Beck, J.
i. public gran!! "añMay íef i8D6. I. This case involves tbe consideration of two grants of lands by tbe congress of tbe United States, each of which, it is insisted by tbe parties claiming thereunder, covers tbe lands in controversy. Tbe first of these grants was made to tbe State for tbe purpose of improving tbe navigation of tbe Des Moines Biver; tbe second was to aid in tbe construction of certain railroads. Plaintiffs claim under tbe second grant; defendant under tbe first. It is not necessary, in tbe view we take of tbe case, to set out tbe chain of title of either party, as it may be conceded for tbe purpose of our discussion, that if tbe lands are covered by tbe first grant defendant holds title thereto; if by the second, the plaintiffs are entitled to the lands.
It becomes necessary to set out tbe legislation .by congress making these grants, and, to some extent, tbe legislative history of each.
The act of congress, approved August 8, 1816, granting lands for the improvement of the navigation of tbe Des Moines Eiver, is as follows:
“ Be it enacted by the Senate and Souse of Representatives of the United States of America, i/n Congress assembled, That there be, and hereby is, granted to said territory of Iowa, for tbe purpose of aiding said territory to improve tbe navigation of tbe Des Moines river from its mouth to tbe Eaccoon Pork (so called) in said territory, one equal moiety, in alternate sections, of tbe public lands (remaining unsold and not otherwise disposed of, encumbered or appropriated), in a [92]*92strip five miles in width, on each side of said river, to be selected within said territory by an agent of agents to be appointed by the governor thereof, subject to the approval of the secretary of the treasury of the United States.
“ Section 2. And he it further enacted, That the lands hereby granted shall not be conveyed or disposed of by said territory, nor by any state to be formed out: of the same, except as said improvements shall progress; that is, the said territory or state may sell so much of said lands as shall produce the sum of thirty thousand dollars, and then the sales shall cease until the governor of said territory or state shall certify the fact to the president of the United States that one-half of said sum has been expended upon said improvements, when the said territory or state may sell and convey a quantity of the residue of said lands sufficient to replace the amount expended; and thus the sales shall progress as the proceeds thereof shall be expended, and the fact of such expenditure shall be certified as aforesaid.
“ Sec. 3. And he it further enacted, That the said river Des Moines shall be and forever remain a public highway for the use of the government of the United States, free from any toll or other charge whatever, for any property of the United States or person in their service passing through or along the same; provided, always, that it shall not be competent for the said Territory or future State of Iowa to dispose of said lands, or any of them, at a price lower than, for the time being, shall be the minimum price of other public lands.
“ Sec. 4. And he it further enacted, That whenever the Territory of Iowa shall be admitted into the Union as a State, the lands hereby granted for the above purpose shall be and become the property of said state for the purpose contemplated in this act, and for no other; provided, the legislature of the State of Iowa shall accept the said grant for the said purpose.”
This statute was, prior to 1859, often before the executive [93]*93department of the general government for construction touching the extent of the grant, or the territory to which it was applicable. The lands in controversy are above or north of the Eaccoon Fork of the Des Moines Eiver. It was sometimes held that the grant was restricted 'to territory below the Eaccoon Fork, and quite as frequently decided that it extended to the territory above. For more than ten years there was oscillation in the views of the different executive officers of the government upon the sxxbject. Attorney General Cushing, in an opinion upon the subject of the grant, addressed to the Secretary of the Interior, May 29,1856, says: “ The history of the case exhibits a spectacle of vacillation and contradiction of opinion on the part of the government wffiich is humiliating to contemplate. It is discreditable to the government that its views of a law and its consequent action should be shifting about like a weather-vane, as they have done in this case.” While the opinions and views of the executive officers of the government rested in this uncertainty the grant came before the United States Supreme Court, in the case of The Dubuque & Pacific Railroad Company v. Litchfield, 23 How., 66. It was held by -the Supreme Court in that case that the grant was confined to lands between the mouth of Des Moines Eiver and the Eaccoon Fork. Up to this time the lands above the Eaccoon Fork had been withheld from sale under the claim that the grant extended thereto. After the decision of the Supreme Court was announced the lands above the Eaccoon Fork were still reserved from sale.
By an act of Congress, approved July 12, 1862, the claim of the State to lands above the Eaccoon Fork, under the grant of Congress of August 8, 1846, was confirmed and the grant extended in conformity with the claim of the State. The statute is entitled, “An Act confirming a land claim in the State of Iowa, and for other purposes.” It is as follows:
"Be it enacted by the Senate and House of Representatives of the Umted States of America in Congress assembled, [94]*94That tbe grant of lands to the then Territory of Iowa for the improvement of the Des Moines River, made' by the act of August eighth, eighteen hundred and forty-six, is hereby extended so as to include the alternate sections (designated by odd numbers), lying within five miles of said river, between the Raccoon Fork and the northern boundary of said State; such lands are to be held and applied in accordance with the provisions of the original grant, except that the consent of Congress is hereby given to the application of a portion thereof to aid in the construction of thei Keokuk, Fort Des Moines and Minnesota Railroad, in accordance with the provisions of the act of the general assembly of the State of Iowa, approved March twenty-two, eighteen hundred and fifty-eight. And if any of said lands shall have been sold or otherwise disposed of by the United States before the passage of this act, excepting those released by the United States to the grantees of the State of Iowa under the joint resolution of March second, eighteen hundred and sixty-one, the Secretary of the Interior is hereby directed to set apart an equal amount of lands within said State to be certified in lieu thereof. Prometed, That if the said State shall have sold and conveyed any portion of the lands being within the limits of this grant the title of which has proved invalid, any lands which shall be certified to said State in lieu thereof, by virtue of the provisions of this act, shall inure to, and be held as a trust fund for the benefit of, the person or persons, respectively, whose titles shall have failed as aforesaid.”
