Dissenting. — After a very careful examination of the majority opinion, and of all the cases cited *393by the respective parties, and all the authorities I can find upon the subject, I am satisfied that the conclusion reached by the court on the former hearing is correct and should stand as the judgment of this court. The former opinion, however, was written on the theory that the act of Congress provided for filing a profile map of station grounds and thereby prescribed a method whereby a railroad company could accept the grant and take a constructive possession of the grounds as distinguished from actual possession. Upon a further examination of this matter, I am in accord with that portion of the majority opinion, which, as I understand it, holds that the act of Congress makes no provision for filing a profile map of station grounds, and that so far as the statute is concerned, there is no statutory method provided for acquiring a -constructive possession of station grounds and giving constructive notice to third parties who might enter or purchase such grounds. The majority opinion, however, seems to hold that in the absence of congressional action, the Secretary of the Interior has adopted a rule whereby he permits the railroad company to file a profile map of its station grounds at the same time and in the same manner it files a profile of its right of way, and provides that the company may have the advantage of a constructive possession of the grounds and be protected for the five year period in advance of construction of the road the same as it can for its right of way under section 4 of the act of March 3, 1875. I am wholly unable to agree with this latter proposition. I have no doubt of the right of the Secretary of the Interior to adopt rules and regulations for the transaction of the business of that department and the practice to be pursued therein. On the contrary, I am equally satisfied that the secretary has no power or authority to adopt or promulgate any rule or order whereby preference rights may be conferred upon claimants to the public lands or a constructive right may be initiated in violation of the statutory rights of other claimants. The conditions on which the public lands shall be granted are prescribed by the acts of Congress and cannot be changed, supplemented or altered by the Department of the Interior. The grant conferred by the act of Congress is *394a mere gift made by the government to the railroad company, and contains no element of a contract until after the grantee has received and accepted the gift and acted upon it. Of course, after it has entered into possession of the lands and commenced the construction of its road, it might be said to have parted with a consideration for the grant. It must be conceded that the donor, the grantor in this ease, has a right to attach any conditions it ■ sees fit to the vesting of any right in the donee. It may make that condition depend upon acts to be performed by the donee or acts to be performed •by the donor, or both, or it may make it contingent upon the happening of a certain event. It has been uniformly held by all the courts that the title vests, under section 1 of the act, upon the construction of the road, and that in the latter event it was unnecessary to file any maps whatever. (St. Joe etc. R. R. Co. v. Baldwin, 103 U. S. 426, 26 L. ed. 579; Bybee v. Oregon etc. R. R. Co., 139 U. S. 663, 11 Sup. Ct. 641, 35 L. ed. 309; Oregon Short Line R. R. Co. v. Quigley, 10 Ida. 770, 80 Pac. 401.) Where, on the other hand, the company seeks to reserve the right in advance of construction of its road under the provisions of section 4 of the act, it must comply with those conditions before the lands can be said to have been legally reserved from the public domain so as to prevent any subsequent settler or purchaser from acquii’-ing a paramount right. This latter section requires certain things to be done by the railroad company and certain things to be done by the Department of the Interior. The railroad company must file with the register of the land office (who is under the direction and control of the Secretary of the Interior and an officer of the Interior Department) a profile map of its road. The map must be approved by the Secretary of the Interior and the approval must be noted on the land office plats. The approval of the plat by the secretary is as much an act of the government and of a government official as is the notation on the plats; but according to the reasoning of my associates, the failure, neglect or refusal of the public official to perform a duty cannot prejudice a person or corporation dealing with the government. Therefore, the *395failure to make the notation on the plat cannot affect the railroad company. I would add further, by the same course of reasoning: “Therefore, the failure of the secretary to approve the plats could not affect the right of the railroad company to take its right of way or station grounds.” The latter conclusion is just as reasonable and logical in this case as is the former conclusion drawn by my associates. There happens to be, however, authority on the latter proposition. In Phoenix & E. R. Co. v. Arizona Eastern R. Co., 9 Ariz. 434, 84 Pac. 1097, two railroad companies had filed their profile maps in accordance with the provisions of the act of Congress of March 3, 1875, but neither one of them had been approved by the Secretary of the Interior. They went into court to determine their respective rights, and the one that had first filed its maps with the secretary contended that its right attached and vested upon its filing the map with the secretary. The supreme court of Arizona held in that case that no right could vest or attach prior to the approval by the secretary; that his approval was one of the conditions precedent. The question of the proper notation on the plats did not arise in that case, and, of course, was not considered. The court did use, however, the following language: “In construing the act we should note the significance of the expression ‘thereafter’ (that is, after the approval of the profile by the secretary and the noting of the same upon the plats in the land office) ‘all such lands over which such right of way shall pass shall be disposed of subject to such right of way. ’ This expression is by its implication inconsistent with the theory that the legal title has passed prior to action by the secretary.” It is further worthy of note that the writer of the foregoing opinion defined “thereafter” as meaning “after the approval of the profile by the secretary and the noting of same upon the plats in the land office.”
