Page:North Dakota Reports (vol. 2).pdf/389

 or pointed out in any other manner, a selection is unnecessary. Thus, if at the time of the definite location of the line of the road it should appear that there were not more unappropriated lands within the indemnity limits than were sufficient to satisfy the quantity to be taken therefrom, or if at first there were more than sufficient, and the quantity should be subsequently reduced from any cause until the quantity granted equaled the number of acres applicable to the satisfaction thereof, the grant would at once attach to those remaining lands, vesting in the grantee the title thereto without either selection or approval thereof. U. S. v. McLaughlin, 127 U. S. 428, 8 Sup. Ct. Rep. 1177; Minneapolis & S. C. R. Co. v. Duluth & W. R. Co., 45 Minn. 104, 47 N. W. Rep. 466; St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1,11 Sup. Ct. Rep. 389. When all of the odd-numbered sections are necessary to give the quantity granted, there can, of course, be no selection. There is no choice to be taken from among a number. The indemnity lands would be as fully identified as the place lauds. “The title to the alternate sections to be taken within the limit, when all the odd sections are granted, becomes fixed, ascertained, and perfected in each case by this location of the line of railroad.” St. Paul & S.C. R. Co. v. Winona & St. P. R. Co, 112 U. S. 726, 5 Sup. Ct. Rep. 334; Wood v. Railroad Co., 104 U. S. 329.

In St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1, 11 Sup. Ct. Rep. 389—an action brought to determine the title to lands within the conflicting limits, both place and indemnity, of congressional grants made to aid in the construction of two roads—it was strenuously urged that there had been no selection shown on the part of the Northern Pacific Company to certain indemnity lands. It was established that there were not, at the time of the definite location of the Northern Pacific Railroad, sufficient lands within the indemnity limits, subject to appropriation for the purpose, to make up for the deficiency within the place limits. Says the court: “As to the objection that no evidence was produced of any selection by the secretary of the interior from the indemnity lands to make up for the deficiency found in the lands within the place limits, it is sufficient to observe that all the lands within the indemnity limits only made up in part for