dissenting.
I am unable to give my assent to the opinion of the majority of the court for the following reasons:
*125The plaintiff is the owner of the north-east quarter of section 20, township 8, range 1 east, and the defendant’s railroad runs across the same in a diagonal manner, taking a strip about 200 feet in width by more than half a mile in length, the whole amount of land taken being in excess of 12 acres. Rider acquired title as follows:
On the 14th of June, 1870, one John Englebright filed a declaratory pre-emption statement alleging settlement on the 7th of that month. He made final proof and payment for the land June 14, 1871, and received his patent March 20, 1872. On the 24th of June, 1871, Englebright conveyed the west half of the land in question by warranty deed to the plaintiff and one Clark. In September of that year Clark and wife conveyed to the plaintiff. It appears, too, that Englebright on the 24th of June, 1871, conveyed the east half of this land to one Gary, and that in August of that year Gary and wife conveyed to the plaintiff
On the l’5th of June, 1865, the defendant filed a plat locating its line of railway from Plattsmouth to Kearney, on the Union Pacific railroad, and in August, 1870, Congress passed an act authorizing a change of the line within certain limits, west of the Blue river. In pursuance of this statute the company in 1871 filed a plat of the new line which passed through the lands in question, the settlement of Englebright thereon being made before the second plat was filed.
This action is brought by the owner of the land to recover damages for the land taken and other damages to the remainder of the tract. Two questions are presented: First. Did the defendant, by the location of its line on the 15th of June, 1865, exhaust the-power given it to locate its line on the public lands of the United States ? Second. If it did not, can it claim the right of way over lands that had been settled and filed upon under the pre-emption law be.fore the second location of its line, and final proof and payment thereafter made ?
*126In the case of Moorhead v. Little Miami R. R. Co., 17 Ohio, 340-353, the company had located and constructed its road under a special charter, and the question presented was its right to relocate and reconstruct its road on other and distinct grounds. The tenth section of the charter required the company to select the route as soon as practicable. The twelfth section gave authority to vary the route and change the location after the first selection had been made. First. Whenever a better and cheaper route could be had. Second. Whenever any obstacle to continue said location was found, either by difficulty of construction or procuring right of way at reasonable cost. Under these latter provisions the company claimed the right to condemn the complainant’s property. The court say, page 350-1. “ These grants of power are in derogation of private right, and would be totally void, but for the provisions of the constitution, which make private rights subservient to the public welfare. Admitting that the interests of the public were such as to warrant this extensive delegation of the right of sovereignty, or right of eminent domain, and it is quite certain that the power should bé clearly expressed, or necessarily and clearly implied from what is clearly expressed in the grant.
“In such case the rule of construction should be strict. No state can ever be presumed to have parted with a portion of its sovereignty even to her own citizens, without a grant affirmatively made. And no statute derogatory of private right should gain anything by forced construction. The general rule requiring grants of this nature to be strictly construed is in our opinion the only safe one, and it should be adhered to with unyielding tenacity.” * * * * * “That statutes of this nature should be strictly construed, is a position abundantly sustained by the cases cited by complainant’s counsel.
“ This case stands thus: The corporators had the power to locate and construct a railroad. They could exercise this *127right but once without a further grant. To accomplish this object a most important attribute of sovereignty was bestowed upon them by the legislature — the extraordinary reserved power of subjecting the property of private individuals to a public use. If it was intended that this should be a continuing power, one that might be exercised, and re-exercised again and again, as often as might suit the convenience of the company, the legislature should have so declared in express terms.”
In the case of Little Miami R. R. Co. v. Naylor, 2 Ohio State, 236, this decision was affirmed. See also Blakemore v. Glamorganshire Canal Co., 1 My. & K., 154. Canal Co. v. Blakemore, 1 Cl. & Fin., 262. State v. Turnpike Co., 10 Conn., 157. Turnpike Co.v. Hosmer, 12 Id., 364, L. & N. Turnpike Co. v. N. R. Turnpike Co., 2 Swan, 282. 1 Redfield on Railways, 410.
