# Transcript of Record — Great Northern Railway Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0507%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1942 - **Citation:** 315 U.S. 262 ## Text 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 _ ; - 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 > > | pe 12: .That thereafter, and while she was still the owner _ of said quarter section of land, the said Clissie 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 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. ' §& 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 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 extent of one | - Station for each ten miles of its road. Section. ¥. That any railroad company whose right 6f Way, oY whose track or roadbed upon such right-of-way, passes through ahy canyon, pass, . defile, shall si prevent any other railroad Ritson m .* i a ‘ a. 122°... Raymond J. MacDonald vs. | _ amap of definite’ location of, that portion of its road passing through Glacier County, Montana. ™ In 1907 that’ company conveyéd all its rights of smeaaty to the Great Northern. With the discovery. of. oi] in Glacier County: on lands-adjacent to the right of 1'We are not advised of the date of filings relating _ to other portions of the right of way. es om the use andgoccupancy of the said canyon, pass, or defile; for ghe purposes of its road, in com- mon with the road first located,‘ or the crossing of . other railroads: at grade. And the location of such right. of way through any canyon, pass, ‘or defile | shall not cause the disuse of any wagon or other’ . public highway now located therein, nor prevent’the location through the same of any such wagon road or highway where such road or highway. may: be necessary for the public accommodation ;,and where any change in location of such wagon road i is neces- sary to permit the passage of such railroad through -any canyon, pass, or defile, said railroad company shall before entering upon. ‘the ground occupied by - such wagon toad, cause the same to be reconstructed . at its own expense in the most favorable location, and in as perfect a manner as the original road: Provided, That such. expenses shall. be equitably _ divided between any number of railroad companies - a and using the same canyon, pass, or de- Ree See. 3. That the legislature of the proper Terri: tory may provide for the manner in which private -lands and possessory claims on the public-jJands of . ihe United StateSNmay be’ condemned; and where such provision /shall hot have been made, such con-. _demration may be made in accordance with section ‘three of the actsentitled ‘‘An act to aid in the con- struction of a railroad’ and telegraph line from the o . 4 United States of America . . °.128 way, the nature of the estate in the haaie granted by Congress for right of way purposes has become a question of considérable importance. The coni- pease and answer in the suit were so drafted as Micnstei River to the Pacific Ocean, and to secure to the Government the use of the same for postal, military, and other purposes, approved July first, eighteen ‘hundred and sixty-two,’’ approved J uly second, eighteen hundred: and sixty-four. Section 4. That any railyoad company desiring to secure the benefits of tise shall, within twelve months after the location of: ary section- of twenty miles of its road, if the same be upon surveyed : lands, and, if upon unsurveyed Jands, within twelve months ‘after the survey thereof by. ‘the . United States, file with the register of the land office for the district where suclfland is located a profile of its road; and upon approval thereof by the Secre- tary of the Interior the same shall.be noted upon’ the plats in Ssaid* office; and. thereafter all suéh lands over. which such right of way shall pass shall | 3 be disposed of subject to such right of way; Pro- vided, That if any. section of said road shall not be completed withi five years after the location of . said section, the rights herein granted shall. be for- . a as to.any such uncompleted séction of said” roa Sec.:5.. That this sal g" val not apply to any lands within the limits of any itary, park, or Indian . reservation, or other lands specially reserved from Sale, unless such right of way shall be provided for by treaty eee or by act of ee: thereto- fore passed. See. 6. That Congress hereby reserves the right ‘at any time to alter, amend, or repeal this act, or any ‘part thereof. : Approved, March 3, 1875.”’ ~ ia to present the question whether the railroad owns the underlying minerals, or whether by the terms of . the 1875 act subsurface rights were reserved to the _ in the trial ¢ourt, and from the denial oO tion he appeals. His grievance will be eonsidéred later in the opinion.. 