Argument for Appellant.

204 U. S.

NORTHERN LUMBER COMPANY v. O'BRIEN.

APPEAL FROM THE UNITED STATES CIRCUIT COURT OF APPEALS.

No. 121. Argued December 7, 1906.- Decided January 14, 1907.

The grant to the Northern Pacific Railroad Company by the act of July 2, 1864, 13 Stat. 365, was in præsenti, although title did not attach to specific sections until they were identified, and the grant only included lands which, on that date, were not reserved, sold, granted, or otherwise appropriated; it did not include land then included within an existing and lawful withdrawal made in aid of an earlier grant for another road, · although prior to the selection by the Northern Pacific it may have appeared that those lands were not within the place limits of the grant for such other road.

When a withdrawal order properly made ceases to be in force the lands withdrawn thereunder do not pass under a grant of unreserved, unsold or otherwise unappropriated lands but become part of the public domain to be disposed of under the general land laws or acts of Congress specially describing them.

139 Fed. Rep. 614, affirmed.

THE facts are stated in the opinion.

Mr. Charles W. Bunn, with whom Mr. James B. Kerr was on the brief, for appellant:

As the withdrawal upon general route for the Lake Superior and Mississippi Company was set aside in 1866, the lands were free public lands when the Northern Pacific line was definitely located in 1882; and they therefore fall literally within the Northern Pacific grant, unless their withdrawal was such as to forbid their inclusion on July 2, 1864, the date of the granting act, within the term "public lands" as used in that act.

To a withdrawal precision and certainty are as necessary as to a conveyance. The particular lands withdrawn must be certain or capable of being made certain. The local officers have no authority to make withdrawals, which must rest for their validity upon an order of the Secretary or of the Com

204 U. S.

Argument for Appellant.

missioner of the General Land Office. The withdrawal in this case of "a body of lands about twenty miles in width" was wholly indefinite and uncertain. It was not helped out by the map of general route transmitted with the withdrawal order to the local land office, because that map was wholly indefinite and uncertain.

Even conceding that the withdrawal was effective, it did not shield the lands from the operation of the subsequent grant to the Northern Pacific and did not deprive them of their character as public lands within the meaning of the Northern Pacific act.

The only requirement of the Northern Pacific grant relating to or defining the lands which at its date were embraced by the act of Congress being that they should be public lands, the question is whether a reservation from preëmption entry upon general route of another railway forbids their inclusion under that term.

There is a broad distinction between a reservation upon general route and one upon definite location, which latter sort of reservation the court considered in Northern Pacific Railroad Company v. Musser-Sauntry Co., 168 U. S. 604. A reservation upon definite location is of indemnity land necessary (or supposed necessary) to fill losses in place limits. It is essential in order to save vested rights, not only as against entries under the land laws, but as against subsequent Congressional grants. The reservation upon general route involved in this case was, upon the contrary, not one to protect or save rights. It was merely to facilitate the operations of the public land department. It covered only place lands and those needed no protection from subsequent disposal by Congress, the settled doctrine being that priority of grant gives priority of right.

In Menotti v. Dillon, 167 U. S. 703, under an act providing "that in all cases where the State of California has heretofore made selections of any portion of the public domain in part satisfaction of any grant made to said State, by any act of

Congress, and has disposed of the same to purchasers in good faith under her laws, the lands so selected shall be, and hereby are, confirmed to said State," it was held that selections by the State of lands which had been previously withdrawn, for the benefit of a railroad company which had filed its map of general route, were selections from the "public domain" within the meaning of the above quoted act, and passed as such to the State of California under the provisions of said act notwithstanding such withdrawal. The same principle was involved in the recent cases of United States v. Oregon & Cal. R. R. Co., 176 U. S. 28, and Wilcox v. Eastern Oregon Co., 176 U. S. 51, which should be regarded as controlling and decisive of this appeal.

