Hunnewell v. Burlington & M. R.

12 F. Cas. 893, 3 Dill. 313

• Court: U.S. Circuit Court for the District of Nebraska
• Decided: July 1, 1874
• Status: Published

Opinion

•DILLON, Circuit Judge.

The taxes for the year 1872 upon lands granted by congress to the Burlington and Missouri River Railroad Company in Nebraska, and levied thereon by authority of the state, are sought to be restrained upon two principal grounds. One of these is temporary, and applies alone to the taxes of 1872; the other is permanent, and applies, if well founded, to the lands so long as they shall remain unsold and not disposed of by the railroad company. We notice the last objection first, for if it is sound the other is immaterial.

The Burlington Company’s grant is contained in sections 19 and 20 of the act of July 2d, 1864 (13 Stat. 356, 304), this being the amendatory act under which, in connection with the original act of July 1, 1862, the Union Pacific Railroad and its branches were constructed.

Section 3 of the original act of 1862 made a grant of lands to the Union Pacific Railroad Company, within certain limits on each side of its road, with a proviso that “all such lands so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.” This proviso was under consideration by the supreme court of the United States in the case of Kansas Pacific R. Co. v. Prescott, 16 Wall. [83 U. S.] 603. It is maintained by the plaintiffs that the effect of that proviso, as construed by the supreme court, is to exempt from taxation all lands granted to the companies by the acts of 1862 and 1864, which have not been actually sold or otherwise absolutely disposed of; and it is also maintained that the mortgage of the lands by the company is not such a “sale or disposition” of them as will defeat the right to settle upon and pre-empt them. After a careful consideration of the language of sections 18, 19, and 20 of the act of 1864, upon which the lights of the Burlington Company rest, and a comparison of it with the language used in respect to the main compauy and its branches, my judgment is that the grant to the Burlington Company is an independent grant, not made by referring to the the grants to the other companies, and, therefore, that section 3 of the act of 1862, whatever may be its scope and effect, has no application to the Burlington Company. This last road was not a part of the original scheme; it was to have no government bonds; and was simply aided as many other roads in Iowa, Wisconsin, Minnesota, and other states had been, by a grant of public lands. As to the effect of the proviso in section 3 upon the.status of lands to which it applies, see the case of Union Pacific R. Co. v. McShane [Case No. 14,382], decided at the same time with the present case.

The other alleged ground of exemption from taxation is that, at all events, the lands were not taxable fdr 1872. because the company’s right to them was not perfected until sifter tlie time when, under the laws of the .state, property can be taxed. The proofs show that the road of the Burlington Company had been constructed and accepted as being complete for the distance of one hundred and forty miles by December IS, 1871. The balance of the distance, fifty and three-fourths miles, was accepted as complete November 4, 1872. On the 7th day of March, 1872, the company paid all the costs of surveying the lands, including field work and office work, for the first one hundred and •forty miles, and the cost of surveying the balance of the lands on the Gth day of May, 1872.

[NOTE. An appeal was then taken by the plaintiff to the supreme court, when the decree was affirmed in an opinion by Mr. Justice Miller, who said that under the uncertainty which existed as to what the “cost of conveying” is, which is mentioned in the act of-July 2, 1864, and there being no decision of the state supreme court or well-settled practice as to the meaning of the Nebraska statute fixing the last day to assess lands for taxation, the court would refuse to enjoin the county officers from collecting the tax. 22 Wall. (89 U. S.) 464.]

The plaintiffs claim that, under the revenue laws of the state, no property can be faxed which becomes taxable after the third Monday in April, and that this time ended by the 17th day of that month, in 1872, when the board of equalization closed its session. And their further claim is that, as the register’s and receiver’s fees were not paid until the 19th day of April, 1872, the company had no taxable interest in the land until this date, which was too late to make the land •taxable for that year; and to support this position the case of Kansas Pacific R. Co. v. Prescott, 16 Wall. [83 U. S.] 603, is relied on.

Section 21 of the act of 1864 is in these •words: “Before any land granted by this act shall be conveyed to any company or party entitled thereto under this act, there shall first be paid into the treasury of the •United States the cost of surveying, selecting, and conveying the same by the said company or party in interest, as the titles shall be required by said company; which amount shall, without any further appropriation, stand to the credit of the proper account, to be used by the commissioner of the general land office for the prosecution of the survey •of the public lands along the line of said road; and so, from year to year, until the whole shall be completed, as provided under the provisions of this act.”

The proofs show that the lands for the first •one hundred and forty miles were fully earned in 1871. and that the company was then entitled to patents therefor, on the payment of •“the cost of surveying, selecting, and convey-' ing the same,” and that this payment was made on March 7, 1872; and if the right of the company to the lands was then perfect, it is conceded that, if taxable at all, they were taxable for the year 1872. It is said, however, that because the register's and receiver’s fees were not paid until April 19, the lands were not before that time taxable.

It does not appear from the proofs when the certificates and patents were dated or delivered to the company, and, whatever may be the facts in this regard, I am of •opinion that the fees to the registers and receivers of the local land offices, under the «.et of July 1, 1864 (13 Stat. 335), are not embraced within those required to be paid by the aforementioned section 21 of the act of 1804. These are fees for “locating,” not for “selecting” and “conveying,” the land. But, again, it may be remarked that the cost of surveying was paid in time to make the lands taxable; the work of selecting the lands was done by the company without, so far .as shown, any expense to .the government, and for the cost of conveying it does not appear that the government makes or has any claim.

The result is that the bill in No. 284, which relates to counties along the first one hundred and forty miles of the defendant company’s road, must be dismissed, and the bill in the second case, as to lands west of the west line of range 7, in Olay county, where the road was not completed until the fall of 1872, must be sustained, and the injunction made perpetual; but as to lands east of said west line of range 7, in Clay county, the bill must be dismissed. Decrees accordingly.