The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1895-06-25
Decision of the Court of APP
peaiS in the Railroad
Land Case.
JUDGE ROSS is SUSTAINED
Seven Hundred Thousand Acres In
volved-Another Appeal to
Be Taken.


the southern part of the State which the
been for years endeavoring to take unto
itself was decided in the United States
Circuit Court of Appeals yesterday. The
decision was in favor of the Government,
but the attorneys for the corporation an
nounced that they did not look upon it as
final. They asked for and were granted
permission to take the case to the United
States Supreme Court.
There are many complications and legal
technicalities involved in the suit, and it
is evident that the railroad company will
not reiinquish its efforts to secure the land,
which is of immense value, until the last
link of the legal chain by which they are
striving to hold the same is wrested from
it.
The land in dispute comes under the
grant made by Congress in 1866 to the At
lantic and Pacific Railroad as determined
by what the Government contends was
the line OF definite location. 1t is located
in Los Angeles and Ventura counties. The
Southern Pacific Company was also granted
100000 acres and authorized to build a rail-
road from point of connection with the
Atlantic and Pacific road near the boun-
Diary line of the State to San Francisco.
Five years later the Southern Pacific Com
pany was permitted to construct its line
from point near the Tehachapi Pass, via
Los Angeles, to the Texas and Pacific Rail-
| road, near the Colorado River.
In 1886 the lands granted the Atlantic
and Pacific Company were declared for
domain. The lands which were secured
by the Southern Pacific Company are
within the limits of both grants at the
place where the line of the Southern Pa
cific crosses that of the Atlantic and Pa
citic, and the question which was to be de-
cided was whether the earlier grants at
tached to such lands and thus operated to ex-
clude them from the grant to the Southern
Pacific Company. To decide this point the
Government sued the railroad company.
1t was eontended when the case came up
in the United States District Court that
no map of definite location between the
Colorado River and the Pacific Ocean was
ever filed by the Atlantic and Pacific Com
pany. Maps which We're introduced by
the Atlantic and Pacific Company were de-
clared fraudulent, and the Southern Pa
cifc Company went SO far as to say that
the lines had never been surveyed and
marked ON the ground; also that the re-
ports of the Atlantic and Pacific engineers
were false,
4AS VI Illc ludp VI VIC &Apilt1-
tic and Pacific Company, and the fact that
the line Of the map when located on the
ground is found to be an impracticable
railroad route, formed the basis of the
Southern Pacific Company's contention
that no survey had ever been made OF the
line of definite location contended for by
the Government. 1t is upon these charges
of fraud made by the Southern Pacific
Company that the decision of the court
dwelIs at length.
The decision says:
The Southern Pacific Company was not in
jured in any right by the alleged failure of the
Atlantic and Pacific Company in its duty, or
by that companv's want of good faith II
fraud was practiced, 1t was upon the Govern
ment. II there was injury, it was the Govern
Southern Pacific Company, to whom there was
no obligation or duty, and in whom there was
no right in respect to the matters complained
of, take advantage of the fraud alleged to have
been practiced on the Government? And upon
what principle of justice or morals can il eX-
pect to make use of fraud practiced upon the
Government to make case for itself against
the Government?
AT most, then, the alleged frauds in the maps
OF definite location constituted cause OF for
feiture, and this gave no right of succession to
the Southern Pacific Company to the lands
liable to forfeiture. This was decided by the
Supreme Court in the case of the United States
against the Southern Pacific Company, GAG U.
S. GOA. In that case it was contended by the
company that Congress intended by the acts of
July 27, 1866, and March g. 1871, these
lands should pass to some company to aid in
the building OF railroad, either the Atlantic
and Pacific or the Southern Pacific; that if
they were not applied to aid the former
company, then the latter company was
to be entitled to them; but the court held the
contention erroneous. 1t held in effect that
the exception out OF the grant to the
latter company of the lands included
in the grant to the Atlantic and Pacific
Company was not conditional but absolute;
that II there was any breach of the conditions
of the grant to the Atlantic and Pacific Com
pany, Congress might itself take needful meas
and that if the act of forfeiture had not been
passed the Atlantic and Pacific could yet con-
struct Its road and, constructing it, its title to
the lands in question would become perfect.
No one but the grantor can raise the question
OF breach OF condition subsequent. Con-
greSs by the act of forfeiture determined what
should become of the lands forfeited. 1t elect
domain. 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 for
feiture. 1t had given to the Southern Pacific
all that it had agreed to i'll its original grant;
and now finding that the Atlantic and Pacific
was guilty of q breach of condition subse-
'quent it elected to enforce forfeiture for that
breach and g forfeiture for its own benefit.
The decision affirming the Judgment of
the lower court against the railroad con,-
pany sustains Judge Ross of the Southern
district, before whom the case was first
tried. It was written by Judge Bellinger
and conceded in by Judges Knowles and
Gilbert.
PLvNN NAV RECOVER