UNITED STATES
v.
SOUTHERN PACIFIC RAILROAD COMPANY.
UNITED STATES
v.
SOUTHERN PACIFIC RAILROAD COMPANY.

*574 Mr. Assistant Attorney General Maury for appellant.

Mr. Joseph H. Call, special attorney on behalf of the United States, filed a brief for appellant.

Mr. James C. Carter for appellees.

*592 MR. JUSTICE BREWER delivered the opinion of the court.

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 only which lie within the granted limits of both the Atlantic and Pacific and the Southern Pacific Companies, at the crossing of their lines, as definitely located. As it appears from the record that, at the time of the location of the former company's line, so many of the tracts within these overlapping limits had been taken up by preëmption and homestead entries that the indemnity limits were not large enough to supply its deficiency, it is obvious that the land to be affected by this decision is of limited area in comparison with the large body of lands covered by the grant to the Southern Pacific.

The contention of the government is, that these lands were not included within the grant to the Southern Pacific. Such contention implies no want of good faith on its part. It is not attempting to take back or forfeit that which it has once *593 granted. It is only seeking, a difference of opinion having arisen, an adjustment, a determination of the extent of its grant. Less than that could not be expected; more than that could not be asked of it.

The grants to both the Atlantic and Pacific and the Southern Pacific Companies were grants in præsenti. The language is, "there be, and hereby is, granted." The construction and effect of such words of grant have often been considered by this court. In the recent case of St. Paul and Pacific Railroad Company v. Northern Pacific Railroad Company, 139 U.S. 1, 5, Mr. Justice Field, speaking for the court, said: "As seen by the terms of the third section of the act, the grant is one in præsenti; that is, it purports to pass a present title to the lands designated by alternate sections, subject to such exceptions and reservations as may arise from sale, grant, preëmption or other disposition previous to the time the definite route of the road is fixed. The language of the statute is, `that there be, and hereby is, granted' to the company every alternate section of the lands designated, which implies that the property itself is passed, not any special or limited interest in it. The words also import a transfer of a present title, not a promise to transfer one in the future. The route not being at the time determined, the grant was in the nature of a float, and the title did not attach to any specific sections until they were capable of identification; but when once identified the title attached to them as of the date of the grant, except as to such sections as were specifically reserved. It is in this sense that the grant is termed one in præsenti; that is to say, it is of that character as to all lands within the terms of the grant, and not reserved from it at the time of the definite location of the route. This is the construction given to similar grants by this court, where the question has been often considered; indeed, it is so well settled as to be no longer open to discussion. Schulenberg v. Harriman, 21 Wall. 44, 60; Leavenworth, Lawrence &c. Railroad Co. v. United States, 92 U.S. 733; Missouri, Kansas &c. Railway Co. v. Kansas Pacific Railway Co., 97 U.S. 491; Railroad Co. v. Baldwin, 103 U.S. 426. The terms of present grant are in some cases qualified by *594 other portions of the granting act, as in the case of Rice v. Railroad Co., 1 Black, 358; but unless qualified they are to receive the interpretation mentioned."

In view of this late and clear declaration, it would be a waste of time to attempt a reëxamination of the questions, or a restatement of the reasons which have established these as the settled rules of law in respect to land grants, and made it so that the old common law rule as to the necessity of identification to a conveyance has not been controlling in determining the scope and effect of a Congressional land grant. Yet reference may be had to the still later case of Bardon v. Northern Pacific Railroad, 145 U.S. 535, in which the doctrine that title passes by relation as of the date of the grant was held to exclude from a grant land which, at the date of the act, was held under a homestead claim, although the claim had been abandoned, and the land restored to the public domain before the filing of the map of definite location. It may also not be amiss to notice the case of Schulenberg v. Harriman, 21 Wall. 44. In that case land had been granted to the State of Wisconsin, to aid in the construction of a railroad. The language of the grant was like that in this: "There be, and is hereby, granted." A further provision was that if the road be not completed within ten years, "no further sales shall be made, and the lands unsold shall revert to the United States." The railroad was not completed within the time specified. Thereafter timber was cut and removed from these lands, and the question for consideration was as to the ownership of that timber. It was held that the timber was the property of the State; that by the grant, title to the land passed to the State upon the location of the route; and that, though the road was not completed within the time specified, and though there was the provision that the unsold lands should revert, yet the title still remained in the State, held under a condition subsequent, and held until the government should take some steps to assert a forfeiture.