124° | Raymond J. MacDonald vs. United States.’ The court granted the government's motion for judgment on the pleadings, thus*resolv- é ing the dispute in favor of the United States. Appellant MacDonald sought leave to . is peti- “Counsel have pee in the briefs a wealth of ‘: material bearing on the subject of the nature of a ‘railroad’s interest in its right of way. It is not our. _ purpose, however, to give more than pagsing notice tervene — to the authorities cited; the search need not take us: ‘so far afield. Enough to say that as a general-rule a railroad company is recognized as having some- at common-law. Its right te the exclusive occupancy of the surface, and so much of the subsurface as is. essential fot-railroad purposes, has been said to. be as absolute as that of an owner in- fee, subject only ie by reason of. non-user. Most of the modern deci- sions in the states go no farther than to recognize an exclusive easemeut: or a cualified. fee in the sur- fac¢. For good statements of the view see Penn- thing of greater dignity than the easement. known : .. to the possibility of loss or termination of, the right: | sylvahia $. Valley R. Co. v. Reading Paper Mills, 149 Pa. 18, 24 Atl. 205; Kansas ©. R. Co. v. Allen,’ 22 ‘Kans. 285; Smith v. Hall (Ia.) 72, N. W. 427, 428. On the other hand, counsel for the Great : United States of America ° 195 oe Northern call attention to. many state statutes or _ special: acts, antedating 1875, permitting railroad companies to acquire a fee simple estate in their | rights of way. It is claimed that the majority of. the not very numerous state decisions upon this question, prior to 1875, upheld the view that: a rail-_ road has the fee in the land over which its right “Ss way passes.” We assume this to*be trud So much for the general laav on the subject. It i is. | obvious that much depends unon the faets of each ease, the terms of the governing ‘statute or the Ww ording of the particular grant or conveyance. Cf. : Carter Oil Co. v. Welker, 112 Fed. (2nd) 299. _ It is the contention of the Great Northern that the estate conveyed by the various federal grants is a fee simple ownership in the land. itself, subject only to the condition subsequent that it be used for railroad purposes. For this proposition it relies con- fidently on decisions of the-Supreme Court in which the estate or interest acquired ‘is de@ribed as, a limited fre. Thus‘in Northern Pacific Ry. Co, v. é Townsend, 190 U. S. .267, the court .said of the. _ tight of ‘way granted to the Northern Pacific under the act of July 2, 1864, 13 Stat. L. 365, that ‘‘in effect the grant was. of a limite# fee, made on An implied condition of reverter in’ the event that the company ceased to. use or retain. the land for the purp&se for. ‘which it was ene Ber Similar lan- / G- r + *For authorities seatbie with ‘the genéral subject : see footnote to Magnolia Petroleum Co. v. Thomp- son, 106 Fed. (2nd), 217, 227. —- 1. ha > 26 » Raymond J. MacDonald vs. guage is found in other opinions‘of the-court.’ It ' would-serve no useful purpose to aindertake here a statement of the facts of these cases or of the way . ‘- which the questgen of title arose; enough to say. at in'tione of them was, the court confronted.with — the question of the ownership of underlymg®min- ~ erals. We do not believe the holdings are decisive of that question. So far, however, a8 concerns the surface area embraced in. the federal right of way’ grants, it may be taken as settled that the title of the railroags is the equivalent of.a fee, limited.only by. the possibility of reverter. One. of this group of cases; Rio. Grande Western R. Co. v. Stringham, . 239° U. S. 44, directly involves’ the 1875 act, and special consideration’ will be given it — in the . opinion. . an The grants prior to 1871 inoladed jean acre- ° ages in additién to the right of way, The largest, ' the donation to the’ Northern Pacific, embraced the 20 alternate ode aemmpered, sections of. public Jands _ *Missouri’ K. & v. R. i v. Nias i52 U. - 114; Missouri K..& T. R. Co, v. Oklahoma, 271 U.S 303; Noble v. Oklahoma City, 297 U.-S. 481, 494: Clairmont v. United States,@25 U. S. 551, 556; Buttz v. Northern Pacific R5€o., 119 U. S. 55, 66; Choetaw O. & G. R. Co. v. Mackey, 256 U. 8. 531, + §38; Noble v. Union River Logging R. Co., 147 U.S. 165; United States v. Michigan, 190 U. S. 379: Northern Pacifie R. Co. v Ely, 197 U.S. 1; Stalker v. 0. S. L., 225 U.S. 142; Great Northern R. Co. v. Steinke; 261 U. S. ‘119. ‘Compare Railway Alling, 99. U. S. 463, 475 (1878); Smith v. Town- ‘send, 148 U. 8. 