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 No. 492. 
 
 'it % Supreme €amtai % Initetr States 
 
 October Term, 1916. 
 
 Oregon & California Eailroad Company et al. 
 
 Appellants, 
 
 vs. 
 
 The United States. 
 
 On a Certificate from and Certiorari to the 
 
 United States Circuit Court of Appeals 
 
 for the Ninth Circuit. 
 
 BRIEF-AMICUS CURIA. 
 
 Francis J. Heney, 
 
 Amicus Curia. 
 
< 
 
 
 
 INDEX. 
 
 Argument : Page 
 
 I. Chamberlain-Ferris Act Invalid 1 
 
 II. Power of Eminent Domain 9 
 
 III. Fixing of Just Compensation is a Judicial 
 
 and not a Legislative Function 11 
 
 IV. Rule for Measuring Just Compensation. . 12 
 
 CASES CITED. 
 
 Boyd v. United States (116 U. S. 616) 15 
 
 Miller v. The State (15 Wall. 498) 7 
 
 Mississippi and Rum River Boom Co. v. Patterson 
 
 (98 U. S. 206) 13 
 
 Monongahela Navigation Co. v. United States (148 
 
 U. S. 312) 14 
 
 The Commonwealth v. The Essex Co. (13* Gray, 
 239) 8 
 
 Shields v. Ohio (95 U. S. 324) 7 
 
 Union Pacific R. R. Co. v. United States, (9 Otto 
 700) 7 
 
 United States v. Gettysburg Electric Ry. (160 U. S. 
 
 668) ' 11 
 
Jn tbe jfaprtmt Coitrt of % ftlnitcb States 
 
 October Term, 1916. 
 
 Oregon & California Railroad 
 Company, et al., Appellants, 
 
 vs. 
 The United States. 
 
 No. 492. 
 
 On a Certificate from and Certiorari to the 
 
 United States Circuit Court of Appeals 
 
 for the Ninth Circuit. 
 
 BRIEF-AMICUS CURIA. 
 
 CHAMBERLAIN-FERRIS ACT INVALID. 
 
 The Chamberlain-Ferris Act is invalid because it is 
 an attempt to take private property without just com- 
 pensation and for private use, and also without due 
 process of law. 
 
 On the former appeal in this case it was held by this 
 Court that the Oregon & California Railroad Company 
 has a "complete and absolute grant" of the lands in- 
 volved in the Chamberlain-Ferris Act, and that its 
 power to sell such land is "limited only as prescribed" 
 in the granting acts ; or, in other words, that the Rail- 
 road Company is vested with a complete and absolute 
 title to the lands. It further held that the provisos in 
 the grant are not conditions subsequent ; and that, con- 
 sequently, it is not subject to forfeiture by reason of 
 
any act or omission on the part of the Railroad Com- 
 pany in respect thereto. 
 
 In other words, this Court held that an indefeasible 
 and irrevocable title to the land is vested in the Rail- 
 road Company. 
 
 The Government attempted to secure a forfeiture of 
 the grant through judicial proceedings, and this Court 
 reversed the judgment of the trial court decreeing such 
 forfeiture, and held that under the terms of the acts of 
 Congress by which the grant was made, the Govern- 
 ment could not secure a mandatory injunction com- 
 pelling the Railroad Company to permit settlers to go 
 upon the land or to make sales thereof to them. 
 
 This Court held that the only judgment to which the 
 Government was entitled under its pleadings was "a 
 reversal of the decree of the District Court, and "an 
 injunction against further violations of the covenants. ' ' 
 
 This Court recognized the fact that an injunction 
 against further violations of the covenants would be 
 "imperfect relief", but, it said "We can only enforce 
 the provisos as written, not relieve from them." It 
 also said, the language of the proviso "is not directive ; 
 it is restrictive only." 
 
 Moreover, this Court said: 
 
 "We agree with the Government that the Com- 
 pany might choose the actual settler; might sell 
 for any price not exceeding $2.50 an acre ; might 
 sell in quantities of 40, 60, or 100 acres, or any 
 amount not exceeding 160 acres. And we add, it 
 might choose the time for selling or its use of the 
 grants as a means of credit, subject ultimately to 
 the restrictions imposed;" etc. 
 
 Obviously it was for these reasons that this Court 
 did not give the relief which was prayed for by the 
 Government in its complaint, as follows : 
 
 "(3) That a mandatory injunction shall issue 
 out of and under the seal of this Court, command- 
 
 ^ 
 
ing and requiring the said defendant Oregon and 
 California Railroad Company to offer for sale, and 
 sell and convey, said unsold lands to any bona fide 
 actual settler who may apply to purchase the same 
 in good faith, in quantities not exceeding one hun- 
 dred and sixty acres, or one quarter section, for 
 the price of two dollars and fifty cents per acre, 
 under such restrictions, in such manner and by 
 such methods as the Court shall deem adequate 
 and expedient; and providing that any and all 
 persons who may be in any way aggrieved by the 
 refusal or neglect of said defendant Oregon and 
 California Railroad Company to sell or convey 
 said lands to him or them in conformity with the 
 terms hereof, or who may be in any other manner 
 aggrieved in the premises, and hereafter apply 
 to the Court, at the foot of said judgment and 
 decree, for the enforcement thereof in his or their 
 behalf." 
 
 It is well settled that a judgment or decree must be 
 interpreted in the light of the matters that were before 
 the Court, and that the record on a former appeal may 
 be looked into for this purpose. 
 
 It seems perfectly plain, therefore, that this Court 
 did decide upon the former appeal that, unless and until 
 the granting acts (in so far as they are laws) are 
 added to, altered, or amended, the courts possess no 
 power to compel the Railroad Company to permit 
 settlers to go upon its lands or to sell the same to 
 settlers or otherwise or at all. The Railroad Company 
 may continue to choose the actual settler and the time 
 for selling, and the Courts cannot interfere with its 
 discretion in these particulars. 
 
 It seems equally plain that Congress has no power, 
 without the consent of the Railroad Company, to add 
 to, alter, or amend the granting acts so as to change 
 in any substantial respect the contractural relations 
 which have thereby been established between the Gov- 
 ernment and the Railroad Company, or so as to impair 
 in any substantial degree the rights of ownership and 
 
 <*U093 
 
the indefeasible and irrevocable "complete and abso- 
 lute" title which has vested in the Railroad Company 
 under said granting acts. 
 
 It appears, however, that it was contended by the 
 Government that more than 1,000 persons had made 
 application to purchase from the Railroad Company 
 in conformity to the covenants in the grant, and that 
 ever since 1903 the Railroad Company had been refus- 
 ing to make any such sales of its said lands. It further 
 appears that it was contended by the Railroad Com- 
 pany that such applications were made by persons who 
 desired to obtain title on account of the timber, and 
 not otherwise, and for the purpose of speculation only, 
 and not in good faith as actual settlers, and that the 
 lands were chiefly, and in most instances solely, of 
 value because of the timber thereon, and were not fit 
 for actual settlement. 
 
 This Court was of the opinion that it was clear that 
 such lands as were fit for cultivation were more valu- 
 able for the timber which was upon them. 
 
 For these reasons evidently, this Court concluded 
 that an injunction merely against future violations of 
 the covenants would not afford the measure of relief 
 to which the facts of the case entitled the Government, 
 and that under the circumstances just described, Con- 
 gress might desire to relax the restrictions of the 
 granting acts and to permit the Railroad Company to 
 sell to persons other than actual settlers, and, perhaps, 
 to sell the timber lands in larger quantities than one 
 hundred and sixty acres to one person. 
 
 Consequently this Court said : 
 
 ' ' "We think therefore that the Railroad Company 
 should not only be enjoined from sales in violation 
 of the covenants, but enjoined from any disposition 
 of them whatever or of the timber thereon, and 
 from cutting or authorizing the cutting or removal 
 of any of the timber thereon, until Congress shall 
 have a reasonable opportunity to provide by legis- 
 
lation for their disposition in accordance with 
 such policy as it may deem fitting under the cir- 
 cumstances, and at the same time secure to the 
 defendants all the value the granting acts con- 
 ferred upon the railroads." 
 
 The obvious meaning of the foregoing language 
 seems to be that the Railroad Company should be en- 
 joined from any disposition" of the grant lands " what- 
 ever" as well as "from any disposition of 
 the timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for their 
 disposition" by the Railroad Company "in accordance 
 with such policy as" Congress "may deem fitting under 
 the circumstances," and at the same time secure to the 
 Railroad Company "all the value the granting acts 
 conferred upon the railroad. ' ' 
 
 The Government makes the astounding contention, 
 however, that by said language, this Court intended to 
 authorize Congress to provide by legislation for the 
 "disposition" by the United States, instead of by the 
 Railroad Company, of the aforesaid lands to which the 
 Railroad Company has "a complete and absolute 
 grant" "with power to sell, limited only 
 
 as prescribed," as well as with power to "choose the 
 actual settler, ' ' and to ' ' sell for any price not exceeding 
 $2.50 an acre," and to "sell in quantities of 40, 60, or 
 100, or any amount not exceeding 160 acres," and to 
 ' ' choose the time for selling or its use of the grants as 
 a means of credit." 
 
 The mere statement of this contention would seem 
 to furnish its own refutation. 
 
 As some of the grant lands are fit for settlement and 
 cultivation and as other parts thereof are so heavily 
 covered with valuable timber that they are unfit fox- 
 cultivation, and as still other parts thereof are less 
 heavily covered with timber, and, while fit for cultiva- 
 tion, are more valuable for the timber thereon, and 
 as the Railroad Company is required to pay local 
 
6 
 
 County and State taxes upon all of the patented lands, 
 and as it is the undoubted policy of the Government 
 to have these enormous holdings of lands and the 
 timber and minerals thereon, put to the highest use 
 possible by as large a number of its citizens as prac- 
 ticable, at as early a time as practicable, it might well 
 have been expected by this Court that Congress would 
 desire to add to, alter, or amend the granting acts in 
 so far as relates to the disposition of these lands by 
 the Railroad Company, and particularly to relax the 
 restrictions of the grant in regard to the sale of the 
 heavily timbered land to actual settlers only or in 
 tracts of not to exceed 160 acres, as well as in regard to 
 the maximum price of $2.50 per acre. Obviously, it 
 would be to the advantage of both the public and the 
 Railroad Company to have certain changes made in the 
 terms of the restrictions in the granting acts. Some 
 changes might be desired which could only be made 
 with the consent of the Railroad Company. 
 
 As a matter of public policy Congress might desire 
 to alter or amend the granting acts by removing or 
 relaxing some of the restrictions upon the sale of the 
 lands by the Railroad Company. This could undoubt- 
 edly be done without any formal consent by the latter. 
 
 Perhaps Congress possesses power to alter or amend 
 the granting acts so as to require or compel the Rail- 
 road Company to permit settlers to go upon such lands 
 as are fit for cultivation, and to sell not more than 160 
 acres to any such settler, and to fix the period of settle- 
 ment which shall entitle such settler to purchase such 
 lands. Perhaps such amendatory legislation could give 
 such settler the right to maintain suit in the proper 
 Federal Court to enforce the right of purchase thus 
 acquired by him. 
 
 It is entirely clear that Congress does have power to 
 add to, alter, or amend the granting acts in any way 
 that does not impair the substantial vested rights of the 
 Railroad Company in the granted lands, as defined by 
 
7 
 this Court in its opinion and judgment on the former ap- 
 peal. It seems equally clear that by its aforesaid lan- 
 guage this Court intended to have the status quo of the 
 grant lands preserved for a reasonable length of time 
 to afford Congress an opportunity to enact such legis- 
 lation only. 
 
 In the case of Union Pacific R. R. Co. v. United 
 States (9 Otto, 700) this Court said: 
 
 "No change can be made in the title created by 
 the grant of the lands, or in the contract for the 
 subsidy bonds, without the consent of the corpora- 
 tion. All this is indisputable." 
 
 In the same case this Court, in referring to the power 
 of Congress reserved in a granting act to add to, alter, 
 amend, or repeal the same, said : 
 
 "That this power has a limit, no one can doubt. 
 All agree that it cannot be used to take away prop- 
 erty already acquired under the operation of the 
 charter, or to deprive the corporation of the fruits 
 actually reduced to possession of contracts law- 
 fully made ; but, as was said by this Court, through 
 Mr. Justice Clifford, in Miller v. The State (15 
 Wall. 498) : 
 
 'It may safely be affirmed that the reserved 
 power may be exercised, and to almost any ex- 
 tent, to carry into effect the original purposes of 
 the grant, or to secure the due administration of 
 its affairs, so as to protect the rights of stock- 
 holders and of creditors, and for the proper dis- 
 position of its assets ; and, again, in Holyoke v. 
 Lyman (15 Wall. 519), To protect the rights of 
 the public and of the corporators or to promote 
 the due administration of the affairs of the cor- 
 poration.' " 
 
 In Shields v. Ohio (95 U. S. 324), the Court said: 
 
 ' ' The power of alteration and amendment is not 
 without limit. The alterations must be reasonable : 
 
8 
 
 they must be made in good faith; they must be 
 consistent with the scope and object of the act of 
 incorporation. Sheer oppression and wrong can- 
 not be inflicted under the guise of amendment or 
 alteration. Beyond the sphere of reserved powers, 
 the vested rights of property of corporations, in 
 such cases, are surrounded by the same restriction, 
 and are as inviolable as in other cases. 
 
 In the leading case of The Commonwealth v. The 
 Essex Company (13 Gray, 239), Chief Justice Shaw ex- 
 presses the rule in apt language as follows : 
 
 "The rule to be extracted is this, that when 
 under power in a charter, rights have been ac- 
 quired and become vested, no amendment or alter- 
 ation of the charter can take away the property or 
 rights which have become vested under a legiti- 
 mate exercise of the powers granted." 
 
 The same principle is expressed in many different 
 forms in an innumerable number of cases. 
 
 In the case at bar the Government brought suit to 
 secure a forfeiture of the grant of lands which was ac- 
 quired by the Oregon & California Railroad Company, 
 and also to recover the excess amount of money which 
 had been received by said Railroad Company from the 
 sale of some of its grant lands contrary to the restric- 
 tive covenants of the grant. The trial court decreed 
 the forfeiture but denied the right of the Government 
 to recover from the Railroad Company such excess 
 money. This Court reversed the judgment of the trial 
 court, but it expressed no opinion and gave no direction 
 to the trial court in regard to its denial of the right of 
 the Government to recover such excess money. 
 
 The Chamberlain-Ferris act proceeds upon the 
 theory that ' ' all the value the granting acts conferred 
 upon the Railroad" was the right to receive the gross 
 sum of $2.50 per acre for the total number of acres of 
 land contained in the grants, and that it had no vested 
 
rights in the grant which could not be ignored, re- 
 pudiated, or taken away from it by the Government 
 through legislative action, provided only that it was 
 secured in its right to receive that total and gross 
 amount of money at some time in the future, which the 
 Government might consider reasonable; and that no 
 allowance need be made for the expense of administer- 
 ing the grant or for taxes paid to the counties and 
 State by the Eailroad Company. 
 
 The right to exercise dominion over the land, and to 
 choose the settlers, and to sell for less than $2.50 per 
 acre, and in any quantities less than 160 acres, and to 
 choose the time for selling, and to use the grant as a 
 means of credit, are all discarded as of no value, or as 
 being fully compensated for by the maximum price of 
 $2.50 per acre to be paid in the manner specified in the 
 act. 
 
 POWER OF EMINENT DOMAIN. 
 
 It is contended by the Government that the Chamber- 
 lain-Ferris Act is sustainable upon the theory that in 
 so far as it takes the land and property of the Railroad 
 Company it is an exercise by the Government of the 
 power of eminent domain. This contention will hardly 
 stand analysis. The argument that the land is taken 
 for a public use because the original purpose of the 
 grant was to secure the settlement of that part of the 
 country, and because the proceeds of the sales of the 
 land "are to go to purposes undoubtedly public", is 
 rather attenuated, to say the least. 
 
 The avowed purpose of the Government is to resell 
 the land to private parties. It is difficult to understand 
 by what process of reasoning the conclusion can be 
 reached that the land is thus to be devoted to a public 
 use, merely because the proceeds from its sale are to be 
 applied to public purposes. The fact that a part of the 
 
10 
 
 proceeds is to be put in an ''irreducible school fund", 
 and that another part of it is to be expended for 
 common schools, roads, highways, bridges, and port 
 districts, and that another part of it is to be expended 
 for reclamation purposes, and that only ten per cent, 
 of it is to be put in the "general fund of the Treasury", 
 may serve to make the law popular; but it can hardly 
 be said to relate back and make the sale of the lands to 
 private parties a public use. If all of the proceeds were 
 to be put in the "general fund of the Treasury", it 
 could just as well be argued that the exercise of the 
 power of eminent domain by the Government was justi- 
 fiable, upon the same theory. 
 
 The argument that the land is to be devoted to a 
 public use, because it is to be resold by the Government 
 in many parcels to many private persons, and because 
 the policy of the Government to secure the settlement 
 of the country will thus be advanced, is equally un- 
 sound. In the first place, it is admitted by the Govern- 
 ment that a large part of the land is covered with 
 timber and will be unfit for cultivation or settlement 
 for many years to come. The Chamberlain-Ferris Act 
 recognizes this fact and provides for the sale of the 
 timber exclusive of the land. Indeed, the terms of the 
 act are calculated, and seem intended to enable the 
 Government, to sell all the timber that is on the lands 
 at the best prices obtainable ; and it was contended by 
 the Government on the former appeal of this case that 
 the value of these lands is about twenty-five million 
 dollars in excess of the amount of $2.50 per acre which 
 the railroad company is entitled to receive, and that 
 this enormous excess value arises largely and almost 
 entirely from the timber thereon. 
 
 It is axiomatic that if the Government desires to take 
 this land under its power of eminent domain it can do 
 so only for a public use and only by paying just com- 
 pensation for the same. 
 
11 
 
 This Court has frequently decided what constitutes a 
 public use in this sense. It is contended by the Govern- 
 ment that the case at bar falls within the principles laid 
 down by this Court in the case of the United States v. 
 Gettysburg Electric Railway Co. (160 U. S. 668), be- 
 cause in that case this Court said : 
 
 "When the legislature has declared the use or 
 purpose to be a public one, its judgment will be 
 respected by the Courts, unless the use be palpably 
 without reasonable foundation." 
 
 Referring to the case at bar counsel for the Govern- 
 ment say: 
 
 i t There was no formal declaration here that the 
 purpose was public, but that, we apprehend, is not 
 necessary when its character is evident, as in this 
 case." 
 
 In this particular it is conceded that counsel for the 
 Government are correct. The Chamberlain-Ferris Act 
 contains no declaration that the purpose is public. 
 Moreover, ' ' its character is evident. ' ' It seeks to take 
 the land of the Railroad Company for the purpose of 
 permitting the Government to sell the timber from it 
 to private parties at an enormous profit, as well as to 
 resell the land to private parties for private use. 
 
 FIXING OF JUST COMPENSATION IS A JU- 
 DICIAL AND NOT A LEGISLATIVE 
 FUNCTION. 
 
 In the Chamberlain-Ferris Act Congress has assumed 
 to fix the amount of compensation which ought to be 
 paid to the Railroad Company for its lands. In the 
 case of Monongahela Navigation Co. v. United States, 
 (148 U. S. 312), this Court said: 
 
12 
 
 "The question presented is jnot whether the 
 United States has the power to condemn and ap- 
 propriate this property of the Monongahela Com- 
 pany, for that is conceded, but how much it must 
 pay as compensation therefor. Obviously this 
 question, as all others which run along the line 
 of the extent of the protection the individual has 
 under the Constitution against the demands of the 
 Government, is of importance, for in any society 
 the fullness and sufficiency of the securities which 
 surround the individual in the use and enjoyment 
 of his property constitute one of the most certain 
 tests of the character and value of the Govern- 
 ment. * * * 
 
 "By this legislation Congress seems to have 
 assumed the right to determine what shall be the 
 measure of compensation. But this is a judicial 
 and not a legislative, question. The legislature 
 may determine what private property is needed 
 for public purposes ; that is a question of a 
 political and legislative character. But when the 
 taking has been ordered, then the question of com- 
 pensation is judicial. It does not rest with the 
 public, taking the property, through Congress or 
 the legislature, its representative, to say what 
 compensation shall be paid, or even what shall be 
 the rule of compensation. The constitution has 
 declared that just compensation shall be paid, and 
 the ascertainment of that is a judicial inquiry. 
 
 RULE FOR MEASURING JUST COMPENSATION. 
 
 In the case at bar Congress has undertaken to deter- 
 mine not only "what compensation shall be paid" to 
 the Railroad Company, but also, "what shall be the 
 rule of compensation." It has undertaken to apply 
 as the proper rule of compensation the provisos in the 
 granting acts that the lands should not be sold by the 
 Railroad Company at a price in excess of the sum of 
 $2.50 per acre. But, obviously, this is not the proper 
 rule of compensation to be applied, if the Chamberlain- 
 
13 
 
 Ferris Act can be sustained only upon the theory that 
 it constitutes an exercise of the power of eminent do- 
 main on the part of the Government, because in that 
 event the maximum selling price fixed by the granting 
 acts is certainly not conclusive on the question. 
 
 In the case of Mississippi and Rum River Boom Co. 
 v. Patterson (98 IT. S. 206), this Court held: 
 
 "That in determining the value of land appro- 
 priated for public purposes, the inquiry must be : 
 What is the property worth in the market, from its 
 availability for valuable uses, both now and in the 
 future?" 
 
 In that case this Court said : 
 
 "In determining the value of land appropriated 
 for public purposes, the same considerations are 
 to be regarded as in a sale of property as between 
 private parties. The inquiry in such cases must 
 be, What is the property worth in the market, 
 viewed not merely with reference to the uses to 
 which it is at the time applied, but with references 
 to the uses to which it is plainly adapted; that is 
 to say, what is it worth from its availability for 
 valuable uses! Property is not to be deemed 
 worthless because the owner allows it to go to 
 waste, or to be regarded as valueless because he is 
 unable to put it to any use. Others may be able 
 to use it and make it subserve the necessities or 
 conveniences of life. Its capability of being made 
 thus available gives it a market value which can 
 be readily estimated." 
 
 And in the same case this Court quoted with approval 
 the statement of the Supreme Court of New York : 
 
 ' ' That neither the purpose to which the property 
 was applied, nor the intention of the owner in 
 relation to its future enjoyment, was a matter of 
 much importance in determining the compensation 
 to be made to him; but that the proper inquiry 
 
14 
 
 was, what is the value of the property for the most 
 advantageous uses to which it may be applied?" 
 
 In this connection it is important to observe that in 
 the case of the Monongahela Navigation Company v. 
 United States (supra), this Court said: 
 
 "The language used in the fifth amendment in 
 respect to this matter is happily chosen. The en- 
 tire amendment is a series of negations, denials of 
 right of power in the Government; the last (the 
 one in point here) being: 'Nor shall private prop- 
 erty be taken for public use without just compen- 
 sation. ' The noun ' compensation', standing by 
 itself, carries the idea of an equivalent. Thus we 
 speak of damages by way of compensation of com- 
 pensatory damages, as distinguished from punitive 
 or exemplary damages; the former being the 
 equivalent for the injury done, and the latter im- 
 posed by way of punishment. So that, if the ad- 
 jective 'just' had been omitted and the provision 
 was simply that property should not be taken 
 without compensation, a natural import of the 
 language would be that the compensation should 
 be the equivalent of the property. And this is 
 made emphatic by the adjective 'just.' There 
 can, in view of the combination of those two words, 
 be no doubt that the compensation must be a full 
 and perfect equivalent for the property taken; 
 and this just compensation, it will be noticed, is 
 for the property, and not to the owner. Every 
 other clause in this fifth amendment is personal. 
 'No person shall be held to answer for a capital 
 or otherwise infamous crime ' etc. Instead of con- 
 tinuing that form of statement, and saying that 
 no person shall be deprived of his property without 
 just compensation, the personal element is left out, 
 and the 'just compensation' is to be a full equiva- 
 lent for the property taken. This excludes the tak- 
 ing into account as an element in the compensation 
 any supposed benefit that the owner may receive 
 in common with all from the public uses to which 
 his private property is appropriated, and leaves it 
 
15 
 
 to stand as a declaration that no private property 
 shall be appropriated for public uses unless a full 
 and exact equivalent for it be returned to the 
 owner." 
 
 In the case at bar it is admitted by the Government 
 that the value of the property which is taken from the 
 Oregon & California Railroad Company by the Govern- 
 ment under the Chamberlain-Ferris Act is approxi- 
 mately $30,000,000, and that the amount to be paid or 
 credited to the Railroad Company is substantially less 
 than $6,000,000. Hence it can hardly be said that under 
 this act, "a full and exact equivalent" for the land 
 taken is "to be returned to the owner." 
 
 Even if it is conceded, however, for the purpose of 
 the argument that the Oregon & California Railroad 
 Company will receive a full and exact equivalent, or, in 
 other words, just compensation, under the Chamber- 
 lain-Ferris Act for the lands taken from it, then, never- 
 theless, it is true that the act in question is invalid and 
 constitutes a dangerous precedent as an insidious in- 
 vasion of the rights of private property which are 
 guaranteed by the Constitution, by substituting legis- 
 lative for judicial action, and thus depriving the party 
 of the right to a hearing before the judgment is pro- 
 nounced. Speaking for this Court, in Boyd v. United 
 States (116 U. S. 616), Mr. Justice Bradley appropri- 
 ately said : 
 
 "Illegitimate and unconstitutional practices get 
 their first footing in that way, namely, by silent 
 approaches and slight deviations from legal modes 
 of procedure. This can only be obviated by ad- 
 hering to the rule that constitutional provisions for 
 the security of person and property should be 
 liberally construed. A close and literal construc- 
 tion deprives them of half their efficacy, and leads 
 to gradual depreciation of the right, as if it con- 
 
16 
 
 sistecl more in sound than in substance. It is the 
 duty of courts to be watchful for the constitutional 
 rights of the citizen, and against any stealthy en- 
 croachments thereon. Their motto should be 
 obesta principiis." 
 
 Respectfully submitted, 
 
 Francis J. Heney, 
 
 Amicus Curia. 
 
FEB if, 1917 
 
 JAMES 0. M 
 
 No: 492 
 
 In the Supreme Court of the United States 
 
 OCTOBER TERM, 1916. 
 
 CERTIORARI TO THE UNITED STATES CIRCUIT COURT 
 OF APPEALS FOR THE NINTH CIRCUIT. 
 
 OREGON AND CALIFORNIA RAIL- 
 ROAD COMPANY, a Corpora- 
 tion, et al., 
 
 Defendants and Appellants, 
 
 vs. 
 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 Brief for Defendants and Appellants, Oregon and 
 California Railroad Company, Southern Pacific 
 Company, and Stephen T. Gage, individu- 
 ally and as trustee. 
 
 Wm. F. Herein, 
 P. F. Dunne, 
 Wm. D. Fenton, 
 Solicitors and Attorneys for said 
 Defendants and Appellants. 
 Frank C. Cleary, 
 Of Counsel. 
 
