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homestead sellers, preëmpted or otherwise disposed of," shows that Congress did not intend to include in but intended to exclude from the grant to that company any lands that could have been earned by the Northern Pacific Railroad Company by definitely fixing its route and filing its map of definite location. Undoubtedly those lands would be regarded as having been appropriated when the route of the Oregon road was definitely located, if prior to that date the route of the Northern Pacific Railroad had been definitely fixed, and if such lands were within the exterior lines of that route. But, as we have said, these lands were within the limits of the grant of July 25, 1866, and had not, at that time, or when the route of the Oregon road was definitely located, been appropriated for the benefit of the Northern Pacific Railroad Company, for the reason that the latter company had not then filed any map of definite location. The Northern Pacific Railroad Company could take no lands except such as were unappropriated at the time its line was definitely fixed. It accepted the grant of 1864 subject to the possibility that Congress might, before its line was definitely fixed, authorize other railroad corporations to appropriate lands within its general route, allowing it to select other lands in lieu of any so appropriated. The lands here in dispute were consequently subject to be disposed of by Congress when the act of 1866 was passed; and (the line of the Northern Pacific Railroad not having been definitely located prior to the passage of the forfeiture act of 1890) the Oregon Company became entitled to take the lands and to receive patents therefor in virtue of its accepted map of definite location.

Touching the joint resolution of May 31, 1870, it is clear that whatever may be its scope, no previously vested right of the Oregon Company was affected or was intended to be affected by that resolution. On the contrary, the resolution on its face indicates that some of the lands which the Northern Pacific Railroad Company may have been entitled to earn had been or might have been granted or otherwise disposed of "subsequent to the passage of the act of July 2, 1864," and in lieu thereof that company was authorized under the direction.

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of the Secretary of the Interior to receive other lands. The only effect therefore of the joint resolution, as between the Northern Pacific Railroad Company and the Oregon Company, was to confer upon the former company the right to receive other lands in lieu of those appropriated by the latter company under the authority of the act of 1866.

Passing by as unnecessary to be determined other questions discussed by counsel, we adjudge that the Circuit Court erred in cancelling the patents referred to in the bill, and that the reversal by the Circuit Court of Appeals of the decree of the Circuit Court and the remanding of the cause with directions to dismiss the bill was right.

The decree of the Circuit Court of Appeals is

Affirmed.

MR. JUSTICE MCKENNA did not participate in the decision of this case.

WILCOX v. EASTERN OREGON LAND COMPANY.

APPEAL FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT.

No. 23. Submitted November 15, 1897. Decided January 8, 1900.

The judgment in this case affirmed upon the authority of United States v. Oregon and California Railroad Company.

THE facts are stated in the opinion. The case was submitted November 15, 1897, and was, on the 29th of the same month, postponed until The United States v. Oregon & California Railroad Co., ante, 28, should be heard.

Mr. John M. Geavin for appellant.

Mr. James K. Kelly for appellees.

MR. JUSTICE HARLAN delivered the opinion of the court.

This case depends in part upon the construction of the act of Congress of July 2, 1864, 13 Stat. 365, c. 217, in aid of the

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construction of the Northern Pacific Railroad. The provisions of that act, so far as they are material to the present controversy, are fully set forth in the opinion in United States v. Oregon & California Railroad Company, just decided.

By an act of February 25, 1867, Congress, in aid of the construction of a military wagon road in Oregon from Dalles City on the Columbia River, by way of Camp Watson, Canyon City and Mormon or Humboldt Basin, to a point on Snake River opposite Fort Boise in Idaho Territory, granted to the State of Oregon "alternate sections of public lands designated by odd numbers to the extent of three sections in width on each side of said road: Provided, That any and all lands heretofore reserved to the United States or otherwise appropriated by act of Congress or other competent authority, be and the same are hereby reserved from the operation of this act, except so far as it may be necessary to locate the route of said road through the same, in which case the right of way to the width of one hundred feet is granted: And provided further, That the grant hereby made shall not embrace any mineral lands of the United States." 14 Stat. 409, c. 77.