As to the grant contained in section 1 of the act of 1875 being a present grant in the sense that upon the definite location of the right of way the title would be deemed to vest as of the date of the act, that has been settled beyond all question. The act is not a grant in praesenti in that sense *396at all, and it has never been directly so held by any conrt. (See Spokane & N. Ry. Co. v. Ziegler, 61 Fed. 393, 9 C. C. A. 548, and cases cited; Hall v. Russell, 101 U. S. 509, 25 L. ed. 829; Red River etc. R. Co. v. Sture, 32 Minn. 95, 20 N. W. 229.) This identical question was considered by the supreme court of Kansas in Chicago etc. Ry. Co. v. Van Cleave, 52 Kan. 665, 33 Pac. 475, and the case of Noble v. By. Co. was reviewed and considered at some length, and the conclusion was reached that the observation that the grant was one in praesenti was dictum only and not the decision of a question involved in the ease.
Laying aside for the time all other considerations, it seems to me that the decisive and pivotal point to be determined with reference to station grounds is: When does the right or title or estate attach or vest in the railroad company? In the first place, the only mention of depot and station grounds to be found in the act is in section 1 thereof. Section 4, which provides for filing the profile map, makes no mention of depot or station grounds. By an analysis of section 1 we find it contains the following grants: 1st. The right of way through the public lands of the United States is hereby granted to any railroad company organized, etc. 2d. The right is also hereby granted 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. 3d. The right is also hereby granted to take ground adjacent to such right of way for station buildings, depots, etc. Now, remembering that under section 4 the easement for right of way may be reserved for a period of five years by making a certain record, we naturally inquire how the “right to take” shall be determined as to earth, stone and timber, and also as to station and depot grounds. Bearing in mind that no method is provided for a constructive taking, we naturally inquire when the taking occurs and what acts are necessary to constitute the taking within the meaning of section 1 of the act. It is settled law that as to third parties who seek to settle upon or purchase the public domain, no lands are public lands which have been filed upon prior to the time the claim *397of such third party is asserted. (Hastings & Dakota R. Co. v. Whitney, 132 U. S. 357, 10 Sup. Ct. 112, 33 L. ed. 363; Stur v. Beck, 133 U. S. 541, 10 Sup. Ct. 350, 33 L. ed. 761; Witherspoon v. Duncan, 71 U. S. 210, 18 L. ed. 339; Red River etc. R. Co. v. Sture, 32 Minn. 95, 20 N. W. 229.) It must therefore be conceded, it seems to me, that the right to take timber and stone from lands adjacent to the line of road must be determined by the status of the land at the time of the actual taking. If at such time the land is the public lands of the United States, the company has the undoubted right to take therefrom stone, timber, etc., for the construction of its road. If, however, the land has been filed on by the homesteader or pre-emptioner prior to the date of the actual taking, then the land is no longer public lands of the United States and is not within the purview of section 1 of the act. It seems to me that the same thing is true of station and depot grounds. The “right to take” grounds for such purposes must be determined by the status of the lands at the time of the actual taking. Such taking might be evidenced by staking it off and marking it on the grounds, or by fencing it or constructing buildings on it, or in any other manner that is ordinarily recognized by the law as amounting to an actual possession of real estate. In the case at bar there was not even a station at Meridian at the time the pre-emptioner filed on this land. The company did not take possession of the ground in any manner, nor did it do any act that evidenced its intention of claiming station grounds, nor did it make any claim to this ground for seventeen years thereafter.
It is apparent to me at once from the state of facts in this case that a grave and serious injustice and inequity will be done the entryman on this land if the railroad company is permitted at this late date to take twenty acres out of his land as claimed by the company. It is an admitted fact in the case that the pre-emptor filed on the land, paid for it, and received his patent in absolute and total ignorance of any claim by the railroad company, and he and his grantees con- • tinued in possession of the land for some seventeen yeans thereafter without the company asserting any right or claim *398to the station grounds or attempting to take possession thereof, and yet in the face of that state of facts, it is proposed to oust him of his possession and give this land to the railroad company. I decline to sanction a judgment that will have that effect. I am wholly unable to find a decision from any court that either supports or upholds the doctrine laid down in the majority opinion when it comes to station or depot grounds. The confusion has, in my judgment, arisen in this case in an attempt to apply the law and decisions with refer-eneé to rights of way to station and depot grounds.
