Opinion — United States v. Southern Pacific R. Co.

566 OCTOBER TERM, 1911,

Argument for the United States. 223 U.S.

the same act and forfeited under the act of July 6, 1886, c. 637,

24 Stat. 123. Southern Pacific Railroad Company v. United States,

168 U.S. 1, distinguished.

Where selections are made after a decision of this court, the selections

will not be declared illegal at the instance of the Government if its

claim is inconsistent with the position taken by it in the earlier

case.

TuE facts, which involve rights of the Southern Pacific

Railroad Company under its Main Line Grant to lands

within the overlap of the primary limits of the Atlantic

and Pacific Railroad Company land grant, are stated in

the opinion.

The Solicitor General for the United States:

As to No. 128, the Southern Pacific is not entitled to

select, as being within the indemnity provisions of its

Main Line Grant made by the act of July 27, 1866, any

lands which were subject to the primary provisions of the

Atlantic and Pacific grant (made by the same act).

This question is really res judicata. See 168 U.S. 1, 61.

Other cases clearly sustain the principle underlying

this decision. Bardon v. Northern Pacific R. R. Co., 145

U. S. 535, 545; Siour City & St. P. R. R. Co. v. United

States, 159 U.S. 349, 364; Chicago &c. Ry. Co. v. United

States, 159 U. 8. 372, 374; St. Paul Railroad Co. v. Winona

Railroad Co., 112 U. 8. 720, 732; Clark v. Herington, 186

U.S. 206.

Selections for the lands in Exhibit B to the bill are now

pending in the Interior Department, but the Land De-

partment has no power, jurisdiction, or discretion which

it can exercise in approving them, and therefore this suit

to quiet title and remove the cloud will lie. Mullan v.

United States, 118 U. S. 271, 278; Burfenning v. Chicago

&c. Ry., 163 U.S. 321, 323; Doolan v. Carr, 125 U. S. 618,

624; Weeks v. Bridgman, 159 U. S. 541, 547.

The Government is entitled to a decree for the price

UNITED STATES v. SOUTHERN PAC. R. R. CO. 567

223 U.S. Argument for Appellecs in No. 128; Appellants in No. 129.

(at the rate of $1.25 per acre) of such of the patented

lands as have been sold to bona fide purchasers. Southern

Pacific Railroad Co. v. United States, 200 U. S. 341; Oregon

Railroad Co. v. United States, 189 U.S. 103, 115.

It appears by stipulation that within the indemnity

limits there still remains a large body of lands from which

the company can select in lieu of those here involved.

Southern Pacific v. United States (No. 1), 200 U.S. 341,

353.

As to No. 129, the former case is a conclusive adjudica-

tion against the defendants as to lands there and here

involved. Southern Pacific v. United States, 183 U. S.

519; United States v. Southern Pacific, 184 U.S. 49.

The title to such of the lands in Exhibit B of the bill

as were included in the former case is res judicata. It is

immaterial that the right now asserted was not asserted

then. The bill was to quiet title and the right now relied

on should have been put forward at the time, as it could

have been. The object of the rule is to end litigation.

See United States v. California &c. Land Company, 192

U. S. 355; Bienville Water Supply Co. v. Mobile, 186 U.S.

212, 216; Dowell v. Applegate, 152 U. 8. 327, 341.

The defendant company cannot contend that this ef-

fect of the decision is avoided for the reason that by the

subsequent selection under the act of 1866, which was not

in question in the case, it acquired a new title. Selection

may be necessary to perfect title, but the right, of course,

always comes from the granting act. That right could

have been urged then as well as now.

Mr. Macwell Evarts for appellees in No. 128 and ap-

pellants in No. 129:

The filing of a suit by the Government to quiet the

titlé to lands in so far as any claim is made thereto by the

railroad company under the branch line grant of 1871,

does not bar the selection of such lands by the railroad

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ICS ie LPS AAS TA ORE VE

5us OCTOBER TERM, 1911.

Argument for Appellees in No. 128; Appellants in No. 129. 223 U.S.

company under the grant of 1866, simply because the

indemnity limits of the two grants overlapped to a slight

extent, and, unknown to either side at the time of the

trial, land physically within the indemnity limits of the

grant of 1866 was in its character of indemnity land under

the grant of 1871 included in such suit. See Southern

Pacific Railroad Co. v. United States, 183 U.S. 519, 532,

stating what was decided by the court in 146 U. S. 570,

146 U.S. 615, and 168 U.S. 1.

The doctrine that the title to indemnity lands remains

in the United States until selection and approval has

always been recognized by this court. New Orleans Pacific

Railway v. Parker, 143 U. 8. 42, 57; United States v. Mis-

sourt &c. Ry., 141 U. S. 358, 374; Wisconsin Railroad v.

