vs.
XXIV. ie
Plaintiff. specifi¢ally denies the allegations con-
tained in paragraph XXIV of the complaint in
intervention.
Wherefore, the plaintiff prays judgment that the |
court decree that it has no jurisdiction to try and
determine the claims of the intervenor in this
‘action, but that if the court. assumes jurisdietion
that the intervenor take nothing by his complaint —
in intervention and that the plaintiff have judgment
for its costs and. disbursements.
Dated this 22nd day of June, 1939. -.
JOHN B. TANSIL, ¢
United States Attorney.
ROY F,. ALLAN, £
Assistant United States Attorney.
' AUBREY LAWRENCE,
Special Assistant to the
-Attorney General.
[Endorsed]: Filed July 24, 1939. Considered as
filed“on June 22, 1939, for purposes of argument on
that date. [53],
Thereafter, on July, 24, 1939, Reply to Answer
‘and Affirmative Defense of Raymond J. MacDon-:
ald, Intervenor, was filed by the plaintiff herein,
which is in the words and figures following, towit:
4]
United States of America ; 51
[Title of District Court and Cause.] :
REPLY .TO ANSWER AND AFFIRMATIVE
DEFENSE OF RAYMOND J. MacDONALD,
as Trustee of an express, trust for others, ‘In- :
tervenor.
Comes. ‘Now the plaintiff above named and for’
-. reply to the answ er and affirmative defense of Ray-
mond J. MacDonald, as Trustee of an express trust
for others, alleges:
| , 1.
That the intervenor is not a party permitted un-
der Rule 24 of the Rules of Civil Procedure to in-
tervene, either as a matter of right or by ——
of court. | .
ees | .
That the affirmative answer of the intervenor con-
_ stitutes a statement ofa cause of action against the
United States which has not consented to be sued.
HL,
That' the affirmative answer. of the intervenor is
a cross complaint and seeks. to determine the title
to lands claimed -by the United States and inter-
venor, therefore, seeks to secure a judgment quiet-
ing title to lands ‘claimed by him [55] as against _
the United States and its claim of ownership and,
therefore, constitutes -a spit against the United -
States’ brought without its consent. 4
The ‘plaintiff for further reply to. said answer
and defense specifieally denies each ‘and every alle-
. §2 i Raymond J. MacDonald vs.
~
ne ee
gation of- said: affirmative answer, except so much
_ thereof as hereinafter specifically admitted.
Plaintiff. admits, the allegations contained. in
paragraphs I, II, HH, IV, V, VI, VII, VIII, XI,
XII, XIIT, XTV and XV of the affirmative answer.
4.4 . Es
“Plaintiff for’ further reply. to said answer and
affirmative defense denies the allegations of said’
paragraph IX insofar as thé same alleges that the
right of way of the Great Northern Railway Com- -
pany was included within said patent. ‘»
. _ TIT. °
Plaintiff dies the allegations of paragraph X
of the answer and affirmative defense of said inter-
venor.
oe ee apts eee ep
izintiff admits the allegations eontained in para-
graph XI ef the affirmative answer, except insofar
as the answer alleges’ that the. intervenor is the
owner of the oil, gas and other minerals beneath the
surface’ of the tight of way of the Great Northern
Railway Company. across said lands. _
: es :
Plaintiff denies the “allegations of paragraph
XVI of the answer and affirmative defense of said / pea
intervenor, | )
United States of America Poa 53 ;
VI.
Defendant. for reply to theyallegations contained
.. in paragraph XVII of the said affirmative answer
alleges that plaintiff is the owner of the oil, gas
and other minerals in or under the rigiit of way of
the Great Northern Railway [56] Company.
a eat Waee* *- *
+ Plaintiff for further reply to the allegatiigns con-
tained ‘in paragraph XVIII of the said answer
and affirmative defense, alleges that the oil, gas .
and other minerals ‘beneath the surface of the land
_ within the right of way'of the Great Northern Rail- —
way Company are the property of the United States,
and further alleges that fhe plaintiff has no- infor--
mation or knowledge sufficient to form a belief as
to the truth of the remaining allegations of para-
graph ‘XVIII, and: therefore denies the same.
Wherefore, the plaintiff prays judgment that the
eoutt decree that it has no jurisdiction to try ‘and -
determine the claims of the intervenor in this ac-
- , tion, but that if the court assumes jurisdiction that
the intervenor take nothipg. by his complaint in
intervention and that the plaintiff have judgment.
_ for its.costs and disbursements.
Dated this 22nd day of June, 1939. 7
JOHN B, TANSIL,/
— ates oh United States Attorney
> .ROY FP; ALLAN; |
Assistant United States Aftorney
| ‘AUBREY LAWRENCE,
Special Assistant to the Attorney General
540 —" Raymond J. MacDonald vs. oes
[Endorsed]: Filed July 24, 1939,
Considered as filed on June 22, 1939, for purposes
of argument on. that date. wy
Thereafter, on June 26, 1939 (as of June 22,
1939), defendant’s Answer to Intervener’s Coni-
plaint in Intervention was duly filed hefein,. which
is in the’ words and figures following, towit: [58]
[Title of District Court and Cause.] — on
ANSWER OF DEFENDANT, GREAT NORTH-
ERN RAILWAY COMPANY, TO INTER-
VENER’S (RAYMOND J, safaecDONALD,
TRUSTEE) COMPLAINT IN INTERVEN-
TION. . :
Comes now the defendant, Great Northern Rail-
way Company, and for its answer to intervener’s
(Raymond J. MacDonald, Trustee) complaint in
_ intervention, filed-in the above entitled action, ad-’
“mits, denies and alleges as follows: .
Defeidant admits each and all of the allegations :
contained i in paragraphs I, II, III, IV, V,- VI, VII,
VIII. Ix; xX, AW, XV, XVI, XVII, XVIII, 7
XXI, and XXIV of said intervener’ s complaint in
intervention, except that it al'eges that.the ‘“‘Right’ ”
~ of Way” referred to in said paragraphs was not
a mere easement or interest in the surface of the
land but that it was a. strip of land, the entire in- /
4:
_ United States of America.” : DD
~ terest in whieh, including underlying oil and miner- : |
als, was conveyed to, defendant’s predecessor in fee,
_ subject-only to an implied. condition that the entire
area be-used or kept fully available for railway
purposes; and defendant denies that the patent .to
intervener’, ~ predecessor or any of the conveyances.
in intervener’s chain of title were effective to [59]
éonvey any interest in_ the defendant’ s said right
’ of way strip or in the oil underlying. the same,
1 ee
| Answ ering paragraph XI of said intervener’s com-
_plaint in intervention, this defendant admits that -s
the patent’ nabntrOneg ‘in said - paragraph described .
- the w hole ¢?’ the quarter section therein mentioned,
but denies that it conveyed any right, title, or -
.terest in and to = part of said: quarter section.
lying within the 200 foot limits of the right of way -
_ granted to this defendant by the Act of March 3, .
1875, and passing over the NE of said ee.
‘section. eee a
a: Oe nce eee ,
Answering: paragraph “XIII of said. intervener’s
~ complaint: pdt 2 defendant admits
each and all of. the allegations contained in said
paragraph except that this defendant denies that
any. or.all of the oil, gas, or minerals located beneath
this defendant’s 200 foot right of way, described
_ in said interveper’s complaint in intervention, was
granted to the said patentee and that the sid pat-
56 Raymond J. MacDonald vs.
-entee: hia the. _owner of, and entitled‘ to the
possession of, all or any part of the oil, gas, and
other minerals / located beneath this defendant’ S
* said right of way by virtue of said i patent.
+ ye ie Sees :
Answering paragraph XIV of said intervener’s
complaint in intervention, the “defendant admits
each and all of the allegations contained therein _
except that defendant denies that the patentee was,
at any time, the owner of the oil, gas, and other |
_ minerals beneath defendant’s said right of wa‘.
: V.
Answering paragraph XIX of said intervener’s
complaint in intervention, defendant .admits each
and all of the allegations contained therein except
| . that defendant denies that intervener [60] as trus-- .
tee is, or at any time was, the owner of the oil, gas
and other minerals underneath defendant’s said
right of way. |” | tes
. . VI. :
“~ een péeagraph XX of said: canes
complaint: in intervention, defendant denies each
and every allegation therein contained.
| re WEL .
Answering paragraph XXII of said intervener’s
complaint in intervention, defendant denies that
the oil, gas, and other minerals beneath the surface ay
of the land within said right-of way are not a part
of defendant’s said right of way. Defendant admits
U allel States of eaiiael: " 57
. that ° ‘the oil underlying. its right of way can be
withdrawn or extracted therefrom‘ ‘by wells drilled |
on intervener’s quarter section and: off of said
right of way, without injury to the surface of de-
_. fendant’s right of way. strip or to the tracks or
structures .located thereon. Defendant denies that
es said oil could be. withdrawn. without injury to any
~ part of defendant’s right of. way or without inter-
‘fering with the use thereof. by defendant for a
railroad right of way, for the reason. that said oil |
is deal? part of the said right of way, susceptible —
to use for railway fuel, and that the withdrawal
thereof w ould, ‘therefore, ipso facto 1 injure the right
of way and prevent the withdrawal of said oil by
defendant and to the use thereof by defendant in
the operation of its locomotives. °
er VIII. eae”
Answering paragraph XXIII of said interven-
er’s complaint in intervention, defendant admits
each and all of the allegations: of said paragraph —
_ except that defendant denies that it will deprive,
the intervener of any of his alleged property men-
tioned in said paragraph or that it will cause in-
tervener irreparable damage and. injury. [61 ]
| . TX, iS
Further answering ‘said complaint, and as an af-
firmative defense thereto, defendant alleges that
_. there is oil underlying said right of w ay of a charac-
ter and quantity. suitable for use as fuel upon de-
\"
. an
58 | Reda MacDoriala vs. 3 \
Mp fendant’s s loodmetives. operated upon its interstate
railroad which passes pver said .right of way, and
not inf excess of its requirements for that ffirpose, =
and that it is economically practicable and desirable
for defendant to remove said oil and use. the same
upon its said locomotives, and that defendant \will
suffer severe loss if rontnntee or enjoined from so
doing. * Pepa |
eek aa ae
Defendant further alleges that said oil has a com-
mercial value substantially .in exeessof the cost of
producing the same, and that if defendant is per-
‘mitted to remove said oil, it can sell the same com-
‘mercially for large amounts of money which would
be of great’ value and assistance to defendant in the
operation of its railroad. . . sg
Pi’ eae See
Deféndanit further alleges. that the: ‘said oil, e6n-
tains volatile portions which ean be removed by re-
finement and sold as a by-product and used for gaso-
| line and. other similar 1ipducts, leaving a’ residue
which -is suitable for locomotive fuel, and that the
greatest net proceeds and best economic results can
_. be ebtaized from said oil by refining the same and
| by disposing of the more volatile portions com-
| mercially as a by-product and using .the 2 gi as
fuel oil. :
‘Unless restrained by this Court, Satisidens in- —
tends to and will drill three separate wells upon
- gaid.right of way. The oil produced from well num-
_
¥
x
°
gc } =, : a ood
A _ United States of Assertion &
ber one will. be sold. comiibercially and the proceeds *
.. used in the. operation of defendant’s railroad. The
oil produced from well number two will be refined,
~ the more [62] volatile portions being sold ‘com-
mertially and’ the residue being used as fuel oil ~ .
upon defendant’ s locomotives. The oil produced .
from well number three will be’ used in its entirety
as fuel oil upon defendant’s locomotives.
