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the person with whom he dealt. Where such | ambiguous terms; that contract provided agents, not limited in their authority, un that “this entire policy, unless otherwise dertake to prepare applications and take provided by agreement indorsed hereon or down answers, they will be deemed as act-added hereto, shall be void if the insured ing for the companies. In such cases it now has or shall hereafter make or procure, may well be held that the description of the any other contract of insurance, whether valrisk, though nominally proceeding from the id or not, on property covered in whole or assured, should be regarded as the act of in part by this policy,” and that “no offithe company. Nothing in these views has cer, agent, or other representative of this any bearing upon the present case. Here company shall have power to waive any the power of the agent was limited, and no provision or condition of this policy, except tice of such limitation given by being embod- such as by the terms of the policy may be ied in the application, which the assured the subject of agreement indorsed hereon or was required to make and sign, and which, added hereto, and, as to such provisions or as we have stated, he must be presumed to conditions, no officer, agent, or representahave read. He is, therefore, bound by its tive shall have power or be deemed or held statements."

to have waived such provisions or condiWhat, then, are the principles sustained tions, unless such waiver, if any, shall be by the authorities, and applicable to the written upon or attached' hereto, nor shall case in hand ?

any privilege or permission affecting the inThey may be briefly stated thus: That surance under this policy exist or be claimed contracts in writing, if in unambiguous by the insured unless so written or atterms, must be permitted to speak for them- tached.” selves, and cannot by the courts, at the in- Such being the contract, and the property stance of one of the parties, be altered or insured having been destroyed by fire on contradicted by parol evidence, unless in June 1, 1898, and the insurance company case of fraud or mutual mistake of facts; having denied liability because informed that that this principle is applicable to cases of other insurance was held by the insured on insurance contracts as fully as to contracts the same property, without the knowedge or on other subjects; that provisions contained consent of the company, this action was in fire insurance policies, that such a policy brought. 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 conipany, 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 condi. matter 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 delive notice or knowledge of the existence of in. ered; 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; policy could confer such power upon himthat insurance companies may waive forfeit- self by disregarding the limitations exure caused by nonobservance of such condi- pressed in the contract, those limitations betions; that, where waiver is relied on, the ing according to all the authorities preplaintiff must show that the company, with sumably known to be insured. It was not knowledge of the facts that occasioned the shown that the company, when it received forfeiture, dispensed with the observance of the premium, knew of the outstanding in. the condition; that where the waiver relied surance, nor that, when made aware of such on is an act of an agent, it must be shown, insurance, it elected to ratify the act of its either that the agent had express authority agent in accepting the premium. On the from the company to make the waiver, or contrary, all the record discloses is that that the company subsequently, with knowl. the jury found that the agent knew, when edge of the facts, ratified the action of the the policy in the defendant company was is. agent.

sued and delivered to the plaintiff, that In the light of these principles, let us ex. there was then subsisting fire insurance to amine the contract that was made between the amount of $1,500 in another fire insur. the parties to the controversy before us. The ance company, and that such knowledge had contract was in writing, and in clear and un-' been communicated to the agent by or on

363

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behalf of the assured. There is no finding meaning of which may have faded from rec that the agent communicated to the com- ollection. pany or to its general agent at Chicago, at Besides the importance of such considerathe time he accounted for the premium, the tions to the parties immediately concerned fact that there was existing insurance on the in business transactions, the community at property, and that he had undertaken to large have a deep interest in the welfare and waive the applicable condition. Indeed, it prosperity of such beneficial institutions as appears from the letter of defendant's man- fire insurance companies. It would be very ager at Chicago, to whom the proofs of loss unfortunate if prudent men should be de had been sent, which letter was put in evi- terred from investing capital in such comdence by the plaintiff and is set forth in the panies by having reason to fear that condi. bill of exceptions, that the additional insur- tions which have been found reasonable and ance held by the plaintiff was without the necessary to put into policies to protect the knowledge or consent of the company; and companies from faithless agents and from it further appears, and was found by the dishonest insurers, are liable to be nullified jury, that immediately on the company's by verdicts based on verbal testimony. In. being informed of the fact, the amount of creased importance should be given to the the premium was tendered by the agents of rules involved in this discussion by that the company to the insured. So that there fact that, in latter times and in most, if not is not the slightest ground for claiming that all, of the states, statutory changes have the insurance company, with knowledge of opened the courts to the testimony of the the facts, either accepted or retained the very parties who have signed the written in. premium. The plaintiff's case, at its best, strument in controversy. is based on the alleged fact that the agent The judgment of the Circuit Court of Ap. had been informed, at the time he delivered peals is reversed. The judgment of the Cir. the policy and received the premium, that cuit Court is likewise reversed, and the cause there was other insurance. The only way remitted to that court with directions to to avoid the defense and escape from the proceed in conformity with this opinion. operation of the condition, is to hold that it is not competent for fire insurance com. The CHIEF JUSTICE, Mr. Justice Harlan panies to protect themselves by conditions and Mr. Justice Peckham dissent. of the kind contained in this policy. So to hold would, as we have seen, entirely sub

