Bartholomew C. J.
This case was before this court at the October term, 1891, upon an interlocutory order, and is reported in 2 N. D. 206, 50 N. W. 151. A full summary of the pleadings is given in that case, and need not be repeated here. It will answer our purpose to state that the plaintiffs and respondents claim to be the equitable owners of a certain quarter section of land in Traill County by virtue of a purchase from the Northern Pacific Railroad Company, made and recorded in 1876. The land is in what is known as the “Indemnity Belt” of lands granted by congress to said railroad company, and no patent therefor has ever been issued by the United States. It is alleged that the defendant and appellant is in possession of said land, and is cropping the same, and sapping the land of its goodness and strength, and that appellant is entirely -insolvent. A decree is asked, declaring respondents to be the equitable owners of said land, and that appellant has no right, title, or interest therein, and perpetually enjoining appellant from tilling said land, or in any manner interfering therewith. The answer denies all the allegations of ownership contained in the complaint, and sets forth that the appellant is in possession of the land under the pre-emption laws of the United States; that said land was at the time of appellant’s settlement thereon, and still is, public land of the United Sfates subject to pre-emption, and was so declared by order of the secretary of the interior, dated August 15th, 1887; and it further avers that a contest was and is pending before the commissioner of the general land office, between this appellant and respondents’ grantor, to determine the rights of the respective parties in this particular tract of land.
The conclusion we have reached in this case renders it unprofitable and improper for us to discuss more than a single error assigned. While the pendency of a contest before the interior department between the appellant herein and respondents’ [448]*448grantor to determine their rights to the land in controversy was pleaded in abatement of this action, yet the learned trial court seems to have regarded the plea as bad. No finding is made upon the question, and evidence was excluded that would have established the pendency of such contest. Whether or not such plea was bad depends upon the condition of the title. 'If the United States had parted with its title, — if the legal title had passed to respondents’ grantor, the Northern Pacific Railroad Company, — then the interior department is without further jurisdiction in the matter, and all controversies about the title must be waged in the properly constituted courts. If, on the other hand, the legal title still remains in the general government, and has not been so entirely earned by some other party that nothing remains to be done except the mere ministerial act of issuing a patent to such party, — if any act remains to be done; or any controverted question of fact x'emains to be considered and passed upon, before any party is entitled to patent,' — then the interior department is the tribunal constituted by law and authorized to hear and determine all questions pertaining to the lights of the respective parties to receive the patent. Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; Johnson v. Towsly, 13 Wall. 72; Moore v. Robbins, 96 U. S. 538; Marqueze v. Frisbie, 101 U. S. 473; U. S. v. Schurz, 102 U. S. 396. If respondents recover in this case, it must be upon the strength of their title to, or rights in, the land in controversy. Absence of all title or right in appellant will not aid them. What then, is the nature of their title or right? It appears from the undisputed evidence in this case that in March, 1883, the land in controvei'sy was selected by the agent of the Northern Pacific Railroad Company to indemnify said company for the loss of certain lands within the limits of their primary grant. A list of selections, and a list of lands in place lost to the company, was filed in the local land office at Fargo, and forwarded to the general land office in Washington. It is alleged and found as a fact that these selections were made under the direction of the secretary of the interior. The only evidence in the record of this fact, [449]*449if it can be called evidence, is a recital in an opinion of the secretary of the interior in the case pending in that department that such was the fact. But that opinion is not final; the case is still pending on a motion for rehearing, and hence there is nothing to support the finding that the selection was made “under the directions of the secretary of the interior.” The record fails, also, to show that any action whatever was ever taken by the interior department upon the list of selections filed on March 19th, 1883, and which contained the land in controversy. Upon the record as made, it appears that this land was within the belt of lands from which the respondents’ grantor was authorized to select lands to indemnify it for lands lost within the limits of the original grant; that such land had been “selected” by the Northern Pacific Railroad Company, and a list containing the land filed in the land office at Fargo, and forwarded to the general land office at Washington. What right or title to this land did the railroad company obtain by reason of these facts? It is urged by the respondents that the grant to the Northern Pacific Railroad Company by the act of congress approved July 2nd, 1864, was a grant in quantity and in prcesenti, and that, upon the filing of the map of definite location, the title became fixed in the company, not only to the lands within the original grant then remaining subject to the terms of this grant, but also to so much of the odd sections in the indemnity belt as might be required to make good to the railroad company the full quantity of 20 sections per mile on each side of its line, and that this title passed by virtue of the grant; and that, where the whole of the odd sections within the idemnity belt was required to make up the deficiency, no selection was required,— that the entire belt was withdrawn from settlement by the act of congress; and that, where all the lands within the belt were not required to make up the deficiency, a selection was necessary, not to pass title, but to designate what land was subject to settlement. This we regard as the substance, though not the language, of respondents’ argument.
