are within the limits of the grant contained in the act of 1866; as the route of the Oregon Railroad was definitely fixed, at least when the map showing that route was accepted by the Secretary of the Interior on the 29th day of January, 1870, the Northern Pacific Railroad Company having done nothing prior to the latter date except to file the Perham map of 1865; and as, prior to the forfeiture act of September 29th, 1890, there had not been any definite location of the Northern Pacific Railroad opposite the lands in dispute, there is no escape from the conclusion that these lands were lawfully earned by the Oregon Company and were rightly patented to it. Of course, if the route of the Northern Pacific road had been definitely located before the act of 1890 was passed, and had embraced the lands in dispute, dif

In opposition to the views we have expressed it may be said that the clause in the act of July 25th, 1866, providing for the se lection under the direction of the Secretary of the Interior of lands for the Oregon Com. pany in lieu of any that should "be found to have been granted, sold, reserved, occupied by*homestead settlers, pre-empted, or otherwise disposed of," shows that Congress did not intend to include in, but intended to exclude from, the grant to that company any lands that could have been earned by the Northern Pacific Railroad Company by defi nitely fixing its route and filing its map of definite location. Undoubtedly those lands would be regarded as having been ap

utive order withdrawing from pre-emption, private entry, and sale lands within the general route of a railroad is to preserve the lands unencumbered until the completion and acceptance of the road. But where the grant was, as here, of odd-numbered sections, within certain exterior lines, '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,' the filing of a map of general route and the issuing of a withdrawal order did not prevent the United States, by legislation, at any time prior to the definite location of the road, from selling, reserving, or otherwise disposing of any of the lands which, but for such legislation, would have become, in virtue of such definite location, the property of the railroad company. Es-ferent questions would have been presented. pecially must this be true where the grant is made subject to the reserved power of Congress to add to, alter, amend, or repeal the act containing such grant. The act of 1866 did not take from the railroad company any lands to which it had then acquired an absolute right. The right it acquired in virtue of the act making the grant, and of the accepted map of its general route, was to earn such of the lands within the exterior lines of that route as were not sold, reserved, or disposed of, or to which no pre-emption or homestead claim had attached at the time of the definite location of its road. That act did not violate any contract between the United States and the railroad company, for the reason that the contract itself recog-propriated when the route of the Oregon nized the right of Congress, at any time before the line of road was definitely located, to dispose of odd-numbered sections granted. It was one that disposed of the lands in question before the definite location of the road. It dedicated these and like lands, part of the public domain, to the specific purposes stated in its provisions, and to that extent removed the restrictions created by the withdrawal order of 1865, leaving that order in full force as to other lands embraced by it. Bullard v. Des Moines & Ft. D. R. Co. 122 U. S. 167, 174, 30 L. ed. 1123, 1125, 7 Sup. Ct. Rep. 1149. That order took these lands out of the public domain as between the railroad company and individuals, but they remained public lands under the full control of Congress, to be disposed of by it in its discretion at any time before they became the property of the company under an accepted definite location of its road. We cannot doubt that the act of 1866 was a legal exertion of the power of Congress over the public domain."

road was definitely located, if prior to that date the route of the Northern Pacific Railroad had been definitely fixed, and if such lands were within the exterior lines of that route. But, as we have said, these lands were within the limits of the grant of July 25th, 1866, and had not, at that time, or when the route of the Oregon road was definitely located, been appropriated for the benefit of the Northern Pacific Railroad Company, for the reason that the latter company had not then filed any map of definite location. The Northern Pacific Railroad Company could take no lands except such as were unappropriated at the time its line was definitely fixed. It accepted the grant of 1864 subject to the possibility that Congress might, before its line was definitely fixed, authorize other railroad corporations to appropriate lands within its general route, allowing it to select other lands in lieu of any so appropriated. The lands here in dispute were consequently subject to be disposed of by Congress when the act of 1866 As the grant contained in the act of July was passed; and (the line of the Northern 2d, 1864, did not include any lands that had Pacific Railroad not having been definitely been reserved, sold, granted, or otherwise ap-located prior to the passage of the forfeiture propriated at the time the line of the North- act of 1890) the Oregon Company became ern Pacific Railroad was "definitely fixed;" entitled to take the lands and to receive patas the route of the Northern Pacific Rail-ents therefor in virtue of its accepted map of road had not been definitely fixed at the time definite location. the act of July 25th, 1866, was passed, or when the line of the Oregon Company was definitely located; as the lands in dispute

Touching the joint resolution of May 31st, 1870, it is clear that, whatever may be its scope, no previously vested right of the Ore

19.

