this position the company points to the stipulation on which the case was heard in the district court, wherein-following a reference to the Act of March 3, 1887, chap. 376, 24 Stat. at L. 556, Comp. Stat. § 4895, 8 Fed. Stat. Anno. 2d ed. p. 739, directing the Secretary "to immediately adjust" this and other railroad land grants, and to a special report of the Commissioner, made in 1906, purporting to show that the adjustment of this grant pursuant to that act had progressed to point where it was disclosed there was a net deficiency in the grant of 4,092,472.09 acres-it is said:

ed by the company; (b) that up to that time the government is free to reserve them for its own purposes and thereby to cut off the right of selection; and (c) that this is so even where the losses in the place limits exceed the available lands in the indemnity limits, and although the company's purpose to claim the latter be asserted at the earliest opportunity. The question thus presented has an important bearing on the further administration and adjustment of this grant, and perhaps of others, and counsel on both sides have dealt with it accordingly. In its present form the question is new, but the principles which must control its solution are well settled.

"The plaintiff admits that when the withdrawal order of January 29, 1904, 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 entitled to select under the regulations of the Land Department, did not equal the sum total of all the odd-numbered sections lying within the primary or place limits of the grant, and this condition still obtains; but the plaintiff does not admit that the correct measure of the grant is the aggregate area of all odd-numbered sections within the primary or place limits, or that any definite quantity of land was granted and guaranteed to the defendant by any of the acts of Congress making grants of land to the defendant or its predecessor or predecessors in interest."

unexplored mountains, and thus to facilitate the development of that region, promote commerce, and establish a convenient highway for the transportation of mails, troops, munitions, and public stores to and from the Pacific coast, with all the resultant advantages to the government and the public. To that end the act and resolution embodied a proposal to the company to the effect that if it would [64] undertake and perform that vast work, it should receive in return the lands comprehended in the grant. The company accepted the proposal, and at enormous cost constructed 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, 1544, 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 fulfilment it is apparent from the granting act and of its obligation under 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 departments 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-process of law clause of the Constitu

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

there presented was whether there was any need for a selection where no right of a settler was involved and the lands available for indemnity were not sufficient to supply the losses. By reason of this insufficiency it was ruled that the lands in the indemnity limits necessarily were appropriated to satisfy the losses, and that no selection was required. The court said, p. 19: "As to the objection that no evidence was produced of any selection by the Secretary of the Interior from the indemnity lands to make up for the deficiencies found in the lands within the place [66] limits, it within the indemnity limits only made up in part for these deficiencies. There was, therefore, no occasion for the exercise of the judgment of the Secretary in selecting from them, for they were all appropriated." That ruling related to the right to indemnify lands under this grant, and so is particularly in point; but it is well to observe that what was said about an existing deficiency related, as appears on pages 8 and 9 of the opinion, to the portion of the grant in Minnesota, and not to other portions. This exception to the general rule that a selection is essential has been recognized by this court in other cases. United States v. Missouri, K. & T. R. Co. 141 U. S. 358, 376, 35 L. ed. 766, 771, 12 Sup. Ct. Rep. 13; United States v. Colton Marble & Lime Co. 146 U. S. 615, 616, 36 L. ed. 1104, 1105, 13 Sup. Ct. Rep. 163; Southern P. R. Co. v. Bell, 183 U. S. 675, 682, 46 L. ed. 383, 387, 22 Sup. Ct. Rep. 232.

When the grant was made by the act and resolution it was thought that the indemnity limits, as therein defined, contained lands largely in excess of what would be required to supply losses within the place limits, and hence the provision in § 6 under which, as construed by the land officers and this court, all lands in the indemnity limits were to be and remain subject to the operation of the Pre-emption and Homestead Laws, save as the odd-numbered sections should be taken out of their operation by indemnity selections. Under that is sufficient to observe that all the lands provision, however, the lands available for indemnity were diminished much more rapidly than was expected; but as the provision was one of the terms of the grant, the company must submit to whatever of disadvantage results from it. This the company frankly recognizes, for in its brief it says: "It was a part of our contract that, until selected, lands within the indemnity belt should be open to settlement under [65] the Homestead and Pre-emption Laws;" and also: "The question here is not whether, in the face of the deficiency, the settler [before selection] may acquire rights superior to ours, for we concede that he may." But that provision gives no warrant for thinking that, after the company has earned the right to receive the lands comprehended in the grant, the government is free to reserve or appropriate to its own uses lands in the indemnity limits which are required to supply losses in the place limits. We 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 examination of the cases will show that this general rule never has been applied as between the government and the grantee where the lands available for indemnity were not sufficient for the purpose. Its only application has been where either the rights of settlers were involved, or the lands available for indemnity exceeded the losses, thereby making it essential that there be a selection and identification of the particular lands sought to be taken. This distinction is illustrated in St. Paul & P. R. Co. v. Northern P. R. Co. 139 U. S. 1, 35 L. ed. 77, 11 Sup. Ct. Rep. 389. The question

