Oregon & California R. Co. v. United States act of March 3, 1887 (24 Stat. at L. 556, chap. 376, U. S. Comp. Stat. 1901, p. 1595), authorizing the Attorney General to institute necessary proceedings to cancel patents erroneously issued to railroad companies. The defendant in its plea averred an approval of its map of definite location January 29, 1870, a selection of the lands prior to July 12, 1871, and the further fact that Hines abandoned the land without having paid for it, or residing thereon four years; nor was he residing thereon at the time the defendant selected the same. The circuit court decreed the cancelation of the patent, and the court of appeals affirmed the decree. Mr. Maxwell Evarts for appellant. MR. JUSTICE BROWN delivered the opinion of the court: This case is similar to two recent cases bearing the same title, in the first one of which (189 U. S. —, ante, 615, 23 Sup. Ct. Rep. 615) a patent of certain lands within the indemnity limits of the same road, dated February 20, 1893, was canceled in favor of certain entrymen under the homestead laws of the United States, who had settled upon these lands at sundry dates from 1869 to 1890, and before the defendant company had selected the lands in question as indemnity lands, or had received a patent. The court found that, "when the company's lists were approved, neither the Commissioner nor the Secretary had any knowledge of the adverse claims of the above settlers to the lands upon which they respectively resided;" and held that the Land Department had no authority, simply upon the definite location of the road, to withdraw from the operation of the pre-emption and homestead laws lands within its indemnity limits, and that such order did not prevent an occupancy by homestead settlers within such limits up to the time of the approval of the selection made by the railroad company of lieu lands, and that, as it appeared the lands were actually occupied by homestead settlers at the time they were selected by the railroad company, such lands were not open to selection, although such selection was prior to the application of the settlers for entry under the homestead laws. It appeared in the case that the settlers had moved with due diligence to perfect and protect the right acquired by their occupancy of the lands, but were unable to obtain formal entry of the same, because the lands had not been surveyed. "At the time the settler went upon the land in good faith to make it his home and to perfect his title under the homestead laws there was nothing of record that stood in the way of his right to occupy the lands and to remain thereon until he could perfect his title by formal entry under the homestead laws." The second case was like unto the first, except that there Oregon & California R. Co. v. United States had been a long delay by the Land Department in having the land surveyed. It was held that the Land Department had acted "with all convenient speed" within the meaning of the act of 1870 (16 Stat. at L. 94, chap. 69, § 2), making the land grant. 189 U. S., ante, 620, 23 Sup. Ct. Rep. 620. In both of these cases, however, the lands were in actual occupation of settlers under the homestead laws at the time. selection was made by the railroad company and the patents issued. In this case the settlement was made under the Oregon donation act (9 Stat. at L. 496, chap. 76), the 4th section of which enacts that "there shall be and hereby is, granted to every white settler or occupant of the public lands, who shall have resided upon and cultivated the same for four consecutive years, and shall otherwise conform to the provisions of this act, the quantity of one-half section, or 320 acres of land," etc.; and by the 1st section of the amendatory act of 1853 (10 Stat. at L. 158, chap. 69), it was provided that settlers under the former act, in lieu of the term of continued occupation after settlement, as provided by said act, shall be permitted, after occupation for two years of the land so claimed, to pay into the hands of the surveyor general of said territory at the rate of $1.25 per acre of the land so claimed. The plea alleges that Hines abandoned the land without having paid for it under the act of 1853, or residing on it for four years under the original act; and the case turns upon the question whether, by the mere filing of the donation notification in 1853, and the subsequent abandonment of the lands, they fall within the category of those which had been "granted, sold, reserved, occupied by homestead settlers, preempted or otherwise disposed of," within the meaning of the act of July 25, 1866, granting lands for the construction of this road. Clearly the lands do not fall literally within either of the above designations, and, unless a claim existing of record to the lands-which claim had in fact been abandoned for fifteen years-operates to prevent the selection of such lands by the railroad