(concurring). I concur in the opinion of the court for the following reasons, briefly stated: The act of congress of 2d of July, 1864-, did not grant to the Northern Pacific Bailway Company one-half of a certain tract of land eighty miles in width, of which the railroad track is the center line, through the territory of Montana, as seems to have been the theory of the United States district attorney in framing this complaint. But there were granted to the Northern Pacific Bailroad Company the alternate sections, to be designated by the odd numbers, in an area extending forty miles on. each side of the railroad track, as it runs through the territories. This did not create a tenancy in common. No interest whatever was ever granted to the railroad company in the even-numbered sections. The title therein remained in the government. Then, as soon as the route was located and surveyed, and the map thereof was filed with the commissioner of the general land office or the secretary of the interior, and not before, the grant from the government took effect, and attached to the specific parcels of land known as odd sections, lying on each side of the established route. And these even-numbered sections were easily distinguished. In fact, they were already known; for, before the building of the railroad, as this court judicially knows from current history, the base line and the principal meridian of Montana, and the initial point, had been long since established, and the several townships ranked themselves in place on the ground. They had their several locations in ranges north and south of the base line, and east and west of the meridian, and these designations were already determined. A.nd in the same *372manner each section in each township was known by its number as well then as it ever was, or ever would be. The general land office, years before the territory of Montana was set apart from the public domain, had established the present system of designating townships and numbering sections. The sixteenth and thirty-sixth sections in each township had long before been set apart by legislative enactment for the benefit of public schools. And the setting apart of these odd sections for this railroad company was done in the same manner. It is true, they could not be exactly identified on the ground itself until a survey had been made; but this fact does not in the least affect the title. There were the initial point, the base line, the principal meridian, and the railroad track, from which all measurements must be made; and any surveyor could take a chain and transit and mark every corner of every tract belonging to the railroad company. Por this reason, also, there was no tenancy in common. But the railroad company owned these lands, as it does now and always has, in severalty; and the United States still holds the title to the even-numbered sections, which were never in any way affected by the railroad grant. I do not fully approve the decision in the case of Northern Pac. R. Co. v. Majors, 5 Mont. 111, as to the time at which the grant of the lands to the company attached to the particular tracts.; but, as far as it is quoted as an authority in this case, it meets my approval.
The true rule, as it seems to me, fixing the time when this grant attached to the particular lands, is set forth in the case of Buttz v. Northern Pac. R. Co. 119 U. S. 55 (decided at the autumn term, 1886), by the supreme court of the United States; and in this particular it appears to conflict with the case of Northern Pac. R. Co. v. Majors, above cited. In all other particulars I fully concur in the opinion of the court herein rendered.