Dissenting. — In this action of ejectment wherein the plaintiff claims to be the owner in fee simple and entitled to the possession of the land *333involved and tlie defendant claims to he a homesteader in possession thereof in pursuance of an entry of the same by him in the United States land office, this court heard the case and in an opinion by Mr. Justice Bean, reported ante, p. 299 (214 Pac. 335), áffirmed the judgment of the Circuit Court dismissing the action after sustaining a demurrer to the plaintiff’s reply. The principal reason given for the opinion was that the issue involved the primary disposition of public land with which the state and its courts were not privileged to interfere under the propositions contained in the act of Congress admitting Oregon into the Union and accepted by the legislative assembly in the act approved Jnne 3, 1859. The conclusion of Mr. Justice Bean’s opinion was that the action should be dismissed without prejudice to the plaintiff’s rights, in effect remitting him to whatever remedy he might have before the United States land office. Dissatisfied with this conclusion, the plaintiff moved for and obtained a rehearing in banc.
Taking the plaintiff at his word, we will examine the question as if the primary disposition of the land were not involved. The tract in question is lot 9 of section 33, township 28 south, range 6 west of Willamette Meridian, in Douglas County, the same being an odd-numbered section. By the act of Congress on July 25, 1866, there was granted to the predecessors in interest of the Oregon and California Bailroad Company for the purpose of aiding in construction of a railroad and telegraph line between Portland, Oregon, and Marysville, California,
“every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty *334alternate sections per mile (ten on each side) of said railroad line.” 14 U. S. Stats, at L. 239.
The opening clause of that section of the act is:
“That there be, and hereby is, granted to the said companies, their successors and assigns,” etc.
Provision was made for filing maps of the survey of the road, for withdrawal from sale of the lands included in the grant, for the protection of preemptioners and homesteaders and declaring that other public lands within the limits of the grant should not be sold by the government for less than double the minimum price of public land when sold. No restriction was made as to the price to be charged nor as to the quantity to be sold by the companies if they sold the granted lands or any part thereof. The concluding section 12 of the act is as follows:
“And be it further enacted, That Congress may at any time, having due regard for the rights of said California and Oregon Railroad companies, add to, alter, amend, or repeal this act.”
By the act of June 25,1868, the act was amended so as to extend the time for the completion of the first twenty miles of the railroad and telegraph line to a date eighteen months from the passage of the act and requiring that twenty miles be completed in each two years thereafter and that the whole road should be finished on or before July 1, 1880.
The next legislation affecting the matter was the act of April 10, 1869, whereby any railroad company designated by the legislature of the State of Oregon might file its assent to the act of 1866 one year from the date of the passage of the act of April 10, 1869. The latter enactment concludes thus:
“And provided further, That the lands granted by the act aforesaid shall be sold to actual settlers *335only, in quantities not greater than one-quarter section to one purchaser, and for a price not exceeding two dollars and fifty cents per acre.” 16 U. S. Stats, at L. 47.
The complaint in this action is in the ordinary form employed in our statutory action of ejectment wherein the plaintiff alleges himself to he owner in fee simple and entitled to the immediate possession of the land and that the defendant is in possession thereof wrongly withholding the same to the plaintiff’s damage in a sum mentioned. The answer admits the possession of the property to be in the defendant but otherwise traverses the complaint. Further pleading, the defendant states that about May 28, 1902, the United States executed and delivered to the Oregon and California Railroad Company a patent to the land in dispute; that the property remained that of the company subject to the terms and conditions of the laws of Congress herein-before recited, until by the act of Congress approved June 9, 1916, 39 U. S. Stats, at L. 218, known as the Chamberlain-Ferris Act, title to the land was reinvested in the United States; that it was afterwards classified as agricultural land and restored to entry under the general provisions of the homestead laws of the United States as modified by that act; that the defendant, as a soldier in the service of the United States in the war with Germany, was given a preferred right of homestead entry by House Joint Resolution No. 20, approved February 14, 1920, in pursuance of all of which on April 13, 1920, he filed his homestead application for the land in the United States land office at Rosebnrg which said application was duly approved and allowed; and that thereafter on September 19, 1920, under said application and *336allowance lie took possession of the tract and is now occupying the same.
