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The foregoing considerations, we think, dispose of the various contentions presented to our notice, and, finding no error in the judgment of the Supreme Court of Nebraska, it is, for the reasons stated,

Affirmed.

MISSOURI VALLEY LAND COMPANY v. WRICH.

ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.

No. 102. Argued January 10, 1908.-Decided February 3, 1908.

Decided on authority of Missouri Valley Land Co. v. Wiese, ante, p. 234.

THE facts are stated in the opinion.

Mr. Charles A. Clark for plaintiff in error.

Mr. James H. Van Dusen, with whom Mr. Edward F. Colladay was on the brief, for defendant in error.1

MR. JUSTICE WHITE delivered the opinion of the court.

This case was argued with Missouri Valley Land Co. v. Wiese, No. 101, of this term, just decided, ante, p. 234, and in all essential particulars the two cases are alike. Wrich purchased his land in 1881 from the Union Pacific Railroad Company and received his deed in 1890. The land lay within overlap grants to the Union Pacific Company and the Sioux City and Pacific Railroad Company. Wrich took possession immediately after his purchase, and ever afterwards held and claimed the land as his own. In September, 1893, he under

1 For abstracts of arguments see ante, p. 234

208 U.S.

Argument for Plaintiff in Error.

took to make a cash entry of the land under the act of 1887, as did his neighbor Wiese. All the questions involved in the Wiese case are present in this, and, for the reasons given in the opinion in the former, the judgment of the Supreme Court of Nebraska in this case must be

Affirmed.

MINNEAPOLIS, ST. PAUL AND SAULT STE. MARIE RAILWAY COMPANY v. DOUGHTY.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH DAKOTA.

No. 81. Argued December 17, 1907.-Decided February 3, 1908.

Under the act of March 3, 1875, c. 152, 18 Stat. 482, granting to railroads the right of way through public lands of the United States, such grant takes effect either on the actual construction of the road, or on the approval of the Secretary of the Interior, after the definite location and the filing of a profile of the road in the local land office, as provided in § 4 of the act; and a valid homestead entry made after final survey but before either the construction of the road or the approval by the Secretary of the profile, is superior to the rights of the company. Jamestown & Northern Railway Co. v. Jones, 177 U. S. 125, explained and followed. 107 N. W. Rep. 971, affirmed.

THE facts are stated in the opiniou.

Mr. Alfred H. Bright for plaintiff in error:

The filing of the plat and the approval thereof by the Secretary of the Interior were not conditions precedent to the acquisition of a right of way under the act of March 3, 1875.

It was the intention of Congress to protect the company as well as the settler from the time of entry. It is assumed by Congress that the company must of necessity locate its

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Argument for Plaintiff in Error.

208 U.S.

line before it could make a filing or build its railway, and that to do this it must have the right to enter and take possession of the land.

The only location mentioned in the act does not depend on the map, that is to say, is not made by the map, because the map, of necessity, follows the location. The map is simply the evidence of the location made as all locations are made, and the right of way may be built upon before the map is approved or even filed. Jamestown & Northern v. Jones, 177 U. S. 125.

When the company locates its line, it has begun proceedings to acquire the title, which if regularly followed up makes it the first in right as to any unoccupied Government land. Railroad v. Alling, 99 U. S. 463.

The court should avoid a too rigid and literal or verbal construction of the act in question and should hold not that the word "thereafter" means only after the last act recited has been done, but that it applies to the first thing which the railroad company is required to do, to wit: the location of its road. It refers to the whole group of acts for securing the title and, by the doctrine of relation, when the map is approved the title vests in the railroad company as of the date of the location of its road. St. Paul &c. Ry. v. W. & St. P. Ry., 112 U. S. 720; Sioux City &c. Ry. v. C., M. & St. P. Ry., 117 U. S. 406; United States v. Detroit Lumber Co., 200 U. S. 321, 334.

The construction of this statute here contended for invokes the doctrine of relation from the approval of the map to the inception of the equitable title of the railway company, at least as early as the seventeenth day of June. This construction is supported by the Supreme Court of Missouri in the case of Kinion v. Railway Co., 118 Missouri, 577; S. C., 24 S. W. Rep. 636; by the Supreme Court of Colorado in Denver & Rio Grande R. R. Co. v. Hanoun, 19 Colorado, 162; S. C., 34 Pac. Rep. 838, and by the Supreme Court of Utah in Lewis v. Railway, 54 Pac. Rep. 981.

