Morten Mortenson et al., Plaintiffs and Appellants, v. Burlington Northern, Inc., a Delaware Corporation, Appellee, 434 F.2d 1314 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 434 F.2d 1314 (9th Cir. 1970) December 15, 1970

Appeal from the United States District Court for the District of Montana; Russell E. Smith, Judge.

Floyd Small, Helena, Mont. (argued), of Milton G. Anderson, Sidney, Mont., and Dale Cox, Glendive, Mont., for appellant.

Cale Crowley (argued), of Crowley, Kilbourne, Haughey, Hanson & Gallagher, Billings, Mont., Earl F. Requa, Gen. Counsel, St. Paul, Minn., for appellee.

Before CHAMBERS, BROWNING and KILKENNY, Circuit Judges.


Here an effort is made to get mineral rights excluded by the terms of the grant from appellee's predecessor.

The district court was unable to distinguish this case from Russell v. Texas Co. (Northern Pacific Railway Co.) (9th Cir. 1957), 238 F.2d 636, and ruled against plaintiffs-appellants, 295 F. Supp. 158.

We are unable to distinguish Russell either. So we affirm.