Opinion of the Court.

be open to settlement, describes a body of land by metes and bounds, and makes no exception of the railroad right of way, though it does of two acres, specially described and reserved for governmental use and control. Doubtless whoever obtained title from the government to any quarter section of land through which ran this right of way would acquire a fee to the whole tract subject to the easement of the company; and if ever the use of that right of way was abandoned by the railroad company the easement would cease, and the full title to that right of way would vest in the patentee of the land. But whether this be so or not, it is enough that in the cession, in the acts of Congress, and in the proclamation of the President the land was dealt with as an entirety, with certain metes and bounds, and it is that body of lands, thus bounded, which all parties were forbidden to enter upon who desired thereafter to enter any portion as a homestead.

Counsel contend that the words "enter" and "entry" have a technical meaning in the land laws; that the disqualification in the act of March 1, from entering upon any part of said lands, was modified by the act of March 2, so as to make it consist in entry and occupation, both being essential; and, quoting from the brief, "this was done to relieve the thousands of persons, or boomers,' as they were called, from the disability they may have incurred by an entry alone; but to keep them from selecting and occupyiag—that is, living on any tract of land prior to the time when the land should be opened to settlement and entry under the proclamation which the act of March 2 authorized the President to issue the clause was inserted that any person entering upon and occupying the same' should be disqualified.”

Their idea seems to be, that parties might go wheresoever they pleased through this body of lands, without subjecting themselves to the disqualification of the statute, providing only that before the date fixed for the opening of the lands for settlement they did not commence an actual living upon the particular tracts they desired to enter as homesteads. Under such a construction anybody might go into the Terri tory every quarter section might be occupied by a resident

Opinion of the Court.

-and all that would be necessary to prevent the operation of the statute would be that on noon of April 22 adjoining neighbors changed their residences. Thus it would be that each party entering upon and occupying any particular tract, entered upon and occupied it for the first time after noon of April 22, and so was entitled to perfect his homestead entry. But this is simply to emasculate the statute. It treats the act of March 1 as repealed by that of March 2, and repeals by implication are not favored. It would destroy absolutely that equality which was evidently the intent of Congress in the legislation. Two parties might rightfully, immediately after the acts of Congress and the proclamation of the President, enter upon and occupy two adjoining tracts, and then change at the moment fixed, and thus create as to those respective tracts thus changed a prior occupation, as against all parties not reaching the Territory until April 22. "Enter" and "entry may be technical words in the statute, but the expressions "enter upon" and "enter upon and occupy" are used in the ordinary sense of the words, and have no technical sig nificance in this statute. The evident intent of Congress was, by this legislation, to put a wall around this entire Territory, and disqualify from the right to acquire, under the homestead laws, any tract within its limits, every one who was not outside of that wall on April 22. When the hour came the wall was thrown down, and it was a race between all outside for the various tracts they might desire to take to themselves as homesteads.

But it is said that the appellant was rightfully on the railroad company's right of way; that he had the express sanction of Congress to be there; and that when the hour of noon of April 22 arrived he had, as an American citizen, possessing the qualifications named in the homestead laws, the right to enter upon any tract within the Territory for the purpose of making it his homestead. While he may have had all the qualifications prescribed by the general homestead law, he did not have the qualifications prescribed by this statute; and there is nothing to prevent Congress, when it opens a particular tract for occupation, from placing additional qualifications

Opinion of the Court.

on those who shall be permitted to take any portion thereof. That is what Congress did in this case. It must be presumed to have known the fact that on this right of way were many persons properly and legally there; it must also have known that many other persons were rightfully in the Territory — Indian agents, deputy marshals, mail carriers and many others; and if it intended that these parties, thus rightfully within the Territory on the day named, should have special advantage in the entry of tracts they desired for occupancy, it would have been very easy to have said so. The general language used in these sections indicates that it was the intent to make the disqualifications universally absolute. It does not say "any person who may wrongfully enter," etc., but "any person who may enter"-"rightfully or wrongfully " is implied. There are special reasons why it must be believed that Congress intended no relaxation of these disqualifications on the part of those on the company's right of way, for it is obvious that, when a railroad runs through unoccupied territory like Oklahoma, which on a given day is opened for settlement, numbers of settlers will immediately pour into it, and large cities will shortly grow up along the line of the road; and it cannot be believed that Congress intended that they who were on this right of way in the employ of the railroad company should have a special advantage of selecting tracts, just outside that right of way, and which would doubtless soon become the sites of towns and cities.

