Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 513, 10 L. ed. 271; United States v. Missouri, K. & T. R. Co. 141 U. S. 374, 35 Where the termini of a land-grant-aided L. ed. 771, 12 Sup. Ct. Rep. 13; Barden v. railroad are mentioned in an act of Con- Northern P. R. Co. 154 U. S. 288, 38 L. ed. gress, the railroad must be constructed upon 992, 14 Sup. Ct. Rep. 1030; Sioux City & the shortest practicable route; and if there St. P. R. Co. v. United States, 159 U. S. 349, is an unnecessary deviation it will be re- 40 L. ed. 177, 16 Sup. Ct. Rep. 17; Chicago, jected. M. & St. P. R. Co. v. United States, 159 U. S. 372, 40 L. ed. 185, 16 Sup. Ct. Rep. 26; Northern P. R. Co. v. Musser-Sauntry Land, Logging, & Mfg. Co. 168 U. S. 604, 42 L. ed. 596, 18 Sup. Ct. Rep. 205.

The Southern Pacific Railroad Company is entitled to a moiety of the conflicting place lands granted to it and the Atlantic & PaThe fact that the Atlantic & Pacific com-cific Railroad Company under the act of pany claimed these lands as a part of its grant by virtue of what it claimed were maps of definite location, which claim was made effective from the year 1872, when the maps were filed, down to the forfeiture of the grant in 1886, would in itself operate to exclude these lands from the grants.

same parties if the matter in controversy in | v. Moling, 11 Land Dec. 138; Hensley v. Misthe subsequent action is different from that involved in the first action.

Roberts v. Northern P. R. Co. 158 U. S. 1, 39 L. ed. 873, 15 Sup. Ct. Rep. 756; Cromwell v. Sac County, 94 U. S. 351, 24 L. ed. 195; Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683, 39 L. ed. 859, 15 Sup. Ct. Rep. 733; Davis v. Brown, 94 Ú. S. 423, 24 L. ed. 204; Nesbit v. Independent Dist. 144 U. S. 610, 36 L. ed. 562, 12 Sup. Ct. Rep. 746; Wilmington & W. R. Co. v. Alsbrook, 146 U. S. 279, 36 L. ed. 972, 13 Sup. Ct. Rep. 72; Keokuk & W. R. Co. v. Missouri, 152 U. S. 301, 38 L. ed. 450, 14 Sup. Ct. Rep.

592.

The act of the state legislature of April 4, 1870, was entirely unnecessary, and the franchise to build the road was fully conferred on the Southern Pacific by the act of Congress of July 27, 1866.

California v. Central P. R. Co. 127 U. S. 1, 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073.

The Southern Pacific Railroad Company is entitled to all lands within the place limits of its main-line grant, which also fall within the indemnity limits of the Atlantic & Pacific grant.

Sioux City & St. P. R. Co. v. Chicago, 1.

& St. P. R. Co. 117 U. S. 406, 29 L. ed. 928, 6 Sup. Ct. Rep. 790; Re Chicago, St. P. M. & O. R. Co. 11 Land Dec. 607.

souri, K. & T. R. Co. 12 Land Dec. 19; Northern P. R. Co. v. Bass, 13 Land Dec. 201; Hastings & D. R. Co. v. St. Paul, M. & M. R. Co. 13 Land Dec. 535; St. Paul, M. & M. R. Co. v. Munz, 17 Land Dec. 288; South & North Ala. R. Co. v. Hall, 22 Land Dec. 273; Southern P. R. Co. v. McKinley, 22 Land Dec. 493.

*Mr. Justice Brewer delivered the opin-[520] ion 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 Atlantic & Pacific), in aid of its projected Railroad Company (hereinafter called the

The Southern Pacific Railroad Company is entitled to select as indemnity under its main-line grant lands within the indemnity limits of that grant, notwithstanding that such lands are also within the indem-line from Springfield, Missouri, to the Panity limits of the Atlantic & Pacific grant. line between the eastern boundary of Calicific ocean, and were situated along that St. Paul & S. C. R. Co. v. Winona & St.fornia and the Pacific ocean. The Southern P. R. Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Pacific claims title to these lands by virtue Ct. Rep. 334. the United States until selection and ap-approval of Congress. The title to indemnity lands remained in of the 18th section of that act and its proceedings thereunder, had with the express proval.

