(after stating the facts as above). The appellant contends that the land was not described in the railway company’s list so as to designate the same with a reasonable degree of certainty. The appellees contend (1) that the lands were designated with a reasonable degree of certainty, and (2) that the acceptance of the list and the issuance of patent by the Land Office involved the finding of fact that the lands were designated with a reasonable degree of certainty, and that such a finding of fact is conclusive.

[1] We find in this case no decision of fact that the description of the land as listed by the railway company designated the same with a reasonable degree of certainty. The record shows, on the contrary, that no decision was made on the facts of the case, and that the action *163of the Land Office was but the application of the settled rule of practice which it followed in all cases, that all unsurveyed lands listed by a railway company as lieu lands are designated with a reasonable degree of certainty if they are designated by the description applicable to them after they shall have been surveyed. Thus on the appeal the decision of the Secretary of the Interior states, not that the rejection of Delany’s application was supported by the facts, but that it was supported by the reasons given by the department in its decision in Daniels v. Northern Pac. Ry. Co., 43 Land Dec. 381. Turning to that decision, we find it stating that all lists filed for lieu lands by railway companies were accepted under general regulations of the department in every case where the lands were described in the terms of future survey, and the decision points to the Act of Congress of July 1, 1898 (30 Stat. 620, c. 546), which provided that lands tinder that act be selected in terms of a future survey, as sanctioning the propriety of the settled practice of the Land Department.

Conceding that the act of 1898 had the meaning attributed to it, it is to be observed that a year later, in enacting the statute under which the lieu lands were selected in the present case, Congress adopted a different provision and required, not that the lands be described in terms of future survey, but that they be designated with a reasonable degree of certainty, which, as we take it, means that Congress was not satisfied that the prior statute and prior practice were adequate in every case for the description of listed lands, but that other means of identification might become necessary in view of possible facts which would render the description in terms of future survey inadequate. In the present case, it is clear that the particular circumstances attending this lieu land selection were not taken into consideration by the Land Department. They did not decide that the description ivas reasonably sufficient, as applied to this particular tract of land. They applied only a rule of practice, and in so doing decided a question of law and not a question of fact.

A similar case was before us. West v. Edward Rutledge Timber Co., 221 Fed. 30, 136 C. C. A. 556, in which we sustained the court below in ruling that the railway company’s designation of a list of un-surveyed land by the description by which it would be known when surveyed was legally sufficient, where the tract was within three miles of a surveyed township and could be located with approximate certainty. In that case we said:

“It may be conceded, in so far as it respects this case, that a description of a section or a quarter section by legal subdivisions in the fastnesses of the Cascades or Rocky Mountain ranges, far distant from any government survey, or even generally that a description in terms of future survey, is not such a description as is contemplated by the statute. What may be a sufficient description for designating the tract under one set of circumstances might be wholly insufficient under another.”

Our decision was affirmed in West v. Rutledge Timber Co., 244 U. S. 90, 37 Sup. Ct. 587, 61 L. Ed. 1010. In that case the court said:

"What was a description having ‘a reasonable degree of certainty’ was to be determined by the circumstances. It was in the nature of a question of fact and had tests for decision, as the Court of Appeals pointed out.”

*164This means that the question is in the nature of a question of fact when it is determinable according to the proper tests applicable to facts. It does not mean that the adoption and application of a general rule of practice by the Land Office is a decision of a question of fact.

[2] We are of the opinion that to designate the section of land in which the section in controversy is situated in terms of a future survey was wholly insufficient to designate the same with a reasonable degree of certainty.. In the West Case, this court said:

“But the farther they remove from an established. survey, it stands to reason, the greater will be the difficulty of setting foot on the identical tract, until eventually no' reasonable being could expect another to tie bach to a known surety for the purpose of identification.”

With the uncertainty there foreshadowed we are here brought face to' face. The homestead settler here could not, without the expenditure of a large sum of money, ascertain in what section his land would be when finally surveyed. The land was 7% miles from a known survey, and tire intervening space was a rough, mountainous, timbered country. Even if he had gone to the expense of a survey, he could not know that the government survey would coincide with his. By the Act of May 14, 1880, c. 89, 21 Stat. 141 (Comp. St. §§ 4536-4538), he was given the right to make his homestead upon unsurveyed lands. He duly marked the boundaries of his claim, and made his residence thereon. He selected a parcel of land in an unsurveyed township, with nothing on the ground or on record in the plats of the local land office to notify him that the tract had been selected by the railway company. Said the court in Lytle v. State of Arkansas, 9 How. 314, 333 (13 L. Ed. 153):

“The adventurous pioneer, who is found in advance of our settlements, encounters many hardships, and not infrequently dangers from savage incursions. He is generally poor, and it is fit that his enterprise should he rewarded by the privilege of purchasing the favorite spot selected by him, not to exceed one hundred and sixty acres. That this is tfie national feeling is shown by the course of legislation for many years.”

And in Ard v. Brandon, 156 U. S. 537, 543, 15 Sup. Ct. 406, 409 (39 L. Ed. 524), the court said:

“The law deals tenderly with one who, in good faith, goes upon the public lands, with a view of making a home thereon.”

The view which we have taken of this branch óf the case renders it unnecessary to consider the other assignments of error.

The decree is reversed, and the cause is remanded to the court below, with instructions to enter a decree for the appellant as prayed for in the bill.