ship in the United States. But until the purchase price was actually paid in cash no recognizable claim accrued. By the express terms of the act of 1869 no sale could be made contravening legal rights previously vested in other parties.

What, therefore, were the rights of the railway company in 1870 when the defendant's grantors attempted to acquire title? The section being an even-numbered one, it did not pass to the railway company as a part of the land grant by way of aid. Furthermore, it was held by the Supreme Court of the United States that such grant did not apply to Osage Ceded Lands. M., K. & T. Ry. Co. v. U. S.. 92 U. S. 760, 23 L. Ed. 645; Leav enworth, etc., R. Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634. But the majority opinions in these cases recognize the validity of the grant of a right of way as distinguished from the grant of lands to aid construction, and this fact is commented on by the justices in the minority as showing the unsoundness of the conclusion of the court relating to the land. grant itself. Besides, this court is probably authorized to take notice, without proof, of an addendum to the court's order in the cases cited, not printed in the published report of the decisions, to the effect that the decrees of affirmance in such cases shall not be construed as affecting the right of way of the railroad claimants through the Osage Ceded Lands. In due time it became necessary for the Supreme Court of the United States to determine whether the act of July 26, 1866, did grant to the present plaintiff a right of way through the Osage Ceded Lands and a decision in its favor was rendered in the case of M., K. & T. Ry. Co. v. Roberts, 152 U. S. 114, 14 Sup. Ct. 496, 38 L. Ed. 377. The opinion reads: "Certain lands within the present state of Kansas were reserved whilst it was still a territory, and long previously, by the United States, for the use and occupation of the Osage Indians. Such reservation was made by treaty between them and the United States concluded as far back as June 2, 1825, and proclaimed in December following. 7 Stat. (Indian Treaties) 240. From that time, and continuously thereafter, the reserved lands were occupied by those Indians until the treaty ceding the lands, or parts thereof, to the United States, concluded in 1866, and proclaimed in January, 1867 (14 Stat. 687), except such portion thereof as was appropriated and used as a right of way by the Missouri, Kansas & Texas Railway Company for its road under the grant of July 26. 1866. Prior to June 6, 1870, that company located its railroad through these reserved lands in Kansas, with the approval of the President, and constructed its road in substantial conformity with the act of Congress. The right of way for its road, 200 feet in width, was granted to the company unconditionally, subject only to such approval. The title to the land for the 200 feet in width thus granted vested in 87 P.-41

the company either upon the passage of the act of Congress, July 26, 1866, or upon the construction of the road, and so far as the present case is concerned, it does not matter which date be taken. "The United States had the right to authorize the construction of the road of the Missouri, Kansas & Texas Railway Company through the reservation of the Osage Indians, and to grant absolutely the fee of the 200 feet as a right of way to the company. Though the lands of the Indians were reserved by treaty for their occupation, the fee was always under the control of the government, and, when transferred, without reference to the possession of the lands and without designation of any use of them requiring the delivery of their possession, the transfer was subject to their right of occupancy, and the manner, time, and conditions on which that right should be extinguished were matters for the determination of the government, and not for legal contestation in the courts between private parties."

It remains to inquire when the grant to this right of way became effective against subsequent purchasers of land which it crossed. It would be easy to say in this case that after the map of definite location had been filed with the Secretary of the Interior all subsequent purchasers were obliged to take notice of the railway company's rights. The grant which before identified no specific land then became definite and certain and vested in the railway company all the rights contemplated by congress to every tract through which the route of the road passed, as shown by the map filed. But the railway company is entitled to the benefit of the law as it has been declared, which is that the unconditional grant of a right of way 100 feet in width on each side of the road, through land subject to the dominion of the United States, is a grant in præsenti, and that any person subsequently acquiring a portion of such land takes it subject to that right. The act of July 23, 1856, 14 Stat. 210, c. 211, granting a right of way to the St. Joseph & Denver City Railroad Company and granting lands in aid of the construction of that road is al most identical in language, and is identical in legal effect, with the act under which plaintiff claims. One Baldwin acquired whatever rights he possessed to a certain parcel of land in October, 1869. The road was not definitely located through that tract until October, 1871. After the road was built Baldwin sued for damages on account of the appropriation by the railway company of a strip of his land 200 feet wide and 200 rods long. In denying relief the Supreme Court of the United States said, per Field, J.: "The act of Congress of July 23, 1866, c. 212, makes two distinct grants: One of lands to the state of Kansas for the benefit of the St. Joseph & Denver City Railroad Company in the construction of a railroad from Elwood in that state to its junction with the Union Pacific

