
    J. H. Whaley v. The Choctaw Railway Company.
    1. Right OF Way — Grant in Praesenti. An Act of Congress investing and empowering a railway company with the right of way of locating, constructing, owning, equipping, operating, using and maintaining a railway through and over public land, and providing that said company is authorized to take and use for all purposes of a railroad a right of way over said public land is a present absolute grant.
    2. Homestead Settler — Subject to Right of Way. A homestead settlement subsequent to such an act is subject to the rights of the railway company, although the line of the road was not definitely located until after the entry, and the settler cannot recover for damages occasioned by the building of the railway under this act. (Churchill v. The Choctaw Coal and Railway Co. followed. )
    
      Error from the District Court of Canadian County.
    
    Injunction: The facts are stated in the opinion.
    
      M. W. Nojfsinger, for plaintiff in error.
    
      J. W. McLoud, for defendant in error.
   The opinion of the court was delivered by

Scott, J.:

This is a condemnation proceeding, but is identical with the case of David A. Churchill v. The Choctaw Coal and Railway Co., heretofore decided by this court. The reasoning in that case is applicable here and the determination should be the same. The decision in the case mentioned is based upon that of United States ex rel. W. S. Search et al., 3 Okla. 404, and the accepted precedents of the country.

Whaley, the plaintiff in error, is a homestead entry-man, but made the same subsequent to the act of congress of February 18, 1888, granting a right of way to the Choctaw Coal and Eailway company, and consequently subject to the said right of way, though the line of road was not definitely located until after the entry, and the settler cannot recover damages occasioned by the building of said railway under said act.

The judgment of the court below will be affirmed.

Burford, J., who presided in the court below not sitting; all the other Justices concurring.  