'l'ABORECK V.·B. &111. R.R. CO. IN NEBRASKA.
B. & 'M. R. R. Co;
((Jircuit (lourt, D. Ndrraska.
The act of April 21, 1876, (19 Bt. 35,) passed for the protection of settlers on public lands, by pre-emption and homesteads, does not apply to a case where, prior ,to 'such pre-emption or homestead entry, the lands had been specially granted by act of congress, and had fully vested in the grintee.
Suit in Equity. H. H. Blodgett, for complainant. T. M. Marquett and J. W. Deweese, for respondent. 'MOCRARY, C. J. The controlling question in this case is, did the grant to the Burlington & Missouri River Railroad Company attach to the land in controversy on the fifteenth day of June, 1865, the date at Which the line of the railroad was definitely fixed nnder the provision!! of the act of congress approved July 2, 1864, making a grant of lan<l to said company? 13 St. p. 364, § 19. Complainant insists that the title did not pass to the company nntil the land was actually selected by the company and pa\ented to i t . ' Section 19 of the act above named provides as follows:
"Sec. 19. And be it further enacted, that for the purpose of aiding in the construction of sai(1. road, there be, and herebyis, granted to the said Burling" ton & Missouri River Railroad Company every alternate section of public land (excepting mineral lands, as provided in the act) designated. by odd numbers, to the amount of 10 alternate sections per mile on each side of said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United. States, and to which a pre-emption or homestead claim may not have attached at the time that the line of said road is definitely fixed: prOVided, that said company shall accept this grant within one year from the passage of this act, by filing such acceptance with the secretary Of the interior, and shall
also establish the line of said road, and file a map thereof with the secretary of the interior within one year of the date of said acceptanee, when the said secretary shall withdraw the lands embraced in this grant from market."
The agreed statement of facts shows that the line was definitely fixed June 15, 1865, at which time the land in question had not been sold, reserved, or otherwise disposed of by the government, nor bad any pre-emption or homestead claim attached. The complainant's claim, whatever it was, did not attach to the land until in the year 1871, at which time the proceedings to obtain title under the homestead Jaw were inaugurated; The general rule that grants of land of this character take effect from the time that the line of the railroad is definitely f!xed or located, is well settled. Knevals v. Hyde, 1 McCrary, 402; RailrQad Co. v. Smith, 9 Wall. 95; U. S. v. B. ft M. R. R. Co. 98 U. S.334; M.1(, d T. By. Co. v. K. P. By. Co. 97 U. S. 491; Schule/lberg v. lIarriman, 21 Wall. 44; Leavenworth, etc., R. Co. v. U. S. 92 U. S. 733. . The only question open for consideration in this case is whether there is anything in the provisions of the grant under which the reo spondent claims to take the case olit of the general rule established by these authorities. Counsel for complainant insists that, since the grant has no lateral limits, and there is no limitation of distance from the road within which the selection is to be made, the rule does not apply. I fail to see the force of this 'objection. The grant is of "every alternate section of public land (excepting the mineral lands, as provided in this act) designated by odd numbers to the amount of 10 alternate sections per mile on each side of said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time that the line of said road is definitely fixed." This seems to be a definite and explicit grant of all the land embraced within 10 alternate sections on each side of the line of the road, with the exceptions named. Nothing is wanting to make it definite and absolute except 1Ihe definite location or fixing of the line; and there can be no-doubt, in view of the decisions already referred to, that the title to the land in controversy vested in the respondent when the route was fixed and the location became certain. By the location of the line the location of the land became certain, and the title, w1;lich was previously imperfect, acquired precision and became attached to the land. The fact that congress did not prescribe in this grant any limitation upon the distance from the road
TABORECK V. B. & M. R. R. CO. IN NEBRASKA.
within which the company may make selections, in lieu of lands previously sold or disposed of by the government, can make no difference in the construction of the above quoted. A question of greater difficplty arises under the act of April 21, 1876, (19 St. 35.) That statute confirms "all pre-emption and homestead entries, or entries in compliance with any law of the United States, of the public lands, made in g<>od faith,by actual settlers, upon tracts of land of not more than 160 a.cres each, within' the lim·' its of any iand gran.t, prior to the time when notice of the withdrawal of the lands embraced in such grant was received at the local land· office in the district in which such lands are'situate," ete.. It is insisted that this statute is broad enough to embrace within its terms the case at bar; but it appears to me that the act, by its terms, presupposes a case in which notice of withdrawal of the lands was reIpy. opinion, to'a quired by law to be given. It does, .n9t, case where, prior to any such pre-emption or homestead entry, the lands had been specially granted by an act of congress, and had fully vested in the grantee. To give it such a construction would ,b!'l equivalent to saying that congress intended tb take lands from an owner whose title was perfect, and confer the'm 'upon ll.nother. It is conceded that the line had been definitely fixed within the meaning of the act before any steps were taken by the complainant to acquire title under the homestead or pre-emption laws, and Wfo116ws from this fact, as already shown, that the titlo vested in .tbe .grantee, the lands being within the 20-mile limits. The act of-congress was itself a grant, as well as a law, and had all the force of a patent. When the condition (the definite location of the line) the title became absolute. It cannot be supposed that congress intended, by the act of 1876, to divest titles which had previously been perfected. That act, like previous laws of a similar kind, was intended to give force and effect to the principle that "when an individual In the proseeution of a right does everything which the law requires him to do, and he fails to attain his right by the misconduct or neglect of a public officer, the law will protect him." Lytle v. State of Arkansas, 9 How. 333. But this principle applies only "where, by law or contract, the acquisition of a right is made dependent upon the performance of certain specified acts." 'Phe Yosemite Valley Case, 15 Wall. 9l. The present case does not fall within the rule. There is nothing in the granting act requiring officers of the land department to' gh'e notice of the withdrawal of the land from mar),et. It does not appear that such officers failed to perform any act that the law required of them