The reply admits the issuance of the patent, the preference right of the defendant to homestead entry, his application to and allowance thereof by the land office and his entry into possession of the land. The affirmative reply goes into detail averring the passage of the laws of 1866 and 1869 and the doings of the companies in constructing the road, examination thereof and issuance of the patent under date of May 28, 1902. In substance, the reply further avers that in 1878 Robert Phipps, immediate predecessor in interest of the plaintiff, was in the actual, exclusive, notorious, adverse possession of the tract involved, claiming title thereto under a chain of conveyances from his predecessors in interest describing and conveying the tract and extending from the year 1863 down to and including a conveyance of said lot made to Robert Phipps by Samuel Ilarkness and wife, dated October 23, 1878, under which Robert went into possession of the lot, continued therein, having same under fence, farming and claiming to own the same against all the world, continuously to March 9, 1912, when by deed of that date he placed the plaintiff in possession thereof in which possession the, plaintiff remained until September 19, 1920, when the defendant entered upon the same against the plaintiff’s will. The defendant demurred to the reply “upon the ground that the matter contained therein is not a sufficient reply to the facts stated in the answer.” The demurrer was •sustained and the plaintiff declining to plead further, judgment was entered dismissing the action at the cost of the plaintiff, whereupon he appealed.
*337It is in the history of the case that, authorized and directed thereto by a congressional resolution of April 30, 1908, the Attorney General of the United States began a suit in the District Court of the United States for the District of Oregon against the Oregon and California Railroad Company and others to forfeit the lands of the grant, claiming that the terms of the granting acts constitute conditions subsequent which having been violated by the company in selling the land to persons not actual settlers, in quantities greater than one-quarter section to each person and for a price of more than $2.50 per acre, operated to defeat the title of the railroad company and reinvest it in the government. On appeal to the Supreme Court of the United States from a judgment in favor of the government based upon that theory, that court reversed the decision of the District Court, holding that the provisos are not conditions subsequent but are enforceable covenants. The decree of the Supreme Court provided in substance, however, that the company should be enjoined from selling any more land or the timber thereon or otherwise disposing of same until Congress should take appropriate action looking to the enforcement of the covenants: Oregon & C. R. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908).
While the suit was pending, Congress passed the act of August 20, 1912, generally known as the Innocent Purchasers’ Act, which declared that all the suits begun in pursuance of the joint resolution of April 30, 1908, were ratified and confirmed and declared to be of the same force and effect as declarations of forfeiture of the United States Congress. Section 3 of the act reads thus:
*338“That no suits in equity, actions at law, or other judicial proceedings shall be instituted pursuant to said joint resolution approved April 30, 1908, that shall involve any lands sold by the Oregon and California Railroad Company prior to April 30, 1908, unless the same shall be instituted within one year from the date of the approval of this Act: Provided, That this section shall not be construed to apply to any suits in equity heretofore instituted, nor to any parties thereto, nor to any of the lands involved therein, nor to the institution of any further suits in equity, actions at law, or other judicial proceedings relating to any of the lands that are involved in said pending suits.” 37 U. S. Stats, at L. 320.
In Section 4 of the act, authority was given to the Attorney General to compromise suits for the forfeiture of land on the condition that a decree shall be entered adjudging that the lands involved therein have been and are forfeited to the United States, whereupon a purchaser, defendant or defendants, or their successors or assigns, should be entitled within six months after entry of the decree to apply, to purchase all the lands adjudg'ed by said decree to be forfeited at $2.50 per acre, which having been paid, patents should be issued direct to the applicants; but even this privilege was withheld as to the lands not patented to the railroad company and as to all the lands involved in the suit begun as aforesaid, in the United States District Court of Oregon and then pending on appeal, and it is said that the provision of Section 4 should not be construed to apply to any of this land nor to create any rights or privileges whatever in favor of any of the defendants therein. The act concluded with Section 6 reading thus:
“That nothing in this Act contained, nor action taken pursuant to the provisions of this Act, shall be construed as a condonation of any of the breaches *339of any of the conditions or provisions annexed to any of the grants designated in said joint resolution approved April 30, 1908, nor as a waiver of any of said conditions or provisions, nor as a waiver of any right of forfeiture in favor of the United States on account of any breach or breaches of any of said conditions, nor as a waiver of any cause of action or remedy of the United States on account of any breach or breaches of any of said conditions or provisions, nor as a waiver of any other rights or remedies existing in favor of the United States.” 37 U. S. Stats, at L. 321.
