Page:North Dakota Reports (vol. 2).pdf/392

 ond, the existence of the lands at the time of selection, properly subject thereto; third, a selection of the lands here involved by the company “under and in accordance with the directions of the secretary of the interior.” This phrase appears to us to indicate that the selections were made in the manner required by the regulations promulgated by the secretary in conformity with pre-existing rules. We do not think it imports, as used, an approval of the selection by the secretary. This allegation, objectionable, perhaps, as a conclusion of law, is defined by a statement of the manner of making the selections, thus: “Plaintiff made the selection aforesaid by filing with the register and receiver of the local land office of the district on which said lands were located lists designating the parcels of land so selected, and the tracts within forty miles of the railroad in the territories, and twenty miles therefrom in the states, lost to the company as aforesaid, and in lieu of which the same were selected; and paid to the register and receiver the selection fees required by law. Said lists were allowed and approved by said register and receiver, and said fees were accepted by them, under and in accordance with a circular of instructions to them from the commissioner of the general land office, by direction of the secretary of the interior, by reason of which facts plaintiff claims to have acquired:an interest in all of said lands so selected. Said secretary of the interior has, since the selections aforesaid were made, modified and changed the conditions to be performed by the company in completing said selections, and claims the right to require said lists to be modified by said company before he shall finally approve, allow, and adjust said selections; and claims that the railroad company has acquired no legal or equitable title therein.” It is said these allegations are insufficient to show a title in plaintiff, in that it is not alleged that the secretary of the interior has approved these selections. We do not think such allegation is necessary. We think the complaint shows a good title in plaintiff to these indemnity lands. Weare unable to see in what way this title is dependent upon the secretary’s approval of the lists. Certainly the act does not in terms require such approval, nor do we think there is anything in the act from which such a condition precedent to