Nelson v. Northern Pacific Railway Company/Opinion of the Court

1. Before considering the merits of the case it is proper to remark that although the railroad company holds the patent of the United States for the land in controversy, the defendant, according to the laws of the state, was entitled to judgment, if it appeared that he was equitably entitled to possession as against the plaintiff. Hill's Anno. Codes & Statutes, 530 et seq.; Burmeister v. Howard, 1 Wash. Terr. 208.

2. We have seen that the Northern Pacific Railroad Company was created by the act of Congress of July 2d, 1864, chap. 217, making a grant of lands in aid of the construction of the road from Lake Superior to Puget sound. When that grant was made substantially the entire country between those points was untraveled as well as unihabited except by Indians, very few of whom, at that time, were friendly to the United States. The principal object of the grant, as will appear from its language, was to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores, by means of a railroad and telegraph, and to that end, and in order to bring the public lands into market, it was deemed important to encourage the settlement of the country along the proposed route. The public lands in that vast region were unsurveyed, and it was not known when they would be surveyed. Congress, of course, knew that if immigrants accepted the invitation of the government to establish homes upon the unsurveyed public lands, they would do so in the belief that the lands would be surveyed, that their occupancy would be respected, and that they would be given an opportunity to perfect their titles in accordance with the homestead laws.

Such was the situation when the act of July 2d, 1864, was passed. Necessarily the act must be interpreted in the light of that situation. It should not be so interpreted as to justify the charge that the government laid a trap for honest immigrants who risked the dangers of a wild, unexplored country, in order that they might establish homes for themselves and their families. And it should not be supposed that Congress had in view only the interests of the company, which, with the aid of a munificent grant of lands, was empowered to connect Lake Superior and Puget sound with a railroad and telegraph line.

Let us now see what is the fair import of the act of 1864, under which both parties claim possession.

By the 3d section of that act, it was, among other things, provided as follows, to wit: 'That there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time [of definite location], any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in licu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections. . . .'

By the 6th section of the act it was, among other things, provided as follows:

'§ 6. And be it further enacted, That the President of the United States shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale, or entry, or pre-emption, before or after they are surveyed, except by said company, as provided in this act.' The stipulation of facts omits the latter part of § 6; but of the words omitted this court will take judicial notice. They are as follows: 'But the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale.'

The railroad company insists that after the order of withdrawal from 'sale or entry' made in 1873 by the Commissioner of the Land Office, and based upon its map of general route, no right could be acquired by a settler upon any odd-numbered alternate section of land within the 40-mile limit indicated by the map of general route. As the lands in question were not surveyed until 1893, the company's contention means that during the twenty years succeeding the withdrawal in 1873 all the sections covered by the map of general route which would, upon a survey, appear to be odd-numbered alternate sections, were absolutely excluded from occupancy by any settler having in view the homestead laws.

The defendant insists that the act of 1864 recognized the right of an immigrant to occupy any section of the public lands on the general route up to the time of the definite location of the road, provided it was done in good faith with the intention to perfect his title under the homestead laws whenever it became possible to do so, and that if at the time of definite location it appeared that he was in the occupancy of an odd-numbered alternate section the railroad company could not disturb him.

By the 6th section of the act of July 2d, 1864, it was declared that the odd sections 'hereby granted,' that is, by that act granted, should not be liable to sale, entry, or pre-emption before or after they were surveyed, except by the company, as provided in the act. But we have also seen, looking at the 3d section, which was the granting section of the act, that Congress did not grant every odd-numbered alternate section within the general limits specified, but only the odd-numbered alternate sections to which the United States had full title, and which had not been previously reserved, sold, granted, or otherwise appropriated, and which were free from pre-emption or 'other claims or rights' at the time the line of the road was definitely fixed-giving to the railroad company the right to select lands, within certain limits, in place of such as were found, at the date of definite location, to have been disposed of or to be 'occupied by homestead settlers.'

The first inquiry is whether the railroad company acquired any vested interest in the land in dispute by reason merely of the acceptance by the Land Department of its map of general route, or by reason merely of the withdrawal order of 1873. In other words, Did the land, after the general route was established, become segregated from the public domain and cease to be a part of the public lands, so as not to be subject to occupancy, in good faith, by homestead settlers, prior to definite location? These questions have a direct bearing on the present issues; for, if Congress did not intend-as, we think, it did not-that the railroad company should acquire any vested interest in these lands, prior to definite location, we can understand why it excluded from its grant any lands 'occupied by homestead settlers' at the time of the definite location of the road.

