patents for lands lying within the indemnity limits of the grant made to the Southern Pacific Railroad Company by the act of March 3, 1871, c. 122, § 23, 16 Stat. 573, 579, known as the branch line grant, and within the grant made to the Atlantic and Pacific Railroad Company by the act of July 27, 1866, c. 278, 14 Stat. 292. The Atlantic and Pacific road forfeited its grant, (act of July 6, 1886, c. 637, 24 Stat. 123), and thereafter the Southern Pacific selected the two parcels in question, as indemnity under its branch line grant, one of them lying within the granted, and the other within the indemnity limits of the Atlantic and Pacific. It relies on the general principle that whether lands are subject to selection as indemnity depends upon the state of the lands at the time the selection is made. Ryan v. Railroad Co., 99 U. S. 382. The Circuit Court, however, held that the right in this particular case had been decided not to exist, 152 Fed. Rep. 314, and the Circuit Court of Appeals affirmed the decree. 167 Fed. Rep. 514. 93 C. C. A. 150.

We are of opinion that the decision was right. In Southern Pacific Railroad Company v. United States, 168 U. S. 1, the lands in controversy embraced among others, as stated by Mr. Justice Harlan, "lands within the Southern Pacific indemnity limits and the Atlantic and Pacific granted limits; [and] lands within the common indemnity limits of both grants"-ibid. 47. It was held that the forfeiture to the United States did not enlarge the right of the Southern Pacific to select the lands in question and the decree was for the United States. The proposition laid down in United States v. Southern Pacific Railroad Company, 146 U. S. 570, and United States v. Colton Marble & Lime Co., 146 U. S. 615, was applied to Southern Pacific branch line indemnity lands. Whatever may be thought of the grounds for making an exception to the principle of Ryan v. Railroad Co., supra, the exception was established for this case. An elaborate argument was

1

made on petition for rehearing that the decision could not be extended to indemnity lands, but the petition was denied. In Southern Pacific Railroad Co. v. United States, 183 U. S. 519, the dismissal of the bill without prejudice to claims that by interpretation are said to include indemnity claims, imports no limitation of the previously established law, and on the other hand in Southern Pacific Railroad Co. v. United States, 189 U. S. 447, 451, 452, the case in 168 U. S. 1, was followed and the practice of the Land Department in accordance with that decision was mentioned as a further ground. There may be distinctions between the latest decision and this, but in view of the rightly established understanding it is too late to set them up now. Decree affirmed.

UNITED STATES v. SOUTHERN PACIFIC
RAILROAD COMPANY.

SOUTHERN PACIFIC RAILROAD COMPANY v. UNITED STATES.

APPEALS FROM THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.

Nos. 128, 129. Argued January 26, 1912.-Decided February 26, 1912.

An indemnity grant, like the residuary clause in a will, contemplates the uncertain and looks to the future, and what the party entitled may elect to select depends upon the state of the lands at the time of selection. Ryan v. Railroad Company, 99 U. S. 382. Under the main line grant made to the Southern Pacific Railroad Company by the act of July 27, 1866, c. 278, § 18, 14 Stat. 292, the company can select lieu lands within the primary limits of the grant made to the Atlantic & Pacific Railroad Company by § 3 of

Argument for the United States.

223 U. S.

the same act and forfeited under the act of July 6, 1886, c. 637, 24 Stat. 123. Southern Pacific Railroad Company v. United States, 168 U. S. 1, distinguished.

Where selections are made after a decision of this court, the selections will not be declared illegal at the instance of the Government if its claim is inconsistent with the position taken by it in the earlier

case.

THE facts, which involve rights of the Southern Pacific Railroad Company under its Main Line Grant to lands within the overlap of the primary limits of the Atlantic and Pacific Railroad Company land grant, are stated in the opinion.

The Solicitor General for the United States:

As to No. 128, the Southern Pacific is not entitled to select, as being within the indemnity provisions of its Main Line Grant made by the act of July 27, 1866, any lands which were subject to the primary provisions of the Atlantic and Pacific grant (made by the same act).

