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 When the grant was made by the act of a settler was involved and the lands and resolution it was thought that the available for indemnity were not suffiindemnity limits, as therein defined, cient to supply the losses. By reason of contained lands largely in excess of this insufficiency it was ruled that the what would be required to supply losses lands in the indemnity limits necessarily within the place limits, and hence the pro- were appropriated to satisfy the losses, vision in § 6 under which, as construed and that no selection was required. by the land officers and this court, all The court said, p. 19: "As to the oblands in the indemnity limits were to be jection that no evidence was produced and remain subject to the operation of of any selection by the Secretary of the the Pre-emption and Homestead Laws, Interior from the indemnity lands to save as the odd-numbered sections make up for the deficiencies found in should be taken out of their operation the lands within the place [66] limits, it 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 to satisfy all the losses. 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. 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 tion-tract for tract-of the losses on 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 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 report, in the absence of any confirmwhat was intended by the grant, it was atory action by the Secretary, cannot not admissible for the government to be taken as sufficiently establishing 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). 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 those sections, or (b) the route of this the case was heard does not show that road and that of another with a prior the Department has determined the land grant were found to be upon the question, nor that it has refused to do same general line, in which event a so, but only that the question was not stated deduction was to be made from considered when this patent was issued, the amount of land granted to this comthe withdrawal being then inadvertent-pany. There would be no right to inly overlooked. In these circumstances, demnity as respects the moiety not into entitle either party to have the ques- cluded, nor as [69] respects the lands retion determined in this suit, the facts quired to be deducted. Either of those shown should make its right solution conditions, if existing, would affect the quite plain, for the decision might con- measure of the grant, and would have clude both parties for all time, as re- to be considered in determining whethspects other lands as well as those in er there was a deficiency. The stipulasuit. Southern P. R. Co. v. United tion does not show the presence or the States, 168 U. S. 1, 48, 42 L. ed. 355, absence of either condition, and the 376, 18 Sup. Ct. Rep. 18. Of course, the matter is not one of which courts take company is entitled to have the question judicial notice. Therefore the actual considered and decided somewhere, and, situation, whatever it may have been, if the deficiency be established, is en- should have been shown. As this was titled to have the selection of these not done, neither party is entitled to lands sustained. A third of a century have the question whether there was a 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 2 1 Southern P. R. Co. v. United States. 183 U. S. 519, 525, 46 L. ed. 307, 311, 22 Sup. Ct. Rep. 154; Sioux City & St. P. R. Co. v. United States, 159 U. S. 349, 364, 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 construction 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. boundary suit. and Turning to the published decisions of the Land Department, we find that in Hessey v. Northern P. R. Co. 43 Land Dec. 302, the Secretary distinctly declared that the grant was so far deficient that many losses within the place limits must remain unsatisfied, therefore that compliance with a provision that indemnity selections be made from lands nearest the line of the road was no longer required. But as that finding apparently related to the situation existing December 9, 1909, it cannot be taken as showing that there was a deficiency almost six years before, when the temporary withdrawal now in question was made. The situation may have changed materially in the meantime, for doubtless large numbers of homestead entries were being made within the indemnity limits every year. We conclude that the decrees below must be reversed and the suit remanded to the District Court with directions (a) to accord the parties a reasonable opportunity, on a further hearing, to supplement and perfect the showing made in the present record, if either or both are so disposed; (b) if the parties avail themselves of that opportunity, to proceed to an adjudication of the suit upon the record as thus supplemented; and (e) if the parties do not avail them selves of that opportunity, to enter a decree canceling the patent without prejudice to the right of the company to have the question of the asserted deficiency [70] in the grant determined by the Land Department, and to have the present selection sustained and given full effect if the grant was deficient when the temporary withdrawal was made. Decree reversed. STATE OF OKLAHOMA, Complainant, V. STATE OF TEXAS, Defendant. UNITED STATES OF AMERICA, Inter vener. (See S. C. Reporter's ed. 70-93.) Note.-On conclusiveness of judgments, generally- -see notes to Sharon v. Terry, 1 L.R.A. 572; Bollong v. Schuyler Nat. Bank, 3 L.R.A. 142; Wiese v. San Francisco Musical Fund Soc. 7 L.R.A. 577; Morrill v. Morrill, 11 L.R.A. 155; Shores v. Hooper, 11 L.R.A. 308; Bank 1. The Federal Supreme Court has original jurisdiction over a suit in equity brought by the United States against one of the states, to determine the boundary between such state and a territory of the United States. [For other cases, see Supreme Court of the United States, 120-140, in Digest Sup. Ct. 1908.] - jurisdiction Federal Supreme Court - parties boundary suit. 2. That the Federal Supreme Court has jurisdiction over the parties to a suit brought by the United States against one of the states, to determine the boundary between such state and a territory of the United States, is obvious where the suit was brought in behalf of the United States, in pursuance of an act of Congress, a bill of complaint and an amended bill were filed, to each of which the state demurred and also answered, the United States filed a replication, and both parties introduced evi[For other cases, see Supreme Court of the dence and participated in the hearing. United States, 126-140, in Digest Sup. Ct. 1908.] Judgment privies. - res judicata parties and 3. A question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery or defense in a suit or action between parties sui juris is conclusively settled by the final judgment or decree therein, so that it cannot be further litigated in a subsequent suit between the same parties or their privies, whether the second suit be for the same or a dif ferent cause of action. [For other cases, see Judgment, III. k, 1, in Digest Sup. Ct. 1908.] 