596

FEDERAL REPORTER,

his purpose to enforce it, iq all cases, that come to his notiCe.' I see no good reason to believe,' that it was passed for the purpose ofdiscrimination infavor of another com'pany, as claimed, or that it is intended to be so enforced. I do not think it violates any provision of the national constitution. I regret to be obliged, by this decision, to affect, so seriously, the interests of th,e enterprising parties, who are endeavoring to supply our citizens with electricity for the various purposes to which it is now applied. But I (',annat decline to administer the law as I tind it, for the safety and security of the lives and property of the citizens of San Francisco. In accordance with the conclusions, which I have reached, an injunction must be denied, and it is so ordered.

(,'

"

(GrircuU Oourt, N. D. Oalifornia.' March ,30, 1891.)
,

On Motion fOJ: Injunction. Haggin &; Ness and fleorge O. florham, Jr., for complainant. , Langhome, & Miller and Estee, Wilson &; McCutcheon, for respondent.
Before SAwYlm.. CIrcuit Judge. SAWYER, J. This is a simllarcase against the chief of the fire department of San Francisco, to enjoin,\lim from executing the order in question, by removing the numerous electric wires from certain buildings specified. Let a similar order be entered in case.

UNITED STATES .". SOUTHERN PAC.

R. Co. et Consolidated.)

&

LIME

{d.

(Nos. 67 t 68, 69,

.".

CoLTON MARBLE

Co. et

at {No.SS..)

,(Oircuit Oourt"S.

1; PU»LIOI.,'!Ni>B-RAILROAD

OaU!ornia. March 6, 1891.)

'l!. RAILROAD GRANT. ,"., " , " , Aet'Corlg.' Ju1y 21.'1866, fully.oonfetlred npon the S; P. R. R. Co. tberighttobuild the rq\\d in and, ear':l the land glT&I1ted by that act, without. authority of the state'leglslature. " ' , ,

Act Congi March 8.1871, gl'l\)lted certain lands to the S. P. R.;It. Qo" and provided , that if itsrout8, Whendesignatedj sllould be ,found tq be on the line of any other road 'to wbicli land bad also been granted, the amount theretofore granted should R. Co., so faras,their be dedu<ltMfl'Om the qliant,itytb,ereby granted to routes on the Ijame In bills brought byihe government to set aside'U:'pii.'tent to tbe'S,'P.R. RCa., it is alleged that the route of the A. andP. Co.· to whi9h;landhad also, and therouf,e, of,the S. P. R. R. Co., eacb, other in the state; Of, CijIifornia." Held, that this allegation does not bring the la'n4 within the exception bf said act, and' tlrllt under such ll.llEigation, even if proof that tb,e routes, upon tl;te it would not the government. , ' '

UNITEDS'1'ATES ". SOUTHERN PAC. R. CO.

597

Act Congo Juo/ 27, 1866, recognized the S. P. 'B. R. Co., organized under a general law of CalifornIa, and made it certain grants of land. Pursuant to A<..'t Cal. Leg. March 1, 1670, authorizing any corporation already formed, or thereafter to be formed, to amend its articles of association, and Act April 4, 1870, in terms authorizing the S. P.R. R. Co to file new and amendatory artlCles of association to enable it completely to conform to Act Congo July 27, 1866, S. P. R. R. Co., and other rail· roads, October 11, 1870, filed articles amalgamating and consolidating themselves into a new corporation,-S. P. R. R. Co. Act Congo March 3, 1871, authorized the S. P. .R. R. Co. of California (subject to the laws of California) to construct a line of railroad from a point at or near TehachapI' pass, by way of Los Angeles, to the T. P. B. R. at or the C. river, with the same rights, grants, and privileges, and subject ·tothe same limitations, and conditions, as were ,granted to saidS. R. B. Co. of California by Act July 27, 1866. Held, that congress thereby recognized that the S.P. R. R. Co. of California, existing March 3, 1871, under the article's of and consolidation, of October 11, 1870, was the same S. P. J:t.R. Co. to, which the grant of July 27, 1866, was made. The authority conferred on said company by the act of March'B, 1871; to build the road designated, was made subject not only to. the general laws of California railroad corporations to aIbalgamate and consolidate their interests and amend their articles of incorporation, but to the special act of April 4, 1870. ', .. SAME. . Pursuant. to state authority recognized by and made a part of the congressional frrant of March B, 1871, the S. 'P. R. R. Co.; April 15, 1871, filoo. amended articles of Incorporation; and August 12, 1873, filed, together with the S. P. Branch R. ,B. Co., articles of amalgamation and cpnsolidation, under the name of the S. P. R. Eo. Co. HeM, that while in one sense a new corporation was formed', each was substantially and practically the same S. P. R. B. Co. mentioned in the act8' of, congress, and was so recognized and that the articles of amendment,amalgamation, and consolidation were aUthorized by congressional as well as by state . Go SAlI:E. Commissioners having froIq time to time been appointed to report in regard to the construction of the Southern Pl\cific Railroad, the road having been accepted by the president, and having been used by the government in thettansj:lortation of mail, military' s,tores, eto. heZd,that these acts were acts recqgnizing thedefllndant company as.the S. P. ii. R. Co., to which the act of March 3.1871, applies. and that the defendant company, b'eing subject to burdens imposed by the act, 18 entitled to the benefits conferred by it as a C9nsideration for those burdens. Go SUCCESSORS AND AsSIGNS. Act Cong. July 27, 1866, having expressly granted lands to the S. P. R. B. CO., its successors and assigns, it is hel(l, that, if the consolidated the amended articles of incorporation is not technically the same corporation referred to in Act March B, 1871, it is within the express provisions of the grant, being the successor or assign of. said cOlllpany. '1'. MEXICAN GRANTS-WHEN CEASE TO BE SUB JUDICE. When a Mexican grant, by specific boundaries carrying. all the lands within the designated boundaries,'has been confirmed by a.decreewhich has become'final, the said decr6jl specifically pointing, .out and designating the cornerS by natural o))Jects on the ground, and the connecting 'lines, all'lands outside those specific monuments and lines,from the date when .the deCree 'becomes final, cease to be sub judice, if they ever were iQ,that condition, within meaning of those,te,rms as used. pythe supreme court in the cases of NewhaU V. Sanger, 92 U. S: 761; Doolan v.'Oarr, 125 U. S.688, 8 Sup.Ct. Rep. 1228; and U. S. V. McLa'U{l7l.lin, 127 U. S.428, 8 Sup. Ct. dissenting. "

8.

S,ulB-AMALGAMATION-RECOGNITIONBT CONGRBSS.

r.

, In E q u i t y . , . , Joseph H. Call, U. S. Atty., CW. H. H. MiUer, Atty. Gen., ,and Willouhby Cole, U. S.Atty., of counsel,)forcomplainap.t. , ,'. Joseph D. Redding, (Oreed Hayrf!l1nd, A. B. Hoichkf,sa, J. D. ,EickneU, a. Ii. Wilson, S.: Rolfe, Chapm!1-.n, & Rendrick, Ander8on, Fitzgerf!!.ld An;der8on, Edwin Baxter, and J. L. Murphey, of counsel,}for respondents. BeforeStWYJi;R" Circuit Judge, ,and Ross, District Judge. '

a.

