The opinion of the court was delivered by
Johnston, J.:
There is but little controversy regarding the facts of this ease. Johnson entered the land as a homestead, on July 19, 1882, and he had complied with all the conditions of the act of congress respecting the acquirement of title, excepting that he had not resided on and cultivated it the full period of five- years. The improvements which he had made were of a substantial character. His residence thereon had been continuous from the time of entry, and by continuing to meet the requirements of the homestead law for about a year after the trial, and by making final proof, he would be vested with a full and complete ownership in the land and entitled to a patent therefor. The railroad company constructed its road without his consent, and without making or offering to make compensation to him for the damages done. It may also be fairly said that in the view we take, the damages allowed by the jury were not exorbitant. The principal point in controversy is in respect to the measure of damages to which Johnson, being a homesteader, was entitled. The railroad company contends that because he holds under a homestead entry, and has not as yet acquired the full legal title, [148]*148lie is entitled to recover nothing beyond the mere injury done to the improvements which he had placed on the land. We cannot agree with this contention. The claim is based mainly on an act of congress of July 26, 1866, which declares that “'the right-of-way for the construction of highways over public lands not reserved for public uses is hereby granted.” (Rev. Stat. U. S., §2477.) It is argued that railroads are highways within the meaning of this provision, and that the plaintiff took his homestead subject to the right of the railroad to appropriate a right-of-way over the same without any compensation for any value of the soil or damages otherwise than to his improvements. The term “highway” used in the section quoted, does not, in either its ordinary or strict sense, include railroads. It is true that in a certain sense a railroad is. a public highway, to be constructed and operated according to law, and subject to public control. It can only be used, however, in a particular manner, and is not open to common use for foot passengers, horse passengers, animals and carriages, as an ordinary highway may be used. In the usual understanding, a highway is one which is common to all people without distinction, and which they may travel over on foot or horseback, or in carriages. (Thompson on Highways, 1; Angelí on Highways, 3.) A railroad and a common highway are essentially different in regard to construction, control and use, as well as ownership, and the distinctions are so well understood that a mention of them is unnecessary. It is a familiar rule of law that in interpreting statutes, words and phrases are to be taken in the ordinary sense and common acceptation, unless it appears from the context of the act that a different meaning was intended. We discover nothing in the provision in question, or in the subsequent legislation of congress, which indicates that an unusual meaning was attached to the word, or that it included railroads. Instead of that, we find that since the law in question was enacted, congress has deemed it necessary by both general and special acts, to grant a right-of-way to railroads over the public domain. Aside from several special acts, a general one was passed [149]*149on March 3, 1875, granting to any railroad the right-of-way through any public lands of the United States. It provided at length the conditions to be observed, and the steps that were to be taken in order to secure the benefit of the act. No reference is there made to the act of 1866, but congress, as well as those who were instrumental in obtaining the legislation, seem to have proceeded upon the theory that the act of 1866 did not grant a right-of-way for railroads. (18 Stat. at Large, 482.) On March 3,1873, another act was passed by congress, which indicates to some extent the legislative understanding of the act of 1866. It was then provided that a settler on the public lands, either by virtue of the preemption or homestead law, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead for the right-of-way of railroads across such preemption or homestead. (Rev. Stat. U. S., §2288.) Neither of these enactments purports to modify or repeal the act of 1866. It was wholly unnecessary for congress to grant a right-of-way to railroads, or to provide that a settler may convey his interest in a preemption or homestead for such purpose, if the act of 1866, already in force, embraced railroads within its intent. It is true that the case to which we are referred, F. & P. M. Rly. Co. v. Gordon, 41 Mich. 420, holds that railroads are highways within the meaning of the act of 1866. The court in that opinion concedes that when the term “highways” is used in legislation, the common highways of the country are generally to be understood. ■ The construction that railroads were intended was based on the apparent liberal policy pursued by congress in encouraging railroads to build through the new and unsettled portions of the country. The court, however, expressed doubt in regard to the conclusion which it reached, and