This suit was brought by the appellant in the court below to obtain a decree requiring the conveyance to him of the title to the S. E. % of section 35, township 15 N., range 4 W., Helena land district, of the state of Montana, conveyed by the government patent issued January 10, 1903, to the appellee, the Northern Pacific Railway Company, as the successor in interest of the Northern Pacific Railroad Company, the beneficiary of the grant made to it by *914Act Cong. July 2, 1864, c. 217, 13 Stat. 365. The case shows that the tract in controversy is within the primary limits of that grant to the Northern Pacific Railroad Company, the map of the definite location of the line of which road was filed July 6, 1882. At that time the land in controversy was unsurveyed. It was not surveyed until the year 1891; the plats of the survey thereof being filed in the local land office on the 10th day of August of that year. September 21, 1892, it was listed to the railroad company. The record further shows that one Martin Lamlein established his residence on this tract of unsurvey-ed government land with his family in 1877, with the bona fide intention of acquiring title thereto under the homestead laws, made improvements thereon of the value of about $1,000, and continued to reside upon the land until his death, during the year 1891. In holding that such settlement did not except the land from the operation of the grant to the railroad company, the Commissioner of the General-Land Office expressly found the facts to be as above stated, and further, in communicating his decision to the local land office, said:
“It is undoubtedly true that the land was occupied by Mr Lamlein when the right of the company attached, and that he was qualified to make entry of the same and settled there with the intention of doing so, as the circumstances indicate. Had he lived until the plat of survey was filed in your office, he or his wife would, without doubt, have been allowed to perfect the claim by them initiated prior to July 6, 1882. Since Mr. Lamlein had no claim of record, and the claim of Trodick had its inception subsequent to the definite location of the road, it must be held that the land inured to the grant N. P. R. R. Co. v. Colburn, 164 U. S. 387, 17 Sup. Ct. 98, 41 L. Ed. 479.”
The case further shows that just before his death Lamlein sold the improvements to the appellant, Trodick, who thereupon took possession of the land with the intention of acquiring the title thereto from the government, but that Trodick did not apply to enter it as a homestead until January 10, 1896, which application on his part, being refused by the local land office, resulted in an appeal to the Commissioner of the General Land Office, and in his adverse decision already referred to. The court below, in dismissing the bill, as it did, referred to Act Cong. May 14, 1880, c. 89, 21 Stat. 140 (U. S. Comp. St. 1901, p. 1392), by which the settler upon public unsurveyed lands, with the intention to claim under the homestead law, was allowed the same time to file his homestead application and to perfect his original entry in the United States land office, as was allowed a pre-emption settler to put his claim on record, and by which it was provided that such homesteader’s right should relate back to the date of his settlement, the same as if he settled under the pre-emption laws. Said the court below:
“This would have given Lamlein, had he lived, 90 days after the filing of the township plat (August 10, 1891), within which time he was obliged to put his application for entry on file, so as' to become of record. He had sold, however, to Trodick in 1889, so that the very best possible position that may be conceded to Trodick is such as Lamlein could have occupied, if he had not sold, and had lived until after the plats of survey were filed. But, even upon such a concession, it became his duty, as it would have been Lamlein’s duty, to file his application for homestead within 90 days after the filing of the township plat in 1891. He failed to do so, though, and by his omission he lost his rights to enter the land under the homestead laws. The ease is there*915fore one where, the occupant having failed to take the necessary steps to file his application until long after the survey and filing, the land passed to the railroad grant, and no claim of ownership can be made at this time. As I read the cases of Nelson v. Northern Pacific Ry. Co., 188 U. S. 109, 23 Sup. Ct. 302, 47 L. Ed. 406 and Oregon & California R. R. Company v. United States, 189 U. S. 103, 23 Sup. Ct. 615, 47 L. Ed. 726, and the cases therein cited, they sustain these views.”
