grant, and, if not, to recover the lands certified or patented thereunder, does not constitute an adjudication which will bar a second suit by the United States to cancel patents issued under the same grant, on the ground that the lands thereby conveyed were not within the grant, where there is no issue in the second suit which was litigated in the first.

In Equity. Suit by the United States to cancel certain certificates and patents to lands issued under a grant to aid in the construction of a wagon road. On pleas and demurrer to cross bill.

John H. Hall, U. S. Dist. Atty.

Dolph, Mallory, Simon & Gearin and Britton & Gray, for California & Oregon Land Co.

BELLINGER, District Judge. On July 2, 1864, congress granted to the state of Oregon, to aid in the construction of a wagon road from Eugene City, across the Cascade Mountains, to the eastern boundary of the state, alternate sections of public land, designated by odd numbers, for three sections in width on each side of such road. 13 Stat. 355. Prior to this act, on March 25, 1864, congress passed an act authorizing the president to conclude a treaty with the Klamath, Modoc, and Snake Indians, in Southeastern Oregon, for the purchase of the country occupied by them. 13 Stat. 37. In pursuance of this authority a treaty was concluded on October 14, 1864, with the head men of the Modoc and Snake Indian tribes. This treaty was ratified by the senate on July 2, 1866, with two amendments, consisting of mere verbal corrections, in no wise affecting the sense of the treaty; but the amendments resulted in a second convention with the Indians, held December 10, 1869. The senate amendments were ratified at this convention, and the treaty was proclaimed by the president February 17, 1870. By this treaty the Indian tribes ceded to the United States all their right, title, and claim to the country then occupied by them, with this proviso:

"Provided, that the following described tract, within the country ceded by this treaty, shall, until otherwise directed by the president of the United States, be set apart as a residence for said Indians, [and] held and regarded as an Indian reservation, to wit: Beginning upon the eastern shore of the Middle Klamath Lake, at the Point of Rocks, about twelve miles below the mouth of Williamson's river; thence following up said eastern shore to the mouth of Wood river; thence up Wood river to a point one mile north of the bridge at Fort Klamath; thence due east to the summit of the ridge which divides the Upper and Middle Klamath Lakes; thence along said ridge to a point due east of the north end of the upper lake; thence due east, passing the said north end of the upper lake, to the summit of the mountains on the east side of the lake; thence along said mountain to the point where Sprague's river is intersected by the Ish-tish-ea-wax creek; thence in a southerly direction to the summit of the mountain, the extremity of which forms the Point of Rocks; thence along said mountain to the place of beginning." 16 Stat. 708.

The treaty provided for annual money payments to be made to the Indian tribes, extending over a period of 15 years. It further provided for the payment for such articles as might be advanced to the Indians at the time of the signing of the treaty, for their subsistence during the first year after their removal to the reservation, the pur

chase of teams, farming implements, tools, seeds, clothing, and provisions, and for the payment of the necessary employés. It was fur ther provided that the United States would erect, at suitable points. on the reservation, as soon as practicable after the ratification of the treaty, saw and flouring mills, suitable buildings for the use of a blacksmith, carpenter, and wagon and plow maker, buildings for one manual labor school, and such hospital buildings as might be necessary, and that it would keep these buildings in repair at the expense of the United States for the term of 20 years. Article 6 of the treaty provided as follows:

"The United States may, in their discretion, cause a part or the whole of the reservation provided for in article 1 to be surveyed into tracts and assigned to members of the tribes of Indians, parties to this treaty, or such of them as may appear likely to be benefited by the same, under the following restrictions and limitations, to wit: To each head of a family shall be assigned and granted a tract of not less than forty nor more than one hundred and twenty acres, according to the number of persons in such family; and to each single man above the age of twenty-one years a tract not exceeding forty acres. The Indians to whom these tracts are granted are guaranteed the perpetual possession and use of the tracts thus granted and of the improvements which may be placed thereon; but no Indian shall have the right to alienate or convey any such tract to any person whatsoever, and the same shall be forever exempt from levy, sale, or forfeiture: provided, that the congress of the United States may hereafter abolish these restrictions and permit the sale of the lands so assigned, if the prosperity of the Indians will be advanced thereby: and provided further, if any Indian, to whom an assignment of land has been made, sball refuse to reside upon the tract so assigned for a period of two years, his right to the same shall be deemed forfeited."

On the 24th of October, 1864, the state transferred the grant of lands provided for in the act of congress to the Oregon Central Military Road Company, a corporation incorporated under the laws of Oregon, for the purpose of taking the grant and building the road in question. By the wagon-road grant it was provided, in effect, that, when the governor of the state should certify to the secretary of the interior that any 10 continuous miles of said road were completed, a quantity of land, not exceeding 30 sections, might be sold by the company, and so on from time to time until said road was completed. On the 26th of December, 1866, congress passed an indemnity grant, extending 3 miles beyond the limits of the original grant on either side of the line of the proposed road. On the 27th of July, 1866, the governor of the state certified to the completion, in accordance with the requirements of the act of congress and the laws of Oregon, of the first continuous 50 miles of road, beginning at Eugene City. Thereafter, and on November 26, 1867, the governor of the state certified to the completion of the second section of the road for a distance of 421 miles, and extending to Crescent Lake, in the valley of the Des Chutes. On the 17th of March, 1869, a map of the general route of the road over the Indian reservation, provided for in the treaty, to the eastern boundary of the state, was filed. The route thus located enters the reservation at its north boundary, continues thence south until near the south boundary, when it turns eastward and leaves the reservation, after traversing it for a distance of more than 60 miles, as shown by the following map:

There was a supplementary map of such location filed on the 28th of February, 1870, but this was merely for the purpose of correcting certain unimportant errors in the map first filed, and is of no importance in the case.