indemnity. Thus, in Re Hastings & D. R. Co. 19 Land Dec. 30, it was said by Secretary Smith: "The object in establishing the rule was to prevent the possibility of one basis of loss being used for more than one selection. As this grant is known to be deficient over 800,000 acres

the danger of a duplication of the losses does not exist; and the reason of the rule ceasing, the rule itself does not operate." And a similar ruling is found in Chicago, R. I. & P. R. Co. v. Wagner, 25 Land Dec. 458, 460, and other cases.

Giving effect to all that bears on the subject, we are of opinion that after the

company earned the right to receive what was intended by the grant, it was not admissible for the government to reserve or appropriate to its own uses [67] lands in the indemnity limits required to supply losses in the place limits. Of course, if it could take part of the lands required for that purpose, it could take all, and thereby wholly defeat the provision for indemnity. But it cannot do either. The "substantial right" conferred by that provision (Weyerhaeuser v. Hoyt, supra) cannot be thus cut down or extinguished (Sinking Fund Cases, supra).

report, in the absence of any confirmatory action by the Secretary, cannot be taken as sufficiently establishing that a deficiency existed. The other statement is that at the time of the temporary withdrawal all the lands theretofore received by the company, plus all that it was possible for it to receive thereafter, whether as place lands or indemnity lands, did not equal "the sum total of all the odd-numbered sections lying within the primary or place limits," and that condition still obtains. But the statement also says that the government "does not admit A 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. The agavailable 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 the case was heard does not show that the Department has determined the question, nor that it has refused to do so, but only that the question was not considered when this patent was issued, the withdrawal being then inadvertent-pany. ly overlooked. In these circumstances, to entitle either party to have the question determined in this suit, the facts shown should make its right solution quite plain, for the decision might conclude both parties for all time, as respects other lands as well as those in suit. Southern P. R. Co. v. United | States, 168 U. S. 1, 48, 42 L. ed. 355, 376, 18 Sup. Ct. Rep. 18. Of course, the company is entitled to have the question considered and decided somewhere, and, if the deficiency be established, is entitled to have the selection of these lands sustained. A third of a century already has elapsed since the company earned the right to receive what was intended by the grant.

Two matters stated in the stipulation are relied upon as showing a deficiency. One is that in 1906 the Commissioner reported to the Secretary that the adjustment of the grant had progressed to a point where it was disclosed [68] that there was a net deficiency of 4,092,472.09 acres. By the Act of March 3, 1887, supra, the supervision of the adjustment was specially devolved on the Secretary, and yet the stipulation does not show that he approved the Commissioner's report or in any way recognized it as correct. We think the

those sections, or (b) the route of this road and that of another with a prior land grant were found to be upon the same general line, in which event a stated deduction was to be made from the amount of land granted to this com

There would be no right to indemnity as respects the moiety not included, nor as [69] respects the lands required to be deducted. Either of those conditions, if existing, would affect the measure of the grant, and would have to be considered in determining whether there was a deficiency. The stipulation does not show the presence or the absence of either condition, and the matter is not one of which courts take judicial notice. Therefore the actual situation, whatever it may have been, should have been shown. As this was not done, neither party is entitled to have the question whether there was a

1 Southern P. R. Co. v. United States. 183 U. S. 519, 525, 46 I ed. 307, 311, 22 Co. v. United States, 159 U. S. 349, 364, Sup. Ct. Rep. 154; Sioux City & St. P. R. 365, 40 L. ed. 177, 182, 183, 16 Sup. Ct. Rep. 17. And see United States v. Northern P. R. Co. 193 U. S. 1, 48 L. ed. 593, 24 Sup. Ct. Rep. 330.

