¶1The lot is a part of the lands granted to the Oregon & California Railroad Company by the Act of Congress of July 25, 1866, and the amendments thereto. These acts contain provisions requiring the sale of the lands to actual settlers in tracts of not more than 160 acres, or one-quarter section, to each purchaser at prices not to exceed $2.50 per acre, and reserving to Congress the right to alter, amend or repeal the acts, having due regard for the rights of the grantee companies.
¶2On April 30, 1908, the Congress adopted a joint resolution, authorizing and directing the Attorney General of the United States to institute and prosecute any and all suits in equity, actions at law or other proceedings, to enforce any rights or remedies of- the United States arising or growing out of either or any of the granting acts and their amendments, namely: Act of July 25, 1866, 14 Stats, at L. 239, Chap. 242; Act of June 25, 1868, 15 Stats, at L. 80, Chap. 80; Act of April 10, 1869, 16 Stats, at L. 47, Chap. 27 ; Act of May 4,1870,16 Stats, at L. 94, Chap. 69.
¶3Asserting that the Oregon & California Railroad Company had violated the terms of the grant, the United States brought suit to declare a forfeiture of the granted lands including the land involved in the present case. This suit reached its finality in the United States Supreme Court in the case of Oregon & California R. R. Co. et al. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908, see, also, Rose’s U. S. Notes), and 243 U. S. 549 (61 L. Ed. 890, 37 Sup. Ct. Rep. 443). On June 21, 1915, *303the United States Supreme Court held in effect that the provisos of the land grant requiring the granted lands to be sold by the railroad companies only to actual settlers in quantities not exceeding 160 acres each, and at a price not exceeding $2.50 per acre, were not conditions subsequent, the violation of which resulted in forfeiture of the grants, but were covenants which are enforceable. The United States Supreme Court enjoined any disposition of the lands until Congress should have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy, as it might deem fitting under the circumstances, and at the same time secure fco the defendants, the railroad companies, all the value the granting acts conferred upon the railroads.
¶4Pursuant to these decisions the Congress passed the Act of June 9, 1916, known as the Chamberlain-Ferris Act, 39 Stats, at L. 218, Chap. 137, revesting in the United States title to all the granted lands which had not been sold prior to July 1, 1913, but preserving the rights of the railroad company which were declared to be $2.50 per acre, and declaring the terms upon which such revested lands might be entered under the public land laws by qualified persons.
¶5Pursuant to the provisions of the Chamberlain-Ferris Act portions of the revested lands, including the tract involved herein, were classified as agricultural lands, and listed and advertised as open to entry by the public with a preferred right to honorably discharged soldiers, sailors and marines. Frank L. Stancliff, the defendant, exercising his preferred right as an honorably discharged soldier, made a homestead entry under the United States land laws for lot 9 in the Roseburg land office, and proceeded to occupy and improve the land. Plaintiff thereafter *304brought this action to eject the defendant, the complaint being in the usual form. The answer avers the granting and patenting of lot 9 to the railroad company, its revestment in the United States through the Chamberlain-Ferris Act, and the homestead entry of defendant and his occupancy of the land under such entry. Lot 9 is surrounded by lands which were in private ownership prior to the grant to the railroad company.
¶6The reply admits the homestead entry of the land by defendant, and his possession; denies the other allegations of the answer and affirmatively alleges: That the land lies within the primary limits of the railroad grant, being in an odd-numbered section within the twenty-mile limits covered by the grant; that the railroad company definitely located, that part of its road opposite the land January 7, 1871; that the road was actually completed opposite the land and accepted by the United States on August 29, 1883, and the railroad company was thereupon entitled to patent; that patent was issued to the company May 28, 1902, but that the patent did not convey title; that the lot in question is part of the southeast quarter of section 33; that in the year 1878, Robert Phipps, grantor and predecessor in interest of the plaintiff, was in the actual, exclusive, notorious, peaceable and adverse possession of the lot, claiming title thereto under a chain of conveyances from his predecessors, extending from the year 1863, down to and including a conveyance from one Harkness, dated October 23, 1878, under which Phipps went into possession; that Robert Phipps continued in like possession of the lot, having the same under fence and farming it, from that time to on or about March 9, 1912, when he placed plaintiff in possession under *305a deed dated March 9, 1912, and from that time till about September 19, 1920, when defendant wrongfully took possession, plaintiff continued in possession, having the land under fence and farming the same, and claiming to own it against all the world. The reply further alleges that the plaintiff and his grantors and predecessors in interest have, since the year 1863, until defendant wrongfully took possession, been in the actual, adverse, hostile, exclusive, open, notorious and continuous possession of lot 9, holding and owning and claiming to own the same adversely to all the world; that title to the lot was not vested in the Oregon & California Railroad Company at the time of the passage of the Chamberlain-Ferris Act, of at any time after the year 1881.
