Corliss, C. J.
Plaintiff claims that it is entitled to a right-of-way over the defendant’s land. It is conceded that it has never purchased or condemned such right of way. All the title it has must rest upon the act of congress passed March 3, 1875, entitled “An act granting to railroads the right-of-way through the public lands of the United States.” Section 1 of that act declares “that the right-of-way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the congress of the United States, which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad; also ground adjacent to such right-of-way for station buildings, depots, machine shops, side-tracks, turn-outs and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.” The plaintiff was organized as a railroad corporation on the 17th of September, 1881, under the laws of the then Territory of Dakota. After its organization it surveyed a line 6f route for its road from a point near the City of Jamestown, in a northwesternly direction, through the County of Stutsman, to the northern boundary thereof. The line ran through the premises in question. The survey was finished October 30, i88i.f A map representing the survey was made, and thereafter the plaintiff, by resolution of its board of directors, adopted such survey as the definite route of its line of railroad. In 1882 the road was constructed, and since that time trains have been continuously run thereover by the plaintiff. On the 26th of January, 1883, the plaintiff filed with the secretary of the interior a copy of its [624] articles of incorporation, and due proofs of its organization under the same. On the 13th of March, 1883, plaintiff’s map of definite location was filed with, and approved by, the secretary of the interior. But we find nothing in the case to show that it was ever filed in the office of the register of the land office, as required by section 4, of the act. We will assume, however, that it was in fact filed there, and was thereafter forwarded to the secretary of the interior; it being undisputed that since March 13, 1883, it has been on file in his office. Defendant claims title to the land under a settlement made by him, as a pre-emptor, on the 23rd day of February, 1883, — more than two weeks before the map of definite location was approved by the secretary of the interior. It is undisputed that he is the fee owner of the quarter section of land across which plaintiff claims a right-of-way, he having received a patent therefor. The only contention on the part of the plaintiff is that his right as owner is subject to the plaintiff’s rights under the act of 1875. Plaintiff does not claim that it is the fee owner of the strip of land involved, but only that it has an easement therein under the act of congress. Not having condemned or purchased such easement it must, of course, show that it has obtained the same under that act.
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Corliss, C. J.
Plaintiff claims that it is entitled to a right-of-way over the defendant’s land. It is conceded that it has never purchased or condemned such right of way. All the title it has must rest upon the act of congress passed March 3, 1875, entitled “An act granting to railroads the right-of-way through the public lands of the United States.” Section 1 of that act declares “that the right-of-way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the congress of the United States, which shall have filed with the secretary of the interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of one hundred feet on each side of the central line of said road; also the right to take from the public lands adjacent to the line of said road, material, earth, stone and timber necessary for the construction of said railroad; also ground adjacent to such right-of-way for station buildings, depots, machine shops, side-tracks, turn-outs and water stations, not to exceed in amount twenty acres for each station, to the extent of one station for each ten miles of its road.” The plaintiff was organized as a railroad corporation on the 17th of September, 1881, under the laws of the then Territory of Dakota. After its organization it surveyed a line 6f route for its road from a point near the City of Jamestown, in a northwesternly direction, through the County of Stutsman, to the northern boundary thereof. The line ran through the premises in question. The survey was finished October 30, i88i.f A map representing the survey was made, and thereafter the plaintiff, by resolution of its board of directors, adopted such survey as the definite route of its line of railroad. In 1882 the road was constructed, and since that time trains have been continuously run thereover by the plaintiff. On the 26th of January, 1883, the plaintiff filed with the secretary of the interior a copy of its [624] articles of incorporation, and due proofs of its organization under the same. On the 13th of March, 1883, plaintiff’s map of definite location was filed with, and approved by, the secretary of the interior. But we find nothing in the case to show that it was ever filed in the office of the register of the land office, as required by section 4, of the act. We will assume, however, that it was in fact filed there, and was thereafter forwarded to the secretary of the interior; it being undisputed that since March 13, 1883, it has been on file in his office. Defendant claims title to the land under a settlement made by him, as a pre-emptor, on the 23rd day of February, 1883, — more than two weeks before the map of definite location was approved by the secretary of the interior. It is undisputed that he is the fee owner of the quarter section of land across which plaintiff claims a right-of-way, he having received a patent therefor. The only contention on the part of the plaintiff is that his right as owner is subject to the plaintiff’s rights under the act of 1875. Plaintiff does not claim that it is the fee owner of the strip of land involved, but only that it has an easement therein under the act of congress. Not having condemned or purchased such easement it must, of course, show that it has obtained the same under that act.