via Maryville; the other of a right of way directly to the company itself. The lands consisted of alternate sections, designated by odd numbers, on each side of the line of the proposed road. The grant of them was subject to the condition that if, at the time the line of the road was definitely fixed, the United States had sold any section or a part thereof, or the right of pre-emption or homestead settlement had attached to it, or the same had been otherwise reserved by the United States for any purpose, the Secretary of the Interior should select an equal quantity of other lands nearest the sections designated, in lieu of those appropriated, which should be held by the state for the same purposes. The limitations upon the grant are similar to those found in numerous other grants of land made by Congress in aid of railroads. Their object is obvious. The sections granted could be ascertained only when the routes were definitely located. This might take years, the time depending somewhat upon the length of the proposed road and the difficulties of ascertaining the most favorable route. It was not for the interest of the country that, in the meantime, any portions of the public lands should be withheld from settlement or use because they might, perhaps, when the route was surveyed, fall within the limits of a grant. Congress, therefore, adopted the policy of keeping the public lands open to occupation and pre-emption, and appropriation to public uses, notwithstanding any grant it might make, until the lands granted were ascertained, and providing that, if any sections settled upon or reserved were then found to fall within the limits of the grant, other land in their place should be selected. Thus settlements on the public lands were encouraged without the aid intended for the construction of the roads being thereby im. paired. The language of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in præsenti. The act is a present grant, except so far as its immediate operation is affected by the limitations mentioned. "There is hereby granted' are the words used, and they import an immediate transfer of interest, so that, when the route is definitely fixed, the title attaches from the date of the act to the sections, except such as are taken from its operation by the clauses mentioned. This is the construction given by this court to similar language in other acts of Congress. Missouri, Kansas & Texas Railway Co. v. Kansas Pacific Railway Co.. 97 U. S. 491, 24 L. Ed. 1095; Leavenworth. Lawrence & Galveston Railroad Co. v. United States, 92 U. S. 733, 23 L. Ed. 634. But 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 and 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. The right of way for the whole distance of the proposed route was a very important part of the aid given. If the company could be compelled to purchase its way over any section that might be occupied in advance of its location, very serious obstacles would be often imposed to the progress of the road. For any loss of lands by settlement or reservation, other lands are given, but, for the loss of the right of way by these means, no compensation is provided, nor could any be given by the substitution of another route. The uncertainty as to the ultimate location of the line of the road is recognized throughout the act, and where any qualification is intended in the operation of the grant of lands, from this circumstance, it is designated. Had a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that none exists. "We see no reason, therefore for not giving to the words of present grant 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 limitation 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." Railroad Co. v. Baldwin, 103 U. S. 426, 428, 26 L. Ed. 578.

The decision in the Baldwin Case was approved in the case of Bybee v. Oregon & California R. Co., 139 U. S. 663, 679, 11 Sup. Ct. 641, 644, 35 L. Ed. 305, in the following language: "The distinction between a right of way over the public lands and lands granted in aid of the construction of the road is important in this connection. As to the latter, the rights of settlers or others who acquire the lands by purchase or occupation between the passage of the act and the actual location and identification of the lands are preserved unimpaired, while the grant of the right of way is subject to no such condition, and in the construction given by this court to a similar grant in Railroad Company v. Baldwin, 103 U. S. 426, 26 L. Ed. 578, a person subsequently acquiring any part of such right of way takes is subject to the prior right of the railroad company." The same case was cited with approval when called collaterally in question in the case of Missouri, Kansas & Texas Railway v. Cook, 163 U. S. 491, 16 Sup. Ct. 1093, 41 L. Ed. 239, to which, as the title indicates, the present plaintiff was a party. The opinion reads: "The grant of the lands and the grant of the right of way were alike grants in præsenti and stood on the same footing, so that, before definite location, all

31 L. Ed. 844; Davis' Adm'r v. Wiebbold, 139 U. S. 507, 529, 11 Sup. Ct. 628, 35 L. Ed. 238: Knight v. U. S. Land Assn., 142 U. S. 161, 12 Sup. Ct. 258, 35 L. Ed. 974."