¶7The defendant demurred to the reply. The court sustained the demurrer, and, plaintiff refusing to plead further, judgment was entered for defendant.
¶8The lot in question was described in the suit above mentioned in the federal court, and it is apparent that the record title to the lot is in the government of the United States, and that the Department of the Interior of the United States, through the United States land office, granted defendant’s homestead entry. The United States, therefore, has a claim to the land in question. There has been no adjudication of the claim of plaintiff to the land as between the United States and the plaintiff.
¶9
“That the foregoing propositions, hereinbefore offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said state shall never interfere with the primary disposal *306of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof … .” 1 Or. L., p. 27.
¶10The legislative assembly of the State of Oregon, by an act approved June 3, 1859, accepted the proposition of the United States, and solemnly ordained that the state ‘ ‘ shall never interfere with the primary disposal of the soil within the same by the United States, ’ ’ and that it would conform to the requirement of the Congress of the United States above quoted: 1 Or. L., p. 30.
¶11In the opinion in Pin v. Morris, 1 Or. 230, a case involving a portion of a donation of land claim, Mr. Chief Justice Williams said:
“Congress has organized a land department of the government, whose business it is made to determine those questions which arise out of the disposal of the public lands, and the courts of the country cannot interfere to regulate or control that business, without introducing uncertainty and confusion into the whole system. ’ ’
¶12In Moore v. Fields, 1 Or. 317, the syllabus reads:
“The courts of this State will entertain no proceedings, arising out of facts still pending in, and undetermined by, the land department of the United States.”
¶13This policy has been strictly adhered to ever since: Frink v. Thomas, 20 Or. 265 (25 Pac. 717, 12 L. R. A. 239); Robertson v. State Land Board, 42 Or. 183 (70 Pac. 614); Weatherford v. McKay, 59 Or. 558 (117 Pac. 969); State ex rel. v. Hyde, 88 Or. 1, 40 (169 Pac. 757, 171 Pac. 582, Ann. Cas. 1918E, 688). See, also, Catholic Bishop v. Gibbon, 158 U. S. 155 (39 L. Ed. 931, 15 Sup. Ct. Rep. 779, see, also, Rose’s U. S. Notes).
¶14*307
¶15The government of the United States hy its Department of the Interior and Land Department, with the sanction of the federal Supreme Court, says in effect, that title to the lot in question which was granted to the Oregon & California Railroad Company in aid of its railroad, hy virtue of the Act of July 25, 1866, and the amendments thereto, pursuant to the plan suggested by the Supreme Court of the United States and carried out by the Chamberlain-Ferris Act, revested in the United States and was subject to entry under the homestead laws by the defendant.
¶16The plaintiff says in substance, that the title to the land was not so revested in the United States and was not subject to defendant’s homestead entry. It does not appear that this question has ever been presented to the United States Land Department.
¶17It would not he in conformity with the enabling act of Congress admitting Oregon into the Union or the ordinance of the legislative assembly of the state accepting the propositions of Congress in that regard, nor in accordance with the long established policy of the courts, to interfere in the disposal of the lot of land in question. We are unable to see how the court could do so without the presence of the United States government as an interested party herein.
¶18
¶19If plaintiff’s contention could be acceded to, it would result in utter confusion. If the defendant should be dispossessed by the court, the Land Department might adhere to its present program, resulting in a perplexing question as to the issuance of a patent for the land. The judgment of the Circuit Court sustaining the demurrer to the reply is affirmed.
¶20For the reason suggested the action is dismissed without prejudice to plaintiff’s rights. Affirmed.
¶21Reversed and remanded on rehearing January 14, 1924.
¶22On Rehearing.
¶24This is an action in ejectment. The title asserted by plaintiff is based on adverse possession. The land in controversy is a forty-acre tract, located within the limits of the grant of public lands to the Oregon & California Bailroad Company, made by act of Congress, approved July 25, 1866 (14 U. S. Stats, at L. 239), as amended by the Act of April 10, 1869 (16 U. S. Stats, at L. 47). Legal title to the lands in question passed to the railroad company in 1871 upon the definite location of its line of road: Deseret Salt Co. v. Tarpey, 142 U. S. 241 (35 L. Ed. 999, 12 Sup. Ct. Rep. 158, see, also, Rose’s U. S. Notes).
