Opinion of the Court.

vation from the operation of the act of 1865 of lands previously granted to Minnesota to aid in the construction of any railroad, which were located within the limits of the extension made by that act to the original grant, and its effect on the amount of lands claimed by the plaintiffs.

The solution of these questions depends, of course, upon the construction given to the acts making the grants; and they are to receive such a construction as will carry out the intent of Congress, however difficult it might be to give full effect to the language used if the grants were by instruments of private conveyance. To ascertain that intent we must look to the condition of the country when the acts were passed, as well as to the purpose declared on their face, and read all parts of them together.

The act of 1857 grants lands to the State to aid the construction of several railroads. These were to be built through large districts of country sparsely settled. Though the termini of each were designated, it was impossible, in advance of surveys, to designate the specific route of any one, even approximately. In many instances, where the sections would fall along such route, sales of land had already been made by the United States, and preëmption rights of settlers had attached; and before the route would be definitely fixed by surveys and maps, many other sales of land falling within the sections would probably be made and other preëmption rights attach. It was not for the interest of the country that any portion of the public lands should be withheld from sale and settlement because, when the route of the roads was definitely determined, they might fall within the limits of the grants; nor was it the purpose of Congress to lessen the extent of its aid because it might ultimately be found that, at the time of its grant, or when the route was determined, portions of the land designated had already been disposed of or preëmption rights had attached to them. The policy of the government was to keep the public lands open at all times to sale and preëmption, and thus encourage the settlement of the country, and, at the same time, to advance such settlement by liberal donations to aid in the construction of railways. The acts of Congress, in effect,

VOL. CXIII-40

Opinion of the Court.

said: "We give to the State certain lands to aid in the construction of railways lying along their respective routes, provided they are not already disposed of, or the rights of settlers under the laws of the United States have not already attached to them, or they may not be disposed of or such rights may not have attached when the routes are finally determined. If at that time it be found that of the lands designated any have been disposed of, or rights of settlers have attached to them, other equivalent lands may be selected in their place, within certain prescribed limits." The encouragement to settlement by aid for the construction of railways was not intended to interfere with the policy of encouraging such settlement by sales of the land, or the grant of preemption rights. It follows that in our judgment the indemnity clause covers losses from the grant by reason of sales and the attachment of preemption rights previous to the date of the act, as well as by reason of sales and the attachment of preëmption rights between that date and the final determination of the route of road.

It is to no purpose to say, against this construction, that the government could not grant what it did not own, and therefore could not have intended that its language should apply to lands which it had disposed of. As already said, the whole act must be read to reach the intention of the law-maker. It uses, indeed, words of grant, words which purport to convey what the grantor owns, and, of course, cannot operate upon lands with which the grantor had parted; and therefore when it afterwards provides for indemnity for lost portions of the lands "granted as aforesaid," it means of the lands purporting to be covered by those terms. Nor is it to any purpose to cite decisions to the effect that the grant is in præsenti, passing an immediate interest to the State. Such is undoubtedly the case, except as the operation of the grant is affected by the limitations mentioned; that is to say, when the sections granted are ascertained, the title to them takes effect as of the date of the grant, and cuts off all intervening claimants except as to such portions as may have been sold, or to which pre-emption rights may have attached.

The language in Railroad Co. v. Baldwin, 103 U. S. 426, does not militate against this construction of the act. It ex

Opinion of the Court.

presses the general purpose of the reservation to keep the lands open at all times to settlement and preemption, and subject to appropriation for public uses until the route of the road is determined, but does not declare that lands previously sold, or to which the rights of preemption had previously attached, are excluded from the indemnity clause. The court was there drawing attention to the difference between the two grants in the act of Congress of July 23, 1866-that of sections of land and that of the right of way, the former being a present grant, except as its immediate operation was affected by the reservations, the latter being a present absolute grant without any reservation or exception.

