Southern Pac. R. Co. v. United States

• Decision Date: 19 October 1904
• Docket Number: 956.
• Citation: 133 F. 651
• Parties: SOUTHERN PAC. R. CO. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

133 F. 651

SOUTHERN PAC. R. CO. et al. v. UNITED STATES.

No. 956.

United States Court of Appeals, Ninth Circuit.

October 19, 1904

This is a bill in equity, brought by the United States against the Southern Pacific Railroad Company and the trustees in certain mortgages, to secure bonds issued by said company, and against numerous other defendants to determine the title to over 30,000 acres of land situate within the limits of the grant to the Southern Pacific Railroad by the act of March 3 1871, c. 109, 16 Stat. 473, which were excepted from such grant by reason of a prior grant to and reservation for the Atlantic & Pacific Railroad Company by the act of July 27 1866, c. 278, 14 Stat. 299; to ascertain and determine what portion of the lands have been sold by the Southern Pacific Company to bona fide purchasers; to obtain a confirmation of the title to such lands as are in the hands of bona fide purchasers; for the cancellation of patents of such lands as are still owned by the company; and for an accounting for the moneys received by the Southern Pacific Railroad Company, for such lands as it has sold to bona fide purchasers, to the extent of $1.25 per acre, in accordance with the provisions of the acts of Congress of March 3, 1887, c. 376, 24 Stat 556 (U.S. Comp. St. 1901, p. 1595), and March 2, 1896, c. 39 29 Stat. 42 (U.S. Comp. St. 1901, p. 1603). The averments in the bill are quite lengthy. A synopsis thereof is contained in the decision of the Circuit Court, to which reference is here made. United States v. Southern Pacific Railroad Co. (C.C.) 117 F. 544-550. The final decree entered by the court, from which the appeal herein is taken, is divided into eight subdivisions.

In subdivision 2 'the court finds and determines that all the lands described in this subdivision are within the limits of the grant made unto the Atlantic & Pacific Railroad Company by act of Congress approved on July 27, 1866, c. 278, 14 Stat. 299, as established by the map of definite location filed by that company in the General Land Office during the year 1872, which grant was forfeited unto the United States by act of Congress approved on July 6, 1886, c. 637, 24 Stat. 123; that none of the said lands are situated within the limits, primary or indemnity, of the grant made unto the Southern Pacific Railroad Company by section 18 of the said act of Congress of July 27, 1866, c. 278, 14 Stat. 299; that in former litigations between the United States and the said Southern Pacific Railroad Company it was finally and conclusively adjudged and determined, as between the United States and any claim to said lands by said company by virtue of the act of Congress of March 3, 1872, c. 109, 16 Stat. 473, that such lands became, upon the passage of the forfeiture act of July 6, 1886, c. 637, 24 Stat. 123, the property of the United States, and by force of that act were restored to the public domain, without the Southern Pacific Railroad Company having acquired any interest therein that affected the power of the United States to forfeit and restore them to the public domain; that all of the said lands have been erroneously patented by the United States unto the said Southern Pacific Railroad Company; that the said Southern Pacific Railroad Company sold all of the said lands to bona fide purchasers thereof, at purchase prices paid, in each instance, equal to or in excess of one dollar and twenty-five cents per acre; that the title of each of such purchasers to the lands of their respective purchases, as set forth in the several items of this subdivision (148 in number), was confirmed unto such purchasers by acts of Congress approved on March 3, 1887, c. 376, 24 Stat. 556 (U.S. Comp. St. 1901, p. 1595), and March 2, 1896, c. 39, 29 Stat. 42 (U.S. Comp. St. 1901, p. 1603); and that the defendant Southern Pacific Railroad Company is indebted to the United States for all of the said land so sold at the rate of one dollar and twenty-five cents per acre, with interest at six per cent. per annum from and after the date of this decree. ' It then separately adjudges and decrees a confirmation of the title of the purchasers coming under this subdivision.

In subdivision 3 the lands are all situated the same as in subdivision 2, and were sold to bona fide purchasers thereof at the prices set forth in the several items of this subdivision (5 in number), 'each of such sales being for a price less than one dollar and twenty-five cents per acre; and that the defendant Southern Pacific Railroad Company is indebted to the United States for the several sums of money received from the said purchasers, as in the items of this subdivision set forth. ' And then enters a separate decree confirming the title to such purchasers upon payment by them to the United States of a specified sum of money, being the difference between the amount paid to the railroad company and $1.25 per acre.