The above questions are, we think, distinctly answered in the negative by recent decisions of this court. Let us see if such be not the case.

In St. Paul & P. R. Co. v. Northern P. R. Co. 139 U.S. 1, 5, 35 L. ed. 77, 79, 11 Sup. Ct. Rep. 389, it was held that, after a map of a general route was filed and up to definite location, the grant to the railroad company was in the nature of a 'float,' and land which previously to definite location had been reserved, sold, granted, or otherwise appropriated, or upon which there was a pre-emption 'or other claim or right,' did not pass by the grant of Congress.

In United States v. Northern P. R. Co. 152 U.S. 284, 296, 298, 38 L. ed. 443, 448, 14 Sup. Ct. Rep. 598, 603, 604, the court said: 'The act of 1864 granted to the Northern Pacific Railroad Company only public land,. . . free from pre-emption or other claims or rights at the time its linc of road was definitely fixed, and a plat thereof filed in the office of the Commissioner of the General Land Office.'

In Northern P. R. Co. v. Sanders, 166 U.S. 620, 634, 636, 41 L. ed. 1139, 1144, 17 Sup. Ct. Rep. 671, 676, it was adjudged that the railroad company 'acquired, by fixing its general route, only an inchoate right to the odd-numbered sections granted by Congress, and no right attached to any specific section until the road was definitely located and the map thereof filed and accepted. Until such definite location it was competent for Congress to dispose of the public lands of the general route of the road as it saw proper.' In the same case the court, after observing that as the lands there in dispute were not free from claims at the date of definite location, it was of no consequence what was done with them after date, proceeded: 'The only ground upon which a contrary view can be rested is the provision in the 6th section of the act of 1864, that 'the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed, except by said company, as provided by this act.' But this section is not to be construed without reference to other sections of the act. It must be taken in connection with § 3, which manifestly contemplated that rights of pre-emption or other claims and rights might accrue or become attached to the lands granted after the general route of the road was fixed and before the line of definite location was established. Literally interpreted, the words above quoted from § 6 would tie the hands of the government so that even it could not sell any of the odd-numbered sections of the lands after the general route was fixed,-an interpretation wholly inadmissible in view of the provisions in the 3d section. The 3d and 6th sections must be taken together, and so taken it must be adjudged that nothing in the 6th section prevented the government from disposing of any of the lands prior to the fixing of the line of definite location, or, for the reasons stated, from receiving, under the existing statutes, applications to purchase such lands as mineral lands.' The principles announced in the Sanders Case were reaffirmed in Menotti v. Dillon, 167 U.S. 703, 720, 42 L. ed. 333, 338, 17 Sup. Ct. Rep. 945, 951, the court adding: 'It is true, as said in many cases, that the object of an executive order withdrawing from preemption, private entry, and sale, lands within the general route of a railroad, is to preserve the lands, unencumbered, until the completion and acceptance of the road. But where the grant was, as here, of odd-numbered sections, within certain exterior lines,' not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached, at the time the line of said road is definitely fixed, 'the filing of a map of general route and the issuing of a withdrawal order did not prevent the United States, by legislation, at any time prior to the definite location of the road, from selling, reserving, or otherwise disposing of any of the lands which, but for such legislation, would have become, in virtue of such definite location, the property of the railroad company.'

