(Dissenting). — The issues of fact raised upon the answer are: Whether the railroad company at any time used and enjoyed its said right of way to the extent of 100 feet on each side of the center of its railroad tracks, including the 2.23 acres in controversy; and whether the land was public in character at the time the railroad company constructed its road; and whether the railroad acquired *231a right of preference over appellants under the grant by the construction of its road.
Defendants set forth their title based upon the homestead settlement and filing by Cleve "W. Van Dyke made on December 22, 1909, and compliance with the homestead laws of the United States culminating in a patent issued February 12, 1912, and pray that their title be quieted.
The supreme court of the United States in Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. Ed. 698, 20 Sup. Ct. Rep. 568, decided:
“(1) That a railroad company becomes specifically a grantee under the act of 1875 by filing its articles of incorporation and due proof of its organization under the same with the Secretary of the Interior.
“ (2) That the lands granted were identified by a definite location of the right of way, and, sustaining the contention of the railroad that definite location could be made by actual construction of the road against the decision of the lower courts that such location could only be made by a profile map of the road, we said that the contention gives practical operation to the statute and enables the railroad company to secure the grant by an actual construction of the road, or, in advance of construction, by filing a map as provided in section 4.
“(3) Actual construction of the road is certainly unmistakable evidence and notice of appropriation.”
So that court explained its decision in Minneapolis, St. P. & S. Ste. M. R. Co. v. Doughty, 208 U. S. 251, 52 L. Ed. 474, 477, 28 Sup. Ct. Rep. 291. In this last case the court said:
“But section 4 gives little play to construction or the analogies which the company invoke. That section determines the priority of rights between railroads and settlers by explicit language. A right of way is granted, but to secure it three things are necessary: (1) Location of the road; (2) filing a profile of it in the local land office; and (3) the approval thereof by the Secretary of the Interior, to be noted upon the plats in the local office. It is after these things are done that the statute fixes the right of the railroad and subjects the disposition of the land, under the land laws, to that right. ‘And thereafter,’ are the words of the *232statute, ‘all such lands over which such right of way shall pass shall he disposed of subject to such right of way.’ ” •
In Stalker v. Oregon S. L. R. Co., 225 U. S. 143, 56 L. Ed. 1027, 1032, 32 Sup. Ct. Rep. 636, the court explains its meaning by the use of the last-quoted language, thus:
“Neither should the case of Minneapolis, St. P. & S. Ste. M. R. Co. v. Doughty, be regarded as construing the fourth section of the act as holding that, pending the approval of a map of final location, any right may be initiated which will be superior to the title which vests upon such approval. No such question was involved in that case. What is said in the opinion about the grant of a right of way being dependent upon the doing of three things — location of road, filing profile of it in the land office, and the approval thereof by the Secretary of the Interior — and that ‘thereafter all such lands over which such right of way shall pass shall be disposed of subject to such right of way,’ refers to the nonvesting of any right as against the United States, and not as denying the priority of right in the acquisition of the premises as between parties, growing out of priority of application.”
Continuing the court says: “ . . .It has been many times ruled that while no vested right against the United States is acquired until the actual approval of the list of selections (under state land grant laws requiring selection of lands by the state), the company does acquire a right to be preferred over such an intervener. In other words, the patent, when issued, relates back to the initiatory right, and cuts off all claimants whose rights were initiated later”— holding also that the same rule applies to location of rights of way granted by the act of 1875.
Consequently in this ease to recover the plaintiff must establish not only that it was a qualified grantee under the act of 1875, and furnished due proof thereof, that it definitely located its grant on public lands offered, that it filed a profile map of such definite location of its road in the land office of the proper district, that such map received due approval of the Secretary of the Interior, but, further, that the definite location of the grant was fixed by some act performed, to which the approval of the Secretary of the Interior relates, and performed at a time prior to the initiation of Yan Dyke’s homestead rights.
*233The railroad company’s profile map was filed in the local land office on December 30, 1909, and approved by the Secretary of the Interior March 4, 1911; hence the approval of the map gives effect to the grant as of the thirtieth day of December, 1909, as divesting on that date the title of the United States. The defendant Van Dyke settled the land and applied for homestead entry December 22, 1909, and hi§ patent issued on February 12, 1912, and served to divest title of the United States by relation on the twenty-second day of December, 1909. Therefore the Van Dyke title is superior to the railroad’s title to the land in controversy in so far as affected by the rule of priority in acquisition of right as against the United States.
The question here is whether the actual construction of the road over the premises constituting the patented homestead is such an act in the circumstances shown in this case as would deny to the appellant such priority of right as against the railroad company, and give the railroad company a right to be preferred over such intervener as to the lands in controversy. In other words, whether the actual construction of the railroad in the circumstances in evidence is such act of definite location, of the said 2.23 acres of land, as the patent when issued will relate back to as initiating a right to be preferred and cut off the right of the homesteader initiated later. The answer depends upon the public character of the land involved, and the nature of the right acquired.
