The grant of public land made to the Alabama by the Act of June
3, 1856, c. 41, to aid in the construction of railroads, to be
subject to the disposal of the legislature for the purposes named
in the act and no other, with a provision that, if any of said
roads were not completed within ten years, the lands remaining
unsold should revert to the United States, was a grant
in
praesenti; the condition so expressed was a condition
subsequent, and the rights and powers of the state continued until
the grant should be directly forfeited by judicial or legislative
proceedings.
The provision in the Act of September 29, 1890, c. 1040,
that
"there is hereby forfeited to the United States, and the United
States hereby resumes the title thereto, all lands heretofore
granted to any state or to any corporation to aid in the
construction of a railroad opposite to and coterminous with the
portion of any such railroad not now completed and in operation,
for the construction and benefit of which such lands were granted,
and all such lands are declared to be a part of the public
domain,"
did not operate upon lands opposite completed roads, and such
lands were not thereby forfeited or resumed.
The allegation that the sale to Carlisle was without
consideration and colorable was not sustained by the evidence.
Although the bill was framed to secure a forfeiture of the
entire grant, that does not preclude a forfeiture for a part of
it.
This suit was brought under the Act of September 25, 1890, to
forfeit a land grant made to the State of Alabama in aid of the
construction of a railroad from the Tennessee River at or near
Gunter's Landing to Gadsden, on the Coosa River, conveyed by the
state to the Tennessee & Coosa Railroad Company.
The bill alleges that Congress, by the Act of June 3, 1856, c.
41, 11 Stat. 17, granted to the State of Alabama in trust for
certain railroads, of which the respondent, the Coosa Railroad, was
one, every alternate odd-numbered section for six sections in width
on each side of the road, with the right of selection
Page 176 U. S. 243
of others if rights had attached to such alternate sections,
within fifteen miles of the line of the road, as follows:
"That a quantity of land not exceeding one hundred and twenty
sections, for each of the roads named in said act, and included
within a continuous length of twenty miles of each of said roads
named therein, may be sold, and when the Governor of Alabama should
certify to the Secretary of the Interior that any twenty continuous
miles of any of said roads were completed, then another quantity
thereby granted, not to exceed one hundred and twenty sections for
each of said roads having twenty continuous miles completed as
aforesaid, and included within a continuous length of twenty miles
of each of said roads, may be sold -- and so from time to time
until said roads were completed, and if any of said roads were not
completed within ten years, no further sales should be made, and
the lands unsold should revert to the United States."
That the state accepted the grant by an act of its legislature
approved January 20, 1858, upon the terms and conditions expressed
in the act of Congress, and granted a portion of the lands to the
Coosa Railroad.
That the railroad constructed ten and 22/100 miles of road along
the line of definite location of survey, to-wit, from Gadsden
northward toward Gunter's Landing, but did not construct any
portion thereof prior to June 3, 1866, and never constructed or
completed twenty miles of railroad prior to September 29, 1890.
That, by virtue of the act of Congress, all the lands unsold at
the expiration of ten years from its date reverted to the United
States, and that the railroad company did not sell any lands prior
to June 3, 1866, and never became entitled to any of the land or to
the possession thereof, but that the railroad company selected the
lands described in the bill within the six-mile limit and those
within the fifteen-mile limit, which selections were approved by
the Secretary of the Interior. Exhibits were attached to the bill
giving detail descriptions.
That the selections and approval were made upon the filing of a
map of definite location, and not upon the certificate of the
governor of the state showing that twenty continuous miles
Page 176 U. S. 244
of road had been constructed, for no section of twenty miles had
been constructed before the passage of the Act of Congress of
September 29, 1890.
That the United States became entitled to the possession of the
lands on the fourth of June, 1866, and the right to recover both
the title to and the possession of them.
That by the Act of September 29, 1890, the United States resumed
the title to all the lands which were opposite to and conterminous
with any portion of such railroad not completed and in operation at
the date of the passage of the act, and that none of the lands
described in paragraph 1 and Exhibit A were opposite to and
conterminous with road constructed and completed at that date.
That the railroad company on the fourth of April, 1887, executed
and delivered to Hugh Carlisle an instrument purporting to be a
quitclaim deed, by which the company pretended to convey to him
seventeen thousand and ten 33/100 acres of the land granted to it
for the consideration of $21,790, and on the seventh of February,
1887, executed another instrument to Carlisle, by which it
attempted to convey to him 23,739 51/100 acres, and which recited a
payment of $59,348.70.
That said instruments were executed more than twenty years after
the expiration of the time required for the construction of the
railroad; that the company had no right or power to convey any
title or right; that its officers and Carlisle knew the fact, and
for the purpose of preventing the reversion of the lands to the
United States, the company executed and Carlisle accepted the
conveyances. That while they recite a valuable consideration paid
by him, no money or valuable thing was paid, but that the whole
transaction was merely a device to mislead and deceive for the
purpose of enabling Carlisle to set up a claim that he held the
lands as a purchaser for value and in good faith from the railroad
company. That he is a purchaser
mala fide, well knowing
that the purchase was in violation of the act of 1856; that he
holds them under a secret trust for said company and its
stockholders, and that he and his relatives are the largest
stockholders, and elected themselves and others subject to
Page 176 U. S. 245
their control directors, and by directors so composed the
conveyances to him were executed.
That there is valuable timber on the lands which the company and
other persons are cutting and carrying away, and valuable mines
which they are working, and that the company is collecting the
purchase money for lands sold by them, and is alienating other
lands, and it is therefore necessary to have a receiver
appointed.
A number of persons beside Carlisle are made defendants on the
grounds that they are in possession of some of the lands, and the
Nashville, etc., Railway Company and the Manhattan Trust Company
are also made defendants on the ground that they claim an interest
in a large part of the lands under contract with the Tennessee
& Coosa Railroad Company, which it is averred were taken with
knowledge of the rights of the United States.
The prayer is for a receiver and an injunction and cancellation
of the selections made by the company, the conveyances and
contracts made by it, and for general relief.
The Exhibits A and B contain a list of lands respectively within
the six and fifteen-mile limit, and Exhibits D and E are the
conveyances to Carlisle.
A receiver was appointed upon the bill without notice, and an
injunction
pendente lite issued. The injunction was
subsequently modified to exclude from its operation certain of the
lands.
Carlisle filed a demurrer and answer to the bill. The answer
admitted all the allegations of the bill material to the
propositions presented on this appeal, except those charging
deception and fraud in the conveyances to him, but specifically
alleged that they were executed in good faith and for valuable
consideration, and that the lands included in the deed from the
company to him (Exhibit D of original bill) are all opposite and
conterminous with the ten and 22/100 miles of completed road. By an
amendment to the answer it was alleged that said lands were within
six miles of the line of definite location of the road and within
the primary granted limits.
Page 176 U. S. 246
It was further alleged that he contracted with the railroad
company in 1859 to build the road; that in 1860 the company
executed a mortgage upon its franchises and other property,
especially upon the lands granted by Congress, to secure 400 bonds,
each of the value of $1,000, issued by the company, and eleven of
them were pledged with him to secure the amount due him for work
done prior to 1861, and that, at the time the Civil War broke out,
he had 400 hands working on the road, and was progressing rapidly
with the building of the same. That during the war and after the
war, his and the company's financial condition prevented further
construction. In 1871, the company made a conditional sale of the
road to the East Alabama & Cincinnati Railroad Company to
complete the road, but that company only built five miles of it
between Gadsden and Attalla; that in 1883 the Coosa company resumed
possession, and passed a series of resolutions approving and
ratifying what he had done, constituting him its financial agent
with power to construct, equip, and put in running order the road
from Attalla to Guntersville, and empowered him to use all the
assets of the company, and agreed to pay him out of the assets the
original cost and expenses that he should incur in the
construction, equipment, and putting the road in running order,
together with twenty percent in addition for superintendence and
advances made by him, and that he retain a lien on the railroad and
its franchises, both real and personal, until the costs and
expenses incurred by him be fully paid off, together with said
twenty percent in addition. The said resolutions also revived and
renewed the indebtedness due to him for work done prior to
1860.
That he put forth every energy to build the road, and expended
in the work under a contract with the company large sums of his
private resources; that the company had no money and no other
resources except said lands, and no means except as supplied by
him.
That in 1886, the road was completed as far as Littleton, a
distance of ten and 22/100 miles; that, during all this time the
money due him for work done prior to 1861 had not been paid, and
that sum, amounting to $47,000, and the money
Page 176 U. S. 247
expended afterwards by him, amounted to $85,750.92, and that his
account was submitted to the board of directors of the company and
was credited and approved.
