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this position the company points to the ed by the company; (b) that up to that stipulation on which the case was heard time the government is free to reserve in the district court, wherein-follow-them for its own purposes and thereby ing a reference to the Act of March 3, to cut off the right of selection; and 1887, chap. 376, 24 Stat. at L. 556, (c) that this is so even where the losses Comp. Stat. § 4895, 8 Fed. Stat. Anno. in the place limits exceed the available 2d ed. p. 739, directing the Secretary lands in the indemnity limits, and al"to immediately adjust" this and other though the company's purpose to claim railroad land grants, and to a special the latter be asserted at the earliest opreport of the Commissioner, made in portunity. The question thus presented 1906, purporting to show that the ad- has an important bearing on the furjustment of this grant pursuant to that ther administration and adjustment of act had progressed to a point where it this grant, and perhaps of others, and was disclosed there was a net deficiency counsel on both sides have dealt with it in the grant of 4,092,472.09 acres—it is accordingly. In its present form the said:

question is

is new, but the principles “The plaintiff admits that when the which must control its solution are well withdrawal order of January 29, 1904, settled. was issued, the lands patented to the The purpose of the granting act and defendant or its predecessor in interest resolution was to bring about the conwithin the primary and all indemnity struction and operation of a line of raillimits, plus all other lands within the road extending from Lake Superior to primary or place limits, not patented, Puget sound and Portland through what but which passed under the grant, and then consisted of great stretches of also all odd-numbered sections in all in- homeless prairies, trackless foresis, and demnity limits which the defendant was unexplored mountains, and thus to faentitled to select under the regulations cilitate the development of that region, of the Land Department, did not equal promote commerce, and establish a conthe sum total of all the odd-numbered venient highway for the transportation sections lying within the primary or of mails, troops, munitions, and public place limits of the grant, and this con- stores to and from the Pacific coast, dition still obtains; but the plaintiff with all the resultant advantages to the does not admit that the correct measure government and the public. To that of the grant is the aggregate area of all end the act and resolution embodied a odd-numbered sections within the pri- proposal to the company to the effect mary or place limits, or that any defi- that if it would [64] undertake and pernite quantity of land was granted and form that vast work, it should receive in guaranteed to the defendant by any of return the lands comprehended in the the acts of Congress making grants of grant. The company accepted the proland to the defendant or its predecessor | posal, and at enormous cost constructed or predecessors in interest.”

the road and put the same in operation; And in further support of its position and the road was accepted by the Presthe company contends that where, ident. Thus the proposal was converted through pre-emption and homestead en-into a contract, as to which the comtries or other disposals, the available pany, by performing its part, became lands in the indemnity limits have been entitled to performance by the governso far diminished that those [63] re- ment. Burke v. Southern P. R. Co. 234 maining are all needed to supply losses in U. S. 669, 679, 680, 58 L. ed. 1527, 154, the place limits, the government is not at 1545, 34 Sup. Ct. Rep. 907. The proviliberty to reserve the remaining lands, sion relating to indemnity lands was as or any of them, for its own uses, and much a part of the grant and contract thereby to cut off the company's right as the one relating to land in place to claim them as indemnity, because, as (Payne v. Central P. R. Co. 255 Ù. S. against the government, they thence- 228, ante, 598, 41 Sup. Ct. Rep. 314), and forth are appropriated to the fultilment it is apparent from the granting act and of its obligation unde:: the grant, and resolution that “it was the purpose of because the company has a vested right Congress in making the grants to confer in the fulfilment of that obligation a substantial right to land within the inwhich all departme its of the govern- demnity limits in lieu of lands lost withment are bound to respect. On the in the place limits." Weyerhaeuser v. other hand, counsel for the government Hoyt, 219 U. S. 380, 387, 55 L. ed. 258, insist (a) that no right to lands in the 261, 31 Sup. Ct. Rep. 300. Such rights indemnity limits attaches, either gener are within the protection of the due ally or specifically, until they are select- I process of law clause of the Constitu

as

tion. Sinking Fund Cases, 99 U. S. 700, , there presented was whether there was 718, 25 L. ed. 496, 501.

