Burke

This is a suit in equity to compel the defendant to execute a conveyance of certain premises, situate in the county of Imperial, state of California, to the plaintiff. In support of his claim for such relief the plaintiff alleges that the defendant railroad company obtained the title to the land in question, a certain half section, under and pursuant to the act of Congress of March 3, 1871 ( 16 Stat. 573 , c. 122), subject to the condition that all land so acquired by the said defendant, which ivas not sold or otherwise disposed of within three years subsequent to the completion of its railroad, should be open to settlement and pre-emption, and should be sold and disposed of to settlers, at a price not exceeding $2.50 per acre, to be paid to said railroad company by the purchaser of such land. The plaintiff then alleges, in apt language, the facts tending to show that he is entitled to a conveyance of the precise land in question.

In my judgment, the question at issue being merely one of law, arising upon a motion to dismiss, is of such simplicity as that, in ordinary cases, the court would content itself with the making of a formal order granting the motion. Plaintiff, who…