under identical circumstances and condi- | rather than to the Southern Pacific. To tions been previously concluded by a judg. avoid the effect of this conclusion,-a conment between the parties or their privies." clusion resting upon well-settled principles [529] *It becomes, therefore, important to deter- of public-land law,-the Southern Pacific mine what was decided in the prior cases; contended that no map of definite location and in order to a clear understanding these was ever filed by the Atlantic & Pacific, or additional facts must be borne in mind: approved by the Secretary of the Interior; On March 3, 1871, Congress passed an act but after a full examination of the facts (16 Stat. at L. 573, chap. 122) to incorpor- this court held otherwise, summing up its ate the Texas & Pacific Railroad Company, conclusions in these words: the 23d section of which reads:

"Our conclusions therefore are that a "That for the purpose of connecting the valid and sufficient map of definite location Texas Pacific Railroad with the city of San of its route from the Colorado river to the Francisco, the Southern Pacific Railroad Pacific ocean was filed by the Atlantic & Company of California is hereby authorized Pacific Company, and approved by the Sec(subject to the laws of California) to con- retary of the Interior; that by such act the struct a line of railroad from a point at or title to these lands passed, under the grant near Tehachapa pass, by way of Los An- of 1866, to the Atlantic & Pacific Company, geles, to the Texas Pacific Railroad, at or and remained held by it subject to a condinear the Colorado river, with the same tion subsequent until the act of forfeiture rights, grants, and privileges, and subject of 1886: that by that act of forfeiture the to the same limitations, restrictions, and title of the Atlantic & Pacific was retaken conditions as were granted to said South-by the general government, and retaken for ern Pacific Railroad Company of California its own benefit, and not that of the Southby the act of July twenty-seven, eighteen hundred and sixty-six: Provided, however, That this section shall in no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company or any other railroad company."

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:

"The question to be considered is not as to the validity of the grant to the Southern Pacific Company, but only as to its extent. It may be conceded that the company took title to lands generally along its line, from Tehachapa pass to its junction with the Texas Pacific; and the contention of the government is here limited to those lands [530]only which lie within the granted limits of both the Atlantic & Pacific and the Southern Pacific Companies, at the crossing of their lines, as definitely located." p. 592, L. ed. 1096, Sup. Ct. Rep. p. 155.

Both grants were grants in præsenti, 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,

ern Pacific Company; and that the latter
company has no title of any kind to these
lands." p. 607, L. ed. p. 1101, Sup. Ct. Rep.
p.. 160.

So, in the opinion in the last of the three
cases, is this statement of the facts and ques-
tion:

"The principal contention of the United States is that the lands in dispute are in the same category in every respect with those in controversy 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. 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 that, so far as the question of title is concerned, the judgments in those cases have conclusively determined, as *between the United States and [531] Southern Pacific Railroad Company and its privies, the essential facts upon which the government rests its present claim.

"Stated in another form, the United States insists that in the former cases the controlling matter in issue was, whether certain maps filed by the Atlantic & Pacific Railroad Company in 1872, and which were accepted by the Land Department as sufficiently designating that company's line of road under the act of Congress of July 27, 1866, chap. 278 (14 Stat. at L. 292), were valid maps of definite location; the United States contending in those cases that they were, and the Southern Pacific Railroad Company contending that they were not, maps of that character; that that issue was determined in favor of the United States; and that, as the lands now in dispute are within the limits of the line of road so designated, it is not open to the Southern Pacific Railroad Company, in this proceeding, to question the former determination that such maps sufficiently identified the lands granted to the Atlantic & Pacific Railroad Company by the act of 1866, and were therefore valid maps of definite location." p. 25, L. ed. p. 368, Sup. Ct. Rep. p. 18.

And again on page 29, L. ed. p. 370, Sup.

Ct. Rep. p. 20, after a quotation of the 23d | cases were tried. That fact, having been de-
section of the act of March 3, 1871, is this
declaration:

"The Southern Pacific Railroad Company constructed the road thus contemplated, and claims that the lands here in dispute passed to it under the above act of 1871."