Under this act the lands in question were certified to the State, and under' legislation of the State they will, if they are covered by the grants, as against plaintiffs, inure to the defendant.
By act of Congress of May 15, 1856, Congress granted to the State, for the purpose of aiding in the construction of certain railroads, “ every alternate section of land, designated by odd numbers, for six sections in width on each side of said roads.” Further provisions of the statute relating to [95]*95tbe terms of tbe grant need not be set out. Tbe first section contains the following proviso:
“And provided further, That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or for any other purposes whatever, be, and the same are, hereby reserved from the operation of this act, except so far as it may be found necessary to locate the routes of said railroads through such reserved lands, in which case the right of way only shall be granted, subject to the approval of the President of the United States.”
Under this grant the lands in controversy were certified to the State by the proper officers of the general government. A subsequent certification of the lands was made to the State, as inuring under the grant of July 12, 1862, for the improvement of the Des Moines Eiver.
The Supreme Court of the United States has thrice decided, upon facts the- same as those disclosed by the record before us, that the lands were conveyed to the State by the grant of July 12, 1862, for the improvement of the navigation of the Des Moines Eiver, and that they were expressly excepted from the railroad grant of May 15, 1856, as they were at the time of the enactment reserved by competent authority for the improvement of the Des Moines River. Wolcott v. Des Moines Co., 5 Wall., 681; Williams v. Baker, 17 Id., 144; Homestead Co. v. Valley Railroad Co., Id., 153.
That these decisions correctly interpret the act of May 15th, 1856, cannot be doubted. The legislative history of the statute discloses the fact that the Committee on Public Lands of the House had before it estimates of the quantity of land which would pass by the act' of May 15th, 1856, which excluded all the lands claimed under the grant for the improvement of the Des Moines Eiver. It would thus appear that congress enacted the statute with a full knowledge that these lands were reserved by competent authority for the [96]*96improvement of the Des Moines Niver, and there can be no doubt that the proviso therein was intended to take the lands in question from the operation of the statute.
II. 'Counsel for plaintiffs insists that this ease does not come within the rules of the decision of the United States Supreme Court just cited, for the reasons that there are other questions involved that were not in those cases. These questions arise upon the following facts:
1. The lands involved in this case were not surveyed until after reservation under the river grant was made, and were not certified under that grant until after the grant to the State for railroad purposes.
2. The lands reserved under the river grant, which are contemplated in the proviso incorporated in the railroad grant above quoted, were along the east branch of the Des Moines Niver, and not along the main stream.
3. The lands in question were within the Sioux Indian reservation at the date of the river grant, August 8th, 1816, and at the dates of the acts of the executive officers of the government reserving the lands for the improvement of the river.
We will proceed to consider the questions arising upon these alleged facts.
III. It is claimed, as a matter of fact, that the lands in controversy, and other lands claimed under the river grant, were not surveyed until after the reservation under the river grant was made. We understand that by this statement counsel mean to assert that the lands were not subdivided by what are called Congressional surveys, which are always made before public lands are put upon the market. The statement admits that the lands were reserved. If they were not surveyed, so that they could have been sold, it is' difficult to see how they could have been reserved from sale. The statement of fact, if it contemplates a reservation from sales, is contradictory in itself. We know of no reason why lands may not be reserved by congress or other competent authority for law[97]*97ful purposes before tliey are surveyed. Indeed, we think such cases have frequently occurred. That such lands were reserved for the river improvement in 1856, the date of the railroad grant, is settled by the decisions of the Supreme Court of the United States above cited. When such reservation was first made we need not inquire. It had been continued, and was in existence in 1856, and the lands were then surveyed. When the railroad grant was made the lands were reserved, and it matters not whether they were or were not surveyed when the reservation was first made. Under the proviso of that grant they were exempted as lands covered by an existing reservation.
IY. It is next argued that the river improvement grant must fail as to these lands, for the reason that they were not certified to the State until after the railroad grant was made. The certification of the lands did no more than identify them, and was not an act upon which the grant was made to depend. The right and title to the lands passed by the grant, the certification pointed out the subject of the grant. See Leavenworth, Lawrence & Galveston R. Co. v. The United States, 92 U. S., 733. Now the lands had been reserved, but not granted, until the act of July 12th, 1862. They could not have been certified before that act, for they had not been granted. Within a proper time after the grant they were certified. They were excepted from the railroad grant because of their reservation. They were granted and then certified to the State for the improvement of the river. It is very plain that the failure to certify the lands- before the grant for the railroads would not defeat the proviso excepting them, and bring them within the provisions of the act.
