Although these decisions are somewhat inharmonious, it would seem that the practice of the department not to enter as canceled an expired filing has been uniform, and the record has been left to speak for itself.
For the reasons which we have already given, we think it was unnecessary to enter the cancellation on the record of the office in order to permit the law of congress to have its legal effect. That effect should not be dependent upon the action or nonaction of any officer of the land department. When no proof and no payment have been made within the time provided for by the law, the record will show that fact, and that the right of the claimant has expired, and the claim itself has ceased to exist.
A case of this kind, which simply necessitates a reference [174 U.S. 622, 638] to the record to ascertain whether the filing had expired, and with it the rights of the claimant, differs from the case where a filing may have become subject to cancellation; but the record does not show it, and the right to cancel depends upon evidence to be found dehors the record. In such case, while the facts might invalidate the claim, yet, as they are not of record, and require to be ascertained, the claim itself, though possibly not enforceable, is still an existing claim, within the meaning of the law; and it would remain such until cancellation had taken place, or some other act done legally terminating the existence of the claim.
Upon the facts as found in this case, it seems to us that there was no claim against the land at the time of the passage of the act of 1864, and that years before the time of the filing of the map of definite location, in 1884, the claim that once existed (in 1869) in favor of Flett had ceased to exist in fact and in law, and the title to the land passed to the railroad company by virtue of the grant contained in the act of 1864, and by reason of the filing of its map of definite location March 26, 1884. When, therefore, the defendant settled upon the land, in April, 1886, and applied to make homestead entry thereon, his application was rightfully rejected, for the reason that title to the land had passed to the railroad company, as above mentioned, and therefore he was not entitled to make the entry.
For the same reason, when John Flett, in September, 1887, submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869 (and which claim he had abandoned since 1870 ), he was too late. His right had expired many years before 1884, at which time the right to the land passed to the company, and he had no right to prove up on his abandoned and expired claim.
The record shows that at the time of the commencement of this action the railroad company was the owner, and entitled to the immediate possession, of the land in controversy, and that it was entitled, therefore, to judgment in its favor; and the courts below erred in dismissing its complaint. [174 U.S. 622, 639] The judgment of the United States circuit court of appeals for the Ninth circuit is reversed, and the case remanded to the circuit court for the Western division, district of Washington, for further proceedings not inconsistent with the opinion of this court.
Mr. Justice HARLAN and Mr. Justice McKENNA dissented.