company attached to the particular odd sections, and became specific and indefeasible. In U. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177, (decided at the last term of the supreme court,) it was held, after the most mature consideration, that, in case of a floating Mexican grant of a specific quantity of land within large exterior bounds, the lands within such exterior boundaries are public lands, subject to a railroad grant, there being sufficient left to satisfy the float; and that the said act of 1862 took effect upon the odd sections of land within such exterior boundaries as were not finally required to satisfy the float; thus very materially limiting the operation of the prior decision in Newhall v. Sanger. That is precisely this case; and the same act of 1862 granted to the same company all the odd sections within the exterior boundaries of the Las Pocitas grant, embracing ten or more leagues within the prescribed limits and conditions not required to satisfy the float of two leagues, which has since been finally located so as to exclude the lands in question. Under this decision, then, the railroad company, by the acts of 1862 and 1864, had a valid grant to every odd section of land within twenty miles on each side of the road, and within the exterior bounds of the Las Pocitas grant, not embraced within the two leagues as it was finally located, "not sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim may not have attached at the time the line of said road is definitely fixed." 12 St. 492, § 3. The lands in question are odd sections within the prescribed limits, and are not embraced in the Las Pocitas grant as finally patented. These lands, therefore, upon completion of the road, passed to the railroad company, unless some one of the rights specified in the statute had attached before the attaching of the right of the company. Section 7 of the act provides that the "said company shall designate the general route of said road, as near as may be, and shall file a map of the same in the department of the interior, whereupon the secretary of the interior shall cause the lands within fifteen miles of said designated route or routes to be withdrawn from pre-emption, private entry, or sale." Id. 493. This map of general location was filed in the office of the secretary of the interior on December 8, 1864, and on December 23, 1864, the secretary issued an order in pursuance of the acts of congress, as they then were, withdrawing for 25 miles on each side of the designated line "from sale, location, pre-emption and homestead," and forwarded it, together with a map showing the location and lands withdrawn, to the register of the land-office of the district embracing the lands where it was received, filed and promulgated on January 30, 1865; from which date at the latest, no right other than that of the railroad company, could be acquired or initiated in any of said odd sections of land. If, then, no right of the kind specified by the statute had legally attached to the lands in question before the 30th of January, 1865, none could thereafter attach in favor of the state by selection, listing over by the land department, or otherwise, nor could congress even authorize any subsequent legal transfer of title. The grant to the railroad company was a present grant upon conditions subsequent, which could only be defeated by breach of con

dition and its divestiture of title thereupon, by proper legal proceedings on behalf of the United States. The filing of the map of the general route, and withdrawal thereupon from sale, pre-emption, etc., protected the lands against the acquisition of any other right by any other parties until the line should become "definitely fixed," when the grant would become specific by attaching itself to every odd section within the prescribed limits, and could not thereafter be changed. U. S. v. McLaughlin, 12 Sawy. 191, 202, 30 Fed. Rep. 147; Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. Rep. 100; Railroad Co. v. Orton, 6 Sawy. 198, and cases there cited; Denny v. Dodson, 32 Fed. Rep. 899; Schulenberg v. Harriman, 21 Wall. 44; Railway Co. v. Railroad Co., 97 U. S. 491.