(183 U. S. 519) vert well-settled principles declared in the leading English and American cases, and SOUTHERN PACIFIC RAILROAD COM

PANY et al., Appts., particularly in those of this court. *This case is an illustration of the confusion and uncertainty which would be occa

UNITED STATES, Appellee. sioned by permitting the introduction of parol evidence to modify written contracts,

UNITED STATES, Appt., and by approving the conduct of agents and persons applying for insurance in disregard. SOUTHERN PACIFIC RAILROAD COM. ing the express limitations put upon the

PANY et al., Appellees agents by the principal to be affected. It should not escape observation that pre

Railroad land grants-conflicting grants serving written contracts from change or al

res judicata. teration by verbal testimony of what took

1. Each of two separate rallroad companies to place prior to and at the time the parties

whom by the same act or by acts of the same put their agreements into that form, is for date grants of land are made, in so far as the benefit of both parties. In the present the limits of their grants conflict by crossing case, if the witnesses on whom the plaintiff or lapping, takes an equal undivided molety relied to prove notice to the agent had died,

of the lands within the conflict, and neither had forgotten the circumstances, he

acquires all by priority of location or priority would thus, if he had depended to prove his

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or

of construction.

2. The construction by the Southern Pacific contract by evidence extrinsic to the writ

Railroad Company of a railroad from Sad ten instrument, have found himself unable

Francisco to the eastern boundary line of Cal. to do so. So, on the other side, if the agent ifornia, along the route approved by the joint had died, or his memory had failed, the de resolution of January 28, 1870, as authorized fendant company might have been at the by the act of July 27, 1866, making a land mercy of unscrupulous and interested wit- grant in aid of its projected line to connect nesses. It is not an answer to say that such

With the Atlantic & Pacific Railroad at such difficulties attend other transactions and ne

point near the boundary line of California as

was deemed most suitable for a railroad to gotiations, for it is the knowledge of the San Francisco, entitles it to an equal undi. inconveniences that attend oral evidence

vided moiety in all the alternate sections that has led to the custom of putting im. within the place or granted limits of such portant agreements in writing and to the le road so far as they conflict with the limits of gal doctrine that protects them when so

the grant to the Atlantic & Pacific Railroad by expressed, and when no fraud or mutual mis

3. A determination in a sult to quiet title by take exists, from being changed or modified

the United States against the Southern Pacific by the testimony of witnesses as to conver

Rallroad Company, that such railroad, claim. sations and negotiations that may never ing under the grant of March 3, 1871, took have taken place, or the real nature and no title to lands within the conflicting place

that act.

our

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limits of the grant to it under that act and of the Atlantic & Pacific, the result of of that made to the Atlantic & Paclic Rall, which litigation will be found in the fol. road Company by act of July 27, 1866, Inas, lowing decisions of this court: United much - , he latter road bad filed an approved States v. Southern P. R. Co. 146 U. S. 570, map or definite location, is not a bar to a claim in another suit between the same par. 36 L. ed. 1091, 13 Sup. Ct. Rep. 152; United ties that the Southern Pacific Railroad Com. | States v. Colton Marble & Lime Co. and pany by virtue of the construction of a rail. United States v. Southern P. R. Co. 146 U. road under the said act of July 27, 1866, had S. 615, 36 L. ed. 1104, 13 Sup. Ct. Rep. 163, an equal undivided moiety in all the odd. and Southern P. R. Co. v. United States, numbered sections which lie within the con; 168 U. S. 1, 42 L. ed. 355, 18 Sup. Ct. Rep. flicting place limits of the grant to it and

18. to the Atlantic & Pacific Railroad Company

Those decisions are claimed by the gove by that act, such lands not being the same as ernment to be controlling of this case on the those involved in the prior sult.

principle of res judicata.