Wherefore, defendant prays that the prayer con-
tained in said intervener’s. complaint in, interven-
tion be denied and that-said defendant have and:
recover, of the said intervene? its costs and disburse-
ments herein incurred. . - »
; T. B. WEIR
F. G. DORETY
June 22, 1939.
\ [Endorsed]: Filed June 26, 1939° ‘as sal June 23,
- 1989. [63] i |
:
‘Thereafter, on June 22, 1939, Intervener’s Mo-
tion for J udgment’ on the Pleadings was duly filed
herein, in the words and figures following, towit:
ee | [64],
[Title of District Court anit Cause.) |
'_ MOTION’FOR JUDGMENT ON THE
PLEADINGS . .
Comes. now the above named intervener, Ray-
mond J. Macdonald, as Trustee, and moves the court
for a judgment on the pleadings as prayed for in.
3 Cee
60 _ Raymond J. MacDonald vs.
his complaint in intervention, in favor of the inter-
_ vener and against the defendant, Great Northern
“Railway, Company, upon the ground and for the
reason that the pleadings in the éase raise no ma-
terial issue of fact, but only questions of law, and —
under said pleadings the plaintiff is.entitled to the
judgment prayed for against said defendant. as a
matter of law.
And, further, said intervener moves the above
entitled court for ‘a judgment’ on the pleadings. as
prayed for in his answer to plaintiff's complaint
upon the ground and for the reason that the plead-
ings in the @se raise no material issue of fact, but
only questions of law, and under said pleadings, the
intervener is entitled to the judgnient prayed for in
its said answer.
Dated -this 22nd day of June, 1939.
W. H. HOOVER
L. V. KETTER
J. E, CORETTE, JR.
_ Attorneys for Raymond J.
: = MacDonald, Trustee.
[Endorsed]: Filed June 22, 1939. [65]
Thereafter, on April 25, 1940,-Decision of the
Court was duly filed herein, in the words and fig-
ures following, towit: [66]
[Title of District Court and Cause.]
A motion for judgment on the pleadings came on
regularly for hearing in the above entitled cause
oe Soars ,
-»
Lge United States of America ea
a
and by agreement ‘of counsel the i issues are + be de-
termined upon that motion, ‘supported and opposed
by- briefs of counsel for the respective parties, in-
eluding one filed under the application to intervene
by’ Raymond J. MacDonald, as trustee. |
This suit was begun pursuant to advices from the
defendant, Great Northern Railway Company, that |
it proposed to drill oil tvells on its right of way in
Glacier County, Montana, through which the com-
pany maintained and operated an. interstate line of
railroad. The complaint filed herein seeks a per-
manent injunction restraining and enjoining the de-
fendant ‘company ‘from in any manner using the
right of way granted as hereinbefore described, for
the purpose of drilling for and Femoving oil, gas
and minerals underlying its right of way except
under a lease issued pursuant to the provisions of |
_ the said Act of May 21, 1930, and that a permanent.
injunction issue, restraining the defendant, the
Great Northern Railway Company, from drilling
for or removing any oil, gas or minerals beneath the
surface of its right of way, crossing the lands here-
inbefore described, or any other ifAds granted under
the Act of March 3, 1875, and now owned or used by
the said defendant [67] except under a lease issued
pursuant to the provisions of the said Act of May - |
21, 1930". (46 Stat. 373).
In its answer the defendant company admits that
it intends to drill for-and-remove the oil underlying _
the surface of its right of way, and denies that such
voil or any part thereof is the property of the plain-
°
62 Raymond J. MacDonald vs} z
tiff, and denies that ‘‘the. United States will be de-
prived of any property or that it will suffer any
irreparable or other injury a8 a result of the de-
fendant’s intended action.” |
_ The principal issue arises over the iniowsacteiins
to be given the Act of Congress of March 3, 1875
(18 Stat. 482), which so far as it is of material in-
terest here, is as follows: “The ight of way through. |
the publie lands of the United States is'granted to
any railroad ¢ompany duly organized under the
laws of any State or Territory, except the District
of Columbia, or by the Congress ‘of the’ United
States, which shall have fiféd with thé Secretary of
the Interior a copy of its articles of incorporation, .
and due proofs of its organization under the same,
to the extent of one hundred feet on each side of the
central line’ of said road; also the right to take, from
the public lands adjacent to the line of said road,
material, earth, stone and timber necessary for the
construction of said railroad; also ground adjacent .
to such right of way- for station buildings, depots,
machine shops, side tracks, turnouts, and water-sta-
tions, not to exceed in amount twenty acres for each
station, to the extent of one station for edth. ten
miles of its road. is er
The defendant company ‘acquired its right of way
by deed from its predecessor in interest, the -St.
Paul, Minneapolis and Manitoba Railw ay Company,
to which latter company the original right of way
was granted, and no question is raised as to the suf-
. fieieney of such conveyance or the rights of [68]
/
United States of America ee
.
property, including the ri it of way, thereby ac-
quired. ‘
The defendant company ‘contends that under the
act aforesaid it was granted more than an ease-
ment—that its grant amounted to a limited fee, and_~
’ that it thereby acquired an ownership of the ols
and minerals underlying its right of way.
The plaintiff contends that the defendant. was
.granted only an cae or right to cross_ public
lands of the United States, with no right whatever
_ fo the oils and minerals underlying the surface, and.
_ ho question raised that at the time of the grant. the
| company ’s right of way extended across public lands
of the United States, and that the only statutes/per- _
tinent to the issue here involved are those of March *
3, 1875 and May 21, 1930; the latter providing for
thé leasing of oil’and gas ai in or under lands
“embraced in railroad or other rights of’ way, and
the Secretary of the Interior whenever he deems it
consistent with the public interest is authorized ‘to -
lease such deposits ‘‘whether the same be a baSe fee
_ or mere easement.’’ Plaintiff contends that the re-
-Sult here depends upon the inferpretation given the
Act of March 3, 1875, therefore the most important
“step in the first instance will be to determine, if
possible, the legislative intent as disclosed by the
debates and reports during the consideration and
passage of the bill which later became the Act in
question.
It appears that i in 1874 the questions before Con- |
gress relating » this jraajont and which resulted in
eee Raymond J. MacDonald ve.
the passage re of the Act of March 3, 1875, had: no re-
lation to any bonus or grant of benefits, dheek at
a former period Congress had granted lands or -
bonuses to aid: in railroad development. Lengthy de-,
_bates took .place—over—the—bill -in question which
‘granted an easement over both public:and Indian
lands, but [69] that throughout these debates
nothing Wag said to indieate that bonuses or benefits
in the minerals or oils. underlying the surface of the
right of way was intended .to be transferred, but
only the right to<eross publie lands and Indian —
lands. .
‘From the excerpts supplied by counsel for the
gov ernment (VoL 3, Pi. 1,°43rd Ceng., 2nd Sess.,©:
-Vol. 118} Cong. Ree.. 404, 405, 406, 407) relating.
to debates. on the bill the intent of Congress seems
to be clear and unmistakable and may be summed
up in the statement of Mr. Hawley of Illinois who
said during the debate: ‘It simply and only gives
the right of way. It merely grants to suth railroad |
* companies as mak be chartered th right to lay
their, tracks ‘and run their trains gver the public -
lands; it does nothing more,’ ’ and also the follow-
. ing colloquy | which took place during debate on
the later measure: ‘Mr. Stafford: Do I under-
stand .that all of the land on these rights of way
is. owned by the government ? ‘Mr. Colton: © The
mirerals under the land are. owned by the govern-
ment, but the owner of the right of way has a lim-
ited fee in the lands, an easement.’ * (Cong. Ree-
ord, 71st Cong., 2nd Sess. Vol. 2, Part 4, Page
\
United States of America | eo
3788 and 3789.) These and other similar expres-
sions dfsclosed during the debates would seem to -
_ preclude the idea that Congress intended-te-return —
__te-the—abandoned policy of granting bonuses to
Ss
railroads which seems to have come to an end with
_. the: erant to the Texas & Pacific in 1871, or that
4
{
the act in question should, be construed to mean
anything more than a grant of a, of way over
the publie lands. | s
In 1929 Secretary of the a Wilbur wrote
of the government in deposits of oil and gas under-
lying easements and rights of way acquired under
the public land laws, and enclosed a [70] proposed -
bill for that purpose, adding that the owner of the
| easement or right-of way had no claim to the oil
/ —
- or gas. underneath. . The Hause Committee report
on the bill discloses the intent of the members
thereof, authorizing a favorable report on. the bill, :
wherein the following appeared: ‘‘The owner of
oil or gas and by reason of the narrowness of fhe
easement and right of way the underlying oil and
rs)
the Senate Chairman of the Public Lands Commit-_
. tee favoring legislation to safeguard the rights .—
the easement of right of way has no claim to the —
‘gas cannot be-disposed of or operated in terms of |
normal subdivision or units as is done with other |
lands -. & ®.
This: bill would give the: Secretary of the Interior :
- authority to lease deposits of oil and gas in lands -
embraced in railroad and other rights ‘of way to...
the owner of the right of way -at a royalty to be
66. - ‘Raymond J: MacDonald vs.
G
: fixed ’ by the Secretary of: not less than 12% per —
cent * * *,’’ (House Report No. 263, 71st Congress, —
2nd Sess. Doe... No. 9490). Thus. it appears that
Congress again, fifty. five years later, reaffirmed
its interpretation of the Act of March 3rd, 1875, in
the Act of May 21st, 1930, providing for the Yeas-
ing of oil and gas deposits in or under railroad and .
other rights of way. Excerpts from the. debate on |
the bill taken from the Comgressiozial Record show
confirmation of the original intent and purpose of.
the: Act of 1875; among the participants’in that
debate was Senator T. J. Walsh of Montana, an
eminent law yer, who said: ‘*The Government still
owns the’ minerals under the right of way; it does
‘not belong. fo the railroad. company; but thé wells
- in the adjacent lands are draining that oil without
any return to. the government of the United .
States. ’” ;
The case of Tiger v.. Western Investment Co. .
221 U. S, 286, 306, 309, is an authority for consid-
ération of subsequent legislation on the same sub-
ject matter.to aid in the interpretation of the prior
act; also Cope v.. Cope, 137 U. S. 682; [71]U. S. v.
Freeman, -3 How: 556. The language of the Act is
clear and explicit, and that, coupled with the in-.
tent of Congress so emphatically expressed, should
_ leave no doubt as Xo the extent of the easenient or
ee right of way granted under the act, and half a
eentury later Congress again considers the ‘same
subject and re-affitms the intent disclosed in thé
passage of the original act. Many authorities have
United States of America: ee.
been cited to confirm the doctrine that grants of this
nature are to be strictly construed against the
grantees; that nothing passes except what is con- ».