[450]
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Bartholomew C. J.
This case was before this court at the October term, 1891, upon an interlocutory order, and is reported in 2 N. D. 206, 50 N. W. 151. A full summary of the pleadings is given in that case, and need not be repeated here. It will answer our purpose to state that the plaintiffs and respondents claim to be the equitable owners of a certain quarter section of land in Traill County by virtue of a purchase from the Northern Pacific Railroad Company, made and recorded in 1876. The land is in what is known as the “Indemnity Belt” of lands granted by congress to said railroad company, and no patent therefor has ever been issued by the United States. It is alleged that the defendant and appellant is in possession of said land, and is cropping the same, and sapping the land of its goodness and strength, and that appellant is entirely -insolvent. A decree is asked, declaring respondents to be the equitable owners of said land, and that appellant has no right, title, or interest therein, and perpetually enjoining appellant from tilling said land, or in any manner interfering therewith. The answer denies all the allegations of ownership contained in the complaint, and sets forth that the appellant is in possession of the land under the pre-emption laws of the United States; that said land was at the time of appellant’s settlement thereon, and still is, public land of the United Sfates subject to pre-emption, and was so declared by order of the secretary of the interior, dated August 15th, 1887; and it further avers that a contest was and is pending before the commissioner of the general land office, between this appellant and respondents’ grantor, to determine the rights of the respective parties in this particular tract of land.
The conclusion we have reached in this case renders it unprofitable and improper for us to discuss more than a single error assigned. While the pendency of a contest before the interior department between the appellant herein and respondents’ [448]*448grantor to determine their rights to the land in controversy was pleaded in abatement of this action, yet the learned trial court seems to have regarded the plea as bad. No finding is made upon the question, and evidence was excluded that would have established the pendency of such contest. Whether or not such plea was bad depends upon the condition of the title. 'If the United States had parted with its title, — if the legal title had passed to respondents’ grantor, the Northern Pacific Railroad Company, — then the interior department is without further jurisdiction in the matter, and all controversies about the title must be waged in the properly constituted courts. If, on the other hand, the legal title still remains in the general government, and has not been so entirely earned by some other party that nothing remains to be done except the mere ministerial act of issuing a patent to such party, — if any act remains to be done; or any controverted question of fact x'emains to be considered and passed upon, before any party is entitled to patent,' — then the interior department is the tribunal constituted by law and authorized to hear and determine all questions pertaining to the lights of the respective parties to receive the patent. Steel v. Refining Co., 106 U. S. 447, 1 Sup. Ct. 389; Johnson v. Towsly, 13 Wall. 72; Moore v. Robbins, 96 U. S. 538; Marqueze v. Frisbie, 101 U. S. 473; U. S. v. Schurz, 102 U. S. 396. If respondents recover in this case, it must be upon the strength of their title to, or rights in, the land in controversy. Absence of all title or right in appellant will not aid them. What then, is the nature of their title or right? It appears from the undisputed evidence in this case that in March, 1883, the land in controvei'sy was selected by the agent of the Northern Pacific Railroad Company to indemnify said company for the loss of certain lands within the limits of their primary grant. A list of selections, and a list of lands in place lost to the company, was filed in the local land office at Fargo, and forwarded to the general land office in Washington. It is alleged and found as a fact that these selections were made under the direction of the secretary of the interior. The only evidence in the record of this fact, [449]*449if it can be called evidence, is a recital in an opinion of the secretary of the interior in the case pending in that department that such was the fact. But that opinion is not final; the case is still pending on a motion for rehearing, and hence there is nothing to support the finding that the selection was made “under the directions of the secretary of the interior.” The record fails, also, to show that any action whatever was ever taken by the interior department upon the list of selections filed on March 19th, 1883, and which contained the land in controversy. Upon the record as