made special provisions in reference to those reserved sections, and thereby, and for the accomplishment of particular purposes, expressly declared, segregated them from the body of the public lands of the United States. Being thus devoted to specified objects, they were reserved to the United States, and could not be selected by the state, either under the act of 1863 or under that of 1866, for other and different objects. They could not be selected as indemnity lands under the act of 1863, because the lands to be selected under that act were restricted to odd-numbered sections; nor under the act of 1866, because, at the date of its passage, they were reserved for the special purposes indicated in the second section of the act of 1863.

It follows that the Missouri, Kansas & Texas Railroad Company was not entitled, in virtue of the act of 1866, to have indemnity lands from the even-numbered sections within the place limits of the Leavenworth road. The issuing of patents to it for such lands was unauthorized by law.

But we are of opinion that, in respect to the even-numbered sections within the indemnity limits of the Leavenworth road,that is, outside of 10 and within 20 miles of its line, the case stands upon wholly different grounds. We cannot assent to the suggestion that they also were reserved by the act of 1863, and excluded from the operation of the act of 1866. *The utmost that could be claimed, in respect to lands within the indemnity limits of the Leavenworth road, is that the odd-numbered sections in those limits, being designated by the act of 1863 as the source from which to supply losses in the place limits of that road, were excluded from the operation of the act of 1866. Whether such a claim could be sustained or not we need not now inquire; but that contention, if sound, does not meet the exigencies of the present case. We are dealing here with the evennumbered sections in the indemnity limits of the Leavenworth road, which were not devoted by the act of 1863 to any specified purpose, but were left under the general laws regulating the disposal of the public lands. No provision was made, as in the case of the even-numbered or reserved sections within the place limits, for their sale at not less than double the minimum price of the public lands when sold, nor were any restrictions placed upon their sale or disposition different from those applicable to the public lands generally. Settlers under the pre-emption and homestead laws were accorded by the act of 1863 no more rights and privileges in respect to the evennumbered sections within the indemnity limits of the Leavenworth road than they had in other public lands of the United States wherever situated. They were reserved to the United States only in the sense that all the public lands of the United States, not set apart for some declared object, are reserved to be disposed of under the general laws relating to the public domain. But a reservation of that general character is not what was meant by the act of 1866. That act excluded from its operation only such lands as had been reserved by congress or other competent

authority for some distinct, defined purpose.

This conclusion finds support in the peculiar language of the act of 1866 allowing selections by the Missouri-Kansas Company of indemnity lands, within 20 miles of its road, to be made from "the public lands of the United States nearest to the sections above specified," that is, nearest to the odd-numbered sections within the place limits. Many acts of congress, making grants of public lands in aid of the construction of railroads, have restricted the selection of indemnity lands simply to alternate sections or parts of sections nearest or most contiguous to the tier of sections in the place limits; thus apparently leaving it to the secretary of the interiorsubject, it may be, to the requirement as to alternation-to approve, as he might think best, the selection of odd-numbered or even-numbered sections within the prescribed indemnity limits.1 In many other acts the selection of indemnity lands was restricted to the odd-numbered sections, as was the case in the above act of 1863.2 The two classes of acts are to be found in the legislation of congress at the session the act of July 26, 1866, for the benefit of the Missouri-Kansas Company, was passed. The grants to Missouri and Minnesota of July 4, 1866; to Kansas of July 23, 1866; to the California & Oregon Railroad Company of July 25, 1866; and to the Atlantic & Pacific Railroad Company of July 27, 1866, -all, in terms, provided for the selection of odd-numbered sections for purposes of indemnity; while the grant to Kansas of July 25, 1866, to aid in the construction of the Kansas & Neosho Valley Railroad Company, and the grant of July 26, 1866, to the same state, for the benefit of the Missouri-Kansas Company, contained no such restriction, and only required that indemnity lands be selected from the public lands of the United States nearest to the tier of granted sections within the place limits of the respective roads. 14 St. p. 83, c. 165; Id. p. 87, c. 168; Id. p. 210, c. 212; Id. p. 239, c. 242; Id. pp. 293. 295, c. 278; Id. p. 236, c. 241; Id. p. 289, c. 270. This difference in land-grant acts was not unusual, as will be seen from the various statutes cited in the margin. We do not feel at liberty to hold that this difference was unintentional upon the part of congress. It is too well defined in its legislation to justify any such interpretation. The words in the act of July 26, 1866. for the benefit of the Missouri-Kansas Company, indicating the source from which in

'Illinois, 1850, 9 St. 466; Missouri, 1852, 10 St. 8: Arkansas and Missouri, 1853, 10 St. 155; Iowa, 1856, 11 St. 9; Florida, 1856, 11 St. 15; Alabama, 1856, 11 St. 17; Louisiana, 1856, 11 St. 18; Michigan, 1856, 11 St. 21; Wisconsin, 1856, 11 St. 20; Mississippi, 1856, 11 St. 30; Minnesota and Alabama, 1857, 11 St. 195; Minnesota, 1864, 13 St. 64; Wisconsin, 1864, 13 St. 66.