-.

gon Company was affected or was intended | 1864 (13 Stat. at L. 365, chap. 217), in aid of to be affected by that resolution. On the the construction of the Northern Pacific contrary, the resolution on its face indicates Railroad. The provisions of that act, 80 that some of the lands which the Northern far as they are material to the present conPacific Railroad Company may have been troversy, are fully set forth in the opinion entitled to earn had been or might have been in United States v. Oregon & C. R. Co., just granted or otherwise disposed of "subse- decided, 176 U. S. 28, 20 Sup. Ct. Rep. 261, quent to the passage of the act of July 2d, 44 L. ed. 1864," and in lieu thereof that company was By an act of February 25th, 1867, Conauthorized under the direction of the Secre- gress, in aid of the construction of a military of the Interior to receive other lands.tary wagon road in Oregon from Dalles City The only effect, therefore, of the joint reso- on the Columbia river, by way of Camp Watlution, as between the Northern Pacific Rail-son, Canyon City, and Mormon or Humboldt road Company and the Oregon Company, was to confer upon the former company the right to receive other lands in lieu of those ap propriated by the latter company under the authority of the act of 1866.

basin, to a point on Snake river opposite Fort Boise in Idaho territory, granted to the state of Oregon "alternate sections of public lands, designated by odd numbers, to the extent of three sections in width on each side of said road: Provided, That . . . any and all lands heretofore reserved to the United States, or otherwise appropriated by act of Congress or other competent authority, be, and the same are, hereby reserved from the operation of this act, except so far as it may be necessary to locate the route of said road through the same, in which case the

Passing by, as unnecessary to be determined, other questions discussed by counsel, we adjudge that the circuit court erred in canceling the patents referred to in the bill, and that the reversal by the circuit court of appeals of the decree of the circuit court, and the remanding of the cause with directions to dismiss the bill, was right. The decree of the Circuit Court of Ap-right of way to the width of one hundred feet peals is affirmed.

is granted: And provided further, That the grant hereby made shall not embrace Mr. Justice McKenna did not partici- any mineral lands of the United States." pate in the decision of this case. 14 Stat. at. L. 409, chap. 77.

Other sections of that act are as follows: "§ 2. That the lands hereby granted to said state shall be disposed of by the legislature thereof for the purpose aforesaid, and for no other; and the said road shall be and remain a public highway for the use of the government of the United States, free from tolls or other charges upon the transportation of any property, troops, or mails of the United States." "§ 4. That the state of Oregon is authorized to locate and use in the construction of said road an additional amount of public lands, not previously reserved to the United States nor otherwise disposed of, and not exceeding ten miles in distance from it, equal to the amount reserved from the operation of this act in the first section of the same, to be selected in alternate odd sections as provided in section first of this act. §5. That lands hereby granted to said state shall be disposed of

Bubmitted November 15, 1897. Decided only in the following manner, that is to say:

A

January 8, 1900.

PPEAL from a decision of the United States Circuit Court of Appeals for the Ninth Circuit reversing a decree of the Circuit Court dismissing a bill for the cancelation of a patent for lands. Affirmed.

See same case below, 48 U. S. App. 330, 79 Fed. Rep. 719, 25 C. C. A. 164.

when the governor of said state shall certify to the Secretary of the Interior that ten continuous miles of said road are completed, then a quantity of the land hereby granted," not to exceed thirty sections, may be sold, and so on from time to time until said road shall be completed; and if said road is not completed within five years, no further sales shall be made, and the lands remaining unsold shall revert to the United States. §6. That the United States surveyor general for the

The facts are stated in the opinion. Mr. John M. Gearin for appellant. Messrs. James K. Kelly and Nixon & district of Oregon shall cause said lands so Dolph for appellee.

Mr. Justice Harlan delivered the opinion of the court:

This case depends in part upon the construction of the act of Congress of July 2d,

granted to be surveyed at the earliest practicable period after said state shall have enacted the necessary legislation to carry this act into effect."

