[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.) Argued (with No. 96 ante, p. 460) Decem- 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 "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- labor or material shall be considered, unless 8. The findings of fact made in a case which [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 -And rendered judgment in favor of the ereased cost of the labor and material furnished by him, consisting of two items of $12,608.71 and $14,315.66. From this judgment the United States appealed to this court. Messrs. Louis A. Pradt, Assistant Attorney General, and Charles C. Binney for the appellant. Mr. John S. Blair for appellee. (323) *Mr. Justice Brewer delivered the opin ion of the court: No question is made except as to so much of the judgment as is for the increased cost of labor and material. The allowance for that is challenged under the clause of the act of 1890, "but 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 necessary by delay resulting from the action of the government aforesaid." The finding is that there was an advance in the price of labor and material during the contract term of eleven months, and that such increased price continued thereafter without material change during the sixteen months and seven days between the close of the contract term and the actual completion of the vessel. Of course, but for the act of August 30, 1890, no action could be maintained [324]against the "government. The statute of limitations would have been a complete defense. The petitioner's right, therefore, is measured, not by equitable considerations, but by the language of that statute. Beyond that the court may not go. If equitably the petitioner is entitled to more compensation, it must be sought by direct appropriation of further legislation of Congress. It seems to us clear that the court of claims was not permitted to consider any advance in the price of labor or material during the term named in the contract, to wit, eleven months. Evidently Congress thought that the contractor took the risk of such advance when he signed the contract. The contract term is one thing; the prolonged term another. if Congress intended to allow for all advances in the price of labor or material at any time between the execution of the contract and the completion of the work, the proviso quoted was unnecessary. The fact that the proviso discriminates as to the term, an advance during which entitles to allowance, is conclusive upon the question. There are no terms to be distinguished except the contract term of eleven months and the subsequent prolonged term of sixteen months and seven days. Of course, no change in the price of labor and material after the work was finished could have been considered, and if Congress intended to either permit or forbid an allowance for any advance in the price of labor and material during the entire progress of the work, it was easy to have said so. That it qualified such a general provision by limiting it to a particular term, and that term one created by the action of the government, excludes all doubt as to the meaning of the words "prolonged term." Obviously the petitioner himself understood that they refer to the period coinmencing at the time fixed in the contract for the completion of the work, for in his petition it is said that "during the term specified by the contract, and also through the prolonged term, there was a continuous rise in the prices of all labor and material entering into said vessel and machinery." He did not then doubt the meaning of the statute, and the only difficulty is that according to the findings of the all his allegations. We deem it unnecessary court of claims his proof did *not establish[325] of the various proceedings before Congress to to follow the investigation made by counsel see if there cannot be disclosed some unexpressed intent on its part to authorize payment for every advance in the cost of labor and material. The language of the act is too plain to justify such investigation. Attached to the record certified to us by the One other matter requires consideration: court of claims is a stipulation signed by the counsel for both parties, which stipulation commences in these words: parties to this cause that the following facts "It is hereby agreed by and between the appear in the records of the court of claims, and that they may be added to the record in this cause and be treated upon the hearing with the same effect as if they had been included in the facts found by the court of claims." the record of this case the proceedings of the This stipulation seeks to introduce into court of claims in another suit brought under the same act of 1890, by the same petifor the construction of a vessel other than tioner, to recover additional compensation the one described in the present suit, and this notwithstanding that this court is, at least in other than equity cases, limited to a consideration of the facts found by the court of claims. This additional record contains the findings of facts in that case, the conclusion and judgment, which was in favor of the petitioner, and states that such judg ment was not appealed from by either party. The tenth finding of fact reads as follows: "The cost to the contractor because of the enhanced price of labor and material which occurred during the prolonged term for completing the work is $61,571.67. Said prolonged term resulted from the delays of the The exercise of ordinary pru. defendants. dence and diligence on the part of the contractor would not have avoided said enhanced price of material and labor." The final clause in this stipulation of counsel seeks to explain this tenth finding in this way: "The $61,571.67 set forth in the tenth of the final findings in the Nauset case (see X[326] finding above) was composed of $24,634 enhanced cost after February 10, 1864, the expiration of the contract term for the constructon of the Nauset, and the remainder, $36,937.67, was enhanced cost of labor and material furnished by Donald McKay within the contract term (June 10, 1863, to February 10, 1864), but the court did not separate the allowance in its findings." Upon this the doctrine of res judicata i 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 [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 It may be well to refer to the several stat- "Sec. 2. That all lands, exclusive of tim- *The reasons which established and justi-[331] This difference in price was based, as will 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 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. |