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Opinion of the Court.

nity the principle is firmly established that title to them does not vest in the railroad company, for the benefit of which they are contingently granted, but, in the fullest legal sense, remains in the United States, until they are actually selected and set apart, under the direction of the Secretary of the Interior, specifically for indemnity purposes. It was so held in Kansas Pacific Railroad v. Atchison Railroad, 112 U. S. 414, 421, in which the court, referring to the above act of 1863, said in reference to the lands in the indemnity limits: “Until selection was made the title remained in the government, subject to its disposal at its pleasure.

The grant to Kansas, as stated, conferred only a right to select lands beyond ten miles from the defendant's road, upon certain contingencies. It gave no title to indemnity lands in advance of their selection.". The same principle was announced in Barney v. Winona & St. Peter Railroad, 117 U. S. 228, 232, where the court said: “In the construction of land grant acts in aid of railroads, there is a well-established distinction observed between 'granted lands' and 'indemnity lands.' The former are those falling within the limits specially designated, and the title to which attaches when the lands are located by an approved and accepted survey of the line of the road filed in the Land Department, as of the date of the act of Congress. The latter are those lands selected in lieu of parcels lost by previous disposition or reservation for other purposes, and the title to which accrues only from the time of their selection.” So in Sioux City &c. Railroad v. Chicago, Milwaukee &c. Railway, 117 U. S. 406, 408 : “No title to indemnity lands was vested until a selection was made by which they were pointed out and ascertained, and the selection made approved by the Secretary of the Interior.” But the fullest and most recent expression of opinion upon this question by this court is in Wisconsin Central Railroad v. Price County, 133 U. S. 496, 511, where it was said: “Ile [the Secretary] was required to determine, in the first place, whether there were any deficiencies in the land granted to the company which were to be supplied from indemnity lands; and, in the second place, whether the particular indemnity lands selected could be properly taken for

Opinion of the Court.

those deficiencies. In order to reach a proper conclusion on these two questions, he had also to inquire and determine whether any lands in the place limits had been previously disposed of by the Government, or whether any preëmption or homestead rights had attached before the line of the road was definitely fixed. There could be no indemnity unless a loss was established. Until the selections were approved there were no selections in fact, only preliminary proceedings taken for that purpose; and the indemnity lands remained unaffected in their title. Until then the lands which might be taken as indemnity were incapable of identification; the proposed selections remained the property of the United States. The Government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced in the courts." To the same effect were the previous cases of Grinnell v. Railroad Co., 103 U. S. 739; St. Paul &c. Railroad v. Winona & St. Peter Railroad, 112 U. S. 720, 731; Cedar Rapids & Missouri River Railroad v. Herring, 110 U. S. 27. As to the exception to this rule noticed in St. Paul & Pacific Railroad v. Northern Pacific Railroad, 139 U. S. 1, 19, it is sufficient to say that it has no application to the facts of this case. In respect, therefore, of even-numbered sections within. the indemnity limits of the Leavenworth road, preëmption and homestead rights may have legally attached before their final selection as indemnity lands for the Missouri-Kansas Company. And rights thus attaching would not be displaced by subsequent selection, and by issuing patents to the railroad company.

For the reasons stated, we adjudge that the selection of evennumbered sections within the indemnity limits of the Leavenworth road, to which rights of homestead and preëmption laws had not attached, to indemnify the Missouri-Kansas Company for losses in its place limits, and the issuing to it of patents therefor, was not without authority of law.

We have indicated, however, that the question as to the right of the Missouri-Kansas Company, for purposes of indem

Opinion of the Court.

