is still a deficiency of the grant of 292,019 acres, to supply which it is entitled to resort to the lands now in possession of defendants. The supreme court of Iowa, in the opinion delivered in the nine cases decided in 1879, conceded that the company had not received the full amount it was entitled to on this basis by about 5,000 acres, but as it had selected lands enough, not including those of defendants, and had not shown that those selections had been abandoned by the company, or disallowed by the land department, they had not shown a case for relief against the defendants. In the Case of Jewell, decided by that court in 1882, it is shown, by a discussion of the deductions claimed by plaintiff, that 24,000 acres have been selected and claimed in excess of what the company is entitled to. The questions on which these deductions depend, and what weight is to be given to the selection of other lands not yet certified to the company or approved by the secretary of the interior, are not free from difficulty, and are to us much more embarrassing than one which the supreme court in its last opinion seemed to have encountered and been unable to decide. In that opinion it is said:

"The counsel for the respective parties have discussed with great learning and ability the nature of the right which the railroad company acquired in the land in question by the passage of the act. We do not care to go into a consideration of this question. The company, doubtless, as against the United States, acquired, upon the construction of the road, the right to select and claim the land as a part of the intended indemnity, if the deficiency was such as to justify it. What right the company acquired previous to selection as against the defendant, a homestead settler, is a question which presents no little embarrassment, and upon which there is not, perhaps, entire harmony in the adjudication. As to this we are not at present entirely agreed. For the purpose of the opinion it may be conceded that the plaintiff's would be entitled to resort to this land if it were necessary to fill the required indemnity. But it will not be denied that if the indemnity has been filled, the interest in the land which the plaintiffs may have had prior thereto would be extinguished. As to whether it has been filled the parties differ widely. They differ, also, as to who has the burden of proof upon such question."

In the case of Grinnell v. Railroad Co. 103 U. S. 742, this court said, in construing the granting clause of the original act of May 15, 1856: "So far as lands are found in place whenever this is done, [that is, the location of the road filed in the proper office,] not coming within the exceptions as sold, or held under pre-emption, the title, or at least the right, to this land in place is at once vested in the state, or in the company to which the state has granted it, and the means of ascertaining what lands have passed by the grant is found in the map of the line of the road, which is filed in the general land-office under the provisions of the statute. As regards the lands to be selected in lieu of those lost by sale or otherwise, it may be that no valid right accrues to any particular section or part of a section until the selection is made and reported to the land-office, and possibly not then until the selection is approved by the proper officer."

In the case of Van Wyck v. Knevals, 106 U. S. 360, [S. C. 1 SUP. CT. REP. 336,] the subject is discussed with exclusive reference to the odd-numbered sections specifically granted, and it is there held that

the adoption by the company of a surveyed line of the route of its road, and the filing of the map of the same with the secretary of the interior, cuts off the right of entry of these odd sections by any one else, whether there is a proclamation or order withdrawing them or not.

It is obvious, however, that the right to these odd sections, and the right to others in lieu of such odd sections as have been previously disposed of, depend upon very different circumstances, and it is not easy to see how rights can be vested in any particular section or sections of the latter class until it is ascertained how many of the original odd-numbered sections are thus lost, and until the grantee has exercised his right of selection. These latter, unlike the odd numbers within the six-mile limit, are not ascertained and made specific by the protraction of the established line through the maps of the public lands. They are not and cannot be made specific until the grantee's right of selection has been exercised.

This court, in construing the same clause of the grant to the California & Oregon Railroad Company, (14 U. S. St. 239,) said:

"When the road was located and the maps were made, the right of the company to the odd sections first named became fixed and absolute. With respect to the 'lieu lands,' as they are called, the right was only a float, and attached to no specified tracts until the selection was actually made in the manner prescribed."

Again:

"It was within the secondary or indemnity territory where the deficiency was to be supplied. The railroad company had not and could not have any claim to it, until specially selected, as it was for that purpose." Ryan v. Railroad Co. 99 U. S. 382.

But from what shall the selection be made, and how long a time. may the grantee have to make his selection? The question presents itself in two aspects, namely: the right to make these selections as against the United States, the grantor of this right, and the right as against a purchaser from the United States before the selection is made. As regards the former, it is only important to consider when it commences in the present case, and we are of opinion that no right of selection in any of these lands accrues until the entire line of the road to be built has been established by the company, and filed in the general land-office at Washington, and that until then no duty devolves on the secretary to withdraw or withhold the land from sale or pre-emption. This is the necessary inference from the language, both of the original grant of 1856 and the amendatory act of 1864. The first declares: "In case it shall appear that the United States have, when the lines and routes of said roads are definitely fixed, sold any sections or parts thereof granted as aforesaid, or that rights of pre-emption have attached to the same, then it shall be lawful for any agent or agents, to be appointed by the governor of said state, to select other lands." It is only when the line and routes of the roads

are definitely fixed that any right of selection exists. This must necessarily be so, because until then the quantity of land lost by the previous disposition of the odd sections cannot be known, and the number of sections to be selected can only then be ascertained. And the act of 1864, under which plaintiff's claim can alone exist, while it directs the secretary to withdraw from sale the lands from which these selections are to be made, only requires this to be done after the new line of the road shall have been so established. The language is:

"And it is further provided, that, whenever said modified main line shall have been established, or such connecting line located, the said Cedar Rapids & Missouri River Railroad Company shall file in the general land-office of the United States a map definitely showing such modified line and such connecting branch as aforesaid, and the secretary of the interior shall reserve and cause to be certified and conveyed to said company, from time to time as the work progresses on the main line, out of any public lands now belonging to the United States not sold, reserved, or otherwise disposed of, * * within fifteen miles of the original main line, an amount equal to that originally authorized."

