(concurring in part, and dissenting in part). I concur in the foregoing opinion that appellant is now estopped from claiming or having a right of way over the lands in controversy through the defendant city of Greeley in excess of 100 feet in width, except through blocks 42 and 59 in said city where its right of way and depot grounds are 200 feet in width as decreed by the Circuit Court; but I am of opinion that appellant’s alleged right of way dates only from the act of Congress of March 3, 1869.
The lands over which the appellant claims its right of way are in section 32, township 6, and sections 5, 8, and 17, township 5 north, in range 65 west, in Weld county, Colo., and about midway between Denver, Colo., and Cheyenne, Wyo. The subdivisions thereof over which the appellant claims its right of way, except those in section 17, had been sold by the United States, or were subject to uncanceled pre-emption, homestead, or other claims of record in the local land office at Denver and recognized by that office as valid, at the time of the passage of the act of March 3, 1869, and were not then public lands of the United States. Kansas Pacific Co. v. Dunmeyer, 113 U. S. 629, 637, 5 Sup. Ct. 566, 28 L. Ed. 1122.
Appellant claims its right of way over these lands under the act of Congress of July 1, 1862 (12 Stat. 489), as the successor in title and interest of the Leavenworth, Pawnee & Western Railroad Company, one of the grantees named in said act, whose name was subsequently changed to the Union Pacific Railroad Company, Eastern Division, and later to the Kansas Pacific Railway Company (which for convenience will hereinafter be called the Kansas Company) and the acts of July 2, 1864 (13 Stat. 356), July 3, 1866 (14 Stat. 79); and of the Kansas Company and the Denver Pacific Railway & Telegraph Company under the act of March 3, 1869 (15 Stat. 324).
The acts of 1862, 1864, and 1866 were reviewed at some length by this court in the recent case of Stuart v. Union Pacific Railroad Company (this appellant.) 178 Fed. 753, 103 C. C. A. 89, and the applicable parts thereof are set forth in the opinion in that case, and *18need not be here repeated in full. The land involved in that suit is in the vicinity of, but easterly from, the city of Denver, and the road crossing it is that part of the line of the Kansas Company between the western boundary of Kansas and the city of Denver. A consideration of the act of March 3, 1869, was not necessary to a determination of that case, and it is there but little considered. That act is material to the determination of this controversy, and is as follows:
“Section 1. That the Union Pacific Railway Company, Eastern Division, be, and it hereby is, authorized to contract with the Denver Pacific Railway & Telegraph Company, a corporation existing under the laws of the territory of Colorado, for the construction, operation, and maintenance of that part of its line of railroad and telegraph between Denver City and its point of connection with the Union Pacific Railroad, which point shall he at Cheyenne, and to adopt the roadbed already graded by said Denver Pacific Railway & Telegraph Company as said line, and to grant to said Denver Pacific Railway & Telegraph Company the perpetual use of its right of way and depot grounds, and to transfer to it all the rights and privileges, subject to all the obligations pertaining to said part of its line.
“Sec. 2. That the said Union Pacific Railway Company, Eastern Division, shall extend its railroad and telegraph to a connection at the city of Denver, so as to form with that part of its line herein authoiúzéd to be constructed, operated and maintained by the Denver Pacific Railway & Telegraph Company, a continuous line of railroad and telegraph from Kansas' City, by way of Denver to Cheyenne. And all the provisions of law for the operation of the Union Pacific Railroad, its branches and connections, as a continuous line, without discrimination, shall apply the same as if the road from Denver to CheyeDne bad been constructed by the said Union Pacific-Railway Company, Eastern Division; but nothing herein shall authoiize the said Eastern Division company to operate the road or fix the rates of tariff for the Denver Pacific Railway & Telegraph Company...
“Sec. 3. "That said companies are hereby authorized to mortgage’ their respective portions of said road, as herein defined, for an amount not exceeding $32,000 per mile, to enable them respectively to borrow money to 'construct the same; and that each of said companies shall receive patent's to the alternate sections of land along their respective lines of road, as herein defined, in like manner and within the same limits as is provided by law in the ease of lands granted to the Union Pacific Railway Company, Eastern Division: Provided, that neither of the companies hereinbefore mentioned shall be entitled to subsidy in United States bonds under the provisions of this act.”
