Opinion of the Court.

"hereby granted every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the Territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State." These words terminate the grant, the remainder of the clause being immaterial in this connection, and if the whole clause had been followed by a period, instead of a semicolon, the meaning, perhaps, would have been clearer. But there follows another clause, that "whenever, prior to said time, any of said sections, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or preëmpted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections," etc. There is here a clear distinction between the lands granted in præsenti in the first clause, and lands to be thereafter selected by the company, whenever the deficiency in the granted lands shall be ascertained.

The sixth section carries out the same idea. It requires a survey of forty miles in width on both sides of the entire line, whether passing through States or Territories. This would include only the granted or place limits within a Territory, but within a State would cover the indemnity limits as well. There was no order in the act to withdraw any lands from settlement or sale, but such withdrawal seems to have been made in pursuance of the practice of the Interior Department, and for the purpose of preventing lands granted to the railroad company from being taken up by settlers, before the completion of the line and the final issue of patents. As was said by Mr. Secretary Lamar in the Atlantic & Pacific Railroad Company, 6 Land Dec. 84, 88: " Waiving all questions as to whether or not said granting act took from the Secretary all authority to withdraw said indemnity limits from settlement, it is manifest that the said act gave no special authority or direction to the executive to withdraw said lands; and when such withdrawal was

Opinion of the Court.

made it was made by virtue of the general authority over such matters possessed by the Secretary of the Interior, and in the exercise of his discretion; so that, were the withdrawal to be revoked, no law would be violated, no contract broken." But as the power to withdraw extends only to the "lands hereby granted" and all other lands, except those hereby granted, remain open to settlement, we are thrown back upon section 3 to determine what are the lands "hereby granted."

Now, as already observed, there is a clear distinction in section 3 between granted lands and lands to be selected after the deficiency in the granted lands has been ascertained. It is true. that, prior to this selection being made, many of these indemnity lands may be taken up, and an insufficient amount left for the railroad, (and we do not deny the force of the dissenting opinion in Hewitt v. Shultz in that connection,) but we think this possibility serves rather as a basis for a further action by Congress, such as was made in the Northern Pacific case by the joint resolution of May 31, 1870, (16 Stat. 378,) than as a reason for withdrawing from settlement a vast amount of land which the railroad may never have occasion to require. It was said by Secretary Lamar in the case of the Atlantic & Pacific Railroad Co, 6 Land Dec. 84, 87: "As to the lands within the indemnity limits, the contract was based upon two contingencies; that of losing lands within the granted limits, and being able to find sufficient to indemify the company among the odd-numbered sections within a further limit of ten miles. Here the interest of the company was so remote and contingent, being a mere potentiality, and not a grant, that Congress declined to order a withdrawal for the benefit of the same, or even a survey within the Territories." In view of the constant trend of population toward the Western Territories, it is a serious matter to vithdraw these enormous tracts from settlement and hold them, as it were, in mortmain against the protest of those who stand ready to enter upon and possess them.

It becomes still more serious when, as in this case, there was a delay of twenty-seven years between the granting act and the act of selection. It seems intolerable that a settler, who had entered and paid for lands in good faith, should be liable to an

VOL. CLXXXIII-44

Statement of the Case.

ouster after a possible lapse of twenty-seven years, when the very improvements he may have put upon the lands might be the reason for their selection by the company.

We are therefore of opinion that the act of July 27, 1866, did not authorize the withdrawal by the Secretary of the Interior of the indemnity lands; that such lands remained open to homestead and preëmption entry, and that patents issued to settlers within such indemnity limits, based upon the entries made prior to the selection by the railroad company, approved by the Interior Department, were valid as conveyances of the land as against the selection by the railroad company.

The judgment of the Supreme Court of California is, therefore,

Affirmed.

GROECK v. SOUTHERN PACIFIC RAILROAD COM

PANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 82. Argued December 5, 6, 1901. - Decided January 13, 1902.

