191 U. S.

Argument for Plaintiff in Error.

the Utah courts on authority of Redfield v. Parks, supra. Salt Co. v. Tarpey, 124 U. S. 241, apparently overruled R. R. Co. v. Prescott, 16 Wall. 603, but the latter case was reaffirmed in Ankeny v. Clark, 148 U. S. 345, and Wisconsin R. R. Co. v. Price County, 133 U. S. 496, does not hold that the legal title to the land passed to the railroad company prior to a patent from the United States.

See Northern Pacific Ry. v. Townsend, 190 U. S. 267, that mere filing of map is inconsistent with the power in an individual to acquire any part of the land granted until the patent has issued. Barden v. Northern Pacific R. R. Co., 154 U. S. 288, either overrules Salt Co. v. Tarpey, supra, or limits it to. the particular case. And see Corrinne Co. v. Johnson, 156 U. S. 574. Langdeau v. Hanes, 21 Wall. 521, has no bearing on this case.

Section 21, act of July 2, 1864, providing for payment of cost of surveying before the issuing of the patent has been construed in Railway Co. v. Prescott, 16 Wall. 603; Railway Co. v. McShane, 22 Wall. 444; Northern Pacific Railroad v. Traill County, 115 U. S. 600; Ankeny v. Clark, 148,U. S. 345; and it has invariably been held that a railroad company, notwithstanding the fact that it has filed its map of definite location, does not acquire a legal title to the land until it has paid the cost of surveying, selecting and conveying the same.

There is no evidence in this case that the survey has been paid for or that the land was ever surveyed. The cases supra are not limited by Cent. Pac. R. R. Co. v. Nevada, 162 U. S. 512. No title was acquired by simply filing its map of definite location.

The 4th section of the act of July, 1862, provides that patents shall issue conveying the right and title to said land.

The right to assert adverse possession against the grantee of the government prior to the issue of a patent was not in anyIway considered or decided in the case of Deseret Salt Co. v. Tarpey, 142 U. S. 241..

The title (if any) acquired by the Railroad Company at the

Argument for Defendants in Error.

191 U. S.

time of filing its map of definite location was a conditional fee and of such a character that the defendants in error could not acquire the land by limitation, as the United States still had an interest therein.

As to how a Federal question may be set up so as to enable this court to take jurisdiction, see Home for Incurables v. City of New York, 187 U. S. 155; Parmelee v. Lawrence, 11 Wall. 36; Dewey v. Des Moines, 173 U. S. 193; Meyer v. Richmond, 172 U. S. 82.

Mr. B. H. Jones for defendants in error submitted:

Defendants established their defence under the statutes of limitations proving that adverse possession for a period exceeding thirty years had operated to transfer the plaintiff in error's title. No Federal question is presented. Carpenter v. Williams, 9 Wall. 785; no question is raised as to the validity or operative effect of an act of Congress, the defence being the statute of limitations only. McStay v. Friedman, 2 Otto, 723; Romie v. Casanova, 1 Otto, 379; Elmendorf v. Taylor, 10 Wheat. 153.

The withdrawal of all odd sections between Wyoming and Monument taking effect in May, 1862, is evidence that the definite location had preceded it. Newhall v. Sanger, 92 U. S. 762; Moffatt v. United States, 112 U. S. 30.

The recitals in the patent showed that the line of the railroad from Ogden to Sacramento had been constructed and fully completed and equipped prior to November 3, 1869.

The title to the lands in dispute vested in the Railroad Company by virtue of the Pacific Railroad grants. It is no longer an open question that it was a grant in presenti and that the title vested upon that date.

No one but the government can raise the lien question. That a grant may be made by a law as well as a patent pursuant to a law has been settled by the repeated decisions of this court. Ryan v. Carter, 3 Otto, 78; Langdeau v. Hanes, 21 Wall. 521. In 1868 the sections granted became susceptible of identifica

tion, and the title then attached as of the date of the grant. Salt Co. v. Tarpey, 142 U. S. 241.

Ever since the definite location of this railroad ejectment suits have been brought upon the legal title to the land granted by the Pacific Railroad Acts without regarding the patent. Corrinne Mill Canal & Stock Co. v. Johnson, 156 U. S. 574; Deseret Salt Co. v. Tarpey, 142 U. S. 241; Tarpey v. Madsen, 178 U. S. 215.

As a matter of history, the only title to all the lands covered by the cities and towns and homestead and preemption claims in Utah between Wyoming and Nevada is that which arises by virtue of the statute of limitations. Forrester v. Scott, 92 California, 398; Jatunn v. Smith, 95 California, 154; S. P. R. R. Co. v. Whitaker, 109 California, 268.