After the passage of the act of 1862, the Kansas Company in July of that year filed with the Secretary of the Interior a map showing the general route of its road,, from the mouth of the Kansas river to Ft. Riley, Kan., thence northwesterly along the Republican river to a point on the 100th meridian of longitude in the then territory of Nebraska between the valleys of the Republican and Platte rivers, as required by that act. After the passage of the act of 1864, and in January, 1865, -it filed another map designating substantially the same route shown in its map of 1862. February 21, 1866, after the expiration of the time for filing any map. under the act of 1864, the company prepared another map, designating a route from Ft. Riley westwardly along the Smokey Hill river to the western boundary of Kansas and presented it to the Secretary of the Interior for approval. That officer'refused to file or approve the same upon the ground that alter designating its route by the map of 1862, which had been duly approved, and .upon which the lands had been withdrawn from market, *19the route could not rightly be changed without legislative permission to do so; and in this 'lie was sustained by the then Attorney General of the United States. And see United States v. Northern Pacific R. Co. 152 U. S, 284, 292, 203, 14 Sup. Ct. 598, 38 L, Ed. 443. Thereupon the company applied to Congress for such legislation and procured the passage of the act of 1866. Under that act the Kansas Company, on July 11th after its passage, prepared and filed with the Secretary of the Interior a map changing the route as designated in the maps of 1862 and 1864, from Ft. Filey northwesterly along the Republican river to the 100th meridian in Nebraska, to one westerly from Ft. Riley along the Smokey Hill river to the western boundary of Kansas, far to the south of the route from Ft. Riley northwardly as shown in the prior maps; and on November 28, 1866, it prepared and filed another map showing a continuation of that route westwardly from the Kansas boundary to Ft. Collins, Colo., by way of Denver. These maps were duly approved by the Secretary of the Interior; and upon the lines designated therein the road was built by the Kansas Company from Ft. Riley to Denver and accepted by the President in October, 1872, when its right to the lands and right of way as far as Denver became complete.
In the summer of 1867 the main line of the Union Pacific Railroad Company was constructed to a point 106 miles northeasterly from Denver, to what is now the city of Cheyenne in Wyoming, and the village of that name came into existence about August of that year. The Kansas Company had not then constructed its road westwardly from Ft. Riley beyond some point in Kansas near thereto, and the people of Denver were in much doubt of its ever being built to that city. In November, 1867, the Denver Pacific Railway & Telegraph Company was incorporated under the laws of Colorado by residents of that territory for the purpose of .building a road from Denver to a connection with the Union Pacific Railroad at Cheyenne, and the citizens of Denver and the county of Arapahoe, in which that city is situated, subscribed and paid $500,000 in aid of its construction. Shortly thereafter that company (which will be called the Denver Company) surveyed and established its route for such road from Denver along the South Platte river to what is now the city of Greeley, and thence northerly to Cheyenne, and in 1868 graded its road from Denver to Cheyenne, and over the land in controversy, which land was in 1870, included in a plat of the village of Greeley, and is now within the limits of that city. On March 16, 1869, after the passage of the act of March 3d of that year, the Kansas Company, as it was authorized by that act to do, made a contract with the Denver Company to construct the road from Denver to Cheyenne upon the line and roadbed so established and graded by the Denver Company, and the Denver Company built the road pursuant to that contract and that act to a connection with the Union Pacific road at Cheyenne in about 1872, and afterwards maintained and operated the’same upon that- line as an independent road, but as a part of a continuous line from the mouth of the Kansas river to Cheyenne, until it was consolidated with and became a part of the road of the appellant; and *20it has ever since been operated by the appellant and its predecessors in title as a part of its road. ♦
Accepting the decision in Stuart- v. Railroad Company as the correct interpretation of the Acts of 1862, 1864, and 1866, so far as they relate to the construction of the road from Ft. Riley to Denver, without again considering that question, it does not follow, as it seems to me, that the route established by the Denver Company, and upon which it built the road from Denver to Cheyenne, was authorized by any act of Congress prior to that of March 3, 1869. The Kansas Company never filed any map showing the general route, or definite location of its road from Denver to Cheyenne, or to any other point on the line of the Union Pacific Railroad; though the Acts of 1862, 1864, and 1866, each required that it file a map of the general route of its road, showing its connection with that of the main line of the Union Pacific Company. Its map of November 28, 1866, designates a route from Denver northeasterly along the South Platte river to its junction with the Cache la Poudre river near to what is now the city of Greeley, thence- nearly at right angles westerly along that river to Ft. Collins, and in an east and west direction over a part of the lands now in controversy within the city of Greeley; and it was evidently intended to afterwards. extend it from Ft. Collins to a connection with the Union Pacific Railroad main line, westerly of the meridian of Denver, as authorized by the act of 1866, when that road should be constructed; but the authority to so extend it was revoked by the act of 1869, and it was never extended,- and no road was ever built upon that route.
