delivered the opinion of the court.
This suit was brought to obtain a decree quieting the title of the United States to a large body of lands in California, acquired under the treaty of Guadalupe Hidalgo.
These lands, it is stated by counsel, aggregate about 700,000 acres, 61,989 acres of which have heretofore been patented to the Southern Pacific Eailroad Company, and for 72,000 acres of which that company has made application for patents. They are thus described in the bill filed by the United States: All the sections of land designated by odd numbers in townships 3 and 4 north, ranges 5, 6 and 7 west; township 1 north, ranges 16, 17 and 18 west; township 6 and the south three fourths of township 7 north, ranges 11, 12, 13, 14, 15, 16, 17, 18 and 19 west; all sections designated by add numbers as shown by the public surveys, embraced within the townships from number 2 north to number 5 north, both numbers included, and ranges from number 8 west to number 18 west, both numbers included, except sections 23 and 35, in township 4 north, range 15 west, and except sections 1, 11 and 13, in township 3 north, range 15 west; also the unsurveyed lands within said area which will be designated as odd-num
The Government suggests that the greater portion of these lands have been set apart under authority of the act of Congress of March 3, 1891, c. 561, § 24, 26 Stat. 1095, 1103, and by the proclamation of the President of the United States of December 20, 1892, 27 Stat. 1049, as a public reservation.
The principal contention of the United States is that the lands in dispute are in the same category in every respect with those in controversy in
United States
v.
Southern Pacific Railroad,
Stated in another form, the United States insists that in the former cases the controlling matter in issue was, whether certain maps filed by the Atlantic and Pacific Railroad Company in 1872, and which were accepted by the Land Department, as sufficiently designating that company’s line of road under the act of Congress of July 27, 1866, c. 278, 14 Stat. 292, were valid maps of definite location ; the United States contending in those cases that they were, and the Southern Pacific Railroad Company contending that they were not, maps of that character; that that issue was determined in favor of the United States; and that as the lands now in dispute are within the limits of the line of road, so designated, it is not open to the Southern Pacific Railroad Company, in this proceeding, to question the former determination that such maps sufficiently identified the lands granted to the Atlantic and Pacific Railroad Company by the act of 1866, and were therefore valid maps of definite location.
This position of ithe Government makes it necessary to ascertain what was in issue and what was determined in the
It is necessary to a clear understanding of the question just stated, that we should first look at the provisions of the several acts of Congress relating to the Atlantic and Pacific and Southern Pacific Railroad Companies, which were referred to and construed in the former cases.
The Atlantic and Pacific Railroad Company was incorporated by the act of Congress approved July 27, 1866, c. 278, lé Stat. 292, with authority to construct and maintain a line of railroad and telegraph from a point at or near Springfield, Missouri, to the western boundary line of that State, thence by the most eligible railroad route, to be determined by the company, to the Canadian River, thence to Albuquerque on the River Del Norte, thence by way of Agua Prio or other suitable pass to the headwaters of the Colorado Chiquito, thence along the thirty-fifth parallel of latitude, as near as might be found most suitable for a railroad route, to the Colorado River at such point as might be selected by the company for crossing, and “ thence by the most'practicable and eligible route to the Pacific.” § 1. In the aid of the construction of that line Congress granted every odd-numbered section of public land (not mineral) to the amount of twenty alternate sections per mile on each side of such line_as the company might adopt through any Territory of the United States, and ten alternate sections per mile on each side of the line through any State, to which the United States had full title, and not reserved, sold, granted or otherwise appropriated, and free from preemption or other claims or rights, “ at the time the line of said road is designated by a flat thereof filed in the office of the Commissioner of the General Land Office.” § 3.
Section 4 made provision for patents to be issued to the company for lands opposite to and coterminous with each section of twenty-five miles of road, completed in a good, substantial and workmanlike manner.
It was also provided that the President of the United States should cause the lands to be surveyed for forty miles in width
By the eighteenth section of the act the Southern Pacific Bailroad Company, a California corporation, was authorized to connect with the Atlantic and. Pacific Bailroad at such point, near the boundary line of the State, as it deemed most suitable,for a railroad line to San Francisco; and to have a uniform gauge and rate of freight or fare with that road; and in consideration thereof, to aid in its construction, “ shall have similar grants of land, subject to all the • conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic and Pacific Bailroad herein provided for.”
The twentieth section provided, that the better to accomplish the object of the act, “namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the Government’ at all times, but particularly in time of war, the use and benefits of the same for postal, military and other purposes, Congress may, at any time, having due regard to the rights of said Atlantic and Pacific Bailroad Company, add to, alter, amend or repeal this act.”
The legislature of California by an act approved April 4, 1870, authorized the Southern Pacific Bailroad Company to change the line of its road so as to reach the eastern boundary of the State by such route as the company should determine to be the most practicable. And by joint resolution passed
By an .act approved March 3, 1871, c. 122, Congress incorporated the Texas Pacific Railroad Company and made to it a grant of public lands. And by the 23d section of that act it was provided : “ That for the purpose of connecting the Texas Pacific Railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado River, with the same rights, grants and privileges, and subject to the same limitations, restrictions and conditions as were granted to said Southern Pacific Railroad Company of California by the act of July 'twenty-seven, eighteen hundred and sixtyrsix: Provided, however, That this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company or any other railroad company.” 16 Stat. 573, 579.
The Atlantic and Pacific Railroad Company built part of its road east of Colorado River, but did not construct any line west of that river or in California.
'In consequence of such failure, Congress, by the act of July 6, 1886, c. 637, 24 Stat. 123, provided “that all the lands, excepting the right of way and the right,'power and authority given to said corporation to take from the public lands adjacent to the line of said road' material of earth, stone, timber and so forth, for the construction thereof, including all necessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turn-tables and water stations, heretofore granted to the Atlantic and Pacific Railroad Company by an act of Congress entitled, £ An act granting lands to aid in the construction of railroad and telegraph lines from the States of Missouri and Arkansas to the Pacific coast,’ approved July 27, 1866, and subsequent acts and joint resolutions of Congress, which are adjacent to and coterminous with the uncompleted portions of the main line of said road, embraced within both the granted and the indemnity limits, as contemplated to be constructed under ' and by the provisions of the said act of July 27, 1866, and acts and joint resolutions subsequent thereto and relating to the construction of said road and telegraph, be, and the same are hereby, declared forfeited and restored to the public domain.”