any need for a selection where no right When the grant was made by the act of a settler was involved and the lands and resolution it was thought that the available for indemnity were not suffiindemnity limits, as therein defined, cient to supply the losses. By reason of contained lands largely in excess of this insufficiency it was ruled that the what would be required to supply losses lands in the indemnity limits necessarily within the place limits, and hence the pro- were appropriated to satisfy the losses, vision in § 6 under which, as construed and that no selection was required. by the land officers and this court, all The court said, p. 19: “As to the oblands in the indemnity limits were to be jection that no evidence was produced and remain subject to the operation of of any selection by the Secretary of the the Pre-emption and Homestead Laws, Interior from the indemnity lands to save the odd-numbered sections make up for the deficiencies found in should be taken out of their operation the lands within the place [66] limits, it by indemnity selections. Under that is sufficient to observe that all the lands provision, however, the lands available within the indemnity limits only made for indemnity were diminished much up in part for these deficiencies. There more rapidly than was expected; but as was, therefore, no occasion for the exerthe provision was one of the terms of cise of the judgment of the Secretary in the grant, the company must submit to selecting from them, for they were all whatever of disadvantage results from appropriated.” That ruling related to it. This the company frankly recog- the right to indemnify lands under this nizes, for in its brief it says: “It was a grant, and so is particularly in point; part of our contract that, until selected, but it is well to observe that what was lands within the indemnity belt should said about an existing deficiency relatbe open to settlement under [65] the ed, as appears on pages 8 and 9 of the Homestead and Pre-emption Laws;" and opinion, to the portion of the grant in also: "The question here is not whether, Minnesota, and not to other portions. in the face of the deficiency, the settler This exception to the general rule that [before selection] may acquire rights a selection is essential has been recogsuperior to ours, for we concede that he nized by this court in other cases. may.” But that provision gives no war- United States v. Missouri, K. & T. R. rant for thinking that, after the com- Co. 141 U. S. 358, 376, 35 L. ed. 766, pany has earned the right to receive the 771, 12 Sup. Ct. Rep. 13; United States lands comprehended in the grant, the v. Colton Marble & Lime Co. 146 U. S. government is free to reserve or appro- 615, 616, 36 L. ed. 1104, 1105, 13 Sup. priate to its own uses lands in the in-Ct. Rep. 163; Southern P. R. Co. v. demnity limits which are required to Bell, 183 U. S. 675, 682, 46 L. ed. 383, supply losses in the place limits. We 387, 22 Sup. Ct. Rep. 232. say "required," because we perceive no One of the regulations of the Land reason to doubt that lands in the indem- Department requires that indemnity senity limits may be so reserved or appro- lections be accompanied by a specificapriated where what remains is sufficient tion-tract for tract-of the losses on to satisfy all the losses.

account of which they are made. But While it often has been said that, that Department holds that this regulaunder such a grant, no right attaches tion does not apply where the losses exto any specific land within the indemni-ceed the lands which may be taken as ty limits until it is selected, an examina- indemnity. Thus, in Re Hastings & D. tion of the cases will show that this R. Co. 19 Land Dec. 30, it was said by general rule never has been applied as Secretary Smith: “The object in estabhetween the government and the grantee lishing the rule was to prevent the poswhere the lands available for indemnity sibility of one basis of loss being used were not sufficient for the purpose. Its for more than one selection. As this only application has been where either grant is known to be deficient over 800,the rights of settlers were involved, or 000 acres

the danger of a duplithe lands, available for indemnity ex-cation of the losses does not exist; and ceeded the losses, thereby making it the reason of the rule ceasing, the rule essential that there be a selection and itself does not operate." And a similar identification of the particular lands ruling is found in Chicago, R. I. & P. sought to be taken. This distinction is R. Co. v. Wagner, 25 Land Dec. 458, illustrated in St. Paul & P. R. Co. v. 460, and other cases. Northern P. R. Co. 139 U. S. 1, 35 L. ed. Giving effect to all that bears on the 77, 11 Sup. Ct. Rep. 389. The question I subject, we are of opinion that after the

.

