*455By tlie Court,,

The decision in this case involves a construction of the seventh section of the enabling act. (Stat. 1864-5, 37, sec. 7.)

When does the title vest in the state to the sixteenth and thirty-sixth sections granted by said act? This identical question was presented to the court in the case of Heydenfeldt v. Daney, G. S. & M. Co. (10 Nev. 290), and all the authorities bearing upon the subject were then carefully examined; but the decision finally turned upon other grounds, and the question was, by a majority of the court, left undecided.

Upon a review of the authorities we have arrived at the conclusion that the enabling act must be construed as a grant to the state in prcesenti, in the nature of a float, taking effect'upon specific tracts of land as soon as the same are surveyed by the United States, and not before. When the enabling act was passed, the 'land was not surveyed, and until the survey was made the title of the state did not attach to any specific tracts of land. When the survey was made the location of the land became certain, and at that time ‘ ‘ the title, which was previously imperfect, acquired precision and became attached to the land.” (Schulenberg v. Harriman, 21 Wall. 60.) If bona fide settlements were made upon the sixteenth or thirty-sixth sections by preemptioners, prior to tbe survey of the lands, then the title would not pass to the state, because they were otherwise disposed of, but other lands equivalent thereto were granted to the state in lieu thereof.

There is some conflict in the decisions of the courts upon this subject, but the conclusions we have reached are in accord with the whole current of decisions of the United States land-office (Keystone Case, Copp’s U. S. Mining Decisions, 109), and are sustained by the following authorities: Wall v. Blasdel, 4 Nev. 246; Terry v. Megerle, 24 Cal. 609; Grogan v. Knight, 27 Id. 515; Middleton v. Low, 30 Id. 597; Toland v. Mandel, 38 Id. 31; Railroad Co. Fremont County, 9 Wall. 89; and other cases cited in appellant’s brief.

*456It clearly appears from ilie undisputed and admitted facts contained in the record that appellant is entitled to the larid in controversy, unless the legal title passed from the government of the United States to this state at the date of the enabling act.

It is therefore ordered that the judgment of the district court be and the same is hereby reversed, and the court is directed to enter a judgment in favor of appellant.

concurring:

The principal question to be determined in this case is, in my opinion, quite distinct from any that was discussed or involved in Heydenfeldt v. The Daney Company. It is true that both cases involve a construction of the grant of lands to this state contained in the seventh section of the enabling act. But in that case the decision turned not upon the construction of the grant, but upon the effect of subsequent legislation by congress and the legislature of Nevada, while in this case it depends upon the effect of an act of congress passed prior to the enabling act.

The principal questions in Heydenfeldt v. Daney Company were: First. Did the grant to this state of the sixteenth and thirty-sixth sections in each township embrace or exclude mineral lands? Second. If the grant embraced the mineral lands, had the title of the state been divested by subsequent legislation? The majority of the court abstained from answering the first question, and decided the case by an affirmative answer to the second. My own opinion, as expressed in that case, was, and still is, that the grant contained in section seven of the enabling act took effect upon the admission of Nevada as a state, and that immediately thereupon the title to every sixteenth and thirty-sixth section within the territorial limits vested in the state, except where they had been disposed of by act of congress prior to the enabling act.

As the controversy in this case is between a claimant under the state and a claimant under the United States for a portion of a sixteenth section its decision, so far as I am concerned, must depend upon whether the land had been *457disposed of by act of congress prior to tbe passage of tbe enabling act. But fortunately tliis question admits of an easy answer. By the act of February 26, 1859 (Rev. Stat., sec. 2275), it is provided that “where settlements with a view to pre-emption have been made before the survey of the lands in the field, which are found to have been made on sections sixteen or thirty-six, those sections shall be subject to the pre-emption claim of such settler, and if they or either of them have been or shall be reserved or pledged for the use of schools or colleges in the state or territory in which the lands lie, other lands of like quantity are appropriated in lieu of such as may be patented by pre-emptors,” etc. The only question of construction affecting this case, which can arise upon the language of this act of congress is as to whether it applies to future settlements with a view to pre-emption, or only to those which had been made prior to its enactment. It seems, however, to be evident from the context that the intention of congress was to protect future settlers as well as those avIio had theretofore settled upon the reserved lands. As it is admitted that the appellant in this case had brought himself fully Avithin the terms of the law, the only remaining question is whether the law is still operative in this state. Respondent contends that it Avas repealed by implication upon the passage of the enabling act, and the learned judge of the district court so decided in an able and elaborate Avritten opinion Avhich accompanies the record filed in this court. In this particular, liOAvever, I think the learned judge fell into an error. Repeals by implication are not favored, and are never held to have taken place Avhere the íavo acts can stand together.

In this case I think there is no difficulty in so construing the act of February, 1859, and the enabling act, as to give to each its full force without impairing the force of the other. The grant in the enabling act expressly excepts lands previously disposed of by act of Congress, and appropriates other lands in lieu thereof. The act of 1859 was a prior disposition of all lands of the class described in the grant that might be settled upon before survey. There was, *458it is tru'e, no absolute disposition of any particular section, but there was a contingent disposition of every section. The disposition was prior, notwithstanding it depended in particular instances upon a contingency which might happen subsequent to the grant.

The case of Higgins v. Houghton (25 Cal. 260), which is relied upon by the district judge as sustaining his conclusion that the effect of the passage of the enabling act was to withdraw the sixteenth and thirty-sixth sections from the operation of the pre-emption laws, is not in point for the reason that the grant to California was made prior to the passage of the act of February, 1859, while the grant to this state was made subsequently thereto; and the very object of that act was to protect pre-emption settlers, before survey, from the operation of grants to the states and territories of the public lands.

For these reasons I concur in tlm judgment and order of the court.