Subject Index 
 
 PAGES 
 
 STATEMENT 1-12 
 
 ASSIGNMENT OF ERRORS 12-13 
 
 POINT I. THE DISTRICT COURT ERRED IN EX- 
 CEEDING THE MANDATE OP THIS COURT.. 13-87 
 The Decree of the District Court — Its terms 
 and scope examined in the light of the 
 
 opinion of this Court 13-41 
 
 The Grantee's Estate 41-82 
 
 Intrinsic and Corroborative Evidence of the 
 
 Granting Acts themselves 82-87 
 
 POINT II. THE FERRIS ACT IS INVALID 87-119 
 
 Naked Power of Sale in Contradistinction from 
 
 Estate in Fee 98-112 
 
 Reservation Clause in the Act of July 25, 1866. . 112-118 
 The Question of Condemnation 118-119 
 
 POINT III. COSTS WERE IMPROPERLY TAXED 
 
 AGAINST THESE APPELLANTS 119-124 
 
 ( 
 
 APPENDIX A.— Decree on Mandate of the United 
 States Supreme Court signed, made and entered by 
 the United States District Court 125-128 
 
 APPENDIX B.— Form of Decree of Mandate tendered 
 
 by the Appellants to said Court for its signature. .129-130 
 
 APPENDIX C— The Ferris Act 131-144 
 
11 
 Table of Cases Cited or Referred To 
 
 A PAGES 
 
 Attorney General v. Duke of Marlborough, 3 Madd. 498 . . 77-82 
 
 B 
 Bienville Water Supply Co. v. Mobile, 186 U. S. 212, 222. .117 
 
 Bissell v. Goshen, 72 Fed. 545, 548, 552 37-38, 44 
 
 Blair v. Chicago, 201 U. S. 475 82 
 
 Burke v. Southern Pacific R. R. Co., 234 U. S. 669, 679-80 
 
 42-3,86 
 
 Bybee v. 0. & C. R. R. Co.. 139 U. S. 663, 674 43-4 
 
 C 
 California v. San Pablo & Tulare R. R. Co., 149 U. S. 308. . . .12 
 
 Campbell v. California, 200 IT. S. 87, 90-93 12 
 
 Chicago & Burlington R. R. Co. v. Chicago, 166 U. S. 226, 
 
 235 94 
 
 Chicago, M. & St. P. R. R. Co. v. Wisconsin, 238 U. S. 491, 
 
 501-2 117 
 
 Commonwealth v. Essex Co., 13 Gray 239, 253 113 
 
 D 
 
 Davidson v. New Orleans, 96 U. S. 97, 102 90, 94 
 
 De Peyster v. Michael, 6 N. Y. 467, 506 54-5 
 
 Detroit v. Detroit P. R. Co., 43 Mich. 140, 146-148 117 
 
 F 
 
 Fletcher v. Peck, 6 Cranch 135 88, 102 
 
 G 
 Gannon v. Peterson, 193 111. 372, 55 L. R. A. 701 76 
 
 H 
 
 Hamilton's Works, Vol. 3, 518-19 91 
 
 Heath v. Ross, 12 Johns 140 67 
 
 Howe v. Lowell, 171 Mass. 576 68-73 
 
 Howe v. Lowell, 171 Mass. 582-3 82, 85 
 
 Humbird v. Avery, 195 U. S. 480, 501 95 
 
 Houston & Texas Central Ry. Co. v. Texas, 170 U. S. 243, 
 
 254-5 117 
 
Ill 
 
 PAGES 
 
 L 
 
 Landers v. Landers, 151 Ky. 215-17 73-77 
 
 Lessieur v. Price, 12 How. 76 107 
 
 Long Sault Development Co. v. Call, U. S. Sup. Ct., Dec. 11, 
 
 1916 117-18 
 
 Lord v. Veazie, 8 How. 251 11-12 
 
 M 
 
 Menotti v. Dillon, 167 U. S. 703, 721 43 
 
 .Miller v. State, 15 Wall. 478 114 
 
 Mills v. Green, 159 U. S. 651-3 11 
 
 Missouri Pac. v. Nebraska, 164 U. S. 403-417 94 
 
 Monongahela Navigation Co. v. U. S., 148 IT. S. 312, 327.. 119 
 Musser v. McRae, 44 Minn. 343 67, 68 
 
 N 
 
 Nichols v. Southern Oregon Co., 135 Fed. 233 21-2 
 
 Northern Trust Co. v. Snyder, 77 Fed. 818 122 
 
 
 
 Ochoa v. Hernandez, 230 U. S. 140, 161 116 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 393. . .2, 97-8 
 Oregon & Cal. R. R, Co. v. United States, 238 U. S. 417-18. .15-16 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 421-2. . .17-18 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 422-3 
 
 29-30,45 
 
 Oregon & Cal. R. R, Co. v. United States. 238 U. S. 424-5. .120-21 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 428. . . .18, 29 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 432. .7, 18, 45 
 I >regon & Cal. R. R. Co. v. United States. 238 U. S. 432-3. . .19-20 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 434-5 
 
 '. 7, 20-21, 29, 44-5 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 436. .7, 14. 45 
 
 Oregon & Cal. R. R, Co. v. United States, 238 U. S. 437 14 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 437-9 
 
 7-8.24-26 
 
 P 
 
 Pawlett v. Clark, 9 Cranch 292 101 
 
 Piatt v. Union Pacific R. R. Co., 99 U. S. 48 41. 42 
 
 Polk v. Wendall, 9 Cranch 87, 99 24 
 
IV 
 
 PAGES 
 
 R 
 
 Railway Company v. Anderson, 149 U. S. 237 ; 13 Sup. 
 
 Ct. 843 38 
 
 Railroad Company v. Courtright, 21 Wall. 310 62 
 
 Reeves on Real Property, Sec. 423 47-8 
 
 Rice v. Railroad Co., 1 Black 358 9, 98-107, 108, 109 
 
 Rice v. Railroad Co., 1 Black 378-9 105-106 
 
 Rice v. Railroad Co., 1 Black 381-2 9, 106-7 
 
 Roberts v. Cooper, 20 How. 467 44, 45 
 
 S 
 
 Sanford Fork & Tool Co. Petitioner, 160 U. S., p. 247 44 
 
 Schnlenberg v. Harriman, 21 Wall. 44 
 
 48-51, 52, 55, 56, 57, 61, 98, 107-109, 111 
 
 Schulenberg v. Harriman, 21 Wall. 53 108 
 
 Schulenberg v. Harriman, 21 Wall. 59-60 48-9, 109 
 
 Schulenberg v. Harriman, 21 Wall. 62 49-50, 109 
 
 Schulenberg v. Harriman, 21 Wall. 63 50 
 
 Schulenberg v. Harriman, 21 Wall. 64 51 
 
 Sibbald v. U. S., 12 Pet. 488, 492 38 
 
 Sinking-Fund Cases, 99 U. S. 700 90-116 
 
 Sinking-Fund Cases, 99 U. S. 718 90-91 
 
 Sinking-Fund Cases, 99 U. S. 720-21 114 
 
 Sinking-Fund Cases, 99 IT. S. 731 91 
 
 Sinking-Fund Cases, 99 U. S. 738 92 
 
 Sinking-Fund Cases, 99 U. S. 741 114 
 
 Sinking-Fund Cases, 99 U. S. 742 115 
 
 Sinking-Fund Cases, 99 U. S. 744 92 
 
 Sinking-Fund Cases, 99 U. S. 746 93 
 
 Sinking-Fund Cases, 99 U. S. 749 115 
 
 Sinking-Fund Cases, 99 U. S. 757 93, 116 
 
 Sinking-Fund Cases, 99 U. S. 759-760 93-4 
 
 Story's Equity Jurisprudence, Vol. 2, Sec. 915 77 
 
 Stearns v. Minnesota, 179 U. S. 223, 259 116-17 
 
 Street on Federal Equity Practice, Sec. 2022 123 
 
 T 
 
 Terrett v. Taylor, 9 Cranch 43, 50 89-90, 101 
 
 Turner v. Wright, 6 Jur. N. S. 809; 29 L. J. Ch. N. S. 598. . .77 
 
V 
 
 PAGES 
 
 u 
 
 United States v. Anderson, 194 U. S. 394 63-68 
 
 United States v. Hamburg American Co., 239 U. S. 466, 
 
 475-6 12 
 
 United States v. Inman-Paulson Lbr. Co., 233 Fed. 942 95 
 
 United States v. Losekamp, 127 Fed. 959 85 
 
 United States v. Loughrey, 172 U. S. 206 .. . 52-54, 57, 62, 63, 67 
 
 United States v. Loughrey, 172 U. S. 208 55 
 
 United States v. Loughrey, 172 U. S. 209 53-4 
 
 United States v. Loughrey, 172 U. S. 211 56 
 
 United States v. Loughrey, 172 U. S. 217-18 58, 67 
 
 United States v. Loughrey, 172 U. S. 219 58 
 
 United States v. Loughrey, 172 U. S. 221 59 
 
 United States v. Loughrey, 172 U. S. 230-31 59-60 
 
 United States v. Tennessee & Coosa R. R. Co., 176 U. S. 
 
 242 60-63 
 
 United States v. Union Pacific R. R. Co., 91 U. S. 72, 81 84 
 
 United States v. Union Pacific R. R. Co., 98 U. S. 569. 613. . . .42 
 United States v. Union Pacific R. R. Co.. 160 U. S. 1, 32-33. . .117 
 
 W 
 
 WVilsingham's Case. Plowd. — Chitty 75 
 
 Washburn Real Property. 4th Ed., Vol. 1. Page 89, Sec. 86 75 
 
 Washburn Real Property, 5th Ed., Page 95 54 
 
 Weed v. Woods, 75 N. H. 581 75 
 
 Wellington et al.. Petitioners, 16 Pick. 87. 99 71-2 
 
 Wilkinson v. Leland, 2 Pet. 627, 657-8 89 
 
 Windsor v. McVeigh, 93 U. S. 282-3 39 
 
No. 492 
 
 In the Supreme Court of the United States 
 
 OCTOBER TERM, 1916. 
 
 CEBTIOBABI TO THE UNITED STATES CIRCUIT COUBT 
 OF APPEALS FOB THE NINTH CIBCUIT. 
 
 OREGON AND CALIFORNIA RAIL- 
 ROAD COMPANY, a Corpora- 
 tion, et al., 
 
 Defendants and Appellants, 
 
 vs. 
 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 Brief for Defendants and Appellants, Oregon and 
 California Railroad Company, Southern Pacific 
 Company, and Stephen T. Gage, individu- 
 ally and as trustee. 
 
 STATEMENT. 
 This case, the Oregon Land Grant Case, is now 
 here for the second time. It came here the first 
 time from the Circuit Court of Appeals for the 
 
Ninth Circuit on certificate and certiorari; the 
 cause was heard in its entirety; and the opinion of 
 this court, announced by Mr. Justice McKenna, is 
 reported in 238 U. S., pages 393-439. 
 
 The decree below was, by this court, "reversed 
 and cause remanded to the District Court for fur- 
 ther proceedings in accordance with this opinion". 
 
 On return of the cause to the District Court of 
 Oregon, a decree was therein entered on December 
 9, 1915, as a sequel and in assumed pursuance of 
 the mandate of this court. This decree, as appel- 
 lants saw it, was not in accordance with the man- 
 date. In their view, it went beyond the mandate 
 of this court; it decided and assumed to conclude 
 matters in excess of the mandate; more specifically, 
 it undertook to impose a construction upon the 
 rights of these appellants in respect to the timber 
 and the mineral content of the land grant in ques- 
 tion, not warranted, it is believed, by the opinion 
 and mandate of this court. Appellants accordingly 
 took the case by appeal to the Circuit Court of 
 Appeals for the Ninth Circuit; and from that court, 
 by certificate and certiorari, the cause is brought 
 here for the second time. 
 
 A land grant was made in 1862 to the Union Pa- 
 cific and Central Pacific Railroads, in aid of the 
 construction of a transcontinental railroad from the 
 Missouri River to San Francisco Bay on the Pa- 
 cific Ocean. The extension of that trans-continental 
 railroad from some point in California, fixed at 
 
Roseville, near Sacramento, northward through 
 California and Oregon to the City of Portland, was 
 in the mind of Congress in 1866; and in that year 
 a land grant was made in aid of the construction 
 of such a railroad. So much of the land as lay 
 within the State of Oregon, was granted to such 
 company as should be designated by the Oregon 
 Legislature, and upon that company was laid the 
 burden of building the road from Portland south 
 to the interstate line between Oregon and Cali- 
 fornia. The Act of 1866 was amended in 1869, 
 and in 1870 an additional act was passed granting 
 land in aid of the construction of a railroad from 
 Portland by way of Forest Grove to tidewater at 
 Astoria on the Oregon Coast, and in a southerly 
 direction to McMinnville, an Oregon point. The 
 land embraced in the Act of 1866, as amended in 
 1869, and in the Act of 1870, is the Oregon land 
 grant. 
 
 The act of 1866, as it was amended in 1869, pro- 
 vided, — and much the same provision, in terms, was 
 in the act of 1870, — "that the lands granted by 
 the act aforesaid shall be sold to actual settlers only, 
 in quantities not greater than one-quarter section 
 to one purchaser and for a price not exceeding 
 $2.50 per acre." But the Acts of 1866 and 1869 
 and of 1870 were relatively slow in arriving. The 
 Pre-emption Law of September 4, 1841, the Ore- 
 gon Donation Act of September 27, 1850, and the 
 Homestead Law of May 20, 1862, had gone before. 
 
The valley lands, adaptable for settlement and 
 falling within the primary limits of the railroad 
 grant, had been taken up under these earlier 
 statutes. The railroad company was put to it to 
 find its lands within the indemnity limits of the 
 grant, — not valley lands these, but in great part 
 mountain forests. Some land there was, susceptible 
 of cultivation, not a great deal of it, and this the 
 railroad company, in the earlier years of the grant, 
 disposed of for settlement, as contemplated by the 
 settlers' clause of the granting act. Later, and 
 when the timber began to take on value, the com- 
 pany made sales of the timbered land — for lumber 
 was soon to become, as it did, the principal industry 
 of the state, — and those sales, naturally, were in 
 larger quantities than the small parcels of the 
 settlers' clause, and at somewhat higher prices, and 
 not to farmers but to lumbermen. These tran- 
 sactions, in departure from the literal requirements 
 of the settlers' clause, were open and above board. 
 They were the only practicable way of making the 
 grant responsive to what this court has held to be 
 the primary purpose of the act, namely, to aid in 
 the construction of a railroad; they were matters 
 of common knowledge; they were matters of public 
 record ; they were known to the people of the state, 
 to the courts of the state and of the nation, to the 
 Land Department and the executive government and 
 to both houses of Congress. They were reported 
 with the utmost particularity of transaction, in 
 
5 
 
 respect to the location and quantity of the lands 
 sold and the prices paid, to a bureau of the Land 
 Department specially constituted for the purpose 
 of receiving and acting on such information, and 
 this information, in all its particularity, was trans- 
 mitted to the Secretary of the Interior, and by him 
 to the President, and by the President to both houses 
 of Congress, and was there referred to the appro- 
 priate committees and perpetuated as executive 
 documents; and this information was so communi- 
 cated and transmitted yearly and half-yearly dur- 
 ing a period of twenty-five years, and in pursuance 
 of the act of Congress of 1879 precisely calling for 
 the information. Everything that was done by the 
 railroad company in dealing with these lands, was 
 in the light of day, and went on for over a genera- 
 tion, indeed for nearly forty years, without objec- 
 tion from the State of Oregon, without objection 
 from the Land Department or the Executive govern- 
 ment or Congress. If a railroad company was ever 
 justified, or the stockholder who put his money into 
 it, or the bondholder who loaned his money to it, in 
 believing that a course of conduct had been ratified 
 by general acquiescence, and a departure from the 
 literal and exact language of a statute had been 
 waived and assented to, the case at bar is a reveal- 
 ing instance. 
 
 Indeed, Congress, at no time, of its own initiative, 
 called into question the course of dealing with these 
 lands by the company. It was a memorial of the 
 
Legislature of Oregon, procured by interested par- 
 ties to be adopted in the year 1907, and complaining 
 of the temporary withdrawal by the railroad com- 
 pany of these granted lands from sale, — upon the 
 ground, as stated in the bill, "of the great injury 
 inflicted upon commercial and industrial condi- 
 tions," — that moved Congress to take action. The 
 Attorney-General was authorized by joint resolu- 
 tion, to proceed against the company, and the suit 
 in equity, now pending, and of which this appeal 
 is a phase, then followed. 
 
 It will be recalled that the first appeal was taken 
 from the decree of the District Court of Oregon, 
 forfeiting the title of the company to the granted 
 lands, as for a breach of the settlers' clause, con- 
 strued in that court to be a condition subsequent. 
 Upon a certificate of questions from the Circuit 
 Court of Appeals to this court, the whole record 
 was ordered up and the case was considered and 
 decided at large. It was held here that the settlers' 
 clause was not a condition subsequent, that it was 
 a covenant only, enforceable by injunction. The 
 decree of the District Court of Oregon was reversed, 
 and the cause was remanded to that court for fur- 
 ther proceedings in accordance with the opinion of 
 the Supreme Court. It is the decree entered by the 
 District Court in such further proceedings, that the 
 pending appeal now brings in question, and for the 
 reason, as it is submitted, that the decree is not in 
 accordance with the opinion of the Supreme Court. 
 
This court has ruled that "there was a complete 
 and absolute grant to the railroad company, with 
 power to sell, limited only as prescribed" by the 
 settlers' provisos. (238 U. S., pp. 434-5) And as 
 to these provisos, it was said by this Court : "Their 
 language is not directive, it is restrictive only; and 
 with this exception the grant is unqualified." (238 
 U. S. p. 432) 
 
 Upon the fullest consideration, it was determined 
 here that the settlers' proviso was not a condition 
 subsequent, that it was a covenant, and the for- 
 feiture of the railroad company's estate was re- 
 versed. Injunctive relief, as being appropriate to 
 the provisos, in their character of covenant, was 
 awarded — "an injunction against further violations 
 of the covenants". (238 U. S., p. 436) A tem- 
 porary restraining order was also made — six 
 months being the period indicated — with the object, 
 as the Government's motion for certiorari puts it, 
 of "preserving the status of the property until Con- 
 gress might act". The language of the opinion (238 
 U. S., p. 438) is as follows: 
 
 "The lands invite now more to speculation 
 than to settlement, and we think, therefore, 
 that the railroad company should not only be 
 enjoined from sales in violation of the cove- 
 nants, but enjoined from any disposition of 
 them whatever, or of the timber thereof, and 
 from cutting or authorizing the cutting or 
 removal of any of the timber thereon, until 
 
8 
 
 Congress shall have a reasonable opportunity 
 to provide by legislation for their disposition in 
 accordance with such policy as it may deem 
 fitting under the circumstances, and at the 
 same time secure to the defendants all the 
 value the granting acts conferred upon the 
 railroads." 
 
 "If Congress does not make such provision 
 the defendants may apply to the District Court 
 within a reasonable time, not less than six 
 months, from the entry of the decree herein for 
 a modification of so much of the injunction 
 herein ordered as enjoins any disposition of 
 the lands and timber until Congress shall act, 
 and the Court in its discretion may modify 
 the decree accordingly." 
 
 The decree of the District Court enjoins the 
 railroad company from sales of the granted lands 
 in violation of the covenants — a general and per- 
 manent injunction, so far forth in pursuance of 
 the mandate, but as to the timber and minerals of 
 the granted lands, the decree is not limited to the 
 scope of a temporary restraining order as required 
 by the opinion of this court. It goes farther, it 
 forbids the exercise by the grantee at any time of any 
 right of ownership in respect to the timber or mine- 
 rals of its land. It denies to the owner of the land any 
 use or benefit of the timber or the minerals; it 
 accords a bare permission to transfer the timber 
 and the minerals along with the land, when a sale is 
 made of that land to a settler pursuant to the 
 
proviso. But such a transfer of timber and min- 
 erals would not need a decree; it goes without say- 
 ing; the unsevered timber as such, the unextracted 
 mineral, is part of the realty. In effect, therefore, 
 and not temporarily but for good and all, this 
 decree obliterates all rights of the owner of a "com- 
 plete and absolute grant", in the timber and min- 
 erals of the granted land. 
 
 The decree, however, is not the last word. On 
 June 9, 1916, Congress passed the Ferris Act, for- 
 feiting the railroad's title to the granted lands. It 
 is true, the harsh word, "forfeited," is not em- 
 ployed; "revested" is the term used; "the title" is 
 declared to be "revested in the United States". 
 (Sec. 1) Even "a mere naked trust or power to dis- 
 pose of the lands in the manner specified (in the 
 granting act) and to apply the same to the use and 
 purpose therein described", (Rice against Railroad 
 Company, 1 Black 358, 381) is denied the railroad. 
 
 The revested grantor attends to all that, and in 
 its own way. It sells the timber as such; (Sec. 4) 
 it disposes of the minerals as such; (Sec. 3) and to 
 the extent that the land, cleared of its timber or 
 exploited of its minerals, has become susceptible of 
 agricultural treatment, it proposes to sell it to 
 settlers. (Sec. 5) For the grantee who built the 
 road and earned the land and received the patents 
 for it, and upon whom the granting act imposes the 
 perpetual burden of transporting the grantor's 
 troops and property, free of toll, a shadowy provi- 
 
10 
 
 sion is reserved. It is to receive from its grantor a 
 sum of money for its divested title, figured at $2.50 
 per acre of the granted lands, patented and un- 
 patented, but after deductions and on time. (Sees. 
 7-10) The deductions include "all receipts of money 
 from sales of land or timber, forfeited con- 
 tracts, rent, timber depredations, and interest on 
 contracts, or from any other source relating to 
 said lands, also the value of timber taken from said 
 lands and used by said grantees, or their successor 
 or successors" ; also "the amount of the taxes on said 
 lands paid by the United States, as provided in this 
 act, and which should in law have been paid by the 
 said Oregon and California Railroad Company." 
 (Sec. 7) The balance, if any, surviving this pro- 
 cess, is payable on time, out of such moneys as may 
 be "received from or on account of said lands and 
 timber under the provisions of this act". (Sec. 10) 
 This legislative decree does not contemplate a pres- 
 ent payment for the enforced resumption of title. 
 The railroad company must bide its time and for 
 years. "Payments shall be made from time to 
 time", it is declared, "as the fund accumulates, by 
 the Treasurer of the United States, upon the order 
 of the Secretary of the Interior: provided, however, 
 that if, upon the expiration of ten years from the 
 approval of this act, the proceeds derived from the 
 sale of lands and timber are not sufficient to pay 
 the full amount which said railroad company, its 
 successors or assigns, are entitled to receive, the 
 
11 
 
 balance due shall be paid from the general funds in 
 the Treasury of the United States". (Sec. 10.) 
 
 The six months period, fixed by the temporary re- 
 straining order of this court, has now only an 
 academic interest. It expired long since. The stress 
 of the second decree of the District Court of Ore- 
 gon is on the timber rights and mineral rights of 
 the grantee. It extinguishes them. But whether 
 it went beyond the mandate of this court and the 
 right of the matter in so doing, becomes a' mere moot 
 question, an abstract proposition, if it was compe- 
 tent to Congress by the Ferris Act, to resume the 
 title to the land without the consent of its owner. 
 
 "The duty of this court", it was said in Mills 
 against Green, 159 U. S., 651-653, "as of every 
 other judicial tribunal, is to decide actual contro- 
 versies by a judgment which can be carried into 
 effect, and not to give opinions upon moot questions 
 or abstract propositions, or to declare principles or 
 rules of law which cannot affect the matter in issue 
 in the case before it. It necessarily follows that 
 when, pending an appeal from the judgment of a 
 lower court, and without any fault of the defend- 
 ant, an event occurs which renders it impossible for 
 this court, if it should decide the case in favor of 
 the plaintiff, to grant him any effectual relief what- 
 ever, the court will not proceed to a formal judg- 
 ment, but will dismiss the appeal. And such a 
 fact, when not appearing on the record, may be 
 proved by extrinsic evidence. Lord v. Veazie, 8 
 
12 
 
 How. 251; California v. San Pablo & Tulare Rail- 
 road, 149 U. S., 308". (See also Campbell v. Cali- 
 fornia, 200 U. S., 87, 90-93 ; United States v. Ham- 
 burg American Company, 239 U. S., 466, 475-6.) 
 
 This court will now determine, it is believed, 
 "whether the enactment of the subsequent statute", — 
 (Campbell v. California, supra.) of the Ferris Act, 
 in the case at bar, was a constitutional exercise 
 of the power of Congress. "If the act be invalid", 
 said the Government in its application for certiorari 
 in this case, "that fact should be known before fur- 
 ther important steps are taken in its administration, 
 before sales are made or settlements allowed and 
 the money of purchasers and settlers is accepted, 
 before large additional expenditures of public money 
 are incurred in the payment of taxes or in work of 
 investigation, and before the institution of the new 
 legal proceedings which the act directs". 
 
 ASSIGNMENT OF ERRORS. 
 
 Errors have been assigned to the decree below 
 on the part of the Oregon and California Railroad 
 Company, on the part of the Southern Pacific Com- 
 pany, on the part of Stephen T. Gage, individually 
 and as trustee, and on the part of the Union Trust 
 Company, individually and as trustee. 
 
 The assignments of error for these four appel- 
 lants are, it will be readily understood, substantially 
 identical. It would serve no useful purpose to re- 
 peat these assignments at this point, in view of the 
 
13 
 
 argument which follows, and in which they are 
 gathered up. It will only be necessary to say, we 
 venture to think, that they all turn, with more or 
 less particularity and variation of form and ex- 
 pression, on the fundamental contention that the 
 District Court erred in exceeding the mandate of 
 this court. The further contention now comes in, 
 that the action of the District Court does not raise 
 a mere moot question, and this for the reason that 
 the Ferris Act is invalid. The District Court, it 
 may be added, adjudged costs in the sum of $6,249.- 
 02 against these appellants, and to its action in that 
 regard error is assigned. 
 
 I. 
 
 THE DISTRICT COURT ERRED IN EXCEEDING THE 
 MANDATE OF THIS COURT. 
 
 Decree of the District Court — its terms and scope 
 examined in the light of the opinion of this court. 
 
 The contention of the government that the set- 
 tlers' clause is a condition subsequent, entailing a 
 forfeiture for its breach, was rejected by this court. 
 The cross-complainants, alleging themselves to be 
 "actual" settlers upon the land, and the interveners, 
 alleging themselves to be "constructive" settlers 
 upon the land, made the contention that they had 
 rights in the land as beneficiaries of a trust which 
 the railroad company, as trustee, should be con- 
 strained to execute — that contention was rejected. 
 The settlers' provisos were held to be covenants, 
 
14 
 
 enforceable by an injunction against future viola- 
 tions of the same. We give the words of the opinion, 
 238 U. S., at page 436: "Rejecting, then, the con- 
 tention of the government, and the contentions of 
 the cross-complainants and interveners, and regard- 
 ing the settlers' clauses as enforceable covenants, 
 what shall be the judgment? A reversal of the 
 decree of the District Court, of course; and clearly 
 an injunction against further violations of the cove- 
 nants." 
 
 That the injunction contemplated was in the 
 nature of a restriction upon the future conduct of 
 the railroad company, is again brought out at the 
 same page of the opinion. The court is referring to 
 the disregard of the covenants, to the gains received 
 by the company in excess of the legal or statutory 
 price as fixed by the settlers' clause, and it goes 
 on to say: "In view of such disregard of the cove- 
 nants and gain of illegal emolument, and in view of 
 the government's interest in the exact observance 
 of them, it might seem that restriction upon the 
 future conduct of the railroad company and its 
 various agencies is imperfect relief; but the govern- 
 ment has not asked for more." 
 
 And again, at page 437 of the opinion, the court 
 says: "However, an injunction simply against 
 future violations of the covenants, or to put it an- 
 other way, simply mandatory of their requirements, 
 will not afford the measure of relief to which the 
 facts of the case entitle the government." 
 
15 
 
 It is not to be assumed, however, for a moment, 
 that the court, in holding the provisos to be cove- 
 nants, enforceable by injunction and that an in- 
 junction should go against future violations of them, 
 decided, or meant to decide, that these covenants 
 were directive to the grantee or imposed any obliga- 
 tion upon it to make sales of the lands, or were 
 other than restrictive in character — restrictive, in 
 the sense that if the railroad company exercised its 
 option to make sales of the granted land, it was re- 
 stricted in such sales, so far as purchasers were con- 
 cerned, to actual settlers; so far as quantities were 
 concerned, to a maximum of 160 acres to each pur- 
 chaser; and so far as price was concerned, to a 
 maximum of $2.50 an acre. An injunction, enforc- 
 ing the covenants to the extent and by the measure 
 of these restrictions, was the injunction which the 
 court had in mind. 
 
 To illustrate: The court, at pages 417-418 of 
 the opinion, is meeting the argument of the govern- 
 ment that the railroad company had made a breach 
 of the provisos and was amenable to a forfeiture. 
 "In its argument at bar," says the court, "the 
 government insisted that it was the duty of the rail- 
 road company to have provided the machinery for 
 settlement, and, by optional sales, guarded by pro- 
 bational occupation of the lands, to demonstrate 
 not only initial, but the continued, good faith of 
 settlers ; and that the omission to do so was of itself 
 a breach of the provisos, and incurred a forfeiture 
 
16 
 
 of the grants. "But when", the court continues, 
 "did such obligation attach? Before or after the 
 construction of the road — construction in sections, 
 or completely? The contention encounters the 
 government's admission that there was no obliga- 
 tion imposed upon the railroad to sell. And we have 
 the curious situation — which is made something of 
 by cross-complainants and interveners in opposition 
 to the government's contention, — of the right of 
 settlers to buy, but no obligation on the railroad to 
 sell, and yet a duty of providing for sales under an 
 extreme and drastic penalty. We may repeat the 
 question, Might not such consequences have ended 
 the enterprise, making it and its great purpose 
 subordinate to local settlement? Indeed, might not 
 both have been defeated by the inversion of their 
 purposes." 
 
