grantors prior to January 1, 1898, but no patents therefor had been issued; that after January 1, 1898, the settlers or their grantors were permitted to enter about 5,000 acres of the lands here in controversy. The situation is thus described in the statement sent up by the Circuit Court of Appeals: Of the lands claimed by the plaintiffs as successors in interest of the Northern Pacific Railroad Company about 3,400 acres thereof were held by the appellees under patents issued by the Government prior to July 1, 1898; for the residue of the lands the settlers held final receipts and final certificates, such final receipts and final certificates, as respects about 5,000 acres, being for tracts entered subsequent to January 1, 1898. In reference to the lands for which final receipts and certificates have been issued nothing, so far as appears, remains to be done by the Land Department except the issuing of patents.

The relief sought is a decree declaring, among other things, that the lands described in the exhibit attached to the bill and all the timber standing or lying thereon belong to the plaintiffs; that the entries, locations, final certificates, land office receipts and patents, under which the several defendants claim, be adjudged to be void and removed as clouds from the titles of the plaintiffs, and the defendants severally enjoined from asserting any title by virtue thereof; and that such of the defendants as hold patents may be declared to hold as trustees for the plaintiffs in respect of any title conveyed by such patents, or any timber, cut or uncut, on such lands.

The questions propounded to this court by the Circuit Court of Appeals are these:

"Is the act of July 1st, 1898, applicable to the determination of the rights of the parties to the 3,400 acres of land which were patented to the appellees or their predecessors in interest prior to the adoption of the act of July 1st, 1898?

"Has the Circuit Court of the United States for the District of Minnesota, or any court, jurisdiction as respects the lands in controversy entered subsequent to January 1st, 1898, and for which the settlers hold final receipts or certificates,

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to adjudicate the rights of the parties to this action in respect to said lands in advance of the issuance of patents therefor by the executive branch of the Government, or should the courts decline jurisdiction until the Government has divested itself of the legal title to the lands by the issuance and delivery of patents?"

Mr. William W. Billson and Mr. Charles W. Bunn, with whom Mr. Chester A. Congdon, Mr. H. Oldenburg and Mr. James B. Kerr were on the brief, for appellants:

After these lands had been regularly selected by the railroad company, under the direction of the Secretary of the Interior, in lieu of unsatisfied and appropriate losses from place limits, they were wrongfully and finally awarded by the Secretary of the Interior to subsequent entrymen, through error of law as to the eastern terminus of the road; equity will, therefore, enforce the superior right of the railroad company or its grantees. This would be so even though the Secretary's approval of the selections had been expressly required by the terms of the act, and had been withheld or refused. St. Paul R. R. Co. v. Winona & St. P. R. R. Co., 112 U. S. 720; Sage v. Swenson, 64 Minnesota, 517; So. Pac. R. R. Co. v. Wiggs, 43 Fed. Rep. 333, 338; McHenry v. Nygaard, 72 Minnesota, 2, 12; Groeck v. So. Pac. R. R. Co., 102 Fed. Rep. 632.

Under these circumstances, the courts will decide any questions of fact which, by its error of law, the Department of the Interior was led to ignore. Cunningham v. Ashley, 14 How. 377; Lytle v. Arkansas, 9 How. 328; Ard v. Brandon, 156 U. S. 537; Duluth & Iron Range R. R. Co. v. Roy, 173 U. S. 587; Wright v. Roseberry, 121 U. S. 498; Bisson v. Curry, 35 Iowa, 72.

No controversies are pending in the department even as to such of the lands as are unpatented. Final certificates have been issued in all cases to the entrymen, and stand as the unrevoked, though legally erroneous, final judgment of the department in favor of their claims. Under such circum

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stances, equitable relief is not prematurely sought. Moore v. Robins, 96 U. S. 530; Berthold v. McDonald, 22 How. 334; Orchard v. Alexander, 157 U. S. 372; S. C., 26 Pac. Rep. 196; Pierce v. Frace, 26 Pac. Rep. 192.

In the recent cases of Bockfinger v. Foster, 190 U. S. 116, and Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, this view of the law appears to have been tacitly admitted, although under the circumstances existing in those cases relief was denied. With respect to the unpatented lands, the complainants are in any event entitled to relief by way of injunction. La Chapelle v. Bubb, 69 Fed. Rep. 481.

Threats of trespass are unnecessary. A reasonable probability of trespass or a well grounded apprehension of it may arise from the nature of the situation. Osborn v. U. S. Bank, 9 Wheat. 738, 840.

