be responsible, either to him or his employers, for the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, in the boats of the said company." This court held that the navigation company was not thereby exonerated from loss by fire arising from the negligence of that company or its servants, and the reasons for the decision were stated by Mr. Justice Nelson as follows: "The special agreement in this case, under which the goods were shipped, provided that they should be conveyed at the risk of Harnden, and that the respondents were not to be accountable to him or to his employers, in any event, for loss or damage. The language is general and broad, and might very well comprehend every description of risks incident to the shipment. But we think it would be going further than the intent of the parties, upon any fair and reasonable construction of the agreement, were we to regard it as stipulating for willful misconduct, gross negligence, or want of ordinary care, either in the seaworthiness of the vessel, her proper equipments and furniture, or in her management by the master and hands." "If it is competent at all for the carrier to stipulate for the gross negligence of himself and his servants or agents in the transportation of the goods, it should be required to be done at least in terms that would leave no doubt as to the meaning of the parties." 6 How. 383, 384. See, also, The Hornet, 17 How. 100; Transportation Co. v. Downer, 11 Wall. 129; The Syracuse, 12 Wall. 167; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 438, 9 Sup. Ct. 469.

In England, likewise, it has long been recognized as a settled rule that under a contract to carry goods, containing an exception such as of "breakage or leakage," or of "barratry of the master or mariners," or of "perils of the sea," there still rests upon the carrier, not merely the duty to carry the goods if not prevented by the excepted perils, but also the obligation that he and his servants shall use due care and skill, and shall not be negligent in carrying the goods. Phillips v. Clark, 2 C. B. (N. S.) 156; The Helene, L. R. 1 P. C. 231; Lloyd v. Colliery Co., 3 Hurl. & C. 284; Grill v. Colliery Co., L. R. 1 C. P. 600, L. R. 3 C. P. 476; Czech v. Navigation Co., L. R. 3 C. P. 14; Steel v. Steamship Co., 3 App. Cas. 72, 87, 88; Railway v. Brown, 8 App. Cas. 703, 709, 710; The Xantho, 12 App. Cas. 503, 510, 515.

The English case most resembling in its circumstances the case at bar is Leuw v. Dudgeon, briefly reported in L. R. 3 C. P. 17, note, and more fully in 17 Law T. (N. S.) 145, by which it appears to have been as follows: Cattle were shipped, some of them on deck, under a bill of lading containing these clauses: "Ship free in case of mortanty and from all damage arising from the act of God,

the queen's enemies, fire, accidents from machinery or boilers, steam, or other dangers of the seas, rivers, roadsteads, or steam navigation whatsoever." "The ship not liable for accident, injury, mortality, or jettison, whether shipped on deck or in the hold." On the vessel putting out to sea, she experienced fine weather, and the sea was smooth, but there was a ground swell, and after she had been out some time she suddenly rolled over on her beam ends; the cattle pens gave way, and the cattle fell over to the starboard side, and, in order to save the vessel, it was & necessary to throw those on deck overboard. It was held that, if the accident was owing to the vessel putting to sea with insufficient ballast, the owners were liable, notwithstanding the exemptions in the bill of lading, which included "jettison" as well as "accidents from dangers of the seas."

In that case, indeed (as in the case in this court of The Caledonia, above cited), the fault of the shipowner consisted in sending the ship to sea in an unseaworthy condition. But Mr. Justice Willes, who delivered the leading opinion, laid down the general rule that "the exceptions were intended to save the shipowner from liability for the effects of accident, and not to absolve him from the duty of exercising reasonable diligence." 17 Law T. (N. S.) 146. And he treated the case as coming within the principle of that rule as affirmed in the cases, above cited, of Phillips v. Clark and Grill v. Colliery Co., in the one of which the clause, "not to be accountable for leakage or breakage," and in the other the clause, "accidents or dangers of the seas, rivers, or navigation, of whatever nature or kind soever, excepted," was held not to cover a loss, otherwise within the exception, caused by the negligence of the master or crew. So, in Steel v. Steamship Co., above cited, Lord Blackburn said, in the house of lords, that in construing such exceptions in a bill of lading exactly the same considerations would arise as to the duty of the shipowner to furnish a ship really fit for the purpose as had been applied, in the series of cases of which Phillips v. Clark was the leading one, to the duty of himself and his servants to use due care and skill in carrying the goods.

