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v. Railway Co., (97 U. S., 491); but when so vested, the title to the particular tracts took effect, under the doctrine of relation, as of the date of the grant, only for the purpose of cutting off intervening claims, Leav enworth, Lawrence and Galveston R. R. v. United States (supra); Railway Co. v. Railway Co., (supra); Van Wyck e. Knevals (106 U. S., 360); Railroad Co. v. Barney (113 U. S., 618). This being the language, intention, and legal effect of the Pacific Railroad act, it follows that the grant took effect on lands which were public at the date of definite location, notwithstanding they may have been within the out-boundaries of a private land claim at the date of the grant.

The remaining question for consideration, in the case before me, concerns the date when the line of the Western Pacific road is to be regarded as "definitely fixed." There are four dates to be selected from, as the record indicates, namely, that of filing the map of the entire and completed road, that of filing the map of the general route, that of surveying the line in the field, and that of acceptance by the Presi dent of the maps showing the completed sections of road. These I will consider in their order.

February 1, 1870, is the date upon which a so called map of definite location was filed in the Land Department, and it was subsequently to the construction and the acceptance by the President of the entire line. This date is offered as that upon which title passed to the company. The granting act does not in terms require that a map of definite location shall be filed; it provides that title in the granted sections shall vest when the road is "definitely fixed;" and to hold that it does not vest until a certain map is filed, though this be not filed for days or years after the road is completed and accepted by the President, would be unreasonable. In all the railroad-granting acts which contemplate a map of definite location, it is plainly a map which was to be filed prior to the construction and acceptance of the entire line that was in the mind of Congress. In this manner the company might anticipate the time of actual construction, and check further appropriation of the land. When the road was actually constructed and approved, as provided in the act, the granted lands were legally earned and the company entitled to patent for them; and it would be absurd to hold that title to them could not vest until some subsequent period, and by the mere filing of a map called " a map of definite location."

December 8, 1864, the day upon which the map of general route was filed in the General Land Office, is offered as the date when the line was definitely fixed. If this map was filed as the map of "general route"-and the records show clearly that it was so regarded by all parties when it was filed-then it cannot be the map of "definite location." Section 7 of the granting act distinguishes between general route and definite location, and the supreme court have, in Railway Co. r. Dunmeyer (113 U. S., 636), distinguished between the two maps and ascribed to each a different purpose and value. It has been supposed by some that the last-named case is inconsistent with the case of New

hall . Sanger (92 U. S., 761), which ruled that title there did not pass because the land was appropriated on January 31, 1865, by a withdrawal made upon the map of general route; but an examination of the records of the court discloses the fact that the pleadings and arguments before the court treated the map of general route as the map of definite location, and conceded that the road was definitely fixed prior to said withdrawal. Wherefore the case of Newhall v. Sanger cannot be regarded as ruling that title in the company vested on filing the map of general route. Another ground, however, is urged in favor of this date, to wit, that the road was afterwards built substantially on the line of the map of general route, and, as no other map was filed prior to actual construction, this must be regarded as the map of definite location. Conceding the alleged facts, it must be apparent that, as the map was originally a map of general route, it must be shown that it was afterwards offered by the company and accepted by the Land Department as a map definitely locating the line in order that it may be so regarded. There is nothing in the record indicating that such a disposition of it was made, or that the company ever regarded itself as bound by it otherwise than as a map of general route. The question of the kind of map filed is one of fact and not of law, and there are no facts before me warranting me in finding that the map of definite location of the Western Pacific Company was filed on December 8, 1864.