New Orleans P. R. Co. v. Parker, 143 U.
S. 42, 36 L. ed. 66, 12 Sup. Ct. Rep. 364;
United States v. Missouri, K. & T. R. Co.
141 U. S. 358, 35 L. ed. 766, 12 Sup. Ct. Rep.
13; Wisconsin C. R. Co. v. Price County,
133 U. S. 496, 33 L. ed. 687, 10 Sup. Ct. Rep.
341; Barney v. Winona & St. P. R. Co. 117
U. S. 228, 29 L. ed. 858, 6 Sup. Ct. Rep. 654.36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United
The Southern Pacific Railroad Company is States v. Colton Marble & Lime Co. and
entitled to select from the place and indem- United States v. Southern P. R. Co. 146 U.
nity lands of the Atlantic & Pacific grant S. 615, 36 L. ed. 1104, 13 Sup. Ct. Rep. 163,
which have been actually restored to the and Southern P. R. Co. v. United States,
public domain by the act of 1886, any lands 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep.
which are within its own indemnity limits, 18. Those decisions are claimed by the gov
whether under its main or branch line grant, ernment to be controlling of this case on the
to supply losses within its main and branch principle of res judicata.
line place limits.

tween the United States and the Southern
Litigation has heretofore been had be-
Pacific in reference to lands along the line
of the Atlantic & Pacific, the result of[521]
which litigation will be found in the fol-
lowing decisions of this court: United
States v. Southern P. R. Co. 146 U. S. 570,

Ryan v. Central P. R. Co. 99 U. S. 382, 25 L. ed. 305: Re Alabama & C. R. Co. 20 Land Dec. 408; Re Southern P. R. Co. 26 Land Dec. 452.

The status of lands within indemnity limits at the time of selection determines entirely the right of the railroad thereto. Allers v. Northern P. R. Co. 9 Land Dec. 452; Northern P. R. Co. v. Halvorson, 10 Land Dec. 15; Missouri, K. & T. R. Co. v. Beal, 10 Land Dec. 504; Northern P. R. Co.

our

There are therefore two distinct questions consideration: First, presented for 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 letermination of this case?

With reference to the first question a fur'her 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 state of California to the Mississippi
the route being in these words:
river."

"Thence along the 35th parallel of lati- Section 18 of the act of 1866 reads as fol-
tude, as near as may be found most suita-lows:
ble for a railway route, to the Colorado riv-
er, at such point as may be selected by said
company for crossing; thence by the most
practicable and eligible route to the Pacif-
ic."

By the 3d section a grant of lands was made to said company in these words:

"And be it further enacted, That the Southern Pacific Railroad, a company incorporated under the laws of the state of California, is hereby authorized to connect with the said Atlantic & Pacific Railroad, formed under this act, at such point, near the boundary line of the state of California, as they shall deem most suitable for a railroad form gauge and rate of freight or fare with said road; *and in consideration thereof, to [523] aid in its construction, shall have similar grants of land, subject to all the conditions and limitations herein provided, and shall be required to construct its road on the like regulations, as to time and manner, with the Atlantic & Pacific Railroad herein provided for."

"Sec. 3. And be it further enacted, That there be, and hereby is, granted to the At-line to San Francisco, and shall have a unilantic & Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile, on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad, whenever it passes through any state, and whenever, on the line thereof, the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other [522] claims or rights, at the time the line of said road is designated by a plat thereof filed in the office of the Commissioner of the General Land Office; and whenever, prior to said time, any of saiu sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers."

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:

"Whereas, by the provisions of a certain act of Congress of the United States of America, entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from San Francisco to the Eastern Line of the State of California,' approved July 27, 1866, certain grants were made to, and certain rights, privileges, powers, and authority were vested in and conferred upon, the Southern Pacific Railroad Company, a corporation duly organized and existing under the laws of the state of Cali

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 east-fornia; therefore, to enable the said comern 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.