Ross, J. When these cases, which were argued and submitted to:gether, were before the court on demurrers to the amended bills, (-39

598:'-

J;

FEDERAL :REPORTER,

vol. 45.

t<>theAtlantie Pacific RailJuly27,lS98, conferred upon tha;tcompany no right'ot"'at:1y'rIatureto any of land within the indemnity to its seleqtion, and, as COl)Sequence, that the within such indemnity limits did not exclude them fiiom' to the Sci,uthern Company of date March 3; 1871, because ofthat provision ()f,tp'ettctof July 27, l866, (to which ,theaetof March 3, 1871. of the gmnttothe Southern Pacific "Provided, however" this section shrill in no way affect or impair the rights, present Ol'prospective, of the;Atlanticand Pacific RailrQttd Company or any other railroad company." But because the am,ended bills on their face that the lands in controversy, which are within the indemnity linlits of the grant to the Atlantic & Pacific COlll,PliPY and within the prhnary liInits of that to the Southern Pacific Company, were at the time ,'Of thpgrant to the' Southern Pa,,4ific Company-'claimed to be within Mexican grant San Jos6, which latter grant, it was alBUb and tpat of the grant to leged, the Southern ,Pacific Company to theefl'ectthat if the route it was authorized I3bquld: foundJo be the, of any other railroad route to aid in the construction of which lands had been thereto.. furegrantedbythe United States;, al!. far as therot/tea are uponthe saJUe generaUine;' the iuuountof land theretofore granted should be deducted frqm the an1l?l.'lntgranted,tothe Southern Pacifj'c Company,l coupled with the fact'then alleged arid by the demurrers adniitted, that the routes of the two roads weretip6n the same, general litle; the amended bills by.the.CQurt to state, in each Qfthose respects, good cause forannulli[}g the patents issued tOLthe Southern Pacific Railroad ComJ>aflY;" ..,.. ",.. ." ',.. '., Since the ruling upon the demurrers the bills have'been still further amended,an<l tlle. for deciSion upon the proofs taken and :the master's ,report. .. . the facttheretoforeall ged that the routes of the two roads are upon the same generaLline, and the question deci.qed uponth;e,demi,ttrei,'s to. that pbii:/fis tbereforb no longer . The:allegationi'oftbe>present to is that the two routes "cross each other in the state of California,ns will more particularly appear" from a. certain annexed map. The fact that madetpe bas!s of the in illJhatthetwoTotltesshall be'upoD thesa'me genenilliric; each other.i'If the two are'jii fact:' up?n)hesame general line and the government relied upon fact forlA it wRso[cdurse essential that the fRet be 'all-egecl., . ot'beihg:itlleged it Bv-aiHbe complainant even if the' t>r06'f shows that . In respect'"to' the llpresent·'abd prospective" clause of the llct of July 27 J I, adhere to the views expressed when the cases were
'd

}i':.!3.,

UNITED STA'l'Ea V.SOUTHERN PAC.' R. CO.

599

ered on demurrell'j' in: so: far as concerns the'lands then and now ihvolved, AtHmtic namely;, lands Withitl the indemnity limits of'the graBt ,to &PacifioCompany, and do not care to add anything; to what was then said on that poinLin regard to such Jands. ·nOne, question remains for decision in each ofthe cases, namely, Should the patents issued'to the defendant company be annulled ,upon the 'ground.that the defendant, though having the same name, is a different from that, to .which the grant was the 'pany t?which the grant wall made did hot build the road and thereby earn!tbegranted lands? And in the consolidated cases Nos. 67,68, and 69 there remains for deCision the further question,' Does the casBshow that the lands in· controversy were, at the time of the ,grant to the South· ern Pacific Railroad' Gompainy:;, within, the ·claimed, lirilitsof the Mexican grant San Jose, and was that gl'antthen judice? ' " The.afiimlative ofboth ofthesequestions is urgedwithmuch:eardestness on the part ofthe governmEmt. . ,i, ,: The, Southern Pacific'Railr6ad COmpany was olligihaUy incorporated December 2, 1865, under a general law of the state of California;approveliMl1y20, 1891, (St. Cal. 1861, p. "All act to/provide.for·tbe incorporation of railroad companies aud!i.he managementof the affairS .thereof, abd other matteTS relating thereto." act,' among other thil1gs,authorized'sooh corporathlDs the. . as or ,copld of apd oth,er property.of.every,deacriptiQA.,,3s shall made to .it"tp age the conlitruction:,maintenance and operation of such railroad)'" The aCt also provided that it should'be lawful for two of-more railroad companies roiimalgamatil'and Qonsolidatetheir ()apitrtl'stbck, clebta, prbperty 'auch mann,er as by the 'of 9f such companies .so desiring Jo: alid inte.rests.:By the act of congress, approved July 27, 1866,,(14 St., 292j)iareatingthe Atlantic & Pacific Railroad Company and empowering it to 'construct and maintain a continuous milroad and 'telegraph line 'Mo., to the Pacinc coast, recognized 'tlie,Southerl} Qompany, ·organized. as 'aforesaid, it to. the Atlantic RailroaqiatS\lch point, near the boundary line of California, as the Southern Pacific Company should deem most suitable for a railroad to San Francisco. For .the purpose Oflliding theconstrudtidnohhe'lirte authorized to be .buirlt,fllnd thereby'sectikiiiig tile safe and speedy transportation of l1lails, troops, munitions of"war and phblic stote8, uf'July21; ,1$66, & PilcificRailroad: Company a right of:way over the ·l'Jutilic:dorhil.in and. also made to it a I;rant of public lands"al6tig ltherouter 'and the'railroad'so to be constructed to be aJpost route ia11dnlititary road, BUbjeetto' tM'UEie 'onheUilited States for J>OSt:l;l, and:ill other;goVetn*lental to such regulations as congress might pose ,forrestneting the ehal'ges for government transportation. By aeetiM' 8oHhe·samij aet, tbeCSouthern

suo

ip

600

FEDERAL REPORTER,

vol. 45.

Pacific Bailroad Company was given similar grants of land, subject to the limitatioDB.and conditions provided in the act, and was required to construct its road- under like regulations as to time and manner as provided in respect to the Atlantic & Pacific Company. The grant thus made to the Southern Pacific Railroad Company was accepted by it on the 24th of November, 1866, and on January 3, 1867, it filed in the office oBhe commissioner of the general land-office a map showing its definite lin.e of route from a point on the southerly edge of the bay of San Francisco, in a southeasterly direction, to u point on the east line of the state of California on the Colorado river, near the Needles. The Southern Pacific Railroad Company was not authorized by its original charter to extend its, road to the Colorado river. But with a view to further the intent of the act ,of congress of July 27,1866, and to enable the Southern Pacific Company to take the benefit of the grant thereby conferred upon it, the legislature of the state of California, on the 4th of April, 1870, passed an act entitled" An act to aid in giving effect to'an act of congress relatin.g to the Southern Pacific Railroad Company," St. Cal. 1870, p.883, which reads as follows:
"Whereas, by the provisions of a certain act c>fcongress of the United States of America entitled, 'An act granting lands to aid in the construction of a railroad and telegraph line from San Francisco to the eastern line of the of CalifOJ;nia. appl"o;ved July 27,1,866,' certain grants were made to, and certain rights, privileges, powers and authority were vested in and conferred upon, the Southern Pacific Railroad Company, a corporatiou duly organized and existing under the laW8 of the state of California; therefore', to enable the said company to mOre fully and completely comply with 'and perform thereqUirements" prOVisions and of the said act of congress, and all other acts of. congress now ill· force, or which may .hereafter be enacted, the state Of California, hereJ:>y"consents to said and the said company, its successors andaSlligns, are hereby authorized and empowered to change the li.ne of its railroadso as to reach the eastern boundary line of the state of California by such route as the company shall determine to be the most practicable, and to file new and amendatory articles of association, and the right. power and privileges hereby granted to, conferred upon and vested in them. to construct, maintain and operate, by steam or other power, the said railroad and telegraph line mentioned in said.act of congress, hereby confirming to and vest· hig in said company, its successors and assigns, all the rights, privileges, franchises, power and authority conferred upon, granted to, or vested in, said company by the said acts of congress. and any act of congress which may . be 'hereafter enacted."