In United States v. Oregon & C. R. Co. 176 U.S. 28, 43, 44 L. ed. 358, 364, 20 Sup. Ct. Rep. 261, 266, which involved the conflicting claims of two railroad companies to certain lands, and required the court to determine the effect of a map of general route filed by the Northern Pacific Railroad Company, as well as the extent of the grant made to it, the court said: 'If, therefore, the Perham map of 1865 were conceded for the purposes of the present discussion to have been sufficient as a map of 'general route,'-and nothing more can possibly be claimed for it, these lands could not be regarded as having been brought by that map (even if it had been accepted) within the grant to the Northern Pacific Railroad Company, and thereby have become so segregated from the public domain as to preclude the possibility of their being earned by other railroad companies under statutes enacted by Congress after the filing of that map and before any definite location by the company of its line.' In the same case: 'In opposition to the views we have expressed, it may be said that the clause in the act of July 25th, 1866 (14 Stat. at L. 239, chap. 242), providing for the selection under the direction of the Secretary of the Interior of lands for the Oregon company in lieu of any that should 'be found to have been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of,' shows that Congress did not intend to include in, but intended to exclude from, the grant to that company any lands that could have been earned by the Northern Pacific Railroad Company by definitely fixing its route and filing its map of definite location. Undoubtedly those lands would be regarded as having been appropriated when the route of the Oregon road was definitely located, if prior to that date the route of the Northern Pacific Railroad had been definitely fixed, and if such lands were within the exterior lines of that route. But, as we have said, these lands were within the limits of the grant of July 25th, 1866, and had not, at that time or when the route of the Oregon road was definitely located, been appropriated for the benefit of the Northern Pacific Railroad Company, for the reason that the latter company had not then filed any map of definite location. The Northern Pacific Railroad Company could take no lands except such as were unappropriated at the time its line was definitely fixed. It accepted the grant of 1864 subject to the possibility that Congress might, before its line was definitely fixed, authorize other railroad corporations to appropriate lands within its general route, allowing it to select other lands in lieu of any so appropriated. The lands here in dispute were consequently subject to be disposed of by Congress when the act of 1866 was passed; and (the line of the Northern Pacific railroad not having been definitely located prior to the passage of the forfeiture act of 1890 (26 Stat. at L. 496, chap. 1040, U.S.C.omp. Stat. 1901, p. 1598), the Oregon Company became entitled to take the lands and to receive patents therefor in virtue of its accepted map of definite location.' See also Wilcox v. Eastern Oregon Land Co. 176 U.S. 51, 44 L. ed. 368, 20 Sup. Ct. Rep. 269, and Messinger v. Eastern Oregon Land Co. 176 U.S. 58, 44 L. ed. 370, 20 Sup. Ct. Rep. 271.

The cases above cited definitely determine that the railroad company acquired no vested interest in any particular section of land until after a definite location as shown by an accepted map of its line; and that until definite location the land covered by the map of general route was a 'float,' that is, at large.

In support of the proposition that the railroad company acquired an interest in the lands in dispute, upon its general route being established, reference has been made to some expressions in the opinion of Mr. Justice Field in Buttz v. Northern P. R. Co. 119 U.S. 55, 71, and 72, 30 L. ed. 330, 336, 7 Sup. Ct. Rep. 100, 197, to the effect that when the general route of that road was made known by a map duly filed and accepted, 'the law withdraws from sale or preemption the odd sections to the extent of 40 miles on each side. The object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted.' But it is evident, in view of both prior and subsequent decisions, that this language is not to be taken literally or apart from the other portions of the opinions of the eminent jurist who delivered the judgment of the court. If, upon the filing and acceptance of the map of general route, the law withdrew the odd-numbered sections, then the previous holding in many cases that until definite location the grant was a float, with no interest in specific sections being acquired by the railroad company, would be meaningless; and there would be some difficulty in Congress appropriating such lands prior to definite location. Indeed, it is manifest that the court did not mean to announce any new doctrine in the Buttz Case; for Mr. Justice Field, when delivering judgment in that case, said that the charter of the Northern Pacific Railroad Company contemplated 'the filing by the company, in the office of the Commissioner of the General Land Office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not at that time been reserved, sold, granted, or otherwise appropriated, and are free from pre-emption, grant or other claims or rights. . . . Nor is there anything inconsistent with this view of the 6th section as to the general route, in the clause in the 3d section making the grant operative only upon such odd sections as have not been reserved, sold, granted, or otherwise appropriated, and to which pre-emption and other rights and claims have not attached, when a map of the definite location has been filed.'

Further, we had occasion in Northern P. R. Co. v. Sanders and United States v. Oregon & C. R. Co. above cited, to limit the broad language in the Buttz Case which implied that after the general route was fixed the land was withdrawn by the law for the railroad company. We said in the lastnamed case: 'This language was too broad if it is construed to express the thought that public lands, when within the exterior lines of a 'general route,' are 'appropriated' from the time the map of such route is filed, so as to prevent them from being granted by Congress to and from being earned by another railroad corporation prior to the filing of a map of definite location by the company designating such general route.'

