The cases of
United States v. Southern Pacific
Railroad, 146 U. S. 570, and
United States v. Colton Marble & Lime Co. and
United States' v. Southern Pacific Railroad, 146 U.
S. 615, held to have adjudged, 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 Congress
of July 27, 1866, c. 278, 14 Stat. 292;
(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 date of that act and
(3) That in view of the conditions attached to the grant, and of
the reservations of power in Congress contained in the act of 1866,
such lands became, upon the passage of the Act of July 6, 1886, c.
637, 24 Stat. 123, forfeiting the lands granted to the Atlantic and
Pacific Railroad Company, the property of the United States, and by
force of that act were restored to the public domain, without the
Southern Pacific Railroad Company's having acquired any interest
therein that affected the ownership of the United States.
Page 168 U. S. 2
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 once so
determined must, as between the same parties or their privies, be
taken as conclusively established so long as the judgment in the
first suit remains unmodified.
The 45th Rule of Equity, providing that "no special replication
to any answer shall be filed," and that
"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"
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, and such an amendment is not required in
order to set out that which may be used simply as evidence to
establish any fact or facts put in issue by the pleadings.
Where a former recovery is given in evidence, it is equally
conclusive in its effect as if it were specially pleaded by the way
of estoppel.
This suit was brought by the United States to quiet its title to
a large tract of land in California, acquired under the Treaty of
Guadalupe Hidalgo, and now set apart by act of Congress and the
President's proclamation, issued thereunder, as part of a public
reservation.
The facts involved, and the legislation affecting the rights of
the respective parties, do not vary materially from those set forth
in
United States v. Southern Pacific Railroad,
146 U. S. 570.
In view of the full statement there, and of the still fuller
statement in the opinion of the court in this case, it is
sufficient, for the purpose of understanding the argument of
counsel reported below, to give the following facts
1. By the Act of July 27, 1866, c. 278, 14 Stat. 292, Congress
created a corporation called the Atlantic and Pacific Railroad
Company, authorized it to construct a railroad from Missouri to the
Colorado River, and thence across the State of California to the
Pacific, and made a grant of public lands to aid in the
construction of that railroad. In the same act, it further
authorized the Southern Pacific Railroad Company to connect with
the Atlantic and Pacific Railroad at or near the boundary of
California, and it made similar grants
Page 168 U. S. 3
to the Southern Pacific Railroad Company to aid in its
construction.
2. Under the Act of July 27, 1866, the Atlantic and Pacific
Company constructed a part of its road, but did no work west of the
Colorado River, the east line of the State of California.
By the Act of March 3, 1871, c. 122, 16 Stat. 573, the Southern
Pacific Company was authorized to construct a railroad 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 27, 1866, provided, however, that this section shall in no
way affect or impair the rights, present or prospective, of the
Atlantic and Pacific Railroad Company."
4. The Southern Pacific Company constructed such contemplated
railroad, and claims in this suit that the lands in dispute passed
to it under the act of 1871.
5. By the Act of July 6, 1886, c. 637, 24 Stat. 123, entitled
"An act to forfeit the lands granted to the Atlantic and Pacific
Railroad Company," etc., it was enacted
"that all the lands, excepting the right of was and the right,
power, and authority given to said corporation to take from the
public land 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, turntables, 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 twenty-seventh, eighteen hundred and sixty-six, 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 said
act of July twenty-seventh, eighteen hundred and sixty-six, and
acts and
Page 168 U. S. 4
joint resolutions subsequent thereto and relating to the
construction of said road and telegraph line be, and the same are
hereby, declared forfeited and restored to the public domain."
6. On April 3, 1871, the Southern Pacific Company filed a map of
its route from Tehachapa Pass to the Texas Pacific Railroad, and
proceeded to construct its road, and finished the entire
constriction in 1878. The road crossed the line of the Atlantic and
Pacific Company as located. The lands in controversy in the cases
reported in 146 U.S.
146 U. S. 570 and
146 U. S. 615 were
within the granted or place limits of both the Atlantic and Pacific
Company and the Southern Pacific Company at the place where the
lines crossed each other. The Southern Pacific Company claimed
that, as it had constructed its road, and as the other company had
not done the same, the lands became its property. It was to test
this claim of title and to restrain trespassed by the railroad
company and those claiming title under it that the suits reported
in 146 U.S. were instituted.
7. The decisions in those cases were adverse to the Southern
Pacific Company. This Court held, as stated in the headnote, that
the Atlantic and Pacific Railroad Company, having duly filed a
valid and sufficient map of definite location of its route from the
Colorado River to the Pacific Ocean, which was approved by the
Secretary of the Interior, the title to the lands in dispute passed
thereby to that company under the grant of July 27, 1866, and
remained held by it, subject to a condition subsequent, until the
forfeiture under the Act of July 6, 1886, and that by that Act of
Forfeiture, the title thereto was retaken by the United States for
its own benefit, and not for that of the Southern Pacific Railroad
Company, whose grant never attached to the lands so as to give that
company any title of any kind to them.