‘veyed in clear and explicit terms; that it is to be
regarded as a grant by the public to a private com-
pany, the terms of which must be plainly expressed
in the statute, and if not plainly expressed, they
can not be implied ; nothing can be taken against '
the state by presumption or inference; all rights,
privileges and immunities nof expressly granted
are reserved; in all.-doubtful cases the grant must —
be interpreted: in ‘favor of the sovereign. (Charles »
River Bridge v. Warren Bridge, 11 Peters 420;
Dubuque and Pacific Railroad Company v. Litch-
| field, 23 How. 66, 88; The Delaware Railroad Tax,
18 Wall. 206, 225; Coosaw Mining Co. v: South
Carolina, 144 U.S. ‘551; Hannibal, ete. Railroad v..
Missouri River Packet Co., 125 U, 8. 260, 271;
Central Transportation Co. v. Pullman’s Palace
' Car CoF 139 U.S. 24, 49; Stein v. Bienville Water
_ Supply Co., 141 U. S. 67, 80; Slidell v. Grandjean,
111 U. S. 412, 437; Northern Pacific Railroad v.
Soderberg; 188. U. S. 534; Hamilton v. Rathbone,’
175 U. S. 414, 419; ‘Lake County v. i 130
U. §. 662, 670, 671;) .
: Many: definitions have been given by counsel for
the respective parties of the term “right of way” .°
- but the consensus of opinion seems to be that it
means exactly’ what the words imply, that is to
‘say, the right to use’the grant of right of way for
the purpose of constructing, maintaining, ‘and [72]
"68 4 _ Raymond J. MacDonald vs.
operating’ a railroad. thereon. For ; a comprehen-
sive. definition counsel have cited as C. R. Co.
-V Allen, 22 Kan. 285, 31 A ep. 190, and adopted
-in East Tennessee, V. & G. R. Co. v. Telford, 89
Tenn. 293, 10 L. R. A. 855, 14 S. W. 776, also
McLemore v. Memphis & C. R. Co., 69 S. W. 338.
The following definition is taken face 51 C. J.
Sec. 193, P. 530: “The property rights of a rail-
road company under an easement in its right of .°
way extend upward for a space necessary for the .
use of its franchise and downward to a line, of
support for its tracks and superstructure.”’ See
also Lockwood v. Ohio River R. Co., et al., 103
Fed. 243; 246, 247; Midland Valley R. Co. v. Corn,
et al., 21 Fed. (2) 96, 97, 98, 99; U.S. v. Srweet, 245
“U.S. 563. In the latter case the court held as an
indication of: established policy on pages 569, 572:
0. 68 noticeable among those acts is one which,
in dealing with grants to Nevada and surveys in
that state, declared, ‘‘in all cases land valuable for
mines of gold, silver; quicksilver, or copper shall be
reserved trom sale,’’ ¢. 166, 14 Stat. 85, and -an-
_ other declaring, ‘tno act passed at the first session
of the thirty:eighth Congress, granting. lands to
states or corporations, to aid in the construction
of roads or fot other purposes, or to extend . the
time of grants heretofore made, shall .be so _con-
strued as to embrace mineral lands, which in all’
eases shall be; and are, reserved exclusivély to the
United States, unless otherwise specially’ provided
‘in the aet or acts making the. grant,”’ (13 Stat:
_ United States of America a)
567.) Although applied in one hatedies to lands
‘in Nevada and in the other to grants made at a
_partieular s&sion of. Congress, these declarations
were but expressive of the will ‘of Congress that
every grant of public -lands, whether to a-state or
otherwise, should be taken as veserving and ex-
eluding mineral lands in the absence of an. express
purpose to include them; * * *.’’ [73] Other cases
therein cited support that rule: Mining Co. v.
Consolidated Mining Co., 102 U. 8S. 167, 174; Def-.
feback v. Hawke, 115 U. S, 392, 402; Davis v.
_ Weibbold, ‘139 U. S. 507, 516; Dunbar Lime Co.
‘vy. Utah-Idaho Sugar Co., 17° Fed. (2) 351. In
Northern Pacific Ry. v. Townsend, 190 U.S. 267,
271, the court construed an act similar ta that of
March 3rd, 1875, where a homesteader attempted *
to acquire a portion of a railroad right of way by |
adverse possession, fang wherein the court. held:
“The whole of the granted right of way .must be
presumed to be nevessary for. the purposes of the -
railroad, as against.a ¢laim, -y an individual of
an’ exclusive right of possession: for private pur-
. poses.”” This ruling would’ seem to prohibit the *
use of the right of way for any other purpose than
that for which it was granted. And again the
_ court held in the same fase: ‘The substantial con-
sideration inducing the grant was. the perpetual
use of the land for the legitimate puxposes of the
railroad, just: as though the land had been conveyed
_ in terms to have arfd to hold the same. so long ‘as
- it was used for the railroad right of way. In ef-
co
70 i Raymond J. MacDonald v8.
- fect the grant was of a limited fee, made ¢ on an
implied condition of reyerter.in the event. that the .
company ceased to ge retain ‘the, kand ‘for the
purpose for w hich # was granted.”’ ers - Begs
'~ In some instances the same cases have been cited ~
and. relied upon by both. sidess such as Great North-
- vern- Railway Co. v. Steinke, and Northérn Pacific _
Railway Co. v. Townsend. “Voluminous briefs have
been submitted -by counsel for the defendant rail-
way company, touching every possible phase of the.
case, both near and remote, but there is one-promi- ,
‘nent feature upon whick. they seem to have. placed -
too little importance, arid that -is the intent ‘of Con-
gress disclosed by the Teports and debates during
the consideration and passage of the act. The court
"has referred to thé Steinke ease [74]. and com-
mented on the Townsend | ease; in the former it was
held: “‘Nothing was granted for private use or dis- .
posal, nor beyond what Congress deemed reasonably '
essential, presently or’ prospectively, for the quasi _
publie uses indicated.” "i
The defendant takes the position that Congress
; studiously my ioe excepting minerals from
the act -in. questiar 1d that: failure’to do so indi-
cated a deliberate ‘purpose. Defendant refers to it as
jand granted or as .a land grant, while the court
has considered it an easement for right of way
“which was granted the company in accordance with —
a settled policy, which did not extend to drilling for
oil underneath the right of way, but did: permit
eo
U nited States of America | 1
a
the taking of material, ‘earth; stane and timber from”
~ publie lands adjacent tothe line of road “ necessary
for the construetion of said railroad.” But such .
. taking would not be allowed ‘“‘for the purpose of
constructing rolling stock or equipment employed —
in its transportation business.’’ U. S. v. Deriver and:
Rio Grjnde Railway Co:, 150 U. 8. 1, 13, 14, 15.
Reference is made to the interpretation given simi
lar. statutes by. the Interior Department . ‘which
seem worthy of consideration; these cases relate to
grants of right: of way to the Missouri, Kansas and
Texas Ry. Co., 33 L. D. 470 and 34 L. D. 565,
wherein ‘it was held’ that mineral oils underneath
the right of way were part of the ‘realty (Act of: .
_Febrnary 28, 1992, See. 13), and-in a grant of right
of way under the act of July 26th, 1866 it was de-.
eided that the grantee had no authority under its |
grant of right of way to lease’ any portion thereof |
-to sink - oil wells. nk ie
The application to intervene was: considered at |
the hearing on: the motion for judgment on the
pleadings, and was allowed subject to further con-
‘sideration of the objections interposed by plaintiff.
As it then appeared to the court there was a claim
of interest by all parties in the oil-sup- [75] posed
‘to be underlying the right of way. However, the
plaintiff has seriously challenged the right of R. J. ¢:
MacDonald, trustee, to.intervene. From the argu-
-Inent of counsel for intervener it does not matter
whether the ‘right of way is an easement with at-
‘tributes of a fee or is a limited fee, that these are —
.
o*
72... Raymond J. MacDonald vs.
but terms of tenure and do not define the quantity
of the estate granted; that where a grant is limited
in its use for railroad right of way it is a limited
fee, and ‘under the Act of 1875 if it is an easement
it is the right to use so muclr of the surface and
sub-surface as is necessary for a railroad right of
. way. If it is‘a limited fee it is a grant of so much .
of the land as is necessary to be used for a railroad |
_ right of way, the grant to terminate when the user .
" ceases, This use only requires the surface and so
-mue +h of the sub-surfacée as might be necessary tobe
‘used for the right of way. Whatev er the tenure, the
underlying miyerals ait ‘not, pass. by the grant to.
the railroad company”’, and in‘the opinion of the
court counsel for the intervening trustee have ‘pre-
sented a convincing argument to sustain their con-
~ tention in that respect. Some of. the cases relied upon’
by counsel for the plaintiff have been cited in sup-
port. of the same argument by counsel ‘for the trus-
‘tee against the right claimed by the defendant rail-
:
way company to use of the minerals underneath the
. right -uf way,.. After demonstrating that the railway
‘company has no right to remove the mirierals so
- situated, the trustee ‘then contends that such minerals
within the 200 foot strip passed from. the plaintiff
to the patentee by virtue of the patent upon which
"the trustee bases his claim, coupled with certain lan-
guage of the act of March 3rd, 1875, which reads as
follows: “thereafter all such lands over which such
right of way shall pass, shall be disposed of subject
_ to such right of way ates Before passing to a con-
“United States of America ees
sideration of the merits of ingervener’ Ss [76] cause,
the arguments in briefs of counsel for both sides in.
- respect to the right of the trustee to intervené must
be given further attention. The first and. perhaps
the principal objection to intervention is the claim
made by the trustee to ownership of the minerals i in
question, at the same time seeking a judgment® or
decree against the United States in recognition of
such claim. Hére the objection becomes two-fold, as
it appears to be not only a substitution of the inter-
_ vener for the defendant but likewi ise a suit against
the United Ststes without its consent, accomplished
“by. indirection. by alleging a claim of: ownership
‘against the United States in a cross bill. Althqugh-.
the intervener’s complaint presents the appearance
of being a suit against. the defendant railway com-
pany, it never-the-less _ asks for a decree which ae
rendered ‘would result in quieting title to the prop- -
erty in the trustee and in making an adverse ruling '
against the government. Thére could be no distine-
tion between suits against the United States directly
and: suits against its property. Whoever sues’ the
United States must brin® his case within the au-
thority of some act of Congress. (Belknap v. Schild,
161 U. S. 10,/16, 17; eer v. Schwalby, 147 U. S..
508, 512.)
Again, the Supreme Court has held that the ques-
- tion whether the United States is a party to a eon-
. troversy is not determMed by the merely nominal ~
_ party on the record but by the question of the effect
‘ of the judgment o® decree which can be entered.
74 Raymond J. MacDonald vs...
(Minnesota v. Hiteheock, 185 U. S. 373, 387.) On
this subject the court again held in Lynch v. United
States, 292 U. S. 571, 582, that: ‘“The sovereign’s
_ immunity from suit exists whatever the character
of the proceeding or the source of the right sought
to be enforeed. It applies alike to catses of acetic ion
_ arising under acts of Congress.’’ Mr. Chief Justice -
Taft held in Nassau Smelting & Refining Works,
[77] Ltd., -v. U. S., 266 U. S. 101, 106, in respect to
‘ suing the United States: ‘‘The objection to a suit
against the United States is fundamental, whether
it be in the form of an original action. or a set-off
or a counterclaim. Jurisdiction in either case does
not exist unless there is specific congressional au-
thority for it.”
If a judgment were allowed under a plea of set-
off, that would be in effect permitting the United ..