If it should be admitted, on the other hand, that the grant for station grounds may be definitely located and segregated in the same method as is provided for rights of way, namely, by filing a profile map of definite location, still it would seem that in cases where possession has not been actually taken, title does not pass until after the notation on the land office plats. It will be noticed that section 4 of the act of 1875 requires the claimant to file with the register of the land office a profile of its road and upon approval thereof by the Secretary of the Interior, and a notation thereof on the plats of the land office, that “thereafter” all lands over which such right of way shall pass shall be disposed of subject to such right of way. Conceding, now, that there is no necessity for a plat where the company has taken actual possession and constructed its road or station buildings, we are then reduced to the proposition that the profile map only serves the purpose of reserving the lands belonging to the United States at the time the acts required in section 4 are performed from the operation of the public land laws. In other words, it protects the company for the period of five years by giving a constructive notice which takes the place of actual occupation and reserves all rights to the company for that period of time. With this in view we must read section 4 to ascertain what acts the word “thereafter” refers to. We are naturally led to the question: Does it refer to the act of filing the profile map with the register of the land office, or does it refer to the act of approval by the Secretary of the Interior, or does it apply to the act of making the notation on the plats of the *399land office, or does it apply to any two of those acts, or does it apply to all those acts? I submit that by every rule applicable to the construction of the English language, it must necessarily refer to all the acts previously enumerated, and means that after the performance of those acts the rights claimed shall be reserved to the company, and that all the lands in which such rights have been acquired, by performance of all the acts therein enumerated, shall be “thereafter” granted subject to such rights. This view is clearly indicated in the case of Noble v. Union River Logging Ry. Co., 147 U. S. 165, 13 Sup. Ct. 271, 37 L. ed. 123, quoted from in the majority opinion. In that case the statement of facts was prepared by the same justice (Brown) who wrote the opinion. In making that statement he said: “In January, 1889, the company, desiring to avail itself of an act of Congress of March 3, 1875 (18 Stat. at Large, 482; U. S. Comp. Stat. 1901, p. 1568), granting to railroads a right of way through the public lands of the United States, filed with the register of the land office at Seattle a copy of its articles of incorporation, a copy of the territorial law under which the company was organized, and the other documents required by the act, together with a map showing the termini of the road, its length, and its route through the public lands according to the public surveys. These papers were transmitted to the Commissioner of the Land Office, and by him to the Secretary of the Interior, by whom they were approved in writing, and ordered to be filed. They were accordingly filed at once and the plaintiff notified thereof.” It should be observed that in this statement of facts the learned justice refers to the profile required to be filed under section 4 of the act as a “map” and to all the documents used in connection therewith as the “papers.” Keeping this in mind, let us note the language used in the opinion itself. In speaking of the action of the Secretary of the Interior, the writer of the opinion enumerated all the acts required by section 4 of the act of 1875, and then adds that when these-things were done the granting act became operative. His language is: “Upon being satisfied of this fact, and that all the other requirements of the act *400had been observed, he was authorized to approve the profile of the road, and to cause such approval to be noted upon the plats in the land office for the district where such land was located. When this was done, the granting section of the act became operative, and vested in the railroad company a right of way through the public lands to the extent of 100 feet on each side of the central line of the road. (Frasher v. O’Connor, 115 U. S. 102, 5 Sup. Ct. 1141, 29 L. ed. 311.) There the court indicated that all these acts are conditions precedent.
Further considering the power of the Secretary to act in the premises and the time when the rights of the railroad company became vested, the opinion says: “The lands over which the right of way was granted were public lands subject to the operation of the statute, and the question whether the plaintiff was entitled to the benefit of the grant was one which it was competent for the Secretary of the Interior to decide, and when decided, and Ms approval was noted on the plats, the first section of the act vested the right of way in the railroad company.” (See, also, Red River etc. R. Co. v. Sture, 82 Minn. 95, 20 N. W. 230.)
Dakota Central R. R. Co. v. Downey, 8 Land Dec. 115, instead of supporting the contention made by the majority of the court, is, to my mind, against its conclusion. That was a case where the railroad had already been constructed before the entryman filed upon his land, and the secretary held that it was unnecessary in such case for the company to file its map or have any notation made_ on the land office plats. As heretofore suggested, the authorities are all one way on that question. In the course of that opinion the secretary states what must be done where an attempt is made to reserve the land prior to the construction of the road, and uses the following language: ‘ ‘ The cases in which notes are to be made on the entries of public lands are those of entries made before the construction of the road, for the purpose of excepting the grant to the railroad company, thus made upon the condition that the road shall be completed within five years, or the grant shall be forfeited.”