2 Kansas, 1863, 12 St. 772; Iowa, 1864, 13 St. 72; Northern Pacific R. Co., 1864, 13 St. 365; Minnesota, 1866, 14 St. 87; Kansas, 1866, 14 St. 210; California and Oregon R. Co., 1866, 14 St. 239; Atlantic & Pacific and Southern Pacific Railroads, 1866, 14 St. 292; Oregon Central R. Co., 1870, 16 St. 94: Texas Pacific R. Co., 1871, 16 St 576.

*377

homestead and pre-emption laws had not attached, to indemnify the MissouriKansas Company for losses in its place limits, and the issuing to it of patents therefor, were not without authority of law.

We have indicated, however, that the question as to the right of the MissouriKansas Company, for purposes of indemnity, to select even-numbered sections within the indemnity limits of the Leav enworth road, may, according to the averments of the bill-which the demurrer admits to be true-hare some connection with the rights acquired by individuals under the homestead and pre-emption laws. These averments are: That prior to July 26, 1866, and prior to the selection of indemnity lands for the Missouri-Kansas Company by the secretary of the interi. or,-which selections it is alleged were partially made on each of the respective days of August 20, 1872, July 29, 1874, and May 10, July 12, and December 26, 1876,—a large number of actual and bona fide settlers over the age of 21 years, and citizens of the United States, each thus and otherwise having all the qualifications required by the homestead and pre-emption laws of the United States to obtain patents from the United States, each for a halfquarter section of said lands within 10 miles of the located line of the Leavenworth road, and each for one quarter section of said lands outside of said 10-mile limits, but within 20 miles of said line of road, claimed the right under those laws to take the necessary proceedings and do the acts requisite to obtain title, respectively, to such tracts of land, including most of the lands in the patents mentioned; that for this purpose sundry of such persons, prior to July 26, 1866, and prior to such selections, entered upon, occupied, and improved, as required by said laws, a half-quarter section of land, within said 10-mile limits, and others each entered upon, occupied, and improved, as required by the same laws, some each onehalf-quarter section of land, and others each a quarter section of such lands; that sundry of such persons did each do all the acts required by, and in all respects complied with, the homestead and pre-emption laws in due time to be entitled to occupy said tracts of half-quarter and quarter sections, respectively, and to receive patents therefor from the United States; that said persons have ever since been, and still are, each entitled to receive a patent conveying to them, respectively, said tracts of land so by each occupied and improved, including most of the lands in said patents mentioned; that said persons have, respectively, ever since so entering upon said lands, continued to occupy and hold them, and are ready and willing and offer to do whatever may be required to procure a patent from the United States; and that the defendants, and those under whom they claim title, always well knew these facts, and none of them ever took or had possession of any of said lands, but all of them have been in the occupancy and possession of other persons as aforesaid, claiming the right to obtain title thereto from the United States.

The bill, after stating that the government was unable, at the commencement of the suit, to specify what portions and tracts of land have been settled upon and occupied by actual bona fide settlers, as aforesaid, for which patents should be issued, and asking permission to make proof thereof, proceeds to allege that the Missouri-Kansas Company, on the --day of March, 1867, filed its map of definite location in the department of the interior; that the commissioner of the general landoffice, by letter under date of March 19, 1867, directed the receiver and register of the local land-office at Humboldt, Kan., where the above-mentioned lands were subject to be taken under the homestead and pre-emption laws, to reserve from sale, location, or entry of any kind, all the land outside of a line 10 miles from the line of location of the said Missouri-Kansas Company; and on and after April 3, 1867, the date of the receipt of the above order at the local office, said lands were by them thereafter unlawfully re served from sale, location, or entry; that the lands so withdrawn from sale, location, and entry include numerous tracts described in the patents in question; and that on and after April 3, 1867, said register and receiver each unlawfully proclaimed and made known their refusal to permit any citizen or settler to do any act to procure any title to any of such lands under any law, and they each refused to do or permit to be done by any citizen or settler any act requiring their official action or sanction to procure a right or title to them.

Notwithstanding this-the bill further alleges a large number of citizens of the United States, each over the age of 21 years, and otherwise having all the qualifications required by said homestead and pre-emption laws, both prior to and on and after April 3, 1867, and prior to any selection of such lands by or in favor of the railroad company, each went upon, occupied, and improved half-quarter and quarter sections of land, as aforesaid, and some of them each complied with the homestead and pre-emption laws, and did every act necessary to procure patents for the lands so occupied by them, respectively, except only that the receiver and register would not permit any act to be done with or by them officially for the purpose of procuring title; that said persons, who have made large and valuable improvements upon the lands so occupied by them, have continued ever since to occupy and claim them, and a right to perfect their respective titles, and have always been and are ready and willing to do all acts required to entitle them to patents; and that the Missouri-Kansas Company has sold or agreed to sell to various persons, named as defendants herein, the lands so described, which are claimed by such defendants in fee or under such agreement, or under mortgages, but with notice of the rights of the United States and of said claimants under the homestead and preemption laws.