States to be sued. (Reeside v. Walker, 2 U. 8S. 271,
289, 290.) Many other decisions qnd rules on the
subject of intervention are to be found, but the
foregoing appéars to be sufficient for a determina-
' tion of the issues here:
Counsel for. the intervener have presented an
able discussion of the right to intervene as well as
of the merits of the case. However, while rule 24
of the Rules of Civil Procedure may disclose some
improvement in the-liberalization of practice in in-.
tervention, the argument presented by plaintiff in
opposition to intervention, in view of the facts not
in — ‘appear to be reasonable, supported by
ed
|
United States of America . - 15
ample authority ‘and not in conflict with the new —
rule. : Z ne ap
If in some other suit the trustee should be able
to establish: his.right-to take oil and minerals from
underneath the railroad right of way based upon
a patent from the government, that possibility does
not seem to ‘present any sound reason why the plain-
- tiff should not proceed to restrain the defendant
railway company from taking property not included
in the grant-of right of way, based upon a federal
statute. The court would prefer to dispose of the |
questions raised by the intervener now ¢nd in this
suit, to avoid delay, but the law does not appear to
favor such course of procedure. .
After considering the arguments of counsel, and
the statutes and authorities submitted, there seems
to be no [78] doubt 4s to the proper interpretation. °
to be given the act of March 3rd, 1875, aided by the
subsequent act of May 21st, 1930, relating to the
same subject- -matter, drawn as they were in plain .
and unequivocal terms, supported by evidence of ©
Congressional intent in the consideration and pas-
. sage of both measurés, with the background of a
settled policy of Congress to reserve mineral lands
unless. expressly included. Thé court is therefore
., unable to find the grant of any bonus or limited fee.
or any statute or authority’ which’ would justify
a decision holding that the defendant railway com-
pany, under this statute,As entitled to remove oil
or minerals lying underheath the railroad right of
Way.
76 Raymond J. M acDonald v8.
Wherefore, being duly advised, the court is of
the, opinion that the application for intervention
should be denied, ‘the motion of plaintiff for judg-
ment on the pleadings should be’ granted, and that
injunctive relief should be given sient to prayer
of complaint, and it isso ordered.” .
CHARLES N. PRAY,
Judge.
[Pndorsed Filed - 25, 1940. [79]
Thereafter, on June 22, 1939, the cause was heard
on Plaintiff’s Motion tie Judgment, and-on Motion
for Leave to Intervene by R. J. MacDonald, as. -
‘Trustee, and Motion of R. J. MacDonald, as Trus-.
tee, for Judgment on the Pleadings, the reeord
thereof boing in thé words and figures following,
towit: [80] |
In the «District Court of the United States in and }
for the District of Montana c
MINUTES OF THE COURT
At a stated term, to-wit, the June Term, 1989, of
the District Court. of the United States in and for
the Distri¢t of Montana, begun and held at the court ~
room of. said court in the Federal Building at the
City of Billings, in the State and District of Mon-
tana, on Thursday, June 22, 1939, at 10:00 A.M.,
“pursuant to statute and the rule of said court.
”
. ” , . ye _ ,
Up United States of America ers ee
ob
— Honorable Charles N: Pray,
United States District Judge
_ for the District of Montana. Se
Sliced the . following p oceedings were
had arid done:
No. 32, United ‘States Vs. Great Nosibare Rail-
2, Way Company. }
This cause was duly called for hearing this day
_ on the plaintiff’s Motion for Judgment, and on the’
Motion of the Star Pointer, Exploration Company
_ for leave to intervene herein, Mr. John B. Tansil
the District Attorney, and Mr. Aubrey Lawrénce,
- Special Assistant to the Attorney-General, of Wash-
ington, D.C., appearing for the United States, Mr.
S. P. Wilson of Deer, Lodge, Montana, and Mr,
_ Edward. J. Bloom of Wallace, Idaho, appearing for |
_ said Star. Pointer Exploration Company, Mr. F. G. °
Dorety of St. Paul, Minn., appearing for the. de-
fendant. ° ®-
_ Thereupon on motion of the District Attornisy,
court ordered that Mr. Aubrey Lawrence, Special —
Assistant to the Attorney General, of Washington,
D.C. be admitted to. practice for the purpose of
this case, and that his name be entered as associate
counsel for the United States.
Thereupon Mr. J. E. Corette, Jr. and Mr. L. V.
Ketter, as counsel,. filed and presented a notice of
- motion and a motion of R. J. MaeDonald, as trus-
-. tee, for leave to imttervene herein, with a complaint
in intervention and an answer to plaintiff’s com-
?
\
\
\
\ \ . ° —_
we Raymond J. MacDonald vs.
plaitit, annexed to said.notice and motion, - -to which
f counsel for the United States then and there ob-
jected.
' Thereupon ‘oounil for the United States filed a
written Answer and objection to the petition of the
Star Pointer Exploration Compariy for leave to
inter¢tene herein. ° }
Thereupon; on motion of Mr. Corette, court or-
dered that the record show that the notice of. motion
for leave to intervene and the motion and. petition
of R..J. MacDonald, as Trustee, for leave to inter-
vene, with complaint in intervention. and answer at-.
tached thereto, were served on the attorneys for
the United States and on the attorneys for the de-
fendant Great Northern Railway Company before ~
court opened this day and that plaintiff and the _
defendant herein waive any further notice.
Thereupon the motion of the Star Pointer Ex-
ploration Company to intervene, and the motion, of’
R. J. MacDonald; as Trustee, for leave to intervene,
were duly heard, argued and [81] submitted, and
by” the court taken under advisement until 2:00 °
' -P. M. this day.
Thereafter at 2:00 P. M., and after due consid-
eration, the court ordered’ that the said petition of
the Star Pointer Exploration Company for leave
to intervene herein be and is denied, to which rul-~ «.
ing of the court counsel for the said Star Pointet
Exploration. Company-then and there excepted: and.
exception was duly noted. Thereupon on. motion of
counsel for said Star Pointer Exploration Com-
pany, said company ‘was granted thirty days within
which to file notice of appeal herein. .
Thereupon, after due consideration, court ordered
that the motion of R. J. MacDonald, as Trustee, for. .
_ leave to intervene herein, be allowed tentatively and
counsel were directed tp file briefs théreon.
Thereupon Mr. Lawrence stated that as counsel
for the United States he desired to appear specially
at this. time and-object to the jurisdiction of the
_eourt to hear. ayd determine the issues presented
by the interverior R. J. MacDonald, as Trustee,
upon the ground that they constitute a cross bill:
or cause of action against the United States, to
which the Gnited States has not consented, which
objection was’ by the court tentatively overruled.
Thereupon Mr. Lawrence stated that the United
' States will desire to file an answer to the complaint
in intervention of said R. J. MacDonald, as Trustee,
and a reply to-the answer of said intervenor, which
the court ordered be considered as filed at this time.
Thereupon Mr. Dorety stated that the defendant .
Great Northern Railway Company will desire to:
file an answer to the complaint in intervention of .
said R. J. MacDonald, as Trustee, and court ordered —
“Yat said answer be considered as filed at this time.
’ - Thereupon Mr. Corette, as counsel for R. J. Mac
Donald; as Trustee, moved the court for judgment
on: the pleadings, with the understanding that a
‘written-metion therefor w would later be filed herein
this: day. ' erates
United States of America ae
80 Raymond J. MacDonald vs.
Theresypon the- motion of the United States for
judgment on therPleadings and the motion of R. J..
: MacDonald, as Trustee, for Judgment on the Plead-
ings, were duly heard, argued and submitted and by
the court taken. under advisement. :
Thereupon briefs were. filed by the: plaintiff =e
the defendant; the inter¥enor, R. J. MacDonald, as . -
Trustee, was granted twenty days from this date
within which to file his-brief and counsel-for the __
‘ plaintiff and defendant were granted thirty days
thereafter in which to file their reply briefs.-
Cc. RS GARLOW,
Clerk. [82]
Thereafter, on April 25, 1940, the court ordered
that the Plaintiff’s Motion for Judgment on the
pleadings be granted, and that the: application for
‘intervention of R. J. MacDonald, as Trustee, he
denied, the ‘
ORDER OF THE COURT
' being in the words and figures following, towit: _
No. 32, United States vs. Great Northern Rail-
way Company. ae a -
This cause having heretofore been heard: - sub- :
mitted on the. plaintiff’s Motion for’ Judgment on
the Pleadings herein; came on regularly this day
for decision; whereupon the court, after due con-
sideration, filed its written decision and ordered
said motion for judgment on the pleadings granted,
. * Court farther ordered that the application for in-
=
sean Gall
U nited States of America 4 81
tervention: should be denied, and that higunetive
relief -be granted as prayed for in. the eminvel ==
- Entered April 25, 1940. |
. CR. 'GARLOW, . hE,
Clerk. [83] :
f ©
* heredfter;. on July 22, 1940, Notice of Appeal \
by Raymond J. MacDonald, as Trustee, ete., was \
- duly filed herein, in the words and figures followi ing,
— towit: [84] Eo °
[Title of District Court and Cause]
_ NOTICE OF APPEAL
Notéee is hereby: given that Raymond J. Mac
_*Donald, as Trustee of an Express ‘Trust for ‘Others,
Intervener, hereby appeals to the Circuit Court of
Appeals of the Ninth Circuit from each and every
part of that. Order entered in this action on April *
' 25,°1940, which denies: his Motion and Petition for ©
pears to Intervene in said action, and each and all
the grounds for said denial stated in said Order. -
Dated this 20th day of J uly, 1940.
W.H. HOOVER.
| J. E. CORETTE, JR. .
L. V. KETTER :
Attprneys for Raymond J.
_ . MacDonald, as Trustee of
an Express” Trist for
' Others, Appellant.
Address: Butte, Montana |
* [Endorsed] Filed uly 22.1940. [85]
SS
\
82 | Raymond J.M acDonald v8.
eainaiian on July 24, 1940; Appellant’s Desig-
. nation: of Contents of Record on Appea!. was-filed
by Raymond J. MacDonald, as Trustee, ete.,.in the
~ words and figures following, towit: [96].
[Title of District Céurt-and Cause.]
APPELLANT'S DESIGNATION ‘OF CON:
‘TENTS: OF RECORD ON APPEAL
To the Clerk of the Above Entitled Court and to the
Abeve Named ‘Plaintiff me Defendant, Ap--
pellees: = : erat
The above aained Intervener; Raymond J. Mae-
~ Donald, as Trustee of an Express Trust for Others,
eo
having filed in the above entitled court a Notice of:
Appeal, he, as Appellant, hereby designates the -
-- portions. of the record and proceedings to be cén--
tained in the record en his appeal, to-wit:
« (1) The complaint of. the United: States of
"Aree plaintiff, against the Great Northern |
Railway Company, a corporation, defendant. =
(2) The Answer of the defendant. ‘Great
‘Northern- Railway Company to the complaint,
of the United States of America, plaintiff,
omitting affidavit of service attached to said
* Answer. ~© ae ae ae
(3) ‘Notice of Motion by United States of
America, plaintiff, for judgment on the plead-
said Notice.
i ings, omitting affidatit of service attached to
United States of America | - 83
(4) Notice of Motion by Raymond J. Mae-
Donald, .as Trustee of,.an Express Trust. for
_— for Leave to Intervene in said’action.