The railroad was actually constructed across the homestead premises in August and September, 1909. The premises were then and prior thereto had been and thereafter were for a time held by the Miami Land & Improvement Company under regular mineral location, and said Miami Land & Improvement Company conveyed other lands to the railroad company as a right of way over and across said premises and to the extent of 50 feet in width on each side of the center of its surveyed line. Said deed of conveyance was dated September 27, 1909, and the road was actually constructed upon the right of way described in the deed. Possession of the lands described in the deed was delivered to the railroad company and by it such lands and no other were actually appropriated to its right of way purposes. No greater amount of land was used or ever has been used by the railroad company for right *234of way or for any purpose other than the said strip 100 feet in width and of a length across the mining locations with the railroad along the center line. No adverse right is or could be asserted to such strip of land actually so appropriated as against the railroad company. The railroad having been actually constructed along the center of the strip and in operation was unmistakable evidence and notice of appropriation of the lands so actually used and appropriated for the said purpose. As to such lands so in the possession of the railroad company, the said company was prior in right because prior in actual appropriation, and the approval of the map of definite location relates back to such actual construction of the road definitely fixing the grant as of the date of said construction of the road to the extent of lands actually appropriated to that purpose, namely, a strip of land extending in its length across the mining locations, and fifty feet in width upon each side of the center of such track. Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. Ed. 698, 29 Sup. Ct. Rep. 568. Such lands are not the subject of this action.
The purpose of the suit is to widen the right of way from 100 feet, as fixed by the deed of September 27, 1909, and confirmed by the approval of the profile map, to a width of 200 feet, the railroad company asserting its right to claim the additional width of right of way as also acquired by the grant of the act of March 3, 1875, and approval by the Secretary of the Interior. The appellants seem to concede that the right of way as it existed in extent of 100 feet in width at the time the railroad was actually constructed passed beyond their right to claim under the homestead entry. If not fully conceded the authority of Jamestown & N. R. Co. v. Jones, 177 U. S. 125, 44 L. Ed. 698, 20 Sup. Ct. Rep. 568, supra, is conclusive of any other claim, because title of the railroad company to such right of way became fixed and completed by the approval of the profile map under the grant. The right of the railroad company to be preferred as to its claim to such strip of ground so actually appropriated by it as against rights subsequently initiated cannot be doubted on authority or reason. Actual possession and use of the said strip of land for a right of way is actual appropriation of such lands, and the construction of the railroad thereon is a fixing definitely *235of the line upon that ground, because as stated in the Jamestown & N. R. Co.-Jones case, the actual construction of the road is certainly unmistakable evidence of and notice of appropriation.
In Dakota C. R. Co. v. Downey, 8 L. D. 115, Secretary Vilas said:
“As to the roadway the construction of the road fixes the boundaries of the grant, and fixes it by the exact rule of the statute. . . . This must undoubtedly be the rule when the road is constructed over unsurveyed lands, because then every condition necessary to the vigor of the present grant is complied with.”
Such language is used, of course, with reference to unappropriated public lands to which no prior possessory right has attached. It does not mean that if land of sufficient width on each side of the central line of the constructed road is not public land subject to the satisfaction of the grant free from conflicting claims, that the railroad company may take from a private claimant or other than the United States lands sufficient to meet the exact rule of the statute, and give such land to the railroad company in order to measure the right of way by the statute.
In Washington & Idaho R. R. Co. v. Osborn, 160 U. S. 103, 40 L. Ed. 356, 16 Sup. Ct. Rep. 219, the court said:
“It would not be easy to suppose that Congress would, in authorizing railroad companies to traverse the public lands, intend thereby to give them a right to run the lines of their roads at pleasure, regardless of the rights of settlers. Accordingly, when we examine the act of March 3, 1873, upon which the plaintiff rests its claim of right to appropriate to its use, without compensation, the land and improvements of Osborn, we find in the third section an express provision saving the rights of settlers in possession.”
In this case the Miami Land & Improvement Company was in possession by Cleve W. Van Dyke of the additional strips of land here in controversy at the time the railroad was actually constructed upon the 100-foot strip conveyed and appropriated to right of way purposes, by possessory claim founded upon a regular mineral location. Such right of possession was of such nature as would require the railroad company to respect and condemn before it could appro*236priate the land and nse it for right of way. This record presents no action taken of that nature having for its purpose such result. The railroad company has never had actual possession of such additional strips of land at any time for any purpose. Therefore, Jamestown & N. B. Co. v. Jones, supra, is not authority for holding that the actual construction of the railroad is certainly evidence and notice of appropriation of such additional strips of land to right of way purposes for the reason no appropriation was in fact made, and one condition, i. e., possession to give vigor to the grant — was absent. 8 L. D. 115.