Mr. J. N. Searles, for the appellees, submitted:

The withdrawal proceeding was sufficient to take this land out of the class of "public lands" mentioned in the Northern Pacific grant. The word "about" used by the Commissioner in his withdrawal letter does not render his direction indefinite or uncertain. The rule is that when the context restrains and limits the meaning of the word "about," its use does not materially impair the certainty of a description. Adams v. Harrington, 114 Indiana, 66; Corey v. Swagger, 74 Indiana, 211; Jones v. Plummer, 2 Litt. 161; Purinton v. Sedgley, 4 Maine, 283-286; Stevens v. McKnight, 40 Ohio St. 341; Balt. Land Soc. v. Smith, 54 Maryland, 204; Sanders v. Morrison, 2 T. B. Mon. 109; Shipp v. Miller, 2 Wheat. 316; Cutts v. King, 5 Maine, 482; Bodley v. Taylor, 5 Cranch, 224; Johnson v. Panel, 2 Wheat. 206.

The Northern Pacific grant did not override the departmental withdrawal and thus include the land in question among the "public lands" referred to in that act.

MR. JUSTICE HARLAN delivered the opinion of the court.

This suit involves the title to the south half of the southeast quarter of section twenty-seven, township fifty-two north, range fifteen west, in the State of Minnesota.

The principal question in the case is whether the land in dispute was embraced by the grant of public lands made by Congress July 2, 1864, 13 Stat. 365, 367, c. 217, to the Northern Pacific Railroad Company in aid of the construction of a railroad and telegraph line from Lake Superior to Puget Sound. If it was not, then the decree of the Circuit Court dismissing the bill was right, as was that of the Circuit Court of Appeals affirming that decree.

By the act of May 5, 1864, 13 Stat. 64, c. 79, Congress made a grant of public lands to the State of Minnesota in aid of the construction of a railroad from St. Paul to the head of Lake Superior. This grant was vested in the Lake Superior and Mississippi Railroad Company, and that company on the seventh day of May, 1864, filed its map of general route. This map was accepted by the Land Department and a copy was transmitted May 26, 1864, to the proper local land office, which was informed of the approval by the Secretary of the Interior of a withdrawal of lands for the Lake Superior and Mississippi road, and that office was ordered to suspend, and it did suspend, "from preemption, settlement and sale a body of land about twenty miles in width," as indicated on the filed map. The land in dispute was within the exterior lines of this general route of the Lake Superior and Mississippi road as defined by its map, and was part of the land so withdrawn.

After the acceptance of the map of general route of the Lake Superior and Mississippi Railroad, and after the withdrawal by the Land Department, for the benefit of that company, of the lands covered by that map, Congress, by the above act of July 2, 1864, 13 Stat. 365, 367, c. 217, declared "that there be, and hereby is, granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the VOL. CCIV-13

amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any State, and whenever on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from preëmption, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land-office;

In 1866, the Lake Superior and Mississippi Railroad Company filed a map of the definite location of its road, from which it appeared that the land in dispute was outside of the place, indemnity and terminal limits of that road as thus located.

In 1882, the Northern Pacific Railroad Company filed its map of definite location, which showed that the particular lands here in dispute were in the place limits indicated by that map.

In 1883 the latter company filed in the proper office a list of lands which it asserted were covered by the grant made to it on July 2, 1864, and on that list, among other lands, were those here in dispute.

In 1901, the Commissioner of the Land Office refused to approve and rejected the list so far as the lands now in question were concerned, upon the ground that, although they appeared, after the definite location of the Northern Pacific Railroad, to be within the primary limits of the grant made for that road by the act of July 2, 1864, they "were excepted from the operation of said grant because they were, at the date of the passage of said act, within ten miles of the probable route of the Lake Superior and Mississippi Railroad in aid of the construction of which a grant was made by the act of May 5, 1864, and were embraced within the withdrawal of May 26th, 1864, made on account of the last-mentioned grant." The question was taken on appeal to the Secretary of the Interior, and he also rejected the above list, rendering a decision under date of