The United States Supreme Court decided the suit already mentioned on June 21, 1915. On June 9, 1916, Congress passed an act of that date known as the Chamberlain-Ferris Act, the preamble of which recites: 1. Condition of act of April 19, 1869, requiring sale of land at $2.50 per acre; 2. Violation thereof by Oregon and California Railroad Company by selling greater quantity than one-quarter section to each purchaser at price greater than $2.50 per acre and by refusing to sell at all; 3. The decree of the United States Supreme Court forbidding further sale until Congress should act; 4. Reservation by Congress in the original act of 1866 of right to alter, amend or repeal the act; 5. Receipt by railroad company of money in excess of $2.50 per acre; and 6. Right of the company to receive $2.50 per acre. The enactment proceeds as follows:
“That the title to so much of the lands granted by the acts [reciting legislation already mentioned] for which patents have been issued by the United States or for which the grantee is entitled to receive patents under said grants * # as had not been sold by the Oregon and California Railroad Company prior to July 1, 1913, be and the same is hereby revested in the United States * # .”
*340Section 2 classifies lands thus forfeited into, 1. Power sites; 2. Timber lands; 3. Agricultural lands. By Section 7 the Attorney General was directed to institute and prosecute any and all suits and actions at law against the railroad company and any other proper party which he may deem appropriate to determine the amount of money received by the company from or on account of said granted lands, patented or unpatented, sold or unsold, which should be charged against the “full value” secured to the grantees.
The plain effect of the joint resolution of Congress directing the Attorney General to institute proceedings, coupled with the decision of the United States Supreme Court in Oregon & California R. R. Co. v. United States, 238 U. S. 393 (59 L. Ed. 1360, 35 Sup. Ct. Rep. 908), and the Innocent Purchasers Act (so called) of August 20, 1912, and the Chamberlain-Ferris Act of June 9, 1916, is that the government was committed to the policy of avenging the violation of the granting acts, whether they be in the shape of conditions subsequent or merely covenants held enforceable according to the decision of the United States Supreme Court in the effort to enr force the terms of the act by judicial proceeding as upon condition subsequent. In passing the Chamberlain-Perris Act the government toot advantage of the decree suspending sales of the lands until Congress should adopt appropriate legislation looting to the enforcement of the covenants. That enforcement was not necessarily to be by judicial action. In the beginning Congress had reserved, by Section 12 of the original act of July 25, 1866, the power to alter, amend or repeal the act at any time, having due regard for the rights of the company. Equipped *341with this reserve power, Congress assuredly had the right to take away entirely all title to the land. This reservation was part of the grant. As stated, it was a legislative remedy cumulative upon whatever judicial remedy might exist for the enforcement, either of a condition subsequent or a covenant. Congress had exercised that power of changing the act in two separate instances, namely, in the act of June 25, .1868, extending the time of the completion of the road and the act of April 10, 1869, prescribing for the first time the maximum price of $2.50 per acre for which the company could sell the land.
The reply amounts only to a claim of title even against the government, by adverse possession for a period of ten years. The plaintiff claims benefit under the Innocent Purchasers Act. It will be remembered that the inhibition of the Innocent Purchasers Act against suits to be instituted pursuant to the joint resolution approved April 30, 1908, applied only to lands “sold” by the Oregon and California Railroad Company prior to April 30, 1908; and further, that the section should not apply to any suits in equity theretofore instituted, nor to any of the parties thereto, nor to any of the lands involved therein, nor to the institution of any further suits in equity, actions at law, or other judicial proceedings relating to any of the lands involved in any such pending suits. The reply does not disclose that the land here in question was not involved in such a suit. Unless it was not included in pending suits it would not come within the restriction against suits for forfeiture unless commenced within a year. The intent of the act as disclosed by its terms was not to interfere in any way with pending litigation. Neither can it be said that the reply indicates at all *342that the Oregon and California Bailroad Company had “sold” the land. All that is claimed by that pleading is that in 1863, the predecessors in title of the plaintiff began an adverse possession which had been maintained continuously since then to the entry of the defendant upon the tract. It is true that at common law, according to Blackstone, title to land is held either by descent or purchase, the former being an estate cast upon the tenant by operation of law resulting from the death of an ancestor, the latter dependent upon some act of the tenant. This generalization has been criticised by other common-law writers such as Coke, Hargrave and Chitty: 2 Bl. Com., Lewis’ Ed., 202, note.
