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tion, as distinguished from maps of preliminary location or designation of route.

We submit that, from the opinion of the court in the former actions, it is beyond dispute that the point now raised by the defendants appears distinctly not to have been litigated or determined, and, the cause of action being different in the present action, the defendants are not by the former judg ment precluded from maintaining the ground on which they now stand, namely, that the Atlantic and Pacific Company never did locate, that is, definitely locate its line west of the Colorado River, and that the grant to that company never did take effect upon the lands in suit, or any other specific lands in the State of California, and that there is therefore nothing to interfere with the passage of the title to the Southern Pacific Company.

(b) But if we look behind the final decision in the court of last resort to the pleadings as set forth in the former cases, we shall find that the point now relied on was not then put in issue or raised, which is fatal to any claim of res judicata or estoppel. Cromwell v. Sac, 94 U. S. 353; Davis v. Brown, 94 U. S. 428; Johnson Co. v. Wharton, 152 U. S. 261. A judgment against a plaintiff who would have had to establish several facts to maintain his case, is not an estoppel as to any specific fact, unless that specific fact was actually litigated. Long v. Baugas, 2 Ired. (Law), 290; Angel v. Hollister, 38 N. Y. 378.

It appears from the pleadings in that suit that there was no claim on the part of the complainant that the maps referred to were maps of definite location, but that they were merely maps designating a general route; that the defendant claimed that these maps did not have the effect of properly locating the road under the act and giving title to the Atlantic and Pacific, not because they were not in fact maps of definite location, were not filed or approved as such, were not bona fide maps at all, or because the contents of the certificates appended to the maps were false, but for the reasons that they were filed in sections, and when all the sections were filed showed a proposed route to San Francisco (which

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was claimed to be a wholly unauthorized line) instead of a line from the Needles, by the most practicable and eligible route to the Pacific, which the act contemplated and expressly prescribed. These were the points in respect to the maps, and the only points which were litigated and judicially determined in the case.

It distinctly appears that, under the issues framed in the former actions, only questions of law were litigated and determined, and no issue of fact as to whether the Atlantic and Pacific Company ever filed maps of definite location was tried or actually litigated at all. Yet the real question of fact now presented was not in any way before the court; and, although all the questions of law involved in the former cases are here involved, there is also here in this action a new issue of fact as to the character and bona fides of the maps filed, and a new question of law as to the effect of their character or of their falsity.

It is quite true, as pointed out by this court in its opinion in the prior cases, that the purpose of the litigation by the Government was to procure an adjustment and determination of the extent of its grant to the Southern Pacific Railroad Company, and, if it had included all the land covered by the grant in the same suit, the adjudication would necessarily have been final. If all the eggs had been put into one basket, the company through undue confidence in the safety of its position, or its slip in respect to ascertaining where the real strain existed, might have lost all; but, as only a portion were put at risk in the former cases, it is entitled to save the rest. While, of course, the court did decide, upon the pleadings and evidence before it in those cases, that the lands were lost to the Southern Pacific on account of the vesting of title in the Atlantic and Pacific, it made such decision only as to the lands which were involved in that controversy. While assuming (as it was entitled to do in that case) that a good and sufficient map of definite location was filed by the Atlantic and Pacific Company, it is certainly demonstrable from the record and the opinion that it did not hold it to be good and sufficient against objections not then presented, and

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which are now raised for the first time upon wholly new evidence.

The proposition that this court in the former actions in deciding that the title vested in the Atlantic and Pacific, and under them in the complainant, necessarily decided every fact and every question of law involved in the title, is true only in respect to the title of the lands there in controversy; and, if we are right in claiming that a suit for these lands is another cause of action, the proposition has no relevancy here. Eastman v. Cooper, 15 Pick. 276; Sawyer v. Woodbury, 7 Gray, 499, 502; King v. Chase, 15 New Hampshire, 9.

(c) No estoppel by former judgment can arise until the former judgment is pleaded, provided there is an opportunity to plead it. The Government has not seen fit to plead any former adjudication as an estoppel, although it had ample opportunity so to do in this cause. An estoppel by a former judgment must be pleaded, if there is an opportunity to plead it, and the failure to plead it, if there is an opportunity to plead it, waives the estoppel. Fanning v. Hibernia Ins. Co., 37 Ohio St. 344; Grey v. Pingry, 17 Vermont, 419, 44 Am. Dec. 345; Blood v. Marcuse, 38 California, 590; Isaacs v. Clark, 12 Vermont, 692, 36 Am. Dec. 372; Hanson v. Buckner, 4 Dana, 251; Glenn v. Priest, 48 Fed. Rep. 19.

