prayers is the contracts to be mentioned, and the question is whether the claim stated by the plaintiff is a claim as assignee. curately than the result. But those circumstances do not change the legal conclusion from the facts set forth. The allegaThe plaintiff is the assignee of the assets tions show that, having the old contract beand good will of the National Colortype fore them, the parties came together under Company, the American Three-Color Com- a new agreement, which was determined by pany, Illinois corporations, and the Osborne reference to the terms of that contract, but Company, a New Jersey corporation, and which none the less was personal and imwas formed on March 1, 1902, for the pur- mediate. Maas, Fierlein, and Freese, who pose of consolidating the three. Among the were under contract with the National Colmore important contracts which purported ortype Company, agreed to work for the to be transferred were two between the Na- plaintiff instead. The plaintiff accepted tional Colortype Company and Maas and their promises, and gave à consideration for Fierlein respectively. By the former, Maas them by undertaking personally to pay. It [106] was employed as superintendent of the does not matter that the bill calls this beplat-making department, and agreed to re coming substituted as the employer and as main in the company's employment and a party to the old contracts. The plaintiff not to accept employment from others could not become substituted to a strictly in the business of three-color printing personal relation. All that it could do was for five years from December 1, 1901, to enter into a new one which was exactly and not to become interested in any like that which had existed before. Service way in that business in the United is like marriage, which, in the old law, was States, east of the Rocky Mountains, a species of it. It inay be repeated, but or divulge any secrets or processes re- substitution is unknown. Arkansas Valley lating to that business, for ten years from Smelting Co. v. Belden Min. Co. 127 U. S. the day mentioned. By the other contract 379, 387, 32 L. ed. 246, 248, 8 Sup. Ct. Rep. Fierlein was employed as salesman, and 1308. agreed to devote his whole time and attention to the interest and business of the company for two years from the same date. There was a similar contract with the defendant Freese, expiring May 1, 1903, but containing a promise by him never to divulge any of the secrets, methods, or practices of the company, and agreeing that his going to work for any others engaged in similar business should be considered a breach of the promise just set forth. The bill alleges that Maas, knowing of the transfer, consented to it, announced his intention of holding the plaintiff to the contract with him, remained in its employ in the same capacity, accepted the stipulated salary, and was instructed in valuable secrets, and that the complainant, by the consent of all parties, became substituted as a party to the contract in place of the National Colortype Company. There are shorter but similar allegations concerning Fierlein and Freese. An independent contract with the defendant Schultz is alleged, which has expired, but it is alleged that by virtue of his employment he also has become possessed of trade secrets and processes belonging to plaintiff. It may be that the form of the allegation was suggested by the hope to get some help from the written documents when the plaintiff comes to the proof, as against difficulties raised by the statute of frauds. We have nothing to do with that. It is quite manifest that the plaintiff, if it prevails, will not do so on the ground that, by virtue of the transfer to it, it can claim the beneficial interest in the original agreements, and thus is an assignee within the definition given in Plant Investment Co. v. Jacksonville, T. & K. W. R. Co. 152 U. S. 71, 77, 38 L. ed. 358, 360, 14 Sup. Ct. Rep. 483; if it recovers it will recover on a promise made directly to it upon a consideration which it has furnished. This est is recognized in Thompson v. Perrine, 106 U. S. 589, 593, 27 L. ed. 298, 300, 1 Sup. Ct. Rep. 564, 568, although the doctrine there quoted from Mr. Justice Story, that the holder of a note payable to bearer recovers on a new promise made directly to himself, has been controverted elsewhere, and, indeed, long haz smouldered as a dimly burning question of the law. Holtzendorff, Rechtslexicon, sub v. Inhaberpapiere, ad fin. (3d ed. 365, 371). Compare Abbott v. Hills, 158 Mass. 396, 397, 33 N. E. 592, Story, Confl. L. 8th ed. § 344. The bill goes on to allege that Maas and