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Statement of the Case.

statutes of the United States of 1862 and 1864, granting lands to the Pacific Railroads; and by an amendment to its answer alleged that the costs of surveying, selecting and patenting said lands had never been paid to the United States, and that the same were due and unpaid.

The suit was tried upon a stipulation as to the facts in the following language:

" It is hereby stipulated and agreed that of the land described in the amended complaint on file herein 131,386 acres are surveyed, but unpatented, and the same were assessed for the year 1888 at fifty cents per acre by the assessor of said county

“ That the patented lands embraced in said complaint amounted to 24,123 acres, and the same were assessed at $1.25 per acre for the said year by the said assessor.

“ That of the lands described in said complaint 195,200 acres are unsurveyed, 2080 acres were sold and conveyed by defendant, and 960 acres were beyond the limits of the grants to said defendant and were not its property, and the said lands were assessed for said year by said assessor at fifty cents per acre.

“That the tax levy for said year was $3.80 on each $100.

“ That the costs of surveying, selecting and conveying 122,824 acres of said surveyed unpatented lands above mentioned have not been paid.

“That said defendant has heretofore mortgaged said lands described in the said complaint, and has at divers times leased various portions thereof.

“That said defendant has never had any other possession of any part of said lands than such as may be inferred from executing said mortgages and leases and by virtue of the land grants to it of 1862 and 1864."

The district court held that the State was entitled to recover for the taxes levied upon the patented lands, also for the taxes levied upon the unpatented but surveyed lands, on which the cost of surveying had not been paid ; but that it was not entitled to recover for the taxes levied upon unsurveyed lands.

To that judgment the defendant excepted, stating as one of its reasons for such exception that the decision and judgment

VOL. CLXII-33

Argument for Plaintiff in Error.

showed that the same were based upon the taxability of 131,386 acres of surveyed but unpatented lands, at an assessed valuation of fifty cents per acre; while the evidence, as contained in the agreed statement of facts, showed that said 131,386 acres of surveyed unpatented lands contained and were made up in part of 122,824 acres of land upon which the costs due to the government of the United States for surveying, selecting and patenting the same had never been paid.

Both parties appealed to the Supreme Court of the State from the judgment of the district court, upon the hearing of which appeals the judgment was affirmed. 21 Nevada, 247. From that judgment of affirmance the railroad company sued out a writ of error from this court, assigning for error that the Supreme Court awarded judgment to the plaintiff below for the taxes assessed upon 122,384 acres of surveyed unpatented lands, upon which the costs of surveying, selecting and conveying had not, at the time of such assignment, or since, been paid, and of which the plaintiff in error had never been in possession.

The State being bound by the decision of its Supreme Court that the 195,200 acres of unsurveyed lands were not taxable, was not entitled, and did not attempt to sue out a writ of error.

Another action (No. 171) in all respects similar to the first, except in the amounts claimed, was subsequently begun to recover the taxes upon the same property for the year 1889, and was carried to a similar conclusion.

Mr. Wheeler H. Peckham for plaintiff in error.

I. It is essential, on the threshold of the discussion, to clearly apprehend what is the action of the State of Nevada, of which the plaintiff in error complains.

The statutes of Nevada, under which this action was taken, provide as follows:

“1079. SEC. 3. Every tax levied under the provisions or authority of this act is hereby made a lien against the property assessed,

and shall not be satisfied or removed until all the taxes are paid or the property has absolutely vested in a purchaser under a sale for taxes."

Argument for Plaintiff in Error.

“1080. Sec. 4. All property of every kind and nature whatsoever within this State shall be subject to taxation except : First. All lands and other property owned by the State or by the United States, or by any county, etc., etc. Second. Mines and mining claims; provided that nothing in this section shall be so construed as to exempt from taxation possessory claims to the public lands of the United States or of this State, or the proceeds of the mines, and provided further, that nothing herein shall be so construed as to interfere with the primary title to the lands belonging to the United States."

“1081. Sec. 5. The term “real estate' when used in this act shall be deemed and taken to mean and include, and it is hereby declared to mean and include · the ownership of or claim to or possession of or right of possession to any lands within the State, and the claim by or the possession of any person, firm or corporation, association or company to any land, and the same shall be listed under the head of real estate.”

