[321]

BELLINGHAM BAY IMPROVEMENT COMPANY, that date. On account of changes and addi

Piff. in Err.,

v.

CITY OF NEW WHATCOM.

SAME

v.

SAME.

(See S. C. Reporter's ed. 320.)
[Nos. 97, 98.]

Argued (with No. 96 ante, p. 460) Decem-
ber 16, 1898. Decided January 3, 1899.

Messrs. W. W. Dudley, L. T. Michener, and John B. Allen for plaintiff in error in both

cases.

No counsel for the defendant in error. These cases involve the same questions, and the same judgments of affirmance will be entered in them.

UNITED STATES, Appt.,

v.

tional work required by the government, and
other details for which it was responsible,*[322}
the completion of the vessel was delayed from
July 22, 1864, to November 29, 1865, a period
of sixteen months and seven days beyond the
contract term. Full payment of the contract
price was made, and also of an additional
sum for changes and extra work. On Au-
gust 30, 1890, Congress passed an act (26
Stat. at L. 1247) submitting to the court of
claims the claims of the executors of Donald
McKay for still further compensation. Such
act contains this proviso:

"Provided, however, That the investigation of said claim shall be made upon the following basis: The said court shall ascertain the additional cost which was necessarily incurred by the contractors for building the light-draught monitors Squando and Nauset and the side-wheel steamer Ashuelot in the completion of the same, by reason of any changes or alterations in the plans and specifications required and delays in the prosecution of the work: Provided, That such additional cost in completing the same, and such changes or alterations in the plans and specifications required, and delays in the prosecution of the work were occasioned by

EDWARD P. BLISS, Executor of Donald the government of the United States; but no McKay, Deceased.

(See S. C. Reporter's ed. 321-326.) Additional compensation under government contract-res judicata findings of fact. 1. An advance of prices during the term of the

contract cannot be allowed to a claimant un-
der an act of Congress providing for ad-
ditional compensation to him for additional
cost caused by changes or alterations re-
quired by the government, but declaring that
no allowance for any advance in the price of

labor or material shall be considered, unless
such advance occurred during the prolonged
term for completing the work, rendered nec-
essary by delay resulting from the action of
the government.
2. A prlor judgment cannot be used as res
judicata without pleading or proof of what
was decided by the court in the case in which
the judgment was rendered.

8. The findings of fact made in a case which
are set up as res judicata cannot be changed
by stipulation

[No. 394.]

allowance for any advance in the price of labor or material shall be considered unless such advance occurred during the prolonged term for completing the work rendered necessary by delay resulting from the action of the government aforesaid, and then only when such advance could not have been avoided by the exercise of ordinary prudence and diligence on the part of the contractors."

Under this act this suit was brought. Upon the hearing the court of claims, in addition to the facts of the contract, performance, time of completion and payment, found

that

"During the contract period of eleven months, and to some extent during the succeeding sixteen months and seven days, the government made frequent changes and alterations in the construction of the vessel and delayed in furnishing to the contractor the plans and specifications therefor, by reason of which changes and delay in furnishing plans and specifications, the contractor, with out any fault or lack of diligence on his part, could not anticipate the labor, nor could he know the kind, quality, or dimensions of ma-[323]

Submitted December 12, 1898. Decided Jan- terial which would be made necessary to be

uary 3, 1899.

APPEAL from a judgment of the Court of Claims in favor of Edward P. Bliss, Executor of Donald McKay, deceased, against the United States for the increased cost of labor and material in the construction of a gunboat. Reversed, and case remanded with directions.

Statement by Mr. Justice Brewer: On August 22, 1863, Donald McKay contracted with the United States for the construction of the gunboat Ashuelot, the contract to be completed in eleven months from

used in complying with said changes.

"While the work was so delayed during

and within the period of the contract as
aforesaid the price of labor and material
greatly increased, which increased price
thereafter continued without material change
until the completion of the vessel sixteen
months and seven days subsequent to the ex-
piration of the contract period. The in-
creased cost to the contractor as aforesaid
was by reason of the delays and inaction of
the government and without any fault on
his part."

