United States v. Southern Pac. R.

152 F. 303, 1907 U.S. App. LEXIS 5018

Opinion

ROSS, Circuit Judge.

The facts of this case differ from those in the case of the United States v. Southern Pacific Railroad Company et al., numbered 1,196, just decided, 152 Fed. 314; for here the agreed. statement of facts shows that all of the lands in'controversy are within the primary limits of the grant made by Congress to the Atlantic & Pacific Railroad Company by its act of July 27, 1866, c. 278, 14 Stat. 292, and within the indemnity limits of the grant made to the defendant Southern Pacific Railroad Company by the same act. It is also stipulated by the respective parties that a certain portion of the lands described in Exhibit B. annexed to the bill were included in, the final decree entered in this court in the case between the same parties, here numbered 184, and which was affirmed by the Supreme Court in 168 U. S, 1, 18 Sup. Ct. 18, 48 L. Ed. 355, and “that all acts of Congress and laws of the state of California, whether of public or private, general or special, nature, and all official acts and decisions of the Commissioner of the General Land Office and Secretary of the Interior, relating to the Southern Pacific Railroad Company or to the Atlantic & Pacific Railroad Company, or affecting the rights of either of said companies or of the United States, and all decisions of the Supreme Court of the United States reported in the United States Reports relating to or affecting the rights of either of said companies, in so far as relevant and material to the issues and controversies in this case, shall be deemed before this court for judicial decision.”

In deciding the case entitled “United States v. Southern Pacific Railroad Company et ah,” and here numbered 600, this court was of the opinion that the decision of the Supreme Court in the cases of United States v. Southern Pacific Railroad Company, 146 U. S. 570, 13 Sup. Ct. 152, 36 L. Ed. 1091; United States v. Colton Marble & Lime Company, 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104; United States v. Southern Pacific Railroad Company, 146 U. S. 570, 13 Sup. Ct. 158, 36 L. Ed. 1091, and Southern Pacific Railroad Company v. United States, 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, determined that the Southern Pacific Company never acquired any interest or right in or to any of the odd-numbered sections of land embraced within the granted or indemnity limits of the Atlantic & Pacific Railroad Company, either by the grant contained in the act of July 27, 1866, c. 278, 14 Stat. 292, or in the joint resolution of Congress of June 28, 1870, 16 Stat. 382, or in the act of March 3, 1871, c. 122, 16 Stat. 573. United States v. Southern Pac. R. Co. (C. C.) 86 Fed. 962, 963.

In affirming the judgment of this court in that case, the Circuit Court of Appeals for this circuit took the same view of those decisions of the Supreme Court, saying, in its opinion:

“The scope of these decisions of the Supreme Court cannot be mistaken. They were intended to dispose of all the questions in issue, and make it perfectly clear that all the lands embraced within the primary and indemnity limits of the Atlantic & Pacific grant, between the Colorado river and San Buena Ventura, had been forfeited to the United States, and restored to the public domain, free from any claim whatever on the part of the Southern Pacific Itailroad Company; and these decisions have been placed upon grounds that leave no room for the consideration of a claim of title based upon the theory that the Southern Pacific Company had acquired a right to the lands contemporaneously with the Atlantic & Pacific Company under section 18 of the act of July 27, 1866, c. 278, 14 Stat. 299.” United States v. Southern Pacific Railroad Company, 98 Fed. 27, 39, 38 C. C. A. 619, 631.

But on appeal to the Supreme Court, that tribunal took a different view of its former decisions from that taken by the . Circuit Court of Appeals and by this court in the case cited, and declared that:

“It was not adjudged in those cases either that the Southern Pacific had no title to any real estate by virtue of the act of 1866, or that, if there was any real estate to which it held any claim or right by virtue of that act, such claim was not of equal force with that of the Atlantic & Pacific. The general statement at the close of the quotation from 146 U. S. 607, 13 Sup. Ct. 160. 36 L. Ed. 1101, ‘that the latter company has no title of any kind to those lands,’ and the similar statement in paragraph 8 of the quotation from 108 U. S. 61, 18 Sup. Ct. 32, 42 L. Ed. 381, are to be taken as applicable only to the facts presented, and cannot be construed as announcing any determination as to matters and questions not appearing in the records. Of course, the decrees that were rendered in those cases are conclusive of the title to the property involved in them, no matter what claims or rights either party may have had and failed to produce, but, as to property which was not involved in those suits, they are conclusive only as to the matters which were actually litigated and determined.” 183 U. S. 519, 533, 22 Sup. Ct. 154, 160 (46 L. Ed. 307).

Accordingly, and inasmuch as Congress had, by its act of July 6, 1886, c. 637, 24 Stat. 123, declared forfeited the lands granted to the Atlantic & Pacific Railroad Company within the limits of California, the Supreme Court, in the case last cited, held that the United States held “an equal undivided moiety in all the odd-numbered sections which lie within the conflicting place limits of the grant to the Atlantic & Pacific Company and of that made to the Southern Pacific Company by the act of July 27,1866; and that the Southern Pacific Company holds the other undivided moiety thereof.”