it does not appear that its attention was called to the subsequent general legislation of congress expressly granting a right-of-way to railroads. An examination of the congressional legislation on the subject, and having in mind the rule of interpretation that the usual meaning is to be given to words in the statute, unless another is obviously intended, [150]*150we have come to the conclusion that only the common highways of the country were intended to be included in the term used in the act of 1866. It is not claimed that the railroad company has complied with the requirements of the act of 1875 to secure a right-of-way across the land m question; and if it had, the question would still remain, whether the land which had been entered under the homestead law would be treated as public land, liable to be embraced within and to be conveyed by a general grant. Under the rulings of the land department of the government, “a valid homestead entry operates as an appropriation and reservation of the land embraced in the same, so long as it remains in force and uncanceled. The entry while in force segregates the tract from the mass of the public domain.” (White v. H. & D. Rld. Co., 2 Copp’s U. S. Public Land Laws, 1882, p. 878; Wilcox, v. Jackson, 13 Pet. 516; Witherspoon v. Duncan, 4 Wall. 218. Opinion of Attorney General McVeigh, 1 Copp’s U. S. Public Land Laws, 1882, p. 388.) 1. Railroad— right-of-way over public" But whether or not it is so segregated by settlement an<l entry, we agree with the learned judge who tried the case, that the homesteader has an interest in the land beyond the bare improvements placed thereon, and which cannot be appropriated by a railroad company without making just compensation. 2 Homestead Stoi7-0S’ eqmty. It is true that he" has not a legal title, and may never acquire it, but when he makes a bona fide settlement and a valid entry of the land, he acquires an immediate interest to the entire tract which gives him the right of possession, and upon making proof of settlement and cultivation for a period of five years, he becomes invested with full and complete ownership.
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The opinion of the court was delivered by
Johnston, J.:
There is but little controversy regarding the facts of this ease. Johnson entered the land as a homestead, on July 19, 1882, and he had complied with all the conditions of the act of congress respecting the acquirement of title, excepting that he had not resided on and cultivated it the full period of five- years. The improvements which he had made were of a substantial character. His residence thereon had been continuous from the time of entry, and by continuing to meet the requirements of the homestead law for about a year after the trial, and by making final proof, he would be vested with a full and complete ownership in the land and entitled to a patent therefor. The railroad company constructed its road without his consent, and without making or offering to make compensation to him for the damages done. It may also be fairly said that in the view we take, the damages allowed by the jury were not exorbitant. The principal point in controversy is in respect to the measure of damages to which Johnson, being a homesteader, was entitled. The railroad company contends that because he holds under a homestead entry, and has not as yet acquired the full legal title, [148]*148lie is entitled to recover nothing beyond the mere injury done to the improvements which he had placed on the land. We cannot agree with this contention. The claim is based mainly on an act of congress of July 26, 1866, which declares that “'the right-of-way for the construction of highways over public lands not reserved for public uses is hereby granted.” (Rev. Stat. U. S., §2477.) It is argued that railroads are highways within the meaning of this provision, and that the plaintiff took his homestead subject to the right of the railroad to appropriate a right-of-way over the same without any compensation for any value of the soil or damages otherwise than to his improvements. The term “highway” used in the section quoted, does not, in either its ordinary or strict sense, include railroads. It is true that in a certain sense a railroad is. a public highway, to be constructed and operated according to law, and subject to public control. It can only be used, however, in a particular manner, and is not open to common use for foot passengers, horse passengers, animals and carriages, as an ordinary highway may be used. In the usual understanding, a highway is one which is common to all people without distinction, and which they may travel over on foot or horseback, or in carriages. (Thompson on Highways, 1; Angelí on Highways, 3.) A railroad and a common highway are essentially different in regard to construction, control and use, as well as ownership, and the distinctions are so well understood that a mention of them is unnecessary. It is a familiar rule of law that in interpreting statutes, words and phrases are to be taken in the ordinary sense and common acceptation, unless it appears from the context of the act that a different meaning was intended. We discover nothing in the provision in question, or in the subsequent legislation of congress, which