the actual possession of the premises at the date of the commencement of the action. It is an admission that the plaintiffs were in actual possession when they filed their complaint.

The defendants allege, as new matter, the following: "Defendants aver the facts to be that at the commencement of plaintiffs' said action, and long prior thereto, these defendants were, ever since have been, and now are, the owners of the premises described in plaintiffs' said complaint, and every part thereof, and in the possession of, and entitled to the possession of, the same." This is not new matter, for the reason that all the facts alleged therein might have been proved under a proper general denial. Says Justice RHODES in Marshall v. Shafter, 32 Cal. 177: "It is proper at this point, however, to say that it is settled beyond all controversy, in this state, that the defendant may, under the general denial, give in evidence title in himself, and it follows that the allegation of such title in the answer does not constitute new matter, and therefore the allegations of title in the defendant do not present a new issue." This language was adopted by this court in the case of Meyendorff v. Frohner, 3 Mont. 324. See, also, Pom. Rem. & Rem. Rights, §§ 624-633; Moak's Van Santv. Pl. 520, 813. Besides, these allegations of new matter are ambiguous. and uncertain, for the reason that it is impossible to ascertain therefrom whether the pleader intends to aver that the defendants were in possession at the date of the commencement of the action or at the time of the filing of their answer. Hence, it follows that the instruction to the jury, that it was admitted in the pleadings that the plaintiffs were in possession of the premises at the commencement of the action, was correct.

The appellant claimed the ground in controversy by virtue of the Raven lode location, which was 1,763 feet in length by 596 feet in width. The extent of a lode location is limited by the statute to 1,500 feet in length and 600 feet in width. The court instructed the jury upon the point as follows: "The location must be so distinctly marked on the ground that the boundaries can be readily traced, and the court instructs you that a location 263 feet in length in excess of the ground allowed by law to be located is void for uncertainty, and defendants cannot claim to have sufficiently marked their boundaries if their stakes include 1,763 feet in length." This instruction is entirely within the decision in the case of Hauswirth v. Butcher, 1 PAC. REP. 714, where it is held that "the boundaries must be so definite and certain as that they can be readily traced, and they must be within the limits authorized by law, otherwise their purpose and object would be defeated. The area bounded by a location must be within the limits of the grant. No one would be required to look outside of such limits for the boundaries of a location. Boundaries beyond the maximum extent of a location would not impart notice, and would be equivalent to no boundaries at all."

Judgment affirmed.

v.2,no.3-21

(5 Mont. 111)

NORTHERN PAC. R. Co. v. MAJORS.

Filed January 9, 1884.

Statutes must be construed by the courts so as to give effect to the legislative intent. The construction must be made upon the whole act, including the preamble, and not alone upon disputed parts of it. Where the terms of a grant are ambiguous, the rule of interpretation is that private grants are construed strictly against the grantors, and public grants against the grantees.

A grant of lands by the government is a higher evidence of title than a patent; it is tantamount to a conveyance with livery of seizin, and will support ejectment. Where an act of congress is in itself a grant, the purpose of a patent is merely that of a confirmation of a title already bestowed.

The act of congress granting lands to aid in the constrnction of the Northern Pacific Railroad, reciting "that there be and is hereby granted" to the said road certain lands, etc., and directing that on the fulfillment of certain conditions patents be issued, confirming to said company the right and title to said lands, is a grant in præsenti upon condition subsequent, and not in futuro, and the grant, upon the location and acceptance of the road, takes effect as of the date of the act, and attaches to the specific lands ascertained by the location and survey.

No one can take advantage of the non-performance of a condition subsequent attached to an estate except the grantor or his heirs, and if they do not assert their rights the title remains unimpaired in the grantee. If the grant be a public one the forfeiture must be asserted by judicial proceedings authorized by law.

From Third district, Lewis and Clarke county.

Wilbur F. Sanders, for respondent.

Harry R. Comly, for appellant.