 The court rejects, as well, an argument made for 
 the grantee that the covenants, expressed by the 
 provisos, were not enforceable because of their lack 
 of certainty, repugnancy to the grant, and impossi- 
 bility of performance. The court saw, in the sales 
 made in earlier years to settlers of some hundred 
 and sixty-three thousand acres of the granted land, 
 a demonstration so far forth of the certainty and 
 practicability of the provisos; and it went on to 
 show that, while these provisos imposed no affirma- 
 tive duty upon the railroad company to make sales, 
 yet when sales were in point of fact made, it was 
 the duty of the railroad company to make those 
 
17 
 
 sales within the limitations and prohibitions of the 
 covenant. After referring to the example of these 
 early sales to settlers, the court says, at pages 421-2 
 of the opinion, "The demonstration of the example 
 would seem to need no addition. But passing the 
 example, as it may be contended to have some ex- 
 planation in the character of the lands so disposed 
 of, the deduction from the asserted uncertainties is 
 met and overcome by the provisos and their explicit 
 direction. They are, it is true, cast in language of 
 limitation and prohibition; the sales are to be made 
 only to certain persons and not exceeding a specified 
 maximum in quantities and prices. If the lan- 
 guage may be said not to impose 'an affirmative 
 obligation to people the country' it certainly im- 
 poses an obligation not to violate the limitations 
 and prohibitions when sales were made; and it is 
 the concession of one of the briefs that the obliga- 
 tion is enforceable, and that, even regarding the 
 covenant as restrictive, the 'jurisdiction of a court 
 of equity upon a breach or threatened breach of the 
 covenant, to enforce performance by enjoining a 
 violation of the covenant cannot be doubted.' Appo- 
 site cases are cited to sustain the admission, and 
 in answer to the contention of the government that 
 it could recover no damages for the breach and 
 hence had no enforceable remedy but forfeiture, it 
 is said: 'But the jurisdiction of a court of equity in 
 such cases does not depend upon the showing of 
 damage. Indeed, the very fact that injury is of 
 
18 
 
 public character and such that no damage could be 
 calculated is an added reason for the intervention 
 of equity.' And cases are adduced." 
 
 The opinion now proceeds: "We concur in the 
 reasoning, and give it greater breadth in the case 
 at bar than counsel do. They would confine it, or 
 seem to do so, to the compulsion of sales of land 
 susceptible of actual settlement, and assert that the 
 evidence established that not all of the lands, nor 
 indeed the greater part of them, have such suscepti- 
 bility. But neither the provisos nor the other parts 
 of the granting acts make a distinction between the 
 lands, and we are unable to do so. The language 
 of the grants and of the limitations upon them is 
 general. We cannot attach exceptions to it. The 
 evil of an attempt is manifest. The grants must be 
 taken as they were given. Assent to them was re- 
 quired and made, and we cannot import a different 
 measure of the requirement and the assent than the 
 language of the act expresses. It is to be remem- 
 bered that the acts are laws as well as grants and 
 must be given the exactness of laws." 
 
 Again, at page 428, the court says: "The char- 
 acter of the lands furnished no excuse. It might 
 have justified non-action, but it did not justify 
 antagonistic action." 
 
 Again, at page 432, the court can see no merit in 
 the claim of the interveners, who were mere con- 
 structive or potential settlers, under a statute deal- 
 ing with actual settlers. "The word 'actual/ " the 
 
19 
 
 court says, "expresses a settlement completed, not 
 simply contemplated or possible. Upon the express 
 words of the provisos, it would seem that inter- 
 veners' claims to be beneficiaries of the trust, if 
 there is a trust, must be refuted." But as to the 
 cross-complainants, alleging themselves to be actual 
 settlers, the argument, under a statute dealing with 
 actual settlers eo nomine, is more difficult, and the 
 considerations are more appealing; and this leads 
 the court to re-affirm its interpretation that these 
 provisos are restrictive merely, not directive. 
 
 Said the court (p. 432) : "The cross-complainants 
 present arguments of more difficulty, supported by 
 appealing considerations. 'Actual settlers' are the 
 words of the provisos, and we may assume actual 
 settlers were contemplated, and sales of the lands 
 were restricted to them; but how were actual set- 
 tlers to be ascertained and by whom? And was 
 there a compulsion or option as to sales? There 
 could not be an absolute right to settle or purchase 
 unless there was an absolute compulsion to sell. 
 The acts of Congress omit regulation. Their lan- 
 guage is not directive; it is restrictive only. With 
 this exception, the grant is unqualified' 1 But the 
 court says further (pp. 432-3) : "There is plausi- 
 bility in the argument which represents that if 
 the provisos be held to give to the railroad a discre- 
 tion of sale, the choice of time and settlers, their re- 
 quirement is impotent, and instead of securing 
 settlement would prevent it; instead of devoting 
 
20 
 
 the lands to development, retain them in monopoly 
 and a kind of mortmain." 
 
 "We feel the strength of the argument but can- 
 not yield to it. There are countervailing ones. We 
 have already indicated that nothing can be deduced 
 from the imperfections of the granting acts. In- 
 deed, the argument of cross-complainants, like a 
 great many other contentions in the case, get their 
 plausibility from the abuses of the granting acts, 
 not their uses. We have seen that in the early days 
 of the grants, settlements were normally made and 
 the railroad, in the exercise of its discretion, re- 
 sponded to such settlement by sales to settlers." 
 
 Again, pointing to the withdrawal of the granted 
 lands from the operation of the public land laws and 
 to the resulting differentiations, the court says (p. 
 434) : "The public land laws had tests of the quali- 
 fication of settlers under them; they had also the 
 machinery of proof and precaution. When the 
 granted lands were withdrawn from those laws and 
 primarily devoted to another purpose, they were 
 committed to another power, to be administered for 
 such purpose ; and a discretion in the exercise of the 
 power, within the restriction imposed, was neces- 
 sarily conferred." 
 
 And finally, at pages 434-5 of the opinion, the 
 court says: "There was a complete and absolute 
 grant to the railroad with power to sell, limited 
 only as prescribed, and we agree with the govern- 
 ment that the company 'might choose the actual 
 
21 
 
 settler; might sell for any price not exceeding $2.50 
 an acre; might sell in quantities of 40, 60 or 100 
 acres, or any amount not exceeding 160 acres/ 
 And we add, it might choose the time for selling, or 
 its use of the grants as a means of credit, subject 
 ultimately to the restrictions imposed". 
 
 It is abundantly clear from the decision of this 
 court, that the language of these provisos "is not 
 directive, it is restrictive only;" and that the obli- 
 gation imposed upon the company is "an obligation 
 not to violate the limitations and prohibitions when 
 sales were made." The absolute grant to the rail- 
 road company carried the "power to sell, limited 
 only as prescribed." The company, as the govern- 
 ment itself argued, and as the court agreed, "might 
 choose the actual settler, might sell for any price 
 not exceeding $2.50 an acre, might sell in quanti- 
 ties of 40, 60 or 100 acres, or any amount not ex- 
 ceeding 160 acres;" and more than that, as the 
 court explicitly held, "it might choose the time for 
 selling." 
 
 There can be no misunderstanding of the position 
 of the court as to whether there was "a compulsion 
 or option as to the sales." The same thought was 
 expressed in Nichols v. Southern Oregon Co., 135 
 Fed., 233, where the Court said, speaking of a simi- 
 lar provision : 
 
 "The grant was not a law for the sale of the 
 granted lands. It did not offer them for sale. 
 That was left to the state, (the grant being 
 
22 
 
 to the state directly) subject to restrictions as 
 to the price at which they should be sold and 
 the quantity that should be sold to any one 
 person. These restrictions were mere inci- 
 dents of the grant, mere regulations that the 
 state was required to observe in selling the 
 granted lands, at such time after they were 
 earned as the state should conclude to sell them." 
 
 And in the Government's brief on demurrer to 
 the bill, in the case at bar, it was said, at page 154: 
 
 "The terms of this proviso are prohibitive 
 and not compulsory; that is, it prohibits sales 
 except within the maximum limits imposed. 
 Each of the limitations is in the negative form 
 — 'actual settlers', quantities 'not greater', 
 prices 'not exceeding'." 
 
 And at page 226 of the same brief the Gov- 
 ernment says: 
 
 "In the case at bar observance of the condi- 
 tion would consist in refraining from making 
 sales to others than actual settlers, in quanti- 
 ties exceeding 160 acres to any one purchaser 
 for a price exceeding $2.50 an acre. The thing 
 prohibited was specifically stated in language 
 which is not susceptible of any doubt or un- 
 certainty." 
 
 An injunction, therefore, "against future viola- 
 tions of the covenants," as decreed by the court, once 
 the covenants, as construed by the court, are un- 
 derstood, is not difficult to appreciate. It does not 
 
23 
 
 import or imply a direction to the company to make 
 sales, for the covenants were not directive. It does 
 import a restriction upon the company, for the cov- 
 enants were restrictive. It subjects the grantee 
 to a restriction, "when sales were made," made 
 not under "compulsion" but at the "option" and 
 in the "discretion" of the grantee, that such sales 
 should not violate the limitations and prohibitions 
 of the provisos — that they should not be made 
 except to actual settlers, that they should not be 
 made in quantities to exceed 160 acres, and that 
 they should not be made at prices in excess of $2.50 
 an acre. A decree for such an injunction, would be 
 a decree in accordance with the opinion of the court. 
 
 One thing, however, was quite clear to the court — 
 that the settlers' clause was a settlement clause; 
 that it was not passed for the benefit of timber 
 speculators. The restriction on the railroad com- 
 pany, in making sales of forest land insusceptible 
 of settlement, and chiefly valuable for timber, at a 
 maximum price of $2.50 an acre, would be virtually 
 an invitation to the timber speculator, under the 
 guise of a settler; the railroad company would be 
 limited to that constituency for its purchasers; and 
 the Congressional policy and intent would be de- 
 feated. Some measure of relief the government — 
 and as well the grantee — was entitled to, appropri- 
 ate to that situation. 
 
 The decree of this court vindicates the title of 
 the grantee in explicit and emphatic terms. But 
 
24 
 
 it seems to have been conceived by the court, on a 
 view of the whole case, that the temporary restrain- 
 ing order, keeping the subject matter in statu quo, 
 was an equitable condition to annex to its decree, in 
 aid of such amendatory legislation, competent to 
 Congress, as, consistently with the rights of the 
 grantee, might afford relief from unworkable re- 
 quirements. 
 
 "The Court" said Chief Justice Marshall, in Polk 
 v. Wendall, 9 Cranch, 87, 99, "may, on a view of 
 the whole case, annex equitable conditions to its 
 decree, or order what may be reasonable, without 
 absolutely avoiding a whole grant". 
 
 The court makes no suggestion as to the char- 
 acter of this amendatory legislation, except that it 
 is careful to say that any action by Congress in the 
 premises must "secure to the defendants all the 
 value the granting acts conferred upon the rail- 
 roads." It will be convenient and aidful to quote 
 the language of the opinion at pages 437-9: 
 
 "The Government alleged in its bill that 
 more than 1000 persons had made application 
 to purchase from the railroad company in 
 conformity to the covenants. In answering, 
 the defendants averred that such applications 
 were made by persons who desired to obtain 
 title on account of the timber and not other- 
 wise, and for the purpose of speculation only 
 and not in good faith as actual settlers. And 
 it was averred that the lands were chiefly and 
 in most instances solely of value because of the 
 
25 
 
 timber thereon and were not fit for actual set- 
 tlement. And, further, that the lands capable 
 of actual settlement and the establishment of 
 homes thereon at no time 'exceeded (approxi- 
 mately) 300,000 acres, consisting of small and 
 widely separated tracts, all of which were sold 
 to actual settlers or persons claiming to be 
 such during construction and prior to comple- 
 tion, respectively, of said railroads, in quan- 
 tities of 160 acres or less to a single purchaser, 
 at prices not exceeding $2.50 per acre/ 
 
 "A great deal of testimony was introduced, 
 consisting not only of that of witnesses but of 
 maps, photographs, reports and publications, 
 which tended to establish the asserted character 
 of the lands. And there was evidence in re- 
 buttal. We cannot pause to determine the 
 relative probative force of the opposing testi- 
 monies. It is, however, clear, even from the 
 Government's summary of the evidence, that 
 lands which may be fit for cultivation have a 
 greater value on account of the timber which 
 is upon them. Besides, for our present pur- 
 pose we may accept the assertion of defend- 
 ants; and we have seen that Congress extended 
 the Timber and Stone Act to the reserved lands, 
 and by the act of August 20, 1912, supra, it 
 has withdrawn from entry or the initiation of 
 any right whatever under any of the public 
 land laws of the United States the lands which 
 might revert to the United States by reason 
 of this suit. 
 
 "This, then, being the situation resulting 
 from conditions now existing, incident, it may 
 
26 
 
 be, to the prolonged disregard of the covenants 
 by the railroad company, the lands invite now 
 more to speculation than to settlement, and we 
 think, therefore, that the railroad company 
 should not only be enjoined from sales in vio- 
 lation of the covenants, but enjoined from any 
 disposition of them whatever or of the timber 
 thereon and from cutting or authorizing the 
 cutting or removal of any of the timber there- 
 on, until Congress shall have a reasonable op- 
 portunity to provide by legislation for their 
 disposition in accordance with such policy as 
 it may deem fitting under the circumstances 
 and at the same time secure to the defendants 
 all the value the granting acts conferred upon 
 the railroads. 
 
 "If Congress does not make such provision the 
 defendants may apply to the District Court 
 within a reasonable time, not less than six 
 months, from the entry of the decree herein, 
 for a modification of so much of the injunc- 
 tion herein ordered as enjoins any disposition 
 of the lands and timber until Congress shall 
 act, and the court in its discretion may modify 
 the decree accordingly. 
 
 ^Decree reversed and cause remanded to the 
 District Court for further proceedings in ac- 
 cordance with this opinion." 
 
 It will be seen, therefore, that the opinion of the 
 Court contemplates as well a secondary and tem- 
 porary injunction as a general and permanent in- 
 junction. The general and permanent injunction is 
 against future violations of the covenants as we now 
 
27 
 
 know those covenants to be, in their scope and ef- 
 fect, as understood by the court. The secondary 
 and temporary injunction it is, and that only, which 
 has reference to the timber. Its obvious purpose 
 is to maintain the status quo, so far as these lands 
 and the timber upon them are concerned, for a lim- 
 ited period, until some adjustment, remediable of 
 the anomaly that valuable timber lands should be 
 salable at $2.50 an acre, can be accomplished. 
 Whatever adjustment may be made, it must be con- 
 sistent with the vested rights of the railroad com- 
 pany. No legislation by Congress providing for 
 the disposition of these lands, and that by their owner, 
 the railroad company, is within the mind of the 
 court, except such as is consistent with the vested 
 rights of the railroad company — such as shall "se- 
 cure to the defendants all the value the granting 
 acts conferred upon the railroads.'' It is not con- 
 templated, it could not have been, that Congress 
 should provide for a disposition of those lands by 
 Congress itself, or by anybody else who did not own 
 the lands. The effort of the government in this 
 litigation to disestablish the ownership of the rail- 
 road company, to enforce a forfeiture, to revest the 
 title in the United States, had failed. That con- 
 tention had been definitely rejected. The railroad 
 ownership had been vindicated and confirmed over 
 and over again, but the owner of those lands, the 
 railroad company, in essaying to make sales of 
 the lands, was hedged in by the terms of a re- 
 
28 
 
 strictive covenant, enforceable by injunction — was 
 limited, in the disposition of these lands, to sales to 
 actual settlers, in small parcels, at a price of $2.50 
 an acre. The condition of the subject matter of 
 the covenant — its physical and its economic condi- 
 tion — was inconsistent with such a covenant, the 
 land was timber land, it was not settlement land, it 
 was insusceptible of settlement, and its value was in 
 excess of $2.50 an acre. Some relief from this im- 
 practicable covenant — some feasible and equitable 
 relaxation of its strictness in the way of an amend- 
 ment and expansion of the power of disposition con- 
 ferred upon the railroad company — this was the 
 problem as the court saw it, and this is made ap- 
 parent if we turn again to the opinion itself. 
 
 If these covenants were unworkable, the course 
 of the railroad company, as the court viewed it, was 
 not to ignore or disregard them — they were a con- 
 tract and a law. The true course was to go to 
 Congress for some amendatory legislation in the 
 way of relief from their requirements. The judg- 
 ment of the court on the grant and on these cove- 
 nants, it was said, was not to be determined by sug- 
 gestions ab mconvenienti; "It is determined," we 
 give the language of the opinion "by the simple 
 words of the acts of Congress, not only regarded 
 as grants but as laws, and accepted as both ; grant- 
 ing rights but imposing obligations — rights quite 
 definite, obligations as much so. The first had the 
 means of acquisition; the second, of performance; 
 
29 
 
 and, as we have pointed out, whatever the difficul- 
 ties of performance, relief could have been applied 
 for, and, it might be, have been secured through an 
 appeal to Congress. Certainly, evasion of the laws 
 or the defiance of them should not be resorted to." 
 And taking these covenants as it found them, the 
 court was not willing to enlarge their obligation by 
 the wisdom that comes after the event. "Nor can 
 their obligation," said the court, "be magnified by 
 looking backwards, by the results achieved rather 
 than when they were only hoped for — by condi- 
 tions of which there was not even prophecy." 
 (Opinion p. 435). 
 
 Again, the court had said, at page 428: "The 
 character of the lands furnished no excuse ; it might 
 have justified non-action, but it did not justify an- 
 tagonistic action." And more at large, and in- 
 structively, the court says, (pp. 422-3) : "If the 
 provisos were ignorantly adopted as they are as- 
 serted to have been; if the actual conditions were 
 unknown as is asserted ; if but little of the land was 
 arable, most of it covered with timber and valuable 
 only for timber and not fit for the acquisition of 
 homes; if a great deal of it was nothing but a 
 wilderness of mountain and rock and forest; if its 
 character was given evidence by the application of 
 the Timber & Stone Act to the reserved lands; if 
 settlers neither crowded before nor crowded after 
 the railroad, nor could do so ; if the grants were not 
 as valuable for sale or credit as they were supposed 
 
30 
 
 to have been, and difficulties beset both uses, the 
 remedy was obvious. Granting the obstacles and in- 
 firmities, they were but promptings and reasons for 
 an appeal to Congress to relax the law; they were 
 neither cause nor justification for violating it." 
 
 A decree, then, in accordance with the opinion of 
 this court would be injunctive in character, and of a 
 two-fold aspect. It would, in the first place, en- 
 join the railroad company, generally and per- 
 manently, from future violations of these restric- 
 tive covenants. It would, in the second place, and 
 as a suspensive measure, hold the lands in statu quo, 
 for a limited period, until some relief from the 
 strictness of disposition required by covenants, when 
 seen to be inapposite to the subject matter, should 
 be afforded by Congress. This secondary and sus- 
 pensive injunction puts the sales of the land, al- 
 though made in full conformity with the provisos, 
 and as well the use of the timber by the com- 
 pany, in the same category. Notwithstanding 
 that the railroad company might seek to dispose of 
 160 acres of this land, during the period of the 
 suspensive injunction, to an actual settler, at $2.50 
 an acre — pursuing literally the terms of the pro- 
 viso — it is enjoined ad interim from doing so; and 
 it is likewise enjoined, during the interim, from us- 
 ing the timber. The company's clear right to sell 
 these lands, if it so elects, in conformity with the 
 provisos, was a thing conceded of everybody. But 
 
31 
 
 that clear right is put in abeyance by the temporary 
 injunction ; and similarly, the equally clear right of 
 the owner of the land to the timber growing upon 
 it, is put in abeyance for the same period and in 
 the same way. No question has been made in this 
 case, whether in printed briefs or in oral discussion 
 at bar, as to the right of an owner by absolute 
 grant to the use of the timber on his land. No such 
 question was decided in the opinion of the court; 
 no such question was stated or considered or dis- 
 cussed in that opinion. What the lower court was 
 directed to do, was to enter an injunctive decree, 
 restraining the railroad company from future vio- 
 lations of the covenants, as those covenants had 
 been construed by the Supreme Court, and, further, 
 by secondary and temporary injunction, to pre- 
 serve the status quo in respect to the lands and the 
 timber until Congress could interpose with some 
 relief by amendatory legislation, consistent with the 
 vested rights of the owner of the grant. 
 
 The District Court, it is to be said with great 
 deference, was not content to pursue the mandate 
 of the Supreme Court. Its decree was in excess of 
 that mandate. It was what this court has termed 
 an "intermeddling" with matters outside the scope 
 of the mandate. It proceeded to determine that the 
 railroad company had no right to use the timber 
 upon its own lands while they were still unsold and 
 in its possession and occupancy; it determined that 
 the railroad company could not even make a clear- 
 
32 
 
 ing in anticipation of a sale to some settler, or dig 
 out a ton of coal ; and it adjudged that the owner of 
 the land had no right in the timber or the coal ex- 
 cept to pass it, as part of the realty, when it sold 
 the land to a settler at $2.50 an acre. Two de- 
 crees were presented to the District Court — the one, 
 by the government, imposing these new and added 
 features upon the mandate of this court, and this 
 proposed decree, with an omission not material here, 
 was adopted by the District Court; the other, by 
 these appellants, pursuing the very terms of the 
 mandate. These decrees are set forth in the 
 transcript of the record, and are printed as ap- 
 pendices to this brief. 
 
 We should now look at these decrees. The first 
 paragraph is the same in both decrees. It provides 
 that the original decree of the District Court, being 
 the decree of forfeiture, "so far as it affects the de- 
 fendants," naming the appellants, "be, and the 
 same is hereby set aside and held for naught, but 
 is adhered to in all respects as to the defendants 
 and cross-complainants, hereinafter called the 
 'cross-complainants/ and the 'interveners'." The 
 second paragraph of the decree proposed by these 
 appellants, expresses the general injunction, or- 
 dered by the Supreme Court, against future viola- 
 tions by the railroad company of the covenants. It 
 is in these words: "that the said defendants 
 and their respective officers and agents be, and 
 each is hereby enjoined, from selling the lands, 
 
33 
 
 or any part thereof, granted either by the act of 
 Congress, approved July 25, 1866, as amended by 
 the act of Congress of April 10, 1869, or by the act 
 of Congress approved May 4, 1870, whether the said 
 lands be situated within the place or indemnity lim- 
 its of the grants thereby made, to any person not 
 an actual settler, or in quantities greater than one- 
 quarter section to one purchaser, or for a price 
 exceeding two and 50/100 dollars ($2.50) per acre." 
 The second paragraph of the decree, as signed 
 by the District Judge, so far forth as its first clause, 
 is — barring the fact that the words "on the land 
 sold to him" have been inserted therein after the 
 words "actual settler" — the same, word for word, 
 as the paragraph of our proposed decree which has 
 just been quoted. But the government added, and 
 the District Court adopted, a second and further 
 clause, touching the timber on the granted lands — 
 likewise any mineral found therein — and this, as 
 part, not of any temporary injunction, but of the 
 general and permanent injunction, — enjoining the 
 owner of the land from any disposition of the 
 timber, and, as well, of any mineral deposits therein, 
 except as that timber or those deposits went along 
 with the land when it was sold within the limita- 
 tions of the covenants, as indicated in the first 
 clause. We quote this second, interpolated clause: 
 "and from selling any of the timber on said 
 lands, or any mineral or other deposits therein, 
 except as a part of and in conjunction with the 
 
34 
 
 lands on which the timber stands or in which the 
 mineral or other deposits are found, and from cut- 
 ting or removing or authorizing the cutting or re- 
 moval of any of the timber thereon, or from remov- 
 ing or authorizing the removal of mineral or other 
 deposits therein, except in connection with the sale 
 of the land bearing the timber or containing the 
 mineral or other deposits." This decree, it will be 
 seen, imports bodily into the general injunction, a 
 provision more or less reflective of the temporary 
 restraint which the mandate imposes in aid of the 
 maintenance of the status quo pending Congres- 
 sional interposition. It is a gratuitous enlargement 
 and exceeding of the terms of the mandate. 
 
 Paragraph 3 of our proposed decree, pursues in 
 terms the mandate of the Supreme Court, touching 
 the temporary injunction. We quote paragraph 3 : 
 
 "That the said defendants and their re- 
 spective officers and agents be, and each is 
 hereby, enjoined from any disposition of the 
 said lands, or any part thereof, or of the 
 timber thereon, and from cutting, or authoriz- 
 ing the cutting, or removal of any of the tim- 
 ber thereon, until Congress shall have a rea- 
 sonable opportunity to provide by legislation 
 for the disposition of said lands, in accordance 
 with such policy as it may deem fitting under 
 the circumstances, and at the same time secure 
 to the defendants all the value the granting 
 acts conferred upon the grantees; but if Con- 
 gress does not make such provision, the de- 
 
35 
 
 fendants may apply to this court, within a rea- 
 sonable time, not less than six (6) months from 
 the entry of the decree herein, for a modifica- 
 tion of so much of the injunction herein or- 
 dered as enjoins any disposition of the lands 
 and timber until Congress shall act." 
 
 This parapraph of our proposed decree will bear 
 comparison, word for word, with the language of 
 the opinion of the Supreme Court. 
 
 Paragraph 3 of the decree as signed by the 
 District Court, like our paragraph 3, is ad- 
 dressed to the temporary injunction. We under- 
 stand it to go to the same thing as our proposed 
 paragraph 3, and we note these differences: that 
 the decree as signed takes in, as well mineral or 
 other deposits in the lands, as timber thereon — and 
 includes, also, moneys which have arisen, or may 
 hereafter arise from sales of the lands or of the 
 timber, through condemnation proceedings or other- 
 wise, when impounded, or which may hereafter be 
 impounded, in custodia legis to await the final de- 
 cision of the Supreme Court. No reference to such 
 moneys was made in our proposed decree for the 
 reason that such impounded moneys were covered 
 by appropriate orders in the particular litigation. 
 
 Paragraph 4 of the decree as signed is a mere 
 continuation of the subject matter of paragraph 3, 
 and deals with the right of defendants to apply for 
 a modification of the injunction in the event that 
 Congress should fail to act. 
 
36 
 
 Paragraph 5 of the decree as signed includes, as 
 part of the lands covered by the decree, such lands 
 as have reverted or may hereafter revert to the de- 
 fendants — looking more to such lands as may be 
 embraced by executory contracts of sale on which 
 the purchaser has suffered or may suffer default. 
 
 And paragraph 6 makes the decree to be without 
 prejudice to any rights of the government under the 
 joint resolution of Congress, of April 30, 1908, be- 
 ing the resolution authorizing the Attorney-General 
 to proceed against the granted lands; or under the 
 Act of Congress of August 20, 1912, being the 
 statute authorizing the compromise of suits against 
 purchasers from the railroad company. This need 
 not detain us. 
 
 The seventh paragraph of the decree as signed 
 awards costs against the appellants and in favor 
 of the complainant to the amount of $6,249.02 ; and 
 we shall consider these costs later. 
 
 So far, then, as the timber and the minerals are 
 concerned, the difference between the two decrees — 
 between the one as proposed by us and the one 
 signed — will be found in the new and added fea- 
 tures in excess of the language of the mandate, im- 
 ported by the decree into the second clause of the 
 second paragraph — by which the defendants are en- 
 joined not only from selling the lands, not only from 
 future violations of the covenants, but also — and 
 for convenience we quote again : 
 
37 
 
 "from selling any of the timber on said lands, 
 or any mineral or other deposits therein except 
 as a part of and in conjunction with the land 
 on which the timber stands or in which the 
 mineral or other deposits are found; and from 
 cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon, or 
 from removing or authorizing the removal of 
 mineral or other deposits therein, except in con- 
 nection with the sale of the land bearing the 
 timber or containing the mineral or other de- 
 posits." 
 
 Mr. Justice Lurton of the Supreme Court of the 
 United States, was a member of the Circuit Court 
 of Appeals which decided the case of Bisseil v. 
 Goshen, 72 Fed. 545. Judge Lurton, himself, wrote 
 the opinion in that case, and the court, speaking 
 through him, said (at p. 548) : 
 
 "Whatever was before it (speaking of the 
 Appellate Court) by virtue of that appeal, and 
 was disposed of, has been finally done, and 
 must be regarded as settled. The Circuit Court 
 is bound by such decree as the law of the case, 
 and must carry it into execution according to 
 the mandate. The decree of this court upon 
 any matter within its jurisdiction can neither 
 be modified, reversed, enlarged, nor suspended 
 by the Circuit Court nor can any other or less 
 or greater relief be accorded than that pre- 
 scribed by its decree and mandate. 
 