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nity, to select even-numbered sections within the indemnity limits of the Leavenworth road, may, according to the averments of the bill which the demurrer admits to be true — have some connection with the rights acquired by individuals under the homestead and preëmption laws. These averments are: That prior to July 26, 1866, and prior to the selection of indemnity lands for the Missouri-Kansas Company, by the Secretary of the Interior — which selections, it is alleged, were partially made on each of the respective days of August 20, 1872, July 29, 1874 and May 10, July 12 and December 26, 1876 a large number of actual and bona fide settlers over the age of twenty-one years, and citizens of the United States, each thus and otherwise having all the qualifications required by the homestead and preëmption laws of the United States, to obtain patents from the United States, each for a half quarter section of said lands within ten miles of the located line of the Leavenworth road, and each for one quarter section of said lands outside of said ten-mile limits, but within twenty miles of said line of road, claimed the right under those laws to take the necessary proceedings and do the acts requisite to obtain title, respectively, to such tracts of land, including most of the lands in the patents mentioned ; that for this purpose sundry of such persons prior to July 26, 1866, and prior to such selections, entered upon, occupied and improved, as required by said laws, a half quarter section of land, within said ten-mile limits, and others each entered upon, occupied and improved, as required by the same laws, some each one-half quarter section of land, and others each a quarter section of such lands; that sundry of such persons did each do all the acts required by, and in all respects complied with, the homestead and preëmption laws in due time to be entitled to occupy said tracts of half-quarter and quarter sections, respectively, and to receive patents therefor from the United States; that said persons have ever since been, and still are, each entitled to receive a patent conveying to them respectively said tracts of land so by each occupied and improved, including most of the lands in said patents mentioned: that said persons have, respectively, ever since so entering upon said lands continued


Opinion of the Court.

to occupy and hold them, and are ready and willing, and offer to do whatever may be required to procure a patent from the United States; and that the defendants and those under whom they claim title always well knew these facts, and none of them ever took or had possession of any of said lands, but all of them have been in the occupancy and possession of other persons as aforesaid, claiming the right to obtain title thereto from the United States.

The bill, after stating that the Government was unable, at the commencement of the suit, to specify what portions and tracts of land have been settled upon and occupied by actual bona fide settlers, as aforesaid, for which patents should be issued, and asking permission to make proof thereof, proceeds to allege that the Missouri-Kansas Company on the — day of March, 1867, filed its map of definite location in the Department of the Interior; that the Commissoner of the General Land Office, by letter under date of March 19, 1867, directed the receiver and register of the local land office at Humboldt, Kansas, where the above-mentioned lands were subject to be taken under the homestead and preëmption laws, to reserve from sale, location or entry of any kind, all the land outside of a line ten miles from the line of location of the said MissouriKansas Company; and on and after April 3, 1867, the date of the receipt of the above order at the local office, said lands were by them thereafter unlawfully reserved from sale, location or entry; that the lands so withdrawn from sale, location and entry, include numerous tracts described in the patents in question; and that on and after April 3, 1867, said register and receiver each unlawfully proclaimed and made known their refusal to permit any citizen or settler to do any act to procure any title to any of such lands under any law, and they each refused to do or permit to be done by any citizen or settler any act requiring their official action or sanction to procure a right or title to them.

Notwithstanding this — the bill further alleges — a large number of citizens of the United States, each over the age of twenty-one years, and otherwise having all the qualifications required by said homestead and preëmption laws, both prior

Opinion of the Court.

to and on and after April 3, 1867, and prior to any selection of such lands by or in favor of the railroad company, each went upon, occupied and improved half quarter and quarter sections of land as aforesaid, and some of them each complied with the homestead and preëmption laws, and did every act necessary to procure patents for the lands so occupied by them, respectively, except only that the receiver and register would not permit any act to be done with or by them officially for the purpose of procuring title; that said persons, who have made large and valuable improvements upon the lands so occupied by them, have continued ever since to occupy and claim them and a right to perfect their respective titles, and have always been and are ready and willing to do all acts required to entitle them to patents; and that the Missouri-Kansas Company has sold or agreed to sell to various persons, named as defendants herein, the lands so described, which are claimed by such defendants in fee or under such agreement, or under mortgages, but with notice of the rights of the United States and of said claimants under the homestead and preëmption laws.

If the facts are as thus alleged, it is clear that the MissouriKansas Company holds patents to land both within the place and indemnity limits of the Leavenworth road which équitably belong to bona fide settlers who acquired rights under the homestead and preëmption laws, which were not lost by reason of the Land Department having, by mistake or an erroneous interpretation of the statutes in question, caused patents to be issued to the company. The case made by the above admitted averments of the bill is one of sheer spoliation upon the part of the company of the rights of settlers, at least of those whose rights attached prior to the withdrawal of 1867; whether of others, it is not necessary, at this time, to determine. It is true that the bill is not as full as it might bave been in respect to the persons who are alleged to have acquired superior rights under the homestead and preemption law, or as to the particular tracts of land they claimed or occupied, or as to the dates when such homestead and preëmption rights respectively accrued. And if application had been made for a bill of par

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