[183 U.S. 519, 520] Mr. Joseph H. Call for the United States.
Messrs. Maxwell Evarts and L. E. Payson for the Southern Pacific Railroad Company.
Mr. Justice Brewer delivered the opinion of the court:
On May 14, 1894, the United States filed in the circuit court for the southern district of California a bill of complaint against the Southern Pacific Railroad Company (hereinafter called the Southern Pacific) and others, seeking to have certain patents canceled and their title quieted to a large body of land, including those described in said patents. Upon pleading and proofs a decree was entered in favor of the United States on June 6, 1898, quieting their title to most of the lands described in the bill. 86 Fed. 962. Cross appeals were taken from such decree to the circuit court of appeals for the ninth circuit, by which court the decree was affirmed on October 2, 1899. 38 C. C. A. 619, 98 Fed. 27. From such decree of affirmance both parties have appealed to this court.
The lands in controversy were within the grant made July 27, 1866 (14 Stat. at L. 292, chap. 278), to the Atlantic & Pacific Railroad Company ( hereinafter called the Atlantic & Pacific), in aid of its projected line from Springfield, Missouri, to the Pacific ocean, and were situated along that line between the eastern boundary of California and the Pacific ocean. The Southern Pacific claims title to these lands by virtue of the 18th section of that act and its proceedings thereunder, had with the express approval of Congress.
Litigation has heretofore been had between the United States and the Southern Pacific in reference to lands along the line of [183 U.S. 519, 521] the Atlantic & Pacific, the result of which litigation will be found in the following decisions of this court: United States v. Southern P. R. Co. 146 U.S. 570 , 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United States v. Colton Marble & Lime Co. and United States v. Southern P. R. Co. 146 U.S. 615 , 36 L. ed. 1104, 13 Sup. Ct. Rep. 163, and Southern P. R. Co. v. United States, 168 U.S. 1 , 42 L. ed. 355, 18 Sup. Ct. Rep. 18. Those decisions are claimed by the government to be controlling of this case on the principle of res judicata.
There are therefore two distinct questions presented for our consideration: First, whether the Southern Pacific took any title to these lands by virtue of the act of 1866 or subsequent legislation, and, second, Do the prior decisions of this court control the determination of this case?
With reference to the first question a further statement of facts is necessary. The act of 1866 chartered the Atlantic & Pacific, empowered it to build a railroad from Springfield, in Missouri, to the Pacific ocean, the description of the latter part of the route being in these words:
By the 3d section a grant of lands was made to said company in these words:
The company filed its map of definite location in 1872, but never did any work in the way of constructing that part of its road from the Colorado river, that being the eastern boundary of California, to the Pacific ocean. On July 6, 1886, Congress passed an act forfeiting the lands granted to the Atlantic & Pacific, so far as they were adjacent to and conterminous with the uncompleted portions of the road. 24 Stat. at L. 123, chap. 637. By this act the interest of the Atlantic & Pacific in public lands in the state of California was devested and restored to the United States.
On December 2, 1865, the Southern Pacific was incorporated under the laws of California, 'for the purpose of constructing, owning, and maintaining a railroad from some point on the bay of San Francisco, in the state of California, and to pass through the counties of Santa Clara, Monterey, San Luis Obispo, Tulare, Los Angeles, and San Diego to the town of San Diego, in said state, thence eastward through the said county of San Diego to the eastern line of the state of California, there to connect with a contemplated railroad from said eastern line of the state of California to the Mississippi river.'
