Unrrmn STATESY v. ORDWAY. `3'5
ge11eral route of the road, February 21, 1872, by operation of section 6
of the act of 1864, the odd sections for 40 miles on either side of said
line were then withdrawn from sale or pre-emption, and reserved for the
construction of the road. * In short, the occupation of Peronto, prior to
the filing of thesemaps of either general or definite location of the route
of the road, could avail him nothing, as the land was not open to pre-
emption, because the Indian title was not then extinguished; and, on the
tiling of the first map, the land was specially withdrawn from sale or pre-
emption, irrespective of the Indian title, and, on the tiling of the second
one, the right of the corporation at once attached thereto. I have thus
been at some pains to state fully the circumstances and grounds of this
decision, and I do not perceive any conflict between it and the decision .
I in U. S; v. Ohddcrs, in which it was held (175) that the legal title to the
unearned portions of the grant was still in the United States. · _
Two points are clearly decided in Buttz v. Northern Pacific: Q1)
From the filing of the map of general route, the odd sections within the
limits of the grant are withdrawn from sale or pre-emption; and (2) the
grant of the corporation, so far and fast as the lands are earned by the
construction of the road, becomes absolute and unqualified. And it may
also be well implied from the decision that, when the right to any odd
section within the limits of the grant has finally vested in the corpora-
tion, by reason of the construction and acceptance of any portion of the
road, the same will relate back to the time of Hling the map of general
route,——the initiative step in the process of complying with the act; and
the patent to which the corporation is then entitled may, for all practical
purposes, be deemed to have issued. At least in my judgment, such is
the law. But whatever might be inferred from some general expressions
in the opinion of the court, I do not think that the case decides that the
corporation has any such right to or interest in the unearned lands as
authorizes it to waste the same by disposing of the timber thereon.
In the consideration of this question, no weight has been given to the
fact that the time within which the corporation was required to complete
the road had elapsed before the license to cut and remove this timber
was given to the defendants, or that it is so generally understood as to
be taken for granted that the Northern Pacific does not intend to con-
struct the road between Portland and Wallula junction. For any default
or delay in complying with the conditions of the grant, congress has re-
served to itself (sections 8, 9, Act 1864) the power to act, and, until it
does, the courts cannot take cognizance of the same. The grant on this
division of the route ought long since to have been resumed, and in some
way applied to the construction of the road, or restored to the public do-
main. And, in all probability, this latter disposition would have been
made of the matter ere this, but for the irrational conduct of certain per-
sons in congress, who stubbornly insist that no part of the grant west of
` the Missouri river shall be forfeited, unless the bill includes the earned
as well as the unearned lands.
On the whole, my conclusion is that the demurrer to this defense is
well taken, and that it must be sustained. .