That in February, 1887, the directors, desiring to pay him, and
having no assets, offered to convey the lands described in Exhibit
E to the bill in payment
pro tanto of his account at two
and a half dollars per acre; that he finally agreed to accept
twenty-three thousand seven hundred and thirty-nine and 57-100
acres at said price, and the company conveyed the same to him
absolutely, without any trust on reservation whatever, and that,
after receiving such conveyance, there still remained due him
$26,401.27.
That on the second of April, 1888, the company conveyed to him
about 16,400 acres of land, described in Exhibit D attached to the
original bill at the price of one dollar and twenty-five cents per
acre, which was the full value of the interest of the company in
the lands, because they lay within the conflicting limits of the
grants to the company and the Alabama & Chattanooga Railroad
Company, and the Coosa company only owned an undivided moiety; that
the consideration was money due the respondent as aforesaid, and
the conveyance was absolute and without any trust or
reservation.
That all the lands described in Exhibit E are a part of the
first one hundred and twenty sections of the grant, and are
opposite to and conterminous with the first twenty miles of the
railroad as shown by the map of the definite location, which was
duly filed in accordance with the act of Congress, and are included
in the lands which the company was authorized to sell in advance of
the construction of any portion of the road. And it was alleged in
an amendment to the answer that the company sold lands within the
first one hundred and twenty sections at divers times to divers
persons for two and 50-100 dollars per acre, usually on credit and
notes taken and placed in his, Carlisle's, hands as collateral
security for the money due him, and most of the notes still remain
in his hands, and only a small amount has been paid thereon; that
the vendees of the company are in possession, and that he,
Page 176 U. S. 248
during the years 1887 and 1888, sold for a valuable
consideration the lands described in Exhibit E of the original bill
to purchasers in good faith, who paid for the same and received his
warranty deed. A list of the purchasers is attached to the
answer.
The answer of the railroad company was substantially the same as
that of Carlisle, and the answers of the other respondents allege
their respective relations to the lands, but are not otherwise
material to the propositions in controversy.
Upon the testimony submitted, oral and documentary, the circuit
court found as follows:
"First. That prior to the 29th day of September, 1890, the
Tennessee & Coosa Railroad Company had sold to
bona
fide purchasers all the lands embraced in the first one
hundred and twenty sections which by the terms of the granting act
it was authorized to sell in advance of the construction of the
road. That these sales were
bona fide and made to aid in
the construction of the road. That the allegations of the bill that
the sale to Carlisle was without consideration and colorable are
not sustained by the evidence, but the sale to Carlisle was
bona fide and based on good consideration, and the
proceeds of the sale used in the construction and equipment of the
road."
"Second. The court finds that the Tennessee & Coosa Railroad
from Gadsden to Littleton, a distance of ten and 22/100 miles, was
completed and in operation on and before the 29th day of September,
1890, and that the lands described in Exhibit D to the original
bill, to-wit, the lands embraced in and conveyed by the deed from
the Tennessee & Coosa Railroad Company to Hugh Carlisle,
bearing date the 4th day of April, 1887, are lands which lie
opposite to that part of the road which was completed and in
operation on the 29th day of September, 1890, and therefore not
within the lands forfeited by the Act of September 29, 1890."
"The court is therefore of the opinion that there has been no
forfeiture of the lands as to which a judicial declaration of
forfeiture is sought by the bill, and it is accordingly ordered and
decreed that the relief sought by the bill be denied and the bill
dismissed. "
Page 176 U. S. 249
In the opinion of the court, it was said
"that the lands embraced in the first one hundred and twenty
sections of the granting act the railroad company was authorized to
sell in advance of the construction of the road, and that the
parties to whom such sale was made, took good title, and there can
be no recovery or restitution of any of these lands to the public
domain in this case. 2. That the lands described in Exhibit D to
original bill are lands which lie opposite to that part of the road
which was completed and in operation on the 29th day of September,
1890, and are not within the lands covered by Act of September 29,
1890."
71 F. 71.
The decree of the circuit court was affirmed by the circuit
court of appeals, 81 F. 544, and the United States took this
appeal.
MR. JUSTICE McKENNA delivered the opinion of the Court.
The questions which primarily arise on this appeal are based on
the provisions of the granting act of 1856 and the forfeiting act
of 1890.
The United States contend that the provisions of the former
caused a reversion of the title in 1866; the contention of
appellees is that some affirmative action, legislative or judicial,
on the part of the grantor was necessary for the forfeiture of the
grant, and that until such action, the title and all the powers
conferred by the act of 1856 continued and could be exercised. And
further that the act of 1890 was the measure of forfeiture.
