to the lands, and that the whole office and ef- | indemnity belt of the Atlantic & Pacific were fect of the act of forfeiture declaring them re- not subject to the grant of the Southern Pacific stored to the public domain was to feed the at the time the latter's grant took effect, then grant thus resuscitated. And to support this no change in their condition afterwards could novel view, the case of St. Paul & S. O. R. Co. bring them within the operation of the grant. ▼. Winona & St. P. R. Co. 112 U. S. 720 (28: Leavenworth, L. & G. R. Co. v. United States, 872); Sioux City & St. P. R. Co. v. Chicago, M. 92 U. S. 733 (23: 634); Slidell v. Grandjean, &St. P. R. Co. 117 U. S. 406 (29: 928), are ap- 111 U. S 437 (28: 329); Dubuque & P. R. Co. pealed to. v. Litchfield, 64 U. S. 23 How. 88 (16: 509).

But the conflicting grants in those cases bore the same date as well as covered the same land. But the grants now before the court were not simultaneous, and, consequently, the cases relied on have no relevancy.

When the grantor says that the grant of a float shall take effect from its date, and not the date of its location, the sovereign will must have effect regardless of consequences. Mis souri, R. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 491, 497 (24: 1095, 1097).

The retroactive feature of the land grants is a recent application of a principle which has been commonly employed for ages, which is known at common law as the doctrine of relation, and which, as Maule, J., defined it in Graham v. Furber, 14 C. B. 152, is "treating a thing as happening at some preceding time. The following cases are examples at common law of the application of this well established doctrine.

Atty. Gen. v. Panier, 6 Bro. P. C. 486; Latless v. Homes, 4 T. R. 660; Potter, Dwarris Stat. 543; Pimb's Case, F. Moore, 196; Reg. v. Riley, Dearsly, C. C. 149; Demangeat, Cours de Droit Romain, tome 1, pp. 617, 618; Ortolan, Inst. (ed. 1876), tome, 1, p. 127.

All grants of this description are strictly construed against the grantees; nothing passes but what is conveyed in clear and explicit language.

Charles River Bridge v. Warren Bridge, 36 U. S. 11 Pet. 420 (9: 773, 938); Providence Bank v. Billings, 29 U. S. 4 Pet. 514 (7: 939); Jackson v. Lamphire, 28 U. S. 3 Pet. 289 (7: 682); 19 Opinions Atty. Gen. 135; 4 Land Dec. 215; 5 Land Dec. 691; 6 Land Dec. 679, 812.

This court pays respect to the opinions of the Land Department in the interpretation of statutes concerning the public lands. Hastings & D. R. Co. v. Whitney, 132 U. S. 366 (33: 367).

The Department of the Interior uniformly asserted a reviewing and controlling authority over all proceedings in the office of the surveyor general of California.

The San Jose grant was sub judice on April 3, 1871, when the Southern Pacific line of route was designated.

Newhall v. Sanger, 92 U. S. 761 (23: 769); Doolan v. Carr, 125 U. S. 618 (31: 844).

The contention of the United States is fully sustained by the decision of Mr. Secretary Lamar of January 30, 1886 (4 Land Dec. 357), and the Assistant Secretary of June 7, 1887, 5 Land Dec. 691.

The case of Foss v. Hinkell, 91 Cal. 194, which is much relied on by the other side, has by no means the same weight as it would have if the same court had not previously decided directly the opposite in the same case. Foss v. Hinkell. 78 Cal. 158.

Lands within the indemnity limits of the Atlantic & Pacific and within the primary limits of the Southern Pacific, are subsidiary to the grant proper by supplying its deficiencies, but only after the due ascertainment of such deficiencies and the proper selection of other lands in the indemnity limits to supply | them. When these conditious exist, land in Mr. James C. Carter, for appellees: the indemnity limits becomes subject to the An amalgamation affected under the authorgrant, but not before. This, however, is a mat-ity of a legislative act, between two or more ter dependent on the terms of the grant in each case, for there is no reason whatever why Congress may not provide that a land grant company shall have a paramount inchoate right to all lands within its indemnity limits until its right to any or all of such lands shall have been finally adjusted.

Rice v. Minnesota & N. W. R. Co. 66 U. S. 1 Black, 358 (17: 147).

corporate bodies, may, or may not, have the effect of dissolving one, or more, or all, of the constituent corporations. And what the ef fect in this particular may be must be depends, with possibly a few exceptions, on the intent of the legislation authorizing the amalgama

tion.

Central R. & Bkg. Co. v. Georgia, 92 U. S. 665 (23:757).

Congress declared that the grant to the The doctrine that public franchises are not Southern Pacific Company "shall in no way assignable without the consent of the governaffect or impair the rights, present or prospect-ment granting them, has little applicability to ive, of the Atlantic & Pacific Railroad Company.

Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 491 (24: 1095).

This proviso operated with the force and effect of an exception from the grant to the Southern Pacific Company.

St. Paul & P. R. Co. v. Northern Pac. R. Co. 139 U. S. 1 (35:77).