Section 2 of the act of 1869 shows upon its face that the route from Denver to Cheyenne was first authorized by that act. Its language is:
“TEat the said Union Pacific Railway Company, Eastern Division, shall extend its railroad and telegraph to a connection at the city of Denver, so as to form with that part of its line herein authorised to he eonstruoted, operated and maintained hy the Denver Pacific liaidway & Telegraph Company, a continuous line of railroad and telegraph from Kansas City, by way of Denver to Cheyenne; but nothing herein shall authorize the said .Eastern Division Company to operate the road or fix the rates of tariff for the Denver Pacific Railway & Telegraph Company.”
The building of the road by the Denver Company upon the route so established by it in 1867 and 1868 was not, therefore, a mere deviation in construction of the road of the Kansas Company upon the route shown by its map from Denver to Ft. Collins, but was the construction- of a road wholly upon a line and route established by the Denver Company as an independent Corporation created under the laws of Colorado, and having no connection whatever with the Kansas Company prior to the contract between them of March 16, 1869. The Denver Company in so establishing and grading its road of course acquired no right of way, or other rights under the grant of Congress to the Kansas Company, and could not possibly acquire any until its route and roadbed were incorporated into and made a part of the 'road from the mouth of the Kansas river to Cheyenne by authority of Congress. Upon so adopting the route and road of the Denver Com*21pany, the Kansas Company abandoned its route from Denver to Ft. Collins; and the right of way for the road established and built by the Denver Company attached under its contract with that company pursuant to the act of March 3, 1869, and at the very earliest as of the date of that act only. If the Kansas Company had built its road through the city of Greeley upon the route designated by its map of November 28, 1866, or if the Denver Company had done so, there would be room to say under the authority of Railroad Co. v. Baldwin, 103 U. S. 426, 26 L. Ed. 578, and like cases, that the right of way for such road would attach as of the date of the act of 1866; and that deviations in the line of construction so as to include the lands in controversy was permissible; but no road was ever built upon that route, and it was abandoned as hereinbefore stated. The fact that the road of the Denver Company was built as far as Greeley along the South Platte river, near to the route of the Kansas Company, as shown in its map of November 28, 1866, does not alter the situation. The road from Denver to Cheyenne was not only first authorized by the act of 1869, but by that act it was expressly required that it should be built from Denver to Cheyenne, and the authority of the Kansas Company under prior acts to build a road to some other connection with the Union Pacific road is revoked by that act.
In Union Pacific Railroad Company (this appellant) v. Harris, 215 U. S. 386, 30 Sup. Ct. 138, 54 L. Ed. 246, the land there involved, which is in Saline county, Kan., westerly from Ft. Riley, was settled upon in April, 1861, under the pre-emption law then in force by one who preserved his rights under that entry until September, 1865, when he transmuted it to a homestead settlement and continued in possession until 1872, when he received a patent therefor from the .government. It was the contention of the railroad company that because the settler in 1865 changed his pre-emption entry to a homestead settlement his right to the land attached as of that date only, which, being subsequent to the act of 1864, was inferior to its rights under that act. But Mr. Justice Brewer in delivering the opinion of the court said:
•‘Any possible rights of the railroad company in this land commence with the act of .Inly 3, 1866, for while the acts of 1864 and. 1866 were in amendment of the act of 1862, yet the route prescribed by the acts of 1862 and 1864 was far to the east of this la,ud, and only by the act of 1866 was the company authorized to construct a road through or near it. True, as held in Railroad Company v. Baldwin, 103 U. S. 426, 26 L. Kd. 578 (and other cases), the grant of the right of way is absolute, and takes effect as of the date of the grant. But that date must he found in an act presoribmg the finally adopted route.”
