Wade, C. J.
This is an action instituted by the United States, the appellant, against the Northern Pacific Railroad Company, the respondent, for an accounting, and to recover the sum of $1,100,000 for certain timber, logs, and lumber, which the appellant alleges were cut, taken, converted and carried away by the respondent during the years 1883,1884, and 1885, from certain non-mineral nnsurveyed lands belonging to the appellant and respondent, as tenants in common, situate in the territory of Montana, between the' western line of said territory and McCarthy’s bridge, over the Hell Gate river in Deer Lodge county, and on either side of the line of the railroad of the respondent, and not more than twenty miles distant therefrom, and for a perpetual injunction enjoining the respondent from cutting or removing timber from said unsurveyed lands, held by the appellant and respondent as such tenants in common, and from injuring, wasting or disposing of the same. The court below sustained a demurrer to the complaint, and the appellant abiding the same, judgment was rendered for the respondent, from which the plaintiff appeals to this court. The foundation of appellant’s action rests upon the proposition — -First, that the United States and the Northern Pacific Railroad Company are tenants in common of the [361] lands from which, the trees and timber in question are alleged to have been taken, and second, that an accounting, as between such tenants in common, is a proper remedy.
1. "Whether the relation of tenants in common exists between these parties depends upon the provisions of the act of congress which gave to the respondent company life, and the rights and relations thereupon arising. The charter of the Northern Pacific Railroad Company is not only a law, but is also a contract, binding alike upon both parties, and giving to each certain rights and imposing upon each certain obligations, which rights thereby become vested, and which obligations cannot be escaped or avoided. There was ample consideration for this charter and contract. The railroad in contemplation was of national importance. The purpose of the government in entering into this contract and in granting this charter was to promote the public interest and welfare by causing this road to be constructed, thereby to secure to the government at all times the use and benefits of the same for postal, military and other purposes. Charter, § 20. But congress recognized the fact at that time (1861) patent to all the world, that a railroad and telegraph line from Lake Superior to Puget Sound by the northern routq could not be built through the then uninhabited regions between these points by mere private enterprise, and hence the “Act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route.” The purpose of this act, as its title clearly indicates, was to aid in the construction of the road,-in consideration of the benefits which the government would derive by such construction, as the provisions in its various sections clearly indicate.. The scope and extent of the grant, the amount of aid which the government, for this purpose, saw proper to contribute to this enterprise, is found in section' 3 of the act incorporating the company, wherein it is provided “ that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for [362] the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land- per mile on each side of said railroad whenever it passes through any state, and whenever on the line.thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office, and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, but not more than ten miles beyond the limits of said alternate sections.”
The words, “ that there be, and is hereby, granted,” are words of present grant, and took effect at the date of the act of congress. A grant of lands by the government is equivalent to a deed in fee.
In the case of Northern Pac. R. Co. v. Majors, 5 Mont. 145, after a review of the authorities in deciding upon the effect and meaning of these words, and of the act incorporating the Northern Pacific Eailroad Company, this court said: “Our conclusion, therefore, both upon reason and authority, is that the title of the respondent [the Northern Pacific Eailroad Company] took effect at the date of the approval of the act of congress; that the location of the route and the survey of the lands gave precision to the title and caused it to attach to the particular sections as of the [363] date of the approval of the act, as fully as if such particular sections had been designated in the act; that the character of the title is that of a grant upon condition subsequent, and that the office of the patent is to confirm the title, as certain designated portions of the road are completed and reported upon by the commissioners, and render it absolute and unconditional.”
The location of the definite route of the road, and the survey of the lands, anchored the grant, and attached it to its proper subject-matter. But before the definite location and survey, and by the location of the general route of the road, by operation of law,— by a provision of the act itself,— the lands embraced within the limits of the grant, both as to the odd and even sections,— both as to that granted to the company, and as to that retained by the government, — -were withdrawn from sale, entry, or preemption, and as to that granted to the company, this withdrawal continued both before and after survey, and as to that retained by the government until after survey.
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Wade, C. J.
This is an action instituted by the United States, the appellant, against the Northern Pacific Railroad Company, the respondent, for an accounting, and to recover the sum of $1,100,000 for certain timber, logs, and lumber, which the appellant alleges were cut, taken, converted and carried away by the respondent during the years 1883,1884, and 1885, from certain non-mineral nnsurveyed lands belonging to the appellant and respondent, as tenants in common, situate in the territory of Montana, between the' western line of said territory and McCarthy’s bridge, over the Hell Gate river in Deer Lodge county, and on either side of the line of the railroad of the respondent, and not more than twenty miles distant therefrom, and for a perpetual injunction enjoining the respondent from cutting or removing timber from said unsurveyed lands, held by the appellant and respondent as such tenants in common, and from injuring, wasting or disposing of the same. The court below sustained a demurrer to the complaint, and the appellant abiding the same, judgment was rendered for the respondent, from which the plaintiff appeals to this court. The foundation of appellant’s action rests upon the proposition — -First, that the United States and the Northern Pacific Railroad Company are tenants in common of the [361] lands from which, the trees and timber in question are alleged to have been taken, and second, that an accounting, as between such tenants in common, is a proper remedy.
