draw said lands, and when such withdrawal was made it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior and in the exercise of his discretion." The power of the Secretary to withdraw lands is exercised for the purpose of carrying out the grant to the railroad, and to prevent lands covered by said grant from being taken up by settlers before the road is completed and the patents issued to the company; but clearly that power cannot be exercised to withdraw lands which are beyond the intended limits of the grant. It was said by Secretary Smith to have been exercised for many years, "but the right of this asserted power on the part of the executive is involved in obscurity." Northern P. R. Co. v. Davis, 19 Land Dec. 87, 88.

That the object of $ 6 was to direct a survey, and not a withdrawal of lands within the 40-mile strip, seems to have been the opinion of this court in St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Ct. Rep. 334, in which Mr. Justice Miller, delivering the opinion, says, p. 732, L. ed. p. 876, Sup. Ct. Rep. p. 341: "The plaintiff in error insists that the map of its line of road was filed in 1859. The court of original jurisdiction finds that, up to the time of the trial in October, 1878, a period of nearly twenty years, no selection of these lands had ever been made by that company, or anyone for it. Was there a vested right in this company, during all this time, to have, not only these lands, but all the other odd sections within the 20-mile limits on each side of the line of the road, await its pleasure? Had the settlers in that populous region no right to buy of the government because the company might choose to take them, or might, after all this delay, find out that they were necessary to make up deficiencies in other quarters? How long were such lands to be withheld from ınarket and withdrawn from taxation, and forbidden to cultivation?

[687] *"It is true that in some cases the statute requires the Land Department to withdraw the lands within these secondary limits from market, and in others, the officers do so voluntarily. This, however, is to give the company a reasonable time to ascertain their deficiencies and make their selections. "It by no means implies a vested right in said company, inconsistent with the right of the government to sell, or of any other company to select, which has the same right of selection within those limits. Each company having this right of selection in such case, and having no other right, is bound to exercise that right with reasonable diligence; and when it is exercised in accordance with the statute, it becomes entitled to the lands as selected."

If the command of the statute were to withdraw from the market, instead of survey, all odd-numbered sections within the 40-mile strip, the position of the railroad company in this case would be impregnable; but as the withdrawal only extends to the

where to ascertain the meaning of those precise words. There is good reason for withdrawing lands within the place limits, since these lands already belong to the railroad company, as soon as they are identified by the location of the line, while lands within the indemnity limits may never be required at all, and in most cases are required only to a limited extent. Undoubtedly the company acquires title to both classes of lands by the 3d section of the granting act; but it acquires a title to lands within the place limits by a present grant; but to land within the indemnity limits, only by a future power of selection. In both cases the stat ute is the origin of the title; but in the one case it gives instantaneously; in the other it is a mere promise to give in the future, and requires the action of the railroad to perfect it. The words "hereby granted" evidently refer to the former.

every al-[688]

Treating this case as a reargument of the question involved in Hewitt v. Schultz, and it practically comes to that, we still adhere to the principle there announced. It seems to us the more reasonable, if not the necessary, inference to be deduced from the language of §§ 3 and 6. By the former there is "hereby granted ternate section of public land, 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 ten alternate sections of land per mile on each side of said railroad whenever it passes through any state." These words terminate the grant, the remainder of the clause being immaterial in this connection, and if the whole clause had been followed by a period, instead of a semicolon, the meaning, perhaps, would have been clearer. But there follows another clause, that "whenever, prior to said time, any of said sections, or parts of sections, shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lien thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections," etc. There is here a clear distinction between the lands granted in præsenti in the first clause, and lands to be thereafter selected by the company, whenever the deficiency in the granted lands shall be ascertained.