Shortly prior to this, and at the same session of the legislature, a general act waS passed any corpol'ation already formed, or thereafter to be formed, to amend its articles of association, Act March 1, 1870, p.l07.) But the act of April 4, 1870, in terms the Southern Pacific Railroad Company to file new and amendatory l1rticles of association, and this for the avowed purpose of enabling it to ,more perfectly and completely conform to the act of congress of July 27, 1866; and the rights, privileges and powers conferred by the act of April 4, 1870, on the Southern Pacific Railroad Company were given ;to. it, it,9 and assigns.

UNITED-'BTATES 17. SOUTItERN PAC.R. 00.

601

This state legislation, as was decided by the supreme court in the case of CalijO'l"ftia v. Railroad Co., 127 U. S. 44, 8.Sup. Ct. Rep. 1073, was not necessary to empower the Southern Pacific Company to build the line of road authorized by the act of congress of July 27, 1866, and thereby to the granted lands, for the reason that the right to do so was fully conferred by c()ngress itself. But it was enacted to remove all doubt in respect to the company's power toconstrl1ct the road, and for the expressly declared pnrposeof enabling it to comply with the act of congress and thereby to receive the benefits conferred· . It is stipulated by counsel in these cases that on the 11th of October j 1870, the Southern Pacific Railroad Company, the San Francisco & SaD: Jose Railroad Company,the Santa Clara & Pajaro Valley Railroad. Company, and the California Southern Railroad Company availed themselves of the aforesaid acts of May 20, 1861, and April 4, 1.870, of the state legislature, arid duly filed articles by which they amalgamated and conSolidated themselves into a new corporation under the name and style of the "Southern Paoific Railroad Company," and did thereby vest in such new corporation their several capital stockR, debts, properties, assets, roads, telegraphs, lands, franchises, rights, titles, privileges, claims and demands of every kind-the object and purpose of the new oorporation being declared in the articles to be"To purchase, construct, own, maintain and operate a continuous line of railroad from the city of San Francisco, in the state of California, through the city and county of San l'rancisco, the counties of San Mateo, Santa Clara. Monterey, Fresno, .Tulare, Kern. San Bernardino and San :oieJ;to"to some point on the Colorado river, in the south-eastern part of the state of California, a distance of seven hundred and twenty miles; as near as maybe; also a line of railroad from a point at or p.ear 'fehachapapass, by way of Los Angeles. to the Texas Pacific Railroad. at or near the Colorado river, a distance of-three hundred and twenty.four miles, as near as may be. * ." Such was Southern Pacific Railroad Company when congress passed the act of March 3,1811, (16 St. U. S. 573.) By that aetoongress inthe Texas Pacifio Railroad Company, with power to construct and maintain a continuous railroad and telegraph line from MarShall, in the state of Texas, to a point at or near EI Paso; thence through: New Mexico and Arizona to San Diego, pursuhlg as near as might' be the thirty-secondpaTallel of latitude. To aid in its construction, congress gave it, also, the right of way over the public domain, and made to it a grant of public lands along the route. The nineteenth section provided: "That the Texas Pacific Railroad Company shall be and it is hereby declared to be 3. military and post road; and for the purpose of insuring the of the mails, troops, munitions of war, supplies, and stores of the United StateS. act of the company nor any law of any state or. territory shall impede, delay, or prevent the said company from performing its obligations to the United States in that regard; prOVided. that said road shall be subject to tbe use of the United States for postal. military and all oth.er governmental services at fair and reasonable rates of compensation, not ,to exceed the price paid by private parties for the same kind of service; and. the government shall at all times have the preference in the use of the same fOr the purpose aforesaid." .

602

FEDERAL REJ'CIRTER,

vol. 4;5.

'The rtwenty4hird section of the act is as follows: ; ,the purpose of connecting the TexasPacitic"Railroad with the ciiy of SaD iFirancisco, the Southern:Bacific Railroad ()Qmpany of California is hereby authorized (subject to California)to construct a line of i from a, point at or near Teh,achapa pass. by way of Los Angeles, to the1'll((aS,Paci/i.c Railroad, at or Dear the Colorado river, with the same rights, grants'ahiI privileges, and subject to tbe same limitations; restrictions and conditibns' 'as' were granted to said Solithern PaCific i Railroad Company of b)ithe act of July twenty.seven. eighteen hundred and sixty-six; pro'Oided, howe'Oer, that this seotiOD shall in DO wayv"ff.ect or impair the :rights, presen t or prospecti ve, of the Atlantic and Pa9iQc Railroad Com pany, or any other railroad company." " In' the case 'of Railroad 00. v. Poole, 12 Sawy.544, 32 Fed. Rep. 451, it was ,contended that at the' date 6fthe passage of the act of congress of March 3, 1871, the, Southern Pacific Railroad Company was not ized by its charter to build the line of road from 'rehachapa pass, by way of Los;Angeles, to connect with the Texas Pacific road, and, as by the twent.y-third'section of that ,act that company was" only authorized, subject to tMla,W8 of Oalifornia; to construct a line of railroad from a point at or near Tehachapll. pass/' etc., the grant was ,neces8arily inoperativ4;l 'Thecourt accepted the fact as there staled, that at the time of the passage of the act of congress the company, did not ing to the ;laws of California,the legal capacity to build the road on the line designated, and yet held against the contention. But according to the stipulation <>f counsel'in these cases, the fact was not as there stated. At the '<if tbe of the "aCt of congress of March 3, 1871, the Southern ,1'adficRailroad Company WaS, according ,to the stipulation of counsel,e;xisting' under the articles of and consolidation, which was its charter, of October 11 1 1870, entered into pursuant to the provisions ofthe state act already referred to; and, as has been seen, one ;oft4e purpoeell @fJpe corporatiooJ.l,S expressly in those articles was to qQostrqpt"own, mainta,inand operate "aline of railroad from a .pointat 9rn,earTehachapa 'by way of Los Angeles to the '.re:;ras 'Pl1'cificRai,lr.Qlld,ator near CQlOrado river, adistance Qf three hJlnt iVflntx·four may be." , , ,By thea(jt of. March 3,1871,cpngress made ,this state corporation, wit4 one pf agencies in the establishment of the lljljtionul highwaY provided for" aq"l: authorizedit-:,',' .!\Sbbject: to the law:s of California; to ,construct a linl;) of railrQad from a point pallS. b)' Los Texas, Pacific.RaillI:tor; rh;ef', with the same'rlgh,ts, grants and privi.al1d,subject, to the same, restrictiollll and. conditions as were to, said Southern Pacific It.ailroad CQmpany of CaHfornia by the act of J!11y eigbtE;en (With the provisoal.,< ;,' : . . . . , :

" not ,onlY a plain recbgnititm byeongress that the Southern PacHic'Railroad Company ofCaHfornia,existing at the time of the grant .of MaJ;'ch 3, 1871"under the of. a.malgamation: and consolidation of October 11, 1870, was the sarile Southern Pacific Railroad Company