In execution of that act the United States, in 1889, commenced suits in the Circuit Court of the United States for the Southern District of California for the purpose of quieting its title to various tracts of land, aggregating about 5342 acres, and claimed by the Southern Pacific Railroad Company and by other corporations and individuals asserting title under that company. In one of those suits, the Southern Pacific Railroad Company, and D. O. Mills and Garrett L. Lansing, trustees .under a mortgage executed by that company on the 1st day of April, 1875, and Joseph Youngblood were made
These are the cases reported in
The issues presented by the Government in the former suits are fully shown by an amended bill filed therein November 22, 1889. After referring to the organization of the Southern Pacific Railroad Company, and to the act of Congress of July 27, 1866, it proceeds: “Your orator alleges that by and pursuant to said act ,of Congress, the Atlantic and Pacific Railroad Company was created and duly organized, and on November 23, 1866, within the time and in the manner provided in said act, accepted said grant, and did
designate the line of its route
from Springfield, Missouri, to the Pacific by maps and plates thereof, which it filed in the office of the Commissioner of the General Land Office in manner following, to wit: On or about March 9, 1872, said company filed in the office of the Commissioner of the General Land Office maps
designating the line of its route,
and showing the general features of the country and vicinity, as follows: First — From San Francisco to San Miguel Mission, in California. Second —Map of its route from San Miguel Mission via Santa Barbara and San Buenaventura, to a point in township 2 south, range 17 west, San Bernardino base and meridian, in California. Third — Map of its route from said point last mentioned to a point in township 7 north, range 7 east, San Bernardino base and meridian, in California. Fourth — Map of its route from said point last named to the Colorado River. And thereafter, on or about March, 1872, said company filed in said office as aforesaid its several other maps, designating its route from said point last named to Springfield in the State of Missouri, making altogether a continuous line designating its entire routé, and showing the general features of the country from said town of Springfield, Missouri, by way of the points named in said act' of Congress of July 27, 1866, to the Pacific at San Buenaventura, and from there to San Francisco, and in the manner provided in said act, and such designation was accepted by the United States.
It was further averred that “ on March 9,1872, and on April 22, 1872, the Secretary of the Interior and the Commissioner of the General Land Office, respectively, ordered all the odd sections of land within thirty miles on each side of said designated route of said Atlantic and Pacific Railroad Company reserved from sale and withdrawn ”; that said Atlantic and Pacific Railroad Company did construct and complete a portion of its road west of Springfield, Missouri, in the time and manner required by said act, but did not at any time construct or complete any railroad west of the Colorado River; and that by the act of Congress approved July 6, 1886, “all the lands and rights to lands theretofore granted and conferred upon said Atlantic and Pacific Railroad Company were forfeited, resumed and restored to entry for non-completion of that portion of said railroad to have been constructed in California.”
After alleging that the Southern Pacific Railroad Company was not the company of that name organized under certain articles of amalgamation and consolidation, dated October 11, 1870, and amended April 11, 1871, but was the now existing company of that name, and after setting out the 23d section of the act of Congress of March 3, 1871, c. 122, incorporating the Texas and Pacific Railroad Company, 16 Stat. 573, and granting lands to the Southern Pacific Railroad Company for the line therein described, the amended bill in the former suits proceeded: “ Said Southern Pacific Railroad Company, the corporation which existed on April 3, 1871, as heretofore shown, pretended to accept said grant on April 3, 1871, and did on that day designate the line of its road by a plat thereof, which it filed in the office of the Commissioner of the General Land Office, and thereupon the Secretary of the Interior ordered all the public lands in odd sections within thirty miles of such route, to which no right or claim had attached, to be withdrawn from market and reserved. And your orator
It was also alleged that “ on the south side of said route of the Atlantic and Pacific Railroad Company within 30 miles of said route, but also within 20 miles of the pretended designated route of the Southern Pacific Railroad Company, there was not on July 27, 1866, nor on March 12,1872, nor on April 3,1871, and is not now, enough public land in the- odd sections to equal in amount ten alternate sections per mile of the line of road of said Atlantic and Pacific Railroad Company, within such limits, for that prior to said date of July 27, 1866, the Mexican Government and the United States had sold, granted, reserved and otherwise disposed of so great a quantity of land in those limits; ” also, that “ all of the said lands before described are situated on the south side of the said designated route of the Atlantic and Pacific Railroad Company more than 20 miles but less than 30 miles therefrom, but are less than 20 miles from the said pretended designated route of said Southern Pacific Railroad Company.”
The amended bill concludes by alleging that the defendants and either of them have no title or interest in or to the lands described, “ for that said pretended patents under which defendants solely claim title were issued inadvertently, without authority, and Avere at their inception, and still are, each void and inoperative to pass title, and that said lands were never granted to said Southern Pacific Railroad Company,
The relief asked was a decree cancelling the patents issued to the Southern Pacific Railroad Company, quieting the title of the Government to the lands described therein, and enjoining that company from asserting or claiming any right or title thereto adversely to the United States.
The answer of the Southern Pacific Railroad Company, filed in the former suits December 30, 1889, shows its understanding as to what were the issues tendered by the Government. Prom that answer these extracts are made :
“The defendant admits that by and under said last mentioned act of Congress, [July 27, 1866,] the Atlantic and Pacific Railroad Company was created and organized, and did duly accept the provisions of the said law within the time and in the manner provided in said act, but it denies that said Atlantic and Pacific Railroad Company did designate the line of its route from Springfield, in the State of Missouri, to the Pacific coast, as req;úired by said act.