[87]
(5) Motion and Petition by Raymond J.
MacDonald, as Trustee of an Express Trust for
Others, for Leave. to Intervene in said action.
(6) Complaint in: Intervention by Raymond
’ J. MacDonald, as Trustee of. an Express Trust
_ for Others,. Intervener. |
-(7) Answer of ‘Raymond. = 4 MacDonald, as
Trustee of an Express Trust for Others, Inter-
vener, to’ the Complaint of the. United States of
> America, Plaintiff. :
(8) Objection by the United States of Amer-
..dea,, Plaintiff, to Motion and ‘Petition of Ray-—
; at mond J. MacDonald, as Trustee of an Express
Trust for Others.
(9) Answer of: the United States of America, _
Plaintiff, to, the Complaint ‘in. Intervention by
Raymond J.’ MacDonald, as Trustee of an _Ex-
press Trust for Others, Intervener. ,
(10) Reply of the United States of America,
Plaintiff, to the Answer: and affirmative defense
of Raymond J. MacDonald, as Trustee of an
Express Trust for’ Others, Intervener. sae
-(11) Answer of the Defendant, Great North-
ern Railway Company to the Complaint in i...
tervention of Raymond J. MacDonald, as Trus-
tee of an Express Trust for Others, Inter- Ez
vener. } |
84 _ Raymond J. MacDonald vs. | |
(12) Motion for Judgment én the Pleadings
by Raymond J. MacDonald, as Trustee of an .
Express Trust for Others, Intervener.
(43) The Decision and Order of the above
- entitled court made. and entered on April 25,
1940, denying the Motion of Raymond J. Mac- —
“Donald,:as Trustee of An Express Trust for
Others for Leave to. Intervene in said action,
and ordering Judgment on the pleadings for
the PYfintiff, United States of America, against
- - the Defendant, ‘Great\ Northern Railway .Com-
“pany.
(14) The Minutes of the Court, pen ee to
the proceedings had at the trial on June 22,:
1939 in the above entitled . ease, and relating
to the filing of the Decision and Order meré
tioned in (13) hereof. ahd
(15) Notice of Appeal by Raymond J. “Mae.
Donald, as Trustee of an Express Trust for
Others, Intervener, with date of filing.
* (16) Statement by the’ Appellant, Raymond |
* J. MacDonald, as Trustee of an Express Trust’
for Others, of the points on which he intends to LA ?
rely on the appeal, omitting Affidavit of Ser-
vice. ;
"The “said Clerk is requested to prepare, certify,
and transmit to the. Unit@d States Circuit. Court -.
“of Appeals for the [88] Ninth Circuit Court at’San’
Francisco, California, the record composed of a true"
copy ‘of. the above designated portions of the record .
ed
is ae
- United d States of Asnerio het 85 se,
and proceedings in the above éntitled case, as
provided by the rules of Civil Procedure for the
District Court of the United States. -
Dated this 23rd day of July, 1940. .
- W. H. HOOVER
wJ. E. CORETTE,. JR:
L.V.KETTER +
Anes for Appellant Ray-(
mond J. MacDonald, as
“Trustee of an iii Trust’
for Others.
“ [Endorsed]: Filed July 24, 1940. G39]
~
_ Thereafter, on pei 24, 1940, Statement of the
‘Points on which Appellant Raymond J. MacDonald
as Trustee, ete., intends to rely on his appeal, was
duly filed herein, in the words and. figures followi ing,
towit: [90]
[Title of District Court and Cause.]
STATEMENT OF THE POINTS ON WICH :
APPELLANT, RAYMOND J. MacDONALD.
AS TRUSTEE OF AN EXPRESS TRUST
FOR OTHERS a, TO RELY ON:
_HIS APPEAL -
, Comes now ‘Raymond J. MacDonald, as aes
of an Express Trust for Others, Intervener and
Appellant in the Above entitled case, and makes
aymond J. M acDonald vs.
this statement of the apa on which he intends
to rely on his appeal :
I. .
That the defendant, Great Northern Railway
Company, under the grant of right of way-by the
‘Act of March 3rd, -1875 of the Congress. of the
United“St tates (18 .Rev. Stats. 482; Title 43, Sec-.
tions 934-939, both inclusive, of the U.S.C.A.) ac-’
-quired only an easement or a limited fee IN THE
SURFACE of the strip of land 200 feet wide cross-
e ing the NEM4 SWwy, af Section 17, Township , 33
North, Range 5 West, M.M., Glacier County, and
SO MUCH OF THE SUBBURFACE AS IS NEC-
ESSARY to be used for RIGHT OF WAY PUR-
POSES, ant that Ahe .oil,. gas, and , other minerals
[91] underneath the right of way remained the
property of the United States and did not pass .
with the grant,of the right of way; that by virtue
of a homestead patent covering and describing the
whole ‘of the SW of said Section: 17, which in-
cluded the NEY of said quarter section over which
the right of way passes, issued by. the United States
to Lemuel J.- Hawkins, after. the right of way¢
Awas located and the road constructed thereon, and
licygdid not contain any exception or reservation
of them,’ the oil, gas. and. minerals underneath the
right of way passed to the said patentee, and ‘Ap- .
pellant, by mesne conveyances, has succeeded to :
the patentee’s ownership of said minerals, subject _
to the rights of the lessee in an. oil and gas lease
United States of America | 87
covering the whole of the SW of said Section 17, -
and to a reserved royalty of 614% of said minerals,
"and therefore:
(a) As such owner Appellant was entitled ‘to
intervene in said action as a matter of right, and
the court erred in denying Appellant’s Motion and
Petition for Leave to ‘Intervene therein.
(b) If Appellant was not entitled to inkierienie as
a matter of right the court abused its discretion in
denying Appellant’s Motion and. Petition for bs
. te Intervene.
_ (ey The United States was not entitled to main- 34
tain the suit for an injunction restraining the ‘de-
fendant, Great Northern Railway Company, from
taking the said oil, gas,.and other minerals from
underneath the right of way, in that it had no title |
thereto, the same belonging to the Appellant.
(d) Appellant was entitled to intervene and. have |
a writ of injunction against. the defendant Great
Northern Railway Compeny, enjoining it from tak-
ing-the said minerals, as, prayed tor in his com-
plaint in intervention.
—e) Appellant was entitled to intervene and re-
sist the suit of the United States for an injunction
against the [92] defendant Great Northern Railway
Company, the said suit being based upon a claim
of title to the oil, gas, and other minerals, but which
in fact. belonged to the Appellant.
-_
, a.
The court was in error in finding and concluding
thay/‘to permit Appellant to intervene would con-
» ga Depwena J: MacDonald vs.
stitute a suit brought by Him on the United
\L. States without its consent. as ,
| > 3. ; ;
‘The court was in-error in finding and concluding
that to permit Appellant to intervene would amouttt.
* to substituting him for the defendant.
Ty.
"The court was in error in finding and concluding
-‘that Appellant’s proposed pleadings in intervention »
constituted a cross bill against the United States.
.
V. é;
The court: was in error in finding and concluding:
that Appellants. proposed pleadings asked for a
decree quieting title to the oil, gas, and other. min;
erals under the right of w ay in paar as against
the United States.
Wa
The court was in error in finding and conclud-
ing that appellant’s proposed pleadings constituted
a suit against the property of the United States. ©
| y TI.
‘The court erred in finding: and concluding that
the possibility of the appellant being able to estab.
lish “his &ight to the, oil, gas, and other minérals
underneath the railroad right of way, did not pre-
sent any sound reason. why the plaintiff should not
proceed to restrain the defendant railway company
from taking said oil, gas, and other minerals.
<
‘
- United States of America 89 =
VIII. SERS
_ The court erred in finding and concluding that,
[93] although it preferred to dispose of the qués-
tions raised by the Appellant, in order to avoid
delay, it was prevented from so doing’ by the law.
9; ae: 3 | | :
The court erred in denying Appellant’s Motion
‘and Petition for Leave to Intervene in said action
for the aforesaid reasons.
i # ; A oa
The court erred in proceeding to a determination
of the case and granting plaintiff’s Motion for
Judgment on the pleadings and ordering injunctive
relief as prayed for in plaintiff’s complaint without
having permitted Appellant to intervene in said ac-
tion and assert his claim and defense therein and
thereto, as set forth im his proposed pleadings.
W. H. HOOVER |
J. E. CORETTE, JR.
L: V. KETTER
_ Attorneys:for Appellant, Ray-
mond J. MacDonald, as.
. Trustee of an Express Trust 7
. for Others. |
[Endorsed]: Filed July 24, 1940. [94]
: —
Thereafter, on August 1, 1940, Stipulation be-
tween Plaintiff and Defendant, for Amended Find-
CF
i
‘000 Reymond J. MacDonald vs.
_ ings 5 of Fact and Conclusions of Law, was duly filed
herein, in the words and figures following, towit:.
[95]
[Title of District Court and Cause.]
STIPULATION
Ii-is hereby stipulated and agreed by and between
the plaintiff and: defendant in the‘ above-entitled
cause, acting through their respective attorneys of
record, that the- Findings of Fact and Con.:.sions
——
a
to wit: .. narrates
1. By substituting the word ‘‘in’’ for the word
‘‘and’’ in the seventh. line of pengeaph II of the
second Finding of Fact.
2. That the word ‘‘company’”’ be inserted sti
the word *‘Railway’’ and the word ‘‘all’’ in the sixth
line of the third Finding of Fact: +>
' §& That the following sentence be added.to the
fifth Finding of Fact after the words ‘‘United”
States*’, tke same being the last words in said find- +
ing vetialibe V. as now appear in the Findings~of_..
Fact and Conclusions of Law new on file, to wit:
“In said notice’ the defendant advised
the Secretary of the Interior of the United
States that it intended to drill three wells upon
the said right of way and ta remove oil. depos-
ited thereunder, the oil removed from one of |
said wells to be used in its crude form for fuel.
‘upon locomotives of defendant operated over
said right of way and upon other portions of
defendant’s line of railway; the oil from_an-
\ P ne
"United States of America = * =
- other of said wells'to be refined by defendant
_ and the fuel oil obtained therefrom to be used
upon such locomotives, while the more volatile
portion would be sold commercially;.and the
oil removed from the third well to be sold com-
aay in its entirety.”’
" That the word ‘fand’”’ appearing between the
word ‘‘Montana’’ and- the word #over’’ in the VII
Finding of Fact be stricken out and that the words ,
“except the right of way’’ be inserted in lieu there- -
of, [96] : oa
_ 5, That the Findings of Fact bearing number IX
be stricken and that the substance thereof be added
to paragraph VI of the Conclusions of Law in a
new sentence following the word ‘‘ purposes” in said
paragraph. Tk
6. That. amended Findings of Fact and Conelu-
sions of Law covering the aforesaid’ modifications
be filed herein in lieu of the Findings of Fact and
Conclusions of Law approved’ by the. court and
‘filed i in this action under date of id 25, 1940.