208 U.S.

Argument for Defendant in Error.

Counsel is aware of a line of decisions contrary to the views here contended for. Red River &c. v. Sture, 20 N. W. Rep. 229; S. C., 32 Minnesota, 95; Spokane &c. Co. v. Zeigler, 61 Fed. Rep. 392; Lilienthal v. So. Cal. Ry. Co., 56 Fed. Rep. 701; Hamilton v. Spokane &c., 28 Pac. Rep. 408; Enoch v. Spokane &c., 33 Pac. Rep. 966; Denver &c. v. Wilson, 62 Pac. Rep. 843, discussed and said to be in conflict with Jamestown & Northern v. Jones, 177 U. S. 125. The latter case discussed, and distinguished from the present case.

Mr. S. E. Ellsworth, with whom Mr. George W. Soliday was on the brief, for defendant in error:

It was not the intention of the framers of the act of March 3, 1875, that the grant therein mentioned should attach immediately upon the filing of a copy of the railroad company's articles of incorporation. No railroad company can claim to be a grantee of a right of way over the public lands until a profile of its road has been filed and approved as specified in the act, and after that has been done, the grant is not operative upon lands to which private rights had previously attached Enoch v. Spokane Falls & N. Ry., 33 Pac. Rep. 966; Jamestown & N. Ry. Co. v. Jones, 7 N. Dak. 119; S. C., 76 N. W. Rep. 227. See also Red River & C. R. Co. v. Sture, 20 N. W. Rep. 229; Spokane Falls & N. Ry. Co. v. Zeigler, 61 Fed. Rep. 392; aff'd 167 U. S. 65; Washington & I. Ry. Co. v. Osborn, 160 U. S. 103; Lilienthal v. Southern California Ry. Co., 56 Fed. Rep. 701; Dakota Central R. R. Co. v. Downey, 8 L. D. 115; Circular of Commissioner Williamson, 2 Copp's Public Land Laws, 816; Circular of Commissioner Stockslager, 12 L. D. 423; Denver & R. G. R. Co. v. Wilson, 28 Colorado, 6; S. C., 62 Pac. Rep. 843; Hamilton v. Spokane Falls & P. Ry. Co., 3 Hasb. (Idaho) 164; S. C., 28 Pac. Rep. 408; Chicago, K. & N. Ry. Co. v. Van Cleave, 52 Kansas, 665; S. C., 33 Pac. Rep. 472; Red River &c. R. Co. v. Sture, 32 Minnesota, 95; S. C., 20 N. W. Rep. 229; Jamestown & N. Ry. Co. v. Jones, 7 N. Dak. 119; S. C., 76 N. W. Rep. 227.

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MR. JUSTICE MCKENNA delivered the opinion of the court.

This action was brought by the defendant in error against plaintiff in error in the District Court of Foster County, State of North Dakota, to recover compensation for injury to his land by the construction and operation of the railroad of the plaintiff in error.

Defendant in error has a patent to the land, and the question is whether before his settlement under the homestead laws plaintiff in error acquired a right of way over the land for its railroad under the act of March 3, 1875, c. 152, 18 Stat. 482.

The trial court held (1) That defendant in error was "the owner in absolute fee simple of the land" and that his title related back to July 1, 1892, the date of his settlement. (2) That the railroad "having attempted to acquire a right of way across said land before and in anticipation of the construction of its railroad, in compliance with the provisions of § 4 of the act of Congress, approved March 3, 1875, the filing with the register of the district land office, and approval by the Secretary of the Interior, of the plat or profile of the section of its railroad extending across said land, was a condition precedent to the acquisition or claim on its part to right of way, and any title, estate or interest acquired by it in or to said land dates from said filing and approval." Judgment was entered for the sum of $1,000 damages and costs, and it was adjudged, upon paying the sum, the title to the right of way should vest in the railroad company.

The facts, as recited by the Supreme Court in its opinion, are as follows:

"On June 25, 1892, the plaintiff's application to enter the quarter section in question was presented to and accepted by the register and receiver of the United States land office at Fargo. On July 1, 1892, the plaintiff took up his residence on the land under his homestead entry and in all things complied with the Federal homestead laws. On November 4,

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