Subdivision 5 finds and determines the facts with reference to certain lands which are situated within the indemnity limits of the grant to the Atlantic & Pacific Railroad Company of July 27, 1866, c. 278, 14 Stat. 299: 'That the lands in the conflicting limits of the grant to the Atlantic & Pacific Railroad Company and to the Southern Pacific Railroad Company, made by the act of Congress of July 27, 1866, c. 278, 14 Stat. 299, are in process of being partitioned, and said grants are in process of adjustment and settlement in the Department of the Interior. 183 U.S. 519, 534, 535, 22 Sup.Ct. 154, 46 L.Ed. 307. ' In this subdivision it is 'ordered, adjudged and decreed that the bill of complaint for the said lands, and for the value thereof, be and hereby is dismissed without prejudice to any further suit or action against the defendant Southern Pacific Railroad Company, D. O. Mills, and Homer S. King as trustees, and Central Trust Company as trustee,' to certain fractional sections thereof, and confirms the title to certain other parties therein named.

In subdivision 6 'the court finds and determines that the following described lands are covered by patents issued by the United States otherwise than under or by virtue of any land grant made unto the Southern Pacific Railroad Company, and as to such lands it is ordered, adjudged, and decreed that the bill of complainant herein is hereby dismissed without prejudice,' and specifies the sections, or fractional sections, of land coming under this head.

In subdivision 7 'it is further ordered, adjudged, and decreed that the defendants Southern Pacific Railroad Company, Homer S. King as trustee, and Central Trust Company as trustee, have no title, estate, or interest' in certain lands therein mentioned.

In subdivision 8 'the court finds and determines that the defendant Southern Pacific Railroad Company is indebted to the United States in the sum of thirty-three thousand one hundred and ninety-two dollars and seventy-nine cents ($33,192.79) for twenty-six thousand five hundred and fifty-four and twenty-three hundredths (26,554.23) acres of land, at one dollar and twenty-five cents ($1.25) per acre, erroneously patented by the United States unto the said company, and by it sold to bona fide purchasers from whom it has received in payment therefor, in each instance, a sum equal to or in excess of one dollar and twenty-five cents ($1.25) per acre; together with the sum of four hundred and four dollars and thirteen cents ($404.13) received by the said company from the land sales made at less than one dollar and twenty-five cents ($1.25) per acre, set forth in subdivisions 3 and 4 hereof; in all, the sum of thirty-three thousand five hundred and ninety-six dollars and ninety-two cents ($33,596.92);' and entered a decree for the recovery of said sum.

The several acts of Congress referred to in the bill of complaint, and mentioned in the decree in relation to the lands granted to appellant, the forfeiture thereof, and the rights of the government therein, from a material and necessary part of the history of the facts leading up to the present case. It is deemed unnecessary to repeat these facts. The questions in relation thereto have all been settled and determined by the courts. A reference to some of the decisions is all that need be given to complete the history as to such facts. See United States v. Southern Pacific Railroad Co. (C.C.) 86 F. 962; Id., 98 F. 27, 45, 38 C.C.A. 619, 637; Id., 146 U.S. 570, 13 Sup.Ct. 152, 36 L.Ed. 1091; Southern Pac. R. Co. v. United States, 168 U.S. 1, 18 Sup.Ct. 18, 42 L.Ed. 355; United States v. Southern Pac. R. Co., 183 U.S. 519, 22 Sup.Ct. 154, 46 L.Ed. 307; Southern Pac. R. Co. v. United States, 189 U.S. 447, 23 Sup.Ct. 567, 47 L.Ed. 896.

Wm. Singer, Jr. (Wm. F. Herrin, of counsel), for appellant.

Joseph H. Call, Sp. U.S. Atty.

Before GILBERT and MORROW, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge (after making the foregoing statement).

The points of contention specified by appellant in its brief are three:

'(1) The case proved shows no ground of equity jurisdiction.

'(2) The case proved shows no cause of action at law, and herein the court erred in rendering any judgment for money in favor of complainant.

'(3) The splitting of demands by voluntary dismissal of part thereof from suit No. 600 is a bar to this suit, and all other issues here are res judicata by decrees in the other former suits set forth in the bill of complaint.'

The broad contention of appellant is that the suit is simply an action at law to recover money for the lands sold by appellant; that 'the amount is only a question of arithmetic,' to be ascertained by multiplying the number of acres sold at so much per acre; that the suit is in substance an action of debt or assumpsit, for money had and received, in...