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cation 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 15-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 20 miles of the new line.
Before proceeding further it is as well to say that the short road connecting the Iowa & Nebraska line with Lyons city was built, the connection with the Mississippi & Missouri River road was not built, and though the new line was located 15 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 345 miles in length, and as constructed by the company, from Cedar Rapids to the Missouri river, it is 271 miles long, making a difference of 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 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 15-mile limit and outside of the 6-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 & 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 there. fore 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 connection with the line of the Mississippi & Missouri River Railroad Company, says: “And the said Cedar Rapids & Missouri River Railroad 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 meas. ure 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 15-mile limit of that line. This is confirmed by that part of the next sentence of this sec. tion, 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. * 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 defendants. 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 1882, 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 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 in* terest in the land which the*plaintiffs may have had prior thereto would be
extinguished. As to whether it has been filled the parties differ widely. They differ, also, as to who has the burden of proof upon such question.”
In the case of Grinnell v. Railroad Co. 103 U. S. 742, this court said, in construing the granting clause of the original act of May 15, 1856:
“So far as lands are found in place whenever this is done, (that is, the location of the road filed in the proper office,] not coming within the exceptions as sold, or held under pre-emption, the title, or at least the right, to this land in place is at once vested in the state, or in the company to which the state has granted it, and the means of ascertaining what lands have passed by the grant is found in the map of the line of the road, which is filed in the general land-office under the provisions of the statute. As regards the lands to be selected in lieu of those lost by sale or otherwise, it may be that no valid right accrues to any particular section or part of a section until the selection is made and reported to the land-office, and possibly not then until the selection is approved by the proper officer.”
In the case of Van Wyck v. Knevals, 106 U. S. 360, (S. C. 1 SUP. Cr. REP. 336,] the subject is discussed with exclusive reference to the odd-numbered sections specifically granted, and it is there held that
the adoption by the company of a surveyed line of the route of its road, and the filing of the map of the same with the secretary of the interior, cuts off the right of entry of these odd sections by any one else, whether there is a proclamation or order withdrawing them or not.
It is obvious, however, that the right to these odd sections, and the right to others in lieu of such odd sections as have been previously disposed of, depend upon very different circumstances, and it is not easy to see how rights can be vested in any particular section or sections of the latter class until it is ascertained how many of the original odd-numbered sections are thus lost, and until the grantee has exercised his right of selection. These latter, unlike the odd numbers within the six-mile limit, are not ascertained and made specific bye the protraction of the established line through the maps of the publică lands. They are not and cannot be made specific until the grantee's right of selection has been exercised.
This court, in construing the same clause of the grant to the California & Oregon Railroad Company, (14 U. S. St. 239,) said:
“When the road was located and the maps were made, the right of the company to the odd sections first named became fixed and absolute. With respect to the • lieu lands,' as they are called, the right was only a float, and attached to no specified tracts until the selection was actually made in the manner prescribed.'
"It was within the secondary or indemnity territory where the deficiency was to be supplied. The railroad company had not and could not have any claim to it, until specially selected, as it was for that purpose.” Ryan v. Railroad Co. 99 U. S. 382.
But from what shall the selection be made, and how long a time may the grantee have to make his selection? The question presents itself in two aspects, namely: the right to make these selections as against the United States, the grantor of this right, and the right as against a purchaser from the United States before the selection is made. As regards the former, it is only important to consider when it commences in the present case, and we are of opinion that no right of selection in any of these lands accrues until the entire line of the road to be built has been established by the company, and filed in the general land-office at Washington, and that until then no duty devolves on the secretary to withdraw or withhold the land from sale or pre-emption. This is the necessary inference from the language, both of the original grant of 1856 and the amendatory act of 1864. The first declares: “In case it shall appear that the United States have, when the lines and routes of said roads are definitely fixed, sold any sections or parts thereof granted as aforesaid, or that rights of pre-emption have attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select other lands." It is only when the line and routes of the roads
are definitely fixed that any right of selection exists. This must necessarily be so, because until then the quantity of land lost by the previous disposition of the odd sections cannot be known, and the number of sections to be selected can only then be ascertained. And the act of 1864, under which plaintiff's claim can alone exist, while it directs the secretary to withdraw from sale the lands from which these selections are to be made, only requires this to be done after the new line of the road shall have been so established. The language is :
“And it is further provided, that, whenever said modified main line shall have been established, or such connecting line located, the said Cedar Rapids & Missouri River Railroad Company shall file in the general land-office of the United States a map definitely showing such modified line and such connecting branch as aforesaid, and the secretary of the interior shall reserve and cause to be certified and conveyed to said company, from time to time as the work progresses on the main line, out of any public lands now belonging to the United States not sold, reserved, or otherwise disposed of,
within fifteen miles of the original main line, an amount equal to that originally authorized.”
It seems to us quite plain that, as in the original grant, no obligation on the secretary to reserve any of this land from sale arises until the new line is established; that is, surveyed, approved by the directors, and filed in the general land-office. Such is the language of the statute, and the reason for it is the same as in the original statute, that,—as the number of sections the company would be entitled to could not be known until this was done, and the length of the road ascertained, the secretary could not know how much land it was necessary to reserve to satisfy the demand. Of course, until this was done, the sections not included within the six-mile limit were open to sale and pre-emption. The time when it became the duty of the land officers to suspend these sales was under the control of the company, for whenever they established and filed in the general land-office a map “definitely showing this modified line of their road, the duty of the secretary arose, and not until then. This was not done until December 1, 1867, three years and a half after the passage of the act requiring it to be done, under which plaintiff's rights accrued. It is true, a map of part of the line was filed in 1865, but this can in no sense be said to be a map definitely showing the modified line of the road. It showed only a part of it, and left the secretary in ignorance where the road would yet be carried to, and what quantity of land it would be entitled to when finished. In all these cases the requirement has been of a map of the line of the road,—of the whole road, not part of it; a complete, not a partial, map; a map definitely showing that line, as the language clearly means. It was during this delay of three years and a half that the entries were made under which defendants hold the land and acquired the legal title, except in a single instance, made January 4, 1868, before any action of the secretary could be had to withdraw the lands, and it was not until