• “ This defendant denies that on the 9th of March, 1872, or at or about any such time, the Atlantic and Pacific Railroad Company filed in the office of the Commissioner of the General Land Office maps designating the line of its route, or otherwise in accordance with the law, and'denies that on or about the 9th of March, 1872, said Atlantic and Pacific Railroad Company filed four maps in the office of the Commissioner of the General Land Office, as stated in said bill. Said company filed two maps and claimed that they were filed for the purpose of locating parts or fragments of a line for its road in the State of,California, but the defendant denies that said maps constituted a valid location of said road in California. Certified copies of said maps are annexed to the answer heretofore filed in this suit by this defendant and marked ‘ Exhibit A, Nos. 1 and 2,’ which, with the indorse-merits thereon, are now herein referred to and made part of this answer; and this defendant says that said railroad was not located or attempted to be located on or about March 9, 1872, or at any such time, in California, either in whole or in part, otherwise than as aforesaid by said maps. This defendant denies that the Atlantic and Pacific Eailroad Company by or. through the filing of said maps, acquired the right 'to any lands of the United States hying opposite to the lines or route marked on said mays, and denies that said company acquired the right to select any public lands along said routes or lines as ‘ other lands ’ in lieu of sections within twenty miles that had been granted, sold, £ reserved, occupied by homestead settlers, or preempted or otherwise disposed of’ by the United States. These maps were sent to the General Land Office by the Secretary of the Interior with a letter dated March 9, 1872, of which a certified copy is annexed to said answer heretofore filed, marked ‘Exhibit B.’
“This defendant says that the. lands mentioned in the amended bill herein lie opposite to the line of route marked on the said map, designated in said letter as No. 2 of a portion of the proposed road of the Atlantic and Pacific Eail-road Company, that is, a piece of road within the State of California, ‘from a point on the western boundary line of Los Angeles County, California, to a point in township seven north, range seven east, of San Bernardino meridian in said State.’ Neither when'filed in March, 1872, nor at any such time, did it appear -that said map represented any part of a line that was, or was intended to be conjoined to any other part located before that time for the Atlantic-and Pacific Eailroad.
“ Further answering, this defendant says that the Atlantic and Pacific Eailroad Company afterwards, viz., on the 18th day of August, 1872, filed in the Department of the Interior two other maps which it claimed were intended to designate the line of other fragments or portions of its railroad in California. Certified copies of said maps and of the letter of the Secretary of the Interior of April 16, 1874, in respect thereto, are annexed to the answer filed heretofore in this suit bythis defendant, marked ‘Exhibit C, Nos. 1 and 2,’ and are now herein referred to and made part of this a/nswer. And this defendant denies that said maps constituted a valid location of the parts or fractions of road therein described, and denies that the fowr maps hereinbefore mentioned of four several parts of the road constituted a valid location of the said 'Atlantic and Pacific Railroad in California. And it denies that the said Atlantic and Pacific Railroad was ever in any otherwise lawfully located in the State of California. ... . And the defendant says that there .is nothing in or upon said maps to identify the same as the line of road mentioned in the said act of Congress.”
After referring to the eighteenth section of the act of July 27, 1866, and alleging that the construction of a railroad from the Colorado River to San Francisco was “expressly relegated and appropriated to this defendant,”' and that the Atlantic and Pacific Railroad Company was never authorized to construct any such line of railroad, or to acquire any lands by reason of or in respect of the construction or proposed construction of any such line, the answer of the Southern Pacific Railroad Company denied that “on or about March, 1872, the Atlantic and Pacific Company filed in the office of the Com.missioner of the G-eneral Land Office maps designating its route from the Colorado River to Springfield, in the State of Missouri,” or that “ said maps made altogether the line of railroad from Springfield, in the State of Missouri, to the Pacific coast, which was provided for and required by said act of Congress of July 27, 1866, to be constructed and completed by the said Atlantic and Pacific Railroad.Company,” or “ that the several parts of its map filed made and constituted the whole of its line as provided for in said act of Congress”; that the parts of its map, “when taken together, showed a line terminating at San Francisco, which was not the terminus provided for by said act of Congress.” The answer also denied that on March 9, 1872, and April 22, 1872, or at any such times, the Secretary of the Interior and the Commissioner of the General Land Office ordered all the odd sections of land within thirty miles on each side of the desig
The defendant averred that “the lands.involved in this suit had previously, on the 3d April, 1871, by the filing of the map of definite location of the defendant’s railroad, been duly reserved from sale by and under the said 23d section of the act of Congress of March 3,1871, and the 6th section of the act of Congress of July 27, 1866, which said-sections are quoted in the bill of complaint herein, and avers also that said lands had been duly withdrawn from market and appropriated for the use of this defendant by the order of the Commissioner of the General Land Office to the register, and receiver of the U. S. land office at Los Angeles, issued April 21, 1871, a copy of which is hereto annexed, marked £ E,’ and made a part of this answer.”
Admitting that the Atlantic and Pacific Eailroad Company did construct and' complete a portion of its road west of Springfield, Missouri, in the time and manner required by said act, but averring that that company did not at any time construct- or complete any railroad west of the Colorado Eiver, the defendant averred that “ on the 3d April, 1871, it designated the line of its said railroad, as described in said section 23, by a map thereof, filed in the office of the Commissioner. of the General Land Office, and thereupon the said Commissioner ordered all the public lands in odd sections
The Southern Pacific Railroad Company admitted in its answer that the line which the Atlantic and Pacific Company claimed to have located in California “ crosses the line of the Southern Pacific Railroad located tmder the act of March 3, 1871,” but alleged “ that under and by virtue of said act of. March 3, 1871, and the map of location filed on the 3d day of April, 1871, the lands described in said patent were reserved for and appropriated to this defendant, whose title thereto has become perfect and complete by the construction of its road as prescribed in said act,” and that “ the said Atlantic and Pacific Railroad Company’s pretended line was not located until subsequent to the year 1871; that when sought or pretended to be located, it was found to be on a wholly unauthorized route, not prescribed or permitted under any act of Congress in relation to or affecting said Atlantic and Pacific Railroad Company.”
