LURTON, Circuit Judge
(after stating the facts as above): Confessedly the lands involved are within the place limits of the grant of June 3, 1856. 11 Stat. 21, c. 44. The contention of the government is that, although within the place limits of that grant, they did not pass under the grant, because excepted out of its operation by a proviso ■excepting—
“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 [301] aiding in any object of internal improvement, or for any other purpose whatsoever.”
On May 11. 1855, these lands, with others, were withdrawn from sale or pre-emption by an order of the president for the purposes of pending treaty with the Chippewa Indians. This order had not been revoked wheii the grant of June 3, 185(5. was made, nor, indeed, has it ever been formally revoked. Unless, therefore, the lands had been otherwise restored to the public domain as lands subject to sale and grant prior to June 3, 185(5, the date of the laud grant under which the railroad company claimed title, they did not pass under it and were excluded from its operation. The grant of June 3, 1856, was one in przesenti and was confined in terms to public lands; that is, lands then subject to grant as not at the time withdrawn from sale or entry for any purpose whatever. That this land in controversy subsequently became public laud, subject to grant or sale or entry, does not have a retroactive effect, so as to bring it under the operation of the grant. Bardon v. Northern Pacific Railroad Company, 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; United States v. Southern Pacific Railroad Company, 146 U. S. 570, 13 Sup. Ct. 152, 36 L. Ed. 1091; Northern Dumber Company v. O’Brien et al., 139 Fed. 614, 71 C. C. A. 598.
But the contention is that as these particular lands were reserved only for the purpose of the pending treaty and as that treaty designated other lauds and omitted those in controversy, the reservation terminated by implication, without any formal withdrawal order before the date of the granting act. . But it does not appear that the pending treaty had been concluded, so as to constitute the law of the land until after June 3, 1856. It is shown that a treaty had been signed by the commissioners representing the United States and the chiefs and head men of the Chippewa and Ottawa tribes on July 31, 1855, a date antecedent to the grant involved, and that that treaty specifically designated the public lands which should be set apart to satisfy the terms of the treaty and did not include the lands in controversy. That treaty so signed on July 31, 1855, provided that it should be obligatory “as soon as ratified by the President and Senate of the United States.” This ratification by the Senate occurred April 15, 1856, but was made subject to certain amendments, which were not accepted by the last of the chiefs and head men of the Indians until July 31, 1856. Neither was this amended treaty confirmed or promulgated by the President until September 10, 1856. For the treaty and its ratification see 11 Stat. 621 — 629, inclusive.
While it is a principle of international law that a treaty takes effect by relation as of the date it was signed, although not ratified until later, this is only so as between the contracting nations. Private rights are not affected by sucli a treaty until it is ratified; for only then, under our Constitution, does it become the law of the land. This is a distinction well settled by the decisions. United States v. Arredondo, 6 Pet. 691, 748, 8 L. Ed. 547; Davis v. Parish of Concordia, 9 How. 280, 289, 13 L. Ed. 138; Haver v. Yaker, 9 Wall. 32, 19 L. Ed. 571; Shepard v. Life Insurance Co. (C. C.) 40 Fed. 341. That this treaty should not become effective until confirmed by the Senate [302] and by the President is plainly shown by the treaty itself. The President might accept it or reject it after such amendment. In fact, the Senate did amend it. That the amendment did not include the lands here involved, as lands out of which the Indian claims might have been satisfied, is not important. It was subject to alteration until ratified, so as to have designated these lands as lands out of which the Indians might make their selections. An implied revocation of the order reserving the lands to meet the purposes of the pending treaty did not arise so long as the treaty was subject to alteration. Until ratification, these lands continued to be segregated from the public lands and were not subject to grant.
It is next contended that this treaty had been duly signed and promulgated when a map of final location was filed, and if the land was public land at that date the grant attached. Por the United States it has been urged that, if it be conceded that the reservation was impliedly canceled by reason of the designation of other land to carry out the purpose of the treaty, the fact is irrelevant, as lands excepted out of its terms, because reserved, do not subsequently pass under such a grant, although the reservation is withdrawn before the date of the location of the railroad. It is also contended for the government that the decision of the Land Department that the grant did attach when the reservation had been revoked by implication was an erroneous decision of law, not conclusive upon the government or the court. The question thus stated is an interesting one, and not free from doubt under the decided cases. Kansas Pac. Ry. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Bardon v. Northern Pac. Ry. Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; Oregon Ry. Co. v. United States, 190 U. S. 186, 23 Sup. Ct. 673, 47 L. Ed. 1012.
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LURTON, Circuit Judge
(after stating the facts as above): Confessedly the lands involved are within the place limits of the grant of June 3, 1856. 11 Stat. 21, c. 44. The contention of the government is that, although within the place limits of that grant, they did not pass under the grant, because excepted out of its operation by a proviso ■excepting—
“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 [301] aiding in any object of internal improvement, or for any other purpose whatsoever.”
