pre-emption or homestead claim may not have attached." In 1857 one J. had filed a pre-emption declaratory statement on land within the terms of the subsequent grant, which statement remained intact until after the final location of the railroad, and until 1885, when it was cancelled because J. had never lived on the land. Held that, notwithstanding the subsequent cancellation of the statement, the pre-emption claim had attached to the land within the meaning of the statute, and hence such land is excluded from the grant, and is open to settlement after such cancellation. The court said: "The failure of Jones to comply with the pre-emption laws did not cause the land to revert to the railroad company, and it did not, by reason of any failure of his to comply with the law, become a part of the grant; but, upon the cancellation of his statement, the land was open for settlement. This conclusion is sustained by the land department and upheld by the decisions of the supreme court of the United States in Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 734; Newhall v. San ger, 92 U. S. 761; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629; Hastings & Dakota R. Co. v. Whitney, 132 U. S. 357, 40 Am. and Eng. R. Cas. 426, and by the supreme court of Nebraska, Burlington & M. R. R. Co. v. Abink, 14 Neb. 95, 10 Am. & Eng. R. Cas. 686. It is true that in several of these cases there was either a valid homestead claim initiated by settlement followed by an entry, or a pre-emption claim initiated by a settlement followed by a declaration of intention to purchase; but the decisions are based upon the fact of the filing of the declaratory statements in the proper land-office. The cases all proceed upon the theory that when this claim is filed the right of the applicant becomes attached to the land.' The word 'claim,' as used in the act, was not intended to be restricted to such homestead and pre-emption claims as should afterwards ripen into perfect title, but was intended to include all claims that were made in such form as to be recognized and allowed by the land-office, without any regard to the question whether they were valid at the time of filing, or whether they were afterwards perfected, abandoned, cancelled, or forfeited. In Kansas Pac. R. Co. v. Dunmeyer, supra, the court, in distinguishing the case from Natoma Water & Mining Co. v. Bugbey, 96 U. S. 165, said: In the case before us, a claim was made and filed in the landoffice, and there recognized, before the line of the company's road was located. That claim was an existing one, of public record, in favor of Miller, when the map of plaintiff in error was filed. In the language of the act of congress, this homestead claim had attached to the land, and it therefore did not pass by the grant. Of all the words in the English language this word "attached" was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land-office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation, With the peformance of these conditions the company had nothing to do. The right of the homestead having attached to the land, it was excepted out of the grant as much as if in a deed it had been excluded from the conveyance by metes and bounds.'"

Rights of Settlers-Evidence as to Prior Pre-emption Claim.-Congress has full power to withdraw public lands from sale, though in possession of qualified pre-emptors, if they have not paid for the land, and may sell or grant such land to others, as it pleases. In an action of ejectment by the successor in interest of the Central Pacific Railroad Company to recover possession of a strip of land forming part of the right of way granted to the company by congress, evidence is not admissible to show possession of the land by the predecessors of the defendant prior to the railroad

grant, and that they were qualified pre-emptors, if it appears that none of them procured title to the land before it was granted to the railroad company. Southern Pac. R. Co. v. Burr, 86 Cal. 279.

Patent Erroneously Issued to Settler-Right of Railroad Company to Equitable Relief.-A patent issued, in the name of the United States to a preemptor, entering upon these lands subsequent to the order of withdrawal, is, erroneously, issued without authority of law, and is void. The existence of such a patent is a cloud upon the complainant's title. It embarrasses the assertion of complainant's rights, and prevents it getting a patent to the same land to which it is entitled. These circumstances constitute ground for equitable relief. A patent so issued to a pre-emptor is void, and the using of it should be perpetually enjoined. Southern Pacific R. Co. v. Wiggs, 43 Fed. Rep. 333.

Rights of Settlers Entering on Land before Definite Location of Road.— Act Cong. July 1, 1862, as amended by act of Julv 2, 1864, granted to the C. P. R. Co. alternate sections of land, to aid in the construction of its road, but reserved any land to which a pre-emption or homestead claim might attach before the line should be definitely fixed. Ten months before the line of the road was definitely fixed land covered by the grant was settled upon and improved, and ten days before the line was fixed the settlers filed their affidavits and declaratory statements in the proper landoffice. Held, that the land did not pass under the grant. Peers v. Deluchi, et al. (Nevada, April 6, 1891), 26 Pac. Rep. 228.

