San Jose Land Water Company v. San Jose Ranch Company

• Decision Date: 02 March 1903
• Docket Number: No. 113,113
• Citation: 47 L.Ed. 765,189 U.S. 177,23 S.Ct. 487
• Parties: SAN JOSE LAND & WATER COMPANY, Plff, in Err. , v. SAN JOSE RANCH COMPANY
• Court: U.S. Supreme Court

189 U.S. 177

23 S.Ct. 487

47 L.Ed. 765

SAN JOSE LAND & WATER COMPANY, Plff, in Err.,

v SAN JOSE RANCH COMPANY.

No. 113.

Submitted December 2, 1902.

Decided March 2, 1903.

This was an action brought in 1889 by the Land & Water Company, under the Code of Civil Procedure of California, to quiet the title of the plaintiff and determine the nature of the adverse claim of the defendant to the half of a quarter section of land, which had been sold by the Southern Pacific Railroad Company February 28, 1887, to plaintiff's predecessors in title, as part of its land grant of 1871.

The case was tried in 1890, though the decree was not entered until 1897. The facts found by the court were substantially that the Southern Pacific Railroad Company had accepted the benefit of a land grant made March 3, 1871, to the Texas & Pacific railroad, filed its map of location April 3, 1871, and on August 12, 1873, formed a new corporation, also known as the Southern Pacific Railroad Company; built and constructed a road from Tehachapi pass by way of Los Angeles to Yuma, and selected the land in question under the act of March 3, 1871; that such land was within the place limits of the Southern Pacific, and also within the indemnity limits of a land grant to the Atlantic & Pacific railroad by act of July 27, 1866. This latter company never complied with the terms of the grant, and never built its road.

That on February 28, 1887, the Southern Pacific agreed with two parties named Nolan and Heckenlively to sell them this land, and, after the receipt from the United States of a patent therefor, to deliver them a deed; that by subsequent conveyances, and on August 29, 1888, the right of the grantees became vested in the plaintiff, the San Jos e Land & Water Company; that the land is situated in San Dimas canyon, through a portion of which the San Dimas creek flows; that prior to December, 1883, one Stowell claimed to own a water right in the waters flowing down such creek, the character and extent of which the court did not adjudicate, and about that time entered upon the land and constructed across a portion of it a 12-inch pipe line for the purpose of conducting the water so claimed by him from its point of diversion across said lands to other lands; that prior to July, 1887, the San Jos e Ranch Company, defendant, had, by mesne conveyances, succeeded to the rights of Stowell, and also constructed upon such land, at a point where the waters of San Dimas creek flowed, a brick and cement forebay, sand box, of dam, and laid therefrom across a portion of said land a 14-inch pipe line, both of which pipe lines it claims the right to maintain, but makes no other claim of right to such lands.

Upon this state of facts the superior court entered a judgment in favor of the defendant, which was affirmed by the supreme court. 129 Cal. 673, 62 Pac. 269. Whereupon the plaintiff sued out this writ of error.

Messrs. W. H. Anderson, James Anderson, and Richard Dunnigan for plaintiff in error.

Mr. John S. Chapman for defendant in error.

Mr. Justice Brown delivered the opinion of the court:

Motion is made to dismiss this writ of error upon the ground that no Federal right, title, privilege, or immunity was 'specially set up or claimed' by the plaintiff in error, as required by the 3d clause of Rev. Stat.§ 709 (U. S. Comp. Stat. 1901, p. 575). None such appears in the complaint, although we think it sufficiently appears in the motion for a new trial and in the assignments of error in the state supreme court. It also appears from the opinion of the court that plaintiff relied upon the act of Congress of March 3, 1887, for the readjustment of land grants (24 Stat. at L. 556, chap. 376, U. S. Comp. Stat. 1901, p. 1595); and the question considered by the court, and upon which the case turned, was whether the plaintiff had brought itself within the scope of that act. This question was fully considered by the court, and it was held that the defendant, having acquired its rights prior to the act of 1887, must prevail against the right claimed by the plaintiff.

While the right under the act of 1887, thus considered, was not originally specially set up and claimed by the plaintiff, inasmuch as it was not an original right, but a right available in rebuttal of the defense, it is one which appears to have been insisted upon in the argument; and under the rule of this court requiring the opinions to be sent up with the record, it has been frequently held to be a sufficient compliance with the words 'specially set up and claimed,' that it was fully considered in the opinion of the court and ruled against the plaintiff in error. Murdock v. Memphis, 20 Wall. 590, 633, 22 L. ed. 429, 443; Gross v. United States Mortg. Co. 108 U. S. 477, 27 L. ed. 795, 2 Sup. Ct. Rep. 940; Fire Asso. of Philadelphia v. New York, 119 U. S. 110, 115, 30 L. ed. 342, 345, 7 Sup. Ct. Rep. 108; Egan v. Hart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Sayward v. Denny, 158 U. S. 180, 184, 39 L. ed. 941, 942, 15 Sup. Ct. Rep. 777; Mallett v. North Carolina, 181 U. S. 589, 45 L. ed. 1015, 21 Sup. Ct. Rep. 730. These must be considered as leading, under our change of rule, to a different result from that reached in some prior cases (Williams v. Norris, 12 Wheat. 117, 6 L. ed. 571; Rector v. Ashley, 6 Wall. 142, 18 L. ed. 733, and Gibson v. Chouteau, 8 Wall. 314, 19 L. ed. 317), in which we held that the opinion of the state court could not be resorted to for the purpose of showing that a question of Federal cognizance was decided.

2. The case upon the merits presents but little difficulty. The action is brought under § 738 of the Code of Civil Procedure of California, which provides that 'an action may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim.'

The land in question was within the indemnity limits of the land grant of July 27, 1866 (14 Stat. at L. 292, chap. 278), to the Atlantic & Pacific Railroad Company. Plaintiff, however, claims nothing under this grant, as the railroad company never complied with its terms; never built its road; and the grant was forfeited by act of July 6, 1886 (24 Stat. at L. 123, chap. 637), and the land restored to the public domain. The act, however, becomes pertinent in another connection.

The land in question was also within the place limits of the grant to the Texas & Pacific Railroad Company by act of March 3, 1871 (16 Stat. at L. 573, chap. 122), and subsequently became vested in the Southern Pacific, which constructed the road and selected the land in question, claiming it under that act.

It was held by this court, however, in United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152, that the forfeiture of the Atlantic & Pacific grant of July 6, 1886, did not inure to the benefit of the Southern Pacific, which held the later grant of the same land, but to the benefit of the United States, and thereby became a part of their public lands. In the next following case (United States v. Colton Marble & Lime Co. 146 U. S. 615, 36 L. ed. 1104, 13 Sup. Ct. Rep. 163), this ruling was extended to the indemnity lands of the Atlantic & Pacific, which upon forfeiture of its land grant, also reverted to the United States.

Hence, on February 28, 1887, when the Southern Pacific company contracted to sell these lands to Nolan and Heckenlively, it had really nothing to sell, and no interest in the land that could pass under that agreement. There was a stipulation in it to make a deed of the premises as soon as the railroad had received a patent therefor from the United States; that it would use ordinary diligence to procure such patent, and that if, in consequence of circumstances beyond its control, it failed to...