The Northern Pacific Railroad Company, the defendant in error here, brought this action in the court below to recover from the defendant there, plaintiff in error here, the possession of the S. W. £ of the N. W. -j, the S. E. of the N. W. i, and the E. \ of the S. W. I, of section 21, township 20 N., range 3 E., of Willamette Meridian, situated in the state of Washington, for which that company holds a patent issued by the government of the United States in confirmation of title supposed to have been donferred upon it by the act of congress of July 2, 1864 ( 13 Stat. 365 ). By that act, the Northern Pacific Railroad Company was incorporated, with authority to construct and to maintain a continuous railroad and telegraph line — ■

—And granting to the company, in aid thereof, every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections of land per mile on each side of its line, as the company should adopt through the territories of the United States, and 10 alternate sections per mile where the road passes through any state—

The sixth section of the act provided that:

On the 31st day of May, 1870, congress passed a joint resolution, by which, among other things, the Northern Pacific Railroad Company was authorized—

By this resolution, as said by Mr. Secretary Lamar, in Railroad Co. v. McRae, 6 Land Dec. Dep. Int. 400—

In the case of U. S. v. Northern Pac. R. Co., 152 U. S. 284 , 14 Sup. Ct. 598, it was held, among other things, that by the act of July 2, 1864, no land was granted to the Northern Pacific Railroad Company to aid the construction of any line of road between Portland and Puget Sound, and that no public land disposed of by the government after the passage of the act of July 2, 1864, was intended to be embraced in the grant made by the joint resolution of May 31, 1870. The land in controversy lies within the primary limits both of the grant of the main line of the railroad as definitely located, between Portland and Puget Sound, and the line of the Cascade Branch, as definitely located, between the point where it leaves the main line and crosses the Cascade Mountains to Puget Sound. By the resolution of May 31, 1870, lands were granted to the Northern Pacific Railroad Company, to aid the construction of that portion of the road between Portland and Puget Sound. It is undisputed that, at the time of the passage of that resolution, there was upon file, in the local land ofiice of the district where the land in controversy is situated, a. valid and subsisting pre-emption claim by one John Flett, which claim operated to except the land from that grant to the railroad company. The question in the case is whether it was also excepted from the grant contained in the act of July 2, 1864, in aid of the line across the •Cascade Mountains, then called the “main line,” and subsequently .made, as has been said, by the. joint resolution of May 31, 1870, .the “branch line.”

*729 It appears from the findings of fact filed by the court below that on April 9, 1869, Flett filed Ms declaratory statement of his intention to purchase the land in question under the laws of the United States authorizing the pre-emption of unoffered lands, but that whether or not he was then qualified to enter the land under the pre-emption laws was not made to appear at the trial; ■that in the fall of 1869 he left the land in question, and did not thereafter reside thereon, “although it is recited in the decision of the secretary of the interior, in a contest between the railroad company, De Lacey, Flett, et al., before the interior department, involving the land here in controversy, that in September, 1870, Flett went to the local land office, and told the officers that he had come to prove up on his claim; that they told him it was railroad land, and that he had lost it; that Flett did not then actually offer to make proof, but acquiesced in the advice of the local office that he was not entitled to make proof under his filing”; and that on September 7, 1887, Flett “submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869.” It was also found as a fact by the court below that De Lacey settled upon the land in controversy in April, 1886; that on April 5, 1886, he applied to make homestead entry thereof; that his application was rejected, “for the reason that the land fell within the limits of the grant to the railroad company on both main and branch lines”; that, from this decision of the register and receiver, De Lacey appealed to the commissioner of the general land office; that afterwards, under the instructions of the commissioner, a hearing was had, at which the railroad company, De Lacey, Flett, and one John Algyr, who, it appears, had also sought to file a declaratory statement for the land, were present; that on July 27, 1889, the receiver of the local land office found that Flett had not voluntarily abandoned the land in 1869, and that his entry should be reinstated; that, from this finding, all of the parties named, except Flett, appealed to the commissioner of the general land office, and that, on December 5, 1889, the commissioner sustained the finding of the receiver; that thereafter the adverse parties to the contest appealed to the secretary of the interior, — and that on September 28, 1891, the secretary of the interior reversed the ruling of the commissioner of the general land office, and awarded the land in controversy to the railroad company, in pursuance of which ruling the patent was, on December 13, 1892, issued to the company; that Flett’s declaratory statement “was not formally canceled upon the records until December 23, 1891.”

It appears from the bill of exceptions that Flett, at the time of filing his declaratory statement, paid to the receiver of the local land office the statutory fee of three dollars therefor, upon which the register of the land office issued and delivered to him his certificate; that on July 15, 1887, Flett gave notice of his intention to make final proof to establish his claim to the land, notice of which was duly published by the register of the land office. In the contest that there arose between Flett, De Lacey, *730 Algyr, and the railroad company, testimony was taken, which was reviewed by the local officers, and, in turn, by the commissioner of the general land office’ and the secretary of the interior. The officers of the. local land office, in holding that Plett was entitled to make final proof of his right to pre-empt the land, said that it appeared from the testimony that Plett, in 1869,—

These views of the local office were, as has been said, approved by the commissioner of the general land office, but were overruled by the secretary of the interior, who said, among other things:

*731 The secretary proceeded to hold that that presumption was not rebutted by any proof, and accordingly awarded the land to the railroad company.

It is not for us to determine in. this case whether Flett or either of the other individuals claiming the disputed land was legally entitled thereto, but the question is whether the land was covered by the grant to the Northern Pacific Railroad Company of July 2, 1864. If it was excepted from that grant, the officers of the land department were without authority to issue a patent therefor to that company. Steel v. Refining Co., 106 U. S. 447 -452, 1 Sup. Ct. 389; Smelting Co. v. Kemp, 104 U. S. 686, 641 .

