by John Marshall Harlan

“ That any settler who has settled, or who shall hereafter settle, on any of the public lands of the United States, whether surveyed or unsurveyed, with the intention of claiming the same under the homestead laws, shall be allowed the same time to file his homestead application and perfect his original entry in the United States Land Office as is now allowed to settlers under the pre-emption laws to put their claims on record, and his right shall relate back to the date of settlement, the same as if he settled under the pre-emption laws.' 21 Stat. ”

“ It is, as we have seen, a fixed principle in the law relating to the administration of the public lands that a railroad grant is a mere float until definite location, and that prior to that date all lands, within the exterior limits of a general route, are entirely at the disposal of the government, to be appropriated as it desires. ”

“ True, the Indian had put no claim of record for the land, but it is well settled by departmental rulings that while such omission might defeat the claim as against a subsequent settler who duly places his claim of record, it will not defeat such claim as against the United States, and the land covered thereby will be excepted from the operation of any grant for the benefit of a railroad company attaching subsequently to the inception of the settlement right. ”

“ Congress, of course, knew that if immigrants accepted the invitation of the government to establish homes upon the unsurveyed public lands, they would do so in the belief that the lands would be surveyed, that their occupancy would be respected, and that they would be given an opportunity to perfect their titles in accordance with the homestead laws. ”

“ We agree with that court fully in its discussion of the general principles involved in the failure of the government to provide a local land office. The right of one who has actually occupied, with an intent to make a homestead or pre-emption entry, cannot be defeated by the mere lack of a place in which to make a record of his intent. ”

“ The object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted.' But it is evident, in view of both prior and subsequent decisions, that this language is not to be taken literally or apart from the other portions of the opinions of the eminent jurist who delivered the judgment of the court. ”

“ It is placed on impregnable ground by the act of May 14th, 1880, chap. 89, entitled, 'An Act for the Relief of Settlers on Public Lands,' and which was in force when, in 1881, Lelson settled upon the land in dispute. The act is as follows: '1. That when a pre-emption homestead, or timber-culture claimant shall file a written relinquishment of his claim in the local land office the land covered by such claim shall be held as open to settlement and entry without further action on the part of the Commissioner of the General Land Office. ”