So far as the sale or purchase is involved in the acts of Congress under consideration, the meaning evidently is that there should be a contract between the railroad company and a purchaser involving a conveyance of the land by the company for a consideration, either paid or promised by the purchaser. Indications to that effect abound throughout the legislation. For instance, in Section 7 of the Chamberlain-Ferris Act, the Attorney General is required to institute suits against any party, including the railroad company, to determine the amount of money received by the company which should be applied and charged against the full value secured to the company. It is not likely that such a law would have been passed if the intention had been that “sale” should include the passing of title by adverse possession. In fact, the legislation recognizes the right of the company to receive $2.50 per acre and requiring it to account for all of the money received; but money is not involved in the acquisition of title by prescription.
*343The Innocent Purchasers Act of August 20, 1912, in Section 6 already quoted, declares with great particularity that the enactment shall not be construed to be a waiver of any of the rights of the United States. For two reasons, therefore, the plaintiff cannot claim any benefit under that act: First, because it does not appear in the reply that the land was not included in the suit against the railroad to declare the forfeiture as upon condition subsequent; and second, it was not land that had been “sold” by the Oregon and California Railroad Company, there being no act whatever of the railroad company stated which would indicate that it had sold the land or made any other disposition of it. It is true that the original grant of 1866 was in praesenti and whatever title passed inured to the grantee at least when the line of the railroad was located and approved by the government officials. But what was that title? It was one subject to be defeated at the congressional will by altering, amending or repealing the original granting act as reserved in the terms thereof. Whoever took title through the railroad company, whether by direct bargain and sale or by adverse possession, took it subject to that condition. It was part and parcel of the essence of the title and Congress had the legislative right to enforce it. No possession of any individual, however adverse, to the railroad company could have the effect of destroying this right reserved by the general government in its legislation. To hold otherwise would be to say that mere occupancy of public land without entering it at the local land office, which is the case made in the reply on behalf of the plaintiff, would defeat a subsequent grant to the railroad company; yet it is held in Northern Pacific R. R. Co. v. Colburn, 164 U. S. 383 (41 L. Ed. *344479, 17 Sup. Ct. Rep. 98), cited by tbe plaintiff, that such an occupancy without an entry at the local land office does not exclude the land from the appropriation of a subsequent railway grant. In St. Paul R. R. Co. v. Northern Pacific R. R. Co., 139 U. S. 1 (35 L. Ed. 77, 11 Sup. Ct. Rep. 389), the grant to the latter company was in praesenti in the nature of a float until the route should be determined and after that, attaching to specific sections capable of identification. The court held thus, as stated in the syllabus:
“After the withdrawal from sale or pre-emption of the granted odd sections, no interest in the granted lands, adverse to the rights of the company, could be acquired except by special legislative declaration nor indeed in the absence of its announcement, after the general route was fixed.”
So far as adverse possession of government land is concerned, the rule as stated in Sharpe v. Catron, 67 Or. 368 (136 Pac. 20), derived from Boe v. Arnold, 54 Or. 52 (102 Pac. 290, 20 Ann. Cas. 533), is that:
“One claiming title to land by adverse possession for a period of ten years as against all persons, but recognizing the superior title of the United States government, and seeking in good faith to acquire that title, may assert such adverse possession as against any person claiming to be the owner under a prior grant.”
