Francisco, and in the manner provided in said act; and such designation was accepted by the United States.* Your orator alleges that said several parts of its map, filed as aforesaid, made and constituted the entire route or line of said Atlantic and Pacific Railroad Company, fully designating the whole thereof."

It was further averred that "on March 9, 1872, and on April 22, 1872, the secretary of the interior and the commissioner of the general land office, respectively, ordered all the odd sections of land within thirty miles on each side of said designated route of said Atlantic & Pacific Railroad Company reserved from sale and withdrawn"; that said Auantic & Pacific Railroad Company did construct and complete a portion of its road west of Springfield, Mo, in the time and manner required by said act, but did not at any time construct or complete any railroad west of the Colorado river; and that by the act of congress approved July 6, 1886, "all the lands and rights to lands theretofore granted and conferred upon said Atlantic & Pacific Railroad Company were forfeited, resumed and restored to entry for noncompletion of that portion of said railroad to have been constructed in California."

After alleging that the Southern Pacific Railroad Company was not the company of that name organized under certain articles of amalgamation and consolidation, dated October 11, 1870, and amended April 11, 1871, but was the now existing company of that name, and after setting out the twenty-third section of the act of congress of March 3, 1871, incorporating the Texas & Pacific Railroad Company (16 Stat. 573, c. 122), and granting lands to the Southern Pacific Railroad Company for the line therein described, the amended bill in the former suits proceeded: "Said Southern Pacific Railroad Company, the corporation which existed on April 3, 1871, as heretofore shown, pretended to accept said grant on April 3, 1871, and did on that day designate the line of its road by a plat thereof, which it filed in the office of the commissioner of the general land office; and thereupon the secretary of the interior ordered all the public lands in odd sections within thirty miles of such route to which no right or claim had attached to be withdrawn from market, and reserved. And your orator alleges that the Southern Pacific Railroad Company, which was organized and created on August 12, 1873, by the pretended articles of amalgamation and consolidation of said several railroad companies as heretofore set forth, did construct and complete a railroad from Tehachapi Pass, by way of Los Angeles, to the Colorado river, in the manner and within the time prescribed in said act of congress, in which the Southern Pacific Railroad Company, therein named, was authorized and empowered to do. And thereafter the commissloners appointed under said act for that purpose did unlawfully make and file their alleged acceptance of the whole of said railroad by sections. And there was not, and is not now, any railroad or part thereof constructed or

completed under said act or between said points otherwise than as aforesaid."

It was also alleged that "on the south side of said route of the Atlantic & Pacific Railroad Company, within 30 miles of said route, but also within 20 miles of the pretended designated route of the Southern Pacific Railroad Company, there was not on July 27, 1866, nor on March 12, 1872, nor on April 3, 1871, and is not now, enough public land in the odd sections to equal in amount ten alternate sections per mile of the line of road of said Atlantic & Pacific Railroad Company, within such limits, for that prior to said date of July 27, 1866, the Mexican government and the United States had sold, granted, reserved, and otherwise disposed of so great a quantity of land in those limits"; also, that "all of the said lands before described are situated on the south side of the said designated route of the Atlantic & Pacific Railroad Company, more than 20 miles but less than 30 miles therefrom, but are less than 20 miles from the said pretended designated route of said Southern Pacific Railroad Company."

The amended bill concludes by alleging that the defendants and either of them have no title or interest in or to the lands described, "for that said pretended patents under which defendants solely claim title were issued inadvertently, without authority, and were at their inception, and still are, each void and inoperative to pass title, and that said lands were never granted to said Southern Pacifices Railroad Company,* defendant herein, but are still owned by the plaintiff"; and that the secretary of the interior, on the 16th day of August, 1887, on behalf of the government, and in accordance with law, demanded of said company the relinquishment of its claim to all of the lands described in such patents, and a return of the patents, all of which that company refused to do.

The relief asked was a decree canceling the patents issued to the Southern Pacific Railroad Company, quieting the title of the government to the lands described therein, and enjoining that company from asserting or claiming any right or title thereto adversely to the United States.

The answer of the Southern Pacific Railroad Company, filed in the former suits December 30, 1889, shows its understanding as to what were the issues tendered by the government. From that answer these extracts are made:

"The defendant admits that, by and under said last-mentioned act of congress [July 27, 1866], the Atlantic & Pacific Railroad Company was created and organized, and did duly accept the provisions of the said law within the time and in the manner provided in said act; but it denies that said Atlantic & Pacific Railroad Company did designate the line of its route from Springfield, in the state of Missouri, to the Pacific coast, as required by said act.