Applying these well-settled rules to the cases at bar, there can be little difficulty in arriving at a conclusion. The grant to the Atlantic and Pacific was made in 1866; to the Southern *595 Pacific in 1871. They were grants in præsenti. When maps of definite location were filed and approved, the grants severally took effect by relation as of the dates of the acts. The map of definite location of the Atlantic and Pacific Company's road along the lands in controversy was filed and approved on April 11, 1872. Then the specific tracts were designated, and to them the title of the Atlantic and Pacific attached as of July 27, 1866. If anything in the land laws of the United States can be considered as thoroughly settled by repeated decisions, it is this. It matters not when the map of definite location of the Southern Pacific was filed and approved, whether before or after April 11, 1872; for when filed the grant could take effect by relation only as of March 3, 1871, and at that time, and for nearly five years theretofore, the title to these lands had been in the Atlantic and Pacific. It matters not that the act of 1871 in terms purports to bestow the same rights, grants and privileges as were granted to the Southern Pacific Railroad Company by the act of 1866. That merely defines the extent of the grant and the character of the rights and privileges; it does not operate to make the latter grant take effect by relation as of the date of the prior grant, and thus subject the grants to the two companies to the rule controlling cotemporaneous grants, as established by St. Paul & Sioux City Railroad v. Winona & St. Peter Railroad, 112 U.S. 720, and Sioux City & St. Paul Railroad v. Chicago, Milwaukee &c. Railway, 117 U.S. 406. Even if Congress had in terms expressed an intent to that effect in a subsequent act, it was not competent, by such legislation, to divest the rights already vested in the Atlantic and Pacific Company. So the case, in the best way of putting it for the defendant, is the case of two companies with conflicting grants, each of whose line of definite location has been approved by the Land Department. Unquestionably, the grant older in date takes the land.

Some stress seems to have been laid in the court below on the proviso to the act of 1871, which reads: "Provided, however, that this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific *596 Railroad Company, or any other railroad company." But the language of this proviso is negative and restrictive, and not affirmative and enlarging. It says substantially that nothing in the grant to the Southern Pacific shall affect or impair other grants. Surely the declaration that this grant does not affect some other grant, does not make this grant any larger than it would have been without that declaration. It simply prevents it from having any effect, which, but for the declaration, it might be supposed to have on something else. If without those words it could take nothing granted to the Atlantic and Pacific, a fortiori with them it takes nothing.

But it is urged by counsel for defendant that no map of definite location of line between the Colorado River and the Pacific Ocean was ever filed by the Atlantic and Pacific or approved by the Secretary of the Interior. This contention is based upon these facts: The Atlantic and Pacific Company claimed that, under its charter, it was authorized to build a road from the Colorado River to the Pacific Ocean, and thence along the coast up to San Francisco; and it filed maps thereof in four sections. San Buenaventura was the point where the westward line first touched the Pacific Ocean. One of these maps was of that portion of the line extending from the western boundary of Los Angeles County, a point east of San Buenaventura, and through that place to San Miguel Mission, in the direction of San Francisco. In other words, San Buenaventura was not the terminus of any line of definite location from the Colorado River westward, whether shown by one or more maps, but only an intermediate point on one sectional map. When the four maps were filed, and in 1872, the Land Department, holding that the Atlantic and Pacific Company was authorized to build not only from the Colorado River directly to the Pacific Ocean, but also thence north to San Francisco, approved them as establishing the line of definite location. Subsequently, and when Mr. Justice Lamar was Secretary of the Interior, the matter was reëxamined, and it was properly held that under the act of 1866, the grant to the Atlantic and Pacific was exhausted when its line reached the Pacific Ocean. San Buenaventura was, therefore, held to be *597 the western terminus, and the location of the line approved to that point. The fact that its line was located, and maps filed thereof in sections, is immaterial. St. Paul & Pacific Railroad v. Northern Pacific Railroad, 139 U.S. 1. Indeed, all the transcontinental roads, it is believed, filed their maps of route in sections. So the question is whether the filing a map of definite location from the Colorado River through San Buenaventura to San Francisco, under a claim of right to construct a road the entire distance, is good as a map of definite location from the Colorado River to San Buenaventura, the latter point being the limit of the grant. We think, unquestionably, it is. Though a party claims more than he is legally entitled to, his claim ought not to be rejected for that to which he has a right. The purpose of filing a map of definite location is to enable the Land Department to designate the lands passing under the grant; and when a map of such a line is filed, full information is given, and, so far as that line may legally extend, the law perfects the title. It surely cannot be that a company must determine at its peril the extent to which its grant may go, or that a mistake in such determination works a forfeiture of all its rights to lands.