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company earned the right to receive, report, in the absence of any confirmwhat was intended by the grant, it was atory action, by the Secretary, cannot not admissible for the government to be taken as sufficiently establishing reserve or appropriate to its own uses that a deficiency existed. The other [67] lands in the indemnity limits re- statement is that at the time of the quired to supply losses in the place limits. temporary withdrawal all the lands Of course, if it could take part of the theretofore received by the company, lands required for that purpose, it could plus all that it was possible for it to take all, and thereby wholly defeat the receive thereafter, whether as place provision for indemnity. But it cannot lands or indemnity lands, did not equal do either. The “substantial right” con- “the sum total of all the odd-numbered ferred by that provision (Weyerhaeuser sections lying within the primary or v. Hoyt, supra) cannot be thus cut down place limits," and that condition still or extinguished (Sinking Fund Cases, obtains. But the statement also says supra).

that the government "does not admit À more difficult question-to which that the correct measure of the grant is only slight attention is given in the the aggregate area of all odd-numbered briefs-is whether it sufficiently ap sections within the primary or place pears from this record that the grant limits." What was meant by this qualwas deficient at the time of the tempo- ification is not otherwise disclosed; nor rary withdrawal; that is, that the lands is it explained in the briefs. available as indemnity were not then gregate of the odd-numbered sections sufficient to supply the losses. The within the place limits is the correct question is one the determination of measure of the grant, unless (a) part of which rests primarily with the Land the grant included only a moiety of Department. The stipulation on which those sections, or (b) the route of this the case was heard does not show that road and that of another with a prior the Department has determined the land grant were found to be upon the question, nor that it has refused to do same general line, in which event so, but only that the question was not stated deduction was to be made from considered when this patent was issued, the amount of land granted to this comthe withdrawal being then inadvertent-pany. There would be no right to inly overlooked. In these circumstances, demnity as respects the moiety not into entitle either party to have the ques- cluded, nor as [69] respects the lands retion determined in this suit, the facts quired to be deducted. Either of those shown should make its right solution conditions, if existing, would affect the quite plain, for the decision might con- measure of the grant, and would have clude both parties for all time, -as re- to be considered in determining whethspects other lands as well as those in er there was a deficiency. The stipulasuit. Southern P. R. Co. v. United | tion does not show the presence or the States, 168 U. S. 1, 48, 42 L. ed. 355, absence of either condition, and the 376, 18 Sup. Ct. Rep. 18. Of course, the matter is not one of which courts take company is entitled to have the question judicial notice. Therefore the actual considered and decided somewhere, and, situation, whatever it may have been, if the deficiency be established, is en should have been shown. As this was titled to have the selection of these not done, neither party is entitled to lands sustained. A third of a century have the question whether there was a already has elapsed since the company

1 Southern P. R. Co. v. United States. earned the right to receive what was intended by the grant.

183 U. S. 519, 525, 46 L. ed. 307, 311, 22 Two matters stated in the stipulation Sup. Ct. Rep: 154 : Sioux City & St. P. R.

Co. v. United States, 159 U. S. 349, 364, are relied upon as showing a deficiency. 365, 40 L. ed. 177, 182, 183, 16 Sup. Ct. One is that in 1906 the Commissioner Rep. 17. And see United States v. Northreported to the Secretary that the ad- ern P. R. Co. 193 U. S. 1, 48 L. ed. 593, 24 justment of the grant had progressed Sup. Ct. Rep. 330. to a point where it was disclosed [68] 2 Section 3 of the granting act contains that there was a net deficiency of 4,092,- the following: “Provided, That if said 472.09 acres.

By the Act of March 3, route shall be found upon the line of any 1887, supra, the supervision of the ad" other railroad route to aid in the construe.

tion of which lands have been heretofore justment specially devolved

granted by the United States, as far as the Secretary, and yet the stipulation the routes are upon the same general line, does not show that he approved the the amount of' land heretofore granted Commissioner's report or in any way shall be deducted from the amount granted recognized it as correct. We think the by this act."

