This was an equitable action brought to have ai-claim of title to certain real estate, asserted by the defendants, husband and wife, adjudged to be without foundation, and to have a patent deed to said land issued by the United States authorities-to one McCormick, said defendants’ remote grantor* set aside and canceled, because improperly issued and fraudulently obtained, and also to have plaintiff’s alleged title to the premises declared good and valid. The complaint fully stated the facts constituting the claim of each party, and the defendants separately demurred, on two grounds. The demurrers were sustained, on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the arguments here were confined to á discus* sion of that issue. The plaintiff’s title rests upon a deed from a railway company beneficiary, under an act of congress approved May 12, 1864, (13 Stat. ch. 84, p. 72.) By the terms of the seventh section there were granted, in aid of railway construction, “four additional alternate sections of land per mile, to be selected upon the same conditions, restrictions, and limitations” as were con* tained in the original land-grant act of March 3, 1857. It was also provided that these additional sections were to be located within twenty miles of the line of railway, and it is obvious that they were' to be selected and obtained precisely as were lieu or indemnity lands under the original act, and until so selected they were subject to the same conditions, restrictions, and limitations. It is alleged in the complaint that the land in question was reserved and withdrawn by the secretary of the interior from sale and entry on July 2, 1864. Although a map of the final and definite location of the railway was filed August 10, 1865, the list of lands selected; in accordance with the provisions of the act of 1864 was not filed* until May 3, 1873. This list was approved by the secretary on May 14, 1873. The lands embraced in this list, including the quarter section in controversy, were then certified to the state, and hy it conveyed to the railway company.
The law respecting land grants in aid of railways is so well settled that this case is easily disposed of. The railway company could not, and did not, have any vested right in lands to be acquired under the provisions of the statute of 1864 until such lands were actually selected by the secretary of the interior, and evidently *44■nothing was done in the way of selection until the lists were approved in May, 1873. Until then tbe right to the additional four sections per mile was a float only, attaching to no particular tracts of land, and in this respect differing not at all from lieu or indemnity lands provided for in the original act of 1857. As no vested right could attach to the place lands (the odd-numbered sections ■within six miles on each side of the line of railway as definitely fixed) until these sections were actually ascertained and identified by a legal location of the line, so in regard to the four additional sections, which were to be selected within the still larger limit •of twenty miles, there could be no ascertainment and identification until a selection thereof was made in the manner prescribed in the granting statute. But it is argued by appellant’s counsel that the rights of the railway company upon selection relate back .and attach as of July 2, 1864, the day on which, it is alleged, the secretary reserved and withdrew the land from sale and entry. 'There is nothing in this position. Even if there had been no prior •claim upon, or entry of, the quarter section when the order was made, and it had then been open to selection on behalf of the company, such order of reservation and withdrawal would have implied no vested right in the railway company inconsistent with the .right of a pre-emptor or homesteader to make settlement and •entry. Such- entries by actual settlers of lands within the place limits prior to the ascertainment and actual location of the lines of railway were contemplated and provided for in the act of 1857. ‘The granting statute, in some cases, has required the land department to reserve and withdraw from market or entry lands which might become subject to selection, and in others the officers have done so voluntarily, which was the case here; but this is simply to' give the railway companies a reasonable time within which to make their selections. They acquire no vested rights by such-reservation or withdrawal. It is not until the selection is made that the unascertained float becomes a vested right to an identified tract of land. St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, (5 Sup. Ct. Rep. 334,) affirming 27 Minn. 128, (6 N. W. Rep. 461.) The voluntary order of the secretary reserving and •withdrawing lands from entry or sale which might thereafter be .subject to selection created no right or equity in the beneficiary of *45the land-grant act, and, exercising the same power or authority which existed to reserve or withdraw the lands, the order might be wholly revoked, or, in part, set aside and disregarded, by an appropriation of a specific tract to some other lawful purpose.
In the case at bar, McCormick filed a declaratory statement under the pre-emption law, June 14, 1864, soon after the enactment of the statute, under which the same tract of land was certified, to the state, and by it to the railway company. This was eighteen days prior to the alleged withdrawal and reservation. Final proof was made by the pre-emptor, and a. patent was issued to him,, bearing date September 9, 1871, about two years before the pretended selection was made in behalf of the railway company. The' land had not only been appropriated and patented under the preemption laws of the United States when the attempt was made' to select it under the provisions of the law of 1864, but it was covered by a declaratory statement, valid on its face, on which the officers of the land department subsequently acted, when the secretary made his order of July 2, 1864. But counsel for appellant attempt to evade the effect and force of the declaratory statement and the patent by alleging that McCormick was not a qualified pre-emptor when he filed the declaratory statement in 1864, and that his final proof was made through fraudulent practices and false' oaths. It is also alleged that in 1871 an investigation of the good faith of said McCormick when making the pre-emption was ordered by the officers of the land department, which resulted in a finding by the commissioner of the general land office, subsequently affirmed by the secretary, to the effect that the pre-emption was fraudulent. It also appears that the patent was issued several' weeks before the investigation was held. These allegations are of no consequence, for, if true, they do not tend to establish plaintiff’s title to the land. To the contrary, they show that the railway company could not acquire title to the land under the terms' of the land-grant acts upon which it must rely. The right of the railway company to the additional four sections per mile did not attach to any particular tracts until selections were made,, as before stated, and at that time McCormick held a patent for the land, based upon a declaratory statement, valid upon its face,, filed prior to the alleged withdrawal and reservation from sale and *46.entry. The land bad been otherwise appropriated by the United States when the railway company attempted to secure it through •selection. As before stated, the railway company had no vested rights in this or any other particular tract of land until it made its selection, and consequently McCormick’s alleged fraudulent acts were no fraud upon it. The general government only, having the right to otherwise dispose of the land pending a selection, ,can question the bona fides of the McCormick entry. Order affirmed.
(Opinion published 56 N. W. Rep. 359.) Application for (-(¿argument denied November 3, 1893.