In this connection, reference may be had to the contention of the Southern Pacific Company, that it filed its map of definite location on April 3, 1871, more than a year before the filing of its map by the Atlantic and Pacific Company; that, therefore, its title then attached to these lands, the same as to any other lands along its line; and that, if such title was displaced by any subsequent filing of the Atlantic and Pacific Company's map, it was only conditionally displaced; that is, displaced on condition that the Atlantic and Pacific Company should, by the final completion of its road, perfect its right thereto. But whatever title or right the Southern Pacific Company might acquire by a prior filing of its map was absolutely displaced when the Atlantic and Pacific Company's map was filed. Illy as it may accord with the common law notions of identification of tracts as essential to a valid transfer of title, it is fully settled that we are to construe these acts of Congress as laws as well as grants; that *598 Congress intends no scramble between companies for the grasping of titles by priority of location, but that it is to be regarded as though title passes as of the date of the act, and to the company having priority of grant, and, therefore, that in the eye of the law it is now as though there never was a period of time during which any title to these lands was in the Southern Pacific. As said in the case of Missouri, Kansas & Texas Railway v. Kansas Pacific Railway, 97 U.S. 491, 497:

"It is always to be borne in mind, in construing a Congressional grant, that the act by which it is made is a law as well as a conveyance, and that such effect must be given to it as will carry out the intent of Congress. That intent should not be defeated by applying to the grant the rules of the common law, which are properly applicable only to transfers between private parties. To the validity of such transfers it may be admitted that there must exist a present power of identification of the land; and that where no such power exists, instruments, with words of present grant, are operative, if at all, only as contracts to convey. But the rules of the common law must yield in this, as in all other cases, to the legislative will."

So now, whatever may have been the dates of filing by the respective companies, the case stands as though the lands granted to the Atlantic and Pacific had been identified in 1866, and title had then passed, and there never was a title of any kind vested in the Southern Pacific Company.

And whatever of plausibility there might be in this suggestion of counsel, based upon the old common law rules in respect to the effect of a lack of identification upon attempted conveyances between private parties, it fails entirely because its map of definite location was not filed by the Southern Pacific Company until long after the filing by the Atlantic and Pacific Company. It is true that the bills of complaint in these cases allege that "said Southern Pacific Railroad Company accepted said grant, and on April 3, 1871, did designate the line of its said road by a plat thereof, which it on that day filed in the office of the Commissioner of the General *599 Land Office, and did construct and complete said road in the manner and within the time prescribed, except that it did not connect with the Texas and Pacific Railroad, and on April 3, 1871, the odd sections of public land for thirty miles in width on each side of said route, to which the United States had full title, not reserved, sold, granted, appropriated and free from all claims and rights, were, by the Department of the Interior, ordered withdrawn from sale and entry and reserved."

This allegation apparently refers by its terms to the line of definite location, as provided for in section 3 of the act of July 27, 1866, inasmuch as it uses the words of that section, to wit, "at the time the line of said road is designated by a plat thereof." And if this were a matter vital to the case, it might be necessary to require that the bill be amended to conform to the proof, though it may be remarked that the allegations in the last part of the clause quoted, in respect to the withdrawal of lands, seem to indicate that the map of general route rather than that of definite location was referred to.

The distinction between the line of definite location and the general route is well known. It was clearly pointed out in the case of Buttz v. Northern Pacific Railroad Co., 119 U.S. 55. The act under consideration in that case was that of July 2, 1864, 13 Stat. 365, making a grant to the Northern Pacific Railroad Company. The third section of that act, as the third of this, made the grant, and provided for the line of definite location. Section 6 authorized the fixing of the general route, and its language in respect to that matter is the same as that of section 6 of the act before us. It reads: "That the President of the United States shall cause the lands to be surveyed for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad; and the odd sections of land hereby granted shall not be liable to sale or entry," etc. Referring to this matter, it was said in the opinion in that case, on pages 71 and 72: "The act of Congress not only contemplates the filing by the company, in the office of the Commissioner of *600 the General Land Office, of a map showing the definite location of the line of its road, and limits the grant to such alternate odd sections as have not, at that time, been reserved, sold, granted or otherwise appropriated, and are free from preëmption, grant or other claims or rights; but it also contemplates a preliminary designation of the general route of the road, and the exclusion from sale, entry or preëmption of the adjoining odd sections within forty miles on each side, until the definite location is made... . The general route may be considered as fixed when its general course and direction are determined after an actual examination of the country or from a knowledge of it, and is designated by a line on a map showing the general features of the adjacent country and the places through or by which it will pass. The officers of the Land Department are expected to exercise supervision over the matter so as to require good faith on the part of the company in designating the general route, and not to accept an arbitrary and capricious selection of the line irrespective of the character of the country through which the road is to be constructed. When the general route of the road is thus fixed in good faith, and information thereof given to the Land Department by filing the map thereof with the Commissioner of the General Land Office, or the Secretary of the Interior, the law withdraws from sale or preëmption the odd sections to the extent of forty miles on each side. The object of the law in this particular is plain; it is to preserve the land for the company to which, in aid of the construction of the road, it is granted. Although the act does not require the officers of the Land Department to give notice to the local land officers of the withdrawal of the odd sections from sale or preëmption, it has been the practice of the Department in such cases, to formally withdraw them."