Then this suit was brought, in which the principal contention on
the part of the United States was that the in dispute are in the
same category in every respect with those in controversy in the
cases reported in 146 U.S., and that, so far as the question of
title id concerned, the judgments in those cases conclusively
determined, as between the United States and the Southern Pacific
Railroad Company
Page 168 U. S. 5
and its privies, the essential facts upon which the government
rests.
9. In the former cases, the United States insisted that the
controlling matter was whether the maps of location filed by the
Atlantic and Pacific Railroad Company in 1871, and which were
accepted by the Land Department as sufficiently designating that
company's line of road under the Act of July 27, 1866, were valid
as maps of definite location. The United States contended that they
were maps of that character. The Southern Pacific Company contended
that they were not. The issue so made was determined in favor of
the United States. In this case, the United States insisted that,
it having been so determined, and the lands here in dispute being
within the limits of the line of road so designated, it was not
open to the Southern Pacific Company to question the result reached
in the suits reported in 146 U.S. Such maps, it was claimed,
sufficiently identified the lands granted by Congress to the
Atlantic and Pacific Railroad Company by the act of 1866, and were
therefore valid maps of definite location.
Page 168 U. S. 24
MR. JUSTICE HARLAN 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 Guadelupe Hidalgo.
These lands, it is stated by counsel, aggregate about 700,000
acres, 61,939 acres of which have heretofore been patented to the
Southern Pacific Railroad 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
three and four north, ranges five, six, and seven west; township
one north, ranges sixteen, seventeen, and eighteen west; township
six and the south three-fourths of township seven north, ranges
eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen,
eighteen, and nineteen west; all sections designated by odd
numbers, as shown by the public surveys, embraced within the
townships from number two north to number five north, both numbers
included, and ranges from number eight west to number eighteen
west, both numbers included, except sections twenty-three and
thirty-five in township four north, range fifteen west, and except
sections one, eleven, and thirteen in township three north, range
fifteen west; also the unsurveyed lands within said area which will
be designated as odd-numbered
Page 168 U. S. 25
sections when the public surveys according to the laws of the
United States shall have been extended over such townships -- all
of the aforesaid lands being surveyed by San Bernardino base and
meridian."
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, 26 Stat. 1095, 1103, c. 561, § 24, 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,
146 U. S. 570, and
United States v. Colton Marble & Lime Co. and
United States v. Southern Pacific Railroad, 146 U.
S. 615, and that, so far as the question of title is
concerned, the judgments in those cases have conclusively
determined, as between the United States and the Southern Pacific
Railroad Company and its privies, the essential facts upon which
the government rests its present claim.
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 & 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, 14 Stat. 292, c. 278, 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 the government makes it necessary to ascertain
what was in issue and what was determined in the
Page 168 U. S. 26
former cases. Did the former adjudication have the scope
attributed to it by the United States? If it did, the decision of
the present case will not be difficult.
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, and 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, 14 Stat. 292, c. 278,
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 Frio 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 practical and
eligible route, to the Pacific." § 1. In 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 plat 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
Page 168 U. S. 27
on both sides of the entire line after the general route was
fixed and as fast as the construction of the railroad required;
that the grants, rights, and privileges specified in the act of
Congress were given and accepted subject to the conditions that the
company would commence work within two years from the approval of
the act, complete not less than fifty miles per year after the
second year; construct, equip, furnish, and complete its main line
by July 4, 1878, and if the company made any breach of the
conditions imposed, and allowed the same to continue for upward of
one year, then at any time thereafter, the United States could do
any and all acts and things needful and necessary to insure a
speedy completion of the road. §§ 6, 8, and 9.
By the eighteenth section of the act, the Southern Pacific
Railroad Company, a California corporation, was authorized to
connect with the Atlantic and Pacific Railroad 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 Railroad 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
Railroad Company, add to, alter, amend or repeal this act."
The Legislature of California, by an act approved April 4, 1870,
authorized the Southern Pacific Railroad 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
Page 168 U. S. 28
June 28, 1870, Congress declared that that company might
construct its road and telegraph line, as near as might be, on the
route indicated by the map filed by that company in the Department
of the Interior on the 3d day of January, 1867, and
"upon the construction of each section of said road in the
manner and within the time provided by law, and notice thereof
being given by the company to the Secretary of the Interior, he
shall direct an examination of each such section by commissioners
to be appointed by the President, as provided in the act making a
grant of land to said company, approved July 27th, 1866, and upon
the report of the commissioners to the Secretary of the Interior
that such section of said railroad and telegraph line has been
constructed as required by law, it shall be the duty of the said
Secretary of the Interior to cause patents to be issued to said
company for the sections of land coterminous to each constructed
section reported on as aforesaid, to the extent and amount granted
to said company by the said Act of July 27th, 1866, expressly
saving and reserving all the rights of actual settlers, together
with the other conditions and restrictions provided for in the
third section of said act."
16 Stat. 382.
By an act approved March 3, 1871, 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 sixty-six:
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. 572, 579.