“1088. Sec. 12. It is the duty of the assessor to prepare a tax list or assessment roll, in which shall be stated, among other things, all real estate, including the ownership or claim to, or possession of, or right of possession to, any land and improvements

described by metes and bounds, or by common designation or name.'

“ A form is given as follows:
Taxpayer's name...
Description of Property
Real Estate, Number of Acres.-
Possessory Claim, Number of Acres
Section ---
Number of Lot
Number of Block.

Dollars. Cents. Value of Real Estate or Possessory Claim and

Improvements.
Value of Improvements on Real Estate or Pos-

sessory Claim Assessed to persons other than
the owners of said real estate or possessory
claim

Argument for Plaintiff in Error.

The tax statutes of the State of Nevada thus provide for the taxing of the two separate interests in real estate, viz. : (a) The whole estate as described on the tax list or assessment roll under the title “Real Estate, Number of Acres;" and (6) A less estate, but involving possession described on the tax list or assessment roll under the title, “Possessory Claim, Number of Acres."

This action was brought by the State of Nevada on the ground that the defendant below had a “possessory claim” to certain lands which the proper officials of the State had assessed for taxes and on which the defendant below had not paid the taxes.

The answer of defendant below (after dealing with certain allegations of the complaint as to assessment and non-payment of taxes on its roadbed, etc., and raising questions as to the same, which were satisfactorily determined by the court below, and which are not before this court) denied that it had any possessory claim in or to said lands, and alleged that the only interest of defendant below in said lands was that derived from the acts of Congress of 1862 and 1864, making certain grants to the Pacific Railroad companies, and that as to such lands a portion were unsurveyed and unpatented — a portion surveyed but unpatented and costs of survey unpaid, and but a small portion patented.

The pleadings thus presented a direct issue as to whether the defendant below had a “possessory claim” in these lands which could be taxed or assessed by the State of Nevada.

On that issue the only evidence is the stipulation found in the record.

It is that the defendant never had any other possession of any part of said lands than such as may be inferred from executing the mortgages and leases and by virtue of the land grants.

The court below in construing the tax statute of Nevada above recited in this case held that the terms “possessory claims,” “ claim to possession or right to possession,” to any lands do not mean such right or claim when not accompanied by actual possession.

Argument for Plaintiff in Error.

The court says: “But such possession, to be of any validity, must be actual and substantial. It must be an actual occupation, a complete subjugation, to the will, and control a pedis possessio. The mere assertion of title, the casual or occasional doing of some act upon the premises, have never been held sufficient.

This construction of the meaning of the words“ possessory claim," etc., in the Nevada statute by the highest court of that State, it is well settled, is binding on and will be followed by this court; and it is the judgment in this case. Nesmith v. Sheldon, 7 How. 812; Fairfield v. Gallatin County, 100 U. S. 47, and cases cited on page 52; Suydam v. Williamson, 24 How. 427; Ridings v. Johnson, 128 U. S. 212, 224, and cases cited.

In People v. Weaver, 100 U. S. 539, the rule is applied to a state tax statute.

This construction of the terms possessory claims,” etc., of course, applies to the assessment on surveyed unpatented lands equally with unsurveyed unpatented.

The stipulation is the same as to both classes, and it is "that defendant below never had any other possession of any part of said lands,” referring to the whole 195,200 acres, “than such as may be inferred from executing said mortgages,” etc.

It must follow in the language of the court below that “there is nothing to tax” unless the title is subject to taxation.” Now this court has held in repeated adjudications that the title to surveyed unpatented lands on which the costs of survey have not been paid is not subject to taxation. Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Northern Pacific Railroad v. Traill County, 115 U. S. 600; Ankeny v. Clark, 148 U. S. 345.

II. It appearing, then, that the State of Nevada has taxed lands which, but for the act of Congress of 1886, are not taxable, we submit that such act of Congress has not made such lands taxable under the Nevada statutes.

The act of Congress referred to is in these words: “That no lands granted to any railroad corporation by any act of Congress shall be exempt from taxation by States, Territories

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