There are therefore two distinct questions [Nos. 18 and 24.)

presented for 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 ?

With reference to the first question a fur. Circuit 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.

"Thence along the 35th parallel of lati. The facts are stated in the opinion. tude, as near as may be found most suita

Mr. Joseph H. Call for the United ble for a railway route, to the Colorado riv. States.

er, at such point as may be selected by said Messrs. Maxwell Evarts and L. E. company for crossing; thence by the most Payson for the Southern Pacific Railroad practicable and eligible route to the PacifCompany.

ic."

By the 3d section a grant of lands was Mr. Justice Brewer delivered the opin- made to said company in these words: ion of the court:

“Sec. 3. and be it further enacted, That On May 14, 1894, the United States filed there be, and hereby is, granted to the Atin 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 aid. against 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 terri. States 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, notre decree 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 is of affirmance both parties have appealed to claims or rights, at the time the line of said* th 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, 1868 (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 sec Railroad Company (hereinafter called the tions shall have been granted, sold, reserved, Atlantic & Pacific), in aid of its projected occupied by homestead settlers, or pre-empt line from Springfield, Missouri, to the Paed, or otherwise disposed of, other lands cific ocean, and were situated along that shall be selected by said company in lieu line between the eastern boundary of Cali- thereof, under the direction of the Secretary fornia and the Pacific ocean. The Southern of the Interior, in alternate sections, and Pacific claims title to these lands by virtue designated by odd numbers, not more than of the 13th section of that act and its pro ten miles beyond the limits of said alternate ceedings thereunder, had with the express sections, and not including the reserved approval of Congress.

numbers." Litigation has heretofore been had be The company filed its map of definite la tween the United States and the Southern cation in 1872, but never did any work in Pacific in reference to lands along the line' the way of constructing that part of its road

ocean.

from the Colorado river, that being the east- | pany to more fully and completely comply ern boundary of California, to the Pacific with and perform the requirements, provi.

On July 6, 1886, Congress passed an sions, and conditions of the said act of Conact forfeiting the lands granted to the Atlan. gress, and all other acts of Congress now in tic & Pacific, so far as they were adjacent force, or which may hereafter be enacted, to and conterminous with the uncompleted the state of California hereby consents to portions of the road. 24 Stat. at L. 123, said act; and the said company, its success. chap. 637. By this act the interest of the ors and assigns, are hereby authorized and Atlantic & Pacific in public lands in the empowered to change the line of its railroad state of California was devested and re- so as to reach the eastern boundary line of stored to the United States.

the state of California by such route as the un December 2, 1865, the Southern Pacific company shall determine to be the most was incorporated under the laws of Califor- practicable, and to file new and amendatory nia, "for the purpose of constructing, own. articles of association, and the right, pow. ing, and maintaining a railroad from some er, and privileges hereby granted to, conpoint on the bay of San Francisco, in the ferred upon, and vested in them, to constate of California, and to pass through the struct, maintain, and operate, by steam or counties of Santa Clara, Monterey, San Luis other power, the said railroad and telegraph Obispo, Tulare, Los Angeles, and San Diego line mentioned in said act of Congress, to the town of San Diego, in said state, hereby confirming to and vesting in the said thence eastward through the said county of company, its successors and assigns, all the San Diego to the eastern line of the state rights, privileges, franchises, power, and of California, there to connect with a con. authority * conferred upon, granted to, or * templated railroad from said eastern line of vested in said company by the said acts of the state of California to the Mississippi Congress and any act of Congress which may river."

be hereafter enacted.” Cal. Stat. 1869, Section 18 of the act of 1866 reads as fol. 1870, p. 883. lows:

