The plaintiffs have filed a petition for rehearing, in which they seem'to overlook the real question upon which our previous decision rested. The question contested arises upon the refusal of the court below to instruct the jury, at the plaintiff’s request, that said admissions of the parties, and said testimony as a matter of law, established the fact that the said land was not embraced in the grant to the Oregon Central R. R Co. by said act of Congress, and that the O. & C. It. R Co. acquired no interest in said lands, and that said deed from the O. & C. R R Co. to the plaintiffs passed no interest in said land to plaintiffs. The “admissions” referred to in this instruction were made upon the trial, and were to the effect that the O. & C. R R Co. succeeded to all the rights of the Oregon Central R R Co. to the land grant provided for in the Act of Congress of July, 1866, and that neither the said last-named company nor the said E. O. Corson ever had any title or interest in said property other than such as it, or he, acquired under said act of Congress and the amendments thereto.
It was further admitted that prior to the execution of said deed by defendants to plaintiffs, said E. O. Corson had purchased from said O. & C. R. E. Co. whatever rights it had to said land, and -had received its certificate therefor. That at the .time of the execution of said deed, said Corson assigned said certificate to the plaintiffs, and subsequently the said railroad *401company, in pursuance of said certificate, executed and delivered to the plaintiffs a deed of said land. It thus appears that the plaintiffs have an indefeasible title to said lands, unless the same is defeated by the papers referred to.
The court was required to declare that this testimony as a matter of law defeated that title. In refusing to do this we have held that the court did not err, and we adhere to that opinion. The papers offered had the effect claimed for them, or they did not. There is no room for any middle ground under the claim of secondary evidence. It must be remembered that the plaintiffs were bound to prove title out of the defendants at the time the defendants signed the deed, or fail in their suit. To do this it devolved upon them to prove that the land described was excepted out of the railroad grant in some one of the ways specified in the act. They attempted to do this by introducing this documentary evidence. To take it out of the grant, then, the land must have been pre-empted. How? By a compliance with, the law granting a pre-emption by a qualified settler.
In no other way can such right be acquired or have any existence; and to prove such acquisition something more is required than the naked entry upon the register. If such entry were made by the officer in that book without the filing of the antecedent papers showing compliance with the law, it would be a mere nullity, and would confer no right on any one, nor would such an entry prejudice the United States or their grantees. In sucli case the land' would not be pre-empted within the meaning of the statute, nor would any private right whatever have been acquired in the same. I fully concede that if it were shown that Boss filed the paper required by statute, he' would have acquired an inchoate right to the land, and whether he acted in good faith or not the case would have been within the principle of the cases cited; but in the absence of any showing whatever on that subject, the court cannot declare, as a matter of law, that the entry in the book has all the force and effect of an actual settlement on the land, and the filing of the preliminary papers.
It is not perceived how section 745 of the Code aids the *402plaintiffs. The difficulty is, that neither in this copy of the register, nor from any other document offered in evidence, is there a particle of evidence tending to prove several of the essential requisites of a valid pre-emption. Without such proof the plaintiffs failed to prove title out of the defendants when they made the deed in question. This failure could not be supplied by the instruction asked, which would have been its legal effect had it been given.
The rehearing must therefore be denied.