indicates that an unusual meaning was attached to the word, or that it included railroads. Instead of that, we find that since the law in question was enacted, congress has deemed it necessary by both general and special acts, to grant a right-of-way to railroads over the public domain. Aside from several special acts, a general one was passed [149]*149on March 3, 1875, granting to any railroad the right-of-way through any public lands of the United States. It provided at length the conditions to be observed, and the steps that were to be taken in order to secure the benefit of the act. No reference is there made to the act of 1866, but congress, as well as those who were instrumental in obtaining the legislation, seem to have proceeded upon the theory that the act of 1866 did not grant a right-of-way for railroads. (18 Stat. at Large, 482.) On March 3,1873, another act was passed by congress, which indicates to some extent the legislative understanding of the act of 1866. It was then provided that a settler on the public lands, either by virtue of the preemption or homestead law, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead for the right-of-way of railroads across such preemption or homestead. (Rev. Stat. U. S., §2288.) Neither of these enactments purports to modify or repeal the act of 1866. It was wholly unnecessary for congress to grant a right-of-way to railroads, or to provide that a settler may convey his interest in a preemption or homestead for such purpose, if the act of 1866, already in force, embraced railroads within its intent. It is true that the case to which we are referred, F. & P. M. Rly. Co. v. Gordon, 41 Mich. 420, holds that railroads are highways within the meaning of the act of 1866. The court in that opinion concedes that when the term “highways” is used in legislation, the common highways of the country are generally to be understood. ■ The construction that railroads were intended was based on the apparent liberal policy pursued by congress in encouraging railroads to build through the new and unsettled portions of the country. The court, however, expressed doubt in regard to the conclusion which it reached, and it does not appear that its attention was called to the subsequent general legislation of congress expressly granting a right-of-way to railroads. An examination of the congressional legislation on the subject, and having in mind the rule of interpretation that the usual meaning is to be given to words in the statute, unless another is obviously intended, [150]*150we have come to the conclusion that only the common highways of the country were intended to be included in the term used in the act of 1866. It is not claimed that the railroad company has complied with the requirements of the act of 1875 to secure a right-of-way across the land m question; and if it had, the question would still remain, whether the land which had been entered under the homestead law would be treated as public land, liable to be embraced within and to be conveyed by a general grant. Under the rulings of the land department of the government, “a valid homestead entry operates as an appropriation and reservation of the land embraced in the same, so long as it remains in force and uncanceled. The entry while in force segregates the tract from the mass of the public domain.” (White v. H. & D. Rld. Co., 2 Copp’s U. S. Public Land Laws, 1882, p. 878; Wilcox, v. Jackson, 13 Pet. 516; Witherspoon v. Duncan, 4 Wall. 218. Opinion of Attorney General McVeigh, 1 Copp’s U. S. Public Land Laws, 1882, p. 388.) 1. Railroad— right-of-way over public" But whether or not it is so segregated by settlement an<l entry, we agree with the learned judge who tried the case, that the homesteader has an interest in the land beyond the bare improvements placed thereon, and which cannot be appropriated by a railroad company without making just compensation. 2 Homestead Stoi7-0S’ eqmty. It is true that he" has not a legal title, and may never acquire it, but when he makes a bona fide settlement and a valid entry of the land, he acquires an immediate interest to the entire tract which gives him the right of possession, and upon making proof of settlement and cultivation for a period of five years, he becomes invested with full and complete ownership. As the court below remarked, “the entry-man acquires the exclusive right, by continued residence and cultivation of the land, to obtain the full legal title; and his equities increase from the time of his entry to the expiration of the five years.” In the act granting to railroads the right-of-way through the public lands of the United States, congress recognised the possessory claims and interest of settlers upon the public lands, and provided for their condemnation [151]*151for the right-of-way of. railroads. (Sec. 3, of act March 3, 1875, 18 Stat. at Large, p. 482.) In § 2288, Rev. Stat. U. S., it is enacted that—
“Any person who has settled, or hereafter may settle, on public lands, either' by preemption or by virtue of homestead laws, or any amendments thereto, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead ... for the right-of-way of railroads across such preemption or homestead; and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their preemptions or homesteads.”