Section 18 of the act of 1866 reads as follows:
On January 3, 1867, the Southern Pacific filed in the Interior Department a map of a route from San Francisco via Mojave to Needles, on the Colorado river. This line from Mojave to Needles is on the same general course and contiguous to that adopted by the Atlantic & Pacific. The Secretary of the Interior refused to accept or approve the map on the ground that this particular part of the line was not authorized by the charter of the Southern Pacific. On April 4, 1870, the legislature of California passed the following act:
And on June 28, 1870, Congress passed the following joint resolution ( 16 Stat. at L. 382):
Along this general line the Southern Pacific constructed its road, as California said, in reference to the grant made to the Southern Pacific by 18 of the act of Congress of July 27, 1866, that it 'hereby consents to said act;' and as Congress, by its resolution, approved the route selected by the Southern Pacific as a route authorized by that act, no one can question that the construction of the road was under such circumstances as entitle the company to the benefit of the grant made by said 18th section of the act of 1866. [183 U.S. 519, 525] By the act of 1866 Congress made grants of land to two different companies, by the 3d section, to the Atlantic & Pacific, and by the 18th section, to the Southern Pacific. The settled rule of construction is that where by the same act, or by acts of the same date, grants of land are made to two separate companies, in so far as the limits of their grants conflict by crossing or lapping, each company takes an equal, undivided moiety of the lands within the conflict. Neither acquires all by priority of location or priority of construction. St. Paul & S. C. R. Co. v. Winona & St. P. R. Co. 112 U.S. 720 , 28 L. ed. 872, 5 Sup. Ct. Rep. 334; Sioux City & St. P. R. Co. v. Chicago, M. & St. P. R. Co. 117 U.S. 406 , 29 L. ed. 928, 6 Sup. Ct. Rep. 790; Donahue v. Lake Superior Ship Canal, R. & Iron Co. 155 U.S. 386 , 39 L. ed. 194, 15 Sup. Ct. Rep. 115; Sioux City & St. P. R. Co. v. United States, 159 U.S. 349 , 40 L. ed. 177, 16 Sup. Ct. Rep. 17.
The question as to the two grants under this act of 1866 was presented to Mr. Justice Lamar, at that time Secretary of the Interior; and his ruling to the same effect appears in a letter of instructions to the acting Commissioner of the General Land Office on November 25, 1887. 6 Land Dec. 349. In that letter he said:
As against this, it is contended that Congress could not have intended a road running from the western to the eastern border of California, parallel and contiguous to the Atlantic & Pacific road; that it must have intended a connection between the two roads on the western boundary or border of the state,-especially in view of the fact that the charter of the Southern Pacific contemplated only a line along the western part of the state from San Francisco to San Diego. Whatever doubts there might be in respect to this matter are removed by the action taken by the Southern Pacific and the resolution of June 28, 1870. The railroad company assumed that it had a right under the act of 1866 to locate a line to the eastern boundary of California, and did locate such a line, and filed a map thereof with the Secretary of the Interior; and Congress, by the joint resolution of June 28 in effect accepted and approved that line, and declared that the railroad company might construct its road on the route indicated on that map.
Neither is the date of this resolution the time at which the rights of the railroad company arose, as is contended by counsel. No new land grant was contemplated; no substitution of one grant for another, or of one line for another. The obvious purpose was to accept the line proffered by the road as the line intended by the act of 1866, and the grant made by the act of 1866 was recognized as rightfully to be used in aid of the construction of a road along the line suggested by the company.
Neither is it material whether the line indicated on the map filed is to be taken as a line of general route or of definite location, for in fact the road was constructed along that line, 'as near as may be,' in the language of the resolution, and the road has been accepted by the government.
Neither does the fact that the line of road contemplated by the Southern Pacific's charter, at the time of the passage of the act of 1866, was along the western border of the state, prevent [183 U.S. 519, 527] the operation of the grant. It is well settled that Congress has power to grant to a corporation created by a state additional franchises-at least franchises of a similar nature. Sinking Fund Cases, 99 U.S. 700 , 727, sub nom. Union P. R. Co. v. United States, 25 L. ed. 496, 504; Pacific Railroad Removal Cases, 115 U.S. 1 , 15, sub nom. Union P. R. Co. v. Myers, 29 L. ed. 319, 324, 5 Sup. Ct. Rep. 1113; California v. Central P. R. Co. 127 U.S. 1 , 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073; United States v. Stanford, 161 U.S. 412, 431 , 40 S. L. ed. 751, 759, 16 Sup. Ct. Rep. 576; Central P. R. Co. v. California, 162 U.S. 91, 118 , 123 S., 40 L. ed. 903, 912, 914, 16 Sup. Ct. Rep. 766.