¶25Plaintiff contends that the railroad company fully-earned the grant and became vested with the absolute title to the lands upon the completion of its railroad line opposite the land in question in 1883. The possession upon which plaintiff relies became adverse to the railroad company when the legal title passed to it in 1871, and continued without interruption to and beyond the time of the completion of the railroad line, and if the above contention of plaintiff is correct, the adverse possession of plaintiff’s predecessor ripened into perfect title as against the whole world upon the expiration of the period of ten years from the date of its initiation, and plaintiff having acquired that title by deed, could not be deprived thereof by act of Congress, or otherwise.
¶26Thirty-five years thereafter, and on June 9, 1916, Congress passed an act (39 U. S. Stats, at L. 218), known as the Chamberlain-Ferris Act, purporting torevest the United States with “title to so much *310of the lands granted” to the railroad company “as had not been sold by the Oregon and California Railroad Company prior to July first, nineteen hundred and thirteen.”
¶27Defendant was allowed to enter the land as a homestead by the United States land office at Roseburg, Oregon, and thereafter, on the nineteenth day of September, 1920, defendant entered into the possession of the land, and has since retained the same for the purpose of perfecting his homestead entry. Defendant insists that, as against those acquiring title from the Railroad Company, the United States, by the terms of the grant, retained paramount title to the granted lands, and upon assertion of that title by the Chamberlain-Ferris Act, plaintiff’s title was destroyed.
¶28An examination of some of the decisions of the Supreme Court of the United States, in cases involving the land grant above mentioned and similar grants in aid of the construction of railroad and telegraph lines, will aid in the determination of the above contentions of the parties.
¶29Between 1862 and 1875 Congress made numerous grants of public lands in aid of the construction of what is generally known as the Pacific railroads and telegraph lines. Among such grants were' the following: The Union Pacific grant, including Central Pacific and other branch lines, 12 U. S. Stats, at L. 489, as amended by 13 U. S. Stats, at L. 356; New Orleans Pacific grant, including Texas Pacific and other branch lines, 16 U. S. Stats, at L, 579; Northern Pacific grant, 13 U. S. Stats, at L. 365; Oregon Central Railroad Company grant, 16 U. S. Stats, at L. 94.
¶30*311The granting clause in each of the last-mentioned grants was substantially the same as in the grant to the Oregon & California Railroad Company, and each granting act contained a provision to the effect that Congress might add to, alter, amend or repeal the act, having due regard for the rights of the grantee named therein.
¶31In each of such grants it was the intention of the United States, expressed in the granting act, that the grantee should sell and dispose of to individuals, in relatively small tracts, all the lands conveyed to it by the grant, excepting only its right of way and such lands as were necessary for the company to reserve for depots, stations, sidetracks, wood-yards, standing grounds and other needful uses in operating the road, which latter lands it was intended should be permanently devoted to railroad purposes for the benefit of the public.
¶32
¶33
¶34Toltec Ranch Co. v. Cook, supra,involved a grant of lands to the Central Pacific Railroad Company, made by act of Congress of July 1, 1862 (12 U. S. Stats, at L. 489), as amended by Act of July 2, 1864 (13 U. S. Stats, at L. 356). The action was in ejectment; plaintiff based his title on adverse possession, initiated and continued for the period prescribed by the statute of limitations of Utah, before patent was issued by the United States to the railroad company. The defendant claimed title by deed from the railroad company. The court sustained the claim of title by adverse possession, and speaking through Mr. Justice McKenna, said:
“The question presented is whether adverse possession under claim of right for the period prescribed by the statute of limitations of Utah before patent was issued by the United States can prevail against *313the latter. It has been decided by this court that adverse possession of land gives title to it and all of the remedies which attach to the title. This was expressly ruled in Sharon v. Tucker, 144 U. S. 533 (36 L. Ed. 532, 12 Sup. Ct. Rep. 720). …
“Adverse possession, therefore, may be said to transfer the title as effectually as a conveyance from the owner; it may be considered as tantamount to a conveyance. And the Central Pacific Railroad Company had the title. Deseret Salt Co. v. Tarpey, 142 U. S. 241 (35 L. Ed. 999, 12 Sup. Ct. Rep. 158). It would seem, therefore, an irresistible conclusion that it could have been transferred by any of the means which the law provided.”
