(concurring).
I concur in the judgment of affirmance. I am not prepared to concur in the conclusion that lands in the right of way grant made by section 2 of the Act of 3866 quoted in the main opinion are reserved from the grant, as is the case of lands granted by section 3 of the act where such lands have been properly entered as a homestead. There seems to bo no direct decision upon that question, and appellant confesses that it has been unable to find one. There are many reasons for holding that the interest of the United States therein was granted in praesenti by the right of way grant. If it is held otherwise, as in tho case of lands granted in aid of the railroad company under section 3, then, as held in tho main opinion, upon tho relinquishment or abandonment of the claim by the entryman, title would revert to the government and the railroad company would have no right under the original grant to build across such lands without additional legislation. In tho meantime other rights might intervene to prevent Congress from granting such right. Under the Act of March 3, 3875 (43 USCA §§ 934-939), it is definitely held by the Supreme Court that the right of the government to the lands covered by the right of way passes to the railroad company subject to a duty on its part to compensate *676those jwho have obtained equitable interests therein (Great Northern R. Co. v. Steinke, 261 U. S. 119, 43 S. Ct. 316, 67 L. Ed. 564), and that consequently upon abandonment of the entryman’s right, the qualification of the grant in favor of the entryman disappears and the title is perfected in the railroad without qualification. It is true that this conclusion is reached by reason of the fact that the act of 1875, supra, specifically provides for the condemnation of the rights of the entry-man, and this consideration from which it is clear that the right of way covers lands that have been previously entered and occupied. The question in the ease at bar is whether a similar grant of a right of way over “the public domain” (section 2, act of 1866, supra), instead of over the “public lands,” as in the act of 1875, supra, shall receive a narrower construction than the act of 1875-, although the grant in the act of 1866 is unqualified by the requirement of compensation to the entryman. In other words, does the requirement of such compensation in the act of 1875 extend the scope d'f the grant over that of 1866-, whieh contains no such requirement. This anomalous result must be arrived at, if at all, I think, by a consideration of the meaning of the phrase, “public domain,” used by Congress in section 2 of the act of 1866, and not by analogy from decisions relating to the aid land grant contained in section 3 of the act of 1866 which expressly reserves from the operation of the grant lands already homesteaded, or pre-empted, etc. In the latter case, as stated in the main opinion, it is thoroughly established that lands subject to such rights are reserved from the grant and did not pass at the time of the enactment by Congress nor later upon abandomnent by the entryman of his rights. Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629, 5 S. Ct. 566, 28 L. Ed. 1122, supra. Now, it is true that the phrase “public lands,” used without modification or qualification, is usually held to include only lands “such as are subject to sale or other disposal under general laws.” Union Pac. R. Co. v. Harris, 215 U. S. 386, 30 S. Ct. 138, 139, 54 L. Ed. 246; Leavenworth, L. & S. R. Co. v. U. S., 92 U. S. 733, 23 L. Ed. 634; Bardon v. Northern Pac. R. Co., 145 U. S. 535, 12 S. Ct. 856, 36 L. Ed. 806. Consequently, it was held by the Supreme Court that the grant to the predecessor of the Union Pacific Railway Company by the Act of July 3,1866 (14 Stat. 79, c. 159), supplementing earlier acts (12 Stat. 489, 494; 13 Stat. 356) of a right of way, did not include a right of way over land whieh was occupied by a pre-emption entry-man at the time the first act of Congress was passed in 1862, where the entry had been changed to a homestead entry before the act became effective July 3, 1866. That conclusion was based upon an act granting a 200-foot right of way to the Leavenworth, Pawnee & Western Ry. Co., under the Union Pacific Railroad Act passed July 1, 1862 (12 Stat. 489, 494), as amended July 2,1864 (13 Stat. 356, c. 216), whieh amendment, among other things, required condemnation of a 200-foot right of way through land occupied by an owner or claimant. The homestead entryman subsequently perfected his title by patent to the 150-foot strip in controversy and conveyed to the railroad company 50 feet for a right of way. This decisión, in result, at least, is similar to the later decision of the Supreme Court in Great Northern R. Co. v. Steinke, supra, both decisions dealing with a grant which contained a requirement that private rights in the public land covered by the right of way be condemned. Where the entryman had perfected his title by patent, and there had been no condemnation of his rights, the title resided in him.