Price County, 133 U. S. 496, 512; Barney v. Winona &e.

R. R., 117 U. 8. 228, 232; Clark v. Herington, 186 U.S.

206, 209.

The whole question in this case is whether such general

principles of law are applicable to the facts in the case

at bar. They are not for two reasons.

First: Because at the time the suit, in 168 U. S. 1, was

brought and until it was finally disposed of in this court,

there was no claim of title in the Southern Pacific to the

lands involved here under the Main Line Grant of 1866,

and no claim of title thereto was obtained until 1903.

Barrow v. Kindred, 4 Wall. 399, 404.

Second: For the reason that in a suit brought by the

Government to quiet its title to lands claimed by the

defendants under a particular grant of Congress it is not

open to such defendants to assert any claim to the land

under another grant, especially when a contemporary

suit is brought to quiet its title to the same lands with

regard to any claims under such other grant. The Govern-

ment, therefore, by reason of the position taken by it in

168 U. 8. 1, with reference to the Main Line Grant of 1866

and because of the fact that it had brought a suit to quiet

UNITED STATES v. SOUTHERN PAC. it. R. CO. Sty

223 U.S. Opinion of the Court.

title to these very same lands with regard to claims thereto

of the railroad company under the Main Line Grant of

1866, is certainly now estopped and barred from making

the claim that the case in 168 U. S. 1, is a sufficient ground

for holding that the railroad company cannot claim these

lands under its indemnity grant under the Main Line

Grant of 1866.

Mr. Justice Homes delivered the opinion of the

court.

This is a bill brought by the United States to quiet

title and cancel patents, and for an accounting, as to

lands lying within the indemnity limits of the grant made

to the Southern Pacific Railroad Company by the act of

July 27, 1866, c. 278, § 18, 14 Stat. 292, known as the

Main Line Grant, and within the primary limits of the

grant made to the Atlantic and Pacific Railroad Com-

pany by §3 of the same act. The Atlantic and Pacific

road forfeited its grant, (act of July 6, 1886, c. 637, 24

Stat. 123), and thereafter the Southern Pacific selected

the parcels in question as indemnity under its Main Line

Grant. The rights of the Southern Pacific under this

grant were not subordinated to those of the Atlantic and

Pacific under the same statute, as they were by its branch

line grant of 1871, considered in our last decision, but in

case of conflict each road took half within the conflicting

place limits. Southern Pacific Railroad Co. v. United

States, 183 U.S. 519. The special grounds for the decision

between the same parties in 168 U. 8. 1, followed in the

case preceding this, do not exist here. Therefore the

Circuit Court and the Circuit Court of Appeals held that

the state of the lands at the time of selection determined

the right, with an accidental exception that we shall ex-

plain. 152 Fed. Rep. 303. 167 Fed. Rep. 510. 93 C. C. A.

146. Both parties appeal; the United States from the

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OCTOBER TERM, 1911.

Opinion of the Court. 223 U.S.

decision on the main point, the Southern Pacific from

what concerns the excepted lands.

The Government argues that as the lands selected lay

within the primary limits of the Atlantic and Pacific they

cannot have been contemplated as possibly falling into

the indemnity lands of the other road. It refers to an

intimation in Southern Pacific Railroad Company v. United

States, 189 U. S. 447, 452, made with regard to the branch

line grant and to lands within the place limits of the

Southern Pacific but for the paramount right of the Texas

Pacific, that as the indemnity grant was ‘not including the

reserved numbers’ ‘it might be argued’ that those words

excluded the secondary claim to the same lands by way

of indemnity after a forfeiture of the Texas Pacific grant.

It suggests that Ryan v. Railroad Company, 99 U.S. 382,

relied on for the ground of decision below, concerned land

which the United States was claiming at the time of the

indemnity grant and which it ultimately acquired, and

that its authority should be limited to such a case. But

we are of opinion that these arguments ought not to

prevail.

