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of the United States, at its pleasure, until such maps should be filed, as it was that the lands should be withdrawn as soon as they were filed. In view of this fact, it is a conclusive answer to this claim of the appellant that the governor never did file any such maps until after the United States had granted the lands here in dispute to the Hastings & Dakota Company by the act of 1866. No duty to withdraw the lands could be imposed upon the secretary until such maps were filed. The governor was in reality the agent of the company to file them. It was in its power to cause him to file them at any time after the passage of the act of 1865. It did not do so until after these lands had been granted to the Hastings & Dakota Company by the act of 1866. It was not, therefore, through the failure of the secretary to discharge his duty, after the company had caused the maps to be filed, and had done all in its power to perfect its rights, but it was through the failure of the company itself to have the maps filed, pursuant to the terms of the act and the contract under which it claims, that these lands were not withdrawn from market until they were granted to the Hastings & Dakota Company.

It is argued that, when the act of 1865 was passed, the route of this road was designated, and its line was definitely fixed past these lands by the map of 1857, and that it was the duty of the secretary to withdraw the lands without the filing of any other map. The answer is that such was not the contract. If it could be conceded that the route of this road west of range 38 was designated, or was definitely fixed, by the map of 1857, the presumption would be that the contracting parties all knew that fact in 1865, when the contract of withdrawal was made. They might have agreed, and congress might have enacted, that the secretary should immediately withdraw these lands upon the route designated by that map. It was equally competent for them to agree that these lands should remain as they were, subject to the disposal of the United States, until the governor should at some future time file other maps designating the route of this road. They did not make the former, and they did make the latter, contract. It is not the province of the courts to change it. Moreover, there was good reason for making the latter contract, so far as it relates to that part of this line which lies west of range 38. It was certainly by no means clear from the records of the land department-it evidently was not clear to the parties themselves, in 1865, when this act was passed—that the route upon which the First Division Company intended to build its railroad was designated or definitely fixed west of range 38 by the map of 1857. When that map was filed the commissioner of the general land office had suspended action on that part of the line shown by it east of range 39, because of its wide deflection from a direct line from St. Anthony to Breckenridge, and had informed the company that, of course, no action could be taken on the line on the unsurveyed lands west of range 38 until a supplemental map was filed exhibiting that portion of the line in connection with the public surveys. Conceding that the commissioner could not lawfully reject or refuse

to accept the designation of the line west of range 38, solely on the ground that the lands through which it extended were not surveyed, if the company had insisted upon his acceptance thereof, there is no doubt, we think, that it was within the power, and that it was the duty, of the commissioner to investigate and determine whether or not this railroad was located in good faith on a line as direct as the topography of the country would permit, or was unnecessarily deflected to increase the land grant, and that his ruling suspending action upon this map until this deflection was satisfactorily explained was a rightful exercise of his authority. Buttz v. Railroad Co., 119 U. S. 55, 72, 7 Sup. Ct. 100. The railroad company acquiesced in his entire ruling without protest, prepared proofs that the deflection of the line east of range 39 was rendered necessary by the character of the country, obtained the approval of that part of the line in May, 1858, and silently accepted the rejection of the map of that part of the line west of range 38 without question. That portion of the line remained in this situation until 1864, when the president of the First Division Company wrote to the commissioner of the land department that the company desired to relocate its line 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 part of the line passed through a district not yet subdivided, he had supposed that the general land office would interpose no objection to its relocation, and he inquired whether the change could be made without further legislation. The commis. sioner replied that, inasmuch as the department had refused to accept the survey of the line west of range 38, shown on the map of 1857, there would be no objection to its relocation if the company relinquished its claim to the lands along the route shown on the map of 1857.

Under the land-grant acts, a line of railroad becomes definitely fixed when the beneficiary no longer has the right to change it without legislative action. Walden v. Knevals, 114 U, S.. 373, 374, 5 Sup. Ct. 898. The commissioner then had refused to accept the map of 1857 as a map of the definite location of this line west of range 38, and the company had acquiesced in that ruling. In 1864 the contracting parties under the act of 1857 had agreed in the opinion that that part of the line west of range 38 was not definitely fixed by the filing of that map, that the company might relocate it without legislation, and the company had given notice that it desired so to do. This was the condition of this part of the line when the act of 1865 was passed, and it certainly furnishes ample reason for the provision of that act that the governor should file another map designating the route on which the company intended to build before the secretary should withdraw the land.

