ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
MR. JUSTICE BREWER, after making the foregoing statement, delivered the opinion of the court.
The grant of the right of way was "through the public lands." What is meant by 'public lands' is well settled. As stated in Newhall v. Sanger, 92 U.S. 761, 763: "The words 'public lands' are habitually used in our legislation to describe such as are subject to sale or other disposal under general laws." See also Barker v. Harvey, 181 U.S. 481, 490; Minnesota v. Hitchcock, 185 U.S. 373, 391. If it is claimed in any given case that they are used in a different meaning, it should be apparent either from the context or from the circumstances attending the legislation. While the power of Congress over lands which an individual is seeking to acquire under either the preemption or the homestead law remains until by the payment of the full purchase price required by the former law or the full occupation prescribed by the latter,
yet under the general land laws of the United States one who, having made an entry, is in actual occupation under the preemption or homestead law cannot be dispossessed of his priority at the instance of any individual. Hastings &c. Railroad Co. v. Whitney, 132 U.S. 357, 363, 364. In other words, one who has taken land under the preemption or homestead law acquires an equity of which he cannot be deprived by any individual under the like laws. Now at the time of the passage of the act of July 3, 1866, Blou was and had been for several months in actual occupation under the homestead law. Did Congress intend by its legislation to deprive him of that equity which he had under the general land laws as against any one proceeding under those laws?
Any possible rights of the railroad company in this land commence with the act of July 3, 1866, for while the acts of 1864 and 1866 were in amendment of the act of 1862, yet the route prescribed by the acts of 1862 and 1864 was far to the east of this land, and only by the act of 1866 was the company authorized to construct a road through or near it. True, as held in Railroad Company v. Baldwin, 103 U.S. 426; Bybee v. Oregon & California Railroad Company, 139 U.S. 663, 679; Northern Pacific Railway Company v. Hasse, 197 U.S. 9, 10, the grant of the right of way is absolute, and takes effect as of the date of the grant. But that date must be found in an act prescribing the finally adopted route.
A case much relied upon by the railroad company, as showing the intent of Congress in its grant of the right of way to the Union Pacific Railroad Company and its tributaries, is Union Pacific Ry. Company v. Douglas County, 31 Fed. Rep. 540. In it it was held:
"It was the evident intention of Congress by the act of July 1, 1862, 12 Stat. 491, giving a right of way to the Union Pacific Railroad Company, to grant such right of way through those lands which by surveys should be found to be sections 16 and 36, the school sections which it intended to give to the future State of Nebraska, pursuant to the provisions of the
organic act of 1854, 10 Stat. 283, creating the Territory of Nebraska."
In other words, it was held that although Congress had in 1854 created the Territory of Nebraska, with the provision that when the lands within it were surveyed sections 16 and 36 in each township should be reserved for school purposes, it meant by the act of 1862 to grant a right of way to the railroad company through lands which should thereafter be found to be those sections. But that decision does not reach to the precise question here presented, and many of the reasons which led to it are inapplicable here. It was well known that a large part of western Nebraska was at the time of the passage of the act of 1862 not only unoccupied but unsurveyed. The speedy construction of the railroad to the Pacific was desired, and nothing was said about a condemnation of the right of way. By the amendatory act of 1864, however, provision was made for such condemnation through land occupied by an owner or claimant. In Washington & Idaho Railroad Company v. Osborn, 160 U.S. 103, it appeared that Osborn was a settler upon unsurveyed public land and had placed improvements thereon, and intended when the surveys were made to preempt the same under the preemption laws of the Government. The railroad company was vested by the act of March 3, 1875, 18 Stat. 482, c. 152, with a right of way through the public lands of the United States, subject to the exception of "lands within the limits of any military park or Indian reservation, or other lands specially reserved from sale" (§ 5). Osborn did not come within the terms of this exception. The act of March 3, 1875, authorized the legislature of any Territory to provide the manner in which private lands and possessory claims of lands of the United States might be condemned, and further, that when no provision should have been made such condemnation might be made in accordance with § 3 of the act of July 2, 1864, supra. And upon this the court, sustaining Osborn's claim of payment for the right of way, said (p. 109):
"It must, therefore, be conceded that Osborn did not, by maintaining possession for several years and putting valuable improvements thereon, preclude the Government from dealing with the lands as its own, and ...