Dated July 30, 1940-
0H 3B. TANSIL. :
de United States~Atterney___
‘ ROY F. ALLAN |
Assistant United wate At-
torney
‘ - . B.@ DORETY & T. B. WEIR
: Attorneys for Defendant
By W. L. CLIFT
[Endorsed]: Filed August 1, 1940. [97]
92 oo Raymond J: MacDonald vs.
me ~~ Whereafter, on August 1, 1940, an Order for
Amended Findings of Fact and Conclusions of Law, |
‘was duly filed herein, ip the words and figures fol-
lowing, towit: [98]
[Title of District Court and Cause.] _
ORDER
Ww hereas Findings of Fatt and Conch ions of:
Law were duly made and entered by the Sourt in
the above-entitled cause on July 25,. 1940, 1d judg-
‘ment duly rendered thereon*on the same day; and °
Whereas, .by. stipulation of ‘counsel Amended
.Findings of Fact and Conclusions of Law were
agreed upon and submittéd, and the Court is ofthe _
5 opinion that said. Amended Findings of Fact ard —
e Conelusions of Law should be made and filed in
| substitution -of those heretofore filed and that the
judgment heretofore ‘rendered thereon- should be |
aa based upon said Amended Findings of Fact and
e: “Conclusions of Law;
It is therefore ordered that said Amended F ind-
ings of Fact and Convhisions of Law be filed in sub-
stitution ’of the original Findingsof F Fact and Conf
clusions of Law heretofore: filed, and t same
filed as of . July 25¢1940, ; and that the said judgment:
_ heretofore filed be based updn said Amended Find-
ings of Fact und Conclusions of Law. .
By the Court; 9 | 7 me
' CHARLES. N. PRAY .
, =a
Dated Auguit Ist, 1940.
TE — Filed & Ent. ~~ 1, 1940. [99]
+)
_ United States of America 98.
Thereafter, on August 1, 1940, Amended Findings
of Fact and Conclusions of Law was duly filed
‘alee in the words and Sigures following, towit:
Hoo]
[Title of District Court and Cause.)
AMENDED FINDINGS’OF FACT AND CON-
CLUSIONS OF LAW
The above case coming on to be heard before te
Honorable Charles N. Pray, Judge of the above-
entitled court, in the City of Billings, State of Mon-
tana, on the 22nd day of June, 1939, upon the mo-
tion of the plaintiff for judgment on the pleadings, -
the plaintiff appearing by John B. Tansil, United ,
States Attorney, Roy F. Allan, Assistant United
States Attorney, and Aubrey Lawrence, ‘Speéial As-
sistant to the Attorney General, the defendant ap-_
pearing by F. G. Dorety, General Counsel and Vice
-President of the defendant, a
way Company, intervener Raymond J. MacDonald,
as trustee appearing by J. E. Corette, Jr., and L. V.
Ketter, and’ argument being. had and briefs filed,
and the court being fully advised in the premises, .
» hereby makes the folfowing - as $e
FINDINGS OF FACT
er ra
That this action was brought: by the direction of
the Attorney General of the United States’ and at
the request of the Secretary of the Interior.
94 Raymond J. Mac onald vs.
II.
That the defendant is a- ilway ‘corporation or- .
ganized under the laws of the State of Minnesota
for the purpose of. operating and maintaining a
railroad and business incident thereto, and that the
said Great Northern Railway’ Company has been at —
all times involved in this action operating and main-
taining a railroad and engaged in part in the trans-
portation of goods in interstate commerce. [101]
| IIT. 3
That under the Act of Mareh 3, 1875 as Stat.
482), the St. Paul, Minneapolis and Manitoba Rail-
way Company, a railroad. corporation, was granted
\a- right, of way through the public lands of thé
United States. That on the eleventh day of October,
~.1907, the St. Paul, Minneapolis and Manitoba Rail-
way Company conveyed to the Great Northern Rail-
way Company all its rights of property, including
‘various lands granted to it by the United States
of America and by the State of Minnesota to aid in ;
the construction of a railroad, hereinbefore de-
- scribed’, ete. That the said Great Northern Rail-
w ay Company is now operating and maintaining a
railroad on the right of way over. public lands
‘granted to the St. Paul, Minneapolis and Manitaba.
Railway Company under the Act of March 3, 1875,
| AV. ng Rn fee
That.a portion-oef said right of way,.so granted |
and-now in use by the Great Northern Railway Com-
Pa «
United States of America —,_ 95
pany in operating and maintaining a railroady
crosses Sections 7, 16,17 and 18 in Township 33
North, Range 5 West, and Sections 1, 2 and 12 in
Township 33 North, Range 6. West, all in Glacier
County, State of Montana. |
: |
3 | \ : |
That prior to the commencement of this action
the defendant, the Great Northern. Railway Com-
pany, “claimed and asserted ownership of the oils
and minerals underlying its right of way as afore--
said described, and the right-to take and remove the
same, and threatened to use portions of the right of ©
way crossing the lands hereinbefore described for
the purpose of drilling for and removing sub-surface
oil and did serve upon the Secretary of the Interior °
~ of the, United States a.written notice of its intention
_to drill for and remove oil beneath the surface of its
right of way crossing Sections 7, 16, 17 and 18 in |
Township 33 North, Range 5 West} and Sections 1,
2 and 12 in Township 33° North, Range 6- West, all
‘in Glacier County, Montana, the same being the
_-Tight.of way.obtained by the predecessor of the said
Great Northern Railway Company under the Act
of March 3, 1875, and did serve like notice upon: the”
Attorney General of the United States. That in said
[102] notice the defendant advised the Secretary of
the Interior of the United States that it intended to
drill three wells upon the said ‘right of way and to
remove oil deposited thereunder, the oil removed
from one of said wells to be used i in its crude form
\\
aaa Raymond J. MacDonald vs.
for tuel upon locomotives ‘of défendant operated ~
over said right of way and upon other pertions of
defendant’s line of railw ay; the oil from another of
' said wells to be. refined by defendant and the fuel
oil obtained there from to be- used upon such loco-
motives; while’ the more volatile portion would be
sold commercially; and the oil removed from the.
third well te be sold commercially in its entirety.
; ,
VI. ;
‘That no Oe at any time been -issued to the
_ defendant, the Great Northern Railway Company.
as authorized by thes Act of May 21; 1930, 46 Stat.
_373, to drill upon or rmove deposits of oil and gas,
“under the said right of way of the defendant, nor
has any application therefor beén at any ‘time made.
— - [103]
From: ‘the cee Findings, of Facet the court
makes the following :
| CONCLUSIONS OF LAW :
af \
That ‘all the sania allegations of the complaint
ave been sustained by meer proof. \
SN
6 Gane ete ae N |
That. the plaintiff is entitled to a judgment\ and
deer ee/as pray ed for in the complaint. 3
\
\
%
~
That jurisdiction to try and determine the issues
in this case is vested in this court by revised statute
ay
ou"
e @
United States of America Pe
Sections 563 and 629 and amendments thereto now
being Section 41, Title 28, U.S. Code. |
ret Se eke sa: |
That the defendant, Great Northern Railway
Company is not entitled to and is not the owner of
the gas, oils and minerals underlying its right of
way crossing Sections 7, 16, 17, and. 18 in Township
33 North, Range 5 West, and. Sections 1, 2 and 12, °.
‘Towriship 33 North, Range 6 West, in Glacier
_ County, State of Montana.
That the Act of March 3, 1875, 18 Stat. 482, does:
not grant to railroad ‘corporations any right, -own-
ership ‘or claim in or to the. gas, oils and minerals .
underlying the surface of the rights of way ‘so—
- granted and that the said act granted only an ease-
ment and right to efoss the public lands of the —
United States and, to use the surface of said right
of way for _— purposes.
: 3 VI: er
‘That. the legislative history connected with the
passage of the Act of March 3, 1875, 18. Stat. 482,
= diseloses that the Congress of the United States in
passing the said act and in providing for the grant- .
ing of rights of way to railroad companies intended
to grant only the-right to cross the public lands of
_ the United States’ and did not intend to grant. to
any [104] railroad eee: securing a right of way .
it <
98 Raymond J. MacDonald vs.
_under the’ provisions of said act the ownership of the
gas, mineral and oil deposits underlying the surface
of said right of way, and intended that the grant of
said right of.way was'solely an easement to occupy
and use the surface of the right of way, crossing :
publie ‘lands of the United States for railroad pur-
poses. That at the time of the passage of the Act of
May 21, 1930, 46 Stat. 873, the Congress of. the
United States asserted the ownership of the United
States to the gas, oil ahd minerals underlying the
surface of the rights of way granted under the Act.
of March 3, 1875, and affirmed the intention of Con-.
gress expressed at the time-of the passage of: the
Act ‘of March 3, 1875, to the effect that no right. was
- granted to any railway company securing a right of -
way under that-act Other than the crossing of the -
public lands of the United States and the o¢eupancy
and use of the surface of the granted right of way
for reeryyS purposes.
_ VIL.
That the plaintiff is entitled to’ a permanent in-
junction restraining and enjoining the Great North-
-ern Railway Company from in any manner using |
the right of way granted as herein described for the
purpose of. drilling for or removing oil, gas and
minerals underlying its right of way.
. VIII. . |
- ‘That the plaintiff is entitled to the costs and dis- o¢
bursements of this action.
United States of America~ 99
That judgment be entered accordingly.
-OHARLES N. PRAY,
ae . i ie Judge.
Dated Aug. Ist, MS: Sius
_ [Endorsed]: Filed August 1, 1940. oo
: i daealewae [105]
Thereafter, on J uly 25, 1940, Judgment of Plain-.
. tiff was duly filed herein, in words and figures fol-
lowing, towit: — piPit wre
In the United dias District Courtor the
District of Montana
UNITED STATES OF AMERICA,
: . : Plaintiff
vs. |
GREAT NORTHERN RAILWAY COMPANY,
a Corporatior,
“a " Defendant,
Oe dig J. ‘MacDONALD, as Trustee of an
express trust for others,
Intervener.
‘JUDGMENT
_ The above case coming on to be heard before: the
~ Honorable Charles ‘N. Pray, Judge of the abdve: en- —
titled court, in “the City. of Billings, State of Mon- |
tana, on the 22d day of June, 1939, upon the motion -
100. ‘einen. MacDonald v8.
of the plaintiff for judgment on the pleadings, ‘the )
» plaintiff appearing by John B. Tansil, United States Pa
Attorney, Roy F. Allen, Assistant United States
Attorney, and Aubrey Law rence, Special Assistant -
to the Attorney General, the defendant appearing
by FG. Dorety, General Counsel and Vice Presi-.
dent of the defendant Great-‘Northern Railway Com-
pany, intervener Raymond J. MacDonald as trus-
tee appearing by J. E. Corette, Jr., ‘and L. V. Ket-
ter, and argument being had and briefs filed, and
. the\ court having heretofore made findings of fact’ .*
and conclusions of law in favor of the plaintiff it.is
hereby . ordered, adjudged and decreed that the
plaintiff: } have a judgment as prayed for in its com-’ -
plaint, and that the defendant, ae Gata Northern |
Railway Company, He and it’ is hereby restrained —
and enjoined from in any. manner using the right of
way granted under the act of March 3, 1875, 18
Stai. 482, for the purpose of drilling for or remov-
ing oil, gas and minerals underlying the right of
way and is hereby restrained and enjoined from
drilling for or removing oils, gas, or minerals: be-. -
neath the surface of its right of way and is hereby
restrained and enjoined from exercising any con-
trol, dominion, use or ownership of the oils, gas,
and minerals underlying its right of way as de-
_seribed in the complaint in [107] this action, except
under & lease issued pursuant to the provisions of
_ the act of May 21, 1930, 46 Stat: 373, and that.
plaintiff have judgment for its costs and disburse-
ments hereby taxed in the sum of $
. United St States of America _ 101
By the Court |
eres CHARLES N. PRAY
omer
Dated July 25, 1940.
