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p. 162, Sup. Ct. Rep. p. 1083, having there on page 48, I, ed. p. 376, Sup. Ct. Rep. p. tofore narrated the facts in reference to va- 27: rious charters and grants, said:

“The general principle announced in nu. "An examination of the acts referred to in merous cases is that a right, question, or these findings shows that Congress author- fact distinctly put in issue, and directly deized the Southern Pacific Railroad Company termined by a court of competent jurisdicto connect with the Atlantic & Pacific Rail. tion, as a ground of recovery, cannot be disroad, at such point near the boundary line puted in a subsequent suit between the same of the state of California as it should deem parties or their privies; and even if the secmost suitable for a railroad line to San ond suit is for a different cause of action, Francisco; and, to aid in the construction the right, question, or fact once so deterof such a railroad line, Congress declared mined must, as between the same parties or that the company should have similar their privies, be taken as conclusively esgrants of land, and should be required to tablished, so long as the judgment in the construct its road on the like regulations, first suit remains unmodified." as to time and manner, with the Atlantic & See also New Orleans v. Citizens' Bank, Pacific. Like powers were also given to the 167 U. S. 371, 396, 42 L. ed. 202, 210, 17 Southern Pacific Railroad Company to con- Sup. Ct. Rep. 905, 913, in which the rule struct a line of railroad from Tehachapa was thus stated : pass, by way of Los Angeles, to the Texas “The estoppel resulting from the thing adPacific road at the Colorado river (Fort judged does not depend upon whether there Yuma). The Southern Pacific Company is the same demand in both cases, but ex. was not authorized by its original charter ists, even although there be different de to extend its railroad to the Colorado river, mands, when the question upon which the as we already know by other cases brought recovery of the second demand depends has before us, and as appears by the act of the under identical circumstances and condi. state legislature passed April 4, 1870, which tions been previously concluded by a judg. assumed to authorize the company to change ment between the parties or their privies." the line of its railroad so as to reach the *It becomes, therefore, important to detereastern boundary line of the state; thus du mine what was decided in the prior cases; plicating the power given to it by the act and in order to a clear understanding these of Congress. See the state act quoted in additional facts must be borne in mind: 118 U. S. 399, 30 L. ed. 118, 6 Sup. Ct. Rep. On March 3, 1871, Congress passed an act 1133. This state legislation was probably (16 Stat. at L. 573, chap. 122) to incorpore procured to remove all doubts with regard ate the Texas & Pacific Railroad Company, to the company's power to construct such the 23d section of which reads: roads. It is apparent, however, that the “That for the purpose of connecting the franchise to do so was fully conferred by Texas Pacific Railroad with the city of San Congress, and that franchise was accepted, Francisco, the Southern Pacific Railroad and the roads have been constructed in con- Company of California is hereby authorized formity thereto."

(subject to the laws of California) to conWe are of the opinion, therefore, that Mr. struct a line of railroad from a point at or Secretary Lamar*was right in his conclusion near Tehachapa pass, by way of Los Anthat both the grant to the Southern Pacific geles, to the Texas Pacific Railroad, at or and that to the Atlantic & Pacific took ef- near the Colorado river, with the same fect; and being by the same act, so far as rights, grants, and privileges, and subject there was a contlict, the two companies took to the same limitations, restrictions, and equal, undivided moieties of the land. conditions as were granted to said South

