The herald., 1893-07-27

WIN o p0Av w o0AOCu ~ IA liOu Va
any land lost to it within the primary
limits OF the grant, or at all, although
complainant had contested defendant's
entry In the land department..
The question involved has twice be-
fore arisen tn this circuit; once in this
district, In the case Of Southern Pacific
Railway company vs.. Tilley ct ais, re.
ported in Al Fed. Rep., 729, and subee-
quently in the northern district of Cali
fornia. In the case of the Southern Pa
cif1c Railroad company We. Wiggs (43
Fed. Rep, 333), in which the circuit
judge reached a different conclusion
from that announced in the previous
case decided here-without, however.
making mention it. Indeed, il is evil
dent that the learned Judge who decided
that case did not at the time know of
the decision here. for in bis opinion ID is
stated that, so far as he i5 aware, the
precise question involved was not pre-
sented many other case 43 Fed. Rep. 335).
Neither party appealed from either decis-
ion, 30 that the unfortunate difference
of opinion then existing in the circuit
was not settled by the supreme court.
But the question has again come and
has been again consider ed.
The act of July 81, 1866, did not direct
the secretary of the interior to make
any order withdrawing the lands that
might fall within the grant from sale,
presumption. homestead entry, OF other
disposition. Such an order, however,
was made In the present case, ~ well 90
In Tilley'S, and this coust, in referring
to that order In the case OF the Southern
Pacific Railroad company VI. Tilley,
supra, said: "It ie true the order of
withdrawal made by the secretary on
the 9th of March. 1867, had not been
in terms vacated, but the secretary had
the same power TO vAcate It that he had
to make IL; and whom he permitted Til
ley to make his entry, and awarded the
land in question to him and issued him
a patent therefor, he. In effect, anpulled
the order of withdrawal 90 far as that
particular piece Of land was concerned.
In doing 90 he violated no vested right
of the com plAinant, for to that land the
company had not then acquired any
right Of any nature. 1t had not selected
it, and might never do so. There was,
therefore, no legal reason why he should
not allow the homestead entry. The
act making the grant to the complainant
did not direct the secretary of the inte-
rior to make any order Withdrawing the
lands that might fall within 1t from
sale, pre-emption,. homestead entry, or
other disposition, and did not prescribe
the effect to be given to such an order.
1t is not for the court to say
whether the secretary ought or ought
not to have allowed the homestead
entry while the general order of
withdrawal remained unrevoked. It
is sufficient for the purpose of this suit
to say that, in doing so, he did not inter
fere with any legal right of complainant,
for the simple reason that complainant
had NOT then acquitted any right to the
land in controversyin the only mode 1t
could acquire it, namely, by selecting
it," In 90 holding the conrt had in
mind the numerous decisions of the SUI
preme court to the effect that railroad
companies acquire, under grants in aid
of their construction, no right OF any
nature to any specific tract Of land en-
braced within the indemnity limits prior
to selection, and also to the language Of
the supreme court in the case of st. Paul
Railroad vs.s:WinonaR Railroad (ll2 U. s.,
1922, in respect to the effect of an order
Of the land department withdrawing
lands embraced within the secondary or
Indemnity limits from market. The
court there said:
"Is is true thar ii soms cases the
statute requires. the land department to
Withdraw the jands within these Sec
ondary limits from market. and in others
the officers do 30 voluntarily. This. how
ever, 10 to give the company reason
able time to asceftain their de efciencies
and mako their selections.
ut BY no means implies vested right
In said company, ipconsistent with the
right Of the governments to sell, or Of
any other cSm pahy to RelAot, which has
tho sAsss right d Selsetiop wi9hin those
npoffa ~ Il 80 A,tsssiF f1
n the aub5sqdtnt csas of Ruttz VI.