cal agent. The propriety of their use, in had some knowledge of the forfeiture, before the absence of any fraud in the matter, it can be held to have waived it. It is true could not afterwards be questioned by the that, where an agent is charged with the colcompany. So far, then, as the lection of premiums upon policies, it will be waiver of the forfeiture incurred for non-presumed that he informs the company of payment of the premiums is concerned, it is clear that the company, by its course of deal ing, had, notwithstanding the provision of the policy, left the matter to be determined by its local agent, to whom the renewal receipts were intrusted.

any circumstances coming to his knowledge affecting its liability; and if subsequently the premiums are received by the company without objection, any forfeiture incurred will be presumed to be waived. But here there was no ground for any inference of this kind from the subsequent action or si

dence of a disregard of the condition as to the residence of the insured in any previous year, and, consequently, there could be no inference of a waiver of its breach from a subsequent retention of the premium paid. This is a case where immediate enforcement of the forfeiture incurred was directed when information was received that the condition of the policy in that respect had been broken.

"But so far as a forfeiture arose from the residence of the insured within the prohib-lence of the company. There was no eviited district, the case is different. There is nothing in the acts of the company which goes to show that it ever authorized its agents to waive a forfeiture thus incurred, or that it ever knew of any residence of the insured within the prohibited district until informed of his death there. In every case where premiums were received after the day they were payable, the fact that a forfeit ure had been incurred was made known to the company, from the date of the payment, and the retention of the money constituted a waiver of the forfeiture; but no information of a forfeiture on any other ground was imparted by the date of such payment. The agent receiving the premium, in the case at bar, testified that he knew nothing of the residence of the insured within the prohibited district during the excepted period, and the evidence in conflict with his testimony was slight. He knew that the insured had a place of business there, and that he was permitted to make occasional visits there within that period, and to reside there at other times. Everything produced as evidence of knowledge of residence within the prescribed district is consistent with these occasional visits and residence at other times than during the excepted period.

"Not only should the company have been informed of the forfeiture before it could be held by its action to have waived it, but it should also have been informed of the condition of the health of the insured at the time the premium was tendered, upon the payment of which the waiver is claimed. The doctrine of waiver, as asserted against insurance companies to avoid the strict enforcement of conditions contained in their policies, is only another name for the doc trine of estoppel. It can only be invoked when the conduct of the companies has been such as to induce action in reliance upon it, and where it would operate as a fraud upon the assured, if they were afterwards allowed to disavow their conduct and enforce the conditions. To a just application of this doctrine it is essential that the company "But, even if the agent knew the fact of sought to be estopped from denying the residence within the excepted period, he waiver claimed, should be apprised of all could not waive the forfeiture thus incurred the facts; of those which create the forfeitwithout authority from the company. The ure and of those which will necessarily inpolicy declared that he was not authorized fluence its judgment in consenting to waive to waive forfeitures; and to the provision it. The holder of the policy cannot be pereffect must be given, except so far as the mitted to conceal from the company an imsubsequent acts of the company permitted portant fact, like that of the insured being it to be disregarded. There is no evidence in extremis, and then to claim a waiver of that the company in any way, directly or in- the forfeiture created by the act which directly, sanctioned a disregard of the pro- brought the insured to that condition. To vision with reference to any forfeitures, ex-permit such concealment, and yet to give to cept such as occurred from nonpayment of premiums. As soon as it was informed of the residence of the insured within the prohibited district, it directed a return of the premium subsequently paid. It would be against reason to give to the receipt of the premium by the agent, under the circumstances stated, the efficacy claimed. The court, in its instructions, treated the receipt of the premium by the agent, with knowledge of the previous residence of the insured within the prohibited district, if the agent had such knowledge, as itself a sufficient waiver of the forfeiture incurred, without any evidence of the action of the company when informed of such residence; and in this respect we think the court erred. It is essential that the company should have

the action of the company the same effect as though no concealment were made, would tend to sanction a fraud on the part of the policyholder, instead of protecting him against the commission of one by the company."