We are unable to agree with the trial court in this respect. The land in question being within the primary limits of the railroad grant, whether or not the title thereto passed to that company depended upon the status of the land at the time of the filing of the map of the definite location of the road, which was July 6, 1882. This is the well-established law upon the subject, as is shown by the cases referred to in Nelson v. Northern Pacific Ry. Co., 188 U. S., from and including page 116 to and including page 132, 23 Sup. Ct. 302, 47 L. Ed. 406. The case of Nelson v. Northern Pacific Ry. Co. is, in our opinion, precisely similar to the case we have here. The land grant act is the same in both cases. In both the land in controversy fell within the primary limits of that grant, was unsurveyed at the time of the filing of the map of definite location of the road, and there Nelson, as Ramlein here, was on that day in possession of the land, with his improvements, having years before entered into its possession with a bona fide intention of acquiring title thereto under the homestead laws. In the Nelson Case the Supreme Court distinctly adjudged that the Northern Pacific Railroad Company acquired no vested interest to any land under its grant of July 2, 1864, prior to the filing of the map of the definite location of its road, and that all lands which were then “occupied by homestead settlers” with the bona fide intention to acquire the same under the homestead laws were expressly excluded therefrom. 188 U. S. 116, 23 Sup. Ct. 304, 47 L. Ed. 406, and cases there cited. On page 133 of 188 U. S., page 311 of 23 Sup. Ct. (47 L. Ed. 406), in its opinion, the court said:
“Nelson’s occupancy occurred after the passage of the act of 1880 [that Is to say, Act May 14, 1880, c. 89. 21 Stat. 140 (U. S. Comp. St. 1901, p. 1892). already referred to]. While that act did not apply to a railroad company which had acquired the legal title by the definite location of its road, it distinctly recognized the right prior to such time to settle upon the public lands, whether surveyed or unsurroyed, with the intention of claiming the same under the homestead laws. In occupying the land here in dispute Nelson did not infringe upon any vested right of the railroad company; for there had not been, at the date of such occupancy in 1881, any definite location of the lino of the railroad, and the land so occupied, with other lauds embraced by the map of general route, constituted only a ‘float’ — the company having, at most, only an inchoate interest in them, a right to acquire thorn, if, at the time of definite location, it was not ‘occupied by homestead settlers’ nor incumbered with ‘other claims or rights.’ The withdrawal merely from ‘sale or entry’ in 1873, based only on a map of the general route of the road, did not identify any specific sections, was not expressly directed or required by the act of 1861, was made only out of abundant caution and in accordance with a practice in the land department, and did not and could not affect any rights given to homestead occupants by Congress in the acts of 1361 and 1880. Besides, the order made in 1873 to withhold from sale or entry all the odd-numbered sections falling within the limits of the general route was without practical value so far as the land in dispute was concerned ; for such land had not been surveyed, and there could not have been any sale or entry of unsurveyed lands. At any rate, the order of withdrawal directing the local land office to withhold *916from ‘sale or entry’ the odd-numbered sections within the limits of the general route could not prevent the occupancy of one of those sections prior to definite location by one who in good faith intended to claim the benefit of the homestead law; and this, because such right of occupancy was distinctly recognized by the act of 1864. But, if this were not so, the act of 1880, in its application to public lands which have not become already vested in some company or person, must be held to have so modified the order of withdrawal based merely on general route that such order would not affect any occupancy or settlement made in good faith, as in the ease of Nelson, after the passage of that act, and prior to definite location. This conclusion cannot be doubted, because the act of 1880 made no exception of public lands covered by orders of withdrawal from sale or entry based merely on general route, and because, also, public lands, which had not become vested in the railroad company by the definite location of its line, were subject to the power of Congress.”
