fact that after the location and establishment of the highway and before this action, he sold his land. § 2780 Comp. Laws. Van Dusen v. Young, 29 Barb. 9; Robinson v. Wheeler, 25 N. Y. 252; Railroad v. Allen, 15 N. E. 45. BENNETT, J. This action was brought by appeal to the circuit court of Pennington county from the decision of the board of county commissioners of said county, rejecting plaintiff's claim for damages, filed with said board. The complaint alleges that on the first day of April, 1885, the county of Pennington, by one John P. McElroy, a road supervisor of said county, without notice or other legal proceedings, took and appropriated the private property of the plaintiff for public use, to wit, certain lands lying along the regularly surveyed section lines, for a public highway, and on account of the tak ing and appropriation of said lands the plaintiff is damaged in the sum of $400. The complaint further alleges that at the time of said appropriation the plaintiff had not received a patent from the United States for the land so taken, but afterwards, on the 6th day of November, 1886, he did receive his patent, and on the 21st day of January, 1887, he duly asserted his claim for damages on account of such taking and appropriation of his property. The defendant answered, denying all the allegations of the complaint; and for a further answer alleged (1) that plaintiff, prior to the filing of the complaint, had conveyed by warranty deed to one George Hunt all of the premises so alleged to have been taken, and that he did not, either in the warranty deed or otherwise, reserve or except to himself any claim or demand for damages by reason of said land being taken or used for a public highway. (2) That the tracts of land in question were first surveyed by the United States in July and August, 1879, and the official plat filed in the proper land office of the United States on the 18th day of February, 1880, and prior to that time they were unsurveyed public lands of the United States. That the plaintiff first settled on these lands on the 28th day of January, 1879, and on the 16th day of June, 1883, made his final proof to establish his right thereto under the pre-emption laws of the United States, and received his final receipt. That the private property of plaintiff, alleged to have been taken or appropriated by the defendant for public highways, consisted of certain strips of land thirty-three feet wide, situated on each side of section lines, lying and being along and between the said sections, which said strips and section lines are practicable public highways or roads, and are now, and at all times since the 1st day of April, 1885, have been, used and traveled by the general public. On the 29th day of March, 1890, the issues were tried by a jury, verdict rendered for the plaintiff, damages assessed at $275, and judgment entered. A motion for a new trial was made and overruled, an appeal was perfected, and a large number of errors were duly assigned. Upon the trial it was stipulated and agreed that the allegations of the complaint and the facts set forth in the affirmative defenses of the defendant were true, except the allegation of damages set forth in the complaint. The evidence introduced was upon the question of damages only. The defendant and appellant relies upon but two propositions for a reversal: (1) That the complaint, taken in connection with the allegations of the affirmative defenses, does not state facts sufficient to constitute a cause of action; (2) that, if the facts proved constitute a cause of action on the part of plaintiff, the errors of law committed by the court below entitle appellant to a new trial. Section 2477, Rev. St. U. S., enacted in 1866, and in force at the time of the alleged appropriation, provides "that the right of way for the construction of highways over public lands not reserved for public use is hereby granted." Sections 1189, 1191, Comp. Laws, enacted prior to February 17, 1877, provide "that all section lines shall be and are hereby declared public highways as far as practicable." The public highways along section lines, as declared by Section 1189, shall be sixty-six feet wide, and shall be taken equally from each side of said lines, unless changed as provided in the preceding section. "The contention of the appellant is that the act of congress above quoted freely grants the right of way over the public lands for highway purposes; that the terms thereof may be accepted by the public or by any state, territory or municipality authorized to legislate for the public in the matter of highways; that the congressional act is full and sufficient authority for the passage of the territorial law; and that the two laws constituted, as to lands along the section lines, an accepted public grant or dedication of the same for highway purposes prior in time to the acquisition by the plaintiff of any vested interest in such land. The respondent contends that the grant contained in said Section 2477, Rev. St. U. S., is not an absolute grant, but is in the nature of a general offer by the general government, which becomes operative as a grant only when its terms are complied with by such municipalities as the law clothes with the right to construct public highways. The territorial enactments, as set forth in Sections 1189, 1191, Comp. Laws, was not an acceptance of the grant, for the