The action was brought in that court on a covenant of warranty of title to two pieces of land in a deed of conveyance made by the Kansas Pacific Railroad Company to Dunmeyer.

The alleged paramount adverse title was derived from a land patent from the United States issued on a homestead entry made subsequent to these proceedings.

It also shows that the line of definite location of the company's road was first filed with the Commissioner of the United States General Land Office at Washington, September 21, 1866.

Of two arguments made, the stronger is in regards that while the company did not file its line of definite location until about two months after Miller made his homestead entry, it did designate the general route of said road, and file a map thereof in the General Land Office July 11 of the same year, 1866, which was fifteen days before Miller's homestead entry.

In this case before the high court, a claim was made and filed in the land office, and there recognized, before the line of the company's road was located.

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.

The right of the homestead having attached to the land, it was excepted out of the grant as much as if, in a deed, it had been excluded from the conveyance by metes and bounds.