Page 168 U. S. 29
The Southern Pacific Railroad Company constructed the road thus
contemplated, and claims that the lands here in dispute passed to
it under the above act of 1871.
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, 24 Stat. 123, c. 637, 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, turntables 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 27th, 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
27th, 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 5,342 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
Page 168 U. S. 30
defendants. In the other, the same company and trustees,
together with the City Brick Company, Thomas Goss, Edward Simmons,
and A. A. Hubbard, were defendants.
These are the cases reported in 146 U.S.
146 U. S. 570,
146 U. S. 615.
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 route, 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.
Page 168 U. S. 31
Your orator alleges that
said several parts of its map,
filed as aforesaid, made and constituted the entire route or line
of said Atlantic and Pacific Railroad Company, fully designating
the whole thereof."
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 noncompletion 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 twenty-third section of the Act of Congress
of March 3, 1871, 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
Page 168 U. S. 32
alleges that the Southern Pacific Railroad Company, which was
organized and created on August 12, 1873, by the pretended articles
of amalgamation and consolidation of said several railroad
companies as heretofore set forth, did construct and complete a
railroad from Tehachapi Pass, by way of Los Angeles, to the
Colorado River in the manner and within the time prescribed in said
act of Congress, in which the Southern Pacific Railroad Company,
therein named, was authorized and empowered to do. And thereafter
the commissioners appointed under said act for that purpose did
unlawfully make and file their alleged acceptance of the whole of
said railroad by sections. And there was not, and is not now, any
railroad or part thereof constructed or completed under said act or
between said points otherwise than as aforesaid."
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 were
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,
Page 168 U. S. 33
defendant herein, but are still owned by the plaintiff,"
and that the Secretary of the Interior, on the 16th day of
August, 1887, on behalf of the government and in accordance with
law, demanded of said company the relinquishment of its claim to
all of the lands described in such patents, and a return of the
patents, all of which that company refused to do.
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. From 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
required by said act."
"This defendant denies that, on the 9th 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 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 endorsements
Page 168 U. S. 34
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 Railroad Company,
by or through the filing
of said maps, acquired the right to any lands of the United States
lying opposite to the lines or route marked on said maps, 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 Railroad 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 Railroad."
"Further answering, this defendant says that the Atlantic and
Pacific Railroad Company afterwards,
viz., on the 13th 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 by
Page 168 U. S. 35
this defendant, marked 'Exhibit C, Nos. 1 and 2,' and
are
now herein referred to and made part of this answer. And this
defendant
denies that said maps constituted a valid location of
the parts or fractions of road therein described, and denies that
the four 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 Commissioner of the General 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 designated
Page 168 U. S. 36
route of the said Atlantic and Pacific Railroad Company reserved
from sale and withdrawn; that about April 22, 1872, the
Commissioner of the General Land Office ordered lands withdrawn for
thirty miles on each side of the parts of lines of route attempted
to be located March 9, 1872, by the two maps hereinbefore mentioned
as filed March 9, 1872, his orders being addressed to the register
and receiver of the United States land office at San Bernardino,
Los Angeles, and Visalia, and were substantially as shown by the
certified copy of the commissioner's letter of said date to the
officers at Los Angeles, but the defendant denied that the orders
of April 22, 1872, had any effect whatever upon its rights and
grants, and were intended only to take effect upon public lands not
reserved, sold, granted, or otherwise appropriated at the time of
filing said maps, March 9, 1872.
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 'R,' and made a
part of this answer."
Admitting that the 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 averring
that that company did not at any time construct or complete any
railroad west of the Colorado River, 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
Page 168 U. S. 37
within thirty miles of such route to be withdrawn from market
(certified copy of the map filed by this defendant in the office of
the Commissioner of the General Land Office is annexed to the
answer heretofore filed by this defendant marked 'Exhibit D,' and
the same is now referred to and made part of this answer);"
that
"it is the same railroad company that constructed the railroad
provided for in the 23d section of said Act of Congress of March 3,
1871, and that it fully constructed and completed its road
according to said act, and the construction thereof has been
accepted and approved by the President of the United States,
construction of the last mile of said road having been accepted by
President Hayes on the 23d of January, 1878."
The Southern Pacific Railroad Company admitted in its answer
that the line which the Atlantic and Pacific Railroad claimed to
have located in California "
crosses the line of the Southern
Pacific Railroad located under 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 Pacific
Page 168 U. S. 38
Railroad 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 denied 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, Nos. 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 government 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,
Page 168 U. S. 39
that is, a right to earn them and to obtain a complete title by
construction of its road;
That the Atlantic and Pacific Railroad Company, by certain maps
and plats filed in the office of the Commissioner of the General
Land 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 Buenaventura, and the Colorado River,
to Springfield, Missouri, so as to become entitled, as of the date
of the grant of July 27, 1866, 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, 24 Stat.
