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plication of an act of July 10, 1886 (24 Stat. 143, c. 764 [U. S. Comp. St. 1901, p. 1476]), by which it is expressly provided that lands granted to a railroad corporation by an act of Congress shall not be exempt from taxation on account of any lien of the United States upon the same for the costs of surveying, selecting, and conveying the same, or because no patent has been issued therefor. This act expressly provides that it shall not apply to unsurveyed lands, and that any lands sold for taxes shall be taken by the purchaser subject to the lien of the United States for costs of surveying, etc., and all liens and mortgages in favor of the United States, and that the act shall only apply to lands situated adjacent to and coterminus with completed portions of the railroads for aid in construction of which they were granted. It is obvious that the act is not applicable to the lands in question, and it is also clear that, in the absence of such a statute, the rule would be different. Railway Co. v. Prescott, 16 Wall. 603, 21 L. Ed. 373; Railway Co. v. McShane, 22 Wall

. 444, 22 L. Ed. 747; Railway Co. v. Rockne, Treasurer of Traill County, 115 U. S. 600, 6 Sup. Ct. 201, 29 L. Ed. 47.

It is further suggested that, inasmuch as the railway company gave and the plaintiff accepted a deed covering and attempting to convey these lands from the railway company to the plaintiff in July, 1901, the defendant county had a right to assess and tax said property. However, no theory of law in support of this suggestion is outlined or defined. The giving and the acceptance of such a deed might constitute prima facie evidence of the private ownership of the lands; but, even so, this prima facie showing is overcome by the undisputed facts relating to the title. Estoppel is not pleaded as it must be if relied upon, nor is it argued that the giving and the acceptance of the deed are sufficient to constitute estoppel. Nor does the provision of the conveyance relieving the railway company from the payment of taxes which might be levied upon the lands, expressly or impliedly, create the right or enlarge the right of the county to assess the lands. The instrument was a private contract between the railway company and the timber company, and was not made for the benefit of the county. The railway company desired, and had the right, to relieve itself from any responsibility to the timber company for any taxes which might be levied; and the timber company was willing and had the right to assume the responsibility of paying the taxes. But it cannot be presumed that they contemplated illegal assessments, or the payment of tax claims which were void. The status of the lands for assessment purposes was uncertain. No one could anticipate just when they would become subject to assessment. The action of the Land Department could not be anticipated, and naturally the parties could not certainly foretell just what rule of law the courts would apply to the facts. The parties, therefore, had the right to contract in such manner that one was relieved from and the other assumed the burden of such taxes as might be levied (legally, of course) against the property. But, as against the county, such contract could not estop the parties from questioning the legality of the tax claim.

It is suggested, but not urged, by counsel for defendants that, if the plaintiff did not have equitable title to the lands in 1903 and 1904, it has no standing in court, for in that case it could not be injured by the assessment and sale. At the time the bill was filed, the complainant was the owner of the lands embraced in the first three groups described in the complaint. It is so alleged and admitted. The allegations relative to the fourth group of land, so far as the complainant's interest therein is concerned, are anomalous, and, had appropriate objection been made, I do not see how the bill could have been sustained so far as it relates to that group. There is no allegation that the complainant, when the bill was filed, had any interest whatever in any of the lands embraced in this group, but no specific objection was made, and, by agreement, proof was made showing that at the time of the filing of the bill the railway company had attempted to convey these lands, together with those embraced in the other three groups, by the deed referred to as having been executed in 1901, so that the complainant's interest in these lands was really the same as its interest in the other groups; and now it appears it is the absolute owner of them.

It is not sufficient to say that, if the complainant did not have legal title or equitable title to the lands at the time the taxes in question were levied, it has suffered and can suffer no injury by reason of the acts, and threatened acts, of the defendants, and that, therefore, it is not in a position to ask for equitable relief. It appears that not merely the interest of the railway company or the interest of the complainant was assessed and sold, but the lands and the entire title thereto were assessed, and, the taxes thereon having become delinquent, the lands and the entire title thereto were sold; and it further appears that, if redemption is not made within the time prescribed by the statutes of Idaho, deed will be executed conveying to the defendant county, or its assignee, the lands. It can hardly be seriously contended that the spreading of the assessment upon the assessment books of the county, the subsequent advertisement, and sale, and the placing of the certificate of sale upon the records of the county, and the threatened execution, by the tax collector, of a deed purporting to convey these lands, and the placing of such deed of record, will not create a cloud upon the title. It is obvious that when such deed is executed, and the county claims thereunder to be the absolute owner of the lands, the plaintiff can maintain an appropriate proceeding to try out the general question of title, and thus determine the validity of the tax sale. In such a proceeding substantially the indentical issues of fact and of law now presented would have to be determined. If the plaintiff should remain inactive and await the issuance of the tax deed before challenging the validity of the proceedings, would it not become subject to the possible charge of laches or the defense of estoppel ? Equity favors the vigilant, and, both in reason and upon authority, I think the complainant is properly in court. Railroad Co. v. Price County, 133 U. S. 496, 10 Sup. Ct. 341, 33 L. Ed. 687; Railroad Co. v. McShane, 22 Wall. 444, 22 L. Ed. 747. As I have already indicated the filing jackets in the Commissioner's office covering the selections under the act of June 4, 1897, bear indorsements of an earlier and of a later approval by the Commissioner, and, for reasons which appear to me to be conclusive, I have adopted the date of the later approval as the time when equitable title passed. But, if the earlier dates should be adopted, there would still be cogent reasons for holding the tax proceedings invalid. For the purpose of assessment in any given year, the title, value, and status of all property within the state of Idaho are to be considered and fixed as of the second Monday in January of that year, which in 1904 was January 11th. The surveys of the townships in which all of these lands are situated were not approved by the Commissioner of the General Land Office until January 15, 1904, and were filed in the local land office February 24, 1904. Apparently the rule is that unsurveyed lands are not taxable, and the survey is not completed until the same is accepted by the Land Department. This proposition has been elaborately argued by counsel for complainant, and the defendants have not controverted it. Central Pacific Ry. Co. v. Nevada, 162 U. S. 512, 524, 16 Sup. Ct. 885, 40 L. Ed. 1057; State v. Central Pacific Ry. Co., 25 Pac. 442, 21 Nev. 94; Stoneroad v. Stoneroad, 158 U. S. 240, 15 Sup. Ct. 822, 39 L. Ed. 966; United States v. Montana Lumber Co., 196 U. S. 573, 25 Sup. Ct. 367, 49 L. Ed. 604; Clemmons v. Gillette (Mont.) 83 Pac. 879; Robinson v. Forest, 29 Cal. 325; Territory v. Persons, 76 Pac. 316, 12 N. M. 169; Tubbs v. Wilhoit, 138 U. S. 134, 11 Sup. Ct. 279, 34 L. Ed. 887; Act March 3, 1899, c. 424, 30 Stat. 1097 [U. S. Comp. St. 1901, p. 1541]. And, indeed, the revenue statutes of Idaho impliedly negative the idea that unsurveyed lands are assessable. Section 1346 of the Political Code (Annotated) provides:

"The assessor must have prepared and platted a full, accurate, and complete plat book of his County, in which shall be platted all townships which have been officially surveyed and platted by the United States Government.”

Nothing is said about unsurveyed lands.

Again, even if the selections under the act of June 4, 1897, were assessable by reason of the first approvals of the Commissioner in 1903 and 1904, the selections under the other acts not having been approved and hence not being assessable, the entire assessment, it is contended, is void, because the lands under all of the selections were grouped and assessed as a unit. In other words, it is asserted by complainant, and not controverted by defendants, that a joint and unapportioned assessment of taxable and nontaxable property is void in toto. And the proposition seems to be amply supported by authority. See California v. Railway Co., 118 U. S. 417, 6 Sup. Ct. 1144, 30 L. Ed. 125; California v. Railway Co., 127 U. S. 1, 8 Sup. Ct. 1073, 32 L. Ed. 150; Trust Co. v. Territory, 62 Pac. 987, 10 N. M. 416; Title Trust Co. v. Aylsworth, 66 Pac. 276, 40 Or. 20; Hart v. Smith, 64 N. E. 661, 159 Ind. 182, 58 L. R. A. 949, 95 Am. St. Rep. 280; Railroad Co. v. Phillips, 82 N. W. 767, 111 Iowa, 358; Lancy v. City of Boston, 71 N. E. 302, 186 Mass. 128; Towne v. Salentine, 92 Wis. 404, 66 N. W. 395; Johnson County v. Tierney, 76 N. W. 1090, 56 Neb. 514; Howcott v. Levee Dist., 46 La. Ann. 322, 14 South. 848; Sims v. Warren, 67 Miss. 278, 7 South. 226; Jennings v. Collins, 99 Mass. 29, 96 Am. Dec. 687; East Tenn. Ry. Čo. v. Morristown (Tenn. Ch. App.) 35

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S. W. 771; Fisk v. Corey, 141 Pa. St. 334, 21 Atl. 594; Strode v. Washer, 17 Ore. 50, 16 Pac. 926; Howe v. People, 86 Ill. 288.