In the case of Smelting Co. v. Kemp, 104 T. S. 636, 26 L. Ed. 875, it is said: "The patent of the United States is the conveyance by which the nation passes its title to portions of the public domain. For the transfer of that title the law has made numerous provisions, designating the persons who may acquire it and the terms of its acquisition. That the provisions may be properly carried out. a land department, as part of the administrative and executive branch of the government, has been created to supervise all the various proceedings taken to obtain the title from their commencement to their close. In the course of their duty the officers of that department are constantly called upon to hear testimony as to matters presented for their consideration, and to pass upon its competency. credibility, and weight. In that respect they exercise a judicial function, and, therefore, it has been held in various instances by this court that their judgment as to matters of fact, properly determinable by them, is conclusive when brought to notice in a collateral proceeding. Their judgment in such cases is, like that of other special tribunals upon matters within their exclusive jurisdiction, unassailable except by a direct proceeding for its correction or annulment. The execution and record of the patent are the final acts of the officers of the government for the transfer of its title, and, as they can be lawfully performed only after certain steps have been taken, that instrument, duly signed. countersigned, and sealed, not merely operates to pass the title, but is in the nature of an official declaration, by that branch of the government to which the alienation of the public lands, under the law, is intrusted. that all the requirements preliminary to its issue have been complied with. The presumptions thus attending it are not open to rebuttal in an action at law. *** Of course, when we speak of the conclusive presumptions attending a patent for lands, we assume that it was issued in a case where the department had jurisdiction to act and execute it: that is to say, in a case where the lands belonged to the United States and provision had been made by law for their sale. If they never were public property, or had previously been disposed of, or if Congress had made no provision for their sale, or had reserved them, the department would have no jurisdiction to transfer them, and its attempted conveyance of them would be inoperative and void, no matter with what seeming regularity the forms of law may have been observed. The action of the department would in that event be like that of any other special tribunal not having jurisdiction of a case which it had assumed to decide. Matters of this kind, disclosing a want of jurisdiction, may be considered by

a court of law. In such cases the objection to the patent reaches beyond the action of the special tribunal, and goes to the existence of a subject upon which it was competent to act."

In the case of Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. 389, 27 L. Ed. 226, it is said: "It need hardly be said that we are here speaking of a patent issued in a case where the Land Department had jurisdiction to act, the lands forming part of the public domain, and the law having provided for their sale. If they never were the property of the United States, or if no legislation authorized their sale, or if they had been previously disposed of or reserved from sale, the patent would be inoperative to pass the title, and objection to it could be taken on these grounds at any time and in any form of action. In that respect the patent would be like the deed of an individual which would be inoperative if he never owned the property, or had previously conveyed it, or had dedicated it to uses which precluded its sale." In the case of Lake Superior, etc., Co. v. Cunningham, 155 U. S. 354, 375, 15 Sup. Ct. 103, 111, 39 L. Ed. 183, involving a grant of lands to the state of Michigan to aid in the construction of a canal it is said: "Counsel for plaintiff in error cite several cases in which power having been given to the Secretary of the Interior to determine a question of fact, his determination thereof, as expressed by the issue of a patent, was held conclusive. The latest of those cases is Barden v. Northern Pacific Railroad, 154 U. S. 288, 327. 14 Sup. Ct. 1030, 1038, 38 L. Ed. 992, in which the rule was thus stated: 'It is the established doctrine, expressed in numerous decisions of this court, that wherever Congress has provided for the disposition of any portion of the public lands, of a particular character, and authorizes the of ficers of the Land Department to issue a patent for such land upon ascertainment of certain facts. that department has jurisdiction to inquire into, and determine as to the existence of, such facts, and in the absence of fraud, imposition, or mistake, its determination is conclusive against collateral attack.' That case fully illustrates the extent to which the rule goes. The grant to the Northern Pacific was of lands nonmineral,' and it was held that it was a question of fact whether lands were mineral or nonmineral, and that question of fact was for the determination of the Land Department. and when determined by it, conclusively settled. But those cases are not pertinent, for here there was no question of fact to be determined. Long prior to any legislation respecting the canal grant the lands granted to the Ontonogon Company had been identified and set apart. The record thereof was in the office of the Land Department. By that identification and certification those lands were absolutely separated from the public