Opinion by
Holt, C.:The title to this tract of land has been litigated before. Martha E. Young brought her action to quiet her title to a part thereof, in the Chase district court; at the first day of the May term, 1880, a judgment was rendered in her favor on default. This judgment was afterward reversed in this court, (Emslie v. Young, 24 Kas. 732), for the reason that the petition did not state a cause of action. The allegations of the petition were substantially the same as the facts agreed upon in this action, so far as they relate to the title of Martha E. Young to the land in dispute. Usually the rule laid down in that case would be the one we should be guided by in our investigation and determination of the issues in this action. Chief Justice Horton, delivering the opinion in that case, said:
“ It is urged, however, that the claim of Randall, although abandoned before the location of the road, yet, because it was then uncanceled, had sufficient force and validity to take the land from the railroad company. In brief,- that a forfeited and abandoned homestead claim, simply uncanceled upon the books of the land office, has the like effect to exclude land from the railroad grant as a subsisting valid homestead claim, capable of being perfected and of ripening into an absolute title. Such an interpretation of the act of 1863 is not sustained by the letter or the spirit of the statute. The act does not speak of entries or filings excepting lands from the operation of the grant, but of rights — the rights of preemption and homestead. The spirit of the act was to protect preemption and homestead settlers, having valid and subsisting rights at the time the grant became certain. It was not the intention of congress, by the exceptions in the act, to exclude lands from the grant upon fraudulent or forfeited entries or filings. In our opinion, the land having been abandoned as a homestead claim when the route of the road was fixed, no right of homestead settlement attached to the land, within the meaning of *506the act, at the date of the location of the road; and that at such location the grant attached to the land, notwithstanding the non-cancellation of the homestead filing of Randall. This conclusion leads us to decide that the land in controversy belonged to the railroad company on May 20, 1874, when the deed was executed to N. S. Goss, and that the defendant, John Emslie, is the owner of the land, subject to the mortgage lien of his grantor.”
The defendants contend, however, that the supreme court of the United States, in the case of K. P. Rly. Co. v. Dunmeyer, 113 U. S. 629, have laid down a rule of law different from that enunciated by this court in Emslie v. Young. The language used in K. P. Rly. Co. v. Dunmeyer might be construed to sustain the contention of defendants, but the facts in that case are unlike the facts in this. It appears from the record in that case, that one Miller made a homestead entry on a quarter-section of land in Saline county, on the 25th day of July, 1866; on the 11th of the same month the Union Pacific Railway • Company, Kansas Division, which is the branch now called the Kansas Pacific Railway Company, filed its map showing the general line of its road, and the land was withdrawn from preemption, private entry and sale, on the 26th of July, the next day after the plaintiff had made his homestead entry. The company claimed title to the land under two acts of congress, granting the land to the Union Pacific Railway Company and branches, namely, the act of 1862, and amendatory act of July 2, 1864, and the act of July 3, 1866. The land was situate within the limits of the land so granted. In 1871 Miller’s homestead entry was canceled. The court held that the land in dispute was not a part of the grant to the railroad company, for the reason that Miller’s homestead right had attached thereto before it was withdrawn from preemption, private entry, and sale.
There is this distinction between the facts in that case and this: Miller’s homestead entry at the time of the withdrawal of the lands was a valid and existing right which might have ripened into a title; in this case, the homestead entry of Randall had been abandoned nearly a year before the line of the *507road had been located, and a year before the land was withdrawn from sale. Now we believe that if the entry of Randall had been canceled before the 30th of June, when the railroad company acquired its interest in the land, that this quarter-section would have reverted to the government, and thereby been within the purview of the grant to the company. The rule would not have been different, we think, when the land had been actually abandoned, though the entry of Randall had not been declared canceled at the local land office. Erom the agreed statement of facts in this case, Randall had no existing rights under his own entry on the 30th day of June, 1869, and therefore this land was embraced in the grant of the government to the railroad company.
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring.