Where the United States brought a case up to this Court as
plaintiffs in error, and the Attorney General moved for a
discontinuance upon the ground that he wished other questions to be
presented upon the record which he deemed necessary for a full
elucidation of the case, the Court, without expressing an opinion
upon these other questions, will grant the motion made by the legal
representative of the government.
This was a motion by Mr. Cushing Attorney General, to withdraw
the writ of error, and discontinue the appeal to this Court, to
which the case had been brought up, by writ of error, from the
Supreme Court of the Territory of Minnesota.
MR. JUSTICE NELSON delivered the opinion of the Court.
An action of trespass was brought by the United States against
the defendants before the District Court of the First District in
the County of Goodhue in said territory for an alleged trespass
committed on section 3, in township No. 112 north, of the public
lands.
The defendants justified under an act of incorporation by the
Legislature of the said territory, passed March 4, 1854, and by
which they were empowered to construct a railroad from a point on
the northwest shore of Lake Superior, and near the mouth of the St.
Louis River, across the said Territory of Minnesota, by the way of
St. Anthony and St. Paul, over the Mississippi at St. Paul, and to
such point on the northern boundary line of the State of Iowa, as
the board of directors might designate, which point should be
selected with reference to the best route to the City of Dubuque,
provided the location of the road should conform in all respects to
such route as might be designated in any act of Congress granting
lands for the construction of a railroad through the territory.
The act of incorporation also provided that any lands granted to
the territory in aid of the construction of this road should be
deemed vested in fee simple in the company, and further it is
alleged that by an act of Congress, passed June 29, 1854, for the
purpose of aiding in the construction of the road, every alternate
section of land designated by odd numbers, for six sections
Page 59 U. S. 242
in width on each side of the road along the line, was granted to
the territory upon the terms and conditions specified in the said
act, and also that the said defendants caused a survey and location
of the road as contemplated by the act of incorporation, and that
said road includes the land upon which the trespass complained of
was committed, and which is a portion of one of the sections
granted to the Territory of Minnesota by the act of Congress
aforesaid.
The plaintiff to this defense set up by way of replication that
before the trespasses complained of were committed -- namely on the
4th of August, 1854 -- an act was passed by Congress repealing the
act previously passed on the 29th of June, granting land in aid of
the construction of said road.
To this replication the defendants demurred, and the plaintiff
joined in the demurrer.
The district court gave judgment for the defendants on the
demurrer.
An appeal was taken from this judgment to the supreme court of
the territory, where, after argument, the judgment was affirmed.
From this judgment the plaintiff has appealed to this Court by writ
of error.
The writ of error was made returnable to this Court on the
fourth Monday of December, 1854, and the record was brought up by
the defendants in error and filed and docketed on the 21st of the
same month.
The Attorney General now moves, on behalf of the United States,
to withdraw his writ of error and discontinue the appeal to this
Court, which motion is resisted by the counsel for the
defendants.
After an appeal brought to the appellate court, the withdrawal
or discontinuance of the same is not a matter of course, but if the
plaintiff finds it expedient to discontinue, he must first obtain
leave of the court. 2 Daniel's Pr. 1644;
36
U. S. 11 Pet. 55. The discontinuance is usually granted
on the application, unless some special reason be shown by the
defendant for retaining the case with a view to a determination on
the merits. Usually, the courts will not allow it if the party
intend at some future time to bring a new appeal, as the allowance
under such circumstances would be unjust to the defendant. There is
no such ground of objection here, as the Attorney General disclaims
trying the questions involved upon the present pleadings. These
pleadings, with the exception of some questions arising upon the
powers conferred upon the defendants under their act of
incorporation, confine the issue to the effect and operation of the
act of Congress granting the lands in aid of the construction of
the road, and of the subsequent repealing act. And these
Page 59 U. S. 243
doubtless comprised all the questions which the counsel in the
court below, representing the United States, supposed could be
material. They are presented very fully and lawyer-like upon the
record, and are involved in the judgment rendered in the court
below.
The Attorney General, however, avers that there are other
questions than those appearing on the record which he deems
material to be brought to the consideration of the court in
deciding upon the force and effect of these acts of Congress
referred to and without which he is unwilling to submit the case to
the final determination of this Court, and asks, therefore, for a
withdrawal of the appeal. Without expressing any opinion whether
there may or may not be questions presented, other than those
appearing upon this record, bearing upon the general matters
involved in the litigation, the Court is of opinion that the
grounds stated by the Attorney General, and his opinion expressed
as the legal representative of the government, are sufficient to
justify us in granting leave for the discontinuance.
Some technical grounds have been presented depending upon the
rules and practice of the Court for the dismissal of the case from
the docket and of the writ of error which we have not deemed it
important to notice, as we think the motion should be granted upon
the general ground stated.
Motion to withdraw and discontinue the appeal by writ of
error in this case granted.