dissenting.
There is but little dispute as to the facts in this case, and the principal questions involved are purely questions of law. The supreme court of the United States seems to have given a construction to the act granting lands to the defendant as to the time when it had so far complied with the act of Congress as to withdraw the lands in dispute from private entry, homestead and preemption. And as that court is the final arbiter in construing a statute of the United States, W'e must accept its decision thereon as final. It would seem, however, to be nothing but justice, to grant settlers taking homesteads on such lands before they are withdrawn from market, a right to enter the same, and either compensate the company in money, or allow it to select other lands in lieu of those thus taken. There is gross injustice in the government inviting settlers to enter these lands at the several land offices, and to receive the money of such settlers for the costs of suf*298veying and landvoffice fees, when in fact the government will not .protect them in their purchases. And the wrong does not stop there. A party who is permitted to enter such lands as a homestead, or preemption, makes his-home on the land thus entered, breaks up and opens a farm and makes other valuable improvements thereon, only to find after years of self-denial and toil, that the land was not subject to entry, and that he is not the owner, while in the mean time all the available public land within reach has been entered. All these wrongs-could be prevented, if. the government in a case like that under consideration, would promptly withdraw its lands from market, or protect those settling thereon prior to-their withdrawal. It is no answer to say that the law was notice to every one of the nature of the grant, and that the purchaser took a preemption or homestead on the odd-numbered sections of such lands at his peril, because until the location of the line, all of these lands were subject to homestead and preemption, and the grant did not attach to any particular tract. And certainly a party who was permitted to enter lands as a homestead, within the limits of the grant, might reasonably be supposed to have entered the same in good faith, and to be entitled to compensation for his improvements in case of eviction.
Occupying claimants, who have made valuable and lasting improvements on real estate, and have thereafter been evicted therefrom, have been allowed to recover for their improvements in Ohio ever since the case of Lessee of Shaler v. Magin, 2 Ohio, 236, where an entry had been .made on the. lands in dispute prior to 1818, under which the defendant took possession and made the improvements in question. In October, 1818, after the improvements had been made, the entry was withdrawn, and about the same time another entry was made on the (and by one Ellis, under whom the defendant claimed. *299It was held, that as the claimant had an equitable title of record, he was entitled to pay for his improvements made-before -his title commenced. The question was again before that court in the case of Longworth v. Worthington, 6 Id., 9, where it was held, that a purchaser of real estate-at administrators’ sale, if evicted by .-the heirs, was entitled to the benefit of the occupying claimant law. In the case of The Lessee of Davis v. Powell, 13 Ohio, 308, it was held, that a defendant holding possession of premises under claim of title, will be allowed under the occupying; claimant law, as well for improvements made by him before his title commenced, as for those made afterwards. The court say: (page 320,) “The equity .of the, statute-embraces all improvements made in the honest belief of ownership, if, at the time of the rendition of judgment,, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state-of facts exist, as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the entire improvements beneficial to the-successful claimant, and honestly made. Any other construction would permit an honest purchaser of land, buying from one, without color of title, who sells from mistaken belief of ownership, to be swept out of the hard toil, of years, expended in improvements made for the provision of his family or the repose of age. The statute is to be so construed, whenever a case comes within its letter, that the person receiving the benefits and advantages of improvements, shall make compensation. It rests on the broadest equity, and in the language of the court in Longworth v. Worthington, 6 Ohio, 10, may justly claim a liberal construction.”
In Harrison v. Castner, 11 Ohio State, 339, the doctrine of the cases above cited was approved.
In the case of Doe, ex dem., C. Chim, v. Darrell, 4 McLean, 440, the defendants patent for lands in the *300Yirginia military district, was dated April 14, 1806, Ms entry was made November 16th, 1798, and the survey was executed April 2nd, 1799. The lessor of the plaintiff claimed under a patent dated January 30th, 1827, the ■entry being made in July, 1819, and the survey in 1821. It was held that the defendant was entitled to compensation for his improvements.
In Litchfield v. Johnson, 4 Dillon, 551, it was held, that settlers on what were known as the Des Moines river lands in Iowa, were entitled to the benefits given by the statute, when they had made valuable improvements on lands, of which they were afterwards adjudged not to-be the rightful owners.
In the case of Stebbins v. Guthrie, 4 Kas., 354, the supreme court of Kansas approved of the decisions .above cited from Ohio. The question was again before the supreme court of Kansas in the case of Krause v. Means, 12 Kas., 335, and it was held that one who is in •quiet possession of land, and holding the same by bond from, and under any person claiming title by deed, duly authenticated and recorded, is entitled to the benefits of the occupying claimant law.