This action for the land in dispute was commenced before the issuance of a patent. The property having been held and possessed adversely to such legal title for thirty-two years before the commencement of the action. Under section 2861 Rev. Stat. Utah, 1898, the burden of proof was on the plaintiff in error. Tyler on Ejectment, 867; Gréen v. Hawkins, 19 How. 69..

There is no evidence in this case showing an ouster, or an entry, or seizin or possession in plaintiff or its grantors since October 20, 1868, as required by section 2859, Rev. Stat. Utah, 1898. United States v. Chaves, 159 U. S. 452; United States v. Devereaux, 90 Fed. Rep. 182.

MR. JUSTICE MCKENNA, after stating the case as above, delivered the opinion of the court.

The case is in narrow compass. The question presented is whether adverse possession under claim of right for the period prescribed by the statute of limitations of Utah before patent was issued by the United States can prevail against the latter. It has been decided by this court that adverse possession of land gives title to it and all of the remedies which attach to the

title. This was expressly ruled in Sharon v. Tucker, 144 U. S. 533. The suit was a bill in equity to establish as matter of record a title acquired by adverse possession, and it was brought against those who but for such acquisition would have been the owners. Mr. Justice Field, speaking for the court, said:

"It is now well settled that by adverse possession for the period designated by the statute, not only is the remedy of the former owner gone, but his title has passed to the occupant, so that the latter can maintain ejectment for the possession against such former owner should he intrude upon the premises. In several of the States this doctrine has become a positive rule, by their statutes of limitations declaring that uninterrupted possession for the period designated to bar an action for the recovery of land shall, of itself, constitute a complete title. Leffingwell v. Warren, 2 Black, 599; Campbell v. Holt, 115 U. S. 620, 623." See also Shelly v. Guy, 11 Wheat. 361.

Adverse possession, therefore; may be said to transfer the title as effectually as a conveyance from the owner; it may be considered as tantamount to a conveyance. And the Central Pacific Railroad Company had the title. Salt Co. v. Tarpey, 142 U. S. 241. It would seem, therefore, an irresistible conclusion that it could have been transferred by any of the means which the law provided. It is, however, contended otherwise, and Ankeny v. Clark, 148 U. S. 345; Barden v. Northern Pacific R. R. Co., 154 U. S. 288, and Nelson v. Northern Pacific Ry. Co., 188 U. S. 108, are urged to support the contention. A comparison of those cases with Salt Co. v. Tarpey becomes

necessary.

Salt Co. v. Tarpey was an action of ejectment. Tarpey was the plaintiff in the trial court. He relied for his title upon a lease from the Central Pacific Railroad Company, and it became necessary to consider the nature of the Congressional grant to that company. The issue made was direct and unmistakable, and the decision was equally so. The plaintiff contended that the grant vested in the company the legal title. It was asserted on the other hand that the title to the land was

retained until the cost of selecting, surveying and conveying all the granted lands was paid, and, also, that by other provisions of the granting act the title remained in the government until patent issued. Both contentions were rejected. The court said that the terms of the grant "import the transfer of a present title, not one to be made in the future. They are that 'there be and is hereby granted' to the company every alternate section of the lands. No partial or limited interest is designated, but the lands themselves are granted, as they are described by the sections mentioned. Whatever interest the United States possessed in the lands was covered by those terms, unless they were qualified by subsequent provisions, a position to be presently considered." Those provisions were considered, and it was determined that they did not qualify the terms of the grant conveying the title or essentially limit them. Anticipating the question that if such be the import of the act, what was the necessity of patents, it was said, there were many reasons why the issue of patents would be of great service to the patentees. "While not essential to transfer the legal right the patents would be evidence that the grantee had complied with the conditions of the grant, and to that extent the grant was relieved from the possibility of forfeiture for breach of its conditions. They would thus be in the grantee's hands deeds of further assurance of his title, and, therefore, a source of quiet and peace to him in its possession." And the conclusion. was that the title transferred was a legal title, as distinguished from an equitable and inchoate interest. The distinction expressed the completeness of the title conveyed.

Ankeny v. Clark was an action for the recovery of the value of 12,767 bushels of wheat, which had been delivered by Clark to Ankeny in pursuance of a contract by which Ankeny agreed to sell and deliver to Clark two sections of land in Walla Walla County, in what was then the Territory of Washington. After the delivery of the wheat Clark demanded a deed for the land. Ankeny, after some delay on one pretext or another, informed Clark that he could have a warranty deed to a part of the land,