So also on page 46, L. ed. p. 376, Sup. Ct. Rep. p. 26:

"The lands now in controversy are situated opposite to and are conterminous with the first, second, and fourth sections of the Southern Pacific Railroad, as constructed between 1873 and 1877, inclusive, and within the primary and indemnity limits of the grant to the Southern Pacific Railroad Company made by the 23d section of the Texas & Pacific act of March 3, 1871."

And on page 61, L. ed. p. 381, Sup. Ct. Rep. p. 32, the conclusion was summed up in these words:

"For the reasons stated, we are of opinion that it must be taken in this case to have been conclusively adjudicated in the former cases, as between the United States and the Southern Pacific Railroad Company[532] *1. That the maps filed by the Atlantic & Pacific Railroad Company in 1872 were sufficient, as maps of definite location, to identify the lands granted to that company by the act of 1866;

termined, 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 ap-
proved by the Secretary of the Interior. Its
title, therefore, to the land within the lim-
its of the grant in California, took effect as
of date July 27, 1866. No claim of right *or[533]
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 quota-
tion 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 par-
ty may have had and failed to produce; but
as to property which was not involved in
those suits they are conclusive only as to
"3. That in view of the conditions at- the matters which were actually litigated
tached to the grant, and of the reservations and determined. "On principle, a point not
of power in Congress contained in the act in litigation in one action cannot be re-
of 1866, such lands became, upon the pass-ceived as conclusively settled in any subse-
age of the forfeiture act of 1886, the prop-quent action upon a different cause, because
erty of the United States, and by force of it might have been determined in the first
that act were restored to the public domain action." Cromwell v. Sac County, 94 U. S.
without the Southern Pacific Railroad Com-351-356, 24 I. ed. 195-199. "The particu-
pany's having acquired any interest there-
in that affected the power of the United
States to forfeit and restore them to the
public domain.

"2. That upon the acceptance of those maps by the Land Department the rights of that company in the lands so granted attached, by relation as of the date of the act of 1866; and

lar matter in controversy in the adverse uit was the triangular piece of ground, which is not the matter of dispute in this action. The judgment in that case is there"These grounds being accepted as the basis fore not conclusive in this as to matters of our decision, the law in the present case which might have been decided, but only as is clearly for the United States; for, as all to matters which were in fact decided." the lands here in controversy are embraced Last Chance Min. Co. v. Tyler Min. Co. 157 by the maps of 1872, and therefore apper-U. S. 683-687, 39 L. ed. 859-861, 15 Sup. tain to the line located by such maps, it must be, for the reasons stated in the former decision, that the United States is entitled, as between it and the Southern Pacific Railroad Company, to the relief given by the decree below."

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 & l'acific 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

Ct. Rep. 733-735. The question here pre-
sented 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 south-
ward via Los Angeles, to connect with the
Texas & Pacific, a "branch line," and that
eastward from Mojave to Needles, to con-
nect with the Atlantic & Pacific, a "main
line;" *but by whatever name these two lines [534]
are called, they were built under the author-
ity 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 au- | limits conflict with the like limits of the thorized the building of a road from a point Southern Pacific, excepting therefrom those at or near Tehachapa pass, which is in the lands in respect to which there has been vicinity of Mojave, southward by way of some prior adjudication, and to dismiss the Los Angeles, to connect with the Texas & bill as to all other lands without prejudice Pacific, and gave no authority to build a to any future suit or action. 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.

[535] It is also unnecessary to determine the

UNITED STATES TRUST COMPANY OF
NEW YORK et al., Appts.,

บ.

TERRITORY OF NEW MEXICO.

TERRITORY OF NEW MEXICO, Appt.,
UNITED

v.

STATES TRUST COMPANY OF NEW YORK et al.

(See S. C. Reporter's ed. 535-545.)

Appeal—effect of reversal of decree of dismissal-agreed statement of facts-sale under foreclosure-liability for delinquent taxes when claim filed in time— finding of fact-penalty not enforced when not claimed in pleading-interest.

1.