This enactment indicates the view taken by congress with respect to the interest acquired by the settler. It contemplates not only that he owns the improvements, but that he has an equity in. the land itself, which he may transfer for a right-of-way ; and it provides how that transfer may be made. It further recognizes that until this equity is obtaine'd, by purchase or otherwise, the right of the railroad company to enter and appropriate any portion of the homestead for a right-of-way is incomplete. It is conceded that the defendant in error had made a valid homestead entry, which gave him a preferred right thereto against every individual or corporation, so long as he made compliance with the laws of the United States in regard to the perfecting of his title to the land. It gave him the exclusive right of possession, the right to all the grass and crops grown on the land, to a sufficient amount of the timber, if any was growing thereon, for firewood, and in the improvement of the land, and, by continuous habitancy and improvement for a year longer, the right to the full, legal aud equitable title to the land. Under the laws of the United States, and the rules of the land department, the entryman is entitled to commutation in several forms, and to certain preference rights, aud may also relinquish and sell his improvements and equities in the homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed. With all these rights, [152]*152the equities of the homesteader are very important and valuable. They constitute a property right, which appears from the testimony to have a well-understood value in the district where the land in question lies, and is worth but little less than the full title to the land. The crops grown Upon the land, as well as the improvements placed thereon, belong exclusively to the settler; and if he has a valid entry, and has made the required improvements, he is safe in his possession, and in the ownership of the improvements, and can rest assured that, by continuous residence and compliance with the law, he can obtain the complete title. Indeed, there is an advantage in allowing the legal title to remain in the United States, which is frequently availed of by settlers who, upon making final proof, would be entitled to a patent. Until the equitable title and right to a patent is complete, the lands are not subject to state or local taxation, and the final proofs need not be made until seven years after the entry is made. It has been held by this court that the relinquishment of a homestead claim, and the transfer of the interest of a homesteader, are a sufficient consideration for a promissory note given in payment of such relinquishment and transfer. (Moore v. McIntosh, 6 Kas. 39.) Attorney General McVeigh, in an opinion given to the secretary of war, in 1881, held that a claim of a homesteader to public land was initiated by an entry of the land, which was effected by an application of the settler accompanied by the required affidavit and the payment of the commission. He said: ■
“It is true, a certificate of entry is not then given — the certificate being, under § 2291, Revised Stat. U. S., withheld until the expiration of the five years from the date of such entry, at the end of which period, or within two years thereafter, upon proof of settlement and cultivation during that period, and payment of the commissions remaining to be paid, it is issued; but upon entry the right in favor of the settler would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain condi[153]*153tions (in the event of which he becomes invested with full and complete ownership); and until forfeited by failure to perform the conditions it must, I think, prevail not only against individuals, but against the government. That in contemplation of the homestead law, the settler acquires by his entry an immediate interest in the land, which for the time being at least, thereby becomes severed from the public domain, appears from the language of § 2297, Rev. Slat., wherein it is provided that in certain contingencies ‘the land so entered shall revert to the government.’” (1 Copp’s U. S. Public Land Laws, 1882, p. 388.)
3. Eight-of way tio)i-'oíupeñtauon. The interest which the settler has may be appropriated for a right-of-way by adversary proceedings, as we have* already seen congress has provided for the condemuation of a right-of-way through a homestead, as well as for its purchase from the settler. Of
course the settler does not part with the same interest or value that he would if he had the legal title, and he should only receive compensation for the interest taken from him. The court below, however, in its charge and rulings on the admission of testimony, seems to have carefully restricted the jury to an allowance for the injury done to the rights and interest which the settler had in the land. The appropriation and use of a strip of land through the homestead affected the entire tract. 4' -nature of* damages. The homesteader had taken and was using it as a single tract, and as his home and farm. The division of the farm into parts of irregular shape, the deep cuts and high fills that were made, and the inconvenience resulting from the construction of the road, constitute an injury ' 7 to the interest of the settler, which differs only in degree from that sustained by one who has the legal title. 5.Railroad company-liability for injury. The property is taken at the instance and for the benefit of a railroad company, and the injury is occasioned by the company, ihe extent of the injury is tor *: J J the jury to determine, and for which the railroad company is liable. We think the case was fairly submitted to the jury, and that the verdict and judgment given are just.
The judgment will be affirmed.
All the Justices concurring.