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rection of any mistake, in furtherance of justice. The application for a writ of attachment is a proceeding to secure one of the remedies provided by law; and where the right to amend is given, it makes no difference whether the undertaking be void or only defective; in either case, it is the duty of the court to permit the plaintiff to substitute a sufficient undertaking. Drake, Attachm. § 148.

The law requires an undertaking or bond on appeal; but an appeal will not be dismissed because of a defect in or insufficiency of the bond or undertaking before giving the appellant an opportunity to file a new or sufficient one. And so we hold generally that it is within the spirit and meaning of the Code to permit a plaintiff to give a new undertaking in attachment when he finds by a decision of the court or otherwise that the first undertaking is defective, or in any manuer insufficient.

The order dissolving the attachment is set aside, and the cause is remanded to the district court, with directions that the plaintiff have an opportunity to give such a new undertaking in attachment as the law requires.

(5 Mont. 538)

WILKINSON and others v. NORTHERN PAC. R. Co.

Filed January 29, 1885.

LAND GRANTS TO RAILROADS-PATENTS TO INDIVIDUALS-PETITION FOR APPOINTMENT OF COMMISSIONERS TO ASSESS DAMAGES.

In the year 1865, W. and D. located certain lands, under the laws of congress, in the territory of Montana, and held and worked the same, and on the thirty first of May, 1883, a patent was issued to them for the said lands. In the year 1864 congress granted certain lands to the Northern Pacific Railroad Company, to aid in the construction of their road to the Pacific coast, in the territories through which it passes, and the lands which had thus been patented to W. and D. were located upon the track and land covered by the right of way of the said Northern Pacific Railroad Company under their charter. Upon a petition filed by W. and D., asking for the appointment of commissioners to appraise the value of the premises described therein, which had been taken under the grant of the right of way by the railroad company for a railroad track, held, that the Northern Pacific Railroad Company has also a legal title of an older date, which is found in the act of congress making the grant; that the inferior must yield to the superior legal title; and that the petition by the court below was properly dismissed.

Appeal from Third district, Lewis and Clarke county.
Edgerton & Weed, for appellants.

Sanders & Cullen, for respondent.

COBURN, J. The plaintiffs, Thomas Wilkinson and Samuel Dempster, who are the appellants, filed in the district court their petition for the appointment of commissioners to appraise the value of the premises described therein, which have been taken under the grant of the right of way to the defendant for a railroad track. The defendant, the railroad company, answered, and the cause was submitted upon the petition and answer to the court below; and thereupon the prayer was denied and the petition dismissed. From this denial and dismissal of the petition the plaintiffs appealed to this court.

The petition shows that the plaintiffs are seized in fee as tenants in common of certain mineral lands particularly described; that said lands were located in the year 1868, and claimed under and in pursuance of the laws of the United States and of this territory, and of the local rules and regulations of mines and miners, at a time when said lands formed a part of the public domain of the United States; that these lands were held, worked, and claimed as placer mining grounds, under and by virtue of the above authority, until the twentieth of February, 1882, on which day the petitioners and Richard Rule and Conrad Geiger, as proprietors, applied for a patent to said lands and paid for them at the rate of two dollars and a half an acre, complying in all respects with statutes as to such entries. On the thirty-first day of May, 1883, a patent was issued to them for the lands. Since 1868 the petitioners and their grantors have held peaceable possession of the lands, and now own them, having received a conveyance from Rule and Geiger for their interest; that valuable mining ditches belonging to plaintiffs have been made on the lands necessary to the business of mining thereon; that a large portion of these lands have upon them placer mines of gold unworked, which, with the water appertaining to the premises and available for mining, will yield large quantities of gold of great value; that the Northern Pacific Railroad Company, the defendant, did, in or about the month of April, 1882, enter upon and construct its road along and over these mining lands, and cut and tore the ground and water-ditches. in such a manner as to render a large portion thereof entirely unfit for use as mining ground, and made it impossible for the petitioners to take gold therefrom; that the length of said track along and across said ground is about one and a half miles; that the defendant claims an easement upon and over said land, for a distance of 200 feet on each side of said track for said distance, by virtue of their act of incorporation; that these lands are, and were at the time of the entry, private lands, and were and now are mineral lands, within the meaning of the act incorporating said company, and of the laws of the United States; that the petitioners and defendant have not been able to agree as to the value of the premises so taken; that by reason of this taking by defendant they have been damaged $15,000.

The prayer of the petition is for the appointment of appraisers of the land so taken for the right of way, pursuant to section 7 of the charter. The answer denied that defendant claimed or desired the premises in fee, but only claimed an easement therein, and right of way thereon, as granted by section 2 of the act incorporating this company; and averred that the right and title thereto antedated the rights of the petitioners, the date thereof being the second day of July, 1864; that petitioner's right is subordinate to that of the defendant, who is entitled to the same without compensation to the petitioners. The answer closes with a prayer that the petition be dismissed; and defendant moved to dismiss the petition upon the facts.

and law appearing in the same and the answer; which motion the court sustained, and dismissed the petition. From this order the petitioners appeal.