"This defendant denies that on the 9th

March, 1872, or at or about any such time, the Atlantic & Pacific Railroad Company filed in the office of the commissioner of the general land office maps designating the line of its route, or otherwise in accordance with the law, and denies that on or about the 9th March, 1872, said Atlantic & Pacific Railroad Company filed four maps in the office of the commissioner of the general land office, as stated in said bill. Said company filed two maps, and claimed that they were filed for the purpose of locating parts or fragments of a line for its road in the state of California; but the defendant denies that said maps constituted a valid location of said road in California. Certified copies of said maps are annexed to the answer heretofore filed in this suit by this defendant, and marked 'Exhibit A, Nos. 1 and 2,' which, with the indorsements thereon, are now herein referred to, and made part of this answer; and this defendant says that said railroad was not located or attempted to be located on or about March 9, 1872, or at any such 'ime, in California, either in whole or in part, otherwise than as aforesaid by said maps. This defendant denies that the Atlantic & Pacific Railroad Company, by or through the filing of said maps, acquired the right to any lands of the United States lying opposite to the lines or route marked on said maps, and denies that said company acquired the right to select any public lands along said routes or lines as 'other lands' in lieu of sections within twenty miles that had been granted, sold, 'reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of' by the United States. These maps were sent to the general land office by the secretary of the interior, with a letter dated March 9, 1872, of which a certified copy is annexed to said answer heretofore filed, marked 'Exhibit B.'

"This defendant says that the lands mentioned in the amended bill herein lie opposite to the line of route marked on the said map, designated in said letter as 'No. 2' of a portion of the proposed road of the Atlantic & Pacific | Railroad Company; that is, a piece of road within the state of California, 'from a point on the western boundary line of Los Angeles county, California, to a point in township seven north, range seven east of San Bernardino meridian, in said state.' Neither when filed, in March, 1872, nor at any such time, did it appear that said map represented any part of a line that was, or was intended to be, conjoined to any other part located before that time for the Atlantic & Pacific Railroad.

"Further answering, this defendant says that the Atlantic & Pacific Railroad Company afterwards, viz. on the 13th day of August, 1872, filed in the department of the interior two other maps, which it claimed were intended to designate the line of other fragments or portions of its railroad in California. Certified copies of said maps, and of the letter of the secretary of the interior of April 16, 1874, in respect thereto, are annexed to the answer filed heretofore in this suit by this defendant,

marked 'Exhibit C, Nos. 1 and 2,' and are now herein referred to and made part of this answer. And this defendant denies that said maps constituted a valid location of the parts or fractions of road therein described, and denies that the four maps hereinbefore mentioned of four several parts of the road constituted a valid location of the said Atlantic & Pacific Railroad in California. And it denies that the said Atlantic & Pacific Railroad was ever in any otherwise lawfully located in the state of California. And the defendant says that there is nothing in or upon said maps to identify the same as the line of road mentioned in the said act of congress."

After referring to the eighteenth section of the act of July 27, 1866, and alleging that the construction of a railroad from the Colorado river to San Francisco was "expressly relegated and appropriated to this defendant," and that the Atlantic & Pacific Railroad Company was never authorized to construct any such line of railroad, or to acquire any lands by reason of or in respect of the construction or proposed construction of any such line, the answer of the Southern Pacific Railroad Company denied that "on or about March, 1872, the Atlantic & Pacific Company filed in the office of the commissioner of the general land office maps designating its route from the Colorado river to Springfield, in the state of Missouri," or that "said maps made altogether the line of railroad from Springfield, in the state of Missouri, to the Pacific coast, which was provided for and required by said act of congress of July 27, 1866, to be constructed and completed by the said Atlantic & Pacific Railroad Company," or "that the several parts of its map filed made and constituted the whole of its line as provided for in said act of congress"; that the parts of its map, "when taken together, showed a line terminating at San Francisco, which was not the terminus provided for by said act of congress." The answer also denied that on March 9, 1872, and April 22, 1872, or at any such times, the secretary of the interior and the commissioner of the general land office ordered all the odd sections of land within 30 miles on each side of the des-→ ignated route of the said Atlantic & Pacific Railroad Company reserved from sale and withdrawn; that about April 22, 1872, the commissioner of the general land office ordered lands withdrawn for 30 miles on each side of the parts of lines of route attempted to be located March 9, 1872, by the two maps hereinbefore mentioned as filed March 9, 1872, his orders being addressed to the register and receiver of the United States land office at San. Bernardino, Los Angeles, and Visalia, and were substantially as shown by the certified copy of the commissioner's letter of said date to the officers at Los Angeles; but the defendant de nied that the orders of April 22, 1872, had any effect whatever upon its rights and grants, and were intended only to take effect upon pub lic lands not reserved, sold, granted, or other