¶35Iowa R. Land Co. v. Blumer, supra,involved a tract of land included in the grant made by the act of Congress of May 15, 1856 (11 U. S. Stats, at L. 9), to the state of Iowa, in aid of the construction of certain railways in that state, which lands were later granted by the state of Iowa to the Iowa Palls and Sioux City Railway Company, which company in turn had conveyed the lands to the Iowa Railroad Land Company. Plaintiff brought the suit for the purpose of quieting the title to forty acres, and claimed title in himself by adverse possession for more than ten years. Two defenses were urged. First, that under the terms of the grant the legal title did not pass from the government until the completion of the road; and second, that the predecessor in interest of the plaintiff (Carraher), during his possession of the premises, attempted to effect a timber culture entry upon the lands in the general land office of the United States, and thereby recognized title in the United States, which act, it was claimed, precluded plaintiff, his successor, from using that possession in support of his claim of adverse possession. *314Plaintiff prevailed. Rejecting’ the first defense, the court, speaking through Mr. Justice Day, said:
“But when the grant is in praesenti, and nothing remains to be done for the administration of the grant in the Land Department, and the conditions of the grant have been complied with and the grant fully earned, as in this case, notwithstanding the want of final certification and the issue of the patent, the railroad company had such title as would enable it to maintain ejectment against one wrongfully on the lands, and title by prescription would run against it in favor of one in adverse possession under color of title.”
¶36Answering the second defense, the court said:
“After 1891, as we have seen, the railway company was in position to have ousted him (Carraher) from the premises and asserted its superior title and right. It did not attempt to do this, and, so far as the record discloses, made no objection to Carraher planting and cultivating the trees required by the act of Congress to perfect his title under the second application. His possession was certainly open, notorious, continuous, and adverse, and, unless he was acting* in bad faith, was such as would ripen into full title as against the railway company. # * And for more than ten years that company was in such position under its grant that it might have maintained an action in ejectment and asserted its title to the premises as against Carraher. ’ ’
¶37Missouri Valley Land Co. v. Wiese, supra,was a suit to quiet title, and involved grants of land made to the Union Pacific and Sioux City & Pacific Railroad Company by act of Congress of July 1, 1862 (12 U. S. Stats, at L. 489), and the amendatory Act of July 2, 1864 (13 U. S. Stats, at L. 356). The grants overlapped. The suit concerned a forty-acre tract within an overlap. Both the Union Pacific Company and the Sioux Company claimed the land, *315and the General Land Office took the position that it was excepted from both grants and subject to an indemnity school selection made by the state of Nebraska. A long drawn-out controversy ensued, and in the meantime on December 1, 1882, the Union Pacific sold, and in 1887, after completion of the payment for the same, conveyed the land to John Japp, plaintiff’s predecessor, by warranty deed. Japp went into and remained in open, continuous and adverse possession of the land, farming the same until February 28, 1891, when he sold it to the plaintiff. The adverse possession commenced by Japp was thereafter continued by plaintiff. Japp attempted to obtain title to the land from the United States, and was permitted to enter the same under the provisions of the act of March 3, 1887 (24 U. S. Stats, at L. 556), which provided, among other things, that a bona fide purchaser of lands forming part of a railroad grant, but, which for any reason had been excepted from the grant, might make payment to the United States for the lands and obtain a patent therefor. Later the school indemnity selection was canceled by the General Land Office; Japp’s application "was rejected and his entry canceled, and finally, on May 17, 1898, it was determined by the Department of the Interior that a patent should be issued to the companies jointly. Wiese thereupon, and before the above-mentioned patent had been issued, brought this suit against the above-mentioned companies and the Missouri Yalley Land Company, the successor of one of them, in a District Court of Nebraska, to quiet his title to the tract. The Union Pacific Company disclaimed any interest in the lands, and the other defendants resisted the suit upon the grounds: (1) That the title of the Sioux Company remained in the United States until patent *316was issued in 1903, and (2) That during the pendency of the entry of Japp allowed by the General Land Office upon his application to purchase the lands under the act of Congress of March 3, 1897, the possession relied upon by plaintiff was in no sense adverse, but was in subserviency to the title of the United States.
¶38The District Court gave a decree, adjudging that plaintiff had a perfect title to the land. That decree was affirmed by the Supreme Court of Nebraska. An appeal was taken from the latter court to the Supreme Court of the United States, where the decree of the state court was affirmed in an opinion delivered by Mr. Chief Justice White. The learned Chief Justice, after reciting the facts relating to the above-mentioned controversy respecting the title to the lands and stating the contentions of defendants made in the state courts, said:
“The plaintiff, by his reply, in substance alleged that the grants were in praesenti, and that the effect of the completion of the railroads and compliance with all the terms and conditions of the act prior to January 1, 1870, operated to pass the title of the government on or prior to that date, and that the General Land Office had not thereafter jurisdiction in respect to such lands, and that the adverse possession of the plaintiff was not affected by the proceedings had in the Land Department concerning such land.