Fierlein, while in the plaintiff's employment and pay, conspiring with the defendants *What we have said suggests the answer [108] Quetsch and Seibert, got up the defendant to the objection that a novation is not set. corporation as a rival to the plaintiff, in- forth. The allegations seem to mean that duced the defendants Freese and Schultz to enter its service, have taken over their the old company was discharged, but this own special skill and knowledge of the is not a question of novation. plaintiff's secrets to the hostile camp, and, in short, will ruin the plaintiff if they are permitted to go on. We are of opinion that a case is stated within the jurisdiction of the court. It is true that the starting point for the relations between the plaintiff and its employees was [107] what purported to *be an assignment. It is true that the bill emphasizes this aspect of the case, and states the evidence more ac We are deal ing with a new bilateral contract made up It is unnecessary to consider whether secrets, or to discuss the different position of the defendant Schultz. Whether the obligation not to disclose secrets be independent of the express contract, or not, a case is made out. The question of independence will not arise unless a difficulty is encountered in the evidence because of the statute of frauds, but that is not a matter of pleading. We have not to consider how far the injunction should go in case the plaintiff succeeds, or anything except the objection that the plaintiff is suing as an assignee. Decree reversed. of Congress of May 14, 1880 (21 Stat. at L 140, U. S. Comp. Stat. 1901, p. 1382), chap. 89, § 3, in force when the occupancy was begun, which allows one who has settled or "shall hereafter" settle on public lands, with a view to acquiring them under the homestead laws, the same time to file his homestead application and perfect his original entry as is allowed to settlers under the preemption laws, and declares that his rights shall relate back to the date of settlement. [No. 44.] Argued October 16, 17, 1902. Decided IN ERROR to the Supreme Court of the PETER NELSON and Henry Nelson, Piffs. State of Washington to review a judg in Err., v. ment which reversed a judgment of the SuNORTHERN PACIFIC RAILWAY COM- defendant in a suit to recover the possesperior Court of Kittitas County in favor of PANY. (See S. C. Reporter's ed. 108-156.) Railroad land grants-effect of order of withdrawal based on map of general route -land within exterior limits-occupancy in good faith. 1. The alternate odd-numbered sections within the exterior limits of the general route of the Northern Pacific Railway Company were not so vested in that company by the mere filing of the map of general route and a withdrawal order based thereon as not to be subject to Occupancy in good faith by homestead settlers prior to the definite location of the road, although the act of July 2, 1864, chap. 217 (13 Stat. at L. 365), § 6, declares that the "odd sections of land hereby granted shall not be liable to sale or entry or preemption before or after they are surveyed, except by said company," since this section must be read in connection with $ 3, which restricts the grant to such odd-numbered sec tions as are free from pre-emption or other claims or rights at the date of definite location, and authorizes the company to select other lands in lieu of any found at that date to be "occupied by homestead settlers." 2. Continuous occupation of public land, with a bona fide intention to acquire it under the homestead laws as soon as it should be sur sion of real property. Reversed. See same case below, 22 Wash. 521, 61 Pac. 703. The facts are stated in the opinion. Mr. James Hamilton Lewis argued the Thomas B. Hardin, and Ralph Kaufman, cause, and, with Messrs. C. H. Aldrich, filed a brief for plaintiffs in error: Manifestly it was contemplated by the act of July 2, 1864, chap. 217, § 3 (13 Stat. at L. 365), that rights of pre-emption, or other claims or rights, might accrue or become attached to the land after the general route was fixed and before the line of definite location was established. Northern P. R. Co. v. Sanders, 166 U. S. 636, 41 L. ed. 1145, 17 Sup. Ct. Rep. 671. The filing of the map of general route gave the railroad no claim to any specific lands within the exterior limits of such route on either side of the road, and title does not attach to specific sections until they are identified by an accepted map of definite location of the line of road to be constructed. Menotti v. Dillon, 167 U. S. 720, 42 L. ed. 338, 17 Sup. Ct. Rep. 945; Northern P. R. Co. v. McCormick, 36 