its then existing railroad in or eastward of the deep cut in Bergen Hill, "with as many sets of tracks and rails as said directors shall deem necessary, and with power to procure the right of way for such branch railroad." Shortly after acquiring the way thus authorized, the United New Jersey Railroad & Canal Company built over the entire length of it, on its southerly side, two railroad tracks, upon a structure elevated above the level of the streets of Jersey City, which, when the assessments for taxes complained of were levied, actually occupied 35 feet of the southerly side of the right of way. The unoccupied remainder of that right of way, at the point in question, bounds on Sixth, Monmouth, and Brunswick streets in Jersey City, and is the land assessed. Until after the questioned assessments, the two tracks originally constructed adequately answered the requirements of traffic over the branch road, but lately it has become necessary to add an additional track, and widen the elevated structure some 25 feet. From the time of acquiring the right of way, until after the levying of the taxes considered, that portion of the right of way which was unoccupied by tracks was held vacant, in anticipation of demand for increased trackage and other structures incident to the operation of the branch road, and for use in process of the construction of the elevated tracks, but for no other purpose. It was not rented, or otherwise used for profit. The act of April 10, 1884, entitled "An act for the taxation of railroad and canal property " (P. L. 142), provides that all property of any railroad company "used for railroad purposes shall be assessed by a state board of assessors, and not by the assessors of the municipalities in which they lie. Land used for statute. The plaintiffs contend that the lands in question, within the meaning of the act last referred to, are used for railroad purposes, and were properly assessed by railroad parthe state board of assessors, and not properly as poses within sessed by the authorities of Jersey City. In view meaning of of the facts stated, it is observed that the precise question now presented is whether a portion of the right of way of a railroad company, which is not for the time being actually covered by tracks, erections, or appliances necessarily incident to the operation of a railroad, although acquired and strictly held for that purpose and use in railroad construction, is, within contemplation of the act of 1884, "used for railroad purposes." The question is an important one, for it is within the knowledge of every one who is observant of railroads that the entire right of way is rarely occupied. This is not so noticeable in the older roads, whose increasing business bas 54 A. & E. R. Cas.-18 demanded additional trackage, yet even with such roads unoccupied portions of the right of way are not uncommon Are we to say that each of those portions is not used for railroad purposes, merely because it is not presently and all the time in actual occupation? Such a construction of the statute appears to us to be too literal and narrow. We think that where an authorized right of way has been acquired, over which a railroad has been constructed, and is in good faith operated, which right of way is not devoted to another purpose, it is used for railroad purposes, within the meaning of the statute considered, although it may not for the time being be wholly occupied by tracks or other railroad appliances. The part of it which awaits railroad occupation, upon the demand of necessity, is in use, like the curtilage to a dwelling-house or the sides of a country highway. It does not stand in the category of those quantities of land, limitless by law, which railroad companies frequently acquire in speculative anticipation of the future wants of their roads. It is the land which the legislature in its wisdom has deemed to be reasonably necessary to answer the ordinary and emergent uses of a railway, and insure the continued, convenient, and safe accommodation of the public. Its dimensions are limited by the law, which devotes it to a special purpose. It, however, is to be added that we are also of opinion that when any part of the lands which lie within such a right of way is used or appropriated to purposes not incident to the proper construction, maintenance, and management of the railroad, or to the use of it by the corporation as a carrier of goods and passengers, it cannot then be said to be used for railroad purposes, and will be the subject of local taxation. We think that the local tax complained of should be set aside. Our conclusion leads to the reversal of the judgment below. What Railroad Property is Assessable by State Board.-See Republican Valley & W. R. Co. v. Chase Co. (Neb.), 48 Am. & Eng. R. Cas. 641, and cases cited in note 645. STATE V. CENTRAL PACIFIC R. Co. (Nevada Supreme Court, Aug. 8, 1892.) Taxation Railroad Land-grants-Unpatented Lands.--Since the act of Congress of July 10, 1886, the surveyed but unpatented lands within the grant to the C. P. R. are no longer exempt from taxation by reason of the Government lien thereon for the costs of surveying, etc. The conditions contained in that act, to the effect that the lien shall continue, and that the United States may become a preferred purchaser at any tax sale of such land, controls such sales, and there is no necessity for a legislative acceptance by the states of the conditions of the act. Public Domain-Control of Congress State Taxation.-Congress, hav ing full control over the public domain, may make it subject to state taxation upon such conditions as are deemed proper, and then, if so taxed, it must be done subject to those conditions. The Act of July 10, 1886, is a Grant to the States of the Right to Tax lands in which the United States still has such an interest as renders them exempt, and, being beneficial, its acceptance by the grantee will be presumed. The Title or Interest of the United States in the Public Lands will not be affected where only the possessory claim to the land is assessed. Such assessment will only reach the taxpayer's interest in the land. Pleading Exemption from Taxation.