123, c. 637, 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
defense 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
Page 168 U. S. 40
to identify any specific lands west of the Colorado River;
were not therefore maps of definite location, and that that
company never made any sufficient location or designation of a line
in California, so that it could claim the lands in dispute under
the grant made by the act of 1866;
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 the Southern Pacific
Railroad 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
Page 168 U. S. 41
Southern Pacific Company,
to exclude the lands in the
overlapping limits at the place of crossing from the latter
grant; 3. whether, if such designation was made, the proviso
in the 23d section of the above Act of March 3, 1871, protecting
the rights, 'present and prospective,' of the Atlantic and Pacific
Company, was designed for any other purpose than to save to it any
lands which it might eventually earn by a full performance of its
undertaking."
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 F. 132; 40 F.
611; 45 F. 596; 46 F. 683. But this Court reversed the judgment so
rendered, holding:
That the grants to the Atlantic and Pacific and the Southern
Pacific Railroad Companies were
in praesenti -- 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
Page 168 U. S. 42
to them the title of the Atlantic and Pacific attached
as of July 27, 1866;" that
"in fact, the line of definite location of the Atlantic and
Pacific was established, and maps thereof filed and approved,
before any action in that respect was taken by the Southern Pacific
Company;"
and that
"there was never a time therefore at which the grant of the
Southern Pacific could be said to have attached to these lands, and
the plausible argument based thereon, made by counsel for the
Southern Pacific Company, falls to the ground;"
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, 112 U. S. 720, and
Sioux
City and St. Paul Railroad v. Chicago, Milwaukee &c.
Railway, 117 U. S. 406;"
that
"even if Congress had in terms expressed an intent to that
effect in a subsequent act, it was not competent by such
legislation to divest the rights already vested in the Atlantic and
Pacific Company;"
that the case, stating it in the best way for the railroad
company, was one "of two companies with conflicting grants, each of
whose lines of definite location has been
Page 168 U. S. 43
approved by the Land Department;" and that "unquestionably the
grant older in date takes the land;"
That whatever right or title was acquired by the Southern
Pacific Railroad Company by its map filed April 3, 1871, 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 1866, and title
had then passed, and
there never was a title of any kind vested
in the Southern Pacific Company;"
and
That, upon the forfeiture by Congress of the rights granted to
the Atlantic and Pacific Railroad Company, the lands to which its
grant had attached upon the filing and acceptance of its map of
definite location in 1872
did not inure 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
Page 168 U. S. 44
United States, and the Southern Pacific Railroad Company had "no
title of any kind" to them.
United States v. Southern Pacific
Railroad, 146 U. S. 570,
146 U. S.
607.
Touching the point made in the former cases, that the maps filed
by the Atlantic and Pacific Railroad Company designating a line
from the Colorado River 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 River 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 River 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 Buenaventura, and through that place to San
Miguel Mission, in the direction of San Francisco. In other words,
San Buenaventura was not the terminus of any line of definite
location from the Colorado River 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 River directly to the Pacific
Ocean, but also thence north to San Francisco, 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
reached 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
Railroad
Page 168 U. S. 45
v. Northern Pacific Railroad, 139 U. S. 1.
Indeed, all the transcontinental roads, it is believed, filed their
maps of route in sections. So the question is whether the filing a
map of definite location from the Colorado River, through San
Buenaventura, to San Francisco, under a claim of right to construct
a road the entire distance, is good as a map of definite location
from the Colorado River to San Buenaventura, the latter point being
the limit of the grant.
We think unquestionably it is.
Though a party claims more than he is legally entitled to, his
claim ought not to be rejected for that to which he has a right.
The purpose of filing a map of definite location is to enable the
Land Department to designate the lands passing under the grant, and
when a map of such a line is filed, full information is given, and,
so far as that line may legally extend, the law perfects the title.
It surely cannot be that a company must determine at its peril the
extent to which its grant may go, or that a mistake in such
determination works a forfeiture of all its right to lands."
146 U.S.
146 U. S. 570,
146 U. S.
596.
The closing paragraph in the opinion in the former cases is in
these words:
"Our conclusions, therefore, are that a valid and sufficient 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 any kind to these
lands."
146 U.S.
146 U. S.
607.
In the cases of
United States v. Colton Marble and Lime
Company and
United States v. Southern Pacific
Railroad, 146 U. S. 615, it
was adjudged that the proviso in the Act of March 3, 1871, 16 Stat.
573, c. 122, giving lands in aid of the construction of the
Southern Pacific Railroad, that the grant should "in no way affect
or impair the rights, present
Page 168 U. S. 46
or prospective, of the Atlantic and Pacific Railroad Company,"
operated to except the indemnity lands of the Atlantic and Pacific
Company from the grant to the Southern Pacific 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 Railroad 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 Railroad 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 Railroad Company of the grant made to it; consequently,
that all proceedings taken by the Atlantic and Pacific Railroad
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 Railroad maps and the effect and operation thereof."