“The cause was submitted to the court on the pleadings and evidence, and a decree was entered adjudging that Wiese had a perfect title to the tract. The supreme court of Nebraska affirmed the decree (77 Neb. 40, 108 N. W. 175), holding, in substance, that the grant to the two companies of the tract in controversy was in praesenti, that the title of the companies attached upon the definite location of their line?, of road, and that the adverse possession of *317Wiese and Ms grantor, commencing in 1882, had completely barred any claims of the companies to the property. …
“That the decision of the court below was right, as applied to the land within the place limits of the main line grant made to the Union Pacific Railroad Company by the act of 1862 and the amendatory act of 1864, is not an open question. This is so, since it has been expressly held that the main line grant was one in praesenti, that the grantee company had a right to bring ejectment for such land after the definite location of its road, and that consequently, from the time of such definite location, a possession might be acquired by a third party to land embraced within the grant, which would be adverse, even as to the railroad company, and bar its title if possession was continued for the statutory length of time.”
¶39The Sioux City & Pacific Railroad Company was a branch road, and it was claimed that the branch line grant could not be held to have been a grant in praesenti. The Chief Justice made it clear that the legal title passed to the branch line on the definite location of the road, just as it did in the case of the main line, and then continued:
“That the entry and holding of the land by Japp, the grantor of Wiese, under the purchase by Japp in 1882, and the continued possession by Wiese after he acquired the land from Japp, should be deemed to have been adverse to the title in possession of the Sioux City Company, if the possession by Japp was not that of a cotenant, and such possession was unaffected by the proceedings had in the Land Office subsequent to 1882, is not questioned. We are clearly of opinion that the possession of Japp and his grantee was adverse in the strictest sense of the term, and the acts of Wiese in seeldng to acquire title from the United States under the Act of 1887, with the view of removing a cloud upon his title, was not an *318act of recognition or acknowledgment of a superior title, either in the United States or in the Sioux City Company, operating to interrupt the continuity of his adverse possession, and, in any event, cannot be held to have destroyed a title which had already become perfect by the expiration of the statutory period in Nebraska for acquiring the legal title to land by adverse possession.”
¶40The rule established by the foregoing cases was applied in the case of Northern Pac. R. Co. v. Ely, 197 U. S. 1 (49 L. Ed. 639, 25 Sup. Ct. Rep. 1302), where it was held that the word “conveyances” as used in an act of Congress included transfer of title by adverse possession. That suit was commenced by the railroad company to quiet title, remove clouds and to recover possession of numerous parcels of real estate alleged to be portions of its right of way in the 'State of Washington. The railroad company acquired the right of way by congressional grant, and as granted, the same was four hundred feet in width. Some of the defendants had been in possession of the land, claiming the same adversely to the railroad company for more than ten years prior to April 28, 1904. The railroad company prior to that date had deeded to numerous other parties, parcels of land within the four hundred feet right of way, but as it could not lawfully dispose of any part of its right of way to individuals for private purposes (Northern Pac. R. Co. v. Townsend, 190 U. S. 267 (47 L. Ed. 1044, 23 Sup. Ct. Rep. 671), Congress, on the last-mentioned date, approved an act (33 U. S. Stats, at L. 538), by the terms of which the width of the right of way was reduced to two hundred feet, and conveyances of land forming part of the right of way theretofore made by the railroad com*319pany were “legalized, validated and confirmed.” The Townsend case field tfiat title to tfie rigfit of way conld not be acquired by adverse possession, but tfie above act did not refer to transfer of title in that manner.
¶41Mr. Chief Justice Fuller, delivering tfie opinion of tfie court, said:
“So far as title to portions of tfie rigfit of way could be lawfully acquired from tfie railway company defendants below, appellees in tfie supreme court, had acquired title to their parcels by adverse possession, and occupied tfie same position as if they had received conveyances, which the act of April 28, 1904, operated to confirm.”
¶42Tfie Chief Justice introduced tfie foregoing statement with, a quotation from tfie opinion in tfie case of Toltec Ranch Co. v. Cook, 191 U. S. 532, 538 (48 L. Ed. 291, 292, 24 Sup. Ct. Rep. 166, 167):
“Adverse possession, therefore, may be said to transfer tfie title as effectually as a conveyance from tfie owner; it may be considered as tantamount to a conveyance.”
¶43
¶44
¶45And presently, when we come to consider the provisions of the grant, the violation of which by the railroad company culminated in the passage of the Chamberlain-Ferris Act, it will be found that such violations occurred long after the adverse possession of plaintiffs predecessor had ripened into a perfect title; that plaintiff’s predecessor, by his occupation and possession of the l$nd, brought himself within the class of -persons to whom, by the terms of the grant, the railroad company was directed and required to sell the land, and the limitations as to quantity (not more than one hundred and sixty acres), and price (not exceeding $2.50 per acre), were not exceeded; and finally, that title was perfected in plaintiff’s predecessor, without any violation of the terms of the grant, either by plaintiff’s predecessor or by the railroad company, but in strict conformity thereto.