made, it appears that this land was within the belt of lands from which the respondents’ grantor was authorized to select lands to indemnify it for lands lost within the limits of the original grant; that such land had been “selected” by the Northern Pacific Railroad Company, and a list containing the land filed in the land office at Fargo, and forwarded to the general land office at Washington. What right or title to this land did the railroad company obtain by reason of these facts? It is urged by the respondents that the grant to the Northern Pacific Railroad Company by the act of congress approved July 2nd, 1864, was a grant in quantity and in prcesenti, and that, upon the filing of the map of definite location, the title became fixed in the company, not only to the lands within the original grant then remaining subject to the terms of this grant, but also to so much of the odd sections in the indemnity belt as might be required to make good to the railroad company the full quantity of 20 sections per mile on each side of its line, and that this title passed by virtue of the grant; and that, where the whole of the odd sections within the idemnity belt was required to make up the deficiency, no selection was required,— that the entire belt was withdrawn from settlement by the act of congress; and that, where all the lands within the belt were not required to make up the deficiency, a selection was necessary, not to pass title, but to designate what land was subject to settlement. This we regard as the substance, though not the language, of respondents’ argument.
[450]*450The portion of the granting act here involved is as follows: “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 Paicific coast, and to secure the 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 alternative 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 preempted, 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. * * '* That the president of the United States shall cause’ the lands to be surveyed for forty 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; and the odd sections- of land hereby granted shall not be liable to sale, or entry, or pre-emption before or after they are surveyed, except by said company, as provided by this act.” These and similar provisions have been often before the courts, and we believe their scope to be well defined and declared,. and respondents’ contention is without substantial support in the authoiities. That the gx-ant was a grant in prcesenti as to the lands subject to the grant that were situated [451]*451within the 40-mile limit has been often decided, and the cases are familiar; but beyond that limit it has never been held that the grant in frczsenti extended, except in the single case of Railroad Co. v. Barnes, 2 N. D. 310, 51 N. W. 386. The other cases most relied upon as sustaining that position are Railroad Co. v. Wiggs, 43 Fed. 333, and St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389. An examination of these cases will disclose that they arose within what were states at the date of the granting act, and, consequently, where the 40-mile limit covered both the original grant and the indemnity belt. In Buttz v. Railroad Co., 119 U. S. 55, 7 Sup. Ct. 100, the court used this language: “The sixth section declares that, after the general route shall be fixed, the president shall cause the lands to be surveyed for forty miles in width on both sides of the entire line as fast as may be required for the construction of the road, and that the odd sections granted shall not be liable to sale, entry, or pre-emption before or after they are surveyed, except by the company. The general route may be considered as fixed when its general course and direction are determined after an actual examination of the country or from knowledge of it, and is designated by a line on a map showing the general features of the adjacent country, and the places through or by which it will pass. * * * When the general route of the road is thus fixed in good' faith, and information thereof given to the land department by filing the map thereof with the commissioner of the general land office or the secretary of the interior, the law withdraws from sale or pre-emption the odd sections to the extent of 40 miles on each side.” The case in 139 U. S. 11 Sup. Ct., it is true, holds that under the facts in that case the whole of the odd sections in the indemnity belt were required to make up the deficiency for lands in place lost, and that no selections whatever were required. Yet it is clear to us that such holding is based on the fact that, both by the law and by order of the secretary of the interior, such lands had been withdrawn and segregated from the public domain for the exclusive use and benefit of the Northern Pacific Railroad [452]*452Company. In speaking of the nature of the grant to the Northern Pacific Railroad Company, the court say: “As seen