Under the Act of March 3, 1871, c. 122, 16 Stat. 573, the rights
of the Southern Pacific Railroad Company were subordinate to those
of the Texas Pacific Railroad Company. When the Texas Pacific grant
was
Page 189 U. S. 448
declared forfeited by the Act of February 28, 1885, the
forfeiture did not vest the Southern Pacific with the lands
forfeited, but the forfeiture enured to the benefit of the United
States.
The case is stated in the opinion of the Court.
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a bill to quiet title, brought by the United States
against the plaintiff in error. It comes here by appeal from a
decree of the United States circuit court of appeals, 109 F. 913,
affirming a decree of the circuit court, 94 F. 427, in favor of the
United States. The United States claims under forfeiture of a grant
made to the Texas Pacific Railroad Company in its charter, and the
Southern Pacific Railroad Company under words in the same charter
which are construed to make an incidental grant to it. The
principal land in controversy is land within the place limits of
the Southern Pacific under the said grant, and within the
twenty-mile limit of the Texas Pacific, being land situated where
the road of the former company and the contemplated track of the
Texas Pacific met at Yuma on the Colorado River in the southeastern
corner of California. The United States contends that this land was
excepted from the Southern Pacific grant.
The charter is the Act of March 3, 1871, c. 122, 16 Stat. 573.
By § 9, it grants to the Texas Pacific by words in the present
tense
"ten alternate sections of land per mile on each side of said
railroad in California, where the same shall not have been sold,
reserved, or otherwise disposed of by the United States,"
etc. By § 12,
"said company, within two years after the passage of this act,
shall designate the general route of its said road, as near as may
be, and shall file a map of the same in the Department of the
Interior, and when the map is so filed, the Secretary of the
Interior, immediately thereafter, shall cause the lands within
forty miles on each side of said designated
Page 189 U. S. 449
route within the territories, and twenty miles within the State
of California, to be withdrawn from preemption, private entry, and
sale."
The Texas Pacific filed its map of general route in August,
1871, and in October, 1871, the Secretary of the Interior withdrew
the odd sections according to the statute, including the land in
question.
By § 23 of this same charter, for the purpose of connecting the
Texas Pacific Railroad with San Francisco, the Southern Pacific was
authorized to construct a line to the Texas Pacific road at or near
the Colorado River, "with the same rights, grants, and privileges,
and subject to the same limitations," etc., as in 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, or any other railroad
company."
It was decided in
United States v. Colton Marble and Lime
Co., 146 U. S. 615,
that this proviso excluded the indemnity lands of the Atlantic and
Pacific road, and that the Southern Pacific took nothing in them,
even after a forfeiture of the Atlantic and Pacific grant. But it
is said that the Atlantic and Pacific had filed a definite
location, and it is contended on several grounds that there is not
a similar exception in this case.
In the first place, it is denied that the Texas Pacific is
included under the words last quoted: "or any other railroad
company." But we think it too plain for extended argument that it
is included by those words. It was called into being, and was an
"other railroad" at the moment when the proviso took effect. In
fact, it was the only other railroad, so far as has been suggested
to us, to which the words could apply. It received a grant for its
main line, while that to the Southern Pacific was for a branch. By
the contemplated junction of the latter with the former, there
would arise a conflict for which it was proper to provide, and
natural to provide as the statute did.
Next it is said that the Texas Pacific had no prospective rights
at the moment when the act was passed, and that is said to be the
moment when her priorities were fixed. We cannot take the words of
the proviso so narrowly. The Atlantic
Page 189 U. S. 450
and Pacific had not fixed its definite location when the act was
passed, and yet, in the decision which we have cited, its indemnity
lands were held excepted from the Southern Pacific grant.
See
United States v. Southern Pacific R. Co., 146 U.
S. 570,
146 U. S. 573;
Southern Pacific R. Co. v. United States, 183 U.
S. 519,
183 U. S. 522.
As to the phrase "prospective rights," no doubt it is inartificial.
The adjective changes the very nature of the substantive. A
prospective right is not yet a right. It is only an expectation
having a certain intensity of reasonableness. But it is plain, for
instance, that when the lands were withdrawn along the general
route of the Texas Pacific under § 12, that road had a prospective
right to the whole of its place lands which the Southern Pacific
could not affect by anything which it might do later. The statute
is not governed by the ordinary rule as to contemporaneous grants.
The Southern Pacific was not intended or allowed to interfere with
what the Texas Pacific might take.
