ON REHEARING.
A rehearing was ordered in this case on the petition of respondents, and the case has been again fully argued. It is first urged upon us that the evidence offered by the defendant in the court below to show that a contest between defendant and plaintiffs’ grantor, concerning this same land, was pending in the interior department, *457was properly excluded. We did not recite that evidence in the original opinion, and will here state that plaintiffs have been permitted to introduce in evidence an authenticated copy of an opinion rendered in that contest by the secretary of the interior a short time prior to the trial below. Defendant sought to show that the contest was still pending, by showing that defendant had filed a motion for review before the secretary of the interior. For that purpose, S. B. Pinney, Esq., was placed upon the stand, and testified that he was the attorney for the defendant, La Bar, in the contest proceedings, and that he filed a motion for review in said case, and served a copy of said motion on the attorneys for the adverse party, and a paper which Mr. Pinney testified was a copy of said motion was offered in evidence. This paper, as well as the testimony of the witness, was objected to as irrelevant, incompetent, and immaterial, and both were excluded by the court. It is claimed that the parol evidence that the paper was a motion for review was not competent to establish the fact, and the paper itself was inadmissable, because not the best evidence, since § 891, Rev. St. U. S., provides that authenticated copies of papers in the land office shall be evidence equally with the originals. But that statute does not exclude the examined copy. It does not exclude what was before proper evidence. It simply makes that evidence which without this statute was not evidence.
It is urged, however, that it was not shown that the motion was made within the time prescribed by the rules of the department. A sufficient answer is that, when the evidence was excluded, the defendant had not rested, nor had the witness been excused. A party cannot put in all his evidence at once. The defect might have been cured in the further testimony. It was no ground for exclusion at that time. But it is proper to add that this court inadvertently went too far on this point in the original opinion We held this evidence improperly excluded, and then assumed that, if admitted, it would have been conclusive upon the question of the pendency of the contest, and hence ordered the complaint *458dismissed. The plaintiff might have rebutted this evidence. The order should have been for a new trial.
It is contended, however, that the secretary of the interior was without jurisdiction to entertain a motion for review; that, when the United States parts with its title, the jurisdiction of the interior department ceases; and, granting that the approval of the secretary of the interior is necessary to pass title to lands selected by the Northern Pacific Railroad Company in the indemnity belt, yet, as stated in the original opinion, such approval may be shown by a decision in any given case, and as, in the opinion of the secretary filed in this case, the selection of the land in controversy was expressly approved, therefore the title at once passed from the general government, and stripped the interior department of jurisdiction. The position has nothing to recommend it except its novelty. It must be true in every jurisdiction that no judgment or decision can be final until the expiration of the time fixed by law or the rules of such jurisdiction in which to apply for a rehearing or review. Otherwise, a review would always be a farce. True, if no such application be made within the time limited, the decision at once becomes final from the date of its rendition; but, if such application be. made, it suspends the operation of the decision, and if, on the review, a different conclusion be reached, the former decision becomes of no force or effect whatever. But counsel’s brief is devoted principally to an attempt to establish the proposition that the title of the United States to the lands within the indemnity belt of the Northern Pacific Railroad Company passed by the grant of upon the filing of the map of definite location of its line, and hence the jurisdiction of the interior department had ceased, and all further controversies concerning the title to or right in this land must be waged in court. It was to this point that the original opinion was directed, and we will briefly add to what was then said, in order to more directly meet the objections urged by counsel. We stated that the grant was in firasenti, as to place lands. It is insisted that it is in fircesenti, to the amount of 20 *459sections per mile, provided such amount can be found subject to the grant, and within the lateral limits of 50 miles from the line of definite location. Much stress is laid upon the wording of the grant. The language is “that there be, and hereby is, granted, * * * 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, * * * whenever on the line thereof,” etc. This same language was held in U. S. v. Burlington, & M. R. R. Co., 98 U. S. 334, to be a grant in quantity absolute. But in that case the grant was limited by no lateral lines whatever. It was simply an absolute grant of land to the amount of 10 alternate sections per mile. We think that case very instuctive in its bearing upon this case. The government had patented to the Burlington & Missouri River Railroad Company more than a million acres of land outside the 20 mile limit, which would have covered the 10 alternate sections in that case. By far the greater portion of the land thus patented was opposite the western portion of the line. Subsequently, an action was brought to annul these patents on the ground that the company was entitled to nothing outside of the 20 mile limit. The patents were sustained, the courts holding, as already stated, that it was a grant in qantity. But it was urged, also, that, if the company could go outside of that limit, it could not take land opposite one 20 mile section to make good losses accruing opposite a section further east. Said the court: “When no lateral limits are assigned, the land department of the