The contest in this case is between one claiming under a homestead entry and a company claiming under a grant in aid of a railroad. It was long ago said by this court that 'the policy of the Federal government in favor of settlers upon public lands has been liberal. It recognizes their superior equity to become the purchasers of a limited extent of land, comprehending their improvements, over that of any other person' (Clements v. Warner, 24 How. 394, 397, 16 L. ed. 695, 696), and in a later case, that 'the law deals tenderly with one who, in good faith, goes upon the public lands with a view of making a home thereon.' Ard v. Brandon, 156 U. S. 537, 543, 39 L. ed. 524, 526, 15 Sup. Ct. Rep. 406.

There is no real hardship in enforcing this rule, for if the individual seeking to maintain his homestead entry fails by reason of any defect he has no recourse on the government for the fees he has paid or for any compensation for the time and labor he has expended, while, on the other hand, the general provision of railroad land grants is to the effect that if the title to any tract within the place limits fails the company may reimburse itself by a selection within the indemnity limits. It is not therefore strange that the rulings of the land department, as well as of the courts, have been uniformly favorable to the individual contesting with a railroad company the right to a particular tract of land.

Yet this would never justify an ignoring of the clear rights of the company, for the purpose of Congress in the grant must be recognized and made effective in every case to which the grant applies.

On October 5, 1868, and prior to the filing of the map of general route, there was, as appears from the agreed statement, a pre-emption declaratory statement made by William M. Scott. In 1869 he settled upon the tract, built a house, and resided in it, but in the fall of that year abandoned the land, moved to Helena, and never returned. On October 14, 1872, he filed an amended pre-emption declaratory statement wholly excluding the land in controversy and substituting other land. Whatever right Scott may have acquired by his original declaratory statement was clearly lost by his amended declaratory statement. Indeed, it had undoubtedly lapsed long before. Northern P. R. Co. v. De Lacey, 174 U. S. 622, 43 L. ed. 1111, 19 Sup. Ct. Rep. 791.

We need, therefore, only concern ourselves with the action of McLean. He did not make his homestead entry prior to the filing of the map of general route, but did before notice thereof was received in the local land office, and it is not disputed by counsel for the railroad company that if he had perfected that entry the act of 1876 would have operated to confirm his title. But the contention is that the act only applies when, as it reads, 'the pre-emption and homestead laws have been complied with, and proper proofs thereof have been made by the parties holding such tracts or parcels;' and it is urged that, as the agreed statement shows that McLean abandoned the land in 1873, and thereafter never complied with the requirements of the homestead law, he was not in a condition to claim any right to the land, because under the law in force at the time he made his original entry the land was not subject to entry (Buttz v. Northern P. R. Co. 119 U. S. 55-72, 30 L. ed. 330, 336, 7 Sup. Ct. Rep. 100), and he could claim nothing under the act of 1876, because he did not comply with the homestead laws or file proper proofs of any compliance therewith. In other words, it is said that the land was not subject to homestead entry when he entered it, and that his entry was not made valid by the act of 1876; and therefore that the act of 1880 has no application to this case.

The writer of this opinion is much impressed with the force of these contentions, but a majority of the court hold that they give too much force to the letter of the statutes, and do not carry out their real spirit. They are of opinion that the effect of the act of 1876 was to validate all otherwise regular pre-emption and homestead entries made prior to the time when the notice of the withdrawal was received at the local land office, although such entries were made after the time when the map of general route was filed in the office of the Secretary of the Interior and the order of withdrawal made; that the withdrawal authorized by the 6th section of the act making the land grant to the Northern Pacific Railway Company (13 Stat. at L. 365, 369, chap. 217) did not vest in the company any title to the lands within the withdrawal limits, but only operated by legislative declaration and subsequent executive action to withdraw those lands from homestead or pre-emption entries; that the right of the railroad company to any tract only became vested when the line of definite location was filed, and that up to that time Congress had full power to order a cancelation of the withdrawal or to make any disposition of lands within those limits which it saw fit; and that this act of 1876, rightfully construed and in accordance with the spirit of congressional dealings with individual homesteaders and pre-emptors, is to be taken as a legislative enactment that no entry was to be considered invalidated by reason of the filing of the map of general route if it was made before notice of the withdrawal was received at the local land office. If this be the true construction of this act, then McLean had all the rights which attached to a valid entry, and might have proceeded under the act of 1880 to make the purchase thereby authorized.

Before, however, the act of 1880 was passed his entry had been canceled by reason of a failure to comply with the requirements of the homestead law in occupation, proofs, and payment of the final fees. Indeed, he could not have made the proofs because he had abandoned the land. But the act of 1880 was passed before the railroad was definitely located adjacent to this land, and it was the opinion of the circuit court of appeals, which is approved by a majority of this court, that its effect was to except the tract from the grant to the Northern Pacific. That grant was of land to which 'the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is definitely fixed.' Counsel for the railroad company contend that this right of McLean to purchase this tract was no other or different than the right of any duly qualified citizen of the United States to purchase any tract of public lands, and that as this right had not been exercised at the time the line of definite location was fixed, it could not be said that at that time any right had attached. But we think it is not a true construction of the land laws that a specified right given to a limited class to take by purchase particular tracts is in any just sense the equivalent of the general right of all citizens to purchase public lands. It is not a strained, but a reasonable, construction to hold that Congress by this act of 1880 'appropriated' these particular tracts, thus covered by homestead entries, even of an outlawed class, for the benefit of those homestearders, and that they were no longer to be counted among the public lands of the United States subjuct to the grant to the railroad company.

One other question is presented by counsel for plaintiff in error. The right given by the act of 1880 is to the entrymen and persons to whom their rights have been transferred by 'bona fide instruments in writing.' It is contended that a widow cannot avail herself of the benefit of that statute because she does not take by any bona fide instrument in writing.

It is true that the application to the land office upon which the patent was issued was based upon her right as widow, and it may be questionable whether a widow is within the scope of that act; but the agreed statement of facts shows that McLean by will devised this tract to her, and that the will was duly probated; so that she held a right, not simply as widow, but as devisee, taking under a bona fide instrument in writing, and it certainly cannot operate to defeat her right under that instrument that the land department recognized her right as widow.

For these reasons the judgment of the Circuit Court of Appeals is affirmed.