(after stating the facts as above). The error assigned is the refusal of the court below to allow the plaintiff to show that the Northern Pacific Railway Company had failed to deposit in the Treasury of the United States the money necessary to pay for the survey, selection, and transfer of the lands involved herein, under the requirements of .the act of July 15, 1870, c. 292, § 1, 16 Stat. 291, 3°5-

The court instructed the jury that it was to consider whether the timber in question was cut, without license or permission, from land to which the government had full title; that it was admitted that the lumber received by the defendant was cut from timber on an unsurveyed area,, which, when surveyed, would be divided into legal subdivisions, some of which would be even-numbered sections, and some odd-num*961bered • sections; that this unsurveyed area was within.-the limits of the land grant of the Northern Pacific Railway Company, and within these . units the government had parted with its title to the odd-numbered sections, and had retained its title to the even-numbered • sections. The court thereupon limited the inquiry of the jury to the question as to the amount of lumber cut and removed from the even-numbered sections. To these instructions of the court, no exceptions were,taken by the plaintiff. The instructions presented the direct and only question involved in this writ of error, namely, was the United States entitled to recover for the value of the timber cut and removed from the odd-numbered sections within the grant to the Northern Pacific Railway Company, as well as from the even-numbered sections within that grant ?

The ruling of the court excluding testimony tending to show that the land had remained unsurveyed because the Northern Pacific Railway Company had failed to deposit in the Treasury of the United States the money necessary to defray the expenses of making the survey did not necessarily involve the whole question in controversy, and the judgment of the court below might be affirmed for that reason. But, passing over this objection to the assigned error, we will consider whether the evidence offered was material and relevant to the question before the court.

The act of July 2, 1864, granting lands to the Northern Pacific Railroad Company to aid in the construction of a railroad, has been considered many times by the Supreme Court of the United States. In Buttz v. Northern Pacific Railroad, 119 U. S. 55, 7 Sup. Ct. 100, 30 L. Ed. 330, the court seems to have favored a construction of the act that would withdraw all odd-numbered sections of public land from sale, entry, or pre-emption within the limits of 40 miles, upon the filing of a map showing the general route of the proposed .railroad, thus making the grant operative before the filing of a map of definite location of the road. In St. Paul, etc., Ry. v. Northern Pacific Ry., 139 U. S. 18, 11 Sup. Ct. 389, 35 L. Ed. 77, this decision was approved, upon the point that, after withdrawal of land upon the designation of the general route, no adverse interest could be acquired therein against the railroad company. In the recent case of Nelson v. Northern Pacific Railway, 188 U. S. 108, 23 Sup. Ct. 302, 47 L. Ed. 406, it is definitely stated that under the grant in question the railroad company acquired no vested interest in the granted lands prior to definite location of the road, citing many previous decisions of the Supreme Court'in support of this holding; and, commenting upon the fact that the decision in Buttz v. Northern Pacific Railroad, supra, seemed to support the proposition. that some interest was acquired upon the designation of the "general route, the court disclaims the idea that the eminent jurist who delivered the opinion of the court in that case meant to announce any new doctrine, or make statements inconsistent with, other of his expressions which plainly showed his opinion to be that the grant did not become thoroughly operative until the map of definite location was filed.

There is no contention that the map of definite location was not filed in the present case before the trespass complained of, but it is contend*962ed by the plaintiff in error that, even under the construction of the act above stated, the legal title to the odd-numbered sections did not pass to the railroad company until the payment of the cost of the survey into the Treasury of the United States; that, until it is shown that such payment was made, the title to the lands must be considered to have remained in the United States. This contention is based upon a clause in the act of July 15, 1870, making appropriations for sundry civil expenses, which provides for the expenditure of a certain sum of money for the survey of the public lands within the limits of the land grant to the Northern Pacific Railroad Company, provided “that before any land granted to said company by the United States shall be conveyed to any party entitled thereto under any of the acts incorporating or relating to said company, there shall -first be paid into the Treasury of the United States the cost of surveying, selecting, and conveying the same, by the said company or party in interest.” 16 Stat. 305. There is no provision in this act that a forfeiture of the lands shall result in the case of failure to pay the cost of survey. It merely directs that the muniment of title shall be withheld until such payment is made. A lien is created in favor of the United States for the cost of the survey, which takes priority over all other claims, even the state taxes (Northern Pacific Railway v. Traill County, 115 U. S. 600, 6 Sup. Ct. 201, 29 L. Ed. 755), but does not affect the right and title of the railroad company to the lands, or impair the force of the operative words of transfer in the grant (Deseret Salt Co. v. Tarpey, 142 U. S. 241, 12 Sup. Ct. 158, 35 L. Ed. 999).

The title to the odd-numbered sections having passed to the defendant in error, and this suit not depending upon the payment of the cost of survey, the testimony offered by the plaintiff in error was irrelevant and immaterial.

The judgment of the court below is affirmed.