This case was argued and submitted with Southern Pacific Railroad Company v. Bell, ante, 675, and by the same counsel, resembles that in all essential particulars, and is controlled by it.

THIS was a bill in equity filed in the Circuit Court for the Southern District of California by the Southern Pacific Railroad Company, plaintiff, against Otto Groeck and another, defendants, to obtain a decree declaring the company to be the rightful owner of the south half of a certain quarter section of land in Kings County, California, and that defendants hold the legal title thereto in trust for it, a conveyance of which was prayed.

The amended bill, as abstracted by the Circuit Court of Appeals, ($7 Fed. Rep. 970,) alleged: "That the appellant accepted the terms of the grant, fixed the general route of its road as contemplated by the actsand on January 3, 1867, filed a map thereof

Statement of the Case.

in the office of the Commissioner of the General Land Office; that on that date the Commissioner accepted and approved the map and the route designated by it, and on March 22, 1867, under the direction of the Secretary of the Interior, he withdrew the odd sections of land lying within thirty miles of the line of road from sale or location, preëmption or homestead entry; that on November 2, 1869, the Secretary of the Interior made an order declaring the withdrawal revoked; that on December 15, 1869, the Secretary suspended his order of November 2; that on July 26, 1870, the Secretary restored the withdrawal of March 22, 1867; that on August 15, 1887, the Secretary declared the withdrawal of March 22, 1867, revoked, as to the indemnity sections thereof; that the appellant commenced to build its road during the year 1870, and completed the construction in different sections between that date and the year 1889the last section, extending from Huron westerly to Alcalde, having been constructed during the year 1888; that the land in suit is opposite to, and coterminous with that section, and is within the indemnity limits of the grant, and is not included in any exception therefrom; that on September 2, 1885, the appellee Groeck settled on the land in controversy, and during the same month filed his preëmption claim therefor in the proper land office of the United States, and thereafter complied with the land office regulations, and on June 7, 1886, made preëmption proof and payment for the land; that on April 11, 1890, patent was issued from the United States, conveying the land to him; that, as the appellant's road was constructed in several sections, such sections were examined by commissioners appointed by the President, as provided by section 4 of the act, and that said commissioners reported that such sections had been completed as required by the act, and thereupon the President accepted and approved the reports; that a map of the definite location of such section between Huron and Alcalde was filed with and approved by the Secretary of the Interior on April 2, 1889, and the President accepted and approved the commissioners' report on that section on November 8, 1889; that on July 13, 1891, the appellant, acting under the direction of the Secretary of the Interior, selected the land in suit, as granted to it by the act."

Statement of the Case.

To this bill defendants interposed a plea setting up the various steps by which the defendant Groeck obtained the patent of the land as a qualified preëmptor, and thereby, as alleged, obtained a legal and perfect title in fee simple; and further setting up the defence of laches to the claim of the railroad company.

The Circuit Court entered an order sustaining the plea upon the ground of laches, with leave to the company to reply to the plea and take issue as to the matters of fact therein alleged. 74 Fed. Rep. 585. The company having declined to avail itself of this privilege, the Circuit Court ordered the bill to be dismissed. Whereupon the railroad company appealed to the Circuit Court of Appeals, which reversed the decree of the Circuit Court and remanded the case for further proceedings. 87 Fed. Rep. 970. The case coming on again for hearing a decree was rendered for the plaintiff; another appeal taken to the Court of Appeals, and the decree of the Circuit Court affirmed.

Mr. Maxwell Evarts for the Railroad Company. Mr. L. E. Payson was on his brief.

Mr. Joseph H. Call for Groeck, submitted on his brief.

MR. JUSTICE BROWN stated the case and delivered the opinion of the court.

This case resembles the one just decided in all its essential particulars and is controlled by it.

The decrees of both courts are therefore,

Reversed and the case remanded to the Circuit Court for the Southern District of California with directions to dismiss the bill.