[Endorsed]: Filed & Ent. July 25; 1940.
a Ong tee ee
4 —_—_————_
Thereafter, on August 3, 1940, Deferidant’s Notice ?
_ of Appeal to Circuit Court of Appeals was duly
filed herein; in the words and figures following, to-
wit: [109]
* [Title of District Court and Cause.]
NOTICE OF APPEAL TO CIRCUIT COURT
i ea OF APPEALS.
“Notice is hereby given that.Great Northern Rail- .
way Company, defendant above named, hereby ap-
-peals to the Circuit Court of. Appeals for the Ninth
Circuit, from the final judgment entered in ‘this =
action on. July 25th, 1940. aes
*B..G. DORETY —
“Address: St. Paul, Minnesota
T. B. WEIR
W. L. CLIFT
_ Address: Helena, Montana.
Attorneys for Appellant (De-
fendant above named) _
o _ ‘Great . Northern. Railway
Company.
[Endorsed]:. Filed: Aug. 3, 1940. .
_ [110]
102 | Raymond J. MacDonald vs.
issaadbins; on August 3, 1944, Defendant: s Bond
on Appeal was duly filed herein, in the words and -
figures following, towit: [111]
_ [Title of District Court and Cause.]
BOND ON APPEAL.
Know all men .by these presents: that
"Whereas, the defendant in the above-entitled
eause ‘as appealed, or is about to appeal t& the
United States Cireuit Court of Appeals, for tlie. —
Ninth Cireuit, from the final judgment or decree.
entered in said cause in the above-entitled Court on’
‘the 25th day »f July, 1940, in favor of plaintiff and
agaitist the defendant, on plaintiff’s motion for
judgment on the pleadings, the Court having duly
made amended findifgs of fact and conclusions of
iaw-in favor of the\plaintiff and against said de-
fendant, by which judgment or decree defendant
was restrained and enjoined from in any manner
_ using its right-of-way, granted under the Act of |
- March 3, 1875, 18 Stat. 482, for the purpose of | drill-
ing for or removing oil, gas, or minerals underlyi ing
its right-of-way referred to in the complaint, and
from exercising any control, dominion, use or own-
ership of the ails, gas and minerals underlying said ©
right-of-way, as described in the complaint, except
under a lease issued pursuant to the provisions of
the Act of May 21, 1930, 46 Stat. 363, and that plain-
tiff have. judgment for its costs and disbursements.
Now, therefore, in consideration of the premises,
and cf such appeal, Continental Casualty Company,
-
United States of Americ ee ! 103
a corporation duly organized and existing euler and
by virtue of the laws of the State of [112] Indiana
(with capital and assets provided for int an. Act. ‘of ni
the Sixth Legislative Assembly of the State of Mon-
tana, entitled. “‘An Act to Permit Foreign Surety’
Corporations to-do Business in this State, and Regu-
lating the Method Thereof’’, which said corporation
has complied with all the provisions of said Act and
all Acts amendatory thereof or supplemental there-
to, and is entitled to ‘do business in the State of
. Montana as a surety), does hereby undertake and
-promise, on the part of said appellant, that said
appellant will pay all costs which may be awarded
- against it if said appeal is dismissed or such judg-
“ment is affirmed, or all such costs as said~ United ©
States Circuit Court of Appeals for the Ninth Cir--
_ cuit may award against it if said judgment is modi-
’ fied, not exceeding the sum of Two Hundred and
Fifty-and No/100- Dollars ($250.00), for the pay-
“ment. of which amount well ‘and truly to .be made,
the said Continental Casualty Company binds itself,
its successors and assigns, firmly by these ‘presents.
In witness whereof, ‘the said Continental Casualty
-Company has caused these presents to be executed
by its duly and legally appointed and authorized
Attorney-in-Facf, this 3rd day of August, 1940.
CONTINENTAL CASUALTY COMPANY.
By: F. [Illegible]
Its Attorney-in-Fact. .
[Endorsed]: Filed August 3, 1940.. pes
| [113]
104 _ Raymond J. MacDonald vs.
Thereafter, on August 3, 1940, ‘Statement of
Points to be relied upon by Appellant Great North-
ern ‘Railway Company, on Appeal was duly filed
~ herein, in the words and figures following, -towit: |
[114]
[Pitle of District Court and Cause. ]
STATEMENT OF POINTS TO BE RELIED
UPON BY APPELLANT ON APPEAL
Upon the appeal in: ‘the above entitled action, ap-
pellant (defendant above named) - -intends to rely
_ upon the following points; — ;
| (1) that the Act of Cortgress be March 3, 1875,
(18 Stat. L. 482) under which appellant’s predeces-
sor obtained its title to the railroad right of way
upon ak appellant is enjeined by the decree in
- this action from drilling for or removing. oil, must
‘ be construed as having granted a' title in fee simple
to the entire strip of land ineiuded in the right of
way, and including all oil and minerals underlying ©
said strip of land, subject only-to the qualification or —-
limitation that such title shall continue forso long
as said ‘strip shall be used for. railroad purposes ;_
(2) that the ownership of such title which is now
. vested in appellant, includes (a) the right to drill °
ior and remove, for any puypose, the oil underlying
said'strip of land, or (b) the right to drill for and
remove the oil underlying said strip of land, pro-
vided that, after refining and removing volatile por-
tions thereof, the remaining .fuel oil shall be used -
United States of America 105
* in railroad operations over said strip of land, or-
(ec) the right to drill for and remove the oil under-
lying said strip of land, provided that all of the
oil so removed shall be used as fuel in the operation
of [115] railroad locomotives along said strip of
land; _
(3) that the ‘atone prayed for by plaintiff
should have been denied and the action dismissed
with judgment in favor of the defendant.
_ F. G. DORETY
Address: St. Paul, Minnesota.
~T. B: WETR
W. L. CLIFT:
Address: Helena, Montana.
Attorneys for Appellant (De- |
eH fendant above- named) _
Great Northern Railway
Company. |
~
ean See
[Endorsed]: Filed Aug: 3, 1940. [116]
Thereafter; on August 3, 1940, Appellant’s desig-
nation of portions of record to be ‘vontained in rec-
ord on appeal yvas duly filed by Great Northern
Railway Company, in the words and figures follow- —
ing, to wit: [117] -
~~
Ax
_ [Title of District Court and Cause.]
106 - Raymond J. MacDonald vs.
DESIGNATION. OF PORTIONS OF RECORD
TO BE CONT ED IN RECORD ON AP-.
PEAL. : -
The appellant, defendant above named, hereby :
designates the following portions of the record and
-proceedings in the above-entitled action to be con- .
_taingd in the record on appeal:
Ted
Complaint of Plaintiff.
Answer of Defendant to Plaintiff’s Com-
plaint.
Motion by plaintiff for judgment on ‘the
- pleadings, and Notice of said motion.
Minutes of the Court of hearing held on June
22, -1939.
' Opinion.of the Court, filed inal 25, 1940.
Stipulation entered into between plaintiff
aml defendant for filing of amended —
‘of:fact and conclusions of law. }
Order of Court permitting filing of Aniended
Findings of Fact and Conclusions of Law pur-
suant to stipulation. - aa
Amended Findings of Fact and Conclusions
-of Law. | i
Final -J udgment or decree.
«Notice of Appeal.
Bond on Appeak
Statement of Points to be relied upon by
appellant on appeal. [118]
Designatioh of portions of record and pro-
United States of America -
-ceedings to be contained in the’ record on ap-
peal. . — .
F.G. DORETY —
- Address: St. Paul, Minnesota.
T. B. WEIR
W. L. CLIFT:
‘. Address: Helena, Montana.
Attorneys for Appellant: (De-
fendant above named)
Great Northern ‘Railroad
‘Company. |
[Endorsed]: Filed August 3, 1940. [119]
asi ; ae
Thereafter, on August 6, 1940, an Order Extend-
ing Time to File Transcript on Appeal in United -
States Circuit Court ‘of Appeals was’ duly entered
- herein, being in- the words and figures following,
towit: [120] . ; 4
~
[Title of District Court and Cause.]
. ORDER EXTENDING. TIME TO FILE TRAN-
SCRIPT ON APPEAL “IN- UNITED
STATES CIRCUIT COURT OF APPEALS
For good cause appearing, it is ordered, by the —
court that the time for filing the Transcript of Réc-- -
ord on Appeal imthe United States Circuit Court of
Appeals for the Ninth Circuit be and’ hereby is ex-
tended to and including October 9th, 1940. |
Y hoy
108 . Raymond J.M acDonald vs.
‘ Dated and entered August 6th, 1940.
CHARLES N. PRAY
United States District J udge
for thé District of Moritana — !
Endorsed] Entered. Aug. 6, ah [121]
rs PAveS
en
tf TES
CLERK'S CERTIFICATE TO TRANSCRIPT
OF RECORD ON APPEAL |
United States of America, ater
Le District of Montana—ss. =
| I, ©. R. Garlow, Clerk of the District Court of
' the United States for the District of Montana, do
hereby certify to the Honorable, The United States .
Circuit Court of Appeals for the Ninth Circuit, -
that the foregoing volume consisting of 122 pages,.
numbered _consecutively ‘from 1 to/ 122 inclusive,
is a full, true and correct transcript of all matter
: designated by the parties as ‘tiie record on appeal
in case Number 32, United States vs. Great North-
ern Railway Corhpany, et al, as appears from the
original records and files of said court in my cus-
tody as such Clerk. ’
further certify that the costs of said transcript
ount to the sum of Twenty-eight and 80/100ths
ollars, ($28. 80), and have been..paid the ee
‘/lants. —
f/ -4 = +
{ ye
\
iy
United States of America ——--:'109
‘Witness my hand and the seal of said. court at
Great Falls, Montana, this 27th day of August, °
A.D 1940, °° :
[Seal] | C. R. GARLOW,
si) Clerk -as aforesaid. -
By MAX JENKS,
Deputy. [122]
i .
_ [Endorsed]:, No. 9624. United States Cireuit .
Court of Appeals for the Ninth Cireuit. Raymond
J. MacDonald, as Trustee of an express trust for
others, Appellant, vs. United Stites ‘of America,
Appellee. Great Northern Railway Company, a cor-
poration, ‘Appellant, vs. United States of America,
Appellee. Transcript of Record. Upon Appeals from
the District Court of the —— spancinen for the
District of ‘Montana. — ’
Filed August 30,1940, ie,
- PAUL P. O'BRIEN, /
‘Clerk of. fhe United States Cireuit Court / y/ of ‘Ap-
peals for the Ninth Circuit. ; /
/ ‘
/
PA
~ 110 _ Raymond J. MacDonald vs.
UNITED STATES OF AMERICA,
In the United States Circuit Court of Appeals f for .
the Ninth District
‘No. -9624
*
«
| Appellee,
* Vs.
; GREAT NORTHERN RAILWAY COMPANY,
a Cor poration,
“Appellee,
RAYMOND J. ‘MacDONALD, as Trustee of an Ex- .-
press Trust for Others, e
; Appellant.
