Freking, 8 Bush. 121. See also Midland R. Co. v. Haunchwood B. & T. Co., 6 Am. & Eng. R. R. Cas. 555; Errington v. Metropolitan District R. Co., 6 Am. & Eng. R. R. Cas. 562. NORTHERN PACIFIC R. R. Co. v. MAJORS. (Advance Case, Montana. January 9, 1884.) An act of Congress granting lands in aid of a railroad company contained a clause "that there be and is hereby granted" to the company twenty alternate odd sections of land per mile on each side of such route as the company might adopt, and further provided that as each twenty-five miles of the road should be completed the lands should be conveyed by patent to the company and not before. Held, that, immediately upon the location of the road, before its construction or the issuing of a patent for the lands, the title had vested in the company as of the date of the original act and that ejectment might be maintained on such title. The character of the title was that of a grant upon condition subsequent, liable to be divested by a breach of such condition. Such breach could only be taken advantage of by the United States, the original grantor, and not by a third party in a collateral proceeding. The effect of the issuing of a patent for the lands as earned was to render the title to them absolute and unconditional. FROM Third district, Lewis and Clarke county. Harry R. Comly, for appellant. GALBRAITH, J.-This is an appeal from an order overruling a demurrer to the complaint. The demurrer avers as the only ground thereof that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, in substance, that by section 3 of an act of congress, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route," approved July 2, 1864, there was granted to the respondent every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of said railroad along such route as said company might adopt through the territories of the United States, wherever on the line thereof the United States had full title at the time the line of the road was definitely fixed and a plat thereof filed in the office of the commissioner of the general land-office; that by section 6 of the act aforesaid, it was provided that after the general route of the road should be fixed, the president of the United States should cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road, as fast as might be required by its construction, and that the oddnumbered sections of land, granted by section 3 of said act to the respondent, should not be liable to sale, entry, or pre-emption before or after they were so surveyed, except by the said Northern Pacific R. R. Co. That the general route of said road, adjacent and opposite to section 13, township 10 N., of range 4,-the land in question, was fixed by the respondent, the twenty-first day of February, 1871, within less than 40 miles from said section, by means whereof said section was withdrawn from sale, entry, or pre-emption, except by the respondent; and thereafter, to wit, on the first day of October, 1881, the line of said road at and opposite to said section was definitely adopted and fixed, and a plat thereof filed in the office of the commissioner of the general land-office, at which time the said section was free from other sales, reservations, appropriations, pre-emptions, dispositions, claims, or rights than that contained in section 3 of the act aforesaid, granting the same to the respondent; that said grant then and there took effect and attached. thereto; and that said company did then proceed, and is now proceeding, to construct its road upon said line of definite location, opposite and adjacent to and by the said section 13, which is within the limits of said grant; that said section 13, on the second day of July, 1864, was public land of the United States, to which they then and there had full title, and except for the grant to the respondent, would yet have full title thereto. And so, in the manner aforesaid, the respondent says it has full title to and is the owner of said section 13, and on the first day of October, 1881, was, and ever since has been, entitled to the possession and occupancy and enjoyment thereof. The complaint also alleges entry and ouster by the appellant on the thirtieth day of October, 1881, and demands possession of the premises in question. The argument of the appellant is, in substance, that the complaint "does not show any such title in the respondent, by a grant or patent from the United States, as carries with it livery of seizin, nor is there any allegation of actual prior possession which, without such grant or patent, would sustain its action of ejectment." That the words of the present grant, in the third section of the act, are specially restricted by the provisions of other portions of the act, which prescribe certain conditions, and especially by those of section 4, which it is claimed determines when the grant shall take effect, viz., "when twenty-five consecutive miles of the road shall be completed, and after the report of commissioners, etc., patents shall be issued to the company conveying the additional sections," etc.; that until this time, viz., when patents shall have issued in accordance with the act, the right of the respondent in the lands by virtue thereof is simply the "grant of an incorporeal right in said lands accompanied by certain conditions, upon the performance of which con ditions the act provides how and when the title shall vest in the company, to wit, the lands shall be conveyed by patent when each twenty-five miles of the road shall be completed and not before;" that by virtue of the act the United States becomes a trustee for the company, and agrees that when it shall have designated its route "the government will reserve from sale, etc., the odd sections to be conveyed to the company upon the performance of certain acts;" that the legal title is in the United States until the issue of the patent, before which the company has only an equitable estate, and cannot maintain an action of ejectment. The complaint does not allege any patent to the respondent. The questions, therefore, for our consideration are, what is the character of the title in the respondent by virtue of the act before the issue of the patent? And when does it have such a title as that it can maintain thereon an action of ejectment? In order to correctly solve these questions, we must arrive at the true interpretation of the act of congress making the alleged grant. The proper rule of interpretation of this act we believe to be that cited by the appellant, viz. "The court, if possible, must give the statute such a construction as will enable it to have effect; that is, it must be construed in accordance with the