Moreover, we are unable to reach the conclusion that that portion of this line of road west of range 38 was definitely fixed by the proceedings to which we have referred. The line of a railroad under any one of these acts granting lands in aid of its construction undoubtedly becomes fixed by the filing and acceptance, or the

v.71 F.no.1-4

filing and receipt without objection, of its map of definite location. Van Wyck v: Knevals, 106 U. S. 360, 366, 1 Sup. Ct. 336; Walden v. Knevals, 114 U. S. 373, 5 Sup. Ct. 898; Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. 654; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566; Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. 100; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 18, 11 Sup. Ct. 389.

It may be conceded that the filing of a proper map of the definite location of a line over unsurveyed lands might definitely fix that line, in case the commissioner rejected it on the sole ground that the lands were unsurveyed, and the railroad company immediately and diligently insisted upon its right to have it accepted, objected to or protested against the ruling rejecting it, and consistently maintained that claim. But it cannot, in our opinion, be successfully maintained that a company may accept without a murmur a ruling rejecting its map of definite location, may 6 years later agree with the officers of the land department in the opinion that its line is not definitely fixed by the filing of the map rejected, may on that ground ask and receive from the department permission to relocate its line and change its terminus without legislation, may act upon this assumption for years, and, after its own and conflicting land grants have been administered with this view for more than 20 years, insist that its line was detinitely fixed by the filing of its rejected map, on the ground that the error of the commissioner could not affect its rights. This is the case in hand, and it lacks, in our opinion, the elements of diligence and consistency that are essential to warrant the First Division Company or its successor in invoking the principle upon which it relies.

Finally, it is insisted that the letters of the governor of Minnesota in June, 1865, were an adoption of the map of 1857 as a map designating the route of this railroad west of range 38, under the act of 1865, and that his demand in his letter of June 7, 1865, of a withdrawal of the public lands granted by that act to the state of Minnesota to aid in the construction of the railroads imposed upon the secretary the absolute duty to immediately withdraw the lands in dispute. There are two bjections to the maintenance of this proposition: First. It was not the contract of 1865 that the secretary of the interior would withdraw these lands when the governor of the state of Minnesota adopted the rejected map on file. That contract was that, as soon as the governor filed maps designating the routes, the secretary should withdraw the lands. This was a condition precedent to the imposition of any duty of withdrawal upon the secretary. The adoption of the old map was not a compliance with this condition. Second. The governor did not specifically adopt the map of 1857 west of range 38, and demand a withdrawal of the lands based upon the line shown by that map. His letter that is said to be an adoption of that line reads:

"Hon. James Harlan, Secretary of the Interior, Washington, D. C.-Sir: I respectfully inclose copy of a communication from George L. Becker, Esq., president First Division St. Paul & Pacific Railroad. In compliance with bis request, I respectfully inquire whether it is necessary to again file maps

of certain lands, designated in his said letter of the 2d instant, in order to obtain a withdrawal of the lands embraced within the provisions of the act approved March 3, 1865, and if it is not I have the honor to request the withdrawal of the lands upon the route of said St. Paul & Pacitic Railroad and its branches, as designated upon the map already tiled in your department. "Very respectfully, your obedient servant,

"Stephen Miller, Governor of Minnesota." In view of the facts that the commissioner had notified the railroad company, in 1857, that no action could be taken as to the line west of range 38, on the map filed in that year, until a supplemental map was filed, that the company had notified the commissioner that it intended to change this part of its route, and he consented to the change, and that the act of 1865 expressly required the filing, after its passage, of maps designating the route of this railroad before the lands were withdrawn, it is difficult to find anything in the simple inquiry contained in this letter which adopted the rejected map, or imposed upon the secretary any duty to withdraw the lands upon the route which it exhibited west of range 38. That the commissioner did subsequently withdraw the lands along the portion of the line east of range 39, which had been definitely fixed in 1858, without the filing of a new map of that portion of the route, imposed upon him no duty to withdraw them upon the portion of the line which had been rejected. The provision of the contract that maps designating the routes should be filed after its passage before the secretary should be required to withdraw the lands, was a provision for the benefit of the United States. The governor or the secretary might undoubtedly waive that provision in whole or in part, but neither of them was obliged to waive it, and no duty of withdrawal could be imposed upon them, without their consent, without a full compliance with its terms.

