by John Marshall Harlan

“ In determining this question, the words in the act of 1862, 'not sold, reserved or otherwise disposed of by the United States * * * at the time the line of said road is definitely fixed,' must be taken in connection with the words in the amendatory act of July 25, 1864, 'shall not defeat or impair any * * * other lawful claim.' Construing those acts together, it is clear that no lands were embraced by the grant to which any 'lawful claim' had attached at the time the line of railroad was definitely fixed, on the 20th day of February, 1870. ”

“ No exception is made of lands which at the date of the passage of the act were withdrawn from pre-emption, private entry, and sale, pursuant to the filing by the railroad company of its map of general route. And the court should not construe the act as excluding lands in that condition, unless it is prepared to hold that congress had no power to confirm to the state lands which at the time were simply withdrawn from pre-emption, private entry, or sale, for railroad purposes. We cannot so adjudge. ”

“ By another section (section 5) it is provided: 'Whenever a settlement is or has been made by occupation or improvement upon any portion of a sixteenth or thirty-sixth section of any of the public lands in this state, the locating agent of the district in which such land is situated shall, if such occupant has not acquired a pre-emption right to such land, notify such occupant or claimant of the fact that he is upon lands belonging to the state, and that he must make application to purchase the same of the state within sixty days, or forfeit all rights to the lands. ”