The only remaining question, therefore, is: Had any such right, as is excepted by the statute, legally attached in favor of the state in the lands in question, or any of them, on January 30, 1865? It is not pretended that any other right than that under the state selection had attached. It has been settled by numerous decisions in the state of California, and affirmed by the United States supreme court, that the state could acquire no right whatever by a selection of lieu lands made before the lands have been surveyed by the United States; and that a selection made upon unsurveyed lands is utterly void. Grogan v. Knight, 27 Cal. 516; Railroad Co. v. Robinson, 49 Cal. 446, 448; Chant v. Reynolds, Id. 217; Young v. Shinn, 48 Cal. 26; Hastings v. Derlin, 40 Cal. 358; Toland v. Mandell, 38 Cal. 31, 41; Aurrecoechea v. Sinclair, 60 Cal. 549; Collins v. Bartlett, 44 Cal. 371,380; Smith v. Athern, 34 Cal. 506; Aurrecoechea v. Bangs, 114 U. S. 383, 5 Sup. Ct. Rep. 892; Barnard's Heirs v. Ashley's Heirs, 18 How. 46. None of the lands in question situate in township 2 S., range 1 E., as we have seen, were surveyed in the field by authority of the United States till the month of March, 1865, and the approved plats were not filed in the district land-office till June 10, 1865. The applications of the state locating agent to locate all said lands in township 2 S. were made and entered in the office of the register of the land-office on the 12th and 13th of June, 1865; the register having refused to recognize applications made in 1862 and 1863 upon surveys made under authority of the state. As we have seen, the acts of the state in making selections prior to the United States survey in March, 1865; and the filing of the plat in the land-office in June, were utterly void, and no rights attached to the lands or any of them by virtue of those acts performed before said survey in March. On January 30th, at latest, the grant to the railroad company attached in such manner that it could not be thereafter limited or divested; and the absolute right to the lands by the completion of the road and filing the map of definite location indefeasibly vested in the company. There can be no doubt, therefore, that the complainants should have a decree that they are entitled to the lands in said township 2 S. The lands in question lying in township 3 S., stand in no different situation from those in township 2 S., except that they were surveyed in the field by the United States deputy-surveyor in August, 1862, and a plat thereof was made and approved by the surveyor general on December 24, 1862; but a certified

copy was not filed in the office of the register of the land-office of the district embracing the lands until June 4, 1869. This plat (so filed in 1869) is regarded by the interior department as official, and the survey as made of the date of filing. A plat approved by the surveyor general December 18, 1865, however, was filed in the district land-office on December 28, 1865, this being the first plat filed in that office; but this map is not regarded by the interior department as official, as it had not at that time been approved and adopted by the department. Were it otherwise, this filing was too late. Unless the actual survey in the field, and making and approving a plat by the surveyor general without filing it, or a certified copy of it, in the local land-office, places the lands in the category of surveyed lands in contemplation of law, then these lands. were also selected before they were surveyed by the United States, and the selections were void. The interior department did not regard the survey as official until the certified copy of the official plat was filed by direction of the department in the local land-office, June 4, 1869. Whether this is to be regarded as the date of the survey or not, we are satisfied that the lands could not be regarded as legally surveyed in such sense as to open them to selection, location, sale, or other disposition till the approved copy of the plat was filed on December 28, 1865. This is the earliest date at which they could be considered open to selection, if open to selection then. The land-office was the place for the disposition. and record of the public lands; and until they had an authentic official plat of the surveys of the public land, it would be impracticable to keep If we are correct in this view, a record of them or of their disposition. then no valid selection could be made, at the earliest, till December 28, 1865, and this was several months after the grant to the railroad company had indefeasibly attached.

On another ground the state selections in question are clearly void, and no interest attached to the lands selected in favor of the state. By the express terms of the act of 1853, under which the selections were made, "lands reserved by competent authority," "lands claimed under any foreign grant, or title, and the mineral lands," are excepted from the operation of the act. Consequently, neither such "reserved lands," lands claimed under Mexican grants, nor mineral lands could be legally selected in And this was manilieu of school sections lost, or otherwise disposed of. festly the view of congress, for when it passed the act of 1866, to quiet titles in California by confirming void selections, it also expressly excepted from confirmation "any land held or claimed under any valid That selections of Mexican or Spanish grant." 14 St. p. 218, § 1. lands so claimed under Spanish grants were void, and created no right whatever in the state, is directly decided and settled by the supreme court of the United States in cases arising under this very grant, Las Pocitas, upon locations made in 1863, at the same time and in the same manner as the lands now in question were selected and located. Aurrecoechea v. Bangs, 114 U. S. 382, 5 Sup. Ct. Rep. 892, and Huff v. Doyle, 93 U. S. 558. These cases are controlling. The lands were claimed under the Las Pocitas grant, at the time of their selection, location and

sale by the state, and they were afterwards in fact included in one of the surveys upon the final decree of confirmation; but that survey was set aside, and they were finally excluded by the survey which became final in the year 1871. The supreme court held that no valid selection could be made by the state until the grant was finally located. No right of any kind then had attached to these lands when they were withdrawn for the purposes of the railroad grant on January 30, 1865, that under the recent decision of the supreme court in U. S. v. McLaughlin, could prevent that grant from attaching. It was, therefore, the first grant to attach, and, by performance of the conditions subsequent, the title of the company became absolute. The selections in question were excepted from confirmation by the act of 1866; but had it been otherwise, as we have seen, it was not in the power of congress at that time to divest the right of the company. The act of March 1, 1877, (19 St. 267,) for like reasons, cannot affect the rights of the railroad company. The right of the company had not only attached, but by the performance of the required conditions within the prescribed time, and of the filing of the map of definite location, the grant had become specific on February 1, 1870, and the title of the company had become absolute and indefeasible. At the date of this confirmatory act, therefore, seven years afterwards, the United States had no interest whatever in the land upon which the act could operate.