The withdrawal for the benefit of the Lake Superior & Mississippi Railroad Company on location of its general route, of lands not falling within its ultimate place limits, did not operate to exempt such lands from the subsequent grant to the Northern Pacific Company.. Nor. Pac. R. R. Co. v. Sanders, 166 U. S. 620; Menotti v. Dillon, 167 U. S. 703; United States v. Oregon &c. R. R. Co., 176 U. S. 28; Kansas Pac. R. R. Co. v. Atchison &c. Co., 112 U. S. 414.

Every case in which a withdrawal for the benefit of a railway company has been held to segregate the land as against subsequent legislative grants has been the case of a withdrawal on definite location. Spencer v. McDougal, 159 U. S. 62, distinguished.

In all cases holding that only those lands are a part of the public domain within the meaning of land grant acts, which are open to entry under the general land laws, the withdrawals had been made for the protection of a right which, if all the facts could be known, might appear to have become actually vested. Withdrawals of that character it is presumptively the intention of Congress to respect in making subsequent grants. This court has held (see cases cited supra) that with

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drawals on definite location are to be treated as withdrawals of that class, while withdrawals on location of general route are not to be so treated, but are to be regarded as made merely for the accommodation of the company, in order that its rights may have opportunity to attach to the withdrawn lands, subject however to such legislative dispositions as in the interim may be made of them.

These lands having been sold by the railway company prior to their identification by the lists of the Secretary of the Interior for relinquishment by the railroad company under the provisions of the Sundry Civil Act of July 1, 1898, are, by the express terms of the second proviso of that act, exempted from the company's obligation to relinquish. Interpreted in general terms, the case presented by that proviso is that of a statute which makes the legality or force of a transaction (in this instance the service of the Secretary's lists), dependent in part upon the existence of a particular condition (in this instance, whether lands are sold or unsold), without expressly declaring whether it is at the time of the transaction or at the date of the statute, or at the date of its acceptance, or at some other time that the prescribed condition must exist. This is the natural and grammatical and necessary construction of the law if the clause relative to sold lands is to have any practical operation whatever. No one could have conceived it to be necessary to expressly except from the company's obligation to relinquish lands which it had already sold or contracted prior to the act of 1898. The sole object of the clause relative to sold lands was to enable the company to continue its business, and the handling of its grant in the ordinary course, during the many years which would be likely to elapse before the adjustments contemplated by the act of 1898 should have been fully accomplished. Such also is the construction suggested by the analogy of the acts in pari materia to this. Act of June 22, 1874, 18 Stat. 194; Act of October 1, 1890, 26 Stat. 674.

The act of 1898 is inapplicable to land patented before its

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passage, and is inapplicable to lands purchased by others than actual settlers. If applicable to such purchases as those under the timber and stone land act, it is only in those instances in which the purchase was made or consummated by payment of the money prior to January 1, 1898.

Mr. Assistant Attorney General Campbell and Mr. A. C. Campbell, Assistant Attorney, with whom Mr. F. W. Clements, Assistant Attorney, was on the brief, for the United States, intervenor:

In view of the provision in § 3 of the act of July 2, 1864, that "other lands shall be selected by said company under the direction of the Secretary of the Interior," and of the provision in the joint resolution of May 31, 1870, that "said company shall be entitled, under the directions of the Secretary of the Interior, to receive so many sections," etc., the Land Department has uniformly held that until an indemnity selection made by the Northern Pacific Railroad Company is approved by the Secretary of the Interior the title to the lands covered thereby remains in the Government, and that no right vests in the company until such approval is given. Re Nor. Pac. R. R. Co., 2 L. D. 820; Nor. Pae. R. R. Co. v. Miller, 7 L. D. 100, 123; Nor. Pac. R. R. Co. v. Walters, 13 L. D. 230, 233; Nor. Pac. R. R. Co. v. Blain, 27 L. D. 361, 363; Nor. Pac. R. R. Co. v. Fly, 27 L. D. 464, 466; Meister v. St. P., M. & M. R. Co., 14 L. D. 624; Dunnigan v. N. P. R. R. Co., 27 L. D. 467. The first ruling in this respect was made in May, 1883, and has been adhered to ever since. It should not therefore be overthrown by the court, unless plainly erroneous. Hewitt v. Schultz, 180 U. S. 139, 156; Hawley v. Diller, 178 U. S. 476, 488. In passing upon other land grant acts containing similar provisions this court has upheld this ruling of the Land Department. Ryan v. Railroad Company, 99 U. S. 382; Sioux City &c. R. R. Co. v. Chi., M. & St. P. Ry. Co., 117 U. S. 406; Wis. Cent. R. R. Co. v. Price County, 133 U. S. 496, 511; United States v. M., K. & T. Ry. Co., 141 U. S.