company, such company takes a good title to them. That a railway grant does not attach to lands which at the time of the definite location of the land have been sold, preempted, reserved, or otherwise disposed of by the United States for any purpose, has been so often decided by this court as to be no longer open to question. Leavenworth, L. & G. R. Co. v. United States, 92 U. S. 733, 23 L. Ed. 634; Newhall v. Sanger, 92 U. S. 761, 23 L. Ed. 769; Doolan v. Carr, 125 U. S. 618, 31 L. Ed. 844, 8 Sup. Ct. Rep. 1228; United States v. McLaughlin, 127 U. S. 428, 32 L. Ed. 213, 8 Sup. Ct. Rep. 1177; Cameron v. United States, 148 U. S. 301, 37 L. Ed. 459, 13 Sup. Ct. Rep. 595; Carr v. Quigley, 149 U. S. 652, 37 L. Ed. 885, 13 Sup. Ct. Rep. 961. These cases, however, merely apply the language of the statutes to variant cir Oregon & California R. Co. v. United States cumstances. Neither of them turns upon the effect of a claim which has been canceled or abandoned before or after the attachment of the railroad grant, either by the definite location of the line or by the selection of the lands as lieu lands within the indemnity limits. That question was first considered in Kansas P. R. Co. v. Dunmeyer, 113 U. S. 639, 28 L. Ed. 1125, 5 Sup. Ct. Rep. 566, which involved the title to part of an odd-numbered section within the place limits of the Union Pacific Railroad Company's grants of 1862, 1864, and 1866. The facts were that one Miller made a homestead entry upon this section July 20, 1856, which was valid if the land was then public land. The line of definite location was filed September 21, 1866, so that the entry of Miller brought the land within the exception in the grant as land to which the homestead claim attached at the time the line of the road was definitely fixed. It was argued by the company that, although the homestead entry had attached to the land, and Miller had entered upon it within the time prescribed by law, erected a house upon it, and brought his family to live upon it, and made the tract his home until the spring of 1870, yet that he afterwards abandoned his homestead claim, bought the land from the railroad company, and paid for it, and sold the land to Dunmeyer, who had obtained a conveyance from the company. From this it was argued that the exception no longer operated, and the land had reverted to the company. But it was held that, as Miller's claim was an existing one of public record when the railroad map was filed, it was excepted from the land grant, notwithstanding the subsequent abandonment. The case is readily distinguishable from the one under consideration in the fact that Miller had not only entered upon the land, but was in actual possession of it at the time of the definite location of the road, and that he did not abandon his entry until nearly four years after the line of definite location was filed. A case not dissimilar is that of Bardon v. Northern P. R. Co., 145 U. S. 535. 36 L. Ed. 806, 12 Sup. Ct. Rep. 856. That case arose from a land grant to the Northern Pacific Company of July 2, 1864 (13 Stat. at L. 365, chap. 217), under which act the company proceeded to designate the general route of its road, and afterwards to have its line definitely fixed. The date when the line was definitely fixed is not stated in the report, and is not treated as material, but it appears that on September 12, 1855, one Robinson settled upon the land, filed his declaration under the pre-emption laws, but died without filing proof or paying the government for the land. On August 5, 1865, this pre-emption claim was canceled for alleged failure to furnish proof of continuous residence prior to July 30, 1857. It was held that, as it appeared the premises had been taken up on the pre-emption claim of Robinson before the railroad grant took effect, and that the Oregon & California R. Co. v. United States cancelation had not then been made, nor for more than a year afterwards, such cancelation of the pre-emption entry did not restore it to the public domain so as to bring it under the operation of previous legislation which applied to land then public. In the consideration of the present case, we are not embarrassed by either of these adjudications, since in one case the lands were not only actually occupied by the homestead claimant at the time the railroad grant took effect, but in both cases the proof of such occupation was of record in the proper office, and the lands were abandoned in one case, and the certificate canceled in the other after that date, while in this case the land was abandoned fifteen years before the lands were selected by the company, and nothing remained to indicate that the land was reserved, except the donation notification in the office of the surveyor general. Two other cases are more directly in point. In Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 33 L. Ed. 363, 10 Sup. Ct. Rep. 112, 40 Am. & Eng. R. Cas. 426, the grant