definitely appear in the evidence)—the location of said station was changed to its present location in the N. W. 14 of the N. E. 14 of section 18 of said township and range; that is to say, to a point on the line of rail- way adjacent to the strip of land involved in this controversy. On April 24, 1900, one John Welo duly made a homestead entry, covering, among others, the said N. W. %4 of the N. E. 14 of section 18, township 155, R. 99, which homestead entry remained in effect until May 13, 1901. when it was relinquished by the entryman. On January 12, 1900, the said railway company filed in the local land office at Minot, N. D., its application for and the plat of an additional 20-acre tract in the N. E. © 4, of N. E. 4, N.W. % of N. E. 4, N. E.Y% of N. W. 4, S. E. 4 of N. W. 4, and N. E. 4% of S. W. 4 of section 18, township 155 north, range 99 west, which tract includes the lots or parcels of land in controversy here. But it seems that the railway company later withdrew the application and plat, for it bears this indorsement:
“U. S. Land Office, Minot, N. D. Received and refiled July 18, 1900, at g a.m. The land embraced in this section is all vacant except E. % of N. W. % and W. 4 of N. E. 4, section 18, Twp. 155, Rg. 99.
On October 18, 1900, the then Secretary of the Interior made and signed the following indorsement thereon:—
“Approved subject to all valid existing rights.”
No evidence was offered explanatory of the withdrawal of the plat and application by the railway company. Nor is there any showing that the plat was approved, was at any time filed with the local land office, or that any notation thereof or of the lands claimed therein was ever made upon the records of the local land office. On August 19, 1902, one Philander Pollock filed homestead entry upon a quarter-section of land, including the said N. W. 14, N. E. 14, section 18, within which the lands in controversy here are located. On June 1, 1903, said Pollock relinquished his entry as to said 4o-acre tract, and at the same time located scrip on said tract. The scrip was allowed, and on October 31, 1905, a receiver’s receipt for said 40-acre tract was duly issued by the officers of the local land office at Minot, N. D., and shortly thereafter recorded in the office of the register of deeds of said Williams county. On February 28, 1906, the United States issued to said Pollock a patent for said 4o-acre tract, which said patent was shortly thereafter recorded
