— I concur in the judgment. There is no finding in this case of the ultimate fact of ownership of the land in controversy, nor is it found as a fact that Hirleman, under whom the defendant claims, was a bona fide settler on the land in controversy on January 30, 1865, at which date there was filed in the United States land-office at San Francisco the order of the Secretary of the Interior withdrawing from sale and location lands within twenty-five miles on either side of the general route of the Western Pacific Railroad Company, as shown upon its map of such general route theretofore filed. If he was such settler, then the land in controversy did not pass to the railroad company; otherwise it did. The court, therefore, should have found either that he was or was not a bona fide settler, in so many words. A bona fide settler, within the meaning of section 4 of the act of Congress of July 2, 1864, is one who has made an actual settlement upon public land, intending in good faith to acquire the title thereto from the United States. The words should be held to apply to any actual settler upon land affected by the act at the date of the order of withdrawal provided for in section 7 of the act, and who had settled thereon and made improvements, with the intention, in good faith, of taking at the proper time the necessary steps to acquire the title of the government in any of the modes allowed by *367the laws of the United States, and as thus defined are broad enough to include one who has made a settlement with the intention of procuring its location in part satisfaction of any grant made by the United States to the state, and then purchasing from the state. This reservation of land occupied by bona fide settlers is not a grant to such persons; they must show themselves entitled to enter it before they are permitted to acquire the title, but it is a withdrawal of such occupied land from the grant made to the railroad company.
I think, also, that as there was no evidence tending to show that Hirleman was not a citizen of the United States, the court would have been justified in finding, from the facts before it, that he was possessed of the qualifications entitling him to purchase land from the state, and that upon January 30, 1865, he was a bona fide settler upon the land in controversy within the meaning of the act of July 2, 1864.
Beatty, 0. J., and Sharpstein, J., concurred.
Rehearing denied.