Modified on petition for rehearing, January 30, 1917.
On Petition eor Rehearing.
(162 Pac. 862.)
Mr. Charles A. Hart and Messrs. Carey é Kerr, for the petition.
Messrs. Raley é Raley, contra.
In Banc.
Mr. Justice Mooredelivered the opinion of the court.
In a petition for a rehearing it is contended that the defendant, the Northern Pacific Railway Company, *647which will hereafter be called the company, holds a legal title to only one of the disputed tracts of land, that the United States is vested with such title to the other parcels of the controverted real property, of which latter premises the state courts have no jurisdiction, and that, this being so, an error was committed in not reversing the decree. The transcript shows that lots 2 and 4 in section 5, lots 1 and 2, the north half of the northeast quarter, and the northeast quarter of the southwest quarter of section 7, in township 5 north of range 30 east of the Willamette meridian, were selected November 23, 1872, as swamplands by the State of Oregon, which on August 10, 1892, and March 15, 1895, executed deeds therefor to the plaintiff’s grantors and predecessors. The company, asserting a right to these lands by virtue of an act of Congress, received from the United States patents for the northeast quarter of the southwest quarter of section 7, June 8, 1906; for lots 1 and 2 in that section, December 31, 1907; and for lot 2 in section 5, May 4, 1909. After this suit was commenced the company, considering these tracts of land were excluded from the operation of its grant by reason of the state’s definite location of swamp-land selection, and assuming that the patents referred to were erroneously issued, executed to the United States, December 4,1912, a deed for the real property last described, which deed was duly recorded in the proper county. Thereafter the ■ company filed in the local land office at La Grande, Oregon, its mineral indemnity selection for these lands, and on May 25, 1914, pursuant to such choice, it received from the United States a second patent for the northeast quarter of the southwest quarter of section 7. The General Land Office rejected the state’s selection of lot 4 in section 5, and *648the north half of the northeast quarter of section 7, for which latter real property the company also filed mineral indemnity selections.
6. The former opinion in this cause proceeds upon, the theory that the company was unquestionably vested with the naked legal title to the northeast quarter of the southwest quarter of section 7, for which it-had received the second patent, but that its right to-, such land was barred by the adverse occupancy of the premises by the plaintiff and his grantors and prede-, cessors. As to the other tracts for which patents had been received by the company, but which it had attempted to deed to the United States, the naked legal title might well be regarded as being held by the company, notwithstanding the signing and recording of its-deed. Like any other contract, a deed, to be valid, requires the aggregatio meniium of the grantor and the grantee. In the case before us there is no evidence tending to show that the United States ever accepted that deed, which evidently appears to have been signed and recorded by the company to circumvent the granting of a part of the relief prayed for in this suit. Section 44 of the act of Congress of February 14,1859, admitting this state into the Union, contains a clause which reads:
“Provided, that the foregoing propositions, herein-before offered, are on the condition that the people of Oregon shall provide by an ordinance, irrevocable without the consent of the United States, that said, state shall never interfere with the primary disposal of the soil within the same by the United States, or with any regulations Congress may find necessary for securing the title in said soil to bona fide purchasers thereof”: 11 U. S. Stats. 383.
When the patents were thus issued the United-States thereby made a primary disposal of the soil,. *649and the title so transferred to the company made it :no more immune- from attack in the state courts than if such conveyance had been executed by a private party. No error was committed in determining that as to all the real property so patented the company held only the naked legal title, which was defeated by the adverse holding of the plaintiff and his grantors.
7. The state’s selection as swamp-land of lot 4 of section 5 and the north half of the northeast quarter of section 7 was rejected by the General Land Office, and the company’s selection thereof as mineral indemnity was approved by the local office. No patent for any part of this land has ever been granted, and the title thereto is in the United States. While the title so remains, a state court is powerless legally to interfere therewith.
8. It should be the duty of such a tribunal, however, when it finds two parties who are seeking to obtain the title to government land, to protect the possession of him that apparently has the better right until the controversy can be adjudicated by the agencies appointed by the United States for that purpose: Kitcherside v. Myers, 10 Or. 21; Jackson v. Jackson, 17 Or. 110 (19 Pac. 847); Hindman v. Risor, 21 Or. 112 (27 Pac. 13); Pacific Livestock Co. v. Gentry, 38 Or. 275 (61 Pac. 422, 65 Pac. 597); Borman v. Blackmon, 60 Or. 304 (118 Pac. 848).
The decree will therefore be modified so as to enjoin the defendants, their agents, servants, etc., from interfering with or disturbing the plaintiff’s possession of the real property last described until the question is determined in the manner suggested. With this alteration the former opinion is adhered to in all respects. Affirmed. Modified on Rehearing.