SOuTHERN PAC. B. CO.
tl.
S'.U.NLEY.
263
only would he lose the benefit of this testimony, but he would also be delayed,and might be compelled to Beek the plaintiff in another jurisdiction. The of the cross-bill is to enable the defendant to assume an aggressive attitude in the proceeding, and to use it as a means of settling and closing up the entire controversy on which it is1ounded. This object seems proper and commendable; and we do not find anything in the rules governing equity pleading, 'which forbids its allowance. The decisions in which ithasbeel1 held that cross-bills come too late after answers have been filed---that they should be presented as soon as practicable, so as to avoid delaying the plaintiff's efforts to obtain a trial,are not applicable to the circumstances of this case. The plaintiff's motion must therefore be dismissed and the defendant's allowed. ACHESON. Circuit Judge, concurs.
SOUTHERN PAC.
R. Co.
tI. STANLEY
et' 'aZ.
(CfrcuU Court, S. D. CaH,fornfa. February 8, 1892.)
1.
Qt1IJITDfG TITLB-RAILROU L.ullD GBANTS.
I. BAlDI. ' It would befnequitable to regard such a company as the legal owner for the pnrpose of imposing taxes upon it, whUe denying it the same standing with respect to the enforcement of its rights. 8. SAME-FOLLOWING STATE STATUTES, Code Civil Proc. Cal. § 788, J?6rmittlng actions to quiet title to be brought by persons not in possession, is applicable to suits in the federal courts. ·· RAILROAD LAND GRANTS-PASSING OJ' TITLE.
The rule that a suit to quiet title can only be maintained upon the legal title does not apply as against a railroad company, with respect to lands granted to it by the government, when it has done everything required to entitle it to the grant, sinoe it is powerless to compel the government to issue a patent therefor.
Under Act Congo March 8, 1871, granting lands In aid of the Texas Pac11ic Ranroad Company, the full equitable title passed at the time of filing the map of deftnite location of the road, and, as against such title, no rights could attach between that date and the date of the order withdrawing the land from market. A bill to quiet title, alleginlt that the United States had full title at the time complainant's grant attached, and that defendant claims under a patent issued by the. state 118 for 1l\nd to Which the state was entitled in Heu of certain other grants, shows a cloud upon the title, although it is .DOt alleged that such lands were ever listed to the state; since the state patent creates a presumption that all steps necessary to its issuance have been c\>mplied with. ' ON TITLE.
15. BAME...,..CLOUD
6.
SAME-LU4ITATI.ONS-INTEREST OF GOVERNMENT.
T.· SAMB-LAOBES. . . In BJi action by a railroad company to quiet title to lands granted to it by the United Stattjs no.laches can be imputed to the company with respect to time pass-
In an action to quiet title to railroad grant lands, In respect to which the company bas perfpJ'med requisite condition.s·.and has constantly BOught, witbout suocess, to. obtain a patent, against one claiming under a state patent issued as for lands selected in lieu of other grants, theO.nited States being legally liable to make . the company's ,title good, hBII such an interest in the suit, afthough not a party, as will prevent limitatiQn from running against the company'. cause of action.
ing betweehthe date of the grant and the time of complete performance of the conditions fQr, though the title passes as of the date of the grant, it only does BO by relation, upon the performance of the conditions, and before performance 110 such suit could be malntained.
264 ",' Suit by the Southern, Pacific R!l.ilroad Company against StanleY,$ud others to quiet title to lands. Heard on demurrer to the bill. Joseph D. Redding and Creed Haymond, for plaintiff. , Houghton, Silent &: Campbell, for defendants. ltoS$, District Judge. By the bill filed in this case the complainant seeks to have its alleged title to the land in controversy established, and to obtain a decree that the patent under which the defendants assert title to the premises is null and void, and 6njoiningdefendants from claiming title thereto thereunder, or at all. The demurrer raises a number of objections to the bill. ,The title claimed by the complainant comes from the act of congress of March 3, 1871, entitled "An act to incorporate the Texas Pacific Railroad Company, and to aid in the ,construction of its road, and lor other purposes." The bill shows that the line of road thereby authorized to be located and built was located and built by the complainant, and that it thereby earned the granted lands. It alleges that on the 3d day of April, 1871, a map showing the definite location of the road was filed in the office of the secretary of the interior and in that of the commissioner of the general land-office; that the lands in controversy are within 20 miles of the line of the road as so definitely located and afterwards constructed; that at the time of the definite l()cation of the route they had not been granted,sold,l'eserved,occu:pied by homestead settlers,pre-empted, or otherwise disposed of, for any'purpose whatever, and that the United States had full title thereto on that day; that subsequent to the said 3d day of April, 1871, one J. Q; A. Stanley "made a location upon said land. as lieu'land, in lieu of a portionof a sixteenth section of schoollaod lost to the state of California under the grant of congress to it of March 3, 1858;" that thereafter the land was awarded to Stanley, by the state of California; and that on the 24th of July, 1874, the state issued to 'him its patent therefor, undeJ' which the defendants assert title to the premises. ' ,:Thefirst objection urged to, the bill on the part of thedefendarits is that it does not appear therefrom that no other right than that set up in the bill attached to th,e land prior to the order withdrawing it from · ,ket, which the bill alleges was made on the 10th day of May, 1871. The answerto this is that, according to the averments of the bill, the title ofthe complainant attached tothe land, not at the date of the order for its withdrawal from market, but at the time of the definite location of the route ,of the road. Sioux Cuy &: St. P. R. Co. v. Chicago, M. &: St. P. Ry. Co., 117 U.S. 408, 6 Sup. Ct. Rep. 790; St. Paul So' C. R. Co. v. Winona &: St. P., R. Co., 112 U. S. 726, 5 Sup. Ct. Rep. 334; 'Van Wyck v. Knevals, 106 U. S., 360,1 SuI" Ct. Rep. 336. The land in question, then, being, according to the allegations of the bill, vacant,li'nappropriated public ·land of the United States, became,' by, virtue of the congressional grant, the property of the complainant. True, the dry, legal title remained in ,the government; and this fact is the ground of another objection to the
'bill.'
