Mr. Justice Swayne
delivered the opinion of the court.
After this case was submitted to the court upon printed arguments by the counsel of the parties, the Attorney-Gexieral expressed a wish to be heard in behalf of the United States, and an oral argument was thereupon ordered. The case was argued in that way, fully and ably, by that officer and by the counsel for the appellee, and I am directed now to deliver the opinion of the court.
There is no controversy about the facts.
By the act of Congress of July 25, 1866, Congress granted certain lands to the California and Oregon Railroad Company. The appellee claims under that grantee, and has succeeded to its rights. At the date of the act there was pending' a claim for the confirmation of a Mexican grant, whiclrembraced within its boundaries the premises in controversy between these parties. The appellant insists that he has a paramount title, not under, but by reason of this claim, as will hereafter appear.
The second section of the act referred to is as follows: —
" Sect. 2. And be it further enacted, that there be, and hereby is, granted to the said companies, their successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores,, over the line of said railroad, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile (ten on each side) of said railroad lino; and when any of said alternate sections, or parts of sections, shall be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted or otherwise disposed of, other lands, designated as aforesaid, shall be selected-by said companies in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections designated by odd numbers as aforesaid, nearest to and net more than ten miles beyond the limits of the said first-named alternate sections," &c. 14 Stat. 239.
Under this statute, when the road was located and the maps were made, the right of the company to the odd sections first named became ipso facto fixed and absolute. With respect to the " lieu lands," as they are called, the right was only a float, and attached to no specific tracts until the selection was actually made in the manner prescribed.
On the 3d of March, 1873, the alleged Mexican grant was declared invalid by this court and finally rejected. On the 30th of October, 1874, it was found there was not enough of' the alternate odd sections within the primary limits to satisfy the grant to the railroad company. On that clay the appellee selected the land in question. Though not within them, it was within the indemnity limits prescribed in the act, and was intended in so far to supply the deficiency within the former. The selection was approved by the local land-officers on the 26th of December, 1874. This approval was confirmed by the Secretary of the Interior, and a patent in due form was issued to the appellee on the 17th of March, 1875._ At the time of the selection the premises were public land. The Mexican claim had been rejected by this court more than a year and a half before, and the land was not within any exception expressed or implied in the act. Afterwards, on the 14th of July, 1876, the appellant being in all respects qualified, filed an application in due form to be allowed to enter the land in question under the homestead act of 1862. He paid the proper fees and received a duplicate receipt from the register and receiver of the land-office of the district. He filed this bill to restrain the appellee from availing itself of the patent, upon the ground that the land was not subject to selection in lieu of the deficit of odd sections within the twenty-mile limits specifically granted by the act.
After this plain statement of the case, it is difficult to imagine any defeet that can exist in the title of the appellee, or any right, legal or equitable, that the appellant can have.
But it is said the case is within the principle established in Newhall v. Sanger (92 U. S. 761), and must be controlled by .that adjudication. This is the sole objection to the appellee's title, and it is founded in a mistake. The two cases are distinguishable by a broad line of demarcation.
In the former case, the lands covered by the false Mexican claim were situated within the limits of the territory where the right of the company attached to the designated odd sections granted when the road was located and the requisite maps were made. At that * time the claim was in litigation, and sub judiee. The court held that under these cireurhstances the premises were not " public land," within the meaning of the law, and could not become such until the title of the government was vindicated by the defeat of the claim., and that the patent issued to the railroad company was, therefore, void.
After the Mexican claim had been disposed of and before a new appropriation was made or attempted to be made by the company, the junior patent was issued to another party, and it was held that he had a valid title. The Mexican claim was finally rejected by this court on the 13th of February, 1865. It was insisted by the company that the judgment should be held to relate back to the first day of the term, so as to disembarrass the title of the claim as of that date. This was refused. The court said, " to antedate the rejection of a claim so as to render operative a grant which would be otherwise without effect, doet not promote the ends of justice, and cannot be sanctioned."F It was admitted by clear implication that if the lands had been thus disembarrassed at the date of the grant, or their withdrawal from sale, the elder patent would have been valid.
Again, speaking of lands embraced in such a claim the court says expressly, " they were regarded as forming a part of our public domain only after the claim covering them had been finally rejected." . . . " They then became public in the just meaning of that term, and were subject to the disposing power of Congress."
Here the land was not a part of the alternate odd sections specifically granted. It was not -within the limits of that territory. There, there was a deficiency.
It was within the secondary or indemnity territory where that 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. It was taken to help satisfy the grant to the extent that the odd sections originally given failed to meet its requirements. When so selected there was no Mexican or other claim impending over it. It had ceased to be sub judiae, and was no longer in litigation. It was as much " public land " as any other part of the national domain. The patent gave the same title to the appellee that a like patent for any other public land would have given to any other party. The Mexican claim when condemned lost its vitality. From that time, as regards the future, it ceased to be a factor to be considered, and was in all respects as if it had never existed. In this state of things the appellee acquired its title, and that title is indefeasible.
Newhall v. Sanger applies only where the adverse claim is undisposed of when the grant would otherwise take effect. It has no application as to the future after the claim has ceased to exist.
Decree affirmed.