by John Marshall Harlan

“ The reasonable purpose of the government undoubtedly is that which it expressed, namely, 'While we are giving liberally to the railroad company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a pre-emption or homestead right to attach.' No right to such land passes by this grant. No interest in the railroad company attaches to this land, or is to be founded on this statute. Such is the clear and necessary meaning of the words that there is granted every alternate section of odd numbers to which these rights have not attached. ”

“ We have seen that the act of July 2, 1864, under which the railroad company claims title, excluded from the grant made by it all lands that were not, at the time the line of the road was definitely fixed, free from pre-emption 'or other claims or rights'; and the demurrer to the answer admits that at that time there were claims pending in the land office, undermined, to purchase these lands as mineral lands, and such applications conformed in all respects to the laws of the United States then in force relating to mineral lands. ”

“ The defendants do not assert title in themselves, but resist the claim of the railroad company upon the ground that at the time of the definite location of the Northern Pacific Railroad, and of the filing of the plat thereof in the office of the commissioner of the general land office, such 'claims' were made of record upon the lands in dispute as excluded them from the grant to the Northern Pacific Railroad Company. ”