This case affords another instance of hardship arising from the ill-advised efforts of the state to prematurely select the lands to which it was entitled, without regard to the existing laws of the United States. with respect to the particular lands now in question, the parties purchasing in township 2 S., 1 E., since June 10, 1865, had official record notice of the right of the railroad company, for the map filed in the office of the register of the land-office had distinctly indorsed upon it, in red ink, the following: "The odd-numbered sections on this plat are granted to the Western Pacific Railroad. See letter of instructions dated December 23, 1864." It follows from these views that there must be a decree in favor of the United States, adjudging that the listing to the state of the lands in controversy was unauthorized and void, and that the patents issued by the state upon such listing to purchasers from her passed no title to them in the lands patented, and enjoining them from claiming, in any way or form, title to such lands, or to any part of them, under the said patents, and that the title to the lands. passed to the Central Pacific Railroad Company by the acts of congress of July 1, 1862, and of July 2, 1864, the said company having complied with the conditions of the grant to it, and constructed the road and telegraph line designated therein; and that the said company is entitled to a patent of the United States for such lands. No costs will be allowed to the complainants.

EASTON et al. v. HOUSTON & T. C. RY. Co. et al., (PEMBERTON Co., In

tervenor.)

(Circuit Court, E. D. Texas. March 15, 1889.)

RAILROAD COMPANIES-INSOLVENCY AND RECEIVERS-CARRIERS-LOSS of Goods. A claim by the consignee of goods against a railroad company as a common carrier, for the value of goods lost by fire while in possession of the carrier, and before the road is placed in the hands of a receiver in a foreclosure suit, is not entitled to a priority, before the claims of the bondholders.

In Equity.
Gresham & Jones, for intervenor.

On exceptions to master's report.

Farrar, Jonas & Kruittschnitt, for receiver.

PARDEE, J. This intervention, filed June 29, 1887, is by the Pemberton Company, a corporation created and existing by and under the laws of Massachusetts, and having its domicile at the town of Lawrence in that state, against the Houston & Texas Central Railway Company, as a common carrier, for the value of freight lost while in transit over its road. The intervenor seeks to have its claim declared a charge upon the net earnings of the defendant company's road, and, if need be, upon the corpus of its estate in the hands of the receivers appointed in the above cause, superior to the equities of the bondholders, whose contract liens are sought to be enforced in the above suit; and to that end the said receivers and the complainants and defendants to the original bill are made parties to this proceeding, is so far as the assertion of the petitioner's rights may affect them or the interests they represent. Intervenor lays its damage at $4,000. The facts, as alleged in the petition, and as reported by the master, are, briefly, as follows: On the 12th day of September, 1884, there were shipped, by Robertson & Co., from Ennis, Tex., a station upon the Houston & Texas Central Railway, 100 bales of cotton, the property of the intervenor, the Pemberton Company, for which the railway company executed to Robertson & Co. a bill of lading for the delivery of the cotton to their order at Lawrence, Mass., which bill of lading, at the time of the shipment of the cotton, was by Robertson & Co., the consignees therein named, indorsed in blank and delivered to intervenors, the cotton being the latter's property and the shipment thereof for its benefit. On the 14th of September, 1884, and while the cotton was in transit over said railway, and in the custody of the railway company, under its contract of carriage, 40 bales thereof were destroyed by fire; the cotton so burned being of the aggregate weight of 20,132 pounds, and of the value, at the time, of 11 cents per pound, or, in the aggregate, $2,214.52. On the 23d of February, 1885, Benjamin G. Clarke and Charles Dillingham, under an order made February 20, 1885, in equity cause No. 185, styled "Southern Development Co. et als. v. Houston & T. C. Ry. Co.," went into possession of the road and other properties of the said railway company, and so continued until