603 to which the grant of July 27,1866, was made, but the authority to build the road designated conferred on that company by the act of March 3,1871, was in terms nuide, subjeotto the laws of California. ' Those' laws, as has already been pointed out, not only authorized two 01' more railroad corporations to amalgamate and consolidate their intllrestsand' to amend their articles of incorporation, 1:Iut the state act of April 4, 1870, expre13s1y that the powers therein conferred upon the Southern PadificRailroad CompanYl its successors and llssigns,were for the very purpose of enabling it, its successors and assigns, to more fully and 'completely comply with and perform the requirements, provisions and conditions of the act of congress of July 27,1866, and any other act or acts of congre$S that might be thereaft,er enacted. Pursuant to this state authority, recognized by and made a part of the congressional grant of March 3, 1871, the Southern Pacific Railroad Company. on the 15th of April, 1871, filed in the proper office of the state amended articles of incorporation, and, on the 12th of August, 1873, it filed, together with the Southern Pacific Branch Railroad Company, articles of amalgamation and consolidation under the name oUhe "Southern Pacific Railroad Company," in both of which Itl'ticles one 'of the purposes is stated to be the building of the line from San Francisco through the several named counties, in a southeasterly direction, to the Colorado river, and the of the line from Tehachapa pass by way of Los Angeles, to connect wIth the Texas Pacific at or near the Colorado river, and thus to secure to itself the grants, rights and privileges conferred upon it by the congressional grants. While by the several articles of amalgamation and consolidation, a new corporation, in one seuse, was formed, each was substantially and practically the same Southern Pacific Railroad Company mentioned in the acts of congress, and had for its purpose the building of the lines of railroad,' therein designated and the obtaining of the land grants for doing so. Congress, in passing the act of March 3, 1871, evidently did not consider that the Southern Pacific Railroad Company, by entering into the articles of amalgamation and consolidation of October 11, 1870, and ther,eby, in one sense, becoming a "new" corporation, had become l\ distinct and independent one; for in that very act it designated Southern Plicific Railroad Company to which that act applied as the same Southern Pacific Railroad Company to which the act of July 27, 1866, applied. Not only so, but the act of March 3, 1871, in terms authorized that company to the designated road subject to the laws ofCallfornia. which laws, as has been shown, expressly authorized the amalgamations and consolidations and the amendments of articles that were made. There was therefore congressional as well as state legislation authorizing the articles of amendment, amalgamation and consolidation,;and I can see no just ground for holding that the defendant company" which it is ccmceded buBt the required road within the i@ated time, was not to w1;lich the grant was made. "In also,the defendant oompany has" been rec'ognized a& ;Southern Pacific Railroad Company, to which the act of March 3,

604

FEDERAL REroRTER,

vol. 45.

1871, applies. It has been so recognized by the appointment of commissiohers 'from time to time as the road was being built, to report in regard to its construction; by the 8.(jceptance of the road by the president, in its entirety, as having been d\lly completed under and by authority of the act, and by the use of the road by the government in the transportation of its mail, military stores, etc., pursuant to the provisions of the act. Manifestly, the defendant company cannot justly be held subject to the burdens imposed by the act and yet not entitled to the benefits conferred by it as a consideration for those burdens. Besides, as said by Judge SAWYER, in the case of Railroad Co. v. Poole,

ifUpra

"Section 2 of the Atlantic and Pacific act, imported into the Texas and Pacific act by virtue of section 23 of the latter and section 18 of the former, giVing to the Southern Pacific Railroad Company of California · the same rights, grants and privileges, and subject to the same limitations, restrictions and conditions' prescribed in the former act. expressly says the lands are granted to the company, its successors and assigns. These words' successors and assigns 'of cOurse mean something. If the consolidated company, with amended articles of incorporation, is not technically the same corporation referred to in the Texas Pacific act, it is SUbstantially and practically so. If not. it is certainly its sucoessor or assign, and is thus within the express provisions of the grant,." The points above considered are common to all of the cases, and dispose of case No. 88. In the consolidated cases Nos. 67, 68 and 69 the question in respect to the Mexican grant San Jose remains to be determined. That grant was for the place called San Jose and in conformity with the desenoattached to' the petition for the grant and within the boundaries therein given. The grant was made by Juan B. Alvarado, at the time 'goveriior of Upper California under the Mexican government, and received the approval of the departmental assembly. The claim thereto 1852, by the grantees to the board of land was presented in cOplmissioners pursuant to the provisions of the act of congress of March 3, entitled "An act to ascertain and settle the private land claims in the state of California," (9 St. at Large, 631.) : The claim was confirmed by the board c>f'landcommissi<mers, and in December, 1854, the district court, to which the case had been taken on appeal, confirmed the decrees of the board, giving to each of the three claimants an equal undividedorie-third part"OJ the lands of San JOSe granted by JUl!'n B. Alvarado, governor of Califorbia, to Ignacio Palo'mares and Ricardo Vejar on April 15. 1837, and regranted by said governor on March 14, 1840. to said Palomares and Vejar and to Louis Arenas, as described in the grant first mentioned and the map to which the same referred, and which boundaries fully appear from the act of jUdicial possession [described as ·Commencing at the foot of a black wil· low tree which was taken for a comer ,and between the limbs of which a dry stick was placed in the form of a cross; thence westerly nine thousand seven hundred (9,700) varas to the foot of the hills called" Las Lomas de la Puente" taking for a landmark a large walnut tree on ;the slope of a small hill on the side of the road whiohpasses from the said San Jose tathe Puente, making a

UNITED STATES tJ. SOUTHERN PAC. R. CO.

605

cut (caldura) on one of the limbs with a hatchet; thence northerly ten thousand'four huudred (10.400) varas to the creek (arroyo) of San Jose opposite a high bill where a large oak was taken as a bQundary, in which was placed the bead of .a beef, and some of its limbs chopped; thence easterly ten thousand sil[ hundreq (10,600) varas to the creek (arroyo) of San Antonio, taking fora landmark young cotton-woods which stand near each other, on the bark of which crosses were made; thence sOlltherly nine thousand seven hundred (9.700) varas to the place of beginning.' " The decree of the district court became final in 1857. In 1858 the surveyor general ,for California caused the land thus granted and confirmed to be surveyed,-the survey being made by Deputy Surveyor Hancock. That survey did not include any portion of the lands in controversy here; It was approved by the surveyor general for California on the 14th of January, 1860; but the case shows that it did not receive the approval of the commissioner of the general land-office. On the 14th of June, 1860, congress passed an act entitled" An act to amend an a.ct entitled' An act to define and regulate the jurisdiction of the district courts of the United States in California in regard to the survey and location of confirmed private land claims,'" (12 St. at Large, 33,) by which the district courts were given authority to order into court for examination and adjudication the survey of such private claims. This act, however, as was held by the supreme court, did not apply to surveys made prior to its passage unless they had been approved by the surveyor general .and had been "at the time of the passage of the act returned into the district court, or in relation to which proceedings were then pending for the purpose of contesting or reforming the same." The grant claimants were not satisfied with the Hancock survey, and subsequent to,the passage of the act of June 14, 1860, brought it before the di!3trict court for review, in supposed conformity with the provisions of that act; but that court finding that the act did not apply to that survey, on November 21, 1867, dismissed the proceedings and remitted the piipers to the surveyor general. In the mean time congress had passed the acts of .July 1, 1864, (13 St. c. 194,) and July 23, 1866, (14 St. The a!Jt of July 1, .1864, was entitled" An act to expedite the settlement of titles to lands in the state of California," and by its sixth section provided that it should be the duty of the surveyor general for California to c!l:use all private land claims finally confirmed to be accurately surveyed and plats thereof to be made whenever required by the claimeach claimant requesting a survey.and plat should ants; provided, first deposit in the .l,iistrict court of the district .within which the land was situated a sufficient Bum of money to pay the expenses of. Buch. survey and plat, and of the publication required by the first section of the

act.

.

