THE PERIOD FROM 1878 TO 1891 85 



in the odd sections, and therefore a suit for accounting would not lie. 

 An injunction was denied on the grounds that the value of the lands 

 consisted in the utilization of them, and that it was not waste for 

 one co-tenant to cut and utilize the timber, "for if the plaintiff could 

 enjoin the defendant the defendant could enjoin the plaintiff, and the 

 common property would be rendered useless."^® 



This decision seemed to deprive the government of all remedy in 

 such cases of trespass upon unsurveyed lands, and it was often cited 

 as controlling on the point. The United States Supreme Court had 

 long before held, however, that while the railroad grants were grants 

 in praesenti, and vested the title in the grantee, yet a survey of the 

 lands and a location of the road were necessary to give precision to 

 the title and attach it to any particular tract,®^ and this doctrine was 

 again enunciated by the same court in 1891.^^ Furthermore, as early 

 as 1876, a law had required that before any lands should be conveyed 

 to a railroad company, the company must first pay into the United 

 States treasury the cost of "surveying, selecting and conveying the 

 same."^® The Northern Pacific made some surveys of its own and 

 designated certain lots as odd numbered, and even encouraged the 

 cutting of timber on these lots, but of course these private surveys 

 did not entitle the company to any of the land. It is doubtful whether 

 the surveys were honestly made anyhow.^" 



An analysis of the above decisions and law indicates that while the 

 railroad had no right to cut timber from the unsurveyed lands, the 

 government was helpless to prevent such illegal cutting ; and this was 

 the position taken by the Land Office.^^ Mineral lands were of course 



66 U. S. vs. Pac. R. R. Co.; 6 Mont., 351, 355, 357. Whether, as has sometimes 

 been suggested, there was Northern Pacific influence behind this decision or not, 

 it is a very delicate and difficult question. Certainly the general tone of the decision 

 was altogether lacking in judicial poise, and, as above pointed out, somewhat out 

 of harmony with previous decisions of the United States Supreme Court. The 

 Northern Pacific, like some of the other land grant railroads, had great influence 

 in some of the western states, and this power was oftien wielded most unscrupu- 

 lously. 



«T Leavenworth R. R. Co. vs. U. S.; 92 U. S., 741. 



68 Deseret Salt Co. vs. Tarpley; 142 U. S., 249, 



69 Stat. 19, 121. 



70 92 U. S., 741. 



71 Report, Land Office, 1892, 50. 