territory of Dakota was not clothed with authority to construct highways. These contentions present two questions for determination: (1) Was the congressional act a present, absolute grant or dedication, without reservation or exception, freely granting the right of way over the public lands for the construction of highways? (2) Were the terms of the grant accepted by the provision of the territorial law declaring all section lines to the extent of thirtythree feet on each side thereof to be public highways, as far as practicable? The language of Section 2477, Rev. St. U. S., indicates a grant in præsenti. Its words: "The right of way for the construction of highways over public lands not reserved for public use is hereby granted,"-import an immediate transfer of interest, not a promise of a transfer in the future. As to the intent of congress in this enactment granting the right of way to cross the public lands there can be no reasonable doubt. The object of the grant was to enable the citizens and residents of the states and territories where public lands belonging to the United States were situated to build and construct such highways across the public domain as the exigencies of their localities might require, without making themselves liable as tresspassers. And when the location of the highway and roads was made by competent authority or by public use, the dedication took effect by relation as of the date of the act; the act having the same operation upon the lines of the road as if specifically described in it. Justice FIELD, in the case of Missouri, etc., Ry. Co. v. Kansas, etc., Ry. Co., 97 U. S. 497, says: "It is always to be borne in mind in construing a congressional grant that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. To the validity of such transfers it may be admitted that there must exist a present power of identification of the land; that when no such power exists, instruments, with words of present grant, are operative, if at all, only as contracts to convey. But the rules of common law must yield in this, as in all other cases, to the legislative will." The grants by the United States of land to aid in the construction of railroads are in many respects analogous to this enactment. While in these grants the fee to the land was intended to be transferred to the railroad companies by their grants, and the act under consideration is only a dedication or giving a right of way, yet the principles governing the construction of the words "is hereby granted" are the same. The courts of the United States have made many adjudications, holding, when these words are used in an act of congress transferring a right or a fee, that the grant takes effect as of the date of the act. In the case of Railroad Co. v. U. S., 92 U. S. 733, the language of the act which was being construed by the court was: "There be and is hereby granted to the State of Kansas." In reference to it the court said: "It creates an immediate interest, and does not indicate a purpose to give in the future. "There be and is hereby granted' are words of absolute donation, and import a grant in præsenti. This court has held that they can have no other meaning, and the land department, on this interpretation of them, has administered every previous grant." The case of Railroad Co. v. Baldwin, * * * * * * 103 U. S. 428, was an action by Baldwin to recover of the St. Jo & Denver City Railroad Company damages for entering upon his lands in Nebraska, and appropriating, in the construction of its road, a strip 200 feet in width and 200 rods in length. The company claimed a right of way over the land of that width under an act of congress of July 23, 1866, which, among other provisions, provided "that the right of way through the public lands be, and the same is hereby granted to the said St. Jo. & Denver City R. R. Co. for the construction of a railroad to the extent of one hundred feet in width on each side of said road where it may pass." When the grant was made by congress the land claimed by Baldwin was vacant and unoccupied land of the United States. But the line of the road over it was not definitely located until October, 1871. Baldwin acquired whatever right he had to, the land in October, 1869. The company's contention was that Baldwin took the land subject to its right of way, but he contended that the grant of the right of way took effect only from the date at which the company filed its maps, designating the route, with the secretary of the interior. With these contentions the case came before the supreme court of the United States. In deciding the case Justice FIELD says: "The language of the act here, and of nearly all congressional acts granting lands, is in terms of a grant in præsenti. The act is a present grant. There is hereby granted' are the words used, and they import an immediate transfer of interest, so that, when a route is definitely fixed, the title attached from the date of the act. The grant of the right of way by the sixth section contains no reservations or exceptions. It is a present, absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed aud used for the purposes designed. Nor is there anything in the policy of the government with respect to the public lands which would call for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby. We see no reason, therefore, for not giving to the words of present grant, * * * |