The circumstance that in the Nelson Case Nelson filed upon the land claimed by him as soon as it was surveyed and the plat thereof returned to the land office was a circumstance which does not exist in the present one, for the reason that the land was still unsurveyed at the time of Lamlein’s death, which circumstance, however, was not at all vital, to the decision in the case of Nelson v. Northern Pacific Railway Company, which, as has been seen, was based solely upon the fact that at the time of the filing of the map of definite location of the road the land in question was in the possession of and improved by Nelson, with the bona fide intention on his part to acquire title thereto under the homestead laws.
The Commissioner of the General Land Office, as has been seen, based his ruling that the land here in controversy inured to the railroad company- under its grant, upon the decision in Northern Pacific Railroad Co. v. Colburn, 164 U. S. 387, 17 Sup. Ct. 98, 41 L. Ed. 479, which case is clearly distinguishable from the present one by the fact that in that case the land was surveyed prior to the filing of the map of definite location by the railroad company, and, notwithstanding such survey, the occupant had not manifested the good faith of his occupation by entering or attempting to enter the land under the law. And this clear distinction was distinctly pointed out by the Supreme Court in the case of Nelson v. Northern Pacific Railway Company, at page 132 of 188 U. S., page 311 of 23 Sup. Ct. (47 L. Ed. 406), in its opinion, where it said:
“Nor is there any conflict between tbe decision now rendered and Northern Pacific Railroad v. Colburn, 164 U. S. 383, 17 Sup. Ct. 98, 41 L. Ed. 479; for, as appears from the opinion and record in that case, the land there claimed to have been occupied by a homestead settler at the date of definite location was surveyed public land, and the good faith of the occupation was not manifested by an entry, or an attempt at entry, at any time in the local land office. It was held that the inchoate right of the homesteader must be initiated by a filing in the land office. In the present case, as we have seen, the land occupied was unsurveyed, and at the time of such occupancy, the land being unsurveyed, there could not then have been, any filing or entry in the land office.”
See, also, in the same connection, Northern Pacific Ry. Co. v. McCormick, 94 Fed. 932, 36 C. C. A. 560.
For the reasons stated, we think it clear that the piece of land here in controversy was not embraced by the railroad company’s grant, and that the patent was issued by the government to the company because *917of the erroneous view of the law taken by the Commissioner of the Land Office.
The only other question requiring special notice is whether the appellant is entitled to a conveyance of the title thus passed by the patent. The record shows that, during his last illness in 1891, Lamlcin sold his improvements upon the land to Troclick for a valuable consideration, and that the latter thereupon went into possession of the premises and continued to reside there, but did not apply to enter the land as a homestead until January 10, 1896, which application the land office refused solely because it held, as has been seen, that the land passed to the railroad company by virtue of its grant. And the court below based its ruling against appellant upon the ground that he did not file liis application under the homestead law within 90 days after the filing of the township plat of August 10, 1891. But such delay on the part of the homesteader did not forfeit his right, except as against some one who had himself acquired or initiated a right. As has been seen, the requirement in respect to filing an application within 90 days after the return of the plat is, by the statute already referred to, applicable alike to pre-emption and homestead claims. In the case of Landsdale v. Daniels, 100 U. S. 113, 25 L. Ed. 587, each party claimed under Act March 3, 1853, c. 143, 10 Stat. 214, from which it appeared that unsurveyed as well as surveyed lands not exempted by the same act were subject to the pre-emption laws, with all the exceptions, conditions, and limitations expressed in such, unless otherwise expressed or provided, and, among other things, that where unsurveyed lands were claimed the usual notice of such claim should be filed within three months after the return of the plats of surveys to the land office. The land there in controversy being unsurveyed, the plaintiff made entry and settlement thereof November 1, 1853, and the defendant made entry and settlement on the same quarter section February 22, 1854. The precise date of the survey did not appear; but it did appear that the plats of the survey were returned into the local land office April 26, 1856, prior to which time, to wit, February 20, 1856, the defendant had filed his notice of claim or declaratory statement. Congress had provided that, where unsurveyed lands in the state in which the land in controversy was situated were claimed by pre-emption, the usual notice of such claim should be filed within three months after the return of plats of surveys to the land officer, and proof and