The answer of the Southern' Pacific Railroad Company, in the former cases, also contained these paragraphs:
“ This defendant admits that on the south side of the pretended location of the Atlantic and Pacific road, .and within 30 miles thereof, but also within 20 miles of the location of the Southern Pacific Railroad, there was not on April 3,1871, and is not now, enough public lands in the odd sections to equal ten alternate sections per mile on each side of the pretended location of the line of the said Atlantic and PacificRailroad Company within such limits, and this defendant admits that the above described tracts of land are situated more than 20 miles and less than 30 miles from the line of the pretended location of the Atlantic and Pacific Railroad, and less than 20 miles from the said located line of the Southern Pacific Railroad.
“ This defendant avers that said tracts of land have been granted, by the 23d section of the act of March 3, 1871, to it, the Southern Pacific Railroad Company. . . .
“ This defendant admits that, under date of March 29,1876, April 4, 1879, and December 27, 1883, the patents were issued to this defendant for the lands hereinabove described, but denies that • such patents were issued inadvertently or without authority. On the contrary, this defendant avers that said patents were issued with due deliberation and in strict conformity with the law, and that the signatures of the President of the United States and the Recorder of the General Land Office thereto were affixed fairly and properly and under the authority of law. This defendant here refers to the Exhibit 1, ÍTos. 1 and 2, annexed to its answer heretofore filed, and makes the same part of this answer.
“When the grant of lands was made to this defendant, March 3, 1871, and its grant was located, April 3, 1871, all the lands involved in this case were public lands of the United States.”
To this answer a general replication was filed.
The pleadings in the former suits show that the Govern-' ment based its claim to relief upon certain grounds that were distinctly controverted by the Southern Pacific Railroad Company. Those grounds were:
That the grant by Congress of public lands to the Atlantic and Pacific Railroad Company was before the grant to the Southern Pacific Railroad Company ;
That when the Atlantic and Pacific Railroad Company designated its line by a plat thereof filed in the office of the Commissioner of the General Land Office, as required by Congress, it acquired an inchoate title to the lands granted,
That the Atlantic and Pacific Railroad Company, by certain maps and plats filed in the office 'of the Commissioner of the General Laid Office in 1872 and fully identified both in the bill and answer — which maps were accepted by the Interior Department as adequate and valid — sufficiently designated, as required by the act of 1866, an entire line from San Francisco via San Miguel Mission, Santa Barbara, San Buena-ventura and the Colorado Biver to Springfield, Missouri, so as to become entitled, as of the date of the grant of July 27, 1(866, to earn the lands appertaining to the line so designated ;
That the lands then in controversy appertained to the line of road, and were within the exterior lines of the route, so designated, were among the lands granted to the Atlantic and Pacific Railroad Company, and in consequence of such designation were withdrawn by the Secretary of the Interior from sale or preemption for the benefit of that company; and,
That the Atlantic and Pacific Railroad Company having failed to meet the conditions of the grant by constructing its road in California, the lands to which it had acquired an inchoate title by means of the accepted map designating its line, were “ restored to the public domain,” under the above act of July 6, 1886, c. 637, 24 Stat. 123, and were not left, upon such statutory forfeiture, to be earned by the Southern Pacific Railroad Company under the junior grant.
The Southern Pacific Railroad Company controverted the material allegations of the Government’s bill and amended bill, and made defence upon these among other grounds:
That the only designation of a line or route ever made by the Atlantic and Pacific Railroad Company was one of an entire line from Springfield to San Francisco, and that it had no authority to establish, designate or locate any such extended line;
That the maps of 1872 filed by the Atlantic and Pacific Railroad Company, which were referred to in the bill, and also
made parts of the company’s answer,
were
not .sufficient
That the lands in question were covered by the location made by the Southern Pacific Railroad Company under the act of Congress granting lands to it, and were part of those withdrawn from sale and in its favor by the Secretary of the Interior; and,
That, in any view, the right of the Southern Pacific Railroad Company to those lands attached and became complete upon the forfeiture of the lands and rights granted to the Atlantic and Pacific Railroad Company, such forfeiture — it was claimed — not affecting the rights previously acquired by thé Southern Pacific Railroad Company under the accepted maps of the definite location of its line, and under the withdrawal from sale of the lands appertaining to that line.
In the former suits it was conceded that if the maps filed by the Atlantic and Pacific Railroad Company in 1872 were valid maps of definite location, sufficiently identifying the lands granted to it,’then the lands involved in those suits were within the overlapping limits of the two grants.
The learned counsel for the railroad company in those cases contended that, in order to show a conflict between the claims of the two companies to the particular lands then in controversy, the United States must show that the Atlantic and Pacific Railroad Company designated its route under the act of 1866, and that there was no proof of that fact “ except that the Atlantic and Pacific Company from time to time filed certain fragmentary maps pretending to designate routes, and which, if connected, would not constitute a route such as the act of 1866 authorized it to select.” This general point, counsel argued, resolved itself into three subsidiary questions, namely: “ 1. Whether the Atlantic and Pacific Railroad Company
ever designated its route:
2. Whether such a designation, if made,
operated,
from the mere circumstance that the grant to that company was prior in time to that made to the
Manifestly the fundamental question in- the former cases was whether the Atlantic and Pacific Railroad Company ever filed any such maps as the act of 1866 contemplated when declaring that the odd-numbered sections granted should be those on the line of the road to which the United States had full title, not reserved, sold, granted or otherwise appropriated, and free from preemption or other claims or rights, “ at the time the line of said road is designated by a plat thereof, filed in the office of <the Commissioner of the General Land Office.”
