judgment of the circuit court for not allowing the set-off pleaded by the defendants in that case, and approved the decision of the circuit court for the eastern district of Pennsylvania in the case of Yardley v. Clothier, 49 Fed. Rep. 337, which was an action like the one at bar, and in which a similar defense was sustained. Considering what was done, notwithstanding what was said by the supreme court, I feel warranted in following Yardley v. Clothier. The demurrer is therefore overruled, and, the plaintiff having elected to stand upon his demurrer, a judgment in favor of the defendant for costs will be entered. UNITED STATES v. OREGON & C. R. CO. et al. (Circuit Court, D. Oregon. September 8, 1893.) 1. PUBLIC LANDS-RAILROAD GRANT-NORTHERN PACIFIC-EXTENT OF GRANT. Act of July 2, 1864, (13 Stat. 365,) which authorized the construction of the Northern Pacific Railroad from Lake Superior westerly to some point on Puget sound, with a branch via the valley of the Columbia river to a point at or near Portland, Or., granted lands in aid of the construction on each side of "said railroad line." Held, that the grant extended to the road with its branch, and not merely to the main trunk line. * The grant to the Northern Pacific Railroad was of "every alternate section of public land, not reserved, sold, granted * at the time the line of road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office." Held, that the reservation of "granted" lands was not made in contemplation of a subsequent grant of the same lands to the Oregon & California Railroad. 3. SAME-GRANT IN PRÆSENTI. The grant of land to the Northern Pacific Railroad conveyed a present. title, subject to the right of the United States to re-enter on failure of the railroad to comply with conditions subsequent, and made the land so conveyed "granted" land, within the operation of the subsequent grant to the Oregon & California Railroad, which also reserved "granted" land. 4. SAME-PRIORITY OF GRANT. The grant of lands to the Oregon & California Railroad did not gain a priority over the grant to the Northern Pacific Railroad, either by the fact that the Oregon & California Railroad filed its map of definite location, constructed a portion of its road, and received patents for the land, before the maps of the line of the Northern Pacific Railroad, showing the conflict of grants, were filed, or by the fact that no portion of the Northern Pacific was finally constructed on the line of such maps. In Equity. Suit by the United States against the Oregon & California Railroad Company, John A. Hurlburt, and Thomas L. Evans to cancel patents, and restore land to the public domain. Defendants demur. Demurrer overruled. Daniel R. Murphy and John M. Gearin, for the United States. GILBERT, Circuit Judge. By act of congress of July 25, 1866, a grant of lands was made to the Oregon & California Railroad Company to aid in the construction of a line of railroad within the state of Oregon, beginning at Portland, and running thence to the southern boundary of the state; thence to connect with a proposed line of railroad in California running from the state line to a point of connection with the Central Pacific Railroad, in the Sacramento valley. The grant was made in the usual form, and covered every alternate section of public land, not mineral, designated by odd sections, to the amount of 10 sections per mile on either side of the line, reserving therefrom lands granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of, for which lands, indemnity was to be allowed as provided in the act. Under the provisions of this act the beneficiary filed its map of definite location for a distance of 60 miles south of Portland on October 29, 1869, and upon January 31, 1870, the lands within the grant for that distance were by the secretary of the interior withdrawn from settlement. A portion of the road was thereupon constructed, and commissioners were appointed to examine and report thereon. On December 31, 1869, the commissioners reported that the road had been duly built for the first 20 miles south from Portland. On September 28, 1870, the commissioners reported the due construction of the next 20 miles. Both these reports were approved by the president, and patents for the lands coterminous with the completed road were issued to the Oregon & California Railroad Company, of dates May 9, 1871, July 12, 1871, June 22, 1876, and June 18, 1877. The United States brings this suit to cancel said patents, and to restore said lands to the public domain, upon the ground that the lands were not within the grant to said railroad company, and said patents were erroneously issued. There is involved in the suit, approximately, 100,000 acres of patented lands, and 120,000 not patented. The merits of the controversy are presented upon a demurrer to the bill. It is the contention of the United States that the lands were the subject of a grant to the Northern Pacific Railroad Company prior in date to the grant to the Oregon & California Railroad Company, and that, therefore, they were not included in the grant to the latter company, but were, upon the other hand, expressly excluded therefrom by the words of reservation, whereby prior "granted" lands were taken out of the operation of the later grant. On the 2d day of July, 1864, by act of congress, the Northern Pacific Railroad Company was incorporated. 