 Judge Lurton goes on to quote "the very perti- 
 nent summary of the doctrine by Justice Gray" in 
 
38 
 
 the case of Sanford Fork & Tool Company, Peti- 
 tioner, 160 U. S. p. 247, as follows: 
 
 "When a case has once been decided by this 
 court on appeal, and remanded to the Circuit 
 Court, whatever was before this court, and dis- 
 posed of by its decree, is considered as finally 
 settled. The Circuit Court is bound by the 
 decree as the law of the case, and must carry it 
 into execution, according to the mandate. That 
 court cannot vary it, or examine it for any 
 other purpose than execution, or give any other 
 or further relief, or review it, even for appar- 
 ent error, upon any matter decided on appeal, 
 or intermeddle with it, further than to settle so 
 much as has been remanded. Sibbald v. U. S., 
 12 Pet. 488, 492; Railway Co. v. Anderson, 149 
 U. S. 237, 13 Sup. Ct. 843. If the Circuit 
 Court mistakes or misconstrues the decrees of 
 this court, and does not give full effect to the 
 mandate, its action may be controlled, either 
 upon a new appeal (if involving a sufficient 
 amount), or by writ of mandamus to execute 
 the mandate of this court." 
 
 And further, at page 552, Judge Lurton says : 
 "It seems to us that the opinions and decrees 
 of this, as a court of appellate jurisdiction, are 
 final and conclusive upon every point actually 
 decided, and that it is the clear duty of the 
 lower court to give effect to the decree without 
 modification or enlargement, in the very terms 
 of the decree here rendered." 
 
39 
 
 No question of the right of the grantee of these 
 lands, by an absolute grant qualified only by the 
 provisos, to use the timber upon its granted land, or 
 to take the coal from it or the iron that might be 
 found below the surface, was, as we have already 
 ventured to insist, involved or raised or argued or 
 considered or decided. That issue was not before 
 the court, and it is not determinable as an academic 
 thesis, or otherwise than in some concrete case prop- 
 erly calling for its determination. (Windsor v. 
 McVeigh, 93 U. S., 282-3). Nevertheless, gratui- 
 tously, and in excess of the mandate of the Supreme 
 Court, the decree, as proposed by the government 
 and adopted by the District Court, assumes or at- 
 tempts to foreclose these appellants in the premises. 
 If there is anything in the opinion of the Supreme 
 Court, bearing at all on the question, it is to be 
 found in the direction for a temporary injunction, 
 where our right to make sales of these lands to set- 
 tlers in statutory quantities and at statutory prices, 
 and our right to make use of the timber, are dealt 
 with concurrently, and are suspended alike. Both 
 rights are associated in immediate juxtaposition, 
 and both rights are suspended pending the interval 
 of contemplated Congressional action, and both 
 rights are assumed to be open to revival in the 
 event of inaction by Congress. 
 
 It is true that the Supreme Court refused to for- 
 feit this grant. It is true that the Supreme Court 
 retained the title to these lands where the grant 
 
40 
 
 had put it — in the railroad company — but the 
 thought seems to be, that the failure of the govern- 
 ment to achieve a forfeiture may be repaired by 
 the action of Congress, and that, in some mysterious 
 way, an appellate jurisdiction may be exercised by 
 the legislature to review the judgment of the Su- 
 preme Court and to declare a forfeiture where the 
 court had decided there could be no forfeiture. In 
 other words, it is the idea, as put forth by com- 
 plainant in the argument at the bar of the District 
 Court, and sought to be realized in the decree as 
 signed, that Congress, by legislation, may revest 
 itself with the title which it had granted to the 
 railroad company, and that, after all, the railroad 
 company has a mere expectancy in a fund measured 
 by $2.50 an acre in the total acreage concerned, sub- 
 ject, again, to deduction by reason of any excess over 
 $2.50 an acre, which the railroad company may 
 have received for some of these lands, and quite re- 
 gardless of the administration expenses, including 
 taxes upon a full, assessed value of $11 an acre, in- 
 curred by the railroad company in handling the 
 grant, and regardless as well of the uncompensated 
 services rendered and to be rendered by the railroad 
 company through all the years in transporting gov- 
 ernment troops and materials, and regardless also 
 of the fact that the railroad company kept its con- 
 tract with the government, and, by the construction 
 of this road, earned the grant and received its pat- 
 ents accordingly. We are no longer, it would seem, 
 
41 
 
 the owners of this land by absolute grant, or at all ; 
 but by a novel species of equitable or inequitable 
 conversion the land is now, by amendatory legisla- 
 tion, to be revested in the grantor, and we are to be 
 transformed into beneficiaries of a depleted and van- 
 ishing fund. 
 
 The Grantee's Estate. 
 
 We venture to think, however, that we are the 
 owners of this land, by right, and as of absolute 
 grant, qualified only by these provisos and by noth- 
 ing else, and that, as such owners, we are entitled 
 to the timber upon our granted land, and entitled as 
 well to take the coal or the iron, for example, that 
 we may find below the surface. 
 
 This grant was not a gift; it passed to the rail- 
 road company upon full and ample consideration. 
 "The adventurers, who obtained the charter and 
 who accepted it," to use the language of this court, 
 in Piatt v. U. P. R. R. Co., 99 U. S., 48, "undertook 
 to construct and maintain the public work. Their 
 undertaking is the consideration of the grant, and 
 without legislative consent, they cannot throw off 
 the obligation they have assumed". Nor, we will 
 add, can the grantor, without consent of the railroad 
 company, repudiate the grant which it made. 
 
 The granting act in question here, includes special 
 considerations and onerous obligations as against 
 the railroad company. It requires the grantee to 
 transport the mails and to transmit the dispatches 
 
42 
 
 of the government, preferentially in point of serv- 
 ice, and at reasonable rates, not to exceed those paid 
 by private parties; and it obligates the grantee, for 
 all time, to the transportation, free of charge, of 
 the troops and property of the United States. The 
 government holds to the railroad company "a very 
 important relation, namely, that of contract". 
 (United States v. U. P. R. R. Co., 98 U. S., 569, 
 613). The grantees "cannot throw off the obliga- 
 tion they have assumed". (Piatt v. U. P. R. R. Co., 
 99 U. S., 48). 
 
 The language of this court, in the recent case of 
 Burke v. Southern Pacific R. R. Co., 234 U. S., at 
 pages 679-680, is wholesome reading at this point: 
 "We first notice a contention advanced on 
 the part of the mineral claimants, to the ef- 
 fect that the grant to the railroad company 
 was merely a gift from the United States, and 
 should be construed and applied accordingly. 
 The granting act not only does not support the 
 contention but refutes it. The act did not fol- 
 low the building of the road but preceded it. 
 Instead of giving a gratuitous reward for some- 
 thing already done, the act made a proposal to 
 the company to the effect that if the latter 
 would locate, construct and put into operation 
 a designated line of railroad, patents would be 
 issued to the company confirming in it the 
 right and title to the public lands falling within 
 the descriptive terms of the grant. The pur- 
 pose was to bring about the construction of the 
 road, with the resulting advantages to the gov- 
 
43 
 
 ernment and the public, and to that end, pro- 
 vision was made for compensating the company 
 if it should do the work, by patenting to it the 
 lands indicated. The company was at liberty 
 to accept or reject the proposal. It accepted in 
 the mode contemplated by the act, and thereby 
 the parties were brought into such contractual 
 relations that the terms of the proposal became 
 obligatory on both. Menotti v. Dillon, 167 U. 
 S. 703, 721. And when, by constructing the 
 road and putting it into operation, the com- 
 pany performed its part of the contract, it 
 became entitled to the performance by the gov- 
 ernment. In other words, it earned the right to 
 the lands described. Of course, any ambiguity 
 or uncertainty in the terms employed should 
 be resolved in favor of the government, but the 
 grant should not be treated as a mere gift." 
 
 This very act of 1866 was before the Court in 
 Bybee against Oregon & California Railroad Com- 
 pany, 139 U. S. 663, 674. The court had no difficulty 
 at that time in perceiving that this grant was like 
 any other railroad land grant; that it was a grant 
 of real estate, not a contingent assignment of 
 personalty by way of an expectancy in some fund, 
 and that it was a grant in praesenti. The court 
 said: 
 
 "The act making the grant in aid of this 
 road does not, in its words of conveyance, 
 differ materially from a large number of 
 similar acts passed by Congress in aid of the 
 construction of roads in different parts of the 
 
44 
 
 West, which have been considered by this 
 court as taking effect in praesenti, although 
 the particlular lands to which the grant is 
 applicable remain to be selected and identified 
 when the road is located, and the map is filed 
 with the Secretary of the Interior. The act 
 then operates as a grant of all odd numbered 
 sections within the limits, except so far as they 
 may have been in the meantime, 'granted, sold, 
 reserved, occupied by homestead settlers, pre- 
 empted or otherwise disposed of.' " 
 
 And what this Court decided in the case at bar, 
 and its decision is now "the law of the case" (Bissell 
 v. Goshen, 72 Fed. 545 ; Sanford Fork & Tool Com- 
 pany, Petitioner, 160 U. S. 247; Roberts v. Cooper, 
 20 How. 467), was this: 
 
 At pages 434-5 of the opinion in the case at bar, 
 it is said: 
 
 "There was a complete and absolute grant 
 to the railroad company with power to sell, 
 limited only as prescribed, and we agree with 
 the Government that the company 'might 
 choose the actual settler; might sell for any 
 price not exceeding $2.50 an acre; might sell in 
 quantities of 40, 60, or 100 acres, or any 
 amount not exceeding 160 acres.' And we add, 
 it might choose the time for selling or its use of 
 the grants as a means of credit, subject ulti- 
 mately to the restrictions imposed; and we say 
 'restrictions imposed' to reject the contention 
 of the railroad company that an implication 
 of the power to mortgage the lands carried a 
 
45 
 
 right to sell on foreclosure divested of the 
 obligations of the provisos." 
 
 And again, at page 422: "The language of the 
 grants and of the limitations upon them is gen- 
 eral. We cannot attach exceptions to it. The 
 evil of an attempt is manifest. The grants must 
 be taken as they were given. Assent to them was 
 required and made, and we cannot import a different 
 measure of the requirement and the assent than the 
 language of the act expresses. It is to be remem- 
 bered, the acts are laws as well as grants, and must 
 be given the exactness of laws." 
 
 Again, at page 436: "We can only enforce the 
 provisos as written, not relieve from them." 
 
 At page 432, recalling now the language just 
 quoted, that "there was a complete and absolute 
 grant to the railroad company, with power to sell, 
 limited only as prescribed" — we quote from what 
 the court says of these prescribed limitations or 
 provisos: "Their language is not directive; it is 
 restrictive only. With this exception the grant is 
 unqualified." 
 
 The provisos, therefore, and such is now the law 
 of this case, and of this second appeal (Roberts v. 
 Cooper, 20 How., 467), must be taken as they 
 are written; they are not directive, they are re- 
 strictive only; the statute must be administered 
 with the exactness of a law ; the grant is unqualified, 
 except as limited by the terms of the provisos. The 
 
46 
 
 limitations there found extend only to a restraint 
 upon the alienation of the land by the grantee; they 
 do not affect the use and enjoyment of the estate, 
 held in "complete, absolute and unqualified grant." 
 It cannot be questioned, we venture to think, that 
 the grantee, would be within its rights in making 
 leases of the land, and applying the rents upon the 
 construction account. Nor, we submit, can it be 
 questioned that the grantee would be authorized 
 to take stone from the land and use it to build a 
 railroad bridge or a station house, or for the matter 
 of that, to turn the stone into money and place the 
 avails against construction debt. Nor do we think 
 it could be questioned that the grantee could take 
 iron from the granted land for use upon its rail- 
 road fixtures or structures, or could take coal from 
 the land — if such minerals were found there — to 
 burn in the furnaces of its locomotives or of its ma- 
 chine shops. If the grantee should farm a patch of 
 arable area, and turn the farm products into money 
 and use that money to help pay coupon interest on 
 the bonded debt, it would be within its rights and 
 within the measure of its estate — for that estate 
 is "a complete and absolute grant to the railroad 
 company with power to sell, limited only as pre- 
 scribed." If all this be true, there is no reason 
 apparent to us upon the face and terms of the grant 
 why the right of the grantee in like manner to make 
 use of the timber upon the land, should be differen- 
 tiated or disparaged. 
 
47 
 
 It would be passing strange if the government 
 should now maintain that the company has no right 
 to the timber upon these lands because and although, 
 for many years before coal was used as fuel, it 
 burned this timber in its engines without question; 
 and the right to use that timber, whether to burn 
 it as fuel, or to use it in the upkeep and mainten- 
 ance of the railroad, is in the forefront of the act of 
 Congress itself, for that act granted the lands "to 
 secure safe and speedy transportation of mails, 
 troops, munitions of war and public stores over the 
 line of said railroad." There could be no such 
 transportation begun or kept up without a railroad, 
 a railroad constructed not only but also maintained, 
 and without fuel for motive power. Would the 
 use of that timber to help pay the construction debt 
 be in contravention of the railroad policy of the act? 
 Would the removal of that timber go in defeat of the 
 settlement policy of the act? Would it not be 
 primarily and directly in aid of such policy? — For 
 it is obvious enough that without a clearing most of 
 the land is unfit for settlement. 
 
 Ferens ligna in silva — but we beg to quote the 
 apt language from Reeves on Real Property, Section 
 423, where, in speaking of the grantee of the fee 
 simple estate, the author says : 
 
 "Subject to any restrictions under which he 
 may have taken it, and subject also to the man- 
 date of the maxim sic utere tuo ut alienum non 
 laedas, its owner when in possession may use 
 
48 
 
 it for any purpose and in any manner that he 
 may choose; he may cut timber, open and work 
 mines, cultivate the soil even to exhaustion, 
 build or pull down houses, commit waste, or 
 injure or destroy any part of it as he may 
 please. Not only does he have the right to sell 
 or otherwise dispose of it as a whole, but he 
 may grant or convey out of it any inferior in- 
 terests, such as estates for years, for life or in 
 tail." 
 
 Schulenberg against Harriman, 21 Wall., 44, is a 
 leading and classical case in this court, and is very 
 much to the point here. It was a railroad land 
 grant case, as the case at bar is ; it was a grant con- 
 ditioned upon construction of the railroad, like the 
 case at bar ; it was a timber case, as in part the case at 
 bar is. 
 
 The grant in the Schulenberg case was made, not 
 in the first instance to the railroad company, but 
 directly to the State of Wisconsin. The fee simple 
 title of the state was qualified by a restraint on the 
 grantee's power to alienate. "The State", to quote 
 the language of this court, (21 Wall., at page 59) 
 "by the terms of the grants from Congress, possessed 
 no authority to dispose of the lands beyond one hun- 
 dred and twenty sections, except as the road, in aid 
 of which the grants were made, was constructed." 
 Conveyances were to be made by the state of the 
 granted lands, from time to time, as sections of the 
 road should be constructed, no constructed section 
 
49 
 
 to be less than twenty consecutive miles. In the 
 event that the road should not be completed within 
 ten years, "no further sales shall be made, and the 
 lands unsold shall revert to the United States". (21 
 Wall., pp. 59, 60) Said this court: 
 
 "The power of disposal, and the provision for 
 the lands reverting, both imply what the first 
 section in terms declares, that a grant is made, 
 that is, that the title is transferred to the State. 
 It is true that the route of the railroad, for the 
 construction of which the grant was made, was 
 yet to be designated, and until such designa- 
 tion the title did not attach to any specific 
 tracts of land. The title passed to the sections, 
 to be afterwards located; — when the route was 
 fixed their location became certain, and the 
 title, which was previously imperfect, acquired 
 precision and became attached to the land." 
 (p. 60) 
 
 It was further held that the rule of the common 
 law, requiring the possibility of present identifica- 
 tion of property to the validity of its transfer, and 
 treating a grant of lands to be afterwards desig- 
 nated, not as an actual conveyance, but as a mere 
 contract to convey, had no application to the legis- 
 lative grant in question. And this, for the reason 
 so often repeated since — "A legislative grant oper- 
 ates as a law as well as a transfer of the property, 
 and has such force as the intent of the legislature 
 requires", (p. 62) 
 
50 
 
 The provision in the granting act "that all lands 
 remaining unsold after ten years shall revert to 
 the United States, if the road be not then completed, 
 is no more than a provision that the grant shall be 
 void, if a condition subsequent be not performed." 
 
 (p. 62) 
 Touching the restraint upon the power of the 
 
 state to alienate the granted lands, this court said: 
 "The prohibition against further sales, if 
 the road be not completed within the period 
 prescribed, adds nothing to the force of the 
 provision. A cessation of sales in that event 
 is implied in the condition that the lands shall 
 then revert; if the condition be not enforced 
 the power to sell continues as before its breach, 
 limited only by the objects of the grant, and 
 the manner of sale prescribed in the act." (p. 
 63) 
 
 No action had been taken by the United States, 
 as the opinion points out, "either by legislation or 
 judicial proceedings to enforce a forfeiture of the 
 estate granted by the acts of 1856 and 1864. The 
 title remains, therefore, in the State" — this court 
 continues — "as completely as it existed on the day 
 when the title by location of the route of the rail- 
 road acquired precision and became attached to the 
 adjoining alternate sections". 
 
 Schulenberg, a stranger to the State's title, not 
 in privity with the grantee of the land, had gone 
 upon the granted land, and cut the standing timber 
 
51 
 
 into logs. While he was in the quiet and peaceable 
 possession of those logs, the defendant, Harriman, 
 as the agent of the state and acting upon its direc- 
 tion, seized the logs, some sixteen hundred thousand 
 feet of pine saw-logs. All this happened long after 
 the expiration of the ten years fixed by the grant- 
 ing act for the completion of the road — no road 
 had ever been built. 
 
 Schulenberg brought replevin against Harriman 
 for the unlawful seizure and detention of personal 
 property, to-wit, the severed logs. This court up- 
 held the seizure of the logs by the State's agent, and 
 upon the simple ground that the logs belonged to 
 the grantee of the land. We quote from page 64 
 of the opinion : 
 
 "The title to the land remaining in the State, 
 the lumber cut upon the land belonged to the 
 State. Whilst the timber was standing, it 
 constituted a part of the realty; being severed 
 from the soil, its character was changed; it 
 became personalty, but its title was not affected, 
 it continued as previously, the property of the 
 owner of the land, and could be pursued wher- 
 ever it was carried. All the remedies were 
 open to the owner, which the law affords in 
 other cases of the wrongful removal or con- 
 version of personal property". 
 
 If the severed timber, in Schulenberg against 
 Harriman, supra, belonged to the state, if the state 
 could pursue the physical logs, as so much personal 
 
52 
 
 property, and re-capture them in replevin, or if it 
 could avail itself of the remedy in trover, and re- 
 cover and appropriate their value; and all this 
 years after the time had expired for the construc- 
 tion of the railroad, and when no railroad had been 
 built or begun — it must be clearer yet that, in the 
 case at bar, where there was no forfeiture, no 
 ground for forfeiture, no room for forfeiture, and 
 where the grant was earned and the patents were 
 issued for a constructed railroad, the severed timber 
 belongs to the grantee by every right and in full title, 
 and the minerals as well. 
 
 Schulenberg against Harriman was decided by 
 this court in October, 1874. Nearly twenty-five 
 years after, on December 12, 1898, the case of 
 United States against Loughrey, 172 U. S., 206, was 
 decided by this court. Like the Schulenberg case, it 
 was a timber case, under a railroad land grant, a case 
 of severed timber. The action was not in replevin, for 
 the physical logs, as in the Schulenberg case; it 
 was in trover, for the money value of the cut timber. 
 Unlike Schulenberg against Harriman, the title 
 litigated to the cut timber in the Loughrey case was 
 not the title of the grantee of the land grant — the 
 State of Michigan — but it was the alleged title of 
 the grantor, namely, the United States. The land, 
 in the first instance, had been public land, the prop- 
 erty of the United States. 
 
 By an act of Congress of June 3, 1856, substan- 
 tially identical in the granting clause with the 
 
53 
 
 granting acts in the case at bar, the land in ques- 
 tion was granted to the State of Michigan, to aid 
 in the construction of a railroad. It was provided : 
 "That the lands hereby granted shall be ex- 
 clusively applied in the construction of that 
 road, for and on account of which said lands 
 are hereby granted, and shall be disposed of 
 only as the work progresses, and the same shall 
 be applied to no other purpose whatsoever". 
 
 This restraint on the power of the state to trans- 
 fer the granted lands was emphasized by the further 
 provision "that the said lands hereby granted to 
 the said state, shall be subject to the disposal of the 
 legislature thereof, for the purposes aforesaid, and 
 no other". 
 
 The granting act provided for a sale of the lands 
 for the benefit of the proposed railroads, as they 
 were constructed. And a condition subsequent was 
 imposed, that, "if any of said roads is not com- 
 pleted within ten years, no further sales shall be 
 made, and the lands unsold shall revert to the 
 United States". 
 
 And of the title and estate enuring thereunder, 
 this court said: (United States against Loughrey, 
 172 U. S., p. 209) "Under this act the State of 
 Michigan took the fee of the lands to be thereafter 
 identified, subject to a condition subsequent that if 
 the roads were not completed within ten years the 
 lands unsold should revert to the United States". 
 The opinion of the court goes on : 
 
54 
 
 "With respect to this class of estates, Pro- 
 fessor Washburn says that 'so long as the es- 
 tate in fee remains, the owner in possession 
 has all the rights in respect to it, which he 
 would have if tenant in fee simple, unless it be 
 so limited that there is properly a reversionary 
 right in another — something more than a pos- 
 sibility of reverter belonging to a third person, 
 when, perhaps, chancery might interpose to 
 prevent waste of the premises'. 1 Wash. Real 
 Prop. 5th ed. 95." 
 
 This court then makes reference to the leading 
 and ruling case of De Peyster against Michael, 
 6 N. Y., 467, 506, in which Judge Ruggles, a great 
 judge, speaking for his court, pronounced one of 
 the most learned and interesting judgments in the 
 New York Reports. The reference to the De Peyster 
 case, by this court, is in these words : 
 
 "The right of re-entry * * * * 'is not a rever- 
 sion, nor is it the possibility of reversion, nor 
 is it any estate in the land; (Italicized by this 
 court) It is a mere right or chose in action, 
 and if enforced, the grantor would be in, by the 
 forfeiture of a condition, and not by a reverter. 
 * * * It is only by statute, that the assignee 
 of the lessor can re-enter for condition broken. 
 But the statute only authorized the transfer of 
 the right, and did not convert it into a rever- 
 sionary interest, nor into any other estate. 
 (Italicized by this court) * * * When property 
 is held on condition, all the attributes and in- 
 cidents of absolute property belong to it, until 
 
55 
 
 the condition be broken'." (Italicized by this 
 court) 
 
 If, now, the State of Michigan, in fulfillment of 
 its covenant, that the lands should be held for railroad 
 purposes only, had transferred such lands in aid 
 of railroad construction, it would follow, obviously 
 enough, as to the property so transferred, in the 
 hands of the grantee, that "all the attributes and in- 
 cidents of absolute property belong to it until the 
 condition be broken". But no such situation, in re- 
 spect to any grantee of the State of Michigan arose ; 
 for the reason, as found by the trial court, "that 
 said railroad was never built, and said grant of 
 lands was never earned by the construction of any 
 railroad". (172 U. S., p. 208) 
 
 In 1887, some twelve years after the period of ten 
 years, fixed by the granting act for the construc- 
 tion of the railroad had expired, Joseph E. Sauve 
 cut some six hundred thousand feet of timber on the 
 granted lands, removed eighty thousand feet of the 
 timber so cut, and left the balance skidded upon the 
 lands. The defendant, Loughrey, was charged as a 
 purchaser of the cut timber from Sauve, and the 
 United States sued him in trover to recover its 
 value. 
 
 Under the decision in Schulenberg against Harri- 
 man, supra, if no act had been passed by Congress, 
 forfeiting the land grant, for breach of the condi- 
 tion subsequent, in respect to the construction of the 
 
56 
 
 railroad, at the time when Sauve cut this timber 
 in 1887, it would seem that the title to the timber 
 was still in the grantee, the State of Michigan, and 
 that the United States was without estate, right, 
 title or interest, to maintain trover for its value. 
 It was held by this court, quoting from Mr. Justice 
 Field in the Schulenberg case, as follows : 
 
 "The title to the land remaining in the State, 
 the lumber cut upon the land belonged to the 
 State. Whilst the timber was standing it 
 constituted a part of the realty; being severed 
 from the soil its character was changed; it 
 became personalty, but its title was not 
 affected ; it continued as previously the property 
 of the owner of the land, and could be pursued 
 wherever it was carried. All the remedies were 
 open to the owner which the law affords in other 
 cases of the wrongful removal or conversion 
 of personal property". (172 U. S., p. 211) 
 
 And the court, in the Loughrey case, goes on to 
 say: 
 
 "It follows that the United States, having 
 no title to the lands at the time of the tres- 
 pass and no right to the possession of the tim- 
 ber, are in no position to maintain this suit", 
 (p. 211) 
 
 But the Loughrey case contained a differential 
 element. In the Schulenberg case, while no rail- 
 road had ever been built, yet forfeiture had not 
 been asserted by the United States for breach of 
 
57 
 
 the condition. In the Loughrey case, however, a 
 year or more after Sauve had cut the timber, Con- 
 gress passed the act of March 2, 1889, forfeiting 
 the land grant; and it was argued for the United 
 States that this forfeiture "operated by relation 
 to revest in the United States title to the timber, 
 which had been cut during the winter of 1887 and 
 1888, and prior to the act of forfeiture". This court 
 replied : 
 
 "The position of the plaintiffs must neces- 
 sarily be that this act of forfeiture not only 
 revested in the United States the title to the 
 lands as of a date prior to the cutting of the 
 timber in question, but also revested them with 
 the property in the timber which had been cut 
 while the lands belonged to the State of Michi- 
 gan. Had this act of forfeiture not been 
 passed, there could be no question that, under 
 the case of Schulenberg v. Harriman, 21 Wall. 
 44, this timber would have belonged to the 
 State of Michigan, and no action therefor could 
 have been brought by the United States." 
 
 The court goes on : 
 
 "But conceding all that is contended for the 
 plaintiffs with respect to the revestiture of the 
 title to the lands by this act, it does not follow 
 that the title to the timber which had been cut 
 in the meantime was also revested in the United 
 States. As was said in Schulenberg v. Harri- 
 man, the title to the timber remained in the 
 State after it had been severed. But it re- 
 
58 
 
 mained in the State as a separate and inde- 
 pendent piece of property, and if the State had 
 elected to sell it, a good title would have thereby 
 passed to the purchaser, notwithstanding the 
 subsequent act of forfeiture". 
 
 The court now proceeds to use language of in- 
 terest here, as bearing upon a somewhat transpar- 
 ent fallacy, argued by the government, when the 
 case here was at the bar of the court below. It 
 was said that inasmuch as there was a restraint 
 upon our power to alienate lands, except to 
 specified persons, we had no right to make use of the 
 timber, or of the coal, or of the iron, or of other 
 product or deposit of the soil, because it was all a 
 part of the land. Said the court, in speaking of the 
 cut timber, in the Loughrey case : 
 
 "It did not remain the property of the State 
 as a part of the lands, but as a distinct piece 
 of property, although the State took its title 
 thereto through and in consequence of its title 
 to the lands. From the moment it was cut, the 
 State was at liberty to deal with it as with any 
 other piece of personal property". (172 U. S., 
 pp. 217-18) 
 
 And finally, this court concludes: 
 
 "Counsel are mistaken in supposing that the 
 plaintiffs (United States) had an immediate 
 right to the possession of this timber. They 
 had no right to the possession of the land until 
 Congress passed the act of March 2, 1889, for- 
 
59 
 
 feiting the grant. Up to that time the title 
 was in the State, and until then the United 
 States had no more right to enter and take 
 possession than they would have had to take 
 possession of the property of a private in- 
 dividual". (172 U. S., p. 219) 
 
 There was a dissenting opinion in the Loughrey 
 case. It went upon the view, that, under the terms 
 of the granting act, "the State of Michigan was not 
 the beneficial owner of the land, from which the 
 timber in question was severed", (p. 231) 
 
 The state of Michigan was regarded, not as the 
 grantee of a "complete, absolute and unqualified" 
 title, but as a mere trustee — the trustee of an ex- 
 press trust, to hold the granted lands, in the first 
 instance, for the benefit of the owners of a line of 
 railroad, if such railroad should be constructed; 
 and secondarily, for the benefit of the United States, 
 in the event that a forfeiture should be declared for 
 breach of the condition subsequent, (p. 221) 
 
 The forfeiture having been declared in 1889, no 
 execution of the trust having been effected, in favor 
 of the primary cestui, namely, the owner of the 
 contemplated line of railroad, no such railroad hav- 
 ing been brought into existence, the trust having, 
 therefore, ceased, — it was argued that the title by 
 forfeiture, revested by statute of 1889, in the 
 United States, operated by relation to put the title, 
 as of the date of the trespass, in the United States, 
 
60 
 
 to the timber which had been severed by Sauve in 
 1887. (p. 230) 
 
 It was insisted that the state, whose status, as a 
 mere trustee, had been extinguished by the for- 
 feiture, "did not stand in the attitude of a grantee 
 of land, upon a condition subsequent, to whom an 
 absolute conveyance had been made for its sole 
 use and benefit. Authorities, therefore, to the point 
 that in the case of such a conveyance, the only right 
 of the grantor is to receive back, upon re-entry, the 
 granted land, in the condition in which it might 
 then exist, have no pertinency in a case like the 
 present, where the grant was to the State, not as 
 absolute owner, but as a mere trustee." (p. 230) 
 
 But, we inquire, suppose the State had executed the 
 trust, by conveyance, to the primary beneficiary, the 
 railroad company ; and suppose, as in the case at bar, 
 the railroad company had earned the grant by con- 
 struction of the road, what would have been the 
 view of the dissenting judges, if the United States 
 had challenged the right of the railroad company, 
 in an action against Sauve, or the purchaser from 
 Sauve, to recover the value of the severed timber? 
 