payment should be made prior to the day appointed by the President’s proclamation for the commencement of the sale of such lands. Declaratory statements under the original act might be made within three months after the return of the plats of surveys to the local land offices, which was effectual as a step to secure the right, if it was within one year from the passage of the act, which last provision was amended by a subsequent act and extended to settlements made prior to and within two years after the passage of the amendatory act (Act June 2, 1862, c. 90, 12 Stat. 410). The defendant’s declaratory statement having been made prior to the return of the plats of surveys, instead of after, as required by the statute, was held by the court to be unauthorized and void. Still the defendant insisted that he was entitled to the patent to the land because the plaintiff did not file his de*918claratory statement until more than two years after the plats of the surveys of the land were returned into the local land offices instead of within three months, as required by the statute. The Supreme Court thus answered that contention:
“Grant that; but it only shows that both parties settled upon the land while it was unsurveyed, and that each was to some extent in fault in filing his declaratory statement; the difference being that the defendant filed his before he had any right to file it under the pre-emption act, which rendered it a nullity, and that the plaintiff did not file the required notice of claim until the time allowed by the amendatory act had expired. Such a notice, if given before the time allowed by law, is a nullity; but the rule is otherwise where it is filed subsequent to the period prescribed by the amendatory act, as in the latter event it is held to be operative and sufficient unless some other person had previously commenced a settlement and given the required notice of claim. Johnson v. Towsley, 13 Wall. 72, 91, 20 L. Ed. 485. Tested by that rule, it is clear that the equity of the plaintiff is superior to that of the defendant, as the latter never filed any other notice of claim than that which preceded the return of the plats of survey into the local land offices.”
In the case of Whitney v. Taylor, 158 U. S. 85, 93, 96, 15 Sup. Ct. 796, 39 L. Ed. 906, the Supreme Court, having considered, among other things, the objection made that a claim made under the act of 1853 was not filed within three months after the return of the plats of surveys to the land offices, said:
“With reference to the second matter, it is true that section 6 of the act of 1853 (10 Stat. 246, c. 145) provides ‘that, where unsurveyed lands are claimed by pre-emption, tíre usual notice of such claim shall be filed within three months after the return of the plats of surveys to the land offices.’ But it was held in Johnson v. Towsley, supra, that a failure to file within the prescribed time did not vitiate the proceeding, neither could the delay be taken advantage of by one who hud acquired no rights prior to the filing. As said in the opinion in that case (page 90 of 13 Wall. [20 L. Ed. 485]): ‘If no other party has made a settlement or has given notice of such intention, then no one has been injured by the delay beyond three months, and if at any time after the three months, while the party is still in possession, he makes his declaration, and this is done before any one else has initiated a right of pre-emption by settlement or declaration, we can see no purpose in forbidding him to make his declaration or in making it void when made. And we think that Congress intended to provide for the protection of the first settler by giving him three months to make his declaration, and for all other settlers by saying if this is not done within three months any one else who has settled on it within that time, or at any time before the first settler makes his declaration, shall have the better right’ See, also, Landsdale v. Daniels, 100 U. S. 113, 117, 25 L. Ed. 587.”
And the court proceeds to quote from the last-mentioned case the portion of the opinion hereinbefore set out.
The case of Landsdale v. Daniels also answers an objection made to the validity of the sale by Lamlein to Trodick of his improvements upon the land here in controversy. In Landsdale v. Daniels objection was made to the plaintiff’s claim to the land on the ground that, instead of erecting a dwelling house on the land claimed by him, he purchased the dwelling house already there, in answer to which the court said:
“His entry and occupancy of tbe tract are admitted, and the court is of the opinion that it is immaterial whether he built the dwelling house himself, or hired an agent to erect it for him, or whether he purchased it after it was built by another, provided it appears that he was the lawful owner of the *919dwelling house, and made the entry and settlement in good faith, and continued to occupy and cultivate the land, as required by the pre-emption laws. Enough appears to show that the dwelling house was there on the land, and that it was owned, possessed, and occupied by the plaintiff as his home more than three months before the defendant entered and attempted to make his settlement.”
