The principal question for determination in this case is, when does the grant made to Kansas by the act of congress of the twenty-third of July, 1866, for the use and benefit of the St. Joseph & Denver Railroad Company in the construction of a railroad from Elwood, in that state, to its junction with the Union Pacific Railroad. or a branch thereof, take effect so as to cut off the right of pre-emption from subsequent settlers on the land? The grant is similar in its main features to numerous other grants of land made by congress in aid of railroads, and contains the same limitations, or, rather, exceptions to it. It differs from some of the grants in that it is made to the state, and not directly to the company to be benefited. The act of congress, however, provides, notwithstanding the designation of the state as grantee, that patents for the land shall be issued directly to the company upon the completion of every 10 consecutive miles of the road. The grant is of 10 alternate sections, designated by odd numbers, on each side of the proposed road, subject to the condition that if it appear, when the route of the road is 'definitely fixed,' that the United States have sold any section or a part thereof, or the right of pre-emption or homestead settlement has attached, or the same has been reserved by the United States for any purpose, the secretary of the interior shall cause an equal quantity of other lands to be selected from odd sections nearest those designated in lieu of the lands appropriated, which shall be held by the state for the same purpose. The grant is one in prcesenti, except as its operation is affected by that condition; that is, it imports the transfer, subject to the limitations mentioned, of a present interest in the lands designated. The difficulty in immediately giving full operation to it arises from the fact that the sections designated as granted are incapable of identification until the route of the road is 'definitely fixed.' When that route is thus established the grant takes effect upon the sections by relation as of the date of the act of congress. In that sense we say that the grant is one in proesenti. It cuts off all claims, other than those mentioned, to any portion of the lands from the date of the act, and passes the title as fully as though the sections had then been capable of identification. Nor is this operation of the grant affected by the fact that patents of the United States are subsequently, upon the certificate of the governor, to be issued by the secretary of the interior directly to the company and not to the state. This is only a mode of divesting the state of her trust character, and of passing the legal title held by her to the party for whose benefit the grant was made. The legal title under the grant goes to the state, but the equitable right vests in the company. The state cannot dispose of the lands; she simply holds them for the use and benefit of the company, the act of congress providing how her trust shall be discharged and the legal title be conveyed to the company. The act says that the land granted 'shall inure to the benefit of the said company as follows,' and then proceeds to declare that when the governor of the state shall certify that a section of the road of 10 consecutive miles is completed 'in a good, substantial, and permanent manner as a first-class railroad,' the secretary of the interior shall issue to the company patents for the sections of land granted which lie opposite to and coterminous with the completed road, and that similar patents shall issue upon a like certificate upon the completion of every successive section of 10 miles. It matters not, so far as subsequent settlers are concerned, in what manner the title, which has passed out of the United States, is transferred to the company from the state. When the route of the road is 'definitely fixed' no parties can subsequently acquire a pre-emption right to any portion of the lands covered by the grant. The right of the state and of the company is thenceforth perfect as against subsequent claimants under the United States.

The inquiry then arises, when is the route of the road to be considered as 'definitely fixed' so that the grant attaches to the adjoining sections? The complainant in the court below, who derives his title from the company, contends that the route is definitely fixed, within the meaning of the act of congress, when the company files with the secretary of the interior a map of its lines, approved by its directors, designating the route of the proposed road. On the other hand, the defendant,—the appellant here,—who acquired his interest by subsequent settlement on the lands and a patent therefor, contends that the route cannot be deemed definitely fixed, so that the grant attaches to any particular sections and cuts off the right of settlement thereon, until the lands are withdrawn from market by order of the secretary of the interior, and notice of the order of withdrawal is communicated to the local land-officers in the districts in which the lands are situated.

We are of opinion that the position of the complainant is the correct one. The route must be considered as 'definitely fixed' when it has ceased to be the subject of change at the volition of the company. Until the map is filed with the secretary of the interior the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of different lines. But when a route is adopted by the company and a map designating it is filed with the secretary of the interior and accepted by that officer, the route is established; it is, in the language of the act, 'definitely fixed,' and cannot be the subject of future change, so as to affect the grant, except upon legislative consent. No further action is required of the company to establish the route. It then becomes the duty of the secretary to withdraw the lands granted from market. But if he should neglect this duty, the neglect would not impair the rights of the company, however prejudicial it might prove to others. Its rights are not made dependent upon the issue of the secretary's order, or upon notice of the withdrawal being given to the local land-officers. Congress, which possesses the absolute power of alienation of the public lands, has prescribed the period at which other parties than the grantee named shall have the privilege of acquiring a right to portions of the land specified, and neither the secretary nor any other officer of the of the route established—and period by requiring something to be done subsequently, and until done, continuing the right of parties to settle on the lands as previously. Otherwise, it would be in their power, by vexatious or dilatory proceedings, to defeat the act of congress, or at least seriously impair its benefit. Parties learning of the route established-and they would not fail to know it—might between the filing of the map and the notice to the local land-officers, take up the most valuable portions of the lands. Nearness to the proposed road would add to the value of the sections and lead to a general settlement upon them.