We pass, therefore, to a consideration of crn Pacific Railroad Company of California the second question: Do prior decisions of by the act of July twenty-seven, eighteen this court control the determination of this hundred and sixty-six: Provided, however, case? United States v. Southern P. R. Co. That this section shall in no way affect or 146 U. S. 570, 36 L. ed. 1091, 13 Sup. Ct. impair the rights, present or prospective, Rep. 152; United States v. Colton Marble & of the Atlantic & Pacific Railroad ComLime Co. and United States v. Southern P. pany or any other railroad company." R. Co. 140 U. 8. 615, 36 L. ed. 1104, 13 Sup. On April 3, 1871, the Southern Pacific Ct. Rep. 163, and Southern P. R. Co. v. filed a map of a route from Tehachapa United States, 168 U. S. 1, 42 L. ed. 355, pass southward by way of Los Angeles, to 18 Sup. Ct. Rep. 18, are referred to. Those connect with the Texas & Pacific Railroad cases were brought by the United States at the Colorado river, and subsequently conagainst the Southern Pacific to quiet title structed a road on such line. This line to certain lands (but not the lands in con- crossed that of the Atlantic & Pacific, the troversy here) along the line of the Atlan. general course of the former being north tic & Pacific within the state of California. and south, and of the latter east and west. In the last of these three cases the principle The grants, therefore, to the Atlantic & of res judicata was invoked and held appli- Pacific by the act of July 27, 1866, and that cable; and the title of the government to the to the Southern Pacific by the act of March lands involved was sustained on the ground 3, 1871, came in conflict at and near the that the question in controversy had been place of intersection of their lines. The finally determined in the prior suits. In lands in controversy in those suits were the opinion filed there was much discussion lands within the granted limits of both comin respect to res judicata; and it was said, 'panies at the place of conflict. It was so

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distinctly stated in the opening of the opin. States insists that in the former cases the ion in the first case referred to:

controlling matter in issue was, whether "The question to be considered is not as certain maps filed by the Atlantic & Pacific to the validity of the grant to the Southern Railroad Company in 1872, and which were Pacific Company, but only as to its extent. accepted by the Land Department as suffiIt may be conceded that the company took ciently designating that company's line of title to lands generally along its line, from road under the act of Congress of July 27, Tehachapa pass to its junction with the 1860, chap. 278 (14 Stat. at L. 292), were Texas Pacific; and the contention of the valid maps of definite location; the United government is here limited to those lands States contending in those cases that they only which lie within the granted limits of were, and the Southern Pacific Railroad both the Atlantic & Pacific and the South Company contending that they were not ern Pacific Companies, at the crossing of maps of that character; that that issue was their lines, as definitely located.” p. 592, determined in favor of the United States; L. ed. 1096, Sup. Ct. Rep. p. 155.

and that, as the lands now in dispute are Both grants were grants in præsenti, and within the limits of the line of road so deswhen the maps of definite location were filed ignated, it is not open to the Southern and approved, the grants took effect by re- Pacific Railroad Company, in this proceed. lation as of the dates of the acts. Hence, if ing, to question the former determination each company filed a map of definite loca- that such maps sufficiently identified the tion, the title of the Atlantic & Pacific, re- lands granted to the Atlantic & Pacific Rail. lating back to the year 1866, was anterior road Company by the act of 1866, and were and superior to that of the Southern Pacific therefore valid maps of definite location." of datë 1871; and all the lands within the p. 25, L. ed. p. 368, Sup. Ct. Rep. p. 18. conflict passed to the Atlantic & Pacific, And again on page 29, L. ed. p. 370, Sup: rather than to the Southern Pacific. To Ct. Rep. p. 20, after a quotation of the 23d avoid the effect of this conclusion,-a con section of the act of March 3, 1871, is this clusion resting upon well-settled principles declaration: of public-land law,—the Southern Pacific “The Southern Pacific Railroad Company contended that no map of definite location constructed the road thus contemplated, and was ever filed by the Atlantic & Pacific, or claims that the lands here in dispute passed approved by the Secretary of the Interior; to it under the above act of 1871." but after a full examination of the facts So also on page 46, L. ed. p. 376, Sup. this court held otherwise, summing up its Ct. Rep. p. 26: conclusions in these words:

“The lands now in controversy are situ"Our conclusions therefore are that a ated opposite to and are conterminous with valid and sufficient map of definite location the first, second, and fourth sections of the of its route from the Colorado river to the Southern Pacific Railroad, as constructed Pacific ocean was filed by the Atlantic & between 1873 and 1877, inclusive, and with. Pacific Company, and approved by the Sec- in the primary and indemnity limits of the retary of the Interior; that by such act the grant to the Southern Pacific Railroad title to these lands passed, under the grant Company made by the 23d section of the of 1866, to the Atlantic & Pacific Company, Texas & Pacific act of March 3, 1871." and remained held by it subject to a condi. And on page 61, L. ed. p. 381, Sup. Ct. tion subsequent until the act of forfeiture Rep. p. 32, the conclusion was summed up of 1886: that by that act of forfeiture the in these words : title of the Atlantic & Pacific was retaken

