the other hand to say that the allegations as to the tribe committing the wrong were essential to the cause of action. That is to declare that a particular allegation is at the same time both essential and non-essential-essential to be alleged, but not essential to be proved.

As it is considered by me that the Gorham case is conclusive of this, and as the opinion now announced does not purport to overrule that case, it is not necessary for me to enter into a statement of my reasons for believing that, even if that case did not exist, the construction now given to the statute is not only repugnant to its text, but conflicts both with the rights of individual claimants and those of the United States, as shown by the purpose and spirit of the act. I therefore dissent.

HUMBIRD v. AVERY.

CERTIFICATE FROM AND ORDER TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 7. Argued October 23, 26. 1903.- Decided December 12, 1904.

The act of Congress of July 1, 1898, 30 Stat. 597, 620, c. 546, relating to the land grant to the Northern Pacific Railroad Company, construed: Held, 1. That the act embraces land patented as well as unpatented, to which the right of the grantee or its lawful successor is claimed to have attached by definite location or selection, and which has been purchased directly from the United States or settled upon or claimed in good faith by any qualified settler under color of title or claim of right under any law of the United States or any ruling of the Interior Department.

2. The words in that act providing that the railroad grantee or its successor in interest "shall not be bound to relinquish lands sold or contracted by it or lands it uses or needs for railroad purposes, or lands valuable for stone, iron, or coal," do not apply to any lands sold or contracted by the railroad grantee or its successor in interest after the acceptance of the provisions of the act by the Northern Pacific Railway Company; no sale or contracting away of any of the lands embraced by

the act, and in dispute, after the acceptance of the grant could withdraw such lands from the operation of the act.

3. Whatever vested rights were acquired by the railroad company in virtue of the definite location of its route, as to any lands in dispute and embraced by the act of 1898, became subject to the power conferred upon the Land Department by that act.

4. The general doctrine reaffirmed that the courts will not interfere with the discharge of their duties by the officers of the Land Department by mandamus or injunction in reference to any lands, so long as the title thereto remains in the United States.

5. The selection of lands in indemnity limits, after definite location, to supply deficiencies in place or granted limits, does not invest any title in the railroad grantee to such lands until the selections are approved by the Secretary of the Interior. The railroad grantee does not become entitled, by reason of such unapproved selections, to ask a court of equity to intervene as between it or its successors in interest and individual claimants, so as to have the court declare that the latter could not, by any entry or purchase, acquire an interest in the lands so selected after the acceptance of the railroad's map of definite location.

THIS case was brought before us upon questions certified by the Circuit Court of Appeals. Subsequently, the United States was allowed to intervene upon the general ground that the case involved important questions affecting the administration of the public land laws, including the grant to the Northern Pacific Railroad Company then in process of adjustment. And, on motion of the Government, the plaintiffs and defendants concurring, the whole record was ordered to be sent up for our consideration.

The case involves the title to numerous tracts of land situated on the line of the Northern Pacific Railway between Duluth and Ashland. The lands are described in an exhibit attached to the bill.

The plaintiffs Humbird and Weyerhaeuser sue as grantees of the Northern Pacific Railway Company, a Wisconsin corporation, which, it is claimed, succeeded in respect of the lands in dispute to all the rights, interests and ownership of the Northern Pacific Railroad Company created by the act of Congress of July 2, 1864, 13 Stat. 365, c. 217. They allege that the claims of the defendants constitute clouds upon their title.

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The defendants assert title under the land laws as settlers and purchasers from the United States or grantees of such settlers and purchasers. But the bill alleges that the lands here in dispute are part of the grant to the Northern Pacific Railroad Company and that the Land Department wrongfully and unlawfully permitted the entries under which the defendants severally claim. The Circuit Court dismissed the bill, but without prejudice, except as to all lands here involved for which patents had been issued. 110 Fed. Rep. 465.

It seems both appropriate and necessary that the facts be fully stated. That statement we now proceed to make, premising that the present controversy had its origin, as will be presently shown, in conflicting orders or rulings in the Land Department as to what was the eastern terminus of the Northern Pacific Railroad.