The same rule applies to estoppel by written contract. Mabury v. Louisville & Jeffersonville Ferry Co., 60 Fed. Rep. 645; Wood v. Austram, 29 Indiana, 177; Robbins v. Magee, 76 Indiana, 381; Cole v. Lafontaine, 84 Indiana, 446; Stewart v. Beck, 90 Indiana, 458.

It having been shown that a former judgment is not an estoppel unless pleaded, provided there is an opportunity to plead it, the question arises: Was there an opportunity, in this case, to plead the former judgment?

Rule 45 of the Rules of Equity provides: "No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct."

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The appellees here, plaintiffs below, availed themselves of the provisions of Rule 45; obtained leave of the court to, and did, amend their bill September 25, 1891. The defendant's answer to this amended bill, filed June 12, 1893, set up title in them for these lands in virtue of its land grants from Congress; specially pleaded that the Atlantic and Pacific Company did not definitely locate its railroad in California, and that the maps filed by it were fraudulent pretences; but the plaintiffs did not, by amended bill, plead the former judgment, as they might have done. There can be no doubt, therefore, that, although the plaintiffs did not plead the former judgment, they had full opportunity to plead it.

The provisions of Section 101 of the Ohio code closely resemble Rule 45 of the Rules of Equity. It provides, however, that the plaintiff may reply by answer to the new matter set up by the defendant, while Rule 45 provides that the plaintiff may reply to such new matter by amendment of the bill. In the case of Fanning v. Ins. Co., 27 Ohio, 344, the single question was submitted and determined whether the plaintiff might introduce in evidence a former judgment between the same parties, upon the same demand and cause of demand, the plaintiff having answered without pleading the former judgment. The court, in deciding the case, said: "The former adjudication is new matter, which the Code Practice requires should be pleaded. It is matter ex post facto, and should be specially pleaded, so that the court may, as matter of law, determine as to its effect. This was the settled. rule at common law whenever there was an opportunity to plead such former adjudication. The code having furnished that opportunity to plead it, we think the record was inadmissible as evidence.”

In the case of Wilson v. Stolley, 4 McLean, 275, the court. distinctly held that under Rule 45 the matter which at common law should be set up by replication must be set up by amendment to the bill; and at page 277 said: "The 45th rule of chancery practice declares that 'no special replication to any answer shall be filed. But, if any matter alleged in the answer shall make it necessary for the plaintiff to amend

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his bill, he may have leave to amend the same.' As a special replication is not allowed, the question of abandonment can only be brought before the court by an amendment of the bill."

The sense of all which is that, wheresoever the plaintiff was formerly required to present matters by replication, he is now required by Rule 45 to present such matters by amendment to the bill; and, failing so to present such matters, he cannot be heard in evidence as to them.

(d) Another rule well settled in respect to estoppel by former judgment is that, if such estoppel exists, it may be waived by the plaintiff's introduction of evidence as to the truth of the matters claimed to have been decided in the former case.

The plaintiff in this case has introduced proof of facts upon which the former adjudication was determined. It therefore cannot rely upon the judicial adjudication of the issue by way of estoppel in the former cases.

The necessary legal effect of the estoppel is to preclude all inquiry as to the truth of the matter determined, and when a party who is entitled to set up an estoppel does open inquiry into the truth of the matter, he cannot complain that the other party pursues it without regard to the estoppel.

If the plaintiff lets down the bar of the estoppel, he must permit the defendant to follow his lead into the field of evidence. Megerle v. Ashe, 33 California, 74; Philadelphia, Wilmington &c. Railroad v. Howard, 13 How. 307; Mack v. Levy, 60 Fed. Rep. 751.

And to the same effect will be found the decision in the case of Kilheffer v. Herr, 17 Serg. & Rawle, 319, 17 Am. Dec. 661.

The Circuit Court, in determining this case, ignored the former decision, and upon the main issue found substantially that the Atlantic and Pacific Company never did definitely locate its railroad in California, and found the same maps which were before the Supreme Court in the former case to be fraudulent pretences, which amounted at most to but a general designation of its contemplated route. Upon these