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deficiency determined upon the present | Federal Supreme Court jurisdiction record.

boundary suit. Turning to the published decisions of

1. The Federal Supreme Court has the Land Department, we find that in original jurisdiction over a suit in equity Hessey v. Northern P. R. Co. 43 Land of the states, to determine the boundary

brought by the United States against one Dec. 302, the Secretary distinctly de- between such state and a territory of the clared that the grant was so far de- United States. ficient that many losses within the place (For other cases, see Supreme Court of the

United States, 126-140, in Digest Sup. Ct. limits must remain unsatisfied, and

1908.] therefore that compliance with a provi- Federal Supreme Court jurisdiction sion that indemnity selections be made parties - boundary suit. from lands nearest the line of the road 2. That the Federal Supreme Court has was no longer required. But as that jurisdiction over the parties to a suit finding apparently related to the sit- brought by the United States against one uation existing December 9, 1909, it of the states, to determine the boundary he cannot be taken as showing that there United States, is obvious where the suit

tween such state and a territory of the a deficiency almost six years be- was brought in behalf of the United States, fore, when the temporary withdrawal in pursuance of an act of Congress, a bill now in question was made. The sit- of complaint and an amended bill were filed, uation may have changed materially in to each of which the state demurred and the meantime, for doubtless large num- also answered, the United States filed a repbers of homestead entries were being Jence and participated in the hearing:

lication, and both parties introduced evi. made within the indemnity limits every (For other cases, see Supreme Court of the year.

United States, 126-140, in Digest Sup. Ct. We conclude that the decrees below

1908.) must be reversed and the suit remanded

Judgment - res judicata - parties and to the District Court with directions

privies. (a) to accord the parties a reasonable tinctly put in issue and directly deter

3. A question of factor of law disopportunity, on a further hearing, to mined by a court of competent jurisdiction supplement and perfect the showing as a ground of recovery or defense in a made in the present record, if either or suit or action between parties sui juris is both are so disposed; (b) if the parties conclusively settled by the final judgment avail themselves of that opportunity, to or decree therein, so that it cannot be surproceed to an adjudication of the suit ther litigated in a subsequent suit between upon the record as thus supplemented; the same parties or their privies, whether and (c) if the parties do not avail them the second suit be for the same or a dif

ferent cause of action. selves of that opportunity, to enter a [For other cases, see Judgment, III. k, l, in decree canceling the patent without Digest Sup. ('t. 1908.) prejudice to the right of the company Judgment - res judicata parties and to have the question of the asserted de

privies. ficiency [70] in the grant determined by 4. In a subsequent suit between the the Land Department, and to have the same parties or their privies, but upon a present selection sustained and given full whether the matter decided on the former

different

of action, the question effect if the grant was deficient when occasion was within the issues then proper the temporary withdrawal was made.

to be decided, or was presented and actualDecree reversed.

ly determined in the course of deciding those issues, is open to inquiry, and unless it be answered in the affirmative, the mat.

ter is not res judicata.
STATE OF OKLAHOMA, Complainant, [For other cases, spe Jugment, lll. k, l, in

Digest Sup. ('t. 1:20S.)
STATE OF TEXAS, Defendant.

Judgment - res judicata parties and

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privies. UNITED STATES OF AMERICA, Inter

5. What is involved and determined in a former suit between the same parties

or their privies, but upon a different cause (See S. C. Reporter's ed. 70-93.) of action, is to be tested by an examination Note.-On conclusiveness of judg- of United States v. Beverly, 11 L. ed. ments, generally--see notes to Sharon v. U. S. 76; Johnson Co. v. Wharton, 38 Terry, 1 L.R.A. 572; Bollong v. Schuvler L. ed. U. S. 429, and Southern P. R. Co. Nat. Bank, 3 L.R.A. 142; Wiese v. San v. United States, 42 L. ed. U. S. 355. Francisco Musical Fund Soc. 7 L.R.A. judicial settlement of state bound577; Morrill v. Morrill, 11 L.R.A. 155; aries-see note to Nebraska v. Iowa, 36

vener.