13 Stat. 365. A portion of section 1 provides as follows: "And said corporation is hereby authorized and empowered to lay out, locate, construct, furnish, maintain and enjoy a continuous railroad and telegraph line with the appurtenances namely, beginning at a point on Lake Superior in the state of Minnesota or Wisconsin; thence westerly by the most eligible railroad route as shall be determined by said company, within the territory of the United States, on a line north of the forty-fifth degree of latitude, to some point on Puget sound, with a branch via the valley of the Columbia river to a point at or near Portland in the state of Oregon, leaving the main trunk line at the most suitable place, not more than three hundred miles from its western terminus. Sec. 2. And be it further enacted that the right-ofway through the public lands be and the same is hereby granted to said Northern Pacific Railroad Company, its successors and assigns, for the construction of a railroad and telegraph as proposed; and the right, power and authority is hereby given to said corporation to take from the public lands adjacent to the line of said road, material of earth, stone, timber, etc., for the construction thereof. Said way is granted to said railroad to the extent of two hundred feet in width on each side of said railroad, where it may pass through the public domain, including all the necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turntables, and water stations, and the right-of-way shall be exempt from taxation within the territories of the United States. The United States shall extinguish as rapidly as may be consistent with public policy and the welfare of the said Indians, the Indian titles to all lands falling under the operation of this act, and acquired in the donation to the road named in this bill. Sec. 3. And be it further enacted, that there be and hereby is granted to the Northern Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific Coast and to secure a safe and speedy transportation of the mails, troops, munitions of war and public stores over the route of said line of railway every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line as said company may adopt through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office; and whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers or pre-empted or otherwise disposed of, other lands shall be selected by said company in lieu thereof under the direction of the secretary of the interior in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections; provided that if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act," etc. Section 6 provides that the president of the United States shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road after the general route shall be fixed, and as fast as may be required by the construction of said railroad, etc. The defendants raise a question of construction of this act, which, if well taken, disposes of the controversy at the outset. They urge that the grant is to be strictly construed against the grantees therein named, and that by the terms thereof land is granted only in aid of the construction of the main line of the Northern Pacific, and not in aid of the branch line by way of the Columbia River valley to Portland. I do not so construe the language of the grant. The act authorized the company to build and operate a continuous road, "beginning at Lake Superior and running thence westerly to some point on Puget sound, with a branch line via the Columbia River valley to Portland." It then granted to the company permission to take material for the construction of "said road" from the public lands adjacent thereto, and gave a right of way upon public lands 200 feet "on each side of said railroad." It granted lands in aid of the construction, and the grant extends to lands on each side of "said railroad line," and makes the further provision that as soon as the general route is fixed the president shall canse the granted lands to be surveyed for 40 miles on both sides of "the entire line." Throughout the act the reference is to the road with its branch, as a single line or road. In the words of the act the grant of land is coextensive with the grant of right of way and the grant of other privileges. There is as much reason for confining the grant of way to the main trunk line as for confining the grant of subsidy to that portion of the road. The road with its branch is referred to as one road in the act, and we have no warrant for saying it is not properly so described. In view of the subsequent action of the company, however, it becomes immaterial whether or not there was a grant in aid of the branch line. Under the terms of the act the company had the power to locate the main line by the valley of the Columbia river if it so chose, and, as will be seen, that route was subsequently selected, and maps were filed in accordance therewith, and, whatever rights the Northern Pacific Company acquired to the definite sections of land involved in this suit, it obtained by reason of so locating its main line. These lands being included in the general terms of the grant in aid of the construction of the Northern Pacific Railroad, it is obvious that they were excluded from the operation of the grant to the Oregon & California Company, unless (1) they are within the reservation contained in the grant to the Northern Pacific Company; or (2) the failure of that company to construct its road via the Columbia River valley, and to comply with the coudition subsequent upon which the grant was made, operated to take the lands out of the reservation contained in the grant to the Oregon & California Company, whereby all "granted" lands were excepted therefrom. It is urged by the defendants that the reservation contained in the grant to the Northern Pacific Railroad Company expressly excludes from that grant the lands in question in this suit. That grant was of "every alternate section of public land," etc., "not reserved, sold, granted," etc., "at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office; and whenever prior to said time any of said sections or parts of sections shall have been granted or otherwise disposed of, other lands shall be selected by said company in lieu thereof." The argument is that, inasmuch as prior to the time of fixing the definite line of the Northern Pacific Railroad a grant of the same lands was made to the Oregon & California Company, the lands fall within the description of "granted" lands, which are expressly excepted from the operation. of the prior grant. In other words, while the lands in controversy were not "granted" lands at the time of the grant to the Northern Pacific Company, so as to be excluded from the lands conferred upon that company at that time, yet, within the time limited thereafter in which that company could establish its right thereto, they were withdrawn from that grant by the act of congress whereby they were bestowed upon another company, and that the contingency of such withdrawal and subsequent disposal was contemplated and provided for in the prior grant when the exception of granted lands was incorporated therein. It is urged that there was no law to prohibit a second conditional grant of the same lands in aid of a second railroad before anything should have been done by the first company, and with the understanding that whatever should be taken by the second company should be in subordination to the rights of the first company. It may be conceded that the power of congress in this direction was plenary. But the question here is not what congress had the power to do. It is, what did congress do? What was the intention of congress in inserting the reservation of granted lands from the operation of the first grant? In the light afforded by the policy of the government in relation to the disposition of the public lands in aid of railroad construction, and in view of the settled doctrine of the courts in relation to the nature of the title which passes under such grants, it would seem that the reservation of "granted" lands was not made in contemplation of a subsequent bestowal of the lands in aid of another road. Under such a construction the object of the first grant would be liable to be wholly defeated by a second grant, and the beneficiary of any railroad grant, while complying strictly with the conditions imposed thereupon, might be deprived of the aid upon which the construction of its road depended. In Missouri, etc., Ry. Co. v. Kansas Pac. Ry. Co., 97 U. S. 498, the reservation in the first grant was of lands which were not "sold, reserved or otherwise disposed of by the United States and to which a pre-emption or homestead claim had not attached at the time the line was definitely fixed." The court in construing the grant, speaking by Mr. Justice Field, said: "As the sections mentioned could only be known when the route of the road was established, which might not be for years, the government did not intend to withhold the lands in the mean time from occupation and sale, and thus retard the settlement of the country, nor to exclude the land from appropriation for public uses. And the object of the reservation was to protect the acquisition of rights in this way to lands falling within the limits of the grant, and to exclude from its operation lands specially reserved and lands of a special character, such as mineral lands, other than those of iron or coal, the sale of which was seldom permitted anywhere, and swamp lands. The grant made was in the nature of a float, and the reservations excluded only specific tracts to which certain interests had attached before the grant had become definite, or which had been specially withheld from sale for public uses, and tracts having a peculiar character, such as swamp lands or mineral lands, the sale of which was then against the general policy of the government. It was not within its language or purpose to except from its operation any portion of the designated lands for the purpose of aiding in the construction of other roads." In the recent case of St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 17, 11 Sup. Ct. Rep. 389, the court said: "We are of opinion that the exception in the act making the grant to the Northern Pacific Railroad Company was not intended to cover other grants for the construction of roads of a similar character, for this would be to embody a provision which would often be repugnant to and defeat the grant itself." But the grant to the Oregon & California Railroad Company contained a like reservation of "granted" lands, and it is next to |