In those cases, the Circuit Court denied the relief asked, and dismissed the bills filed by the United States. 39 Fed. Rep. 132 ; 40 Fed. Rep. 611; 45 Fed. Rep. 596; 46 Fed. Rep. 683. But this court reversed the judgments so rendered, holding—
That the grants to the Atlantic and Pacific and the Southern Pacific Railroad Companies were in prcesenti, that is to say, the route not being at the time determined; the grant was in the nature of a float, no title attaching to any specific sections until they were capable of identification ;
That when the granted lands were once identified by approved maps of definite location, the grants' severally took effect by relation as of the dates of the respective acts of Congress — the grant to the Atlantic and Pacific Railroad Company being prior in time to that made to the Southern Pacific Railroad Company;
That the Atlantic and Pacific Railroad Company did file maps of definite location in 1872, which were “ received and approved by the Land Department.
as maps of definite location” ;
that
then
“the specific tracts were designated, and
That the map filed by the Southern Pacific Railroad Company April 3, 1871, could not have been a map of definite location, but was “ only of the general route, and there was then no designation of lands to which the Southern Pacific Company's title could attach ”;
That it was immaterial whether the map of definite location of the Southern Pacific road was filed and approved before or after April 11, 1872, “for, when filed, the grant could take effect by relation only as of March 3, 1871 [the date of the grant to it], and
at that
time,
and for nearly five years
theretofore, the title to these lands had been in the Atlantic and Pacific ” ; nor was it material that the act of 1871 “in terms purports to bestow the same rights, grants and privileges as were granted to the Southern Pacific Railroad Company by the act of 1866,” for that merely defined “the extent of the grant and the character of the rights and” privileges” given, and did “not operate,to make the latter grant take effect by relation as of the date of the prior grant, and thus subject the grants to the two companies to the rule controlling contemporaneous grants as established by
St. Paul and Sioux City Railroad
v.
Winona and St. Peter Railroad,
That whatever right or title was acquired by the Southern Pacific Eailroad Company, by its map filed April 3, 1811, was “ absolutely displaced when the Atlantic and Pacific Company's map was filed"; that Congress intended “no scramble between companies for the grasping of titles by priority of location, but that it is to be regarded as though title passes as of the date of the act, and to the company having priority of grant, and, therefore, that, in the eye of the law it is now as though there never was a period of time during which any title to these lands was in the Southern Pacific ”; so 'that, “ whatever may have been the dates of the filing by the respective companies, the case stands as though the lands granted to the Atlantic and Pacific had been identified in 186Í6 and title had then passed, and there never was a title of any Tcind vested in the Southern Pacific Company and,
That upon the forfeiture by Congress of the rights granted to the Atlantic and Pacific Eailroad Company, the lands to which its grant had attached upon the filing and acceptance of its map of definite location in 1872
did not inwre to the benefit of the Southern
Pacific.
Railroad Company;
that
“
if the act of forfeiture had not been passed by Congress, the Atlantic and Pacific could yet construct the road, and that constructing it, its title to these lands would become perfect ”; that “ no power but Congress could interfere with this right of the Atlantic and Pacific ”; that “ Congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited ” ; that
“
it enacted that they be restored to the public domain ”; that “ the forfeiture was not for the benefit of the Southern Pacific, it was not to enlarge its grant as it stood prior to the act of forfeiture,” but was for the benefit of the United States, as shown by the act of Congress declaring that the lands be restored to the public domain; consequently, that by the act of forfeiture, “ the title of the Atlantic and Pacific was retaken by the General Government, and retaken for its own benefit and not that of the Southern Pacific Company ”; and that the lands belonged to the
Touching the point made in the former cases, that the maps filed by the Atlantic and Pacific Eailroad Company designating a line from the Colorado Eiver to San Francisco were inoperative by reason of the want of authority to construct a road to the latter' city, the court said: “But it is urged by counsel for defendant that no map of definite location of line between the Colorado Eiver and the Pacific Ocean was ever filed by the Atlantic and Pacific or approved by the Secretary of the Interior. This' contention is' based upon these facts: The Atlantic and Pacific Company claimed that, under its charter, it was authorized to build a road from the Colorado Eiver to the Pacific Ocean, and thence along the coast up to San Francisco; and it filed maps thereof in four sections. San Buenaventura was the point where the westward line first touched the Pacific Ocean. One-of these maps was of that portion of the line extending from the western boundary of' Los Angeles County, a point east of San Buena-ventura, and through that place to San Miguel Mission, in the direction of San Francisco. In other words, San Buenaven-tura was not.the terminus of any line of definite location from the Colorado Eiver westward, whether shown by one or more maps, but only an intermediate point on one sectional map. When the four maps were filed, and in 1872, the Land Department, holding that the Atlantic and Pacific Company was authorized to build not only from the Colorado Eiver •directly to the Pacific Ocean, but also thence north to San Fráncisco, approved them
as establishing the line of definite location.
Subsequently, and while Mr. Justice Lamar was Secretary of the Interior, the matter was reexamined, and it was properly held that under the act of 1866 the grant to the Atlantic and Pacific was exhausted when its line reanhed the Pacific Ocean. San Buenaventura was, therefore, held to be the western terminus, and the location of the line approved to that point. The fact that its line was located, and maps filed thereof in sections, is immaterial.
St. Paul & Pacific Rail
The closing paragraph in the opinion in the former cases- is in these Avords:
“
Our conclusions, therefore, are, that a- valid and suificient map of definite location of its route from the Colorado River to the Pacific Ocean was filed by the Atlantic and Pacific Company and approved by the Secretary of the Interior; that by such act the title to these lands passed, under the grant of 1866, to the Atlantic and Pacific Railroad Company, and remained held by it subject to a condition subsequent until the act of forfeiture of 1886; that by. that act of forfeiture the. title of the Atlantic and Pacific was retaken by the General Government and retaken for its benefit, and not that of the Southern Pacific Company, and
that the latter company has no title of a/ny kind to these lands.”
In the cases of
United States
v.
Colton Marble and Lime Company
and
United States
v.
Southern Pacific Railroad Company,
The former cases were decided in this court on the 12th day of December, 1892.
A petition for rehearing was presented to the several members of the court, but a rehearing was not granted. In that petition the Southern Pacific Eailroad Company insisted that this court had erred in various particulars, among them the following:
In not giving due legal effect to the forfeiture act of July 6, 1886, its contention — as on the original hearing — being that the legal operation and effect of that act were to avoid the grant to the Atlantic and Pacific Eailroad Company as of the date of the act of 1866, and to restore to the United States, as of that date, the title of all the lands embraced in the forfeiture, leaving nothing in the way of the full enjoyment by the Southern Pacific Eailroad Company of the grant made to it; consequently, that all proceedings taken by the Atlantic and Pacific Eailroad Company, under the act of 1866, were avoided and defeated' as absolutely and effectually as if the grant had never been made and no proceedings taken in execution of it; and,
In respect to the “ designation of line under the Atlantic and Pacific Eailroad maps and the effect and operation thereof.”
