Los Angeles herald., 1891-06-25
The Southern Pacific Con-
firmed in its Title.
Decisions of Judges Sawyer
and Ross.
The Atlantic and Pacific Failed to
Earn its Landed Subsidy.
An Able Opinion Prepared by the Dis
trict Judge and Concurred in by
Judge Sawyer-OyerIap
ping Grants.

banc in the United States circuit court,
handed down opinions on Monday in
two cases of the United States against
the Southern Pacific company, dismiss
ing the actions brought 10y the plaintiff
to quiet title, but granting the govern
ment the right of an appeal to the su-
preme court. The opinions reach the
same conclusion through a somewhat
different course of reasoning, and deal
with questions not heretofore ruled
upon. For that reason, and because OF
the great interest which the residents of
this section take in the settlement of
the old railroad grants, Judge Ross's
decision is printed in full, as follows:
The suits are brought to quiet the
complainants' alleged title to certain
lands and to enjoin defendant from as
serting or claiming any title thereto.
The lands are claimed by the defendant
by virtue of the act of congress of March
Sd, 1871, entitled "An act to incorporate
the Texas Pacific railroad company ,and
to aid in the construction of its road,
and for other purposes. "(16 U. S. stats,
573.) By the 23d section of that act it
was provided as follows:
THAT for the purpose of connecting
the Texas Pacific railroad with the city
of San Francisco, the Southern Pacific
railroad company of California is here
by authorized (subject to the laws of
California; to construct line
of railroad from point at or
near Tehachape 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, restric-
ii ons and conditions as were granted to
said Southern Pacific railroad company
of California by the act of July 27, 1866:
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"
The evidence in the case shows that
the defendant company accepted this
grant, and ON the Sd of April, 1871, filed
in the office of the commissioner of the
general land Office, a plat showing the
definite location of the road it was there
by authorized to build, and proceeded
to build it and completed its construc
tion, to the satisfaction of the govern
ernment, in January, 1878. 1t thereby
earned the lands embraced by the grant
to it. The point that the present
Southern Pacific railroad company is not
the same Southern Pacific railroad COM
pany to which the act of March 3D., 1871,
applied, was decided against the gov
ment in the recent cases of the United
States VS.. Southern Pacific railroad COM
pany ct al, and United States VS.. Col
ton Marble and Lime company ct al,
Fed. Rep. of May 10, 1891, page 596.
The reasons for SO holding were given at
length in the opinions then rendered
and need not now be repeated.
1t is admitted that the lands in con-
troversy in the present suits are situated
within twenty miles of the line of road
so located and built by the Southern
Pacific company, but as they are
also within twenty miles of
the line that the Atlantic
and Pacific railroad company,
under the act of congress of
March 27, 1866, designated for its road.
it is earnestly contended on behalf of
the government that they are excluded
from the grant to the Southern Pacific
company.
When the cases of the United States
VS.. Southern Pacific railroad company,
and Same VS.. Cotton Marble and Lime
company $50 Fed. Rep, 1922, were be-
fore the count on demurrers to the bills,
the lands then involved being within the
indemnity limits of the Atlantic and
Pacific grant, and within the primary
limits Of that to the Southern Pacific
company, it was said: "Had they been
situated within twenty miles of the des-
ignated route of the Atlantic and Pacific
company they would clearly have fallen
within the grant to that company and
consequently have been excluded from
the subsequent grant to the Southern
Pacific company; for, if the construc-
tion above put upon the act of July q,
1866 be the correct one, every alternate
section of public land, designated by
odd numbers, within twenty miles of
the line of the road, as definitely fixed,
would have passed to the Atlantic and
Pacific company as of the date of its
grant" That, though oblter, would un-
doubtedly have been so had the Atlantic
and Pacific company earned the lands
by building the road for which the grant
was made. But is it true where it ap-
pears that the road was not built and
where the grant to the Atlantic and Pa
cifc company for that reason has been
subsequently declared forfeited by con-
gress? is the question now involved and
to be decided.
The grant of the Atlantic and Pacific
comp any was the prior grant-it having
been made by the act of July
27, 1866. entitled can act grant
ing lands to aid in the construc-
tion of railroad and telegraph line III
the states OF Missouri and Arkansas to
the Pacific coast IA U. S. statutes, 293).
By that act the Atlantic and Pacific com
pany was authorized to construct rail-
road, beginning at or near the town of
Springfield, in the state of Missouri,
thence to the western boundary of said
state, and thence, by the most eligible
railroad route, as shall be determined by
the said company, to a point on the
Canadian river; thence to the town of
Albuquerque, on the River Del Norte,
and thence by way Of the Aqua Frio or
other suitable pass to the headwaters of
the Colorado Chiquito, and thence along
the 35th parallel of latitude, as near as
may be found most suitable for rail
road route, to the Colorado river at such
point as may be selected by said company
for crossing; thence by the most practi-
cable and eligible route to the Pacific" F"
To aid in the construction of the road
there was granted to the Atlantic and
Pacific company, by the third section of
the act, every alternate section of public
land. not mineral, designated by odd