As the act of July 27, 1866, the one before us, is in these respects exactly like that of the one before the court in that case, it must be held that here, as there, Congress provided for two separate matters; one the fixing of the general route, and the other the designation of the line of definite location; and an examination of the evidence shows that the map which *601 was filed on April 3, 1871, was simply one of general route, and therefore did not work a designation of the tracts of land to which the Southern Pacific's grant attached. As the map was filed within one month after the grant, it might be inferred that there had not been sufficient time to fix the line of definite location, though, of course, it would be possible, as counsel suggests, that the company had surveyed the line in anticipation of the grant, and the matter of time would not be decisive. But turning to the map itself, a copy of which is in evidence, we find that this is the certificate made thereon by the Southern Pacific Company:

To Hon. C. Delano, Secretary of the Interior, and Hon. Willis Drummond, Commissioner of General Land Office:

"Please to take notice that this map is filed by the Southern Pacific Railroad Company, of California, in the office of the Commissioner of the General Land Office, in the Department of the Interior, for the purpose of designating by the heavy red line traced thereon the general route of the line of railroad, as near as may be, from a point at or near Tehachapa Pass, by way of Los Angeles to the Texas Pacific Railroad at or near the Colorado River, adopted by the said Southern Pacific Railroad Company in pursuance of the power and authority granted to said company by the 23d section of the act of Congress of the United States, entitled `An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes,' approved March 3, 1871, and in pursuance of the provisions of the act of July 27, 1866, referred to in said 23d section, and for the purpose of obtaining the benefit of the provisions of said acts of Congress.

Not only that, but upon the filing of the map, and on April 21, 1871, the Commissioner of the General Land Office sent to the receiver at Los Angeles a letter making a direction of withdrawal, in which he says, referring to this matter: "The company *602 having filed a diagram designating the general route of said road, I herewith transmit a map showing thereon the line of route, as also the 20 and 30-mile limits of the grant, to the line of withdrawal for the Southern Pacific Railroad under the act of 1866, and you are hereby directed to withhold from sale or location, preëmption or homestead entry all the odd-numbered sections falling within those limits."

Further, there is in evidence an exemplification of a diagram in the Land Office, showing the limits of the grant to the Atlantic and Pacific Company, with the intersecting limits of the grant to the Southern Pacific Company, on which diagram appear two lines, one traced in blue, and marked "branch of the Southern Pacific Railroad;" and the other in red, somewhat divergent therefrom, marked "Southern Pacific Railroad, definite location." Still further, on the minutes of the proceedings of meetings of the directors of the Southern Pacific road, held on April 10, September 8, and October 1, 1874, appear resolutions similar in their character, but having reference to different parts of the line between Tehachapa Pass and the Texas Pacific Railroad.

The one passed at the meeting on April 10, 1874, is in these words:

"Resolved, That the line of railroad as it has been surveyed and laid out on map marked `AA,' and described as follows: Commencing at a point in the northwest quarter (N.W. ¼) of section [three] (3), township two (2) north, range fifteen (15) west, San Bernardino base and meridian, and running thence in a southeasterly direction to the city of Los Angeles, and thence in an easterly direction to a point in the northeasterly quarter (N.E. ¼) of section twenty-seven (27), township one (1) south, range nine (9) west, San Bernardino base and meridian, being map and profile of section No. one, Southern Pacific Railroad and telegraph line authorized by the twenty-third section of the Texas Pacific Railroad act, approved March 3d, 1871, be and the same is hereby, adopted as the route of said railroad between the points named.

*603 So, only at these late days was the line of definite location determined upon by the company. Of course, therefore, the map filed April 3, 1871, could not have been a map of that line, but was, as it states, only of the general route, and there was then no designation of lands to which the Southern Pacific Company's title could attach.

On the other hand, the Atlantic and Pacific Company did file its maps of definite location. This appears from the certificates thereon. In the one covering the line along the lands in controversy, the chief engineer of the company certifies that E.N. Robinson was a deputy engineer, and that the latter, "as shown by his field-notes, did actually survey and mark upon the ground, or cause to be surveyed and marked upon the ground, the line or route of the Atlantic and Pacific Railroad," etc., as delineated upon the map; and that his acts in the premises were duly approved and accepted on behalf of the company, by himself as chief engineer. And in the further official certificate of the company it is stated that the "map shows the line or route of the said Atlantic and Pacific Railroad in the county, ... being a part of the line or route of said railroad, as definitely fixed in compliance with said acts of Congress," etc. These maps were received and approved by the Land Department as maps of definite location. It follows that in fact the line of definite location of the Atlantic and Pacific was established, and maps thereof filed and approved before any action in that respect was taken by the Southern Pacific Company. There never was a time, therefore, at which the grant of the Southern Pacific could be said to have attached to these lands; and the plausible argument based thereon, made by counsel in behalf of the Southern Pacific Company, falls to the ground.