Subsequently, by an act approved October 20th, 1868, the state of Oregon granted to

+

That this shall not be construed to revive any land grant already expired, nor to create any new rights of any kind except to provide for issuing patents for lands to which the state is already entitled." 18 Stat. at L 80, chap. 305.

the Dalles Military Road Company all the from the General Land Office to such corpor lands, right of way, rights, privileges, and ation or corporations upon their payment of immunities granted or pledged by the above the necessary expenses thereof: Provided, act of February 25th, 1867, "for the purpose of aiding said company in constructing the road mentioned and described in said act of Congress, upon the conditions and limitations therein prescribed." The state also, by the same act, granted and pledged to that company "all moneys, lands, rights, priv. ileges, and immunities which may be hereafter granted to this state to aid in the construction of such road for the purposes and upon the conditions mentioned in said act of Congress, or which may be mentioned in any further grants of money or lands to aid in constructing said road," and authorized it to locate the lands mentioned in the 4th section of the act of Congress, subject to the approval of the governor. Sess. Laws 1868,

P. 3.

The material facts out of which the present suit arises are alleged in the bill, and are substantially admitted in the answer. They are as follows:

Prior to June 23d, 1869, the Dalles Military Road Company had duly surveyed and definitely located its line of road between the points designated by Congress and the state; had fully constructed and completed its road, and had filed in the office of the governor a plat or map upon which was traced and shown the definite location of the road from Dalles City to its terminus on Snake river, as well as the limits of the place and indemnity lands embraced by the act of Congress.

On the 31st day of May, 1876, Edward Martin, in good faith and for a valuable consideration, $125,000, purchased from the Military Road Company all the lands embraced in the grant to it, except such as it had previously sold, and received a convey. ance therefor. Bad faith is not imputed to Martin, and it is only claimed that when he purchased those lands he was chargeable with constructive notice of the acts of Congress, and that no title could pass to the Military Road Company consistently with the above act of July 2d, 1864, granting lands to the Northern Pacific Railroad Company.

By different mesne conveyances, beginning with a deed from Edward Martin dated January 31st, 1877, and ending with a conveyance to it of date August 11th, 1884, the Eastern Oregon Land Company, a California corporation, became the owner-if the origi nal sale by the Military Road Company passed any title of all the lands purchased by Martin in 1876.

land was on the south side of the line of

Among the lands in place that had been selected by the Military Road Company were the northeast quarter and the southeast quarter of section 15 in township 5 south of On the 23d day of June, 1869, the gover-which was situated in Sherman county, and range 17 east of the Willamette meridian, nor certified that such plat or map had been duly filed in his office, and that it showed the within the limits of the grant of land in route upon which the road was constructed place to the state by the above act of Februin accordance with the above acts of Con-ary 25th, 1967. That particular body of gress and of the legislature of Oregon; also,«, that he had made a careful examination of "general route" of the Northern Pacific Railroad as delineated on a map filed by that comthe road since its completion, and that the same had been built in all respects as re-pany on the 13th day of August, 1870, and quired by those acts, and had been accepted. The above map and the certificate of the governor were filed by the company in the office of the Secretary of the Interior, and on December 18th, 1869, the Commissioner of the General Land Office, by order of the Secretary, withdrew from sale in favor of the company the odd-numbered sections within 3 miles from each side of the wagon road, as delineated and shown on the maps BO filed.

By an act of Congress approved June 18th, 1874, it was provided that in all cases when the roads in aid of the construction of which said lands were granted are shown by the certificate of the governor of the state of Oregon, as in said acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the state of Oregon as fast as the same shall, under said grants, be selected and certified, unless the state of Oregon shall by public act have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue

more than 20 and less than 40 miles from

that line. There never was any definite location of the line of that road opposite this land.

The above tract of land was opened for settlement and sale by the Secretary of the Interior,-that officer, the bill alleged, being of opinion that it was excepted from the grant to the state of Oregon in the act of February 25th, 1867, and was embraced by the act of July 2d, 1864, and by the map of general route filed by the Northern Pacific Railroad Company on the 13th day of August, 1870. In opening this land to settlement and sale the Secretary proceeded, as he supposed, by authority of the forfeiture act of September 29th, 1890, by which the United States resumed title to and restored to the public domain all lands theretofore granted in aid of the construction of railroads, and which were opposite to and conterminous with the portion of the railroad not then completed and in operation, for the con struction or benefit of which such lands were granted. 26 Stat. at L. 496, chap. 1040.

Thereupon John D. Wilcox settled upon

*56

29.

the particular land above described, and made application to purchase the same under the act of Congress of April 24th, 1820, making further provision for the sale of public lands. 3 Stat. at L. 566, chap. 51. Such proceedings were thereafter had on his application that the President on the 28th of September, 1884, issued a patent to him for that tract. Of the application of Wilcox for the purchase of the land, the Eastern Oregon Land Company had no notice, and therefore, even if its title were not good, it could not have availed itself of the privilege given by the act of Congress of March 3d, 1887 (24 Stat. at L. 556, chap. 376) to purchase the land.

Road Company under the act of February 25th, 1967, and cannot be regarded as embraced by the act of July 2d, 1864, for the benefit of the Northern Pacific Railroad Company, which could take under its grant only such lands as had not been appropriated under the authority of Congress when its line was definitely fixed.

