NORTHERN PAC. R. CO. v. MACLAY et al., 61 F. 554

HAWLEY, District Judge (after stating the facts). Prom the agreed statement of facts, it affirmatively appears that the lands in question, in the Bitter Root valley, above the Lo In fork, in the state of Montana, were not public lands of the United States at the date of the passage of the “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.” And from the decisions of the supreme court of the United States in Wilcox v. Jackson, 13 Pet. 498; Leavenworth, L. & G. R. Co. v. U. S., 92 U.

S. 733; Newhall v. Sanger, Id. 761; Bardon v. Railroad Co., 145 U. S. 535, 12 Sup. Ct. 856; of this court in Amacker v. Railroad Co., 7 C. C. A. 518, 58 Fed. 851; and of the land office in Phelps v. Railroad Co., 1 Dec. Dep. Int. 384,—it is manifest that the act of congress granting lands to the railroad does not convey, and was not intended to convey, any lands that were not, at the time of the passage of the act, public lands of the United States. In Bardon v.

Railroad Co., supra, the court, in interpreting the grant under consideration, said: “The grant is of alternate sections of public land, and by ‘public land,’ as it has been long settled, is meant such laud as is open to sale or other disposition under general laws. All land to which any claims or rights of others have attached does not fall within the designation of ‘public land.’ ” Mr.

Justice Field, who delivered the opinion of the court, after referring to the Leavenworth Case, and to the fact that he had dissented from the opinion in that case, said: “But the decision has been uniformly adhered to since its announcement; and this writer, after a much larger experience in the consideration of public land grants since that time, now readily concedes that the rule of construction adopted—that, in the absence of any express provision indicating otherwise, a grant of public lands only applies to lands which are at the time free from existing claims—is better and safer, both to the government and to private parties, tiian the rule which would pass the property subject to the liens and claims of others.

The latter construction would open a wide field of litigation between the grantees and third parties.” In Amacker v. Railroad Co., supra, this court, with reference to the same grant, said: “The character of the grant to the company is well defined. It is one in praesenti, but, as was said in St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup.

Ct. 389: ‘The grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as wore specifically reserved.’ In considering, therefore, what lands ultimately passed by the grant, there are two periods principally to he regarded: One, the date of the granting act; the other, the filing of the map of definite location of the road.

Lands to which claims had attached at either period did not pass, though they were free from the claim at the other period.” The judgment of the circuit court is affirmed.