Field, C. J. and Cope, J. concurring.

The complaint in this action sets forth that the plaintiff has taken the requisite steps to acquire the right of way for its road over certain premises therein described under the Act of Congress of August, 1852, which gives such right over the public lands; that the premises are public lands, unsurveyed and not held for public use by erections or improvements thereon, and that by virtue of said Act of Congress the United States have granted to the plaintiff the use of said premises for the track of its railroad; that the defendant is in the actual possession of the premises, and refuses to permit the plaintiff to construct its road over said premises, and insists that the plaintiff has no right so to do. The complaint, therefore, asks for a judgment that the plaintiff is entitled to such right of way, and that the defendant has no right, interest, or estate in the premises, and that he be enjoined from preventing or interfering with the construction of the plaintiff’s road.

The answer of the defendant denies that the premises are public lands of the United States, and claims title to them derived from the United States. It also sets forth that the plaintiff had heretofore instituted proceedings under the Railroad Act of this State against the defendant to acquire title to the same premises for the use of its road, and that the sum of $1,086 74 had been awarded to him as compensation, which the plaintiff refused to pay.

The replication denies the title claimed by the defendant.

The Court below, without finding directly whether the premises were public or private lands, decided that the defendant could not be deprived of his right of property, resulting from his possession, *260 without compensation, to he ascertained as provided by the Railroad Act of this State. It also held, that the plaintiff was estopped by its former proceedings from resorting to this action.

Assuming that the allegations of the complaint are true, and this appears to be the basis upon which the conclusions of the Court below are placed, the proceedings taken by the plaintiff under the Act of Congress had the effect to invest it with the right to enter upon the public lands of the United States, certainly so far as to relieve it from the character of intruder or trespasser, and to shield it from any claim for damages on the part of the United States, and to protect it in the enjoyment of the use of the premises and any improvements it might place thereon, against any person thereafter claiming under the United States. But the Act of Congress does not, in terms, grant any other estate or right which pertains to the United States as proprietor of the public lands. It was, doubtless, the purpose of the act merely to give a right to enter upon the public lands, assuming them to be vacant, and its effect is to relinquish to the plaintiff any claim for compensation that might belong to the United States as proprietor under any proceeding under the State law to appropriate the land for public use. But does this confer upon the plaintiff the right to enter upon premises in the actual occupancy of a settler without compensating him for the damage done to his possession ? The United States, upon ejecting such an occupant, might not be under any obligation to pay for his improvements, but they may give to him a preemption privilege, and this is in consonance with the policy heretofore pursued by the General Government toward settlers upon the public lands. There is scarce a doubt but this defendant will ultimately become the owner of an hundred and sixty acres of the land he occupies, with all the improvements, upon paying the Government price of the unimproved land. Our own State laws protect settlers upon the public lands under certain conditions, although the State has no power to give a right of occupancy in the character of proprietor. In view of this policy of the United States and of our own State in regard to the public lands, such settlers cannot consistently be treated by our Courts as naked wrong-doers, having no equitable rights in their improvements as *261 against persons claiming a simple privilege, like that conferred upon the plaintiff by the Act of Congress. In the case of Robbins v. The Milwaukee & Horican Railroad Co., (6 Wisconsin, 636) where lands were taken apparently under a Railroad Act similar to that of this State, the plaintiff was allowed to recover for damage done to his rights as a mere occupant, although expressly refused compensation for the land, because he had shown no other title or right than that of bare occupancy. We think the plaintiff cannot ask the aid of the equitable powers of the Court to enable him to acquire the defendant’s actual possession, under these circumstances, without compensating him for the damages which he will sustain.

The judgment is, therefore, affirmed.