, 34 FEDERAL REPORTER. ,
title remains in the United States, until they are earned, but altogether
inconsistent with the idea of a present grant to the corporation, whereby
it might dispose of, incumber, or waste the lands in advance of the con-
struction of the road.
On this view of the act, the demurrer to this defense is well taken.
The land from which the timber was taken being unearned, the corpo-
_ ration had no such right to or interest in it as would enable it to dispose
A of thetimber thereon, and authorize the severance and removal of the
· _ same therefrom. ~ That was a wasting of the land, and so far a destruc-
tion of its value. In this respect, it is a very different thing from pledg-
ingthe-land for aid in construction of the road, subject, of course, to.
all the conditions of the act, and the contingency of the c0rporation’s
compliance therewith. y
.. The case of Buttz v. Northam Pac. Ry. Cb., 7 Sup. Ct.·Rep. 100, lately
decided by the supreme court, is relied on by the defendants as author-
ity for the proposition that the act of July 2, 1864, is an unqualified
. present grant of the odd sections included therein, whether earned or un-
earned. ~ There·is»language, in the opinion of the court, which, abstracted
from its surroundings, maybe so construed. But I am not prepared to
admit, however, that the case goesso far. The controversy was for the
possession of a tract of land within thelimits of the grant to the corpo-
ration, and coterminous with a constructed section of its road. Peronto,
Buttz’s testate, claimed the land under the pre-emption act, alleging a
settlement thereon on October 5, 1871, and the corporation claimed it
under the act of July 2, 1864, and brought suit to recover the possession
of the same. At the date of the act, the land was in the occupation of
Indian tribes, whose title was extinguished by an agreement with the
secretary of the interior on June 19, 1873, which act was approved by
congress on June 22, 1874. In the fallof 1871, the corporation com-
menced the construction of its road coterminous with the land in ques-
tion, and in June, 1872, the same was completed. On February 21,
1872, the corporation filed in the proper otiice a. map of the general route
of its road in this locality, and on May 26, 1873, filed a map of the def-
inite location of the same. On August 11, 1873, and within three
months from the filing of the plat of the survey of the township in the
local land-office, Peronto presented to the register and receiver his de-
claratory statenient as a pre-emptor for this land, which they refused to
receive, because the land belonged to the corporation; and on appeal to
the commissioner, and thence to the secretary of the interior, their action
was approved. The court held that the grant to the corporation included
, the lands then occupied by the Indians, subject to such occupation, until
terminated by congress; that Peronto had no valid claim to the land in
controversy, and that the same belonged to the corporation on two
grounds: (1) That the Indian title to the land was not extinguished
I when Peronto. commenced his settlement; and before he made his declar-
atory statement, August 11, 1873, the corporation had filed the definite
location of its route, May 26, 1873, whereupon its right immediately
attached to the premises. (2) On the nling of the map of the line of