In Lemart v. Barnes, 18 Id., 9, the land in controversy was originally ' a part of the Osage Indian reserve, but afterwards, under the provisions of article 14, of the Osage Indian treaty of September 29th, 1855, was alloted to a certain half-breed Osage Indian. In August, 1867, the occupying claimant obtained his title to said land from the half-breed Indian and paid him therefor $350.00. The occupying claimant then took possession of said land and remained in possession until evicted. In February, 1872, the successful party procured his title to the land in .dispute from the half-breed Indian. It was held that the claimant was -entitled to compensation for his improvements. Other oases could be cited, sustaining the proposition that an *301occupying claimant is entitled to full compensation for his improvements. The rule rests upon the plainest, principles of justice. If A. has made valuable and lasting improvements upon lands that are afterwards adjudged to be the lands of B., is it not just that B. should pay for such improvements ?
The improvements upon such lands not unfrequently are of greater value than the land itself, and have absorbed in their construction the accumulations of' many years of toil, and self-denial. Even where the occupying claimant is fully compensated for his improvements — and he should be fully compensated in all cases — he, in many, if not most cases, will sustain heavy loss. In the case at bar two patents were issued by the United States, óne to the plaintiff and one to the defendant. This is a contest between these patents. They cannot both be valid. In order to determine the validity of either, we must recur to the date of filing the plat locating the line of road of the defendant, which being prior-in point of time to the homestead entry, and there being-no proof that land in lieu of that occupied by the plaintiff has been entered by the defendant, the right to the-land must be held to be in the defendant. But the plaintiff evidently made his improvements on the land in good faith. These improvements materially enhance the value of the land, and justice requires that the plaintiff should be paid for this enhanced value. This law should be given no narrow, technical construction, but should be administered in the broad principles of justice, in which it had its origin. The contract from the defendant to the plaintiff does not seem to enter into this question. The plaintiff claims nothing under it. It was taken after the improvements, or a considerable portion of them, were made, and whether the plaintiff notified Mr. McFarland that he intended to continue his contest- or not, is not material in the case. The plaintiff’s right. *302to compensation is denied upon the ground that he is the vendee of the defendant, and therefore is estopped by his ■contract. If this is true, does the fact that he received the contract prevent his ignoring it, and claiming under a superior title, namely, a patent from the United States ? The patent is not void upon its face, and if void at all, is so because the rights of the defendant attached to the land before that of the plaintiff. The plaintiff settled upon this land as a homestead, made the necessary improvements to comply with the law, has occupied the premises for a much longer period than five years, and entered the .same as a homestead, and has thereby exhausted his right of homestead under the laws of the United States. A homestead entry certainly comes within the plain provisions of the statute. If this entry was valid, the plaintiff would take the legal title by his patent, and the contract would be mere waste paper. The title of the plaintiff therefore is clearly adverse to that of the défendant.
It must not be forgotten, however, that the defendant takes by grant, and not by purchase, and that when the ■quantity granted has been received it can take no more.
Sec. 19 of the act granting lands to the defendant, provides : “That for the purpose of aiding in the construction of said road, there be, and hereby is, granted to the said Burlington & Missouri River Railroad Company, •every alternate section of public land (excepting mineral lands as provided in this act) designated by odd numbers, to the amount of ten alternate sections per miie on each ■side of said road, on the line thereof, and not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached at the time the line of said road is definitely fixed; Provided, That said company shall accept this grant within one year from the passage of this act, by filing such acceptance with the secretary of the interior, *303■and shall also establish the line of said road, and file a map thereof with the secretary of the interior within one year of the date of said acceptance, when the said secretary shall withdraw the lands embraced in this grant from market.”
The grant is of ten alternate sections per mile on each side of said road, on the line thereof and not sold, reserved, or otherwise disposed 0f * * * * and to which a preemption or homestead claim may not have attached, etc. The sections designated by odd numbers for twenty miles on each side of the roadr, which were not within the exceptions named, were set apart to the defendant, and the deficiency to be supplied by lands to be ■entered outside of this limit. Now, suppose the proof showed that the defendant, from a desire to favor parties, who, like the plaintiff, had settled upon lands taken under the homestead act, prior to February 20th, 1866, when the lands in dispute were withdrawn from market, had selected a sufficient quantity of lands on the same side of the ■defendant’s road, as the land in dispute is situated, equal to ten sections per mile, and thus satisfy the grant on that side, the plaintiffs patent would prevail over that of the defendant; because, being a grant by quantity, and the designation of the odd numbered sections merely a mode of selecting the land, the defendant could not, after receiving the quantity of land granted to it, claim lands within the twenty mile limit for which other tracts have been selected in lieu thereof. And the fact that lieu lands had been selected would prima facie at least be an abandonment of all lands for which such selections had been made. The defendant has constructed its railroad in good faith, and has fully complied with the act of congress making the grant, and is entitled to receive all the benefits to be derived therefrom, and is entitled to receive in the aggregate ten sections of land per mile, on each side of the line of the road, and as the proof fails to show *304that it possesses that quantity on the side of the road on which the land in dispute is situated, I concur in the affirmance of the judgment in ejectment, but think the plaintiff is entitled to payment for his improvements.