It results that the railroad company did not acquire any vested interest in the land here in dispute in virtue of its map of general route or the withdrawal order based on such map; and if such land was not 'free from pre-emption or other claims or rights,' or was 'occupied by homestead settlers' at the date of the definite location on December 8th, 1884, it did not pass by the grant of 1864. Now, prior to that date, that is, in 1881, Nelson, who is conceded to have been qualified to enter public lands under the homestead act of May 20th, 1862, went upon and occupied this land and has continuously resided thereon. The land was not surveyed until 1893, but as soon as it was surveyed he attempted to enter it under the homestead laws of the United States, but his application was rejected, solely because, in the judgment of the local land officers, it conflicted with the grant to the Northern Pacific Railroad Company. He was not a mere trespasser, but went upon the land in good faith, and, as his conduct plainly showed, with a view to residence thereon, not for the purposes of speculation, and with the intention of taking the benefit of the homestead law by perfecting his title under that law, whenever the land was surveyed. And for fourteen years before the railroad company by an ex parte proceeding, and without notice to him, so far as the record shows, obtained from the Land Office a recognition of its claim, and for sixteen years before this action was brought, he maintained an actual residence on this land. It is so stipulated in this case. As the railroad had not acquired any vested interest in the land where Nelson went upon it, his continuous occupancy of it, with a view, in good faith, to acquire it under the homestead laws as soon as it was surveyed, constituted, in our opinion, a claim upon the land within the meaning of the Northern Pacific act of 1864; and as that claim existed when the railroad company definitely located its line, the land was, by the express words of that act, excluded from the grant.

This view protects the bona fide settler in his home, established upon the invitation of the government under great difficulties, and does no injustice to the railroad company; for, after restricting the grant to such odd-numbered sections of lands, within specified lateral limits, as were free from pre-emption or 'other claims or rights' at the time the line of the road was definitely fixed, Congress, in the act of 1864, as we have seen, proceeded: 'And whenever, prior to said time [of definite location] any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted or otherwise disposed of, other lands shall be selected by said company in lieu thereof,' etc. The words 'occupied by homestead settlers' show that Congress intended by the charter of the Northern Pacific Railroad Company-whatever it may have intended as to other companies receiving grants of public lands-that occupancy by a homestead settler, with the intention to take the benefit of the homestead laws, constituted a claim which, existing at the date of definite location, would exclude from the grant land that might otherwise be covered by it. If Congress did not intend thus to protect the occupancy of homestead settlers, the reference to lands being 'occupied by homestead settlers,' at date of definite location, was meaningless, and it was useless to reserve to the company the privilege of selecting lands in lieu of those lost by such occupancy. Congress knew, when passing the act of 1864, that one going west to establish his home could not know whether the unsurveyed land occupied by him would be an even-numbered or odd-numbered section. Hence, the provision in § 3 in relation to odd-numbered sections 'occupied by homestead settlers.' The efficacy of such a provision could not be destroyed except by further legislation. It is as if Congress had in words declared that among the 'other claims or rights' of which the land must be free at the time of definite location in order that the railroad company might take, were claims arising out of occupancy by homestead settlers. Such settlers Congress, in effect, declared should be protected in their rights, and the railroad company should be reimbursed by lieu lands near by. Nelson's occupancy, we have seen, commenced in 1881, while the definite location of the road occurred in 1884. That he occupied and continuously resided upon the land in dispute as a homestead settler after 1881 is admitted.

If it be said that Nelson's claim was that of mere occupancy, unattended by formal entry or application for the land, the answer is that that was a condition of things for which he was not in anywise responsible, and his rights, in law, were not lessened by reason of that fact. The land was not surveyed until twelve years after he took up his residence on it, and under the homestead law he could not initiate his right by formal entry of record until such survey. He acted with as much promptness as was possible under the circumstances.

In Ard v. Brandon, 156 U.S. 537, 543, 39 L. ed. 524, 526, 15 Sup. Ct. Rep. 406, 409, this court said: 'The law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon. If he does all that the statute prescribes as the condition of acquiring rights, the law protects him in those rights, and does not make their continued existence depend alone upon the question whether or no he takes an appeal from an adverse decision of the officers charged with the duty of acting upon his application.' In the same case the court quoted with approval these words from Clements v. Warner, 24 How. 394, 397, 16 L. ed. 695, 696: 'The policy of the Federal government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person.'