The 6th section carries out the same idea. It requires a survey of 40 miles in width on both sides of the entire line, whether passing through states or territories. This would include only the granted or place limits within a territory, but within a state would cover the indemnity limits as well. There was no order in the act to withdraw any lands from settlement or sale, but such withdrawal seems to have been made in pursuance of the practice of the Interior Department, and for the pur

pose of preventing lands granted to the railroad company from being taken up by settlers, before the completion of the line and the final issue of patents. As was said by Mr. Secretary Lamar in the Atlantic & P. R. Co. 6 Land Dec. 84: "Waiving all questions as to whether or not said granting act took from the Secretary all authority to withdraw said indemnity limits from set tlement, it is manifest that the said act gave no special authority or direction to the executive to withdraw said lands; and when [689]such withdrawal was *made it was done by virtue of the general authority over such matters possessed by the Secretary of the Interior, and in the exercise of his discretion; so that, were the withdrawal to be revoked, no law would be violated, no contract broken." But as the power to withdraw extends only to the "lands hereby granted" and all other lands, except those hereby granted, remain open to settlement, we are thrown back upon § 3 to determine what are the lands "hereby granted."

Now, as already observed, there is a clear distinction in § 3 between granted lands and lands to be selected after the deficiency in the granted lands has been ascertained. It is true that, prior to this selection being made, many of these indemnity lands may be taken up, and an insufficient amount left

We are therefore of opinion that the act of July 27, 1866, did not authorize the withdrawal by the Secretary of the Interior of the indemnity lands, that such lands remained open to homestead and pre-emption entry, and that patents issued to settlers within such indemnity limits, based upon the entries made prior to the selection by the railroad company, approved by the Interior Department, were valid as conveyances of the land as against the selection by the railroad company.

The judgment of the Supreme Court of California is therefore affirmed.

OTTO GROECK et al., Appts.,

v.

SOUTHERN PACIFIC RAILROAD COM

PANY.

(See S. C. Reporter's ed. 690-692.) Railroad land grants withdrawal from settlement-lands within indemnity limits.

This case is governed by the decision in South

ern P. R. Co. v. Bell, ante, 383.

[No. 82.]

force of the dissenting opinion in Hewitt v. Schultz in that connection), but we think this possibility serves rather as a basis for a further action by Congress, such as was made in the Northern Pacific case by the joint resolution of May 31, 1870 (16 Stat. at L. 378), than as a reason for withdrawing from settlement a vast amount of land which the railroad may never have occasion to require. It was said by Secretary Lamar in the case of the Atlantic & P. R. Co. 6 Land Dec. 84, 87: "As to the lands within the indemnity limits, the contract was based upon two contingencies; that of losing lands within the granted limits, and being able to find sufficient to indemnify the company among the odd-numbered sections

A

Decided January 13, 1902.

PPEAL from the Circuit Court of Appeals for the Ninth Circuit to review a decree which affirmed a decree of the Circuit Court for the Southern District of California in favor of plaintiff in a suit to recover real property. Reversed and remanded with directions to dismiss the bill.

See same case below, 31 C. C. A. 334, 59 U. S. App. 366, 87 Fed. 970.

Statement by Mr. Justice Brown:

This was a bill in equity filed in the circuit court for the southern district of California by the Southern Pacific Railroad Company, plaintiff, against Otto Groeck and another,

the interest of the company was so remote and contingent, being a mere potentiality, and not a grant, that Congress declined to order a withdrawal for the benefit of the same, or even a survey within the territories." In view of the constant trend of population toward the western territories, it is a serious matter to withdraw these enormous tracts from settlement and hold them, as it were, in mortmain against the protest of those who stand ready to enter upon and possess them.

It becomes still more serious when, as in this case, there was a delay of twenty-seven years between the granting act and the act of selection. It seems intolerable that a settler, who had entered and paid for lands (690]in good faith, should be liable to an "ouster after a possible lapse of twenty-seven years, when the very improvements he may have put upon the lands might be the reason for their selection by the company.

company to be the rightful owner of the south half of a certain quarter section of land in Kings county, California, and that defendants hold the legal title thereto in trust for it, a conveyance of which was prayed.

