Page:North Dakota Reports (vol. 2).pdf/397

limits; that the company had selected these lands in the manner prescribed by the secretary, within the indemnity limits; and that they were a portion of the lands subject to selection. So far as the secretary was authorized by law to make this determination, and in the absence of fraud, this determination or certificate by the government that it had satisfied itself upon these points would be conclusive as to these facts upon the government and its privies; but it would not and could not add anything to the title granted to the company by the act itself. The rights of the company depend for their existence upon the act of congress, and the company’s compliance with the conditions prescribed. They do not in the slightest degree depend upon the interior department satisfying itself of the existence of the facts showing such compliance, and issuing his certificate therefor, but upon the existence of the facts themselves. As soon as the facts exist, the rights exist. Wright v. Roseberry, 121 U. S. 488, 7 Sup. Ct. Rep. 985; Denny v. Dodson, 32 Fed. Rep. 903; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 6, 11 Sup. Ct. Rep. 389; Doll v. Meador, 16 Cal. 295; Megerle v. Ashe, 33 Cal, 83; Hendrick v. Hughes, 15 Wall. 123; Railroad Co. v. Wiggs, 43 Fed. Rep. 338. In the last case the court had before it the very question presented here, arising as it did, upon one of the few railroad land grants similar in its terms to the Northern Pacific grant. In that case the company selected, as far as it could, without the concurrence of the department, the land in controversy, by presenting a list including the same, prepared in the usual form in use for such selections, to the district land officers, and tendering the necessary fees. The list was presented July 9, 1885, but was rejected because the land had been patented June 12, 1885, to a settler. No question as to there being a deficiency, or that the selection was in proper form, was made. The company filed its bill to have the patent declared null and void as a cloud on its title. The court sustained the action. Judge Sawyer, delivering the opinion, after holding that there was a legislative reservation of the indemnity lands, by reason whereof the patent was void, says: “Although the selection of the lieu lands was to be made under the direction of the secretary of the interior, they were to be ‘selected by said com-