The reversal by the Supreme Court of the

United States of an order which dismissed a petition claiming a lien for taxes, on the ground that it presented no claim against the property or the parties, is an adjudication that upon the face of the petition a valid claim was presented, and is conclusive of such prima facie validity, not only as against objections which were in fact made, but also as against those which might have been made. 2. An agreed statement of facts certified by a territorial supreme court as a statement of facts under the act of April 7, 1874, brings nothing before the Supreme Court of the United States for consideration, where, instead of stating the ultimate facts, it contains a narrative of facts, transcripts of records, and the testimony which certain witnesses would have given if they had been produced and sworn.

3. A claim of a lien for, and payment by the receiver of railroad property of, delinquent taxes on such property sold under decree of foreclosure, is in time, where the intervening petition making such claim was filed and the final adjudication establishing such lien made rights of the Southern Pacific to lands outwithin the time expressly named in the decree of foreclosure for the presentment of any side the limits of conflict. It having been claims for allowance, although such petition adjudged that the Southern Pacific, by the was filed after the confirmation of the sale, construction of its road eastward from Mo- but while the property was still in the posjave to Needles, became entitled to the bene- session of the receiver, and the latter had fit of the grant made by the 18th section of NOTE.-On conclusiveness of judgments genthe act of 1866, the adjustment of the grant erally-see notes to Sharon v. Terry (C. C. N. is properly to be had in the Land Depart- D. Cal.) 1 L. R. A. 572; Bollong v. Schuyler ment, subject, of course, if necessary, to fur-Nat. Bank (Neb.) 3 L. R. A. 142; Wiese v. San ther contests in the courts.

Francisco Musical Fund Soc. (Cal.) 7 L. R. A. Bank of United States v. Beverly, 11 L. ed. U. 577; Morrill v. Morrill (Or.) 11 L. R. A. 155: S. 76; Johnson Steel Street Rail Co. v. Wharton, 38 L. ed. U. S. 429, and Southern P. R. Co. v. United States, 42 L. ed. U. S. 355.

As to review by United States Supreme Court

The decree of the Circuit Court of Appeals of the Ninth Circuit, affirming the deeree 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 of judgment on agreed statement-see note to the title of the United States to an equal Stimpson v. Baltimore & S. R. Co. 13 L. ed. 442. As to review by the United States Supreme undivided moiety in all alternate sections Court of territorial decisions-see note to Minwithin the place or granted limits of the At-ers' Bank v. State ex rel. District Prosecuting lantic & Pacific in California, so far as those Attorney, 13 L. ed. U. S. 867.

4.

tion.

been discharged before such final adjudica- | "any indebtedness and obligations or liabilities which shall have been legally contracted The grantees of the purchasers of property or incurred by the receiver before delivery at a sale under foreclosure cannot claim that they were misled in any way as to their lia- the receiver's notes or certificates hereinbeor possession of the property sold, including bility for unpaid taxes where, by the terms of the decree, the sale was to be made sub-fore mentioned, and also any indebtedness ject to any indebtedness that might subse- and liabilities contracted or incurred by said quently be charged against the property defendant railroad company in the operation prior in llen to that of the mortgages fore- of its railroad prior to the appointment of closed, and on the confirmation of the sale, receivers, which are prior in lien to said first and before they took title from the purchas- mortgage, and which shall not be paid or ers at such sale, the order specifically in- satisfied out of the income of the property in cluded within the obligations which must be assumed any taxes which might "finally be the hands of the receiver, upon the court adadjudged to be a lien on the property." judging the same to be prior in lien to said 5. A proceeding to establish a tax lien is re- mortgage, and directing payment thereof, instated in the trial court as of the date of provided that suit be brought for the enan order therein dismissing the petition on forcement of such indebtedness, obligation, the ground that it presented no claim against or liability within the period allowed by any the property or the parties, by the reversal statute of limitations applicable thereto. of such order by the Supreme Court of the United States.

6.

7.

8.

A finding by the trial court in a proceeding to establish a tax lien upon railroad property, as to the number of miles of railroad subject to taxation, when approved by the supreme court of the territory, is conclusive upon the Supreme Court of the United States as to

such fact.

The penalty of 25 per cent imposed by N. M. Comp. Laws 1897, § 4035, upon any person who fails to render a true list of his property for taxation, will not be enforced in a proceeding to establish a lien for unpaid taxes, where no such penalty is claimed in the petition.