That precept applies only to private persons as between themselves but not to the United States. In other words, for illustration, suppose there are two homesteaders, A and B, each recognizing and seeking to acquire the title of the government to the same tract. Although A is prior in making claim to the land, yet if B succeeds in maintaining his possession for the statutory period of ten years, he will be allowed to prevail over A, but not against the *345government in the enforcement of its reserved power over the land. Here the plaintiff makes no pretension of seeking in good faith to acquire the title of the government. He has not made application to any land office or other government authority so far as his pleading discloses. Reduced to its lowest terms, he claims only to have occupied as against the railroad company. Granting that he has done so, he does not get a better title than the company had. His estate cannot arise above its source. His possession cannot defeat or abrogate the rights of the government. The law has prevented him from acquiring the government title. He cannot acquire it in any other way. If the railroad company had a defeasible title, he acquired nothing greater or better by his adverse occupancy. It is true that it is said in some cases that title by adverse occupancy includes the whole title; but while this is true as between individuals, it cannot be true as against the government which holds the allodial tenure. In Deseret Land Co. v. Tarpey, 142 U. S. 241 (35 L. Ed. 999, 12. Sup. Ct. Rep. 158), the plaintiff claimed by occupancy of the land within a railroad grant as against the defendant who was the lessee of the railroad company. The court held:
“The lands could not be disposed of by the company without the consent of Congress, except as each twenty-mile section of the road was completed and accepted by the President, so as to cut off the right of the United States to compel the application of the lands to the purposes for which they were granted or to prevent their forfeiture in case of the company’s failure to perform the conditions of the grant. ’ ’
Great reliance is placed by the plaintiff on the case of Northern Pacific R. R. Co. v. Ely, 197 U. S. 1 (49 *346L. Ed. 639, 25 Sup. Ct. Rep. 302). In that case, the United States had granted to the company a right of way across the public lands four hundred feet in width. The defendants had occupied portions of that right of way for more than ten years, succeeding which Congress passed the act of April 28, 1904, validating all conveyances made by the company or its predecessor, involving the right of way, with the proviso that no such conveyance should have the effect to diminish the right of way to less than two hundred feet on each side of the center of the main track. The company had complied with all the requirements of the granting act. The court held that but for the curative act of April 28, 1904, no title would accrue to any occupant by virtue of his adverse possession. True enough it was held likewise that inasmuch as the laws of the State of Washington as embodied in the decision of the court were to the effect that adverse possession transferred title as effectually as conveyances of the owner, the adverse possession of the defendants in the suit was tantamount to a conveyance and that as the curative act was remedial in its nature, its effect would be extended to support the title of occupancy. The case differs in material particulars from the one in hand. The issue there joined was between the railroad company and the occupant direct. Here, in effect, it is between the plaintiff and the general government under whom the defendant claims. There the company had complied with all the laws embodied in the granting acts. Here, violation of the grant is written large throughout the record and those violations have been adjudicated as breaches of a covenant. That they had been broken is declared by the legislation contained in the Chamberlain-Ferris Act and the Innocent Purchasers *347Act. There the act of April 28, 1904, waived the claim of the government and expressly validated conveyances. Here, in the Innocent Purchasers Act especially, the government has expressly declared that there should he no waiver of any claim of the United States.
Again, the adverse possession relied upon here was adverse only against the railroad company and not against the government. No act of the plaintiff can defeat the rights of the government except in pursuance of its laws authorizing the acquisition of the public domain. The governing principle is that so long as the government retains its hold upon the title to the land, no adverse possession can affect or lessen that hold. It is hornbook law that no one can acquire title against the United States by adverse possession. It is true that a patent was issued to the railroad company for the lands in dispute. At least it is so averred in the reply and this must he taken as true as against the demurrer; hut the issuance of patent, an act of a ministerial officer, cannot confer a greater title than that authorized by the original granting act. All persons dealing with the land are charged with notice of the provisions of the law constituting the grant. The resulting doctrine is that the government is entitled to enforce the conditions of the grant by the means reserved in that grant as against all those who claim under mere adverse possession. As stated in Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267, 271 (47 L. Ed. 1044, 23 Sup. Ct. Rep. 671):
“In effect the grant was of a limited fee, made on an implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted. This being the nature of the title to the land granted for the special *348purpose named, it is evident that to give such efficacy to a statute of limitations of a State as would operate to confer a permanent right of possession to any portion thereof upon an individual for his private use, would be to allow that to be done by indirection which could not be done directly.”
See Kindred v. Union Pacific R. R. Co., 225 U. S. 582 (56 L. Ed. 1216, 32 Sup. Ct. Rep. 780); Union Pacific R. R. Co. v. Snow, 231 U. S. 204 (58 L. Ed. 184, 34 Sup. Ct. Rep. 104).
To sanction the reply would be to say that at the mere behest of a private party the general government can be deprived of its right to enforce by legislative enactment the power reserved in the granting act of 1866. The proposition is not to be countenanced. The government cannot be balked in the assertion of its rights reserved in the original granting act.
Compelled by the rule in ejectment to recover, if at all, on the strength of its own title, the plaintiff’s reply fails to connect him with the paramount estate in the land, that of the United States. He is not within the rule in Sharpe v. Catron, supra, in that he does not recognize the superior title of the United States and does not show that he is seeking in good faith to acquire that title. The defendant conforms to that precept in both particulars according to the answer. Although his complaint avers title in fee simple, in his reply which the general demurrer has attacked, the plaintiff -utterly fails to corroborate his initial pleading. Treating the issue as he presents it, it should be adjudged against him and the decision of the Circuit Court affirmed.
Bean and Rand, JJ., concur.