Again, it is urged that the grant to the Atlantic and Pacific having been forfeited, there is nothing now in the way of the Southern Pacific's grant attaching to these lands; that in the interpretation of rights under land grants, regard has always been had by this court to the intention of Congress; that it was the intention of Congress that these lands should pass to some company to aid in the construction of a railroad, either *604 the Atlantic and Pacific or the Southern Pacific; that they cannot now be applied to aid in the construction of the former company's road; and that, therefore, to carry into effect the intent of Congress, they should be applied to aid in the construction of the latter company's line. We think this contention is erroneous, both as to the law and the intent of Congress. It was held in the case of Kansas Pacific Railway v. Dunmeyer, 113 U.S. 629, that, where a homestead right had attached to a tract at the time of the definite location of the railway company's line, which homestead was afterwards abandoned, the tract was simply restored to the public domain, and did not pass to the railway company under its grant; that the grant only attached to lands which were the subject of grant at the time; and that the company had no interest in the question as to what afterwards became of a tract which was not public land at the time its grant became fixed. On page 644 the court observed: "The right of the homestead having attached to the land it was excepted out of the grant as much as if in a deed it had been excluded from the conveyance by metes and bounds." The same doctrine was affirmed in Hastings and Dakota Railroad v. Whitney, 132 U.S. 357; Sioux City &c. Land Co. v. Griffey, 143 U.S. 32; Bardon v. Northern Pacific Railroad, 145 U.S. 535.

Neither can it fairly be said that it was the intent of Congress that these lands should pass conditionally to the Southern Pacific Company. Good faith must be imputed to Congress. It cannot be supposed that Congress intended to give to the Southern Pacific Company that which it had already given to the Atlantic and Pacific Company. It knew that it had granted lands to the Atlantic and Pacific for a road to the Pacific Ocean, and that that company was then engaged in constructing its road, and proceeding with as much rapidity as other Pacific companies had done. Within little over a month from the date of this grant to the Southern Pacific Company, and on April 20, 1871, it gave to the Atlantic and Pacific Company authority to issue bonds secured by a mortgage on its road, equipment, lands, franchises, privileges, etc. 17 Stat. 19, c. 33. Congress, therefore, was expecting that the Atlantic *605 and Pacific Company would construct its road, and, with this expectation, had no thought of giving to the Southern Pacific Company that which it had already given to the Atlantic and Pacific Company.

Further, as indicating the intent of Congress, reference may be had to the first proviso to section 3 of the act of 1866, which, by the terms of section 18 of that act and the act of 1871, becomes one of the conditions of the grant to the Southern Pacific Company. That proviso is: "Provided, That if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act." That proviso may not be technically and strictly applicable to this case, in that a road crossing another may perhaps not be said to be found upon the line of such other road, or to be upon the same general line, yet the import of this proviso is clear, to the effect that Congress was not only not intending to give to one company that which it had already given to another, but intended that lands previously granted should be definitely excepted from the later grant.

Not only that, but by section 9 of the original act it was provided "that if the Atlantic and Pacific make any breach of the conditions hereof, and allow the same to continue for upwards of one year, then, in such case, at any time hereafter, the United States may do any and all acts and things which may be needful and necessary to insure a speedy completion of the said road." In other words, the intent of Congress was that this road to the Pacific should be built; that if there was any delay on the part of the Atlantic and Pacific Company, it might itself take all needful and necessary measures to accomplish the building; and to that end of course, use all the lands it proposed to grant therefor. Can it be supposed that this purpose of Congress was forgotten, or that its intent was changed when it made the grant to the Southern Pacific, or that it had anything in contemplation other than that, after the completion of the Atlantic and Pacific road, and the *606 appropriation of the lands along its line to aid in that construction, the Southern Pacific Company might, if it saw fit to build a road from Tehachapa Pass to the Texas and Pacific Railroad, obtain the remainder of the lands along that line?

Indeed, the intent of Congress in all railroad land grants, as has been understood and declared by this court again and again, is that such grant shall operate at a fixed time, and shall take only such lands as at that time are public lands, and, therefore, grantable by Congress, and is never to be taken as a floating authority to appropriate all tracts within the specified limits which at any subsequent time may become public lands. The question is asked, supposing the Atlantic and Pacific Company had never located its line west of the Colorado River, would not these lands have passed to the Southern Pacific Company under its grant? Very likely that may be so. The language of the Southern Pacific Company's grant is broad enough to include all land along its line and if the grant to the Atlantic and Pacific Company had never taken effect, it may be that there is nothing which would interfere with the passage of the title to the Southern Pacific Company.

