Opinion of the Court.

Missouri Railroad as laid down on a map on file in the General Land Office: Provided, further, That it shall be the duty of the Secretary of the Interior, and he is hereby required, to reserve a quantity of land embraced in the grant described in this section, sufficient in the opinion of the Governor of Iowa, to secure the construction of a branch road from the town of Lyons, in the State of Iowa, so as to connect with the main line in or west of the town of Clinton, in said State, until the Governor of said State shall certify that said branch railroad is completed according to the requirements of the laws of said State: Provided, further, That nothing herein contained shall be so construed as to release said company from its obligation to complete the said main line within the time mentioned in the original grant: Provided, further, That nothing in this act shall be construed to interfere with or in any manner impair any rights acquired by any railroad company named in the act to which this is an amendment, or the rights of any corporation, person or persons, acquired through any such company; nor shall it be construed to impair any vested right of property, but such rights are hereby reserved and confirmed: Provided, however, That no lands shall be conveyed to any company or party whatsoever, under the provisions of this act and the act amended by this act, which have been settled upon and improved in good faith by a bona fide inhabitant, under color of title derived from the United States or from the State of Iowa adverse to the grant made by this act or the act to which this act is an amendment. But each of said companies may select an equal quantity of public. lands as described in this act within the distance of twenty miles of the line of each of said roads in lieu of said lands thus settled upon and improved by bona fide inhabitants in good faith under color of title as aforesaid."

We are of opinion that the purpose of this enactment was— 1. To relieve the company from the obligation to build that part of its line as found in the land office, between the Mississippi River and Cedar Rapids, because there already existed a road between those points built by another corporation.

2. To require the company to connect the city of Lyons with that corporation's road, so that it would be, as originally intended, the Mississippi terminus of the land-grant road across

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the State. This required the construction of about two and a half miles of road.

3. To authorize the company to change the location of its road yet to be constructed west of Cedar Rapids for its convenience.

4. If this change left the city of Onawa, in Monona County, off the line of the road, they were to build a branch to that place.

5. To construct a new line connecting its existing road with the road from Davenport on the Mississippi River, to Council Bluffs, on the Missouri River.

6. To adjust the amount of lands, to which the company would be entitled under this new order of things, and to enlarge the source from which selections might be made for the loss of that not found in place.

This latter it accomplished by declaring that all the sections within the fifteen-mile limits shall be subject to such selection on the same terms on which only alternate sections could previously be selected; and if this limit, which had exclusive reference to the line first located, 'did not satisfy the grant, then selection could be made within twenty miles of the new line.

Before proceeding further it is as well to say that the short road connecting the Iowa and Nebraska line with Lyons City was built, the connection with the Mississippi and Missouri River road was not built, and though the new line was located fifteen miles or more from Onawa, the branch to that city was not built. The road of this company, as originally located, from Lyons City to the Missouri River, was three hundred and forty-five (345) miles in length, and as constructed by the company, from Cedar Rapids to the Missouri River, it is two hundred and seventy-one (271) miles long, making a difference of seventy-four (74) miles.

The plaintiff in error insists that, under the act of 1864, it is entitled to six sections per mile, as measured by the original location of the road, while defendants assert that the length of the road, as constructed by the plaintiff, is to be taken as determining the quantum of the grant.

This is the first and most important question in the case, as

Opinion of the Court.

argued by counsel, and decided by the Supreme Court of Iowa in favor of the latter proposition, and its importance depends upon the fact asserted: by defendants, that the company has received all the land it is entitled to, without resorting to that which they have purchased from the government, and for which they hold its patents. Manifestly, if this be so, plaintiff can have no just claim upon the lands of defendants, though they are all located within the fifteen-mile limit and outside of the six-mile limit.