In the recent case of Tarpey v. Madsen, 178 U.S. 215, 219, 44 L. ed. 1042, 1044, 20 Sup. Ct. Rep. 849, 850,-which was a contest between the Central Pacific Railroad Company and a pre-emptor who sought to avail himself of the act of September, 1841,-it was found as a fact that the land in dispute had on it, at the date of definite location (which was on October 20th, 1868), the improvements of a bona fide settler; and one of the questions in the case was how far the rights of the settler, based upon a bona fide occupancy, were affected by the absence of a local land office in which could be made some record of his application or entry. This court said: 'It is true that there was then no local land office in which those seeking to make pre-emption or homestead entries could file their declaratory statements or make entries, and the want of such an office is made by the supreme court of the state one of the main grounds for holding that the land did not pass to the railroad company. We agree with that court fully in its discussion of the general principles involved in the failure of the government to provide a local land office. The right of one who has actually occupied, with an intent to make a homestead or pre-emption entry, cannot be defeated by the mere lack of a place in which to make a record of his intent. . . . If Olney was in possession of this tract before October 20, 1868 [date of definite location], with a view of entering it as a homestead or pre-emption claim, and was simply deprived of his ability to make his entry or declaratory statement by the lack of a local land office, he could, undoubtedly, when such office was established, have made his entry or declaratory statement in such way as to protect his rights.' In the present case, the settler waited from 1881 to 1893 for the land to be surveyed, and as soon as that was done he attempted to enter it under the homestead law in the proper office, but his claim was overruled upon the theory, unfounded in law, that the land was covered by the railroad grant.

So far we have proceeded on the ground that, as the act of 1864 granted to the railroad company the alternate sections to which at the time of definite location the United States had full title, not reserved, sold, granted, or appropriated, and which were free from pre-emption or other claims or rights at date of definite location, and authorized the company to select other lands in lieu of those then found to be 'occupied by homestead settlers,' Congress excluded from the grant any land so occupied with the intention to perfect the title under the homestead laws whenever the way to that end was opened by a survey.

3. But the case of the appellant does not depend entirely upon this view of the act of 1864. It is placed on impregnable ground by the act of May 14th, 1880, chap. 89, entitled, 'An Act for the Relief of Settlers on Public Lands,' and which was in force when, in 1881, Lelson settled upon the land in dispute. The act is as follows: '1. That when a pre-emption homestead, or timber-culture claimant shall file a written relinquishment of his claim in the local land office the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office. § 2. In all cases where any person has contested, paid the land-office fees, and procured the cancelation of any pre-emption, homestead, or timber-culture entry he shall be notified by the register of the land office of the district in which such land is situated of such cancelation, and shall be allowed thirty days from date of such notice to enter said lands: Provided, That said register shall be entitled to a fee of one dollar for the giving of such notice, to be paid by the contestant, and not to be reported. § 3. That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States Land Office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.' 21 Stat. at L. 140, U.S.C.omp. Stat. 1901, p. 1392.

The 3d section of this statute is a distinct confirmation of the rights of a qualified person who had theretofore settled or should thereafter settle 'on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws;' thought, of course, no lands could be deemed of that character which had prior to such settlement become vested in a railroad company in virtue of an accepted map of definite location. It is, as we have seen, a fixed principle in the law relating to the administration of the public lands that a railroad grant is a mere float until definite location, and that prior to that date all lands, within the exterior limits of a general route, are entirely at the disposal of the government, to be appropriated as it desires. The railroad company, as already shown, acquired, by its accepted map of general route, no interest in any specific lands, but only a right to take those to which, at the date of definite location, the United States had full title, and upon which there was no claim, and which were not 'occupied by homestead settlers.' It was, therefore, competent for the United States by the act of 1880-which was four years prior to the definite location of the Northern Pacific railroad-to give additional rights to those who had then settled or might thereafter in good faith settle upon any of the public lands. Some who have made comments on this act seem to overlook the broad language of § 3, and to forget that that section embraces, not only those who had theretofore, but those who might thereafter, settle on the public lands, whether surveyed or unsurveyed. Nelson settled on unsurveyed public land, in which the railroad company had no vested or specific interest, and the 3d section of the act of 1880 was purposeless if it did not allow him to perfect his title under the homestead laws, as soon as the land was surveyed.

The meaning we have given to the words 'occupied by homestead settlers' in the act of 1864, and what has been said about the act of 1880, finds support in decisions of the Land Department. It will be well, in view of the far-reaching consequences of the decision in the present case, to refer to some of those decisions.