It appears from the findings that the map showing the definite location of the line across the Cascade Mountains, was filed in the office of the commissioner of the general land office March 26, 1884. The case therefore turns upon the question whether at that time the land in controversy was public land, and therefore passed under the grant of July 2, 1864, to the company, or was excepted therefrom by reason of the declaratory statement of Flett filed April 9, 1869, 'and the proceedings thereunder. The court below held that the pre-emption claim of Flett had been extinguished by abandonment at the time of the definite location of the Cascade Branch, and did not then exist, saying, in its opinion:

The fact tliat the claim of the defendant to the land in controversy is based upon the alleged fact of the abandonment by Flett of his pre-emption claim is, we think, a false quantity, for, the action being ejectment, the question is not whether the defendant thereto has title, but whether the plaintiff has; and, if the record shows that the condition of the land was such at the timé of the- *732 definite location of the line of the road that it was excepted from the grant to the railroad company, it must necessarily result that the plaintiff has no title, regardless of who may have.

■ As has been seen, there was excepted from the grant to the Northern Pacific Company, among others, all lands to which there was a pre-emption claim or right at the time of the definite location of the road. This filing of the map of definite location, said the supreme court, in Railway Co. v. Dunmeyer, 113 U. S. 629 -644, 5 Sup. Ct. 566, established the criterion by which the lands to which the road had a right were to be determined. It also, said the court, furnished—

• When, on March 26, 1884, the map of the definite location of the Cascade Branch of the Northern Pacific Railroad Company was filed in the office of the commissioner of the general land office, the records of the land office showed, then existing and uncanceled, a declaratory statement filed by Flett for the land in controversy, for which filing he had paid, and for which he had the certificate of the local land office. The filing of such a statement was, as held by the supreme court in Whitney v. Taylor, 158 U. S. 85 -94, 15 Sup. Ct. 796, “in the strictest sense of the term, the assertion of a pre-emption claim; and, when filed and noted, it was officially recognized as such.” The record shows that it so remained, not only at the time of the filing of the map of the definite location *733 of the plaintiffs road, along which the land in controversy is situated, but until December 23, 1891. Is not the condition of the records of the land department, at the time the railroad grant becomes effective, in respect to the land embraced within its limits, to determine the question as to whether the particular land in controversy passed or was excepted from the grant to the company? If not, what becomes of the declarations made by the supreme court in the Dunmeyer Case, above quoted? To permit, for the purpose of a solution of that question, an inquiry into the merits of the pre-emp tor’s claim, is wholly inadmissible, for the reasons there stated. It is not the validity of the claim, but the fact that it existed at the time of the definite location of the plaintiffs road, that excluded the land in controversy from the category of “public lands,” to which alone the company’s grant attached. Doolan v. Carr, 125 U. S. 618 -638, 8 Sup. Ct. 1228; Whitney v. Taylor, supra.

In the case of Amacker v. Railroad Co., 7 C. C. A. 518 , 58 Fed. 850 (referred to by the court below in support of its conclusion), it appeared from the records of the land office themselves that, at the time of the definite location of the road, the pre-emption claim that was relied upon to defeat the company’s grant was not existing, for the pre-emption claimant, Scott, had theretofore “voluntarily filed in the land office his amended pre-emption claim, wholly excluding therefrom the land in controversy, and fixing his pre-emption entiy upon other land.” 7 C. C. A. 518 , 58 Fed. 852 . It is true that it is recited in the opinion of the secretary of the interior, above quoted, that on February 20, 1874, Flett entered as a homestead another piece of government land, and that on June 9, 1880, he made proof and received a certificate therefor; but it is also true that when, in September, 1870, he went to the local land office for the purpose of making proof of his right to pre-empt the land in controversy, he was denied that right, upon the ground that the railroad company was entitled to the land, and that, he had lost it. That the company had not then acquired any right whatever to the land in question has already been shown, and that Flett was then legally and justly entitled to make, if he could, proof of the facts necessary to entitle him to purchase the land under the pre-emption law's, is equally clear. The error of the officers of the local land office in denying him that right is palpable. And such was the view of the subsequent officers of that office, when, in September, 1887, Flett “submitted proof in support of his pre-emption claim, founded upon his declaratory statement filed April 9, 1869,” which was allowed by them, and after-wards, on appeal, by the commissioner of the general land office. Its subsequent rejection by the secretary of the interior, upon the ground, in part, that Flett had, in 1874-, entered as a homestead another piece of public land, in respect to which he was allowed to make the appropriate proof, and for which he received a certificate, only emphasizes the fact that land in respect to which such a contest was being waged, to make good a claim of record and uncanceled at the time of the filing of the map of the definite location of the plaintiffs road, was not then “public land,” to *734 which the grant to the railroad company attached. It might he difficult to maintain that a pre-emptor who goes to the local land office for the purpose of making proof in support of his claim, and is denied by the officers that right, upon the ground that the land is within a grant to a railroad company, and that he has lost it, can be properly held to have voluntarily abandoned his claim, even though, under such circumstances, he afterwards enters as a homestead another tract; but we think it unnecessary to determine whether Flett intended to abandon his pre-emption claim, or whether he abandoned and forfeited it by entering, in September, 1874, as a homestead, another piece of public land. The controlling fact is that at the time of the. definite location of the plaintiff’s road, opposite which the land in controversy is situated, there was on the record of the local land office Flett’s declaratory statement, which had not been altered, amended, canceled, or set aside; and that fact operated to except the land in respect to which the claim existed from the grant to the railroad company.

The principle applicable to the case is thus summed up by the supreme court in the case of Whitney v. Taylor, supra:

'''•Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.