Conceding, as held in the Stuart Case, that sections 9 and 12 of the act of 1864 authorized the Kansas Company to build its road to Denver, then the act “prescribing the finally adopted route” as far as Denver might be found in that act. But the authority under section 12 of the act of 1864, “to make its road westward until it meets and connects with the Central Pacific Company of California on the same line ” which plainly means' the line of the Union Pacific road from its initial point on the 100th meridian in Nebraska to a connection with *22the Central Pacific, was revoked by the act of 1866, which required a connection with the Union Pacific Railroad, “but not at a point more than 50 miles west from the meridian of Denver in Colorado.” But this does not require the road to go to Denver, though it permits a connection with the Union Pacific Railroad at some point on the line of that road between its initial point in Nebraska on the 100th meridian, and the meridian of Denver. Such a connection had not been made at the time of the passage of the act of March 3, 1869, and it is entirely plain that the permission to go farther west than the meridian of Denver was revoked by that act, the road required to be built from Denver to Cheji-enne, which is somewhat easterly from Denver, and there connect with the Union Pacific road. The act of 1869, is, therefore, the first and only act of Congress “prescribing the route for this road from Denver to Cheyenne”; and if the grant of the right of way takes effect as of the date of an act “prescribing the finally adopted route,” and this is not controverted, the conclusion is unavoidable that the right of either the Kansas or the Denver Company to a right of way from Denver to Cheyenne under any act of Congress attaches, if at all as against pre-emption, homestead, of other claims of record in the proper land office, as of the date of the act of March 3, 1869, only. United States v. Northern Pacific Ry. Co., 152 U. S. 284-292, 298, 14 Sup, Ct. 598, 38 L. Ed. 443.
The subdivisions of the sections of land named over which appellant claims its right of way, and the existing homestead settlements, pre-emptions and other claims of record thereon at the time of the passage of the act of 1869, as shown by the local land office at Denver, are as follows:
The south half of the southwest quarter of section 32, and the north half of the northwest quarter of section 5 : On June 23, 1865, Andrew D. Demon filed a pre-emption declaratory statement upon these tracts. He made final proofs and paid for the land in February, 1867, and a patent was issued to him October 1st following. The records show that Demon first settled upon the land May 1, 1864. (One-half mile of the right of way claimed is over these subdivisions.)
The southeast quarter of the southwest quarter of section 5: September 22, 1866, Knute Nelson filed a pre-emption claim for this tract and 40 acres in section 8, alleging settlement thereon upon that date. January 21, 1873, the entry was canceled, for some reason, by the Commissioner of the General Dand Office," and the tract was patented to the Denver Company April 24, 1875, as inuring to it under the act of 1869.
The southwest quarter of the southeast quarter of section 5: September 19, 1866, Calvin Roher filed a pre-emption claim upon this tract. September 18, 1885, D. P. Terrell filed a homestead application therefor, which was rejected and an appeal taken. July 8, 1886, the mayor of the city of Greeley entered the same for cash under the town-site act for the benefit of the inhabitants of said city, and a patent was issued therefor for the benefit of the city October 3, 1889.
The northeast quarter of the northwest quarter of section 8: This tract was included in the pre-emption claim of Knute Nelson, filed *23September 22, .1866, and canceled January 21, 1873, as before stated. October 9, 1869, Lewis F. Bartels' entered the land for cash and a patent was issued to him therefor December 15, 1870.
The west half of the northeast quarter of section- 8: December 1, 1866, D. H. Williams filed a homestead entry upon this land. April 20, 1870, he made final proof, and a patent was issued to him for the land September 20, 1870.