The amended bill, as abstracted by the circuit court of appeals (31 C. C. A. 334, 59 U. S. App. 366, 87 Fed. 970), alleged: "That the appellant accepted the terms of the grant, fixed the general route of its road as contemplated by the act, and on January 3, 1867, filed a map thereof *in the office of [691 the Commissioner of the General Land Office; that on that date the Commissioner accepted and approved the map and the route designated by it, and on March 22, 1867, under the direction of the Secretary of the Interior, he withdrew the odd sections of land lying

NOTE.-As to land grants to railroads-see note to Kansas P. R. Co. v. Atchison, T. & S.

F. R. Co. 28 L. ed. U. S. 794.

GARLAND et al. [No. 339.]

In Error to the United States Circuit

Court of Appeals for the Seventh Circuit. Mr. Rublee A. Cole p. p.

Mr. Jackson H. Ralston for defendants in error.

October 21, 1901. Writ of error dismissed for the want of jurisdiction, on the authority of German Nat. Bank v. Speckert, 181 U. S. 405, 45 L. ed. 926, 21 Sup. Ct. Rep. 688.

October 21, 1901. Writ of error dismissed for the want of jurisdiction, on the authority of Eustis v. Bolles, 150 U. S. 361, 37 L. ed. 1111, 14 Sup. Ct. Rep. 131.

STATE OF WISCONSIN ca rel. JAMES L.
GATES, Plaintiff in Error, v. COMMISSION-
ERS OF PUBLIC LANDS et al. [No. 66.]
In Error to the Supreme Court of the
State of Wisconsin.

Mr. Rublee A. Cole for plaintiff in error. Messrs. E. R. Hicks and Charles E. Buell for defendants in error.

November 4, 1901. Dismissed for the want of jurisdiction, on authority of Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Wilson v. North Carolina, 169 U. S. 595, 42 L. ed. 871, 18 Sup. Ct. Rep. 435; Mills County v. Burlington & M. River R. Co. 107 U. S. 557, 27 L. ed. 578, 2 Sup. Ct. Rep. 654; Cook County v. Calumet & Õ. Canal & Dock Co. 138 U. S. 635, 655, 34 L. ed. 1110, 1117, 11 Sup. Ct. Rep. 435; Walsh v. Columbus, H. Valley & A. R. Co. 176 U. S. 479, 44 L. ed. 553, 20 Sup. Ct. Rep. 393; Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639; Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71; and see State ex rel. Gates v. Public Land Comrs. 106 Wis. 584,

PLE OF THE STATE OF CALIFORNIA.

296.]

[No.

In Error to the Supreme Court of the State of California.

Mr. George D. Collins for plaintiff in er

ror.

Messrs. Tirey L. Ford and C. N. Post for defendant in error.

November 11, 1901. Dismissed for the want of jurisdiction, on the authority of Caldwell v. Texas, 137 U. S. 692, 34 L. ed. 816, 11 Sup. Ct. Rep. 224; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Powell v. Brunswick County, 150 U. S. 433, 37 L. ed. 1134, 14 Sup. Ct. Rep. 166.

GEORGE BISSERT, Appellant, v. JAMES J. HAGAN, Warden, etc., et al. [No. 437.] Appeal from the Circuit Court of the United States for the Southern District of New York.

Mr. Roger M. Sherman for appellant. Mr. Charles E. Le Barbier for appellees. December 2, 1901. Final order affirmed, with costs, on the authority of Storti v. Massachusetts, 183 U. S. 138, ante, 120, 22 Sup. Ct. Rep. 72; Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77; Markuson v. Boucher, 175 U. S. 184, 44 L. ed. 124, 20 Sup. Ct. Rep. 76, and cases

cited.

CENTRAL OHIO RAILROAD COMPANY (as reorganized) et al., Plaintiffs in Error, v. DANIEL J. MAHONEY. [No. 76.]

On a Certificate from the United States Circuit Court of Appeals for the Sixth Circuit.

Messrs. J. H. Collins and Hugh L. Bond, Jr., for plaintiffs in error.

Mr. Thomas Ewing Steele for defendant in error.

December 9, 1901. Question certified answered in the negative on the authority of Gableman v. Peoria, D. & E. R. Co. 179 U. 8. 335, 45 L. ed. 220, 21 Sup. Ct. Rep. 171.