If the facts are as thus alleged, it is clear that the Missouri-Kansas Company holds patents to land both within the place and

indemnity limits of the Leavenworth road which equitably belong to bona fide settlers who acquired rights under the homestead and pre-emption laws, which were not lost by reason of the land department having, by mistake or an erroneous interpretation of the statutes in question, caused patents to be issued to the company. The case made by the above admitted averments of the bill is one of sheer spoliation upon the part of the company of the rights of settlers, at least of those whose rights attached prior to the withdrawal of 1867; whether of others, it is not necessary, at this time, to determine. It is true that the bill is not as full as it might have been in respect to the persons who are alleged to have acquired superior rights under the homestead and pre-emption law, or as to the particular tracts of land they claimed or occupied, or as to the dates when such homestead and preemption rights respectively accrued; and, if application had been made for a bill of particulars, it should have been granted. But there was no specific objection to the bill upon that ground. The defendants rested the case upon a general demurrer for want of equity, and it must be determined, in its present shape, upon the theory that the facts are as alleged in the bill. The argument on this branch of the case, by counsel for the railroad company, proceeds, in part, upon the assumption that there was no such compliance with the homestead and pre-emption laws as would give any of the settlers referred to in the bill the rights claimed for them in this suit. Indeed, one of the counsel insists that such settlers have no existence except in the bill filed by the government. And many other suggestions are made that depend upon matters of which we cannot, upon this record, take cognizance. We must take the case to be that which is presented by the bill, and give judgment accordingly. The defendants, by their demurrers, admit that the settlers, referred to in the bill, did all that the laws of the United States required in order to give them the rights which, the bill alleges, belong to them, and in disregard of which the patents in question were issued. If the railroad company chose to invite a decision upon such a case, it must abide the consequences.

That the case, as now presented, is one of equitable cognizance, we do not doubt. This question must be determined with reference to the equity jurisdiction of the courts of the United States, and not by reference to the remedies given by the local law. As to some of the lands, so far as we can judge by the averments of the bill, the United States has a direct interest in them. As to others, it is under an obligation to claimants under the homestead and pre-emption laws to undo the wrong alleged to have been done by its officers, in violation of law, by removing the cloud cast upon its title by the patents in question, and thereby enable it to properly administer these lands, and to give clear title to those whose rights, under those laws, may be superior to those of the railway company. A suit, therefore, to obtain a decree annulling the patents in

question, so far as it is proper to do so, was required by the duty the government owed as well to the public as to the individuals who acquired rights, which the patents, if allowed to stand, may defeat or embarrass.

66

In U. S. v. Tin Co., 125 U. S. 273, 286, 8 Sup. Ct. Rep. 850, which was a suit by the United States to set aside a patent alleged to have been improperly issued, and in which the right of the attorney general to bring such a suit was denied, this court held that such an action could be maintained where it appeared that there was an obligation on the part of the United States to the public, or to any individual, or where it had any interest of its own. In the recent case of U. S. v. Beebe, 127 U. S. 338, 342, 8 Sup. Ct. Rep. 1083, it was said: And it may now be accepted as settled that the United States can properly proceed by bill in equity to have a judicial decree of nullity and an order of cancellation of a patent issued in mistake, or obtained by fraud, where the government has a direct interest, or is under an obligation respecting the relief invoked. Even if it had not been thus authoritatively settled, it would have been difficult, upon principle, to reach any other conclusion. The public domain is held by the government as part of its trust. The government is charged with the duty and clothed with the power to protect it from trespass and unlawful appropriation, and, under certain circumstances, to invest the individual citizen with the sole possession of the title which had till then been common to all the people as the beneficiaries of the trust. If a patent is wrongfully issued to one individual which should have been issued to another, or if two patents for the same land have been issued to two different individuals, it may properly be left to the individuals to settle, by personal litigation, the question of right in which they alone are interested. But if it should come to the knowledge of the gov ernment that a patent has been fraudulently obtained, and that such fraudulent patent, if allowed to stand, would work prejudice to the interests or rights of the United States, or would prevent the gov ernment from fulfilling an obligation incurred by it, either to the public or to an individual, which personal litigation could not remedy, there would be an occasion which would make it the duty of the gov-a ernment to institute judicial proceedings to vacate such patent. In the case before us, the bill avers that the patents, whose cancellation is asked for, were obtained by fraud and imposition on the part of the patentee, Beebe. It asserts that there exists, on the part of the United States, an obligation to issue patents to the rightful owners of the lands described in the bill; that they cannot perform their obligation until these fraudulent patents are annulled, and that they therefore bring this suit to annul these fraudulent instruments, whose existence renders the United States incapable of fulfilling their said prior obligation." These principles equally apply where patents have been issued by mistake, and they are especially applicable where, as in the present case, a multiplici