The present suit was brought by the United States against the Southern Pacific Eailroad Company and D. O. Mills and G-. L. Lansing as trustees in a mortgage executed by that company on the 1st day of April, 1875 (the same trustees and mortgage referred to in the former cases), as well as against certain individuals and corporations, to quiet the title of the United States to the lands involved in this suit. It was pending at the time the former cases were decided in this court. The lands now in controversy are situated opposite to and are coterminous with the first, second and fourth sections of the Southern Pacific Eailroad as constructed between 1873 and
But all the lands now in dispute are within the limits of the grant to the Atlantic and Pacific Eailroad Company, if the maps filed by that company in 1872, and which were approved by the Land Department, are to be regarded as maps of definite location. This is substantially admitted to be a correct statement of the controlling question before the court; for the defendants, in their very able argument, state that the lands involved in this suit “ are within the limits which would have appertained to the grant to the Atlantic and Pacific upon the 1872 route, if that had been an authorized route, and if a definite location had been duly made thereon so as to attach the grant to specific lands.”
The contingencies here suggested have been fully met by this court; for it was distinctly adjudged, in the former cases, as between the Government and the Southern Pacific Eail-road Company,
It is said, however, that, under the pleadings and evidence in this collateral proceeding, it is open to the Southern Pacific Eailroad Company to renew the contest as to the sufficiency of the maps of 1872 filed by the Atlantic and Pacific Eailroad Company and to show that they were not maps of definite location.
Is this position consistent with the settled rule of law as to the conclusiveness, between parties and their privies, of the final determination by a court of competent jurisdiction of matters put in issue by the pleadings ?
The importance of this question, independently of the magnitude of the interests to be affected by our decision, and of the earnest contention of learned counsel, justifies a reference to some of the adjudged cases, showing the grounds upon which this salutary rule rests.
The general principle announced, in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right,- question or fact
Among the cases in this court that, illustrate the general rule are
Hopkins
v.
Lee,
In
Hopkins
v. Lee— which was a suit in equity by the purchaser of land to compel the vendor to remove certain incum-brances upon it — it was held that a fact established therein and made the basis of a decree could not be disputed in a subsequent action of covenant brought by the latter against the former for not conveying certain .lands, part of the consideration, the court saying that the rule on that subject had found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it an end could not be put to litigation; in
Smith
v.
Kernochen
— which was ejectment by an assignee of a mortgage to recover possession of the mortgaged premises — that a finai decree, in a previous suit, brought by the mortgagee against the mortgagor to foreclose the mortgage, adjudging the mortgage to be invalid for want of authority in the mortgagor to execute it, concluded the question of title, the court observing
The latest expressions of opinion by this court on this question are in
Last Chance Mining Co.
v.
Tyler Mining Co.,
In New Orleans v. Citizens’ Bank, it was held that the final and unreversed judgment of a court in Louisiana of superior jurisdiction upon the issue, duly raised by the pleadings, whether the bank was exempt by contract with the State from taxes assessed against it for particular years, concluded that question, as between the same parties and their representatives, in respect of taxes assessed against it for subsequent years. In that case the court said: “ The estoppel resulting from the thing adjudged does not depend upon whether there is the same demand in- both cases, but exists, even although there be different demands, when the question upon which the recovery of the second demand depends has under identical circumstances and conditions been previously concluded by a judgment between the parties or their privies.”
In view of these adjudications, it would seem that the controlling inquiry is whether, under the pleadings in the former cases, the sufficiency of the Atlantic and Pacific maps of 1872 as maps of definite location, was a matter in issue and determined, as between the United States and the Southern Pacific Railroad Company. . That that matter was in issue and was actually decided in the former cases, is too clear to admit of doubt. That it was material is equally clear; for, upon its determination depended the' question whether the grant of public lands to the Atlantic and Pacific Railroad Company attached to any specific lands along its line to which the for
The only way in which, in the former cases, the court could have avoided a decision as to the character of those maps, was to have held that whether they were maps of definite location or not, the rights of the Southern Pacific Railroad Company' attached, upon the declaration of forfeiture, to the lands then in dispute, and that Congress was without power to restore them to the public domain. So far .from sustaining that view, the court expressly adjudged that, upon the acceptance of the Atlantic and Pacific maps of 3872, the rights of that company, in the lands granted, attached as of the date of the grcmt of 1866, and that it was not possible .for the Southern Pacific Railroad Company, by the location of its road, whether located before qr after the acceptance of the maps of 1872, to acquire any interest whatever in the lands there in dispute that would prevent Congress, upon forfeiting the rights of the Atlantic and Pacific Railroad Company, from restoring such lands to the public domain to be disposed of by the United States as it saw. proper.
It is in effect said that the failure of the Government in the former cases to aver, in words, that the maps of 1872 were maps of “ definite location,” leaves the question of the sufficiency of those maps open in this case relating to different
It is also said that the decision in the former cases concluded, at most, only the question of title in respect of the lands there in controversy. This cannot be correct when the lands in both suits have a common source of title, and the title depends upon the existence or non-existence of the same fact or facts. If the accepted maps filed by the Atlantic and Pacific Railroad Company in 1872 sufficiently located the line of that company, it could not possibly be that they were valid >maps of definite location as to part of the lands appertaining to that line, and not maps of that character in respect of
But it is earnestly insisted that a prior judgment cannot operate as an estoppel in a subsequent suit between the same parties, unless it be pleaded when there is an opportunity to do so; that such an opportunity existed in this suit; and that the United States having failed to avail itself of that opportunity, it was open to the court to determine the truth of the matter upon all the evidence now before it.
This contention is based upon the 45th Bule in Equity, providing : “ No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without payment of costs, as the court, or a judge thereof, may in his discretion direct.” Under this rule, it is said, the United States had an opportunity to amend its bill, and in that mode to have met the allegations of the amended answer of 1893; but having failed to ask leave to amend, it lost the benefit of the former judgment.