However, I do not decide what, if any, application this principle would have to the record in this case if it appeared that a part of the lands in evidence were subject to taxation. I am of the impression that I would seek hopefully for some method under the law by which the plaintiff would be required to pay a just proportion of the taxes before it received protection against that which was unjust. But, it being my view of the law that none of these lands were subject to taxation in 1903 and 1904, complainant's prayer is not beset with any equitable objections. It had and has no duty either at law or in equity to pay these taxes in whole or in part. If it was under obligation to convey to the United States a title to the base lands, absolute and free from lien or incumbrance on the date the exchange was consummated—that is, the date of approval by the proper officers of the Land Department—it had the reciprocal right to receive title to the lieu lands free from lien or incumbrance upon that date. The suggestion that the lieu lands were of greater value than the base lands, even if it were founded upon the record, cannot be entertained. The propriety of the act authorizing the exchange was for the exclusive consideration of the legislative branch of the government. Nor can I be influenced by a consideration of the vast extent of the lieu selections. The law is the same for the timber company as it is for the homesteader, and I doubt whether it would be seriously urged that there were any very strong equities in favor of the defendant, if after a homesteader in a forest reserve had made application to exchange his homestead for land outside of the reserve, and before his offer of exchange was accepted, and while he neither had title to the land applied for, nor possession of or the right to use the same, it sought to levy and to enforce the payment of a tax thereon. In principle such is the case presented by this record.

I have no disposition to assist parties in escaping a just proportion of the burden of taxation on account of technical defects in the proceedings of revenue officers in levying and enforcing the payment, of taxes; but the plaintiff's resistance is not based on such grounds. Its claim is that the property was not subject to taxation—not that the assessor and the other officers of the defendant county did not proceed regularly, but that they were without jurisdiction, and hence that the entire proceedings were void. To compel the plaintiff to pay these taxes would, in effect, be to require it to pay taxes both on the base lands and the lieu lands for the same year—a manifest injustice.

It follows that the relief prayed for must be granted.

CLEARWATER TIMBER CO. V. NEZ PERCE COUNTY.
(Circuit Court, D. Idaho, N. D. July 1, 1907.)

No. 362.

1. TAXATION-SUIT TO ENJOIN COLLECTION OF TAXES-ESTOPPEL.

The mere fact that a complainant accepted and recorded a deed purporting to convey to it lands, the legal and equitable title to which were both in fact in the United States, does not estop it to maintain a suit in equity to enjoin the collection of taxes levied on said lands by the taxing officers of the county who had actual knowledge of the condition of the title and of the claim of complainant that the land was not taxable and were not misled by such deed or record.

[Ed. Note.—Persons entitled to injunction restraining or damages for

wrongful enforcement of tax, see note to Bayles v. Dunn, 54 C. C. A. 550.] 2. SAME-PROPERTY SUBJECT TO TAXATION-IDAHO STATUTE.

The Revenue Law of Idaho (Sess. Laws 1901, p. 238, § 11), provides that "all taxable property shall be assessed in the county, city, or district in which it is situated on the second Monday in January, or if not within the state on that day on the day of assessment. The assessor * * * must assess such property to the persons by whom it was owned or claimed * * * at 12 o'clock m. of the second Monday in January next preceding, or on the day of assessment as aforesaid.” Section 31, page 247, requires the taxpayer to state under oath that the lists returned by him contain all of the property owned by him on the second Monday in January, if it was then within the state, and Ann. Code 1901, § 1318, provides that every tax upon real estate shall attach as a lien as of the second Monday of January of each year. Held, that under such statutes the status of property within the state for purposes of taxation is fixed on the second Monday in January, and that real estate exempt from taxation on the second Monday of January of any given year does not become subject to taxation during that year, even though transferred

to a person in whose hands it is no longer exempt under the law. In Equity. James E. Babb and Stiles W. Burr, for complainant. Daniel Needham and B. S. Crow, for defendant.

DIETRICH, District Judge. The bill of complaint in this suit was filed in this court January 9, 1906, the same date on which the bill in Clearwater Timber Co. v. Shoshone County, 155 Fed, 612, and others, in which a decision has just been rendered, was filed.

The suit was brought to enjoin the defendant county and its officers from enforcing the payment of taxes levied for the year 1905 upon the lands described in the bill against Shoshone county; the territory embracing the same having, during the latter part of 1904, by proper proceedings, been cut off from Shoshone county and annexed to Nez Perce county, so that if the lands were assessable at all during the year 1905 they were assessable in Nez Perce county. Excepting the year for which the taxes were levied, the bill states substantially the same facts as are set forth in the bill in the Shoshone County Case. The mode of assessment, however, was different; for, instead of describing and valuing all of the lands aggregating 45,000 acres, as a unit, as was done in Shoshone county, the officers of Nez Perce county divided the lands into 15 groups, and each group was taken as a unit, and valued as such, and after delinquency and adver

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