selection was made the title remained in the government, subject to its disposal at its pleasure.” Kansas’ Pac. R. Co. v. Atchison, T. & S. F. R. Co., 112 U. 8. 414, 5 Sup. Ct. Rep. 208. In Railroad Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. Rep. 341, the court, construing a grant of specific lands, with a right to select indemnity, says of the indemnity lands: “ For such lands no title could pass to the company, not only until such selections were made by the agents of the state, appointed by the governor, but until such selections were approved by the secretary of the interior. * * * The government was, indeed, under a promise to give the company indemnity lands in lieu of what might be lost by the causes mentioned. But such promise passed no title, and, until it was executed, created no legal interest which could be enforced by the courts.” And to the same effect in the construction of similar grants, see Chicago, M. & St. P. Ry. Co. x. Sioux City & St. P. R. Co. 117 U. 8. 406, 6 Sup. Ct. Rep. 790; Barney v. Railroad Co., 117 U. S. 228, 6 Sup. Ct. Rep. 654. The impossibility of reconciling these decisions with the decision in St. Paul & P. R. Co. v. Northern Pac. R. Co., supra, except under the theory that the Northern Pacific act vested in the grantee more than a mere right to initiate a title by selection in the indemnity limits, is apparent; and we think the supreme court in that case settled that this act made a grant of quantity. Wherever the area of lands within the indemnity limits subject to the grant exceeds the area of lands granted, the grant remains, within those limits, a float. A selection is necessary to identify the particular lands, and attach thereto the title granted. When the selection and location is made pursuant to the act, of lands subject to selection, the general gift of quantity becomes a gift of the specific lands selected, vesting in the railroad company a perfect and absolute title to the same. Patterson v. Tatum, 3 Sawy. 166; Doll v. Meador, 16 Cal. 320; Minneapolis & St. C. R. Co. v. Duluth & W. R. Co., 45 Minn. 104, 47 N. W. Rep. 464; Railroad Co. v. Wiggs, 43 Fed. Rep. 333; Wardwell v. Paige, 9 Or. 521.
The facts alleged in the complaint sufficiently show—First, a deficiency in the amount of lands within what we may call the “place limits” of the grant to which plaintiff was entitled; sec-