Under the act of 1875, supra, the Supreme Court has held that a “possessory right” upon unsurveyed government lands anticipating a pre-emption thereof as soon as surveyed was such a right as could be secured by the railroad company for its use as a right of way only by condemnation (Washington & I. R. Co. v. Osborn, 160 U. S. 103, 16 S. Ct. 219, 221, 40 L. Ed. 356, citing Buxton v. Traver, 130 U. S. 235, 9 S. Ct. 509, 32 L. Ed. 920), for a definition' of such possessory rights and stating, “It must therefore be conceded that Osborn did not, by maintaining possession for several years, and putting valuable improvements thereon, preclude the government from dealing with the lands as its own, and from conferring them on another party by a subsequent grant,” adding by way of qualification the phrase quoted therefrom in the main opinion, supra. This court, however, as late as 1926, has expressly held that the right of way grant to the Southern Pacific Railroad Company by the Act of March 3, 1871 (16 Stat. 573), was a grant in prsesenti and took precedence over such possessory rights in unsur.veyed land which' had been subsequently conveyed to one who made the necessary declaratory statement and procured a patent from the government. Barnes v. Southern Pac. Co., consolidated with Mulvihill v. Southern Pacific Co. (C. C. A.) 16 F.(2d) 100. If, then, we follow our decision in Bames v. Southern Pacific Co., supra, it is clear that, the grant of tho right of way under the act of 1871, § 2, supra, vests the grant in the railroad com*677pany regardless of possessory rights upon unsurveyed land without compensation to the possessor. Does it also vest title to surveyed public lands which have been duly entered as a homestead or pre-emption claim, and, if so, is compensation for such outstanding rights of the entryman a qualification of the grant? If we base our conclusion solely upon the meaning which has been usually attached to the term, “public land,” as used in our federal legislation, it would follow that neither title nor right of way was granted by Congress over land which was subject to a valid homestead entry at the time of the passage of the act, as is held by the majority opinion, but the term “public lands” or “public domain” must bo construed in the light of the purpose of congress in the legislation under consideration. As stated in Union Pacific R. Co. v. Harris, supra, “If it is claimed in any given case that they [the words 'public lands’] are used in a different meaning, it should bo apparent either from the context or from the circumstances attending the legislation.” One of the things to he observed in the context of the act of 1871, adopting the act of 1866-, §§ 2 and 3, supra, is that while section 3 expressly reserves from the operation of the grant all lands subject to claims or rights, pre-emption, homestead, etc., section 2, granting the right of way, does so without any reservation whatever. It is a familiar rule that from a change of language a change of intent is implied. Now, if we read into section 2, by virtue of the use of the term, “public domain,” the same reservations that are expressly made in section 3 of the act, we have to that extent ignored that fundamental rule of statutory construction. It has been pointed out in numerous decisions that the terms of the grant of the right of way and the character of the ownership under section 2 granting the right of way, and section 3, granting the aid lands, are quite distinct. St. Joseph & D. C. Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578; Central Pacific R. Co. v. Dyer, 5 Fed. Cas. 364, No. 2,552; Nielsen v. Northern Pac. R. Co. (C. C. A.) 184 F. 601; City of Reno v. Southern Pac. Co. (C. C. A.) 268 F. 751; H. A. & L. D. Holland Co. v. Northern Pac. R. Co. (C. C. A.) 214 F. 920. Now, the general purpose of this legislation is well known and is stated by the Supreme Court in U. S. v. Union Pacific R. Co., 91 U. S. 72, 80, 23 L. Ed. 224. To this decision I refer without comment other than to state that it is apparent therefrom that the right of a homesteader or pre-cmptor or settler to compensation for a right of way across his land was evidently far from the thoughts of Congress. The railroad was to he built in “a vast unpeopled territory lying between the Missouri ■and Sacramento Rivers which was practically worthless without the facilities afforded by a railroad for the transportation of persons and propeily.” Congress made no provision for condemning the rights of settlers or entry-men. It recognized that the benefit derived from the construction of such a railroad would vastly exceed the damage resulting from the taking of a right of way. The loss was imaginary, the gain manifest. Perhaps it would not be going too far to say with Justice Field, speaking for the Supreme Court in St. Joseph & D. C. Railroad Co. v. Baldwin, 103 U. S. 426, 429, 26 L. Ed. 578:
“But the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designed. Nor is there anything in the policy oil the government with respect to the public lands ■which would eall for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would he greatly enhanced thereby. »
“Tlio right of way for the whole distance of the proposed route was a very important part of the aid given. If the company eonld be compelled to purchase its way over any section that might he occupied in advance of its location, very serious obstacles would bo often imposed to tho progress of the road. For any loss of lands by settlement or reservation, other lands are given; but for the loss of the right of way by these means, no compensation is provided, nor could any be given by the substitution of another route.”
