` umrmn smrrs v.·om>wAY. 33.
road, the title to the lands granted for that purpose shall vest in the comr
pany; and that, under the most favorable construction of the act, the title
to the lands granted only- vested in the company as fast and far as the road
was constructed. Counsel also objects that it does not appear from the
defense that the company has yet filed a dennite line of route between
A here and Wallula junction, as provided in section 3 of the act. It does
appear that the line of the general route has been Bled with the secretary, ·
and my impression.is that, until it is changed, it is the definite one, or
has the same effect; No particular time is prescribed in which either
shall be done. The filing of the general line of route has the effect, un-
der section 6, to· reserve the odd sections, for the purposes ofthe act,
within 40 miles on either side thereof, and to prohibit their "sale or en-;
try or pre-emption," except by the company; and the pre—emption and·
homestead laws are thereby in effect specially extended over the even
sections within said limits. i The omission to nle amore definite orother '
line of the route of the road does not appear to be material in this case;5
for, whatever right the company could acquire in this land under the
act, before the construction of the coterminous section of the road, was
acquired from the tiling ofthe line of the general route. ~ .
On theargument of the demurrer, it was assumed that the court will
take notice that no portion of the Northern Pacineroad has been con-
structed between Portlandand Wallula junction, and therefore that said
section 11 is not ooterrninous with any construotedsection thereof.
In U. S. w Childers, 8 Sawy. 17.1, 12 Fed. Rep. 586, I held, in the
language of the syllabus, that. " by the act of July 2, 1864, the odd-num»
bered sections along the line of the road of the Northern Pacific Railway
Company, for forty miles on either side of the line in the territories,. and
twenty miles in the states, are set apart andtdevoted to the construction;
of the road of said corporation; but said act is not a present grant of said
lands to said corporation, but only in effect an agreement or provision
that the same shall be conveyed to it absolutely when and as fast as any
twenty-Eve miles of said road is constructed and accepted by the United
States; and, in the mean time, the legal title to the unearned and un-
patented sections is in the,United States." In the course of the opinion
in that case, it was substantially said that the provision in section 4 of
the act, for the conveyance of the lands tothe corporation, as fast as each
section of 25 miles of the road was constructed, restrains the operation
of the words of the present grant in section 3, so that, while it is mani-
fest that congress intended _to devote the lands in question to the con-
struction of the road, yet it did not intend to part with the legal title to
them only as they were "eamed" by such construction. It was also said
that this view is confirmed by the provisions in sections 8 and 9 of the act,
to the effect that, if the corporation does not proceed with the work as
therein provided, the United States may take the construction of the work
into its own hands, and to that end may dispose of the unearned lands
in any way "‘needful and necessary to insure a speedy completion of the
road;" and that such a reservation of power is consistent with the idea
that the lands are devoted tothe construction of the road, while the legal
v.3OF.no.1——3 .