was made to the railroad July 4, 1866, and the line definitely located March 7, 1867. In May, 1865, one Turner applied, through his attorney, to enter the land in question as a homestead. The affidavit did not state that Turner's family, or any member thereof, was residing on the land, or that there was any improvement thereon, and, as a matter of fact, no member of his family was residing, or ever did reside, on said land, and no improvement was made thereon by anyone. The entry was allowed and stood upon the records of the Land Office uncanceled until September 30, 1872, when the entry was canceled. The land was subsequently, in 1877, entered by Whitney as a homestead and a patent delivered. It was held that the homestead entry of Turner excepted it from the operation of the land grant, notwithstanding the entry was invalid on its face. "So long as it remains a subsisting entry of record, whose legality has been passed upon by the land authorities, and their action remains unreversed, it is such an appropriation of the tract as segregates it from the public domain, and, therefore, precludes it from subsequent grants. In Whitney v. Taylor, 158 U. S. 85, 39 L. Ed. 906, 15 Sup. Ct. Rep. 796, one Jones, in May, 1854, settled upon a quarter section of public land in California, and as soon as the land was surveyed (in 1857) declared his intention to claim it as a pre-emption right, paid the fees required by law, and caused notice of the same to be filed in the proper government record. He occupied the tract until 1859, when he left for England and never returned. The land was found to be within the place limits of the grant to the Central Pacific Railroad Company of 1862. This company filed its map of definite location in 1864, and demanded the section in question. In 1885 the pre-emption entry of Jones was canceled. It was held that, the tract being subject to the claim of Jones Oregon & California R. Co. v. United States at the time when the grant to the railroad company took effect, it was excepted from the operation of that grant, and that after the cancelation of that entry it became part of the public domain, and that such cancelation did not inure to the benefit of the railroad company. The latest case upon the subject, however, is that of Northern P. R. Co. v. De Lacey, 174 U. S. 622, 43 L. Ed. IIII, 19 Sup. Ct. Rep. 791, I Am. & Eng. R. Cas., N. S., 596. In that case the railroad company had filed its map of definite location March 26, 1884. On April 9, 1869, one John Flett filed a declaratory statement of his intention to purchase the land under the pre-emption laws. In the fall of the same year, Flett left the land and did not thereafter reside on the same, although it appears that, in September, 1870, he went to the local land office and told the officers that he had come to prove his claim. He was told that he had lost it, as it had become railroad land. He acquiesced in this statement. In 1887, eighteen years after his original entry, Flett submitted proof in support of his pre-emption claim, founded upon his declaratory statement. A hearing was had in the presence of all the parties, which finally resulted in a decision of the Secretary of the Interior, September 28, 1891, awarding the land in controversy to the railroad company. Flett's declaratory statement was not formally canceled upon the records until December 23, 1891. A suit brought in the circuit court by the railroad company resulted in its favor, but the decree was reversed by the court of appeals, and the case brought here for review. It was contended that at the time, March 26, 1884, when the map of definite location was filed, the declaratory statement of Flett, filed in the local land office in 1869, remained there as a record, and was an assertion of a pre-emption claim, and that, under the case of Whitney v. Taylor, 158 U. S. 85, 39 L. Ed. 906, 15 Sup. Ct. Rep. 796, the land described in that statement was excepted from the grant to the railroad company. The question was presented, whether the proceedings in the case of Flett were of such a character as to prevent the grant to the company from taking effect at the time of filing its map of definite location, March 26, 1884. It was held that, under the 2d section of the act of July 14, 1870 (16 Stat. at L. 279, chap. 272), claimants of pre-emption rights must make proper proof and payment of the lands claimed within eighteen months after the date prescribed for filing their declartory notices shall have expired; that under the act of March 3, 1871 (16 Stat. at L. 601), twelve months in addition to that provided in the first act were given to the claimants to make proof and payment; that, adding the eighteen months given by the first act to the twelve months given by the second act, all claimants of pre-emption rights were given thirty months to make the proper proof and payment for the lands claimed; and that "whether such proof |