the la:tteri'to the forn'ler ", Although the landldndisptite were BfJyfield branch Of withdrawn from sale or locatioti"16r the: benefit of the.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-
WISCONSIN CEl\T. R.
der a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned.. But such no title, and, until it was executed, created no legal interest which could be enforced by the courts." It results from these cases that the agreement between the Omaha. Company and the Central Company that the Jands in dispute should,' as between those companies, belong to the latter corporation, had no effect whatever upon the title ot right of property of the United States. If at that time the lands had been actually set apart for the Bayfield road by approved selections, to supply ascertained deficienc6s in the Elace lhnits of that road, a different question would have been presented for determination. It was stated at the bar that the decision of this case, and of two other cases in ejectment, tried at,thesume time, and depending same facts, would indirectly affect the title to large tracts of land, in the same situation as the particulal'lands here in dispute, and which have been heretofore sold, in good faithjby the Central Company, to bona fide purchasers, in the belief that they were embraced in the contained in the third se,ction of the act of May 5, 1864, and not excluded from, the operation of that apt by the sixth section relating to lands reserved to tho United States; and that a decision in favor of the defendant in the ent case would produce great confusion and trouble -among such purchasers. In view of this statement, the, court has felt it to be its duty to embody in this opinion ,all the material facta shown in evidence, and to state fully the grounds upon which its conclusion rests. That con. elusion is: That the lands in dispute were not granted by the United States for the benefit of the road mentioned in, the third section of the act of May 1), 1864, and that the grant in the first .section of the act 00856 for tbe benefit of the at a point on the line from the St. Croix river or lake to the .west end of Lake Superior, and extending to field, having been fully adjusted by the United States with the only COmpany that was entitled to the benefit of such last-named grant, the lands in dispute became apa!'t of the public domain, in virtue of the orders subsequently made by the secretary of the interior, and were thereafter open to entry under the homestead and pre-emption laws of the United
It is ordered that the verdict heretofore returned by the jury in this case be set aside, and a new trial awarded. Judge BUNN authorizes me to annolince his concurrence in the "iews herein expressed.
Similar orders were made at the same time in Wisconsin Oentral RaIlroad Company v. L. P. Lentz and Wisoo1l8in Oentral Railroad 00. v. Edwar(j BBkken. which were cases in ejectment, and involved the same questions.