The actual construction of the road appropriating a purchased right of way to its use would give the railroad company no just right to be preferred in its claim of additional ground for right of way purposes, as against a homestead settler who initiated his homestead claim before the railroad company commenced any regular proceedings to claim the right to such additional strips as one of the benefits of the grant offered by the act of 1875.
The rule of Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424, is stated as follows:
“But whilst, according to these decisions, no vested right as against the United States is acquired until all the prerequisites for the acquisition of the title have been complied with, parties may, as against each other, acquire a right to be preferred in the purchase or other acquisition of the land, when the United States have determined to sell or donate the property. In all such cases, the first in time in the commencement of proceedings for the acquisition of the title, when the same are regularly followed up, is deemed to be the first in right. ’ ’
Can one consistently and truthfully say in the circumstances shown on this record that the railroad company was first in time in the commencement of proceedings for the acquisition of the title to the additional strips of land, when the facts are that it never acquired possession of the said strips of land, never claimed the right to possession, and took no steps at any time to recover the possession by condemnation or otherwise, until the thirtieth day of December, 1909, and later when this action was commenced; that it purchased the possessory right of the mineral claimant to a right *237of way lying between the two strips of land, and constructed its railroad on the said purchased strip of land, and first commenced proceedings to acquire title to said tracts or strips of additional ground after the mineral locator’s rights had lapsed and the homestead settler’s rights had been initiated, by filing a profile map of its located railroad, and thereby for the first time claimed as a part of its right of way the two strips of land here in controversy ? I think not. The claim of the railroad company of the benefits of the grant is one of the essential conditions precedent to its right of grant. Larsen v. Oregon Nov. & Ry. Co., 19 Or. 240, 23 Pac. 974; Spokane Falls etc. R. Co. v. Ziegler, 61 Fed. 392, 9 C. C. A. 548; Id., 167 U. S. 65, 42 L. Ed. 79, 17 Sup. Ct. Rep. 728; Hall v. Russell, 101 U. S. 509, 25 L. Ed. 829; D. & R. G. R. Co. v. Wilson, 28 Colo. 6, 62 Pac. 843; Railroad Co. v. Jones, 7 N. D. 619, 76 N. W. 227; Enoch v. Spokane Falls & N. Ry. Co., 6 Wash. 393, 33 Pac. 966; Railroad Co. v. Sture, 32 Minn. 95, 20 N. W. 229, and the language of section 4 of the act of 1875 support the answer.
The acts of surveying and staking out a right of way according to the survey are held in Stalker v. Oregon S. L. R. Co., 225 U. S. 143, 56 L. Ed. 1027, 1031, 32 Sup. Ct. Rep. 636, insufficient to initiate a right to claim under the grant, because, being the acts of the company alone they are changeable at its will, and may not be considered as fixing the location of the road.
The railroad company cites Bonner v. Rio Grande S. R. Co., 31 Colo. 446, 72 Pac. 1065, in support of its prior rights. The Bonner case discloses that the railroad company claimed the benefits of the grant by filing its profile map which was approved before the adverse mineral claimant’s location was commenced; hence a very different state of facts from those disclosed by this record.
The lands in controversy were included within the boundaries of a forest reserve, and therefore withdrawn from sale or donation at the time the railroad was surveyed and constructed over the mining locations, and plaintiff was granted permission to construct its road within the forest reserve. Plaintiff urges this fact as of advantage to it, and contends that it had twelve months after the lands were withdrawn from the forest reserve in which to file its map of definite *238location. An answer to this contention is that the regular ■mineral locations within the boundaries of the forest reserve are no part of the reserve, and if it had acquired the possessory title of the locators to the additional strips of land as it acquired to the strip 100 feet in width, no question could now be raised denying its priority of right after the lands reverted to the United States and the United States offered to sell and donate the lands under the land laws of Congress.
Not having acquired the possessory right, and not having the actual possession of the additional strips of land, when the lands were offered for entry or donation, such strips of land were properly included in the offer of sale or donation and subject to appropriation under the laws of Congress by the first claimant. Yan Dyke was that claimant, and thereby acquired the right to be preferred because of his diligence, and having acquired the absolute legal title through patent from the United States free from the burden of the right of way easement, the title thus acquired is prior and superior to that acquired by plaintiff, and as a consequence plaintiff has not shown a right to recover on the strength of his own title, but the matter of strength of title as the matter of preference right to the 2.23 acres of land is with the Yan Dyke title, and therefore with appellants. For this reason the conclusions of law are not sustained by the facts found. The facts compel an opposite conclusion of law, viz., that plaintiff recover nothing, and that the title to said described lands be quieted in appellants, and that they recover costs.
For these reasons I am of the opinion that the judgment and decree ought to be vacated, and the cause remanded to the lower court, with instructions to enter judgment on the facts found for appellants, with costs.
On location of mining claim on railroad aid grant, see note in 7 L. R. A. (N. S.) 801.