See, also, Bishop of Nesquallay v. Gibbon, 158 U. S. 155, 15 Sup. Ct. 779, 39 L. Ed. 931; Lamb v. Davenport, 18 Wall. 307, 21 L. Ed. 759.
A. suggestion is made on the part of the appellees that the status of the land is to he determined solely by the condition of the records of the land office at the time of the filing of the map of the definite location of the company’s road, and that, if it be permissible to prove by parol the fact of settlement, improvement, and residence upon the land in question by the homestead claimant, the railroad company might be deprived of a large part of its grant. Settlement, improvement, and residence are physical facts easily susceptible of proof, and good faith on the part of the claimant is exacted by the laud department, as well as by the courts of justice. There is no more danger of their being erroneously decided in cases like the present than in any other case that comes before a court or tribunal depending for its decision upon facts. To a somewhat similar argument the Supreme Court, in the case of Whitney v. Taylor, 158 U. S. 95, 96, 15 Sup. Ct. 800, 801, 39 L. Ed. 906, said:
“Counsel urges that, inasmuch as the latter fa declaratory statement] need not be verified, one might file under assumed names declaratory statements on every tract within the limits of a railroad grant prior to the time of the filing of the map of definite location, and thus prevent the railroad company from receiving any lands. This danger is more imaginary than real. In the first place, for each application fees must be paid, and it is not to be supposed that any one would throw away money for the mere sake of preventing a railroad grant from having any operation. In the second place, such declaratory statements under assumed names would be purely fictitious and could be set aside as absolutely void. Indeed, good faith is presumed to underlie all such applications. The acceptance -of the declaratory statement by the local land officers is prima l’acie evidence that they have approved it as a bona fide application, and if, in any particular Instance, it is shown to be purely fictitious, doubtless there is an adequate remedy by proper proceedings in the land office. There is in the case before us no pretense that the transaction, was a fictitious one, or carried on otherwise than in perfect good faith on the part of the applicant. At any rate, Congress has seen fit not to require an affidavit to a declaratory statement, and has provided for the filing of such unsworn statement as the proper means for an assertion on record of a claim under the preemption law, and that is all that is necessary to except the land from the scope of the grant.”
When the grant of July 2, 1864, was made to the Northern Pacific Railroad Company, substantially the entire country between Lake Superior and .Puget Sound was, as said by the Supreme Court in Nelson v. Northern Pacific Railway, supra,
“untraveled as well as uninhabited, except by Indians, very few of whom, at that time, were friendly to the United States. The principal object of the grant, as will appear from its language, was to secure the safe and speedy transportation of the mails, troops, munitions of war. and public stores, by means of a railroad and telegraph; and to that end, and in order to bring the public lands into market, it was deemed important to encourage the settlement of the country along the proposed route. The public lands in that vast region were unsurveyed, and it was not known when they would be surveyed. *920Congress, of course, knew that, if immigrants accepted the invitation of the government to establish homes upon the unsurveyed public lands, they would do so in the belief that the lands would be surveyed, that their occupancy would be respected, and that they would be given an opportunity to perfect their titles in accordance with, the homestead laws.”
In that case, as has been seen, the Supreme Court distinctly held that the settlement, improvements, and possession by Nelson of the land there in controversy, with a bona fide intention to acquire the government title thereto under the homestead laws, at the time the map of the definite location of the line of the Northern Pacific Railroad Company was filed, excepted the land so claimed from the grant; such land then being unsurveyed, for which reason there could not then have possibly been any record in the land office of the homesteader’s claim.
The judgment is reversed, and the case remanded to the court below, with directions to give judgment for the complainant. .