By the act of 1856 it is enacted --
"That there be and is hereby granted to the State of Alabama,
for the purpose of aiding in the construction of railroads, from
the Tennessee River at or near Gunter's Landing to Gadsden, on the
Coosa River, . . . every alternate section of land designated by
odd numbers for six sections in width on each side of said road.
"
Page 176 U. S. 250
"SEC 3. That the said lands hereby granted to the said state
shall be subject to the disposal of the legislature thereof for the
purposes aforesaid, and no other. . . ."
"SEC 4. That the lands hereby granted to said state shall be
disposed of by said state only in manner following, that is to say,
that a quantity of land, not exceeding one hundred and twenty
sections for each of said roads, and included within a continuous
length of twenty miles of each of said roads, may be sold, and when
the governor of said state shall certify to the Secretary of the
Interior that any twenty continuous miles of any of said roads is
completed, then another quantity of land hereby granted, not to
exceed one hundred and twenty sections for each of said roads
having twenty continuous miles completed as aforesaid, and included
within a continuous length of twenty miles of each of such roads,
may be sold, and so, from time to time, until said roads are
completed, and if any of said roads is not completed within ten
years, no further sale shall be made, and the lands unsold shall
revert to the United States."
The material part of the act of 1890 is as follows:
"
Be it enacted, That there is hereby forfeited to the
United States, and the United States hereby resumes the title
thereto, all lands heretofore granted to any state or to any
corporation to aid in the construction of a railroad opposite to
and conterminous with the portion of any such railroad not now
completed and in operation for the construction and benefit of
which such lands were granted, and all such lands are declared to
be a part of the public domain."
These principles are established: that acts like that of 1856
convey a present title, that the conditions expressed in them are
subsequent, not precedent, and the rights and powers of the grantee
continue until the grant is directly forfeited by legislative or
judicial proceedings. If the cases were less certain, less directly
applicable to the case at bar, we might attend in detail to the
able argument of the counsel for the United States.
In
Schulenberg v.
Harriman, 21 Wall. 44, the leading case, the road
in aid of which the grant was made was not constructed,
Page 176 U. S. 251
the ten years' limitation upon the sale of the land had expired,
and of the provision that the lands should revert to the United
States it was said that it was "no more than a provision that the
grant shall be void if a condition subsequent be not performed."
Sheppard's Touchstone was cited and applied as follows:
"In Sheppard's Touchstone, it is said:"
"If the words in the close or conclusion of a condition be thus,
that the land shall return to the enfeoffor, etc., or that he shall
take it again and turn it to his own profit, or
that the land
shall revert, or that the feoffor shall
recipere the
land, these are, either of them, good words in a condition to give
a reentry -- as good as the word 'reenter' -- and by these words
the estate will be made conditional."
"The prohibition against further sales if the road be not
completed within the period prescribed adds nothing to the force of
the provision. A cessation of sales in that event is implied in the
condition that the lands shall then revert; if the condition be not
enforced, the power to sell continues as before its breach, limited
only by the objects of the grant, and the manner of sale prescribed
in the act."
"
* * * *"
"In what manner the reserved right of the grantor for breach of
the condition must be asserted so as to restore the estate depends
upon the character of the grant. If it be a private grant, that
right must be asserted by entry or its equivalent. If the grant be
a public one, it must be asserted by judicial proceedings
authorized by law, the equivalent of an interest of office at
common law, finding the fact of forfeiture and adjudging the
restoration of the estate on that ground, or there must be some
legislative assertion of ownership of the property for breach of
the condition, such as an act directing the possession and
appropriation of the property, or that it be offered for sale or
settlement. At common law, the sovereign could not make an entry in
person, and therefore an office found was necessary to determine
the estate, but, as said by this court in a late case,"
"the mode of asserting or of resuming the forfeited grant is
subject to the legislative authority of the government. It may be
after judicial investigation,
Page 176 U. S. 252
or by taking possession directly under the authority of the
government without these preliminary proceedings."
"In the present case, no action has been taken either by
legislation or judicial proceedings to enforce a forfeiture of the
estate granted by the acts of 1856 and 1864. The title remains,
therefore, in the state as completely as it existed on the day when
the title by location of the route of the railroad acquired
precision and became attached to the adjoining alternate
sections."