This view of the law disposes of the claim of the defendant. A map designating the route of the proposed road, made by the engineers of the company after careful surveys, and adopted by its direcors, was filed on the twenty-fifth of March, 1870, with the secretary of the interior, who accepted it, and on the twenty-eighth of that month transmitted it to the commissioner of the general land-office, with directions to instruct the proper local officers to withhold from sale, or other disposition, the odd-numbered sections within the limits of 20 miles on each side of the route. On the eighth of April following, the commissioner forwarded a copy of the map to the register and receiver of the land-office at Beatrice, in Nebraska, but it was not received by them until the fifteenth of that month. On the 13th the defendant entered at that office the land in question, at private entry, and paid the government price therefor. In November of the following year a patent for it was issued to him. His entry, as thus seen, was after the map had been filed and the route 'definitely fixed,' and the grant had attached to the adjoining odd sections. It could, therefore, initiate no rights to the land, and the subsequent patent issued upon that entry conferred no valid title to the defendant as against the company or parties claiming under it. The defendant having failed to establish the validity of his own title, attacks the right of the company to the lands covered by the grant, alleging that the company never completed the construction of the entire road for which the grant was made; that after filing its map with the secretary of the interior it changed, for part of the distance, the route of the road, and that it never complied with the conditions of the laws of Nebraska for the extension of its road within the limits of that state. We do not deem these objections, when considered with the facts on which they are based, as having any force. There is to them a ready and conclusive answer. Assuming that the Burlington & Missouri River Railroad, with which the company's road connected, was not, as averred by the complainant, a branch of the Union Pacific Railroad, and that, therefore, the company's proposed road was not entirely completed, the fact remains that the company constructed a portion of the proposed road, and that portion was accepted as completed in the manner required by the act of congress. Patents for some of the adjoining sections were accordingly issued to the company, and a right to all of them, not specially reserved by the condition of the grant, vested in it. So far as that portion of the road which was completed and accepted is concerned, the contract of the company was executed, and as to the lands patented, the transaction on the part of the government was closed and the title of the company perfected. The right of the company to the remaining odd-numbered sections adjoining the road completed and accepted, not reserved, is equally clear. If the whole of the proposed road has not been completed, any forfeiture consequent thereon can be asserted only by the grantor, the United States, through judicial proceedings, or through the action of congress. Schulenberg v. Harriman, 21 Wall. 45. A third party cannot take upon himself to enforce conditions attached to the grant when the government does not complain of their breach. The holder of an invalid title does not strengthen his position by showing how badly the government has been treated with respect to the property.

As to the alleged deviation of the road constructed from the route laid down in the map, admitting such to be the fact, the defendant is in no position to complain of it; the lands in controversy are within the required limit, whether that be measured from one line or the other. A deviation of the route without the consent of congress, so as to take the road beyond the lands granted, might, perhaps, raise the question whether the grant was not abandoned, but no such question is here presented. The deviation within the limits of the granted lands in no way infringed upon any rights of the defendant.

As to the want of compliance with the conditions imposed by the laws of Nebraska, allowing railroad companies organized in other states to extend and build their roads within its limits, it is sufficient to say that when the grant was made to the company Nebraska was a territory, and it was entirely competent for congress to confer upon a corporation of any state the right to construct a road within any of the territories of the United States. The grant of land and a right of way for the construction of a road to a designated point within the territory was sufficient authority for the company to construct the road to that point. It may be well doubted whether the state subsequently created out of the territory could put any impediment upon the enjoyment of the right thus conferred. As we said in Railroad v. Baldwin, 'it could do so only on the same terms that it could refuse a recognition of its own previously-granted right, for in such matters the state would succeed only to the authority of congress over the territory.' 103 U. S. 428. It does not appear from anything before us that the state has ever attempted to interfere with the road or the company for its delay in filing its articles of incorporation with the secretary of state, or in complying with other provisions of law. And it hardly need be added that any such interference would not operate to divest the company of its title to lands granted by the United States.

It follows from what we have said that when the defendant made his entry of the lands in controversy, and obtained a patent therefor, the title had passed from the United States, and consequently no right could be conferred upon him. Still the patent gave color of title, and because of its issue the officers of the land department have refused to give a patent to the company embracing the land, holding, as may be inferred, the view for which the defendant contends that his right to acquire a pre-emptive right by settlement continued until notice of the order of the secretary directing the withdrawal of the lands from market was received by the local land-officers. The existence of the patent, therefore, embarrasses the assertion of the complainant's rights, that is, it prevents him from obtaining a strictly legal title which would enable him to recover possession of the premises by an action at law. The existence of the patent also creates a cloud upon the title of the land. Every instrument purporting by its terms to convey land from the original source of title however invalid, creates a cloud upon the title if it require extrinsic evidence to show its invalidity. Pixley v. Huggins, 15 Cal. 128.

The existence of the patent, therefore, under these circumstances furnishes ground for equitable relief. That relief, however, should properly be limited to a decree declaring the equity of the complainant, the invalidity of the title of the defendant, and enjoining him from the assertion of any claim to the property under the patent; but inasmuch as no objuction is taken to the form of the decree as entered, which requires the defendant to execute a conveyance of the premises to the complainant, and as the execution of such a conveyance, amounting, in fact, to a release of his claim to the property, will accomplish all that could be legally effected, it is not considered necessary to order a modification of it. The decree is accordingly affirmed.