When the Atlantic & Pacific Road was located in March, 1872, it not only supplanted the Southern Pacific Road as to granted but also as to indemnity lands at the point of intersection. This was absolutely necessary to give proper effect to the proviso. If the lands in the

a case like the present, where the assignment objected to consists of a mere consolidation of existing corporations intended by the government allowing it to preserve every existing relation between the consolidating corporations and the government, as well as between them and all other persons.

Thomas v. West Jersey R. Co. 101 U. S. 71 (25:950).

But the grant by Congress was in terms assignable.

The grant was, to the Southern Pacific
Company, its successors and assigns.
New Orleans, S. F. & L. R. Co. v. Delamore,
114 U. S. 501 (29:244).

The action of the Legislature of California | v. Atchison, T. & S. F. R. Co. 112 U. S. 414 subsequent to the grant of July 27th, 1866, (28:794); St. Paul & S. C. R. Co. v. Winona & and designed to render that grant effective, St. P. R. Co. 112 U. S. 720 (28:872); Sioux and the action of the company under this legis- City & St. P. R. Co. v. Chicago, M. & St. P. lation, by consolidation with other companies, R. Co. 117 U. S. 406 (29:928). and otherwise, were known to Congress and approved by it.

The law sometimes adopts fictions and unusual interpretations, but only for the purposes of equity, and to carry out the real intentions of the parties. Gibson v. Chouteau, 80 U. S. 13 Wall. 92 (20:- of the court: 534).

There are two aspects only in which the government can maintain such a suit; first, where it can succeed in showing that it has the right to both the legal and the equitable or beneficial titles; that is to say, where the lands belong to the general public domain, to be disposed of by the Government as any absolute proprietor might dispose of his lands for any purposes, sale, settlement, pre emption or other; second, where it needs the legal title in order to deal with it in conformity with some appropriation already made of the lands which it is the duty of the Government to carry out and perfect. United States v. Missouri, K. & T. R. Co. 141 U. S. 338, 380 (35:768,783).

There were four cases principally relied upon by the United States, and the assertion is ventured that each of them repudiates the view of the Government and sustains that of the respondents.

Missouri, K. & T. R. Co. v. Kansas Puc. R. Co. 97 U. S. 491 (24:1095); Kansas Pac. R. Co.

to the Southern Pacific. Such contention im- | under a homestead claim, although the claim
plies no want of good faith on its part. It is had been abandoned, and the land restored to
not attempting to take back or forfeit that the public domain before the filing of the map
which it has once granted. It is only seeking, of definite location. It may also not be amiss
a difference of opinion having arisen, an ad- to notice the case of Schulenberg v. Harriman,88
justment, a determination of the extent of its U. S. 21 Wall. 44 [22:551]. In that case land
grant. Less than that could not be expected; had been granted to the State of Wisconsin to
more than that could not be asked of it.
aid in the construction of a railroad. The lan
guage of the grant was like that in this:
"There be, and is hereby, granted." A fur-
ther provision was that if the road be not com-
pleted within ten years, "no further sales
shall be made, and the lands unsold shall re-
vert 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 land should revert, yet
the title still remained in the State, held under
a condition subsequent, and held until the gov
ernment should take some steps to assert a for-
feiture.

The grants to both the Atlantic & 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 & P. R. Co. v. Northern Pac. R. Co. 139 U. S. 1, 5 [35: 77, 79]. 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, pre-emption, 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 gran 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, 88 U. S. 21 Wall. 44, 60 [23: 551, 554]; Leavenworth, L. & G. R. Co. v. United states, 92 U. S. 733 [23: 634]; Missouri, K. & T. R. Co. v. Kansas Pac. R. Co. 97 U. S. 491 [24: 1095]; St. Joseph & D. C. R. Co. v. Baldwin, 103 U. S. 426 [26: 578]. The terms of present grant are in some cases qualified by other portions of the granting act, as in the case of Rice v. Minnesota & N. W. R. Co. 66 U. S. 1 Black, 358 [17: 147]; 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 reexamination 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 Pac. B. | Co. 145 U. S. 535 [36: 806], 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

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 &
Pacific was made in 1866; to the Southern Pa-
cific 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 & 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 & Pacific at-
tached as of July 27, 1866. If anything in the
land laws of the United States can be consid
ered as thoroughly settled by repeated decis
ions, 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 there
tofore, the title to these lands had been in the
Atlantic & 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 Com-
pany 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 sub-
ject the grants to the two companies to the
rule controlling contemporaneous grants, as
established by St. Paul & S. C. R. Co. v. Wi-
nona & St. P. R. Co. 112 U. S. 720 [28: 872]
and Sioux City & St. P. R. Co. v. Chicago, M.
& St. P. R. Co. 117 U. S. 406 [29: 928]. Even
if Congress had in terms expressed an intent to
that effect in a subsequent Act, it was not com-
petent, by such legislation, to divest the rights
already vested in the Atlantic & Pacific Com-
pany. So the case, in the best way of putting
it for the defendant, is the case of two compa-
nies with conflicting grants, each of whose