This question is really res judicata. See 168 U. S. 1, 61. Other cases clearly sustain the principle underlying this decision. Bardon v. Northern Pacific R. R. Co., 145 U. S. 535, 545; Sioux City & St. P. R. R. Co. v. United States, 159 U. S. 349, 364; Chicago &c. Ry. Co. v. United States, 159 U. S. 372, 374; St. Paul Railroad Co. v. Winona Railroad Co., 112 U. S. 720, 732; Clark v. Herington, 186 U. S. 206.

Selections for the lands in Exhibit B to the bill are now pending in the Interior Department, but the Land Department has no power, jurisdiction, or discretion which it can exercise in approving them, and therefore this suit to quiet title and remove the cloud will lie. Mullan v. United States, 118 U. S. 271, 278; Burfenning v. Chicago &c. Ry., 163 U. S. 321, 323; Doolan v. Carr, 125 U. S. 618, 624; Weeks v. Bridgman, 159 U. S. 541, 547.

The Government is entitled to a decree for the price

223 U. S. Argument for Appellees in No. 128; Appellants in No. 129.

(at the rate of $1.25 per acre) of such of the patented lands as have been sold to bona fide purchasers. Southern Pacific Railroad Co. v. United States, 200 U. S. 341; Oregon Railroad Co. v. United States, 189 U. S. 103, 115.

It appears by stipulation that within the indemnity limits there still remains a large body of lands from which the company can select in lieu of those here involved. Southern Pacific v. United States (No. 1), 200 U. S. 341, 353.

As to No. 129, the former case is a conclusive adjudication against the defendants as to lands there and here involved. Southern Pacific v. United States, 183 U. S. 519; United States v. Southern Pacific, 184 U. S. 49.

The title to such of the lands in Exhibit B of the bill as were included in the former case is res judicata. It is immaterial that the right now asserted was not asserted then. The bill was to quiet title and the right now relied on should have been put forward at the time, as it could have been. The object of the rule is to end litigation. See United States v. California &c. Land Company, 192 U. S. 355; Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 216; Dowell v. Applegate, 152 U. S. 327, 341.

The defendant company cannot contend that this effect of the decision is avoided for the reason that by the subsequent selection under the act of 1866, which was not in question in the case, it acquired a new title. Selection may be necessary to perfect title, but the right, of course, always comes from the granting act. That right could have been urged then as well as now.

Mr. Maxwell Evarts for appellees in No. 128 and appellants in No. 129:

The filing of a suit by the Government to quiet the title to lands in so far as any claim is made thereto by the railroad company under the branch line grant of 1871, does not bar the selection of such lands by the railroad

Argument for Appellees in No. 128; Appellants in No. 129. 223 U. S.

company under the grant of 1866, simply because the indemnity limits of the two grants overlapped to a slight extent, and, unknown to either side at the time of the trial, land physically within the indemnity limits of the grant of 1866 was in its character of indemnity land under the grant of 1871 included in such suit. See Southern Pacific Railroad Co. v. United States, 183 U. S. 519, 532, stating what was decided by the court in 146 U. S. 570, 146 U. S. 615, and 168 U. S. 1.

The doctrine that the title to indemnity lands remains in the United States until selection and approval has always been recognized by this court. New Orleans Pacific Railway v. Parker, 143 U. S. 42, 57; United States v. Missouri &c. Ry., 141 U. S. 358, 374; Wisconsin Railroad v. Price County, 133 U. S. 496, 512; Barney v. Winona &c. R. R., 117 U. S. 228, 232; Clark v. Herington, 186 U. S. 206, 209.

The whole question in this case is whether such general principles of law are applicable to the facts in the case at bar. They are not for two reasons.

First: Because at the time the suit, in 168 U. S. 1, was brought and until it was finally disposed of in this court, there was no claim of title in the Southern Pacific to the lands involved here under the Main Line Grant of 1866, and no claim of title thereto was obtained until 1903. Barrow v. Kindred, 4 Wall. 399, 404.

Second: For the reason that in a suit brought by the Government to quiet its title to lands claimed by the defendants under a particular grant of Congress it is not open to such defendants to assert any claim to the land under another grant, especially when a contemporary suit is brought to quiet its title to the same lands with regard to any claims under such other grant. The Government, therefore, by reason of the position taken by it in 168 U, S. 1, with reference to the Main Line Grant of 1866 and because of the fact that it had brought a suit to'quiet