1. "Whether the relation of tenants in common exists between these parties depends upon the provisions of the act of congress which gave to the respondent company life, and the rights and relations thereupon arising. The charter of the Northern Pacific Railroad Company is not only a law, but is also a contract, binding alike upon both parties, and giving to each certain rights and imposing upon each certain obligations, which rights thereby become vested, and which obligations cannot be escaped or avoided. There was ample consideration for this charter and contract. The railroad in contemplation was of national importance. The purpose of the government in entering into this contract and in granting this charter was to promote the public interest and welfare by causing this road to be constructed, thereby to secure to the government at all times the use and benefits of the same for postal, military and other purposes. Charter, § 20. But congress recognized the fact at that time (1861) patent to all the world, that a railroad and telegraph line from Lake Superior to Puget Sound by the northern routq could not be built through the then uninhabited regions between these points by mere private enterprise, and hence the “Act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route.” The purpose of this act, as its title clearly indicates, was to aid in the construction of the road,-in consideration of the benefits which the government would derive by such construction, as the provisions in its various sections clearly indicate.. The scope and extent of the grant, the amount of aid which the government, for this purpose, saw proper to contribute to this enterprise, is found in section' 3 of the act incorporating the company, wherein it is provided “ that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for [362] the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land- per mile on each side of said railroad whenever it passes through any state, and whenever on the line.thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office, and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, but not more than ten miles beyond the limits of said alternate sections.”
The words, “ that there be, and is hereby, granted,” are words of present grant, and took effect at the date of the act of congress. A grant of lands by the government is equivalent to a deed in fee.
In the case of Northern Pac. R. Co. v. Majors, 5 Mont. 145, after a review of the authorities in deciding upon the effect and meaning of these words, and of the act incorporating the Northern Pacific Eailroad Company, this court said: “Our conclusion, therefore, both upon reason and authority, is that the title of the respondent [the Northern Pacific Eailroad Company] took effect at the date of the approval of the act of congress; that the location of the route and the survey of the lands gave precision to the title and caused it to attach to the particular sections as of the [363] date of the approval of the act, as fully as if such particular sections had been designated in the act; that the character of the title is that of a grant upon condition subsequent, and that the office of the patent is to confirm the title, as certain designated portions of the road are completed and reported upon by the commissioners, and render it absolute and unconditional.”
The location of the definite route of the road, and the survey of the lands, anchored the grant, and attached it to its proper subject-matter. But before the definite location and survey, and by the location of the general route of the road, by operation of law,— by a provision of the act itself,— the lands embraced within the limits of the grant, both as to the odd and even sections,— both as to that granted to the company, and as to that retained by the government, — -were withdrawn from sale, entry, or preemption, and as to that granted to the company, this withdrawal continued both before and after survey, and as to that retained by the government until after survey.
Section 6 of the act provides “that the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company, as provided by this act, but the provisions of the act of September, 1841, granting preemption rights, and the acts amendatory thereof, and of the act entitled ‘ An act to secure homesteads to actual settlers on the public domain,’ approved May 20,1862, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than $2.50 per acre, when offered for sale.”
The latest expressions of the supreme court of the United [364] States upon the subject of this grant to the Northern Pacific Bailroad Company, and when the same became operative, are found in the case of Buttz v. Northern Pac. R. Co. 119 U. S. 55 (decided at the October term of that court, 1886), in which it is declared that, “ at the time the act of July 2, 1864, was passed, the title of the Indian tribes was not extinguished. But that fact did not prevent the grant of congress from operating to pass the fee of the land to the company.” In the same case it is further held that, “ when the general route of the road is thus fixed in good faith, and information thereof given to the land department, by filing the map thereof with the commissioner of the general land office or the secretary of the interior, the law withdraws from sale or pre-emption the odd sections, to the extent of forty miles on each side. The object of the law in this particular is plain — it is to preserve the land for the company to which, in aid of the construction of the road, it is granted.”
Nearly one year previous to this decision, the supreme court of Montana, in the case of Northern Pac. R. Co. v. Lilly, 6 Mont. 65, had said, in speaking of the effect and operation of section 6: “ This section is itself a grant, and a legislative reservation and withdrawal of the lands granted from sale or pre-emption, except by the company. . . . This land is reserved from sale by'congress. It is a legislative reservation, and takes effect whenever the general route of the road is fixed; and thereafter no person could acquire any-right or interest in the land reserved from sale, except by act of the company, the grantee of the government.” Thus* as to the alternate sections within the limits of the grant, designated by odd numbers, the title passes from the government to the company. But as to the lands within the limits of the grant reserved by the government, being the alternate sections, designated by even numbers, they cannot be offered for sale until they are surveyed. The provisions of section 6 are that the reserved sections cannot be sold, and are not subject to the operation of the homestead or pre-emption laws, until they are surveyed.
