ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.
MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.
Plaintiff claimed the premises in question as a part of its right of way, under and by virtue of the act of Congress approved July 26, 1866, entitled "An act granting lands to the State of Kansas to aid in the construction of a Southern branch of the Union Pacific Rail way and Telegraph, from Fort Riley, Kansas, to Fort Smith, Arkansas." 14 Stat. 289, c. 270.
By this act five alternate sections of land per mile on each side of the road were granted to the State of Kansas for the use and benefit of the railroad company, and in case it appeared that the United States had "when the line of said road is definitely located, sold any section, or any part thereof, granted as aforesaid, or that the right of preemption or homestead settlement has attached to the same, or that the same has been reserved by the United States for any purposes whatever," then other lands might be selected in lieu thereof: "Provided, That any and all lands heretofore reserved to the United States by any act of Congress, or in any other manner
by competent authority, for the purpose of aiding in any object of internal improvement or other purpose whatever, be, and the same are hereby, reserved and excepted from the operation of this act, except so far as it may be found necessary to locate the route of said road through such reserved lands, in which case the right of way, two hundred feet in width, is hereby granted, subject to the approval of the President of the United States."
The fourth section read: "That as soon as said company shall file with the Secretary of the Interior maps of its line, designating the route thereof, it shall be the duty of said Secretary to withdraw from the market the lands granted by this act, in such manner as may be best calculated to effect the purposes of this act and subserve the public interest."
By the sixth section it was provided: "That the right of way through the public lands be, and the same is hereby, granted to said Pacific Railroad Company, Southern branch, its successors and assigns, for the construction of a railroad as proposed: . . . Said way is granted to said railroad to the extent of one hundred feet in width on each side of said road where it may pass through the public domain; also all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turn-tables and water stations."
The land in question was a part of the land ceded to the United States by the Great and Little Osage Indians by the treaty proclaimed January 21, 1867, 14 Stat. 687.
From the statement of facts it appears that prior to December 24, 1867, a line was surveyed for the route of the railroad by the chief engineer of the company, which was the line from which the granted lands were withdrawn from market, but that line did not touch the quarter section embracing the land described in the petition. The precise date of the filing of the map and profile of this survey does not appear, but this is not material.
In the instances of many of the land grants, the acts contemplated a preliminary designation of the general route by map filed in the Department of the Interior, upon which the
lands were withdrawn, but the grants only took effect on a subsequent designation of the definited location of the line of the road. Kansas and Pacific Railroad v. Dunmeyer, 113 U.S. 629; United States v. Southern Pacific Railroad, 146 U.S. 570. But this grant made no provision for any preliminary surveys and maps, and the only map provided for was that mentioned in section four, being, as stated, a map of "its line designating the route thereof." We think that by the filing of the map of the line surveyed the route was definitely fixed, within the intent and meaning of the act, and while the principal object in filing the map was to secure the withdrawal of the lands granted, it ...