2 Section 3 of the granting act contains the following: "Provided, That if said route shall be found upon the line of any other railroad route to aid in the construc

tion 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."

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

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 case is a proper one for resorting to extrinsic evidence.

[For other cases, see Judgment, III. k, 1, in
Digest Sup. Ct. 1908.]
Judgment res judicata
boundary suit.

issues

6. Land south of the middle of the

South Fork of the Red river cannot be

deemed to have been excluded from the issues involved in the boundary suit authorized by the Act of May 2, 1890, § 25, between the United States and Texas, merely because the act authorizes suit to determine title to the tract "lying between the North and South Forks of the Red river," and that phrase is repeated in the amended

bill.

[For other cases, see Judgment, III. 1, 4, in

Digest Sup. Ct. 1908.]

Judgment

parties and

res judicata privies state boundary. 7. A final decree of the Federal Supreme Court in a boundary controversy between the United States and the state of Texas, by which it was adjudged that, by the treaty with Spain of February 22, 1819, art. 3, the boundary, where it follows the Red river bordering upon Greer county, was fixed at the south bank of said river, rather than the middle of the main channel, is a final and conclusive adjudication, binding upon the parties to a subsequent suit between the states of Oklahoma and Texas, that the true boundary between these states, where it follows the course of the Red river from the 100th degree of west longitude to the easterly boundary of Oklahoma, is the south bank of said stream.

[For other cases, see Judgment, III. k, 1, in

Digest Sup. Ct. 1908.]

[No. 23, Original.]

Argued December 14 and 15, 1920. cided April 11, 1921.

De

Mr. Justice Pitney delivered the opinion of the court:

This is a suit in equity in our original jurisdiction, brought by the state of Oklahoma against the state of Texas, to establish the true boundary line between those states where it follows the course of the Red river from the 100th degree of west longitude to the easterly boundThe bill avers that ary of Oklahoma.

by the third article of a treaty concluded February 22, 1819, and ratified and proclaimed February 19, 1821 (8 Stat. at L. 252), between the United States of America and the King of Spain, who had sovereignty over the territory now known as Texas, but then a part of Mexico, the boundary line [82] between the two countries, where formed by the Red river, was established as following the south bank of that stream; that after Mexico had become independent, and on January 12, 1828, a treaty was concluded, and on April 5, 1832, ratified and proclaimed, between the United States of America and the United Mexican States, by which the validity of the Treaty of 1819 was confirmed (8 Stat. at L. 372); that in the year 1837 Texas was recognized as an independent republic, no longer under the power and jurisdiction of Mexico, and on April 25, 1838, a treaty was concluded, and in the same year ratified and proclaimed, between the United States and the Republic of Texas, by which the boundary as thus established was accepted by that Republic as binding (8 Stat. at L. 511); and that, under joint resolutions of Congress dated respectively March 1 and December 29, 1815 (5 Stat. at L. 797; 9 Stat. at L. 108), Texas was admitted in

ORIGINAL SUIT in Equity by the to the Union as a state, with "the terr

State of Oklahoma against the State of Texas to establish the true boundary line between those states. Boundary adjudged to follow the south

bank of the Red river.

The facts are stated in the opinion. Mr. S. P. Freeling, Attorney General of Oklahoma, argued the cause for the state of Oklahoma.

Mr. C. M. Cureton, Attorney General of Texas, and Mr. Thomas Watt Gregory argued the cause for the state of Texas.

Assistant Attorney General Garnett argued the cause for the United States. Messrs. Joseph Weldon Bailey and A.

tory properly included within and rightfully belonging to the Republic of Texas." That by act of Congress approved May 2, 1890, a temporary government was provided for a part of the territory adjoining said boundary on the north, now comprised in the state of Oklahoma, under the name of the territory of Oklahoma (chap. 182, 26 Stat. at L. 81), and that by § 29 (p. 93) the remaining part was designated as the Indian Territory; but that by § 25 (p. 92), in view of the existence of a controversy between the United States and the state of Texas as to the ownership of what was known as Greer county, described as "the tract of land lying between the North and South Forks of the Red river