¶46It appears from plaintiff’s reply that the tract of land involved in the instant case lies within the place limits of the grant to the Oregon & California Railroad Company; that the line of the railroad was definitely. located prior to January 7, 1871, on which date the map of survey and definite location of the road was accepted and approved 'by the Secretary of the Interior of the United States; that the railroad and telegraph line was actually completed and the grant fully earned by the railroad company prior to August 29, 1883, and on that date the report of the railroad company, that the road was completed, *321was accepted and approved by commissioners appointed by the President in accordance with the requirements of the granting’ act, which said commissioners had theretofore examined the line; that the grant having been fully performed by the railroad company, the latter thereupon became entitled to a patent from the United States for the land in question, and patent to the land was thereafter issued to the railroad company under date of May 28, 1902.
¶47
¶48
¶49
¶50The Chamberlain-Ferris Act was enacted by Congress in response to the decision of the Supreme Court of the United States in the case of Oregon & Cal. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908). That suit was authorized by a joint resolution of Congress, and was instituted by the United States against the Oregon & California Eailroad Company in the United States District Court for the District of Oregon in 1909. The purpose of the suit was to obtain a decree declaring a forfeiture of the lands embraced in the grant which had not been sold by the railroad company, on the ground that the railroad company had violated that provision of the grant sometimes referred to as the “settlers clause,” which reads as follows:
*323“And provided further, that the lands granted by the act aforesaid shall be sold to actual settlers only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.” 16 U. S. Stats, at L. 47.
¶51The United States claimed in that suit that the above-quoted provision of the grant constituted a condition subsequent, upon breach of which the United States was entitled to declare and obtain a forfeiture of the lands, title to which still remained in the railroad company. The breaches alleged all occurred after plaintiff’s predecessor acquired title, and consisted principally of sales (all made after 1893) to persons who were not actual settlers on the land, at prices in excess of $2.50 per acre, and in quantities of more than 160 acres to a single person; and the refusal to sell at all after January 1, 1903, notwithstanding that after that date more than 4,000 persons had applied to purchase as many separate tracts of land for the purpose of settling and establishing homes thereon. It affirmatively appeared from the bill that prior to May 12, 1887, nearly 164,000 acres of the land were sold by the Oregon & California Railroad Company, nearly all of which was sold to actual settlers in small quantities within the maximum provided by the act, both as to price and quantity: 28 U. S. 93, 408 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 90, see, also Rose’s U. S. Notes).
¶52The railroad company insisted that the proviso was not a condition subsequent, but was a covenant, and unenforceable. Numerous persons who had settled upon the lands, and others who had merely applied to purchase land, were made parties to the suit; the settlers were designated “cross-complain*324ants,” and those applying to purchase are referred to in the record as “interveners.” The cross-complainants and interveners asserted that the proviso created a trust in favor of them respectively, which trust the court was empowered to enforce, and they asked that receivers or trustees be appointed to administer the grant under the direction of the court.
¶53The District Court rejected the contentions of the railroad company, the cross-complainants and the interveners, and decided in favor of the government, and entered a decree of forfeiture, holding that the proviso, was a condition subsequent, and that the railroad company had violated that condition in the respects alleged by the United States.
¶54The suit was appealed to the United States Supreme Court, and there the effect of the proviso was presented in all of its aspects. In that connection the court said:
“It is'certain, therefore, that no averment has been omitted from the pleadings; no fact from the testimony that has any bearing on the ease; the industry of counsel has neglected no statute or citation, and their ability no comment or reason that can elucidate or persuade.”
¶55It is well to note at this point, that the government in that case did not assert or claim, as indeed it could not, that the grant reserved any title or estate in favor of the United States, nor was the presence of such a reservation in the grant claimed by any of the other litigants in the suit. It should also be noted that the purpose of the suit did not extend to any lands, the title to which had passed from the railroad company to third persons. However, the land in controversy in the instant case was described in the bill as unsold lands,- for the reason that the *325railroad company had not conveyed the same, and the record title appeared to be in the railroad company.
¶56The Supreme Court held that the proviso or settlers clause did not create a trust; that it did not constitute a condition subsequent, but was a covenant, and enforceable, saying:
“Our conclusions then … are that the provisos are not conditions subsequent; that they are covenants, and enforceable … .
“There was a complete and absolute grant to the railroad company with power to sell, limited only as prescribed, and we agree with the Government that the company ‘might choose the actual settler; might sell for any price not exceeding $2.50 an acre; might sell in quantities of 40, 60, or 100 acres,, or any amount not exceeding 160 acres/ And we add, it might choose the time for selling … .”