The defendant averred that "the lands involved in this suit had previously, on the 3d April, 1871, by the filing of the map of definite location of the defendant's railroad, been duly reserved from sale by and under the said 23d section of the act of congress of March 3, 1871, and the 6th section of the act of congress of July 27, 1866, which said sections are quoted in the bill of complaint herein; and avers also that said lands had been duly withdrawn from market, and appropriated for the use of this defendant by the order of the commissioner of the general land office to the register and receiver of the U. S. land office at Los Angeles, issued April 21, 1871, a copy of which is hereto annexed, marked 'R,' and made a part of this answer."

Admitting that the Atlantic & Pacific Railroad Company did construct and complete a portion of its road west of Springfield, Mo., in the time and manner required by said act, but averring that that company did not at any time construct or complete any railroad west of the Colorado river, the defendant averred that "on the 3d April, 1871, it designated the line of its said railroad, as described in said section 23, by a map thereof, filed in the office of the commissioner of the general land office, and thereupon the said commissioner ordered all the public lands in odd sections* within 30 miles of such route to be withdrawn from market (certified copy of the map filed by this defendant in the office of the commissioner of the general land office is annexed to the answer heretofore filed by this defendant marked 'Exhibit D,' and the same is now referred to and made part of this answer)"; that "it is the same railroad company that constructed the railroad provided for in the 23d section of said act of congress of March 3, 1871; and that it fully constructed and completed its road according to said act, and the construction thereof has been accepted and approved by the president of the United States, construction of the last mile of said road having been accepted by President Hayes on the 23d of January, 1878."

The Southern Pacific Railroad Company admitted in its answer that the line which the Atlantic & Pacific Railroad claimed to have located in California "crosses the line of the Southern Pacific Railroad located under the act of March 3, 1871," but alleged "that under and by virtue of said act of March 3, 1871, and the map of location filed on the 3d day of April, 1871, the lands described in said patent were reserved for and appropriated to this defendant, whose title thereto has become perfect and complete by the construction of its road as prescribed in said act," and that "the said Atlantic & Pacific Railroad Company's pretended line was not located until subsequent to the year 1871; that, when sought or pretended to be located, it was found to be on a wholly unauthorized route, not prescribed or permitted under any act of congress in relation to or af

pany."

The answer of the Southern Pacific Railroad Company, in the former cases, also contained these paragraphs:

"This defendant admits that on the south side of the pretended location of the Atlantic & Pacific road, and within 30 miles thereof, but also within 20 miles of the location of the Southern Pacific Railroad, there was not on April 3, 1871, and is not now, enough public lands in the odd sections to equal ten alternate sections per mile on each side of the pretended location of the line of the said Atlantic & Pacific Railroad Company within such limits; and this defendant admits that the above-described tracts of land are situated more than 20 miles and less than 30 miles from the line of the pretended location of the Atlantic & Pacific Railroad, and less than 20 miles from the said located line of the Southern Pacific Railroad.

"This defendant avers that said tracts of land have been granted by the 23d section of the act of March 3, 1871, to it, the Southern Pacific Railroad Company.

"This defendant admits that under date of March 29, 1876, April 4, 1879, and December 27, 1883, the patents were issued to this defendant for the lands hereinabove described, but denied that such patents were issued inadvertently or without authority. On the contrary, this defendant avers that said patents were issued with due deliberation, and in strict conformity with the law, and that the signatures of the president of the United States and the recorder of the general land office thereto were affixed fairly and properly and under the authority of law. This defendant here refers to the Exhibit 1, Nos. 1 and 2, annexed to its answer heretofore filed, and makes the same part of this answer.

"When the grant of lands was made to this defendant, March 3, 1871, and its grant was located, April 3, 1871, all the lands involved in this case were public lands of the United States."

To this answer a general replication was filed.

Joseph H. Choate, J. Hubley Ashton, and Chas. H. Tweed, for appellants. Asst. Atty. Gen. Dickinson and Joseph H. Call, for the United States.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The pleadings in the former suits show that the government based its claim to relief upon certain grounds that were distinctly controverted by the Southern Pacific Railroad Company. Those grounds were:

That the grant by congress of public lands to the Atlantic & Pacific Railroad Company was before the grant to the Southern Pacific Railroad Company.