On May 11. 1855, these lands, with others, were withdrawn from sale or pre-emption by an order of the president for the purposes of pending treaty with the Chippewa Indians. This order had not been revoked wheii the grant of June 3, 185(5. was made, nor, indeed, has it ever been formally revoked. Unless, therefore, the lands had been otherwise restored to the public domain as lands subject to sale and grant prior to June 3, 185(5, the date of the laud grant under which the railroad company claimed title, they did not pass under it and were excluded from its operation. The grant of June 3, 1856, was one in przesenti and was confined in terms to public lands; that is, lands then subject to grant as not at the time withdrawn from sale or entry for any purpose whatever. That this land in controversy subsequently became public laud, subject to grant or sale or entry, does not have a retroactive effect, so as to bring it under the operation of the grant. Bardon v. Northern Pacific Railroad Company, 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; United States v. Southern Pacific Railroad Company, 146 U. S. 570, 13 Sup. Ct. 152, 36 L. Ed. 1091; Northern Dumber Company v. O’Brien et al., 139 Fed. 614, 71 C. C. A. 598.
But the contention is that as these particular lands were reserved only for the purpose of the pending treaty and as that treaty designated other lauds and omitted those in controversy, the reservation terminated by implication, without any formal withdrawal order before the date of the granting act. . But it does not appear that the pending treaty had been concluded, so as to constitute the law of the land until after June 3, 1856. It is shown that a treaty had been signed by the commissioners representing the United States and the chiefs and head men of the Chippewa and Ottawa tribes on July 31, 1855, a date antecedent to the grant involved, and that that treaty specifically designated the public lands which should be set apart to satisfy the terms of the treaty and did not include the lands in controversy. That treaty so signed on July 31, 1855, provided that it should be obligatory “as soon as ratified by the President and Senate of the United States.” This ratification by the Senate occurred April 15, 1856, but was made subject to certain amendments, which were not accepted by the last of the chiefs and head men of the Indians until July 31, 1856. Neither was this amended treaty confirmed or promulgated by the President until September 10, 1856. For the treaty and its ratification see 11 Stat. 621 — 629, inclusive.
While it is a principle of international law that a treaty takes effect by relation as of the date it was signed, although not ratified until later, this is only so as between the contracting nations. Private rights are not affected by sucli a treaty until it is ratified; for only then, under our Constitution, does it become the law of the land. This is a distinction well settled by the decisions. United States v. Arredondo, 6 Pet. 691, 748, 8 L. Ed. 547; Davis v. Parish of Concordia, 9 How. 280, 289, 13 L. Ed. 138; Haver v. Yaker, 9 Wall. 32, 19 L. Ed. 571; Shepard v. Life Insurance Co. (C. C.) 40 Fed. 341. That this treaty should not become effective until confirmed by the Senate [302] and by the President is plainly shown by the treaty itself. The President might accept it or reject it after such amendment. In fact, the Senate did amend it. That the amendment did not include the lands here involved, as lands out of which the Indian claims might have been satisfied, is not important. It was subject to alteration until ratified, so as to have designated these lands as lands out of which the Indians might make their selections. An implied revocation of the order reserving the lands to meet the purposes of the pending treaty did not arise so long as the treaty was subject to alteration. Until ratification, these lands continued to be segregated from the public lands and were not subject to grant.
It is next contended that this treaty had been duly signed and promulgated when a map of final location was filed, and if the land was public land at that date the grant attached. Por the United States it has been urged that, if it be conceded that the reservation was impliedly canceled by reason of the designation of other land to carry out the purpose of the treaty, the fact is irrelevant, as lands excepted out of its terms, because reserved, do not subsequently pass under such a grant, although the reservation is withdrawn before the date of the location of the railroad. It is also contended for the government that the decision of the Land Department that the grant did attach when the reservation had been revoked by implication was an erroneous decision of law, not conclusive upon the government or the court. The question thus stated is an interesting one, and not free from doubt under the decided cases. Kansas Pac. Ry. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566, 28 L. Ed. 1122; Bardon v. Northern Pac. Ry. Co., 145 U. S. 535, 12 Sup. Ct. 856, 36 L. Ed. 806; Oregon Ry. Co. v. United States, 190 U. S. 186, 23 Sup. Ct. 673, 47 L. Ed. 1012.
