with respect to the right of way, the same construction which we should be compelled to give, according to our repeated decisions, to the grant of lands, had no limitations been expressed. We are of opinion, therefore, that all persons acquiring any portion of the public lands after the passage of the act in question took the same subject to the right of way conferred by it for the proposed road." The same conclusions have been reached and followed by the land department of the United States. See 1 Lester, Land Laws, p. 549, No. 578; Hall v. State, 2 Copp, Pub. Land Laws, 1048; Cushing v. State, 4 Dec. Dep. Int. 415; 9 Op. Atty. Gen. 254; Wright v. Rosebury, 121 U. S. 503, 7 Sup. Ct. Rep. 985. The same views have been expressed by the supreme courts of several of the states. See Fletcher v. Pool, 20 Ark. 100; Ringo v. Rotan, 29 Ark. 56; Owen v. Jackson, 9 Cal. 322; Kernan v. Griffith, 27 Cal. 87; Reclamation Co. v. Cook, 61 Cal. 341; Allison v. Halfacre, 11 Iowa, 450; Campbell v. Wortman, 58 Mo. 258; Gaston v. Stott, 5 Or. 48; Keller v. Brickey, 78 Ill. 133. The foregoing were cases of grants to railroad companies, but as remarked by FIELD, J., in Missouri, etc., Ry Co. v. Kansas, etc., Ry. Co., supra, the principles therein enunciated are applicable to all similar congressional grants. Nor is there anything in the policy of the federal government with respect to the public lands which would call for any qualification of the terms of the grant. The public lands would not be made any less valuable for settlement by a law of congress authorizing the locating of highways on the public domain; but, on the contrary, their value would be enhanced. Such roads facilitate the settlement of the country, and benefit neighborhoods, and in both particulars further the general policy of the government.

But we are met by the contention of respondent that the act of congress dedicating the right of way across the public. land is not an absolute grant, but is in the nature of a general order to the public, which takes effect and only becomes operative as a grant when its terms are accepted. This proposition, without doubt, rests on the elementary principle that a grant, like any other contract, must have two parties, -a

grantor and a grantee,—and an offer not accepted constitutes no contract. The parties to a dedication are the owners and the public; and it must be remembered that the public is an ever existing grantee, capable of taking dedications for public uses, and its interests are a sufficient consideration to support them. It may be unnecessary to cite authorities upon this generally conceded rule, but we will take the liberty of doing so, even at the risk of being prolix: Warren v. Town of Jacksonville, 15 Ill. 240; Cincinnati v. White, 6 Pet. 431; Maywood Co. v. Village of Maywood, 118. Ill. 61, 6 N. E. Rep. 866. It may, however, be admitted that the right acquired by the territory or the public was necessarily imperfect until the land accepted for highways was surveyed, and capable of identification; but when the land was surveyed, and the various section lines were designated to be public highways as far a practicable, the right of the territory attached to them for that purpose, and took effect as of the date of the territorial law. Railroad Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. Rep. 341. The act of congress giving the right of way for the construction of highways over public lands, and the territorial law declaring all such lines, as far as practicable, to be public highways, and designating such highways to be 66 feet wide, are notice to all persons filing on public lands subsequent to the passage of these laws that they take them subject to the right of way for highway purposes, if such section lines are found to be practicable for that purpose. In the case before us we are not called upor to construe the limitation, exception, or effect of the words "if practicable," to be found in the territorial enactment, because the record shows that upon the trial of the action it was expressly stipulated as a part of the facts upon which the case should be heard that this particular strip of land was, on or about the 21st day of April, 1885, duly opened by the proper authority as a public highway, and that ever since that time it has been so used and traveled upon as a public highway by the general public; thus establishing by express stipulation of the parties that it is and was practicable as such highway. The respondent further contends that the territorial legislative act

cannot be considered as an acceptance of the congressional grant, because the Territory of Dakota was not clothed with authority to construct highways, and that a legislative enactment cannot amount to the construction of a road or highway. The congressional act does not imply in its grant that the grantee shall be constructor of the highway. It grants the right of way only. It does not say how or by whom they may be constructed. The right to construct highways over the public land is what is given and granted, and that right is not restricted by the manner or mode of construction. The territorial law located the highways upon all public lands upon the section lines, and this public grant or dedication was so accepted, and became valid as against the government, and therefore valid as against its subsequent grantee, who must take the land subject to this right. The title to the land is not taken away. It is merely the right to pass over and use it for roads and highways when found practicable. If not so found by competent, authority, the grantee of the government holds the lands divested of this right.