_ STATEMENT OF ‘POINTS ON WHICH AP:
PELLANT INTENDS TO RELY ON HIS
APPEAL, AND DESIGNATION OF THE ©
PARTS OF .THE RECORD NECESSARY
FOR THE CONSIDERATION THEREOF
Comes now, Raymond J. MacDonald, as Trustee
of an ‘Express Trust. for éthers, the above. named
_ Appellant, and for his Statement of the Points on
which he intends to rely on his appeal adopts’ his-
statement of such Points appearing and contained _
in the certified original transcript of the record. of
+ the above entitled cause on file in the office of the |
cod
Clerk of the above entitled court.
Said. Appellant designates the entire certified rec-
ord as being in his ‘opinion necessary for the con-
sideration of his said Points and\asks that the same
- be printed i in its entirety. .
Dated this 4th day. of September, ‘940,
J. E. CORETTE, JR:
L. V. KETTER - opens
W. H. HOOVER
J. V. DWYER
fa ih ee oh Others. e
‘State of Montana,
—— of Silver Bow—ss.
‘Eda Mandich, being first duly sworn, deposce uP
Says: ol ;
That she is a Clerk in the office of L. V. Ketfer,
_ one of the attorneys for the Appellant in the tab:
going entitled action; that she duly served the fore-
going Statement of Points and Designation df the
United inten} Uineriva > 111 _
| bei a Attorneys for Appellant Ray-
? mond’ J. MacDonald, Trus-
ae N “ tee of an Express Trust-for |
arts of the Record Necessary for the Considera-. -
. tion Thereof, by-enclosing a true and correct copy
thereof in an ‘envelope which. was thereupon sealed
and addressed to J ohn B. Tansil, .United States _
Att-rney, at Billings, Montana, one of the Attor-
neys for.the Appellee, United States of America;
by enclosjig7a true and correct copy thereof in an
. €nvelope| whiclrwas thereupon- sealed and addressed
to T. B. ‘Weir, at Helena, Montana, one of the at-
\
torneys for the Appellee, Great Northern Railway a
\e.
mm. : Raymond J. MacDondild 6... O.,
| Company ; and: that with . postage “fully seid
thereon the said envelopes and their conterits were
on said day deposited in thé United States Post-
office at Butte, Montana. Appellant furthpr states
that the above mentioned addrésses are the postof-
fice addresses, places of ‘business, and A of
the said attorneys for the respective appellees.
EDA MANDICH )
: Subscribed and sworn to before me this 4th day
_ of September, 1940...
[Seal] P. J. BERGET
: ; Notary ‘Publie for the State of Montana.
Residing at Butte, Montana - *
My commission expires November 25, 1942 .
United States of America + ie .
In the United States Cireuit Court . of Appeals,
for the Ninth Cireuij,
‘No. 9624 .
GREAT NORTHERN RAILWAY COMPANY,
a corporation, ee Set ae
| ; "Appellant,
rh ae
UNITED STATES OF AMERICA;
ae ‘on Appellee, ee
and hei
RAYMOND : 4 “MacDONALD, as ‘Syinten of an
Express Trust for Others,
ees Intervener and pica
¢
STATEMENT OF POINTS ON WHICH AP-
PELLANT, .GREAT NORTHERN RAIL- -
WAY COMPANY, INTENDS TO RELY .ON
ITS APPEAL, AND DESIGNATION OF
THE PARTS OF THE RECORD NECES-
SARY “FOR THE- CONSIDERATION |
*THERFOF
. Comes now Gfeat Northern Railway Company,
‘ Defendant and Appellant in the above-entitled
cause, and for its statement of the points on which
‘it intends to rely on its appeal,.adopts its statement
of such points set forth and contained in the origi- -
nal. transcript of the record of the above-entitled |
cause as certifiéd by the Clerk of the United States
District Court, and now on file’ in the office of the'
: Clerk of the above-entitled — ee
14 = Raymond.J. MacDonald vs. .
Said appellant, Great Northern Railway Com-
pany, also designates the entire record, so certified | -
by said Clerk of the United States-District Court, .
to be printed, that being the record relied upon by
said appellant on its appeal, such entire record be- ~
- ing necessary, in the opinion.of this appellant, for
_. the proper considération by the Court of the points
hereinabove referred toe tke
Dated this 6th day of Septernber, 1940,
F.G. DORETY
Attorney for Appellant, Great -
Northern . Railway - Com- -
pany, St. Paul, Minn.
- T. B, WEIR ' |
_W. L, CLIFT
Attorneys for Appellant,
Great Northern Railway
Company, Helena, Montans.’ —
[Title of Circuit Cowrt of Appeals and Cause.)
ue AFFIDAVIT
State of Montana,
County of Lewis and Clark—ss.
G- Ww. Pfaff, being first duly sworn, deposes and .
SaVS? Lhe _s .
That he is a citizen and resident’ of the State of
; Moitana, over twenty -one (21) years‘of age, and
‘that on the 6th ‘day of Septembér, 1940, he deposited —
in the United States Post Office at Helena, Mon-
° United States of America 115
tand, a true copy of the foregoing Statement of
Points on which Appellant, Great Northern Rail-
way Company, Intends to Rely on its Appeal, and
Designation of the Parts of the Record Necessary
to be Printed for the Consideration Thereof, in a —
sealed envelopé, with first-class postage thereon fully
prepaid, and addressed to John B. Tansil, United
States District Attorney, Billings; Montana; and
another true copy of ‘Statement of Points and
_ Designation of s of the Record, in a similarly
sealed envelope, with first-class postage thereon fully
' prepaid,. and addressed to J. E. Corette; Jr., and
L. V. Ketter, Attorneys at Law, Butte, Montana.
That said John B. Tansil is attorney for Appellee,
_ United, States: of America, and has his office and
_\ resides at said Billings, Montana, and said J. E.
_Corette, Jr., and L, V. Ketter are attorneys for
‘Intervener and, Appellee, Raymond J. MacDonald,
and have their office at and reside in said Butte,
Montana. | |
That T. B. Weir ond Ww. L. Clift are attorneys for
Appellant in said eause, and’ have. theif, office in
and reside at Helena, Montana, and that there is a.
_ regular communication by mail between. said City
of Helena and. said City of Billings, Montana, on. -
the one hand, and between said City. of Helena,
- Montana, and said City of Butte, Montana, on the
other hand, and that. affiant is in ne way interested
in said cause. : ;
| G. W. PFAFF
116 : Raymond J. MacDonald vs.
. Subscribed and sworn to before me this 6th. day- hy
. of September, 1940. ;
; [Seal] . JOHN J. MITCHKE
‘Notary’ Public for the State of Montana,
Residing at Helena, Montana.
_My Commission expires “May Ist, 1942.
[Endorsed]: Filed Hatt 10, 1940. Paul | A
O’Brien, Clerk.
No. 2 9624
United States Circuit Court of ‘Appeals os
| For the Ninth Cireait :
RAYMOND - J. MacDONALD, as: Trustee of an
express trust for others,
Appellant, |
vs. |
‘ UNITED STATES OF AMERICA,
_ GREAT NORTHERN RAILWAY COMPANY,
a corporation,
Appellant,
, vse. :
UNITED STATES OF AMERICA, —
| ‘Appellee.
Upon Appeals from the District Court of the
United States for the District of Montana.
PROCEEDINGS HAD IN THE
UNITED STATES CIRCUIT COURT OF APPEALS
FOR THE NINTH CIRCUIT.
PARKER PRINTING COMPANY. 545 SANSOME STREET. SAN FRANCISCO
°
U nited States of America 1g
United States Circuit Court of Appeals
for the ‘Ninth’ Circuit
— from Proceedings of Friday, Pubeeeey
28, 1941,
. Before: Wilbur, Garrecht and Healy,
Circuit J udges. |
file eee [Title of Conse.) .
sien 3 : ' ORDER OF SUBMISSION ,
Ordered appeal of Great Northern hativns Com-
pahy herein argued by Mr. F. G. Dorety, General
Counsel, Great Northern Railway Company, counsel
for said appellant, and by Mr. Vernon L. Wilkin-
son, Attorney, Sepexenent of Justice, counsel for
appellee ; oe =
Further ordered ‘appeal of Raymond J. Mc-—
Donald, herein argued by Messrs. J. E. Corette, Jr.,
and L. V. Ketter, counsel for said appellant, and ~
by Mr. Vernon L. Wilkinson, Attorney, Depart-
ment of Justice, counsel for appellee,.and the ap-
peals hereirr submitted to the court for consideration
and decision, ‘with‘ leave to. counsel for appellant
: Great Northern Railway Company to file supple-
Sie i igs Fa if so advised.
> g
iad
s
s
12200. - Raymond J. MacDonald v8.
Uhited States Circuit Court of Appeals .
for the Ninth Circuit ,
: \
Excerpt frome Proceedings of Thursday, May 8,
1941.
Before: Wilbur, Ga eft and Healy,
Cirenit Judges.
[Title of Oden
ORDER DIRECTING FILING OF OPINION
AND DISSENTING OPINION -AND
FILING AND RECORDING OF DECREE
By direction of the Court, ordered that the type-.-
written opinion and dissenting opinion this day ren-
dered by this court in above cause be forthwith filed
. by the clerk and that'a decree be filed and fecorded
.. in the minutes of this court in ‘accordance with the
majority opinion ‘rendered.
es
[Title of Cireuit Court of Appeals and Cause. ]
Upon Appeals from the, District Court of the ”
‘United States for the District of Montana. |
: OPINION :
Before: “Wilbur, Garrecht and Healy,
’ Cireuit Judges. =. : |
Healy, Circuit Judge: ae ee ne
- The United States prevailed below in a ‘walt to”
enjoin the Great Northern Railway Company from
drilfing for ot 1s ios oil, gas and minerals-\ un-
17 Oyited States of America | Fa
derlying its right of way, except pursuant to the
- provisions of the act of May 21, 1930, 46.Stat. 373,
which authorizes leases for such. purpose.
- The Great Northern extends westerly from Min- .
nesota to Puget Sound. It has numerous branch—
lines. In 1891 its predecessor, the Saint: Paul, Ming”
neapolis and Manitoba Railroad Company, pursuant —
to the general right of way act of March 3, 1875, 18
Stat. 482, filed with the department, of the Interior
Chap. "152. An act granting to railroads the |
disht- of way ‘through the public lands of. the United
States.
Be it enacted by the Senate and House of Repre-
sentatives of the United States of America in Con-
gress assembléd; That the right of way through the
public lands of the United States is hereby granted
‘ to any railroad company duly ‘organized under the ~
laws of any Staté or Territory, except the District .
ar Jolumbia, or by the Cén ngress of the United
“stes,‘whieh shall have filed with the Secretary |
.he Interior.a copy of its articles of incorpora-
tien and due proofs of its organization under ‘the
same, to the extent of one hundred feet on each side
-of the central line of said road; -also the right to
- take, from the publie lands adjacent to the line of
said road, material, earth, stone, and timber jeces-
* sary for ’ phe construction of said railroad; also
ground adjacent to such: right of way , for station
buildings, depots, ymachine shops, side tracks, turn-
outs, and- water stations, not: to.exceed in amount
tw enty: acres for each station, to the exte
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