" The act of July'23, 1866, w;as entitled "An act to quiet land titles in California," the eighth section of which provided: "That in all caseli! where a claim to land by virtue ofa right or title derived from the Spanish or Mexican authorities has been finally confirmed, and a survey and plat.tnereofshlldlQ()t have been requested within ten months from the passage of this act, as provided by sections six and seven 'ilf: of July

60a
firs,t,',elghteen h td '?f 'tit,le\! :,to taMs tnthe and mliU'cftses a chtnn'.Ill'1IHl,here'" aft'e'r be. finallycoilfifmed;Ciltid a sUrVPy and 'plat thereof shall not be requested by 'm?nths of'thisact, final confirmatfol'ihereafter made; ,It shaH be the du'ty'bf the surveyor the Unitetl'S1iates for Cal,ifornia. as 'soon as ptact1cableaftedhe expiratIon of ten months from the pass:Rge of this act. or su.clrllnal confirmation hereafter made. to cause the lines of the':p'ublic surveys'tobe'extended over he off, in fullsatisfactionofsuch:grant, and according lipes of the public surveys, the,quanLityof land confirmed in such final decree, and as nearly as can be done in accordance with such all 'the: land not included iii stich grlintas so set off shall be subject to the gen. erallaws of the United States; provi.ded'; that nothing in this act shall bl! con· strued SO as in any manner to'interfere witb the right 'of bona fide pre-emp' tion cl$i!:Ua,nts.," On January, 1868, the 'surveyor general for California reported't6 thecoIilmissjoner of the general land-office that an application had made to him by one of the grant clairtants for a surveyof the grant,)pd ill respol1se to that repo,rt ,the cOlrimisSior1er directed that the Haneocksurvey, illl1dein1858,aIid approved by the surveyor January 4., 1860,. be published in accordance the provisions of the act of of July 1, 1864. Instead of doing so, the surveyor eral, it se.ems, caused another survey of the grant to be made in August of that yeai'; to-wit, 1868, by Deputy Surveyor rhompson, which survay a portion of the lands involved incases 67,68 and 69,' and was approved by the surveyor gerierill. , . ', Both Hancock and Thompson surveys were subsequently before the dommissioner and afterwards bef6re the secretary of the interior for consideration and decision-the claimants contending that the hnes of the Thompson survey correctly the 'lines of the grant; and the question of survey was so pendihg' at the' tiine of the grant 'to the Southern Pacific Railroad CompariAf March 3,; 1871.' That question, as the record shows, related to the.trtie location of the na tural calls of the grant, and was finally by, the secretary September 20, 1872, by which decision the lines as repres¢nted by the Thompson survey were rejected und those of the Hancock survey, with some lllodifications, adopted-the direction of the seci'etary being, "That thelinel'lofthe SanJose be run as follows: Commencing corIler,at the point designated by Hancock as /'t the willow at the 'li\l'gerock in center of water pool,' agreed on as the place where the black willow of the juridical once existed;' thence westel'lyalong the base of the mountains. so as to'include the springs near the ravine. to the black :walnut;, thence oak Qf.the Tueaja; thence north-easterly to the Botello oak; thence easterly in-a direct line to a point on the al'l'oyo of San An 9. 70QVj:lrasnorth of ,the black and thence BoutQerly along 'said arroyo of San Antonio to 'the place of beginning." ,.:-. ,",,'
"

. ' .

or

. In with these ,another survey of the grant was made by the surveyor general, upon which a patent was issued; and as thus surveyed and patented none of the lands in controversy were included in the liries ohhe grant.

UNITE],) STAT]llSf1. SOUTHERN PA,C.' R. CO.

607

While the finalresult of these proceedings was a conclusive,determination that as a matter of fact none of the lands in controversy ever were true li,nesof the:Sllo,Jose gran,t, they alsq show beyond doubt w:ithin that some of them cla,imed, by the grant claimants to be within the boundaries ofthat grant, that such cla,im was made and maintained at the time, of the congressional grant to the Southern Pacific Railroad Company of March 3, 18n., ' , , " It is contended that the surveyor had no authority, to cause the Thom,pson,,8urvey to be made ",hilethe,previous survey of Hancock 'was, pending, a119-' undetermined,and that the was never considered "bY the commissioner of the general, hind-office or thtl oqheinterior "as a SU!Vey but oolyas an exhibit." ,Let all pfthis be admitted, and the that is of the question as toi 'V!,ether the lands in ,contro,,:"ersy here were embraced by the grantto ·the Southern Pacific, Railroad 3, 1871, Considered only as'an"exhibit," the',fhompson sur"'13Y, as it, did. what the contended were the, ,true lines oftha grant, was and is evidence of the fact that they claimed that the lands embraced by that survey (including a portion of the lands: in wHhin the boundaries of the Mexican grant; and that cla1l;n up to the time of the final decision of the secra:tary of the September, 1872. It is not the,validity of such put,the,f,,!cHhat it was made, that excludes the lands embraced by it fl'Qm of public lands within the meaning of the. railroad land grant&, ,if excluded at ail. Do()lrwL v. earr, 125 U. S! 632, 8 Sup. o.t. Rep. 1228. , ', ' It is urged ,that the, San JosewR!! a grant by specific boundc'onfirmed with the same boundaries, no land that was aries /l,nd not finally ascertained by tpe be within those boundrailroad ifotherwise within its limits. This is praeticallyto wipe out entirely the doctrine announced by the su.,. -pre-me court in Nr:whallv. Sangr:r, 92 U. S. 761; Doolanv. Carr, U. Ct. Rep. and in other cases, that the status of lands ,included iJlfl. or pending before tribunals charged Wiith the dutyof.adjudicatingit was such ,that they were not included in "p)lblic lau.ds" oUhe railroad land grapta. ," Those Mexican claims," said the court iq Doolan V.' were teDlpted to be described, by specific boundaries. They were often claims for, a definite quantity oflaJ;ld:within much larger out-boundaries, and :tbeywere frequenUy described by the name of a place, or ranch. To the e::x:tent oithe claim when the grant was for land with specific boundaries, or known nl;tme,and to the extent of the quantity claimed out.boundaries coutaininga grell.ter area, they are excluded from the grallt to therll-iJroad company. this exclusion did. not depend upon tl,levaljdity of the claim asserted or its final establishlIlent, :but UpOl' thefactJhat t!,eree;x:if/ted a claim of a rlghtunder a grantpy tlle. Mexican gqy,ernment,which wasYetundeteJ:J;Il,ined, and to thephra&e 'Pllblic]andf/' could not attach,aI,ld

608

;.'

vol. 45.

ute did not iucInde, .although it might be found within the limits preon each side of the road when located." . . In the case ofU. S. v. McLaughlin, 127 U. S. 428, 8 Sup; Ct':JRep. 1177, it was held,th'at as in the <!ase ofa floating grant the Mexican government retained the right to locate tbequantity granted in such part of the larger tract described as it saw fit, and as the government of the United States succeeded to the same right, the latter government might dispose of any specinc tracts Within the exterior' limits of the grant, provided a sufficient quantity was left therein to satisfy the private grant; and, accordingly, that in cases of floats, the railroad land grants might attach to lands within such exterior boundaries provided a suffiCient quantity of land was left therein to satisfy the private grant. But while thus modifying what was generally understood to have been the effect of the decision in Newhall v. Sanger, the Court, inU. S. v. McLaughlin, proceeded to declare (127 U. S. 455, 8 Sup. Ct. 1190) that "the reaSoning of the court in Newhall v. Sanger is entirelY,'conclusive as to all definite. grants which identified the land granted,suchas the case before it then appeared to be," but went on to show that it was not plicable to floats. I do' not see how there can well be a decision more direCtly to the point that in cases of Mexican grants by specific'boundaries, lands which are claimed by the grantees to be within. those boundaries ate excluded from the category of public lands to which the railroad larid apply, if at the date of the latter the question of the true location of the boundaries of the private grant is pending andnndetermined. If to such a case the doctrine ()( Newhall v. Sanger, and the other cases approving it, does not apply,! it does not apply to any case; for it does not apply to floats, as was pointed out in' S. v. McLaughlin,' and grants by specific boundaries and by name manifestly stand UpOll 'the same footing. It is contended that as the San Jose grant was one by specific boundaries the claim ceased to be Bub judice when the decree of confirmation became filial in 1857; that nothing then remained to do but apply the description to the ground and 'survey the lines. If so, precisely the same thing is true in respect to floats. When the decree of comfirmation in such a case became final, nothing remained to do but locate'the quantity and 8urveythe lines. In either case,that duty, except in the matter of such Surveys as came within the of the act of congress of JUne 14, 1860, devolved upon the land department of ,the government and was subject,first, to the action ofthesurveyor general, and then, in turn, to that of the commissioner of the general land-office and the secretary of the interior. The records of the land department put in evidence in these cases clearly show that the contest over the survey of the San Jose grant was in relation to the identity of the natural calls of the grant-the grantees claiming thafthe true location of the trees and other objects called for in the speciflc description of the grant would include within those bOUlidaries a portion of the lands in controversy here. If that contention wa'g well founded;.undoubtedly the lands so included would not be public lands of the United States. It would seem plain

UNITED'STATES V. SOUTHERN PAC. R. CO.

