In the year 1879 the Sioux City company conveyed to the St. Paul & Sioux City Railroad Company, a Minnesota corporation, its roadbed, rolling stock, depots, depot grounds, and other property and franchises in connection 357]with its railroad; *and the latter company in 1881 sold and conveyed the same property and franchises to the Chicago, St. Paul, Minneapolis, & Omaha Railroad Company, which still owns and operates the road constructed by the Sioux City company north of Le Mars. The last-named company has remaining no other property or assets, except such land as may enure to it under the grant of Congress of May 12. 1864, out of the lands patented to the state but not conveyed to that corporation, all of which are pledged, so far as that could be legally done, to secure the debts specified in the mortgages in which Drake and Wilder were trustees. One of those mortgages was executed August 26, 1871; the other, February 5, 1884. The original debts secured by the mortgages aggregated $2,800,000, all of which has been paid off by sales of lands, except $660 000.

The preamble of an act of the legislature of Iowa, approved March 16, 1882, referred to the Act of May 12, 1864, providing that if the road from Sioux City to the Minnesota line was not completed within ten years from the acceptance of the grant the lands granted and not patented should revert to the state for the purpose of securing the completion of the road, and also to the statute of Iowa of April 3, 1866; and after reciting the failure of the Sioux City company to complete, or cause to be completed, any road on the line adopted therefor from Sioux City to Le Mars or any road in lieu thereof, it was declared "that all lands and all rights to lands, granted or intended to be granted to the Sioux City & St. Paul Railroad Company by said acts of Congress and of the general assembly of the state of Iowa, which have not been earned by said railroad company by a compliance with the conditions of said grant, be and the same are hereby absolutely and entirely resumed by the state of Iowa, and that the same be and are absolutely vested in said state as if the same had never been granted to said railroad company." Iowa Laws 1882, chap. 107, p. 102. On the 27th day of March, 1884, the state passed another act, by the first section of which it relinquished and conveyed to the United States all lands and rights to lands resumed and intended to be resumed by the above act of 358]March 16, 1882, § 1. *By the second section of that act the governor was directed to certify to the Secretary of the Interior all lands not theretofore patented to the state to aid in the construction of the Sioux City road, the lands so certified to be deemed those above relin

Pursuant to the latter act, the governor, on the 12th day of January, 1887, relinquished and conveyed to the United States 26,017.33 acres of the 85,457.40 acres of land which, as already stated, has been patented to the state for the benefit of the Sioux City company, but which were never certified to that company. Those lands are in Plymouth and Woodbury counties, and do not embrace the lands in dispute.

The Sioux City road was so constructed as to form a continuous line with the railroad of the St. Paul & Sioux City Railroad Company, a Minnesota corporation, to aid in the construction of which from St. Paul and St. Anthony to the southern boundary of that state Congress made the grant of March 3, 1857. The latter is the road referred to in the seventh section of the Act of May 12, 1864. Upon the construction by the Sioux City company of the road from the Minnesota line to Le Mars, that corporation obtained by lease the right to run and operate its cars over the road of the Iowa Falls & Sioux City railroad extending from Le Mars to Sioux City (and now operated by the Illinois Central Railroad Company), from which time the Iowa and Minnesota corporations and their grantees have continued to run and operate their roads as one continuous line from St. Paul to Sioux City.

Part of the lands in controversy here were entered upon by different persons between 1882 and 1885, claiming under the homestead and pre-emption laws of the United States, and making formal applications to enter such lands. Their applications were rejected, but they appealed from those decisions, continuing to improve and cultivate the lands under their claims, and, in some instances, making valuable improvements *And before the bringing|359 of this suit the Sioux City company had commenced actions in ejectment in one of the state courts against the parties in possession.

In 1887 application was made to the Secretary of the Interior on behalf of certain persons in O'Brien county, who had settled on the lands in controversy, as well as on the lands referred to in the above partition decree, requesting suit to be brought by the United States to assert its title to said lands. After argument before the Secretary by counsel severally representing the settlers as well as the Sioux City and Milwaukee companies, that officer-Secretary Lamar-rendered an elaborate opinion, in which the whole subject was reviewed. 6 U. S. Land Dec. 50, 62.

1. The lands now in dispute are part of the 85,457.40 acres patented by the United States to Iowa for the use and benefit of the Sioux City company, but never conveyed by the state to that company.

If the company has received as much of the public lands as it was entitled to have on account of constructed road, may not the lands in dispute-the time limited by Congress for the completion of the entire road having passed-be regarded as "undisposed of" within the meaning of section four of the Act of 1864,

cept as the same are patented under the provisions of this Act." Now, the manner prescribed for disposing of the lands granted was that patents should be issued to the state for one hundred sections of land for each section of ten consecutive miles, when the governor certified to the completion of such section in 363]good, substantial, and workmanlike manner as a first-class railroad. This was evidently the interpretation given by the state to the Act of Congress, for the governor never certified to the construction of any section of road less than ten consecutive miles in length.