government, in supervising the execution of the act of congress, should undoubtedly,, as a general rule, require the 'land to be taken opposite each section.” It appeared that the map of definite location was filed in June, 1865, but the land outside the 20 mile lateral limit was not withdrawn from sale until May, 1872. “Between the definite location of the road in 1865 and the withdrawal of lands outside the 20 mile limit in 1872, the greater part of the land opposite the eastern sections of the road was disposed of by the government, and therefore most of the land covered by *460the patents lies opposite the western sections.” It would seem perfectly clear that, if title to land outside the 20 mile lateral limit passed to the company upon filing the map of definite location, then the government could not have disposed of the land opposite the eastern section after the filing of such map, and the railroad company, under the rule there declared as to the duty of the land department, would have been required to exhaust all lands in the. alternate sections opposite each 20 mile section of the road before it could ask indemnity, for losses opposite one section, out of lands opposite a section further west. The case is direct authority against the position, even in that case, that title to land outside a 20 mile lateral line passed from the government upon filing the map of definite location. True, there was no specified lateral limit in that grant; but in the subsequent case of Wood v. Railroad Co., 104 U. S. 329, it was held that the filing of the map of definite location, followed by the immediate withdrawal from sale of all alternate sections within a lateral limit of 20 miles, at once appropriated such lands to the satisfaction of the grant, and no selection within that limit was necessary, because if all remained unreserved and untaken, yet it required all to fulfill the terms of the grant; but “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.”
But the reasons which impel us to hold that, under the grant to the Northern Pacific Railroad Company, nothing passed upon filing the map of definite location except the place lands, are much stronger than under the grant to the Burlington & Missouri River Railroad Company. The general granting language is the same, but in the case of the Northern Pacific that language is followed by an indemnity clause, that necessarily confines it and limits it in its operation. The language is “that there be, and hereby is, granted to the Northern Pacific Railroad Company, * * * every alternate section of .public land, not mineral, designated by odd numbers, to the amount of 20 alternate-sections per mile on each 'side of said .railroad line, as said *461company may adopt, through the territories of the United States, * * * and wherever on the line thereof the United States have full title not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other, claims of right, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office; and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved or occupied by homestead settlers or pre-empted or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections.” Respondent says this is a grant of no particular sections, but is a grant of a specific amount, to be taken from alternate sections. The indemnity clause says: “And whenever prior to said time, any of said sections or parts of sections shall have been sold,” etc. What sections? If no specific sections were intended, who can say that any of “said sections” have been sold? If the grant was a grant in fircesenti, to be perfected by the filing of the map of definite location, of a specific quantity of land, provided it could be found in the alternate sections of a lateral limit of 50 miles, then either there would be no deficiency, or, if there were a deficiency, it .never could be compensated, because the 50-mile limit could not be passed, and the privilege which the corporation took under the indemnity clause was the right to indemnify itself for losses sustained within a given territory, but limited to that same territory for its compensation. Again by the grant, the indemnity belt is to extend “not more than ten miles beyond the limits of said alternate sections.” If no specific sections were intended, what power can fix the lateral limit? Now, if we say that the present grant was of every alternate section designated by odd numbers, to the amount of 20 alternate sections in number per mile on each side of the line of road, then it is readily determined whether or not any of “said sections” were sold, and, if so, the corporation goes beyond those *462sections for its indemnity, and into another belt, 10 miles in width. It goes there, not because the additional land was originally granted to it, but because it was given the privilege to go there in case it failed to obtain certain lands which were originally granted on condition, to-wit: on the condition that at the time of the filing of the map of definite location such land should not be appropriated in the manner in the statute specified. The one construction makes the act an harmonious whole. The other makes it incomprehensible in all its parts. The construction of that grant is for the Federal Courts, but we cannot hold that it was a grant in prcesenti of indemnity lands until the Federal Courts have clearly so decided. We are cited to know such holding. The case of St. Paul, & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. 389, is again 'urged upon us with confidence. We have already distinguished that case, and we repeat the distinguishing feature: There the land was withdrawn from sale, and it affirmatively appeared that all the land within the alternate indemnity sections would not make good the losses in that jurisdiction, and it is expressly stated that selection by the secretary was not required for that reason. Here, it is not shown that all lands in the indemnity sections were required to make good-losses sustained, and it expressly appears that the land was not withdrawn from sale. Moreover, that case would seem, by the subsequent case of U. S. v. Colton, Marble & Lime Co. 146 U. S. 615, 13 Sup. Ct. 163, to be limited to contests between railroad companies under conflicting grants.