by the terms of the third section of the act, the grant is one in prmsenti; that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, pre-emption, or other disposition, previous to the time the definite route of the road is fixed. The language of the statute is ‘that there be, and hereby is, granted’ to the company, every alternate section of the lands designated, which implies that the property itself is passed, not-any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in prasenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route.” That the court was there speaking exclusively of the lands within the original grant is clear from the fact that it is only from those lands that any reservations are made by reason of sales, grants, or pre-emptions. Nor is the case in 43 Fed. better authority for respondents’ position. The case arose in California under the grant to the Southern Pacific Railroad Company, which has the same provisions substantially that are found in the grant to the Northern Pacific. Prior to the time the alleged rights of the defendant were initiated, the land had been withdrawn from settlement, both by the express terms of the statute, as stated in the opinion, and by the order of the secretary of the interior. The opinion does not treat of the.date at which title to the company passed, but of the date after which no adverse rights could attach; and while it is not necessary for us to either indorse or reject all that is said on that point by the learned judge who [453]*453wrote that opinion, yet the case is certainly no authority for the position that title to indemnity lands passed to the beneficiary by virtue of the grant and in prcesenti.
Nor do we find in the wording of the statute any support for respondents’ position. It reads: “That there be, and hereby is, granted to the Northern Pacific Railroad Company. * * * every alternate section of land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said- railroad line.” It is the “twenty alternate sections per mile” that constitutes the present grant. From those sections certain possible exceptions and reservations are made, and then follows a privilege to the company, in case of losses by reason of such exceptions and reservations, to select lands in other alternate odd numbered sections, “not more than ten miles beyond the limits of said alternate sections.” But this privilege did not constitute a present grant. It vested in the railroad company a right through and by which, in the contingency specified, it might acquire title to the additional or indemnity lands. But it required something more than the existence of the grant, and the location and construction of the railroad in accordance with the terms of the- grant, to vest the title to such additional lands in the company. It required a legal selection; and until such selection was made, and -the legality of the selection in some manner established, the company could claim no right or interest whatever in any specific tract within the indemnity belt. Ryan v. Railroad Co., 99 U. S. 382; Grinnell v. Railroad Co., 103 U. S. 739; Railroad Co. v. Herring, 111 U. S. 27, 3 Sup. Ct. 485; Kansas Pac. R. Co. v. Atchison, etc., R. Co., 112 U. S. 414, 5 Sup. Ct. 208; St. Paul, etc., R. Co. v. Winona, etc., R. Co., 112 U. S. 720, 5 Sup. Ct. 334; Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341; U. S. v. Missouri, K. & T. R. Co., 141 U. S. 385, 12 Sup. Ct. 13; Elling v. Thexton, (Mont.) 16 Pac. 931; Jackson v. LaMoure Co., 1 N. D. 238, 46 N. W. 449. The decision in Railroad Co. v. Barnes, 2 N. D. 310, 51 N. W. 386, upon the question here discussed, was reached upon the assumption [454]*454that the grant to the Northern Pacific Railroad Company was a grant in quantity absolutely; 'that the government was bound to withhold from séttlement sufficient land to enable the railroad company to receive an amount equal to 20 sections per mile on each side of its road, and hence could dispose of no lands in the indemnity belt unless ■ a sufficient quantity remained -undisposed- of to fill the requirements of the grant. We are entirely satisfied that this assumption was unwarranted. The grant fixed the termini of the contemplated line, — one upon Lake Superior, and the other upon Puget sound, — but the company was at liberty to construct the line upon any route that it deemed most feasible, within the boundaries of the United States, and north of the forty-fifth parallel; hence, the grant of an absolute quantity of land within 50 miles on either side of the line as it might ultimately be established could be satisfied only by the practical withdrawal from settlement of all land north of the forty-fifth parallel. But the grant, by its terms, contemplated that no lands should be withdrawn from the operation of the land laws until the definite location of the line of the road. At that time, and upon filing a map showing such location, the law withdrew