In Notara v. Henderson, L. R. 7 Q. B. 225, 236, the court of exchequer chamber, in a considered judgment delivered by Mr. Justice Willes, held that the words "loss or damage arising from collision or other accidents of navigation occasioned by default of the master or crew, or any other accidents of the seas, rivers, and steam navigation, of whatever nature or kind, excepted," did not exempt the owner from negligence in omitting to take out and dry the cargo at a port of distress, because the authorities (specially mentioning Grill *v. Colliery Co., above cited), "and the reasoning upon which they are founded, are conclusive to show that the exemption is from liability for loss which could not have been avoided by reasonable care, skill, and dili

gence; and that it is inapplicable to the case of a loss arising from the want of such care, and the sacrifice of the cargo by reason thereof."

In Gill v. Railway, L. R. 8 Q. B. 186, the court of queen's bench, applying the same rule of construction, held that a provision in a contract for the carriage of cattle by railway, by which the railway company was not to be responsible for any loss or injury to the cattle "in the receiving, forwarding, or delivering, if such damage be occasioned by the kicking, plunging, or restiveness of the animal," did not relieve the company from liability for negligence of its servants in delivering a restive cow.

In Lloyd v. Colliery Co., 3 Hurl. & C. 292, above cited, Lord Bramwell said that the words, "accident or damage from machinery, boilers, steam," could not apply to an explosion caused by the willful act of the engineer.

The passages quoted by the respondent from Burton v. English, 12 Q. B. Div. 218, 220, 223, as showing that the words "on deck at owner's risk" exempt the carrier from liability for unlawful jettison, or for negligence of the master and crew, were obiter dicta; the only point decided being that those words did not exclude the right of the owner of the goods to recover in general average for a lawful jettison. See Ralli v. Troop, 157 U. S. 386, 396, 15 Sup. Ct. 657. The two other cases cited by the respondent were cases in which railway companies were held not to be responsible for the negligence of their servants under contracts essentially different from that now in question. One was an action by a passenger traveling as a drover accompanying cattle, under a free pass, one of the terms of which was that he should travel at his own risk. McCauley v. Railway, L. R. 8 Q. B. 57. The other was an action by a person who, knowing that the defendant had two rates of carriage,-a higher rate when it took the ordinary liability of a carrier, and a lower rate when it was relieved from all liability except that arising from the willful misconduct of its servants,-delivered goods to be carried at the lower rate, under a contract in which the only words defining the carrier's liability were "owner's risk." Lewis v. Railway, 3 Q. B. Div. 195.

Upon consideration of the conflicting testimony, with the aid of the careful arguments of counsel, no ground is shown for reversing or modifying the conclusions of fact reached by both courts below. Their concurrent decisions upon a question of fact are to be followed, unless clearly shown to be erroneous. Morewood v. Enequist, 23 How. 491; The Richmond, 103 U. S. 540, and cases cited; The Conqueror, 166 U. S. 110, 136, 17 Sup. Ct. 510.

By the facts so found, it appears that the cattle, for the loss of which a recovery has been permitted, were sound and uninjured ani18 S.C.-2

mals, forcibly thrown or driven overboard, in rough weather, by order of the master, from unfounded apprehension on his part, in the absence of any pressing peril to the ship, and with no apparent or reasonable necessity for a jettison of the sound cattle, and no attempt to separate them from those which had already been injured by perils of the sea.

The clauses of the bill of lading (other than the reference to British law) on which the respondent relies are those in the first paragraph, "on deck at owner's risk; steamer not to be held accountable for accident to or mortality of the animals, from whatever cause arising"; and those in the third paragraph, by which "it is also mutually agreed that the carrier shall not be liable for loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters"; "by barratry of the master or crew"; or "by collisions, stranding, or other accidents of navigation, of whatsoever kind, even when occasioned by the negligence, default, or error in judgment of the pilot, master, mariners, or other servants of the shipowner."

The bill of lading itself shows that all the cattle to be carried under this contract were to be on deck. The words "on deck at owner's risk" cannot have been intended by the* par-* ties to cover risks from all causes whatsoever, including negligent or willful acts of the master and crew. To give so broad an interpretation to words of exception inserted by the carrier, and for his benefit, would be contrary to settled rules of construction, and would render nugatory many of the subsequent stipulations of the bill of lading.