Other sections of that act are as follows: "§ 2. That the lands hereby granted to said State shall be disposed of by the legislature thereof for the purpose aforesaid, and for no other; and the said road shall be and remain a public highway for the use of the Government of the United States, free from tolls or other charges upon transportation of any property, troops or mails of the United States." "§ 4. That the State of Oregon is authorized to locate and use in the construction of said road an additional amount of public lands, not previously reserved to the United States nor otherwise disposed of, and not exceeding ten miles in distance from it, equal to the amount reserved from the operation of this act in the first section of the same, to be selected in alternate odd sections as provided in section first of this act. § 5. That lands hereby granted to said State shall be disposed of only in the following manner, that is to say, when the governor of said State shall certify to the Secretary of the Interior that ten continuous miles of said road are completed, then a quantity of the

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land hereby granted, not to exceed thirty sections, may be sold, and so on from time to time until said road shall be completed; and if said road is not completed within five years, no further sales shall be made, and the lands remaining unsold shall revert to the United States. § 6. That the United States surveyor general for the district of Oregon shall cause said lands so granted to be surveyed at the earliest practicable period after said State shall have enacted the necessary legislation to carry this act into effect."

Subsequently, by an act approved October 20, 1868, the State of Oregon granted to the Dalles Military Road Company all the lands, right of way, rights, privileges and immunities granted or pledged by the above act of February 25, 1867, "for the purpose of aiding said company in constructing the road mentioned and described in said act of Congress upon the conditions and limitations therein prescribed." The State also, by the same act, granted and pledged to that company "all moneys, lands, rights, privileges and immunities which may be hereafter granted to this State to aid in the construction of such road for the purposes and upon the conditions mentioned in said act of Congress, or which may be mentioned in any further grants of money or lands to aid in constructing said road," and authorized it to locate the lands mentioned in the fourth section of the act of Congress, subject to the approval of the Governor. Sess. Laws 1868, p. 3.

The material facts out of which the present suit arises are alleged in the bill, and are substantially admitted in the answer. They are as follows:

Prior to June 23, 1869, the Dalles Military Road Company had duly surveyed and definitely located its line of road between the points designated by Congress and the State; had fully constructed and completed its road, and had filed in the office of the governor a plat or map upon which was traced and shown the definite location of the road from Dallas City to its terminus on Snake River, as well as the limits of the place and indemnity lands embraced by the act of Congress.

On the 23d day of June, 1869, the Governor certified that

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such plat or map had been duly filed in his office, and that it showed the route upon which the road was constructed in. accordance with the above acts of Congress and of the legislature of Oregon; also, that he had made a careful examination of the road since its completion, and that the same had been built in all respects as required by those acts and had been accepted.

The above map and the certificate of the Governor were filed by the company in the office of the Secretary of the Interior, and on December 18, 1869, the Commissioner of the General Land Office, by order of the Secretary, withdrew from sale in favor of the company the odd-numbered sections within three miles from each side of the wagon road as delineated and shown on the maps so filed.

By an act of Congress approved June 18, 1874, it was provided that "in all cases when the roads in aid of the construction of which said lands were granted are shown by the certificate of the Governor of the State of Orgeon, as in said. acts provided, to have been constructed and completed, patents for said lands shall issue in due form to the State of Oregon as fast as the same shall, under said grants, be selected and certified, unless the State of Oregon shall by public act have transferred its interests in said lands to any corporation or corporations, in which case the patents shall issue from the General Land Office to such corporation or corporations upon their payment of the necessary expenses thereof: Provided, That this shall not be construed to revive any land grant already expired nor to create any new rights of any kind except to provide for issuing patents for lands to which the State is already entitled." 18 Stat. 80, c. 305.

On the 31st day of May, 1876, Edward Martin, in good faith and for a valuable consideration, $125,000, purchased from the Military Road Company all the lands embraced in the grant to it, except such as it had previously sold, and received a conveyance thereof. Bad faith is not imputed to Martin, and it is only claimed that when he purchased those lands he was chargeable with constructive notice of the acts of Congress, and that no title could pass to the Military Road Company