The strength of the appellant's case is in a somewhat attenuated
line of reasoning. The Texas Pacific act refers to the Act of July
27, 1866, for the rights conferred on the Southern Pacific. 14
Stat. 292, c. 278. The last-mentioned statute is an act
incorporating the Atlantic and Pacific Railroad Company. By § 18,
the Southern Pacific is authorized to connect with the Atlantic and
Pacific, and is to have similar grants of land with that company.
By § 6, there is a provision for the withdrawal of lands along the
general route of the Atlantic and Pacific somewhat like that which
has been mentioned as contained in § 12 of the Texas Pacific
charter. It may be argued that it is implied by § 18 of the
Atlantic and Pacific charter that there is to be a similar
withdrawal of the land there granted to the Southern Pacific, and
that this implied provision is carried over by a further
implication to the grant to the Southern Pacific in § 23 of the
Texas Pacific charter. The Southern Pacific filed the location of
its general route in April, 1871, before the filing by the Texas
Pacific, and, as the grant to the Texas Pacific by § 9 was only of
lands not sold, reserved, or otherwise disposed of by the United
States, it may be said that the Southern Pacific has got a
preference, much as the Texas Pacific
Page 189 U. S. 451
would have got one had the Southern Pacific done nothing before
the Texas Pacific filed the location of its general route.
It must be admitted that, if this argument is correct in its
premises, it puts a good deal of a strain on the proviso in favor
of the prospective rights of the Texas Pacific. For at the time
when the Southern Pacific filed the location of its general route,
the prospective rights of the Texas Pacific were not determined
otherwise than by its incorporation and the indications and
promises in its charter. Nevertheless we are of opinion that the
argument cannot prevail. It is only by a stretch that the provision
for withdrawal of lands along the general route of the Atlantic and
Pacific could be extended to the grant to the Southern Pacific in
the Texas Pacific charter, and if it be so extended, it is such a
remote and probably unconsidered consequence of a reference to a
reference that it cannot be allowed to outweigh the plain intent of
the proviso in § 23, reinforced by the express arrangement for
withdrawal in favor of the Texas Pacific in § 9. Assuming that
proviso to refer to the Texas Pacific, it indicates a plain intent
to except from the grant to the Southern Pacific the land that in
the natural course of events would be covered by the location of
the former road. The conflict of interests naturally would be
limited to the point of connection at Yuma. There might be no
other. As to that land, the plain object of the proviso was to
avoid a race of diligence by giving priority to the main line of
the chartered road over the connecting branch. Our decision is in
accord with the settled construction and practice in the Department
of the Interior following a ruling of the late Mr. Justice Lamar
when Secretary of the Interior. Texas Pacific Railroad and and
Southern Pacific Railroad, 4 L.D. 215.
The Texas Pacific grant was declared forfeited by the Act of
February 28, 1885, c. 265, 23 Stat. 337, and this forfeiture inured
to the benefit of the United States.
United States v. Southern
Pacific Railroad, 146 U. S. 570. It
is argued further, however, that if the Southern Pacific did not
get the lands in question under its primary grant, it may take a
part of them as indemnity lands. It is said that the company has a
right to take them for that purpose if the status of the lands at
the time of
Page 189 U. S. 452
selection permits it.
Ryan v. Railroad Co.,
99 U. S. 382. That
contention seems to be disposed of by
Southern Pacific Railroad
v. United States, 168 U. S. 1,
168 U. S. 47,
168 U. S. 66, and
the practice of the Land Department for many years has been
inconsistent with it. Southern P. R. Co. v. Moore, 11 L.D. 534;
Moore v. Kellogg, 17 L.D. 391; Smead v. Southern Pacific Railroad
Co. 29 L.D. 135. When it is decided that the company got no title
to the land within its twenty-mile limit, it would be contrary to
the intimations of the cases to allow it to take the adjoining
strip outside under a claim of indemnity.
See Bardon v.
Northern Pacific Railroad, 145 U. S. 535,
145 U. S. 545;
Clark v. Hearington, 186 U. S. 206. It
is not clear that the language of the statute does not forbid it.
The indemnity to the Atlantic and Pacific, by § 3 of its charter,
adopted for the Southern Pacific by § 18, is to be other lands
"in alternate sections, and designated by odd numbers, not more
than ten miles beyond the limits of said alternate sections, and
not including the reserved numbers."
It might be argued that the last-quoted words dispose of the
matter. Without going into further reasons for our decision, we are
of opinion that the decree appealed from was right. We deal only
with the questions argued in this Court.
Decree affirmed.
MR. JUSTICE BREWER and MR. JUSTICE DAY took no part in the
decision of this case.