It seems to us quite plain that, as in the original grant, no obligation on the secretary to reserve any of this land from sale arises until the new line is established; that is, surveyed, approved by the directors, and filed in the general land-office. Such is the language of the statute, and the reason for it is the same as in the original statute, that,- -as the number of sections the company would be entitled to could not be known until this was done, and the length of the road ascertained, the secretary could not know how much land it was necessary to reserve to satisfy the demand. Of course, until this was done, the sections not included within the six-mile limit were open to sale and pre-emption. The time when it became the duty of the land-officers to suspend these sales was under the control of the company, for whenever they established and filed in the general land-office a map "definitely showing this modified line of their road," the duty of the secretary arose, and not until then. This was not done until December 1, 1867, three years and a half after the passage of the act requiring it to be done, under which plaintiff's rights accrued. It is true, a map of part of the line was filed in 1865, but this can in no sense be said to be a map definitely showing the modified line of the road. It showed only a part of it, and left the secretary in ignorance where the road would yet be carried to, and what quantity of land it would be entitled to when finished. In all these cases the requirement has been of a map of the line of the road,-of the whole road, not part of it; a complete, not a partial, map; a map definitely showing that line, as the language clearly means. It was during this delay of three years and a half that the entries were made under which defendants hold the land and acquired the legal title, except in a single instance, made January 4, 1868, before any action of the secretary could be had to withdraw the lands, and it was not until

March 16, 1876, that any of the lands in controversy were selected by the company,-an average of 10 years after the rights of defendants had vested. We are of opinion that the defendants had the right to do this in regard to any but the odd sections within the sixmile limit; that there was no contract between the United States and plaintiff which forbid it. No right existed in plaintiff to all these lands, or to any specific sections of them, during this period; no obligation of the government to withdraw them from sale until plaintiff filed a map definitely showing the entire line of its road in the general land-office. The defendants purchased from officers who had. the power to sell. They acquired a valid title. If plaintiff has been injured it is by its own laches. If there is no land to satisfy its demand, it is because it delayed over three years to file its map to establish the line of its road, and for years afterwards to make selections. It is unreasonable to say that during all that time these valuable lands were to be kept out of the market, when the country was rapidly filling up with an agricultural population, settling and making valuable farms on them.

The judgments of the supreme court of Iowa are affirmed.

(110 U. S. 15)

HOLLAND v. CHALLEN.

(January 7, 1884.)

ACTION TO QUIET TITLE-PREREQUISITES-JURISDICTION OF FEDERAL COURTSSTATUTES OF STATE.

In those states where the action of ejectment is abolished, and any one claiming title to real estate is authorized by statute to bring an action against any adverse claimant for the purpose of quieting his title, it is not necessary, as was the case at common law in bills for similar purposes, that the plaintiff, to maintain his action, should either be in possession or have obtained a previous judgment in favor of the validity of his title.

A federal court, sitting in such a state as a court of equity, has jurisdiction to give the relief accorded by the statute, although a bill in equity could not formerly have been supported in such a case, and though the domain of equity is enlarged thereby.

Appeal from the Circuit Court of the United States for the District of Nebraska.

C. S. Montgomery, for appellant.

T. M. Marquette, for appellee.

FIELD, J. This is a suit in equity to quiet the title of the plaintiff to certain real property in Nebraska as against the claim of the defendant to an adverse estate in the premises. It is founded upon a statute of that state which provides "that an action may be brought and prosecuted to final decree, judgment, or order by any person or

persons, whether in actual possession or not, claiming title to real estate, against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest and quieting the title to such real estate." The bill alleges that the plaintiff is the owner in fee-simple and entitled to the possession of the real property described. It then sets forth the origin of his title, particularly specifying the deeds by which it was obtained, and alleges that the defendant claims an adverse estate or interest in the premises; that the claim so affects his title as to render a sale or other disposition of the property impossible, and that it disturbs him in his right of possession. It therefore prays that the defendant may be required to show the nature of the adverse estate or interest claimed by her; that the title of the plaintiff may be adjudged valid and quieted as against her and parties claiming under her, and his right of possession be thereby assured; and that the defendant may be decreed to have no estate in the premises and "be enjoined from in any manner injuring or hindering" the plaintiff in his title and possession. The defendant demurred to the bill, on the ground that the plaintiff had not made or stated such a case as entitled him to the discovery or relief prayed. The court below sustained the demurrer and dismissed the bill. From this decree the case is brought here on appeal.

It does not appear from the record in what particulars it was contended in the court below that the bill is defective; that is, in what respect it fails to show a right to the relief prayed. We infer, however, from the briefs of counsel that the same positions now urged in support of the decree were then urged against the bill; that is, that the title of the plaintiff to the property has not been by prior proceedings judicially adjudged to be valid, and that he is not in possession of the property-the contention of the defendant being that, when either of these conditions exist, a court of equity will not interpose its authority to remove a cloud upon the title of the plaintiff, and determine his right to the possession of the property. The statute of Nebraska enlarges the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property. It authorizes the institution of legal proceedings, not merely in cases where a bill of peace would lie, that is, to establish the title of the plaintiff against numerous parties insisting upon the same right, or to obtain repose against repeated litigation of an unsuccessful claim by the same party,. but also to prevent future litigation respecting the property by removing existing causes of controversy as to its title, and so embraces cases where a bill quia timet to remove a cloud upon the title would lie.

A bill of peace against an individual reiterating an unsuccessful claim to real property would formerly lie only where the plaintiff was in possession, and his right had been successfully maintained. The equity of the plaintiff in such cases arose from the protracted litiga,