C. C. A. 560, 94 Fed. 936. Therefore, with an honest settlement for homestead purposes, an honest improvement preceding the filing of the accepted map of location gave a precedent right to the settler. It was a "right," or claim of right, as contradistinguished from claims attached (which latter word is not in the section now referred to). veyed, constitutes, when begun prior to the definite location by the Northern Pacific Railroad Company of its route, a "claim" upon the land within the meaning of the act of Congress of July 2, 1864, chap. 217 (13 Stat. at L. 365), § 3, restricting the grant in aid of such railroad to such odd-numbered sections within specified general limits as were free from pre-emption or "other claims or rights" at the date of definite location, and authorizing the company to select other lands in lieu of any found at that date to be "occupied by homestead settlers." No declaration or promulgation by the de3. One who in good faith occupies unsurveyed partment officer could affect these rights of public land within the exterior limits of the the settler theretofore attaching to him,general route of the Northern Pacific Rail particularly where the granting act of Conbased on the map of general route, but be-gress reserved no such power or privilege road Company, after an order of withdrawal fore the definite location of the road, is entitled to perfect his title under the homestead laws as soon as the land is surveyed, by act NOTE. 48 to land grants to railroads-see note to Kansas P. R. Co. v. Atchison, T. & S. F. R. Co. 28 L. ed. U. S. 794. Menotti v. Dillon, 167 U. S. 722, 42 L. ed. 339, 17 Sup. Ct. Rep. 945; Grubbs v. United States, 40 C. C. A. 513, 105 Fed. 314. in such administrative officer. Northern P. R. Co. v. Smith, 171 U. S. 269, 43 L. ed. 161, 18 Sup. Ct. Rep. 794; Northern P. R. Co. v. Sanders, 166 U. S. 636, 41 L. ed. 1144, 17 Sup. Ct. Rep. 671. The words of these acts should be con strued in the most limited manner possible, so as to give the settler the greatest opportunity to enjoy the object and purpose of the acts. Tarpey v. Madsen, 178 U. S. 219, 44 L. ed. 1044, 20 Sup. Ct. Rep. 849. Buttz v. Northern P. R. Co. 119 U. S. 55,. 30 L. ed. 330, 7 Sup. Ct. Rep. 100; St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389; United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; North No word can be construed into the act ern P. R. Co. v. Amacker, 175 U. S. 564, 44 when apparently purposely omitted. L. ed. 274, 20 Sup. Ct. Rep. 236; Hewitt v. Sioux City & St. P. R. Co. v. United Schultz, 180 U. S. 139, 45 L. ed. 463, 21 States, 159 U. S. 349, 40 L. ed. 177, 16 Sup. Sup. Ct. Rep. 309. Ct. Rep. 17. The words "free from claims or rights mean free from any claim of right or right of claim to the land. Northern P. R. Co. V. Musser-Sauntry Land, Logging & Mfg. Co. 168 U. S. 608, 42 L. ed. 598, 18 Sup. Ct. Rep. 205. In the absence of any express provision indicating otherwise, a grant of public lands only applied to lands which are free from existing claims. Northern P. R. Co. v. McCormick, 36 C. C. A. 560, 94 Fed. 938. If there were at the time of the filing of the map of definite location an actual existing claim, even though it might turn out to be wholly unfounded, the land thus claimed would not pass by the grant. Northern P. R. Co. v. DeLacey, 174 U. S. 635. 43 L. ed. 1115, 19 Sup. Ct. Rep. 791. No order made by the commissioner could be effective in discriminately holding up land anywhere from entry. The law is that the land attaching to the Northern Pacific could only so happen when definite map of location had been filed and accepted. Southern P. R. Co. v. United States, 46 C. C. A. 712, 109 Fed. 921; United States v. Oregon & C. R. Co. 176 U. S. 28, 44 L. ed. 358, 20 Sup. Ct. Rep. 261. The mere filing of the general route only indicated, for the company's purpose, the line through and to which it would ultimately file its map, taking along such route, now suggested, such land as may be free from claim at the time of the filing of the map of definite location. Northern P. R. Co. v. Musser-Sauntry Land, Logging & Mfg. Co. 168 U. S. 608, 42 L. ed. 598, 18 Sup. Ct. Rep. 205; Menotti v. Dillon, 167 U. S. 720, 42 L. ed. 338, 17 Sup. Ct. Rep. 945; Northern P. R. Co. v. McCormick, 36 C. C. A. 560, 94 Fed. 939. This court has inclined to treat such a withdrawal order as of no value, or as most limited in its effect, being contrary to the purpose of the law and inconsistent with the spirit of the granting acts. Hewitt v. Schultz, 180 U. S. 139, 45 L. ed. 463, 21 Sup. Ct. Rep. 309; Powers v. Slaght, 180 U. S. 173, 45 L. ed. 