Opinion of the Court.

granted to do the work mentioned in said contracts were valid and binding under the decisions of the Supreme Court when said judgments were rendered, and that said judgments and assessments could not be impaired by a subsequent judicial construction of the law holding such extensions to have been invalid.

The gist of the error charged by the plaintiff lies in the alleged overruling of a prior decision of the Supreme Court of California in Taylor v. Palmer, 31 California, 240, which was also an action to recover a street assessment and to enforce a lien for the same against certain real estate in San Francisco. The contract in this case was let and the work done under an act passed in 1862, Act of April 26, 1862, Laws of 1862, c. 297, p. 384, as amended in 1863. The contract required the work to be performed within thirty days. The work was not completed at the expiration of that time, and two days thereafter the time was extended by resolution of the Board of Supervisors. It was claimed that this extension was illegal, but the court held that the power to extend the time was expressly conferred by the act of 1863, which provided that the street "Superintendent shall fix the time for the commencement and completion of the work, under all contracts entered into by him, and may extend the time so fixed from time to time under the direction of the Board of Supervisors." It was held that this power of extension might be exercised after the expiration of the time previously fixed, the act providing that "in all cases where the Superintendent, under the direction of said Board, has extended the time for the performance of contracts, the same shall be held to have been legally extended."

The law remained in this condition until the session of 187172, when another act was passed, Act of April 1, 1872, c. 562, Laws 1871-72, p. 804, which applied to the city and county of San Francisco only, but it contained in section 6 the following provision: "Should said contractor, or the property owners, fail to prosecute the same" (the work) "diligently or continuously in the judgment of said Superintendent of Public Streets, Highways and Squares, or complete it within the time prescribed in the contract, or within such extended time, then it

Opinion of the Court.

shall be the duty of the said Superintendent of Public Streets, Highways and Squares, to report the same to the Board of Supervisors, who shall without further petition on behalf of the property owners, order the Clerk of the Board of Supervisors to advertise for bids, as in the first instance, and relet the contract, in the manner herein before provided." It was under this statute that the contracts were let to Wood and Diggins.

The construction of this statute was discussed in 1879 in Beveridge v. Livingstone, 54 California, 54, and the court held that the requirements of the sixth section were mandatory, and excluded the exercise by the Board or Superintendent of any power to extend the time for completing the work after the expiration of the contract time, or of an extension ordered during the running of the contract time; and that such extension was, therefore, void. The case was distinguished from that of Taylor v. Palmer, and the court remarked that it was not inclined to be controlled by the authority of that case further than as it construed the exact language of the act of 1863, under which it was decided.

Both contracts between Diggins and the Superintendent had been extended after the time originally limited for the performance of the work, and plaintiff Brady was permitted to show this to impeach defendants' judgments and invalidate their liens. Plaintiffs in error now contend that the construction given by the Supreme Court in Taylor v. Palmer, in favor of the validity of such extensions, was one upon which Diggins was entitled to rely, and constituted a part of his contract, the obligation of which could not be impaired by a different construction subsequently given. But assuming for the purposes of this case that there may be a vested right under an erroneous decision, it is carrying the doctrine to an unwarrantable extent to say that the construction placed by the court upon one statute implies an obligation on its part to put the same construction upon a different statute, though the language of the two may be similar.

The argument that the language being similar, a like construction should be put upon both acts, is one properly ad

Opinion of the Court.

dressed to the state court; but when that court has assumed to distinguish between the two acts, it is not within our province to say that the distinction is not well taken. The acts in this case, though similar, are not identical, and there is certainly some ground for saying that the construction of the two should not be the same. The point made by the plaintiffs in error that the decision in Beveridge v. Livingstone was made retroactive is answered by the fact that courts are bound in their very nature to declare what the law is and has been, and not what it shall be in the future, and that if they were absolutely bound by their prior decisions, they would be without the power to correct their own errors.

