Although no federal right, title or immunity was specially set
up or claimed in the complaint, it is sufficient if it appears in
the motion for new trial and in the assignment of error in the
state supreme court. In this case, it also appears from the opinion
of the court that the question was whether the plaintiff in error
had brought itself within the scope of an act of Congress upon
which it relied.
Under the rule of this Court requiring opinions to be sent up
with the record, it is a sufficient compliance with the words
"specially set up and claimed" that the federal question was fully
considered in the opinion of the court and ruled against the
plaintiff in error.
A party who, on complying with the provisions of an act of
Congress would have the right to purchase lands, part of the public
domain, but who has not complied with the requirements of the act,
is not entitled, upon the mere showing of such right to purchase,
to demand that its title be adjudged good and valid and that
another party who is in possession be adjudged to have no estate or
interest in the land, or that such other person be enjoined from
asserting any adverse claim, or that the claimant recover the
possession of the land with the right of ousting the defendant from
the improvements made thereon by its predecessors.
Page 189 U. S. 178
This was an action brought in 1889 by the Land & Water
Company, under the Code of Civil Procedure of California, to quiet
the title of the plaintiff and determine the nature of the adverse
claim of the defendant to the half of a quarter section of land
which had been sold by the Southern Pacific Railroad Company
February 28, 1887, to plaintiff's predecessors in title, as part of
its land grant of 1871.
The case was tried in 1890, though the decree was not entered
until 1897. The facts found by the court were substantially that
the Southern Pacific Railroad Company had accepted the benefit of a
land grant made March 3, 1871, to the Texas and Pacific railroad,
filed its map of location April 3, 1871, and on August 12, 1873,
formed a new corporation, also known as the Southern Pacific
Railroad Company; built and constructed a road from Tehachapi Pass
by way of Los Angeles to Yuma, and selected the land in question
under the Act of March 3, 1871; that such land was within the place
limits of the Southern Pacific, and also within the indemnity
limits of a land grant to the Atlantic and Pacific railroad by Act
of July 27, 1866. This latter company never complied with the terms
of the grant, and never built its road.
That, on February 28, 1887, the Southern Pacific agreed with two
parties named Nolan and Heckenlively to sell them this land, and,
after the receipt from the United States of a patent therefor, to
deliver them a deed; that, by subsequent conveyances, and on August
29, 1888, the right of the grantees became vested in the plaintiff,
the San Jose Land & Water Company; that the land is situated in
San Dimas Canyon, through a portion of which the San Dimas Creek
flows; that, prior to December, 1883, one Stowell claimed to own a
water right in the waters flowing down such creek, the character
and extent of which the court did not adjudicate, and about that
time entered upon the land and constructed across a portion of it a
twelve-inch pipeline for the purpose of conducting the water so
claimed by him from its point of diversion across said lands to
other lands; that, prior to July, 1887, the San Jose Ranch Company,
defendant, had, by mesne conveyances, succeeded to the rights of
Stowell, and also constructed upon such land at a point where
Page 189 U. S. 179
the waters of San Dimas Creek flowed, a brick and cement
forebay, sand box, of dam, and laid therefrom across a portion of
said land a fourteen-inch pipeline, both of which pipelines it
claims the right to maintain, but makes no other claim of right to
such lands.
Upon this state of facts, the superior court entered a judgment
in favor of the defendant, which was affirmed by the supreme court.
129 Cal. 673. Whereupon the plaintiff sued out this writ of
error.
MR. JUSTICE BROWN delivered the opinion of the Court.
Motion is made to dismiss this writ of error upon the ground
that no federal right, title, privilege, or immunity was "specially
set up or claimed" by the plaintiff in error, as required by the
third clause of Rev.Stat. sec. 709. None such appears in the
complaint, although we think it sufficiently appears in the motion
for a new trial and in the assignments of error in the state
supreme court. It also appears from the opinion of the court that
plaintiff relied upon the Act of Congress of March 3, 1887, for the
readjustment of land grants, 24 Stat. 556, and the question
considered by the court, and upon which the case turned, was
whether the plaintiff had brought itself within the scope of that
act. This question was fully considered by the court, and it was
held that the defendant, having acquired its rights prior to the
act of 1887, must prevail against the right claimed by the
plaintiff.
While the right under the act of 1887, thus considered, was not
originally specially set up and claimed by the plaintiff, inasmuch
as it was not an original right, but a right available in rebuttal
of the defense, it is one which appears to have been insisted upon
in the argument, and under the rule of this Court
Page 189 U. S. 180
requiring the opinions to be sent up with the record, it has
been frequently held to be a sufficient compliance with the words
"specially set up and claimed," that it was fully considered in the
opinion of the court and ruled against the plaintiff in error.
Murdock v.
Memphis, 20 Wall. 590,
87 U. S. 633;
Gross v. United States Mortgage Co., 108 U.