New York L. Ins. Co. v. Fletcher, 117 U. S. 19, 29 L. ed. 934, 6 Sup. Ct. Rep. 837, is an instructive case on the points in controversy here. The facts of the case, as stated in the syllabus, were as follows:

"A person applied in St. Louis to an agent of a New York insurance company for insurance on his life. The agent, under general instructions, questioned him on subjects material to the risk. He made answers which, if correctly written down and transmitted to the company, would have probably

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caused it to decline the risk. The agent, application he signed. He knew that upon without the knowledge of the applicant, it the policy would be issued, if issued at wrote down false answers, concealing the all. It would introduce great uncertainty truth, which were signed by the applicant in all business transactions if a party makwithout reading, and by the agent transmiting written proposals for a contract, with ted to the company, and the company there- representations to induce its execution, upon assumed the risk. It was conditioned should be allowed to show, after it had been in the policy that the answers were part of obtained, that he did not know the contents it, and that no statement to the agent not of his proposals, and to enforce it notwiththus transmitted should be binding on his standing their falsity as to matters essential principal; and a copy of the answers, with to its obligation and validity. Contracts these conditions conspicuously printed upon could not be made, or business fairly conit, accompanied the policy. Held, that the ducted, if such a rule should prevail; and policy was void."" there is no reason why it should be applied merely to contracts of insurance. There is nothing in their nature which distinguishes them in this particular from others. But here the right is asserted to prove, not only that the assured did not make the statements contained in his answers, but that he never read the application, and to recover upon a contract obtained by representations

The unanimous opinion of the court was delivered by Mr. Justice Field, the principal portions of which were as follows:

were true. If he had read even the printed lines of his application, he would have seen that it stipulated that the rights of the company could in no respect be affected by his verbal statements, or by those of its agents, unless the same were reduced to writing and forwarded with his application to the home office. The company, like any other principal, could limit the authority of its agents, and thus bind all parties dealing with them with knowledge of the limitation. It must be presumed that he read the application, and was cognizant of the limitations therein expressed.

"It is conceded that the statements and representations contained in the answers, as written, of the assured to the questions propounded to him in his application, respecting his past and present health, were material to the risk to be assumed by the com-admitted to be false, just as though they pany, and that the insurance was made upon the faith of them, and upon his agreement, accompanying them, that, if they were false in any respect, the policy to be issued upon them should be void. It is sought to meet and overcome the force of this conceded fact by proof that he never made the state ments and representations to which his name was signed; that he truthfully answered those questions; that false answers, written by an agent of the company, were inserted in place of those actually given, and were forwarded with the application to the home office; and it is contended that, such proof being made, the plaintiff is not estop- "In Globe Mut. L. Ins. Co. v. Wolff, 95 ped from recovery. But on the assumption U. S. 329, 24 L. ed. 388, the policy declared that the fact as to the answers was as stat-that the agents of the company were not aued, and that no further obligation rested thorized to waive forfeitures, and this court upon the assured in connection with the pol-held that effect must be given to the proviicy, it is not easy to perceive how the com- sion, except so far as the subsequent acts of pany can be precluded from setting up their the company permitted it to be disregardfalsity, or how any rights upon the policy ed. In Knickerbocker L. Ins. Co. v. Norever accrued to him. It is, of course, not ton, 96 U. S. 240, 24 L. ed. 691, the policy necessary to argue that the agent had no contained an express declaration that the authority from the company to falsify the agents of the company were not authorized answers, or that the assured could acquire to make, alter, or abrogate contracts or no right by virtue of his falsified answers. waive forfeitures, and this court held that Both he and the company were deceived by the company could have insisted upon those the fraudulent conduct of the agent. The terms bad it so chosen. The presassured was placed in the position of mak- ent case is very different from Union Mut. ing false representations in order to secure I. Ins. Co. v. Wilkinson, 13 Wall. 222, 20 a valuable contract which, upon a truthful L. ed. 617, and from American Ins. Co. v. report of his condition, could not have been Mahone, 21 Wall. 152, 22 L. ed. 593. In obtained. By them the company was im- neither of these cases was any limitation posed upon, and induced to enter into the upon the power of the agent brought to the contract. In such a case, assuming that notice of the assured. Reference was made both parties acted in good faith, justice to the interested and officious zeal of insurwould require that the contract be canceled ance agents to procure contracts, and to the and the premiums returned. As the pres- fact that parties who were induced to take ent action is not for such cancelation, the out policies rarely knew anything concernonly recovery which the plaintiff could prop-ing the company or its officers, but relied erly have upon the facts he asserts, taken in connection with the limitation upon the powers of the agent, is for the amount of the premiums paid, and to that only would he be entitled by virtue of the statute of Missouri. "But the case as presented by the record is by no means as favorable to him as we have assumed. It was his duty to read the