The part of the amended answer of 1893 to which counsel refer as making an issue or issues not made in the former cases, and which, it is contended, must have been met by an amended bill if the Government expected to rely upon the prior judgment, is as follows:
“And the said respondents deny that said Atlantic and Pacific Railroad Company did locate on the ground or designate upon a plat or map tne whole of said line of railroad, under or in accordance with said act, from Springfield, Missouri, by way of the points or places named in said act, or otherwise, to the Pacific Ocean, and deny that it ever lawfully located or adopted or designated any part of said line in the State of California-; and deny that on or about the — day of -, 1866, or at any other time, said company did file any such plat in the office of the Commissioner of the General Land Office, and deny that at that, or at any such time, any such designation or location of said line of railroad was approved by the Secretary of the Interior; and deny that the odd sections of public lands on each side of said road for thirty miles were withdrawn from market or reserved; and deny that the lands in suit herein, or any of them, fell within the twenty-mile limits of any such line,, or were ever lawfully withdrawn from market, or reserved for, or for the benefit of, the said Atlantic and Pacific Railroad .Company; and deny that the Atlantic and Pacific Railroad Company ever designated a line of railroad between the Colorado River and the Pacific Ocean by a map thereof filed in the office of the' Commissionér of the General Land Office, or made or filed a map of definite location of a route from the Colorado River to the Pacific Ocean, whether by the most practical and eligible route or otherwise howsoever. The said respondents aver that the said Atlantic and Pacific Railroad Company never made any actual or definite location of its railroad in California, nor constructed any part of a railroad in said State, under or according to the act of Congress approved July 27, 1866, or any amendments, modifications or supplements thereto or otherwise howsoever. The pretended location of a route by said Atlantic and Pacific Railroad Company in California never was or became an actual or definite location, or anything else than an attempted or pretended designation of a general route for a railroad from San Francisco to the Reedies, and such pretended location or designation of route was a colorable and fraudulent location or designation of an unauthorized and impracticable line. The Secretary of the Interior never undertook to accept such pretended loca tion or designation as anything else than a designation of a general route, and no right to or interest in any public lands was, or could be, acquired by said railroad company by reason of any such attempted location or designation, or any act of acceptance thereof.”
Undoubtedly, there are cases in which a party may lose the benefit of a prior judgment, in respect of matters determined by it, when, having an opportunity to plead such judgment, he fails to do so. But that principle has no application in the present case. Under Equity Buie 45, a general replication to the amended answer of the defendant company sufficed, unless that amended answer contained such matter as made it “ necessary ” that the Government should amend the bill. But when a former recovery is to be relied on by the plaintiff it can only be necessary to amend the bill when the rules of pleading imperatively require.,that to be done in order to obtain the benefit of such recovery. No amendment of the bill was necessary in this case for the reason that the judgment in the prior suit — the present suit being on a different cause of action — could not be pleaded as. an absolute bar arising upon the face of the record, but could be used
as evidence
to support the - contention that the maps of 1872 sufficiently identified the lands granted by the act of 1866. The contrary is again asserted by the Southern Pacific Bailroad Company in this suit. But that precise .issue we have seen was made in the former .suit, and was determined for the United States. And to establish .that fact, .the United States introduced the former record as evidence in its behalf. To say that the Government lost the benefit of its former judgment, covering this issue or question, because it did not amend its bill and plead the judgment, as an estoppel, is to say that it was required to set out in its pleading what was merely evidence to support its title to the lands in controversy. The 45th Equity Buie is not to be so interpreted. It means, at most, that a general replication is always sufficient to put in issue every material allegation of an answer or amended answer, unless the rules of pleading imperatively require an amendment of the bill. Besides, Buie 45 must be construed in connection
But there is another reason why the United States was not required to amend its bill. Before the amended answer of 1893 was filed, the Government, by its pleadings, had distinctly alleged that the maps of 1872 sufficiently designated the line of the Atlantic and Pacific Railroad, and identified the lands granted to it, while the defendant’s pleadings with equal distinctness averred that they were not valid maps of definite location. Such was the condition of the record when this court decided the former case on the 12th day of December, 1892. That decision, as we are informed by the railroad company, instructed it “ as' to where the real strain of the controversy came,” and having failed “ to appreciate the inferences- which the court might draw from facts or evidence,” leave was obtained in the Circuit Court to file, and it did file in this case, the amended answer of 1893, bringing, it is claimed, into view such new issues- and such additional facts as deprived the Government of the right, unless it amended the bill and formally pleaded such judgment as an estoppel, to rely upon the judgment in the prior cases as conclusive of the matters determined by it. That which is claimed to be new in the amended answer was not such matter as even prior to Equity Rule 45 would .have required a special replication or an amended bill in order to avoid its effect. The amended answer was, at most, only a more extended statement of the grounds of defence previously set forth. The manifest purpose of. it was to relieve the strain of the -prior
That the record and judgment in the former cases were admissible in evidence, without being specially pleaded, we entertain no doubt. And when before the court as admissible evidence,, the only inquiry was whether the sufficiency of the maps of 1872 was a matter in issue and determined between the parties to those cases. There are some cases holding that a judgment, without being specially pleaded, is not conclusive upon the issues to which it relates, but is only pers.uasive evidence, and that the court is at liberty to find according to the truth as shown by all the evidence before it. But according to the weight of authority and upon prin
In the present case the railroad company has made an elaborate argument in support of the proposition that the necessary legal effect of the forfeiture act of July 6, 1886 was to restore the title of all lands affected by that act to the United States,
as of the date
of the grant of July 27, 1866, and to “ avoid ” and “ defeat,” as of that date, the grant to the Atlantic'and Pacific Eailroad Company with like effect as if it had never existed ; that, upon such' forfeiture, the United States became seized of its original estate in the lands as of July 27, 1866, with the same effect, as if it had never made any grant to the Atlantic and Pacific Railroad Company; and that it could only enter upon the lands for forfeiture as of its former estate in them. In this view, it is contended that the rights of the Southern Pacific Eailroad Company attached immediately upon the forfeiture, and before the lands so forfeited were restored .to the public domain. It is sufficient to say, in reference to this contention, that the question as to the effect of the act of forfeiture upon the rights of the Southern Pacific Railroad Company was fully considered and determined in the former, cases. It was held that it was
Por the reasons stated, we are of opinion that it must be taken in this case to have been conclusively adjudicated in the former cases as between the United States and the Southern Pacific Railroad Company —
1. That the maps filed by the Atlantic and Pacific Railroad Company in 1872 were sufficient, as maps of definite location, to identify the lands granted to that company by the act of 1866.
