States nearest to the tiers of sections above specified, so much land, in alternate sections, or parts of sections, as shall be equal to such lands as the United States have sold or otherwise appropriated, or to which the rights of pre-emption have attached, as aforesaid; which lands 申 * * shall be held by the territory or future state of Minnesota for the use and purposes aforesaid; provided, that the land to be so located shall, in no case, be further than fifteen miles from the lines of said roads or branches, and selected for and on account of each of said roads or branches." 11 Stat. 195, 196.

The act of March 3, 1865, provided that the quantity of lands granted to the state of Minnesota by the act of March 3, 1857, should be increased to 10 sections per mile for each of the railroads and branches therein mentioned, "subject to any and all limitations contained in said act and subsequent acts, and as hereinafter provided," and that the proviso above quoted should be so amended as to read as follows, to wit:

"Provided, that the land to be so located shall, in no case, be further than twenty miles from the lines of said roads and branches, to aid in the construction of each of which said grant is made; and said lands granted shall, in all cases, be indicated by the secretary of the interior." 13 Stat. 526, §§ 1, 2.

The act of 1857 contained no provision for the withdrawal from market of any of the lands referred to therein. But section 7 of the act of 1865 provided:

"That as soon as the governor of the said state of Minnesota shall file or cause to be filed with the secretary of the interior maps designating the routes of said roads and branches, then it shall be the duty of the secretary of the interior to withdraw from market the lands embraced within the provisions of this act."

None of the lands here in question fall within the place limits of the grant of 1857 or of 1865, but 1,320 acres of them fall within the indemnity limits of 15 miles fixed by the act of 1857, and the remainder of them fall without the limits of 15 miles and within the limits of 20 miles fixed by the act of 1865. The secretary of the interior never in fact withdrew from market any of these lands under the act of 1857 or under the act of 1865, before the line of the railroad of the Hastings & Dakota Railway Company was, on June 26, 1867, definitely fixed, and its rights to them attached under the act of July 4, 1866. But the appellant contends, nevertheless, that these lands were reserved before the passage of that act by virtue of the existence of the following facts:

The legislative assembly of the territory of Minnesota, by an act approved May 22, 1857 (Sp. Laws 1857 [Ex. Sess.] c. 1), fixed the terminus of the main line of the railroad provided for by the act of March 3, 1857, at Breckenridge on the Sioux Wood river, fixed the terminus of the branch line at St. Vincent near the mouth of Pembina river, incorporated the Minnesota & Pacific Railroad Company, authorized it to construct and operate these railroads, and granted to it all the interests of the territory and future state of Minnesota in the lands granted and rights and privileges conferred to aid in the construction of these railroads by the act of 1857. During the summer of that year the Minnesota & Pacific Railroad Company surveyed and marked on the ground the main line of this railroad from Still

water to a point on the Sioux Wood river about six miles south of Breckenridge, and on December 5, 1857, it filed a map of this line in the office of the commissioner of the general land office. The public surveys had then been made along this line to the west line of range 38, but no further. The lands in question in this suit lie west of range 38. Upon receipt of this map, the commissioner suspended action upon that portion of the line shown upon it east of the west line of range 38 until its wide deflection from a direct line from St. Anthony to Breckenridge should be explained, and as to the portion of the line west of range 38 he wrote to the agent of the territory and of the railroad company, who filed the map:

"No action can of course be taken by this office in regard to this part of the road, until the public surveys have advanced coextensive with the route of the road and a supplemental map shall be filed exhibiting this portion in connection with the public surveys."

The railroad company submitted to this ruling without objection, prepared proofs which explained the deflection of the line east of range 39, and after they were filed with the commissioner, and about May 8, 1858, the map of the line east of range 39 was approved by the secretary of the interior, and he withdrew from market the odd sections east of that range within 15 miles of the line of the railroad as it was shown upon this map, but he took no further action with reference to that portion of the line west of range 38 and the lands appurtenant thereto. The public surveys were not extended over the lands lying along this line west of range 38 until 1867, 1868, and 1869, and then the deputy surveyors of the United States described the line, as it was staked upon the ground, and as it was shown by this map, in their field notes and plats of the surveys, and noted the distance of this line from the corners of the sections through which it extended. In 1864 the First Division of the St. Paul & Pacific Railroad Company had succeeded to the interest of the Minnesota & Pacific Railroad Company in these railroads and lands, and on May 8, 1864, its president wrote to the commissioner of the general land office that it desired to relocate the line of its railroad from range 38 to its western terminus, and to change that terminus from the mouth of Sioux Wood river to the foot of Big Stone Lake; that, as this portion of the line ran through unsurveyed lands, he supposed the department would not object to this change, and he inquired if legislative action would be, necessary to authorize it. On May 25, 1865, the commissioner replied that, inasmuch as the department had, in 1858, refused to accept the survey of this line west of range 38, there would be no objection to the change, provided the company withdrew its claim to the lands along that part of its route as shown on the map of 1857. In June, 1865, the governor of the state of Minnesota, at the request of the First Division of the St. Paul & Pacific Railroad Cómpany, called the attention of the secretary of the interior to the fact that the route of this railroad shown on the map of 1857 had been approved by his department to the west line of range 38 and no further, inquired of him whether or not it would be necessary to again file maps of the line of this railroad in order to obtain a withdrawal of the lands embraced within the provisions

