*695

969.

fused to admit the proof, and also refused an instruction to the jury, which was requested, that in order to find for the plaintiff they must be satisfied that the land was occupied for military purposes on April 17, 1828, or was reserved for military purposes at that time, or was treated by the government as thus reserved. The plaintiff recovered, but for the error in this ruling and refusal, this court reversed the judgment and ordered a new trial. On the second trial, the judgment in which is now before us for review, no proof was offered of the military occupation; the plaintiffs relying upon the patent to Grignon, and the defendant upon the legislative confirmation of the claim to Gardapier, which operated to perfect his title to the tract named, including the premises in controversy, if it were not excepted by its occupation by the United States for military purposes. Such an exception, if it existed, should have been established by the plaintiffs, whose right to the premises depended upon its existence. If the land was thus occupied the confirmation did not apply, and it remained public property. That which was essential to the plaintiffs' recovery was not, therefore, established, nor was any evidence offered for that purpose. The confirmation to Gardapier and the title which followed to the tract designated stood unquestioned, and justified the direction given to the jury that they should find for the defendant.

It would seem that the plaintiffs offered a patent to Gardapier, also issued in 1870, and that its admission was refused. We cannot see what bearing it may have had, as a copy of it is not contained nor are its contents stated in the record. It could not deprive the confirmee of the land confirmed to him by the act of congress if that was by specific boundaries, distinguishing and separating it from other parcels, or was capable of identification. If, by a legislative declaration, a specific tract is confirmed to any one, his title is not strengthened by a subsequent patent from the government. That instrument may be of great service to him in proving his title, if contested, and the extent of his land, especially when proof of its boundaries would otherwise rest in the uncertain recollection of witnesses. It would thus be an instrument of quiet and security to him, but it could not add to the validity and completeness of the title confirmed by the act of congress. Langdeau v. Hanes, 21 Wall. 521; Ryan v. Carter, 93 U. S. 78; Tripp v. Spring, 5 Sawy. 209, 216. If there was any difference in the grade of the two conveyances of the government,-that by a direct legislative act, and that by officers acting under provisions of the statute,-it would seem that there should be greater weight and dignity attached to the legislative grant as proceeding more immediately from the source of title than the patent. No impeachment can be had of the motives of the legislature, whereas the motives of officers employed to supervise the alienation of public lands may sometimes be questioned, as in proceedings to set aside their action. Still, if the law be complied with, the title passes as completely in the one case as in the other. Montgomery v. Bevans, 1 Sawy. 677.

Judgment affirmed.

(112 U. S. 720)

ST. PAUL & S. C. R. Co. and others v. WINONA & ST. P. R. Co.1

(January 5, 1885.)

1. RAILROAD LAND GRANTS-TITLE-CONFLICTING GRANTS.

In grants of land to aid in building railroads, the title to the lands within the primary limits within which all the odd or even sections are granted relates, after the road is located according to law, to the date of the grant; and in cases where these limits, as between different roads, conflict or encroach on each other, priority of date of the act of congress, and not priority of location of the line of road, gives priority of title.

18. C. 2 N. W. Rep. 489.

2. SAME PRIORITY OF LOCATION.

When the acts of congress in such cases are of the same date, or grants are made for different roads by the same statute, priority of location gives no priority of right; but where the limits of the primary grants, which are settled by the location, conflict, as by crossing or lapping, the parties building the roads under those grants take the sections within the conflicting limits of primary location in equal undivided moieties, without regard to priority of location of the line of the road, or priority of construction.

3. SAME SELECTION LIMITS.

A different rule prevails in case of lands to be settled in lieu of those within the limits of primary location, which have been sold or pre-empted before the location is made, where the limits of selection interfere or overlap.

4. SAME TITLE, HOW DETERMINED.

In such cases neither priority of grant, nor priority of location, nor priority of construction, give priority of right; but this is determined by priority of selection, where the selection is made according to law.

