The grant to the Burlington and Missouri River Railroad Company, by the act of Congress of July 2, 1864, c. 216, was of ten sections of land for every mile on each side of the line of its road when located, such sections to be designated by odd numbers, and the land to be only taken which, at the time the line, was definitely fixed, had not been sold, reserved, or otherwise disposed of by the United States, and to which a pre-emption or homestead claim had not attached. The grant was one of quantity, without any designation, in express terms, of any lateral limit on either side of the road, within which the land was to be selected. In this respect it differed from nearly all other grants of land made by Congress in aid of the construction of railroads. Other grants usually prescribed a lateral limit. The omission in that case was not accidental. Nearly all the land within the distance usually prescribed as a limit had already been disposed of to another railroad company, or, from the general settlement of the country, was likely to be appropriated before the line of the road could be definitely located. In order, therefore, that its proposed aid might not be defeated, Congress allowed the land granted to be taken on the line of the road wherever it could be found, without regard to the distance from its line to which the grantee might be compelled to go to satisfy its grant, by reason of previous appropriations.
Although there was no express limitation of the distance from the road in which the land was to be selected, it was necessarily implied that the selection should be made of alternate sections nearest the road, of which the land had not been previously sold, reserved, or otherwise disposed of. The company was not at liberty to pass beyond land open to its appropriation, and take lands farther removed from its road. In all grants which are to be satisfied out of sections along a line of a road, it is necessarily implied, in the absence of specific designation otherwise, that the land is to be taken from the nearest undisposed sections of the character mentioned. Such grants give no license to the grantees to roam over the whole public domain lying on either side of the road, in search of land desired. The grants must be satisfied out of the first land found which meets the conditions named.
The line of the defendant's road was definitely located in June, 1865. The land consisting of the alternate sections designated by odd numbers within a limit of twenty miles was withdrawn from sale in July following, and so much of it as had not been previously sold, reserved, or otherwise disposed of, or to which a homestead or a pre-emption claim had not attached, was thus appropriated to the satisfaction of the grant. It could not be subsequently applied to other purposes or devoted to the claim of private parties. It was immediately taken by the grant, and would have been sufficient to satisfy it in full, if no portion of the odd sections had been previously disposed of, or subjected to other claims. And the grantee could only go beyond that limit when it was found that there was a deficiency remaining after all within it had been appropriated.
The grant was one in proesenti, and when the sections granted were ascertained, the title to the land took effect by relation as of its date, except as to the reservations named. The land to which the complainant asserts a homestead claim is embraced in one of the sections within the twenty-mile limit; his claim, therefore, necessarily falls before the superior right of the company. Its estate had become vested when he took the initiatory steps to secure a homestead right.