479, 21 Sup. Ct. Rep. 319; Southern P. R. Co. v. Bell, 183 U. S. 675, 46 L. ed. 383, 22 Sup. Ct. Rep. 232. Mr. James B. Kerr argued the cause, and, with Mr. C. W. Bunn, filed a brief for defendant in error: Upon the fixing of the general route of the Northern Pacific Railroad, in 1873, and the issuance of the order of withdrawal by the Commissioner of the General Land Of fice, the land in question was no longer subject to homestead entry. The action of the Interior Department in rejecting Nelson's application upon the ground that when he made his settlement, in 1881, the land had been for many years withdrawn from entry, is in accordance with the construction of the Department placed on this and similar grants. This construction has been unchanged from the beginning. Northern P. R. Co. v. Pressey, 2 Land Dec. 551; Northern P. R. Co. v. Miller, T Land Dec. 100; McClure v. Northern P. R Co. 9 Land Dec. 155; Northern P. R. Co. v. Collins, 14 Land Dec. 484; Central P. R. Co v. Beck, 19 Land Dec. 100; Re Northern P. R. Co. 27 Land Dec. 505; Re Southern P. R. Co. 30 Land Dec. 247. The decisions of this court are uniform: that no rights can be acquired, under the public land laws, to lands withdrawn. Wolsey v. Chapman, 101 U. S. 755, 25 L. ed. 915; Wood v. Beach, 156 U. S. 548, 39 L. ed. 528, 15 Sup. Ct. Rep. 410; Northern P. R. Co. v. Musser-Sauntry Land, Logging, & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205. The court will not overrule the construction placed upon acts of Congress by the executive officers of the government charged with their administration, except for cogent ifestly erroneous. reasons, or unless that construction is man 31 L. ed. 389, 8 Sup. Ct. Rep. 446; United United States v. Johnston, 124 U. S. 236, States v. Alabama G. S. R. Co. 142 U. S. 615, 35 L. ed. 1134, 12 Sup. Ct. Rep. 306; Hewitt v. Schultz, 180 U. S. 139, 45 L. ed.. 463, 21 Sup. Ct. Rep. 309. Mere occupancy at the date of definite location is insuflicient to except land from a railroad grant. Northern P. R. Co. v. Colburn, 164 U. S. 383, 41 L. ed. 479, 17 Sup. Ct. Rep. 98; Tarpey v. Madsen, 178 U. S. 215, 44 L. ed. 1042, 20 Sup. Ct. Rep. 849. Mr. Justice Harlan delivered the opin- brought this action in one of the courts of The defendants denied each of the allega- purpose of the trial were conceded to be true. The facts so conceded were as follows: The company is a corporation of Wisconsin, and succeeded, prior to the commencement of this action, to whatever right, title, or claim the Northern Pacific Railroad Company had, if any, to the land in dispute. The latter corporation was created by an act of Congress approved July 2d, 1864, chap. 217, granting lands in aid of the construction of a railroad and telegraph iine from Lake Superior to Puget sound on the Pacific coast by the northern route, and by the acts and joint resolutions of Congress supplemental thereto and amendatory thereof. 13 Stat. at L. 365. We will hereafter refer to those sections of the act, upon the construction of which the decision of this case mainly depends. The railroad company duly accepted in writing the terms of the act of Congress, and on the 29th day of December A. D. 1864, such acceptance was served on the PresiIdent of the United States. The company fixed the general route of its road extending coterminous with said land, and within 40 miles thereof, by filing a plat of such route with the Commissioner of the General Land Office August 20th, 1873. Thereafter, on November 1st, 1873, that officer transmitted to the register and receiver of the land office for the district in which the land was situate the following letter of instructions: [111] *"Gentlemen:-The Northern Pacific Railroad Company having filed in this depart ment a map showing the general route of their branch line, from Puget sound to a connection with their main line near Lake Pend d'Oreille in Idaho territory, I have caused to be prepared a diagram which is herewith transmitted, showing the 40-mile limits of the land grant along said line, extending through your district, and you are hereby directed to withhold from sale or entry all the odd-numbered sections falling within these limits not already included in the withdrawal for the main-line period. The even sections are increased in price to $2.50 per acre, subject to pre-emption and homestead entry only. This withdrawal takes effect from August 15th, 1873, the date when the map was filed by the company with the Secretary of the Interior, as required by the 6th section of the act of July 2d, 1864, organizing said company." The letter of the Commissioner and the diagram