490, 498-499 (1893). . ‘United States of Aindrics: 1m on each side of the/road, or a total of about 40,- 000,000 acres. It’ is a matter of history that this lavish policy had met with public disfavor prior to the adoption of the’ general right of way act of 1875* The change in public sentiment is reflected in ‘ a resolution passed by the lower house of Congress — March 11,°1872. The’resolution declares that in the o judgment of the house, ‘‘the policy of granting sub- sidies in publie lands to railroads and other corpo- rations ought to be discontinued, and that every consideration of public policy and equal justice to the whole people requires that public lands should be held for the purpose of securing jomesteads to actual settlers, and for educational purposes, as may be provided by law.’* At the time of the passage of — the, general right of way act the title to the great. . bulk of the lands in the western states and terri- . tories was in the United States, and if railroad con- struction was to continue at all’ it was essential to “grant ¢ a right of way. over the public domain for this purpose. ‘The 1875 grant was not in the nature of a bounty ; ; rather it was legislation caleulated to pro- mote settlement and to “enhance the value of the public domain made accessible by the building of railways. United States v. Denver & Rio Grande ' ‘See “Land Grants’’ 9 Raerelopsiiiia of the So- cial Sciences (1933); page 35; “Land Grants to Railways’’, 3 Dict. Am. Hist. p. 237 (1940). *Cong.: Globe, 42nd. Congress, 2nd_ sess. 1585 ’ (1872). Cf. also R. Rept. No. 10, 48rd Cong., 2nd Sess, (1874), Te ae 6 128 Raymond J. MacDonald vs. v Ry. Co., 150 U. S. 1. At the outset, it is not lightly to be assumed that Congress intended to grant - rights more extensive than those necessary to enable. the roads to build over the public land. We turn now to the provisions.of the act. It opens with the statement that ‘‘the right of way threugh the’ public lands-of the United States is hereby granted to any railroad company * * * to _ the extent of one hundred feet. on each side of the central line of said road’ * * *’’ Section 4 pro- — vides for filing with the local register of a profile of ‘the road, and for the notation of the same upon the plats in his office after approval by the Secretary of the Interior.. It was early held by the Secretary that the 4th s&€tion provides a method of securing ‘the benefits of the act in advance of construction: and that in those,instances where the road had actu- ally been built over the public land it was unneces- - e sary to'file'a map of definite location. Dakota C. R. Co. v. Downey, 8 L. D. 115. This administrative | hoiding was followed by the court in Jamestown & Northern R. Co. v. Jones, 177 U. S. 125, and was later applied in Stalker v. 0: S. L. R. Co., 225 U.S 149.. : — The 4th section, after authorizing the procedure above mentioned, significantly provides that “there- "after all such: ‘lands over which such right of way shall pass ‘shall be disposed of subject: to such right of way.”” A provision somewhat similar appears in the grant. to the Portland, Dalles and Salt Lake » Railroad Company, 17 Stat. 52, approved April 12,. ' United States iv America 129 1872; ‘but no provision of the. kind is found in an¥ of the earlier acts. “Elaborate attempts are made to explain away this language,.as, for example, by _. saying that it is.a meré statement of the obvious; but the clause ought to be taken as meaning what it says. If by force of the filing and approval of the profile Congress intended that the. fee simple title should vest in the railroad, surely language so utterly incompatible would ‘not have been employed in the direction for future dispositio. ’ immediately following. Apter words to indicate the intent to convey an easement would be difficult to find. We neéd not labor the point. The act is to be read asa - whole and éffect given, if possible, to all its provi- sions. While in respect of its affording a special ) means of claiming the benefits of the act section 4 may be said to have a-special purpose, there is no « persuasive reason for believing that the clause in question does not qualify as well as illuminate the entire statute. The grantee is entitled to aa: the act liberally - construed to effect the purpose for which it was enacted. United States ‘v. Denver & Rio Grande Railway Co., supra. Otherwise it is t? be construed strictly in conformity with the rule that grants from . the sovereign should receive a construction favor- able to the claim of the government rather than that - of the grantee. ‘‘Nothing passes by implication, and un the language ofthe grant be clear and ex- * plickt as to the property conveyed, that construction will be adopted which favors the sovereign rather y ? 7 ¥ s. : Raymond J.M acDonald vs. aX _ than the grantee.’’, Northern Pacific,Railway Co. v. Soderberg, 188 U. S. 526. And see Caldwell v. United. States, 250 U. S. 14, 20-21... A grant of the underlying minerals would have been an obvious subsidy and it was plainly not the purpose of Con- — gress to. subsidize the roads.