In Southern P. R. Co. (Branch) v. Lopez (1884) 3 Land Dec. 130, 131, Secretary Teller said that the act of July 27th, 1866, 14 Stat. at L. 292, chap. 278, relating to the Southern Pacific Railroad Company, 'granted only such lands as were 'not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights,' at date of definite location; and provided that 'whenever, prior to said time, any of said sections or parts of sections shall have been occupied by homestead settlers, pre-empted,' etc., lieu lands might be taken.' It will be observed that this was the language of the Northern Pacific act of 1864. The Secretary proceeded: 'Now a homestead entry, which must be made on surveyed lands, would be within the descriptive terms 'other claims' without doubt; but the question material to the case before me, wherein the land was not surveyed, is whether a homestead settlement on unsurveyed land, with a view to entering it when surveyed, is within said terms. I think it is. Construing together the granting words and those respecting the lieu land selection, it is evident that one of the 'other claims or rights' excepting land from the operation of the grant was 'occupation [occupied] by homestead settlers.' The word 'occupied' and the idea conveyed by it were foreign to the homestead law at date of this act, as an essential element in the reservation of land. I need not recite the numerous decisions of the courts and of the Land Department, which settle the principle that under the homestead law it is the 'entry' which reserves land (except for the short period during which it is reserved by settlement under the act of May 14th, 1880), and not any occupation by the claimant before or after it. The language of the granting act is therefore peculiar in this respect, and we are to suppose that it was used deliberately, with knowledge of thenexisting law, and for a special and important purpose. We must interpret it in accordance with this evident purpose. Congress was aware that by this act it was making grants of land far beyond the line of the government surveys, in regions occupied and to be occupied largely by settlers awaiting the advent of the surveyor to prefer their claims. By § 6 the homestead law was extended to the even sections after survey, and expressly withheld from the odd sections before and after survey, and yet in § 3 land occupied by homestead settlers was ''excepted from the grant. Congress knew that unsurveyed land could not be 'entered' as homesteads; it had in terms prohibited homestead 'entry' on these lands; it was aware that only by such 'entry' could a claim be appropriated and reserved from the grant, without express exception; and therefore in the use of the words 'occupied by homestead settlers' it intended to make such express exception, and to indicate a different kind of appropriation by a class of seltlers not within the letter of the homestead law, though clearly within its spirit, namely, those who had made a home on the public domain in advance of the surveys, with the intention of subsequently claiming it under said law''. If this was not the purpose, then the employment of the peculiar language referred to was a vain and useless thing; and such a thing we are not to suppose Congress had done (92 U.S. 733, 23 L. ed. 634). It therefore follows that the land claimed by Lopez, whose proofs are not questioned in any particular, and who preferred his claim promptly upon survey, was 'occupied by a homestead settler' when the grant to this company took effect, and hence excepted from the operation of the grant.'

In Northern P. R. Co. v. Anrys (1890) 10 Land Dec. 258, 259, which was a contest between the Northern Pacific Railroad Company and a homesteader who had settled on unsurveyed public lands, Secretary Noble said: 'It is urged that the land was not subject to the operation of the homestead law at the date of Newland's settlement, because unsurveyed, and that the homestead claim could have attached only by entry. But it must be remembered that the rights of the parties here must be determined by a proper construction of the railroad grant rather than of the general homestead law. It must be admitted that the ruling in the case at bar is in line with those of the Department for many years. In the case of Southern P. R. Co. (Branch) v. Lopez, 3 Land Dec. 130, the question here presented was fully discussed in connection with a grant framed in words identical with those used in the grant for the Northern Pacific company, and it was held that a homestead settlement on unsurveyed land with a view to entering it when surveyed is within the term 'other claims,' and that 'it is evident that one of the 'other claims or rights' excepting land from the operation of the grant was 'occupation by homestead settlers." In support thereof it was urged that Congress was aware that by the act in aid of a road extending across the western half of the continent, it was making a grant far beyond the line of government surveys, in regions occupied and to be occupied largely by settlers awaiting the advent of the surveyor to prefer their claims. In this view I concur. It seems beyond question that it was to protect such settlers as described above that Congress excepted from the operation of the grant tracts 'occupied by homestead settlers.' Had Congress intended to extend its protection only to those who had made entry, it would have said so in other and appropriate words. The ordinary exception of 'lands to which a homestead right has attached' would have fully protected that class of settlers. But Congress went further and made occupation the test instead of entry. I do not deem it necessary to cite cases to show that the views of the Department on this point have not changed.'

