ON APPLICATION FOR A REHEARING.
Counsel for defendant urges with great earnestness that, inasmuch as its road had been constructed over the land in controversy before the defendant had initiated his pre-emption rights by settlement, such rights are subject to plaintiff’s title to the right-of-way in question. There is much equity in this contention, and, were it not for the language of the statute, we would be strongly inclined to sustain it. But the implication found in section 4, that the settler takes subject to the right-of-way only when his rights attach after the map of definite location has been filed and approved, when considered in the light of the provisions of section 3, which clearly show that mere possessory rights must be condemned by the railroad company, plainly point to only one conclusion, in our judgment; i. e. that when a settler has taken possession of land, with a view to making a pre-emption filing thereon, before the map of definite location of a railroad right-of-way thereover has been filed and approved, the railroad company must condemn the possessory right of the pre-emptor. The cases cited by counsel for defendant on this application are, in our opinion, easily distinguishable from the case before us for decision. In Washington & I. R. Co. v. Cœur D'Alene Ry. & Nav. Co., 160 U. S. 77, 16 Sup. Ct. 231, the plaintiff was seeking *630to recover possession in ejectment of a right-of-way which it claimed that it had acquired under the provisions of the act of 1875, — the act which we are here construing. It is obvious that, under a familiar rule, the plaintiff, in order to recover, was obliged to establish its title to the right-of-way, as its right to possession depended entirely upon its title. It based its claim upon the fact that it had surveyed and staked the particular portion of the right-of-way in controversy the day before the defendant had surveyed and staked a right-óf-way over the same land. But the court held that such previous survey gave the plaintiff no rights whatever, for the reason that at the time it was made the line of plaintiff’s railroad, as described in its articles of incorporation, did not cover or include the land in controvery, or any pai't thereof. Besides, it appeared that the plaintiff had not at that time placed itself in the categoiy of those entitled to the benefit of the act of 1875, as it had not yet filed with the secretary of the interior a cex'tified copy of its articles of incorpoi'ation, and proof of its oi'ganization thereunder.
It was contended on behalf of the plaintiff that on subsequently amending its ax'ticles of incoi'poi'ation to include a line of x'aili'oad over the land in dispute, and thereafter filing its ax'ticles of incorporation and proof of oi'ganization, it had a light to adopt the previous survey, and that such adoption related back to the date when it was made. But the court refused to take this view of the question; holding, “that, so far, as the conflicting rights of the pax'ties to this controvei'sy are concerned', the status of the plaintiff is the same as if its survey of October 28, 1886, had not been made.” This bi'ief review of this case lays bare the fact that the plaintiff therein was defeated in its action of ejectment because the act of survey on which it rested its light to possession was adjudged to be utterly without legal effect, for the reasons stated in the opinion, — x'easons which have no beaiing on the case at bar.
We have carefully studied the recent decision of the Federal Supreme Court in Railroad Co. v. Smith, (opinion filed May 31, *6311898) 18 Sup. Ct. 794, to which our attention has been called by-counsel for the defendant. That case is, in our judgment, so plainly distinguishable from the controversy before us, that we deem it unnecessary to do more than state our conclusion that it is not an authority for the defendant. Nor do vie discover in the opinion any reasoning which, when fairly construed, militates in the least against our decision in this cause. The point on which our holding is adverse to the defendant is by no means so clear that we feel the very highest degree of confidence that we are right in our view. And it is therefore a great satisfaction to us to realize that our eiTor, if any, can, and px'obably will, be corx-ected by a higher tribunal.
76 N. W. Rep. 227.)The application for a rehearing is denied.
All concur.