Since the original opinion herein was filed, the case of Railroad, Co. v. Araiza, 57 Fed. 98, which arose in the southern district of California, has been published, and it is relied upon as authority for respondents’ position. It will not bear that construction. It is a substantial repetition of Railroad Co. v. Wiggs, 43 Fed. 333. In each case the land had been patented to a settler, and the action was brought in equity to declare the patentee a trustee for, the railroad company. Both actions arose in California, where the lateral limit to the indemnity land was only 30 miles. In each *463case the land was required to make up the deficiency in place lands, and in each the rights of the settler were initiated after the land was withdrawn from sale, both by the operation of the grant and by order of the department. The case in 57 Fed. is based upon the Buttz case, in 119 U. S. 55, 7 Sup. Ct. 100, for, after quoting from that case the same language quoted in our original opinion, the court says: “The language of the sixth section of the two acts, being in substance, and almost literally, the same language of the Supreme Court above quoted, is equally applicable to the case here. If, as there held, the law itself withdrew from sale or pre-emption the odd sections to the extent of 40 miles on each side of the road represented by the map of general route, manifestly, it withdraws from sale or pre-emption the odd sections within the limits named in the grant on each side of the line of road, as fixed by the map of definite location. Such being the true construction of the statute as declared by the Supreme Court, it would seem to result necessarily that all of the odd sections within the indemnity, as well as in the primary, limit’s of the grant contained in the act of July 27th, 1866, were withdrawn from sale or pre-emption without regard to the order of withdrawal promulgated by the secretary of the interior through the commissioner of the general land office, and consequently they were not open to entry or settlement at the time of defendant’s entry and settlement thereon.” To distinguish that case, we need only remember that the land here in controversy is beyond the 40 mile limit, withdrawn by virtue of the grant, and there was no order of withdrawal in force at the time of defendant’s settlement. We by no means overlook the fact in the original opinion that the selection of indemnity lands was, under the grant, to be made by the company. We give that language full force. The selection segregates the land, and if approved, cuts off all claimants subsequent to such selection. But is does not pass title. A grantee cannot pass title to himself. This grant, as we have seen, did not pass title. It gave only a right to select. It requires the approval of the selection to pass title. It will not do to say that *464the selection itself, where the land is subject to selection and a corresponding loss exists, passes title. The law does not so declare, and land titles must not rest upon a foundation so uncertain. Every man is entitled to trace his title through an authorized record. It must not be left to stand one day, and fall the next, as he may or may not be able to prove certain facts.
There is but one more point upon which we care to add anything to the original opinion. It is urged that, granting that respondents stand simply upon an unapproved selection, yet they have a right to maintain this action to restrain the injurious acts of a mere trespasser. The proposition begs the question. We are required to assume that appellant is a trespasser, while, if his contention be sustained, he is a pre-empter lawfully in possession of a portion of the public domain; and that is the essence of the contest which appellant sought to show was pending before the secretary of the interior. Applications to file pre-emption declaratory statements upon unapproved selections were expressly recognized by the order of August 15th, 1887, revoking the former order of withdrawal of these lands. But of what avail could such application be if the applicant is not permitted to maintain his settlement? The fact that this land is segregated by selection does not preclude an application to make a filing thereon. It only subjects such application to the final ruling on the selection. It is urged that in Wisconsin Cent. R. Co. v. Price Co., 133 U. S. 496, 10 Sup. Ct. 341, plaintiff, standing only upon unapproved selection, was permitted to maintain an action to remove a cloud from the title. The point is not very clear, as the case is reported. The decision does not mention it. In that case the land came through the state, and it is recited in the opinion that the selections made by the state agent had never been approved by the secretary of the interior. The action was brought in April, 1884. The fourth finding of fact by the trial court — and which does not appear to have been questioned — reads: “That on the 25th day of February, 1884, the plaintiff received a patent from the state for all of said lands, and thereby acquired the absolute title in fee to *465the same,” and the statement of facts by Mr. Justice Field recites that in April, 1884, the plaintiff was the owner of certain lands situated, etc., and had a patent for them from the state, bearing date on the 25th of February, 1884. In that state of the record it cannot be said that plaintiff stood only upon an unapproved selection. For the error already noticed, the former order herein will be modified, and the trial court directed to reverse its judgment and order a new trial. With that modification, we adhere to our former opinion.
(57 N. W. Rep. 241.) All concur.