The power of sale of one hundred and twenty sections in advance
of the commencement of the construction of the road was impliedly
decided. That power, however, came more explicitly into
consideration in
Railroad Land Co. v.
Courtright, 21 Wall. 310, where again a similar
granting act was passed on. The Court reaffirmed the principles
expressed in
Schulenberg v. Harriman, and said again by
Mr. Justice Field:
"It is contended by the defendants
first that, under
the act of Congress of May 15, 1856, no lands could be sold by the
state until twenty continuous miles of the road were constructed;
second, that if one hundred and twenty sections could be
sold in advance of such construction, they could only be taken from
lands adjoining the line of the road from its commencement on the
east; and
third that the grant by the state to the first
company was upon conditions precedent, which, not having been
complied with, the title did not pass. Neither of these positions
can, in our judgment, be maintained. The act of Congress, by its
express language, authorized a sale of one hundred and twenty
sections in advance of the construction of any part of the road. It
was only as to the sale of the remaining sections that the
provision requiring a previous completion of twenty miles applied.
It is true it was the sole object of the grant to aid in the
construction of the railroad, and for that purpose the sale of the
land was only allowed, as the road was completed in divisions,
except as to one hundred and twenty sections."
"The evident intention of Congress in making this exception was
to furnish aid for such preliminary work as would be required
before the construction of any part of the road. No conditions,
therefore, of any kind were imposed upon the state
Page 176 U. S. 253
in the disposition of this quantity, Congress relying upon the
good faith of the state to see that its proceeds were applied for
the purposes contemplated by the act."
Counsel for the United States attempts to distinguish the
Courtright case from the case at bar, and asserts that in
Schulenberg v. Harriman, the power of the state to sell,
subject or not subject to the grantor's rights after the expiration
of ten years, although the road had not been finished, was not at
issue, and any expressions on that topic were mere
dicta.
We do not assent to this view. Such power was a necessary
consequence of the principles announced, and they have a more
extensive authority and application than to the instance in that
case.
The title passed to the state, it was decided, continued in the
state with all its attributes and power, except as expressly
limited, until it should be resumed by the grantor by appropriate
proceedings for breach of conditions. Hence the logs in that case,
though cut upon land to aid a railroad which had not been
constructed and after the time designated for its construction, and
after which all unsold lands should revert to the state, were held
to belong to the state. And in the
Courtright case, upon
the same principles, it was held that lands sold by the railroad
without constructing the road carried title to the vendee. There
was a reassertion and an application of the same principles in
United States v. Loughrey, 172 U.
S. 206.
It follows that, by the Act of June 3, 1856, the State of
Alabama took the title to the lands in controversy upon conditions
subsequent, and conveyed such title upon the same conditions to the
Coosa Railroad, and that it continued in the railroad until
determined by proceedings, legislative or judicial, for such
forfeiture, and until such determination, all the rights and powers
conferred by the act continued and could be exercised.
Those rights and powers were (1) to sell 120 sections of land in
advance of the construction of any part of the road; (2) to sell a
like quantity upon the completion of any twenty miles of road.
Page 176 U. S. 254
The first power, it is claimed, was exercised by sales to
bona fide purchasers. The condition of the second power
was not performed -- twenty continuous miles of road were not
completed at the time of the passage of the act of 1890. But it is
not denied that ten and 22/100 miles were completed before the
passage of that act.
1. The circuit court found that the first power was exercised as
claimed. In other words, that the lands embraced in the first one
hundred and twenty sections were sold to
bona fide
purchasers in aid of the construction of the road, and
"that the allegations of the bill, that the sale to Carlisle was
without consideration and colorable, are not sustained by the
evidence, but the sale to Carlisle was
bona fide and based
on good consideration, and that the proceeds of the sale were used
in the construction and equipment of the road."
We think that the findings are sustained by the evidence.
2. By the act of 1890, the United States forfeits, and
"resumes the title thereto, all lands heretofore granted to any
state or to any corporation to aid in the construction of a
railroad opposite to and conterminous with the portion of any such
railroad not now completed and in operation for the construction
and benefit of which such lands were granted, and all such lands
are declared to be a part of the public domain."
The necessary implication of these provisions seems to be that
lands opposite completed road are not forfeited or resumed. But the
counsel for the United States contests, or seems to contest, the
implication. He says:
"The general forfeiture Act of September, 1890, intends to
forfeit lands opposite unconstructed portions of road. It intends
to forfeit them
for that reason. It intends by no means to
say that no lands are to be otherwise and for other reasons
forfeited; that all conditions precedent in all cases of land
grants are waived. It purports to waive nothing, but to forfeit for
a cause common to all the old grants of lands for railroads --
failure to construct prior to September, 1890."
