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Opinion of the Court.

within twenty miles of the road — the lands, thus selected for

indemnity, to be odd-numbered sections. It is too obvious to require argument to show that, as losses to the Leavenworth road in its place limits were required to be made up from oddnumbered sections inside of the exterior line of its indemnity limits, the even-numbered sections in its place limits could not be used to supply such deficiencies. Such even-numbered sections in the place limits were, therefore, referred to in the second section of the act of 1863, as “reserved sections” that “remain to the United States."

The defendants insist, however, that they were not "reserved to the United States” within the meaning of the act of 1866. It is true, they were not reserved to aid in the construction of the Leavenworth road, or for any specified object of internal improvement. But the act of 1866 does not restrict the objects of the reservation to works of internal improve ment. If the reservation in question was by Congress, or other competent authority, for any purpose whatever, then the lands so reserved were excluded from the operation of the act of 1866. Now, it is clear that the even-numbered sections, within the place limits of the Leavenworth road, were reserved by the act of 1863, for purposes distinctly declared by Congress, and which might be wholly defeated if the MissouriKansas Company were permitted to take them as indemnity lands under the act of 1866. The requirement in the second section of the act of 1863, that the “reserved sections” which "remain to the United States," within ten miles on each side of the Leavenworth road, "shall not be sold for less than double the minimum price of the public lands when sold," nor be subject to sale at private entry until they had been offered at public sale to the highest bidder, at or above the increased minimum price; the privilege given to actual bona fide settlers, under the preëmption and homestead laws, to purchase those lands at the increased minimum price, after due proof of settlement, improvement, cultivation and occupancy; and the right accorded to settlers on such sections under the homestead laws, improving, occupying and cultivating the same, to have patents for not exceeding eighty acres each, are inconsistent

Opinion of the Court.

with the theory that the even-numbered sections, so remaining to the United States, within the place limits of the Leavenworth road could be taken as indemnity lands for a railroad corporation.

As the natural result of the construction of the road aided would be an increase in the market value of the reserved sections remaining to the United States, within the place limits of the Leavenworth road, those sections were not left to be disposed of under the general laws relating to the public domain. But, in order that the government might get the benefit of such increased value, and thereby reimburse itself to some extent for the lands granted — the title to which vested in the State or the company upon the definite location of the line of the road, and, by relation, as of the date of the grant, -- the act of 1863 made special provisions in reference to those reserved sections, and thereby, and for the accomplishment of particular purposes expressly declared, segregated them from the body of the public lands of the United States. Being thus devoted to specified objects, they were reserved to the United States, and could not be selected by the State either under the act of 1863 or under that of 1866 for other and different objects. They could not be selected as indemnity lands under the act of 1963, because the lands to be selected under that act were restricted to odd-numbered sections; nor under the act of 1866, because, at the date of its passage they were reserved for the special purposes indicated in the second section of the act of 1863.

It follows that the Missouri, Kansas and Texas Railroad Company was not entitled, in virtue of the act of 1866, to have indemnity lands from the even-numbered sections within the place limits of the Leavenworth road. The issuing of patents to it for such lands was unauthorized by law.

But we are of opinion that, in respect to the even-numbered sections within the indemnity limits of the Leavenworth road, that is, outside of ten and within twenty miles of its line, the case stands upon wholly different grounds. We cannot assent to the suggestion that they also were reserved by the act of 1863, and excluded from the operation of the act of 1866.

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Opinion of the Court.

The utmost that could be claimed, in respect to lands within the indemnity limits of the Leavenworth road, is, that the odd-numbered sections in those limits being designated by the act of 1863 as the source from which to supply losses in the place limits of that road, were excluded from the operation of the act of 1866. Whether such a claim could be sustained or not, we need not now inquire; but that contention, if sound, does not meet the exigencies of the present case. We are dealing here with the even-numbered sections in the indemnity limits of the Leavenworth road, which were not devoted by the act of 1863 to any specified purpose, but were left under the general laws regulating the disposal of the public lands. No provision was made, as in the case of the even-numbered or reserved sections within the place limits, for their sale at not less than double the minimum price of the public lands when sold, nor were any restrictions placed upon their sale or disposition different from those applicable to the public lands generally. Settlers under the preëmption and homestead laws were accorded by the act of 1863 no more rights and privileges in respect to the even-numbered sections within the indemnity limits of the Leavenworth road than they had in other public lands of the United States wherever situated. They were reserved to the United States only in the sense that all the public lands of the United States, not set apart for some declared object, are reserved to be disposed of under the general laws relating to the public domain. But a reservation of that general character is not what was meant by the act of 1866. That act excluded from its operation only such lands as had been reserved by Congress or other competent authority for some distinct, defined purpose.