“For the reasons stated, we are of opinby the general government, and retaken for ion that it must be taken in this case to have its own benefit and not that of the South. been conclusively adjudicated in the former ern Pacific Company; and that the latter cases, as between the United States and the v company has no title of any kind to these Southern Pacific Railroad Companylands." p. 607, L. ed. p. 1101, Sup. Ct. Rep. *"1. That the maps filed by the Atlantic

& Pacific Railroad Company in 1872 were So, in the opinion in the last of the three sufficient, as maps of definite location, to cases, is this statement of the facts and ques. identify the lands granted to that company tion:

"The principal contention of the United by the act of 1866; States is that the lands in dispute are in the

“2. That upon the acceptance of those same category in every respect with those maps by the Land Department the rights of in controversy in United States v. Southern that company in the lands so granted atP. R. Co. 146 U. S. 570, 36 L. ed. 1091, 13 tached, by relation as of the date of the act Sup. Ct. Rep. 152, and Únited States v. Cole of 1866; and ton Marble & Lime Co. and United States v.

“3. That in view of the conditions atSouthern P. R. Co. 146 U. S. 615, 36 L. ed. tached to the grant, and of the reservations 1104, 13 Sup. Ct. Rep. 163; and that, so far of power in Congress contained in the act as the question of title is concerned, the judg- of 1866 such lands became, upon the passments in those cases have conclusively deter- age of the forfeiture act of 1886, the prop. mined, as between the United States and the erty of the United States, and by force of Southern Pacific Railroad Company and its that act were restored to the public domain privies, the essential facts upon which the without the Southern Pacific Railroad Comgovernment rests its present claim, pany's having acquired any interest there.

"Stated in another form, the United in that affected the power of the United

p. 160.

189.

States to forfeit. and restore them to the which is not the matter of dispute in this public domain.

action. The judgment in that case is there"These grounds being accepted as the basis fore not conclusive in this as to matters of our decision, the law in the present case which might have been decided, but only as is clearly for the United States; for, as all to matters which were in fact decided.” the lands here in controversy are embraced Last Chance Blin. Co. v. Tyler Min. Co. 157 by the maps of 1872, and therefore apper. U. S. 683–687, 39 L. ed. 859-861, 15 Sup. tain to the line located by such maps, it Ct. Rep. 733-735. The question here premust be, for the reasons stated in the former sented was not determined in the prior cases, decision, tliat the United States is entitled, and is whether the Southern Pacific acquired as between it and the Southern Pacific Rail- any title to lands other than those involved road Company, to the relief given by the in those suits by virtue of the act of 1866; decree below.'

and that question, as we have seen, must be Obviously the fact settled by the decisions answered in the affirmative. Nor is this a in those cases was the filing by the Atlantic mere technical difference between those & Pacific of an approved map of definite cases and this. Counsel for the railroad location. Upon that the controversy hinged. company call the line from Mojave southSuch a map having been filed, the title of ward via Los Angeles, to connect with the the Atlantic & l'acific vested as of the date Texas & Pacific, a "branch line," and that of the act of July 27, 1866; and inasmuch castward from Mojave to Needles, to conas the Southern Pacific claimed only by a nect with the Atlantic & Pacific, a "main grant of date March 3, 1871, it took no title. *line;" but by whatever name these two lines This which is apparent from the foregoing are called, they were built under the author. quotations is emphasized by the full discus-ity of two different statutes, the line from sions in the opinions, as well as by the alle- Mojave southward via Los Angeles under gations in the pleadings upon which the the authority of the act of Congress of cases were tried. That fact, having been de March 3, 1871,-an act which in terms autermined, must be taken in the present suit thorized the building of a road from a point as not open to dispute. The Atlantic & at or near Tehachapa pass, which is in the Pacific did file a sufficient map of definite vicinity of Mojave, southward by way of location of its line from the Colorado river Los Angeles, to connect with the Texas & to the Pacific ocean, and such map was ap- Pacific, and gave no authority to build a proved by the Secretary of the Interior. Its line eastward from Mojave to connect with title, therefore, to the land within the lim- the Atlantic and Pacific,—the line from Ma its of the grant in California, took effect as jave eastward, under the act of 1866, which of date July 27, 1866. No claim of right or authorized the Southern Pacific to connect title arising only in 1871, and created by with the Atlantic & Pacific at or near the an act of that date, could affect its title. boundary of the state. The route which