Abandonment of Pre-emption Claim-Ejectment of Claimant,—In an action in the nature of ejectment by a railroad company claiming under a legislative grant on conditions subsequently fulfilled, a complaint, otherwise setting forth a good cause of action, is not rendered demurrable by the allegations that on a certain day, fourteen years before the fulfillment of said conditions, one G. filed a declaratory statement, wherein he alleged settlement on and made pre-emption claim to the lands in controversy, but that said G. did not then or at any time make settlement on said lands, and that until subsequent to the time plaintiff claimed to have fulfilled its conditions no other entry or filing was made on the land, as, if these facts showed that a pre-emption claim had existed, it should be considered to have been abandoned. Northern Pac. R. Co. v. Meadows, 46 Fed. Rep. 254.

Possession by Mere Squatter of Land Granted not Material.-The fact that public land is in the possession of a settler, who is living on it, without complying with either the pre-emption or the homestead law at the time the land is included in a grant to a railroad company, does not keep it from being public land not reserved, sold, granted, or otherwise appropriated. Cahalan v. McTague, 46 Fed. Rep. 251.

Unlawful Occupancy of Public Lands within Limits of Grant.-The inclosure and occupancy of lands in an odd-numbered section, and within the limits of a grant to a railroad company, where the entry was made after the same had been withdrawn from sale or entry, and before completion of the railroad, or any declaration of forfeiture of the grant, by a person who, in good faith, intended to acquire title to it by purchase from the railroad company, is not made unlawful by the act of congress entitled "An act to prevent unlawful occupancy of the public lands," approved February 25, 1885 (23 U. S. St. 321). United States v. Osborn, 44 Fed. Rep. 29.

JACKSON

ข.

LA MOURE COUNTY.

(North Dakota Supreme Court, Sept. 2, 1890.)

Land Grants-Selection of Indemnity Lands-Taxation.-Title to the indemnity lands in the grant to the Northern Pacific Railroad Company does not pass from the United States until the selection of such lands by the company with the approval of the secretary of the interior. Until such approval such lands are not subject to taxation.

Action to Remove Cloud-Who May Maintain.-One in possession of real estate, but having no legal or equitable title thereto, cannot maintain an action to remove a cloud upon the title.

APPEAL from District Court, Stutsman County.

C. W. Davis, for plaintiff.

N. B. Wilkinson, for defendant.

Taxation of

federal agencies and

CORLISS, C. J.-The tax proceedings to enjoin which this action was instituted were clearly void. The land attempted to be taxed was not subject to taxation. It was property of the United States. Van Brocklin v. Anderson, 117 U. S. 151; Tucker v. Ferguson, 22 Wall. 527. The exemption of such property from property. taxation by the states rests upon the doctrine that there must inhere in every government the power to perpetuate itself. The supremacy of the federal government could be annihilated by hostile taxation by the states of federal agencies and property. With respect to property, the power to tax, save as limited by constitutional inhibition, acknowledges no restraint. All federal agencies and property might be thus transferred to the coffers of the state, were they subject to taxation. The land in question was embraced within the territory of the indemnity lands of the Northern Pacific Railroad Company, and was such land as the company might, under its grant, select to make good its losses of land within the "place" limits by reason of prior settlement, or for any reason. It is, however, averred in the complaint, and admitted by the demurrer, that the company has never made the selection of the land in question, or of any part thereof, and that the United States still holds the legal title to the land. Under these facts the property was not subject to taxation. Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 509, 41 Am. & Eng. R. Cas. 669. 46 A. & E. R. Cas.-29

Selection of indemnity lands.