of the act of March 3, 1865, and requested, if it was not necessary to do so, that the secretary would withdraw the lands embraced within the provisions of that act without the filing of other maps. The commissioner adhered to his former ruling, that no action could be taken on the line west of range 38 without the filing of a supplemental map, withdrew the lands east of range 39 covered by the act of March 3, 1865, but did not withdraw any of the lands west of range The line of the Hastings & Dakota Railway Company, it will be remembered, was definitely fixed through the lands here in question on June 26, 1867. On April 22, 1868, the secretary of the interior withdrew from market these and all other odd-numbered sections within 20 miles of its fixed line for the benefit of the Hastings & Dakota Railway Company. On April 16, 1868, the First Division Company wrote to the commissioner of the general land office that certain townships along its route west of range 38 had been surveyed, and requested him to take such action as to protect the company in its rights to all lands along its route. On May 4, 1868, the commissioner replied that if the company and the governor of Minnesota would officially accept the line laid down by the surveys of the United States on certain township plats as the line of definite location of the railroad, and would file such acceptance in the office of the commissioner, an immediate withdrawal of the lands granted by the acts of 1857 and 1865 to the extent of the surveys would be ordered. The company subsequently caused maps of the definite location of its line from range 38 west to Breckenridge to be filed. The line shown on these maps is the same as that shown on the map of December, 1857, to a point 6 miles south of Breckenridge, but it extends to that town, a point 6 miles beyond the terminus of the original line. On August 14, 1868, and, on May 25, 1869, the commissioner withdrew from market the lands along this line west of range 38 for the First Division Company. The Hastings & Dakota Company and the First Division Company duly constructed and operated their respective railroads, and each claimed the lands in question. The former insisted that these lands constituted a part of its granted lands under the act of July 4, 1866. The latter, and its successor, the St. Paul, Minneapolis & Manitoba Railway Company, the appellant, selected these lands on February 19, 1880, to supply deficiencies claimed to exist within the place limits of the grant of 1857 and of 1865, and claimed them as a part of its indemnity lands. The issues between these companies were tried before the commissioner of the general land office and the secretary of the interior, and were determined in favor of the Hastings & Dakota Company. Thereupon the lands. were certified to the state of Minnesota for that company, and were subsequently conveyed by the state to the appellee, who had succeeded to its rights.

The lands in question were within the primary limits of the grant of July 4, 1866, to the Hastings & Dakota Railway Company. The line of that road was definitely fixed on June 26, 1867. Unless these lands were excepted from that grant because they were then "reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any

:

object of internal improvement, or other purpose whatever" (14 Stat. 87, § 1), they passed by that grant to the Hastings & Dakota Company. The filing and approval of its map of definite location identified and segregated them from the public domain, and the grant of them then took effect as of the date of the act of congress which bestowed it. Smith v. Railroad Co., 7 C. C. A. 397, 406, 58 Fed. 513; U. S. v. Winona & St. P. R. Co., 15 C. C. A. 96, 67 Fed. 948, 966; Railroad Co. v. Baldwin, 103 U. S. 426; Grinnell v. Railroad Co., Id. 739; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389; Land Co. v. Griffey, 143 U. S. 32, 12 Sup. Ct. 362.