"
,
SOUTHERN PAC. R. CO. v. STANLkY.
265
It is said that a suit to quiet title can only be maintained upon the legal title. . Undoubtedly the general rule in equity practice is that such a bill cannot be maintained without clear proof both of the legal title and possession in the complainant. Frost v. Spitley, 121 U. S. 552, 7 Sup. Ct. Rep. 1129. But this rule, I think, should not be held to apply where, as here, the grant is from the governmentj where all of its conditions have been complied with, the land earned, and become taxable to the granteein the state where it is situate; where the grantee's equity nOthing remains to be done but the conveyance has become of the dry, legal title, which the grantee is powerless to compel the ernment to make. See Frost v. Spi11ey, 121 U. S. 556, 7 Sup. Ct. Rep: 1129. It is certainly not in accordance with equitable principles to regard the' complainantas the legal owner of the land forthe purpose ofim;:' posing the burden of taxation upon it, (Van Brocklin v. Tenne8iiee, 117 U. S. 169,6 'Su'p. Ct. 'Rep. 670,}arid not consider it in the same light "'hElli it comes to seek the enforcement of its rights respecting thepl'ope'rty: B.t'the rigid rules of law, (lomplainaqt could not be regarQ-e? as 0W1;ier until the conveyance to it of the legal title from, the and theretorein this court it could not maintain an action Of (;iject'nierit far the recovery of the land.. But this is an additional c?urt of,equityshould regard the complainant in the light ahead,f ca:ted:. ' .' .' . . . , . ... ,', It is also contended that, ,as the bill fails to show of the la:nd' in complainant, it cannot be maintained. The, point good but· for the statute of California permitting such actions to be maintained whether the complainant be in or outof possession. Code Civil Proc: CaL§ 738j People v. Center, 66 Cal. 551,5 Pac. Rep. 263, 6 Pac. Rep; 481; Castro v. Barry, 79 Cal. 446, Rep. 946. Such a. state stat:enlarging, as it does, the class ofcases in which relief was formerly afforded by a court of equity in quieting the title to real pro'il6rty, is applicable to. and may be administered in, the federal courts. Holland v. Challen, 110 U. S. 15, 3 Sup. Ct. Rep. 495. . .. It is further urged that the bill does not show that the claim set up by the defendants casts a cloud upon the complainant's allegedtitlej was ever se, and this because it is not alleged that the land in lected by the state or listed to it by the .United States. the bill does allege that the United States had full title on the day the ant's grant attriched to the land, an'd that thereafter the state issued t6 Stanley a patent therefor as land to which the state was er,titled in lieu of a portion of a sixteenth section granted to it by the act of cOngress of March 3, 1853. The government of the United States is the origilial source under which both complainant .and defendants claim title; the complainant under direct grant to it from congress, and der a congressional grant to their grantor. "Every instrume.rit purportingby its ,terms to convey land from the. original source of title, however invalid, creates a cloud upon the title, if it requires extrinsic evidencetoshow its invalidity." . Pixley v. Huggins, 15 Cal. 128. A patent frolU theatate for landS in lieu· of a sixteenth or thirty-sixth section
266
FEDERAL, REPORTER,
v9l ,4.9.
partment could n'otsne thi' Rovtlrnment. Besides. -we do not think the government: is wholly witbouHbterest. If these lands are withintblHltatut0rllgrant. the has earned them by a full per· of its: ll,n4'an indefeasible J'ight to a patent, vestflll.:rhe gQve!-"nment.
