The opinion
GILBERT, Circuit Judge
(dissenting). I am unable to concur in the view that the supreme court has by its decisions in Railroad Co. *943 v. Sanders, 166 U. S. 620 , 17 Sup. Ct. 671, and Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co., 168 U. S. 604 , 18 Sup. Ct. 205, overruled a series of prior decisions in which it was uniformly held that the withdrawal of lands within the grant to the Northern Pacific Railroad Company upon the filing of its map of the general route of its road operated to exclude the withdrawn lands from subsequent settlement by individuals under the homestead and preemption lav . That such was the effect of the withdrawal has been distinctly and repeatedly announced. In Buttz v. Railroad Co., 139 U. S. 55 , 7 Sup. Ct. 100, referring to the grant to the Northern Pacific Railroad Company, the court said:
“But it also contémplalos a preliminary designation of tlie general route of the road, and llie exclusion from sale, entry, or pre-emption of the adjoining odd sections within i'oriy miles on each side, until the definite location is made. * * * "When the 'general route of ilie road is thus fixed in good faith, and information thereof given to the lamí department hy filing the map thereof with tlie commissioner of the general land office, or tlie secretary of the interior, the law withdiaws from sale-or pre-emption tlie odd sections to the extent of forty miles on each side. The object of the law in this particular is plain: It is to preserve tlie land for the company to which, in aid of the construction of the road, it is granted.”
In that case a settlor had upon October 5, 1871, entered upon land, with the intention of securing a pre-emption claim. The land was then within the limits of an Indian reservation, the Indian title to which was not extinguished until June 19, 1873. On August 11, 1873, and within three months after the government survey of the land, the pre-emptioner presented his declaratory statement. On February 21, 1872, the map of the general route of the road had been filed, and on March 30, 1872, the withdrawal was made. Speaking of notice of the withdrawal, the court said:
“This notifiealion did not add to the force of tlie act itself, hut it gave notice to all parties seeking to make a pre-emption settlement that lands within certain defined limits might he appropriated for the road. At that time the lands were subject to the Indian title. The defendant could not, therefore, as already siated, have then initiated any pre-empiion right hy his settlement, and the law cut him off from any subsequent pre-emption. The withdrawal of the odd sections mentioned from sale or pre-emption, by tlie sixth section of the act, after the general route; of the road wms fixed, in the manner stated, was never annulled. It follows that the defendant could never afterwards acquire any rights against the company by his settlement.”
In St. Paul & P. R. Co. v. Northern Pac. R. Co., 139 U. S. 1 , 11 Sup. Ct. 389, concerning the withdrawal of lands by the secretary of the interior, the court said:
“His action in formally announcing their withdrawal was only giving publicity to what the law itself declared. The object of the withdrawal was to preserve the land unincumbered until the completion and acceptance of the road. * * * After such withdrawal, no interest in the lands granted can bo acquired, against the rights of the company, except by special legislative declaration, nor, indeed, in the absence of its announcement, after the general route is fixed.”
In U. S. v. Southern Pac. R. Co., 146 U. S. 570, 599 , 13 Sup. Ct. 152, the court expressly approved the language above quoted from the opinion in Buttz v. Railroad Co. In Hamblin v. Land Co., 147 U. S. 531 , 13 Sup. Ct. 353, it was held that a withdrawal of lands as *944 coming within the limits of a railroad grant operates to withdraw the lands, from homestead entries, even if found afterwards not to come within such limits. In Maddox v. Burnham, 156 U. S. 544 , 15 Sup. Ct. 448, it was held that the mere occupation of public land for the purpose of subsequently entering the same for a homestead, but without making such entry until after a withdrawal had been ordered by the secretary of the interior, gave the occupant no right thereafter to obtain title under the homestead laws.