4. In a subsequent suit between the same parties or their privies, but upon a different cause of action, the question whether the matter decided on the former occasion was within the issues then proper to be decided, or was presented and actually determined in the course of deciding those issues, is open to inquiry, and unless it be answered in the affirmative, the matter is not res judicata. - res judicata parties and [For other cases, see Judgment, III. k, 1, in Digest Sup. Ct. 1908. ] Judgment privies. 5. What is involved and determined in a former suit between the same parties or their privies, but upon a different cause of action, is to be tested by an examination of United States v. Beverly, 11 L. ed. U. S. 76; Johnson Co. v. Wharton, 38 L. ed. U. S. 429, and Southern P. R. Co. v. United States, 42 L. ed. U. S. 355. On judicial settlement of state boundaries-see note to Nebraska v. Iowa, 36 L. ed. U. S. 798. of the record and proceedings therein, in- H. Carrigan argued the cause for the [For other cases, see Judgment, III. k, 1, in Digest Sup. Ct. 1908.] Judgment res judicata issues 6. Land south of the middle of the 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 South Fork of the Red river cannot be of the Red river from the 100th degree bill. [For other cases, see Judgment, III. 1, 4, in 7. A final decree of the Federal Su- homa and Texas, that the true boundary [For other cases, see Judgment, III. k, 1, in [No. 23, Original.] Argued December 14 and 15, 1920. De ORIGINAL SUIT in Equity by The facts are stated in the opinion. state of Oklahoma. at L. 252), between the United States of the to the Union as a state, with "the terr- 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. 256 where the Indian Territory and the state of Texas adjoin, east of the 100th degree of longitude," it was provided that the act should not apply to that county until the title thereto had been adjudicated and determined to be in the United States; and, in order to provide for a speedy and final judicial determination of the controversy, the Attorney General [83] was authorized and directed to commence in the name and behalf of the United States, and prosecute to a final determination, a suit in equity in this court against the state of Texas; that accordingly, at the October term, 1895 (1890), the Attorney General of the United States filed in this court an original bill against the state of Texas to determine whether the territory embraced within the then county of Greer was in the state of Texas or within the territory and exclusive jurisdiction of the United States; that, after a full hearing of said cause, this court found, decided, and decreed that the territory east of the 100th meridian of longitude, west and south of the river now known as the North Fork of Red river, and north of a line following westward, as prescribed by the Treaty of 1819, the course and along the south bank, both of Red river and of the river now known as the Prairie Dog Town Fork, or South Fork of Red river, until such line meets the 100th meridian of longitude, constitutes no part of the territory properly included within or rightfully belonging to Texas at the time of the admission of that state into the Union, and was not within the limits nor under the jurisdiction of that state, but was subject to the exclusive jurisdiction of the United States of America (162 U. S. 1, 90, 91); and that afterwards, under act of Congress approved June 16, 1906 (chap. 3335, 34 Stat. at L. 267), the inhabitants of the area constituting the territory of Oklahoma (including said Greer county) and the Indian Territory were admitted into the Union as the state of Oklahoma. ary between the United States and Texas at any point; and setting up a counterclaim and other matters not necessary to be here repeated. The United States, by leave of the court, intervened, and by its petition of intervention set up an interest as trustee of Indian allottees with respect to certain portions of the bed of the Red river, and as owner in its own right of a large part of the bed and of numerous islands therein; and supported the contentions of the state of Oklahoma as to the location of the boundary line by the true construction of the Treaty of 1819, and as to the effect of the final decree in United States v. Texas. At the same time it was brought to the attention of the court that, because of the recent discovery and development of oil and gas deposits in the bed of the river adjacent to Wichita county, Texas, serious conflicts had arisen between parties claiming title from the state of Texas and others claiming title from the state of Oklahoma, or under the mineral laws of the United States; and that there was danger of the exhaustion of the deposits of oil and gas pending the determination of the questions at issue between the parties to the cause, and danger of armed conflict between rival claimants under them; and thereupon, on motion of the United States, concurred in by the state of Oklahoma, and consented to by the state of Texas, as to lands claimed in its proprietary capacity, we appointed a receiver to take possession of that part of the river bed lying between mid-channel and the south bank, and within the disputed oil field. Pending the receivership, by order of June 7, 1920, made pursuant to the suggestion of the parties, we set the cause down for hearing at the present term upon two questions of law, with leave to take testimony pertinent to the purpose. 253 U. S. 471, 64 L. ed. 1017, 40 Sup. Ct. Rep. 580. [85] The testimony was taken and returned, a hearing has been had, and the matter is now to be decided. The state of Texas appeared in the present suit and filed an answer deny- The questions are as follows: "(1) Is ing that the Treaty of 1819 fixed the the decree of this court in United States boundary at the south bank of the Red v. Texas, 162 U. S. 1, 40 L. ed. 867, 16 river; asserting, on the contrary, that Sup. Ct. Rep. 725, final and conclusive the treaty, by its legal meaning and ef- upon the parties to this cause in so far fect, fixed it in the middle of the main as it declares that, the Treaty of 1819 channel of that river; denying that the between the United States and Spain effect of the decree in the case of United fixed the boundary along the south bank States v. Texas was to determine that of Red river? (2) If said decree is not the south [84] bank of Red river, or of conclusive, then did the Treaty of 1819, the Prarie Dog Town Fork or South construed in the light of pertinent pubFork of that river, constituted the bound-lic documents and acts, fix the boundary |