609

enough, therefore, that until that questiOll was finally decided it could not be known whether the lands so claimed ',were public lands or not. Under the laws of the United States the duty of that question devolved, as has been said,upon the officers of the land department. Its ultimate determination was vested in the secretary of the interior. Had he decided that the lines as represented by the Thompson survey were the true boundaries of the grant, such decision would of course have been equally. conclusive lis the one that was made; and the patent following it would have been a conclusive determination that all the lands embraced within those lines were within the boundaries of the Mexican grant and therefore not public lands to which the railroad grant only could attach. It would seem plain, therefore. that until the contested qnestion of survey was decided it could not be known whether the lands involved in the contest were public or private lands; and until such decision became final, lands so involved were sub judice and not public lands wit,hin the meaning of the railroad grant act, according to the ruling iQ the cases referred to, as I understand them. It results from these views that in case No. 88 there should be a decree dismissing the bill without costs, and in the consolidated cases Nos. 67,68 and 69 a decree in favor of complainant in so far as concerns the tracts of land in controversy which were at the time of the grant to the Southern Pacific ,Railroad Company of March 3,1871, within theclaill1ed limits' of the San Jose grant, and as concerns the remainder of the lands in controversy in the consolidated cases, a decree for the defendants:'each party to pay its own costs. SAWYER, J. After a careful consideration of the question, I am satisfied that tnose lands embraced in cases 'Nos. 67, 68 and 69, alleged to have been within the boundll:TJ of the rancho San Jose, and to have been sub judice, at the date when the railroad grant attached to thelandsgranted. were subject to thelegislative grant. Xhave studied 'Yith great ,care the ca,ses of Newhall v. Sq,nger, 92 U. S. 761; Doolan v. ilirr, 125 U. S. 638, 8. Sup. Ct. Rep. 1228; and U. S. v. McLaughlin, 127 U. S. 8 Rep.1l77,relieq. <;m, and I am unable to find anything. in either pf them requiring, or justifying, the exclusion of judgment, those those landS froqi. the operation of the grant. In lands, now in question, were not in any jU8t 8ense,or in the sense con'" ten1,plated in the. decisions in those cases, sub any time after the decree of confirmation, defining by specificmetes and bounds, the preCise lands final, even if they were so, which is at leaElt, doubtful, at any prior time. That decree. pointing out, specifically, the precise lands confirmed, forever settled the rights of the parties, and after it became final, there was no possible ground for claiming anything outside of those boundaries. None of these lands are within the boundaries designated in the decree, or withiri the' exterior boundary of the juridical possession uPQn which the was based. Indeed, as I understand the ,matter, they all lie from at least one to three miles from those boundaries, and could not by any possibility havebeegiaken in v.45F.no.9-39

610

,f

,

FEDERAL

It.EPORTER,,vol.A5.' .,

tbe:tlecree, or have been lawfully included in:aoy- sulvay'. After that decree became final the claitnantlfmightjust as wellhlwe'clai:rned land ten, fifteen or more mHes;as frdJJn <meto three miles, distant.' :The decree settled the rights the parties, and the limits of the land granted. ' And,that is final. !It could not, lawfully, beohanged by the' surveyor, or any other authority. In the language of the supreme court, in U. 8. v. 1 Wal1:.' 455, 456: "The eree'i8ajinality, ,not:onlyon the question of,title,' but a8 to the boundaries whickitgpedji.es:" Affirmed: U.8. v. Billing, 2 Wall. 448; Higueras v. U. 8;, 5 Wall. 834!;d)udge v. Perez, 2 Saw)'. 652. ' In the F088at Cd&,2 Wall. 649, the supreme court held that: "If a' California lana claim has confirmed b;y:a decision of the district court Ulidettbe act of March 3,1851, and dwision afconfirmation. fixing the boundariei of the tract, stands unrevetrsed, a ,survey under. it is the tionol t4q,t (j,ecl'ee, and m1tst; corifol'lwtoJ it in respects."

of

corner, and between tltelimbs of which a dry stick ,was placed, in the form 'O'f. a C1'OS8,' thence westeHynitle thousand, seven hundred (9,700) varas to foot of the hills caned ',Las' Lomailde la taking: for a landmark It large walnut tree on thiulope of'a .8m-all hill on the side; of the 1'oad which from ,said 'SanJose' tlJ th.e Buente, makin,rJ q, cut'(caldura) on one of the with ;:hqtQhet; then{J8 four hundred, (10,400) varas to (arroyo);4;>,.f San Jose, opposite high hill, ala1'ge oak was ta,ken, cis aboundary, in '!J}hich was :placed,the head of a beef, and some of its Umbs:'ohopp'ed; th'enceeasterly teo'thousand, six hundred '(10,600) varas to of San Antonio, taking for a landmark two, lIoum.g'cotton.WotJ,tf;swhioh ,stand''(Wareach other, on the bark of which

i.n this case,' the decree of ec.mfirmation, which stands utireversed ''fixes the boundaries" ofth'e grant, t,he sUrv'eiJ under it is ,not a, continuation of the 'qut "the execution of that decree;" and no lands outside specific boundaries.so fixedanil established', nomatter,what the firmees may youlq,'lawfullY;,be included in, or patent. of the are, finally, anq'the If\nd which the coilfirmees are entitleq" irr.evocabf'y; designated, and, pointed out. "," , , ' " , 'the language of the decree ofcdrifirmatioll is, sUbstalntially, identical with that of the juridical possession, which was ratified arid approved by the granting auth<;>rities of Me:Jtico, and by its adop.tion in the decree by the courts of the phitedStates, it, forever, settled question of location lletween the United States and thedaimants, and,' thereby, the lands the boundaries ceased, tb. aub,}u,dice. All that remained to be done was to execute thedecree, by finrlinl?j the m0!1utnents designated, and ,run the Hn?s between them in ,a 'forin usual for insertion in United States patents. " ,TherewQ$ ri9 discretion whatever ieft in the surveyor, as there is in tqe 6aseof ailoat. Those monuments, and no other8, could 'belawtully W:keh', and there was no posSible ground for further claiming laIidsoutsfde' 'the boundaries so, specifical\y,designated, and pointed out. The of th'e,decree of 'confirma.tion is clear and Unmistakable, and is as foll,ows: ',', ' ' " Commencing at the' a bl(J.(j,kwiUowtree, whiCh was taken for a

611'