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line of definite location has been approved by | questionably it is. Though a party claims
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 & Pacific 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. Sure ly 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 fr n having any effect, which, but for the declaration, it might be supposed to have on some thing else. If without those words it could take nothing granted to the Atlantic & Pacific, a fortiori with them it takes nothing.

more than he is legally entitled to, his claim
ought not to be rejected for that to which be
has a right. The purpose of filing a map of
definite location is to enable the Land Depart-
ment 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 Com-
pany, 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 & Pacific
Company; that, therefore, its title then at-
tached 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 At-
lantic & Pacific Company's map, it was only
conditionally displaced, that is, displaced on
condition that the Atlantic & Pacific Com-
pany 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 & Paci-
fic Company's map was filed. Illy as it may
accord with the common law notions of iden-
tification of tracts as essential to a valid trans-
fer of title, it is fully settled that we are to
construe these acts of Congress as laws as well
as grants; that Congress intends no scramble
between companies for the grasping of titles
by priority of location, but that it is to be re-
garded 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 pe-
riod of time during which any title to these
lands was in the Southern Pacific. As said in
the case of Missouri, K. & T. R. Co. v. Kansas,
Pac. R. Co. 97 U. S. 491, 497 [24: 1095, 1097].

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 & Pacific or approved by
the Secretary of the Interior. This contention
is based upon these facts: The Atlantic &
Pacific Company claimed that, under its char-
ter, it was authorized to build a road from the
Colorado river to the Pacific ocea, and thence
along the coast up to San Francisco; and it filed
maps thereof in four sections San Buena-
ventura 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, hold-
ing that the Atlantic & 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
re-examined, and it was properly held that,
under the Act of 1866, the grant to the Atlan-
tic & Pacific was exhausted when its line
reached the Pacific ocean. San Buenaventura
was, therefore, held to be 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 & P. R. Co. v. Northern Pac. R. Co.
139 U. S. 1 [35: 77]. Indeed, all the transcon-lative will."
tinental 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 And whatever of plausibility there might be
being the limit of the grant. We think, un-in this suggestion of counsel, based upon the

"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 legis

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 & 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.

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old common law rules in respect to the effect | within forty miles ou each side, until the def-
of a lack of identification upon attempted con- inite location is made. . . The general route
veyances between private parties, it fails en- may be considered as fixed when its general
tirely because its map of definite location was course and direction are determined after an
not filed by the Southern Pacific Company un- actual examination of the country or from a
til long after the filing by the Atlantic & Paci- knowledge of it, and is designated by a line
fic Company. It is true that the bills of com- on a map showing the general features of the
plaint in these cases allege that "said Southern adjacent country and the places through or by
Pacific Railroad Company accepted said grant, which it will pass. The officers of the Land
and on April 3, 1871, did designate the line of Department are expected to exercise supervis-
its said road by a plat thereof, which it on ion over the matter so as to require good faith
that day filed in the office of the Commissioner on the part of the company in designating the
of the General Land Office, and did construct general route, and not to accept an arbitrary
and complete said road in the manner and and capricious selection of the line irrespective
within the time prescribed, except that it did of the character of the country through which
not connect with the Texas & Pacific Railroad, the road is to be constructed.
When the gen-
and on April 3, 1871, the odd sections of pub-eral route of the road is thus fixed in good
lic land for thirty miles in width on each side faith, and information thereof given to the
of said route, to which the United States had Land Department by filing the map thereof
full title, not reserved, sold, granted, appro- with the Commissioner of the General Land
priated, and free from all claims and rights, Office, or the Secretary of the Interior, the law
were, by the Department of the Interior, or withdraws from sale or pre-emption the odd
dered withdrawn from sale and entry and re- sections to the extent of forty miles on each
served."
side. The object of the law in this particular
is plain; it is to preserve the land for the com-
pany to which, in aid of the construction of
the road, it is granted. Although the Act
does not require the officers of the Land De-
partment to give notice to the local land offi-
cers of the withdrawal of the odd sections
from sale or pre-emption, it has bo the prac-
tice of the Department in such cases, to form-
ally withdraw them,"

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.

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 definita
location, though, of course, it would be possi-
ble, 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 certifi-
cate made thereon by the Southern Pacific
Company:

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 The distinction between the line of definite general route, and the other the designation of location and the general route is well known. the line of definite location; and an examinaIt was clearly pointed out in the case of Buttz tion of the evidence shows that the map which v. Northern Pac. R. Co. 119 U. S. 55 [30: 330]. was filed on April 3, 1871, was simply one of The Act under consideration in that case was general route. and therefore did not work a des that of July 2, 1864, (13 Stat. at L. 365) mak-ignation of the tracts of land to which the ing 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 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 pre-emption, 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 pre-emption of the adjoining odd sections

"To Hon. C. Delano, Secretary of the Inte-
rior, and Hon. Willis Drummond, Com-
missioner 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 Rail-
road at or near the Colorado river, adopted
by the said Southern Pacific Railroad Com-
pany in pursuance of the power and authority
granted to said company by the 23d section of
the Act of Congress of the United States, en-

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