¶57It will be observed that the court did not decide that the title or estate of the railroad company was limited, as claimed by defendant, but declared that only its power of sale was limited.
¶58In considering the remedy to be applied for the violation of the covenant by the railroad company, the usual remedies of damages and injunction ordinarily awarded in favor of the covenantee in actions or suits between private parties brought for the enforcement of covenants analogous to the one under consideration, were deemed by the court inadequate, in view of the unusual circumstances and conditions shown by the record. That conclusion was influenced in part by the following considerations: Prior to the grant, the lands were subjected to sale and entry under the public land laws, which laws provided the machinery for their judicious disposition by duly constituted officers of the Land Depart*326ment; when the grant was made, the granted lands were withdrawn from those laws and primarily devoted to another purpose, and were committed to another power to be administered for such purpose under a discretion subject to the restrictions imposed by the granting act; more than 2,000,000 acres of the land remained unsold; when the grant was made, both the railroad company and the United States supposed (and in this they were mutually mistaken) that - all the lands were adapted to settlement and ordinary agricultural uses, whereas by far the greater part of the unsold lands was unfit for settlement and agricultural uses, and by reason of the dense growth of timber thereon, invited more to speculation than to settlement; and thus the public interest called for some new arrangement for the disposition of the granted lands, and suitable to the conditions then known to exist, or reasonably discernible in the future.
¶59In view of 'those considerations, and by reason of the inadequacy of the usual remedies and the inability of the court, by use of its ordinary processes, to provide or give a complete remedy and one suited to the peculiar facts and circumstances of the case, the court indicated that Congress, in the exercise of its sovereign power to legislate, as distinguished from its proprietary powers as a party to the grant, might appropriately provide a special remedy, whereby complete relief might be given and administered in conformity to the court’s decision.
¶60Omitting reference to the matters above mentioned, and other matters pertinent to the discussion, the court, pronouncing its judgment and decree, said:
“Rejecting, then, the contention of the Government and the contention of the cross-complainants *327and interveners and regarding the settlers clauses as enforceable covenants, what shall be the judgment? A reversal of the decree of the District Court, of course, and clearly an injunction against further violations of the covenants. There certainly should be no repetition of them. What they were the record exhibits. …
“In view of such disregard of the covenants, and gain of illegal emoluments, and in view of the Government’s interest in the exact observance of them, it might seem that restriction upon the future conduct of the railroad company and its various agencies is imperfect relief; but the Government has not asked for more. …
“However, an injunction simply against future violations of the covenants, or, to put it another way, simply mandatory of their requirements, will not afford the measure of relief to which the facts of the case entitle the Government. …
“This, then, being the situation resulting from conditions now existing, incident, it may be, to the prolonged disregard of the covenants by the railroad company, the lands invite now more to speculation than to settlement, and we think, therefore, that the railroad company should not only be enjoined from sales in violation of the covenants, but enjoined from any disposition of them whatever or of the timber thereon and from cutting or authorizing the cutting or removal of any of the timber thereon, until Congress shall have a reasonable opportunity to provide by legislation for their disposition in accordance with such policy as it may deem fitting under the circumstances, and at the same time secure to the defendants all the value the granting acts conferred upon the railroads(Italics ours.)
¶61The court was careful to advise Congress that any remedy provided by it in response to the suggestion of the court must necessarily secure to the railroad company all the value the granting act conferred upon it. The opinion explicitly declared that the proviso *328or settlers clause of the grant, when given effect as a law, as well as when considered as a covenant, limited the beneficial interest of the railroad company in the grant to not more than $2.50 an acre for each acre of land granted. The court in its judgment and decree imposed no penalty and assessed no damages; it declared there was no ground of forfeiture, and consequently constitutional inhibitions familiar to everyone prevented both the court and Congress from depriving the railroad company, much less an innocent third person, of any vested beneficial interest in the lands. Lacking authority to provide a remedy that would take from the railroad company anything of value, Congress could not in the act prescribing that remedy incorporate a provision, effective to take from plaintiff his title, and vest it in the United States.
¶62The Chamberlain-Ferris Act recited that it was enacted in execution of the judgment and decree of the court, and following the direction of the court, provided: (1) That title to the unsold lands, except the right of way and similar lands “be and the same is hereby revested in the United States”; (2) For classification of the lands and disposition thereof under the public land laws; (3) For an accounting with the railroad company, and payment to it of the value conferred upon it by the granting act, to wit: $2.50 an acre for each acre of land granted, less the amount received by the railroad company from sales of land or timber or from any other sources relating to said land.