The wrongful jettison of the sound cattle by the act of the carrier's servants cannot reasonably, or consistently with the line of English authorities already cited, or with our own decisions, be considered either as an "accident to or mortality of the animals," or as a "loss or damage occasioned by causes beyond his control, by the perils of the sea, or other waters," or yet as a loss or damage "by collisions, stranding, or other accidents of navigation." There having been no collision, stranding, or other accident of navigation, there was nothing to which the only stipulation in the bill of lading against the consequences of negligence, default, or error in judgment of the master and crew could apply.

There was no barratry, because there was neither intentional fraud nor breach of trust, nor willful violation of law; one of which, at least, is necessary to constitute barratry. Insurance Co. v. Coulter, 3 Pet. 222; Lawton v. Insurance Co., 2 Cush. 500; Grill v. Colliery Co., above cited.

The facts of the case therefore do not bring it within any of the exceptions of the bill of lading, assuming them to be valid.

Decree affirmed.

(168 U. S. 1) SOUTHERN PAC. R. CO. et al. v. UNITED STATES.

(October 18, 1897.)

No. 71.

RES JUDICATA-CONCLUSIVENESS OF PRIOR ADJUDICATION PLEADING-RAILROAD LAND GRANTS.

1. A right, question, or fact distinctly put in issue, and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and, even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified.

2. In a suit by the United States to quiet title against a land-grant railroad company and its grantees, where the rights of the parties depend upon the question whether certain maps filed with the secretary of the interior by another land-grant railroad company were maps definitely locating the line of its route, a prior adjudication of this question in favor of the government in a suit between the same parties involving other lands appertaining to the same line of road is conclusive, where it is clear that the question was material, was put in issue by the pleadings, and was actually decided in such former suit.

3. A decision on a question of title to lands is conclusive in a subsequent suit between the same parties in respect to other lands, when the lands in both suits have a common source of title, and the title depends upon the existence or nonexistence of a fact directly adjudicated in the former case.

4. Where a second suit between the same parties involves a different cause of action, which depends, however, upon the existence or nonexistence of a fact in issue, directly adjudicated in the first suit, the judgment in that suit is not an absolute bar, but is only evidence upon the issue as to the existence of that fact, and hence may be introduced without being specially pleaded as an estoppel.

5. In a suit by the United States to quiet title to lands formerly granted to a railway company, and now alleged to have been forfeited to the government, it was distinctly alleged in the bill, and as distinctly denied by defendant, that certain maps filed by the railroad company sufficiently designated the line of the road. Subsequently it was decided in another suit between the same parties, and involving other lands appertaining to the same line of road, that these maps were sufficient as maps of definite location. Thereupon defendant amended its pleadings by inserting averments that the location by the railroad company "never was or became an actual or definite location," but was only "an attempted or pretended designation of a general route," etc., and was "a colorable and fraudulent location or designation of an unauthorized and impracticable line." Held, that these amendments were unnecessary, since the defendant, under its original answer (if not estopped by the former judgment), could have introduced any evidence tending to show want of any valid definite location, and that the maps in question were accepted only as indicating the general route; hence the making of these amendments did not render it necessary, under Equity Rule 45, for the government to amend its bill by specially pleading the former adjudication as an estoppel, in order to avail itself thereof.

6. If a former judgment between the same parties, which has not been specially pleaded, is admissible in evidence at all, it is as conclusive of the matters put in issue, and actually determined by it, as if it were specially pleaded as an estoppel.

7. Where a prior judgment between the same parties would, under the settled rule of res judiata, operate as an estoppel in respect to a certain

fact, the court will not be justified in re-examining that matter by any new evidence in respect to it, which is merely cumulative upon the one side or the other.

Appeal from the Circuit Court of Appeals of the United States for the Ninth Circuit. This suit was brought to obtain a decree? quieting the title of the United States to a large body of lands in California, acquired under the treaty of Guadaloupe Hidalgo.

These lands, it is stated by counsel, aggregate about 700,000 acres, 61,939 acres of which have heretofore been patented to the Southern Pacific Railroad Company, and for 72,000 acres of which that company has made application for patents. They are thus described in the bill filed by the United States: "All the sections of land designated by odd numbers in townships three and four north, ranges five, six, and seven west; township one north, ranges sixteen, seventeen, and eighteen west; township six and the south three-fourths of township seven north, ranges eleven, twelve, thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, and nineteen west; all sections designated by odd numbers, as shown by the public surveys, embraced within the townships from number two north to number five north, both numbers included, and ranges from number eight west to number eighteen west, both numbers included, except sections twenty-three and thirty-five in township four north, range fifteen west, and except sections one, eleven, and thirteen in township three north, range fifteen west; also the unsurveyed lands within said area which will be designated as "odd-numbered sections when the public surveys according to the laws of the United States shall have been extended over such townships,-all of the aforesaid lands being surveyed by San Bernardino base and meridian."