[365] This, then, was the condition of the title to the lands upon which the logs and timber in question were cut: The general and definite route of the road had been fixed; indeed, the road had been constructed, and was in operation through and over the lands. The land was unsurveyed. The government was the owner of the reserved even sections, but could not sell them; and the company was the owner of the odd sections, and such sections were not subject to sale except by the company; but the respective sections had not been surveyed, and thereby designated. Did this condition of title create a tenancy in common in these lands as between the government and the company ? Each as to the other was the owner of the alternate sections, and all that remained to be done ivas to have the sections numbered. The government owned no interest in the lands that had been granted to the company; and the company owned no interest in the lands reserved by7 the government. As between these parties there was no undivided joint ownership in these lands. The interest of the company was a several, separate interest, and so was that of the government. Neither could acquire any interest in the whole under a grant of a part. Neither could acquire a joint interest in all the sections by a several and separate grant to or reservation of the alternate sections to each. The company owned the entire interest in every tree or stick of timber on the lands conveyed to and embraced within its grant; and the government had the same interest in the lands reserved to itself. Neither the government nor the company could sell their lands, and neither could demand partition; for neither owned any undivided interest in the lands of the other. The grant to the company had already partitioned the lands granted, and it only required a survey — an extension of lines — to show the section boundaries; and this survey the government had promised to make as fast as required in the construction of the road.
"What are the incidents of a tenancy7 in common in lands ? There must be a joint undivided interest in the entire tract.
[366] In the case of Ross et al. v. McJunkin et al. 14 Serg. & R. 364, land warrants had been issued to John and "William Menough,— to John for three hundred acres, and to William for two hundred acres,— which had been surveyed to-gether, and a general diagram of survey returned, which contained no division line, nor anything to distinguish the one tract from the other. The parties to this action, which Avas ejectment, derived their titles respectively from John and William Menough; and Gibson, J., speaking for the supreme court of Pennsylvania, said: “ The nature of the interest Avhieh the original owners of the warrants held under their joint survey will go far to settle the rights of the parties before us. .They were grantees from the state, not of an undivided interest in the whole, but of separate and distinct parts of the whole; consequently, they Avere not tenants in common. The grant to the one Avould not have entitled him to possession in common of the whole; nor, if one had been disseized, could he have recovered an undivided portion from the other. The truth is, the survey Avas imperfect; and, although a valid appropriation of the land to strangers, it left their rights, as between themselves, suspended till the subject of the grant to each should be specifically designated by the proper officer or by themselves. It has been held that any number of warrants may be surveyed together by a common outline, so as to prevent a valid appropriation of a part of the land included to subsequent Avarrants; and, it being a matter between the warrantees themselves, I can see no difference whether the interior lines be laid down by protraction or not. Rut the separate owners of warrants thus laid would certainly not have an interest in common in the lands included in the general survey. Tenants in common, although their estates be several, have each an undivided interest in the whole; but it can with no propriety be said that each has an interest in the whole under the grant of a part.” And with equal propriety it might be said, as to the railroad company, that it is a grantee from the government, not of an interest in [367] the whole tract eighty miles in width along the line of the road, but of separate and distinct parts of the whole; that the grant to the company did not entitle it to possession in common of the whole; that if it had been disseized, it could not have recovered an undivided portion from. the government of the lands reserved; that the grant to the company of the alternate odd sections, and the reservation t@ the government of the even sections, left their rights, as between themselves, suspended till the subject of the grant to each should be specifically designated; that these separate owners of separate sections do not have an undivided interest in common in the whole tract; and that, the company acquired no interest in the whole by the grant of a part.
This is not at all in conflict with the opinion of the supreme court of the United States, delivered by Justice Field in the case of Frasher v. O'Connor, 115 U. S. 107, so much relied upon by appellant. In that case the court says: “ A very great portion of the lands in that state (California) were covered by Mexican or Spanish grants. Some of the grants were by specific boundaries, and the extent of the land covered by them' could be readily ascertained without an official survey. But by far the greater number were of a specific quantity of land lying within out-boundaries embracing a much larger quantity. Thus, grants of one or two leagues would often describe the quantity as being within boundaries embracing doable or treble that amount; the grant declaring that the quantity was to be surveyed off by officers of the vicinage, and the surplus reserved for the use of the nation. The grantee in such case was, of course, entitled only to the specific quantity named; but what portion of the general tract should be set apart to him could only be determined by a survey under the authority of the government. Until then the grantee and the government ‘ were tenants in common of the whole tract. No one could intrude upon any portion of it, the whole being exempted from the pre-emption laws. The practical. effect of this-[368] condition in many cases was to leave the grantee, until the official survey, in the possession, use and enjoyment of a tract of land containing a much larger quantity than that granted.”