If these cases state the law correctly, of which there is no doubt, then the defendant by the location of its line over the public lands exhausted its power in that regard, unless there is some provision in the act of 1870 continuing the grant of the right of way on the new line, and an examination of that act will show that while the land grant is preserved there is nothing said about the right of way. The right of way over the new line was not therefore granted to the defendant. Rut suppose it was, still the plaintiff is entitled to recover’. Suppose Congress should pass an act granting the right of way to a railway company across the public lands — a grant in presentí, but there is no provision in the act for withdrawing such lands from market or selling them subject to the grant, is not a purchaser from the United States, without notice, entitled to protection? It will be said that the statute is notice of the grant, and that is sufficient; but that the statute is not notice is evident, because until the line is located it is a mere possibility. Rut before this grant was made Congress had passed general laws, granting to persons possessing certain qualifications portions of the public *128lands not exceeding 160 acres to each person, the grant being made upon certain conditions, such as settlement, residence, etc. Here is a continuing offer to settlers on the part of the United States to settle on the public domain, and the proposition when accepted becomes a contract between the individual and the government, that if he comply with the terms of the statute he shall in due time receive a patent for the land claimed. A grant of right of way rests upon the same ground, and is a mere proposition in the first instance to give the right of 'way if the company will build its road thereon. If the company should fail the grant would lapse. It seems to me therefore that until the company located its second line it could not claim the right of way across lands which prior to that time had been entered as a homestead or settled upon under the preemption law. The language of sec. 2257 of the Nevised Statutes of the United States is, that “ all lauds belonging to the United States to which the Indian title has been, or may hereafter be extinguished, shall be subject to the right of pre-emption under the conditions, restrictions, and stipulations provided by law.” The lands excepted are: First. Those included in a reservation. Second. Lands within the limits of a town or selected as a town site. Third. Lands actually settled upon and occupied for purposes of trade and not for agriculture. Fourth. Lands on which are any known saline or mines.
This land was not within the exceptions, and being claimed as a pre-emption, was not government land. By • the term “ government land,” I understand is meant land which is subject to disposition by the government. Suppose a grant of land is made to a railroad company to be conveyed to it in certain quantities upon the completion and acceptance of certain sections of the road, and that after the acceptance of the grant and the company’s rights had vested, but before the acceptance of any portion of the road, Congress should pass another act granting the land *129to another company, will it be contended that Congress in such case possessed such power? The rights of the company would have attached and the courts would see that they were enforced. Wherein does the case of a pre-emptor, who has settled on public land in good faith and filed his declaratory statement, differ from that of the railroad company? The case is well illustrated in that of Koenig v. The O. & N. W. R. R. Co., 3 Neb., 373, where it was held that when the right to property is vested by grant for a particular purpose by legislative authority, the legislature cannot vest it for another. See also McGee v. Matthias, 4 Wall., 155. Are not the rights granted to a pre-emptor entitled to the same protection ? Besides, the right of preemption can be exercised but once by an individual. He settles upon and enters 160 acres of land, intending to make his home thereon. In entering the land he pays the full price per acre for the entire tract, and receives a patent therefor. Afterwards a railroad is located across the land under an act of Congress granting the right of way, which act was passed before he entered the land, and under which the right of way is claimed across his land without compensation. If the right of way can be taken in this manner it is not the government that is granting it, but it is taken from the individual who is the owner of the entire tract.
In the case at bar the entire tract was entered and paid for, and if the defendant is not required to pay the damages the citizen and not the government must bear the loss. To me this seems like rank injustice, and I cannot give my assent to such a construction of the law. From the necessity of the case a railroad company is permitted to choose the most available route for its line of road, and the rights of individuals are so far subservient to the public welfare that any real estate necessary for right of way may be appropriated to its use, compensation being made therefor, but the courts by no strained construction of the language of a statute should deprive the owner of that which is justly his due.