therein referred to were received and filed in the local land office November 17th, 1873. The land in dispute was within the 40mile limit of the land grant as designated in the diagram. On December 6th, 1884, the railroad company definitely located the line of its railroad, coterminous with and within less than 40 miles of the land in controversy, by filing a plat of such line, approved by the Secretary of the Interior, in the office of the Commissioner of the General Land Of fice; and prior to November 18th, 1886, it' constructed and completed a section of 40 miles of railroad and telegraph line extending over the line of definite location and coterminous with the land here in controversy. The President of the United States having appointed three commissioners to examine the same, and the commissioners, having performed that duty, reported to the Secretary on the 18th day of November, 1886, that the lines were completed in all respects as required by the act of Congress. On the 30th of November, 1886, the Secretary transmitted that report to the President with a recommendation that the railroad and telegraph line be accepted, and on the 7th day of December, 1886, the President approved that recommendation. *The United States executed and deliv-[112] ered, May 10th, 1895, to the railroad company its letters patent, purporting to convey to the company the above tract under the terms and provisions of the act of 1864, and the various acts and joint resolutions of Congress supplemental thereto and amendatory thereof. In the year 1881, three years before the definite location of the road, the defendant Henry Nelson went upon the above land and occupied it, and has since continuously resided thereon. It is agreed that he was at the time qualified to enter public lands under the act of Congress approved May 20th, 1862 (12 Stat. at L. 392, chap. 75), entitled "An Act to Secure Homesteads to Actual Settlers on the Public Domain," and under the various acts supplemental thereto and amendatory thereof. The land when occupied was unsurveyed, and was not surveyed until 1893. But as soon as surveyed Nelson attempted to enter it under the homestead laws of the United States in the proper United States district land office. His application was, however, rejected by the register and receiver because, in their opinion, it conflicted with the grant to the Northern Pacific Railroad Company. The defendant Peter Nelson is in the occupancy of a portion of the land in question under license from his codefendant Henry Nelson. Upon the facts so stipulated, the judg ment was that the railroad company was not the owner, had no claim to, and was not entitled to the possession of the land in dispute, and that the defendant Henry Nelson was entitled to remain in possession by vir tue of the homestead laws of the United States. Upon appeal to the supreme court of Washington that judgment was reversed, and the cause remanded with directions to enter judgment for the company. *1. Before considering the merits of the[113] case it is proper to remark that although the railroad company holds the patent of the United States for the land in controversy, the defendant, according to the laws of the state, was entitled to judgment, if it appeared that he was equitably entitled to possession as against the plaintiff. Hill's Anno. Codes & Statutes, 530 et seq.; Burmeister v. Howard, 1 Wash. Terr. 208. 2. We have seen that the Northern Pa- | pre-emption or other claims or rights at the cific Railroad Company was created by the time the line of said road is definitely fixed, act of Congress of July 2d, 1864, chap. 217, and a plat thereof filed in the office of the making a grant of lands in aid of the con- Commissioner of the General Land Office; struction of the road from Lake Superior and whenever, prior to said time [of defito Puget sound. When that grant was nite location], any of said sections or parts made substantially the entire country be- of sections shall have been granted, sold, retween those points was untraveled as well served, occupied by homestead settlers, or as uninhabited except by Indians, very few pre-empted, or otherwise disposed of, other of whom, at that time, were friendly to the lands shall be selected by said company in United States. The principal object of the licu thereof, under the direction of the Secgrant, as will appear from its language, retary of the Interior, in alternate sections, was to secure the safe and speedy transpor- and designated by odd numbers, not more tation of the mails, troops, munitions of than 10 miles beyond the limits of said alwar, and public stores, by