It may be said that if this literal and comprehensive meaning is given to these words, it would follow that any one who, after March 2 and before April 22, should chance to step within the limits of the Territory, would be forever disqualified from taking a homestead therein. Doubtless he would be within the letter of the statute; but if at the hour of noon on April 22, when the legal barrier was by the President destroyed, he was in fact outside of the limits of the Territory, it may perhaps be said that if within the letter he was not within the spirit of the law, and, therefore, not disqualified from taking a homestead. Be that as it may,—and it will be time enough to consider that question when it is

Opinion of the Court.

presented, it is enough now to hold that one who was within the territorial limits at the hour of noon of April 22 was, within both the letter and the spirit of the statute, disqualified to take a homestead therein.

The judgment of the Supreme Court of the Territory was right, and it is

Affirmed.

BENDER v. PENNSYLVANIA COMPANY.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

No. 193. Submitted March 29, 1893. - Decided April 3, 1893.

An order overruling a motion to remand a case to a State Court is not a final judgment.

MOTION TO DISMISS. The case is stated in the opinion.

Mr. J. R. Carey and Mr. F. J. Mullins for the motion.

Mr. Lyman R. Critchfield, opposing.

THE CHIEF JUSTICE: This is a writ of error, brought May 29, 1889, to an order overruling a motion to remand the case to the State Court. Such an order is not a final judgment on the merits, and the writ of error must be dismissed. Me Lish v. Roff, 141 U. S. 661; Chicago, St. Paul &c. Railway v. Roberts, 141 U. S. 690; Joy v. Adelbert College, 146 U. S. 355.

Counsel for Parties.

VIRGINIA v. TENNESSEE.

ORIGINAL.

No. 3. Original. Argued March 8, 9, 1893. - Decided April 3, 1893.

The boundary line between the States of Virginia and Tennessee, which was ascertained and adjusted by commissioners appointed by and on behalf of each State, and marked upon the surface of the ground between the summit of White Top Mountain and the top of the Cumberland Mountains, having been established and confirmed by the State of Virginia in January, 1803, and by the State of Tennessee in November, 1803, and having been recognized and acquiesced in by both parties for a long course of years, and having been treated by Congress as the true boundary between the two States, in its districting them for judicial and revenue purposes, and in its action touching the territory in which Federal elections were to be held and for which Federal appointments were to be made, was a line established under an agreement or compact between the two States, to which the consent of Congress was constitutionally given; and, as so established, it takes effect as a definition of the true boundary, even if it be found to vary somewhat from the line established in the original grants.

The history of the Royal Grants, and of the Colonial and State Legislation upon this subject reviewed.

An agreement or compact as to boundaries may be made between two States, and the requisite consent of Congress may be given to it subsequently, or may be implied from subsequent action of Congress itself towards the two States; and when such agreement or compact is thus made, and is thus assented to, it is valid.

What "an agreement or compact" between two States of the Union is, and what "the consent of Congress" to such agreement or compact is, within the meaning of Article I of the Constitution, considered and explained.

A boundary line between States or Provinces which has been run out, located and marked upon the earth, and afterwards recognized and acquiesced in by the parties for a long course of years, is conclusive.

THE case is stated in the opinion.

Mr. R. Taylor Scott, Attorney General of the State of Virginia, Mr. William F. Rhea and Mr. Rufus A. Ayers, for the State of Virginia.

Mr. George W. Pickle, Attorney General of the State of Tennessee, (with whom was Mr. N. M. Taylor, Mr. H. H. Haynes, Mr. Thomas Curtin and Mr. C. J. St. John on the