That when the Atlantic & Pacific Railroad

Company designated its line by a plat thereof filed in the office of the commissioner of the general land office, as required by congress, it acquired an inchoate title to the lands granted; that is, a right to earn them and to obtain a complete title by construction of its road.

That the Atlantic & Pacific Railroad Company, by certain maps and plats filed in the office of the commissioner of the general land office in 1872, and fully identified both in the bill and answer (which maps were accepted by the interior department as adequate and valid), sufficiently designated, as required by the act of 1866, an entire line from San Francisco, via San Miguel Mission, Santa Barbara, San Buenaventura, and the Colorado river, to Springfield, Mo., so as to become entitled, as of the date of the grant of July 27, 1866, to earn the lands appertaining to the line so designated.

That the lands then in controversy appertained to the line of road, and were within the exterior lines of the route, so designated; were among the lands granted to the Atlantic & Pacific Railroad Company; and, in consequence of such designation, were withdrawn by the secretary of the interior from sale or pre-emption for the benefit of that company. And

That, the Atlantic & Pacific Railroad Company having failed to meet the conditions of the grant by constructing its road in California, the lands to which it had acquired an inchoate title by means of the accepted map designating its line were "restored to the public domain," under the above act of July 6, 1886 (24 Stat. 123, c. 637), and were not left, upon such statutory forfeiture, to be earned by the Southern Pacific Railroad Company under the junior grant.

The Southern Pacific Railroad Company controverted the material allegations of the government's bill and amended bill, and made defense upon these among other grounds:

That the only designation of a line or route ever made by the Atlantic & Pacific Railroad Company was one of an entire line from Springfield to San Francisco, and that it had no authority to establish, designate, or locate any such extended line.

That the maps of 1872 filed by the Atlantic & Pacific Railroad Company, which were referred to in the bill, and also made parts of the company's answer, were not sufficient* to identify any specific lands west of the Colorado river; were not, therefore, maps of definite location: and that that company never made any sufficient location or designation of a line in California, so that it could claim the lands in dispute under the grant made by the act of 1866.

That the lands in question were covered by the location made by the Southern Pacific Railroad Company under the act of congress granting lands to it, and were part of those withdrawn from sale and in its favor by the secretary of the interior. And

That, in any view, the right of the Southern

Pacific Railroad Company to those lands attached and became complete upon the forfeiture of the lands and rights granted to the Atlantic & Pacific Railroad Company; such forfeiture, it was claimed, not affecting the rights previously acquired by the Southern Pacific Railroad under the accepted maps of the definite location of its line, and under the withdrawal from sale of the lands appertaining to that line.

In the former suits it was conceded that if the maps filed by the Atlantic & Pacific Railroad Company in 1872 were valid maps of definite location, sufficiently identifying the lands granted to it, then the lands involved in those suits were within the overlapping limits of the two grants.

The learned counsel for the railroad company in those cases contended that, in order to show a conflict between the claims of the two companies to the particular lands then in controversy, the United States must show that the Atlantic & Pacific Railroad Company designated its route under the act of 1866, and that there was no proof of that fact "except that the Atlantic & Pacific Company from time to time filed certain fragmentary maps pretending to designate routes, and which, if connected, would not constitute a route such as the act of 1866 authorized it to select." This general point, counsel argued, resolved itself into three subsidiary questions, namely: "(1) Whether the Atlantic & Pacific Railroad Company ever designated its route; (2) whether such a designation, if made, operated, from the mere circumstance that the grant to that company was prior in time to that made to the Southern Pacific Company, to exclude the lands in the overlapping limits at the place of crossing from the latter grant; (3) whether, if such designation was made, the proviso in the 23d section of the above act of March 3, 1871, protecting the rights, 'present and prospective,' of the Atlantic & Pacific Company, was designed for any other purpose than to save to it any lands which it might eventually earn by a full performance of its undertaking."

Manifestly, the fundamental question in the former cases was whether the Atlantic & Pacific Railroad Company ever filed any such maps as the act of 1866 contemplated when declaring that the odd-numbered sections granted should be those on the line of the road to which the United States had full title, 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."

In those cases the circuit court denied the relief asked, and dismissed the bills filed by the United States. 39 Fed. 132; 40 Fed. 611; 45 Fed. 596; 46 Fed. 683. But this court reversed the judgment so rendered, holding:

That the grants to the Atlantic & Pacific and the Southern Pacific Railroad Companies

were in præsenti; that is to say, the route not being at the time determined, the grant was in the nature of a float, no title attaching to any specific sections until they were capable of identification.