The language in Leavenworth, Lawrence, &c., Railroad Co. v. United States, 92 U. S. 733, is quoted as sanctioning the position of the appellant. The court, speaking of the indemnity clause in the grant then under consideration, said its purpose was to give sections beyond the limit designated for those lost within it by the action of the government between the date of the grant and the location of the road. But it did not say that this was its only purpose; and, if the language must be construed as meaning that, it was a mere dictum, not essential to the decision of the case. The question was, what lands could be taken for indemnity, not for what deficiencies indemnity could be had. And it was held that an Indian reservation did not pass by the grant, and could not be taken as indemnity for the lands otherwise lost from it. There was no question before the court for what deficiencies indemnity could be supplied.

As to the effect of the reservation in the third section of the act of 1865, of lands previously granted to Minnesota, for the purpose of aiding in the construction of any railroad, there should be little doubt. The grant by the act of 1857 is one of description, that is, of lar 1 in place and not of quantity. It is of every alternate section, designated by odd numbers, for six sections on each side of the road, that is, of particular parcels of land lying within certain defined lateral limits to the road and described by numbers on the public surveys. And the indemnity clause provides for loss from those parcels by sales or the

Opinion of the Court.

attachment of preemption rights before the route becomes definitely fixed-the indemnity lands to be selected within fifteen miles from the line of the road. The act of 1865 enlarges the quantity granted from six sections to ten, and the indemnity limits from fifteen miles to twenty. The character of the grant, so far as the six sections are concerned, is not thereby changed from one of lands in place, or by description, to one of quantity. The use of the terms "quantity of lands granted" in the first section, in referring to the amount granted by the act of 1857, is of no significance. It is the same thing as though the act had used the words "six sections" instead of the word quantity, and had said they should be increased to ten sections. The four sections are to be selected by the Secretary of the Interior beyond the six and within the twenty miles limit; and as to them the grant may be regarded as one of quantity, though the coterminous principle applies to them, and they are to be selected along and opposite the completed road.

The reservation of the lands previously granted to Minnesota from the grant of the additional four sections, that is, from the extension of the original grant of 1857, was only a legislative declaration of that which the law would have pronounced independently of it. Previous grants of the same property would necessarily be excluded from subsequent ones. The only embarrassment in the construction of the section arises from the inapt words used to describe the land from which' the previous grant is to be deducted. The language of the section is “that any lands which may have been granted to the Territory or State of Minnesota for the purpose of aiding in the construction of any railroad, which lands may be located within the limits of this extension of such grant or grants, shall be deducted from the full quantity of lands hereby granted." The only lands granted by the act of 1865 are the four sections for each mile additional to the original six, accompanied with a right to select indemnity lands within twenty miles of the road. The words, "the full quantity granted," only denote the entire extension. To the extent of the previous grant that extension must be reduced, even if the whole be taken. Those words do not transfer the loss from the ten sections within which the grant falls

Syllabus.

to other sections along the line. The sections in which such grant falls are correspondingly reduced.

It follows that where the grant previously made to Minnesota to aid in the construction of the Minnesota and Cedar Valley Railroad interferes with the extension of the grant to the defendant by the act of 1865, the extension must be abandoned. The earlier grant takes the land which would otherwise be added to the original six sections. The court below therefore erred in holding that the Winona Company was entitled to ten full sections where such interference occurred, without deducting the lands previously granted to the State.

The cause must, therefore, go back that the proper deduction may be made by reason of this interference of the two grants, and the elder grant be deducted from the extension made by the act of 1865.

Decree reversed, and cause remanded, with directions to take further proceedings in accordance with this opinion.

KANSAS PACIFIC RAILWAY COMPANY v. DUNMEYER.

IN ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.

Argued November 6, 1884.-Decided March 2, 1885.

The line of definite location of a railroad, which determines the rights of railroad companies to land under land grant acts of Congress, is definitely fixed, within the meaning of those acts, by filing the map of its location with the Commissioner of the General Land Office at Washington. Under the acts granting lands to aid in the construction of a line of railroad from the Missouri River to the Pacific Ocean, the claim of a homestead, or pre-emption entry, made at any time before the filing of that map in the General Land Office, had attached, within the meaning of those statutes, and no land to which such right had attached came within the grant. The subsequent failure of the person making such claim to comply with the acts of Congress concerning residence, cultivation and building on the land, or his actual abandonment of the claim, does not cause it to revert to the railroad company and become a part of the grant. The claim having at