This is an action to recover damages for a trespass upon a tract of land claimed by the plaintiff) and for an injunction to restrain the defendant from injuring the said land, and a quartz lode, mining claim, and growing trees thereon. The defendant justifies under the right of way granted to said railroad company by the Act of Congress, passed July 1; 1862. (12 United States Statutes at Large, p. 489.)

It appears from the statement of facts, as agreed to by the parties, that the plaintiffs are in possession of the tract of land described in the complaint, and have thereon the improvements as stated by them; that the land is mineral land, containing mines of gold; that the title in fee simple to the lands is now in the United States, and has continued so to be since the cession of California to the United States by Mexico by the treaty of Guadalupe Hidalgo; that the defendant is duly incorporated under the laws of this State and of the United States, under the name and style stated in the answer, and is *252 entitled to all the rights and privileges conferred on said railroad company by the said Act of Congress and the laws of this State; that said company has duly located the line of the road across the said lands; that the company has not taken or used, and does not intend to take or use, any more of the said lands than are necessary for the construction of said road, and have done no other damage than was necessary in the construction of said railroad.

The Court, upon the hearing, refused to grant the injunction, and rendered judgment dismissing the complaint.

The errors assigned by the appellants are resolvable into two questions:

By section 1 of the Act of Congress above mentioned, “ The Union Pacific Railroad Company ” is organized, and by section 2 it is enacted that “ the right of way through the public lands .be and the same is hereby granted to said company for the construction of said railroad and telegraph line,” to the extent of two hundred feet in width on each side of the railroad where it may pass over the public lands, with a light to take the stone, timber, etc., from the adjacent lands for the construction of said railroad. It is also provided, in section 9 of said Act, that “ the Central Pacific Railroad Company of California, a corporation existing under the laws of the State of California, are hereby authorized to construct a railroad and telegraph line from the Pacific coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of California, upon the same terms and conditions, in all respects, as are contained in this Act for the construction of said railroad and telegraph line first men *253 tionecl.” This section thus grants to the defendants the right of way over the public lands to the same extent as it is granted by section 2 to the Union Pacific Railroad Company.

It is contended by the appellants that the right of way was not granted by Congress to either of said companies over the mineral lands of the United States, but that the grant is confined to other public lands, and in support of that position, they rely upon the words of the proviso of section 3. That section, after making the grant of the alternate sections of the land, with certain reservations therein expressed, contains the proviso “ that all mineral lands shall be excepted from the operation of this Act; but when the same shall contain timber, the timber thereon is hereby granted said company.” But there is no exception in section 2 reserving the mineral lands from the operation of the grant of the right of way over the public lands.

The grand object of the Act is to procure the construction of a railroad and telegraph line from the Pacific coast to the Missouri River, not only as a great public enterprise, but for the direct benefit of the General Government, and for that purpose, and to aid in the construction of those works, the General Government has not only granted the right of way and the alternate sections of land, but has loaned its credit in a large amount to the companies engaging in the construction of those works.

.It will be observed that it is provided by section 6 that these several grants of land, credit, and the right of way, are made upon the express condition that the company receiving the grants shall perform certain services for the General Government, and shall give the preference in the use of the railroad and telegraph line to the Government. The intention of the Government that the Missouri and the Pacific should he united by a continuous railroad and telegraph line is manifest from the whole tenor and spirit of the Act.

But, if the construction of the proviso of section 3, contended for by the appellants, could be maintained, it would be practically impossible to construct the railroad or telegraph *254 line under said Act while the present policy of Congress prevails of reserving the mineral lands from sale, for it would be manifestly impossible to run the line of the railroad or telegraph across the Sierra Nevada Mountains, by any route, without passing over public mineral lands.

The company cannot procure the right of way from the appellants, for the obvious reason that they have no title that is sufficient to enable them to make any grant.

The result that would ensue if the proposition contended for by the appellants could be maintained, would be that the company would be obliged to delay at the foot of the mountains until Congress shall change its policy, and bring the mineral lands into market, and until the lands shall have been sold by Congress, and the right of way shall have been procured by the railroad company from the purchaser.

Such a result is clearly in conflict with the meaning and intent of the Act as would practically defeat its operation, so far as California and Nevada are concerned.