 The Loughrey case was followed and approved 
 by this court, in United States against Tennessee and 
 Coosa Railroad Co., 176 U. S., 242, decided Febru- 
 ary 5, 1900. 
 
 This, again, was a railroad land grant case. The 
 grant was made directly to the State of Alabama, 
 and the State, pursuant to the terms of the granting 
 
61 
 
 act, conveyed to the Coosa Railroad. The grant 
 was made on June 3, 1856; some ten miles of road 
 were constructed, only that and nothing more; and 
 the suit was brought by the United States, under 
 the General Forfeiture Act of September 29, 1890, 
 against the railroad company, to forfeit the land 
 grant. 
 
 The Government's bill set up the failure of the 
 company to build the road, averred the execution by 
 the railroad company in 1887, of the conveyances to 
 one Carlisle, of some forty thousand acres of 
 granted land, alleged that there was valuable timber 
 on the lands, which the company and other persons 
 were cutting and carrying away, also valuable mines 
 which they were working; and asked for a receiver 
 and injunction, a cancellation of the conveyances, 
 and a forfeiture of the lands, and for general re- 
 lief. 
 
 It was held by this court, that under the special 
 terms of the granting act, the sale of one hundred and 
 twenty sections of the grant, "in advance of the com- 
 mencement of the construction of the road," was 
 authorized ; and that the title of Carlisle, to so much 
 of the conveyed land as- fell within this tract of one 
 hundred and twenty sections, must be sustained. 
 
 It was further held that the conveyance by the 
 company of so much of the grant, as was cotermi- 
 nous with the ten miles of constructed line, must 
 likewise be sustained, inasmuch as the act of 
 Congress forfeited those lands only, which were not 
 
62 
 
 opposite the completed road on September 29, 1890. 
 Schulenberg against Harriman was considered 
 and fully approved; also the decision of this court, 
 in Railroad Company against Courtright, 21 Wall., 
 310. And the Loughrey case is cited as an applica- 
 tion of the same principles. Speaking of these prior 
 decisions, the court, by Mr. Justice McKenna, said: 
 (p. 253) 
 
 "The title passed to the State, it was de- 
 cided, continued in the State with all its at- 
 tributes and power, except as expressly lim- 
 ited, until it should be resumed by the grantor 
 by appropriate proceedings for breach of con- 
 ditions. Hence the logs in that case, though 
 cut upon land to aid a railroad which had not 
 been constructed, and after the time designated 
 for its construction, and after which all unsold 
 lands should revert to the State (Government) 
 was held to belong to the State (the grantee). 
 And in the Courtright case upon the same 
 principles it was held that lands sold by the 
 railroad without constructing the road carried 
 title to the vendee. There was a reassertion 
 and an application of the same principles in 
 United States v. Loughrey, 172 U. S. 206. 
 
 It follows that by the act of June 3, 1856, 
 the State of Alabama took the title to the lands 
 in controversy upon conditions subsequent, and 
 conveyed such title upon the same conditions 
 to the Coosa Railroad ; and that it continued in 
 the railroad until determined by proceedings, 
 legislative or judicial, for such forfeiture, and 
 
63 
 
 until such determination all the rights and 
 powers conferred by the act continued and 
 could be exercised". 
 
 The Loughrey case is again cited as authority by 
 this court, in United States against Anderson, 194 
 U. S., 394, decided May 16, 1904. The opinion is 
 by Mr. Justice White, who wrote the dissenting 
 opinion in the Loughrey case. 
 
 The Anderson case is, again, the case of a rail- 
 road land grant. Congress had made a grant to 
 the State of Alabama in aid of railroad construc- 
 tion. The State accepted the grant, and, in turn, 
 granted the lands to the Northeast and South- 
 western Railroad, an Alabama company, to be used 
 and applied by said company "upon the terms and 
 conditions in said act of Congress contained". The 
 act of Congress contained an indemnity provision, 
 as follows: "But in case it shall appear that the 
 United States have — when the lines or routes of 
 said roads are definitely fixed — sold any sections or 
 any parts thereof, granted as aforesaid ; or that the 
 right of pre-emption has attached to the same: — 
 then it shall be lawful for any agent or agents, to 
 be appointed by the governor of said State, to select, 
 subject to the approval of the Secretary of the In- 
 terior", a corresponding quantity of indemnity land 
 from the adjacent alternate sections, within the 
 maximum limit of fifteen miles. An order of with- 
 drawal was made by the Land Department of such 
 lands as were assumed to be included within the 
 
64 
 
 place and indemnity limits of the grant, and among 
 these withdrawn lands was the land in suit. The 
 railroad was constructed, and the grant was earned. 
 
 In December 1887, and pursuant to the act of 
 Congress, an agent was appointed by the Governor 
 of Alabama to select indemnity lands, in lieu of 
 lands within the primary limits of the grant, which 
 had been lost to the railroad company by sale or 
 pre-emption. The agent made the selections and 
 tendered the legal fees and charges, but the local 
 land officers rejected the selections, and an appeal 
 was taken to the Commissioner of the General Land 
 Office. "In April 1896, (some eight or nine years 
 after the selections had been made) the appeal was 
 decided in favor of the selections, which were ap- 
 proved, and the title consequently passed from the 
 United States to the State of Alabama, in trust for 
 its grantees, under the act of Congress". By mesne 
 conveyance the railroad title passed to the plaintiffs 
 in the action below, namely, Anderson and others; 
 and it was between these plaintiffs and the United 
 States that the action was litigated. 
 
 It was not a timber case this time, but a mineral 
 case, and it arose in this way, as stated by Mr. 
 Justice White : 
 
 "During the period, however, which inter- 
 vened between the selections of land made by 
 the agent of the State of Alabama and the 
 approval of the selections by the Secretary of 
 the Interior, certain persons went upon the 
 
65 
 
 lands selected and removed therefrom valuable 
 iron ore and lime rock. After the approval of 
 the selections the United States brought a suit 
 to recover from the persons who had thus tres- 
 passed upon the lands, the value of the product 
 by them removed. The owners of the land, in 
 pursuance of the selections, (Anderson and 
 others) asserted a claim to the benefit of the 
 recovery which might be made, but assented to 
 a compromise made by the United States with 
 the trespassers, by which fifteen thousand dol- 
 lars was paid to the United States, as the value 
 of the material taken from the land. The 
 owners of the land at the time of the compro- 
 mise protested that they alone were entitled to 
 receive the sum paid to the United States, and 
 reserved their right to recover the same from 
 the United States". 
 
 As a sequel, Anderson and the other owners, sued 
 the United States for the fifteen thousand dollars, 
 in the Court of Claims. Judgment went against the 
 United States, and the case was brought here by 
 the government on appeal from the judgment. 
 
 "The sole contention of the Government", says Mr. 
 Justice White, "is that the plaintiffs, after applica- 
 tion for selections and before approval of the selec- 
 tions, had no such title to the land as would have 
 justified a recovery from the trespassers, and, a 
 fortiori, therefore, had no such title as would war- 
 rant their recovering from the United States the 
 sum of money which it collected from the trespassers 
 
66 
 
 for the elements removed from the land during the 
 period between the date of the application for selec- 
 tions and the approval of the same by the Secretary 
 of the Interior". 
 
 The Government, it is pointed out, conceded the 
 act of Congress to be a grant in praesenti of the 
 land within the primary limits, but denied that any 
 right to the indemnity lands vested in the grantee 
 "until aproval of the selections by the proper officers 
 of the government; and hence the legal title was 
 in the United States, as to such lands, pending ac- 
 tion on the application for selections, and, there- 
 fore, at the time of the trespass, the United States 
 was alone authorized to recover for the depredations 
 committed". 
 
 Mr. Justice White readily yields to the general 
 doctrine of indemnity selection, that the legal title 
 to the indemnity land remains in the United States 
 until divested by the approval of the selections, but 
 he does not conceive that the doctrine rules the case 
 before him. "On this record," he says, "the rights 
 of third parties are not involved, since the contro- 
 versy concerns only the right of the United States 
 to retain, as against its grantees, the proceeds re- 
 covered by it, as the result of a trespass upon land, 
 after an application for the selection of such land 
 and pending action thereon by the proper officers 
 of the Government. Under these circumstances, the 
 case is one for the application of the fiction of re- 
 lation, by which, in the interest of justice, a legal 
 
67 
 
 title is held to relate back to the initiatory step for 
 the acquisition of the land." 
 
 The case, to his mind, was "one coming peculiarly 
 within the principle of relation, as the approval of 
 the selections manifestly imported that, at the time 
 of the application for selections, the land in ques- 
 tion was rightfully claimed by the applicant." 
 
 "Nor is the assertion well founded", he says, 
 "that this case is not a proper one for the applica- 
 tion of the doctrine of relation because coming 
 within the rule announced in United States v. 
 Loughrey, 172 U. S. 206. At the time of the tres- 
 pass complained of in that case, the United States 
 had taken no step to assert its reversionary rights 
 in and to the land trespassed upon, the legal title 
 to which was in the State of Michigan at the time 
 the trespass was committed. Here as we have seen 
 the grantee had exercised his right to apply for 
 selections within the indemnity limits, and had in 
 legal form requested the approval of the same by 
 the Government. Everything, therefore, which 
 the grantee was required by law to do, to obtain the 
 legal title had been performed. These facts bring 
 this case within the principle decided in Heath v. 
 Ross, 12 Johns, 140, and Musser v. McRae, 44 Min- 
 nesota, 343, referred to in the opinion of the court 
 in the Loughrey case, (p. 218) as not being incon- 
 sistent with the principle there applied. Heath v. 
 Ross was an action of trover for timber cut between 
 the application for and date of a patent from the 
 
68 
 
 State, and its ensealing and delivery by the Sec- 
 retary of State. The title was held to relate back 
 to the first act, so as to entitle the plaintiff to main- 
 tain an action against a mere wrongdoer, for the 
 value of the timber cut and carried away in the 
 meantime. Musser v. McRae was an action brought 
 to recover the value of timber cut by trespassers 
 from indemnity lands selected by the agent of cer- 
 tain railroad companies, intermediate the applica- 
 tion for selection and the patenting of the lands. 
 To permit a recovery, it was held that the title 
 evidenced by the patent related back at least to the 
 date of the application for selection". 
 
 "Concluding, as we do", Mr. Justice White goes 
 on, "that the money in question belongs to the ap- 
 pellee as the successor in interest of the party for 
 whose benefit the application for selections was 
 made, it results that the judgment of the Court of 
 Claims must be affirmed." 
 
 Howe v. Lowell, decided by the Supreme Court 
 of Massachusetts, August 30, 1898, (171 Mass., 
 576) is an interesting and pertinent case. Howe 
 had granted certain land to the City of Lowell, but 
 "on the express condition that the grantee shall, 
 within three years from the date hereof, lay out 
 and construct, and thereafter forever maintain, a 
 public highway over the within described premises 
 at least fifty feet in width, having the northerly line 
 of the within described premises as the northerly 
 line of such highway, and also on the express con- 
 
69 
 
 dition that that part of said premises not taken or 
 used for said highway shall be improved, dedi- 
 cated, and forever used by the said grantee as and 
 for a common, park, or boulevard, and for no other 
 purpose;" and it was added for good measure that 
 in the event of a breach of the conditions, the deed 
 should be absolutely null and void, and the prem- 
 ises should revert to and revest in the grantor, 
 his heirs and assigns, as fully, completely and ef- 
 fectually, as if these presents had not been executed." 
 
 It may be glanced at, by the way, that the grantor 
 intended to keep to himself a certain product of the 
 granted premises, not timber or minerals — it was 
 ice, in this case, — and he took care to say so: "The 
 right to take ice on the Merrimack River where it 
 flows over the premises herein conveyed is hereby 
 expressly reserved to the grantors, their heirs and 
 assigns, or other person or persons who now have 
 that right". 
 
 The grantee built the highway, also a boulevard 
 — so far, so good, but it went farther. In 1891, 
 1892 and 1895, the City, for the purpose of obtain- 
 ing a supply of water by means of artesian wells, 
 drove a number of iron pipes, two and a half inches 
 in diameter, into the granted land. The experi- 
 ments of 1891 and 1892 were not productive of 
 water, and one or two of these pipes were left in 
 the ground. Indeed, in 1892, the ground was dug 
 up and left in a rough condition, one or two pipes 
 were left projecting above the surface, and in a 
 
70 
 
 number of cases where the pipes were removed, the 
 holes were not filled in, so that it was hardly safe 
 to walk over it; some trees originally on the land 
 at the time of the conveyance were destroyed, and 
 a sluiceway was dug to carry off waste water, and 
 refuse coal was left upon the ground. In 1895, the 
 grantee had better luck with its borings, and a 
 permanent source of water supply was developed on 
 the land. One hundred and forty pipes in all were 
 driven into the ground. So much, as to the ex- 
 plorations for water, and so much as to the pipes 
 driven into the land. 
 
 On one of the granted lots, for there were several, 
 the lot known as lot A, the city put up an engine 
 house, and connected the engine therein by a large 
 pipe with the other pipes, 140 in number. This 
 large pipe carried the water by gravity into the con- 
 duit of the city. The opinion of the court deals first 
 and separately with the sunken, sub-surface pipes; 
 and next with the upstanding engine house and plant 
 on lot A. This engine house or pumping station — a 
 pumping station for supplying the inhabitants of 
 the city of Lowell with water — the court had no 
 difficulty in resolving as a breach of the condition 
 on which the land had been granted, and we dis- 
 miss the pumping plant from further consideration. 
 Now, for the pipes. Said the court : 
 
 "As the highway has been constructed, the 
 question is whether there has been a breach of 
 
71 
 
 the conditions that the parts of the premises 
 not taken for a highway 'shall be improved, 
 dedicated, and forever used by the grantee as 
 and for a common, park, or boulevard, and for 
 no other purpose.' The title in fee to all the 
 parcels vested in the city of Lowell, subject 
 to conditions subsequent by the breach of which 
 its title would be divested, and would revest in 
 the grantors and their heirs". 
 
 The court then refers to a product of the granted 
 land — in this case, the subterranean water — in lan- 
 guage that would be just as apposite, if it had been 
 spoken of timber, or of coal, or of iron. 
 
 "The subterranean waters in the parcels", said 
 the court, "were a part of the parcels, and the 
 grantors in the deeds have not reserved to them- 
 selves the property in these waters , while the deeds 
 are in force". 
 
 Reference is made to the Wellington case, 16 
 Pick., 87, 99, concerned with a grant of certain land 
 to the town of Cambridge, whereby "the same is 
 hereby granted to the town of Cambridge, to be used 
 as a training field, to lie undivided, and to remain 
 for that use forever, provided, nevertheless, that if 
 the said town should dispose of, grant, or appropri- 
 ate the same, or any part thereof, at any time here- 
 after, to or for any other use than that aforemen- 
 tioned, then, and in such case, the whole of the prem- 
 ises hereby granted to the said town shall revert to 
 the proprietors granting the same". 
 
72 
 
 The language of the Supreme Court of Massa- 
 chusetts, in deciding the Wellington case, is now 
 quoted : 
 
 "By the grant the town became owners of 
 the soil with full power, as such owners, to 
 make any use of the property which owners of 
 land can make, subject only to the restraint and 
 limitation expressed in the condition. All such 
 limitations and restrictions, especially those 
 which go to create a forfeiture, are to be con- 
 strued strictly, and not to be extended beyond 
 the plain terms of the clauses in which they 
 are expressed, and the obvious purposes for 
 which they are introduced". 
 
 But the trial court, in Howe against Lowell, had 
 found "that the use of the land for the purpose of 
 driving wells and drawing water therefrom, and 
 the erection of engines and boiler houses, were uses 
 and purposes not in the minds of the grantors or 
 even of the grantee, when the deeds were given". 
 Of this, the Supreme Court said: 
 
 "As the grantee took the lands in fee, it is 
 entitled to make any use of the lands not in 
 violation of the conditions in the deeds, whether 
 the parties thought of it or not. It is not a new 
 use to lay water pipes in lands taken and used 
 as a highway. Water pipes are sometimes laid 
 in and through commons and lands taken or 
 purchased for a public park, but we are aware 
 of no case in which it has been held that it re- 
 quires a new taking to do this, or that such a 
 laying of pipes is not within the terms of the 
 
73 
 
 deeds granting lands for these purposes. On 
 the theory of the demandants, the subterranean 
 waters of the lands cannot be used by the city 
 without forfeiting the lands, and cannot be 
 used by themselves because they have not re- 
 served the waters or excepted them from the 
 grant" 
 
 It was accordingly held "that the construction and 
 maintenance of the system of pipes did not consti- 
 tute a breach of the conditions in the deeds. 
 
 Upon this question of timber and the rights of the 
 owner of a fee therein or, more largely speaking, 
 upon the question of waste, to use the old common 
 law term — the case of Landers v. Landers, 151 Ky., 
 at pages 215-217, gives an instructive summary of 
 the law, and with special reference, in that case, to 
 a defeasible fee. We think it may be convenient at 
 this place to make the quotation : 
 
 "The next question to be determined is 
 whether or not plaintiffs may recover damages 
 from the estate of Bryant Landers for the tim- 
 ber cut and removed by him from the 170 acres 
 of land devised to him by John Landers, and in 
 which he owned only a defeasible fee. Our 
 statute on the subject does not cover a de- 
 feasible fee, so recourse must be had to the com- 
 mon law. In 2 Blackstone, page 282, we find 
 the following : 
 
 'Let us next see who are liable to be pun- 
 ished for committing waste. And by the feudal 
 law, feuds being originally granted for life 
 
74 
 
 only, we find that the rule was general for all 
 vassals or feudatories: "si vassalus feudum 
 dissipaverit, aut insigni detrimento deterius 
 fecerit, privabitur." But in our ancient com- 
 mon law the rule was by no means large; for 
 not only he that was seized of an estate of in- 
 heritance might do as he pleased with it, but 
 also waste was not punishable in any tenant 
 save only in three persons: guardian in chiv- 
 alry, tenant in dower, and tenant by the cur- 
 tesy; and not in tenant for life or years; and 
 the reason of the diversity was, that the estate 
 of the three former was created by the act of 
 the law itself, which therefore gave remedy 
 against them ; but tenant for life, or for years, 
 came in by the demise and lease of the owner 
 of the fee, and therefore he might have pro- 
 vided against the committing of waste by his 
 lessee; and, if he did not, it was his own de- 
 fault. But, in favor of the owners or the in- 
 heritance, the statutes of Marlbridge, 52 Hen. 
 Ill, c. 23, and of Gloucester, 6 Edw. I, c. 5, pro- 
 vided that the writ of waste shall not only lie 
 against tenants by the law of England (or cur- 
 tesy), and those in dower, but against any 
 farmer or other that holds in any manner for 
 life or years. So that for above five hundred 
 years past, all tenants merely for life, or for 
 any less estate, have been punishable or liable 
 to be impeached for waste both voluntary and 
 permissive; unless their leases be made, as 
 sometimes they are, without impeachment for 
 waste, absque impetitione vasti; that is, with a 
 
75 
 
 provision or protection that no man shall ira- 
 petere, or sue him for waste, committed. But 
 tenant in tail after possibility of issue extinct 
 is not impeachable for waste ; because his estate 
 was at its creation an estate of inheritance, 
 and so not within the statutes. Neither does 
 an action of waste lie for the debtor against 
 tenant by statute, recognizance, or elegit; be- 
 cause against them the debtor may set off the 
 damages in account; but it seems reasonable 
 that it should lie for the reversioner, expectant 
 on the determination of the debtor's own estate, 
 or of those estates derived from the debtor.' 
 
 "The proprietor of a qualified or base fee has 
 the same rights and privileges over his estate, 
 till the contingency upon which it is limited oc- 
 curs, as if he were tenant in fee simple. Wal- 
 singham's case, Plowd., — Chitty." 
 
 "In Weed v. Woods, 71 N. H. 581, it was held 
 that where a deed reserves to a grantor a cer- 
 tain portion of the premises so long as a re- 
 ligious association may want it, the estate re- 
 tained is a qualified or determinable fee; and 
 during its continuance the grantor and his suc- 
 cessors in title, while they retain possession, 
 have all the rights of tenants in fee simple. 
 
 "Mr. Washburn, in his treatise on real prop- 
 erty, 4th edition, volume 1, page 89, section 86, 
 in speaking of the incidents of a determinable 
 fee, says : 
 
 'So long as the estate in fee remains the 
 owner in possession has all the rights in re- 
 spect to it which he would have if tenant in fee 
 simple, unless it be so limited that there is 
 
76 
 
 properly a reversionary right in another — 
 something more than a possibility or reverter 
 belonging to a third person, when, perhaps, 
 chancery might interpose to prevent waste of 
 the premises.' 
 
 "In Gannon v. Peterson, 55 L. R. A. 701, 
 193 111. 372, it was held that the opening of 
 mines, and the mining of coal by the owner of a 
 determinable fee in property of which the coal 
 constituted the chief value, was not such waste 
 as could be enjoined by the owners of the ex- 
 pectancy, who claimed under an executory de- 
 vise — at least where it is not made to appear 
 that the contingency which would determine 
 the fee was reasonably certain to happen. In 
 discussing the question the court said : 
 
 'The authorities are uniform as to the defini- 
 tion, duration, and extent of a base or deter- 
 minable fee. They are agreed that it is a fee 
 simple estate ; not absolute, but qualified. Upon 
 the death of the donee, his widow has dower, 
 although the contingency may have happened 
 that defeats the estate, and that within the gen- 
 eral acceptation and meaning of the term the 
 person seized of such an estate is not charge- 
 able with waste.' 
 
 "The only exception to this rule is that equity 
 will sometimes restrain equitable waste. Equit- 
 able waste is defined by Mr. Justice Story to 
 consist of 'such acts as at law would not be es- 
 teemed to be waste under the circumstances of 
 the case, but which, in the view of a court of 
 equity, are so esteemed from their manifest 
 injury to the inheritance, although they are not 
 
77 
 
 inconsistent with the legal rights of the party 
 committing them.' 2 Story Eq. Jur., sec. 915. 
 The same author further says: 'In all such 
 cases the party is deemed guilty of a wanton 
 and unconscientious abuse of his rights, ruin- 
 ous to the interests of other parties.' Lord 
 Chancellor Campbell, in Turner v. Wright, 6 
 Jur. N. S., 809, 29 L. J. Ch. N. S., 598, defines 
 equitable waste to be 'that which a prudent man 
 would not do with his own property.' 
 
 "Even if an action for damages would lie for 
 equitable waste, a question not decided, there 
 is nothing in the record before us to show that 
 Bryant Landers was guilty of such waste. 
 
 It does not appear that he was guilty of a 
 wanton and unconscientious abuse of his rights, 
 or that he did that which a prudent man would 
 not do with his own property. We, therefore, 
 conclude that the action for waste was prop- 
 erly dismissed." 
 
 The historical and interesting case of Attorney 
 General against Duke of Marlborough, 3 Madd., 
 498, turned on the right of a tenant in tail to cut 
 timber on the granted estate. Blenheim House and 
 the Manor of Woodstock had been granted in fee tail 
 to the great Duke — a nation's reward to the victor 
 of Blenheim. Tenancy in tail, like the tenure of a 
 railroad land grant, is of statutory origin. It origi- 
 nated, as will be recalled, in the Statute De Donis 
 Conolitionalibus, designed to restrain the alienation 
 of conditional fees — limited, for example, to the ten- 
 
78 
 
 ant and heirs of his body — alienations which tenants 
 had been practicing freely to the alleged prejudice 
 of their issue and of the lord in reversion. The 
 statute restrained the power of alienation except, 
 as by amendment was afterwards permitted, to the 
 extent of certain leases; it entailed the estate 
 strictly. But like some other celebrated statutes, — 
 the Statute of Uses, for instance the Statute De 
 Donis Conditionalibus was, in time, over-reached 
 — by the process of fine and recovery, and the ten- 
 ant was enabled to bar the entail and clothe him- 
 self with a fee absolutely. It was well settled that 
 a tenant in tail — even a tenant in tail after the pos- 
 sibility of issue extinct, was dispunishable for waste. 
 But the Blenheim granting act went beyond the 
 Statute De Donis, and industriously and in very 
 clear terms forbade the barring of the entail. 
 
 The defendant, Duke of Marlborough, in the case 
 now cited, was in by a fee simple title, but it was a 
 fee tail in the strictest sense, a fee simple to which 
 a restraint upon alienation was attached beyond 
 circumvention. Did he have the right to cut the 
 timber on the entailed estate and apply its proceeds 
 to his own use? — that was the question before Sir 
 John Leach. We quote from the opinion : 
 
 "That an ordinary tenant in tail may, at his 
 pleasure, cut down all timber for whatever pur- 
 poses planted, admits of no question, and it is 
 hardly necessary to advert to the origin of that 
 particular species of tenure. It grew out of 
 
79 
 
 the ancient conveyances to a man, and to the 
 heirs of his body. Under such a conveyance, it 
 was held at common law, that until issue born, 
 he had not the absolute property in the estate, 
 it being limited by the grant, not to his gen- 
 eral heir, but to the heirs of his body; but that 
 the moment issue was born, the condition being 
 performed, the estate became absolutely his 
 property, and he could dispose of it in the same 
 manner as if he had held it in fee simple. The 
 legislature, however, thought fit to interfere, 
 and by the Statute of Westminster, the Second 
 (commonly called the Statute De Donis, 13 
 Edward I c. 1.) it was declared, that the Will 
 of the Donor or Grantor should be observed, 
 and that an estate so granted to a man and the 
 heirs of his body, should descend to the issue, 
 and that he should not have power to alienate 
 the estate. In the construction of that Act of 
 Parliament, it was held, that a tenant in tail 
 remained with the same unqualified and abso- 
 lute ownership of his estate, as he had before 
 that statute, with the single exception of the 
 restraint on alienation. In that restraint of 
 alienation was included, alienation by lease; 
 leases being considered, according to the con- 
 struction of that statute, as partial alienations ; 
 but by subsequent statute of the 32 Hen. VIII 
 c. 28, a tenant in tail is permitted to make 
 certain leases mentioned in that statute. With 
 the exception, therefore, of alienation including 
 leases, unless according to the Statute, a tenant 
 in tail is at this day to be considered as much 
 
80 
 
 the absolute owner of the estate as a tenant in 
 fee simple, and as such, may do what he pleases 
 with the buildings and timber on the estate." 
 
 Sir John Leach now takes up the provision of the 
 granting act, by which the barring of the entail was 
 forbidden. "In the first place," he says, "it is to be 
 observed that this is an express admission by the 
 legislature that the estate conferred upon the issue 
 of the Duke of Marlborough, by the previous limita- 
 tions, was an estate capable of being barred by fine 
 or recovery, or in other words, was an estate tail, to 
 which alone the bar by fine or recovery is applicable ; 
 and this provision is, therefore, nothing more than a 
 declaration on the part of the legislature, that the 
 estate tail, given to the issue of the Duke of Marl- 
 borough, should, in this respect, lose one of the inci- 
 dents which belong to it, by the principles of law, 
 namely, the power of barring the entail by fine or 
 recovery; and necessarily, therefore, leaving every 
 tenant in tail in possession with every other legal 
 incident, which belongs to the nature of his estate, 
 and consequently, leaving him as much the absolute 
 owner of the timber and buildings on the estate, as 
 if he were tenant in fee simple." 
 
 The court notices, by way of contrast, the case of 
 tenant for life, as to which "it is to be observed that 
 the ownership of the timber is not a legal incident to 
 the estate of tenant for life" ; and as to a tenant in 
 tail, after possibility of issue extinct, it is said that 
 
81 
 
 he is, "in effect a tenant for life, without impeach- 
 ment of waste." 
 