Even selection by the company, without the approval of the secretary of the interior, would not have divested the gov ernment of its title to the land. It was so held in the case cited. The company in that case had, in fact, made selection of the lands sought to be taxed, but the secretary had refused to approve the selection, insisting that the company was not entitled to such lands, claiming that it had already secured more than it could rightfully hold under the grant. The secretary was in error. The company was in fact entitled to as much indemnity lands as it had selected. But the supreme court held that, as the secretary had refused to approve the selection, no title whatever had passed, and the lands were not therefore taxable, notwithstanding the fact that the secretary's refusal was unjustifiable. The soundness of this decision cannot be assailed. There is a well defined difference between "indemnity" lands and "place" lands. The latter become instantly fixed by the adoption of the line of the road. The odd numbered sections to the amount of 20 sections a mile on each side of the road were granted to the Northern Pacific Railroad Company by the act of congress. The language of the grant is that there be and "are hereby granted." The moment the route of the railroad had been definitely established these sections were susceptible of identification, and eo instanti the grant attached to them, the translation of title. relating back to the date of the grant. Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 509, 41 Am. & Eng. R. Cas. 669; St. Joseph & Denver City R. Co. v. Baldwin, 103 U. S. 426, 2 Am. & Eng. R. Cas. 510; Barney v. Winona & St. Peter R. Co., 117 U. S. 228, 26 Am. & Eng. R. Cas. 522; Denny 7. Dodson, 32 Fed. Rep. 899; Northern Pac. R. Co. v. Majors, 5 Mont. 111, 14 Am. & Eng. R. Cas. 487. But the indemnity lands cannot be ascertained by the mere location of the road. They are substitutes for granted lands lost, and it is therefore important that the fact of such loss from the attaching superior preemption or other rights to any portion of the "place" lands should be ascertained by the interior department before allowing the company to make selection for indemnity; and it is also necessary for that department to determine whether the lands which the company desires to select for indemnity are open to selection; whether there is not some prior claim upon them in behalf of settlers or others. It is therefore entirely proper that the secretary of the interior should have the right to approve or disapprove of the selection before it becomes final. This is clearly the meaning of the provision of the grant to the Northern Pacific, which declares that the indemnity lands shall be selected by the company "under the direction of the secretary of the inte

rior." 13 St. U. S. chap. 217, p. 365, § 3; Elling v. Thexton, 7 Mont. 330; St. Paul & Sioux City R. Co. v. Winona & St. Peter R. Co., 112 U. S. 720. The statute must have the same construction that would be given it if the word "approval" had been used in place of the word "direction." The title to indemnity lands does not pass until selection has been made. Ryan v. Central Pac. R. Co., 99 U. S. 382; St. Paul & Sioux City R. Co. v. Winona & St. Peter R. Co., 112 U. S. 720; Barney v. Winona & St. Peter R. Co., 117 U. S. 228, 26 Am. & Eng. R. Cas. 522; Sioux City & St. Paul R. Co. v. Chicago, M. & St. P. R. Co., 117 U. S. 406, 24 Am. & Eng. R. Cas. 100; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 509, 41 Am. & Eng. R. Cas. 669. Under this last decision the approval of the secretary of the interior is essential to selection. Without it there is no selection in fact. In the language of the opinion in that case, "until the selections. were approved there were no selections in fact, only preliminary proceedings taken for that purpose, and the indemnity lands remained unaffected in the title." The same facts which show that the land was exempt from taxation are fatal to the plaintiff's right to maintain this action. The title never having passed from the government, the railway company had none to convey. Plaintiff does not pretend that he has any title except in so far as 5 of the act of congress, approved March 3, 1887, (24 St. 556,) may confer upon him some kind of title. That section provides, in substance, that the purchaser of such land from the company, having failed to secure any title because the company had none to transfer, may make payment to the United States for such land at the ordinary government price for like lands, and thereupon a patent shall issue to him. This statute certainly does not confer upon him the legal title to the land. That still remains in the United States. Nor is it easy to perceive how the statute can be said to vest in the plaintiff an equitable title to the land. He is a mere settler, with a right to purchase on making a certain payment. It is not pretended that that payment had been made at the time this action was commenced. The plaintiff then had neither a patent nor a right to a patent. He was not in possession under a contract binding the owner of the land to convey to him the legal title. The government had not obligated itself to make such conveyance. It had granted to the plaintiff a concession which it could at any time withdraw. What ever privilege he held under this act, the government was under no obligation, moral or legal, to continue to respect. He was the recipient of an indulgence,-a favor; but in no sense could he claim to be the owner of any right enforcea