Opinion of the Court.

pany, that, in search of its deficient lands in place (using that phrase for lands within six miles of its road), which had been disposed of before its location, it can, within its limit of fifteen miles under the original act, or its twenty miles under the subsequent acts, make those selections of odd-numbered sections within the six-miles limit of the Winona Company, that the present controversy arises.

The Secretary of the Interior, after a contest before the department between the parties to the present litigation, certified to the State of Minnesota, on May 14, 1874, a large quantity of lands, of odd-numbered sections, within the sixmiles limit of the Winona road, as land properly selected by the St. Paul Company, to make up its deficiencies of lands within its own six-miles limits, and also to make up its deficiencies within the twenty-miles limits before referred to. A small part of these lands was within the fifteen-miles limits of the Winona road, and not within its six-miles limit.

Thereupon the Winona Company brought the present suit, in the proper court of the State, to have a declaration of its rights in the lands described in a schedule attached to the bill, as against the St. Paul Company and others, and to restrain them from receiving a patent, or other evidences of title to the lands, from the governor of the State.

The local court granted relief, but whether to the full extent of the prayer of plaintiff we do not know, for, while the judgment of that court is before us, with a specific description of the pieces of land which it declares to be rightfully owned by the Winona Company, the schedules referred to in the original petition are not in the record. From that judgment the St. Paul Company appealed to the Supreme Court of the State, where it was affirmed, and then prosecuted this writ of error to that judgment of affirmance. See 26 Minn. 179; 27 Minn.

128.

The judge of the District Court for Blue Earth County, in which the case was first tried, made an elaborate finding of the facts on which his judgment was rendered, and also an amended finding, and by these, so far as any controversy on the facts arises, the Supreme Court of Minnesota was governed,

Opinion of the Court.

and so is this court. These findings of fact are very full, and are intended to meet several aspects of the case, some of which are, in our view, immaterial to its decision.

The Supreme Court of Minnesota divides the lands in controversy in the suit into four classes, only the first two of which are in controversy here, namely:

First. Those lying without the six, but within the fifteen, miles limit of the defendant (the St. Paul Company), and within the six-miles limit of plaintiff (the Winona Company).

Second. Those lying without the six-miles limit of each company, within the fifteen-miles limit of plaintiff (the Winona Company), and without the fifteen, but within the twenty miles limit of the defendant (the St. Paul Company).

The decision of that court gave the lands embraced in both these classes to the Winona Company, and the St. Paul Company assigns for error here that it is entitled to both classes.

The act of March 3, 1857, is of the class of acts which this court has repeatedly held to be a grant in præsenti. Its language is "that there be, and hereby is, granted to the Territory of Minnesota every alternate section of land designated by odd numbers, for six sections in width on each side of said roads;" and though the roads may not be located through these lands for several years, whenever the location is made the alternate odd-numbered sections are thereby ascertained, and the title then perfected relates back to the statute; and as to all such sections, or parts of sections, not sold, or to which a pre-emption right has not attached at the time of this location, the title is valid from the date of the act. There are perhaps other lands reserved by the United States and otherwise excepted out of the grant which do not pass, but these are not material to the decision of the present case.

In this act of March 3, 1857, and in the earlier act of May 15, 1856, granting lands to the State of Iowa for railroad purposes, and perhaps in other similar acts, Congress has, in a single statute, made provisions for several different roads, with different places of beginning and ending, and running in different directions. These roads have, in every instance, been built by different corporations, organized under State laws, having

Opinion of the Court.

no other connection with each other than this common source from which the lands are received, and the rights and duties arising under these acts of Congress and the acts of the State on the same subject.

In each and all of these cases the date of the title and the source of the title are the same, because they arise under the same act of Congress. It results from this that no priority of title can be obtained by the earlier location of the line of the road, provided this be done within the time limited for the forfeiture of the grant. Though one of the corporations to which the right to build a road and receive the grant has been given may locate its road two or three years earlier than another company authorized to build another road under the same grant, there is no priority of title nor any priority of right to the lands found in place within the six-miles limit by reason of this earlier location.