of the record and proceedings therein, in. H. Carrigan argued the cause for the cluding the pleadings, the evidence submit landowners. ted, the respective contentions of the parties, and the findings and opinion of the court, there being no suggestion that the ion of the court:

Mr. Justice Pitney delivered the opincase is a proper one for resorting to extrin

This is a suit in equity in our original sic evidence. [For other cases, see Judgment, III. k, 1, in jurisdiction, brought by the state of Digest Sup. Ct. 1908. ]

Oklahoma against the state of Texas, to Judgment res judicata issues

establish the true boundary line between boundary suit.

those states where it follows the course 6. Land south of the middle of the of the Red river from the 100th degree South Fork of the Red river cannot be deemed to have been excluded from the is- of west longitude to the easterly boundsues involved in the boundary suit au- ary of Oklahoma. The bill avers that thorized by the Act of May 2, 1890, § 25, by the third article of a treaty concludbetween the United States and Texas, mere ed February 22, 1819, and ratified and ly because the act authorizes suit to deter-proclaimed February 19, 1821 (8 Stat. mine title to the tract "lying between the at L. 252), between the United States of North and South Forks of the Red river," ) America and the King of Spain, who and that phrase is repeated in the amended had sovereignty over the territory now bill. [For other cases, see Judgment, 111. 3, 4, in known as Texas, but then a part of Digest Sup. Ct. 1908. ]

Mexico, the boundary line [82] between Judgment - res judicata parties and the two countries, where formed by the privies - state boundary. 7. A final decree of the Federal $u- the south bank of that stream; that after

Red river, was established as following preme Court in a boundary controversy be. tween the United States and the state of Mexico had become independent, and on Texas, by which it was adjudged that, by January 12, 1828, a treaty was concluded, the treaty with Spain of February 22, and on April 5, 1832, ratified and pro1819, art. 3, the boundary, where it fol. claimed, between the United States of lows the Red river bordering upon Greer America and the United Mexican States, county, was fixed at the south bank of said by which the validity of the Treaty of river, rather than the middle of the main 1819 was confirmed (8 Stat. at L. 372); channel, is a final and conclusive adjudi. that in the year 1837 Texas was recogcation, binding upon the parties to a sub

nized as sequent suit between the states of Okla

an independent republic, no homa and Texas, that the true boundary longer under the power and jurisdiction between these states, where it follows the of Mexico, and on April 25, 1838, a course of the Red river from the 100th de-treaty was concluded, and in the same gree of west longitude to the easterly year ratified and proclaimed, between boundary of Oklahoma, is the south bank ihe United States and the Republic of of said stream.

Texas, by which the boundary as thus (For other cases, see Judgment, III. k, 1, in established was accepted by that RepubDigest Sup. Ct. 1908.)

lic as binding (8 Stat. at L. 511); and [No. 23, Original.)

that, under joint resolutions of ConArgued December 14 and 15, 1920. De

gress dated respectively March 1 and cided April 11, 1921.

December 29, 1815 (5 Stat. at L. 797; 9
Stat, at L. 108), Texas was admitted in-

State of Oklahoma against the tory properly included within and rightState of Texas to establish the true fully belonging to the Republic of boundary line between those states.

That by act of Congress ap

Texas." Boundary adjudged to follow the south proved May 2, 1890, a temporary govbank of the Red river.

ernment was provided for a part of the The facts are stated in the opinion. territory adjoining said boundary on the Mr. S. P. Freeling, Attorney General | Oklahoma, under the name of the terri

north, now comprised in the state of of Oklahoma, argued the cause for the tory of Oklahoma (chap. 182, 26 Stat. at state of Oklahoma.

L. 81), and that by § 29 (p. 93) the reMr. C. M. Cureton, Attorney Gen- maining part was designated as the Ineral of Texas, and Mr. Thomas Watt dian Territory; but that by $ 25 (p. 92), Gregory argued the cause for the state in view of the existence of a controversy of Texas.

between the United States and the state Assistant Attorney General Garnett

of Texas as to the ownership of what argued the cause for the United States.

was known as Greer county, described

as “the tract of land lying between the Messrs. Joseph Weldon Bailey and A. North and South Forks of the Red river

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