The dates of actual survey in the field, in 1866 and 1863, are also of fered as the dates when the line of the road was definitely fixed. Such was the early ruling of the Land Department (1 C. L. L., 361), but it was changed by the decision in Van Wyck v. Knevals (106 U. S., 360), which held that the route of a road is to be regarded as "definitely fixed" when it ceases to be the subject of change by reason of the company's filing a map finally indicating it. This ruling has been affirmed by the Court in several succeeding cases, namely, in Railroad Co. v. Herring (110 U. S., 27), Walden v. Knevals (114 U. S., 373), and Railway Co. v. Dunmeyer (113 U. S., 629). In the last-named case, which involved the Pacific Railroad grant, the court expressly say: "We are of opinion that under this grant, as under many other grants containing the same words, or words to the same purport, the act which fixes the time of definite location is the act of filing the map or plat of the line in the office of the Commissioner of the General Land Office." So long as this ruling stands the Land Department is bound by it, and must refuse to find that the road was definitely fixed at date of survey in the field. The fourth and last date suggested is that on which the President accepted the map of the constructed road, and this, in my judgment, must in this case be taken as the date when the company's title to the granted sections vested. The ground upon which the supreme court has determined that the date of filing the map for that purpose is the date of definite location is "the necessity of having certainty in the act fixing this time." When certainty as to the line of the road is attained by an approved map filed for the purpose of showing the line as finally

fixed, it is evident that the ruling of the court is satisfied, whether or not the map be technically designated a map of definite location. It is the fact that the line is thus definitely fixed for the first time, and not the name by which the map definitely fixing it may be known, that constitutes the certainty; and from that instant, in contemplation of the granting act, title to the granted sections vests in the company. Now, the Western Pacific road did not file the usual map of definite location prior to construction, and the first date upon which the line of the road appears to be fixed with certainty is that on which the President accepted the maps of the constructed road. By said acceptance, there is no doubt, the road became definitely fixed, and hence said dates must be taken as the dates when title to the granted lands vested in the company.

In the case of the Western Pacific Company there were four such dates, on which the President accepted the four completed sections of the road between San Jose and Sacramento. The last of said sections, to wit, 20.16 miles, was accepted on January 21, 1870, and it is opposite to this section of the road and within the granted limits that the land herein in controversy lies. From what has heretofore been said, it is clear that this tract had been segregated from the Rancho San Lorenzo, and was public land at the time the line of the Western Pacific road was definitely fixed, and that consequently it passed to said company and its successors under the grant.

Your predecessor's decision is affirmed.

RAILROAD GRANT-INDEMNITY SELECTION.

WISCONSIN R. R. FARM MORTGAGE LAND Co.

Under a grant of lands to a State for the purpose of aiding internal improvement, the application of the lands, or the proceeds of the same, to the trust, rests in the good faith of the State, and in the absence of statutory authority, the Department cannot control the discretion of the State in the disposal of said lands. No action has been taken by legislative or judicial proceeding to enforce a forfeiture of the grant under which this company claims, hence the lands therein granted have not reverted to the United States, though the road was not constructed within the period prescribed.

The right of this company as the legal successor to all the benefits acquired by the State under the original grant, and the amendments thereto, was recognized in a decision of a federal court having full jurisdiction of the question, and such decision will be accepted as authoritative, and warranting the adherence of the Department to its former like determination.

It is accordingly held, in the absence of statutory direction requiring the application of the co-terminous principle, that for lands lost in place, opposite the southern part of the road, constructed within the time specified in the original grant, the State is entitled on behalf of the company to select and receive lieu lands from the indemnity limits in the northern half of said grant.

As in the construction of a statute the obvious purpose thereof should not be defeated by literal interpretation, the word "and" is construed "or."

2278 DEC-6

OPINION.

Mr. Vivian Brent, of the Assistant Attorney General's Office, to Secre tary Lamar, August 13, 1886.

By your reference, I have considered the appeal of the State of Wisconsin from the decision of the Commissioner of the General Land Office of May 27, 1886, refusing its application to have certified to it, for the benefit of the Wisconsin Railroad Farm Mortgage Land Company, certain indemnity lands selected under the act of June 3, 1856 (11 Stat., 10), and holding said selections for cancellation.

