Syllabus.

What we have said suggests the answer to the objection that a novation is not set forth. The allegations seem to mean that the old company was discharged, but this is not a question of novation. We are dealing with a new bilateral contract made up of mutual undertakings to serve and to pay. The implication that the old contract is discharged is material only so far as it shows that the plaintiff's rights can be enforced without unjustly disregarding the rights of a third person.

It is unnecessary to consider whether an independent ground of jurisdiction is shown in the threatened revelation of trade secrets, or to discuss the different position of the defendant Schultz. Whether the obligation not to disclose secrets be independent of the express contract or not, a case is made out. The question of independence will not arise unless a difficulty is encountered in the evidence because of the statute of frauds, but that is not a matter of pleading. We have not to consider how far the injunction should go in case the plaintiff succeeds, or anything except the objection that the plaintiff is suing as an assignee.

Decree reversed.

NELSON v. NORTHERN PACIFIC RAILWAY COM

PANY.

ERROR TO THE SUPREME COURT OF THE STATE OF WASHINGTON.

No. 44. Argued October 16, 17, 1902.-Decided January 26, 1903.

The grant of public lands made by the act of July 2, 1864, c. 217, to the Northern Pacific Railroad Company, embraced only the odd-numbered alternate sections of which the United States had at the time of definite location "full title, not reserved, sold, granted or otherwise appropriated, and free from preëmption or other claims or rights," provided that whenever prior to such definite location any sections or parts of sections had been granted, sold, reserved, "occupied by homestead settlers" or preempted or otherwise disposed of, other lands should be selected by the company "in lieu thereof" not more than ten miles beyond the limits of the alternate sections. By the same act the president was directed to cause

Syllabus.

the lands to be surveyed forty miles in width on both sides of the entire line of road after the general route was fixed and as fast as might be required by the construction of the road; and it was provided that the odd sections of land "hereby granted "should not be liable to sale or entry or preëmption before or after they were surveyed, except by the company as provided in the act. The general route of the road was fixed in 1873, and in the same year the land office directed the local officers to withhold from "sale or entry" all odd-numbered sections falling within the fortymile limits of the grant along the line of road.

In 1880 Congress passed an act for the relief of settlers on the public lands. In 1881 Nelson, qualified to enter public lands under the homestead acts, went upon the tract in question and thereafter continuously occupied it as his residence with the intention in good faith to avail himself of the benefit of the homestead acts. In 1884 the railroad company definitely located its line of road, and by November 18, 1886, had completed a section of forty miles coterminous with the land here in controversy. The land, when occupied by Nelson as a residence, was unsurveyed, and was not surveyed until 1893; but as soon as surveyed, he attempted to enter it under the homestead laws; but his application was rejected by the local land officers. In 1895 the railroad company was given a patent Held:

to the land in question. (1) Although the company held a patent for the land in controversy, the occupant was entitled under the local law to judgment if it appeared that he was equitably entitled to possession as against the company. (2) The occupancy of Nelson, as a homestead settler was protected by the act of Congress of 1864, although prior to such occupancy the land office had issued the order of withdrawal from entry or sale, based upon the map of general route.

(3) The railroad company acquired no vested interest in the granted lands prior to definite location; and as Nelson was in the occupancy of the land in question as a homestead settler at the time of such location, the land did not pass by the grant to the railroad company, and his title was the better one.

(4) The title of Nelson, if not otherwise protected, was protected by the third section of the act of May 14, 1880, c. 89, which contains a confirmation of the rights of qualified settlers on public lands, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws.

(5) The order of withdrawal directing the local land office to withhold from "sale or entry" the odd-numbered sections within the limits of the general route could not prevent the occupancy of land within those sections prior to definite location by one who in good faith intended to claim the benefit of the homestead law; such right of occupancy being distinctly recognized by the act of 1864, and such order of withdrawal not being required by that act. But if this were not so, the act of 1880, in its application to public lands, which had not become already vested in some company or person, must

Statement of the Case.

be held to have so modified the order of withdrawal based merely on general route, that such order would not affect any occupancy or settlement made in good faith, as in the case of Nelson, after such withdrawal and prior to definite location.

THE Northern Pacific Railway Company brought this action in one of the courts of the State of Washington to recover from the plaintiffs in error the southeast quarter of section twentyseven, township twenty, north of range fourteen, east of the Willamette meridian, in Kittitas County, in that State-the company claiming to be the owner in fee and alleging that the defendants were in unlawful possession of the land.