from settlement the lands then remaining unappropriated iri the odd numbered sections within the 40-mile limit. All other lands were still left by the grant subject to the ordinary operation of the land laws. The grant was a grant in quantity, subject to the two , contingencies: First, that the title to the odd numbered sections within the 40-mile limit from the line, as definitely located, should at the time of such location i-emain in the United States, “not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights.” If that should not be the case, then, secojid, that at the time such fact was established, and the company saw proper to exercise, and did exercise, its right to select other lands to indemnify it for lands so lost, there should remain in the odd numbered sections within the specified indemnity limit a sufficient amount of land, unreserved ,and unappropriated, and free from pre-emption or [455]*455other claims or rights, and to which the United States had a like full title, to indemnify the company, in acres, for all land lost in the primary grant. When the company receives all the lands thus designated within both the 40 and the 50 mile limit, then the terms of the grant are fully satisfied. It is proper to add that two members of this court were not qualified to sit in Railroad Co. v. Barnes, and, under a constitutional provision, District Judges were called in to sit with Chief Justice Corliss, who vigoriously dissented from the opinion of the majority in that case; and no judge of this court has ever concurred in or approved the decision in that case, and, so far as that decision is inconsistent with the views herein announced, it is expressly disapproved.
Respondents’ grantor received no title to this land by virtue of its grant. Did it receive title by virtue of its selection? The statute requires the selections to be made “under the direction of the secretary of the interior.” In Jackson v. LaMoure Co., supra, this court said: “It is also necessary for that department [interior department] to determine whether the lands which the company desires to select for indemnity are open to selection,— whether there is not some prior claim upon them in behalf of settlers or others. It is therefore entirely proper that the secretary of the interior should have the right to approve or disapprove of the selection before it becomes final. This is clearly the meaning in the provision of the grant to the Northern Pacific, which declai-es that the indemnity lands shall be selected by the company ‘under the direction of the secretary of the interior,’ [citing Elling v. Thexton, supra, and St. Paul, etc.,R. Co. v. Winona, etc., R. Co., supra.] The statute must have the same construction that would be given it if the word ‘approval’ had been used in place of the word ‘direction.’ ” The Supreme Court of Minnesota, in a very recent case, (Resser v. Carney, 54 N. W. 89,) construing this same grant, said: “The selection of indemnity lands, which was to be made ‘under the direction of the secretary o'f the interior,’ did not become effectual, nor did the title pass from the United States, at least until the selection was approved or in [456]*456some way sanctioned by the secretary of the interior.” We think these views entirely sound. This approval may be evidenced by the issuance of a patent, or by the decision of the interior department in any given case that the selection was legal. From these views, it follows that the title to the land in controversy is still in the United States. Respondents are not entitled to the relief they "pray, unless they have title to the land. It is clear from the record that a proceeding is now pending, and has been pending at all times since the commencement of this action, in the interior department, to settle the rights of'the appellant and respondents’ grantor in this particular land. The matter is still in fien, and the exclusive tribunal for the settlement of the question, while the title still remains in the United States, is that department of government especially charged by law with the disposal of the public land. To avoid any confusion that might arise from a misapprehension of our holding, it is proper to add that while a selection by the company without approval of the secretary of the interior is inadequate to pass title to the company, yet such selection so far segregates the land selected from the public domain that no adverse claims can subsequently attach thereto except subject to the ruling of the interior department upon the legality of such selection, and the ultimate approval of such selection vests the title to the land thus selected in the railroad company as of the date of the selection. See Musser v. McRae, 44 Minn. 343, 46 N. W. 673. The District Court for Traill County is dii'ected to reverse its judgment in this case, and enter judgment dismissing the complaint.
(Dec. 7th, 1893.)
Reversed.
All concur.