This conclusion is inevitable, unless it be adjudged that it was beyond the power of Congress to appropriate for the Dalles Military Road lands within the general route, but not within any line of definite location established by the Northern Pacific railroad. For the reasons stated in United States v. Oregon &C. R. Co. we cannot so adjudge.

Upon the authority of that case the decree of the Circuit Court of Appeals in this case, reversing the decree of the Circuit Court with instructions to enter a decree in favor of the plaintiff, the Eastern Oregon

The present suit was brought against Wilcox by the Eastern Oregon Land Company in the circuit court of the United States for the district of Oregon. The bill alleged that a patent having been issued to Wilcox, the Interior Department had no longer juris-Land Company, is affirmed. diction to give to it a patent as required by the above act of June 18th, 1874, until the Mr. Justice McKenna did not participate patent to the defendant has been canceled in the decision of this case. and set aside. As the patent to Wilcox was therefore a cloud upon its title, the plaintiff sought a decree setting it aside, declaring the company to be the owner of the land in Wilcox's possession, and ordering the defendant to convey the land to it. The circuit court dismissed the bill. Upon appeal to the circuit court of appeals that decree was reversed, and a decree ordered to be entered in favor of the land company. Thereupon Wilcox appealed to this court.

(176 U. S. 58) E. I. MESSINGER, Appt.,

v.

EASTERN OREGON LAND COMPANY. Public lands-grant to Pacific Railroad Company-effect of filing map of general

route.

Land within the exterior lines of the general

route of the Northern Pacific Railroad was not reserved, sold, granted, or otherwise appropriated by the grant to that company made by the act of Congress of July 2, 1864, so as to prevent Congress from otherwise disposing of it at any time before the map of definite location was filed.

We adjudge, as in United States v. Oregon & C. R. Co., just decided, 176 U. S. 28, 20 Sup. Ct. Rep. 261, 44 L. ed., that the act of July 24, 1864, relating to the construction of the Northern Pacific Railroad, only granted lands that were not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claim or rights, at the time the line of that road was definitely fixed and a plat thereof filed in the office of the Commissioner of the General Submitted Land Office; that Congress had power to dispose of or appropriate, in its discretion, any lands within the exterior lines of the general

[No. 24.]

November 15, 1897. Decided
January 8, 1900.

PPEAL from a decision of the United

route of that road by statute passed for the A States Circuit Court of Appeals for the

benefit of another company before the Northern Pacific Railroad Company filed a map of "definite location," and that such lands, if not otherwise identified at the date of the passage of the later act than by a plat or map of "general route," were not excluded from the operation of such an act as lands previously "reserved, sold, granted, or otherwise appropriated," by the act of 1864.

As the lands here in dispute are embraced by the granting clause of the act of February 25th. 1867, giving lands to the state of Oregon, and are within the lines of the definite location of the Dalles Military Road as shown by its map filed in the Land Department and approved by that Department December 18th, 1869, and as the route of the Northern Pacific Railroad Company was not then and was not thereafter definitely fixed opposite the lands in dispute, they were earned and appropriated by the Military

Ninth Circuit reversing a decree of the Circuit Court dismissing a bill for the cancelation of a patent for lands. Affirmed.

See same case below, 48 U. S. App. 330, 79 Fed. Rep. 719, 25 C. C. A. 164.

The facts are stated in the opinion.
Mr. John M. Gearin for appellant.
Messrs. James K. Kelly and Nixon &
Dolph for appellee.

Mr. Justice Harlan delivered the opinion of the court:

The parties in this case and in Wilcox v. Eastern Oregon Land Co. stipulated that the bills, answers, decrees, assignments of error, and all other papers and proceedings in both causes were exactly alike, with the exception that in this case it is alleged that the land patented to the defendant, Messinger, was patented under the provisions of the act of Congress approved May 20th,

*59

1862, entitled "An Act to Secure Homesteads | Argued December 19, 20, 1899. Decided to Actual Settlers on the Public Domain" (12 Stat. at L. 392, chap. 75), and the acts supplemental thereto; that the lands pat

The circuit court of appeals held that the suit was not one arising under the patent laws of the United States, and that, as the jurisdiction of the circuit court could rest only on the ground that the constitutional rights of complainant were infringed by the laws of the state of Indiana which were re8. A suit to restrain the collection of taxes pugnant to and in contravention of the Connot exceeding $2,000 in amount, though aris-stitution of the United States, an appeal ing under the Constitution or laws of the United States, is not within the jurisdiction of a circuit court of the United States under