But that is a matter of result from the happening of something neither intended nor expected. While it may have been within the knowledge of Congress as among the possibilities, that result was not the purpose sought to be accomplished by this legislation. If any other than the general rule as to land grants had been intended, it is to be expected that such intention would have been clearly expressed. So when intent is to be considered, the question is whether Congress intended, the title having once vested in the Atlantic and Pacific, that the Southern Pacific Company should stand waiting to take the lands at some future time, however distant, when the Atlantic and Pacific Company's title should fail.

Again, there can be no question, under the authorities heretofore cited, that, if the act of forfeiture had not been passed by Congress, the Atlantic and Pacific could yet construct its road, and that, constructing it, its title to these lands would become perfect. No power but that of Congress could interfere with this right of the Atlantic and Pacific. No one but *607 the grantor can raise the question of a breach of a condition subsequent. Congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited. It enacted that they be restored to the public domain. The forfeiture was not for the benefit of the Southern Pacific; it was not to enlarge its grant as it stood prior to the act of forfeiture. It had given to the Southern Pacific all that it had agreed to in its original grant; and now, finding that the Atlantic and Pacific was guilty of a breach of a condition subsequent, it elected to enforce a forfeiture for that breach, and a forfeiture for its own benefit.

Our conclusions, therefore, are, that a valid and sufficient map of definite location of its route from the Colorado River to the Pacific Ocean was filed by the Atlantic and Pacific Company, and approved by the Secretary of the Interior; that by such act the title to these lands passed, under the grant of 1866, to the Atlantic and Pacific Company, and remained held by it subject to a condition subsequent until the act of forfeiture of 1886; that by that act of forfeiture the title of the Atlantic and Pacific was retaken by the general government, and retaken for its own benefit, and not that of the Southern Pacific Company; and that the latter company has no title of any kind to these lands.

The decrees of the Circuit Court must be reversed, and the cases remanded with instructions to enter decrees for the plaintiff for the relief sought.

MR. JUSTICE FIELD, (with whom concurred MR. JUSTICE GRAY,) dissenting.

I am not able to agree with the court in its judgment in these cases or in the reasons offered in its support.

The cases were fully and elaborately considered by the Circuit and District Judges in the court below. 46 Fed. Rep. 683, 692. Their opinions are not only able and convincing, but lead to conclusions which seem to me consonant with justice and fair dealing. To my sense of right, there is something repugnant in any other conclusion, in view of the *608 inducements held out by the government and the work done, and the expenses incurred, by the railroad company.

Congress desired to connect by a railway the States on the Mississippi with the Pacific Coast, and for that purpose, by the act of July 27, 1866, created a corporation known as the Atlantic and Pacific Railroad Company, and gave it a grant of lands to aid in the construction of a railway between Springfield, in the State of Missouri, and the Pacific Coast. 14 Stat. 292, c. 278. The 18th section authorized the Southern Pacific Railroad Company, a corporation under the laws of California, to connect with the Atlantic and Pacific Railroad at such point near the boundary line of California which it should deem most suitable for a railroad line to San Francisco, and in consideration thereof, and to aid in its construction, gave it grants of lands similar to those which the Atlantic and Pacific Railroad Company had received and subject to the same conditions and limitations.

On the 3d of March, 1871, Congress passed an act to incorporate the Texas and Pacific Railroad Company, and to aid in the construction of its road; and, for the purpose of connecting that road with the city of San Francisco, it authorized, by its 23d section, the Southern Pacific Railroad Company to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado River, with the same rights, grants and privileges, and subject to the same limitations, as those contained in the grant by the act of July 27, 1866, with a proviso "that this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company, or any other railroad company." On the 3d of April following, one month only after the passage of this act, the Southern Pacific Company designated the line of its road from Tehachapa Pass, by way of Los Angeles to Fort Yuma on the Colorado River, on a map which it filed on that day in the office of the Commissioner of the General Land Office. Afterwards the Southern Pacific was amalgamated or consolidated with other companies, the consolidated company being called the Southern Pacific Railroad Company. It then proceeded to *609 build the railroad along the line designated from Tehachapa Pass, by way of Los Angeles, to the Colorado River, and completed the same within the time required by the act of Congress. Its several sections were examined from time to time and reported to the President of the United States, by commissioners appointed by him for that purpose; and the whole line was accepted by the President, and patents of the United States for the greater part of the lands thus earned were issued to the company. Ever since the completion and acceptance of the road the company has performed to the satisfaction of the government all the services, such as carrying the mails, transporting troops and supplies, in all respects as required by the act of Congress; and the services have been accepted by the United States.

