208 U.S.

Argument for Plaintiffs in Error.

It was made by § 17, act of July 2, 1864, to a railway corporation to be thereafter designated whether then in existence or afterwards organized and which shall be entitled to receive alternate sections for ten miles in width on each side of the same along the whole length of said branch.

The forfeiture imposed for failure to complete the branch was merely "all of the railroad which shall have been constructed by said company;" and did not include all lands as in the case of the main line and other branches under § 17, act of July 1, 1861.

Where it has been held that the grant was in præsenti the language was, "that there be and is hereby granted." Deseret Salt Co. v. Tarpey, 142 U. S. 241; Toltec Ranch Co. v. Cook, 191 U. S. 532; Iowa Railroad Land Co. v. Blumer, 206 U. S. 482. Where the language of the grant is "shall be granted" as in the act of 1864, it is not a grant in præsenti of the legal title. Minnesota v. Hitchcock, 185 U. S. 392; United States v. Thomas, 151 U. S. 583; Beecher v. Weatherby, 95 U. S. 523; Cooper v. Roberts, 18 How. 179.

There may be a grant in præsenti of an inchoate right or title where the legal title does not pass until patent is issued for the land. Rogers Locomotive Co. v. Am. Emigrant Co., 164 U. S. 559; Michigan Lumber Co. v. Rust, 168 U. S. 592.

As to the jurisdiction of the Land Office see United States v. Winona & St. P. Ry., 15 C. C. A. 103, 104.

The decision in this case was affirmed on appeal. United States v. W. & St. P. Ry., 165 U. S. 463, 474, 475. See also Moore v. Robbins, 96 U. S. 530, 533; Minter v. Crommelin, 18 How. 89; United States v. Schurz, 102 U. S. 401; French v. Fyan, 93 How. 172; Quinby v. Conlan, 104 U. S. 420; Smelting Co. v. Kemp, 104 U. S. 647; Steel v. Refining Co., 106 U. S. 452; Heath v. Wallace, 138 U. S. 585; Knight v. Association, 142 U. S. 212; Noble v. Railway Co., 147 U. S. 174; Barden v. Railway Co., 154 U. S. 288.

"The decisions of the Land Department in contest cases are conclusive upon all questions of fact." Love v. Flahive,

Argument for Plaintiffs in Error.

208 U.S.

205 U. S. 198; Gertgens v. O'Connor, 191 U. S. 240, citing Burfenning v..Chicago &c. Ry. Co., 163 U. S. 323, and cases there cited; Johnson v. Drew, 171 U. S. 99; Gardner v. Bonestell, 180 U: S. 362.

Where & public grant is being administered by the Land Department the courts cannot anticipate its decision by passing upon the title to lands involved in contests before the Department in the administration of such grant. The jurisdiction of the Department is exclusive. French v. Fyan, 93 U. S. 171.

Courts are not permitted to "render a decree in advance of the action of the Government which would render its patents a nullity when issued." Marquez v. Frisbie, 101 U. S. 475, and cases cited; Vance v. Burbank, 101 U. S 509; Craig v. Leitensdorfer, 123 U. S. 213; Ehrhardt v. Hogaboom, 115 U. S. 67, 69.

The officers of the Land Department were "charged with the duty of administering the land grant and determining what lands did and what did not pass, the only tribunal to which the company could then apply and upon whose ruling it was bound to act." United States v. Winona &c, Ry., 165 U. S. 475; Oregon v. Hitchcock, 202 U. S. 70; In re Emblen, 161 U. S. 56, 57; McDaid v. Oklahoma, 150 U. S. 209; Bockfinger v. Foster, 190 U. S. 121, 126; Humbird v. Avery, 195 U. S. 502, 510.

As an action for the possession of the land could not have been maintained by the Sioux City Company, or its grantee, the statute of limitations could not run or toll the right of that company or its grantee under patent for the land when finally issued. Howard v. Perrin, 200 U. S. 74, 75; Gibson v. Choteau, 13 Wall. 92; Iowa Ry. Land Co. v. Blumer, 206 U. S. 495, 496.

It is only in the interest of justice that the fiction of relation is applied by which a legal title is held to relate back to the initiatory step for the acquisition of the land. United States v. Anderson, 194 U. S. 399, and cases there cited.

Where, as in the case at bar, the application of that rule

208 U. S.

Argument for Defendant in Error.

would, under a state statute of limitations giving title by prescription, toll the legal title before it passes from the United States, this is not in the interest of justice, and the fiction of relation cannot obtain. Gibson v. Choteau, 13 Wall. 100; Howard v. Perrin, 200 U. S. 74, 75.

The writ of error herein was properly issued. See Butler v. Gage, 138 U. S. 56; Havnor v. New York, 170.U. S. 411.

The case presents Federal questions clearly giving this court jurisdiction. Gibson v. Choteau, 13 Wall. 92; Redfield v. Parks, 132 U. S. 246; Iowa R. R. Land Co. v. Blumer, 206 U. S. 482.