In Spicer v. Northern P. R. Co. 10 Land Dec. 440, 443, the rights of an Indian were disputed by the Northern Pacific Railroad Company under the act of March 3d, 1875, 18 Stat. at L. 402, 420, chap. 131 (U.S.C.omp. Stat. 1901, pp. 1419, 1420), extending the benefit of the homestead laws of the United States, with certain restrictions upon the title when obtained, to Indians twenty-one years of age, or the head of a family having abandoned the tribal relations. Secretary Noble said: 'The provisions of this act were in force at the date when the company's rights attached on definite location of its road, and, if the matters alleged relative to the claim of the Indian, Enoch, be true, he was at that date, and had been for many years prior thereto, living upon the land in question, as his home, with the intention to acquire title thereto, as a homestead; he had valuable and permanent improvements thereon, and had cultivated the same for many years, during all of which time he claimed it as his home. Such a claim, it seems to me, is clearly covered by the excepting clause of the grant to the company, and, if proven, would be sufficient, in my judgment, to defeat the claim of the company to the land. True, the Indian had put no claim of record for the land, but it is well settled by departmental rulings that while such omission might defeat the claim as against a subsequent settler who duly places his claim of record, it will not defeat such claim as against the United States, and the land covered thereby ''will be excepted from the operation of any grant for the benefit of a railroad company attaching subsequently to the inception of the settlement right. Northern P. R. Co. v. Evans, 7 Land Dec. 131, and authorities there cited''. It is also well settled that a claim resting on settlement, residence, and improvements, acquired prior to the date when the company's rights attached under its grant, is sufficient to except the land covered thereby from the operation of such grant.'

In Northern P. R. Co. v. McCrimmon, 12 Land Dec. 554, it was said: 'In support of this appeal, counsel for the railroad company contend that Thomas did not claim the land as government land, but as railroad land, and that, although the land was excepted from the withdrawal on general route, yet Thomas did not insist upon the right to take it as government land, but was satisfied to claim it under the railroad company. Under the ruling of the Department, as announced in the cases of Northern P. R. Co. v. Bowman, 7 Land Dec. 238, and Northern P. R. Co. v. Potter, 11 Land Dec. 531, the only question to be determined, is, whether there was a settlement on the land at date of definite location by one having the qualification to enter the land under the settlement laws, and, if these facts are shown, the land would be excepted from the operation of the grant, although such settler might not have known of his right, but held the land under the belief that it was railroad land.'

In Northern P. R. Co. v. Plumb, 16 Land Dec. 80, it appeared that the land in dispute was within the primary limits of the company's grant as shown by map of definite location filed July 6th, 1882, and was also within the limits of the withdrawal on map of general route filed February 21st, 1872. Secretary Noble said: 'The only question raised by the appeal is as to whether the occupancy shown by Plumb was sufficient to defeat the grant. It appears that in 1881 Plumb took possession of the tract in question, together with an adjoining 40-acre tract, upon which he resided. In the spring of 1882 he broke the entire tract in question and inclosed it with a fence, and has since had possession of and improved the land. He had never exercised the pre-emption right, and was therefore duly qualified to claim the land under his settlement right. In 1886 he contracted to purchase the adjoining 40 acres, upon which he had resided, from the company, and at the hearing it was sought to show that he also claimed the land in question under the grant at the date of the definite location of the road, but the testimony will not warrant such a finding. Being in possession of the land in question at the date of the definite location of the road with valuable improvements thereon, and duly qualified to assert a right thereto under the settlement laws, he had such a right to the land as served to defeat the grant was under a different law from those providing for settlement can in nowise affect his rights in the premises. Being excepted from the grant by reason of his settlement, Plumb was at liberty to seek title from the government under any law under which such lands might be taken.'

In Northern P. R. Co. v. Benz, 19 Land Dec. 229, the land in dispute was within the limits of the grant to the company, as shown by map of definite location filed July 6th, 1882, and was covered by the withdrawal upon general route of February 21st, 1872. Secretary Smith said: 'The present contest is between the railroad company on one part and Hoy and Benz on the other. If it can be made to appear affirmatively by good and sufficient testimony that either of these parties, Hoy or Benz, was in possession of said land July 6, 1882, when the line of the road opposite thereto was definitely fixed, and, at the same time, had the right to perfect title to the same under the pre-emption or homestead laws, such possession excepted the land from the grant to the railroad company and reduced the contest to one between Hoy and Benz; or, rather, to one between Hoy and the legal representatives of Benz, he having died since entering his appeal.' It was found that on July 6th, 1882, Hoyt was a competent entryman under the homestead laws.

What has been said as to the meaning and scope of the acts of 1864 and 1880 is not inconsistent with anything decided in Maddox v. Burnham, 156 U.S. 544, 39 L. ed. 527, 15 Sup. Ct. Rep. 448, and Wood v. Beach, 156 U.S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410.

