A motion is made to dismiss for lack of a federal question. The contention is that the defendant disclosed in its answer a decision of the land department; that it is bound by its own pleadings; and that, having pleaded this decision of the land department, that decision is final and conclusive until set aside in a direct proceeding instituted for that purpose. This motion must be overruled. The answer of the company alleged the congressional land grant, and the facts and circumstances which under that grant created, as claimed, a title in it to the land. It is true, it also set up certain proceedings in the land department, but that was by way of answer to the allegations in the complaint of a decision by that department claimed by the plaintiff to be controlling, and disclosed in detail the facts upon which that decision was based, and the terms of the decision itself, in order to show that such decision was ineffective to disturb the title which it took by virtue of the land grant and the proceedings had thereunder. If the company had relied upon this decision as its defense against the action, and the court had decided in favor of its validity, a different conclusion might be reached. The judgment of the supreme court of the state was adverse to the claim of title made by the company. It denied to it the right which it asserted under the act of congress, and a federal question is therefore presented.
On the merits of the case, it may be observed that the burden of the decision of the supreme court of the state is that because the land department had decided adversely to the claim of the railroad company, and because no direct proceedings had been had to set aside that decision, it was conclusive against the company. In this, we think, the learned court erred. The facts set up in the answer in reference to the land grant, the filing of the map of the line of general route, and also that of definite location, the situation of the land, and its freedom from record claims, were such as to prima facie vest a title in the company. It is true, it is also disclosed by the answer that one Kelley was in occupation, or, at least, cultivating the land, at the time of the filing of the map of definite location, and the decision of the land department as to that fact undoubtedly concludes both parties. And if it be true, as matter of law, that mere occupation of cultivation of the premises at the time of the filing of the map of definite location, unaccompanied by any filing of a claim in the land office then or thereafter, excludes the tract from the operation of the land grant, the decision of the supreme court of Montana was right. But frequent decisions of this court have been to the effect that no pre-emption or homestead claim attaches to a tract until an entry in the local land office. Thus, in the case of Railway Co. v. Dunmeyer, 113 U.S. 629, 644, 5 Sup. Ct. 566, 573, Mr. Justice Miller, speaking for the court, said:
'Of all the words in the English language, this word 'attached' was probably the best that could have been used. It did not mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the proper land office, by which the inchoate right to the land was initiated. It meant that, by such a proceeding, a right of homestead had fastened to that land, which could ripen into a perfect title by future residence and cultivation.'
This language was quoted, and the decision reaffirmed, in Railroad Co. v. Whitney, 132 U.S. 357, 10 Sup. Ct. 112; Whitney v. Taylor, 158 U.S. 85, 15 Sup. Ct. 796. In Lansdale v. Daniels, 100 U.S. 113, 116, it was ruled that 'such a notice of claim or declaratory statement is indispensably necessary to give the claimant any standing as a pre-emptor, the rule being that his settlement alone is not sufficient for that purpose.' See, also, Maddox v. Burnham, 156 U.S. 544, 15 Sup. Ct. 448. Now, in this case the allegations are that Kelly never made any entry in the local land office, and the decision of the secretary of the interior is based simply on the fact of occupation and cultivation. And, while the decision of that fact may be conclusive between the parties, his ruling that such occupation and cultivation created a claim exempting the land from the operation of the land grant is a decision on a matter of law, which does not conclude the parties, and which is open to review in the courts.