he was entitled to preempt this land at one dollar and twenty-five cents per acre, and that having been erroneously required to pay two dollars and fifty cents per acre, he is entitled to repayment of the excess, by virtue of the act of June 16, 1880 (supra).

When did the definite location of the line or route of said road become operative and what was the effect thereof upon the price of the alternate even numbered sections within the limits of the grant?

In view of the contentions of counsel, and to avoid any possible uncertainty in the decisions of the Department, these questions deserve extended consideration.

This grant was of five alternate sections per mile, designated by odd numbers, on each side of said road, subject to the condition that if when the line or route of said road was "definitely located," the United States had sold any such section or part thereof, or if the right of preemption or homestead settlement had attached thereto, or if the same had been reserved by the United States for any purpose whatever, then the lands so sold, preempted, homesteaded, or reserved, should be excepted from the grant and it should be the duty of the Secretary of the Interior to cause to be selected from adjacent public lands an equal quantity of other lands in lieu of those so excepted.

In the case of Van Wyck v. Knevals (106 U. S., 360, 365), the court had under consideration the question of when the rights of the Saint Joseph and Denver City Railroad Company attached to the sections of land granted to the State of Kansas for the use and benefit of that company by the act of July 23, 1866 (14 Stat., 210), and particularly the significance of the term "definitely fixed," as used in that act, which corresponds to the term "definitely located" used in the act here under consideration. In that case the court said:

The grant is of ten alternate sections, designated by odd numbers, on each side of the proposed road, subject to the condition that if it appear, when the route of the road is 'definitely fixed," that the United States have sold any section or a part thereof, or the right of preemption or homestead settlement has attached, or the same has been reserved by the United States for any purpose, the Secretary of the Interior shall cause an equal quantity of other lands to be selected from odd sections nearest those designated in lieu of the lands appropriated, which shall be held by the State for the same purpose. The grant is one in præsenti, except as its operation is affected by that condition; that is, it imports the transfer, subject to the limitations mentioned, of a present interest in the lands designated: The difficulty in immediately giving full operation to it arises from the fact that the sections designated as granted are incapable of identification until the route of the road is "definitely fixed."

The inquiry then arises, When is the route of the road to be considered as "definitely fixed" so that the grant attaches to the adjoining sections? The complainant in the court below, who derives his title from the company, contends that the route is definitely fixed, within the meaning of the act of Congress, when the company files with the Secretary of the Interior a map of its lines, approved by its directors, designating the route of the proposed road. On the other hand, the defendant,— the appellant here,--who acquired his interest by a subsequent entry of the lands and a patent therefor, contends that the route can not be deemed definitely fixed, so

that the grant attaches to any particular sections and cuts off the right of entry thereof until the lands are withdrawn from market by order of the Secretary of the Interior, and notice of the order of withdrawal is communicated to the local landofficers in the districts in which the lands are situated.

We are of opinion that the position of the complainant is the correct one. The route must be considered as "definitely fixed" when it has ceased to be the subject of change at the volition of the company. Until the map is filed with the Secretary of the Interior the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of different lines. But when a route is adopted by the company and a map designating it is filed with the Secretary of the Interior and accepted by that officer, the route is established; it is, in the language of the act, "definitely fixed,” and can not be the subject of future change, so as to affect the grant, except upon legislative consent. No further action is required by the company to establish the route. It then becomes the duty of the Secretary to withdraw the lands granted from market. But if he should neglect this duty, the neglect would not impair the rights of the company, however prejudicial it might prove to others. Its rights are not made dependent upon the issue of the Secretary's order, or upon notice of the withdrawal being given to the local land-officers. Congress, which possesses the absolute power of alienation of the public lauds, has prescribed the period at which other parties than the grantee named shall have the privilege of acquiring a right to portions of the lands specified, and neither the Secretary nor any other officer of the Land Department can extend the period by requiring something to be done subsequently, and until done, continuing the right of parties to settle on the lands as previously. Otherwise, it would be in their power, by vexatious or dilatory proceedings to defeat the act of Congress, or at least seriously impair its benefit. Parties learning of the route established-and they would not fail to know it-might between the filing of the map and the notice to the local land-officers, take up the most valuable portions of the lands. Nearness to the proposed road would add to the value of the sections and lead to a general settlement upon them.