 Sir John Leach finally calls attention to a statute 
 of the 5th Anne, c. 4, not noticed in the pleadings or 
 argument, and making a settlement of five thou- 
 sand pounds a year on the Duke's posterity, "for the 
 more honorable support of their dignities in like 
 manner as his honors and the honor and manor of 
 Woodstock and the House of Blenheim were already 
 limited and settled." 
 
 "I cannot read these several acts," says Sir John 
 Leach, "and attend to the circumstances of this prop- 
 erty and observe the manner and purpose of build- 
 ing this house of Blenheim, and the special annexa- 
 tion of it to the honors and dignities of this family, 
 as was particularly recited in the last act, without 
 stating that there appears to me to be clear and 
 necessary implication that it was the intention of 
 the legislature that the House of Blenheim should, 
 in all times, as a distinct subject, descend and be 
 enjoyed with the honors and dignities of this family, 
 and that it was not the intention of the legislature 
 that the successive possessors of these honors and 
 dignities, should have the rights of property over it, 
 which, with respect to the rest of the estate, were 
 legally incident to their character of tenant in tail. 
 I think the legislature thus imposed upon every 
 possessor of these honors and dignities the obliga- 
 tion to maintain the House of Blenheim for the 
 future residence of those to whom the succession 
 
82 
 
 was limited; and that this court is bound to inter- 
 fere to prevent its destruction. I am clearly of 
 opinion that the Duke of Marlborough, having no 
 power of destruction over the house has no power of 
 destruction over the timber which is essential to 
 the shelter or ornament of the house." 
 
 Intrinsic and Corroborative Evidence of the 
 Granting Acts Themselves. 
 
 We have had occasion, in citing Howe against 
 Lowell, 171 Mass. pp. 582-3, to quote, inter alia, 
 this language: 
 
 "As the grantee took the lands in fee, it is 
 entitled to make any use of the lands not in 
 violation of the conditions in the deeds, whether 
 the parties thought of it or not." 
 
 Something, now, as to the granting acts in the 
 case at bar, and as to the timber and the minerals — 
 and whether the parties thought of these things or 
 not. 
 
 "As a rule of construction," this court has held 
 (Blair against Chicago, 201 U. S. p. 475), "a statute 
 amended is to be understood in the same sense ex- 
 actly, as if it had read from the beginning as it 
 does amended." 
 
 The Act of July 25, 1866, is, therefore, to be read 
 as if it had contained the settlers' clause from the 
 beginning; the act of May 4, 1870 had the settlers' 
 clause in it when originally passed. 
 
 Congress, when it attached to the otherwise un- 
 qualified estate of the grantee the covenant found in 
 
83 
 
 the settlers' clause, and when it made the grant it- 
 self, did think of some things — of some limitations 
 or of some limitation upon the estate, but that limi- 
 tation did not include the timber upon the lands 
 granted. There was something in the lands granted 
 — a product or component of the soil — which Con- 
 gress did think of and which Congress expressly and 
 pointedly excepted out of the estate, and that was 
 the mineral therein. 
 
 The original act of July 25, 1866, in Section 10 
 thereof, reads as follows: 
 
 "And be it further enacted, That all mineral 
 lands shall be excepted from the operation of 
 this act; but when the same shall contain tim- 
 ber, so much of the timber thereon as shall be 
 required to construct said road over such min- 
 eral land is hereby granted to said companies: 
 Provided, that the term 'mineral lands' shall 
 not include lands containing coal and iron." 
 The act of May 4, 1870, Section 1, grants 
 
 "each alternate section of the public lands, 
 not mineral, excepting coal or iron lands, desig- 
 nated by odd numbers nearest to said road, 
 to the amount of ten such alternate sections per 
 mile, on each side thereof." 
 
 It is thus seen that Congress expressly dealt with 
 the mineral contents of the lands granted by the act 
 of 1866, and indeed, in an express but partial way, 
 with the timber thereon; but the Congressional ex- 
 ception conspicuously includes in its limitation of 
 the grant only such timber as there shall be, not on 
 
84 
 
 the granted lands, but on the excluded mineral 
 lands, and even as to such excepted timber the com- 
 pany is accorded the right to use so much as shall 
 be necessary "to construct said road over such min- 
 eral land." Again, in the act of 1870, the minerals, 
 in distinction from the timber, are expressly ex- 
 cluded from the operation of the grant. And more 
 than that, and in both acts, even in the exception of 
 the minerals, it is provided that such exception 
 shall not include coal and iron — a plain recognition 
 of the grantee's right to the coal and to the iron ex- 
 isting in the granted lands ; and yet, in the decree as 
 signed by the District Court, it seems not to have 
 been enough to exclude our right to the timber of 
 the non-mineral, unexcepted and granted sections, 
 but all mineral deposits, including, therefore, the 
 coal and iron, are excluded by the terms of the de- 
 cree. 
 
 The settlers' proviso, under the familiar rule of 
 construction, amendment though it was, must be 
 read with the rest of the grant, as if it had been 
 there from the first beginning. It must be read con- 
 sistently and harmoniously with the rest of the act; 
 and it must be read in the light of the time and the 
 environment in which it was passed, not by the wis- 
 dom that comes after the event; (U. S. v. U. P. RR., 
 91 U. S., 72, 81) not with a perverted purpose to 
 turn a settlement act into a timber and stone act. It 
 never entered the head of the man who wrote these 
 granting acts, or of the men who voted for them, 
 
85 
 
 that the railroad company had no right in, or use 
 for all this timber, or coal, or iron, except to sell it 
 to settlers — as if the settlers wanted it. The gro- 
 tesque incongruity of the thing is not to be im- 
 puted to the legislature. It was settlement land 
 that was contemplated by the provisos — arable land, 
 tillable by settlers. 
 
 The timber, cleared off and out of the way, to 
 make place for the settler, the coal, the iron, — that 
 went with the grant, to the owner of the land. 
 (United States against Losekamp, 127 Fed. 959) 
 The grantor itself, in 1878, as the opinion of this 
 court notices, took its own lands, lying within the 
 circumscription of the grant, its even numbered sec- 
 tions, out of the settlement laws and put them under 
 the timber and stone act. And the Ferris Act is an 
 object lesson ; it first clears and sells the timber and 
 then offers the land for settlement. 
 
 It is not of moment, as said in the Massachusetts 
 case of Howe v. Lowell, supra, whether the parties 
 thought of the timber or not. But Congress did 
 think of the timber, and it thought of the minerals, 
 and it dealt with the timber and with the minerals 
 in a way to make it convincingly evident that so far 
 as the granted lands were concerned, no limitation 
 upon the estate of the grantee in respect to the tim- 
 ber, or in respect to the coal or iron, was contem- 
 plated or imposed. And now, as to the patented 
 lands, all minerals therein found — not coal and iron 
 only — are, by force of the patent, the property and 
 
86 
 
 estate of the patentee. (Burke v. S. P. R. R., 234 
 U. S., 669). The case at bar is a revealing in- 
 stance of that canon of construction — the rule of 
 expressio unius — which this court invoked and ap- 
 plied in passing upon the question of a condition 
 subsequent. For it will be remembered that the 
 opinion of the court contrasts the expressed penal- 
 ties of reverter and forfeiture, attached by Congress 
 to failure on the part of the grantee to construct the 
 railroad within the prescribed time, or to file its as- 
 sent within the prescribed time, over against the ab- 
 sence of such penalties or of any penalty from the 
 provisos in which the settlers' clause is contained. 
 
 So much for the rights of the grantee to the lands, 
 which it contracted for, earned and paid for, and to 
 the timber, the coal, the iron, or other mineral con- 
 tent. 
 
 - It appeared from the record which this court had 
 before it on the first appeal, (Vol. 13, pp. 6836-7) 
 that the company had been under an expense, in ad- 
 ministering the grant from April 1, 1870 to April 
 30, 1911, of $1,184,542.84; that it had paid the 
 taxes on the granted lands to 1910 inclusive, that 
 taxes had been levied on the lands for the year 1911, 
 and that during the more recent years of the above 
 period, taxes had been levied upon an assessed valu- 
 ation in excess of $2.50 per acre — ranging from 
 $2.96 per acre up to $10.32 per acre— the taxes so 
 paid and levied amounting to $2,434,843.33 (Vol. 
 5, pp. 2567 et seq.) ; making a total administration 
 
87 
 
 expense, including taxes, of $3,619,386.17. The 
 total cash receipts from all sources, April 1, 1870 to 
 April 30, 1911, including sales of land (Vol. 13, pp. 
 6836-7) are stated to be $5,488,020.72. This leaves 
 the company a net revenue from past transactions 
 up to April 30, 1911, over and above expenses paid 
 and taxes levied, of $1,868,634.55. The average net 
 revenue per acre for the lands sold, aggregating 
 some 820,000 acres (Vol. 4, p. 1578) figured up to 
 April 30, 1911, on the basis of the above items, was 
 $2.27. 
 
 The grant obligated the company to carry free 
 for the United States government its property and 
 troops, without limit as to time. The value of this 
 free transportation, at the regular rates and com- 
 puted for the service over the company's line in 
 Oregon between 1882 and 1911 inclusive, is $1,894,- 
 970.09 (Vol. 13, pp. 6835-6, and computation based 
 thereon). This amount is in excess of the receipts 
 of the company, hereinabove mentioned by $26,- 
 335.54. And if these figures could be carried down 
 to date, the deficit would be largely increased, and 
 further the average net revenue, above indicated, of 
 $2.27 per acre for the land sold, would be expressed 
 by a much diminished figure. 
 
 II. 
 
 THE FERRIS ACT IS INVALID. 
 
 In the statement with which this brief opens (pp. 
 1-12 ante) the salient and pertinent provisions of 
 
88 
 
 the Ferris Act were given succinctly. We print the 
 act in full as an appendix to this brief. 
 
 The protection of vested property rights has been 
 a constitutional guaranty and bulwark from the be- 
 ginning. 
 
 Said Chief Justice Marshall, speaking of a legis- 
 lative grant, which the legislature, by a subsequent 
 statute sought to resume, — (Fletcher v. Peck, 6 
 Cranch, p. 135) : 
 
 "Is the power of the legislature competent to 
 the annihilation of such title, and to a resump- 
 tion of the property thus held? The principle 
 asserted is, that one legislature is competent to 
 repeal any act which a former legislature was 
 competent to pass ; and that one legislature can- 
 not abridge the powers of a succeeding legis- 
 lature. The correctness of this principle, so 
 far as respects general legislation, can never be 
 controverted. But, if an act be done under a 
 law, a succeeding legislature cannot undo it. 
 The past cannot be recalled by the most abso- 
 lute power. Conveyances have been made, 
 those conveyances have vested legal estates, 
 and, if those estates may be seized by the sover- 
 eign authority, still, that they originally vested 
 is a fact, and cannot cease to be a fact. When, 
 then, a law is in its nature a contract, when 
 absolute rights have vested under that contract, 
 a repeal of the law cannot divest those rights; 
 and the act of annulling them, if legitimate, is 
 rendered so by a power applicable to the case of 
 every individual in the community." 
 
89 
 
 The same great judge, in Terrett v. Taylor, 9 
 Cranch, p. 50, is again speaking of a legislative 
 grant and its attempted repeal: "If the legisla- 
 ture," he says, "possessed the authority to make such 
 a grant and confirmation, it is very clear to our 
 minds, that it vested an indefeasible and irrevoc- 
 able title. We have no knowledge of any authority 
 or principle which could support the doctrine, that a 
 legislative grant is revocable in its own nature, and 
 held only durante bene placito. Such a doctrine 
 could uproot the very foundations of almost all the 
 land-titles in Virginia, and is utterly inconsistent 
 with a great and fundamental principle of a repub- 
 lican government, the right of the citizens to the 
 free enjoyment of their property legally acquired." 
 
 In Wilkinson against Leland, 2 Peters, 627, 657-8, 
 Mr. Justice Storey refers to Terrett v. Taylor, 
 supra, in language which has become one of the tra- 
 ditions of this court: "In Terrett v. Taylor, 9 
 Cranch 43," he says, "it was held by this court, that 
 a grant or title to lands, once made by the legisla- 
 ture, to any person or corporation, is irrevocable, and 
 cannot be re-assumed by any subsequent legislative 
 act; and that a different doctrine is utterly incon- 
 sistent with the great and fundamental principle of 
 a republican government, and with the right of the 
 citizens to the free enjoyment of their property law- 
 fully acquired. We know of no case, in which a 
 legislative act to transfer the property of A. to B., 
 without his consent, has ever been held a constitu- 
 
90 
 
 tional exercise of legislative power, in any state in 
 the Union. On the contrary, it has been constantly 
 resisted, as inconsistent with just principles, by 
 every judicial tribunal in which it has been at- 
 tempted to be enforced." 
 
 "It seems to us," said Mr. Justice Miller, carry- 
 ing on the tradition, (Davidson v. New Orleans, 96 
 U. S., 97, 102) "that a statute which declares in 
 terms, and without more, that the full and ex- 
 clusive title of a described piece of land, which is 
 now in A., shall be and is hereby vested in B., would, 
 if effectual, deprive A. of his property without due 
 process of law, within the meaning of the constitu- 
 tional provision." 
 
 In this fundamental matter, the opinions, prevail- 
 ing and dissenting, in the Sinking Fund Cases (99 
 U. S., 700) are at one. In the prevailing opinion 
 by Mr. Chief Justice Waite, it is said: (p. 718) 
 
 "The United States cannot any more than a 
 State interfere with private rights, except for 
 legitimate governmental purposes. They are 
 not included within the constitutional prohibi- 
 tion which prevents States from passing laws 
 impairing the obligation of contracts, but 
 equally with the States they are prohibited 
 from depriving persons or corporations of prop- 
 erty without due process of law. They cannot 
 legislate back to themselves, without making 
 compensation, the lands they have given this 
 corporation to aid in the construction of its 
 railroad. Neither can they by legislation com- 
 
91 
 
 pel the corporation to discharge its obligations 
 in respect to the subsidy bonds otherwise than 
 according to the terms of the contract already 
 made in that connection. The United States 
 are as much bound by their contracts as are 
 individuals. If they repudiate their obliga- 
 tions, it is as much repudiation, with all the 
 wrong and reproach that term implies, as it 
 would be if the repudiator had been a State or 
 a municipality or a citizen. No change can be 
 made in the title created by the grant of the 
 lands, or in the contract for the subsidy bonds, 
 without the consent of the corporation. All this 
 is indisputable." 
 
 To the same effect is the dissenting opinion of 
 Mr. Justice Strong: (p. 731) 
 
 "As was said by Mr. Hamilton in his cele- 
 brated communication to the Senate of Jan. 
 20, 1795, 'when a government enters into a 
 contract with an individual, it deposes, as to 
 the matter of the contract, its constitutional 
 authority, and exchanges the character of legis- 
 lator for that of a moral agent, with the same 
 rights and obligations as an individual. Its 
 promises may be justly considered as excepted 
 out of its power to legislate, unless in aid of 
 them. It is in theory impossible to reconcile the 
 idea of a promise which obliges, with a power 
 to make a law which can vary the effect of it.' 
 3 Hamilton's Works, 518, 519. Opinions simi- 
 lar to this have often found expression in ju- 
 dicial decisions, even in those of this court. If 
 
92 
 
 this be sound doctrine, it is as much beyond the 
 power of a legislature, under any pretence, to 
 alter a contract into which the government has 
 entered with a private individual, as it is for 
 any other party to a contract to change its 
 terms without the consent of the person con- 
 tracting with him. As to its contract, the gov- 
 ernment in all its departments has laid aside 
 its sovereignty, and it stands on the same foot- 
 ing with private contractors." 
 
 And, again, renewing the tradition, he says: (p. 
 738) 
 
 "A statute undertaking to take the property 
 of A. and transfer it to B. is not legislation. It 
 would not be a law. It would be a decree or 
 sentence, the right to declare which, if it exists 
 at all, is in the Judicial Department of the gov- 
 ernment. ,, 
 
 "A power of Congress," said Mr. Justice Bradley, 
 in his dissent, (p. 744) "even over those subjects 
 upon which it has the right to legislate, is not des- 
 potic, but is subject to certain constitutional limi- 
 tations. One of these is, that no person shall be de- 
 prived of life, liberty, or property without due pro- 
 cess of law; another is, that private property shall 
 not be taken for public use without just compensa- 
 tion; and a third is, that the judicial power of the 
 United States is vested in the supreme and inferior 
 courts, and not in Congress." 
 
 He says further, in language that hits the Ferris 
 Act like a prophecy: "Under the English Constitu- 
 
93 
 
 tion, notwithstanding the theoretical omnipotence 
 of Parliament, such a law as the one in question 
 would not be tolerated for a moment. The famous 
 denunciation that 'it would cut every Englishman to 
 the bone/ would be promptly reiterated." (p. 746) 
 In the dissenting opinion of Mr. Justice Field (p. 
 757), it is said: 
 
 "When the road was completed in the man- 
 ner prescribed and accepted, the company be- 
 came entitled as of right to the land and sub- 
 sidy bonds stipulated. The title to the land was 
 perfect on the issue of the patents; the title to 
 the bonds vested on their delivery. Any altera- 
 tion of the acts under the reservation clauses, 
 or their repeal, could not revoke the title to the 
 land or recall the bonds or change the right of 
 the company to either. So far as these are con- 
 cerned, the contract was, long before the act of 
 1878, an executed and closed transaction, and 
 they were as much beyond the reach of the 
 government as any other property vested in 
 private proprietorship." 
 
 The government, he adds, "could not release itself 
 and hold the other party to the contract. It could 
 not change its obligations and hold its rights un- 
 changed. It cannot bind itself as a civil corporation, 
 and loose itself by its sovereign legislative power." 
 (p. 759, Italicized by Mr. Justice Field.) 
 
 And further, and finally, of the government: (p. 
 760) 
 
94 
 
 "If it had cause of complaint against the 
 company, it could not undertake itself, by 
 legislative decree, to redress the grievance, but 
 was compelled to seek redress as all other civil 
 corporations are compelled, through the judicial 
 tribunals." 
 
 In Chicago and Burlington Railroad against Chi- 
 cago, 166 U. S., 226, 235, the court said: 
 
 "In Davidson v. New Orleans, above cited, it 
 was said that a statute declaring in terms, 
 without more, that the full and exclusive title 
 to a described piece of land belonging to one 
 person should be and is hereby vested in an- 
 other person, would, if effectual, deprive the 
 former of his property without due process of 
 law, within the meaning of the Fourteenth 
 Amendment. See also Missouri Pacific Rail- 
 way v. Nebraska, 164 U. S. 403, 417. Such an 
 enactment would not receive judicial sanction 
 in any country having a written constitution 
 distributing the powers of government among 
 three co-ordinate departments, and committing 
 to the judiciary, expressly or by implication, 
 authority to enforce the provisions of such con- 
 stitution. It would be treated not as an exer- 
 tion of legislative power, but as a sentence — an 
 act of spoliation." 
 
 Authorities might be multiplied indefinitely; it 
 would be pedantry to cite them further. The reser- 
 vation clause of the Granting Act of July 25, 1866, 
 itself recognized the principle, for it reads (Sec. 
 12): 
 
95 
 
 "And be it further enacted that Congress 
 may at any time, having due regard for the 
 rights of said California and Oregon Railroad 
 Companies add to, alter, amend, or repeal this 
 act." 
 
 The consent of the railroad company was essential 
 to a valid resumption or alteration of its vested 
 rights; its consent should have been had and ob- 
 tained, as the consent of the Northern Pacific Rail- 
 road Company was had and obtained, in the in- 
 stance of the Relinquishment Act of July 1, 1898, 
 (30 Stat., 597, 620, c. 546), relating to the land 
 grant to that company. 
 
 "If any rights had become vested in the North- 
 ern Pacific Railroad Company", said this court, 
 "which could not, against or without its consent, be 
 effected by an enactment like that of 1898, then the 
 objection to legislation, on the ground that it inter- 
 fered with vested rights, was waived by the accept- 
 ance of the act by its successor in interest; for it 
 was entirely competent for the latter company, if it 
 succeeded to all the rights of the railroad grantee, 
 to agree to such a settlement as that devised by Con- 
 gress". Humbird v. Avery, 195 U. S., 480, 501 ; see 
 also United States v. Inman-Paulson Lumber Co., 
 233 Fed., 942. 
 
 All this was in the mind of Mr. Justice McKenna, 
 when he wrote into the concluding paragraph of his 
 opinion on the first appeal, that any legislation in 
 
96 
 
 the premises by Congress, should ' 'secure to the de- 
 fendants all the value the granting acts conferred 
 upon the railroads". 
 
 It was not in the mind of the learned author of 
 this opinion, we submit, with deference, nor was it 
 in the mind of the court, that Congress would or 
 could revest itself with the title to lands earned and 
 held by the grantee in complete and absolute owner- 
 ship, and would or could, as it would now assume to 
 do, dispose of those lands in its own way, at its own 
 time, to its own purchasers, upon its own terms. 
 The opinion of this court should not be strained and 
 warped to mean that a legislative provision, for the 
 disposition of these lands in accordance with some 
 fitting policy, was intended to be a disposition of 
 them by the grantor, or by any one else except the 
 owner of the fee simple title. We have already ad- 
 verted to this matter of congressional policy and in- 
 terposition. 
 
 The opinion of Mr. Justice McKenna, fairly read, 
 makes this plain enough. He recognizes, as we 
 have pointed out, the relative impracticability of the 
 policy expressed by the covenants, a policy of settle- 
 ment addressed to lands that were largely insuscep- 
 tible of settlement. But if those covenants were un- 
 workable, if that policy was not feasible, the remedy 
 did not lie in a disregard of the contract and the 
 law; the railroad company should have gone to 
 Congress for some new disposition, where, alone, the 
 law and policy could be changed, and the sales' re- 
 
97 
 
 quirement made adaptable to the exigency. There 
 would then have been a meeting of minds between 
 grantor and grantee. 
 
 "Whatever the difficulties of performance", says 
 Mr. Justice McKenna, in language we have already 
 quoted, "relief could have been applied for and, it 
 might be, have been secured through an appeal to 
 Congress". 
 
 And again, the learned Justice observes, in lan- 
 guage we beg to repeat : 
 
 "The character of the lands furnished no 
 excuse. It might have justified non-action, but 
 it did not justify antagonistic action." 
 
 And further: 
 
 "If the provisos were ignorantly adopted as 
 they are asserted to have been; if the actual 
 conditions were unknown, as is asserted ; if but 
 little of the land was arable, most of it covered 
 with timber and valuable only for timber and 
 not fit for the acquisition of homes; if a great 
 deal of it was nothing but a wilderness of 
 mountain and rock and forest; if its character 
 was given evidence by the application of the 
 Timber and Stone Act to the reserved lands ; if 
 settlers neither crowded before nor crowded 
 after the railroad, nor could do so; if the 
 grants were not as valuable for sale or credit 
 as they were supposed to have been and diffi- 
 culties beset both uses, — the remedy ivas ob- 
 vious. Granting the obstacles and infirmities, 
 they ivere but promptings and reasons for an 
 appeal to Congress to relax the law; they were 
 neither cause nor justification for violating it." 
 
98 
 
 But no relaxation of the law, no change in the 
 statutory policy, was competent to Congress, that 
 went in impairment of vested rights ; nor could any 
 remedy be administered by Congress that did not 
 "at the same time secure to the defendants all the 
 value the granting acts conferred upon the rail- 
 roads." But what was it that the granting acts 
 conferred upon the railroads? — "there was a com- 
 plete and absolute grant to the railroad company with 
 power to sell, limited only as prescribed" by the 
 settlers' provisos. And what of those provisos? — 
 "their language is not directive; it is restrictive only. 
 With this exception the grant is unqualified". 
 
 Naked Power of Sale in Contradistinction from 
 Estate in Fee. 
 
 The Ferris Act, it would seem, goes upon the 
 theory, not of a grant to the railroad company at all, 
 but of a mere naked trust or power to dispose of the 
 lands in the manner specified in the acts and to 
 apply the proceeds to the use and purpose therein 
 described. 
 
 It is instructive and interesting at this point to 
 contrast the facts, and the judgments of this court 
 on the facts, in the cases, respectively, of Rice v. 
 Railroad Company, 1 Black, 358, and Schulenberg 
 v. Harriman, 21 Wall., 44. 
 
 In the Rice case, Edmond Rice, claiming as an 
 entryman under the United States, brought an ac- 
 tion of trespass against the Minnesota and North- 
 
99 
 
 western Railroad Company, for cutting timber on 
 the land in question. The railroad company justi- 
 fied the cutting of the timber by pleading title to the 
 premises under a railroad land grant. 
 
 This land grant, of date June 29, 1854, was made 
 by Congress, in the first instance, to the Territory of 
 Minnesota, in aid of railroad construction. The 
 railroad company succeeded to the right, title and 
 interest of the Territory, afterwards the State, such 
 as it was, by grant from the State, through the act 
 of incorporation. The incorporation act provided, 
 among other things, that "for the purpose of aiding 
 the said company in the construction and maintaining 
 the said railroad, it is further enacted, that any lands 
 that may be granted to the said Territory, to aid in 
 the construction of the said railroad, shall be, and the 
 same are hereby, granted in fee simple absolute, with- 
 out any further act or deed ; and the Governor of this 
 Territory or future State of Minnesota, is hereby au- 
 thorized and directed, in the name and on behalf of 
 said Territory or State, after the said grant shall have 
 been made by the United States to said Territory, to 
 execute and deliver to said company, such further 
 deed or assurance of the transfer of the said prop- 
 erty, as said company may require, to vest in them 
 a perfect title to the same: provided, however, that 
 such lands shall be taken upon such terms and con- 
 ditions as may be prescribed by the act of Congress 
 granting the same". 
 
100 
 
 Section 1, of the Act of Congress, of June 29, 
 1854, making the grant, recited: 
 
 "That there is hereby granted to the Terri- 
 tory of Minnesota, for the purpose of aiding in 
 the construction of a railroad * * * every al- 
 ternate section of land, designated by odd num- 
 bers, for six sections in width, on each side of 
 said road within said Territory." 
 
 It further provided that the land "shall be held 
 by the Territory of Minnesota, for the uses and 
 purposes, aforesaid." This is made very explicit 
 by section 3, which provides that the lands granted 
 to the Territory "shall be subject to the disposition 
 of any legislature thereof, for the purpose aforesaid 
 and no other ; nor shall it inure to the benefit of any 
 company heretofore constituted and organized." 
 
 It also provided in section 4 — and the language 
 here is important to notice — "that the lands hereby 
 granted to said territory shall be disposed of by 
 said territory only in the manner following, that 
 is to say: no title shall vest in said Territory 
 of Minnesota, nor shall any patent issue for any 
 part of the lands hereinbefore mentioned, until a 
 continuous line of twenty miles of said road, shall 
 be completed through the lands hereby granted"; 
 and further, in the same section, "if said road is 
 not completed within ten years, no further sales 
 shall be made, and the land unsold shall revert to 
 the United States". 
 
101" 
 
 Such was the granting act of Congress; and such 
 as it was, on the 24th day of August, 1854, Con- 
 gress passed an act, repealing the act by which the 
 grant had been made on the preceding 29th day 
 of June. It was after the passage of the repealing 
 act that the railroad company did the cutting of 
 the timber, which the entryman imputed as a tres- 
 pass. 
 
 The first question taken up by this court, is 
 whether the railroad company acquired any title 
 or interest in the lands by virtue of its act of 
 incorporation. 
 
 "If the defendants", said this court, "acquired 
 such a right, title or interest in the lands, under 
 their original charter, then it is clear that it be- 
 came a vested interest as soon as the act of Con- 
 gress went into effect, and on that state of the 
 case, it would be true, as contended by the defend- 
 ants, that the repealing act set up in the replica- 
 tion of the plaintiff is void and of no effect", citing 
 Terrett v. Taylor, 9 Cranch, 43 ; Pawlett v. Clark, 9 
 Cranch, 292. 
 
 But even if the act of incorporation, for any rea- 
 son, did not vest in the railroad company an in- 
 terest in the lands, the plaintiff, suing as an entry- 
 man under the United States, would still be 
 confronted with a second question in the case, 
 namely, the effect of the act of Congress, making 
 the grant to the Territory itself. 
 
102 
 
 "If the legal effect", said the court, "of the act 
 of Congress, set up in the answer, was to grant to 
 the Territory a beneficial interest in the lands, then 
 it is equally clear that it was not competent for 
 Congress to pass the repealing act and divest the 
 title; and the defendants, on the facts exhibited in 
 the pleadings, although they did not acquire any 
 title under their original charter, are,- nevertheless, 
 the rightful owners of the land, by virtue of the 
 first amendment to the same, passed by the Terri- 
 torial Legislature". It is not material to dwell on 
 this amendment. 
 