That act of Congress granted to the State, " for the purpose of aiding in the construction of a railroad from Madison or Columbus by way of Portage City to the St. Croix river. . . . . thence to the west end of Lake Superior and to Bayfield," every alternate (odd numbered) section to the width of six sections on each side of said road. In case of loss of any of said granted lands, the State was authorized to select, subject to the approval of the Secretary of the Interior, land sufficient to make up said losses "from the lands of the United States nearest to the tier of sections above specified," and within fifteen miles from the line of said road. Said lands were to be held by the State for the purposes of the grant. One hundred and twenty sections included in a continuous line of twenty miles of the road could be sold, and thereafter on the completion of twenty miles of the road then a like quantity of land might be sold, with the approval of the Secretary of the Interior; and so on, until the completion of the whole road. But it was declared that, if said road was "not completed within ten years, no further sales shall be made and the land unsold shall revert to the United States."

The State accepted the grant and in October of the same year conferred the whole, with right to build the entire line of road, upon the Milwaukee and La Crosse Railroad Company, making Madison the initial point of the road. The company accepted the grant, and, in order to raise money to build with, issued bonds, secured by mortgage, upon its franchises and the lands to which it would be entitled, and commenced the construction of the road, beginning at Portage and working westward towards the St. Croix river via Tomah. On March 6, 1857, with the approval of the State, the La Crosse and Milwaukee Company transferred to the St. Croix and Lake Superior Railroad Company the right to build that portion of the road running northward from the St. Croix river to Lake Superior and Bayfield, assigning also the right to that portion of the Congressional grant applicable to the same. But in the contract between the two companies the right of the La Crosse and Milwaukee Company to select lands within the indemnity limits of the other company north of the St. Croix river, for lands lost be tween Madison and the St. Croix river, was not surrendered or released, but expressly reserved to the first named company.

The maps of definite location of the entire route from Madison to

Lake Superior were filed at different times prior to July 17, 1858, and in the spring preceding the road between Portage and Tomahsixty-one miles-was completed and has been in use ever since. It is with this sixty one miles of completed road and the right to select indemnity lands for it north of the St. Croix river for those lost along its line that we are concerned.

The La Crosse and Milwaukee Company, having made default in the payment of its bonds, the mortgage to secure the same was foreclosed in the United States circuit court, the mortgaged property-including the interest of the company in the Congressional grant-was sold and deeded by the marshal to Wallace and White, who, on May 5, 1863, conveyed the same to the Milwaukee and St. Paul Railroad Company, who thus became owner of the sixty-one miles of completed road from Portage to Tomah and of the claim for lands earned by the construction thereof.

At this time, with the approval of the State, the entire line of the road from Madison and Columbus via the St. Croix river to Lake Superior and Bayfield had been allotted to and the grant of lands appli cable thereto had become vested in several different companies for the construction of the specified portions of the routes, as follows, viz: that portion from Madison to Portage to the Sugar River Valley Railroad Company (afterwards the Madison and Portage); that portion from Portage to Tomah to the Milwaukee and St. Paul (by purchase); that portion from Tomah to the St. Croix river to a company of that name (afterwards the West Wisconsin Company); that portion from the St. Croix river to Lake Superior and Bayfield to the St. Croix and Lake Superior Company. This latter grant being subject to the reservation of the right of the La Crosse and Milwaukee Company to select indemnity lands north of the St. Croix river; but with exception of said sixty-one miles no part of said roads had been constructed. Matters were in this condition when Congress passed the act of May 5, 1864 (13 Stat., 66). The bill as originally reported from committee to and passed by the Senate made the grant direct to the St. Croix and Lake Superior and the Tomah and St. Croix Railroad Companies, to aid in the construction of their respective roads. In the House the bill was so amended as to conform to the act of 1856, making the grant to the State of Wisconsin, and as amended became a law.

This act did not provide for the construction of one continuous line of road, as did the act of 1856, from Madison via the St. Croix river to Lake Superior, but by the first section provided for the construction of a road from the St. Croix river northward to Lake Superior and Bayfield, and by its second section for a road from Tomah to the St. Croix river. The two sections are almost identical in language, and give in aid of each road the odd numbered sections to the width of ten sections on each side of each road, "deducting any and all lands that may have been granted for the same purpose by act of Congress of June 3, 1856,

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