Under this decision it is clear that the right of the railway company in the case at bar attached to the granted sections June 26, 1867, upon the filing and acceptance of its map of definite location, and no order of withdrawal by the Commissioner of the General Land Office or notice to the local office was necessary to give effect thereto.

What was the effect of this definite location upon the even numbered sections within the place limits of the grant?

Section 2 of the granting act provides, as before shown,

that the sections and parts of sections of land which by such grant remain to the United States within ten miles on each side of said road shall not be sold for less than double the minimum price of public lands.

The sections and parts of sections which "remain to the United States" include the alternate even numbered sections within the geographical limits of the grant. When may these be said to remain to the United States within the meaning of the granting act? Obviously, that which identifies the lands passing under the grant equally identi fies those not passing, that is, those remaining to the United States. This identification, under the terms of the granting act, is accomplished by the filing and acceptance of the map of definite location. Congress having directed that the lands which "remain to the United States

. . shall not be sold for less than double the minimum price of

public lands," it follows that when the identification of the lands so remaining is accomplished, the double minimum price attaches at once by reason of the legislative direction, and, thereafter, such lands can not be sold for less than double the minimum price.

This view not only seems to be. in accord with the letter of the law, but it is the only one finding support therein which would not, to a greater or less extent, defeat the object of this portion of the granting act. The legislative policy in making land grants to railroads was primarily to develop the country; and it was thought that there would result an increase in the value of the public lands remaining to the United States within the limits of the grants, so that the sale of those lands at double the usual price would compensate the government for the loss of the lands granted. If a time subsequent to that at which the line of road becomes definitely located were fixed for the attaching of the increased price, the lands remaining to the United States might be appropriated at single minimum, after such definite location and before the attaching of the increased price, and the purpose and intent of the law be thereby defeated. As said by the supreme court in the case of Van Wyck v. Knevals, supra:

Parties learning of the route established-and they would not fail to know it— might, between the filing of the map and the notice to the local land-officers, take up the most valuable portions of the lands; nearness to the proposed road would add to the value of the sections and lead to a general settlement upon them.

It is stated in counsel's brief that the order of April 22, 1868, contained the following direction:

When legal inceptive rights have attached under the preemption laws prior to the receipt of this letter, you will permit the party to prove up and pay for the land at $1.25 per acre.

Counsel is mistaken in this statement, for there is no such provision in that order. A withdrawal of lands upon a trial line of said road, made July 12, 1866, contained a provision in substance like that quoted, but the tract embraced by Oleson's entry was not within the limits of that withdrawal, so the terms thereof could not affect the matter now under consideration.

The order of April 22, 1868, was made by the Commissioner of the General Land Office, was addressed to the local officers and concluded with the following direction: "The withdrawal herein ordered will take effect from the receipt of this." After calling attention to the fact that the company had filed its map of definite location June 26, 1867, the order directed the local officers to withhold from all entry the odd numbered sections within the limits of the grant and to withhold the even numbered sections from private entry, but to permit preemp. tion and homestead entry thereof at the increased price of $2.50 per acre. Congress having prescribed in the granting act the time when the company's rights to the granted lands would attach and when the lands remaining to the United States would be increased in price, viz,

upon the definite location of the line or route of the road, it was not competent for the Commissioner of the General Land Office to prescribe a different time, and thus defeat the will of Congress, and the concluding paragraph in the order of April 22, 1868, can not be given. that effect. This order must be treated as intended to enforce proper recognition of the fact that by operation of law the right of the company had attached to the granted lands and the lands remaining to the United States had been increased in price upon the definite location of the line or route of the road, and should not be treated as an attempt by the Commissioner of the General Land Office to postpone the effect given by the statute to such definite location.