The present suit was brought by the United States against the
Southern Pacific Railroad 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 Railroad as constructed
between 1873 and
Page 168 U. S. 47
1877, inclusive, and within the primary and indemnity limits of
the grant to the Southern Pacific Railroad Company made by the
twenty-third section of the Texas and Pacific Act of March 3, 1871,
the 61,939.62 acres patented to that company being opposite to the
first and fourth sections of its road. It may be said that the
lands here in dispute belong to one or the other of the following
classes: lands within the common granted limits of both the
Atlantic and Pacific grant of 1866 and the Southern Pacific grant
of 1871, lands within the granted limits of the Southern Pacific
grant and the indemnity limits of the Atlantic and Pacific grant,
lands within the Southern Pacific indemnity limits and the Atlantic
and Pacific granted limits, lands within the common indemnity
limits of both grants. Of those in dispute, 219,012.93 acres have
not been surveyed by the United States.
But all the lands now in dispute are within the limits of the
grant to the Atlantic and Pacific Railroad 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 Railroad Company,
146 U. S. 146 U.S.
570,
146 U. S. 596,
that the maps filed in 1872 sufficiently identified the lands
granted to the Atlantic and Pacific Railroad Company on the
contemplated line between the Colorado River and San Buenaventura
on the Pacific Coast, although, for want of authority in that
company to construct a railroad to San Francisco, they did not
secure to the company any lands north of San Buenaventura -- that
is, those maps were directly adjudged to be maps adequately
Page 168 U. S. 48
fixing or locating the line of the road under the act of 1866.
The records of those cases having been introduced in the present
suit, there is no room for doubt (if those records are competent
evidence) as to what was in issue and what was adjudged in the
former cases. The maps which in this case are relied upon by the
United States as maps of definite location, and which the Southern
Pacific Railroad Company denies to be of that character,
are
the identical maps which the government relied on in the former
cases, and the same which that company referred to
and
made part of its answer in the former litigation, and which
were adjudged by this Court, in conformity with the contention of
the government, to be valid maps of definite location, the
acceptance of which made it impossible for the Southern Pacific
Railroad Company to acquire any interest in any lands granted to
the Atlantic and Pacific Railroad Company that were forfeited to
the United States by the act of 1886.
It is said, however, that under the pleadings and evidence in
this collateral proceeding, it is open to the Southern Pacific
Railroad Company to renew the contest as to the sufficiency of the
maps of 1872 filed by the Atlantic and Pacific Railroad 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
Page 168 U. S. 49
once so determined must, as between the same parties or their
privies, be taken as conclusively established so long as the
judgment in the first suit remains unmodified. This general rule is
demanded by the very object for which civil courts have been
established, which is to secure the peace and repose of society by
the settlement of matters capable of judicial determination. Its
enforcement is essential to the maintenance of social order, for
the aid of judicial tribunals would not be invoked for the
vindication of rights of person and property if, as between parties
and their privies, conclusiveness did not attend the judgments of
such tribunals in respect of all matters properly put in issue and
actually determined by them.
Among the cases in this Court that illustrate the general rule
are
Hopkins v.
Lee, 6 Wheat. 109,
19 U. S. 113;
Smith v.
Kernochen, 7 How. 198,
48 U. S. 216;
Thompson v.
Roberts, 24 How. 233,
65 U. S. 240;
Washington, Alexandria &
Georgetown Steam Packet Co. v. Sickles, 24 How.
333,
65 U. S.
340-341,
65 U. S. 343;
Russell v. Place, 94 U. S. 606,
94 U. S. 608;
Cromwell v. Sac County, 94 U. S. 351;
Campbell v. Rankin, 99 U. S. 261;
Lumber Co. v. Buchtel, 101 U. S. 638;
Bissell v. Spring Valley Township, 124 U.