-And rendered judgment in favor of the
petitioner for, among other things, the in-

See same case below, 32 Ct. Cl. 147.

invoked to uphold the judgment. A suffi- |manded, with directions to enter a judgment cient answer is that neither by pleadings nor for the defendant. evidence were the proceedings in this other case brought before the court of claims in the present suit. If a party neither pleads Statement by Mr. Justice Brewer: nor proves what has been decided by a court On August 2, 1890, the appellee, William of competent jurisdiction in some other case F. Ingram, applied to the local land office at between himself and his antagonist, he can- Salt Lake City, Utah, under the desert land not insist upon the benefit of res judicata, act of March 3, 1877 (19 Stat. at L. 377, chap. and this although such prior judgment may 107), to reclaim and enter a tract of land have been rendered by the same court. containing 236.55 acres. The land so sought Southern Pacific Railroad Co. v. United to be reclaimed and entered was a part of an States, 168 U. S. 1 [42: 355], suggests noth-even-numbered section of lands within the ing contrary to this, for there the prior judgment was offered in evidence, and the only question considered and decided by this court was the effect of an alleged failure to fully plead res judicata.

limits of the grant to the Union Pacific Railway Company. The entry was approved by the local land office; the claimant paid the sum of $118.28, being 50 cents per acre, the preliminary payment thereon, and received an ordinary certificate of entry. He failed, however, to reclaim the land by conducting water on to it, as provided by the desert land act, and abandoned his entry, which, on December 19, 1895, was canceled. Thereafter this suit was brought to recover the money which he had paid to the local land officers. The court of claims, while expressing an opinion, on a demurrer to the petition, adversely to the contention of the petitioner (32 Ct. Cl. 147), finally entered a decree in his favor, from which decree the United

But further, not only did the petitioner fail to either plead or prove the former judgment, but also the record when produced disclosed that the court found that the advance in price was during the prolonged term. Counsel propose by stipulation to change that finding so as to make it show that part of the sum named therein was for the advance during the contract term, and the other part for the advance during the prolonged term. In other words, counsel seek without pleading or proof to use a prior judgment as res judicata, and also by stipula-States appealed to this court. tion to change the findings of fact which were made in that case. It is clear this cannot be done.

Messrs. George Hines Gorman and Louis A. Pradt, Assistant Attorney General, for appellant.

The judgment of the Court of Claims will be reversed, and the case remanded to that Messrs. Russell Duane, Harvey Spaldcourt with directions to enter a judgment foring, and E. W. Spalding for appellee. the claimant, less the two amounts of $12,608.71 and $14,815.66, the increased cost of labor and material.

UNITED STATES, Appt.,

V.

WILLIAM F. INGRAM.

(See S. C. Reporter's ed. 327-334.)

*Mr. Justice Brewer delivered the opin-[328] ion of the court:

The contention of the appellee is that no valid entry can be made under the desert land act of land within the place limits of a land grant to railroad corporations; that therefore the attempted entry was absolutely void, and that if he had fully complied with the provisions of that act he could not have acquired a good title to the lands entered; that he was therefore justified in abandon

Desert land act-recovery of money paid for ing the entry which he had attempted to

entry of public lands.

1. Valid entries can be made under the desert
land act, of land within the place limits of
a land grant to railroad corporations.
2. One who voluntarily abandons a valid
try of public lands under the desert land act
cannot recover back the money which he paid
to the local land officers to initiate it.

[No. 82.]

make; that the government had received money which it had no right to receive, and was under an implied obligation to return it -an obligation which could be enforced by action in the court of claims. His main reen-liance is on United States v. Healey, 160 U. S. 136 [40: 369], but the singular fact is that in that case a title by patent to an even-numbered section within the limits of a railroad land grant acquired under the desert land act was not questioned, and a claim of the patentee to recover the differ

Argued December 9, 1898. Decided January ence between $2.50 per acre, which he had

A

8, 1899.

PPEAL from a judgment of the Court of Claims in favor of the claimant, William F. Ingram, for the recovery from the United States of money which he had paid to the local land officers under the desert land act to initiate his entry, the entry having been afterwards abandoned. Reversed, and case re172 U. S. U. S., Book 43.

30

paid in accordance with the statute in respect to railroad land grants, and $1.25 which he insisted was all he was required to pay under the desert lana act, was rejected. Counsel for appellee pick out a sentence or two in the opinion in that case, and severing them from the balance, insist that this court decided that land within the place limits of a railroad land grant is wholly removed from