But, in the view we entertain of another question, it is deemed unnecessary to decide it. Assuming, for the purposes of this case, that the grant of June 3, 1856, did not attach to these lands, because they were under a valid reservation at that date, it does not follow that the United States is entitled to any relief in a court of equity. The lands were in fact public lands when the railroad company filed its map of definite location, because the provisional reservation which existed at date of grant had then expired as a consequence of the appropriation by the concluded treaty of other lands to meet the purpose for which these lands had been reserved. Thereafter the railroad company, having constructed its railroad in the manner and within the time required by the grant, selected these lands as lands earned and asked that they be certified and patented to it. This claim was made upon the theory that, having become public land before the filing of the map of definite location by which the grant, which had before been a mere float, became a grant of specific land, they passed under the grant. The question was given careful consideration by the Commissioners of the Land Office, who ruled that the treaty had extinguished the reservation and restored the lands to the public domain, which had thereby been brought within the terms of-the grant. The decision was approved by the Secretary of the Interior, and the [303] lands were accordingly certified to the state of Michigan and patented to the railroad company. If this was an erroneous decisión of a matter of law, the courts are not concluded. Wisconsin Central Railroad v. Forsythe, 159 U. S. 47, 15 Sup. Ct. 1020, 10 L. Ed. 71.
That the contention of the railroad company for such a construction was made in good faith, and the decision of the department likewise in good faith, is not questioned. The ruling was in accord with the prior practice ot the department, holding that the status of lands at the date of the filing of a map of definite location determined the lands to which the grant applied, thus disregarding their status at the date of the grant itself. Neither is it disputed but that the railroad company sold these lauds in good faith to good-faith purchasers, who are now and have been for many years claiming and occupying them. The act of Congress under which this bill was filed confirms the title of such good-faith purchasers and limits the claim of the government, in such circumstances, to a recovery from the railroad company of the price of similar government lands. The government now concedes that tinder the facts of this case there can be no other relief. But this is a court of equity, and the government lias applied to it as such, upon ¡he theory that the railroad company, having received the price of these lauds, should account to the government for such price to the extent of the selling price of similar lands, regardless of what it actually received. Does the case made entitle the government to this relief from a court of equity?
The Circuit Court found upon the facts, and in this we concur, that under both of the grants in which it was the beneficiary the railroad company had received 101,823 acres less than it had earned under its contract for the construction of the railroad aided by the grant. Of this shortage, 23,000 acres which the company might have received have been disposed of since the extension graut of 1864. In other words, the land available to satisfy the terms of the grant was more than 100,000 acres less than it expected to receive and the government expected to grant. Its claim, presented to the Departments of the Interior and Treasury, for compensation for the-deficiency, was rejected. While it is true that Congress does not guarantee that there shall be a sufficient quantity of public lands subject to the grant to fulfill the expectations of the parties, yet, as said in Wisconsin Central Railroad Company v. Forsythe, 159 U. S. 47, 60, 15 Sup. Ct. 1020, 1025, 40 L. Ed. 71, where Congress makes—
"a grant of a specific number of sections in aid of any work of internal improvement, it must be assumed that it intends the beneficiary to receive the amount of lands specified, and, when it prescribes that the lands shall be alternate sections along the line of the imi>rovement, it is equally clear that the intent is that, if possible, the beneficiary shall receive the particular sections.”
This error, due to the mutual mistake of the railroad company and the government, by which these lands were certified and subsequently patented, has resulted in the loss of precisely that amount of land. But for this erroneous decision that these lands were available under the grant, other lands, then available, would have been patented, which other public land has since been otherwise disposed of by the govern[304] ment. That these facts do not constitute such a claim as might be affirmatively asserted against the government may be conceded. That they may be the basis of an equitable defense against a claim for the price of lands so erroneously patented, when that claim is asserted in a court of equity, we have no doubt. This would be true if such a claim was presented by a private litigant, and it is no less true when the government comes into a court of equity for the relief it now asks. Equity will not lend its active assistance contrary to conscience and the plain justice of a case. United States v. Winona & St. Peter Railroad Co., 165 U. S. 463, 482, 17 Sup. Ct. 368, 41 L. Ed. 789; United States v. Detroit Lumber Co., 200 U. S. 322, 338 et seq., 26 Sup. Ct. 282, 50 L. Ed. 499.
In the Winona Case, cited above, the question arose under a bill similar to the one in the case under consideration. Failing to set aside and cancel the certification of the lands patented through mistake, the government sought a decree against the railroad company for the value of the lands erroneously certified. Mr. Justice Brown, for the court, said:
“It does not appear from this record either that the railroad company re-ceived an excess of lands or has even received (these lands included) the full quantity of lands promised in the grant; and, further, it does not appear that there were not within the granted or indemnity limits lands which the company might have rightfully received, but for this erroneous certification. It will hardly be contended that if simply through a mistake of the land department these lands were certified, when at the time other lands were open to certification which could rightfully have been certified, and which have since been disposed of by the government to other parties, so that there is now no way of filling the grant, the government can nevertheless recover the value of the lands so erroneously certified. In other words, the mistake of the officers cannot be both potent to prevent the railroad company obtaining its full quota of lands and at the same time potent to enable the government to recover from the company the value of the lands erroneously certified. Our conclusion, therefore, is that, upon the record as it is presented, the decree of the Court of Appeals was right, and it is affirmed.”
The conclusion of the court below was rested upon this ground, and we are content to affirm it.