In the Cunningham ease it would be unprofitable to restate our own views upon the principal questions. The court is constrained by the obligations of judicial decorum to hold that the release of the title to the clear lands on the Ontonagon & State Line Road, in which this tract was situated, executed by the Chicago & North-Western Railway Company, and 'by the governor of the state of Michigan to the United States, was unauthorized by law; and the selection of such lands *589for tlie canal company, and the certification thereof by the secretary of the interior, were void. If this land was confirmed to the present canal' company by the act of 1889, while it might relate back to the date of selection for some purposes, it would not tío so for the purpose of maintaining an action brought in tlie moan time. To sustain the action of ejectment, the plaintiff must have had title at the commencement of the» suit, and if it had not then a title it cannot succeed upon a right subsequently perfected. The verdict in that case must therefore be for the defendant.
In the Donahue case the land lies in the common limits of the Marquette & State Line and the Ontonagon & State Line branches. It may be that the release by the Peninsula Railroad Company did not operate to release these lands, or a moiety thereof. But the first release of the Chicago & North-Western Railway Company and the first release by the governor surrendered all the lands in those common limits. This action was never repudiated by the state, nor, so far as appears, ever questioned. The land department has since acted upon the validity of that surrender, and we think its validity cannot bo questioned by the defendant in this suit. This land was selected for the canal company. The selection was approved by the secretary of the interior, and the land certified by him to the canal company. In that case the verdict must be for tlie plaintiff’.
In the Finan case the land, as in the Cunningham case, is in the clear limits of the Ontonagon & State Line branch. The title stands in the same plight as in the Cunningham case. But the suit was commenced since the act of March 2, 1889, was passed, and it becomes necessary to decide whether the third section of that act operated to confirm the title of the canal company to the land in question. If it were not for the express mention of the claims of the canal company in section 2, we should be prepared to hold, upon the liberal construction which should be given to statutes of this character, that the title of the plaintiff was confirmed by the provisions of section 8. It is hard to understand why congress should have excluded one party from the scope of the justice which it was endeavoring to secure to those who had purchased the forfeited lands for value, under color of lawful authority, supposing thoy were acquiring a valid title, and have laid the scourge upon that one. But it is a question of construction, and my Brother Sage is of opinion that the specific mention of the canal company’s claims in section 2 brings the subject under the rule which excludes the particular matter from the ojioration of the general provision: and while 1 have serious doubt whether the claim of the canal company in respect to these lands is so specifically dealt with and disposed of by the second section as to exclude it from the equity generally accorded by section 3 to all persons coming within the conditions there mentioned, I shall, with considerable hesitation, however, concur in his construction. This conclusion leaves this ease exposed to the opinion of the circuit judge in the Cunningham case, and there must he a verdict for the defendant in this case also.
Sage, J. I concur.