legislative intent." Cooley, Const. Lim. 223. This is substantially the language of the supreme court of the United States in Leavenworth, etc., R. Co. v. U. S. 92 U. S. 733, where Davis, J., delivering the opinion, says, referring to the act of congress granting lands to the railroad company: "This grant, like that to Iowa, was made for the purpose of aiding a work of internal improvement, and does not extend beyond the interest it expresses. It should be neither enlarged by ingenious reasoning, nor diminished by strained construction. The interpretation must be reasonable, and such as will give effect to the intention of congress. This is to be ascertained from the terms employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings, one of extension, and the other of limitation, they must be accepted in a sense favorable to the grantor." The latter portion of this language, and similar language in other decisions, must be considered as referring to terms so ambiguous in their character that resort must be had to a rule of construction resolving the doubt in favor of one party to the contract rather than to the other. For we are satisfied that it is a rule, absolutely binding upon all courts, that where the legislative will and intent are discovered in a statute, they must give force and effect to that will and intention when it does not contravene the fundamental law. It is the rule at common law, in relation to grants, that where the language was so ambiguous as to call for the interposition of a rule of interpretation that the doubt was required to be resolved against the grantor. It was expressed thus: "That the deed be taken most strongly against him; that is, the agent or contractor, and in favor of the other party." 2 Bl. Comm. 380. In the language of the authorities generally private grants are strictly construed against the grantors, and public grants against the grantees. But it is only when courts are in doubt as to the meaning of the instrument that resort will be had in either case to the above rules of construction. Another rule of construction of legislative acts is that it must be made upon the entire act, and not upon disputed parts of it. Every part of the act should be made to take effect, if possible, and all the words made to operate in one way or other. Can, therefore, the intention of congress be discovered from the act itself, without resort to the rule which obtains when there is ambiguons or doubtful language in an act of the legislature, and what, taking into consideration all the language of the act in question, was such intention in relation to the time when the grant should take effect? The act will be presumed to have been passed by congress with knowledge of its previous enactments in relation to grants of lands, and the repeated determinations of the supreme court of the United States as to their construction. That court has repeatedly held, in construing grants of land made by congress, that "a grant" of lands "may be made by law as well as by a patent issued pursuant to law," "and such grant invests an indefeasible and irrevocable title." Fletcher v. Peck, 6 Cranch, 87; Strotler v. Lucas, 12 Pet. 454; 9 Cranch, 43; Wilkinson v. Leland, 2 Pet. 627; Wilcox v. Jackson, 13 Pet. 498; 3 Washb. Real Prop. (4th Ed.) 193, 194. "It" (the confirmation of a title by act of congress)" was a higher evidence of title" (than a patent), "as it was the direct grant of the fee which had been in the United States by the gov ernment itself, whereas the patent was only the act of its ministerial officers." Grignon's Lessee v. Astor, 2 How. 319. "The plaintiff's title" (a confirmation by congress,) "is prima facie a good legal title, and will support ejectment on the act of 1836, standing alone, if the land can be identified as confirmed without resort to the patent." Chouteau v. Eckhart, 2 How. 344. In Green v. Liter, 8 Cranch, 229, Story, J., says: "We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizin thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate. A fortiori, this principle applies to a patent. Since at the common law it imports a livery in law." For a still stronger reason would this principle apply in the case of an act granting such lands, for, as we have just seen, the supreme court of the United States has held that such an act is higher evidence of title than a patent. The decisions of the supreme courts of several of the States are to the same effect. "A grant of lands by the government is tan tamount to a conveyance with livery of seizin." 3 Washb. Real Prop. (4th Ed.) 191, and cases there cited. "He who takes titles to lands from the federal government draws the actual legal possession to it." Robinson v. Leake, 14 Iowa, 421. With this construction of public grants as the uniform rule, congress passed the act in question. Its preamble entitles it as follows: "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route." Those portions of the act which bear upon the question before us are as follows: Section 3 of the act provides "that there be and hereby is granted to the Northern Pacific R. R. Co., its successors and assigns, for the purpose of aiding in the construction of said railroad, every alternate section of public lands, 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 whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office." Section 4 provides "that whenever said Northern Pacific R. R. Co. shall have twenty-five consecutive miles of any portion of said railroad and telegraph line ready for the service contemplated, the president of the United States shall appoint three commissioners to examine the same; and if it shall appear that twenty-five consecutive miles of said road and telegraph line have been completed in a good, substantial, and workmanlike manner, as in all other respects required by this act, the commissioners shall so report to the president of the United States, and patents of lands as aforesaid shall be issued to said company, confirming to said company the right and title to said lands, situate opposite to and coterminous with said completed section of said road; and from time to time, whenever twenty-five additional consecutive miles shall have been constructed, completed, and in readiness as aforesaid, and verified by said commissioners to the president of the United States, patents shall be issued to said company conveying the additional sections of land as aforesaid, and so on, as fast as every twenty-five miles of said road is completed as aforesaid." Section 6 provides "that the president of the United States shall canse the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided in this act; but the |