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Opinion of the Court.

ference between the value of the right, as stipulated to be paid, and the amount which could then have been obtained on its sale. The measure of damages for breach of a contract of sale of land by the purchaser is the difference between the contract price and the salable value of the property.

: That is the rule laid down by the Supreme Court of Texas in Kempner v. lleidenheimer, 65 Texas, 587. That court also adds that the salable value “may be fixed by a fair resale, after notice to the party to be bound by the price as the value, within a reasonable time after the breach." In that case it was also held that, where no sale was made, the plaintiff was only entitled to recover the difference between the market value at the date of the defendant's breach and the price he had agreed to pay, and that the duty devolved upon the plaintiff to establish these factors in the measure of damages. The same rule as to the measure of damages upon a breach of a contract for the sale of lands was held to be the proper one by the Supreme Court of Massachusetts in Old Colony. Railroad v. Evans, 6 Gray, 25, 36, after considering numerous authorities on the subject. A similar rule prevails in Pennsylvania. Bowser v. Cessna, 62 Penn. St. 148, 151. The same rule must apply where the contract is not for the land but for a right to purchase the land. The measure of damages must be the difference between the contract price and the salable value of the right when payment was to be made.

In the present case no evidence was produced to show the value on the 15th of November of the right of the plaintiff which he had sold to the defendant, nor was there any evidence produced as to the amount for which he could have sold to others that right; there was no evidence, therefore, for the estimate of damages at that time upon which the jury could have based a verdict. If anything could then have been obtained from the sale of that right, and the contract had been valid and binding, it was the duty of the plaintiff to make the sale when the defendant defaulted in his contract, and thus to have subjected him to as little loss as practicable. But no such sale was attempted, and no evi

Opinion of the Court.

dence was offered as to the value of the supposed right sold, and consequently no foundation laid for any recovery. It follows that the judgment must be reversed, and the cause

remanded, with directions to the court below to grant a new trial, and to take further proceedings in accordance with this opinion.

BARDON V. NORTHERN PACIFIC RAILROAD

COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR

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Land which, at the time of the grant of July 2, 1864, 13 Stat. 365, c. 217, of

public lands to the Northern Pacific Railroad Company, was segregated from the public lands within the limits of the grant by reason of a prior preëmption claim to it, did not, by the cancellation of the preëmption right before the location of the grant pass to the company, but remained part of the public lands of the United States, subject to be acquired by a subsequent preëmption settlement followed up to acquisition of title.

In Equity. The case is stated in the opinion.

Mr. John B. Sanborn and Mr. William F. Vilas for appellant.

Mr. James McNaught (with whom were Mr. F. M. Dudley, Mr. A. II. Garland and Mr. H. J. May on the brief) for appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

The plaintiff, the Northern Pacific Railroad Company, a corporation organized under the act of Congress of July 2, 1864, 13 Stat. 365, c. 217, entitled “ An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound on the Pacific coast by the northern route," and having its principal places of business in the city of New York, in the State of New York, and in

Opinion of the Court.

the city of St. Paul, in the State of Minnesota, brings this suit against Mary Bardon, a citizen of Wisconsin, to charge her as trustee of certain real property held by her in that State, and compel her to convey the same to the company.

The bill, as amended, sets forth the most important provisions of the act of Congress organizing the company and authorizing it to “locate, construct, furnish, maintain and enjoy, a continuous railroad and telegraph line with the appurtenances, namely, beginning at a point on Lake Superior, in the State of Minnesota or Wisconsin, thence, westerly, by the most eligible railroad route, as should be determined by your orator, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget's Sound, with a branch via the valley of the Columbia River to a point at or near Portland, in the State of Oregon,” and vesting it with the powers, privileges and immunities necessary to carry into effect the purposes of the act.

By the third section of the act a grant of land is made to the company. The section, so far as it bears upon the questions involved, is as follows:

“Sec. 3. And be it further enacted, That there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line as said company may adopt through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever on the line thereof the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from preëmption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said

Opinion of the Court.

time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or preempted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections: Provided, That if said route shall be forind upon the line of any other railroad route to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act: Provided further, That the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate and asseciate with said company upon the terms named in the first section of this act."

The Northern Pacific Railroad Company, under this act of incorporation, proceeded to designate the general route of its proposed road, and afterwards to have its line definitely fixed. The necessities of the case do not require us to go into a very close consideration of these matters. The admissions of counsel reduce the questions for decision within narrow limits. It is conceded that the premises in controversy lie within the place limits of the grant to the Northern Pacific Railroad Company, and that the title to them would pass to that company under the grant and the compliance of the company with its conditions, unless they are excepted from the grant by the facts admitted in the pleadings and the stipulation of parties.

Among the facts admitted are these: That on and prior to September 12, 1855, the tract of land, in relation to which this suit was brought, had been surveyed by the United States and was a part of the public domain, subject to sale by preëmption and otherwise as then provided by law; that on that day James S. Robinson, Jr., settled upon the land, and that he was at the time a qualified preëmptor; that on the 21st of September following he filed his declaration of settlement upon the land, under the preëmption laws, with the register and re

Opinion of the Court.

ceiver at the proper land office of the United States ; that he died without making final proof on the preëmption claim or paying the government for the land; that after his death his heirs, on the 30th of July, 1857, made payment for the land and received the receiver's receipt therefor and a certificate of purchase from the register, with the statement that, on its presentation to the Commissioner of the General Land Office, the heirs would be entitled to receive a patent for the land; that on the 5th of August, 1865, this preëmption entry was cancelled by the Commissioner of the General Land Office for alleged failure to furnish proof of continuous residence prior to July 30, 1857; that Robinson did not, in his lifetime, pay to the government the money required under the preëmption laws of the United States to acquire title to the land, except such fees as are paid to local officers at the time of filing a preëmption application; and that whatever money was paid for and on account of the land, prior to 1865, was paid by the heirs of Robinson, except the fees mentioned, and whatever money was thus paid was refunded to the heirs by the government upon the cancellation of the preëmption claim.

It is thus seen that when the grant to the Northern Pacific Railroad Company was made, on the 2d of July, 1864, the premises in controversy had been taken up on the preëmption claim of Robinson, and that the preëmption entry made was uncancelled; that by such preëmption entry the land was not at the time a part of the public lands; and that no interest therein passed to that company. The grant is of alternate sections of public land, and by public land, as it has been long settled, is meant such land as is open to sale or other disposition under general laws. All land, to which any claims or rights of others bave attached, does not fall within the designation of public land. The statute also says that whenever, prior to the definite location of the route of the road, and of course prior to the grant made, any of the lands which would otherwise fall within it have been granted, sold, reserved, occupied by homestead settlers, or preëmpted or otherwise disposed of, other lands are to be selected in lieu thereof under the direction of the Secretary of the Interior. There would therefore be no

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