In Maddox v. Burnham the question was as to the rights of a homestead occupant as against a certain railway company. Referring to the 3d section of the act of 1880, the court said: 'By this section for the first time the right of a party entering land under the homestead law was made to relate back to the time of his settlement. But this act was passed long after the rights of the railway company had accrued and the legal title had passed to it. It is not operative, therefore to devest such legal title, or enlarge, as against such title, any equitable rights which the defendant theretefore had.' This was a case, therefore, in which the claim based upon occupancy accrued after the legal title had become vested in the railroad company, not a case in which the grant was, as here, a float with no right attached to any specific section.

In Wood v. Beach-which was a contest between a homestead settler and a railway company-it appeared that the map of the line of definite location was filed December 6th, 1866, and a withdrawal followed in 1867, while the occupation and settlement of the homesteader did not commence until June 8th, 1870. Of course, the legal title to the sections granted vested in the railway company upon the filing and acceptance of the map of definite location. Besides the withdrawal in 1867 was pursuant to the express command of the act of Congress of July 26th, 1866, 14 Stat. at L. 290, chap. 270, § 4, which provided that as soon as the railway company should 'file with the Secretary of the Interior maps of its line, designating the route thereof, it shall be the duty of said Secretary to withdraw from the market the lands granted by this act in such manner as may be best calculated to effect the purposes of this act and subserve the public interest.' It might well be, therefore, that one whose right, resting upon occupancy, had accrued, as in Maddox v. Burnham, after the legal title passed to the railroad company, or one who, as in Beach v. Wood, did not settle upon the public lands until after the railroad company had definitely located its road, and after the lands had been withdrawn from market pursuant to the directions of an express act of Congress, could not, as against the railroad company, acquire an interest in them by virtue of the act of 1880.

Nor is there any conflict between the decision now rendered and Northern P. R. Co. v. Colburn, 164 U.S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98; for, as appears from the opinion and record in that case, the land there claimed to have been occupied by a homestead settler, at the date of definite location, was surveyed public land, and the good faith of the occupation was not manifested by an entry, or an attempt at entry, at any time in the local land office. It was held that the inchoate right of the homesteader must be initiated by a filing in the land office. In the present case, as we have seen, the land occupied was unsurveyed, and at the time of such occupancy, the land being unsurveyed, there could not then have been any filing or entry in the land office.

The case before us is altogether different. Nelson's occupancy occurred after the passage of the act of 1880. While that act did not apply to a railroad company which had acquired the legal title, by definite location of its road, it distinctly recognized the right prior to such time to settle upon the public lands, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws. In occupying the land here in dispute Nelson did not infringe upon any vested right of the railroad company; for there had not been at the date of such occupancy in 1881 any definite location of the line of the railroad, and the land, so occupied, with other lands embraced by the map of general route, constituted only a 'float,' the company having, at most, only an inchoate interest in them, a right to acquire them, if, at the time of definite location, it was not 'occupied by homestead settlers' nor encumbered with 'other claims or rights.' The withdrawal merely from 'sale or entry' in 1873, based only on a map of the general route of the road, did not identify any specific sections, was not expressly directed or required by the act of 1864, was made only out of abundant caution and in accordance with a practice in the Land Department, and did not and could not affect any rights given to homestead occupants by Congress in the acts of 1864 and 1880. Besides, the order made in 1873 to withhold from sale or entry all the odd-numbered sections falling within the limits of the general route was without practical value so far as the land in dispute was concerned; for such land had not been surveyed, and there could not have been any sale or entry of unsurveyed lands. At any rate, the order of withdrawal directing the local land office to withhold from 'sale or entry' the odd-numbered sections within the limits of the general route could not prevent the occupancy of one of those sections prior to definite location by one who in good faith intended to claim the benefit of the homestead law; this, because such right of occupancy was distinctly recognized by the act of 1864. But if this were not so, the act of 1880, in its application to public lands, which had not become already vested in some company or person, must be held to have so modified the order of withdrawal based merely on general route, that such order would not affect any occupancy or settlement made in good faith, as in the case of Nelson, after the passage of that act, and prior to definite location. This conclusion cannot be doubted, because the act of 1880 made no exception of public lands covered by orders of withdrawal from sale or entry based merely on general route, and because also public lands, which had not become vested in the railroad company, by the definite location of its line, were subject to the power of Congress.

It results that the Supreme Court of the State of Washington erred in not affirming the judgment of the court of original jurisdiction in favor of the defendants.

The judgment must be reversed, and the cause remanded for such further proceedings as may not be inconsistent with this opinion.

Reversed.

Mr. Justice Brewer, with whom Mr. Justice Brown and Mr. Justice Shiras concur, dissenting: