in the construction of said road as shall appertain to, or be legally applicable to the construction of the uncompleted part of the Dubuque and Sioux City Railroad, as aforesaid, except as to the lands hereinafter granted to the Dubuque, Bellevue and Sabula Railroad Company." Sec. 4 of that act provides: "That so much of land grant as is applicable to the uncompleted portion of the road aforesaid, west of Iowa Falls is hereby conferred upon the said Iowa Falls & Sioux City Railroad Company, subject to the terms and conditions of the act of Congress granting the said lands, dated the 15th day of May, A. D. 1856, and the act amendatory thereto and the act of Congress passed the present session" (subject to certain conditions as to the time and manner of construction).

The railroad company complied with this act as to the completion of the road, having done so by January 1, 1872, also complying with the act of Congress of March 2, 1868, 15 Stat. 38, requiring the completion of the road by that date. The tract of land in controversy was again selected and designated by the Iowa Falls & Sioux City Railroad Company, on June 19, 1884, and on April 24, 1885, as lands to which the company was entitled under said land grants, and said last named selection was accepted by the register and receiver, and certified to the Commissioner of the General Land Office at Washington, May 13, 1885.

In December, 1858, the lands were listed for the benefit of the Dubuque & Pacific (since Iowa Falls & Sioux City) grant under the act of May 15, 1856, but afterwards, on February 21, 1859, the tract was included in a selection of the State of Iowa under the Swamp Land Grant. Under the order of the Secretary of the Interior the lands were stricken from the certified list with a view of determining the claim of the State under the Swamp Land Grant, which claim was finally rejected on February 16, 1878.

The lands were certified pending the suit, January 20, 1903, and on February 2, 1903, the lands were patented by the

Governor of Iowa to the Iowa Falls & Sioux City Railroad Company.

On October 2, 1883, John Carraher (predecessor in title of the defendant in error) made application to the local land office at Des Moines, Iowa, to enter the lands under the Timber Culture Act, 20 Stat. 113. His application was rejected and Carraher appealed. The rejection was because of conflict with the railroad grant. On December 3, 1883, the Commissioner affirmed this action. Carraher appealed to the Secretary of the Interior. Afterwards, July 17, 1891, the Secretary approved the decisions and rejected the claim of Carraher. Pending his appeal, on May 31, 1888, Carraher made another timber culture entry (No. 607). When the Secretary's decision of June 17, 1891, finally rejecting the first application of Carraher was promulgated by the Commissioner (July 11, 1891), it was also directed that the second timber culture entry (of May 31, 1888), be cancelled on the ground that it had been allowed without authority.

The delay in certifying the lands after the final decision against Carraher is thus accounted for by Mr. Samuel S. Burdett, at one time Commissioner of the General Land Office, and attorney for the plaintiff in error from June, 1888:

"On July 15, 1891, my firm advised the Iowa Railroad Land Company of the Commissioner's action of July 11, 1891, in which the Carraher entry had been cancelled and received in reply the letter thereto attached and marked 'Exhibit B' from P. E. Hall, president, dated July 28, 1891, in which he asked that we 'take such steps as will result in the tract in question being certified to the State for our benefit.'

"Thereafter, by personal application by myself and other members of my firm, effort was made to secure the due certification of the land under the grant, resulting in a promise from the proper officials of the General Land Office, given on or about October 1, 1891, that the tract would be included in a patent which was then about to be prepared.

"The duty of certifying the tract rested with the proper

officials of the General Land Office, and was in fact a mere clerical duty. No rule required the filing of an application in writing for the certification of lands embraced in a pending selection, and the practice of my firm in such matters was to urge, by personal request, the proper officials of the General Land Office to take up such lists and prepare the necessary certificate for the action of the Commissioner and Secretary. This was what was done with respect to the tract in question here, and our requests in the matter resulted in the promise that the land would be included in a patent, such as set out in my firm's letter of that date, to P. E. Hall, president, Exhibit 'C.' In the multitude of business transacted by my firm in the years succeeding the action referred to, it is impossible for me [to] recollect the details of this particular matter, nor do I recollect the circumstances under which the promise referred to in said letter was given, but that it was made to me or to some member of my firm, as a result of urgent requests for proper action, is certain, or the said letter of my firm, of October 1, 1891, Exhibit 'C,' would not have been written. It was the practice of my firm, in all matters in our hands from time to time, to call them up by personal application, with a view to securing action. When the certification finally issued on January 22, 1903, it was in response to a personal and urgent request from my firm.

"I know of no delay whatever caused by either the Iowa Railroad Land Company or its predecessors in interest, or by any of its agents or attorneys, and certainly none by myself or my firm in securing the final issuance of title by the United States to the tract of land in question. The delay in certifying the said land, after the Secretary's action of July 17, 1891, was wholly due to the want of action by the General Land Office, the company and its agents having performed every duty in timely manner required by the rules of the Department. "The first cause of delay in final certification of said tract under the aforesaid railroad grant of May 15, 1856, was the selection by the State of Iowa, under the Swamp Land Grant

of 1850, which was filed February 21, 1859, and embraced said tract, which selection was not finally disposed of by the Land Department until 1878.

"The next cause of delay was the appeal of John Carraher from the decision of the Commissioner of the General Land Office, dated December 3, 1883, to make entry of said tract under the provision of the timber culture law. Delay was next caused by the loss of Carraher's application papers in the General Land Office, which is mentioned in the letter of the Commissioner to Mr. Van Deventer, dated September 6, 1887, Doc. No. 1, of this deposition, and in that of the Commissioner to Geo. W. Wakefield, Esq., Doc. No. 4, of this deposition. The next cause of delay appears to have grown out of the contention made in behalf of Carraher in support of his appeal, that the railroad grant had been fully satisfied, and that this tract was not needed to fill up the quota of lands due under the grant. This made necessary the adjustment of the grant which took place on April 9, 1891, as already detailed.

"Thereafter the Secretary disposed of Carraher's appeal on June 17, 1891. The delay in certifying the land under grant which subsequently ensued, occurred in the General Land Office. As to the causes of this last delay, I have no certain knowledge, but I can state it as a fact, that between the date of the Secretary's final decision on the Carraher application, down to a very recent date, the railroad division. of the General Land Office has been overburdened with work consequent upon the duty of adjusting all of the railroad land grants made by Congress in aid of railroads, which was cast upon the Land Department by the provisions of the act of March 3, 1887, 24 Stats. at Large, p. 556. For the most of the time during that period the force of clerks in that division was insufficient to promptly perform the necessary labor attendant upon such adjustments and the conveyance of lands under the grants. The delay in certifying the tract in question may have been due to these conditions."

206 U.S.

Argument for Plaintiff in Error.

Mr. Charles A. Clark for plaintiff in error:

The claims of plaintiff in error, specially set up and pleaded, of title to the land under a grant and certification, the equivalent of a patent from the United States, has been denied by the court below. Also its like claim that title by prescription could not be acquired against it while certification, was refused under the railroad grant and while the title remained in the United States. These present Federal questions.

Carraher's claim under the timber culture entry was not a claim to title in fee which alone can furnish the basis for title by prescription. Ricard v. Williams, 7 Wheat. 59.

Nor can a prescriptive title arise with no claim of right. Harvey v. Tyler, 2 Wall. 328; Society for Prop. of Gosp. v. Town of Paulet, 4 Pet. 480.

A claim under a sheriff's deed void for want of jurisdiction will not support title by prescription. Walker v. Turner, 9 Wheat. 541.

There can be no color of title in an occupant of land who does not hold under an instrument or proceeding or law purporting to transfer the title or to give the right of possession.

Nor can good faith be affirmed of a party in holding adversely where he knows he has no title and that under the law he can acquire none. Deffeback v. Hawke, 115 U. S. 392, 407; Sparks v. Pierce, 115 U. S. 412; Litchfield v. Sewell, 97 Iowa, 251; Hayes v. United States, 175 U. S. 260.

Under the statute of limitations of Iowa relating to lands, title by prescription cannot be acquired in the absence of an honest, bona fide, good faith claim of title. Litchfield v. Sewell, 97 Iowa, 260; Wright v. Keithler, 7 Iowa, 92; Smith v. Young, 89 Iowa, 340; Clark v. Sexton, 122 Iowa, 313; Snell v. Mecham, 80 Iowa, 55.

No such good faith is shown on Carraher's part. The facts to which attention has been called, supra, conclusively show bad faith on his part.

Courts cannot interfere while title is withheld by Land Department, in administration of the grant. Humbird v.