granted tQ.it by the act of. congress, of March 3, 1853,shows at leaet a prirna'JacU title in which, he could .recover in ejectment in of The patent is attended with thepreswnpti9n thataverfetep issuan,ce has been coml,l!-Ild t? tlH\,state. Unless .this is so, It IS o/fiuch an lUfitrument. The eXIstence of such a ,patellt 4L cloud 'uponthe,truetitle. Van Wyck v.Knevals, 106 U.S. 37Q,1,Sup. Ct. 336,,' " Another objeption urge<l by the defendants to, the bill is that it is C?f time. It is therein l;Illeged, in effect, that,. ever since barred by totbe land ,In question, complainant the grant to()prpplainant continuously, out in vain, endeavoring to prohas been persistently land department of the government a patcure from the o@cers of ent for this, among other lands by ita. grant., Counsel for defendants conwnd' that :qOInplainantwasduring all of time' its the government does not expuse qeJAy in bringing. the present suit agninstthe' defendants, Which WaJ5 not CQmluence(until FebrUaT,Y 1890; that complainant had the same title to on April 3, 18'11, that it had that ita to maintain a suit of this naton February. 20, J890j' when the· state patent was.issned, 00. the ute, if it ever,existed, 24th of July, 1874, and that complainant's loo.g delay in asserting its rights against o:Qght tp bar, the suit. It is true the right to mainfainthe suit would hare accrued to :complainant upon the issuanC,e the 'state if th\! 'bad then,been earned by tAe buil,ding of the roag;, otherwise not", Complainant's title. only became perfect by the on its, part with a)1 of the conditions of the grant,and whenthatwal3 dpne" the tWe related, blJ,ck to the date of Jhe.grant.. , ,It does the, bill tpe the com" plalnant to the land In queatWnthus became perfect prIOr to January, 1878. But, independ'ent 'of this consideration, ifs,eemstome that the reason of the court fordenyibg the sO\lD'dness of a. like position of counOJ,trtner, (deciped in this circuit by Mr. Justice sel in the case of U. FiELD. aIld Judge SAWYER,) (Cal.) 88 :Ired, Rep. 1, applies to thl:\ presIt is true'th,e suit there was brought in the name of,the lrnited States, but it in the interest pf the railroad company, .y,' procure a tope listing over to the :stJ!,te of certain lands 13elected by the state ,in lieu of certain sixteentq. and, sec" tIons, and patents by ,the: state therefor; it beclaimed that. were in :tne .grant to the railroad «l9 mpllny. The?ourt ' . i ' ·.:. ' ,,"There .bel'ln on the pal't of the company. It bas trom the first. beenpressmg Its clalmel1m,pstly beforll could. not go any faster that! the businElssand course of procedure of the de·
or
UNION LOAN & TRUST 00. tI. SOUTHERN' CAL. MOTOR ROAD CO.
267
in that case, is legally bound to make a good title. It is legally liable to perfOfm its part of the contract, 'issue t'hepatent. as required by the statute. The United States are 'therefore responsible to. the railtoad company for the land, or its full value. By the mistake of their officers, tlu'lY have put it out oftheir power to comply, with contract, and they are interested to the full value of the land insettfng aside the listing and patents n'sulting from their mistakes, or having'them judicially adjudged inoperative and void, in order that they may relieve themsel VI'S from their liability."
Time does not run against the government when it is a party to the suit, unless it be a Illere nominal party. The reason for this rule would seem to apply where the suit involves, a liability of government for its failure to do what 'the complainant bas persistently and continuously sought to get it to do, and wha.t complainant seeks by the suit to accomplish. . Demurrer overruled; with to defendants to .aDswer within the usual tUne·
.Umol,'i Lou &:
TRU&T
Co.
tI. SOUTHERN
CAL.
MOTOR RoAD
(Circuit COUrl,B. D. California. February 8, 18l19.) 8TBJDET RAJLW.us-FoRECLOSURE OJ' MORTGAGE-REOKlVERB.
In tile foreclosure pf a mortgage aA'ainst a street-railway company, tbe J'8Ceiver will ,not be directed to pay oqt money iohis hands for the purpose of Kradlng and macadamizinA' the street along and between the rails, in accordance with an ordu of the tpwn trustees, when there is no lien in favor of the town for such an expenditure.
In· Equity. Suit by the Union Loan & Trust Company, trustee, against the Southern Calilornia:Motor Road Company, to loreclose a mortgage. Appliclltion by the city of San Bernardino for an order directing the receiver to payout certain moneys {or, grading and macadamizing the street. Refused. . . Rolfe &F'reeman and John BroWlt, Jr., for city of San Bernardino. S. M. White, for receiver. ' E. H. Lamme, for complainant. Ross, District Judge. This is an application by the city of San Bernardino for an order directing the receiver in possession of the property of the defendant company to payout certain of the moneys in his hands, as such receiver, for the purpose and under the circumstances hereinafter stated. A part of the property of· the defendllnt complmy of which the receiver took possession under his appointn1ent was a street railroad o,n E street. in said city, built by R. W. Britton, the assignor of the motor road company, under and by virtue of an ,ordinance of the city granting him the right to do so, which oid not the kind or character of rails to be used, or how they should be laid, out did require that7"""" "Said Buttonshallmacad!.'mizethe eritire length of the street used by J;lja tracks between the f'dils, Ilnd two feet on each side of said' track; also be.'