But, in our opinion, that construction of the proviso is not warranted in view of the obvious meaning of the section and the plain intention of the whole Act. The first portion of the section sets forth the grant of the alternate sections, without any mention of or reference to the right of way, and immediately following that portion of the proviso above quoted, the section states that “ all such lands so granted by this section, which shall not be sold or disposed of by said company within three years after the entire road shall have been completed, shall be subject to settlement and pre-emption like other lands, at a price not exceeding one dollar and twenty-five cents per acre, to be paid to said company.” This is substantially a condition annexed to the grant of the lands to the company that the company shall grant the right of pre-emption to its unsold lands, after the expiration of a time limited in the Act. Congress does not purport by the Act to grant to the company the lands over which the right of way is granted, and it would be contrary to all reason to presume that Congress intended *255 to direct or authorize the company to extend the right of preemption to lands not granted to it.

It was, perhaps, necessary in framing the proviso to employ the term “this Act,” instead of the words “this section,” inasmuch as by the ninth section, two other companies are authorized to construct railroads and telegraph lines “upon the same terms and conditions in all respects ” as are contained in the Act for the construction of the railroad and telegraph line by the Union Pacific Railroad Company. Upon the construction of the whole section, in connection with the plain meaning of the Act, it is apparent that the proviso has relation only to the alternate sections granted, and not to the lands over which the road might pass under the grant of the right of way.

2. Have the appellants such right, title, or interest in the lands in controversy as will entitle them to the relief sought in this case ?

It is admitted that the title in fee simple to the lands is in the General Government, That fact being established, the legal presumption arises that the General Government is entitled to the possession, as well as the whole beneficial interest, and that the grantee of the Government takes and holds whatever interest therein the Government purports to grant, subject to no conditions other than those expressed in the grant. The fact as admitted, and the consequent conclusions of law as to the right to the possession, casts upon the appellants the burden of overcoming the presumption and proving that they are entitled to the possession, or hold some other right, title, or interest in the land, derived under or through the United States.

In the complaint, the plaintiffs allege that they are, and have been since 1859, the owners in fee and in the actual possession of the premises, but they set up no other right in the land. The allegation of the ownership of the plaintiffs is denied in the answer. It does not appear from the agreed statement of facts, or the findings of the Court, that the plaintiffs have any right in the land, but simply that they have the present possession.

*256 The mere statement of these facts affords a complete answer to the question as to whether the plaintiffs are entitled to the relief they have prayed for in the complaint.

But in order to obviate the apparently inevitable conclusion resulting from these facts, that the appellants do not hold any right in the lands that will enable them to prevent the defendants from entering, in pursuance of. the grant of the right of way, or that will entitle them to recover damages for the entry, the appellants say that the Court found that the lands in controversy were public mineral lands of the United States, and they earnestly urge that, by the policy of the United States and this State—by the tacit consent of the United States, and the hearty encouragement of this State, and by the clear license of both Governments, all citizens are encouraged and permitted to enter upon the public lands of the United States, and occupy them for agricultural and mining purposes; and that when they have entered into possession for these .purposes, they, by means of such entry, or by some mode not very fully expressed or accurately defined, acquire and “have such a title as will hardly be divested, even by the act of the superior proprietor.”

Does the mere occupant of the public lands hold this undefined title of such a character that he can maintain the possession as against the United States or their grantee ? It is scarcely necessary to say that the policy, the encouragement, the license, or even the grant of this State, cannot confer upon any person any right in the lands of the United States. The General Government does not hold its lands as a mere private proprietor, but its control and power of alienation and disposition of its lands are uncontrolled, save by the Constitution of the United States alone. By the Act admitting California into the Union, it is provided that “the people of said State, through their Legislature, or otherwise, shall never interfere with- the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to and right to dispose of the same shall be impaired or questioned.”

*257 The claim asserted by the appellants on behalf of the State, of the power to grant or license to occupy the public lands of the United'States, is scarcely consistent with the Act of Congress for the admission of California into the Union, if it is meant thereby that the license is valid for any purpose, as against the United States or any one entering or holding under a right, title, or license granted by the General Government. The doctrine laid down in Hicks v. Bell, 3 Cal. 227 , and partially affirmed in a few of the earlier cases in the late Supreme Court—that the mines of gold and silver in the public lands are the property of the State—is without foundation.

