United States of America v. Montana Lumber Manufacturing Company/Opinion of the Court
In the view the take of the case the answer to the second question becomes unnecessary. The answer to the first and third depends upon the effect of the grant to the Northern Pacific Railroad Company by the act of July 2, 1864 [13 Stat. at. L. 367, chap. 217].

The 3d section of that act contains the usual granting words: 'That there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns,' every alternate section of public land, not mineral, designated by odd numbers, on each side of the line of the railroad when definitely fixed.

It has been decided many times that such grants are in proesenti, and take effect upon the sections of the land when the road is definitely located, by relation as to the date of the grant. But the survey of the land is reserved to the government (§ 6); in other words, the identification of the sections-whether odd or even-is reserved to the government; and by the act of July 15, 1870 [16 Stat. at L. 291, chap. 292], making appropriations for the sundry civil expenses of the government for the year ending June 30, 1871, it was provided, in regard to the grant to the Northern Pacific Railroad Company that the cost of surveying must be paid by the company, and no conveyance should be made of the lands until such cost be paid. On account of that provision it was held in Northern P. R. Co. v. Trail County (Northern P. R. Co. v. Rockne), 115 U.S. 600, 29 L. ed. 477, 6 Sup. Ct. Rep. 201, that the land of a railroad company was not subject to taxation. It was said, 'to secure the payment of those expenses, it (the government) decided to retain the legal title in its own hands until they were paid.' See also New Orleans P. R. Co. v. United States, 124 U.S. 124, 31 L. ed. 383, 8 Sup. Ct. Rep. 417. The equitable title becomes a legal title only upon the identification of the granted sections. Deseret Salt Co. v. Tarpey, 142 U.S. 241, 35 L. ed. 999, 12 Sup. Ct. Rep. 158. As expressed in Leavenworth, L. & G. R. Co. v. United States, 92 U.S. 733-741, 23 L. ed. 634-637, 'they' (the words 'there be and is hereby granted') 'vest a present title, . . . though a survey of the lands and a location of the road are necessary to give precision to it, and attach it to any particular tract.' The right of survey is in the United States. It was error, therefore, in the trial court to admit the survey made by Ashley. It was also error to instruct the jury to return a verdict for the defendants. Unitl the identification of the even and odd-numbered sections the United States retained a special property, at least, in the timber growing in the township; and this was sufficient to enable it to recover the value of the timber cut and removed by the defendants. A contrary conclusion would impair the government's right of survey, and force it into controversies over surveys made by the railroad or its grantees. It would enable the railroad company or its grantees to despoil the lands of their timber, and leave them denuded, and, maybe, worthless, to the government. Indeed, it would reverse the statutory grant of powers, and transfer the location of the sections from the government to the railroad company. The extent and the effect of the power of the government to make its own surveys is expressed and illustrated in the following cases. Maguire v. Tyler, 8 Wall. 650, 19 L. ed. 320; Cragin v. Powell, 128 U.S. 691, 32 L. ed. 566, 9 Sup. Ct. Rep. 203; United States v. McLaughlin, 127 U.S. 428, 32 L. ed. 213, 8 Sup. Ct. Rep. 1177; Blake v. Doherty, 5 Wheat. 359, 5 L. ed. 109; Central P. R. Co. v. Nevada, 162 U.S. 525, 40 L. ed. 1061, 16 Sup. Ct. Rep. 885; United States v. Hanson, 16 Pet. 196, 10 L. ed. 935; Les Bois v. Bramell, 4 How. 449, 11 L. ed. 1051; Mackay v. Dillon, 4 How. 448, 11 L. ed. 1050; Glenn v. United States, 13 How. 256, 14 L. ed. 135; Smith v. United States, 10 Pet. 326, 9 L. ed. 442.

There is nothing in Northern P. R. Co. v. Hussey, 9 C. C. A. 463, 15 U.S. App. 391, 61 Fed. 231, which militates with these views. In that case relief was granted by injunction against a trespasser upon unsurveyed land at the suit of the railroad company, its contingent interest being held sufficient for that purpose. The paramount control and property in the United States was not in question.

We, therefore, answer the first and the third question certified by the Circuit Court of Appeals in the affirmative.

Mr. Justice Brewer concurs in the result. 

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