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from the Colorado river, that being the east-pany to more fully and completely comply ern boundary of California, to the Pacific with and perform the requirements, proviocean. On July 6, 1886, Congress passed an sions, and conditions of the said act of Conact forfeiting the lands granted to the Atlan- gress, and all other acts of Congress now in tic & Pacific, so far as they were adjacent force, or which may hereafter be enacted, to and conterminous with the uncompleted the state of California hereby consents to portions of the road. 24 Stat. at L. 123, said act; and the said company, its successchap. 637. By this act the interest of the ors and assigns, are hereby authorized and Atlantic & Pacific in public lands in the empowered to change the line of its railroad state of California was devested and re- so as to reach the eastern boundary line of stored to the United States. the state of California by such route as the company shall determine to be the most practicable, and to file new and amendatory articles of association, and the right, power, and privileges hereby granted to, conferred upon, and vested in them, to construct, maintain, and operate, by steam or other power, the said railroad and telegraph line mentioned in said act of Congress, hereby confirming to and vesting in the said company, its successors and assigns, all the rights, privileges, franchises, power, and authority conferred upon, granted to, or vested in said company by the said acts of Congress and any act of Congress which may be hereafter enacted." Cal. Stat. 1869, 1870, p. 883.

Un December 2, 1865, the Southern Pacific was incorporated under the laws of California, "for the purpose of constructing, owning, and maintaining a railroad from some point on the bay of San Francisco, in the state of California, and to pass through the counties of Santa Clara, Monterey, San Luis Obispo, Tulare, Los Angeles, and San Diego to the town of San Diego, in said state, thence eastward through the said county of San Diego to the eastern line of the state of California, there to connect with a contemplated railroad from said eastern line of the state of California to the Mississippi river."

Section 18 of the act of 1866 reads as follows:

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

On January 3, 1867, the Southern Pacific filed in the Interior Department a map of a route from San Francisco via Mojave to Needles, on the Colorado river. This line from Mojave to Needles is on the same general course and contiguous to that adopted by the Atlantic & Pacific. The Secretary of the Interior refused to accept or approve the map on the ground that this particular part of the line was not authorized by the charter of the Southern Pacific. On April 4, 1870, the legislature of California passed the following act:

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

"Be it resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Southern Pacific Railroad Company of California may construct its road and telegraph line, as near as may be, on the route indicated by the map filed by said company in the Department of the Interior on the 3d day of January, eighteen hundred and sixty-seven; and upon the construction of each section of said road, in the manner and within the time provided by law, and notice thereof being given by the company to the Secretary of the Interior, he shall direct an examination of each such section by commissioners to be appointed by the President, as provided in the act making a grant of land to said company, approved July twenty-seventh, eighteen hundred and sixty-six, and upon the report of the commissioners to the Secretary of the Interior that such section of said railroad and telegraph line has been constructed as required by law, it shall be the duty of the said Secretary of the Interior to cause patents to be issued to said company for the sections of land conterminous to each constructed section reported on as aforesaid, to the extent and amount granted to said company by the said act of July twenty-seventh, eighteen hundred and sixty-six, expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictious provided for in the 3d section of said act."

"Whereas, by the provisions of a certain act of Congress of the United States of America, entitled 'An Act Granting Lands to Aid in the Construction of a Railroad and Telegraph Line from San Francisco to the Eastern Line of the State of California,' approved July 27, 1866, certain grants were Along this general line the Southern Pamade to, and certain rights, privileges, pow-cific constructed its road, as California said, ers, and authority were vested in and con- in reference to the grant made to the Southferred upon, the Southern Pacific Railroad ern Pacific by § 18 of the act of Congress Company, a corporation duly organized and of July 27, 1866, that it "hereby consents to existing under the laws of the state of Cali- said act;" and as Congress, by its resolufornia; therefore, to enable the said com- tion, approved the route selected by the

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Southern Pacific as a route authorized by | Co. 117 U. S. 406, 29 L. ed. 928, 6 Sup. Ct. that act, no one can question that the con- Rep. 790." struction of the road was under such circumstances as entitle the company to the benefit of the grant made by said 18th section of the act of 1866.