2 • Y. It is next urged that the reservation of the lands upon which defendant’s title is based was not upon the Des Moines River, but upon a tributary called in the record the East Branch, and sometimes designated upon the maps as Boone Eiver. This position, as to the facts, is based upon the certification of about 1,100 acres upon the [98]*98East Branch in 1853, and the want of knowledge, exhibited in many instances by the executive officers of the government, that would enable them to determine which stream was the main river. The grant is of lands upon the rimer, not upon its branch. The lands in question are upon the main river. The reservations were made under the grant, and they must have extended to the lands on the river, including the lands in controversy. The certification of the lands upon the East Branch was an error, and was afterward corrected. If defendant or the State gained anything by the mistake, it is not a ground upon which plaintiff can defeat defendant’s title. Surely it cannot be maintained that the grant of lands upon the river is .affected by a mistaken selection upon the East Branch, even should such selection operate to the prejudice of plaintiffs. The grant cannot be defeated in that way. The defendant holds under the grant, and mistakes of the officers of the government cannot change the subject of the grant.
Indian title, YI. It is insisted that the lands in question were, until 1853, Indian lands, having been before that date reserved by treaty for the use and occupation of the Sioux tribe of Indians, and, therefore, could not be reserved or granted to the State.
We will not enter upon a discussion of the testimony before us, in order to determine the facts upon which the position of counsel is based. For the purpose of this case we may admit the facts to be as claimed by him, and that it was not competent'for the government to grant or reserve the lands before the Indian title was extinguished.
But the Indian title was extinguished in 1853. After that date the lands in question were reserved under competent authority for the State. Such reservation in fact existed May 15, 1856, when the railroad grant was made; the United States Supreme Court has so decided in the cases above cited. It matters not if, at the date of the reservation, it was illegal because the Indian title was not extinguished. If the reser[99]*99vation was continued and recognized after the extinguishment of that title, it was just as valid as though it had been good from the beginning. The reservation may be regarded as dating from the time the Indian title was extinguished, if at and subsequent to that time it did in fact exist, though before it had been unauthorized. As we have seen, it was competent for the executive department to reserve the lands; the United States Supreme Court so holds in the cases above cited, and further holds that when the lands were granted for railroad purposes, May 15, 1856, there was an actual resex-vation for the purpose of the improvement of the Des Moines river.
In this view of the case it becomes unimportant to determine whether the Indian title was extinguished to the teiuitoi-y in which the lands in question are situated prior to 1853, which is denied by plaintiffs’ counsel. The existexxce of such a title, as claimed by him, is certainly immaterial, and cannot control the determination of the case.
VII. After the decision was announced in the court below the defendant made a motion for a new trial, based upon the ground of newly discovered evidence, and surprise at the trial by the introduction of evidence by plaintiffs. The evidence referred to in this motion, both newly discovered and offered at the trial, related to the point made by plaintiffs to the effect that the territory in which the lands are situated was a part of an Ixidian reservatioxx, or the Indian title thereto had not been extinguished. Counsel for defendant elaixn that the xnaps and other documents bearing upon this point which were ixitrodxxcod by plaintiffs wrought the surprise of which they complain, and that the newly discovered evidence, which, in part, consists of the official survey of the boundary of the Indian lands as fixed by treaty, and a map exhibiting the actual protraction of the field notes of that sxxxwey — this evidence couixsel insist shows that the lands in controversy were not, in 1846, when the original grant for the improvement of the navigation of the Des Moines river was made, [100]*100nor at any time thereafter, within territory reserved for the use and occupancy of the Indians.
We find it unnecessary to consider the questions raised by defendant’s counsel, assailing the ruling upon this motion. It will be readily understood that this conclusion is based upon "the view that, if it be true the Indian title was not extinguished until 1853, the lands were afterwards reserved, by competent authority, for the purpose of improving the navigation of the Des Moines river. If the evidence before the court below established the existence of the Indian title until 1853, the decision and the decree are not supported by the testimony before us, and, are, therefore, erroneous. We are, therefore, relieved of the duty of inquiring into the correctness of the ruling of the District Court, in overruling the motion for a new trial.
We have not noticed all the arguments made by counsel, nor discussed all the evidence in the case. The testimony is voluminous and the arguments on both sides elaborate and able, and quite extensive. We reach a very satisfactory conclusion upon. the course of reasoning presented above, and under the authorities we have cited. It is impossible, in an opinion of reasonable length, to notice all the facts and arguments which support our conclusions, or to reply to all arguments urged against them. The facts and reasons upon which our decision is based we have stated fully, and, we hope, with reasonable clearness. The decree of the District Court is reversed, and a decree will be entered in this court dismissing plaintiffs’ petition.
Reversed.