2. That upon the acceptance of those maps by the Land Department, the rights of that company in the lands so granted, attached, by relation, as of the daté of the act of 1866; and,
3. That in view of the conditions attached to the grant,
These grounds being accepted as the basis of our decision, the law in the present case is clearly for the United States; for, as all the lands here in controversy ar.e embraced by the maps of 1872, and, therefore, appertain to the line located by such maps, it must be, for the reasons stated in the former decision, that the United States is entitled, as between it and the Southern Pacific Railroad Company, to the relief given by the decree below.
Even if we were prepared upon a reexamination of the former cases, or upon the showing made by the present record, to hold that the maps of 1872* were not valid maps of definite location, we could not for that reason, in this proceeding, go behind the former adjudication, and deny to the United States the benefit of the rule making that adjudication, so long as it was unmodified, conclusive, as between the parties to it, of all matters actualty determined under the issues in the prior suits.
One other matter deserves attention. The learned counsel for the railroad company in their extended comments .upon the evidence in the present record, insist that, under the proof now before the court, it is indisputable that the Atlantic and Pacific Railroad Company did nothing more than file, in the Interior Department, “ a map of general or preliminary route for the purpose of securing a preliminary withdrawal of lands” ; that the maps of 1872 were neither filed nor accepted as maps of definite location; and that the proof is of such a peculiar character as to demand an examination of it by the court.
In support of this contention reference was made to duly certified copies of certain letters, appearing in the records of the Interior Department: 1. A letter to Mr. Delano, Secre
From these documents it appears that the attorney of the railroad company described two of the maps as “ designating,” and the remaining two as “ showing,” the line or route of the railroad, while the two letters óf the Secretary describe them as maps of the
“preliminary
location of portions” of the road. It is conceded that in the letters of the Secretary,
as originally written,
the maps were referred to as maps of
definite location
of portions of the Atlantic and Pacific Railroad. And it was shown that the word “preliminary,” inserted in place of “ definite,” in the two letters of the Secretary, was in the handwriting of a former (now deceased) clerk in the Land and Railroad Division of the Interior Department, who, it is claimed, made the change with the knowledge
Upon the part of the United States it is contended that there is no evidence whatever tending to show that the Secretary had any knowledge of or directed the word “ definite ” to be stricken out and “ preliminary ” inserted; on the contrary, that the Department, at all times, subsequently to March 9, 1872, treated the maps in question as maps of definite location. In support of its position the Government refers to the fact that in the letter-press copy, as well as in what is called by counsel the permanent record of letters, in the Department, the letter of the Secretary to the Commissioner of the General Land Office contains the words “ definite-location,” not “ preliminary location,” and the letter of the Secretary to Mr. Hillyer of March 9, 1872 reads “four maps of the definite location,” not “ four maps of the preliminary location.” The Government also refers to the fact that when the Commissioner of the Land .Office received the letter from the Secretary of the Interior the indorsement placed on the back of the map was in these words: “ Map of definite location of the Atlantic and Pacific Railroad through the county the Los Angeles, and part of San Bernardino, Cal. Received at the G. L. 0. with Secretary’s letter of March 9,1872 ” ; also . to the letter of the Commissioner, dated April 22, 1872, and addressed to the local land -officers in California, in which the former said:
“
Gentlemen: I transmit herewith a diagram showing the definite location of the Atlantic and Pacific Railroad under the act of July 27, 1866, Stat. Yol. 14, p. 292, from a point on the western boundary of Los Angeles Co. to a point in T. 7 H., R. 7 E. of the San Bernardino, in your district, showing also the twenty and thirty-mile limits of the land grant under said act,” etc. It also appears that Assistant Attorney General Smith, in an official communication addressed to the Secretary of the Interior, under date of March 16, 1874 — in which he considered the question of the right of the Atlantic and Pacific Railroad Company to locate -its
We cannot concur in the view that the evidence upon this branch of this case is of such nature as to compel the court, in the interest of truth and justice, not only to consider it but to pass again upon the issue made in the former suits as to the character of the maps of 1872. Whatever is new in the evidence now before us, touching that matter, is simply cumulative oh the one side or the other. The application to consider that evidence is practically an application for a rehearing as to things directly determined in the former suits between the same parties, and which adjudication has never been modified. Such a course of procedure is wholly inadmissible under the settled rule of res judicata. Without, therefore, expressing any opinion as to the effect of this new evidence relating to matters once finally adjudged, we hold that the Southern Pacific Railroad Company cannot, in this proceeding, question the validity of those maps as maps of definite location.
One of the objects of this suit was to obtain a decree quieting the title of the United States, not only to the lands claimed by the Southern Pacific Railroad Company, but to those claimed by numerous individual defendants by purchase from or contract with that company. The decree which was passed declares that it is not to “ affect any right which the defendants, or any of them, other than the Southern Pacific Railroad Company, now have or may hereafter acquire in, to or respecting any of the lands hereinbefore described, iü virtue-of the act of Congress entitled ‘An act to provide for the adjustment of land grants made by Congress to aid in the construction of railroads and for the forfeiture of unearned lands, and for other purposes,’ approved March 3, 1887.” Instead of- leaving undetermined the matters in dispute between the United States and the defendants other than the
The result is that the decree must he affirmed in all respects as to the Southern Pacific Railroad Company, as well as to the trustees in the mortgage executed hy that company, and affirmed also as to the other defendants, subject, however, to the right of the Government to proceed in the Circuit Court to a final decree as to those defendants, and it is so ordered.