The defendants denied each of the allegations of the petition, and the case was tried under a stipulation of facts, which for the purpose of the trial were conceded to be true. The facts so conceded were as follows:

The company is a corporation of Wisconsin, and succeeded, prior to the commencement of this action, to whatever right, title or claim the Northern Pacific Railroad Company had, if any, to the land in dispute. The latter corporation was created by an act of Congress approved July 2, 1864, c. 217, granting lands in aid of the construction of a railroad and telegraph line from Lake Superior to Puget Sound on the Pacific coast by the northern route, and by the acts and joint resolutions of Congress supplemental thereto and amendatory thereof. 13 Stat. 365. We will hereafter refer to those sections of the act, upon the construction of which the decision of this case mainly depends.

The railroad company duly accepted in writing the terms of the act of Congress, and on the 29th day of December, A. D. 1864, such acceptance was served on the President of the United States.

The company fixed the general route of its road extending coterminous with said land, and within forty miles thereof, by filing a plat of such route with the Commissioner of the General Land Office August 20, 1873. Thereafter, on November 1, 1873, that officer transmitted to the register and receiver of the land office for the district in which the land was situate the following letter of instructions:

Statement of the Case.

"Gentlemen: The Northern Pacific Railroad Company having filed in this department a map showing the general route of their branch line, from Puget Sound to a connection with their main line near Lake Pend d'Oreille in Idaho Territory, I have caused to be prepared a diagram which is herewith transmitted, showing the forty-mile limits of the land grant along said line, extending through your district, and you are hereby directed to withhold from sale or entry all the odd-numbered sections falling within these limits not already included in the withdrawal for the main-line period. The even sections are increased in price to $2.50 per acre, subject to preëmption and homestead entry only. This withdrawal takes effect from August 15, 1873, the date when the map was filed by the company with the Secretary of the Interior, as required by the sixth section of the act of July 2, 1864, organizing said company."

The letter of the Commissioner and the diagram therein referred to were received and filed in the local land office November 17, 1873.

The land in dispute was within the forty-mile limit of the land grant as designated in the diagram.

On December 6, 1884, the railroad company definitely located the line of its railroad, coterminous with and within less than forty miles of the land in controversy, by filing a plat of such line, approved by the Secretary of the Interior, in the office of the Commissioner of the General Land Office; and prior to November 18, 1886, it constructed and completed a section of forty miles of railroad and telegraph line extending over the line of definite location and coterminous with the land here in controversy. The President of the United States having appointed three commissioners to examine the same, and the commissioners having performed that duty reported to the Secretary on the 18th day of November, 1886, that the lines were completed in all respects as required by the act of Congress.

On the 30th of November, 1886, the Secretary transmitted that report to the President with a recommendation that the railroad and telegraph line be accepted and on the 7th day of December, 1886, the President approved that recommendation.

Counsel for Parties.

The United States executed and delivered, May 10, 1895, to the railroad company its letters patent, purporting to convey to the company the above tract under the terms and provisions of the act of 1864, and the various acts and joint resolutions of Congress supplemental thereto and amendatory thereof.

In the year 1881, three years before the definite location of the road, the defendant Henry Nelson went upon the above land and occupied it, and has since continuously resided thereon. It is agreed that he was at the time qualified to enter public lands under the act of Congress approved May 20, 1862, entitled “An act to secure homesteads to actual settlers on the public domain," and under the various acts supplemental thereto and amendatory thereof.

The land when occupied was unsurveyed, and was not surveyed until 1893. But as soon as surveyed Nelson attempted to enter it under the homestead laws of the United States in the proper United States district land office. His application was, however, rejected by the register and receiver because, in their opinion, it conflicted with the grant to the Northern Pacific Railroad Company.

The defendant Peter Nelson is in the occupancy of a portion of the land in question under license from his codefendant Henry Nelson.

Upon the facts so stipulated, the judgment was that the railroad company was not the owner, had no claim to and was not entitled to the possession of the land in dispute, and that the defendant Henry Nelson was entitled to remain in possession by virtue of the homestead laws of the United States. Upon appeal to the Supreme Court of Washington that judgment was reversed, and the cause remanded with directions to enter judgment for the company. 22 Washington, 521.

Mr. James Hamilton Lewis for plaintiffs in error. Mr. C. H. Aldrich, Mr. Thomas B. Hardin and Mr. Ralph Kaufman were with him on the brief.

Mr. James B. Kerr for defendant in error. Mr. C. W. Bunn was with him on the brief.