An indemnity grant, like the residuary clause in a will,

contemplates the uncertain and looks to the future. What

a railroad is to be indemnified for may be fixed as of the

moment of the grant, but what it may elect when its right

to indemnity is determined depends on the state of the

lands selected at the moment of choice. Of course the

railroad is limited in choosing by the terms of the indem-

nity grant, but the so-called grant is rather to be described

as a power. Ordinarily no color of title is gained until

the power is exercised. When it is exercised in satisfac-

tion of a meritorious claim which the Government created

upon valuable consideration and which it must be taken

to have intended to satisfy (so far as it may be satisfied

within the territorial limits laid down), it seems to us that

lands within those limits should not be excluded simply

UNITED STATES v. SOUTHERN PAC. R. R. CO. 571

223 U.S. Opinio. of the Court.

because in a different event they would have been subject

to a paramount claim. It seems to us, in short, that

Ryan v. Railroad Company, supra, should be taken to

establish a general principle and should not be limited

to its special facts. As to the suggestion in 189 U. 5. 447,

452, the words ‘not including the reserved numbers’ refer

primarily at least to the numbers reserved from any part

of the grant by the terms of the act, and the suggestion

was made only as to a claim of indemnity from lands in

and adjoining a strip to which the title under the primary

grant failed. Whether there was anything in it in any

aspect we need not consider now. It certainly cannot

affect this case,

A more delicate question is presented by the appeal

of the Southern Pacific. It is this: A part of the lands in

controversy were not only within the main line indemnity

limits of the Southern Pacific and the primary limits of

the Atlantic and Pacific, but also within the indemnity

limits of the Southern Pacifie branch line grant. It is

agreed that they were embraced in the decree against the

right of the Southern Pacific under its branch line grant

in 168 U.S. 1, and the argument is that the matter is res

judicata, on the ground that a decree or judgment is

binding as to al! media concludendi, and that the former

decree established the right of the United States to this

land. Dowell v. Applegate, 152 U. 8. 327; United States v.

California and Oregon Land Co., 192 U. S. 355, 358. But

the selections in this case were made after the decree in

168 U.S. 1, and if the matter were at large it would seem

a strong thing to hold an adjudication conclusive not only

as to existing titles under the grant in controversy, but

as to merely possible sources of title in the future under a

different and distinct grant. We shall not discuss that

question, however, or consider just how far the decisions

have gone. The Solicitor General candidly agreed that

the Government should not and would not rely upon this

Rey RY senior

ee AGNES ARNON

572 OCTOBER TERM, 1911.

Opinion of the Court. 223 U.S.

ground, if it had taken 2 position inconsistent with it in

the earlier case, and it seems to us plain that it did so and

expressly deprecated any reference in that case to the

rights under the Main Line Grant.

It appears that the bill in 168 U. S. 1, was brought or

at least tried as a bill to quiet title against claims of the

Southern Pacific under the branch line grant, and that

during the litigation on that question there was pending

another bill to quiet title under the Main Line Grant, being

the one before this court in 183 U.S. 519. It is said, and

we do not understand it to be disputed, that in oral argu-

ment and printed brief before the Circuit Court of Appeals

the counsel for the Government repeated that title under

the Main Line Grant was not involved, and that if that

question ever arose there would be pleadings and proof

upon it. The court in its decision, 168 U.S. 1, 29, stated

the claim of the Southern Pacific to be under the act of

1871 (the branch line grant}. Again, in the case between

the same parties in 183 U. 8. 519, 533, the court said that

it was not adjudged in the former cases that the Southern

Pacific had no title to any real estate by virtue of the act

of 1866; and although it also said that of course the decrees

were conclusive as to the title to the property involved

in them, still in view of the conduct and disposition of

the cause as to the branch line grant, if for no other reason,

we think that it would be inequitable for the United

States now to rely upon the decree in that cause as con-

clusive upon the parties in this. It follows that as the

present decision was in favor of the United Siates with

regard to the last-mentioned lands it must be reversed,

(No. 129), and that otherwise (No. 128) it stands affirmed.

Decree reversed.

UNITED STATES v. SOUTHERN PACIFIC

RAILROAD COMPANY.

SOUTHERN PACIFIC RAILROAD COMPANY ov».

UNITED STATES.

APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE

NINTH CIRCUIT.

Nos. 128, 129. Argued January 26, 1912.—Decided February 26, 1912.

An indemnity grant, like the residuary clause in a,will, contemplates

the uncertain and looks to the future, and what the party entitled

may elect to select depends upon the state of the lands at the time

of selection. Ryan v. Railroad Company, 99 U.S. 382.

Under the main line grant made to the Southern Pacific Railroad

Company by the act of July 27, 1866, ec. 278, § 18, 14 Stat. 292,

the company can select lieu lands within the primary limits of the

grant made to the Atlantic & Pacific Railroad Company by § 3 of

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