Mr. James H. Van Dusen, with whom Mr. Edward F. Colladay was on the brief, for defendant in error in this case and in No. 102:

The writ of error herein was not properly issued, because it appears that it was not signed by the Chief Justice of the Supreme Court of the State, as required by law. Havnor v. New York, 170 U. S. 411.

There is no Federal question involved in this case. It is merely a suit to quiet title brought by one of two tenants in common against the other, both of whom base their claims of title upon the same grant from the United States. The case is governed by Corkran Oil Co. v. Arnaudet, 199 U. S. 182, and Dibble v. Bellingham Bay Land Co., 163 U. S. 74.

The acts of Congress of July 1, 1862, and July 2, 1864, were grants in præsenti and, under the admission in the pleadings of the completion of the railroads and the compliance with all the terms and conditions of the act prior to January 1, 1870, operated to pass the title of the Government on or prior to that date. Deseret Salt Co. v. Tarpey, 142 U. S. 241; Toltec Ranch Co. v. Cook, 191 U. S. 291; Schulenberg v. Harriman, 21 Wall. 44; Leavenworth L. & G. Ry. Co. v. United States, 92 U. S. 733; Platt v. Union Pac. Ry. Co., 99 U. S. 48; St. Joseph Ry. Co. v. Baldwin, 103 U. S. 426; St. Paul Ry. Co. v. Phelps, 137 U. S. 528; Iowa Railroad Land Co. v. Blumer, 206 U. S. 482.

If title passed from the Government, as contended by Wiese, the state statute of limitations operated and proceedings before the Land Department could not toll it. Deseret Salt Co. v. Tarpey, 142 U. S. 241; Toltec Ranch Co. v. Cook, 191 U. S. 291; Southern Pac. Ry. Co. v. Whitaker, 109 California, 268; Sage v. Rudnick, 91 Minnesota, 330; Iowa Railroad Land Co. v. Blumer, 206 U. S. 482.

There is no evidence in the record showing any controversy before the Land Department over the land in question between the two railway companies, the only contest being between Wiese and the Missouri Valley Land Company. Hence, the contention that there was a contest between the railroad companies as to which was entitled to the land pending before the Land Department is not supported by any evidence.

Whether the application of Wiese to enter the land under the act of Congress of 1887 prevented the running of the state statute of limitations was a question exclusively for the state court, and it held that the statute was not thereby tolled. Oldig v. Fiske, 53 Nebraska, 159; Beall v. McMenemy, 63 Nebraska, 70. .

The conveyance by the Union Pacific Railroad Company to Japp, and the exclusive possession of Japp and Wiese thereunder, constitute an adverse possession, and this was a question exclusively for the state court.

MR. JUSTICE WHITE delivered the opinion of the court.

Within the grants of land made to the Union Pacific Railroad Company and the Sioux City and Pacific Railroad Company by the act of Congress of July 1, 1862, c. 120, 12 Stat. 489, and the amendatory act of July 2, 1864, c. 216, 13 Stat. 356, some of the land within place limits overlapped. This controversy concerns the title to a forty-acre tract within an overlap.

We state the salient facts established by the pleadings and

the proofs in order to make clear the contentions which are required to be decided.

The land involved is the northeast of the northeast of section 21, township 17, range 11 east, Washington County, Nebraska. At the time of the passage of the granting acts referred to the records of the General Land Office showed a school indemnity selection of the tract now in controversy, made on July 1, 1858. The railroads named, each having complied with all the conditions of the acts of Congress, had become fully entitled to the granted lands prior to January 1, 1870. A joint patent was issued in 1873 to the two roads named for a large quantity of the lands within the common territory. This action of the Land Department was upheld by the Circuit Court for the District of Nebraska in 1876, and the two railroad companies were adjudged to be tenants in common of such lands. Sioux City & P. R. R. Co. v. Union Pacific Railroad Company, 4 Dill. 307; S. C., Fed. Cas. No. 12,909. As remarked in a footnote to a report of the case, "This decree was acquiesced in by the parties, who, subsequently effected an amicable partition of the land." Apparently, however, in consequence of the school indemnity selection referred to, the forty-acre tract now in controversy was not included in such patents. On July 3, 1880, the school indemnity selection was cancelled by the General Land Office because not authorized by statute. See 17 L. D. 43. This cancellation, so far as the record discloses, left the tract free from claims antagonistic to the rights of the railroad companies under the grants of 1862 and 1864. On June 12, 1881, the Union Pacific Railroad Company "listed the land in question, per list No. 4, but the Sioux City and Pacific Railroad Company never listed the same." On December 1, 1882, the Union Pacific Railroad Company sold, and in 1887, after completion of the payment for the same, conveyed the land to John Japp by a warranty deed, purporting to transfer the entire title, and this deed was soon afterwards recorded. Japp went into and remained in open, continuous and adverse possession of the land, farm