In Error to the Supreme Court of the State of Minnesota.

E. C. Palmer, for plaintiffs in error. Thos. Wilson, for defendant in

error.

MILLER, J. "This is a writ of error to the supreme court of the state of Minnesota, and a motion is made to dismiss it for want of jurisdiction. It will sufficiently appear in the opinion on the merits that the rights asserted by both parties are founded on acts of congress, and require the construction of those acts to determine their conflicting claims. The motion to dismiss. therefore, cannot prevail. The source of this controversy is to be found in the act of congress of March 3, 1857, (11 St. 195,) making grants of land to the territory of Minnesota and the state of Alabama to aid in the construction of railroads. The first section of this statute the important one in the case is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that there be, and is hereby, granted to the territory of Minnesota, for the purpose of aiding in the construction of railroads from Stillwater, by way of St. Paul and St. Anthony, to a point be. tween the foot of Big Stone Lake and the mouth of Sioux Wood river, with a branch via Saint Cloud and Crow Wing to the navigable waters of the Red River of the North at such point as the legislature of said territory may determine; from St. Paul and from St. Anthony via Minneapolis to a convenient point of junction west of the Mississippi, to the southern boundary of the territory, in the direction of the mouth of the Big Sioux river, with a branch via Faribault to the north line of the state of Iowa, west of range sixteen; from Winona via St. Peter to a point on the Big Sioux river south of the forty-fifth parallel of north latitude; also from La Crescent via Target Lake, up the valley of Root river, to a point of junction with the last-mentioned road, east of range seventeen,-every alternate section of land designated by odd numbers, for six sections in width on each side of each of said roads and branches; but in case it shall appear that the United States have, when the lines or routes of said roads and branches are definitely fixed, sold any sections, or any parts thereof, granted as aforesaid, or that the right of pre-emption has attached to the same, then it shall be lawful for any agent or agents to be appointed by the governor of said territory or future state to select, subject to the approval of the secretary of the interior, from the lands of the United States, nearest to the tiers of sections above specified, so much lands in alternate sections or parts of sections as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached as aforesaid; which lands (thus selected in lieu of those sold, and to which pre-emption rights have attached as aforesaid, together with the sections and parts of sections designated by odd numbers as aforesaid and appropriated as aforesaid) shall be held by the territory or future state of Minnesota for the use and purpose aforesaid: provided, that the

and to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches: provided further, that the lands hereby granted for and on account of said roads and branches, severally, shall be exclusively applied in the construction of that road for and on account of which such lands are hereby granted, and shall be disposed of only as the work progresses, and the same shall be applied to no other purpose whatsoever: and provided further, that any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purpose whatsoever, be, and the same are hereby, reserved to the United States from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads and branches through such reserved lands, in which case the rights of way only shall be granted, subject to the approval of the president of the United States."

The territory of Minnesota accepted this grant and conferred the right to the lands which came to it by means of its provisions on certain railroad corporations, which failed to perform their obligations to the state; by reason of which, and by the foreclosure of statutory mortgages, the state resumed control of the lands. It is unnecessary to pursue the various steps by which it was done, but it may be stated shortly that the right to build one of the roads mentioned in the act of congress, and to receive the land granted in aid of the enterprise, namely, from St. Paul and St. Anthony, by way of Minneapolis, to the southern boundary of the state, in the direction of the mouth of the Big Sioux river, became vested in the St. Paul & Sioux City Railroad Company, the plaintiff in error in this case. A similar right in regard to the road to be built from Winona via St. Peter to a point on the Big Sioux river, south of the forty-fifth parallel of latitude, and to the lands granted by the act in aid of it, became vested in the Winona & St. Peter Railroad Company, the defendant in error. These companies have complied with the terms of the grant by congress and by the Minnesota legislature, and completed the construction of the roads which they undertook to build. They have also, each of them, received large quantities of the land appropriated by the act of March, 1857, and by subsequent acts on the same subject, and, at one point where the lines of the two roads crossed, so that the grant of lands to each of the roads ran into the other's limits, the conflict has been settled by adopting the principle of an equal undivided interest in the lands so situated.