upon the agent who had persuaded them to effect insurance, as the full and complete representative of the company in all that is said or done in making the contract,' and the court held that the powers of the agent are prima facie coextensive with the business. intrusted to his care, and would not be narrowed by limitations not communicated to

the person with whom he dealt. Where such agents, not limited in their authority, undertake to prepare applications and take down answers, they will be deemed as acting for the companies. In such cases it may well be held that the description of the risk, though nominally proceeding from the assured, should be regarded as the act of the company. Nothing in these views has any bearing upon the present case. Here the power of the agent was limited, and notice of such limitation given by being embodied in the application, which the assured was required to make and sign, and which, as we have stated, he must be presumed to have read. He is, therefore, bound by its

statements."

What, then, are the principles sustained by the authorities, and applicable to the case in hand?

ambiguous terms; that contract provided that "this entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure, any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy," and that "no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of the policy may be the subject of agreement indorsed hereon or added hereto, and, as to such provisions or conditions, no officer, agent, or representative shall have power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or at

Such being the contract, and the property insured having been destroyed by fire on June 1, 1898, and the insurance company having denied liability because informed that other insurance was held by the insured on the same property, without the knowedge or consent of the company, this action was brought.

They may be briefly stated thus: That contracts in writing, if in unambiguous terms, must be permitted to speak for them-tached." selves, and cannot by the courts, at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts; that this principle is applicable to cases of insurance contracts as fully as to contracts on other subjects; that provisions contained in fire insurance policies, that such a policy shall be void and of no effect if other insur- It is not pretended, as we understand the ance is placed on the property in other com- plaintiff's position, that by any language or panies, without the knowledge and consent declaration of the agent, at the time the of the company, are usual and reasonable; policy was delivered and the premium paid, that it is reasonable and competent for the he claimed to have power to waive any proparties to agree that such knowledge and vision or condition of the policy, nor that consent shall be manifested in writing, eith- the plaintiff was induced to accept the polier by indorsement upon the policy or by cy by any promise of the agent to procure other writing; that it is competent and rea- the assent of the company to permit the outsonable for insurance companies to make it standing insurance and to waive the condimatter of condition in their policies that tion. The plaintiff's case stands solely on their agents shall not be deemed to have au- the proposition that because it is alleged, thority to alter or contradict the express and the jury have found, that the agent had terms of the policies as executed and deliv- notice or knowledge of the existence of inered; that where fire insurance policies con- surance existing in another company at the tain provisions whereby agents may, by time the policy in suit was executed and writing indorsed upon the policy or by writ- accepted, and received the premium called ing attached thereto, express the company's for in the contract, thereby the insurance assent to other insurance, such limited grant company is estopped from availing itself of of authority is the measure of the agent's the protection of the conditions contained in power in the matter, and where such limita- the policy. In other words, the contention tion is expressed in the policy, executed and is that an agent with no authority to disaccepted, the insured is presumed, as mat-pense with or alter the conditions of the ter of law, to be aware of such limitation; that insurance companies may waive forfeiture caused by nonobservance of such conditions; that, where waiver is relied on, the plaintiff must show that the company, with knowledge of the facts that occasioned the forfeiture, dispensed with the observance of the condition; that where the waiver relied on is an act of an agent, it must be shown, either that the agent had express authority from the company to make the waiver, or that the company subsequently, with knowledge of the facts, ratified the action of the agent.

In the light of these principles, let us examine the contract that was made between the parties to the controversy before us. The contract was in writing, and in clear and un

policy could confer such power upon himself by disregarding the limitations expressed in the contract, those limitations being according to all the authorities presumably known to be insured. It was not shown that the company, when it received the premium, knew of the outstanding insurance, nor that, when made aware of such insurance, it elected to ratify the act of its agent in accepting the premium. On the contrary, all the record discloses is that the jury found that the agent knew, when the policy in the defendant company was is sued and delivered to the plaintiff, that there was then subsisting fire insurance to the amount of $1,500 in another fire insurance company, and that such knowledge had been communicated to the agent by or on

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limits of the grant to it under that act and of that made to the Atlantic & Pacific Railroad Company by act of July 27, 1866, inasmuch he latter road had filed an approved map of definite location, is not a bar to a claim in another suit between the same partles that the Southern Pacific Railroad Company by virtue of the construction of a railroad under the said act of July 27, 1866, had an equal undivided moiety in all the oddnumbered sections which lie within the conflicting place limits of the grant to it and to the Atlantic & Pacific Railroad Company by that act, such lands not being the same as those involved in the prior sult.