In California v. Central P. R. Co. 127 U.S. 1 , 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073, this very grant was before the court; and Mr. Justice Bradley, on page 44, L. ed. p. 159, Inters. Com. Rep. p. 162, Sup. Ct. Rep. p. 1083, having theretofore narrated the facts in reference to various charters and grants, said:
We are of the opinion, therefore, that Mr. Secretary Lamar [183 U.S. 519, 528] was right in his conclusion that both the grant to the Southern Pacific and that to the Atlantic & Pacific took effect; and being by the same act, so far as there was a conflict, the two companies took equal, undivided moieties of the land.
We pass, therefore, to a consideration of the second question: Do prior decisions of this court control the determination of this case? United States v. Southern P. R. Co. 146 U.S. 570 , 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United States v. Colton Marble & Lime Co. and United States v. Southern P. R. Co. 146 U.S. 615 , 36 L. ed. 1104, 13 Sup. Ct. Rep. 163, and Southern P. R. Co. v. United States, 168 U.S. 1 , 42 L. ed. 355, 18 Sup. Ct. Rep. 18, are referred to. Those cases were brought by the United States against the Southern Pacific to quiet title to certain lands (but not the lands in controversy here) along the line of the Atlantic & Pacific within the state of California. In the last of these three case the principle of res judicata was invoked and held applicable; and the title of the government to the lands involved was sustained on the ground that the question in controversy had been finally determined in the prior suits. In the opinion filed there was much discussion in respect to res judicata; and it was said, on page 48, L. ed. p. 376, Sup. Ct. Rep. p. 27:
See also New Orleans v. Citizens' Bank, 167 U.S. 371, 396 , 42 S. L. ed. 202, 210, 17 Sup. Ct. Rep. 905, 913, in which the rule was thus stated:
On April 3, 1871, the Southern Pacific filed a map of a route from Tehachapa pass southward by way of Los Angeles, to connect with the Texas & Pacific Railroad at the Colorado river, and subsequently constructed a road on such line. This line crossed that of the Atlantic & Pacific, the general course of the former being north and south, and of the latter east and west. The grants, therefore, to the Atlantic & Pacific by the act of July 27, 1866, and that to the Southern Pacific by the act of March 3, 1871, came in conflict at and near the place of intersection of their lines. The lands in controversy in those suits were lands within the granted limits of both companies at the place of conflict. It was so distinctly stated in the opening of the opinion in the first case referred to:
Both grants were grants in presenti, and when the maps of definite location were filed and approved, the grants took effect by relation as of the dates of the acts. Hence, if each company filed a map of definite location, the title of the Atlantic & Pacific, relating back to the year 1866, was anterior and superior to that of the Southern Pacific of date 1871; and all the lands within the conflict passed to the Atlantic & Pacific, rather than to the Southern Pacific. To avoid the effect of this conclusion,-a conclusion resting upon well-settled principles of public- land law,-the Southern Pacific contended that no map of definite location was ever filed by the Atlantic & Pacific, or approved by the Secretary of the Interior; but after a full examination of the facts this court held otherwise, summing up its conclusions in these words:
So, in the opinion in the last of the three cases, is this statement of the facts and question:
And again on page 29, L. ed. p. 370, Sup. Ct. Rep. p. 20, after a quotation of the 23d section of the act of March 3, 1871, is this declaration:
So also on page 46, L. ed. p. 376, Sup. Ct. Rep. p. 26:
And on page 61, L. ed. p. 381, Sup. Ct. Rep. p. 32, the conclusion was summed up in these words:
Obviously the fact settled by the decisions in those cases was the filing by the Atlantic & Pacific of an approved map of definite location. Upon that the controversy hinged. Such a map having been filed, the title of the Atlantic & Pacific vested as of the date of the act of July 27, 1866; and inasmuch as the Southern Pacific claimed only by a grant of date March 3, 1871, it took no title. This which is apparent from the foregoing quotations is emphasized by the full discussions in the opinions, as well as by the allegations in the pleadings upon which the cases were tired. That fact, having been determined, must be taken in the present suit as not open to dispute. The Atlantic & Pacific did file a sufficient map of definite location of its line from the Colorado river to the Pacific ocean, and such map was approved by the Secretary of the Interior. Its title, therefore, to the land within the limits of the grant in California, took effect as of date July 27, 1866. No claim of right [183 U.S. 519, 533] or title arising only in 1871, and created by an act of that date, could affect its title.