By the above act of July 2, 1864, c. 217, Congress made a grant of lands to the Northern Pacific Railroad Company in aid of the construction of a railroad and telegraph line from some point on Lake Superior in Minnesota or Wisconsin to some point on Puget Sound with a branch via Columbia River to a point at or near Portland. The act established indemnity limits not more than ien miles beyond the limits of the alternate sections granted. 13 Stat. 365.

By a Joint Resolution, approved May 31, 1870, second indemnity limits were established within ten miles on each side of the road, beyond the limits prescribed in the company's charter. 16 Stat. 378, Res. 67. The effect of this resolution was to allow the company, under the direction of the Secretary of the Interior, to go into second indemnity limits in order to supply any deficiency in lands on its main line or branch.

On the third day of July, 1882, the company transmitted to the Secretary of the Interior a map of definite location covering the proposed line from Thompson Junction on the St. Paul and Duluth Railroad near Duluth, Minnesota, to Ashland in Wisconsin. That map was duly approved by the

Secretary of the Interior, and the lands embraced by it were withdrawn from sale or entry.

By resolution of the Board of Directors of the company, adopted August 28, 1884, Ashland was declared to be the eastern terminus of the road; and that resolution was accepted by the Secretary on December 3, 1884, as establishing such terminus.

The part of the railroad delineated on the map of definite location was constructed and was duly accepted; and in conformity with the direction of the Secretary the company, the Circuit Court states, filed lists of selections of lands, some in the first and others in the second indemnity limits, in lieu of lands lost to it in its place limits-such lists including all the lands in controversy in this suit. But the bill avers that no final action has ever been taken by the Land Department upon such lists; and they have not yet been approved by the Department.

Subsequently, on August 12, 1896, the Secretary of the Interior ruled that Duluth, not Ashland, was the eastern terminus of the railroad, and therefore that the land grant of 1864 did not embrace any lands between Duluth and Ashland. The company's lists of selections were thereupon canceled by order of the Secretary, and the lands covered by them were thereafter treated by the Department as unappropriated public lands and were opened for sale and entry.

This appears from an official communication addressed by the Commissioner of the General Land Office, with the approval of the Secretary of the Interior, to the Register and Receiver at Duluth. In that communication the Commissioner said: "On August 27th, 1896, the Secretary of the Interior rendered a decision wherein he held that the initial point on Lake Superior or the eastern terminus of the grant to the Northern Pacific Railroad Company was at Duluth, Minnesota, and on December 24th, 1896, he approved a diagram prepared by this office showing the eastern terminal of the grant. On January 23d, 1897, a copy of so much of said

diagram as related to or affected lands within your district was transmitted to you for the use and guidance of your office. The decision of the Secretary aforesaid had the effect of restoring to the public domain all lands lying east of said termial which had theretofore been withdrawn on account of the grant to said railroad company. Therefore, to the end that all persons interested may have an opportunity to present any claims they may have to any of these lands, you will cause to be published for the period of thirty days, in some newspaper of general circulation in their vicinity, a notice referring to said Secretary's decision which in effect declared that all lands previously withdrawn on account of the grant to the Northern Pacific Railroad Company and lying east of the terminal established at Duluth are restored to the public domain and are subject to disposal at your office."

Under the above ruling of the Secretary as to the eastern terminus, the defendants were allowed to make entries and purchases on the line of the railroad between Duluth and Ashland, despite the company's map of definite location and the lists of selections filed by it with the Secretary. In reference to the action of the Interior Department, the Circuit Court said: "By reason of the erroneous ruling of the Secretary of the Interior as to the location of the eastern terminus of said railroad, and his revocation of his prior approval of lawful selections by the railroad company of indemnity lands, and permitting sales and entries of such selected lands as unappropriated, he had introduced confusion and conflict in respect to the right to such lands, which was beginning to be litigated in the courts; .. The fact that patents had issued in a few instances would not end such disputes as to the lands so patented, as courts would adjudge the patentee in any case to hold the title in trust for the other party, wherever the other party had clearly the right to the land." 110 Fed. Rep. 465, 469.

Such was the situation when Congress incorporated into the body of the Sundry Civil Appropriation act of July 1, 1898,