The west half of the southeast quarter of section 8: November 24, 1866, John S. Reed filed a pre-emption claim for this tract, alleging settlement upon that date. November 6, 1868, Cornelius C. Conklin filed a pre-emption claim alleging settlement by him on August 20, 1868. June 14, 1869, Conklin made final proofs, and a patent was issued to him November 25, 1870.
Section 17: This section was selected by the Denver Company October 13, 1874, as inuring to it under the act of 1869, and a patent was issued to it therefor, with other lands, April 24, 1875. Mo preemption or homestead claims are shown to have been filed upon this land.
The acceptance by the Land Department of the government of these several entries withdrew these lands from the category of public lands, and from the operation of the act of 1869. Railroad Company v Dunmeyer, 113 U. S. 629, 5 Sup. Ct 566, 28 L. Ed. 1122; Hastings, etc., Railroad Co. v. Whitney, 132 U. S. 359, 10 Sup. Ct. 112, 33 L. Ed. 363; United States v. Northern Pacific Ry. Co., 152 U. S. 284-298, 14 Sup. Ct. 598, 38 L. Ed. 443; Northern Pacific Ry. Co. v. Trodick, 221 U. S. 208, 31 Sup. Ct. 607, 55 L. Ed. 704.
If the right of way over these lands attached in favor of the Kansas Company as of the date of the act of 1864, or of 1866, without the. filing of any map, or the construction of any road authorized by them, such right of way of course antedates these several claims, except that, of Lemon which was settled upon in May, 1864, previous to the act of that year. It is true that mere settlement upon and occupation of the public lands, without more, does not vest any right in the settler to the land as against the government. But it has been the uniform holding of the land department, and of the Supreme Court, under the pre-emption and homestead laws, that one who in good faith settles upon and improves a tract of land, subject at the time of such settlement to private entry, or to homestead settlement, with intent to preempt or procure the same as a homestead, will be given the prior right to acquire the land upon compliance with the law, as against one who claims a right thereto arising subsequent to such settlement. Buxton v. Traver, 130 U. S. 232-236, 9 Sup. Ct. 509, 32 L. Ed. 920; Frisbie v. Whitney, 9 Wall. 187-195, 19 L. Ed. 668; Nelson v. Northern Pacific Ry. Co., 188 U. S. 108-125, 23 Sup. Ct. 302, 47 L. Ed. 406; Northern Pacific Ry. Co. v. Trodick, 221 U. S., 31 Sup. Ct., 55 L. Ed., above.
But I am unable to believe that it was intended by these acts of Congress to give to the Kansas Company an unlimited right to build in road upon any line it might thereafter select, between the mouth of the Kansas river and the western boundary of Nevada, regardless of *24the rights of settlers or others who might acquire interests in the land before the route was selected and the required map thereof filed with the Secretary of the Interior. Washington & Idaho R. R. Co. v. Osborn, 160 U. S: 103-109, 16 Sup. Ct. 219, 40 L. Ed. 3S6. The right of way and the granted lands are both in aid of the construction of the road, and the map of general route is as essential to give precision to the right .of way as it is to the granted lands. Missouri, K. & T. Ry. Co. v. Cook, 163 U. S. 491-496, 497, 16 Sup. Ct. 1093, 41 L. Ed. 239; United States v. Northern Pacific Ry. Co., 152 U. S., 14 Sup. Ct., 38 L. Ed., above. As to the lands, those to which a pre-emption, homestead, or other right to acquire them from the United States has attached, when the map of definite location of the road was filed, are reserved from the operation of the grant; as to the right of way, that attaches as of the date of the act which provides for the finally adopted route. The filing of a map of the general route of the road is required by all of the acts except that of 1869; and that act designates the line and route of the road from Denver to Cheyenne with the precision of a survey; no map of that route was therefore required. Until the required map of general route is filed, or the road is built under the authority of Congress, the lands in aid of the construction, and over which the road is to be built, remain subject to disposal by the United States. Kansas Pacific Co. v. Dunmeyer, 113 U. S. 629-637, 638, 5 Sup. Ct. 566, 28 L. Ed. 1122; United States v. Northern Pacific Ry. Co., 152 U. S. 284-298, 14 Sup. Ct. 598, 38 L. Ed. 443.