The Atlantic and Pacific Railroad Company subsequently to this definite location of the Southern Pacific Company, and nearly a year after the construction of its road had been commenced, and on March 12, 1872, filed in the office of the Secretary of the Interior — not the office of the Commissioner of the General Land Office — two maps of portions of the line of road in the State of California, and some time afterwards filed maps of other portions of its line, but it never constructed any portion of the road authorized to be constructed by it in the State of California; and for its failure in that respect, Congress, on July 6, 1886, passed an act declaring a forfeiture of the land in that State. The proposed line of the Atlantic and Pacific Railroad, which was never built, crosses the line of the road of the Southern Pacific Company, which was built as stated.

The present suit is brought to cancel the patents issued to the Southern Pacific Company, and, wherever there is any portion for which a patent has not been issued, to annul its alleged title.

The opinion of the majority of the court proceeds upon the ground that the grant to the Atlantic and Pacific Railroad Company, though the road in aid of which it was granted was never constructed, and the grant was subsequently forfeited by the United States, operated to divest the government of *610 the fee of such lands so completely that the grant to the Southern Pacific Company to build its road could in no way be carried out; that its action, although taken with the approval of the officers of the government and strictly in conformity with its grant, gave nothing whatever to that company, and that the United States are for that reason authorized to ask for the cancellation of the patents and the surrender of the lands granted, necessarily carrying with them the railroad and other works constructed by the company. And this is prayed in the face of the evident intention of Congress that the Southern Pacific Company should have these identical lands, so far as the government had the right to grant them as its reward in part for building the road.

It is not denied or doubted, as counsel well observed, that the Southern Pacific Company "promptly, completely, in good faith and to the satisfaction of every department of the government having any concern with the matter, constructed and equipped its road, put it into operation and placed in possession of the government every facility and advantage sought by it in making the grants, and has thus fully earned its entire reward. And yet, in the face of all this, the government, by these suits, seeks to wrest these lands from the company, not because it wishes to apply them to some purpose of its own to which they had been devoted prior to the grant, nor because it needs them in order to enable it to fulfil some prior engagement with other parties, but simply in order to restore them to the public domain, where they were at the time of the grant, in order that it may deal with them as its own absolute property, and as it pleases." The cases would thus seem to be destitute of any substantial equity.

The opinion assumes that the grant to the Atlantic and Pacific Company when its map of definite location was filed, though that was after the concession to the Southern Pacific Company, took effect and vested an absolute title to the lands designated in the Atlantic and Pacific Company from its date, which could not be affected by any subsequent events which would make the concession to the Southern Pacific available. In support of that view it cites several decisions of the court, *611 in which it has been held that similar railroad grants were grants in præsenti, and operated only upon lands at the time free from exceptions stated, such as lands to which a preemption or homestead right has attached, or have been reserved for special purposes, and that lands thus excepted or reserved do not fall under the operation of the grants if subsequently the cause of the original exception or reservation has ceased, but remain as public or ungranted lands.

Such grants have been treated as grants in præsenti in determining controversies between parties as to the date of their respective titles under the grants, or against conflicting grants. They are grants in præsenti, so as to cut off all intervening claims except such as are expressly named; and if the work, in aid of which the grants are made, is executed in accordance with their provisions, the title of the grantees will take effect as of their date, except as to specially reserved parcels. We do not disagree with the majority of the court on this point. It is true, also, that lands excepted or reserved from such grants at their date are not subsequently brought under their operation if the cause or purpose of their exception ceases. They remain ungranted lands. Such was the case of Bardon v. Northern Pacific Railroad Company, 145 U.S. 535. But it is evident that such exceptions and reservations of one grant do not apply and control a second grant, unless such second grant is specially stated to be within them. When the second grant in question in this case was made, all the rights which the United States had in the lands described therein passed to the Southern Pacific Company, subject only to the rights specially reserved of the first grantee, and released of all restrictions upon their use except as thus designated. Until something was done under the first grant towards its execution, it was competent for Congress to give effect to other grants and to limit the extent of their subordination.

Neither grants in præsenti, nor grants with special exceptions or reservations, have ever been held, that I am aware of, to prohibit a second grant of the same lands subject to the condition that it shall not affect or impair any rights *612 under the elder grants. There can be no circumstances under which such second conditional grant may not be made. Whether it will ever become operative and pass the title to the lands described will depend upon circumstances which cannot be stated with certainty in advance. Many events may arise to defeat or limit the operation of the first grant. It may be forfeited, or portions of its lands may be surrendered and new legislation, taken in execution of the reserved power to alter, amend or repeal the act making the grant, may change the whole condition of the lands.