465

[327]

the operation of the desert land law, as much | so as if it had already been conveyed to a private owner, and conclude that, being so wholly separated from the reach of that law, an attempted entry thereunder is absolutely void, and may be abandoned by the entry-Six hundred and forty acres could be taken man at any time. It seems a little strange to have this contention pressed upon us in view of the fact that a patent for lands within a railroad land grant was not disturbed by that decision, and a claim to recover an excess payment was repudiated. Nowhere [329]in the opinion is there an intimation that the patentee did not acquire a perfect title, no suggestion that the whole proceeding was void and the land patented still the property of the government, or even that it had the right to maintain a suit to set aside the patent as a cloud upon its title. And certainly if the title conveyed by the patent was absolutely void, then the patentee had paid, not only the half which he sought to recover, but the entire purchase money for nothing, and should at least have been allowed to recover the half which he sued for.

lamation, and permitted the entry of not
exceeding 640 acres. The only substantial
advantages of an entry under the desert land
act over an ordinary pre-emption were in the
amount of land and the time of payment
under the one, and only one hundred and
sixty under the other. The price was the
same, but under the one only twenty-five
cents per acre was payable at the time of the
entry, and the balance was not required un-
til, at the end of three years, the reclamation
was complete; while under the other the en-
tire $1.25 was payable at the time of the en-
try. These advantages were offered to in-
duce reclamation of desert and arid lands.
Now, it is a well-known fact that along
the lines of many land-grant railroads are
large tracts of arid lands-desert lands with-
in the very terms of the statute. Indeed,
nearly every transcontinental line runs for
long distances through these desert lands.
Did Congress act on the supposition that no
inducement was necessary to secure the rec-
lamation of the arid public lands within
the place limits of those grants? Do not the
reasons for legislation in respect to lands re-
mote from railroads have the same potency
in respect to lands contiguous thereto? If
Congress had intended to exclude lands with-
in the place limits of railroads from the
scope of this act would it have said "any
desert land," or defined "desert lands" as
broadly as it did by section 2, which reads:

It may be well to refer to the several stat-
utes of Congress. The general policy in re-
spect to railroad grants, expressed in the
many statutes making such grants, and finally
carried into the Revised Statutes in section
2357, is that while the ordinary price of pub-
lic lands is $1.25 an acre, "the price to be
paid for alternate reserved lands, along the
line of railroads within the limits granted
by any act of Congress, shall be $2.50 per
acre." One hundred and sixty acres might
be pre-empted at that price, or eighty acres
homesteaded. Rev. Stat. § 2289. In other
words, Congress, in no manner limiting eith-
er the right of pre-emption or homestead,
simply declared that these alternate reserved
lands should be considered as worth $2.50
instead of $1.25, the ordinary price of pub-tract of land may be situated."
lic lands. All appropriations by individuals
were based upon that valuation, but the
right to appropriate was in no manner
changed. The reason for this addition to
the price of alternate reserved sections with-
in a railroad grant has been often stated by
this court, and is referred to in the opinion
in United States v. Healey, supra. It is that
a railroad ordinarily enhances the value of
contiguous lands, and when Congress grant-
ed only the odd sections to aid in the con-
struction of one it believed that such con-
struction would make the even and reserved
sections of at least double value.

"Sec. 2. That all lands, exclusive of tim-
ber lands and mineral lands, which will not,
without irrigation, produce some agricultural
crops, shall be deemed desert lands within
the meaning of this act, which facts shall
be ascertained by proof of two or more cred-
ible witnesses under oath, whose affidavits
shall be filed in the land office in which said

*The reasons which established and justi-[331]
fied the policy of double price for the former
apply as fully to lands which had to be re-
claimed before they could be cultivated as
to lands which needed no reclamation. Con-
tiguity to the railroad is the same fact in
each. The significance of this was recog
nized in the Healey Case. Indeed, the whole
controversy in that case was as to the matter
of price, and grew out of the fact that after
the passage of the desert land act the Inte-
rior Department at first ruled that its effect
was to reduce the price of even sections with-
in railroad place limits, entered under it,
from $2.50 to $1.25 an acre, while in 1889 a
change was made in its rulings, and it was
thereafter held that the act worked no such
reduction. Secretary Noble, in Tilton's Case,
decided March 25, 1889 (8 Land Dec. 368,
369), said, and his language was quoted in
our opinion:

This difference in price was based, as will
be perceived, solely on the matter of location,
and not at all upon any distinction in the
character or quality of the land, and the
difference in price was the only matter that
distinguished between an entry of lands
[330]within and those without the place limits of
a railroad. Such being the general policy of
"Under such construction, section 2357 of
the government in respect to public lands, the Revised Statutes and the desert land act
Congress in 1877 passed the desert land act. do not conflict, but each has a separate and
This act, while limited in its operation to appropriate field of operation; the former,
certain states and territories, in terms ap-regulating the price of desert lands reserved
plied to "any desert land" within them. It to the United States along railway lines;
provided for reclamation by irrigation, gave and the latter, the price of other desert lands
three years in which to accomplish such rec- not so located. There is nothing in the na-

ture of the case which renders it proper that desert lands be made an exception to the general rule any more than lands entered under the pre-emption laws. Lands reserved to the United States along the line of railroads are made double minimum in price because of their enhanced value in consequence of the proximity of such roads. Desert lands subject to reclamation are as much liable to be increased in value by proximity to railroads as any other class of lands, and hence the reason of the law applies to them as well as to other public lands made double minimum in price. To hold desert lands an exception to the general rule regulating the price of lands reserved along the lines of railroads would be to make the laws on this subject inharmonious and inconsistent."

the entire opinion, manifestly was intended
*to mean no more than that the desert land[333]
act was not applicable in the matter of price
to the reserved sections within a railroad
land grant. This conclusion appears also in
the last paragraph above quoted, where we
say that "lands such as those here in suit,
although within the general description of
desert lands, could not properly be disposed
of at less than $2.50 per acre." Not that
they could not be disposed of at all under the
desert land law, but only not at the price
fixed by that law.

The same conclusion appears subsequently, when, reviewing the act of 1891, it was held that it had no effect upon the price of lands entered before its date, our language being

of the act of 1891, were left by the latter act -at least as to the price to be paid for the lands entered-to be governed by the law in force at the time the entry was made. So far as the price of the public lands was concerned, the act of 1891 did not change, but expressly declined to change, the terms and conditions that were applicable to entries made before its passage. Such terms and conditions were expressly preserved in respect of all entries initiated before the pas sage of that act." 160 U. S. 149 [40: 374].

Other rulings of the land department were "We are of opinion that cases initiated eited, in no one of which was there any de- under the original act of 1877, but not comnial of the right to enter lands along a rail-pleted, by final proof, until after the passage road under the desert land law. It was after these citations that the language referred to [332]by counsel was used. *That language must be interpreted in view of the fact that the only contention was as to the price. It means simply that the court did not consider the desert land act applicable as a whole and solidly to the reserved sections along a railroad so as to subject them to all its provisions. In other words, the desert land act did not supersede and destroy the proviso of section 2357 in reference to a double price for such reserved sections. We closed the discussion in reference to this matter in these words: "Giving effect to these rules of interpretation, we hold that Secretaries Lamar and Noble properly decided that the act of 1877 did not supersede the proviso of section 2357 of the Revised Statutes, and therefore did not embrace alternate sections reserved to the United States by a railroad land grant.

"It results that prior to the passage of the act of 1891 lands such as those here in suit, although within the general description of desert lands, could not properly be disposed of at less than $2.50 per acre. Was a different rule prescribed by that act in relation to entries made previously to its passage?" 160 U. S. 147 [40: 373].

The first of these paragraphs is one of the sentences referred to by counsel and quoted in their brief. In it we do say "that Secretaries Lamar and Noble properly decided that the act of 1877 did not embrace alternate sections reserved to the United States by a railroad land grant," but the full meaning of that language is disclosed only when we replace the omitted words "did not supersede the proviso of section 2357 of the Revised Statutes, and, therefore." And when we turn to what Secretaries Lamar and Noble decided, we find that they ruled, not that lands within the place limits of a railroad land grant could not be entered under the desert land law, but simply that they could not be entered for the price named in that law, $1.25 per acre, but were subject to the general provision of double price. The other sentence referred to by counsel is similar, and, while taken literally and disconnectedly, may give some countenance to their contentions, yet, when read in the light of

We may remark in passing that the entry in this case was before the act of 1891, and therefore, under the language just quoted, it is unnecessary for us to notice any of its provisions.

It follows from these considerations that if the petitioner Ingram had fully complied with the terms of the desert land act he could, by the payment of $2.50 an acre, have acquired title to the lands he sought to enter. Voluntarily abandoning his entry, he has no cause of action for the sum which he paid to initiate it. There is nothing in Frost v. Wenie, 157 U. S. 46 [39: 614], which conflicts with this conclusion, for there the decision simply was that lands which Congress held under a trust to sell for the benefit of Indians could not be given away under the homestead law, and hence that such law must be limited, in its application to the[334] Fort Dodge reservation, to such lands as were not covered by the trust.

The judgment of the Court of Claims is reversed, and the case remanded to that court, with directions to enter a judgment for the defendant.