It should be noted, however, that Justice Field was dealing with, rights accruing after tho grant of July 23,1866, by section 6 of the act, 14 Stat. 210, granting a right of way to the St. Joseph and Denver City Railroad Co., almost identical in language witlx section 2 of the Act of July 27, 1866, now under consideration, quoted in the main opinion. Nevertheless, his language is apt as applied to rights that had already accrued.
How far did Coxxgxess intend to go in exercising its undoubted power over land owned by the government when it granted tlxe right of way to these transcontinental railroads through the undeveloped and almost wholly unoccupied lands of the government? It may he assumed that in view of the constitutional protection of vested private property *678rights that Congress did not intend to grant a right to violate this constitutional provision or to assume the duty of making just compensation to private owners. Consequently that property rights that had ripened into an absolute right to the land against the government should not be taken or occupied without compensation. But what of those who had [partly complied with the laws according to which, upon full compliance, the individual would be entitled to the land? I am inclined to think that the reasonable and just conclusion is that as to the right of way the government’s title vested in the railroad company, and that a claimant who had made a homestead entry was entitled to compensation for the loss to him of the taking of the right of way. The exact question has not been determined, but the decisions all seem to assume that a homestead entryman would have rights in the land that could not be subordinated to the use of the railroad without compensation. It is true that Justice Field in Bardon v. N. P. R. Co., 145 U. S. 535, 12 S. Ct. 856, 36 L. Ed. 866, arrives at .the conclusion that the better- rule of construction would not divide the title between two grantees of public land, but would reserve from any subsequent grant all lands that are not free from existing claims, still as to railroad rights of way the converse of the rule is obviously desirable. I therefore concur in the conclusion of the majority that the homestead rights of the appellee’s predecessor were superior to the rights of the railroad company to its right of way until cqmpensated therefor. Having reached this conclusion, I find no difficulty in following .the majority in holding that the change to a ■ preemption claim did not constitute an abandonment of the prior'right. On the contrary, it was a consummation thereof.
I therefore agree that the commutation of the homestead right under section 2361, Rev. St., Act of May 26,1862, c. 75, § 8, 12 Stat. 393, does not operate as an abandonment of the homestead entry, but is a consummation thereof, substituting the payment of the minimum price for the continued residence required under the homestead aet. This clearly results from the decision of the Circuit Court for the Eastern District of Wisconsin in U. S. v. Freyberg et al., 32 F. 195, wherein the government was defeated in an action to recover the value of timber cut by a homestead entry-man over and above the amount allowed to such an entryman. It was held that by commuting his entry under section 2301, Rev. St., and paying therefor and receiving a land office 'receipt for the payment his title so far related back to the original entry as to defeat the claim of the government in its action to recover for timber wrongfully 'cut by the homesteader. The Supreme Court in Bailey v. Sanders, 228 U. S. 603, 33 S. Ct. 602, 57 L. Ed. 985, holds that a purchase of the land by a homesteader under section 2301 is a consummation of the homestead entry, and consequently that the rights of the entryman to make a sale or to agree to make a sale thereof before patent was prohibited.
I therefore concur in the affirmance of the judgment.