Cfiosies

,nade; 'thence Routberly thousand, s6venhuItdrM (9,700): nras to the place:af'begimning. " There could not and lil:ndmarks. There are consisting ofcertllin trees, marked and carefully described, constituting' themonmnetlts as speCifically de) scribed, as surveyors usually describe the 'and four straight lines for sides, forming verynelirly,ltl. parallelogram'; and such appears to. :be the :shape .of thei 1iuid on the,deseno., .: Nd other, points· or cbnl(,l be lliwfully taken; Now the land inchided within these'boundaries is the land, 'confi'rmcd, 'tihd'no other. , There 'was no further groundf6r litigation. Allthatw8.s' necessary to do was to find themonumentsand run the connec,Hnglines according t? the description in the decree; Monu-' ments of thisk,ind may 'be destroyed, and it itiay becoirie difficult to find them; but ,tha'tis the misfortune of the patties It appear th l1,t that was the case her,e. Monuments are often destroyed when planted by, government surveyors in surveying the public lands, and thisoccllsion,s much troUble in after years,' as this court has had occasion to kn6w, ;from litigation before it,as to boundaries. of the public surveys and thelocatiori of the monumentS, officially, planted by the United States In this case the record of the juridical possession wns referred to in, and made, a part of, the petition for l1onfirmation'frled before the land commissioners, as describing the lands for which c011firmationwas asked. Thns the claim made upon the recotd was for these specific lands within the houndaries prescribed by the juridicalpossession, and adopted in the final decree, and '110 other. It does not appear in the record that any claim was made before the boardnr court for lands/outnide these boundaries, pr that there ever was any contest over lands outside the prescribed to livery boundaries. . The jdridical possession was a ceremony of seisin at common law,ar1d it defines specifically the lands'granted. This juridical possession is, of itself, controlling as to the lands granted. Graham v. U. S., 4 Wall. 261, 262 j U. 8. v. Pica, 5 Wall. 539, 540. In this case we have only the juridical possession, but the d'ecree confirming the grant in accordance #ith it, and with the claim of the petitioners, as shown by the record j'and this decree, whether right, or wrong, as we have Seen, is and conclusive. The case was not open, thereafter, to further contest, or claim for lands outside these boundaries. In my judgment, that claim for land outside ceased to be sub judice; if it ever was in that condition, at the date when this became final. After that no ltmd outside Of theseprcscribed boundaries could, lawfully; be included ;fo. the patent issued under the confirmation; and there was no longer anylegitimatft, or subshitltial, basis for any claim to such lands. Newhall-J.Sangir, 92U. S.761,'and Doolan v. Carr, 125U. S. 618, Rep;'1228,' presbnt' cases ;eiltirely' diflerent from this. In the 8 Sup. former, when the general'rnap;of'the route' was filed by the railroad for Moquelarnos grant, within company the exterior' boundaries of which""the lands in dispute' were situated, was still pending ifri'd undetermibed. "The grant 'was: afterwards' rejectedal!l
,j , ' ,

d

612

FEDERAL REPORTED,

vol. 45.

fraudulept. The claim itselfto the grant was, undoubtedly, sub judice, for it was still pending, and the validity of the claim undetermined by the courts. It was held that the grant being still 1mb the lands were not embraced within the railroad grant. The case was decided upon a partial record in which all the facts did not appear. Afterwards, in U. S. v. McLaughl,in, it appeared that thelapd claimed under the Mexican grant was for a certain ;Ilumber of leagues within exterior boundaries containing a great many more float; and it was held that, since there was ample land left ,to satisfy the grant, and the right of location was in the government, tq.,e surplus lands were subject to grant, and those within the purview of the railroad grant passed to the railroad company; and the court limited the rule as to lands 1mb judice,. at the time of the railroad grant, to grants by name and grants by specific boundaries, in which all the lands passed to the grc!inlee. U. S. v. McLaughlin, 127 U. S. 428,8 Sup. Ct. Rep. 1177. So the case of Doolan v. Carr, 125 U. S. 618, 8 Sup. Ct. Rep. 1228, did not present all the facts, and the court acted upon the hypothesis that the grant was one by name,-tpe. "Rancho Las Pocitas" including all the lands within the, indicated boundaries. It was substantially so alleged in the offer of proof (see p. 621, 125 U. S., and page 1229,8 Sup. Ct. Rep.,) and such,is the idea conveyed by the proofs offered as stated on pages 622 and 623. It does \lot appear in that record that the supreme court modified, as it did theAecrees of the board and of the district . court, and limited the confirmatipn Jo two 8quare leagues, or that the exterior boundaries covered from tllo to twelve square leagues,-that it was, therefore, in fact, a mere flQat, a grant of quantity, within boundacontaiqing the quantity confirmed. But all this appears in the subsequent, 'case, involving lands in the same grant "Las U, S. v. Curtner, 38 Feq, ;Rep. 1, and 14 Sawy. 535, the decisicm in whichwasconcur,red in by both the and circuit Judge,-the former, withJustice STRONG, having originally dissented in Newhall v. $anger. The c9urt in Npwhall v. Sanger doul;>tless' supposed that the g;qantcalled was a grant by name, with definit.e . ,This clearly appears from what is sa,id in U. S. v. Mc!JUughlin, 127 U. S.. Ct. Rep. 1177. Said the court in the decision of NewhaU v. among othertbings: . "There is Sanger, in conflict withthlOlviews here expressed, because the court did not have before it. the caseo!a floating 456, 127 U. S. ,and page 1191, 8 Sup. Ct. .Rep. Anq in that caae.·, the validity of the, grant itself had not alleged to have attached. And been decided :when the railroad in,Doolan v. Carr the court supposed that "Las Pocitas" was a grant by name, including all land within the J:>oundaries given, and acting upon this idea, as seems evident from what it said in 125 U.S. 631, and 632, 8 Sup. Ct, 1234 and 1235, and in the third head-note,pages 618, 619, it considered, and perhaps, pr9perly, too, the case to be still 1mb judice under its lOO8e and general boundaries as described, 1J,ntil they ahould be determined. The boundaries in bQth these cases wefe. generarl, loose·; and vague to the last ciegree, ami

UNITED STATES tl. SOUTHERN PAC. R. CO.

613

much latitude in the exercise of discretion by the surveyor, must, necessarily, have been exercised. In those cases, until the survey had been made and approved, and the land granted located, the case was, perhaps, sub. judice. The San Jose grant, now under consideration, presents no such case. It had been awarded to the claimants as long ago as 1857, by a final decree, which not only confirmed the grant, but pointed out the boundaries by specific corners, carefully described, and courses connecting them, whuh no surveyor could lawfv11y disregard, change or modify; and I find nothing in the cases cited to warrant me in saying, that, after that specific decree became final, either the grant or its boundaries were in any just or legal sense, or in the sense as used in the cases cited, sub judice. The grant was undoubtedly 8ub judice, from the filing of the petition till the entry of the final decree confirming and identifying the lands granted by specific, metes, bounds and monuments, clearly described. Prior to the entry of that decree confirming the grant, like that in question; the grant to the railroad company under the decisions in the cases cited, would not have taken effect, even if the grant were afterwards rejected as fraudulent, upon lap,ds confe88edly within the trpecific boundaries of the grant as described and claimed in the petition, it being a grant covering all the lands within the boundaries. But these lands now under consideration never were within the boundaries described in the juridical possession, for which the petition was filed, and in the final decree, which follows literally the juridical possession. Like much of the land claimed to be within the Moquelamos grant, these lands were entirely outside the exterior boundaries of the grant. I doubt very much whether they ever were sub judice, although the lands described in the grant undoubtedly were. They were miles outSide the boundaries described in the juridioal pOllsession and decree, and could in no way be lawfully brought within the grant. In U. B. v. McLaughlin the main question was, "Whether the land in question was actually within the outside limits of the pretended Moquelamos grant?" 127 U. S. 441, 8 Sup. Ct. Rep. 1183. Had it not been, as a large part was found by the court not to be, although 80 earnestly and vigorou8ly claimed, that ended the question. Now, in this case, the lands under consideration never were within the outside limits of the grant, as indicated by the juridical possession, and that ought to end the matter. But the supreme court itself, in the case of U. B. v. McLaughTJin, the very last case on the subject, has decided the point, substantially, that the mere claim that lands are within the boundaries of a grant doesndt rrutke them 8ttb judue even in a float, within the meaning of that phrase, as used by the court in the three cases cited. That decision authoritaffively settles the point, and does not leave it open for further. discussion. Nearly all the lands involved in that suit lay east of the Jack Tone road, which followed the line between sections 7 and 8. The complainants earnestly insisted that the eastern boundary of the Moquelamos grant was the Sierra Nevada range, 80 miles distant, and if not that range, then, that Bear mountain, 24 miles east of the Jack Tone road, waS the

614

FEPJj:RAL REPORTER ,vol.

45.

