land in question, or of any part thereof, and that the United States still holds the legal title to the land. Under these facts the property was not subject to taxation. Wisconsin Cent. R. Co. v. Price Co.,10 Sup. Ct. Rep. 341. Even selection by the company, without the approval of the secretary of the interior, would not have divested the government of its title to the land. It was so held in the case cited. The company in that case had, in fact, made selections of the lands sought to be taxed, but the secretary had refused to approve the selection, insisting that the company was not entitled to such lands, claiming that it had already secured more than it could rightfully hold under the grant. The secretary was in error. The company was in fact entitled to as much indemnity lands as it had selected. But the supreme court held that, as the secretary had refused to approve the selection, no title whatever had passed, and the lands were not therefore taxable, notwithstanding the fact that the secretary's refusal was unjustifiable.
The soundness of this decision cannot be assailed. There is a well-defined difference between “indemnity” lands and “place” lands. The latter become instantly fixed by the adoption of the line of the road. The odd-numbered sections to the amount of twenty sections a mile on each side of the road were granted to the Northern Pacific Railroad Company by the act of congress. The language of the grant is that there be and “are hereby granted.” The moment the route of the railroad had been deffinitely established these sections were susceptible of identification, and eo instanti, the grant attached to them, the translation of title dating back to the date of the grant: Wisconsin Cent. R. R. Co. v. Price Co., 10 Sup. Ct. Rep. 341; Railway Co. v. Baldwin, 103 U. S. 426; Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. Rep. 654; Denny v. Dodson, 32 Fed. Rep. 899; Railroad Co. v. Majors, 2 Pac. Rep. 322. But the indemnity lands cannot be ascertained by the mere location of the road. They are substitutes for granted lands lost, and it is therefore important that the fact of such loss from the attaching superior pre-emption or other rights to any portion of the “place” lands should be ascertained by the interior department before allowing the company to make selection for indemnity;
