to it which are not the common right of all. See United States v. White, 9 Sawyer, 125.

So far as is necessary for consideration in this case the following agreements extracted therefrom are quoted:

"That there be and is hereby granted to the Northern Pacific Railroad Company every alternate section of public land, 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."

"Section 6. That the president of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad."

These extracts from the laws of the United States and the decisions which have been made thereunder do not allow us to consider that it is an open question that the Northern Pacific Railroad Company owns the odd-numbered sections within the limits of its grant, and that ownership carries with it the concomitants of ownership, which are the rights of dominion over and to enjoy the possession and use of the thing owned.

There are some propositions involved in the questions presented by the demurrer which are fatal to the cause of action set up in the plaintiff's complaint.

1st. There is no tenancy in common, because certain and specific parcels of land are conveyed to defendants by the grant which cannot be floated, but are limited and confined to the calls in the grant, and the beneficial interest in which was intended to be vested in defendant by its grant. Frederick v. Gray, 10 Sargeant & Rawle, 187; Fleming v. Kerr, 10 Watts, 444; Copp v. Beardsley, 1 Vt. 151; First Series U. S. Digest, vol. 7, pp. 857, 858, 860; Smith v. Powers, 15 N. H. 546; First Series U. S. Digest, vol. 4, p. 542; 24 Vt. 583; 72 N. C. 106; Patterson v. Trask, 50 Am. Dec. 610; U. S. Digest, vol. 6, p. 232.

It is only where the calls of a deed or grant do not par

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ticularly define the boundaries, so as to confine it to a particular tract, and a survey or evidence aliunde would not specifically define the locus in quo, that a tenancy in common. exists. And in all such cases the court in its opinion proceeds upon the assumption that if the calls of the deed or grant so fixed the locality of the property as to confine it to one certain place alone, then no tenancy in common existed, as each owner would be entitled to every sprig of grass, pound of ore and stick of timber on his own land and not a particle on that of the adjoining owner. Schenk et al. v. Evoy et al. 24 Cal. 110; Jackson ex dem. Gurnsey v. Livingston, 7 Wend. 136; 29 N. Y. 572; 30 Vt. 735; Fleming v. Kerr, 10 Watts, 444; Lick v. O'Donnell, 3 Cal. 59; Corbin v. Jackson ex dem. Gurnsey et al. 14 Wend. 619; 12 Cush. 393; 26 Am. Dec. 668, note. Van Reynegan v. Boulton, 95 U. S. 33, 36, and Frasher v. O'Connor, 115 U. S. 102, and authorities there cited, comprise movable sales within Mexican grants, and involve dissimilar questions to those presented above.

So it is with the balance of the authorities, 37 California, 30 American Decisions, and Kent's Com., cited by the learned counsel for the government. The questions all turn upon the point we have suggested. Besides, a conveyance by one tenant in common of a specific portion of the common property is void, at least in so far as it attempts to sever the property, and it is absurd in the extreme to say that a conveyance of certain parcels of land to A. and certain other parcels to B. would create such a tenancy. Freeman on Co-tenancy and Partition, 199 et seq.; 24 Pick. 529; 10 N. H. 242; 3 Yerger, 492; 5 Conn. 363; 28 Texas, 34; 13 Mass. 384; Gates v. Salmon, 35 Cal. 576; 24 Me. 482; 48 N. H. 347, and authorities cited in note, p. 188 et seq., in Freeman on Co-tenancy and Partition. It seems clear that the calls of the grant do not ipso facto create a tenancy in common, and the great inconvenience attending such a relation was certainly never contemplated by the government. Such a conclusion cannot be reached from

the letter of the law, or inferred to be the intention of the parties. The reasons are all against such a result.

2d. It is clear from the authorities, where the statute of Anne is not in force, or the relation of bailiff is not created by express contract, that one tenant in common is not liable for the labor and expense in improving and utilizing the common property, 12 Cal. 441; 9 Pick. 34; 16 In. 518; 12 Mass. 152, 153, 158; 19 Am. Dec. 264; Jacob Fisher Dig. vol. 1, p. 37; 21 T. I. 2 B. 82.

It is also clear from the grant that while defendant and plaintiff may have such a common interest in the property until a survey is made as to enable them or either of them to protect it against a stranger, nevertheless plaintiff is in fact entitled to no beneficial interest in the odd sections. The right to so preserve the property arises from the peculiar condition, not character, of the title.