In speaking of the operation and effect of an order of withdrawal made upon the filing of the map of general route of the Northern Pacific Railroad, it is said in Buttz v. Northern Pacific Railroad (119) U. S., 55, 72, 73):

When the general route of the road is thus fixed in good faith, and information thereof given to the Land Department by filing the map thereof with the Commissioner of the General Land Office, or the Secretary of the Interior, the law withdraws from sale or preemption the odd sections to the extent of forty miles on each side. The object of the law in this particular is plain: it is to preserve the land for the company to which, in aid of the construction of the road, it is granted. Although the act does not require the officers of the Land Department to give notice to the local land officers of the withdrawal of the odd sections from sale or preemption, it has been the practice of the Department in such cases to formally withdraw them. It can not be otherwise than the exercise of a wise precaution by the Department to give such information to the local land officers as may serve to guide aright those seeking settlements on the public lands; and thus prevent settlements and expenditures connected with them which would afterwards prove to be useless.

In the present case, the general route of the road was indicated by the map filed in the office of the Secretary of the Interior on the 21st of February, 1872. It does not appear that any objection was made to the sufficiency of the map, or to the route designated, in any particular. Accordingly, on the 30th of March, 1872, the Commissioner of the General Land Office transmitted a diagram or map, showing this route, to the officers of the local land office in Dakota, and by direction of the Secretary ordered them to withhold from sale, location, preemption, or homestead entry all surveyed and unsurveyed odd numbered sections of public land falling within the limits of forty miles, as designated on the map.

In St. Paul and Pacific Railroad Company v. Northern Pacific Railroad Company (139 U. S., 1, 18), in following the case of Buttz v. Northern Pacific Railroad, supra, and in speaking of the same order of withdrawal of the lands along the general route, it is said: "His action in formally announcing their withdrawal was only giving publicity to what the law itself declared."

It is urged by counsel that since Oleson's settlement was made before the order of April 22, 1868, was received at the local office, he was enti tled under the act of March 27, 1854 (10 Stat., 269), since incorporated into section 2281 of the Revised Statutes), to preempt the land so settled upon, at $1.25 per acre. This act read as follows:

That every settler on public lands which have been or may be withdrawn from market in consequence of proposed railroads, and who had settled thereon prior to such withdrawal, shall be entitled to preemption at the ordinary minimum to the lands settled on and cultivated by them: Provided, They shall prove up their rights according to such rules and regulations as may be prescribed by the Secretary of the Interior, and pay for the same before the day that may be fixed by the President's proclamation for the restoration of said lands to market.

Apart from the fact that the act refers in terms to settlement made prior to withdrawal of the land from market in consequence of a proposed railroad, instead of to settlement made prior to the receipt of notice of the withdrawal at the local office, it is believed that a withdrawal like that of April 22, 1868, made after the right of the railroad company has attached and become fixed, is not such a withdrawal as is there contemplated.

In the nomenclature of the public land laws, the word "withdrawal" is generally used to denote an order issued by the President, Secretary of the Interior, Commissioner of the General Land Office, or other proper officer, whereby public lands are withheld from sale and entry under the general land laws, in order that presently or ultimately they may be applied to some designated public use, or disposed of in some special way. Some times these orders are not made until there is an immediate necessity therefor, but more frequently the necessity for their making is anticipated. Withdrawals are also made by Congress and are then spoken of as legislative withdrawals to distinguish them from those before described which are known as executive withdrawals. In the administration of the grants of public lands made to aid in the construction of railroads, executive withdrawals are made, either in advance of the definite location of the line or route of the road, and for the purpose of preserving the land for the satisfaction of the grant, or after such definite location and for the purpose of properly advising the local officers and others that the lands falling to the grant, as well as those remaining to the United States have been identified, and that the granted lands have passed to the railroad company, and the lands remaining to the United States can be disposed of only at double the minimum price. The former withdrawal is made in recognition of what is about to occur, and the latter in recognition of what has occurred.

At the time of the passage of the act of March 27, 1854, there had been but three acts making grants in aid of the construction of railroads and these were the acts of September 20, 1850 (9 Stat., 466), June 10, 1852 (10 Stat., 8), and February 9, 1853 (10 Stat., 155). Almost contemporaneously with the passage of each of these acts, in one instance the day before, an order was issued by the Commissioner of the General Land Office, under the direction of the President, whereby, in anticipation of the probable location of the line or route of the proposed railroad, the lands adjacent thereto were withdrawn from sale and entry, so that they might not be disposed of in advance of the attaching of the rights of the railroad company and thus the purpose sought by Congress, viz.,