United States v. Tennessee & C. R. 81 F. 544

United States v. Tennessee & C. R. Co. et al.

(Circuit Court of Appeals, Fifth Circuit.

April 20, 1897.)

No. 538.

Public Lands — Railroad Grants — Forfeiture,

Lands sold by a land-grant railroad company prior to the forfeiture act .of September 29, 1890, and which lie opposite to and coterminous with a part of the road which was completed and in operation before that act, are not subject to forfeiture thereunder.

Appeal from the Circuit Court of the United States for the Northern District of Alabama.

This was a bill in equity, filed by the United States against the Tennessee & Coosa Railroad Company, Hugh Carlisle, and others, under the act of congress of September 29, 1890, to forfeit certain land granted to the state of Alabama to aid in the construction of a railroad. The circuit court, after a hearing on the merits, entered a final decree, the material part of which was as follows:

First. The court finds that prior to the 29th day of September, 1890, the Tennessee & Coosa Railroad Company had sold to bona fide purchasers all the lands embraced in the first 120 sections, which, by the terms of the granting act, it was authorized to sell in advance of the construction of the road; that thes.e sales were bona fide and made to aid in the construction of the road; that the allegations of the bill that the sale to Carlisle was without consideration and colorable are not sustained by the evidence, but the sale to Carlisle was bona fide, and based on good consideration, and the proceeds of the sale used in the construction and equipment of the road. Second. The court finds that the Tennessee & Coosa Railroad from Gadsden to Littleton, a distance of 10 and 22/ioo miles, was completed and in operation on and before the 29th day of September, 1890, and that the lands described in Exhibit D to original bill, to wit,'the lands embraced in and conveyed by the deed from the Tennessee & Coosa Railroad Company to Hugh Carlisle, bearing date the 4th day of April, 1887, are lands which lie opposite to that part of the road which was completed and in operation on the 29th day of September, 1890, and therefore not within the lands forfeited, by the act of *545September 29, 1890. The court is therefore of the opinion that there has been no forfeiture of the lands as to which a judicial declaration of forfeiture is sought by the bill, and it is accordingly ordered and decreed that the relief sought by the bill be denied, and the bill dismissed.

From this decree, the United States have appealed.

Emmet Oneal and Frank White, for appellant.

Oscar R. Hundley and Amos E. Goodhue, for appellee.

Before PARDEE and McCORMICK, Circuit Judges, and NEWMAN, District Judge.