Interest on unpaid taxes prior to a decree establishing liability therefor, in an action to collect such taxes, is properly refused where the assessment was made in gross upon 60.7 miles of railroad, only 55 miles of which were subject to taxation, since under such circumstances the owners were justified In contesting their liability to such assessment and taxation in gross, and until there was an identification of the property subject amount of taxes due, it would have been in equitable to charge penalties for nonpayment.

to taxation, and a determination of the

[Nos. 181, 182.]

Argued October 30, 31, 1901. Decided
uary 6, 1902.

ROSS APPEALS

Court

"Any such claim for indebtedness, obligalions, or liabilities which shall not have been presented in writing to the receiver *or filed [537] with the clerk of this court prior to the time of delivery of possession of such property shall be presented for allowance, and filed within six months after the first publication by the receiver of a notice to the holders of such claims to present the same for allow ance. The receiver shall publish such notice at least once a week for the period of six weeks, in one or more newspapers published in Albuquerque, New Mexico, Prescott, Arizona, and Los Angeles, California, upon the request of any purchaser or purchasers after delivery of the possession of the property to them; and any such claims which shall not be so presented or filed within the period of six months after the first publication of such notice shall not be enforceable against said receiver nor against the property sold, nor against the purchaser or purchasers, his or their successors or assigns."

On May 3, 1897, a sale was made under the decree to A. F. Walker, R. Somers Hayes, and Victor Morawetz. On May 4 the sale was confirmed. The order of confirmation conJan-tained substantially the same provisions respecting payment of obligations as the decree, and added, "including also any taxes which may finally be adjudged to be a lien

from the Supreme

to review a decision modifying a decree of
the District Court of the Second Judicial
District establishing a tax lien. Affirmed.
See same case below, 62 Pac. 987.

aforesaid."

According to an affidavit filed in the case this clause was entered at the suggestion of counsel for the territory, and upon notice in open court of his intention to present a Statement by Mr. Justice Brewer: claim for the taxes hereinafter referred to. [536] *On July 16, 1895, the United States Trust On June 22, 1897, the purchasers conveyed Company of New York filed its bill in the the property to the Santa Fe Pacific Railoffice of the clerk of the district court of road Company, and on July 1, 1897, the rethe second judicial district of the territory ceiver delivered possession of the property. of New Mexico, praying foreclosure of a On October 4, 1898, he was by order of the mortgage given by the Atlantic & Pacific court discharged as receiver. He failed to Railroad Company. On January 10, 1896, give the notice required by the decree for the Charles W. Smith was appointed receiver. purpose of cutting off claims against the On April 10, 1896, a decree of foreclosure was property, and on application of the Santa Fe entered. The decree provided that the pur-Pacific Railroad Company, the grantee of the chaser or purchasers, and his or their succes- purchasers, on December 19, 1898, an order sors or assigns, should, as part consideration was entered directing the clerk of the court and purchase price of the property pur- to publish the notice, and a notice was pubchased, and in addition to the sum bid, pay-'lished that on or before October 23, 1899, all

316

claims against the receiver must be presented or they would be barred. On June 10, 1897, after the confirmation of the sale, but while [538]the property was in possession of the receiver, the territory of New Mexico, by leave, filed an intervening petition claiming a lien for and payınent by the receiver of certain taxes upon part of the railroad property in the county of Valencia. To this petition the trust company and receiver, on June 23, 1897, filed joint and several pleas. On the same day, without passing upon the sufficiency of the pleas, the court ordered the intervening petition dismissed on the ground that the "matters and things therein set up" were "not sufficient to entitle the said intervening petitioner to the relief sought by its petition." On appeal to the supreme court of the territory this order of dismissal was affirmed. From such decision the territory appealed to this court, which upon the first hearing affirmed the rulings below (172 U. S. 171, 186, 43 L. ed. 407, 412, 19 Sup. Ct. Rep. 128), but on a petition for rehearing reversed the order and remanded the case for further proceedings. 174 U. S. 545, 43 L. ed. 1079, 19 Sup. Ct. Rep. 784.

proper, the court hereby certifies for use upon the appeal of the said The United States Trust Company of New York and C. W. Smith, receiver, that this case was tried in the court below upon an agreed statement of facts, which agreed statement of facts was made part of the record in the district court and part of the record upon appeal to this court, and is to be a part of the record on appeal to the Supreme Court of the United States; that the said agreed statement sets out the facts of this case which were heard or considered by this court upon said appeal, and the same is hereby adopted by this court as its statement of such facts for use upon the appeal aforesaid, without here repeating the same.

