This action was instituted by appellant to restrain respondents from entering upon and occupying certain portions of a right of way, 200 feet wide, 100 feet on each side of the center of its track, situated in Twin Falls *717county and claimed by it as successor in interest to the Minidoka and Southwestern Railroad Company. Upon a hearing of the cause judgment was rendered in favor of respondents, 'from which this appeal has been taken.
On February 26, 1904, appellant’s predecessor in interest, the railroad company above mentioned, filed its articles of incorporation, maps and plats, and made and filed a definite location of its proposed right of way under the provisions of the act of Congress of March 3, 1875, which were approved by the Secretary of the Interior on August 10, 1904. The railroad was constructed in the spring of 1905, and in 1910 was conveyed to appellant.
On July 1, 1901, the state of Idaho entered into an agreement with the United States wherein it was provided that the state should cause to be irrigated and reclaimed a large tract of land over a part of which the right of way in dispute is located. This agreement was made under the provisions of the act of Congress of August 18, 1894, amended by the act of June 11, 1896, known as the Carey Act, which authorizes the Secretary of the Interior, with the approval of the President, upon proper application of any of the states in which there is situated desert lands, to enter into a contract binding the United States to donate, grant and patent to the state, free of cost for survey or purchase, such desert lands, not exceeding one million acres, as the state may cause to be irrigated, reclaimed and occupied, and not less than twenty acres of each 160 acre tract to be cultivated by actual settlers.
The lands described in the agreement were segregated from the public domain in accordance with the provisions thereof and pursuant to the act of Congress above mentioned. Thereafter an irrigation system was constructed and the lands so segregated were reclaimed and patent issued from the United States to the state on November 20, 1905, and from the state to respondent, Julia A. Silvers, for the land in dispute, in 1908.
Appellant’s predecessor in interest had obtained from the settlers a right of way 100 feet in width, being 50 feet on *718each side of the center of its track, and the land in controversy is outside of this 100-foot strip, but within the 200-foot strip claimed under the act of March 3, 1875. This act is to be found in 18 Stats, at L., 482, and the parts material to' the determination of this case are as follows:
“Sec. 1. 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; ....
‘ ‘ See. 5. That this act shall not apply to any lands within the limits of any military, park, or Indian reservation, or other lands especially reserved from sale, unless such right of way shall be provided for by treaty-stipulation or by act of Congress heretofore passed.”
It should be noted that the railway company made its definite location or accepted the offer of the United States, after the Carey Act agreement, but prior to the entry by Julia A. Silvers or the issuance of the patent to the state. The question involved is whether, by the Carey Act segregation, the lands therein contained ceased to be public lands and were reserved from sale as contemplated by the act of 1875.
It appears to be well settled that if anyone acquires a vested interest in the public lands of the United States before a railroad company has accepted the offer of the government made by that or similar acts by filing its maps and making its definite location, the lands in which such interest is acquired are no longer public lands within the meaning of the statute, and the railroad company must compensate the party holding such interest in order to acquire a right of way. (32 Cyc. 990.)
By the act of March 3, 1875, a standing offer is made by the government. However, no contract can be deemed to *719have been made with the railroad company, since it failed to accept the offer by performing its prescribed conditions prior to its withdrawal.
The provisions of the Carey Act undoubtedly constitute an offer to the public land states having desert lands and when, in 1901, Idaho entered into the agreement with the United States there was a complete contract, absolutely binding upon the government as long as its conditions were performed by the state. It cannot have been the intention of Congress that the government would violate that contract and, by a later agreement, convey to the railroad company an interest in the lands adverse to that of the state. The contract segregated the lands from the public domain, and they could not thereafter be acquired for right of way purposes under the act of March 3, 1875, because they were no longer public lands of the United States as contemplated by sec. 1, of that act, and because they had been especially reserved from sale by the United States within the meaning of sec. 5 thereof.
The judgment is affirmed. Costs are awarded to respondents.
Budge, C. J., and Rice, J., concur.