GALBRAITH, J. This is an appeal from an order overruling a demurrer to the complaint. The demurrer avers as the only ground thereof that the complaint does not state facts sufficient to constitute a cause of action. The complaint alleges, in substance, that by section 3 of an act of congress, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route," approved July 2, 1864, there was granted to the respondent every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of said railroad as said company might adopt, through the territories of the United States, wherever on the line thereof the United States had full title at the time the line of the road was definitely fixed and a plat thereof filed in the office of the commissioner of the general landoffice; that by section 6 of the act aforesaid, it was provided that after the general route of the road should be fixed, the president of the United States should cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road, as fast as might be required by its construction, and that the odd-numbered sections of land, granted by section 3 of said act to the respondent, should not

NORTHERN PAC. R. Co. v. MAJORS.

323

be liable to sale, entry, or pre-emption before or after they were so surveyed, except by the said Northern Pacific Railroad Company; that the general route of said road, adjacent and opposite to section 13, township 10 N., of range 4,-the land in question,-was fixed by the respondent, the twenty-first day of February, 1871, within less than 40 miles from said section, by means whereof said section was withdrawn from sale, entry, or pre-emption, except by the respondent; and thereafter, to-wit, on the first day of October, 1881, the line of said road at and opposite to said section was definitely adopted and fixed, and a plat thereof filed in the office of the commissioner of the general land-office, at which time the said section was free from other sales, reservations, appropriations, pre-emptions, dispositions, claims, or rights than that contained in section 3 of the act aforesaid, granting the same to the respondent; that said grant then and there took effect and attached thereto; and that said company did then proceed, and is now proceeding, to construct its road upon said line of definite location, opposite and adjacent to and by the said section 13, which is within the limits of said grant; that said section 13, on the second day of July, 1864, was public land of the United States, to which they then and there had full title, and except for the grant to the respondent, would yet have full title thereto. aforesaid, the respondent says it has full title to and is the owner of And so, in the manner said section 13, and on the first day of October 1881, was, and ever since has been, entitled to the possession and occupancy and enjoyments thereof. The complaint also alleges entry and ouster by the appellant on the thirtieth day of October 1881, and demands possession of the premises in question.

The argument of the appellant is, in substance, that the complaint "does not show any such title in the respondent, by a grant or patent from the United States, as carries with it livery of seizin, nor is there any allegation of actual prior possession which, without such grant or patent, would sustain its action of ejectment." That the words of the present grant, in the third section of the act, are specially restricted by the provisions of other portions of the act, which prescribe certain conditions, and especially by those of section 4, which it is claimed determines when the grant shall take effect, viz., "when twenty-five consecutive miles of the road shall be completed, and after the report of commissioners, etc., patents shall be issued to the company conveying the additional sections," etc.; that until this time, viz., when patents shall have issued in accordance with the act, the right of the respondent in the lands by virtue thereof is simply the "grant of an incorporeal right in said lands accompanied by certain conditions, upon the performance of which conditions the act provides. how and when the title shall vest in the company, to-wit, the lands shall be conveyed by patent when each twenty-five miles of the road shall be completed and not before;" that by virtue of the act the United States becomes a trustee for the company, and agrees that

when it shall have designated its route, "the government will reserve from sale, etc., the odd sections to be conveyed to the company upon. the performance of certain acts;" that the legal title is in the United States until the issue of the patent, before which the company has only an equitable estate, and cannot maintain an action of eject

ment.

