A. T. Bullen, A. B. Browne, and Geo. R. Peck, for defendant in error.
Mr. Justice BREWER delivered the opinion of the court.
The land in controversy is in an odd-numbered section, and within the indemnity limits of the Leavenworth, Lawrence & Galveston Railroad, and also within the like limits of the Missouri, Kansas & Texas Railway. The tract was selected, certified to the state, and by it patented to the railway company. The selection was made on August 8, 1872, and approved April 10, 1873, and the deed from the state was made on May 9, 1873. Within the decision in Kansas City, L. & S. K. R. Co. v. Attorney General, 118 U.S. 682 , 7 Sup. Ct. 66, the legal title passed to the railway company. Mary E. Wood, the defendant, is the widow of C. B. Wood, who during his lifetime moved upon the land with his family, and sought to enter it as a homestead. But his occupation and settlement, as appears from the agreed statement of facts, commenced on June 8, 1870, and, while this was prior to the selection by the railroad companies, the land had years before been withdrawn from sale or location, preemption or homestead entries. Two orders of withdrawal were made by the department of the interior,-one on March 19, 1867, for the benefit of the Leavenworth, Lawrence & Galveston Railroad Company, and the other on April 30, 1867, for the Missouri, Kansas & Texas Railway Company. These orders of withdrawal were received at the local land office on April 3, 1867, and May 10, 1867, respectively. When Mr. Wood made application to file upon the land, he was informed that the land had been withdrawn, and his application was rejected. If those withdrawals were valid, no rights, legal or equitable, were acquired by his occupation and settlement.
It was said in Wolsey v. Chapman, 101 U.S. 755 , 768: 'The proper executive department of the government had determined that, because of doubts about the extent and [156 U.S. 548, 550] operation of that act, nothing should be done to impair the rights of the state above the Raccoon Fork until the differences were settled, either by congress or judicial decision. For that purpose an authoritative order was issued, directing the local land officers to withhold all the disputed lands from sale. This withdrew the lands from private entry, and, as we held in Riley v. Wells [unreported], was sufficient to defeat a settlement for the purpose of pre-emption while the order was in force, notwithstanding it was afterwards found that the law by reason of which this action was taken did not contemplate such a withdrawal.'
This has been and is the settled rule of the courts and the land department. It is only a recognition of the limitations prescribed in the statutes, for, by Revised Statutes (section 2258), 'the lands included in any reservation by any treaty, law, or proclamation of the president, for any purpose,' are expressly declared to be not subject to the rights of pre-emption, and section 2289, the one giving the right to enter for a homestead, limits that right to 'unappropriated public lands.' The fact that the withdrawals were made by order of the interior department, and not by proclamation of the president, is immaterial.
These withdrawals were not merely executive acts, but the [156 U.S. 548, 551] latter one, at least, was in obedience to the direct command of congress. Section 4 of the act granting lands to aid in the construction of what is now known as the Missouri, Kansas & Texas Railway (14 Stat. 290) is as follows:
The map of the line of definite location called for by this section was filed on December 6, 1866, and the withdrawal followed in the succeeding spring.
Upon these admitted facts, it is clear that Mr. Wood acquired no equitable rights by his occupation and settlement. He went upon lands which were not open to homestead or pre-emption entry, and cannot make his unauthorized occupation the foundation of an equitable title. He was not acting in ignorance, but was fully informed both as to the fact and the law. He deliberately took the chances of the railway company's grant being satisfied out of lands within the place limits, or by selections of lands within the indemnity limits other than this, and trusted that in such event this tract would be restored to the public domain, and he gain some advantage by reason of being already on the land. But the event he hoped for never happened. The party for whose benefit the withdrawal was made complied with all the conditions of title, and took the land.
The judgment of the supreme court of the state was correct, and it is affirmed.
Mr. Justice GRAY was not present at the argument, and took no part in the decision of this case.
[ Footnote 1 ] Ard v. Brandon, 15 Sup. Ct. 406; Corinne, M., C. & S. Co. v. Johnson, 15 Sup. Ct. 409.