[Nos. 18 and 24.]

of the Atlantic & Pacific, the result of which litigation will be found in the fol lowing decisions of this court: United States v. Southern P. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United States v. Colton Marble & Lime Co. and United States v. Southern P. R. Co. 146 U. S. 615, 36 L. ed. 1104, 13 Sup. Ct. Rep. 163, and Southern P. R. Co. v. United States, 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. 18. Those decisions are claimed by the gov ernment to be controlling of this case on the principle of res judicata.

There are therefore two distinct questions presented for our consideration: First, whether the Southern Pacific took any title

Argued January 29, 30, 1901. Decided Jan- to these lands by virtue of the act of 1866 uary 6, 1902.

or subsequent legislation, and, second, Do the prior decisions of this court control the

ROSS APPEALS from the United States determination of this case?

CROSS APPEALS from the United States

With reference to the first question a furCircuit to review a decree affirming a decree ther statement of facts is necessary. The of the Circuit Court for the Southern Dis- act of 1866 chartered the Atlantic & Pacific, trict of California in favor of the United empowered it to build a railroad from States in a suit to quiet title to land. Re-Springfield, in Missouri, to the Pacific vcrsed. ocean, the description of the latter part of See same case below, 38 C. C. A. 619, 98 the route being in these words: Fed. 27.

The facts are stated in the opinion.
Mr. Joseph H. Call for the United
States.

Messrs. Maxwell Evarts and L. E.
Payson for the Southern Pacific Railroad
Company.

Mr. Justice Brewer delivered the opinion of the court:

"Thence along the 35th parallel of lati tude, as near as may be found most suitable for a railway route, to the Colorado riv er, at such point as may be selected by said company for crossing; thence by the most practicable and eligible route to the Pacif ic." By the 3d section a grant of lands was made to said company in these words:

"Sec. 3. And be it further enacted, That On May 14, 1894, the United States filed there be, and hereby is, granted to the At in the circuit court for the southern dis- lantic & Pacific Railroad Company, its suctrict of California a bill of complaint cessors and assigns, for the purpose of aidagainst the Southern Pacific Railroad Coming in the construction of said railroad and pany (hereinafter called the Southern Pa- telegraph line to the Pacific coast, cific) and others, seeking to have certain every alternate section of public land, not patents canceled and their title quieted to a mineral, designated by odd numbers, to the large body of land, including those described amount of twenty alternate sections per in said patents. Upon pleading and proofs mile, on each side of said railroad line, as a decree was entered in favor of the United said company may adopt, through the terriStates on June 6, 1898, quieting their title tories of the United States, and ten alternate to most of the lands described in the bill. sections of land per mile on each side of 86 Fed. 962. Cross appeals were taken from said railroad, whenever it passes through such decree to the circuit court of appeals any state, and whenever, on the line thereof, for the ninth circuit, by which court the the United States have full title, not redecree was affirmed on October 2, 1899. 38 served, sold, granted, or otherwise appropriC. C. A. 619, 98 Fed. 27. From such decree ated, and free from pre-emption or other of affirmance both parties have appealed to claims or rights, at the time the line of said* this court. road is designated by a plat thereof filed in The lands in controversy were within the the office of the Commissioner of the Gengrant made July 27, 1866 (14 Stat. at L. eral Land Office; and whenever, prior to said 292, chap. 278), to the Atlantic & Pacific time, any of said sections or parts of secRailroad Company (hereinafter called the tions shall have been granted, sold, reserved, Atlantic & Pacific), in aid of its projected occupied by homestead settlers, or pre-emptline from Springfield, Missouri, to the Pa-ed, or otherwise disposed of, other lands cific ocean, and were situated along that line between the eastern boundary of California and the Pacific ocean. The Southern Pacific claims title to these lands by virtue of the 18th section of that act and its proceedings thereunder, had with the express approval of Congress.

Litigation has heretofore been had be tween the United States and the Southern Pacific in reference to lands along the line

shall be selected by said company in lieu thereof, under the direction of the Secretary of the Interior, in alternate sections, and designated by odd numbers, not more than ten miles beyond the limits of said alternate sections, and not including the reserved numbers."

The company filed its map of definite location in 1872, but never did any work in the way of constructing that part of its road

2