The second section of the charter of the Northern Pacific Railroad Company grants the right of way through the public lands 200 feet in width on each side of the track. The seventh section provides for the entering upon, purchasing, taking and holding, and the condemnation of any land owned by private individuals for the right of way. Provision is made for the appointment of commissioners to assess damages in case the owners of land cannot agree as to the same with the company. The petitioners, having a patent from the United States, claim damages under this seventh section.

The supreme court of the United States has decided that a similar grant of the right of way is present and absolute, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purpose designed; and that there is nothing in the policy of the government with respect to the public lands which would call for any qualification of the terms. Inasmuch as the grant of the right of way contains no reservations or exceptions such as are found in the sections of the charter granting land in aid of the construction of the road, (see Railroad Co. v. Baldwin, 103 U. S. 426; Western Pac. R. Co. v. Tevis, 41 Cal. 493,) the appellants take the position that they have the legal title, a patent, which is voidable only until set aside by a court of competent jurisdiction; and that, having this title, they have a right to the appointment of commissioners. But the respondent has also a legal title of an older date, which is found in the act of congress making the grant, and the inferior must yield to the superior legal title, without a resort to a court of equity to set the inferior to one side. It is not, therefore, necessary that the railroad company should call to its aid, in order to secure the right of way through the petitioners' land, the exercise of the power of eminent domain, since at least four years before they made any claim to the land in question it had been granted unconditionally to the defendant.

The third section of the charter, which grants lands in aid of the construction of the railroad, is as follows:

"That there be, and is hereby, granted to the Northern Pacific Railroad Company, its successors and assigns, for 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 railway, every alternate section of public land not mineral, designated by odd numbers, to the amount of twenty 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, or 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, not more than ten miles beyond the limits of said alternate sections: provided, that if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: provided, further, that the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate, and associate with said company upon the terms named in the first section of this act: provided, further, that all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd-numbered sections nearest to the line of said road may be selected as above provided: and provided, further, that the word mineral,' when it occurs in this act, shall not be held to include iron or coal: and provided, further, that no money shall be drawn from the treasury of the United States to aid in the construction of the said Northern Pa cific Railroad."

The mineral lands excluded from the operation of this act are evi. dently not those covered by the right of way, as nothing could possi bly be given in lieu of any lands which might be needed for such purpose; and it would be destructive of the rights of the railroad company if mining claims could at any time be located and worked upon the track and land covered by the right of way. See Doran v. Central Pac. R. Co. 24 Cal. 246. The joint resolution of congress of January 30, 1865, declaring that "no act shall be so construed as to embrace mineral lands, which in all cases shall be and are hereby reserved exclusively to the United States," cannot be considered as a reservation of mineral lands from the operation of grants of the right of way, such as the one in question. A reservation of that character would annihilate the franchise, and annul the operation of the entire act of congress granting the charter. The operations of mining and the business of railroads cannot be conducted at the same time upon the same ground; and a reservation of such a character would beget a conflict of rights and a confusion of interests not in contemplation of intelligent legislative action.

The judgment is affirmed.

(5 Mont. 478)

SUPREME COURT OF MONTANA.

TERRITORY v. DUNCAN.

Filed January 7, 1885.

APPEAL-INDICTMENT-Burglary.

Under Rev. St. 365, § 70, in order to constitute the crime of burglary in the day-time there must be a breaking and entering with intent to commit a felony, and the facts which make up the constituent elements of the felony, and which show the intent to commit the same, must be alleged in the indictment.

Appeal from Second district, Deer Lodge county.
William H. Trippett, for appellant.

William H. Hunt, Atty. Gen., for respondent.

WADE, C. J. This is an indictment for burglary in the day-time, drawn under a statute of the territory, which provides that "every person who shall break and enter into any dwelling or other house with the intent to commit murder, rape, or robbery, or any other felony, in the day-time, shall be deemed guilty of burglary," (Rev. St. 365, § 70,) and upon conviction thereof the offender is subjected to punishment by imprisonment in the territorial prison for a period not less than two nor more than ten years. The statutes of the territory further provide that "crimes which do not subject the offender to imprisonment in the territorial prison, or to death, shall be classed as misdemeanors. Crimes which subject the offender to imprisonment in the territorial prison, or to death, shall be classed as felonies." Rev. St. 288, § 4. Every person who shall feloniously steal, take, and carry away the personal goods or property of another, of the value of $50 or more, shall be deemed guilty of grand larceny, and upon conviction thereof shall be punished by imprisonment in the territorial prison, etc. If the goods so stolen are of less value than $50, the offender is deemed guilty of petit larceny, and on conviction is subjected to punishment in the county jail. Rev. St. 366, $$ 72, 73.

The indictment in question charges "that the defendant did, on or about the first day of August, 1882, at the town of Deer Lodge, in the said county of Deer Lodge, Montana territory, about the hour of 4 o'clock in the day-time of the said day, with force and arms, at the said town, county, and territory aforesaid, enter the dwelling-house of one Eli D. Howland, situate on the west side of B street, in the said town of Deer Lodge, in the county of Deer Lodge, Montana territory, then and there occupied by one Annie Burnett, then and there unlawfully, willfully, feloniously, and burglariously did break and enter, with intent the goods and chattels of one Annie Burnett, in the said dwelling-house then and there being, then and there unlawfully, willfully, feloniously, and burglariously to steal, take, and carry away, and that the said James Duncan did then and there enter the said v.6p,no.5-23

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