The case of Railroad Co. v. Sanders, it is said, declares a doctrine at variance with the former decisions of the court. What was actually decided by the court in that case was that the withdrawal of lands consequent upon fixing the general route of the road did not operate to withdraw mineral land, and that if at the time of fixing the definite location of the road there was pending an application to purchase any of the granted lands, upon the ground that it was mineral land, such application constituted a "claim” against the land which excluded it-from the grant, notwithstanding the fact that it was subsequently proven that the land was not in fact mineral land. That decision rests upon grounds which have no application in the present case. All mineral lands were withheld from the grant to the railroad company. The withdrawal could not affect lands not within the grant. Such lands, after withdrawal, as before, were open to claim and purchase as mineral lands. The difference between an application to purchase mineral lands, and a pre-emption entry after a withdrawal, is that in the one case the law authorized and invited the application to purchase, while in the other it strictly prohibited all steps towards obtaining title, and declared that such unauthorized settlement could not become the basis of a claim. It is' true that in the course of the opinion in the Sanders Case the court remarked that section 3 of the grant to the railroad company “manifestly contemplated that rights of pre-emption or other claims and rights might accrue or become attached to the lands granted after the general route of the road was fixed, and before the line of definite location was established,” but the case presented no question of pre-emption right. It is not conceivable that the court intended by the use of those words in the opinion to deliberately overrule the plain doctrine of its decisions in the cases above referred to. I think that the language so quoted must be considered only in its connection with the question which was then before the court for decision. In Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co., the court, in concluding its opinion, declared that the only point intended to be decided was “that when.' a withdrawal of lands within indemnity limits is made in aid of an earlier land grant, and made prior to the filing of the map of definite location by a company having a later grant, — the latter having such words of exception and limitation as are found in the grant to the plaintiff, — it operates to except the withdrawn lands from the scope of such later grant.” The court ruled in that case, as it had ruled before, that the grant of lands to. .the Northern Pacific Railroad Company under the third section of the *945 grant conveyed, so far as the United States were concerned, only the lands within the grant to which the United States should have "full title, not reserved, sold, granted or otherwise appropriated, and free from pre-emx>tion, or other claims or rights, at the time the line of said road is definitely fixed, and a plat thereof filed in the office of the commissioner of the general land office,” and that the United States retained the right at any time prior to the date of fixing such definite line to make a legislative grant of the lands in aid of another railroad, or for any other purpose; but the court, in its opinion in that case, again defined the office and function of a withdrawal, and said:
“The withdrawal by the secretary in aid of the grant to the state of Wisconsin was valid, and operated to withdraw the odd-numbered sections within its limits from disposal by the land officers of the government under the general land laws. The act of the secretary was, in effect, a reservation.”
Conceding that the decision in that case reaffirms the doctrine that congress might by legislation retract from the grant any of the odd-numbered sections within the limits thereof, and might, even after the general route was fixed and the lands were withdrawn, have offered the same to settlers under the pre-emption and homestead laws, the fact remains that no such action has been had, and no such legislation has been enacted. In section 6 of the granting act to the Northern Pacific Railroad Company, after granting the odd-numbered sections, it is expressly declared that the rtre-emption and homestead laws shall be extended to the other lands. No subsequent legislation lias indicated the purpose of congress to extend those laws to lands within the grant, other than those so indicated. In Menotti v. Dillon, 107 U. S. 703 , 17 Sup. Ct. 945, the court made a similar ruling in reference to the grant to the Central Pacific Railroad Company. The court said:
“The right it acquired, in virtue of the act making the grant and of the accepted map of its general route, was to earn such of the lands, within the exterior lines of that route, as were not sold, reserved, or disposed of, or to which no pre-emption or homestead claim had attached, at the time of the definite location of its road.”
And, in speaking- of the order of withdrawal, said:
“That order took these lands out of the public domain, as between the railroad company and individuals; but they remained public lands, under the full control of congress, to be disposed of by it in its discretion at any time before they became the property of the company under an accepted definite location of its road.”
The purpose of the withdrawal, as has been often declared by the supreme court, was to protect the grant. What protection would he afforded by a withdrawal which left the withdrawn lands in the same position as other lands of the public domain? The construction which is adopted by the majority of the court in this case renders the withdrawal an idle and meaningless act. If it is the true construction, the grant to the railroad company might have been entirely defeated by entries in the land office prior to the date of definite location of the road. It is true that in the case of Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co. *946 the court, while maintaining the right of congress at any time prior to the definite location to withdraw the granted lands and bestow them in aid of another road, answered the argument that such a construction might operate to defeat the entire grant by referring to the presumption that congress “acted and would act in good faith,” and without intent to deplete the grant by subsequent legislation, or, in other words, declared that, while congress had the power to deplete the grant, it might be relied upon not to exercise the power. But can any such presumption arise in favor of the protection of a land grant as against the entry of individual settlers under the homestead and pre-emption laws? May they be relied upon to act in good faith, and with due regard for the rights of the railroad company and the intention of congress? In the sentence above quoted from the opinion in Menotti v. Dillon, “That order took these lands out of the public domain, as between the railroad company and individuals,” is contained, in brief, the rule of law which is established by the decisions, and by which the present question should be governed. Lands so withdrawn are reserved from settlement by pre-emptors. So far as the settler is concerned, they are no longer within the public domain, or, as was said in Northern Pac. R. Co. v. Musser-Sauntry L. L. & Mfg. Co., “The act of the secretary was, in effect, a reservation.” These utterances of the supreme court, which are subsequent in time to the decision in the Sanders Case, manifest the purpose of the court to adhere to its settled definition of the office and effect of a withdrawal, — a definition which can have but one meaning. If such is the true construction of the grant, a pre-emption entry, the initial step of which was taken subsequent to the withdrawal, cannot avail to except the land from the grant.