The present controversy has relation to another part of the general course of these roads, where the lines of their location, not approaching each other so close that the limits of six miles within which the alternate six sections are to be first sought for interfere with each other, but so close that the fifteen miles limits, under the act of 1857, of selection for lands sold or preempted do overlap each other, as do also the limits of the extension of the grants under the acts of 1864 and 1865, to be hereafter considered. It is in regard to the lands to be selected under all these grants, and chiefly in regard to the claim of the St. Paul*company, that, in search of its deficient lands in place, (using that phrase for lands within six miles of its road,) which had been disposed of before its location, it can, within its limit of fifteen miles under the original act, or its twenty miles under the subsequent acts, make those selections of odd-numbered sections within the six-mile limit of the Winona company, that the present controversy arises. The secretary of the interior, after a contest before the department between the parties to the present litigation, certified to the state of Minnesota, on May 14, 1874, a large quantity of lands, of odd-numbered sections, within the six-miles limit of the Winona road, as land properly selected by the St. Paul Company, to make up its deficiencies of lands within its own six-mile limits, and also to make up {ts deficiencies within the twenty-mile limits before referred to. A small part

of these lands was within the fifteen-mile limits of the Winona road, and not within its six-mile limit. Thereupon the Winona Company brought the present suit, in the proper court of the state, to have a declaration of its rights in the lands described in a schedule attached to the bill, as against the St. Paul Company and others, and to restrain them from receiving a patent or other evidences of title to the lands from the governor of the state. The local court granted relief, but whether to the full extent of the prayer of plaintiff we do not know; for, while the judgment of that court is before us, with a specific description of the pieces of land which it declares to be rightfully owned by the Winona Company, the schedules referred to in the original petition are not in the record. From that judgment the St. Paul Company appealed to the supreme court of the state, where it was affirmed, and then prosecuted this writ of error to that judgment of affirmance. The judge of the district court for Blue Earth county, in which the case was first tried, made an elaborate finding of the facts on which his judgment was rendered, and also an amended finding, and by these, so far as any controversy on the facts arises, the supreme court of Minnesota was governed and so is this court. These findings of fact are very full, and are intended to meet several aspects of the case, some of which are, in our view, immaterial to its decision.

The supreme court of Minnesota divides the lands in controversy in the suit into four classes, only the first two of which are in controversy here, namely: First. Those lying without the six, but within the fifteen, miles limits of the defendant, (the St. Paul Company,) and within the six miles limits of plaintiff, (the Winona Company.) Second. Those lying without the six miles limits of each company, within the fifteen miles limits of plaintiff, (the Winona Company,) and without the fifteen, but within the twenty, miles limits of the defendant, (the St. Paul Company.) The decision of that court gave the lands embraced in both these classes to the Winona Company, and the St. Paul Company assigns for error here that it is entitled to both classes.

*

The act of March 3, 1857, is of the class of acts which this court has repeatedly held to be a grant in præsenti. Its language is, "that there be, and hereby is, granted to the territory of Minnesota every alternate section of land designated by odd numbers, for six sections in width on each side of said roads;" and though the roads may not be located through these lands for several years, whenever the location is made the alternate odd-numbered sections are thereby ascertained, and the title then perfected relates back to the statute; and as to all such sections, or parts of sections, not sold, or to which a pre-emption right has not attached at the time of this location, the title is valid from the date of the act. There are, perhaps, other lands reserved by the United States, and otherwise excepted out of the grant, which do not pass, but these are not material to the decision of the present case. In this act of March 3, 1857, and in the earlier act of May 15, 1856, granting lands to the state of Iowa for railroad purposes, and perhaps in other similar acts, congress has, in a single statute, made provisions for several different roads, with different places of beginning and ending, and running in different directions. These roads have, in every instance, been built by different corporations, organized under state laws, having no other connection with each other than this common source from which the lands are received, and the rights and duties arising under these acts of congress, and the acts of the state on the same subject. In each and all of these cases the date of the title and the source of the title is the same, because it arises under the same act of congress. It results from this that no priority of title can be obtained by the earlier location of the line of the road, provided this be done within the time limited for the forfeiture of the grant. Though one of the corporations to which the right to build a road and receive the grant has been given, may locate its road two or three years earlier than another company authorized to build another road under the same grant, there is no priority of title nor any v.58-22