The complaint does not allege any patent to the respondent. The questions, therefore, for our consideration are, what is the character of the title in the respondent by the virtue of the act before the issue of the patent? And when does it have such a title as that it can maintain thereon an action of ejectment? In order to correctly solve these questions, we must arrive at the true interpretation of the act of congress making the alleged grant. The proper rule of interpretation of this act we believe to be that cited by the appellant, viz.: "The court, if possible, must give the statute such a construction as will enable it to have effect; that is, it must be construed in accordance with the legislative intent." Cooley, Const. Lim. 223. This is substantially the language of the supreme court of the United States in Leavenworth, etc., R. Co. v. U. S. 92 U. S. 733, where DAVIS, J., delivering the opinion, says, referring to the act of congress granting lands to the railroad company: "This grant, like that to Iowa, was made for the purpose of aiding a work of internal improvement. and does not extend beyond the interest it expresses. It should be neither enlarged by ingenious reasoning, nor diminished by strained construction. The interpretation must be reasonable, and such as will give effect to the intention of congress. This is to be ascertained from the terms employed, the situation of the parties, and the nature of the grant. If these terms are plain and unambiguous, there can be no difficulty in interpreting them; but if they admit of different meanings, one of extension, and the other of limitation, they must be accepted in a sense favorable to the grantor." The latter portion of this language, and similar language in other decisions, must be considered as referring to terms so ambiguous in their character that resort must be had to a rule of construction resolving the doubt in favor of one party to the contract rather than to the other. For we are satisfied that it is a rule, absolutely binding upon all courts, that where the legislative will and intent are discovered in a statute they must give force and effect to that will and intention when it does not contravene the fundamental law. It is the rule at common law, in relation to grants, that where the language was so ambiguous as to call for the interposition of a rule of interpretation that the doubt was required to be resolved against the grantor. It was expressed thus: "That the deed be taken most strongly against him; that is, the agent or contractor, and in favor of the other party." 2 Bl. Comm. 380. 2 Bl. Comm. 380. In the language of the authorities generally private grants are strictly construed against the grantors, and public grants against the grantees. But it is only when

courts are in doubt as to the meaning of the instrument that resort will be had in either case to the above rules of construction.

Another rule of construction of legislative acts is that it must be made upon the entire act, and not upon disputed parts of it. Every part of the act should be made to take effect, if possible, and all the words made to operate in one way or other. Can, therefore, the intention of congress be discovered from the act itself, without resort to the rule which obtains when there is ambiguous or doubtful language in an act of the legislature, and what, taking into consideration all the language of the act in question, was such intention in relation to the time when the grant should take effect? The act will be presumed to have been passed by congress with knowledge of its previous enactments in relation to grants of lands, and the repeated determinations of the supreme court of the United States as to their construction. That court has repeatedly held, in construing grants of land made by congress, that "a grant" of lands "may be made by law as well as by a patent issued pursuant to law," "and such grant invests an indefeasible and irrevocable title." Fletcher v. Peck, 6 Cranch, 87; Strotler v. Lucas, 12 Pet. 454; 9 Cranch, 43; Wilkinson v. Leland, 2 Pet. 627; Wilcox v. Jackson, 13 Pet. 498; 3 Wasb. Real Prop. (4th Ed.) 193, 194. "It" (the confirmation of a title by act of congress) "was a higher evidence of title," (than a patent,) "as it was the direct grant of the fee which had been in the United States by the government itself, whereas the patent was only the act of its ministerial officers." Grignon's Lessee v. Astor, 2 How. 319. "The plaintiff's title" (a confirmation by congress,) "is prima facie a good legal title, and will support ejectment on the act of 1836, standing alone, if the land can be identified as confirmed without resort to the patent." Chouteau v. Eckhart, 2 How. 344. In Green v. Liter, 8 Cranch, 229, STORY, J., says: "We are entirely satisfied that a conveyance of wild or vacant lands gives a constructive seizen thereof in deed to the grantee, and attaches to him all the legal remedies incident to the estate. A fortiori, this principle applies to a patent. Since at the common law it imports a livery in law." For a still stronger reason would this principle apply in the case of an act granting such lands, for, as we have just seen, the supreme court of the United States has held that such an act is higher evidence of title than a patent.

The decisions of the supreme courts of several of the states are to the same effect. "A grant of lands by the government is tantamount to a conveyance with livery in seizin." 3 Washb. Real Prop. (4th Ed.) 191, and cases there cited. "He who takes titles to lands from the federal government draws the actual legal possession to it." Robinson v. Leake, 14 Iowa, 421. With this construction of public grants as the uniform rule, congress passed the act in question. Its preamble entitles it as follows: "An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget sound, on the Pacific coast, by the northern route. Those