It does not follow from this interpretation of the act that the company could never get lands for a fractional part of constructed road, less than ten consecutive miles. Provision was made for such cases by the clause directing patents to be issued to the state, as each section of ten consecutive miles was constructed, and was properly certified by the governor, "until said roads, or either of them, are completed, when the whole of the lands hereby granted shall be patented to the state for the uses aforesaid and none other." In other words, for a completed road, the state should have the full quantity of lands granted and found in oddnumbered sections, with the right to select other lands to supply any losses in either of the modes specified in the Act of Congress. But the time never came when the state could rightfully demand patents for the whole of the lands granted. The road was never completed, and therefore patents could not be legally issued, except for one hundred sections of land for each section of ten consecutive miles of road, certified by the governor of the state to have been constructed in the mode required by Congress. The result of this view is that the Secretary of the Interior was without authority to issue patents, except for the five sections of ten consecutive miles each, that is, for fifty miles of constructed road certified by the governor of the state. The state could not, without completing the road, or causing it to be completed, demand patents on account of the construction of less than a section of ten consecutive miles. This was the view taken by Secretary Lamar, who said that "a careful consideration of the granting act convinces me that there is no authority of law for patenting any lands on account of the six and a quarter miles of road [immediately north of Le Mars], and that no lands have been earned by the construction thereof." 6 U. S. Land Dec.

51.

In

4. Another contention is, that upon the issuing of the patents of 1872 and 1873 to the 364 state for the use and benefit of the railroad company, the title vested absolutely in the company, and the lands were thereby freed from restraints or alienation, from conditions subsequent, or from liability to forfeiture. support of this contention reference is made to Bybee v. Oregon & U. R. Co. 139 U. S. 663, 674, 676, 677 [35: 305, 306, 308]; Van Wyck v. Knevals, 106 U. S. 360 [27: 201]: Wisconsin Cent. R. Co. v. Price County, 133 U. S. 496 [33: 687]: Deseret Land Co. v. Tarpey, 142 U. 241 [35: 999]; St. Paul & P. R. Co. v. Northern Pac. R. Co. 139 U. S. 1, 6 [35: 77, 79]. But these are cases, as an examination of them will show, in which the grant was directly to

the railroad company, or in which the Act os Congress required that the patents for lands earned should be issued, not to the state for the benefit of the railroad company, but directly to the company itself. In the case now before us the statute directed patents to be issued to the state for the benefit of the company. So that, until the state disposed of the lands, the title was in it, as trustee, and not in the railroad company. Schulenberg v. Harriman, 88 U. S. 21 Wall. 59 [22: 554]; Lake Superior Ship Canal. R. & I. Co. v. Cunningham, 155 U. S. 372 [39: 189]. See also McGregor & M. R. Co. v. Brown, 39 Iowa, 655; Sioux City & St. P. R. Co. v. Osceola County, 43 Iowa, 321. In the case last named the Sioux City company was relieved from the payment of taxes upon some of the lands patented to the state for its benefit, upon the ground that the legal title was in the state, and the lands, for that reason, were not taxable. The question is altogether different from what it would be if patents for these lands had been issued, or if the state had conveyed them directly, to that company.

5. The company also contends that any calculation of the quantity of lands that he railroad company was entitled to receive, on account of constructed road, duly certified, must be on the basis that it was entitled to lands, in lieu of those awarded to the Milwaukee company in the common place limits of the two intersecting roads. In this interpretation of the statute we cannot concur.

The rule is well settled that when lands are granted by acts of Congress of the same date, or by the same Act, to aid in the construction[365 of two railroads that must necessarily intersect, or which are required to intersect, each grantee

the map of definite location having been filed and accepted-takes, as of the date of the grant, an equal undivided moiety of the lands within the conflicting place limits, without regard to the time of the location of the respective lines. Sioux City & St. P. R. Co. v. Chicago, M. & St. P. R. Co. 117 U. S. 406, 408 [29: 928, 929]; St. Paul & C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 727 [28: 872, 874]; Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 491, 501 [24: 1095, 1098]; Cedar Rapids & M. R. R. Co. v. Herring, 110 U. S. 27 [28: 56]; Grinnell v. Chicago, R. 1. & P. R. Co. 103 U. S. 739 [26: 456]. In Donahue v. Lake Superior Ship Canal, R. & I. Co. 155 U. S. 387 [39: 194], this court said: "The rule is that where two lines of road are aided by land grants made by the same Act, and the lines of those roads cross or intersect, the lands within the 'place' limits of both, at the crossing or intersection, do not pass to either company in preference to the other, no matter which line may be first located or road built, but pass in equal undivided moieties to each."

