#### SIOUX CITY AND ST. PAUL RAILROAD COMPANY v. COUNTRYMAN.

ERROR TO THE SUPREME COURT OF THE STATE OF IOWA.

No. 30.

Argued April 16, 17, 1895.

Decided October 21, 1895.

At the time when the United States instituted the suit against the plaintiff ■ in error which has just been decided, the plaintiff in error had no interest whatever in the 26,017.33 acres of land certified back to the United States by the governor of Iowa, pursuant to a statute of that State, and all such land was then subject to entry under the preemption and homestead laws.

*378The case is stated in the opinion.

*Mr. George B. Young,*(with whom was *Mr. J. H. Swan*on the brief,) for plaintiff in error.

*Mr. M. B. Davis*for defendants in error.

Me. Justice Hablan

delivered the opinion of the court.

The history of the lands, of which those here in dispute form a' part, is fully stated in the opinion just delivered in *Sioux City & St. Paul Railroad Co.*v. *United States.*

By reference to that opinion it will be seen that the only certificates given by the governor for the benefit of the Sioux City company were certificates showing the construction by it of fifty miles, or five sections of ten consecutive miles each; that, in 1872 and 1873, the Secretary of the Interior caused to be issued patents to the State for 407,870.21 acres, of which 322,412.81 acres were certified by the State to the company, the State retaining within its control 85,457.40 acres; that of the 322,412.81 acres 41,687.52 acres were awarded to the Milwaukee company, as successor in right of the McGregor "Western Railroad Company, leaving with the Sioux City company 280,725.29 acres that it has disposed of, and about which no question is here made; that out of the 85,457.40 acres 37,747.89 acres were awarded to the Milwaukee company; and tSat of the 85,457.40 acres, 21,692.38 acres were those in dispute in *Sioux City & St. Paul Railroad Co.*v. *United States,*and 26,017.33 acres were formally relinquished and conveyed by the governor of Iowa, pursuant to the act of the Iowa legislature of March 27, 1884. Laws of Iowa, 1884, 78, c. 71; Laws of Iowa, 1882, 102, c. 107.

After this conveyance by the governor of Iowa, the question as to the disposition of these 26,017.33 acres came up for .consideration in the Department of the Interior. Upon the hearing of this question, Secretary Lamar said : “ The certification by the governor under this act was not made without an effort on the part of the railroad to prevent it. He was enjoined by the company, but the injuction was dissolved, and the cer*379tification followed. The compan}' is stiíl opposing reassertion of title by the United States, and is now here, by its president and by counsel, claiming in effect that the grant for the benefit of the company was one of quantity and not lands in place, and that, therefore, the company has earned the lands in question, notwithstanding they are outside of the fifty-mile terminal limits.” The conclusion of the Secretary is thus 'stated: *“*I must conclude, after a careful examination of the matter as presented, that neither the State of Iowa nor the Sioux City and St. Paul Railroad Company ever had any title under the granting act of 1864 to the lands in questipn beyond the *jcrirna facie*legal title which would appear from the face of the patents, which, so far as these lands are concerned, were improperly and illegally issued. This title, such as it was, had gone no further than the State, for it had not patented or certified the lands in question to the company; The State having relinquished and reconveyed to the United States such title as it had, I have no hesitation in concurring in your recommendation that the lands so certified and conveyed be restored to entry under the settlement laws of the United States. You will, therefore, treat them as public lands and they will be thrown open - to settlement and entry, as are other public lands of the United States.” 6 Land Dec. 47, 53.

By an order of the Interior Department made August 4, 1887, these 26,017.33 acres were restored to entry under the preemption, homestead, and timber-culture laws of the United States. Entries were made September 12, 1887,- as follows: By defendants in error, Lewis Countryman and Adam Phillips, respectively, under the homestead laws; and by defendants in error,. Washington Royer and Basil D. Battin, respectively, under the preemption laws. «.

The railroad company brought separate actions of ejectment in the District Court of Woodbury County, Iowa, against these persons, in which it asserted title to the lands so entered by the respective defendants. By stipulation of the parties the four cases were heard and determined together. Judgment in each case was rendered for the defendant, and upon *380error to the Supreme Court of Iowa each judgment was affirmed.

For the reasons stated in the opinion in *Sioux City & St. Paul Railroad, Company*v. *United States,*just decided, it must be held that the railroad company did not have, at the time those actions were instituted, any interest whatever in the 26,017.33 acres, or any of them, certified back to the United States by the governor of Iowa pursuant to a statute of that State. It had previously received.its full complement of public lands under the act of May 12,1864, on account of road certified by the governor of the State as having been constructed in accordance with the requirements of that-act.

The judgment, in each case, is

*Affirmed.*