S. 477;
Fire Association v. New York,
119 U. S. 110,
119 U. S. 115;
Egan v. Hart, 165 U. S. 188;
Sayward v. Denny, 158 U. S. 180,
158 U. S. 184;
Mallett v. North Carolina, 181 U.
S. 589. These must be considered as leading, under our
change of rule, to a different result from that reached in some
prior cases,
Williams v.
Norris, 12 Wheat. 117;
Rector v.
Ashley, 6 Wall. 142, and
Gibson v.
Chouteau, 8 Wall. 314, in which we held that the
opinion of the state court could not be resorted to for the purpose
of showing that a question of federal cognizance was decided.
2. The case upon the merits presents but little difficulty. The
action is brought under sec. 738 of the Code of Civil Procedure of
California, which provides that
"an action may be brought by any person against another who
claims an estate or interest in real property adverse to him, for
the purpose of determining such adverse claim."
The land in question was within the indemnity limits of the land
grant of July 27, 1866, 14 Stat. 292, to the Atlantic and Pacific
Railroad Company. Plaintiff, however, claims nothing under this
grant, as the railroad company never complied with its terms; never
built its road, and the grant was forfeited by Act of July 6, 1886,
24 Stat. 123, and the land restored to the public domain. The act,
however, becomes pertinent in another connection.
The land in question was also within the place limits of the
grant to the Texas and Pacific Railroad Company by Act of March 3,
1871, 16 Stat. 573, and subsequently became vested in the Southern
Pacific, which constructed the road and selected the land in
question, claiming it under that act.
It was held by this Court, however, in
United States v.
Southern Pacific Railroad Company, 146 U.
S. 570, that the forfeiture of the Atlantic and Pacific
grant of July 6, 1886, did not inure to the benefit of the Southern
Pacific, which held the
Page 189 U. S. 181
later grant of the same land, but to the benefit of the United
States, and thereby became a part of their public lands. In the
next following case,
United States v. Colton Marble & Lime
Co., 146 U. S. 615,
this ruling was extended to the indemnity lands of the Atlantic and
Pacific, which, upon forfeiture of its land grant, also reverted to
the United States.
Hence, on February 28, 1887, when the Southern Pacific company
contracted to sell these lands to Nolan and Heckenlively, it had
really nothing to sell, and no interest in the land that could pass
under that agreement. There was a stipulation in it to make a deed
of the premises as soon as the railroad had received a patent
therefor from the United States, that it would use ordinary
diligence to procure such patent, and that if, in consequence of
circumstances beyond its control, it failed to obtain a patent, it
guaranteed nothing with regard to the title, but agreed to repay
everything which had been paid by the grantees. There was a further
agreement that the contract should not be assignable except by
indorsement, and with the written consent of the company, and a
written promise of the assignee to perform all the undertakings and
promises of the grantees.
After making the first payment and paying the annual interest to
February 28, 1892, the grantees ceased all further payments. The
findings show that, at the time of the execution of the
contract,
"said tract of land was not in the
bona fide occupation
of any adverse claimant under the preemption or homestead laws of
the United States, and the same had not been settled upon at the
date of such purchase, or on the 3d day of March, 1887, or
subsequent to December 1, 1882, by any person claiming to enter the
same under the settlement laws of the United States."
That neither the grantees nor their assigns ever settled upon
the land, cultivated or fenced it, although Heckenlively did,
shortly after the purchase, enter upon the land and begin the
construction of a ditch and tunnel thereon. Subsequently the land
passed by intermediate conveyances to the plaintiff. Manifestly,
however, there was a clear failure of title on the part of the
plaintiff to maintain this action. The Southern Pacific had no
title to convey, and, beyond this, there
Page 189 U. S. 182
is no finding that the contract was assigned by indorsement or
with the written consent of the railroad company, or that there was
any promise on the part of the assignees to perform the
undertakings of the original grantees.
Plaintiff's claim to the land must rest, if at all, upon the Act
of Congress of March 3, 1887, 24 Stat. 556, 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"
-- the main purpose of which act was to relieve
bona
fide purchasers from railway companies of forfeited lands by
permitting such purchasers or settlers to perfect their entries
upon compliance with the public land laws. By section 5 of this
act,
"where any said company shall have sold to citizens of the
United States, . . . as a part of its grant, lands not conveyed to
or for the use of such company, . . . and where the lands so sold
are for any reason excepted from the operation of the grant to said
company, it shall be lawful for the
bona fide purchaser
thereof from said company to make payment to the United States for
said lands at the ordinary government price for like lands, and
thereupon patents shall issue therefor to the said
bona
fide purchaser, his heirs or assigns."
The section, however, contained provisos excepting from its
terms all lands which, at the date of such sales from the
government, were in the
bona fide occupation of adverse
claimants under the preemption or homestead laws, and also of lands
settled upon subsequent to the first day of December, 1882, by
persons claiming to enter the same under the settlement laws of the
United States.