—Under section 1108, Gen. St., it is a good answer for a defendant, when assessed for a possessory claim to land, to deny such claim, and plead that whatever claim it has is exempt from taxation. The Possessory Claim to Public Land, which may be Taxed as something separate and distinct from the title in fee, is an actual possession, and not a constructive possession or a mere claim to the land. Mortgaging and leasing public land do not constitute actual possession thereof. Tender of Taxes-Demand of Receipt.-Where, upon payment of taxes, the statute requires the tax-receiver to give a receipt, a tender of taxes is not rendered invalid because such a receipt is demanded. CROSS-APPEALS from Lander district court. The Attorney-General and Henry Mayenbaum, for the state. Baker, Wines & Dorsey, for Central Pac. R. Co. BIGELOW, J.-In this case there are cross-appeals, but for convenience they will be considered together. In the year 1888 the defendant was assessed upon its railroad and a large amount of other property, including the possessory claim to both surveyed and unsurveyed lands embraced within the United States land-grants of 1862 and 1864 to the Pacific railroads. Upon all the property except land Case stated. the defendant tendered the taxes due before they became delinquent, and subsequent to the commencement of the action, upon demand of the district-attorney, the amount so tendered was paid to him. The action was then continued for the purpose of recovering the taxes due upon the lands, and the penalties upon the other taxes assessed, upon the theory that the tender was not sufficient. The state recovered for the taxes and penalties upon the surveyed lands, and from this part of the judgment the defendant appeals. But the court held that the unsurveyed lands were not subject to taxation, and that the tender and payment of the other taxes were sufficient to avoid the penalties, and from these rulings the state appeals. În our judgment, the questions presented concerning the taxability of the surveyed and unsurveyed lands have been substantially settled by this court in the cases of State v. Central Pac. R. Co., 20 Nev. 372, 40 Am. & Eng. R. Cas. 467; and State v. Central Pac. R. Co. (Nev.), 25 Pac. Rep. 442, which were followed by the court below; but notwithstanding, as new points are urged upon these appeals, we have given the matter a careful reconsideration. Taxation of unsurveyed but unpatent ed lands. A part of the lands assessed were patented to the defendant, and as to these it seems to be admitted that the judgment is correct. But, as it is well known, the Supreme Court of the United States, in the cases of Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. MeShane, 22 Wall. 444; and Northern Pac. R. Co. v. Traill Co., 115 U. S. 600, 25 Am. & Eng. R. Cas. 364,-held that the United States still retained a lien upon the unpatented lands for the cost of surveying, selecting, and conveying them, and that until such costs were paid the lands were not subject to state taxation for the reason, as stated, that to permit a sale of them for taxes would destroy that lien, or, at least, embarrass the Government in the assertion of its right to recover such costs. As it was also held that the grants were grants in præsenti, conveying to the companies the full beneficial ownership of the lands, including the right of possession, there was no occasion for them to pay such costs, and the result was that for years the Pacific railroads substantially escaped all taxation upon the grants. To remedy this, Congress by act of July 10, 1886 (St. U. S. 1885-87, p. 143), enacted that no such lands except unsurveyed lands should be exempt from taxation by reason of that lien: provided, that at any sale for taxes the purchaser must take the land sold subject to the lien; and, further, that at such sale the United States may become a preferred purchaser, in which case the lands sold shall be restored to the public domain. As we understand the defendant's contention, it is now urged that Congress did not intend by this act to entirely waive this lien and make the land absolutely subject to state taxation, but only upon the condition that the lien of the Government for such costs should still subsist, and that at any sale for taxes the United States may be a preferred purchaser. Upon this postulate it is then argued that as it was held in the cases mentioned that a sale by the state for taxes would destroy the lien, in the absence of a legislative act accepting the conditions mentioned, a sale by the state would still have the same effect, and consequently the right to tax does not yet exist; also that, in the absence of a legislative act authorizing it, the United States has no right to become a preferred purchaser at a tax sale, and consequently this condition has not been fulfilled. Whatever difficulty there may be in rendering a decision that will be entirely in harmony with the principles asserted in Railway Co. v. Prescott and cases following it, we think that several satisfactory answers may be made to this argument. 1. As the sovereign proprietor, Congress has full power to dispose of the public lands upon such terms and under such conditions as it may deem proper. Irvine v. Marshall, 20 How. 561; Vansickle v. Haines, 7 Nev. 261. Thus in Gibson v. Chouteau, 13 Wall. 99, it is said: "With respect to the public domain, the constitution vests in Congress the power of disposition, and of making all needful rules and regulations. That power is subject to no limitations. Congress has the absolute right to prescribe the times, the conditions, and the mode of transferring this property or any part of it, and to designate the persons to whom the transfer shall be made.” It will scarcely be denied that the right which the United States still has in this land is an interest in the public domain, as such, and over which it has such full authority. Having such authority, no reason is perceived why the provisos in the act of July 10, 1886, do not become the supreme law of the land, so far as the taxation of these grants is concerned. Admittedly, Congress has no right to enact laws regulating generally the assessment, the taxation, or the sale for taxes of property in the different states. But, as to these lands, the United States is both a proprietor and a sovereign. The acts of Congress disposing of them become general laws, binding upon all, because all such acts are specially within the powers conferred upon it by the constitution. There is nothing in the act of July 10th indicating that Congress expected a legislative ac |