* gre noted in Nérthern Pacific Ry. Co. v. Soder- berg, supra, in the grants stibsequent to 1860, em- bracing lands in the then unsurveyed and ‘little | known territories, a reservation was invariably - made of lands suspected of being rich in metals. The Northern Pacific grant, for example; excluded mineral lands, although at the same time it éxcluded | coal and iron from the definition of minerals. True, the reservation contained in these grants was of the land itself, not of the underlying’ minerals; and necessarily the right of way grants were intended to be, effective whether or not the way selected should extend over mineral lands. But for this very reason the settled policy adds color to the belief that the general act of 1875,.was intended as grant- - ing no more than a right of passage. This view of the act is in line with the interpre- tation almost uniformly given it by tlfe department™ . of the Interior. The ’ ‘right of way cireular issued A) - 130 *The right given by the act to ike from the adja- .— cent public lands material and timber necessary:for construction has been held not to authorize the taking of timber for use in the building of rolling stock for operating purposes. United States v. D. & ‘R. G, Ry. Co., supra. . United States of America — a January 13, 1888 (12 L. D. 423) states that ‘‘the act “of March 3, 1875, is not in the nature of a grant. of lands; it does not convey an estate in fee, either i in the ‘right of way’ or the grounds selected for depot purposes.’ It is a right of use only, the title still remaining in the United States. * * * All persons settling on public lands to which a railroad right of way has attached, take me ‘subject “to such,” right of way and must pay for the full area of the subdivision entered, there béing-no authority to make} deductions’ in such cases.’’ The verbiage is repeated in the regulations of March 21, 1892, 14. ; L. D. 338. The phraseology of the revision of No- _ vember 4, 1898 (27 L. .D. 663, 664) is slightly differ- ent, but the grant is said to be merely of a right of use for neeessary railroad purposes, the fee remain- ing in the United States... Perhaps out of deference to the language of the Supreme Court in Northern Pacific Ry. Co. v. Townsend, supra, the grant is’ described in the revision of February 11, 1904, 32. L. D, 481, 482-483, as ‘‘a base or qualified fee giv- ing the possession and right of use of the land for the pxrposes contemplated by kew.’’ But in the ations: of May 21,-1909 (37 L. D. 787, 788), the notion disappears that the estate granted -is a base or qualified fee, and the original thought is re- sumed that the railroad takes an easement only, _ "The present case does not involve ‘the land granted for station and kindred purposes; and con-- cerning that phase of the act we express no opinion. ‘ | - » - 132 | Raymond J. MacDonald vs. the fee simple title remaining in the United States." As was to be expected, the rulings of the Départ- . ment oubeoquent to 1915. become confused © and ‘un~_. egrtain. - We turn now to the decision in Rio Grande West- ern Ry. Co. v , Stringham, supra. The- -opinion was handed down in-1915. The dispute concerned a strip of land claimed by the railroad company asa. right.of way under the act of March 3, 1875.. The defendants asserted title under a patent for a placer mining claim. On appeal.to the Utah supreme court a judgment in favor of the defendants was reversed’ and the ease remanded with a direction to “enter a judgment awarding to. the plaintiff title to a right of way over-thelands in question 100 feet wide on _ each side of the center of the track.’ The trial court - entered judgment. aceordingly. The railroad com- * pany again appealed. insisting that the judgment was inadequate, and that it had a fee le title. The ‘court said that: appellant’ 8 eriévane should have been asserted by petition for a reheating and declined to modify the judgment.. On appeal to ‘the Supreme Court of the United States the judginent was affirmed. In the course of its affirming opin- ion the latter-court said: ‘The right of way granted — by this and similar acts is neither a mere. easement, nor a fee simple absolute, but a limited fee, made on an implied condition of reverter in the event that — ‘See also, as further illustrative of the pgs png interpretation, 32 L.. D. 33 (1903) ; 3 L. D. . 5 (1907): 28 L. D. 412 (1899). : United States of America | mS the company ceases to use or ‘retain the lend: for” fee the purposes for which it_is_granted, —and cairies ©» ° “eS _with-it the ineidents ‘and remedies usually attend-- =~" 3 ing the fee.”” . ges On its facts the case is distinguishable.” If sub-, : ; surface rights had. been in issue, ‘the decision. would hike compel us to reverse the present judgment; but oe subsurface rights were not inyolved, and the judg: ~ : | ment of the Utah court was. properly affirmed as it es. stood. The government was not represented in the pat suit and we are informed that the defendants them- “*~ § JOR selves filed no brief.’ Not having its attention called - gt ~%Y “to significant differences between this and earlier fig grants with which it had dealt, the court merely | : ; paraphrased the language. of former opmions. Now:... 4! . we are asked.to accept the dicta as gospel, despite ae _ its manifold shortcomings even as dicta. We choose ad to believe the statute isa safer guide. ~~ Ben geri The act of May 21, 1930, 46. Stat: 373, 30 USCA gs ae §301, provides that the Secretary of the Interio® 4 Bee ie may, if ‘he deems it in the public interest, ‘lease — res deposits of oil and gas in.or under lands embraced in railroad or other rights of way acquired under he ook any law of the United States, whether the’ same be. eee a base fee or mere easement.’” This statute is little Ry Bie ‘more than a self-serving declaration, as it was en-. a acted at a time when the ownership of the under- re fans -lying oil had become a subject of controversy. How-. "ae ever, an earlier act of June 26, 1906, 34 Stat, 482,.is. yas of some value in the interpretation of the 1875 grant. That act, which declared a forfeittire of un- [3 7 a eee 4 ° | | % ba : hes : ' ¢ ‘ 134 7 | Raymond J MacDonald v vs. used rights of way, refers #o the grant. as an ease- ment. ‘The petition of iach MacDonald for bined to. . intervene alleged that a certhin quarter section of _ land, deseribed’ in the government’s complaint as. - being part of the land crossed by the Great North- ern’s. right of way, had been the subject of a home- ‘ stead patent to his predecessor containing no excep- tion of the oil or other minerals under it. The whole area within the exterior boundaries of the quarter section had; petitioner: averred, been included in the patent, subject to the railroad’s right, of ‘way. It was alleged that both the goveanment and the Rail- road: Company claim title to:the minerals underly- ing the right of way as it crosses this quarter sec-. tion, but that. the ownership thereof is jin. the petitioner -by virtue of the. homestead patent; that the interest of petitioner would not be adequately represented by plaintiff or defendant, and that peti- -- tioner is so.situated as to be adversely affected by a decision ‘arrived at, without the complete. presenta- tion of his interest. The petitioner further alleged that his claim involved. questions of law which were the same as those involved in the case between the plaintiff and the defendakt, and that under the pro- visions of Rule 24; (a) and (b), of the Rules of Civi! Procedure, petitioner was entitled to come in. Leave was denied. Move We see no error in the elias: The sole issue in the case was whether the general right of way grant _ inelnded subsurface poner The entire ms of , : / Oe U nited States of donde as 135 way, . 80 far as it rested on the grant, was involved ‘in the suit. The government alleged only that under . the act the Great Northern had acquired no interest: .in the underlying oil deposits, but that these. re- ‘tained the property of ‘the United States, and sub- ject to its éontrol and disposition. In no sense was the interest of the United States adverse to that of. . “MacDonald. For the purpose of the suit the two interests were identical. A decision against the rail- road would determine only the. baste question, leav- ; ing the rights of subsequent” patentecs of the gov- ~ernment.to future adjudication. On the other hand, were the holding to be against the government, the decision would mean that the Unit-d States retained rio mineral rights which it could. thereafter have tonveyed to the homesteaders and other patentees * along the right of way. To that extent, only, peti- tioner has an obivous interest in the suit and in an outeome favorable to the government.’ : Subélivision (a) of Rule 24, permitting: interven- _ tion as a matter-of right, provides, so far as perti- nent here, that the application shall.-be granted | “when the representation of applicant’s interest * by ° existing parties is or may be inadequate and the ap- Plicant is or may be bound by the. judgment in the, action.’’