And on June 28, 1870, Congress passed "And be it further enacted, That the the following joint resolution (16 Stat. at Southern Pacific Railroad, a company in- L. 382): corporated under the laws of the state of “Be it resolved by the Senate and House California, is hereby authorized to connect of Representatives of the United States of with the said Atlantic & Pacific Railroad, America in Congress assembled, That the formed under this act, at such point, near the Southern Pacific Railroad Company of Caliboundary line of the state of California, as fornia may construct its road and telegraph they shall deem most suitable for a railroad line, as near as may be, on the route indiline to San Francisco, and shall have a uni- cated by the map filed by said company in form gauge and rate of freight or fare with the Department of the Interior on the 3d said road; and, in consideration thereof, to day of January, eighteen hundred and sixaid in its construction, shall have similar ty-seven; and upon the construction of each grants of land, subject to all the conditions section of said road, in the manner and and limitations herein provided, and shall within the time provided by law, and notice be required to construct its road on the like thereof being given by the company to the regulations, as to time and manner, with Secretary of the Interior, he shall direct an the Atlantic & Pacific Railroad herein pro- examination of each such section by comvided for."

missioners to be appointed by the President, On January 3, 1867, the Southern Pacific as provided in the act making a grant of filed in the Interior Department a map of a land to said company, approved July twenroute from San Francisco via Mojave to ty-seventh, eighteen hundred and sixty-six, Needles, on the Colorado river. This line and upon the report of the commissioners to from Mojave to Needles is on the same gen. the Secretary of the Interior that such seceral course and contiguous to that adopted tion of said railroad and telegraph line has by the Atlantic & Pacific. The Secretary of been constructed as required by law, it the Interior refused to accept or approve shall be the duty of the said Secretary of the the map on the ground that this particular Interior to cause patents to be issued to part of the line was not authorized by the said company for the sections of land concharter of the Southern Pacific. On April terminous to each constructed section re4, 1870, the legislature of California passed ported on as aforesaid, to the extent and the following act:

amount granted to said company by the said "Whereas, by the provisions of a certain act of July twenty-seventh, eighteen hunact of Congress of the United States of dred and sixty-six, expressly saving and reAmerica, entitled 'An Act Granting Lands serving all the rights of actual settlers, toto Aid in the Construction of a Railroad and gether with the other conditions and restricTelegraph Line from San Francisco to the tious provided for in the 3d section of said Eastern Line of the State of California,' ap- act.” proved July 27, 1966, certain grants were Along this general line the Southern Pamade to, and certain rights, privileges, pow. cific constructed its road, as California said, ers, and authority were vested in and con- in reference to the grant made to the Southferred upon, the Southern Pa ific Railro ern Pacific by § 18 of the act of Congress Company, a corporation duly organized and of July 27, 1866, that it “hereby consents to existing under the laws of the state of Cali. said act;” and as Congress, by its resolufornia; therefore, to enable the said com. I tion, approved the route selected by the

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Southern Pacific as a route authorized by Co. 117 U. S. 406, 29 L. ed. 928, 6 Sup. Ct. that act, no one can question that the con- Rep. 790.” struction of the road was under such circum- As against this, it is contended that stances as entitle the company to the bene Congress could not have intended a road fit of the grant made by said 18th section of running from the western to the eastern the act of 1866.

border of California, parallel and contigu* By the act of 1866 Congress made grants ous to the Atlantic & Pacific road; that it of land to two different companies, by the must have intended a connection between 3d section, to the Atlantic & Pacific, and by the two roads on the western boundary or the 18th section, to the Southern Pacific. border of the state,-especially in view of The settled rule of construction is that the fact that the charter of the Southern where by the same act, or by acts of the Pacific contemplated only a line along the same date, grants of land are made to two western part of the state from San Francisseparate companies, in so far as the limits co to San Diego. Whatever doubts there of their grants conflict by crossing or lap- might be in respect to this matter are reping, each company takes an equal, undi. moved by the action taken by the Southern vided moiety of the lands within the con- Pacific and the resolution of June 28, 1870. flict. Neither acquires all by priority of The railroad company assumed that it had location or priority of construction. St. a right under the act of 1866 to locate a Paul & 8. C. R. Co. v. Winona & St. P. R. line to the eastern boundary of California, Co. 112 U. S. 720, 28 L. ed. 872, 5 Sup. Ct. and did locate such a line, and filed a map Rep. 334; Sioux City & St. P. R. Co. v. thereof with the Secretary of the Interior; Chicago, 1. & St. P. R. Co. 117 U. S. 406, and Congress, by the joint resolution of 29 L. ed. 928, 6 Sup. Ct. Rep. 790; Donahue June 28 in effect accepted and approved v. Lake Superior Ship Canal, R. & Iron Co. that line, and declared that the railroad 155 U. S. 386, 39 L. ed. 194, 15 Sup. Ct. company might construct its road on the Rep. 115; Sioux City & St. P. R. Co. v. route indicated on that map. United States, 159 U. S. 349, 40 L. ed. 177, Neither is the date of this resolution the 16 Sup. Ct. Rep. 17.

