Mr. Maxwell Evarts for appellants.
[223 U.S. 560, 562] Solicitor General Lehmann for appellee.
Mr. Justice Holmes delivered the opinion of the court:
This is a bill brought by the United States to annul [223 U.S. 560, 564] patents for lands lying within the indemnity limits of the grant made to the Southern Pacific Railroad Company by the act of March 3, 1871, chap. 122, 23, 16 Stat. at L. 573, 579, known as the branch-line grant, and within the grant made to the Atlantic & Pacific Railroad Company by the act of July 27, 1866, chap. 278, 14 Stat. at L. 292. The Atlantic & Racific road forfeited its grant (act of July 6, 1886, chap. 637, 24 Stat. at L. 123), and thereafter the Southern Pacific selected the two parcels in question, as indemnity under its branch-line grant, one of them lying within the granted, and the other within the indemnity, limits of the Atlantic & Pacific. It relies on the general principle that whether lands are subject to selection as indemnity depends upon the state of the lands at the time the selection is made. Ryan v. Central P. R. Co. 99 U.S. 382 , 25 L. ed. 305. The circuit court, however, held that the right in this particular case had been decided not to exist (152 Fed. 314), and the circuit court of appeals affirmed the decree (93 C. C. A. 150, 167 Fed. 514).
We are of opinion that the decision was right. In Southern P. R. Co. v. United States, 168 U.S. 1 , 42 L. ed. 355, 18 Sup. Ct. Rep. 18, the lands in controversy embraced among others, as stated by Mr. Justice Harlan, 'lands within the Southern Pacific indemnity limits and the Atlantic & Pacific granted limits; [and] lands within the common indemnity limits of both grants.' Id. 47. It was held that the forfeiture to the United States did not enlarge the right of the southern Pacific to select the lands in question, and the decree was for the United States. The proposition laid down in United States v. Southern P. R. Co. 146 U.S. 570 , 36 L. ed. 1091, 13 Sup. Ct. Rep. 152, and United States v. Coltol Marble & Lime Co. 146 U.S. 615 , 36 L. ed. 1104, 13 Sup. Ct. Rep. 163, was applied to Southern Pacific branch-line indemnity lands. Whatever may be thought of the grounds for making an exception to the principle of Ryan v. Central P. R. Co. supra, the exception was established for this case. An elaborate argument was [223 U.S. 560, 565] made on petition for rehearing that the decision could not be extended to indemnity lands, but the petition was denied. In Southern P. R. Co. v. United States, 183 U.S. 519 , 46 L. ed. 307, 22 Sup. Ct. Rep. 154, the dismissal of the bill without prejudice to claims that by interpretation are said to include indemnity claims imports no limitation of the previously established law, and, on the other hand, in Southern Pacific R. Co. v. United States, 189 U.S. 447, 451 , 452 S., 47 L. ed. 896, 899, 900, 23 Sup. Ct. Rep. 567, the case in 168 U.S. 1 , 42 L. ed. 355, 18 Sup. Ct. Rep. 18, was followed and the practice of the Land Department in accordance with that decision was mentioned as a further ground. There may be distinctions between the latest decision and this, but, in view of the rightly established understanding, it is too late to set them up now.