 "Unless", continues the court, "both of the ques- 
 tions, therefore, are determined in the negative, the 
 judgment of the court below must be affirmed", 
 citing Fletcher against Peck, 6 Cranch, 135. 
 
 Upon the first question, as to the right of the 
 railroad company to the land, not under the amend- 
 ment to its charter, but under the original charter 
 itself, it was the conclusion of the court, "that 
 the defendants acquired no right, title or interest 
 in the lands in controversy by virtue of their 
 original charter"; and this, upon the ground that 
 the thing granted was not in the grantor, that is 
 to say, the Territory, at the time the Act of In- 
 corporation was passed, March 4, 1854. 
 
 The court then goes to the second question, 
 whether any beneficial interest in the lands, passed 
 to the Territory under the act of Congress set up 
 
103 
 
 in the answer. It is conceded that the familiar 
 clause of the first section pointed to a grant in 
 praesenti. 
 
 "Standing alone", says the court, "the clause 
 furnishes strong evidence to refute the proposition 
 of the defendants, that a beneficial interest passed 
 in praesenti to the Territory; because it is dis- 
 tinctly provided that the lands granted shall be 
 held by the territory for a declared use and pur- 
 pose, evidently referring to the contemplated rail- 
 road, which, when constructed, would be a public 
 improvement of general interest". 
 
 The court then notices the third section, pro- 
 viding "that the said lands hereby granted shall 
 be subject to the disposal of any Legislature thereof 
 for the purpose aforesaid, and no other; nor shall 
 they inure to the benefit of any company heretofore 
 constituted or organized". 
 
 Much reason exists, it was believed by the court, 
 to conclude that the railroad company fell within 
 the prohibition of this section, as being a company 
 "heretofore constituted and organized". And in 
 any event, it was the view of the court that, under 
 the first and third sections, it was the intent of Con- 
 gress to restrict the authorities of the Territory, 
 so far as their control of the lands was concerned, 
 to the strict and special purpose expressed in the 
 act. 
 
 "But, restricted as the authorities of the Terri- 
 tory were, by those limitations and provisions", 
 
104 
 
 the court continues, "their hands were still more 
 closely tied by the provisions of the fourth sec- 
 tion, which remained to be considered". And it is 
 in the discussion of the fourth section, that the 
 conception of a naked power of sale, in contradis- 
 tinction from an estate in fee, emerges". 
 
 "By the fourth section," says the court, "it is 
 provided, 'that the lands hereby granted to the 
 said Territory shall be disposed of by said Territory 
 only in the manner following — that is to say, no title 
 shall vest in said territory of Minnesota, nor shall 
 any patent issue for any part of the lands herein- 
 before mentioned, until a continuous length of 
 twenty miles of said road shall be completed through 
 the lands hereby granted' ". 
 
 The court goes on: 
 
 "Certain lands are granted to the Territory 
 by the first section, to be held by it for a 
 specified use and purpose, for the construc- 
 tion of a specific public improvement, and 
 to be exclusively applied to that purpose, with- 
 out any other restriction, except that the lands 
 could be disposed of only as the work pro- 
 gressed. To carry out that purpose, the lands 
 were declared by the third section, to be sub- 
 ject to the future disposal of the Territorial 
 Legislature, but that in no event should they 
 inure to the benefit of any company previously 
 constituted and organized. Neither of those 
 sections contained any words which neces- 
 sarily and absolutely vested in the territory 
 
105 
 
 any beneficial interest in the thing granted. 
 Undoubtedly, the words employed are sufficient 
 to have that effect; and if not limited or re- 
 stricted by the context or other parts of the 
 act, they would properly receive that con- 
 struction ; but the word, grant, is not a techni- 
 cal word like the word, enfeoff; and although, 
 if used broadly, without limitation or restric- 
 tion, it would carry an estate or interest in the 
 thing granted, still it may be used in a more 
 restricted sense, and be so limited that the 
 grantee will take but a mere naked trust or 
 power to dispose of the thing granted, and to 
 apply the proceeds arising out of it to the use 
 and benefit of the grantor". (1 Black, p. 378) 
 
 The court proceeds: 
 
 "It is expressly provided by the fourth sec- 
 tion of the Act that no title shall vest in the 
 Territory of Minnesota, nor shall any patent 
 issue for any part of the lands, until a con- 
 tinuous length of twenty miles of the road 
 shall be completed. Unless that whole provi- 
 sion, therefore, be rejected as without mean- 
 ing, or is repugnant to the residue of the act, 
 it is not possible, we think, to hold that the 
 territory acquired a vested interest in the lands 
 at the date of the act: and yet the fourth sec- 
 tion contains the same words of grant as are 
 to be found in the first and third, and no rea- 
 son is perceived for holding they are not 
 used in the same sense. It is insisted by the 
 defendants that the provision does not divest 
 
106 
 
 the grant of a present interest; that it only so 
 qualifies the power of disposal that the Terri- 
 tory cannot place the title beyond the opera- 
 tion of the condition specified in the grant. 
 But they do not attempt to meet the difficulty 
 that, by the express words of the act, the 
 absolute title remained in the grantor, at least 
 until twenty miles of the road were completed : 
 nor do they even suggest by what process of 
 reasoning the four words, 'no title shall vest', 
 can be shorn of their usual and ordinary sig- 
 nification, except to say that it would be doing 
 great injustice to Congress to hold, notwith- 
 standing the words of the first section, that no 
 title passed to the grantee. Whether the pro- 
 vision be just or unjust, the words mentioned 
 are a part of the act, and it is not competent 
 for this court to reject or disregard a material 
 part of an act of Congress, unless it be so 
 clearly repugnant to the residue of the act 
 that the whole cannot stand together. On the 
 other hand, if it be assumed that the Terri- 
 tory acquired but a mere naked trust or power 
 to dispose of the lands, and carry out the 
 contemplated public improvements therein de- 
 scribed, then the whole act is consistent and 
 harmonious", (p. 379) 
 
 In fine, as the court sums it up, "it is clear that 
 the Territory acquired nothing under the act of 
 Congress set up in the answer, but a mere naked 
 trust or power to dispose of the lands in the manner 
 therein specified, and to apply the same to the use 
 and purpose therein described", (p. 381) 
 
107 
 
 In such event, the court holds " Congress could 
 at any time repeal the act, creating the trust, if 
 not executed, and withdraw the power", (p. 381) 
 
 It was suggested to the court that this doctrine of 
 a mere naked trust or power to dispose of the lands 
 and to apply the proceeds, would be applicable to 
 all the railroad grants made by Congress to the 
 states and territories. And the court answered: 
 
 "Of course, the suggestion is correct, if such 
 other grants are made in the same terms, and 
 are subject to the same limitations, restric- 
 tions and prohibitions; but we have looked into 
 that subject, and think it proper to say, that 
 we see no foundation whatever for the sugges- 
 tion. One of these grants came under the re- 
 vision of the court, in the case of Lessieur 
 against Price, (12 How., 76) and this court 
 held, and we have no doubt, correctly, that 
 there was a present grant, and that the legis- 
 lature was vested with full power to select and 
 locate the land, but the case is so unlike the 
 present, that we do not think it necessary to 
 waste words in pointing out the distinction", 
 (p. 381-2) 
 
 The Rice case was decided by this court at the 
 December term, 1861. Schulenberg against Harri- 
 man, 21 Wall, 44, was decided at the October term, 
 1874. The Schulenberg case, like the Rice case, 
 turned on the right to severed timber ; to some sixteen 
 hundred thousand feet of pine saw-logs, which had 
 been cut on the land in question — land which had been 
 
108 
 
 granted by Congress to the State of Wisconsin, in aid 
 of railroad construction. We have been over this case. 
 The defendant, Harriman, who had seized the logs, 
 stood upon the title of the State of Wisconsin, as the 
 congressional grantee of the land, but the railroad 
 had never been constructed; the time for the con- 
 struction had long since passed; and the construc- 
 tion of the road within a specified time was a condi- 
 tion subsequent. No forfeiture, however, had been 
 declared by Congress, and this court held that until 
 Congress should resume the title by declaration of 
 forfeiture, as for breach of the condition subse- 
 quent, the title to the land was still in the grantee 
 and Harriman, as agent of the grantee, was en- 
 titled to the cut timber. Counsel for Schulenberg 
 put the strain of his case on the decision in Rice 
 against Railroad Company, supra. He argued that 
 the interest of the grantee, the State of Wisconsin, 
 was "a mere naked trust or power". (21 Wall, 
 p. 53) 
 
 This court declined to yield to the argument, dis- 
 tinguished the Rice case, and held the act of Con- 
 gress to be a present grant to the State of Wisconsin. 
 
 "That the Act of Congress of June 3, 1856", said 
 Mr. Justice Field, "passed a present interest in the 
 lands designated, there can be no doubt. The lan- 
 guage used imports a present grant and admits of 
 no other meaning. The language of the first section 
 is, ''that there be, and is hereby, granted to the State 
 of Wisconsin' the lands specified. The third section 
 
109 
 
 declares 'that the lands hereby granted to said 
 state shall be subject to the disposal of the legis- 
 lature thereof; and the fourth section provides 
 in what manner sales shall be made, and enacts 
 that if the road be not completed within ten years, 
 'no further sale shall be made, and the lands unsold 
 shall revert to the United States'. The power of 
 disposal and the provision for the lands reverting 
 both imply, what the first section in terms declares, 
 that a grant is made, that is, that the title is trans- 
 ferred to the State", (p. 60) 
 
 "The case of Rice against Railroad Company, re- 
 ported in the first of Black", Mr. Justice Field 
 continues, "does not conflict with these views. The 
 words of present grant in the first section of the 
 act, there under consideration, were restrained by 
 a provision in a subsequent section declaring that 
 the title should not vest in the Territory of Minne- 
 sota until the road or portions of it were built", 
 (p. 62) 
 
 Indeed, if it be necessary, we can vouch the 
 Government into court, as a warrantor of the grants 
 in question here, as falling under the rule and dis- 
 tinction of the Schulenberg case. 
 
 In the report of the Commissioner of the General 
 Land Office for 1906, at pages 21 and 22, the Ore- 
 gon and California Land Grant is dealt with. 
 
 "The grant of the Oregon and California Railroad 
 Company", says the Commissioner, "under the Act of 
 July 25, 1866, embraced 3,821,901.80 acres. The 
 
110 
 
 prescribed conditions of the grant not having been 
 met by the company, the time for performance was 
 extended by the Act of April 10, 1869. Although 
 the company failed to comply with the terms within 
 the time specified, it complied with them substan- 
 tially before a forfeiture, and title to all the lands 
 consequently vested in the company (see Schulen- 
 berg against Harriman, 21 Wall., 44), subject only 
 to the covenant expressed in the proviso of the Act 
 of 1869, which declares that the lands granted by 
 the act aforesaid shall be sold to actual settlers 
 only, in quantities not greater than one-quarter sec- 
 tion to one purchaser, and for a price not exceeding 
 $2.50 per acre". 
 
 And on March 19, 1907, the Commissioner of 
 the General Land Office, soon to become Secretary of 
 the Interior, wrote to Hon. W. C. Hawley, repre- 
 sentative in Congress, from Oregon, the following 
 letter : 
 
 "Department of the Interior. 
 "General Land Office, Washington, D. C. 
 
 "March 19, 1907. 
 "Honorable W. C. Hawley, House of Rep- 
 resentatives — 
 "Sir: In reply to your letter of the 7th inst. 
 addressed to the Secretary of the Interior, and 
 handed to me for attention, you are advised 
 that the Act of 1866 made a grant of lands 
 to the California and Oregon Railroad Com- 
 panies conditioned upon the performance of 
 certain acts by the company within a specified 
 
Ill 
 
 time. The prescribed conditions not having 
 been met by the company, the time of perfor- 
 mance was extended by the Act of 1869 and, 
 although the company failed to comply with 
 the terms of the grant before the time specified 
 they were subsequently complied with before 
 a forfeiture, and title to all the land within 
 the grant consequently vested in the company 
 (See Schulenberg v. Harriman, 21 Wall., 44), 
 subject only to the covenant expressed in the 
 proviso contained in the Act of 1869, which 
 declares that the lands granted by the Act 
 aforesaid shall be sold to actual settlers only, 
 in quantities not greater than one-quarter- 
 section to one purchaser, and for a price not 
 exceeding $2.50 per acre. As soon as the title 
 vested in the company, the jurisdiction over 
 the lands passed from the executive branch of 
 the Government, and the enforcement of the 
 provision rests with the courts, through appro- 
 priate action by either the settlers entitled to 
 purchase or by the government acting through 
 the Department of Justice." 
 
 The Commissioner goes on to say that in his 
 judgment the power of Congress to prescribe the 
 proviso cannot be questioned, and he puts it on the 
 ground that the proviso "was made in considera- 
 tion of the extension of time granted to the com- 
 pany." 
 
 "The company," he adds, "is therefore without 
 authority to sell the lands to any other person, in 
 
112 
 
 any other amount, or for a greater price than pre- 
 scribed in the proviso; and any conveyance which 
 the company has attempted to make on a sale made 
 in violation of the statute would not be sustained 
 by the courts. Since title passed from the Govern- 
 ment, subject only to the covenants created by the 
 proviso, it is doubtful if Congress has power to 
 enact any law to compel a compliance with the 
 terms of the provision, and the covenant can only 
 be enforced in the courts". 
 
 The joint resolution, authorizing the Attorney 
 General to bring the pending suit, was approved 
 April 30, 1908, (35 Stat, 571). The bill of com- 
 plaint in the pending suit was filed September 4, 
 1908. This makes the report of the Commissioner 
 of the General Land Office for 1906, and the Com- 
 missioner's letter of March 19, 1907, of special 
 interest. They were not declarations post litem 
 motam. 
 
 Reservation Clause in the Act of July 25, 1866. 
 
 The Act of May 4, 1870, making the west side 
 grant, has no reservation clause. Section 12 of 
 the Act of July 25, 1866 — the Act making the east 
 side grant — is as follows: 
 
 "And it be further enacted, that Congress 
 may, at any time, having due regard for the 
 rights of said California and Oregon Railroad 
 Companies add to, alter, amend, or repeal this 
 Act". 
 
113 
 
 These reservation clauses are familiar; they have 
 often been before the courts — many times before 
 this court. Nothing is better settled, than that the 
 power of the Legislature, under such a clause, is 
 not unlimited ; vested rights, already acquired under 
 the operation of the unaltered or unrepealed statute, 
 are beyond the power of the Legislature, are pro- 
 tected by the constitutional guaranty of due process 
 of law. Chief Justice Shaw blazed the way in 
 Commonwealth against Essex Company, 13 Gray, 
 239, 253: 
 
 "It seems to us", he says, "that this power must 
 have some limit, though it is difficult to define it. 
 Suppose an authority has been given by law to a 
 railroad corporation to purchase a lot of land, for 
 purposes connected with its business; and they pur- 
 chased such lot from a third party; could the 
 Legislature prohibit the company from holding it? 
 If so, in whom should it vest; or could the Legisla- 
 ture direct it to revest in the grantor or escheat to 
 the public; or how otherwise? * * * Perhaps from 
 these extreme cases — for extreme cases are allow- 
 able to test a legal principle — the rule to be ex- 
 tracted is this: that where, under power in a 
 charter, rights have been acquired and become 
 vested, no amendment or alteration of the charter 
 can take away the property or rights, which become 
 vested under a legitimate exercise of the powers 
 granted." 
 
114 
 
 This was taken as a postulate in the Sinking- 
 Fund cases, as well in the prevailing, as in the dis- 
 senting opinions. 
 
 "That this power", said Mr. Chief Justice Waite, 
 "has a limit, no one can doubt. All agree that it can- 
 not be used to take property already acquired, under 
 the operation of the charter, or to deprive the cor- 
 poration of the fruits actually reduced to possession 
 of contracts lawfully made". 
 
 The legislature exercising this reserved power, the 
 Chief Justice went on to say, "cannot undo what 
 has already been done, and it cannot unmake con- 
 tracts that have already been made". (99 U. S. 
 pp. 720-721). 
 
 Mr. Justice Strong, in dissenting, said: "All the 
 cases agree that such a reserved power is not with- 
 out limits. I think its limits may be stated gene- 
 rally thus: 
 
 "It must be exercised when exerted at all, 
 so as to do no injustice to those to whom the 
 franchise has been granted. Certainly the 
 reservation cannot mean a right to take away 
 the franchise, in whole or in part, and yet 
 hold the grantee to the performance of the 
 duties assumed — the consideration, given for 
 the grant", (p. 741) 
 
 He quotes the language of Mr. Chief Justice 
 Shaw, excerpted above, and turns to the opinion of 
 this court, in Miller against the State, 15 Wall. 478, 
 where it was said by Mr. Justice Clifford: 
 
115 
 
 "Power to legislate, founded upon such a 
 reservation in a charter of a private corpora- 
 tion, is certainly not without limitations, and 
 it may well be admitted that it cannot be exer- 
 cised to take away or destroy rights acquired by 
 such a charter, and which, by a legitimate use 
 of the powers granted, have become vested in 
 the corporation", (p. 742) 
 
 Mr. Justice Bradley, also dissenting, speaks of 
 the reservation clause: (p. 749) 
 
 "It certainly cannot be interpreted as reserv- 
 ing a right to violate a contract at will. No 
 Legislature ever reserved such a right in any 
 contract. Legislatures often reserve the right 
 to terminate a continuous contract at will; 
 but never to violate a contract, or to change 
 its terms without the consent of the other 
 party." 
 
 "The reserved power in question," he continues, "is 
 simply that of legislation — to alter, amend, or repeal 
 a charter. This is very different from the power to 
 violate or to alter the terms of a contract at will. A 
 reservation of power to violate a contract, or alter it, 
 or impair its obligation, would be repugnant to the 
 contract itself and void. A proviso repugnant to 
 the granting part of a deed, or to the enacting part 
 of a statute is void. Interpreted as a reservation 
 of the right to legislate, the reserved power is sus- 
 tainable on sound principles; but interpreted as the 
 reservation of a right to violate an executed con- 
 tract, it is not sustainable". 
 
116 
 
 And by Mr. Justice Field, in the same case, it was 
 said of the reserved power: 
 
 "It cannot be exerted to effect the contract 
 so far as it has been executed, or the rights 
 vested under it. When the road was completed 
 in the manner prescribed and accepted, the 
 company became entitled as of right to the 
 land and subsidy bonds stipulated. The title 
 to the land was perfect on the issue of the 
 patents; the title to the bonds vested on their 
 delivery. Any alteration of the acts, under 
 the reservation clauses or their repeal could 
 not revoke the title to the land or recall the 
 bonds, or change the right of the company to 
 either, (p. 757)" 
 
 In Stearns against Minnesota, 179 U. S. 223, 259, 
 it was held that the reserved right to amend a cor- 
 poration charter "does not confer mere arbitrary 
 power, and cannot be so exercised as to violate fun- 
 damental principles of justice, by taking of prop- 
 erty without due process of law". And it was said 
 of the guaranty of "due process", in Ochoa against 
 Hernandez, 230 U. S. 140, 161: 
 
 "Without the guaranty of 'due process*, the 
 right of private property cannot be said to 
 exist, in the sense in which it is known to our 
 laws. The principle, known to the common 
 law before the Magna Charta, was embodied 
 in that charter (Coke. 2. Inst., 45, 50) ; and 
 has been recognized since the Revolution as 
 among the safest foundations of our institutions. 
 
117 
 
 Whatever else may be uncertain about the defini- 
 tion of the term 'due process of law', all authori- 
 ties agree that it inhibits the taking of one man's 
 property and giving it to another, contrary to 
 settled usages and modes of procedure, and with- 
 out notice or an opportunity for a hearing". 
 
 "The courts have often held", it was said in Bien- 
 ville Water Supply Company against Mobile, 186 
 U. S., 212, 222, "that it was not within the power 
 of the Legislature, under the guise of an act amend- 
 ing or repealing a charter, to take away the 
 property of the corporation". (See also Chicago, 
 M. & St. P. RR. v. Wisconsin, 238 U. S., 491, 501-2) ; 
 Houston and Texas Central Railway v. Texas, 170 
 U. S., 243, 254-5; United States v. U. P. Ry., 160 
 U. S. 1, 32-3; Detroit v. Detroit P. R. Co., 43 Mich., 
 140, 146-148, opinion by Cooley, J. 
 
 It is to be said, with propriety, of the effect of 
 the Ferris Act, as Judge Cooley said of a Michi- 
 gan Statute, in the case last cited: 
 
 "A statute which could have this effect, 
 would not be a statute to amend franchises, 
 but a statute to confiscate property; it would 
 not be a statute of regulation but of spolia- 
 tion", 
 
 In the very recent case in this court of Long 
 Sault Development Company v. Call, opinion by 
 Mr. Justice Clarke, decided December 11, 1916, it 
 was said: 
 
118 
 
 "The grants of the Acts of 1907 are such 
 that, if it was a valid law, upon their being 
 accepted, they constituted property or contract 
 rights, of which the plaintiff could not be 
 deprived, and which could not be impaired, by 
 subsequent legislation; and, therefore, the 
 denial by the defendant in error of the juris- 
 diction of this court renders it necessary for us 
 to determine whether the Court of Appeals in 
 its decision, gave any effect to the repealing 
 act." 
 
 On looking into the opinion of the Court of 
 Appeals, for its consideration of the repealing act 
 in question, — an Act of the Legislature of New 
 York of 1913 — Mr. Justice Clarke finds, "not only 
 did it not give to it an effect which would impair 
 any contract relation springing from the Act of 
 1907, but * * on the contrary, it concluded that the 
 repeal 'could not operate to confiscate any valid 
 franchise or property right, which the Long Sault 
 Development Company had previously acquired 
 under the act repealed'". 
 
 The Question of Condemnation. 
 
 We can scarcely believe that the Ferris Act will 
 be defended, as a taking of property for public use 
 with just compensation. It was a taking of prop- 
 erty — this is clear enough — a down-right forfeiture, 
 but it was not a taking for a public use. It was 
 a resumption by the grantor of property that had 
 been contracted for, earned and conveyed; and the 
 
119 
 
 grantee, to whom the grant has been, as we have 
 shown, a source of expense and loss, is relegated to 
 a dwindling and vanishing expectancy, contingent 
 on the grantor's administration of the forfeited 
 grant for a period of ten years. Such is this ex- 
 traordinary statute. But we need not labor the point. 
 As this Court said, in Monongahela Navigation Co. v. 
 United States, 148 U. S., 312, 327: 
 
 "By this legislation, Congress seems to have 
 assumed the right to determine what shall be 
 the measure of compensation. But this is a 
 judicial and not a legislative question. The 
 Legislature may determine what private prop- 
 erty is needed for public purposes — that is a 
 question of a political and legislative character ; 
 but when the taking has been ordered, then the 
 question of compensation is judicial. It does 
 not rest with the public, taking the property, 
 through Congress or the Legislature, its repre- 
 sentative, to say what compensation shall be 
 paid, or even what shall be the rule of compen- 
 sation. The constitution has declared that a 
 just compensation shall be paid, and the ascer- 
 tainment of that is a judicial inquiry". 
 
 III. 
 
 COSTS WERE IMPROPERLY TAXED AGAINST 
 THESE APPELLANTS. 
 
 The great question in the case, upon which the 
 decision of the District Court in the first instance, 
 and afterwards of the Supreme Court, turned, 
 was the question of forfeiture — whether the settlers' 
 
120 
 
 clause was a condition subsequent or a covenant. 
 Upon that question these appellants prevailed. It 
 may be suggested that we put testimony into the 
 record, going to the questions of estoppel, assent and 
 waiver, as against the right of the government to urge 
 a violation on our part of the covenants, and it is true 
 that the case did not go off upon the question of 
 waiver or estoppel. But this same testimony, so put 
 by us into the record, had its bearing upon the point 
 on which the case was made to turn — that is to say, 
 the question whether the settlers' clause was a con- 
 dition subsequent, for it went to the question of 
 practical and contemporaneous exposition of the 
 statute — and more particularly of its exposition at 
 the hands of the executive Department, charged 
 with the administration of the law. It went to show 
 by such exposition that the settlers' clause had been 
 expounded and construed, in practice, as a covenant. 
 This was recognized in the opinion of the Supreme 
 Court, 238 U. S., at pages 424-5, where it is said: 
 
 "It is contended that if sales were made un- 
 der the limitations of the provisos the breaches 
 were acquiesced in, and for this the action and 
 knowledge of the officers of the government are 
 adduced — indeed the knowledge of Congress it- 
 self; and reciting what was done under the 
 grants, counsel say: 'It is a story of mortgages 
 and sales, executory contracts and conveyances, 
 and a stream of government patents flowing in 
 between. These things were known of all ; they 
 were matters of common knowledge, notoriety, 
 
121 
 
 of public record; the railroad knew them; the 
 people knew them, the government knew them.' 
 And cases are cited which, it is contended, es- 
 tablish that such circumstances might work an 
 estoppel even against the government, which, 
 when it appears in court, it is contended, is 
 bound like other suitors, and certainly establish 
 that for more than forty years in the view of 
 the executive officers the provisos were not con- 
 ditions subsequent. Granting their strength 
 in that regard, granting they have some 
 strength in every regard, they have not con- 
 trolling force, considering the provisos as 
 simple covenants. And they cannot be asserted 
 as an estoppel." 
 
 And if it be suggested, as it was suggested by the 
 District Judge, that the United States "was re- 
 quired to bring this suit in order to determine as to 
 the violations of this proviso, and the government 
 has prevailed in the end and the court has declared 
 that the railroad company has violated the provisos 
 — I think for that reason the government should re- 
 cover costs," the answer is not difficult. The gov- 
 ernment, in the first place never brought suit to de- 
 termine as to the violations of the proviso on its own 
 initiative. It was memorialized to do so, as we 
 pointed out, by the Legislature of Oregon : and that 
 memorial did not come into being until the year 
 1908, some forty years after the passage of the 
 granting act, and more than thirty years after the 
 administration of this grant, as it was administered 
 by the railroad company had become a "matter of 
 common knowledge, of notoriety, of public record." 
 
122 
 
 The transactions of the railroad company in respect 
 to the sales of these lands, as we have already 
 noticed, were communicated in a detailed and item- 
 ized way to the bureau of the Interior Department, 
 specially constituted to have such matters in charge, 
 the transactions were communicated by the bureau 
 to the Secretary of the Interior, by him to the Presi- 
 dent and by the President to Congress. It is, we 
 submit with deference, not equitable upon the 
 grounds suggested and in view of the long and 
 known history of the transactions, to tax costs 
 against the railroad company, after it has pre- 
 vailed in the substantive contention, upon a sugges- 
 tion that the government was required, by the fault 
 of the railroad company, to bring this suit "to de- 
 termine as to the violations of this proviso". The 
 temporary injunction, which the government now 
 seeks to import by this decree into the general 
 injunction against future violations of the coven- 
 ants, itself rested upon the very testimony which we 
 put into this record as to the non-settlement charac- 
 ter of the lands. The Supreme Court in its opinion, 
 as we have quoted it, sums up that testimony and 
 makes it the basis and explanation of the reference of 
 the subject matter to Congress. It is, we think, a most 
 unusual assessment of costs, under the circum- 
 stances of this case, to penalize these appellants, as 
 this decree does, with costs taxed at $6,249.02. 
 
 In the case of Northern Trust Company vs. Sny- 
 der, 77 Fed. 818, the court said: 
 
123 
 
 " Without undertaking to go further than the 
 case before us requires, we are of the opinion 
 that the appellant is entitled to the costs of this 
 appeal. The appellant has succeeded in re- 
 versing the decre in the most important part, 
 so far as the amount of money is concerned. 
 It is true the appeal was from the entire de- 
 cree, and that the appellant contested the right 
 of the appellee to the recovery of any amount. 
 We think, however, it would be a harsh rule 
 that would deprive an appellant of the statu- 
 tory costs of appeal unless success attended the 
 whole contention. Where the appeal has sub- 
 stantially prevailed we perceive no reason to 
 deny to appellant the statutory costs which 
 have been incurred in the successful attempt 
 to assert a right." 
 
 While this language was used of costs on an ap- 
 peal, it expresses the spirit and principle by which a 
 court should be moved, a court of equity especially, 
 in determining the assessment of costs. 
 
 In Street on Federal Equity Practice (Section 
 2022) it is said: 
 
 "Situations frequently arise where it is 
 deemed inequitable for all the costs to be im- 
 posed on either party exclusively, and where 
 this appears to be the case, the case may be 
 disposed of without adjudging costs in favor of 
 either, but leaving each to bear the costs of 
 his own side of the litigation". 
 