There are two difficulties connected with the application of
this statute: (1) assuming that Nolan and Heckenlively were
bona fide purchasers in good faith from the government,
which, indeed, is a part of the finding, there is nothing to
indicate that they had ever made payment to the United States for
the lands, or ever applied to do so, nor does a patent ever appear
to have been issued to them. In short, the plaintiff relies upon
the statute without showing that anything was done under it; (2)
the provisions of this section do not apply to lands occupied
adversely under the preemption, homestead, or settlement laws
Page 189 U. S. 183
of the United States, and the finding in this connection is
that, in 1883, one Stowell owned, or claimed to own, a certain
water right in the waters of San Dimas Creek, which flowed through
a portion of the land, the character and extent of which water
right the court did not find, and that, in November of that year,
Stowell entered on the land, laid and constructed across a portion
of it a twelve-inch pipeline for the purpose of taking the water
across the land to other lands, probably for the purposes of
irrigation, and that in July, 1887, the defendant, which had by
mesne conveyances succeeded to this water right of Stowell, entered
upon the land and built and constructed thereon a stone, brick, and
cement forebay, said box, or dam, and also a fourteen-inch pipeline
across a portion of the lands. It still claims the right to these
improvements, but makes no other claim of right, title, or interest
to the land or any part thereof.
The record does not show exactly how Stowell obtained his rights
to the waters of this creek, although the testimony sent up with
the record indicates that one Haynes settled upon the land in
question in 1869, and obtained a patent either in August or
September, 1878, that he used the water from the creek to irrigate
the land, made a dam and a ditch, and ran it down to the ranch,
that he began using the water in March, 1870, and so used it up to
the spring of 1878, when he obtained the patent, sold to Stowell,
and conveyed the land by deed.
Conceding, however, that, under the findings, we cannot look
back of 1883, when Stowell entered the land and laid a twelve-inch
pipeline there under a claim of ownership of the water right, we
see no reason why he and his grantees are not protected by section
9 of the Act of July 26, 1866, 14 Stat. 251, which declares
that,
"whenever, by priority of possession, rights to the use of water
for mining, agricultural, manufacturing, or other purposes have
vested and accrued, and the same are recognized and acknowledged by
the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be maintained and
protected in the same, and the right of way for the construction of
ditches and canals for the purposes aforesaid is hereby
acknowledged and confirmed."
Bearing in mind that these lands were, from July 6, 1886,
the
Page 189 U. S. 184
date of the forfeiture, public lands subject to the preemption,
homestead, or settlement laws, and that, at the time Stowell
entered upon the land and constructed a pipeline thereon (1883),
which at that time seems to have been wholly unoccupied, we think
the fact that Heckenlively, under his agreement of purchase of
February 28, 1887, and shortly after the same was executed, entered
upon the land and began the construction of a ditch and tunnel
there, becomes immaterial, since there is a finding that he never
settled upon the land, cultivated or fenced it, or took possession
of it, and no finding how long he continued the construction of the
ditch or tunnel, or the amount of work in connection therewith. For
aught that appears, he may have abandoned it immediately. There is
no evidence that the original grantees from the railroad company,
or their successors in interest, ever sought to take advantage of
the act of 1887, or ever applied to purchase the lands, or made
payment to the United States, or did anything whatever before the
beginning of this suit to indicate that they relied upon this
statute. We agree with the Supreme Court of California that the
plaintiff was not entitled, upon the showing of a mere right to
purchase, to demand that its title be adjudged good and valid, and
that the defendant had no estate or interest in the land, or that
it should be enjoined from asserting any claim adverse to the
plaintiff, or that it should recover possession of the land, with
the right of ousting the defendant from the improvements which its
predecessors had made thereon.
An inceptive right under the statute was an insufficient basis
of recovery. A party cannot rest forever on such a right, but is
required by the statute, before asserting it against innocent third
parties, to take some steps to perfect it. The litigation seems to
turn really upon the respective rights of the parties to the waters
of San Dimas Creek, and as defendant's predecessors first
appropriated them, and the plaintiff shows no superior title, it
cannot prevail against the ranch company. In view of the uncertain
character of the finding that Heckenlively did, shortly after his
purchase, enter upon the land and commence the construction of a
ditch and tunnel thereon, we are unable to see how the case is
affected by the fact that, in
Page 189 U. S. 185
July and August of the same year, the defendant entered upon the
land and constructed their forebay or dam, and laid a fourteen-inch
pipe in addition to the twelve-inch pipe which Stowell had laid in
1883. We express no opinion as to the possibility of the
plaintiff's maintaining a second action upon its patent, since
obtained, or how far this case may, if at all, operate as
res
judicata in that.
There was no error in the decree of the Supreme Court, and it is
therefore
Affirmed.
MR. JUSTICE McKENNA took no part in the disposition of this
case.