As it was thus authoritatively determined by the Supreme Court that the act of Congress forfeiting the lands granted to the Atlantic & Pacific Company did not affect the grant made by the act of July 27, 1866, to the Southern Pacific Company, in so far as it concerns the lands within the primary limits of that grant, I am unable to see any valid ground for holding that the forfeiture deprived the Southern Pacific Company of any indemnity lands covered by the same grant. There is but the one grant to the Southern Pacific Company made by the act of 1866, which embraces both classes of lands; that is to say, lands within its primary limits and lands within its indemnity limits. According to the decision of the Supreme Court in United States v. Southern Pacific Railroad Company, 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307, the act of July 27, 1866, gave to each of the railroad companies mentioned an undivided half of all of the odd-numbered sections falling within the primary limits of both grants, the half so granted to the Atlantic & Pacific Company afterwards reverting to the United States by virtue of the act of forfeiture. It is quite true, as suggested by counsel for the complainant, that, had the grant to the Atlantic & Pacific Company not been forfeited, it would have continued to hold its interest in the odd-numbered sections within its primary limits, and that, in that event, none of such odd-numbered sections would have been subject to selection by the Southern Pacific Company as indemnity lands; but, according to the ruling of the Supreme Court in 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307, that would only have been so for the reason that, in the event supposed, such odd-numbered sections would not have been public lands.

Applying the-decision of the Supreme Court in the case last cited to the admitted facts in the present case, it seems to me to result, necessarily, that, except as to those of the lands in controversy that were covered by the final decree etitered in' the case numbered in this court 184, and affirmed-by the Supreme Court in 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355, there must be judgment for the defendants; for holding, as the Supreme Court did in the case reported in 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307, that the act forfeiting the grant to the Atlantic & Pacific Company did not affect the grant made to the Southern Pacific Company by the act of July 27, 1866, in so far as concerns the lands within the primary limits of that grant, I do not think I would be justified in holding that the forfeiture deprived that company of any indemnity lands, covered by the same grant, not included in any judgment heretofore entered.

I see nothing in the decision of the Supreme Court in the case of Southern Pacific Railroad Company v. United States, 189 U. S. 447, 23 Sup. Ct. 567, 47 L. Ed. 896, in conflict with this ruling. In that case it was held that the rights of the Southern Pacific Company under the act of March 3, 1871, c. 122, 16 Stat. 573, were subordinate to those granted by the same act to the Texas Pacific Railroad Company, the “plain intent” of which, said the court in its opinion, was “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” road of the Texas Pacific Company. The court there further expressly declared that the act of March 3, 1871, “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.” And having there determined that in respect to lands falling within the limits of both of those grants the Southern Pacific got no title by the act of March 3, 1871, to any of the land falling within its primary limits, it could not, for precisely the same reason, get any title to any land within the indemnity limits of that grant, for indemnity is allowed only to make good a loss or losses sustained by the grantee within the primary limits of its grant.

Counsel for the complainant is also mistaken in saying that the precise question presented in the present case was also decided by this court in case No. 878 (United States v. Southern Pac. R. Co. [C. C.] 117 Fed. 544). The facts upon which that case was decided were thus stated by the court:

“The agreed statement oí facts shows that each of the separate and distinct tracts of the public lands forming the subject of the suit specifically described in Exhibit A annexed to the bill, and' aggregating 30,067.79 acres, fell within the 30-mile limits of the Atlantic & Pacific grant, and, as I understand the evidence, none of them are embraced by the common-place limits of that grant and the grant made to the defendant railroad company by the same act of July 27, 1866, but do fall within the limits of the branch-line grant to that company. In the case of Southern Pac. R. Co. v. U. S., 183 U. S. 519, 22 Sup. Ct. 154, 46 L. Ed. 307, it was held that the United States, having, by the forfeiture act of July 6, 1886, become possessed of all the rights and interest of the Atlantic & Pacific liailroad Company in the grant made to it by the act of July 27, 1866, within the limits of California, had an equal undivided moiety in all the odd-numbered sections which lie within the conflicting place limits of that grant and of that made to the defendant Southern Pacific Railroad Company by the same act of July 27, 1866, by which the latter company acquired the other equal undivided moiety thereof. But that case left undisturbed the preceding decisions, by which it has been adjudged that none of the public lands within the 30-mile limits of the grant made by Congress on the 27lh day of July, 1866, to the Atlantic & Pacific Railroad Company, ever passed to the defendant Southern Pacific Railroad Company by virtue of the grant made by Congress to that company by the joint resolution of June 28, 1870, or by the act of March 3, 1871. U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152, 30 L. Ed. 1091; U. S. v. Colton Marble & Lime Co., 146 U. S. 615, 13 Sup. Ct. 163, 36 L. Ed. 1104; Southern Pac. R. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; U. S. v. Southern Pac. R. Co. (C. C.) 86 Fed. 962; Southern Pac. R. Co v. U. S., 38 C. C. A. 619, 98 Fed. 27."

It will be thus seen that in making that decision the court did not have before it a case similar to that now presented, for there the lands in controversy were not within the common limits of the grants made by the act of July 27, 1866, to the Atlantic & Pacific and Southern Pacific Companies, but were within the primary limits of the Atlantic & Pacific grant, and within the limits of the branch line grant of the Southern Pacific Company, to wit, that of March 3, 1871.

There will be judgment for the complainant in respect to such of the lands here in controversy as were included in the decree entered in case No. 184 in this court, and in respect to all other lands embraced by the bill herein there will be judgment for the defendants.

A decree to that effect will be prepared and submitted to opposite counsel, and then to the court for signature.