"And the court further certifies for use upon the appeal of the said territory of New Mexico, in accordance with the prayer of the said appellant, the following statement of facts."

Following this was a special statement of facts, certified to under the hand of the Chief Justice.

Mr. C. N. Sterry argued the cause, and, with Messrs. E. D. Kenna and Robert Dunlap, filed a brief for the trust company:

The mandate having been returned and presented to the trial court on August 4, 1899, proceedings were there had which culWhile a petition in intervention need not minated, on October 5, 1899, in a finding that be formal, but may be brief, yet it should the territory was entitled to a tax lien upon exhibit all the material facts which are rea portion of the railroad property for $74,-lied upon for the specific relief invoked, em168.70, and a decree establishing such lien. From this decree both parties appealed to the supreme court of the territory, which, on August 23, 1900, modified the decree by reducing the amount to $61,922.73, and award-manded by the petition. ing interest at the rate of 6 per cent per annum from October 5, 1899, the date of the decree in the district court. 62 Pac. 987. From this decision both parties have appealed to this court.

bodying, either by a recital or by reference,
so much of the record in the original suit
in which the petition is filed as is essential
to show a right to the particular relief de-

A. 415, 46 U. S. App. 578, 77 Fed. 703;
Empire Distillng Co. v. McNulta, 23 C. C.
Beach, Modern Eq. Pr. ¶ 579.

When this case was reinstated upon the docket of the district court (upon the mandate of the supreme court of the territory), the district court, having parted with the taxes were claimed to have been levied, havpossession of the property upon which the ing disposed of all the funds that it ever had possession of in the foreclosure suit, and having finally discharged its receiver, should, of its own motion, have dismissed the intervening petition.

Bond v. State, 68 Miss. 648, 9 So. 353; Brown v. Gay, 76 Tex. 444, 13 S. W. 472; Fordyce v. Du Bose, 87 Tex. 78, 26 S. W. 1050; Texas & P. R. Co. v. Watson (Tex. Civ. App.) 24 S. W. 952; New York & W. U. Teleg. Co. v. Jewett, 115 N. Y. 166, 21 N. E. 1036. See also McNulta v. Lockridge, 137 Ill. 281, 27 N. E. 452; Farmers' Loan T. Co. v. Central R. Co. 7 Fed. 539; High, Receivers, 2d ed. § 398b.

A statement of facts agreed to by the parties was filed in the district court, and upon this statement the decree was founded. This agreed statement contains a narrative of facts, transcripts of records and the testimony which certain witnesses would have given if they had been produced and sworn. This statement of facts was incorporated in the record transmitted to the supreme court of the territory, and is the only portion of the record showing the facts presented on the hearing in the district court. After the decision by the supreme court of the territory, both parties having signified an intention to appeal to this court, the territory applied [539] for a statement of facts in accordance with the act of Congress of date April 7, 1874, in reference to practice in territorial courts and appeals therefrom (18 Stat. at L. 27, chap. 80), which application was resisted by the Ordinarily an intervening petition cannot counsel for the trust, company and the re-be filed after final judgment or decree, since ceiver on the ground that the case had been the court then loses jurisdiction, except to tried in the court below upon an agreed state-enforce such judgment or decree. ment of facts, whereupon the supreme court Meadows v. Goff, 90 Ky. 540, 14 S. W. made this entry of record: 535; 11 Enc. Pl. & Pr. p. 503, note 5. "Being willing and desirous that the re- The purchase of the property upon its spective parties be allowed to get their ap-sale under the decree of foreclosure, the conpeals before the Supreme Court of the United firmation of such purchase, and the conveyStates in such shape as their counsel deem 'ance of the property to the purchasers,