Page:North Dakota Reports (vol. 2).pdf/381

of lands may assign their interest to said ‘Northern Pacific Railroad Company,’ or may consolidate, confederate, and associate with said company upon the terms named in the first section of this act; provided, further, that all mineral lands be, and the same are hereby excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands in odd numbered sections, nearest to the line of said road, may be selected as above provided; and provided, further, that the word ‘mineral,’ when it occurs in this act, shall not be held to include iron or coal; and provided, farther, that no money shall be drawn from the treasury of the United States to aid in the construction of said ‘Northern Pacific Railroad Company.’” That this act makes a grant in præsenti is determined. Says the supreme court: “As seen by the terms of the act, the grant is in præsenti; that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, pre-emption, or other disposition previous to the time the definite route of the road is fixed. The language of the statute is ‘that there be, and hereby is, granted’ to the company every alternate section of land designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification, and, when once identified, the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in presenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route.” St. Paul & P. R. Co. v. Northern Pac. R. Co., 189 U. 8. 5, 11 Sup. Ct. Rep. 389. As the grant is of “every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line,” the specific sections granted remain afloat, and are incapable of identification until