It is believed that in no instance of the many grants of public land made by Congress to aid in building railroads, has the quantity been measured by any other rule than the length of the road constructed, or required to be constructed, by the grantee or its privy; and it would be the first departure from this principle known to us if in this case Congress intended to give the same amount per mile of land for road not constructed, and from the construction of which the grantee at its own request was released, as for road which it was required to build and which it actually built. In the case of the additional road required to be built, as the Onawa branch, and in the new branch authorized to connect the main line with the Mississippi and Missouri River road, the old rule is adhered to, and a grant made of six sections per mile of this additional road which should be actually constructed. It would therefore require very plain language in that part of the act of 1864 which defines the quantity of land to be taken by the company, under these new circumstances, to justify us in holding it to cover six sections per mile for road never to be constructed by this company, from the obligation to construct which it was relieved by this very act, and which was then already built by another company having no privity with the grantee in this case.

So far, however, from finding this plain language favoring that view, we are of opinion that its fair construction is in accord with the uniform policy of Congress on this subject, and with what the circumstances suggest as the reasonable intent of that body.

The section of the act which we have copied, after authorizing the change in the location of the line of the road and the

Opinion of the Court.

connection with the line of the Mississippi and Missouri Railroad Company, says:

"And the said Cedar Rapids and Missouri River Railroau Company shall be entitled for such modified line to the same lands, and to the same amount of lands per mile, and for such connecting branch to the same amount of land per mile, as originally granted to aid in the construction of its main line."

If Congress simply meant that the company, notwithstanding the change in the line of its road, should have the lands it would have had if it had built the whole of the original line, it would have been easy to express this purpose. In such case no description of the grant, as for such modified line, nor of the same amount of lands per mile, would have been necessary. If such was the purpose, the use of this language was unnecessary and was confusing. If, however, it was the purpose of Congress to measure this grant under the new circumstances by the length of the modified line and give the same number of sections per mile of the line thus modified, the language is, in our opinion, appropriate and unambiguous. The words "the same lands," which plaintiff's counsel insist mean all the lands of the old grant, are intended, we think, to show that the lands are to be taken along the line of the old survey; that the odd sections on each side of that old line which became vested in the State when it was established should be a part of the new grant to this company, and that the deficiencies should in like manner be made up by sections within the fifteen-mile limit of that line. This is confirmed by that part of the next sentence of this section, which directs the Secretary of the Interior, when the new line shall have been established, to reserve all the lands without regard to alternate sections within that limit, so far as may be necessary to satisfy these selections, for the loss of odd sections previously disposed of.

We see no error, therefore, in the ruling of the Supreme Court of Iowa that the quantity of the grant is to be determined by the length of the new lines, as constructed by the company.

Opinion of the Court.

The plaintiff, however, insists that, adopting this principle, there is still a deficiency of the grant of 292,019 acres, to supply which it is entitled to resort to the lands now in possession of defendant. The Supreme Court of Iowa, in the opinion delivered in the nine cases decided in 1879, conceded that the company had not received the full amount it was entitled to on this basis by about 5,000 acres, but as it had selected lands enough, not including those of defendants, and had not shown that those selections had been abandoned by the company, or disallowed by the land department, they had not shown a case for relief against the defendants.

In the case of Jewell, decided by that court in 1883, it is shown by a discussion of the deductions claimed by plaintiff, that 24,000 acres have been selected and claimed in excess of what the company is entitled to.

The questions on which these deductions depend, and what weight is to be given to the selection of other lands not yet certified to the company or approved by the Secretary of the Interior, are not free from difficulty, and are to us much more embarrassing than one which the Supreme Court in its last opinion seemed to have encountered and been unable to decide. In that opinion it is said:

"The counsel for the respective parties have discussed with great learning and ability the nature of the right which the railroad company acquired in the land in question by the passage of the act. We do not care to go into a consideration of this question. The company, doubtless, as against the United States, acquired, upon the construction of the road, the right to select and claim the land as a part of the intended indemnity, if the deficiency was such as to justify it. What right the company acquired previous to selection as against the defendant, a homestead settler, is a question which presents no little embarrassment, and upon which there is not, perhaps, entire harmony in the adjudication. As to this we are not at present entirely agreed. For the purpose of the opinion it may be conceded that the plaintiffs would be entitled to resort to this land if it were necessary to fill the required indemnity. But it will not be denied that if the indemnity has been filled, the interest in the land which the plain