United States v. Union Pacific Ry. Co., 148 U. S. 562, 13 Sup. Ct. 724, 37 L. Ed. 560, relied upon by appellant, involved only the question of the rights of the defendant companies, as against the United States, to lands southwest of Denver, west of the Kansas road, and southwest of the road of the Denver Company at that place, some 200,000 acres in the outer angle formed by the connection of the two roads at Denver; the contention of the government being that the road of the Kansas Company ended at Denver and.that of the Denver Company began at that place, and that the two roads had no connection with each other within the meaning of the act of 1869. The Acts of 1862, 1864, and 1866, required a continuous line of road from the Missouri river to the Pacific Ocean, and it was held that it was not intended by the act of 1869 to break the continuity of such line, and that the lands in controversy, therefore, passed to the two companies. No other question was involved. The case was determined upon a demurrer and plea to the bill which alleged facts substantially different from those shown by the proofs in this case. The opinion plainly indicates, however, that the rights of the Kansas Company date only from the act of 1866. For the same reason the rights of the Denver Company would date only from the act of 1869. But the respective dates when the right of each company attached were not important in that case; the important question being, Were the companies, as against the United States, entitled to these particular lands? The fact that the rights of'the Denver Company would attach only as of the date of the act of 1869 would not have "the effect of breaking the *25continuity- of the line from the Missouri river to the Pacific Ocean, required by the prior acts of Congress.
Missouri, Kansas & Texas Railway Company v. Kansas Pacific Co., 97 U. S. 491, 24 L. Ed. 1095, involved the rights of the two companies to lands in the state of Kansas west of Ft. Riley. The lands were withdrawn from sale July 26, 1866, by the Secretary of the Interior for the benefit of the Kansas Company, under its map of July 11, 1866, filed pursuant to the act of July 3d, of that year, designating the route of its road from Ft. Riley to the western boundary of Kansas. The claim of the Missouri, Kansas & Texas Company to the lands was under the act of Congress of July 26, 1866, and inferior, therefore, to the rights of the Kansas Company. The rights of settlers upon the lands, if any, or of others than the two railroad companies, parties to that suit, were not involved and of course are not affected by the decision.
United States v. Kansas Pacific Company, 99 U. S. 455, 25 L. Ed. 289, involved the right of the United States to a lien upon the road west of the 100th meridian of longitude for 5 per cent, of the net earnings of the company upon that portion of its road. The lien was denied. What is said in the opinion in this and the preceding case should be limited, under familiar rules, to the questions involved.
• I am, therefore, of the opinion that appellant’s right of way over the lands in question attached'only as of the date of the act of March 3, 1869; and, as to the lands in sections 32, 5, and 8, its rights are inferior to those of all of the defendants, except as to the 100 feet, and the 200 feet in blocks 42 and 59, as decreed by the Circuit Court.
No part of section 17 had been sold, and there were no pre-emption or other claims of record against any part thereof at the date of the passage of the act of 1869. That section with other lands was selected hv the Denver Company in October, 1874, as inuring to it under that act, and a patent issued to it therefor, April 24, 1875. That company, therefore, acquired full title to this land. It was .acquired, however, by the Union Colony in 1870, with other lands under the conveyance, from John Evans as trustee of the Denver Company under its deed of trust of August, 1869, made pursuant to the act of March 3d, of that year, and was included by the Union Colony in' its plat of the village of Greeley in 1870. As I understand the record the city of Greeley only is interested in that portion of the appellant’s right of way over this section, and only for the use of its streets Nos. 20 to 23, inclusive, in the south part of the city where they cross the same. The right of the city to lay its streets across the right of way and use them as public streets cannot, I think, be prevented by the appellant. Northern Pacific Ry. Co. v. Townsend, 190 U. S. 267-272, 23 Sup. Ct. 671, 47 L. Ed. 1044. The decree should therefore be affirmed.