Neither is the case of Van Wyck v. Knevals, 106 U. S. 360, 1 Sup. Ct. 336, 27 L. ed. 201, in point. That ease considered *401the act of Congress of July 23, 1866, granting a right of way to the St. Joe & Denver City R. R. Co., and also granting to the state of Kansas, for the benefit of that road, the alternate sections of land within ten miles of the line of such road. The language of that act is entirely different from the act of March 3, 1875, and the distinction has been pointed out between the two acts in many decisions since that time wherein the Van Wyck case has been considered and distinguished. (See 10 Notes on U. S. Rep. 391.)
It is suggested by the majority opinion that the act of March 3, 1875, is ambiguous in reference to station and depot grounds. If that be true, the majority of the court have evidently reversed the rule which requires a strict construction against a donee or grantee of the United States and in favor of the grantor. In this case, after the government had, as the railroad company claims, parted with its title to this easement, it conveyed the entire title without reservation to the pre-emptor. Now, under the rule, if there is the slightest doubt as to whether the government parted with any title upon the railroad company’s application for station grounds, that doubt should be resolved in favor of the government and of its right to subsequently grant the title free of the servitude claimed by the railroad company.
In Wiggins Ferry Co. v. East St. Louis, 107 U. S. 371, 2 Sup. Ct. 261, 27 L. ed. 419, the supreme court of the United States said: “It is a rule of interpretation that every grant from the sovereign authority is, in case of ambiguity, to be construed strictly against the grantee and in favor of the government. ’ ’
In United States v. Michigan, 190 U. S. 401, 23 Sup. Ct. 749, 47 L. ed. 1103, the supreme court, speaking through Mr. Justice Peekham, reiterated the same doctrine and, among other things, said: “Any ambiguity must operate against the grantee in favor of the public. This rule of construction obtains in grants from the United States to states or corporations in aid of the construction of public works.”
It seems to me that my associates erred when they attempted to apply to this case the rule applicable to a purchaser of *402land where he deposits his deed with the recorder, and that officer fails to duly record the deed within the proper time. There is no question about that doctrine, and I take it no one would seriously contend that a purchaser of land would lose his property or be devested of his title by reason of the failure of the recorder to record the deed. But there is no analogy between that case and the ease at bar, nor is the same principle necessary or applicable to attain the ends of justice. In this case the government says to the railroad company: We will give you certain public lands and rights that now belong to the United States, but before you can be vested with that right, and entitled to its enjoyment, you shall do certain things, and the officer of the grantor, the government, shall also do certain things. Until all those acts are performed, the grantee acquires nothing, and therefore has nothing to lose or forfeit. It is true, as stated in the original opinion, the performance of the first act creates an inchoate right which the railroad company may either mature into a vested right or it may allow it to lapse. It may never pursue its right to the extent of acquiring a property right therein either as against the government or subsequent settlers or purchasers. It is one thing to have a valuable right already acquired for which a consideration has been given, and lose that right on account of the negligence or failure to act on the part of a public official, but quite another thing to have a prospective, conditioned or anticipative right, the acquisition of which is dependent upon certain acts to be done by a public official, and which acts are never done by him. In the latter case, the failure to discharge those acts does not deprive the company of any property right because it had not yet acquired any property right. In such case its prospects and anticipations never ripened into a legal right. It is merely a failure to vest the property right he is attempting to acquire. In this case, the railroad company has parted with no consideration and is purely a donee as distinguished from a purchaser, of whatever rights it has' acquired. On the other hand, the pre-emptor is a purchaser for value and has parted with a consideration for the property.
*403I am forced to tbe conclusion: 1st. That the railroad company in this case should be bound by the status and condition of the land as it found it at the time it sought to take the station grounds, and that the attempt to take occurred when it asserted its claim to the grounds for such purpose and attempted to take actual possession thereof. 2d. That at the time the company sought to take the ground it was no longer public lands of the United States, but was the private property of the defendant. 3d. That if it were conceded that the act of Congress authorizes a constructive taking and segregation of depot and station grounds, that in the case at bar the acts necessary to complete that constructive taking and appropriation within the provisions of the act were never completed, in that the reservation was never made upon the land office plats, and consequently no notice thereof was ever given by either the company or the government to subsequent purchasers and entrymen. 4th. That the government never recognized the acts of the railroad company as amounting to an appropriation and segregation of station grounds, for the reason that it thereafter granted the land in fee simple to the defendant’s predecessor without any reservation whatever and free from the company’s alleged servitude.
For the foregoing reasons, I am convinced that the judgment of this court as originally announced should stand, and I accordingly dissent from the views expressed by the majority of the court on this hearing.