DAVIS et al. v. CAPITOL PHOSPHATE CO., 57 F. 118

LOCKE, District Judge, (after stating the facts.) It is admitted that the state hy proper legislation conveyed any rights which had been derived from the congressional grant to the railroad company. The bill of complainants must depend upon the validity of their title from the railroad company, and not the weakness of the defendant’s; so, if their title is not well founded, it will not he necessary to make further examina,i,ion of the case.

It is shown by the certificates of the receiver of the United States land office for that district and of the commissioner of the general office herein filed that the land in question is embraced in the 15-miles indemnity limits, which had been withdrawn from entry and sale by direction of the secretary of the interior March 16, 1881, and had been selected as such indemnity lands April 5, 1887, but that there had been no action of the general land office or secretary of the interior in confirmation of the selection or looking to its approval, or rejection.

The principal question in this case, then, and that which must first he determined, is, what rights were given under the act of congress to the state, and by the state to the railroad company, to lands not within the 6-mile grant, but within the 15-mile indemnity limit, by selection as indemnity lands, but before the approval of such selection,by the secretary of the interior? This exact question was before the supreme court in the case of Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. Rep. 341.

In that case- a portion of the lands in question were within the limits of the positive grant, 10 sections on each side of the road, and a portion within the so-called “indemnity limits” of 20 miles. The language of the grant under which those lands were claimed, the act of 5th of May, 1864, (13 Stat. 66,) was, as far as any question herein, exactly similar to the act of 1856, relied upon by complainants. It: provides: “That there be granted to the state of Wisconsin for the purpose of aiding in the construction of a railroad * * * every alternate

section of public land designated by odd numbers for ten sections in width-on each side of said road. * * * But in case it shall appear that the United States have, when the line or route of said road is definitely fixed sold, reserved or otherwise disposed of, any sections or parts thereof, granted as aforesaid or that the right of pre-emption or homestead has attached to the same then it shall be lawful for any agent or agents of said state appointed by the governor thereof to select, subject to the approval of the secretary of the interior, from the lands of the United States nearest to the tiers of the sections above specified as much public land in alternate sections as shall be equal to such lands as the United States have sold or otherwise appropriated, * * * provided, that the lands to be so located shall in no case be further than twenty miles from the line of said road.” A list of tbe selections of the lands witbin tbe indemnity limits —20 miles — bad been made, properly authenticated, and forwarded to tbe secretary of tbe interior, but be bad not approved tbe same when tbe question arose.

In that case, Justice Field, speaking for tbe court, says: “The lands taxed amounted to eleven parcels of 40 acres each, lying within the original sections named in the grant, — that is, within the ten-mile limit from the line of the road, — and the remainder were within the indemnity limits. So far as the eleven parcels are concerned, the right of the plaintiff to them, and to a patent for them, had as early as 1877 become complete under the term of the granting act. The line of the railroad had been definitely fixed. * * * The grant was, * * * until such location, a float.

But when the route of the road was definitely fixed, the sections granted became susceptible of identification, and the title attached to them, and took effect as of the date of the grant, so as to cut off all intervening. claims. * * * But as to the remainder of the lands taxed, which fell- within the indemnity limit, the case is different. For such lands no title could pass to the company not only until the selections were made by the agents of the states appointed by the governor, but until such selections were approved by the secretary of the interior.

The agent of the state made the selections, and they had been properly authenticated and forwarded to the secretary of the interior; but that officer never approved them. * * * The approval of the secretary- was essential to the efficacy of the selections, and to give to the company any title to the lands selected. His action in that matter was not ministerial, but judicial. * * * 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 winch might he taken as indemnity were incapable of indentiiication; the i>roposed selection 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 he enforced in the com*ts.” In this case the court had been considering both, the legal and equitable title of the land in question, and the decision plainly denies any title that can he enforced.

This, we consider, fully determines the insufficiency of the title of complainants to support the action brought, and it is unnecessary for us to examine the numerous other questions presented and argued. The judgment below is affirmed, with costs.