2

priority of right to the lands found in place within the six miles limits by rea. son of this earlier location.

As we said before, the title to the alternate sections to be taken within the limit, when all the odd sections are granted, becomes fixed, ascertained, and perfect in each case by this location of the line of the road, and in case of each road the title relates back to the act of congress. Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 501; Van Wyck v. Knevals, 106 U. S. 360; S. C. 1 SUP. CT. REP. 336; Cedar R., etc., Co. v. Herring, 110 U. S. 27; S. C. 3 Sup. CT. REP. 485; Grinnell v. Railroad Co. 103 U. S. 739. In cases where these lines of road do not cross each other, nor the limits within which the lands in place are found do not cross or overlap, nor the limits within which lands in lieu of those sold are pre-empted are to be selected, this is a matter of no consequence. But in the administration of these land grants of the same date it has more than once occurred that, by reason of the lines crossing each other or the exterior limits of the lands in place coming so near as to overlap, the question of priority of right has arisen. In such cases it has been insisted very earnestly that priority of location gave priority of right to all the lands coming within the six-miles limits of the road so first located. Such is the argument of plaintiff in error in this case; and while there is here no lap or collision of the six-mile limits of these two roads as located and constructed as to lands now in question, it is much insisted that, the appellant's road having been first located, this carries with it the identity of the limits within which indemnity lands may be selected for those sold or pre-empted within its own six-mile limits; and as this indemnity limit extends over a part of appellee's six-mile limits, it is urged that this selection, though made years after both roads are located and built, is a right paramount to any right the appellee has within that limit, unless it be the road-bed and right of way. It is on this ground that the appellant here insists upon its right to enter the six-mile limits of the appellee's road wherever its indemnity limits of 15 miles and its extension limits of 20 miles overlap the six-mile limit of the latter, and, to the exclusion of the appellee, select there all the odd-numbered sections to which that company would otherwise be entitled.

We do not think this proposition is sound. It has been the practice and usage of the land department, when these conflicting lines relate to the limits within which the designated alternate odd-numbered sections are to be found, to hold that the respective companies take the lands so situated in undivided moieties, without regard to the date of the location of the lines of road. The parties to this litigation adjusted the conflict where their roads crossed on that basis, and the principle is a necessary result of the rule that no priority of right is secured by priority of location. We entertain no doubt of its soundness. It follows from these principles that the decision of the supreme court was right that the lands embraced in its first class, namely, those found within the six-mile limit of the road of the plaintiff below, the Winona Company, and without the six-mile limit of the defendant, were definitely fixed and ascertained to belong to the former when its line was located, and could not be taken to supply deficiences in the grant of the other company, whether its road was located first or last.

A careful examination of the list of lands decreed by the court to be the property of plaintiff below, demonstrates that much the larger proportion of the lands in controversy, probably nine-tenths of them, belong to this class, and are found within the limits of the Winona Company's six-mile primary grant. It is also to be remarked that this includes all the lands in controversy lying east of the west line of range 39.

With regard to the lands of the second class, as classified by the supreme court, the decision depends upon the right of selection by the respective parties, or of the state for them, of lands not found within the six-mile limit and the twenty-mile limit when their respective roads were located. By the

$728