The herald., 1894-06-26

By the 22d section OF that act it was pro-
vided as follows:
That for the pu rpoee OF connecting
the Texas Pacific railroad with the city
OF San Francisco, the Southern Pacific
railroad compsny OF California is hereby
authorized (subjeot to the laws of Cali
fornis) to construct a line OF railroad
from q point at or near Tehachapi pass
by way of Los Angeles to the Colorado
river, with the same rights, grants and
privileges and subject to the same llml-
tations, restrictions and conditions as
we're granted to said Southern Pacific
railroad COMPANY of California by the
act OF July 27, 1856; provided, however.
that this section shall in no way affect
or impair the rights. present and pro-
spective, OF the Atlantic u Pacific Rail.
road company or any other railroad
company"
Those grants were the subject OF full
consideration in the cases entitled: !:
| United States vs. Southern Pacific Rail-
road company ct al, (Nos. 67, 6S, SO, con-
sollda.ed) Same vs. Cotton Marble
and Lime company ct al, (No, So, and
United states vs.. Southern Pacific Rail
road company ct al, (Nos. III, 172,) re-
ported in as Fed. Rep, 500. and 46 Fed.
Rep, 6S3. My views in regard to them,
while meeting with the approval of two
OF the justices Of the supreme court
Justices Field and Gray-were by
majority of the court overruled. The
cases in the supreme court will be found
reported in 146 U. s., $40 and 6l5. A
careful examination of the opinions of
the majority OF the court in those cases
shows that it decided, among other
things, that it was not the intept of
congress that any of the lands embraced
| by the grant of July. 1866, to the At
conditioaslly to the Southern Pacific
company by the grant of March
3, 1871, but, on the con-
trsry, that congress intended that
all lands embraced by the prior grant
to the Atlantic q Pacific company should
be definitely excepted from the latter
grant to the Southern Pacific company,
ana that the Atlantic q Pacific COM
pany, having forfeited the lands grant
ed to it by the act of July 81, 1856, by
reason of its failure to comply with the
conditions upon which the grant was
made, and congress having by the act
OF July g. 1886. declared the forfeiture,
the latter resulted in restoring the
lands to the government. The forfeit
ure," said the court, twas not for the
benefit OF the Southern Pacific; it was
not to enlarge the grant as it stood
prior to the act OF forfeiture. 1t had
given to the Southern Pacific all tnat it
had agreed 20 in its original grant; and
now, finding that the Atlantic q Pacific
was guilty of breach OF condition
ubseo uent, it elected to enforce a for
feiture for that breach, and forfeiture
for its own benefit"
The court further observed: "If the
act of forfeiture had not been passed by
congress, the Atlantic & Pacific could
yet construct its road, and that, con-
structing it, its title to these lands would
become perfect"
In those cases the defeD dant company
contended that no map OF definite loca-
tion of its line between the Colorado
river and the Pacific ocean was ever
filed by the Atlantic & Pacific company
or approved by the secretary of the in
terror. The supreme court said that
contention was bssed upon these facts:
'The Atlantic & Pacific company claim
ed that, under its charter, it was author
lied to build road from the Colorado
river to the Pacific ocean, and thence
along the coast up to San Francisco, and
it flied maps thereof in four sections
San Buenaventura was the point where
the westward line first touched the Pa
citic ocean. One of these maps was of
that portion of the line extending from
the western boundary of Los Angeles
county, point east OF San Buenaven-
turs, and through that place to San
Miguel mission, in the direction of San
Francisco. In other words, San Buena-
ventura was not the terminus of any
line of definite location from the Colo
RADIO river westward, whether shown by
one OF more maps, but only an interme-
diate point on one sectional map. When
the four maps were filed, and in 1872.
the land department, holding that the
Atlantic and Pacific company was au-
thorized to build not only from the Col
orado river directly to the Pacific ocean,
but also thence north to San Francisco,
approved them as establishing the line
OF definite location. Subsequently, and
when Mr.. Justice Lamar was secretary
of the interior, the matter was re-exam-
ined, and it WAS properly held that, un-
der the act OF 1866, the grant to the
Atlantic and Pacific was exhausted when
it's line reached the Pacific ocean. San
Buenaventura was, therefore, held to be
the western terminus, and the location
of the line approved to that point" And
the court held that "The fact that its
line was located and maps filed thereof
in sections is immsterial. st. Paul and
Pacific railroad vs.. Northern Pacific
railroad, 139 U. S., l. Indeed, all the
transcontinental roads, it is believed,
filed their maps Of route in sections. So
the question is whether the filing map
of definite location from the
Colorado river through San
Buenaventura to San Francisco, under
claim of right to construct a road the
entire distance, is good as a map OF def
mite location from the Colorado river to
San Buenaventure, the latter point be-
ing the limit of the grant. We think,
uDquestionsbly, it is.
In the present case it ia urged. en- the
part OF the defendants, that in the
former cases the supreme court deter
mined the questions in relation to the