S. 225,
124 U. S. 230,
and
Johnson Co. v. Wharton, 152
U. S. 253.
In
Hopkins v. Lee, which was a suit in equity by the
purchaser of land to compel the vendor to remove certain
encumbrances 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 final 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
Page 168 U. S. 50
that the case came within the general rule that the judgment of
a court of concurrent jurisdiction directly upon the point is, as a
plea, a bar, or as evidence conclusive between the same parties or
their privies upon the same matters, when brought directly in
question in another court; in
Thompson v. Roberts, that
the judgment of a court of law, or a decree of a court of equity,
directly upon the same point and between the same parties, is good
as a plea in bar and conclusive when given in evidence in a
subsequent suit; in
Washington, Alexandria & Georgetown
Steam Packet Co. v. Sickles, that, to the end that rights
might be secured and the repose of society preserved, and that
limits might be imposed upon the faculties of litigation, the
presumption had been adopted that the thing adjudged by a court of
competent jurisdiction, under definite conditions, shall be
received in evidence "as irrefragable truth," such a presumption
being a guaranty of the future efficiency and binding operation of
the judgment; in
Cromwell v. Sac County, that a judgment
upon the merits constitutes an absolute bar to a subsequent suit
upon the same cause of action in respect to every matter offered
and received in evidence or which might have been offered to
sustain or defeat the claim in controversy, while, if the second
action is upon a different claim or demand, the judgment in the
prior action operates as an estoppel only as to those matters in
issue or points controverted upon the determination of which the
finding or verdict was rendered, the inquiry in such case being "as
to the point or question actually litigated and determined in the
original action, not what might have been litigated and
determined;" in
Russell v. Place, that
"a judgment of a court of competent jurisdiction upon a question
directly involved in one suit is conclusive as to that question in
another suit between the same parties;"
in
Campbell v. Rankin, that in an action to recover
damages for trespass upon a mining claim, the record of a former
suit between the same parties, involving the same question of
interfering mining claims, was admissible as evidence, the Court
observing that
"whenever the same question has been in issue and tried, and
judgment rendered, it is conclusive of the issue so decided in any
subsequent
Page 168 U. S. 51
suit between the same parties;"
in
Lumber Co. v. Buchtel, that, in a suit for the
amount of the first installment due on a contract for the purchase
of timber lands (the defense being that the defendant had been
induced to make the contract by false and fraudulent
representations), a judgment based upon a finding that no such
representations were made was conclusive in respect of that matter
in a subsequent action brought on the contract to recover a
different installment; in
Bissell v. Spring Valley
Township, that an adjudication, in an action on coupons of
municipal bonds, sustaining the defense that the municipality never
executed the bonds, and that the bonds were not its legal
obligations, was conclusive in a subsequent action brought by the
same party on different coupons of the same bonds, and in
Johnson Co. v. Wharton, that in an action to recover
stipulated royalties for a named period for guard rails constructed
according to the specifications of a certain patent, in which
judgment was given for the plaintiff, the defendant in a second
suit, brought to recover like royalties for a later period, could
not make the same defense, although, by reason of the small amount
in dispute, he was precluded from having the judgment in the first
suit reviewed upon writ of error, this Court stating that it was a
general rule, having its foundation in a wise public policy, that
the final judgment of a court at least one of superior
jurisdiction, competent under the law of its creation to deal with
the parties and the subject matter and having acquired jurisdiction
of the parties, concludes those parties and their privies in
respect of every matter put in issue by the pleadings and
determined by such court.
See also
Lessee of Parrish v.
Ferris, 2 Black 606,
67 U. S. 608;
Packet Co. v.
Sickles, 5 Wall. 580,
72 U. S. 592;
Dowell v. Applegate, 152 U. S. 327,
152 U. S.
342.
The latest expressions of opinion by this Court on this question
are in
Last Chance Mining Co. v. Tyler Mining Co.,
157 U. S. 683,
157 U. S. 691,
and
New Orleans v. Citizens' Bank, 167 U.
S. 371,
167 U. S. 396.
In the first of these cases, it was held that a judgment by default
in favor of the Last Chance Mining Company against the Tyler Mining
Company for a parcel of land embraced within the boundaries of
certain mining claims,
Page 168 U. S. 52
alleged to have been legally located, and to belong to the
former company, precluded the latter company from contending, in a
subsequent action for part of a mineral vein not embraced within
the former suit, but within the mining claims involved in the first
suit, that the mining claims in question had not been legally
located, the Court observing that a judgment by default was just as
conclusive an adjudication between the parties of what is essential
to support the judgment as one rendered after answer and contest,
the essence of estoppel by judgment being that there has been a
judicial determination of a fact, and the question always is has
there been a determination? and not upon what evidence and by what
means was it reached?
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 forfeiture
Page 168 U. S. 53
act of 1886 could apply. If those maps were valid maps of
definite location, then, according to the settled adjudications of
this Court, to which reference has often been made, the right of
that company to earn the lands appertaining to it line, thus
definitely located, attached, by relation, as of the date of the
grant to it in 1866, and in this view the Southern Pacific Railroad
Company, holding the junior grant, took none of the lands
appertaining to that line by reason of the definite location and
construction of its line. Thus also, those lands were in such
condition at the date of the Forfeiture Act of 1886 that they could
be forfeited as lands in which the Atlantic and Pacific Railroad
Company then had an interest, and, in accordance with the act of
Congress, be fully restored to the public domain for the exclusive
benefit of the United States, unaffected by the later grant made to
the Southern Pacific Railroad Company.
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 1872, the
rights of
that company in the lands granted attached
as of the date of the grant of 1866, and that it was not
possible for the Southern Pacific Railroad Company, by the location
of its road,
whether located before or 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
Page 168 U. S. 54
lands. It seems to be forgotten that the amended bill was in
exact conformity with the act of 1866, which, in the third section
-- the one making the grant -- used the words, "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." The
word "designated" in that act meant no more nor less than the words
"definitely located" mean. When the Southern Pacific Railroad
Company denied that the Atlantic and Pacific line had been
sufficiently designated, or that there had been a valid location of
it, both litigants, as well as the court, understood, and properly,
that the case presented the question whether there had been such a
definite location of the Atlantic and Pacific line as the act of
Congress required. That that company so understood the word
"designated," as used in the third section of the act of 1866, is
beyond question, for its answer filed in the former cases on the
30th of December, 1889, in which it claimed the lands then in
controversy, refers to the map filed by it on the 3d of April,
1871, as one by which "it
designated the line of its said
railroad." And when it was adjudged that the maps of 1872 indicated
a definite location of the line of the Atlantic and Pacific
Railroad, the settled rules of law forbid that the defeated party
should reopen that question in another suit, relating to other
lands appertaining to the line so designated. The matter alleged by
the government, and upon which the recovery proceeded, was, we
repeat, the sufficiency of the maps of 1872 to entitle the Atlantic
and Pacific Railroad Company to earn the lands there in
disputed.