Our conclusion is that the First Division of the St. Paul & Pacific Railroad Company, through its failure to cause the governor of Minnesota to file maps designating that part of the route of its main line west of range 38, did not reach a position in which it had the right to demand from the secretary of the interior a withdrawal of the indemnity lands pertaining to that portion of the line of its railroad west of range 38, under the act of March 3, 1865, before the act of July 4, 1866, took effect, and the grant contained in that act attached to the specific lands here in question by the definite location of its line on June 26, 1867. The lands here in question, therefore, were not withdrawn from market, and were not reserved or excepted from the grant for the Hastings & Dakota Railway Company by the act of July 4, 1866. A consideration of the terms and effect of the latter act lends strong support to the conclusion we have reached. That act was a grant and a law, and its interpretation ought to be such as to effect the intent of congress in its enactment. By its terms congress granted the lands here in question to the state for the Hastings & Dakota Railway Company, excepting from the grant those lands only which were reserved to the United States for the purposes therein stated. By the act of March 3, 1865, congress had provided that, when the First Division Company should file its maps designating the routes of its railroads, the secretary of the interior

should withdraw these lands from market. They had provided that way, and that way only, for their reservation. None of these lands had been so reserved when the act of 1866 was passed. Thereupon, excepting from the grant, not the lands which might be, or might have been, or ought to have been, reserved, but only those already reserved, they granted these lands to the state for the Hastings & Dakota Company. There seems to be no escape from the conclusion that they intended to reserve from this grant that part of the lands here in question which had been withdrawn from market, by the officer appointed, and in the manner designated, by the act of 1865 for their reservation, and that part only. As none of these lands had been so withdrawn or reserved, none of them were excepted from the grant. In Railroad Co. v. Whitney, 132 U. S. 357, 366, 10 Sup. Ct. 112, the supreme court said of the rulings of the officers of the land department:

"It is true that the decisions of the land department on matters of law are not binding upon this court, in any sense. But on questions similar to the one involved in this case they are entitled to great respect at the hands of any court. In U. S. v. Moore, 95 U. S. 760, 703, this court said: "The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration, and ought not to be overruled without cogent reasons. * * * The officers concerned are usually able men and masters of the subject. Not unfrequently they are the draftsmen of the laws they are afterwards called upon to interpret.' See, also, Brown v. U. S., 113 U. S. 568, 571, 5 Sup. Ct. 618, and cases there cited; U. S. v. Burlington & M. R. R. Co., 98 U. S. 334, 341; Kansas Pac. R. Co. v. Atchison, T. & S. F. R. Co., 112 U. S. 414, 418, 5 Sup. Ct. 208."

It is a gratifying fact that the officers of the land department, in their consideration of the questions involved in this suit, reached the same conclusion at which we have arrived. Mattson v. Railway Co., 5 Land Dec. Dep. Int. 356, 699; St. Paul, M. & M. Ry. Co. v. Hastings & D. Ry. Co., 13 Land Dec. Dep. Int. 440.

The conclusion we have reached upon the first question presented in this case renders the discussion of any other question unnecessary, since the decree below must be atfirmed, with costs, whatever our opinion might be upon the other question presented. It is, accordingly, so ordered.


(Circuit Court, S. D. Ohio, W. D. December 28, 1895.)

No. 4,841.


A bill filed to foreclose a lien for money due for machinery furnished to a street-railway company claimed a lien upon all the real estate, rolling stock, and track of the company. It appeared that the property was worth more than $100,000, and that the building in which the machinery furnished was erected was worth more tban $24,000, and that it contained other machinery worth $5,000. Held, that the court would not issue a preliminary injunction to restrain the company from removing the machinery from the building in which it was placed on the ground that this would lower the value of the property subject to the lien, so as to constitute waste.

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