The government suggests that the greater portion of these lands have been set apart under authority of the act of congress of March 3, 1891 (26 Stat. 1095, 1103, c. 561, § 24), and by the proclamation of the president of the United States of December 20, 1892 (27 Stat. 1049), as a public reservation.

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 U. S. v. Southern Pac. R. Co., 146 U. S. 570, 13 Sup. Ct. 152, and U. S. v. Colton Marble & Lime Co. and U. S. v. Southern Pac. R. Co., 146 U. S. 615, 13 Sup. Ct. 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 States insists that in the former cases the 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 (14 Stat. 292, c. 278), 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.

This position of the government makes it necessary to ascertain what was in issue and what was determined in the *former cases. Did the former adjudication have the scope attributed to it by the United States? If it did, the decision of the present case will not be difficult.

It is necessary to a clear understanding of the question just stated that we should first look at the provisions of the several acts of congress relating to the Atlantic & Pacific and Southern Pacific Railroad Companies, and which were referred to and construed in the former cases.

The Atlantic & Pacific Railroad Company was incorporated by the act of congress approved July 27, 1866 (14 Stat. 292, c. 278), with authority to construct and maintain a line of railroad and telegraph from a point at or near Springfield, Mo., to the western boundary line of that state; thence by the most eligible railroad route, to be determined by the company, to the Canadian river; thence to Albuquerque, on the river Del Norte; thence, by way of Agua Frio or other suitable pass, to the headwaters of the Colorado Chiquito; thence along the thirty-fifth parallel of latitude, as near as might be found most suitable for a railroad route, to the Colorado river, at such point as might be selected by the company for crossing; and "thence, by the most practical and eligible route, to the Pacific." Section 1. In aid of the construction of that line, congress granted every oddnumbered section of public land (not mineral) to the amount of 20 alternate sections per mile on each side of such line as the company might adopt through any territory of the United States, and 10 alternate sections per mile on each side of the line through any state, to which the United States had full title, and not reserved, sold, granted or otherwise appropriated, and free from pre-emption or other claims or rights, "at the time the line of said road is designated by a plat thereof filed in the office of the commissioner of the general land office." Section 3.

Section 4 made provision for patents to be issued to the company for lands opposite to and coterminous with each section of 25 miles

of road, completed in a good, substantial, and workmanlike manner.

It was also provided that the president of the United States should cause the lands to be surveyed for 40 miles in width*on both sides of the entire line after the general route was fix ed, and as fast as the construction of the railroad required; that the grants, rights, and privileges specified in the act of congress were given and accepted subject to the conditions that the company would commence work within two years from the approval of the act, complete not less than 50 miles per year after the second year; construct, equip, furnish, and complete its main line by July 4, 1878; and if the company made any breach of the conditions imposed, and allowed the same to continue for upward of one year, then, at any time thereafter, the United States could do any and all acts and things needful and necessary to insure a speedy completion of the road. Sections 6, 8, and 9.

By the eighteenth section of the act, the Southern Pacific Railroad Company, a California corporation, was authorized to connect with the Atlantic & Pacific Railroad at such point, near the boundary line of the state, as it deemed most suitable for a railroad line to San Francisco; and to have a uniform gauge and rate of freight or fare with that 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 and Pacific Railroad herein provided for."

The twentieth section provided that the better to accomplish the object of the act, "namely, to promote the public interest and welfare by the construction of said railroad and telegraph line, and keeping the same in working order, and to secure to the government at all times, but particularly in time of war, the use and benefits of the same for postal, military and other purposes, congress may, at any time, having due regard to the rights of said Atlantic and Pacific Railroad Company, add to, alter, amend or repeal this act."