¶63The controversy between the United States and the railroad company again came before the Supreme Court upon an appeal from the decree of the District Court entered upon the mandate from the Supreme Court, and in the opinion in that case the court *329considered the Chamberlain-Ferris Act: Oregon & Cal. R. Co. v. United States, 243 U. S. 549 (61 L. Ed. 890, 37 Sup. Ct. Rep. 443). That the office of the Chamberlain-Ferris Act was to provide a speedy remedy and execute the former judgment of the court was emphasized in the latter opinion. The court said:
‘ ‘ Congress, in the execution of the policy it deemed fitting under the circumstances, as expressed in our opinion, enacted what is called the Chamberlain-Ferris Act of June 9,1916, Chap. 137, 39 Stat. 218. The validity of the act is challenged and both sides invite a determination of the challenge. The validity of the law may be said not to be involved. # * It, however, may be considered important in the execution of the decree, for we have seen that the granting acts were laws as well as grants, had the strength and operation of laws, subject to amendment if the right of amendment existed or accrued. There was a reservation in them of the right of alteration or repeal and if it could not be exerted to take back what it had granted and had vested, it could be exerted to accomplish the remedy which the court adjudged to the Government for the violation by the railroad company of the provisions of the grants. [Italics ours.] …
“The interest that the granting acts conferred upon the railroad company was $2.50 an acre. That secured to it ‘all the value the granting acts conferred,’ upon it was secured. It is true it had the right of sale, selection of time and settler. If these were rights, they were also aids to the duty of transmitting the lands to settlers; and, the duty having been violated, they became unsuitable to the conditions resulting and obstructions to the relief which had accrued to the Government. In other words, by the conduct of the railroad company the policy of the granting acts had become impracticable of performance and the new conditions — the lands inviting more to speculation than to settlement — demanded other *330provision than that prescribed by the granting acts. This was the declaration and direction of onr judgment, and the Chamberlain-Ferris Act is the execution of it.” (Italics ours.)
¶64
¶65
“That Congress may at any time, having due regard for the rights of said California and Oregon Railroad Companies, add to, alter, amend, or repeal this act.”
¶66
¶67In Union Pac. R. Co. v. United States (Sinking Fund Gases), 99 U. S. 700 (25 L. Ed. 496), the court considering acts of Congress granting lands to the Union Pacific Railroad, and in which acts the power to alter, amend or repeal was reserved, said:
“The United States cannot, any more than a state, interfere with private rights, except for legitimate *331governmental purposes. They are not included within the constitutional prohibition which prevents states from passing laws impairing the obligation of contracts, but, equally with the states, they are prohibited from depriving persons or corporations of property without due process of law. They cannot legislate back to themselves, without making compensation, the lands they have given this corporation to aid in the construction of its railroad. … That this power has a limit, no one can doubt. All agree that it cannot be used to take away property already acquired under the operation of the charter, or to deprive the corporation of the fruits actually reduced to possession of contracts lawfully made; … We think it safe to say, that whatever rules Congress might have prescribed in the original charter for the government of the corporation in the administration of its affairs, it retained the power to establish by amendment. In so doing it cannot undo what has already been done, and it cannot unmake contracts that have already been made, but it may provide for what shall be done in the future, and may direct what preparation shall be made for the due performance of contracts already entered into. It might originally have prohibited the borrowing of money on mortgage, or it might have said that no bonded debt should be created without ample provision by sinking fund to meet it at maturity. Not having done so at first, it cannot now by direct legislation vacate mortgages already made under the powers originally granted, nor release debts already contracted. A prohibition now against contracting debts will not avoid debts already incurred. An amendment making it unlawful to issue bonds payable at a distant day, without at the same time establishing a fund for their ultimate redemption, will not invalidate a bond already out. All such legislation will be confined in its operation to the future.”
¶68The decisions last cited make it plain that the power of amendment reserved in the granting act *332related to that legislation considered as a statute and not to its character as a grant, and therefore does not amount to a reservation of title or estate in the lands, and it is equally clear that however regarded, the power should not be effectively exercised to disturb “rights actually vested or transactions fully consummated.”
¶69It is apparent from the foregoing review that it was not the purpose, nor within the power of Congress, by the enactment of the Chamberlain-Ferris Act, to divest plaintiff of his complete and perfect title to the land in question, whch had been held and enjoyed by him and his predecessor for more than thirty-five years, and revest the same in the United States.
¶70
¶71It follows that the judgment of the Circuit Court should be reversed and the cause remanded, with directions to overrule defendant’s demurrer to plaintiff’s reply, and for such other and further proceedings not inconsistent with this opinion, as may seem proper, and it is so ordered.
¶72Bevebsed and Bemanded, With Dibeotions.
¶73Beheabing Denied. Costs Taxed.