From these views it would seem that the questions arising in this case should not be difficult of solution. Before anything was done under the grant to the Atlantic and Pacific Railroad Company, even to indicate the route of the road it would construct, authority was issued by the government to the Southern Pacific Company to build a road north from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas and Pacific Railroad at or near the Colorado River, with a proviso, however, that the authority thus given should not in any respect impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company or of any other railroad. Congress had power to confer such authority and to make a grant for its execution. Surely Congress can make a grant of lands which it owns or claims to own at any time, if it annex a condition that the grant shall not affect or impair the rights of a previous grantee. It would, as it seems to me, be an extravagant and utterly unwarranted assertion to say that Congress, having made a grant for a railroad to run in one direction, is thereby prohibited from making another grant for a railroad to run in a different direction, if a condition is annexed that the second grant shall not affect or impair the rights of the first grantee. The questions, and the only questions for consideration in such a case, would be, first, what are the rights thus reserved to which the second grant is subordinate, and, second, have they been affected or impaired by the later grant? The previous grant to the Atlantic and Pacific Railroad Company, made six years before, did not stand in the way of Congress making the conditional concession *613 to the Southern Pacific. If unlimited, it would have affected the extent of the grant to the first company. A limitation upon its operation was placed by the proviso. No line of railroad had been then defined or marked by the Atlantic and Pacific Railroad Company. It might, so far as Congress saw, have selected a different route from the one it did afterwards select. Congress waited six years for that company to make a selection before it made the concession to the Southern Pacific Company. The company was not bound to wait indefinitely for the years to elapse before moving in the enterprise it was to undertake, and to further which Congress had afforded assistance. The condition attached to the concession was not an exception from the grant of any lands that the Atlantic and Pacific Railroad Company might claim under its grant without performing its conditions. It merely rendered the concession to the Southern Pacific Company subordinate and subject to any rights that the Atlantic and Pacific Company may then have acquired or might thereafter acquire under its grant, upon the performance of its conditions. What, then, were those rights, present or prospective, which were reserved to the Atlantic and Pacific Company? Plainly they were the right to construct a railroad and telegraph to the Pacific Coast, from the Colorado River, by the most practicable route, with a right of way two hundred feet in width, and to use certain lands granted for that purpose to aid in their construction, and, when constructed, the right to operate the road and use the telegraph line. They were permissive rights, and not compulsory. Have they been affected or impaired by the concession to the Southern Pacific Company? In no respect whatever. They were affected and impaired by the company's failure to perform the conditions annexed to its grant, and in no other way, until its forfeiture was declared. It never did anything towards a compliance with its conditions except to file, in detached parts, what it termed a map of the location of its road six years after the date of the grant and one year after the Southern Pacific Company had located its road, under its concession, and commenced its construction. Its rights, whether present or prospective were never invoked, *614 and, in consequence, nothing was ever obtained in virtue of them. The building of another road in another direction by the Southern Pacific Company under its concession did not, therefore, affect or impair any rights of the Atlantic and Pacific, as none were ever claimed or exercised by it. Had the company performed the conditions of its grant and exercised its rights it would have taken the lands under the grant against any possible pretension of the Southern Pacific Company; but, having abandoned all such rights by simply refusing to do anything, the Southern Pacific Company rightly proceeded with its work and constructed its road. The grant to it was a full conveyance of all the rights of the United States free from all restraints except as specially designated, and the rights then reserved were never subsequently affected or impaired by the Southern Pacific Company, and they were lost entirely by the forfeiture of the grant.

The case, in a nutshell, is this: The grant to the Atlantic and Pacific Railroad Company was indeed prior in point of time and of right, and the grant to the Southern Pacific Railroad Company was subordinate to the prior grant. But when the prior grant was forfeited by the failure of the Atlantic and Pacific Railroad Company to perform its conditions, that grant fell off, and the underlying grant to the Southern Pacific Railroad Company, all the conditions of which had been performed, remained in full force and effect.

I consider the principle involved in these cases as one of great importance, more so than the value of the property, although that runs into millions of dollars, expended by the company upon the encouragement of the government. But it is infinitely more important that it should be established that the government and its officers are bound by the same principles of justice in their dealings which are held to govern the conduct of individuals.

In my opinion the judgment of the court below should be affirmed, and I am authorized to state that MR. JUSTICE GRAY concurs with me in this dissent.

NOTES

[1] In No. 921, D.O. Mills and Garrit L. Lansing, Trustees, and Joseph E. Youngblood, were codefendants and appellees, with the Railroad Company. In No. 922, D.O. Mills and Garrit L. Lansing, Trustees, The City Brick Company, Thomas Goss, Edward Simmons and Albert A. Hubbard, were such codefendants and appellees.