pany to more fully and completely comply with and perform the requirements, provisions, and conditions of the said act of Congress, and all other acts of Congress now in force, or which may hereafter be enacted, the state of California hereby consents to said act; and the said company, its successempowered to change the line of its railroad ors and assigns, are hereby authorized and so as to reach the castern boundary line of the state of California by such route as the On December 2, 1865, the Southern Pacific company shall determine to be the most was incorporated under the laws of Califor- practicable, and to file new and amendatory nia, "for the purpose of constructing, own-articles of association, and the right, powing, and maintaining a railroad front some er, and privileges hereby granted to, conpoint on the bay of San Francisco, in the ferred upon, and vested in them, to constate of California, and to pass through the struct, maintain, and operate, by steam or counties of Santa Clara, Monterey, San Luis other power, the said railroad and telegraph Obispo, Tulare, Los Angeles, and San Diego line mentioned in said act of Congress, to the town of San Diego, in said state, hereby confirming to and vesting in the said thence eastward through the said county of company, its successors and assigns, all the San Diego to the eastern line of the state rights, privileges, franchises, power, and of California, there to connect with a con-authority *conferred upon, granted to, or[524] templated railroad from said eastern line of vested in said company by the said acts of

Congress and any act of Congress which may
be hereafter enacted." Cal. Stat. 1869,
1870, p. 883.

And on June 28, 1870, Congress passed
the following joint resolution (16 Stat. at
L. 382):

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:

"The Southern Pacific Company located its main line January 3, 1867, and by the terms of the grant its right immediately attached to every odd section of land not of the character excepted by the grant, and within the 10-mile limit, subject, however, to be devested to the extent of a half interest in every such odd section that might fall within the common limits of both roads, after the filing of the map of definite location by the Atlantic & Pacific Company.

"Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Southern Pacific Railroad Company of California may construct its road and telegraph line, as near as may be, on the route indicated by the map filed by said company in the Department of the Interior on the 3d day of January, eighteen hundred and sixty-seven; and upon the construction of each section of said road, in the manner and within the time provided by law, and notice thereof being given by the company to the Secretary of the Interior, he shall direct an examination of each such section by commissioners to be appointed by the President, as provided in the act making a grant of land to said company, approved July twenty-seventh, eighteen hundred and sixty-six, "The Atlantic & Pacific Company filed its and upon the report of the commissioners to map of definite location April 11, 1872, and the Secretary of the Interior that such sec- April 16, 1874, showing that the primary tion of said railroad and telegraph line has or granted limits of said road overlapped been constructed as required by law, it and conflicted with the primary or granted shall be the duty of the said Secretary of the limits of a portion of the Southern Pacific Interior to cause patents to be issued to road. As to the lands falling within the said company for the sections of land con- granted limits of both roads, the filing of terminous to each constructed section re- the map of definite location by the Atlantic ported on as aforesaid, to the extent and & Pacific Company, showing such conflict, amount granted to said company by the said immediately devested the Southern Pacific act of July twenty-seventh, eighteen hun- Company of the right and title to a half indred and sixty-six, expressly saving and re- terest in all such odd sections; and from serving all the rights of actual settlers, to- that moment and by that act the two comgether with the other conditions and restric-panies became entitled to equal, undivided tions provided for in the 3d section of said act."

Along this general line the Southern Pa-
cific constructed its road, as California said,
in reference to the grant made to the South
ern Pacific by § 18 of the act of Congress
of July 27, 1866, that it "hereby consents to
said act;" and as Congress, by its resolu-
tion, approved the route selected by the
Southern Pacific as a route authorized by
that act, no one can question that the con- As against this, it is contended that
struction of the road was under such circum- Congress could not have intended a road
stances as entitle the company to the bene-running from the western to the eastern
fit of the grant made by said 18th section of

moieties in such sections, without regard
to the priority of location of the line of the [526]
road or priority of construction; the right
of each company relating back to the date
of the grant. 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."

border of California, parallel and contigu. the act of 1866. ous to the Atlantic & Pacific road; that it [525] *By the act of 1866 Congress made grants must have intended a connection between of land to two different companies, by the the two roads on the western boundary or 3d section, to the Atlantic & Pacific, and by border of the state,-especially in view of the 18th section, to the Southern Pacific. the fact that the charter of the Southern The settled rule of construction is that Pacific contemplated only a line along the where by the same act, or by acts of the western part of the state from San Francissame date, grants of land are made to two co to San Diego. Whatever doubts there separate companies, in so far as the limits might be in respect to this matter are reof their grants conflict by crossing or lap-moved by the action taken by the Southern ping, 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, Sup. Ct. Rep. 790; Donahue

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 | before us, and as appears by the act of the route indicated on that map.