The evidence upon which the plaintiff relies to prove title is the same as that which was introduced in C. P. R. R. Co. v. Yolland, ante p. 438. The plat of the survey of the township was returned to the proper Land Office on the 18th day of October, 1865. The land in controversy is within the exterior limits of the alleged grant of “Los Moquelumnes,” the claim to which was finally rejected in 1865.

The defendant has lived upon the land for more than twenty years. In 1862 he purchased the land from this State as lieu land—land selected in lieu of an equivalent portion of a sixteenth or thirty-sixth section—paid the requisite sum of money and has since paid the annual interest on the remainder of the purchase-money up to January, 1872. The State selected the land for the defendant as lieu land in 1871; and in October of that year the United States listed the land to the State.

The selection of the land by the defendant in 1862 was, as this Court has often decided, unauthorized and void, because the land at that time had not been surveyed by the United States.

The selection of the lands by the State in 1871, and the listing of it by the United States to this State was subsequent to the issuing of the patent under which the plaintiff claims title; and that patent conveyed the title, if the lands were not excepted from the grant to the railroad company, by reason of their being within the exterior limits of an alleged Mexican grant, the claim to which was afterwards, but before the issuing of the patent, rejected by the Supreme Court of the United States.

Upon the authority of the C. P. R. R. Co. v. Yolland, ante p. 438, we hold that the lands were not excepted from the operation of the Acts of Congress of July 1, 1862, and July 2, 1864, ganting lands to aid in the construction of the railroad.

As no right or title in or to the lands appears to have vested in either the State or the defendant prior to the passage of the Act of July 2, 1864, it is obvious that neither the *449Act of July 23, 1866, to quiet land titles in California, nor any proceedings taken under the Act, could defeat or impair the grant to the railroad company—that is to say, assuming that the lands in controversy are a portion of the lands to which the grant made by the Acts of July 1, 1862, and July 2, 1864, extended. The Act of July 23, 1866, by providing for the confirmation of certain selections of land by, or in behalf of the State, which were void when the Act passed, did not have the effect to impair the grant to the railroad company.

Judgment and order reversed, and cause remanded for a new trial.

Mr. Justice McKinstry did not express an opinion.