CORINNE CO. v. JOHNSON

MR. JUSTICE BREWER, after stating the case, delivered the opinion of the court.

The grant to the railroad company was not of all the odd-numbered sections within twenty miles of its line of definite location, but of those sections subject to certain exceptions. Proof that the road had been located and completed and that the tracts claimed were odd-numbered sections within the twenty-mile limit, was not sufficient to establish title in the company. The evidence must go further, and the burden was on the plaintiff to show that they were not of the lands excepted. Maxwell Land Grant Co. v. Dawson, 151 U.S. 586.

Now the defect in this record which is fatal to the case of the plaintiff in error is that nowhere is it shown that all the testimony received on the trial is preserved. Under such circumstances we are not at liberty to assume that there was in evidence a patent, or other instrument of itself working a transfer of the legal title from the government to the railroad company, or evidence of any character removing all doubt as to the matter of exceptions, nor, on the other hand, that there was not testimony which conclusively established the existence of some one or more of those exceptions.

Take for illustration the question whether these were mineral lands. The grant in terms excepted such lands from its operation. There was no evidence of any adjudication by the Land Department, either through the issue of a patent or otherwise, that they were non-mineral lands. Barden v. Northern Pacific Railroad, 154 U.S. 288. While there was on the part of the plaintiff some testimony of a general character tending to show that the lands were grazing lands, and that no mineral had ever been discovered in them, yet for aught that appears, there may have been overwhelming evidence that mines had in fact been opened and worked in them, or that there had been an express adjudication by the Land Department that they were mineral lands and excepted from the grant. And so of other exceptions.

The presumptions are all in favor of the rulings of the trial court. And before it can be adjudged that it erred in instructing that the plaintiff had failed in its proof of title, the record must affirmatively show that the title was in fact proved, and that, as we have seen, includes proof that the lands were not within the exceptions named in the statute.

The Supreme Court of the Territory, whose judgment we are reviewing, did not err in refusing upon such a record to disturb the decision of the trial court that the plaintiff had not established its title to the land. The judgment is, therefore,

Affirmed.