givtjn ,up or re¥fvations,:311(l: were of great Nor is it unqerstQ04that ill a.ny c,ase ",hoce had peen disp'osed, their reversion to the, government brought the. grant. Why should a different constrdctioll. apply to lands. to 'which a homestead or pre·emption· right bas attachedi': "Did 'congress hitlmd tti say that the'hght()f the company also attached,a<ndwhichever proved tb bethe,betterl'ight should obtain tbe llUl,d? 1[<, I[< pUf}lQse of.. thQgovernment un· that namely, ",1\i1e. we, givingliberalJ>hto the give hll:Y(t( or.t,o whlcb,accordln.gto our Ia,W's,we have permitted lI. pre-emI?tlOn or right to' attach. No right, to stich land passps bytbis' grant. ... ' . ... It neceasarHy means that, ifsl1chirights have attached/they [the'lands] are not '
f()l"Iis and: other pl.irpot:tes' which i
, So in Bullard v.
_,.; "" :;
, ' "
of the to PIlYil,R"declaration o.fl til" QOUft ,that the title of l,llilder these and superiur to the tirtle on the under ,If the lands at tQe,ti,me of these settIEl91ent'S il;lnd pre.elJ.lption dilc}ij.rl\tiPl\B,W'!:U'e effectual:ly witp,drawl1from Or pre-emption, by orders of the depa,rtml'nt, whicp, we toth!! plaintiff's title, for by th!'t withdrawal or the la,pds were reserved for anothet purpose,' to.which ,they were ultimately apptopriated'by line 'act of 1862, and no title could be established, becausetbe;'land department:hadtJo it." I ' : I, ;
I'. !,' .' ·i"'::':':'· .
Co., 122' U. S.
' " . .
'IIi:RtiiUooild'do. v. '132 ,l1,2;'the contest was between a railroad company, claiming under a grant of lands made 'in' 'l"8Mtothe state dfMinnesota, similart(Vthe'on.e'ipvol\Ted in the 1)Ullmeyer fuBti; . Before the passage of act,' tlamely; ip lSi65, one Turner took- 'eertain preliminary steps, under the 'homestead la#s'of the United for the entry,of.!thelandsthereitl'dispute. 'The entry made bY. him)wRs, hoWever; 'tatlooled iIi 1872; and' in 1877to.rsame laildswere,enlered by Mrs. Whitney as ahdniestead. 'The grant9H866 eXcepredi:Itinds to which a right of homestead or pre-emption"lhM'attaclied)'''' The claim ofthe railroad depended \ipoti the questionwhetner the lands came into the grant Of 1866, upon the cancellation in 1872 of the entry made by Tutnerinl865. It was held that Turner's entry, not l>eing void upon its faee; operated to exclude the land from the tailh>ad gralit, and that, upon the cancellation entry,thetract in q,uestiorfdid Ii!)t inure t() tllepenefitof thecompiiily ,but revel-tedto the becam¢'iapan.of the public dpxpam, subjflct to appropriation by the first leg!lI ,applicant. , These eases are, in the judgment of this court,conclllsive the contention that the lands' here in dispute becatne plu1i of the place lands of theCenttld road, after for the benefit Of ihe other road had COlnpa'nr,anQaaU,sfiedwitll 'other
".' ,.,i. ':, It remai:ilstoconsfderthe, elaiJn of the
of ,release by
the la:tteri'to the forn'ler ", Although the landldndisptite were BfJyfield branch Of withdrawn from sale or locatioti"16r the: benefit of the. Olbllha: Company, andalthQ«gh the orders of 'Withdrawal were in force at the date of the execptioq.;ofthe above and deed of release,. we cannot see that the: had any legal interest in these lattds"which at the date of that agreement and deed .could have been transferred by it to thE! Oentral·Company. When the agreement had notbeenspecially selected \ a:nd'deedwere made, andsetap:a:rt for the purpQse-,9f deficiences tn the place limits of iPe 'Bayneld road. U:i:ltU and set apart with the approval ()( thtlltm4 d\3partment,tQey the fullest legal sense, the property of the United States. In Barney v. Railroad 00., 117 U.S. 2.9 2,,6 Sup. Ct. Rep. 654, said: '. . "In'the (:onstrllction 'of 'Iluld-grant acts' in aid of railroads, there is a wellestablished distinction. observed between.' granted lands' and ·indemnity lands.:"" The former are tb'olfe falling withi ti the limits' specially designated, and the title to which" 8ttaches,"when the· lands'are located, fly an approved and'8ooeptell survey of the rood Ii led iuthe Il.inddepal'tment as of the date oNhe ,adiofcongrells. .iThe Jatterare those lal\dsselected in lieu of parcels lost byopreviGus diSpoflition or reservation for other purposes,and the title tow'biCh:·i1«<lrues, only of their selection." .
:Qtty, etc., R. V· .00icago, etc., Ry. 00., 117 U. S. 406 t 408, 6 Sup. Qt.'iRep. 790:,' .l . . . "No title to indemnity hinds was vested until a selection was made by which and made approved . by the secretary of .the lllterU)r." .. , . . . .
1 . . . . .': ,. ';. .. '... ;: . . : ',' · ,
The saule ,view.was in R. 00. v. Price 00.,188 U·.S.4·96, 513, at. Rep. 341, of the questions was as:.to the ,right. of the state of Wisconsin to tax, as against a railroad company, within indemnity limits, that ,had been seleQted and reporteq. to ;tpesecretary of. tl;:1eip.terior to be taken in lieu .of lands lost int'he place But at the time thetax was assessed, that officer ha<i.,uot approved such It W.l;lS held that the approval of the secretary wl;lSessential to the efficienpy of the selections, apd to give to tJ:1e compa,ny any title to the lanc1sselected. After ob,that hJsalltion was J)ot ministe\ial, the court said: ,;"He [the secretary] was iathe first place, whether there were. an,y ,deticiencies in to the which t,obe in4;lemnity lands; and. in the place, particular indemnity lands selected could be properlr taken for those defi· ciencies; In: order 'to reach a proper conClusiononth'esetwo questions, he had also to inquire and determine ,whether any lallds in the place limits'have .beenpreviously,disposed of. by thELgovel'nment,or whether any pre-emption or homestea<J, rignts had attachec;Ll>ljlfore the line of road was detinitely fixed. bl;lfi9 indemll;ity a loss w,as ... !It ... aPP/.:Qved,therl;l were in. faut, only preliminarypr6ceedinga taken' for that"I>U1'pose; and' 'tbe illdemfiity lands remained unaffected in their title. Until then the lands which might be taken as indemnityweteincapable.of identification. The 'proposed selections ramailtcd.theproperty oUbe Uni!'ed States. The government was', .indeed, un-