But even if it were conceded that defendants had a right to rely upon the Supreme Court giving to the act of 1872 the same construction it had placed upon the act of 1863, that construction was nothing more than that the Board of Supervisors had a discretion to extend the time for the performance of the contract after the time originally limited had expired. It is evident that this was no part of defendants' contracts. Their contracts were to do certain work within a certain time, and the fact that there was a discretion on the part of the Board of Supervisors to extend such time did not enter into or form a part of the contract. It was a discretion which the Board of Supervisors might or might not exercise. If the contractor had violated his contract, he had no legal right to such extension, and took his chances of obtaining it. In other words, there was no possible contract the obligation of which could be impaired by a ruling that the Board of Supervisors had no power to grant such extension.

The question whether an action to foreclose a lien of this kind is in rem, or in personam, under the practice in California, is one upon which the decision of the Supreme Court is binding, and its ruling that plaintiff, being no party to defendants' suits to foreclose, had a right to show by evidence aliunde the invalidity of the judgments obtained by them, is not a proper subject for review by this court.

In no aspect does the case present a Federal question, and the writ is, therefore, Dismissed.

Opinion of the Court.

NEW YORK AND TEXAS LAND COMPANY v. VOTAW.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF TEXAS.

No. 7. Submitted October 10, 1893. Decided October 23, 1893.

In an action to try the title to land, where there is conflicting evidence as to certain natural objects named in running the lines, an instruction to the jury that if, after fully considering the conflicting evidence they are left doubtful and uncertain, they will be justified in locating the grant by referring to such of the natural objects as are certain, is not error. Such is the effect of the instruction to the jury in this case.

THE case is stated in the opinion.

Mr. Charles W. Ogden for plaintiff in error.

No appearance for defendant in error.

MR. JUSTICE SHIRAS delivered the opinion of the court.

This was an action brought in the Circuit Court of the United States for the Western District of Texas to try the title to a large tract of land in the county of Dimmitt and State of Texas.

The New York and Texas Land Company, the plaintiff, based its claim upon patents issued by the State of Texas to the International and Great Northern Railroad Company, and upon certain deeds of conveyance from said company through several parties down to the plaintiff. The defendant's title originated in a grant of land by the State of Texas to the heirs of one Juan Francisco Lombrano. This grant appears to have been made by the State in recognition of a previous Spanish grant made in 1812 to Lombrano, but the defendant, though reading this Spanish grant as evidence on the question of the boundaries of the tract in question, relied wholly on the patent from the State of Texas.

The record presents no question as to the validity of the title

Opinion of the Court.

of either party, nor any bill of exception touching the admission or rejection of evidence. It was admitted by the plaintiff that the defendant had a valid title to all of the land included in the Lombrano grant, and that such title was prior in time to that asserted by the plaintiffs. The sole controversy was whether the elder Lombrano grant included the lands subsequently granted to the International and Great Northern Railroad Company. This was the issue that was before the court and jury for determination, and to which the evidence of both parties was directed.

We are not asked by the plaintiff in error to consider the evidence in the cause with a view of determining whether it warranted the jury in their verdict in favor of the defendant. The errors complained of are found in certain portions of the charge of the court to the jury, and our only concern with the evidence is to enable us to perceive whether the court committed error in its instructions to the jury.

The description contained in the Spanish grant, and which is followed in the patent made by Texas to the Lombrano heirs, does not give courses, but the lines are run from one natural object to another. The controverted lines are the southern and eastern boundary lines of the Lombrano grant; that is, the lines called for in the Spanish grant as running from Tasa Creek on the Rio Grande, to the junction of the San Ambrosia and San Pedro Creeks, and following up the San Pedro Creek and terminating near its head, and the line running from the head of the San Pedro Creek to the Carrizo Springs.

Several surveys were made, as well under the grant to the Lombrano heirs, as that patented by Texas in 1883, to the International and Great Northern Railroad Company. It appears by these surveys and by the testimony of the engineers who made them, that there were either two creeks used as natural objects in running the lines, viz., San Pedro Creek and San Pablo Creek, or that one creek was known by different persons and at different times, by the two names.

In this condition of the evidence the court instructed the jury as follows:

"1. You are to determine from the evidence whether the