It is further contended that when private property is taken for public use just compensation must be made to the owner. This proposition is undoubtedly true. But at the time of the location of the highway in question, was the land over which it was located the property of the respondent? We think not. The act of congress granting the right of way over public lands for highways was passed in 1866. The Code of 1877, containing the section line statute, was passed at the session of the legislature beginning January 9, 1877, and closing February 17, 1877. The Indian title to the Black Hills country, in which the land in question is situated, was relinquished to the United States on February 28, 1877. The lands were first surveyed in July or August, 1879, and the official plats were filed in the United States land office at Deadwood, Dak., February 18, 1880. The respondents settled on said tracts of land on the 18th day of January, 1879, and made final proof of his right thereto on June 16, 1883, under the pre-emption laws of the United States. These facts in relation to survey, settlement, and final

proof were stipulated as being true; and for the purposes of this case we take them as being such without an examination of records or other authorities. The question rises, when did the respondent acquire an absolute title to the land in question, previous to its being declared to be a highway? His settlement was made January 18, 1879. Settlement on the public lands of the United States confers no rights as against the government or its grantees. The settler acquires no vested interest in the land until he has entered the same at the proper land office and obtained a certificate of entry. Until then the land continues subject to the absolute disposing power of congress. In the case of Campbell v. Wade, 132 U. S. 35, 10 Sup. Ct. Rep. 9, one of the latest decided by the supreme court of the United States involving this principle, Justice FIELD says; "It has always been held that occupation and improvement of the tracts desired, with a view to pre-emption, though absolutely essential for that purpose, do not confer upon the settler any right in the land occupied, as against the United States, which could impair in any respect the power of congress to withdraw the land from sale for the uses of the government, or to dispose of the same to other parties." This subject was fully considered in Frisbie v. Whitney, 9 Wall. 187, where the same doctrine was announced. It was subsequently affirmed in the Yosemite Valley case, 15 Wall. 77, where the court said that, until all the preliminary steps prescribed by law for the acquisition of the property were complied with, the settler did not obtain any title against the United States, and that among these were entry of the land at the appropriate land office, and payment of its price." "Until such entry and payment," the court said, "the acts of congress give to the settler only a privilege of pre emption in case the lands are offered for sale in the usual manner; that is, the privilege to purchase them in that event in preference to others. The United States by these acts enter into no contract with the settler, and incur no obligation to any one that the land occupied by him shall ever be put up for sale. They simply declare that in case any of these lands are thrown open for sale, the privilege to purchase them in limited quantities, at fixed prices,

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shall be first given to parties who have settled upon and improved them." Neither the stipulation of facts nor the evidence introduced at the trial show when respondent entered the land in question, or filed his declaratory statement. It is presumed, however, the entry must have been made within thirty months before the final proof, as Section 2267, Rev. St U. S., requires that "all claimants of pre-emption rights shall, when no shorter time is prescribed by law, make the proper proof and payment for the lands claimed within thirty months" after filing the declaratory statement. The final proof was made June 16, 1883. Thirty months previous would be December 16, 1880, which date was the earliest period of time, under the decisions above cited, that the respondent had any substantial claims to the land; but not until he had made final proof was any title vested in him. The lands became a part of the public domain of the United States February 28, 1877. They were surveyed, and the official plat was filed in the proper United States land office, in February, 1880. This survey designated the proper section lines. The law of congress giving the right of way for highway purposes over these lands was in force, and operated on them. The territorial law of 1877 of Dakota, making all section lines highways, dedicated 33 feet on each side of these lines to the public for that purpose. Respondent's entry and proof being subsequent to these, whatever vested right he afterwards acquired must be subject to these limitations. It is unnecessary to consider the question raised by the appellant by reason of the premises having been conveyed to one George Hunt by the respondent, or the errors of the court below, if there were any, as to the admission or rejection of evidence in relation to special damages, as the views above expressed are decisive of the case, as far as the right of recovery exists on the part of the respondent; for the allegations stated in the complaint, taken in connection with the stipulation of facts, do not show that the respondent is entitled to recover. The cause is reversed and remanded. All the judges concurring.