But it was not adjudged in those cases was selected by the company for this line either that the Southern Pacific had no title was approved by Congress as authorized by to any real estate by virtue of the act of the act of 1866. Hence the one line was 1866, or that if there was any real estate to built under the authority of the act of 1871, which it had any claim or right by virtue of and the other under the authority of the that act, such claim was not of equal force act of 1866. with that of the Atlantic & Pacific. The Our conclusions therefore are that the general statement at the close of the quota United States, having become by the for. tion from 146 U. S. 607, 36 L. ed. 1101, 13 feiture act of July 6, 1886, repossessed of Sup. Ct. Rep. 160, "that the latter company all the rights and interests of the Atlantic has no title of any kind to these lands,” and & Pacific in this grant within the limits the similar statement in 1 3 of the quotation of California, hold an equal, undivided moifrom 168 U. S. 61, 42 L. ed. 381, 18 Sup. ety in all the odd-numbered sections which Ct. Rep. 32, are to be taken as applicable lie within the conflicting place limits of the only to the facts presented, and cannot be grant to the Atlantic & Pacific and of that construed as announcing any determination made to the Southern Pacific by the act of as to matters and questions not appearing July 27, 1866; and that the Southern Pacific in the records. Of course the decrees that holds the other equal, undivided moiety were rendered in those cases are conclusive therein. The United States and the Southof the title to the property involved in them, ern Pacific being, therefore, tenants in comno matter what claims or rights either par mon of a large body of lands, a partition is ty may have had and failed to produce; but necessary.

It was suggested by Secretary as to property which was not involved in Lamar, in the letter heretofore referred to, those suits they are conclusive only as to that the Southern Pacific take only every the matters which were actually litigated other alternate odd-numbered section. We and determined. “On principle, a point not see no impropriety in such mode of partition, in litigation in one action cannot be re-though, under the case as it stands, we can ceived as conclusively settled in any subse make no order to that effect. In whatever quent action upon a different cause, because way partition may be made, equity requires it night have been determined in the first that the lands which the Southern Pacific action.” Cromwell v. Sac County, 94 U. S. has assumed to sell, and which were excepted 351-356, 24 ... ed. 195–199. "The particu- by the circuit court from the decree in favor lar matter in controversy in the adverse of the United States, and in respect to which suit was the triangular piece of ground, they took their cross appeal, must be among those set off to the Southern Pacific, and The decree of the Circuit Court of Apthus the title of the purchasers be perfected. peals of the Ninth Circuit, affirming the de It is needless, therefore, to consider the cree of the Circuit Court for the Southern merits of the cross appeal of the United District of California will be reversed, and States.

the case remanded to the Circuit Court, It is also unnecessary to determine the with instructions to enter a decree quieting rights of the Southern Pacific to lands out the title of the United States to an equal side the limits of conflict. It having been undivided moiety in all alternate sections adjudged that the Southern Pacific, by the within the place or granted limits of the Atconstruction of its road eastward from Mo lantic & Pacific in California, so far as those jave to Needles, became entitled to the bene limits conflict with the like limits of the fit of the grant made by the 18th section of Southern Pacific, excepting therefrom those the act of 1866, the adjustment of the grant lands in respect to which there has been is properly to be had in the Land Depart some prior adjudication, and to dismiss the ment, subject, of course, if necessary, to fur. bill as to all other lands without prejudice ther contests in the courts.

to any future suit or action. 22 S. C.-11.

o.

