The plaintiffs, Thomas Wilkinson and Samuel Dempster, who are the appellants, filed in the district court their petition for the appointment of commissioners to appraise the value of the premises described therein, which have been taken under the grant of the right of way to the defendant for a railroad track.
The defendant, the railroad company, answered; and the cause was submitted upon the petition and answer to the court below, and thereupon the prayer was denied and the petition dismissed. From this denial and dismissal of the petition the plaintiffs appealed to this court.
The petition shows that the plaintiffs are seized in fee as tenants in common of certain mineral lands particularly described. That said lands were located in the year *5451868, and claimed under and in pursuance of the laws of the United States and of this territory and of the local rules and regulations of mines and miners, at a time when said lands formed a part of the public domain of the United States., That these lands were held, worked and claimed as placer mining grounds, under and by virtue of the above authority, until the 20th day of February, 1882, on which day the petitioners and Eichard Eule and Conrad Geiger, as proprietors, applied for a patent to said lands; paid for them at the rate of $2.50 an acre, complying in all respects with statutes as to such entries. On the 31st day of May, 1883, a patent was issued to them for the lands.
Since 1868, the petitioners and their grantors have held peaceable possession of the lands and now own them, having received a conveyance from Eule and Geiger for their interest. That valuable mining ditches belonging to plaintiffs have been made on the lands, necessary to the business of mining thereon. That a large portion of these lands have upon them placer mines, of gold unworked, which, with the water appertaining to the premises and available for mining, will yield large quantities of gold of great value.
That the Northern Pacific Eailroad Company, the defendant, did, on or about the month of April, 1882, enter upon and construct its road along and over these mining lands, and cut and tore the ground and water ditches in such a manner as to render a large portion thereof entirely unfit for use as mining ground, and made it impossible for the petitioners to take gold therefrom. That the length of said track along and across said ground is about one and a half miles; that the defendant claims an easement upon and over said land for a distance of two hundred feet on each side of said track for said distance, by virtue of their act of incorporation.
That these lands are, and were at the time of the entry, private lands, and were, and now are, mineral lands *546within the meaning of the act incorporating said company and of the laws of the United States.
That the petitioners and defendant have not been able to agree as to the value of the premises so taken. That by reason of this taking by defendant, they have been damaged $15,000.
The prayer of the petition is for the appraisement, and the appointment of appraisers of the land so taken for the right of way, pursuant to section 1 of the charter.
The answer denied that the defendant claimed or desired the premises in fee, but only claimed an easement therein and right of way thereon, as granted by section 2 of the act incorporating this company, and averred that the right and title thereto antedated the rights of the petitioners, the date thereof being the 2d day of July, 1864; that petitioners’ right is subordinated to that of the defendant, who is entitled to the same without compen-. sation to the petitioners. The answer closes with a prayer that the petition be dismissed, and defendant moved to dismiss the petition upon the facts and law appearing in the same and the answer, which motion the court sustained and dismissed the petition. From this order the petitioners appeal.
The second section of the charter of the Northern Pacific Eailroad Company grants the right of way through the public lands, two hundred feet in width on each side of the track. The seventh section provides for the entering upon, purchasing, taking and holding, and condemnation of any land owned by private individuals. for the right of way. Provision is made for the appointment of commissioners to assess damages in case the owners of land cannot agree as to the same with the company.
The petitioners, having a patent from the United States, claim damages under this seventh section.
The supreme court of the United States has decided that a similar grant of the right of way is present and absolute, subject to no conditions except those necessarily *547implied, such as that the road shall be constructed and used for the purpose designed; and that there is nothing-in the policy of the government with respect to the public lands which would call for any qualification of the terms, inasmuch as the grant of the right of way contains no reservations or exceptions such as are found in the sections of the charter granting land in aid of the construction of the road. See Railroad Company v. Baldwin, 103 U. S. 426. See, also, Western Pac. R. R. Co. v. Tevis, 41 Cal. 493.
The appellants take the position that they have the legal title, a patent, which is voidable only until set aside by a court of competent jurisdiction, and that having this title, they have a right to the appointment of commissioners. But the respondent has also a legal title of an older date, which is found in the act of congress making the grant, and the inferior must yield to the superior legal title, without a resort to a court of equity to set the inferior one aside. It is not, therefore, necessary that the railroad company should call to its aid, in order to secure the right of way through the petitioners’ land, the exercise of the power of eminent domain, since, at least four years before they made any claim to the land in question, it had been granted unconditionally to the defendant.
The third section of the charter, which grants lands in aid of the construction of the railroad, is as follows: “ That there be and is hereby granted to the Northern Pacific Eailroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated ■ by odd numbers, to the amount of twenty alternate sections of land per mile on each side of said railroad, whenever it passes through any state, *548and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is definitely fixed and a plat thereof filed in the office of the commissioner of the general land office, and whenever, prior to said time, any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections. Provided: That, if said route shall be found .upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted by this act. Provided, further: That the railroad company receiving the previous grant of land may assign their interest to said Northern Pacific Railroad Company, or may consolidate, confederate and associate with said company upon the terms named in the first section of this act. Provided, further: That all mineral lands be, and the same are hereby, excluded from the operation of this act, and in lieu thereof a like quantity of unoccupied and unappropriated agricultural lands, in odd numbered sections, nearest to the line of said road, may be selected as above provided; and provided, further, that the word “mineral,” when it occurs in this act, shall not be held to include iron or coal; and provided, further, that no money shall be drawn from the treasury of the United States to aid in the construction of the said Northern Pacific Railroad.”
The mineral lands excluded from the operation of this act are evidently not those covered by the right of way, as nothing could possibly be given in lieu • of any lands *549which might be needed for such a purpose. And it would be destructive of the rights of the railroad company, if mining claims could at any time be located and worked upon the track and land covered by the right of way. See Doran v. Cent. Pac. R. R. Co. 24 Cal. 246. The joint resolution of congress of January 30, 1865, declar-' ing that no act shall be so construed as to embrace mineral lands, which in all cases shall be, and are hereby, reserved exclusively to the United States, cannot be considered as a reservation of mineral lands from the operation of grants of the right of way, such as the one in question. A reservation of that character would annihilate the franchise and annul the operation of the entire act of congress granting the charter. The operations of mining, and the business of railroads, cannot be conducted at the same time upon the same ground, and a reservation of such a character would beget a conflict of rights and a confusion of interests, not in contemplation of intelligent legislative action.
Judgment affirmed.