Hence if the statute of Anne is not in force there are no circumstances of complication or other reason why a court of equity will take jurisdiction. A survey relieves it of every quality involving the necessity of an accounting, if any ever existed; this plaintiff agreed to do,- it is its duty to do so.

This default of plaintiff in not making the survey may give it a great advantage in receiving a moiety in the timber cut. A court of equity will not permit this. It cannot come into a court of equity saying that I have it in my power to define the exact rights of the parties; I am the only one that can do so, and it is my duty to do it, but I desire to take my chances in an accounting. It can have no standing in a court of equity, when it is plain that by its own default it has occasioned a complication by which it may be the gainer. By defining the respective rights of the parties in the survey it permits respondent to know its own and enjoy and occupy the same. Story's Eq. Jur. 84, c, d, e; 72 Mo. 403; Haines on Jurisdiction, 71; 6 Paige, Ch. 570; 17 Fed. Rep. 561, title Equity; 30 Minn. 219.

3d. Had a survey been made before the entry by de

fendant, the measure of plaintiff's right would be the quantity of timber cut from the even sections and none other; trover would be its remedy. Sedgwick and Wait on Trial of Title to Land, top p. 435; Freeman on Co-tenancy and Partition, 375, bot. p. 96, 307 and 308.

In an accounting it is necessary to ascertain its just portion of the trees or timber cut. This can only be ascertained by a survey. But assuming that the parties are tenants in common as alleged, and that the plaintiff is entitled to the half of the timber on the odd sections and defendant to its half of the timber on the even sections (which we deny), then how stands the case? The parties are tenants in common in the unsurveyed lands from Lake Superior to Puget Sound. Each is entitled to an account for what it has taken from the common property. It is nowhere alleged that plaintiff has taken none. And yet it selects out about twenty miles along the entire route (where forsooth defendant has cut and it has not) and asks for an accounting for that alone. Such a proposition is too monstrous to be entertained for a moment. It neither defines its just share or comprises the necessary subject of the action. Now the rights of these parties were definitely fixed upon the location and construction of the road in 1882, and they must be determined by the condition of things at the time of the alleged trespass or taking of the timber in 1883, '84 and '85, and at the time of bringing this action. The right of defendant fastened itself upon these odd sections in 1882, and the plaintiff has no beneficial interest in them. All that can be said is that it retains a lien upon them until the costs of surveying is made. Hence it is idle, we say, to talk of the accounting here sought on account of any such relations as tenants in common.

4th. Subdivision 3 of the complaint, which attempts to present the gravamen of this action, does not show that the timber taken was not taken or sold to be used and would not be used in the construction of the road. The defendant had a right under its charter to take timber, etc., from

any of this land for construction purposes, and could sell and dispose of it to the person or company having the contract for construction. The law supposes that they did this, and until the contrary is alleged there is no case made by the bill.

As to the injunction, there was no good cause for its issuance, and can be no pretext for its continuance. The lands are timber lands, and their value consists in the utilization of it. In such case the authorities all concur in the doctrine that it is not waste for one co-tenant to cut and utilize this timber, and that he is exercising simply a right when he does so. If this If this is correct and according to the allegations, he is answerable to his co-tenant for his just share; some element must enter into it to give the court jurisdiction to enjoin. If there is no waste, insolvency alone (if it could) would warrant the court in granting an injunction. Waste is not committed and insolvency is not alleged. The injunction should be dissolved. Freeman on Co-tenancy and Partition, 299, 323, 324, and authorities; McCord v. Oakland Q. M. Co. 64 Cal. 134 et seq.

While there may be reasons for permitting either party under such circumstances to protéct, the property from waste or damage by a stranger, no reasons exist for the maintenance of this action.

If plaintiff could enjoin defendant, defendant could in turn enjoin plaintiff, and the common property would thereby be rendered valueless. No partition is sought, and this condition of things might continue forever for aught that appears.

Recurring again to the first proposition presented by this brief, we respectfully submit the following: The principles applicable to the confusion of goods seem to bear great analogy to those involved in this case. Where there has been a confusion of goods without the fault of either party, and a separation cannot be had, a tenancy in common is thereby created in the whole. Where the confusion occurs by the fault of either party, and a separation cannot be had, the