And again:
"That act of 1890 was intended to take away lands, and not to
grant them, and it is too well settled to need discussion that
lands and rights of the public cannot be granted away except in
Page 176 U. S. 255
the most
explicit, affirmative terms."
This perhaps is but another form of the contention which we have
considered and refuted, but we may further say that its error is in
assuming that the act of 1890 is claimed to be a grant. The act of
1856 was the grant. The title it conveyed continued until resumed,
and as to what lands it was resumed the act of 1890 defines.
These considerations dispose of the contentions as to the 120
sections and the lands opposite completed road, but it is assigned
as error that the court of appeals omitted to direct
"a decree in favor of the United States as to lands not within
either the said 120 sections or the 17,410.33 acres [lands opposite
completed road], whether sold or not."
And it is said:
"The road being thirty-six miles and a fraction long, and the
120 sections absolutely required to be along twenty consecutive
miles, and being in fact as certified before the war of 1861 at and
near the Guntersville end, sixteen miles and a fraction of road, at
least, remain to be considered. Ten miles, beginning at the Gadsden
end, were constructed before the act of 1890, leaving at least six
miles, so that obviously the easy method resorted to by the lower
courts of dividing all the lands into 120-section lands and lands
opposite constructed road ignores our rights along six miles, to
say nothing of the large body of lands along the twenty miles
referred to, but
not in the 120 sections of place and
indemnity certified before the war, and opposite
uncompleted road in 1890."
This, it is replied, is contradicted by the findings of the
circuit court, and that the record affords no evidence to dispute
the findings. The findings were, as we have seen, that the lands
embraced in the first one hundred and twenty sections were sold to
bona fide purchasers; that Carlisle was such; that the
road from Gadsden to Littleton, a distance of 10.22 miles, was
completed and in operation on or before the 29th of September,
1890, and that the lands conveyed to Carlisle by deed dated April
4, 1887, were opposite to that part of the road. The conclusion was
that
"there has been no forfeiture of the lands as to which a
judicial declaration of forfeiture is sought by the bill, and it is
accordingly ordered
Page 176 U. S. 256
and decreed that the relief sought by the bill be denied, and
the bill dismissed."
Manifestly this decision is dependent upon the identity of the
lands described in the bill with those embraced in the first one
hundred and twenty sections and those opposite the ten miles of
completed road. But this does not seem to be the fact. The bill
gives a description of the lands by townships, ranges, and
sections, and at the argument, a map was used showing them, their
relation to the railroad, and its location and termini. It also
showed the end of the first one hundred and twenty sections.
Assuming the map to be correct (and it is not questioned), some
judgment may be formed of the length and location of the road, the
relative situation of the lands described in the bill to the road
-- to its completed and uncompleted part, and it appears that there
are a number of acres of land south of the first one hundred and
twenty sections and between them and Littleton (a distance of six
miles), of which a forfeiture should have been declared. In other
words, it appears from the evidence and admissions that the road is
thirty-six miles long, that the first one hundred and twenty
sections were selected along a continuous length of twenty miles of
the road from Gunter's Landing southward, and that the part of the
road which was completed at the date of the forfeiting act was from
Gadsden northward ten and 22/100 miles, and terminated at
Littleton. It is evident, therefore, that lands opposite the road
from Littleton, northward six miles, are not embraced in the first
one hundred and twenty sections and were not opposite completed
road September 29, 1890, and hence were forfeited by the act of
Congress of that date (
supra), and if included in the
description of the bill, should be declared forfeited.
It is urged, however, by appellees that the decree should not be
reversed, because the bill was framed to procure a forfeiture of
the grant, not to adjust its limits, and because the question was
not raised by the assignment of errors on the appeal to the circuit
court nor on this appeal. Neither reason is sufficient. We may
notice a plain error, though not assigned, and the prayer in the
bill for a forfeiture
Page 176 U. S. 257
of the entire grant did not preclude a forfeiture of a part of
it.
We think, therefore, a further investigation on the particular
point indicated is required by the circuit court, and return the
case for such investigation.
The decree of the circuit court of appeals is reversed, and
the case remanded to the Circuit Court with directions to proceed
in accordance with this opinion.
