David Josiah Brewer

“ Obviously, the right of selection would be seriously impaired if it were limited to only the arid and valueless tracts. In fact, every withdrawal of lands from the aggregate of those from which selection could be made would more or less impair the value of the right of selection. The only way in which force can be given to this proviso is to hold that the indemnity lands of the Atlantic & Pacific were exempted from the grant to the Southern Pacific ”

“ The ordinary rule with respect to lands within indemnity limits is that no title passes until selection. Where, as here, the deficiency within the granted limits is so great that all the indemnity lands will not make good the loss, it has been held, in a contest between two railroad companies, that no formal selection was necessary to give them to the one having the older grant, as against the other company, (St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U.S. 1, 11 Sup. Ct. Rep. 389;) ”

“ What were the prospective rights of the Atlantic & Pacific Company? Of course, it could not be known at the time of the passage of the later act exactly where the lines of the two companies would be located, and where the point of crossing would be. ”