. Both conditions. must be shown to exist. There is no reason to believe that the government’s representation of MacDonald's interest is inade- quate here, or that-it was inadequate below. For that matter, both here’ and below, he presented an elaborate briet on the merits of the case and was , 136. RoymondJ MacDonata Us. . heard prea as fully as though he had been al- lowed to intervene. On the whole, the government would seem to have a vastly seadiet interest in the — success of its suit than the intervener. Other’ pat-’ entees along the right of way have the same: claim of right to intervene as MacDonald has, The gov- ernment argues. with much force that to determine subsequent rights it would be necessary to consider numerous types of patents and statutes and ‘many classification orders, all of which would become im- material if the decision in the main case were ad- verse, The purpose of ‘the action was to determine once and for all. the scope of the 1875 grant, and this ought to be done before an attempt i is made to | litigate, the effect of subsequent patents. , Assuming that denial of leave to intervene under subdivision (b) of. the Rule 1s reviewable, what has been said disposes of that branch of the inquiry... ° ~ Affirmed. Mees Wilbur, Circuit Judge: I dissent. The United States brought this action - to enjoin the Great Northern Railway from drilling for and removing oil and gas underlying its. right of way uporf the ground that the right to: develop such. oil and gas was not granted by the United States to the defe t Railway Company by the _act of March 3, wh 2), under which the right of way was sec by the St. Baul, Minneapo- » - J . ‘United States of America mee at lis and Manitoba Railway Co., whieh was subse- quently conveyed by it.to the Great Northern Rail- way Company. The - trial court A uaecie the. in- — junction. .. od - The principal question taveived on this appeal is whether or not the act granting the right of way entitled the grantee to use the land within its right of way for the purpose of producing ae The title_granted by- various acts: of Congress to railroads -for their rights of way is variously re- ferred to as a terminable or base fee, a revocable fee, a fee on condition. ' However characterized, the view that the right to develop oil is granted by the private grant of a rail- road right of way unless limited to an easement f6r mere right of passage, is supported by a number of decisions: Nelson v. T. & P. R. Co. 2 So, 754, 152 La. 117; Crowell v. Howard,A Tex.) 200 S. W. 911; Quinn v. Pere Marquette R. Co., 239 N. W, 376, 256 Mich. 143; Brightwell v. Intl. Grt. N. R. Co., 49 S. W. (2d) -437, 121 Tex. 338; Kynerd v, Hulen, 5 F. 2d 160 (5th Cir): Atty. General v. Pere Mar- quette R. Co., 248 N. W. 860, 262 Mich. 431; Rice v. Clear Spring Coal Co., 186 Pa. St. 64, 40 Att. 149; Stephenson v. St. L. S.. Ww. R. Co., 181 S. W. 568; Stevens’ v. Galveston H. & S. A. R. Co., 212 S. W. 639 ; Carter Oil Co. v. Welker,. 112 F. 2d. 299. Simi- larly where land is.granted for use for school pur poses it has been held that the grantee cannot be enjoined from drilling for or removing oil under- Ss ; 138 : Raymond J. PlacDonald vs. _ lying the land. Dees v. ‘Chauvronts (Ill), 88 N. Ez. 1011, 240 Til. 486. We are concerned, however, with the intent of Congress as disclosed by the Act of. March 3, 1875, | “supra, making an offer'to grant a ‘right of way across public land to any railroad desiring to’ CTOSS the public domain which complies with the terms ‘of | ‘the- act concerning the location of its railroad. The - immediate question is whether Congress intended ’ to reserve the right: to produce oit from the lands within the right of way either for its own use or - for conveyance to subsequent patentees or lessees. - As stated in the main opinion the government con- | cedes that in many prior grants of rights of way to — ‘ railroads, it was the intention of Congress to con- vey a fee. “limited only by ‘the possibility ef re- verter’’. The view of the courts thus conceded, may be- appropriately stated by reference to the decision © _ of the Supreme Court in New Mexico v. United _ | States Trust Co.,.172 U. S. 174, where it had under — consideration the right.of the territory to tax im- ” provements upon the railroad right of way granted by Act of Congress of July 27,. 1866, 14 Stat. 292, which depended ‘upon the nature of the title granted to the railroad company, one side contending that it _ gave a mere right of passage and the other that the fee was granted or, if not: granted, “‘such a tangible and corporeal property. was granted, that all that. . was attached to it became a part of it and partook of its exemption’ from taxation.” Referring to a Ye ‘ 4 « weil decision of the Supreme Court on that aia the court said: : - “So this‘court in Missouri, Kansas & Texas Rail- way V. Roberts, 152 U. S. 114, passing on a grant to. one of the branches of the Union Pacific Railway “Company of a right of way two hundred feet wide, “decided that it conveyed the fee. The effect of this. . United States of America 139 @ decision’ is attempted to be avoided by saying that -_ ; . -the distinction between an easement and.the fee was ‘not: raised.” In reply to that argument, the court said : “