Page:North Dakota Reports (vol. 2).pdf/382

 the line of road is definitely located. But when that line is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office, the base line on each side of which the alternate odd-numbered sections are to be taken is determined. Railway Co. v. Dunmeyer, 113 U. 8. 640, 5 Sap. Ct. Rep. 566. This act does not, in terms, prescribe a lateral limit within which the land granted is to be taken. It is of lands “to the amount of twenty alternate sections per mile.” In this respect it differs from every preceding grant of lands made by congress to aid in the construction of railroads; but, while no lateral limits are made in terms, it by no means follows that the filing of the map of definite location does not identify any of the lands granted. The grant being of “every alternate section” that was free from adverse claims, no license was given the grantee to roam over the public lands, taking odd sections at will The grant was to be satisfied from the undisposed of, non-mineral, odd-numbered sections nearest to the line of the road. The company was not at liberty to pass beyond lands open to appropriation under the grant, and take lands further removed from the line of its road. This being so, and as all odd-numbered sections within forty miles on each side of plaintiff’s road would be required to satisfy its grant, even were there no losses by reason of reservation, sales, grants, or the attachment of pre-emption, or other claims or rights, prior to the filing of the plat of definite location of the road in the general land office, the filing of the plat necessarily identified all of the odd-numbered sections of non-mineral, public land within forty miles of the line as a portion of the grant, and causes the title granted to attach thereto without further selection on the part of the grantee. Wood v. Railroad Co., 104 U. 8. 327; Vance v. Railroad Co., 12 Neb. 285,,11 N. W. Rep. 334; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 11, 11 Sup. Ct. Rep. 389.

These considerations justify the conclusion that the act of July 2, 1864, in effect, although not in terms, fixes a lateral limit of forty miles on each side of the line of the road within which every alternate section of non-mineral land, designated by odd numbers, and which was not reserved, sold, granted, or otherwise disposed of, and is free from pre-emption or other