But 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 had 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 , 36 L. ed. 1101, 13 Sup. Ct. Rep. 160, 'that the latter company has no title of any kind to these lands,' and the similar statement in 3 of the quotation from 168 U.S. 61 , 42 L. ed. 381, 18 Sup. Ct. Rep. 32, 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. 'On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action.' Cromwell v. Sac County, 94 U.S. 351 -356, 24 L. ed. 195-199. 'The particular matter in controversy in the adverse suit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is therefore not conclusive in this as to matters which might have been decided, but only as to matters which were in fact decided.' Last Chance Min. Co. v. Tyler Min. Co. 157 U.S. 683 -687, 39 L. ed. 859-861, 15 Sup. Ct. Rep. 733-735. The question here presented was not determined in the prior cases, and is whether the Southern Pacific acquired any title to lands other than those involved in those suits by virtue of the act of 1866; and that question, as we have seen, must be answered in the affirmative. Nor is this a mere technical difference between those cases and this. Counsel for the railroad company call the line from Mojave southward via Los Angeles, to connect with the Texas & Pacific, a 'branch line,' and that castward from Mojave to Needles, to connect with the Atlantic & Pacific, a 'main [183 U.S. 519, 534] line;' but by whatever name these two lines are called, they were built under the authority of two different statutes, the line from Mojave southward via Los Angeles under the authority of the act of Congress of March 3, 1871,-an act which in terms authorized the building of a road from a point at or near Tehachapa pass, which is in the vicinity of Mojave, southward by way of Los Angeles, to connect with the Texas & Pacific, and gave no authority to build a line eastward from Mojave to connect with the Atlantic and Pacific,-the line from Mojave eastward, under the act of 1866, which authorized the Southern Pacific to connect with the Atlantic & Pacific at or near the boundary of the state. The route which was selected by the company for this line was approved by Congress as authorized by the act of 1866. Hence the one line was built under the authority of the act of 1871, and the other under the authority of the act of 1866
Our conclusions therefore are that the United States, having become by the forfeiture act of July 6, 1886, repossessed of all the rights and interests of the Atlantic & Pacific in this grant within the limits of California, hold an equal, undivided moiety in all the odd-numbered sections which lie within the conflicting place limits of the grant to the Atlantic & Pacific and of that made to the Southern Pacific by the act of July 27, 1866; and that the Southern Pacific holds the other equal, undivided moiety therein. The United States and the Southern Pacific being, therefore, tenants in common of a large body of lands, a partition is necessary. It was suggested by Secretary Lamar, in the letter heretofore referred to, that the Southern Pacific take only every other alternate odd- numbered section. We see no impropriety in such mode of partition, though, under the case as it stands, we can make no order to that effect. In whatever way partition may be made, equity requires that the lands which the Southern Pacific has assumed to sell, and which were excepted by the circuit court from the decree in favor of the United States, and in respect to which they took their cross appeal, must be among those set off to the Southern Pacific, and thus the title of the purchasers be perfected. It is needless, therefore, to consider the merits of the cross appeal of the United States. [183 U.S. 519, 535] It is also unnecessary to determine the rights of the Southern Pacific to lands outside the limits of conflict. It having been adjudged that the Southern Pacific, by the construction of its road eastward from Mojave to Needles, became entitled to the benefit of the grant made by the 18th section of the act of 1866, the adjustment of the grant is properly to be had in the Land Department, subject, of course, if necessary, to further contests in the courts.
The decree of the Circuit Court of Appeals of the Ninth Circuit, affirming the decree of the Circuit Court for the Southern District of California will be reversed, and the case remanded to the Circuit Court, with instructions to enter a decree quieting the title of the United States to an equal undivided moiety in all alternate sections within the place or granted limits of the Atlantic & Pacific in California, so far as those limits conflict with the like limits of the Southern Pacific, excepting therefrom those lands in respect to which there has been some prior adjudication, and to dismiss the bill as to all other lands without prejudice to any future suit or action.