The legislature of California, by an act approved April 4, 1870, authorized the Southern Pacific Railroad Company to change the line of its road so as to reach the eastern boundary of the state by such route as the company should determine to be the most practicable. And by joint resolution passed June 28, 1870, congress declared that that company might construct its road and telegraph line, as near as might be, on the route indicated by the map filed by that company in the department of the interior on the 3d day of January, 1867; 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 27th, 1866, 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 coterminous to each constructed section reported on as aforesaid, to the extent and amount granted to said company by the said act of July 27th, 1866, expressly saving and reserving all the rights of actual settlers, together with the other conditions and restrictions provided for in the third section of said act." 16 Stat. 382.

By an act approved March 3, 1871, congress incorporated the Texas Pacific Railroad Company, and made to it a grant of public lands. And by the twenty-third section of that act it was provided "that for the purpose of connecting the Texas Pacific Railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado river, with the same rights, grants and privileges, and subject to the same limitations, restrictions and conditions as were granted to said Southern Pacific Railroad Company of California by the act of July twenty-seven, eighteen hundred and sixty-six: provided, however, that this section shall in no way affect or impair the rights, present or prospective, of the Atlantic and Pacific Railroad Company or any other railroad company." 16 Stat. 572, $579, c. 122.

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.

The Atlantic & Pacific Railroad Company built part of its road east of Colorado river, but did not construct any line west of that river or in California.

In consequence of such failure, congress, by the act of July 6, 1886 (24 Stat. 123, c. 637), provided "that all the lands, excepting the right of way and the right, power and authority given to said corporation to take from the public lands adjacent to the line of said road material of earth, stone, timber and so forth, for the construction thereof, including all necessary grounds for station buildings, workshops, depots, machine shops, switches, side tracks, turntables and water stations, heretofore granted to the Atlantic and Pacific Railroad Company by an act of congress entitled, 'An act granting lands to aid in the construction of railroad and telegraph lines from the states of Missouri and Arkansas to the Pacific coast,' approved July 27th, 1866, and subse quent acts and joint resolutions of congress, which are adjacent to and coterminous with the uncompleted portions of the main line of said road, embraced within both the granted and the indemnity limits, as contemplated to be

constructed under and by the provisions of the said act of July 27th, 1866, and acts and joint resolutions subsequent thereto and relating to the construction of said road and telegraph, be, and the same are hereby, declared forfeited and restored to the public domain."

In execution of that act, the United States, in 1889, commenced suits in the circuit court of the United States for the Southern district of California, for the purpose of quieting its title to various tracts of land, aggregating about 5,342 acres, and claimed by the Southern Pacific Railroad Company and by other corporations and individuals asserting title under that company. In one of those suits, the Southern Pacific Railroad Company, and D. O. Mills and Garrett L. Lansing, trustees under a mortgage executed by that company on the 1st day of April, 1875, and Joseph Youngblood, were made* defendants. In the other, the same company and trustees, together with the City Brick Company, Thomas Goss, Edward Simmons, and A. A. Hubbard, were defendants.

These are the cases reported in 146 U. S. 570, 615, 13 Sup. Ct. 152, 163.

The issues presented by the government in the former suits are fully shown by an amended bill filed therein November 22, 1889. After referring to the organization of the Southern Pacific Railroad Company, and to the act of congress of July 27, 1866, it proceeds: "Your orator alleges that, by and pursuant to said act of congress, the Atlantic & Pacific Railroad Company was created and duly organized, and on November 23, 1866, within the time and in the manner provided in said act, accepted said grant, and did designate the line of its route from Springfield, Missouri, to the Pacific, by maps and plates thereof, which it filed in the office of the commissioner of the general land office in manner following, to wit: On or about March 9, 1872, said company filed in the office of the commissioner of the general land office maps designating the line of its route, and showing the general features of the country and | vicinity, as follows: First, from San Francisco to San Miguel Mission, in California; second, map of its route from San Miguel Mission, via Santa Barbara and San Buenaventura, to a point in township 2 south, range 17 west, San Bernardino base and meridian, in California; third, map of its route from said point last mentioned to a point in township 7 north, range 7 east, San Bernardino base and meridian, in California; fourth, map of its route from said point last named to the Colorado river. And thereafter, on or about March, 1872, said company filed in said office, as aforesaid, its several other maps, designating its route from said point last named to Springfield, in the state of Missouri, making altogether a continuous line, designating its entire route, and showing the general features of the country from said town of Springfield, Missouri, by way of the points named in said act of congress of July 27, 1866, to the Pacific, at San Buenaventura, and from there to San