On the twenty-third day of July, 1866, Congress passed “ an act for a grant of lands to the state of Kansas to aid in the construction of the Northern Kansas Railroad Company.” Section one of the act provides: “That there is hereby granted to the state of Kansas, for the use and benefit of the Saint Joseph and Denver City Railroad Company, the same being a corporation organized under the laws of Kansas, to construct and operate a railroad from Elwood, in Kansas, westwardly, via Maryville, in the same state, so as to effect a junction with the Union Pacific Railroad, or. any branch thereof, not farther west than the one hundredth meridian of west longitude, every alternate section of land designated by odd numbers, for ten sections in width on each side of said road, to the point of intersection. But in case it shall appear that the United States have, when the line or route of said road is definitely fixed, sold any section or any part thereof granted as aforesaid, or that the right *251of pre-emption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the Secretary of the Interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the tier of sections above specified, so much land, in alternate sections or parts of sections designated by odd numbers, as shall be equal to such lands as the United States have sold, reserved, or otherwise appropriated, or to which the rights of preemption or homestead settlement have attached as aforesaid,” etc. ■
Section four provides: “ That as soon as the said company shall file with the Secretary of the Interior maps of its lines, designating the route thereof, it shall be the duty of the said Secretary to withdraw from the market the lands granted by this act, in such manner as may be best calculated to effect the purposes of this act and subserve the public interest.”
Section six provides: “ That the right of way through the public lands be and the same is hereby granted to the said Saint Joseph and Denver City Railroad Company, its successors and assigns, for the construction of a railroad as proposed,” etc.
On the twenty-seventh day of October, 1869, the defendant purchased from the United States the south-east quarter of the south-east quarter, and the north-west quarter of the south-east quarter of section eleven, in township one, range three, in Jefferson county, Nebraska, and has continued to own said lands ever since.
In the year 1871, the plaintiff located its line of road over the above described lands, taking a strip through the same about two hundred rods in length and two hundred feet in width. The defendant took the necessary steps under the laws of this state to have the damages assessed, and an award was made in his favor. On appeal *252from the award to the district court, he recovered j ndgment for the sum of $200. The cause was brought into this court by petition in error.
The railroad company set up as a defense, that by the act of Congress approved July 23,1866, they were granted the right of way through the public lands of the United States, and they insist that this was a grant in presentó, which took effect without regard to the location of their line, and that therefore all lands sold by the United States after the passage of the act, and before the location of the road, although sold without reserve and for full consideration, were taken subject to this grant. No such construction can be given to the act. Construing its provisions together, it is apparent that the right of way was granted only across such lands as were owned by the United States at the time of the location of the line of the road. The plaintiff might with equal propriety insist that they were entitled to all the odd numbered sections for ten miles on each side of the road, although the same had beeD entered prior to the location of the line. Such lands were subject to entry and settlement, until the plaintiff had filed maps of its line, designating the route, with the Secretary of the Interior, and the lands had been withdrawn from market under the provisions of section four of the act.
A party purchasing agricultural lands from the United States, without reservation or condition, takes the entire title to the same. He acquires a right of property therein, of which he can be divested only for public use, and on just compensation being made for the same. As the defendant herein was the owner of the lands in controversy at the time of the location of plaintiff’s line across the same, he is entitled to damages for the right of way. The judgment of the district court is therefore affirmed.
Judgment affirmed.