means of a rail- ternate sections. road and telegraph, and to that end, and in By the 6th section of the act it was, order to bring the public lands into market, among other things, provided as follows: it was deemed important to encourage the "§ 6. And be it further enacted, That the settlement of the country along the proposed President of the United States shall cause route. The public lands in that vast region the lands to be surveyed for 40 miles in were unsurveyed, and it was not known width on both sides of the entire line of when they would be surveyed. Congress, said road, after the general route shall be of course, knew that if immigrants accepted construction of said railroad; and the odd fixed, and as fast as may be required by the the invitation of the government to estab-sections of *land hereby granted shall not be[115] lish homes upon the unsurveyed public liable to sale, or entry, or pre-emption, belands, they would do so in the belief that fore or after they are surveyed, except by the lands would be surveyed, that their oc- said company, as provided in this act." The cupancy would be respected, and that they stipulation of facts omits the latter part of would be given an opportunity to perfect § 6; but of the words omitted this court will their titles in accordance with the home- take judicial notice. They are as follows: "But the provisions of the act of September, eighteen hundred and forty-one, granting pre-emption rights, and the acts amendatory thereof, and of the act entitled 'An Act to Secure Homesteads to Actual Settlers on the Public Domain,' approved May twenty, eighteen hundred and sixty-two, shall be, and the same are hereby, extended to all other lands on the line of said road, when surveyed, excepting those hereby granted to said company. And the reserved alternate sections shall not be sold by the government at a price less than two dollars and fifty cents per acre, when offered for sale." stead laws. Such was the situation when the act of July 2d, 1864, was passed. Necessarily the act must be interpreted in the light of that situation. It should not be so interpreted as to justify the charge that the government laid a trap for honest immigrants who risked the dangers of a wild, unexplored country, in order that they might establish homes for themselves and their families. And it should not be supposed that Congress [114] had in view only the interests of the company, which, with the aid of a munificent grant of lands, was empowered to connect Lake Superior and Puget sound with a railroad and telegraph line. Let us now see what is the fair import of the act of 1864, under which both parties claim possession. The railroad company insists that after the order of withdrawal from "sale or entry" made in 1873 by the Commissioner of the Land Office, and based upon its map of general route, no right could be acquired by a settler upon any odd-numbered alternate section of land within the 40-mile limit indicated by the map of general route. As the lands in question were not surveyed until 1893, the company's contention means that during the twenty years succeeding the withdrawal in 1873 all the sections covered by the map of general route which would, upon a survey, appear to be odd-numbered alternate sections, were absolutely excluded from occupancy by any settler having in view the homestead laws. By the 3d section of that act, it was, among other things, provided as follows, to wit: "That there be, and hereby is, granted to the 'Northern Pacific Railroad Company,' its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, and to secure the safe and speedy transportation of the mails, troops, munitions of war, and public stores over the route of said line of railway, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty al- The defendant insists that the act of 1864 ternate sections per mile, on each side of recognized the right of an immigrant to ocsaid railroad line, as said company may cupy any section of the public lands on the adopt, through the territories of the United general route up to the time of the definite States, and ten alternate sections of land location of the road, provided it was done per mile on each side of said railroad when-in good faith with the intention to perfect ever it passes through any state, and when his title under the homestead laws whenever ever on the line thereof the United States it became possible to do so, and that if at have full title, not reserved, sold, granted, the time of definite location it appeared or otherwise appropriated, and free from that he was in the occupancy of an odd |