8ult would di8pose of .the present (lase with regard to nearly all the land, in

narrowest eastern limit ofthegrant.The most of the testimony in that case, .bothby complainants and respondents, was introduced ,upon this single point to ahowtbeeastern exterior boundary of the grant, the complainants insisting that it was the Sierra Nevada range, and Hnot, that,: then, at least,. Beal1mountain, and the respondents,. that it was the Jack Tone road. . And the court opens the on page 441, 127 U. S ·· and page 1183,8 Sup. Ct. Rep., by saying that theJirst question is, "Whether the land in' question waa actually within the outside:l'imits ofthe umded MOquela lllOS grant? II Several pages are then devoted to discussing the evidence on this point, which was the great point ofdiscussion in the,case, and the court then concludes: "011 tbewhole, we are satisfied that the outside boundary limits of the Hogue/amos grant, as called for in the g1'ant itself. do not extend east of the Jack Tone road; or the edge of the hills comml'nc,ing near the same. This reqUestion
pp. 447, 448, 127 U. S.· and pftge 1186, 8 Sup. Ct. Rep.

Thus, as to the great body oflands in question, the court put the decisionexpressly on the ground, that although within the boundaries, as claimed), they were, in jact, outside the real oj the grant. ' Then,tbe mere claim that the lands were within the boundaries of the grant did not make them sub judice, within the meaning of that term, as used by thecoul'tj for this point is wholly outside and independent of the. distinction. between floats and grants by specific boundaries or names, on whiehdistinction the few lands west of the Jack,Tone road were still given· by the court to the railroad company as not coming within the decision, ,of NewhaU v. Sanger. It seems to me that there is no evading this authoritative decisionjthat a mere claim that lands are within the exterior boundaries of a grant, when not so' in.1act, does not make them sub judice even in the. case oj a float, much less in a grant with specific bounds, finally and irrevocably confirmed and fixed by such specific bounds. r am, therefore, clearly of the opinion that these lands now sideration were not 8ubjudice in the sense as the terms are used in the cases cited when the railroad grant attached, and that the grant is valid and passed a good title. ' On this point I regret to find that. I cannot agree with roy associate. On all the other points discussed by my associate, in the opinion now delivered, r fully ,concur with his views. : It has been suggested that the ruling on demurrer as to indemnity 'lands adopteddn the opinion of my associate in which I concur, and being the lands in question, is inconsistent with the ruling in Railroad 00. v. Wiggs, decided by me, and reported in 43 Fed. Rep. 333, and 14 Sawy. 568. When that case was decided the decision on demurrer in this case had not fallen under my notice. But the cases are not inconsistent .and ,ean, well ,stand together. .In that case the decision Was .not put upon the ground that the company's title attached to lieu lands at any time before tne selection, but on the ground that under the special provision ofth,ata.ct they, as well as those within the primary grant,

UNITED STA-TES 'V.80U'j'HERN PAO.R. CO.

615

were withdrawn from pre-emption, and other disposition beforeprovide<l for by law,and that, although the company's title did not vest, till s,election, still'that, until it had an opportunity to select, nobody CQuid acquire or initiate a pre-emption or other right, under existing laws. And that the pre-emption claim then in question was initiated and after. wards proved up and the patent issued, while the lands were withdrawn and not subjeet"to sale as the laws then stood, except to the company, and while awaiting an opportunity for the company to select, and were not then subject to such disposition. Congress had power, had it seen fit to do so, to withdraw any lands from pre-emption without reference to other grants. and without conferring any rights upon another to the lands. But that act did not purport or attempt, nor could it have done so if attempted, to limit the power of congress to make subsequent grants to such lands before any other right in them had vested; and the grant ndw in question was a subsequent one made by congress itself, and as no other right had yet attached to the lands, it was in no way affected by the provisions for withdrawal from pre-emption and sale by the prior act. I conC.Uf with the district judge wherein he held on demurrer as follows: "To lands to which no title could attach prior to selection, I do not think the Atlantic & Pacific Company had,at the time of the grant to the Southern Pacific Company, a present, or prospective right. If it had such tight to the particular lands in suit, it had the same right to all other lands to which the right of selection might have applied. And since. by the act making the grant, the Atlantic & Pacific Company was empowered to construct its road along the thirty-fifth parallel of latitude to the Colorado i'iver ·at such 'point as may be selected by the company for crossing, thence by the mostpracticable and eligible route to the .Pacific' ocean, the present and' pros,pective rilrht of that company. prior to splection, might be applied to any public land situ-, ated between the Colorado rIver and the Pacific ocean with equal propriety as to the particular lands in controversy here. The effect of such a holding would be to give the proviso as broad a scope as the granting clause to which itis appended." The question whether the clause in the provision of section ,23 in the act of 1871, "that this section shall in no way affect or impair the rights, present or prospective, of the Atla'ntic and Pacific Railroad Company, or any other railroad company," or any clause in the act of 1866, in view O,f all the facts of the case, defeats the grant to respondent as to those lands, which lie within the prlmary limits of the grant, does not arise in this case, and, therefore, need not be discussed. Yet, since there is intimation, in the opinion of the district judge, upon the demurrer, although the question was not involved, and, consequently, there was but a partial consideration of the point, that such is the case, I refer to it now for the purpose, only, of saying that Ido not wish to be considin that view. I shall not at this time decide or dig.. ered as cuss that but leave it for full discussion and decision when the point properly arises. Under the views expressed, and those of my associate on the other points by him, in which I have and under the pro-

FJmERAL REPORTER,· vol.

45.

iil!lionsof section 650 of the Revised Statutes of the United States, the bills, aato, all the lands involved in the several cases before us, must be dismissed, and it is so ordered.

WHITNEY

v.

TAYLOR.

(OItrcuit Oourt, N. D. Oalifornia., January 12, 1891.)
PUBLIO LANDe-RAILROAD GRANTS-RESERVATIONS-PRE-EMPTION CLAIMS.

Act Congo July 1, 1862, (12 U. S. St. 489,) granted in aid of a railroad company all the odd-numbered sections of land within certain limits "to which a pre-emption or homestead claim may not have attached." In 1857 one J. had filed a pre-emption declaratory statement on land within the terms of the subsequent grant, which statement remained intact until after the final location of. the railroad, and. until 1885, when it was canceled because J. had never lived on the land. Held that, notwithstanding the subsequent cancellation of the statement, the pre-emption claim had attached to the land within the meaning of the statute, and hence such land is excluded from the grant, arid is open to settlement after such cancellation.

At Law. A. P. Catlin and B. E. Valentine, for plaintiff. Robert T. Devlin, for defendant.
HAWLEY, J. This is an action of ejectment. The cause 'was tried before thl:: cQurt without a jury. The plaintiff claims title under a deed from the Central Pacific Railroad Company. The land in question is situate in the odd-numbered sections which were granted to the railroad company by the act of congress of July 1, 1862. 12 U. S.' St. 489. This land, under and by virtue ohaid act of congress, became vested in the railroad company on the 26th day 'of March, 1864, when the map of the definite location of said railroad was filed in the proper department at Washington, unless it had been "sold, reserved, or otherwise disposed ofby the United States, and to ,vhich 'a pre-emption or homestead claim may not have attached." The testimony shows that one Jones filed a pre-emption declaratory statement on the land in question on 'the 28th day of May, 1857, in the proper land-office, alleging settlement thereon in January, 1854; and this.declariltory statement remained intact and unacted upon until long after the date of the filing of the map of the definite location of the railroad, to-wit, until 1885, when it appearing, in proceedings had before the commissioner, that Jones never lived on the land, his filing was canceled. The commissioner of the land-office, after Jones' declaratory statement had been canceled, decided that, "at the date when the route of the C. P. R. R. Co. was definitely fixed, a pre-emption claim had attached thereto, [that of Jonesj] and, Rsthe grant to said company expressly provided that lands to which a pre-emption claim had not attached were granted, it follows that lands to which such a claim had then attached were not granted." This decision wa.s nffirmed by the secretary of the interior. The defendant,
I