These lands were not within the place limits, but were within the indemnity limits of one or the other of the grants of March 3, 1857, and of March 3, 1865, to the predecessors of the appellant; but they had not been selected by any of the beneficiaries of these grants when the grant of July 4, 1866, took effect. Unless they had been withdrawn from market under the provisions of section 7 of the act of 1865, they were not reserved for either of the predecessors in interest of the appellant. "Until selection was made, the title remained in the government, subject to its disposal at its pleasure." U. S. v. Winona & St. P. R. Co., 15 C. C. A. 96, 67 Fed. 948, 967; Kansas Pac. R. Co. v. Atchison, T. & S. F. R. Co., 112 U. S. 414, 421, 5 Sup. Ct. 208; Barney v. Railroad Co., 117 U. S. 228, 232, 6 Sup. Ct. 654; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 408, 6 Sup. Ct. 790; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 511, 10 Sup. Ct. 341; U. S. v. Missouri, K. & T. Ry. Co., 141 U. S. 358, 371, 12 Sup. Ct. 13; Railroad Co. v. Forsythe, 15 Sup. Ct. 1020, 1023; Ryan v. Railroad Co., 99 U. S. 382; Railroad Co. v. Herring, 110 U. S. 27, 38, 39, 3 Sup. Ct. 485.

It is conceded that these lands had never been withdrawn from market by any act of the secretary of the interior or of any of the officers of the land department, as required by the seventh section of the act of March 3, 1865. The contention of counsel for the appellant, however, is that, by virtue of the facts we have recited, they were in legal effect withdrawn from market, and thus reserved to the United States to aid in the construction of the railroads of the appellant before the act of July 4, 1866, took effect. They base this contention upon two propositions: First, that the act of March 3, 1865, was in itself a statutory withdrawal of the lands; and, second, that if it was not, it imposed upon the secretary of the interior the absolute duty to withdraw them before the act of July 4, 1866, took effect, and that the wrongful omission of a public officer charged with the administration of the law to discharge an absolute duty imposed upon him thereby cannot prejudice the rights of their client.

A careful perusal of the act of 1865 is sufficient to dispose of the first proposition. That act was both a law and a contract. It was a contract between the United States, the state of Minnesota, and the First Division of the St. Paul & Pacific Railroad Company. It provided that:

"As soon as the governor of the state of Minnesota shall file or cause to be filed with the secretary of the interior maps designating the routes of said

roads and branches, then it shall be the duty of the secretary of the interior to withdraw from market the lands embraced within the provisions of this act."

Attempted judicial construction of the unequivocal language of a statute or a contract serves only to create doubt and to confuse the judgment. There is no safer or better settled canon of interpretation than that, when language is plain and unambiguous, it must be held to mean what it plainly expresses, and no room is left for construction. Knox Co. v. Morton, 15 C. C. A. 671, 68 Fed. 787, 789; U. S. v. Fisher, 2 Cranch, 358, 399; Railway Co. v. Phelps, 137 U. S. 528, 536, 11 Sup. Ct. 168; Bedsworth v. Bowman, 104 Mo. 44, 49, 15 S. W. 990; Warren v. Paving Co., 115 Mo. 572, 576, 22 S. W. 490; Davenport v. City of Hannibal, 120 Mo. 150, 25 S. W. 364. It was competent for congress to have provided that the lands embraced within the provisions of this act should be, and were, withdrawn from market by the passage of the act. They did not so enact, and no argument or illustration can make it clearer that they did not intend so to do than the apt and forceful language of the act itself, that as soon as the governor shall file the maps, then the secretary shall withdraw the lands. To hold that this effected a withdrawal of these lands without the filing of a map, or the action of the secretary, would be judicial legislation of a character too radical for us to undertake to enact.

As to the second proposition, it may be conceded that one who diligently prosecutes and consistently demands his right, and does all that the law requires him to do to assert and protect it, cannot be deprived of it by the wrongful omission of the officer charged with the administration of the law to discharge an absolute duty imposed upon him thereby. Lytle v. Arkansas, 9 How. 314, 333; Shepley v. Cowan, 91 U. S. 330, 338. But it goes without saying that one who would invoke this principle must be without fault or negligence himself. He must diligently and consistently demand his right. He must have performed every act that he could himself perform to protect and enforce it under the law or contract upon which he relies, and he must have placed and have maintained himself in a position in which he had the right to demand of the officer the discharge of his duty. His waiver of his right to demand its discharge, his consent or agreement that it shall not be discharged, his election to accept benefits or privileges that result from the failure to discharge it, will be fatal to his right to invoke the principle here relied upon. Did the First Division of the St. Paul & Pacific Railroad Company, then, at any time before the act of July 4, 1866, took effect, attain to the position where it had the right to demand of the secretary of the interior a withdrawal from market of these indemnity lands west of range 38 under the act of 1865? That act was, as we have said, a contract between the United States and the First Division Company. It was a contract that, as soon as the governor of Minnesota should file maps designating the route of the main line of its railroad, but not before, the secretary would withdraw these lands. It was as binding and effective a contract that the lands should remain public lands, subject to the disposal