The sense in which the grantee and the government are, in this decision, said to be tenants in common, is that the separate share of each had not been set off. There is no intimation that the grantee of a part thereby acquires an undivided interest in the whole, or that the. share of each might have been ascertained by a partition. Tenants in common though their estates be several, have an undivided interest in the whole, and can acquire no such interest by the grant of a part.
In the case of the Mexican grant, it required an act of congress to compel the share of the grantee to be surveyed and designated, which would have been wholly unnecessary and useless if the government and the grantee had been tenants in common. If they had been tenants in common, in a legal sense, no survey would have been necessary; for, in that case, they would each have owned an undivided interest in the whole tract. Merely extending a survey over a tract held by tenants in common would not designate the shares of each. It would only ascertain and number the sections in which they had a joint undivided interest. And the fact that a survey would ascertain and designate the acres or the sections that belong to the grantee and those that belong to the government, and that the interests, when so ascertained, are several, and not joint, is conclusive that property so held and owned does not cause its owners to become tenants in common.
Section 6 requires the government to cause the lands granted to the company to be surveyed as they shall be required in the construction of the road. The force of this requirement is not affected by the act of July 15, 1810 (16 Stat. at large, 310), which pro vides that, before any lands granted to the company shall be conveyed to any party entitled thereto, there shall be first paid into the treasury of [369] the United States the cost of surveying, selecting and conveying the same by the company or party in interest. This merely provides that, before the lands shall be conveyed by the company to any party, the company shall pay the costs of survey, etc.; but this does not do away with the duty of the government to cause the lands to be surveyed. They must be surveyed before they can be sold or conveyed. It is the plain duty of the government to cause these lands to be surveyed, and then, under the act of 1870, to prohibit any sales or conveyances by the company, or the issuance of any patents to it, until it has paid the costs of such survey. If. the lands had been surveyed as required by section 6, then no question could have arisen between the government and the company as to the ownership of trees and timber upon the lands included within the boundaries of the grant. And the government cannot make its failure to perform this duty the foundation of an action against the company, which a survey in accordance with the requirements of section 6 would have rendered impossible. The construction of the road required this survey, thereby, if for no other reason, to have rendered such an action- as this, or kindred actions, unnecessary and impossible. It required a survey to the end that the rights of the government and the company be clearly defined and properly understood. It required a survey that the pre-emption and homestead laws might be applied to the alternate even sections along the line of the-road, and to enable the government to sell such sections. This survey, rendered necessary by the construction of the-road, was not required simply for the benefit of the company, but also for the benefit, advantage and protection of. the government and its property. When the survey shall, take place is not within the discretion of the company. The - construction of the road, and as fast as it is constructed, puts > these provisions of section 6 in motion, and requires the survey to be made. It was not intended that, if the- land, granted to the company was not required in the construe- - tion of the road, it should never be surveyed.
[370] Now, if these parties conld be held to an accounting, each being the owner in severalty of parts of the unsurveyed lands, but which parts had not been designated, and neither having an undivided interest in the whole tract, how could a just and true account be stated, and the parties correctly charged for trees and timber taken from such lands ? It -would be utterly impossible to ascertain from whose lands they were taken. The very first inquiry would be whether the trees and timber had been taken from the lands of the company or from that belonging to the government. The fact that these parties own their shares or parts in severalty, and that they have no undivided interest in the entire tract, would suggest this inquiry at the outset; but the question could not be answered by anything short of a survey and designation of the sections. Suppose an accounting should be decreed, and the company made to pay for one-half the trees and timber taken from the unsurveyed lands described, and then, when these lands came to be surveyed, and the sections designated, it should be found that the company had taken trees and timber only from its own sections. We do not think an accounting would be proper, when the damage and injury liable to be occasioned thereby would require another action or an act of congress to remedy it. On the contrary, if it should be shown that all the trees and timber in question had been taken from the sections belonging to the government, then, under this action, wherein the government only claims as a tenant in common, it could recover for only one-half of the value of such trees and timber, and would lose the other half; and what is lost the company would gain.
A survey of the lands, which the government ought to make, would show the exact rights of the parties, and then an accounting would be improper and unnecessary. And the government cannot lawfully demand an injunction until it can be shown that its property is being injured, or that injury is threatened; and this cannot be shown until the lands are surveyed and the sections designated. Then ac[371] tions in the nature of trespass or trover would be the remedy of the government for trees taken or converted by the company.
The judgment is affirmed, with costs.
Bach, J., concurs.