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 nonexistence 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
Page 168 U. S. 55
other lands embraced by it. Consequently, the former judgment,
while unmodified, determined the character of the maps as between
the United States and the Southern Pacific Railroad Company. If the
court had adjudged in the former cases that those maps were neither
filed nor accepted as maps of definite location, but were only maps
of general route, could it be doubted that the government would
have been estopped from asserting to the contrary in a subsequent
suit involving other lands claimed by the Southern Pacific Railroad
Company which were covered by the same maps, and appertained to the
same line? Must a different principle be applied because the
decision was favorable to the government upon the question whether
the maps of 1872 were maps of definite location? Certainly not.
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 forty-fifth rule 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
Page 168 U. S. 56
upon a plat or map the 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 Commissioner 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 Needles, 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 location
Page 168 U. S. 57
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 Rule 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 Railroad 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 forty-fifth
equity rule 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, Rule 45 must be construed in connection
Page 168 U. S. 58
with Equity Rule 19, declaring that the plaintiff, at his
discretion, may omit from the bill
"what is commonly called the charging part of the bill, setting
forth the matters or excuses which the defendant is supposed to
intend to set up by way of defense to the bill."
If it was competent for the government in this case to have
referred in its bill to the former suit, and, in advance, by
appropriate allegations, to have met the objections which it
supposed the defendant would urge to the former judgment as fixing
the character of the maps of 1872, it was not bound to pursue that
course, nor to amend its bill and set out what was only evidence of
its title to the particular lands in controversy.
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 defense previously set forth. The
manifest purpose of it was to relieve the strain of the prior
Page 168 U. S. 59
decision, and, under the guise of presenting new issues of a
substantial character, to enable the railroad company, by
introducing additional evidence on its behalf, to retry, in this
collateral proceeding, the question as to the sufficiency of the
maps of 1872. The pleadings in the prior cases distinctly averred
an adequate designation of the line of the Atlantic and Pacific
Railroad and the identification of the lands appertaining to that
line. The averment in the amended answer of 1893 that the location
by the Atlantic and Pacific Railroad Company of its route in
California "never was or became an actual or definite location,"
but was only "an attempted or pretended designation of a general
route for a railroad from San Francisco to The Needles," and that
such designation of its route was "a colorable and fraudulent
location or designation of an unauthorized and impracticable line,"
was not at all necessary, because the defendant company, under its
original answer, if not estopped by the former judgment, could have
introduced any evidence tending to show that there had been no
valid definite location of the line of the Atlantic and Pacific
Railroad, and that the maps of 1872 were filed and accepted only
for the purpose of indicating a general route. So that, if the
government was entitled, under the pleadings as they were when the
defendant company filed its amended answer of 1893, to introduce in
evidence the record and judgment in the former cases, its right in
that respect was not lost by its failure to amend its bill and
specially set up that record.
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 persuasive 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 principle,
Page 168 U. S. 60
the former judgment, if admissible in evidence at all, is
conclusive of the matters put in issue and actually determined by
it. Mr. Greenleaf correctly says that
"the weight of authority, at least in the United States, is
believed to be in favor of the position that where a former
recovery is given in evidence, it is equally conclusive in its
effect as if it were specially pleaded by the way of estoppel."
1 Greenleaf on Ev. § 531. This view is in accord with the
decisions of this Court above cited.
See also Marsh v.
Pier, 4 Rawle 272, 288;
Lawrence v. Hunt, 10 Wend.
80, 83;
Betts v. Stair, 5 Conn. 550;
Sawyer v.
Woodbury, 7 Gray 499, 502;
Jennison v. Inhabitants,
13 Gray 544;
Cannon v. Brame, 45 Ala. 262;
Trayhern v.
Colburn, 66 Md. 277, 278;
Garton v. Botts, 73 Mo.
274, 278;
Walker v. Chase, 53 Me. 258, 260;
Lynch v.
Swanton, 53 Me. 100, 102;
Prather v. Owens, Cheves
(Law) 236;
Jones v. Weathersbee, 4 Strob. (Lawe) 50,
54-55;
Warwick v. Underwood, 3 Head 238, 240;
Isaacs
v. Clark, 12 Vt. 692, 694.
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
Railroad Company, with like effect as if it had never existed;
that, upon such forfeiture, the United States became seised 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 Railroad
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
Page 168 U. S. 61
not the intention of Congress that these lands should pass
conditionally to the Southern Pacific Railroad Company, or to give
to it any lands previously granted to the other company, and that
the first proviso of section 3 of the act of 1866 imports that
"Congress was not only not intending to give to one company that
which it had already given to another, but intended that lands
previously granted should be definitely excepted from the later
grant."