The grants for the Sioux City and Milwaukee roads were by the same Act. Of the granted sections in place limits common to both roads, each company, having filed its map of definite location, took, as of the date of the grant, an equal undivided moiety-no more. The equal undivided moiety granted for one road was not granted, nor could it be used, for the other road. Congress knew, when it passed the Act of 1864, that there would be an overlapping of place limits at the required point of intersection

We are of opinion that the measurement of 1887 should be taken as the basis for determining the area of the odd-numbered sections within place limits. In the agreed statement of facts reference is made to a list, certified from the General Land Office, of the odd numbered sections and parts of sections lying within the conflicting place limits of the Sioux City and Milwaukee roads, and it is agreed that that list is correct, according to the limits laid down on the map of 1887, "and correctly shows the area of each of said tracts." In the agreed 369]*statement of facts reference is also made to another list, certified from the General Land Office, and it is stated to be a correct list of the odd numbered sections and parts of sections within the place limits of the Sioux City road outside of the conflicting limits "and the areas thereof," as defined and certified on the map of 1887.

These lists were objected to by the railroad company as immaterial and irrelevant. But we do not perceive any good reason why they are not competent as evidence, -as much so as the diagram of 1867 and the lists based upon it. Surely it was competent for the land office, when determining whether the Sioux City company was entitled to additional lands, to ascertain, by careful remeasurement, the exact area of the odd-numbered sections covered by the grant of 1864, and thus determine whether the map furnished by the railroad company in 1867 was, in all respects, accurate. By examining the maps of 1867 and 1887 it was easy to perceive in what particulars they differed; and, by proof, to show which was correct. But the defendant took no proof to discredit the map of 1887, and rests this part of the case upon the general proposition that, after the lapse of so many years, the court should base its decree on the map of 1867, which was accepted by the government and was not questioned until the measurement of 1887 was made by the General Land Office. This view is, of course, entitled to great weight, and might be accepted, if the determination of this question of evidence and the acceptance of the measurement of 1887 would affect the rights of third parties to specific lands. The matter to be ascertained is the number of acres in each one of certain sections, the exterior boundaries of which are not in dispute. Now, it would seem that, as between the United States and the railroad company, and for the purpose of ascertaining the quantity in acres of public lands which the company earned, or could have earned, on account of the construction of the 50 miles of road, the latest official measurement of the area of the granted limits, not charged to have been fraudulently made, may be accepted as the best, if not conclusive, evidence.

It is said that a contrary view was announced 370] in United States v. Hancock, 133 U. S.

Our conclusion, then, is that the Sioux City company, having failed to complete the entire road, for the construction of which Congress made the grant in question, was not entitled to the whole of the lands granted, but, at most, only to one hundred odd-numbered sectionsas those sections were surveyed, whatever their quantity-for each section of ten consecutive miles constructed and certified by the governor of the state; and that, according to the measurement of 1887, which is accepted as the basis of calculation, the railroad company had, prior to the institution of this suit, received more lands, on account of the fifty miles of constructed road, certified by the governor, than it was entitled to receive. Under this view, it is unnecessary to inquire whether the particular lands here in dispute should not have been assigned to the company, rather than other lands containing a like number of acres that were, in fact, transferred to it, and which cannot now be recovered by the United States by reason of their having been disposed of by the company. If the company has received as much, in quantity, as should have been awarded to it, a court of equity will not recog nize its claim to more in whatever shape the claim is presented.

It is proper to say, in this connection, that the United States, in its bill, alleges that the excess of lands received by the company was 1,228.13 acres. We have found the excess to be 2.004.89 acres. The bill also states that the lands in Dickinson and O'Brien counties, here in dispute aggregate 29,979.85 *acres, and so the de [371 cree below assumes. The amount appears to be 21,692.18 acres, and it was so stated by Secretary Lamar. 6 U. S. Land Dec. 63. But these differences are immaterial on the present appeal, for we adjudge that, although the lands in dispute were patented to the state for the use and benefit of the Sioux City company, the latter is not entitled to any of them, whatever may be the aggregate quantity of acres. It is not claimed by the company that any of these lands constitute a part of those actually certified to it by the state.

7. The last contention of the appellants is that the claim of the United States ought not to prevail against the trustees in the mortgages executed by the railroad company, and which constitute the only security for bona fide holders of bonds secured by those mortgages. The first of these mortgages was executed August 1, 1871, before any lands were patented to the state, and before the railroad company had commenced the construction of its road; the second, on the 25th day of February, 1884, long