Defendant, at the outset, lays down the broad proposition that, when the grant became operative as to the plaintiff, the land in question was no longer public land, because of the fact that there were then outstanding two pre-emption and one homestead filings against it. And in this connection he cites a number of decisions in support of the well established doctrine that in cases of land grants (not, however, for a right-of-way) the character of the land as public land is fixed by its condition at the moment the grant attaches, and that, therefore, if any portion of the grant has been previously segregated from the public domain by entry, it does not fall within the terms of the grant, even though such entry be thereafter abandoned or set aside. Railroad. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. 566; Bardon v. Railroad [625] Co., 145 U. S. 535, 12 Sup. Ct. 856; Railroad Co. v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98; Whitney v. Taylor, 158 U. S. 85, 15 Sup. Ct. 796. We do not think that these decisions apply to the act under which plaintiff claims. When the act of 1875 is construed as a whole, we believe that, as against the United States, the right-of-way is transferred, even when the land has been entered at the time the map is approved, and that, if such entry is subsequently abandoned or set aside, the grantee will enjoy an absolute easement in the land. The rights of the railroad company will be subject to all rights which have attached to the land before the filing and approval of the map of definite location. But, as against the United States, the grant is as effective in cases where the land has been entered as where it has not. Under any other view of the statute, the railroad company might be compelled to condemn successive rights of settlers, only to find that all its proceedings were futile, because in each case the settler’s rights were, by cancellation or abandonment, destroyed. We think that it was the purpose of congress to make the grant operative as against the government, subject only to existing rights of settlers, and that the question whether a particular piece of land was within the terms of the grant, so far as the government was concerned, was not to depend upon the freedom of that land from settlement at the time the map was approved. Under this view of the statute, a railroad company could never be required to condemn any other than existing rights. When those should once be condemned, the destruction or abandonment thereof, followed by a new entry, would not force the grantee to assume anew the burden of condemning subsequent rights, and meeting with a similar experience, to take up again, perhaps, the Sisyphean task of toiling hopelessly for title, only to find each time that all its efforts had proved abortive. Nor are we without express authority on this point. Hamilton v. Railway Co., (Idaho,) 28 Pac. Rep. 408. The decision of the court in that case, accurately stated in the syllabus, is as follows: “One [626] Wilkins filed declaratory statement November 7th, 1888, and relinquished the same October 5, 1889, on which day Daniel made homestead entry of the same tract, and on April 29, 1890, made cash entry of said tract, and on September 3, 1890, conveyed by warranty deed to Hamilton a portion of said tract. The railroad company claims right-of-way over tract conveyed to Hamilton, by reason of compliance with act of congress of March 3, 1875, and the approval of the plat by the secretary of the interior July 11, 1889. Hamilton claims damages because of company grading its roadbed through said conveyed tract. Held, that Wilkins’ pre-emption filing did not exempt said land from the grant of right-of-way to the company, as he relinquished the same before perfecting the title; that there was no privity of estate between said Wilkins and Daniel; that patent to Daniel would take effect, by relation, October 5, 1889, the date of Daniel’s homestead entry, and would not antedate the grant to the company.” And in Alexander v. Railroad Co., (Mo. Sup.) 40 S. W. Rep. 104, the same doctrine was announced and applied.