That, when the granted lands were once identified by approved maps of definite location, the grants severally took effect by relation as of the dates of the respective acts of congress; the grant to the Atlantic & Pacific Railroad Company being prior in time to that made to the Southern Pacific Railroad Company.

That the Atlantic & Pacific Railroad Company did file maps of definite location in 1872, which were "received and approved by the land department as maps of definite location"; that then "the specific tracts were designated, and to them the title of the Atlantic & Pacific attached as of July 27, 1866"; that, "in fact, the line of definite location of the Atlantic & Pacific was established, and maps thereof filed and approved, before any action in that respect was taken by the Southern Pacific Company"; and that "there was never a time, therefore, at which the grant of the Southern Pacific could be said to have attached to these lands, and the plausible argument based thereon, made by counsel for the Southern Pacific Company, falls to the ground."

That the map filed by the Southern Pacific Railroad Company April 3, 1871, could not have been a map of definite location, but was "only of the general route, and there was then no designation of lands to which the Southern Pacific Company's title could attach."

That it was immaterial whether the map of definite location of the Southern Pacific road was filed and approved before or after April 11, 1872, "for, when filed, the grant could take effect by relation only as of March 3, 1871 [the date of the grant to it], and at that time, and for nearly five years theretofore, the title to these lands had been in the Atlantic & Pacific"; nor was it material that the act of 1871 "in terms purports to bestow the same rights, grants, and privileges as were granted to the Southern Pacific Railroad Company by the act of 1866," for that merely defined "the extent of the grant and the character of the rights and privileges" given, and did "not operate to make the latter grant take effect by relation as of the date of the prior grant and thus subject the giants to the two companies to the rule controlling contemporaneous grants, as established by St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, 5 Sup. Ct. 334, and Sioux City & St. P. R. Co. v. Chicago, M. & St. P. Ry. Co., 117 U. S. 406, 6 Sup. Ct. 790.” That, "even if congress had in terms expressed an intent to that effect in a subsequent act, it was not competent by such legislation to devest the rights already vested in the Atlantic & Pacific Company"; that the case, stating it in the best way for the railroad company, was one "of two companies with conflicting grants, each of whose lines of definite location has been

approved by the land department"; and that, "unquestionably, the grant older in date takes the land";

That whatever right or title was acquired by the Southern Pacific Railroad Company by its map filed April 3, 1871, was "absolutely displaced when the Atlantic & Pacific Company's map was filed"; that congress intended "no scramble between companies for the grasping of titles by priority of location, but that it is to be regarded as though title passes as of the date of the act, and to the company having priority of grant; and, therefore, that in the eye of the law it is now as though there never was a period of time during which any title to these lands was in the Southern Pacific"; so that, "whatever may have been the dates of the filing by the respective companies, the case stands as though the lands granted to the Atlantic & Pacific had been identified in 1866, and title had then passed, and there never was a title of any kind vested in the Southern Pacific Company." And

That, upon the forfeiture by congress of the rights granted to the Atlantic & Pacific Railroad Company, the lands to which its grant had attached upon the filing and acceptance of its map of definite location in 1872 did not inure to the benefit of the Southern Pacific Railroad Company; that, "if the act of forfeiture had not been passed by congress, the Atlantic & Pacific could yet construct the road, and that, constructing it, its title to these lands would become perfect"; that "no power but congress could interfere with this right of the Atlantic & Pacific"; that "congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited"; that "it enacted that they be restored to the public domain"; that "the forfeiture was not for the benefit of the Southern Pacific, it was not to enlarge its grant as it stood prior to the act of forfeiture," but was for the benefit of the United States, as shown by the act of congress declaring that the lands be restored to the public domain; consequently, that, by the act of forfeiture, "the title of the Atlantic & Pacific was retaken by the general government, and retaken for its own benefit, and not that of the Southern Pacific Company"; and that the lands belonged to the United States, and the Southern Pacific Railroad Company had "no title of any kind" to them. U. S. v. Southern Pac. R. Co., 146 U. S. 570, 607, 13 Sup. Ct. 152.

Touching the point made in the former cases, that the maps filed by the Atlantic & Pacific Railroad Company, designating a line from the Colorado river to San Francisco were inoperative by reason of the want of authority to construct a road to the latter city, the court said: "But it is urged by counsel for defendant that no map of definite location of line between the Colorado river and the Pacific ocean was ever filed by the Atlantic & Pacific or approved by the secretary of the interior. This contention is based upon these facts: The Atlantic & Pacific Company claimed that, under its charter,