The land department, acting upon the assumption that the location of the company's road over the reservation made the grant effective as well within the limits of the reservation as without, certified such lands as inuring to the company under its grant, and in some instances upon these certificates patents have issued. There were also certified and patented to the company lands without the reservation and indemnity limits of the road grant. To cancel these certificates and patents, this suit is brought against the California & Oregon Land Company, which company has succeeded to the title of the Oregon Central Military Road Company through conveyances made in 1874 to B. J. Pengra, and by Pengra and wife to Colby and others, promoters and organizers of the California & Oregon Land Company, to which company, upon its organization, Colby and his associates conveyed the title so held by them. A number of persons, purchasers of parcels of the lands in suit from the latter company, were made defendants in the suit, but as to these the bill has been dismissed upon the motion of the attorney for the United States. To the bill of complaint the defendant company has filed a double plea, fortified by its answer, setting up the defense of a former adjudication in this court of the matters involved in this suit, and that of bona fide purchase for value, without notice. The defendant road company also files its cross bill, praying that the United States, its officers and agents, be restrained and enjoined from proceeding to make allotments of the reserved lands among the Indians, or issuing to any of them any patent of any kind or character, and from placing in such Indians any possession of any of the lands, as it threatens to do, in compliance with the sixth article of the treaty in question.

The questions presented are: Did the grant of July 2, 1864, attach to the lands reserved to the Indian tribes under the treaty of October 24, 1864, and so defeat the reservation, and destroy the Indian right of occupancy provided for in the treaty, and theretofore existing? If not, and such right of occupancy still exists, has the legal title rightfully vested in the defendant company, subject to such right of occupancy, and is the company entitled to an order restraining the proposed allotment of these lands in severalty among members of the Indian tribes? Is the defendant company entitled to the protection of a bona fide purchaser? And is the government precluded in the prosecution of this suit by the adjudication had in the suit of the United States against the defendant to have a forfeiture of its grant decreed?

As to the first question, it is contended for the company that the grant of July 2, 1864, was a present grant, and was at once effective, so as to make any disposition of any land of the class described in the granting act unlawful, without reference to the time when the road was located or its map of route was filed, and that in any event the treaty with the Indian tribes did not take effect until proclaimed by the president on the 13th of February, 1870, and that the road grant

attached to the land in question by the location of its route and the construction of its road in 1869, if it had not done so prior thereto. It is true that congress may dispose of any part of the public domain to which the Indians' right of occupancy has not been extinguished, subject to that right. But, unless the grant is of a specific character, it must be presumed that congress does not intend to dispose of such portions of this domain as it may become necessary, in treating with the Indian tribes, to concede to their permanent use. There can be no treaty of cession without some reservation somewhere for this purpose. This reservation may, of course, be without the ceded territory; but this does not affect the question, since land grants are so common throughout the new country that no locality can altogether escape them, especially where the grants are floating ones. In this case the land-grant act prescribed no route for the proposed road, beyond the most feasible pass in the Cascade Mountains, near Diamond Peak. From this point it only required that the road should continue to the eastern boundary of the state. There were two other wagonroad grants through the wide domain known as "Eastern Oregon," passed July 5, 1866, and February 25, 1867; while on the west side. of this range of mountains a railroad land grant, extending from Portland to the southern boundary of the state, reached across the valleys of the Willamette, Umpqua, and Rogue rivers, 30 miles in width, on either side of the Oregon & California Railroad, into the Cascade range, upon the one hand, and the Coast range, on the other. There were still other grants, not necessary to be mentioned in this connection.

Under such circumstances, one of two things is inevitable: The government could, in the pursuit of its "ancient and honored policy," establish in the territory subject to these floating grants permanent Indian reservations, leaving enough available lands to satisfy the grants, or else its sovereign authority in dealing with the Indian tribes could only be exercised in conformity with the interests and wishes of its grantees in these grants. There is not in such cases, as there was not in this case, any impairment of the grant. The reservation in question was directly south, and distant some 30 miles, from the point where the road crossed the Cascade Mountains. Enough lands remained without the reservation to satisfy the grant many times over. The reservation appears not to have been an obstacle in the road's way. It is suggestive that the line of route adopted by the road company, as stated by Indian Agent Dyar in a letter attached to the report of a committee of congress, referred to in the argument in this case, "runs diagonally through the whole length of the Klamath reservation, a distance of sixty miles or more, traversing the very best portions of the same,-in fact, is so located as to embrace within the limits of the six miles in breadth more than one-half of all the land upon the reserve suitable for cultivation or for winter grazing." To satisfy the claims of the road company, it must be held that the road grant, until the filing of its map of route east of the Cascade Mountains, five years after the granting act was passed, covered all of the then undisposed of public domain, and that until the convenience or interest of the road company prompted the location of its line the power of the United