time at which the rights of the railroad The question as to the two grants under company arose, as is contended by counsel. this act of 1866 was presented to Mr. Jus- No new land grant was contemplated; no tice Lamar, at that time Secretary of the substitution of one grant for another, or of Interior; and his ruling to the same effect one line for another. The obvious purpose appears in a letter of instructions to the was to accept the line proffered by the road acting Commissioner of the General Land as the line intended by the act of 1866, and Office on November 25, 1887. 6 Land Dec. the grant made by the act of 1866 was rec349. In that letter he said:

ognized as rightfully to be used in aid of “The Southern Pacific Company located the construction of a road along the line its main line January 3, 1867, and by the suggested by the company. terms of the grant its right immediately at- Neither is it material whether the line tached to every odd section of land not of indicated on the map filed is to be taken as the character excepted by the grant, and a line of general route or of definite locawithin the 10-mile limit, subject, however, tion, for in fact the road was constructed to be devested to the extent of a half inter- along that line, "as near as may be,” in the est in every such odd section that might fall language of the resolution, and the road has within the common limits of both roads, aft- been accepted by the government. er the filing of the map of definite location Neither does the fact that the line of road by the Atlantic & Pacific Company. contemplated by the Southern Pacific's

“The Atlantic & Pacific Company filed its charter, at the time of the passage of the . map of definite location April 11, 1872, and act of 1866, was along the western border of April 16, 1874, showing that the primary the state prevent the operation of the or granted limits of said road overlapped grant. It is well settled that Congress has and conflicted with the primary or granted power to grant to a corporation created by limits of a portion of the Southern Pacific a state additional franchises—at least fran. road. As to the lands falling within the Cases, 99 U. S. 700, 727, sub nom. Union P.

chises of a similar nature. Sinking Fund granted limits of both roads, the filing of R. Co. v. United States, 25 L. ed. 496, 504; the map of definite location by the Atlantic Pacific Railroad Removal Cases, 115 U. S. & Pacific Company, showing such conflict, 1, 15, sub nom. Union P. R. Co. v. Myers, immediately devested the Southern Pacific 29 L. ed. 319, 324, 5 Sup. Ct. Rep. 1113; Company of the right and title to a half in- Caifornia v. Central P. R. Co. 127 'U. S. 1, terest in all such odd sections; and from 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 that monient and by that act the two com. Sup. Ct. Rep. 1073; United States v. Stan. panies became entitled to equal, undivided ford, 161 U. S. 412, 431, 40 L. ed. 751, 759, moieties in such sections, without regard 16 Sup. Ct. Rep. 576; Central P. R. Co. v. to the priority of location of the line of the Culifornia, 162 U. S. 91, 118, 123, 40 L. ed. road or priority of construction; the right 903, 912, 914, 16 Sup. Ct. Rep. 766. of each company relating back to the date In California v. Central P. R. Co. 127 U. of the grant. St. Paul & s. C. R. Co. v. S. 1, 32 L. ed. 150, 2 Inters. Com. Rep. 153, Winona & St. P. R. Co. 112 U. S. 720, 288 Sup. Ct. Rep. 1073, this very grant was L. ed. 872, 5 Sup. Ct. Rep. 334; Sioux City before the court; and Mr. Justice Bradley, & St. P. R. Co. v. Chicago, M. & St. P. R. on page 44, L. ed. p. 159, Inters. Com. Rep.

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