The opinion of the court was delivered by
HoetoN, C. J.:
It is disclosed by the record that Noyes, possessing all the legal qualifications to enter and homestead a portion of the “public land,” filed his declaratory statement and entered at the local land office the land in controversy, in the month of February, 1867; and that afterward he complied with all the other provisions of the homestead law with reference to securing the land to himself. Notwithstanding these things, it is contended by the M. K. & T! Rly. company that the homestead entry was properly canceled by the secretary of the department of the interior on the 22d of July, 1873, and the land legally patented to the company on the 5th of January, 1876, under the provisions of the act of congress of July 26, 1866, granting land to the state of Kansas to aid in the construction of the southern branch of the Union Pacific railroad and telegraph, from Fort Riley, Kansas, to Forth Smith, Arkansas. The sections of the act which the railroad company claims as decisive in its favor are as follows :
“That for the purpose of aiding the Union Pacific railroad company, southern branch, the same being a corporation organized under the laws of the state of Kansas, to construct and operate a railroad from Fort Riley, Kansas, or near said military reservation, thence down the valley of the Neosho river *347to the southern line of the state of Kansas, with a view to an extension of the same through a portion of the Indian Territory to Fort Smith, Arkansas, there is hereby granted to the state of Kansas, for the use and benefit of said railroad company, every alternative section of land, or parts thereof, designated by odd numbers, to the extent of five alternate sections per mile on each side of said road, and not exceeding in all ten sections per mile; but in case it shall appear that the United States have, when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purpose whatever, then it shall be the duty of the secretary of the interior to cause to be selected for the purposes aforesaid, from the public lands of the United States nearest to the sections above specified, so much land as shall be equal to the amount of such lands as the United States have sold, reserved, or otherwise appropriated, or to which the right of homestead settlement or preemption has attached, as aforesaid, which lands, thus indicated by the direction of the secretary of the interior, shall be reserved and held for the state of Kansas for the use of said company by the said secretary for the purpose of the construction and operation of said railroad, as provided by this act: Provided, That any and all lands heretofore reserved to the United States by any act of congress, or in any other manner by competent authority, for the purpose of aiding in any object of internal improvement, or other purpose whatever, be and the same are hereby reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road thrdugh such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted, subject to the approval of the president of the United States: And provided further, That said lands hereby granted shall not be selected beyond twenty miles from the line of said road.”
“Sec. 4. That as.soon as said company shall file with the secretary of the interior maps of its line, designating the route thereof, it shall be the duty of said secretary to withdraw from the market the lands granted by this act, in such manner as may be best calculated to effect the purposes of this act and subserve the public interest.”
The argument of counsel for the railway company, upon *348the statute is, that as the line of the road was definitely located on September 29th, 1866, on the ground opposite to the land in question, while it was public land, and before the entry of Noyes, and as a map thereof was filed with the secretary of the interior on December 3d, 1866, the grant covered by the statute attached to the lands on each side of the road, embracing both the ten-mile and the indemnity limits, and as the land was within the indemnity limit in February, 1867, (the date of Noyes’s entry,) it was not subject ,to homestead entry; that as the railroad company derived its title to the lands granted from the act of congress, it was not subject to be defeated by the laches of a government officer in failing to discharge a duty enjoined by the act; that as the act required the secretary of the interior to withdraw all lands granted, on the filing of the map of the line of the road in his office, his refusal or failure to- withdraw the land from homestead or other entry until after Noyes’s entry does not affect the title of the. company, or concern this controversy. The argument is fallacious and unsound, because its premises are not supported by the statute. When the road was definitely located, the right of the company to the odd sections within the ten-mile limit became, ipso facto, fixed and absolute. Its title thereto, which was previously imperfect, acquired precision, and became attached to the land. With respect to the indemnity, or “lieu lands,” as they are called, and which are outside of the ten-mile limit, but within twenty miles from the line of the road, the right was only a float, and attached to no specific tracts until the selection was actually made by the secretary of the interior. To the land within the secondary or indemnity territory, from which the deficiency in the ten-mile limit was to be supplied, the railroad company had not and could not have any claims, until specially selected for the purpose of supplying the deficiency. (L. L. & G. Rld. Co. v. United States, 2 Otto, 741; Ryan v. Railroad Co., 99 U.S. 382" court="SCOTUS" date_filed="1879-02-18" href="https://app.midpage.ai/document/ryan-v-railroad-co-89958?utm_source=webapp" opinion_id="89958">99 U. S. 382; A. T. & S. F. Rld. Co. v. Rockwood, ante, p. 292.
As Noyes made his homestead entry prior to any with*349drawal of the land from sale or entry, and before any selection had been made of it to help satisfy a deficiency in the •odd sections in the ten-mile limit, and as his homestead was a part of the “.public lands” at such entry, the attempted selection afterward of this tract by the secretary to supply a deficiency was without authority of the statute. The patent issued to the company was without warrant of law. The various decisions of'this court to which counsel of the railroad company refers are in no way in conflict with these conclusions.
Noyes has the paramount right to the land, and the judgment of the district court will be afSrmed.
All the Justices concurring.