The occupation of the public lands, under the policy of the United States respecting their settlement, and with their tacit consent, it cannot be contended will give a right of possession as against the United States or their grantee; but there must be some right of a higher order conferred upon the occupant— at least a title to occupancy must be shown.

The only manner in which the right, title, or interest of the United States in or to any of the public lands can pass to or rest in any private person is by means of an Act of Congress directly making the grant, or authorizing the grant in their behalf to be made by some person or officer. No title will accrue to any person against the General Government by prescription, by adverse possession, or by estoppel in pais.

No presumption of a grant will arise as against the United States, but the legislative grants, or the letters patent, or something that is made by law their equivalent, must be produced. This view of the position of the naked possessor of the public lands does not conflict with the current of the decisions of this Court recognizing and affirming his right to be protected in his possession against trespass or intrusion, for he is deemed in law the owner as against all the world, until the General Government, or a person showing legal right or title under it, makes entry upon the lands; but his right or claim must yield to the paramount authority of the United States, or the demands of the grantee.

But it is said by the appellants that the questions discussed *258 in this case have been decided in favor of the occupant in California Northern Railroad Company v. Gould, 21 Cal. 254 . In that case the premises did not appear to be mineral lands, and Mr. Justice Norton, in delivering the opinion of the Court, after stating that the Grovernment “ may give him (the occupant) a pre-emption privilege,” says : “ There is scarce a doubt but this defendant will ultimately become the owner of one hundred and sixty acres of land he occupies, with all the improvements, upon paying the Grovernment price of the unimproved land.” In the present case the premises are mineral lands, and, under the laws of Congress, (10 U. S. Statutes at Large, p. 246, Sec. 6,) are not subject to preemption. In that case it was not found by the Court below that the lands were public lands. If they were public lands, and the ocCTipant had acquired such rights therein that Congress would be bound to respect his possession, the railroad company could not acquire the right of way without making “just compensation” therefor; but if such rights had not accrued to the occupant in that casé, and if the Act of Congress referred to in that case, (10 U. S. Stats. at Large, p. 28,) did, in effect, grant the right of way over the public lands to the railroad company, then the decision in that case cannot be sustained without impairing the right of the United States to dispose of their public lands; and in that view the decision is not sustained by the case cited, in the opinion of the Court— (Robbins v. Milwaukee and Horicon R. R. Co., 6 Wis. 636 )— for in the case cited the lands were not found to be public lands, nor did the railroad company claim a grant by Congress of the right of way; but the action was an appeal by a person in possession of a tract of land from the award of damages made by Commissioners for the value of his land taken by the company for the use of their railroad. The proceedings were commenced under the statutes of the State providing for railroad companies taking the lands of private persons for the use of the railroad, upon their making compensation and paying damages ; the land so taken being deemed to be taken for public use. The Court held that “to enable the plaintiff to *259 recover lie must show some title. * * * There can be no presumption of title in a proceeding of this kind; it must be shown, and compensation awarded accordingly.” The claimant was in possession, no title being found in the United States, and he was entitled to damages for the injury to his possession.

Proceedings under the statute of this State to procure the right of way over the premises in this case are useless, and would be nugatory if Congress had the power to make the grant of the right of way, for if Congress had the entire title, the grant is complete without the intervention or aid of any person or authority whatsoever. If the theory and arguments of the appellant are correct and sound, the company, in order to acquire the right of way over mineral lands now unoccupied, would be obliged to procure some one to enter into possession of each several parcel, for the simple purpose of buying from them the right of way, and after that had been done, the company would be trespassers against the United States.

A construction of the powers of Congress in making grants, and of the meaning of the Pacific Railroad Act, that will lead to such absurd consequences, should not be adopted unless it is clear and imperative.

In our judgment, the grant by Congress of the right of way over any portion of public land to which the United States have title, and to which private rights have not attached under the laws of Congress, vests in the grantee the full and complete right of entry for the purpose of enjoying the right granted, and no person claiming in his own right any interest in the lands can prevent the grantee from entering, in pursuance of his grant, or can recover damages that may necessarily be occasioned by such entry.

The judgment is affirmed.