The court said:
"Again, there can be no question, under the authorities
heretofore cited, that if the Act of Forfeiture had not been passed
by Congress, the Atlantic and Pacific could yet construct its road
and that, constructing it, its title to these lands would become
perfect. No power but that of Congress could interfere with this
right of the Atlantic and Pacific. No one but the grantor can raise
the question of a breach of a condition subsequent. Congress, by
the Act of Forfeiture of July 6, 1886, determined what should
become of the lands forfeited. It enacted that they be restored to
the public domain. 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. It had given to the Southern Pacific all
that it had agreed to in its original grant, and now, finding that
the Atlantic and Pacific was guilty of a breach of a condition
subsequent, it elected to enforce a forfeiture for that breach, and
a forfeiture for its own benefit."
For 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 date of the act of 1866; and
3. That, in view of the conditions attached to the grant,
Page 168 U. S. 62
and of the reservations of power in Congress contained in the
act of 1866, such lands became, upon the passage of the Forfeiture
Act of 1886, the property of the United States, and by force of
that act were restored to the public domain without the Southern
Pacific Railroad Company's having acquired any interest therein
that affected the power of the United States to forfeit and restore
them to the public domain.
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 are 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
rulemaking that adjudication, so long at it was unmodified,
conclusive, as between the parties to it, of all matters actually
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, Secretary
Page 168 U. S. 63
of the Interior, from Mr. Hillyer, attorney of the Atlantic and
Pacific Railroad Company, under date of March 8, 1872, enclosing
"the accompanying maps to be filed in the office of the
Commissioner of the General Land Office" -- the the above maps of
1872, four in number -- which letter concludes:
"The Atlantic and Pacific Railroad Company respectfully request
that the lands embraced in the grant to the company under the
provisions of the Act of July 27, 1866, and coterminous with the
portions of the line or route designated by the plats herewith
filed or heretofore filed by said company, may be withdrawn from
sale, entry, or preemption, and reserved for said railroad company
according to the provisions of said act."
2. A letter from Secretary Delano to Mr. Hillyer, under date of
March 9, 1872, acknowledging the receipt of the latter's letter,
"transmitting four maps of the preliminary location of portions of
the Atlantic and Pacific Railroad," and saying that said "maps have
today been transmitted to the Commissioner of the General Land
Office for appropriate action." 3. A letter from the Secretary of
the Interior to the Commissioner of the General Land Office, under
date of March 9, 1872, saying, "I transmit herewith, for
appropriate action, four maps of the preliminary location of
portions of the Atlantic and Pacific Railroad," and that said "maps
were received yesterday from C. J. Hillyer, Esq., Atty. of the Co.
-- in this city."
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 of 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,
Page 168 U. S. 64
or in conformity with the directions, of the Secretary; also
that corresponding memoranda, in pencil and in the handwriting of
that clerk, appear upon those letters and upon the jackets
containing them.
Upon the part of the United States, it is contended that there
is no evidence whatever tending to show what the Secretary had any
knowledge of or directed the word "definite" to be stricken out an
"preliminary" inserted; on the contrary, that the department at all
times subsequent 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 letterpress 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 endorsement placed on the back of
the map was in these words:
"Map of definite location of the Atlantic and Pacific Railroad
through the County of Los Angeles and part of San Bernardino, Cal.
Received at the G.L.O. 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. Vol. 14, p. 292, from a point on the western
boundary of Los Angeles County to a point in township 7 N., range 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
Page 168 U. S. 65
line from the Colorado River, by way of Tehachapi Pass, to San
Francisco, referred to and treated the maps of 1872 as maps of
definite location. And they were so referred to and treated by
Secretary Lamar in his opinion of March 23, 1886, holding that that
company was not entitled to construct a road from San Buenaventura
to San Francisco. 4 D.L.O. 458.
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 on 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 in 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
Page 168 U. S. 66
Southern Pacific Railroad Company, the circuit court should have
determined by its final decree what rights those defendants have by
virtue of the above Act of March 3, 1887, 24 Stat. 556, c. 376, in
the lands, or any of them, now in dispute and claimed by the United
States. The effect of the decree is to leave undetermined the
question whether the defendants who claim under the Southern
Pacific Railroad Company are protected by that or any other act of
Congress. The government was entitled to a decree quieting its
title to all the lands described in its pleadings, except those, if
any, that are protected, in the hands of claimants, by acts of
Congress.
United States v. Winona & St. Peter Railroad v.
United States, 165 U. S. 463;
Winona & St. Peter Railroad v. United States,
165 U. S. 483.
But, as the government has not appealed, the decree cannot be
reversed for the error of the circuit court in not finally
disposing of the issues between the United States and the
individual defendants who claim under the Southern Pacific Railroad
Company.
The result is that the decree must be affirmed in all
respects as to the Southern Pacific Railroad Company, as well as to
the trustees in the mortgage executed by 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.