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p. 162, Sup. Ct. Rep. p. 1083, having there- | on page 48, L. ed. p. 376, Sup. Ct. Rep. p. tofore narrated the facts in reference to va- 27: rious charters and grants, said:

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distinctly stated in the opening of the opin- | States insists that in the former cases the ion 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 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, rather than to the Southern Pacific. To avoid the effect of this conclusion,-a conclusion resting upon well-settled principles of public-land law,-the Southern Pacific contended that no map of definite location was ever filed by the Atlantic & Pacific, or approved by the Secretary of the Interior; but after a full examination of the facts this court held otherwise, summing up its conclusions in these words:

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 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."

"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 & 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 & 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 & Pacific was retaken "For the reasons stated, we are of opinby the general government, and retaken for ion that it must be taken in this case to have its own benefit and not that of the South-been conclusively adjudicated in the former ern Pacific Company; and that the latter cases, as between the United States and the company has no title of any kind to these Southern Pacific Railroad Companylands." 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 the Southern Pacific Railroad Company and its privies, the essential facts upon which the government rests its present claim.

"Stated in another form, the United

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

"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;

"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

"3. That in view of the conditions attached to the grant, and of the reservations of power in Congress contained in the act of 1866 such lands became, upon the passage of the forfeiture act of 1886, the property of the United States, and by force of that act were restored to the public domain without the Southern Pacific Railroad Company's having acquired any interest therein that affected the power of the United

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States to forfeit. and restore them to the public domain.

"These grounds being accepted as the basis of our decision, the law in the present case is clearly for the United States; for, as all the lands here in controversy are embraced by the maps of 1872, and therefore appertain 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."

which is not the matter of dispute in this action. The judgment in that case is therefore not conclusive in this as to matters which might have been decided, but only as to matters which were in fact decided." Last Chance Min. Co. v. Tyler Min. Co. 157 U. S. 683-687, 39 L. ed. 859-861, 15 Sup. Ct. Rep. 733-735. The question here presented 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 Obviously the fact settled by the decisions answered in the affirmative. Nor is this a in those cases was the filing by the Atlantic mere technical difference between those & Pacific of an approved map of definite cases and this. Counsel for the railroad location. Upon that the controversy hinged. company call the line from Mojave southSuch a map having been filed, the title of ward via Los Angeles, to connect with the the Atlantic & l'acific vested as of the date Texas & Pacific, a "branch line," and that of the act of July 27, 1866; and inasmuch castward from Mojave to Needles, to conas the Southern Pacific claimed only by a nect with the Atlantic & Pacific, a "main grant of date March 3, 1871, it took no title. *line;” but by whatever name these two lines This which is apparent from the foregoing are called, they were built under the authorquotations is emphasized by the full discus-ity of two different statutes, the line from sions in the opinions, as well as by the alle- Mojave southward via Los Angeles under gations in the pleadings upon which the the authority of the act of Congress of cases were tried. That fact, having been de- March 3, 1871,-an act which in terms autermined, must be taken in the present suit thorized the building of a road from a point as not open to dispute. The Atlantic & at or near Tehachapa pass, which is in the Pacific did file a sufficient map of definite vicinity of Mojave, southward by way of location of its line from the Colorado river Los Angeles, to connect with the Texas & to the Pacific ocean, and such map was ap- Pacific, and gave no authority to build a proved by the Secretary of the Interior. Its line eastward from Mojave to connect with title, therefore, to the land within the lim- the Atlantic and Pacific,-the line from Moits of the grant in California, took effect as jave eastward, under the act of 1866, which of date July 27, 1866. No claim of right or authorized the Southern Pacific to connect title arising only in 1871, and created by with the Atlantic & Pacific at or near the an act of that date, could affect its title. 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.

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 quotation 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 party may have had and failed to produce; but as to property which was not involved in those suits they are conclusive only as to the matters which were actually litigated and determined. "On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action." Cromwell v. Sac County, 94 U. S. 351-356, 24 I. ed. 195–199. "The particular matter in controversy in the adverse suit was the triangular piece of ground,

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