This conclusion finds support in the peculiar language of the act of 1866 allowing selections by the Missouri-Kansas Company of indemnity lands within twenty miles of its road, to be made from “the public lands of the United States nearest to the sections above specified,” that is, nearest to the odd-numbered sections within the place limits. Many acts of Congress, making grants of public lands in aid of the construction of railroads, have restricted the selection of indem

Opinion of the Court.

nity lands simply to alternate sections or parts of sections nearest or most contiguous to the tier of sections in the place limits; thus apparently leaving it to the Secretary of the Interior — subject, it may be, to the requirement as to alternation - to approve as he might think best, the selection of oddnumbered or even-numbered sections within the prescribed indemnity limits. In many other acts the selection of indemnity lands was restricted to the odd-numbered sections, as was the case in the above act of 1863.2 The two classes of acts are to be found in the legislation of Congress, at the session when the act of July 26, 1866, for the benefit of the Missouri-Kansas Company, was passed. The grants to Missouri and Minnesota of July 4, 1866; to Kansas of July 23, 1866; to the California and Oregon Railroad Company of July 25, 1866; and to the Atlantic and Pacific Railroad Company of July 27, 1866, all, in terms, provided for the selection of odd-numbered sections for purposes of indemnity; while the grant to Kansas of July 25, 1866, to aid in the construction of the Kansas and Neosho Valley Railroad Company, and the grant of July 26, 1866, to the same State, for the benefit of the Missouri-Kansas Company, contained no such restriction, and only required that indemnity lands be selected from the public lands of the United States nearest to the tier of granted sections within the place limits of the respective roads. 14 Stat. 83, c. 165; Id. 87, c. 168; Id. 210, c. 212; Id. 239, c. 212; Id. 293, 295, c. 278; Id. 236, c. 241; Id. 289, c. 270. This difference in land grant acts was not unusual, as will be seen from the vari

Illinois (1850), 9 Stat. 466; Missouri (1852), 10 Stat. 8; Arkansas and Missouri (1853), 10 Stat. 155 ; Iowa (1856), 11 Stat. 9; Florida (1856), 11 Stat. 15; Alabama (1856), 11 Stat. 17; Louisiana (1856), 11 Stat. 18; Michigan (1856), 11 Stat. 21 ; Wisconsin (1856), 11 Stat. 20; Mississippi (1856), 11 Stat. 30; Minnesota and Alabama (1857), 11 Stat. 195; Minnesota (1864), 13 Stat. 64; Wisconsin (1864), 13 Stat. 66.

2 Kansas (1863), 12 Stat. 772; Iowa (1864), 13 Stat. 72; Northern Pacific Railroad (1864), 13 Stat. 365; Minnesota (1866), 14 Stat. 87; Kansas (1866), 14 Stat. 210; California and Oregon Railroad (1866), 14 Stat. 239; Atlantic and Pacific, and Southern Pacific Railroads (1866), 14 Stat. 292; Oregon Central Railroad (1870), 16 Stat. 94 ; Texas Pacific Railroad (1871), 16 Stat. 573.

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Opinion of the Court.

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ous statutes cited in the margin. We do not feel at liberty to hold that this difference was unintentional upon the part of Congress. It is too well defined in its legislation to justify any such interpretation. The words in the act of July 26, 1866, for the benefit of the Missouri-Kansas Company, indicating the source from which indemnity lands were to be obtained, namely, “from the public lands of the United States nearest to sections above specified,” cannot well be hela to mean the same thing as the words, in other acts, “from the public lands of the United States nearest to tiers of sections above specified, so much land in alternate sections or parts of sections designated by odd numbers.In one case the selection, for purposes of indemnity, may be from any of the public lands of the United States nearest to the tier of sections in the place limits; in the other, the selection is restricted to oddnumbered sections within the indemnity limits; in neither case, however, could lands be selected that had been previously withdrawn by competent authority from location, sale or entry, or had been appropriated or sold by the United States, or to which preëmption or homestead rights had attached.

In our judgment - omitting for the present any considera tion of the rights alleged to have been acquired by individuals under the homestead and preëmption laws in the lands in dispute, and looking at the case only as between the United States and the Missouri-Kansas Company — there is no escape from the conclusion that the even-numbered sections within the indemnity limits of the Leavenworth road, not being set apart by the act of 1863 for any specific purpose, and being also nearest to the granted sections within the place limits of the Missouri-Kansas Company, were not, by that act, reserved to the United States within the meaning of the act of 1866, and, therefore, - if no rights had attached to them before their selection with the approval of the Secretary of the Interior ---- could have been legally selected as indemnity lands for that company.

We say, prior to such selection and approval, because as to lands which may legally be taken for purposes of indem

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