Dissenting. Congress, by an act, approved September 20th, 1850, granted to the State of Illinois, for the purpose of aiding in making the railroad known as the “ Illinois Central Railroad,” “ every alternate section of land designated by even numbers, for six sections in width, on each side of said road,” and a quantity of land, equal to so much of such alternate sections as should appear to have been, prior to the mailing of the grant, sold by the United States, or to which the right of preemption had attached, to be selected, by the State of Illinois, in alternate sections, or parts of sections, from other lands of the United States, within fifteen miles of the line of said road, reserving from the operation of the act “ aE lands reserved to the United States by the act entitled, ‘ An act to grcmt a gucmbity of land to the State of Illinois, for the pmpose of aiding In opening a carnal to connect the waters of the Illinois river with those of LaTee Michigan f ” and fixing the rmnimum price of the sections of land remaining to the United States, within six miles of the line of the railroad, at double the ordinary minimwm price of the public lands. Laws of Congress 1850, p. 466.
The complainants claim that the title of defendant, based upon his settlement and entry, made under the preemption law of 1841, is subject to a prior equity in them, by virtue of an entry of the same land, tinder which they claim, made subsequent to his settlement, and prior to his entry.
The ground assumed by the complainants is, that the land, being within the twelve miles in width on the line of the road, and of the alternate sections not granted to the State of Illinois, is not subject to preemption under the law of 1841, and, therefore, that the allowance of the preemption claim of defendant was without jurisdiction, and void.
The preemption law of 1841 excepts from its operation the “ sections of land reserved to the United States, alternate to other sections, granted to any state for the construction of any canal, railroad, or other public improvement.” United States Statutes at Large, Yol. 5, p. 455, Sec. 10.
At the time of the passage of this law, several grants of lands, in alternate sections, similar to the grant of 1850 to the State of Illinois, had been made by congress to states for purposes of public improvement; but, so far as I have been able to discover, the laws malting those grants expressly reserve “ to the United States” the sections of land alternate to those granted. U. S. Statutes at Large, Yol. 4, p. 234; ibid. p. 236.
Under such special clauses or reservations, I render the course of decision of the offices of the federal government, having jurisdiction in the matter of the disposition of the public lands, to be, that while the lands remain out of common market, by force of the reservation, they are not subject to preemption under the law of 1841, but that, when restored to the mass of the public lands, and subject to private entry, they become subject to preemption under that law.
The law of 1850 simply grants to the State of Illinois the alternate sections within the named limits, .and contains no words of reservation whatever, except as before stated, leaving the lands within the same Emits, not granted, unaffected, except as to the minlnvu/m price; and leaving unchanged, in any particular, the lands of the United States, alternate to those to be selected by the State of Illinois, without the mentioned limits, and within the fifteen miles of the line of the road.
There is nothing in this law, or stated in the bill, which shows that the land in controversy was in any manner reserved or taken out of the mass of the public lands, or not subject to private entry, at the time of the defendant’s settlement and purchase as a preémptor; and, indeed, the complainants claim under purchase at private entry, made after the defendant’s settlement. It cannot be said that the mere granting the alternate sections to the State of Illinois, or to any one, amounts, in the sense of the law of 1841, to a reservation of the other alternate sections not so granted, from the operation of the preemption laws, or from private entry. It is self-evident that what is not granted or sold of the mass of the public lands remains to the United States, as common proprietor, but remains unaffected by the grant or sale of a part, and subject to disposition, under the laws, the same as ÍDefore.
It is not contended that the lands remaining to the United States, without the twelve miles in width, on the line of the road, alternate to sections selected by the State of Illinois, in lieu of lands within those limits, prior to the grant sold by the United States, or to which the right of preemption had attached, are not within the operation of the preemption law of 1841; and yet the only difference between the lands so remaining to the United States, within and without those limits, is, that in the one case, the rnmmrvam price is increased to two dollars and a half per acre, while, in the other, it remains at one dollar and a quarter. ¡Nor am I able to discover that the grant, except as stated, affects the disposition of- the lands remaining to the United States, because not granted, alternate to those granted, any more than if the lands so granted had been sold at public sale, or private entry. In view of the uniform policy of congress, in encouraging settlement and improvement of the public lands, evinced by the various preemption laws, it would be difficult, in the absence of express provision, consistent with that known policy, to find a reason why lands once exposed to public sale, and open to private entry, at a fixed mmimvm, should not, and are not, subject to preemption entry, at the same mini/mum price.
It is apparent to me, from the record and the course of the argument, that there is no real litigation between these parties, and that both seek the same decision in this court, probably for ulterior purposes. A majority of the court, however, feeling bound to adjudicate upon the record, I give my views on the case presented. I think the decree sustaining the demurrer to complainants’ bill should be affirmed.