When grant attached.

The first and principal question is at what time the title of the railroad company attached,-whether at the time the map of definite location was filed in the general land office at Washington, or when, prior thereto, its line was surveyed and staked out on the surface of the ground. While the question, in this precise form, has never been before this court, yet the question as to the time at which the title attaches, under grants similar to this, has been often presented, and the uniform ruling has been that it attaches at the time of the filing of the map of definite location. Grinnell v. Chicago, R. I. & P. R. Co., 103 U. S. 739: 5 Am. & Eng. R. Cas. 447; Van Wyck v. Knevals, 106 U. S. 360, 366, 10 Am. & Eng. R. Cas. 664; Kansas Pac. R. Co. v. Dunmeyer, 113 U. S. 629, 634; Walden v. Knevals, 114 U. S. 373; U. S. v. Missouri K. & T. R. Co., 141 U. S. 358, 375.

66

In Van Wyck v. Knevals, where the question arose between Knevals, the grantee of the railroad company, and Van Wyck, who had entered the lands at the local land office after the filing of the map of definite location with the land department, but before notice thereof had been received at such local land office, this court said: The route must be considered as definitely fixed' when it has ceased to be the subject of change at the volition of the company. Until the map is filed with the secretary of the interior, the company is at liberty to adopt such a route as it may deem best, after an examination of the ground has disclosed the feasibility and advantages of different lines. But when a route is adopted by the company, and a map designating it is filed with the secretary of the interior and accepted by that officer, the route is established; it is, in the language of the act, 'definitely fixed,' and cannot be the subject of future change, so as to affect the grant, except upon legislative

consent."

And in Kansas Pac. R. Co. v. Dunmeyer it is also said: "We are of opinion that under this grant, as under many other grants containing the same words, or words to the same purport, the act which fixes the time of definite location is the act of filing the map or plat of this line in the office of the commissioner of the general land office. The necessity of having certainty in the act fixing this time is obvious. Up to that time the right of the company to no definite section or part of section is fixed. Until then many rights to the land along which the road finally runs may attach, which will be paramount to that of the company building the road. After this no such rights can attach, because the right of the company becomes by that act vested. It is important,

therefore, that this act fixing these rights shall be one which is open to inspection. At the same time it is an act to be done by the company. The company makes its own preliminary and final surveys by its own officers. It selects for itself the precise line on which the road is to be built, and it is by law bound to report its action by filing its map with the commissioner, or, rather, in his office. The line is then fixed. The company cannot alter it so as to affect the rights of any other party.'

Pre-emption claim-Bona fides.

The reasoning of these opinions is applicable here. The fact that the company has surveyed and staked a line upon the ground does not conclude it. It may survey and stake many, and finally determine the line upon which it will build by a comparison of the cost and advantages of each; and only when, by filing its map, it has communicated to the government knowledge of its selected line, is it concluded by its action. Then, so far as the purposes of the land grant are concerned, is its line definitely fixed; and it cannot thereafter, without the consent of the government, change that line so as to affect titles accruing thereunder. In accordance with these decisions it must therefore be held that the line was not definitely fixed until the 13th of October, 1856. Inasmuch as Griffey's pre-emption right had attached to this land prior to such time, it did not pass to the railroad company under the grant; and it was a matter of no moment to the company what thereafter became of the title. This is settled by the case of Kansas Pac. R. Co. 7. Dunmeyer, in which it was said: "It is not conceivable that congress intended to place these parties as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is it to be supposed that it was intended to raise up, in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and the government as to the performance of their obligations." And, again: "Of all the words in the English language, this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land office, by which the inchoate right to the land was initiated. It meant that by such a proceeding a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation. With the performance of these conditions the company had nothing to do. The right of the homestead having attached to the land, it was excepted out of the

grant as much as if in a deed it had been excluded from the conveyance by metes and bounds." See, also, Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 40 Am. & Eng. R. Cas. 426; in which was a similar ruling.

The only other question we deem important is this: On July 5, 1871, the state of Iowa issued a patent, under which plaintiff in error claims, and on June 30, 1882, the United States issued a patent to Griffey, which is the basis of defendants' title. The defendants filed, as was authorized under the Iowa statute, a cross petition, praying to quiet their title, and the decree entered was one dismissing the plaintiff's bill and quieting defendant's title..