(183 U. S. 300) EDWARD . GALLUP, Executor of Wil- | amount of personal property belonging to liam P. Gallup, Deceased, Piff. in Err., and in possession of said decedent had not

been listed for taxation for the years 1881 WILLIAM H. SCHMIDT, Treasurer of to 1893 both inclusive; and upon that day, Marion County, Indiana.

acting under $8560, Burns's Rev. State

1894, caused to be served by the sheriff upConstitutional law-assessment for taxation on Edward P. Gallup, as executor, who was

of omitted property-notice to nonresi. at the time in Indianapolis, engaged in the dent.

settlement of said estate, notice in writing

of his intention to add such omitted propA non resident executor is not denied any rights erty to the tax duplicate, and requiring such

or privileges secured to him by the Consti- executor to appear before him within five tution of the United States because Ind. Rev. days to show cause, if any, why such propStat. $ 8560, under which omitted property erty should not be so added. The notice belonging to the estate was added to the tax specified the property to be added as county, provision for notice to any person not a resi- township, town, and other bonds, notes, dent of the county in which such omitted mortgages, claims, dues, demands, and othproperty is proposed to be assessed, where he er credits, money on hand and on deposit. not only had an opportunity to appear and "January 19, 1895, the executor appeared set up any defense that he had, but ac- before the auditor, and filed written objectually did appear, and, after his demurrers tions to the authority of the auditor to proand motion to dismiss bad been overruled, an ceed further, which were overruled. The ex; swered and was fully heard in the trial

court, ecutor then filed an answer to the notice, and and his objections to the findings and rulings of that court have been heard and considered on the 21st day of January, 1895, the auditor by the supreme court of the state.

issued a subpæna for the executor, requir.

ing him to appear forthwith before him, [No. 100.)

and to bring with him all notes, mortgages,

and bonds in his possession, as such axecu. Argued October 31, November 1, 1901. De-ecutor appeared on the 24th day of January,

tor, to testify in said proceeding. The ex. cided January 6, 1902.

1895, and filed further objections to the ju.

risdiction of the auditor, which were overIN

N ERROR to the Circuit Court of Marion ruled; and thereupon he was examined un

County, State of Indiana, to review a der oath. judgment in favor of the county treasurer

“Upon consideration of the evidence the in proceedings to assess omitted property for auditor found that William P. Gallup, in taxation, entered in pursuance of a final addition to the property returned by him judgment of the Supreme Court of Indiana. for taxation, was the owner and in possesAffirmed.

sion of other taxable personal property not

listed and not taxed during the several Statement by Mr. Justice Shiras: years from 1881 to 1893 specifically stated

This is a writ of error to a judgment of for each year, and January 25, 1895, placed the circuit court of Marion county, state of the same upon the tax duplicates, and comIndiana, entered in pursuance of a final puted and extended taxes thereon for tho judgment of the supreme court of that state, whole of said period, including statutory in a case wherein Edward P. Gallup, execu- penalties and interest, the sum of $61,233.59. tor of William P. Gallup, deceased, was After the same was placed upon the dupli-a plaintiff in error, and William H. Schmidt, cate in the treasurer's hands he made de treasurer of said Marion county, was defend. mand upon the executor* to pay said addi. ant in error.

tional taxes, but he refused to pay all or any The main facts in the case were thus stat. part thereof. ed in the opinion of the supreme court (154 "The executor on the 4th day of January, Ind. 196, 56 N. E. 443):

1895, filed in the circuit court his final set“William P. Gallup, having for thirty. tlement report, and gave notice that tho one years been a resident therein, died, tes same would be finally heard on the 26th tate, in the city of Indianapolis, Marion day of January, 1895; and upon the day set county, in December, 1893, the owner and in for the hearing of the report, the same be possession of a large personal estate in said ing the next day after the additional assesscounty. His will was duly admitted to pro- ments had been placed upon his duplicate, bate in the Marion circuit court, and Ed. Holt, as treasurer of Marion county, filed ward P. Gallup, a resident of the state of in said court, under $ 8587, Burns's Rev. New Hampshire, the principal and residuary Stat. 1894, in the term thereof that was legatee, was qualified as executor in Janu- then running, his petition for an order upary, 1894, and March 5, 1894, filed an in- on the executor to show cause why he should ventory showing a personal estate of $492, not pay the taxes assessed by the auditor. 628.26. Subsequently, in the spring of 1894, The order was granted, and on February 9, said executor listed to the assessor for taxa 1895, the executor appeared and filed his tion for the year 1894 personal property of motion to dismiss the said proceedings for the estate aggregating $383,906.46. Janu- the reason that the court had no jurisdicary 15, 1895, Taggart, then auditor of Mari. tion to proceed to hear the cause, for the on county, discovered, on what he believed to reason that the county treasurer was not be credible information, that a large authorized, under the law, to present said

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