But it appears that the settlement of the defendant was made before the map of definite location was filed and approved, and defendant’s counsel contends that for this reason his rights are superior to those of the plaintiff. He contends that, as against third persons, the decisive moment is the time of the approval of the map. On this point he is supported by authority. Lilienthal v. Railway Co., 56 Fed. Rep. 701; Larsen v. Navigation Co., 19 Or. 240, 23 Pac. Rep. 974; Hamilton v. Railway Co., (Idaho) 28 Pac. Rep. 408; Enoch v. Railway Co., 6 Wash. 393, 33 Pac. Rep. 966; Railway Co. v. Van Cleave, (Kan. Sup.) 33 Pac. Rep. 472; Reidt v. Railway Co., (Wash.) 34 Pac. Rep. 150. The clear implication of section 4 is that settlers shall take subject to the right-of-way only when their rights attach after the approval of the map, — or, as the statute speaks of it, the “profile of its road.” That section provides “that any railroad company desiring to secure the benefits of this act, shall, within twelve months after the location of any section of twenty miles of its road, if the same [627] be upon surveyed lands, and, if upon unsurveyed lands, within twelve months after the survey thereof by the United States, file with the register of the land office for the district where such land is located a profile of its road; and upon approval thereof by the secretary of the interior the same shall be noted upon the plats in said office; and thereafter all such lands over which such right-of-way shall pass shall be disposed of subject to such right-of-way.” Counsel for the plaintiff contends that, in view of the fact that the road had been constructed and was in operation at the time the defendant settled on the land, the grant of the right-of-way attached before the interest of defendant under such settlement; and in this connection they cite the decision of Secretary Vilas in the Downey case, 8 Land Dec. Dep. Int. 115. The reasoning of the secretary seems to us destitute of force. Section 4 was not framed for special cases, as he seems to think, but was intended to apply to every case arising under the law. The implication that only after the approval of the profile of the road should land be disposed of subject to the right-of-way applies to every conceivable case which can arise under the act,— as well those where the road has been constructed as those where it has not. We believe that lands are disposed of, within the meaning of this section, whenever a pre-emption settlement thereon has been made. It is clear, from section 3, that the act contemplates that a settler who has only possessory rights shall be protected as much as one who has made final proof. It declares “that the legislature of the proper territory may provide for the manner in which private lands and possessory claims on the public lands of the United States may be condemned.” The land in question was unoffered land, and the statute recognizes the fact that a settler thereon acquires rights by his mere settlement, though no entry thereof has yet been made. Rev. St. U. S. 1878, section 2265. Sections 3 and 4 treat such settler who has made his settlement prior to the approval of the profile of the road (which is nothing more than a map of definite location) as possessing superior lights, which must be considered by the rail[628] road company, the same as any other private property. It is obvious that lands are disposed of, within the meaning of section 4, whenever a person has secured thereon such a possessory right as the railroad company is required to condemn under section 3. It has been held by the highest authority that settlement without entry confers upon the settler such a possessory right. Railroad Co. v. Osborn, 160 U. S. 103, 16 Sup. Ct. 219; Railroad Co. v. Zeigler, 167 U. S. 65, 17 Sup. Ct. 728. Of course, the right so initiated must follow up by the steps necessary to the acquisition of title.
It is insisted by counsel for plaintiff that the rights so obtained by the defendant were lost by his failure to make his entry within three months after his settlement. But section 2265, Rev. St. U. S., does not declare an absolute forfeiture, but only one in favor of another settler. It is clear from the language of the statute, and from the decisions of the Federal. Supreme Court, that a railroad company claiming a right-of-way under the act of 1875 is not within the class of persons who may take advantage of the failure of the settler to proceed with diligence in the filing of his declaratory statement. Johnson v. Towsley, 13 Wall. 72. Even the government itself cannot insist upon the forfeiture. The settler places himself in the power of a certain class of persons by his default. In all other respects his position is as unassailable as one who has strictly complied with law.
Nor is there anything in the contention of counsel for plaintiff that defendant has lost his priority by his failure to make final proof within 30 months after filing his declaratory statement, though he is required so to do by section 2267, Rev. St. U. S. He offered in time to make final proof, but his offer was rejected, owing to the fact that there was an uncanceled homestead entry against the land. While he was powerless to make final proof he was not in default. Shepley v. Cowan, 91 U. S. 338; Weeks v. Bridgman, 159 U. S. 541, 16 Sup. Ct. 72. On the 21st of November, 1892, he procured a relinquishment of the homestead entry, and changed his pre-emption to a homestead entry; and on July [629]*62921, 1893, he made final proof under his homestead entry, and thereafter he received his patent. These facts make it apparent that the disposition of the land to the defendant, which antedated the approval by the secretary of the interior of plaintiff’s profile of its road, has never been annulled, but that, on the contrary, the initial step has, so far as the plaintiff is concerned, been followed by all the necessary steps to transmute the original possessory right into a perfect legal title, which relates back to the settlement on February 23, 1883, as against the plaintiff’s claim to a right-of-way over the land. It is therefore our opinion that the plaintiff has no right-of-way over the defendant’s land, and, as this was the decision of the lower court, that decision is, in all respects, affirmed.
All concur.