As we said before, the title to the alternate sections to be taken within the limit, when all the odd sections are granted, becomes fixed, ascertained and perfected in each case by this location of the line of the road, and in case of each road the title relates back to the act of Congress. Missouri, Kansas & Texas Railroad Co. v. Kansas Pacific Railroad Co., 97 U. S. 491, 501; Van Wyck v. Knevals, 106 U. S. 360; Cedar Rapids Co. v. Herring, 110 U. S. 27; Grinnell v. Railroad Co., 103 U. S. 739. In cases where these lines of road do not cross each other, nor the limits within which the lands in place are found do not cross or overlap, nor the limits within which lands in lieu of those sold or pre-empted are to be selected, this is a matter of no consequence.

But in the administration of these land grants of the same date, it has more than once occurred that, by reason of the lines crossing each other or the exterior limits of the lands in place coming so near as to overlap, the question of priority of right has arisen.

In such cases it has been insisted very earnestly that priority of location gave priority of right to all the lands coming within the six-miles limit of the road first located. Such is the argument of plaintiff in error in this case; and while there is here

Opinion of the Court.

no lap or collision of the six-miles limit of these two roads as located and constructed as to lands now in question, it is much insisted that, the appellant's road having been first located, this carries with it the identity of the limits within which indemnity lands may be selected for those sold or pre-empted within its own six-miles limit; and as this indemnity limit extends over a part of appellee's six-miles limit, it is urged that this selection, though made years after both roads are located and built, is a right paramount to any right the appellee has within that limit, unless it be the road-bed and right of way.

It is on this ground that the appellant here insists upon its right to enter the six-miles limit of the appellee's road wherever its indemnity limit of fifteen miles and its extension limit of twenty miles overlap the six-miles limit of the latter, and, to the exclusion of the appellee, select there all the odd-numbered sections to which that company would otherwise be entitled.

We do not think this proposition is sound. It has been the practice and usage of the land department, when these conflicting lines relate to the limits within which the designated alternate odd-numbered sections are to be found, to hold that the respective companies take the lands so situated in undivided moieties, without regard to the date of location of the lines of road. The parties to this litigation adjusted the conflict where their roads crossed on that basis, and the principle is a necessary result of the rule that no priority of right is secured by priority of location. We entertain no doubt of its soundness.

It follows from these principles that the decision of the Supreme Court was right that the lands embraced in its first class, namely, those found within the six-miles limit of the road of the plaintiff below, the Winona Company, and without the six-miles limit of the defendant, were definitely fixed and ascertained to belong to the former when its line was located, and could not be taken to supply deficiencies in the grant of the other company, whether its road was located first or last.

A careful examination of the list of lands decreed by the court to be the property of plaintiff below, demonstrates that much the larger proportion of the lands in controversy, probably nine-tenths of them, belong to this class, and are found

Opinion of the Court.

within the limits of the Winona Company's six-miles primary grant.

It is also to be remarked that this includes all the lands in controversy lying east of the west line of range thirty-nine (39).

With regard to the lands of the second class, as classified by the Supreme Court, the decision depends upon the right of selection by the respective parties, or of the State for them, for lands not found within the six-miles limit and the twenty-miles limit when their respective roads were located.

By the act of 1857 these selections could only be made within fifteen miles of the line of the road, and the court says that the lands, which it now classifies together in this second group, are within the fifteen-miles or indemnity limit of the Winona road, and are not within the fifteen-miles or indemnity limit of the St. Paul road, but they are within the twenty-miles limit of the latter road.

In regard to these lands, the court held that the right of the Winona Company was superior, under the act of 1857, to the St. Paul Company's claim, under the act of 1864, and that the latter had no other claim.

This act of 1864, 13 Stat. 72, was one which, by its title, was passed to give to the State of Iowa lands in aid of a road from McGregor, on the Mississippi River, to the western boundary of the State, and another road from Sioux City to the Minnesota line in the county of O'Brien. To this State was given the alternate sections, designated by odd numbers, for ten sections on each side of these roads. As the Sioux City road was probably intended to meet the road from St. Paul and St. Anthony towards the mouth of the Big Sioux River, at the line between the two States, Congress by the seventh section enlarged the grant to this latter road to make it equal to that of the Iowa roads. This section reads as follows:

"SEC. 7. That there be, and is hereby, granted to the State of Minnesota, for the purpose of aiding in the construction of a railroad from St. Paul and St. Anthony, via Minneapolis, to a convenient point of junction west of the Mississippi, to the southern boundary of the State, in the direction of the mouth of the Big Sioux river, four additional alternate sections of