Now, it is claimed that Griffey never complied with the preemption laws; that he never made a bona fide settlement; that he secured his pre-emption rights by false representations and a pretended settlement; that he does not come into a court of equity with clean hands, and is entitled to no relief; and that, therefore, there was error in entering a decree in favor of the defendants upon the cross petition. But, as we have seen, Griffey did make a settlement, file his declaratory statement, and thus initiate a pre-emption right. By these means such pre-emption right had, in the language of the statute, attached. The land, therefore, did not pass under the railroad grant. It was no matter of interest to the company what became of the title. The government-the owner of the land-was satisfied with what Griffey had done, took from him its land warrant as payment, and patented the land. Into the bona fides of this transaction no one but the government can inquire. As the title was beyond challenge on the part of the railroad company, it had no right to cast a cloud thereupon, and, having done so by accepting a patent from the state of Iowa, under the pretense that the land was a part of the grant made to that state, and having affirmed the validity of the title conveyed by such patent, it does not lie in its mouth, or with those claiming under it, to now object to a decree removing all cloud cast by such patent. We see no error in the rulings of the supreme court of Iowa, and its judgment is affirmed.

HAMILTON

ข.

SPOKANE & PALOUSE R. Co. et al.

(Idaho Supreme Court, Dec. 8, 1891.)

Public Lands Grant of Right of Way-Pre-emption Filing-Homestead Entry. One Wilkins filed declaratory statement November 7, 1888, and relinquished the same October 5, 1889, on which day Daniel made homestead entry of the same tract, and on April 29, 1890, made cash entry of said track, and on September 3, 1890, conveyed by warranty deed to Hamilton a portion of said tract. The railroad company claims right of way over tract conveyed to Hamilton, by reason of compliance with Act of Congress of March 3, 1875, and the approval of the plat by the secretary of the interior, July 11, 1889. Hamilton claims damages because of company grading its roadbed through said conveyed tract. Held, that Wilkin's pre-emption filing did not exempt said land from the grant of right of way to the company, as he relinquished the same before perfecting the title; that there was no privity of estate between said Wilkins and Daniel; that patent to Daniel would take effect, by relation, October 5, 1889, the date of Daniel's homestead entry, and would not antedate the grant to the company.

Land Grant and Grant of Right of Way Distinguished.-Distinction between grants of land to aid in construction of railroads and grants of right of way commented upon.

APPEAL from Latah District Court:

Albert Hagan, for appellant.

J. A. C. Freund, for respondent.

SULLIVAN, C. J.-This is an action brought by the respondent (plaintiff below) against the appellant (defendant below, and three other defendants, who are not appelCase stated. lants here) to recover $250, damages alleged to have been sustained by reason of appellant having graded a railway roadbed through land claimed by the respondent, and for hauling and piling dirt upon said land. The complaint alleges that the defendant is a railroad corporation; that the plaintiff, on the 3d day of September, 1890, was, and ever since has been, the owner of a piece or parcel of land, being a part of lot 4, section 7, township 39 Ñ., range 3 W., B. M., containing an area of 2.28 acres, and described said parcel of land by metes and bounds; and, further, that the appellant, on the 20th day of November, 1890, entered upon said land unlawfully and with force, against the wishes of respondent, and hauled a large quantity of dirt upon and graded a roadbed for a railroad track through said land, to

plaintiff's damage in the sum of $250, for which sum judg ment is demanded. The appellant by its answer admits that it is a duly organized and existing railroad corporation, and denies all other allegations of the complaint, except the allegation that it entered upon said land and graded a railway roadbed through said land. The answer further states that the appellant claims the right of way over the said tract of land by virtue of an act of congress approved March 3, 1875, entitled "An act granting to railroads the right of way through the public lands of the United States ;" and that it acquired the right of way over said land to the extent of 100 feet from each side of the middle of its track by reason of a compliance with the terms and conditions of said act of congress; and denies that plaintiff is damaged in any sense whatever by reason of said roadbed having been graded across said land. The court tried the cause without a jury, and entered judgment against the appellant for $250, damages and costs of suit. From that judgment the appellant brings the case to this court, and demands a reversal thereof, and assigns six specifications of error as ground therefor.

ion of court

The first and second specifications of error are substantially as follows, and will be considered together: That there are no findings to subtain the judgment; that a written decision of the court is not a finding, What decisand will not sustain a judgment; that, even if the should conwritten decision is a finding, it will not sustain the tain. judgment. I do not think the objections raised by these specifications of error well taken. I am of the opinion that the written decision of the court below contains findings of fact and conclusions of law sufficient to sustain the judgment of the court below, provided such finding of acts warrants the conclusions of law. I will, however, say that the document containing the finding of facts and conclusions of law is contained in the transcript, and covers 18 printed pages thereof. Said document contains a statement of the contents of the pleadings, the substance of the testimony, and a review and comment on the authorities cited by counsel on the argument of the case in the court below, and the reasons for the decision, but fails to technically comply with section 4407 of the Revised Statutes. Said section requires the trial court, when a case is tried to the court without a jury, to give its decision in writing, in which the facts found and the conclusions of law applicable to such facts must be separately stated. The decision should not contain a statement of the case and the reason for the decision. The said document is, technically speaking, an opinion, rather than a decision, within the meaning of the term "decision" as used 51 A. & E. R. Cas.-23.