 Of course, we are not authorized to ask for costs 
 against the United States; but it must excite some 
 
124 
 
 special wonder that an application should have 
 been made here by the government for costs, in view 
 of the principal question at issue, on which the gov- 
 ernment argued and staked its case, and of the final 
 adjudication of that question in the Supreme Court 
 of the United States. It will excite some surprise 
 that the government, defeated in its contention, 
 should come to the court of first instance, and ask 
 that these appellants be penalized in costs because 
 they prevailed on the turning point of the case. 
 
 It is now respectfully submitted that the decree 
 of the District Court, herein appealed from, is not 
 in accordance with the opinion of the Supreme 
 Court, and that it should be reversed, with direc- 
 tions to enter a decree, pursuant to the mandate of 
 the Supreme Court of the United States, and with- 
 out costs on the appellants; and such a decree, it is 
 respectfully submitted, is the decree which the ap- 
 pellants proposed to the District Court and which is 
 set forth in the transcript of this record. 
 
 It is further respectfully submitted that the in- 
 validity of the Ferris Act should be pronounced. 
 
 Wm. F. Herrin, 
 P. F. Dunne, 
 Wm. D. Fenton, 
 Solicitors for Defendants and Appellants, 
 Oregon and California Railroad Com- 
 pany, Southern Pacific Company, and 
 Stephen T. Gage, Individually and as 
 Trustee. 
 
 Frank C. Cleary, 
 
 Of Counsel. 
 
125 
 
 APPENDIX A. 
 
 Decree on Mandate of United States 
 Supreme Court. 
 
 In the District Court of the United States for the 
 District of Oregon. 
 
 No. 3340. 
 DECREE. 
 
 The United States of America, 
 
 Complainant, 
 vs. 
 Oregon & California Railroad Company, 
 et al, 
 
 Defendants, 
 John L. Snyder, et al, 
 
 Defendants and Cross-Complainants, 
 William F. Slaughter, et al, 
 
 Interveners. 
 In pursuance of the mandate of the Supreme 
 Court of the United States filed in this court on the 
 8th day of December, 1915, in the above entitled 
 cause, counsel for the respective parties being pres- 
 ent, it is by the Court ordered, adjudged and de- 
 creed as follows : 
 
 1. That the decree heretofore entered in said 
 cause so far as it affects the defendants, Oregon & 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as 
 trustee, Union Trust Company, individually and as 
 trustee, hereinafter called "the defendants," be, and 
 the same is hereby set aside and held for naught, 
 but is adhered to in all respects as to the defendants 
 and cross-complainants, hereinafter called the 
 "cross-complainants," and the interveners. 
 
126 
 
 2. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined 
 from selling the lands or any part thereof granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 
 10, 1869, or by the Act of Congress approved May 
 4, 1870, whether the said lands be situated within 
 the place or indemnity limits of the grants thereby 
 made, to any person not an actual settler on the 
 land sold to him, or in quantities greater than one- 
 quarter section to one purchaser, or for a price ex- 
 ceeding $2.50 per acre ; and from selling any of the 
 timber on said lands, or any mineral or other de- 
 posits therein, except as a part of and in conjunc- 
 tion with the land on which the timber stands or in 
 which the mineral or other deposits are found; and 
 from cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon; or from 
 removing or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land bearing the timber or containing the 
 mineral or other deposits. 
 
 3. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined 
 from making or agreeing to make, either directly or 
 indirectly, any disposition whatsoever of said lands 
 or of any part thereof, or of the timber thereon or 
 any part thereof, or of any mineral or other deposits 
 therein ; from cutting, removing, or authorizing the 
 cutting or removal of the timber thereon or any part 
 thereof; from removing or authorizing the removal 
 of mineral or other deposits therein; and from dis- 
 posing of, receiving or exerting any control over any 
 money which arose, or may hereafter arise, from 
 
127 
 
 said lands, either through sales thereof or of timber 
 thereon, or through condemnation proceedings or 
 otherwise, and now on deposit, or which may here- 
 after be placed on deposit, with any bank, clerk of 
 court, or other institution or person, to await the 
 final decision of the Supreme Court of the United 
 States in this case, until Congress shall have a 
 reasonable opportunity to make provision by legis- 
 lation for the disposition of said lands, timber, 
 money, mineral, or other deposits, in accordance 
 with such policy as Congress may deem fitting, un- 
 der the circumstances, and at the same time secure 
 to the defendants all the value that the said grant- 
 ing acts conferred upon the grantees. 
 
 4. That if Congress does not make provision for 
 the disposition as aforesaid of said lands, money, 
 timber, mineral or other deposits, the defendants 
 may apply to the court within a reasonable time, 
 but not less than six months from the entry of this 
 decree, for a modification of so much of the in- 
 junction herein ordered as forbids any disposition 
 of the said lands, timber, money, mineral or other 
 deposits, or any part thereof, until Congress shall 
 act, and the court hereby reserves the right to mod- 
 ify this decree in that regard if, in its opinion, good 
 cause shall then exist for doing so. 
 
 5. That this decree shall apply not only to all said 
 grant lands unsold at the time this action was insti- 
 tuted, but also to all such grant lands sold prior to 
 the institution of the action which have since re- 
 verted or shall hereafter revert to the defendants 
 or any one of them. 
 
128 
 
 6. That this decree shall be without prejudice to 
 any other suits, rights or remedies which the gov- 
 ernment may have by law or under the Joint Reso- 
 lution of Congress passed April 30, 1908, or under 
 the Act of Congress passed August 20, 1912, against 
 the defendants or any of them. 
 
 7. That the complainant have and recover from 
 the defendants, Oregon & California Railroad Com- 
 pany, Southern Pacific Company, Stephen T. Gage, 
 individually and as trustee, and Union Trust Com- 
 pany individually and as trustee, and each of them, 
 its lawful costs and disbursements herein, taxed at 
 $6,249.02, and that execution issue therefor. 
 
 Done in open court this 9th day of December, 
 1915. 
 
 BY THE COURT. 
 Chas. E. Wolverton, Judge. 
 
129 
 APPENDIX B. 
 
 ( Title of Court and Cause, as contained in fore- 
 going Decree, Appendix A.) 
 
 In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this Court on 
 the — — day of December, 1915, in the above en- 
 titled cause, counsel for the respective parties being 
 present, it is by the Court ordered, adjudged and 
 decreed, as follows: 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants Oregon 
 and California Railroad Company, Southern Pa- 
 cific Company, Stephen T. Gage, individually and 
 as trustee, Union Trust Company, individually and 
 as trustee, hereinafter called the "defendants," be, 
 and the same is, hereby set aside, and held for 
 naught, but adhered to in all respects as to the de- 
 fendants and cross-complainants, hereinafter called 
 the "cross-complainants," and the "interveners." 
 
 2. That the said defendants and their respective 
 officers and agents be and each is hereby enjoined 
 from selling the lands, or any part thereof, granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 
 10, 1869, or by the Act of Congress approved 
 May 4, 1870, whether the said lands be situated 
 within the place or indemnity limits of the grants 
 thereby made, to any person not an actual settler, 
 or in quantities greater than one-quarter section 
 to one purchaser, or for a price exceeding two dol- 
 lars and a half ($2.50) per acre. 
 
130 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby enjoined 
 from any disposition of said lands, or any part 
 thereof, or of the timber thereon, and from cutting, 
 or authorizing the cutting, or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands, in accordance with such 
 policy as it may deem fitting under the circum- 
 stances, and at the same time secure to the de- 
 fendants, all the value the granting acts conferred 
 upon the grantees; but if Congress does not make 
 such provision, the defendants may apply to this 
 Court, within a reasonable time, not less than six 
 (6) months from the entry of the decree herein, 
 for a modification of so much of the injunction 
 herein ordered as enjoins any disposition of the 
 lands and timber until Congress shall act. 
 
 Done in open court this day of , 1915. 
 
 BY THE COURT, 
 
 Judge." 
 
131 
 
 APPENDIX C. 
 
 THE FERRIS ACT. 
 
 [Public — No. 86 — 64th Congress.] 
 [H. R. 14864.] 
 
 An Act To alter and amend an Act entitled "An 
 Act granting lands to aid in the construction of a 
 railroad and telegraph line from the Central Pacific 
 Railroad, in California, to Portland, in Oregon," 
 approved July twenty-fifth, eighteen hundred and 
 sixty-six, as amended by the Acts of eighteen hun- 
 dred and sixty-eight and eighteen hundred and 
 sixty-nine, and to alter and amend an Act entitled 
 "An Act granting lands to aid in the construction 
 of a railroad and telegraph line from Portland to 
 Astoria and McMinnville, in the State of Oregon," 
 approved May fourth, eighteen hundred and seventy, 
 and for other purposes. 
 
 Whereas by the Acts of Congress approved April 
 tenth, eighteen hundred and sixty-nine (Four- 
 teenth Statutes at Large, page two hundred and 
 thirty-nine), and May fourth, eighteen hundred 
 and seventy (Sixteenth Statutes at Large, page 
 ninety-four), it was provided that the lands 
 granted to aid in the construction of certain rail- 
 roads from Portland, in the State of Oregon, to 
 the northern boundary of the State of California, 
 and from Portland to Astoria and McMinnville, 
 in the State of Oregon, should be sold to actual 
 settlers only, in quantities not exceeding one 
 hundred and sixty acres to each person and at 
 prices not greater than $2.50 per acre; and 
 Whereas the Oregon and California Railroad Com- 
 pany, beneficiary of said acts, has violated the 
 terms under which the said lands were granted by 
 
132 
 
 selling certain of said lands to persons other than 
 actual settlers, by selling in quantities of more 
 than one-quarter section to each person, by sell- 
 ing at prices in excess of $2.50 per acre, and 
 by refusing to sell any further portions of such 
 lands to actual settlers at any price, and in so 
 doing has willfully violated the terms of the 
 statutes by which the said lands were granted; 
 and 
 
 Whereas in the suit instituted by the Attorney 
 General of the United States, pursuant to the 
 authority and direction contained in the joint 
 resolution of April thirtieth, nineteen hundred 
 and eight (Thirty-fifth Statutes at Large, page 
 five hundred and seventy-one), the Supreme 
 Court of the United States, in its decision ren- 
 dered June twenty-first, nineteen hundred and 
 fifteen (Two hundred and thirty-eighth United 
 States, page three hundred and ninety-three), 
 ordered that the Oregon and California Railroad 
 Company be enjoined from making further sales 
 of lands in violation of the law, and that the said 
 railroad company be further enjoined from mak- 
 ing any sales whatever of either the land or the 
 timber thereon until Congress should have a rea- 
 sonable opportunity to provide for the disposi- 
 tion of said lands in accordance with such policy 
 as Congress might deem fitting under the cir- 
 cumstances and at the same time secure to the 
 railroad company all the value conferred by the 
 granting Acts; and 
 
 Whereas it was expressly provided by section twelve 
 of the Act of July twenty-fifth, eighteen hundred 
 
133 
 
 and sixty-six (Fourteenth Statutes at Large, 
 page two hundred and thirty-nine), that Con- 
 gress might at any time, having due regard for 
 the rights of the grantee railroad company, add 
 to, alter, amend, or repeal the Act making the 
 grant ; and 
 Whereas the Oregon and California Railroad Com- 
 pany and its predecessors in interest received a 
 large sum of money from sales of said land for 
 prices in excess of $2.50 per acre, and from 
 leases, interest on contracts, and so forth; and 
 Whereas the aforesaid granting Acts conferred 
 upon the said railroad company the right to re- 
 ceive not more than $2.50 per acre for each acre 
 of land so granted: Therefore 
 Be it enacted by the Senate and House of Repre- 
 sentatives of the United States of America in Con- 
 gress assembled, That the title to so much of the 
 lands granted by the Act of July twenty-fifth, 
 eighteen hundred and sixty-six, entitled "An Act 
 granting lands to aid in the construction of a rail- 
 road and telegraph line from the Central Pacific 
 Railroad in California to Portland, in Oregon," as 
 amended by the Acts of eighteen hundred and sixty- 
 eight and eighteen hundred and sixty-nine, for 
 which patents have been issued by the United States, 
 or for which the grantee is entitled to receive 
 patents under said grant, and to so much of the 
 lands granted by the Act of May fourth, eighteen 
 hundred and seventy, entitled "An Act granting 
 lands to aid in the construction of a railroad and 
 telegraph line from Portland to Astoria and Mc- 
 Minnville, in the State of Oregon," for which 
 
134 
 
 patents have been issued by the United States, or 
 for which the grantee is entitled to receive patents 
 under said grant, as had not been sold by the Ore- 
 gon and California Railroad Company prior to July 
 first, nineteen hundred and thirteen, be, and the 
 same is hereby, revested in the United States: 
 Provided, That the provisions of this Act shall not 
 apply to the right of way to the extent of one hun- 
 dred feet in width on each side of the railroad and 
 all lands in actual use by said railroad company on 
 December ninth, nineteen hundred and fifteen, for 
 depots, sidetracks, wood yards, and standing 
 grounds. 
 
 Sec. 2. That the Secretary of the Interior, in 
 cooperation with the Secretary of Agriculture, or 
 otherwise, is hereby authorized and directed, after 
 due examination in the field, to classify said lands 
 by the smallest legal subdivisions thereof into three 
 classes, as follows: 
 
 Class one. Power-site lands, which shall include 
 only such lands as are chiefly valuable for water- 
 power sites, which lands shall be subject to with- 
 drawal and such use and disposition as has been or 
 may be provided by law for other public lands of 
 like character. 
 
 Class two. Timberlands, which shall include 
 lands bearing a growth of timber not less than three 
 hundred thousand feet board measure on each forty- 
 acre subdivision. 
 
 Class three. Agricultural lands, which shall in- 
 clude all lands not falling within either of the two 
 other classes: 
 
 Provided, That any of said lands, however classi- 
 fied, may be reclassified, if, because of a change of 
 
135 
 
 conditions or other reasons, such action is required 
 to denote properly the true character and class of 
 such lands: Provided further, That all the general 
 laws of the United States now existing or hereafter 
 enacted relating to the granting of rights of way- 
 over or permits for the use of public lands shall be 
 applicable to all lands title to which is revested in 
 the United States under the provisions of this Act. 
 All lands disposed of under the provisions of this 
 Act shall be subject to all rights of way which the 
 Secretary of the Interior shall at any time deem 
 necessary for the removal of the timber from any 
 lands of class two. 
 
 Sec. 3. That the classification provided for by 
 the preceding section shall not operate to exclude 
 from exploration, entry, and disposition, under the 
 mineral-land laws of the United States, any of said 
 lands, except power sites, which are chiefly valuable 
 for the mineral deposits contained therein, and the 
 general mineral laws are hereby extended to all of 
 said lands, except power sites: Provided, That any 
 person entering mineral lands of class two shall 
 not acquire title to the timber thereon, which shall 
 be sold as hereinafter provided in section four, but 
 he shall have the right to use so much of the timber 
 thereon as may be necessary in the development and 
 operation of his mine until such time as such timber 
 is sold by the United States. 
 
 Sec. 4. That nonmineral lands of class two shall 
 not be disposed of until the Secretary of the In- 
 terior has determined and announced that the mer- 
 chantable timber thereon has been removed, and 
 thereupon said lands shall fall into class three and 
 
136 
 
 be disposed of in the manner hereinafter provided 
 for the disposal of lands of that class. 
 
 The timber on lands of class two shall be sold 
 for cash by the Secretary of the Interior, in co- 
 operation with the Secretary of Agriculture, or 
 otherwise, to citizens of the United States, associa- 
 tions of such citizens, and corporations organized 
 under the laws of the United States, or any State, 
 Territory, or District thereof, at such times, in such 
 quantities, and under such plan of public competi- 
 tive bidding as in the judgment of the Secretary of 
 the Interior may produce the best results: Provided, 
 That said Secretary shall have the right to reject 
 any bid where he has reason to believe that the 
 price offered is inadequate, and may reoffer the 
 timber until a satisfactory bid is received : Provided 
 further, That upon application of a qualified pur- 
 chaser that any legal subdivision shall be separately 
 offered for sale such subdivision shall be separately 
 offered before being included in any offer of a 
 larger unit, if such application be filed within 
 ninety days prior to such offer: And provided fur- 
 ther, That said timber shall be sold as rapidly as 
 reasonable prices can be secured therefor in a 
 normal market. 
 
 The Secretary of the Interior shall as soon as the 
 purchase price is fully paid by any person purchas- 
 ing under the provisions of this section issue to such 
 purchaser a patent conveying the timber and ex- 
 pressly reserving the land to the United States. 
 The timber thus purchased may be cut and removed 
 by the purchaser, his heirs or assigns, within such 
 period as may be fixed by the Secretary of the In- 
 
137 
 
 terior, which period shall be designated in the 
 patent; all rights under said patent shall cease 
 and terminate at the expiration of said period: 
 Provided, That in the event the timber is removed 
 prior to the expiration of said period the Secretary 
 of the Interior shall make due announcement 
 thereof, whereupon all rights under the patent shall 
 cease. 
 
 No timber shall be removed until the issuance of 
 patent therefor. All timber sold under this Act 
 shall be subject to the taxing power of the States 
 apart from the land as soon as patents are issued 
 as provided for herein. 
 
 Sec. 5. That nonmineral lands of class three 
 shall be subject to entry under the general provi- 
 sions of the homestead laws of the United States, 
 except as modified herein, and opened to entry in 
 accordance with the provisions of the Act of 
 September thirtieth, nineteen hundred and thirteen 
 (Thirty-eighth Statutes at Large, page one hundred 
 and thirteen). Fifty cents per acre shall be paid 
 at the time the original entry is allowed and $2 per 
 acre when final proof is made. The provisions of 
 section twenty-three hundred and one, Revised 
 Statutes, shall not apply to any entry hereunder 
 and no patent shall issue until the entryman has 
 resided upon and cultivated the land for a period 
 of three years, proof of which shall be made at any 
 time within five years from date of entry. The area 
 cultivated shall be such as to satisfy the Secretary 
 of the Interior that the entry is made in good faith 
 for the purpose of settlement and not for specula- 
 tion : Provided, That the payment of $2.50 per acre 
 
138 
 
 shall not be required from homestead entrymen 
 upon lands of class two when the same shall become 
 subject to entry as agricultural lands in class three: 
 Provided further, That during the period fixed for 
 the submission of applications to make entry under 
 this section any person duly qualified to enter such 
 lands who has resided thereon to the same extent 
 and in the same manner as is required under 
 the homestead laws, since the first day of 
 December, nineteen hundred and thirteen, and who 
 has improved the land and devoted some portion 
 thereof to agricultural use, and who shall have 
 maintained his residence to the date of such appli- 
 cation, shall have the preferred right to enter the 
 quarter section upon which he was so residing 
 whether such lands shall be of class two or class 
 three and where such quarter section does not con- 
 tain more than one million two hundred thousand 
 feet board measure of timber, and where the quarter 
 section contains more than the said quantity of 
 timber such person may enter the forty-acre tract, 
 or lot or lots containing approximately forty acres, 
 upon which his improvements, or the greater part 
 thereof, are situated: Provided further, That a 
 prior exercise of the homestead right by any such 
 person shall not be a bar to the exercise of such 
 preference rights: And provided further, That all 
 of the following described lands which may become 
 revested in the United States by operation of 
 this Act, to-wit: Township one south, range five 
 east, sections twenty-three and thirty-five township 
 one south, range six east, sections three, five, seven, 
 nine, seventeen, nineteen, twenty-nine, thirty-one, 
 
139 
 
 and thirty-three; township two south, range five 
 east, sections one and three; township two south, 
 range six east, sections one, three, five, seven, nine, 
 and eleven; township two south, range seven east, 
 section seven; township three south, range three 
 east, section fifteen; township four south, range 
 four east, sections eleven and thirteen; township 
 four south, range five east, sections nineteen and 
 twenty-nine; and township twelve south, range 
 seven west, sections fifteen, twenty-one, twenty- 
 three, twenty-seven, thirty-three, and thirty-five, 
 Willamette meridian and base, State of Oregon, 
 shall be withheld from entry or other disposition 
 for a period of two years after the approval hereof. 
 
 Sec. 6. That persons who purchase timber on 
 lands of class two shall be required to pay a com- 
 mission of one-fifth of one per centum of the pur- 
 chase price paid, to be divided equally between the 
 register and receiver, within the maximum compen- 
 sation allowed them by law; and the register and 
 receiver shall receive no other compensation what- 
 ever for services rendered in connection with the 
 sales of timber under the provisions of section four 
 of this Act. 
 
 Sec. 7. That the Attorney General of the United 
 States be, and he is hereby, authorized and directed 
 to institute and prosecute any and all suits in equity 
 and actions at law against the Oregon and Cali- 
 fornia Railroad Company, and any other proper 
 party which he may deem appropriate, to have de- 
 termined the amount of moneys which have been re- 
 ceived by the said railroad company or its prede- 
 cessors from or on account of any of said granted 
 
140 
 
 lands, whether sold or unsold, patented or unpat- 
 ented, and which should be charged against it as a 
 part of the "full value" secured to the grantees 
 under said granting Acts as heretofore interpreted 
 by the Supreme Court. In making this determina- 
 tion the court shall take into consideration and give 
 due and proper legal effect to all receipts of money 
 from sales of land or timber, forfeited contracts, 
 rent, timber depredations, and interest on contracts, 
 or from any other source relating to said lands ; also 
 to the value of timber taken from said lands and 
 used by said grantees or their successor or succes- 
 sors. In making this determination in the afore- 
 mentioned suit or suits the court shall also determine 
 on the application of the Attorney General, the 
 amount of the taxes on said lands paid by the 
 United States, as provided in this Act, and which 
 should in law have been paid by the said Oregon and 
 California Railroad Company, and the amount thus 
 determined shall be treated as money received by 
 said railroad company. 
 
 Sec. 8. That the title to all money arising out of 
 said grant lands and now on deposit to await the 
 final outcome of said suit commenced by the United 
 States in pursuance of said joint resolution of nine- 
 teen hundred and eight is hereby vested in the 
 United States, and the United States is subrogated 
 to all the rights and remedies of the obligee or 
 obligees, and especially of Louis L. Sharp as com- 
 missioner, under any contract for the purchase of 
 timber on the grant lands. 
 
 Sec. 9. That the taxes accrued and now unpaid 
 on the lands revested in the United States, whether 
 
141 
 
 situate in the State of Oregon or State of Washing- 
 ton, shall be paid by the Treasurer of the United 
 States, upon the order of the Secretary of the In- 
 terior, as soon as may be after the approval of this 
 Act, and a sum sufficient to make such payment is 
 hereby appropriated, out of any money in the Treas- 
 ury not otherwise appropriated. 
 
 Sec. 10. That all moneys received from or on 
 account of said lands and timber under the pro- 
 visions of this Act shall be deposited in the Treas- 
 ury of the United States in a special fund, to be 
 designated "The Oregon and California land-grant 
 fund," which fund shall be disposed of in the follow- 
 ing manner : The Secretary of the Interior shall as- 
 certain as soon as may be the exact number of acres 
 of said lands, sold or unsold, patented to the Oregon 
 and California Railroad Company, or its predeces- 
 sors, and the number of acres of unpatented lands 
 which said railroad company is entitled to receive 
 under the terms of said grants and the value of said 
 lands at $2.50 per acre. From the sum thus ascer- 
 tained he shall deduct the amount already received 
 by the said railroad company and its predecessors in 
 interest on account of said lands and which should 
 be charged against it as determined under section 
 seven of this Act; and a sum equal to the balance 
 thus resulting shall be paid, as herein provided, to 
 the said railroad company, its successors or assigns, 
 and to those having liens on the land, as their re- 
 spective interests may appear. The amount due 
 lien holders shall be evidenced either by the consent, 
 in writing, of the railroad company or by a judg- 
 ment of a court of competent jurisdiction in a suit 
 
142 
 
 to which the railroad company and the lien holders 
 are parties. Payments shall be made from time to 
 time, as the fund accumulates, by the Treasurer of 
 the United States upon the order of the Secretary of 
 the Interior: Provided, however, That if, upon the 
 expiration of ten years from the approval of this 
 Act, the proceeds derived from the sale of lands and 
 timber are not sufficient to pay the full amount 
 which the said railroad company, its successors or 
 assigns, are entitled to receive, the balance due shall 
 be paid from the general funds in the Treasury of 
 the United States, and an appropriation shall be 
 made therefor. After the said railroad company, 
 its successors or assigns, and the lien holders shall 
 have been paid the amount to which they are en- 
 titled, as provided herein, an amount equal to that 
 paid for accumulated taxes, as provided in section 
 nine hereof, shall be deposited in the Treasury to 
 the credit of the United States, thereafter all other 
 moneys received from the sales of land and timber 
 shall be distributed as follows: 
 
 A separate account shall be kept in the General 
 Land Office of the sales of land and timber within 
 each county in which any of said lands are situated, 
 and, after deducting from the amount of the pro- 
 ceeds arising from such sales in each county a sum 
 equal to that applied to pay the accrued taxes in 
 that county and a sum equal to $2.50 per acre for 
 each acre of such land therein title to which is re- 
 vested in the United States under this Act, twenty- 
 five per centum of the remainder shall be paid to 
 the State treasurer of the State in which the land is 
 located, to be and become a part of the irreducible 
 
143 
 
 school fund of the State; twenty-five per centum 
 shall be paid to the treasurer of the county for com- 
 mon schools, roads, highways, bridges, and port dis- 
 tricts, to be apportioned by the county courts for the 
 several purposes above named; forty per centum 
 shall be paid into, reserved, and appropriated as a 
 part of the fund created by the Act of Congress ap- 
 proved June sevententh, nineteen hundred and two, 
 known as the reclamation Act ; ten per centum shall 
 become a part of the general fund in the Treasury 
 of the United States ; and of the balance remaining 
 in said Oregon and California land grant fund from 
 whatsoever source derived twenty-five per centum 
 shall be paid to the State treasurer of the State in 
 which the land is located, to be and become a part of 
 the irreducible school fund of the State ; twenty-five 
 per centum shall be paid to the treasurer of the 
 county for common schools, roads, highways, 
 bridges, and port districts, to be apportioned by the 
 county courts for the several purposes above named ; 
 and the remainder shall become a part of the gen- 
 eral fund in the Treasury of the United States. The 
 payments herein authorized shall be made to the 
 treasurers of the States and counties, respectively, 
 by the Treasurer of the United States, upon the 
 order of the Secretary of the Interior, as soon as 
 may be after the close of each fiscal year during 
 which the moneys were received: Provided, That 
 none of the payments to the States and counties 
 and to the reclamation fund in this section provided 
 for shall be made until the amount due the Oregon 
 and California Railroad Company, its successors or 
 assigns, has been fully paid, and the Treasury re- 
 
144 
 
 imbursed for all taxes paid pursuant to the pro- 
 visions of section nine of this Act. 
 
 Sec. 11. That the Secretary of the Interior is 
 hereby authorized to perform any and all acts and 
 to make such rules and regulations as may be neces- 
 sary and proper for the purpose of carrying the 
 provisions of this Act into full force and effect ; and 
 any person, applicant, purchaser, entryman, or wit- 
 ness who shall swear falsely in any affidavit or pro- 
 ceeding required hereunder or under the regula- 
 tions issued by the Secretary of the Interior shall 
 be guilty of perjury and liable to the penalties pre- 
 scribed therefor. 
 
 Sec. 12. That the sum of $100,000 be, and the 
 same is hereby, appropriated, out of any moneys in 
 the Treasury not otherwise appropriated, to enable 
 the Secretary of the Interior, in cooperation with 
 the Secretary of Agriculture, or otherwise, to com- 
 plete the classification of the lands as herein pro- 
 vided, which amount shall be immediately available 
 and shall remain available until such classification 
 shall have been completed. 
 
 Approved, June 9, 1916. 
 
No. 4=92. 
 
 Jn the £tap«mt tymat of tfo itniM £tete& 
 
 October Term, 1916. 
 
 Oregon & California Railroad Company etal., 
 appellants, 
 
 V. 
 
 The United States. 
 
 ON A CERTIFICATE FROM AND CERTIORARI TO THE UNITED 
 STATES CIRCUIT COURT OF APPEALS FOR THE NINTH 
 CIRCUIT. 
 
 BEIEF FOE THE UNITED STATES. 
 
 WASHINGTON : GOVERNMENT PRINTING OFFICE : 1017 
 
INDEX. 
 
 POINTS DISCUSSED. 
 
 Page. 
 
 STATEMENT., 1 
 
 ARGUMENT 6-51 
 
 I. The decree of the lower court is in exact har- 
 mony with the mandate 6-23 
 
 A. Section 1 is valid 6 
 
 B. Section 2 is valid 7-16 
 
 1. An actual settler is one who has estab- 
 
 lished an habitation on the land pur- 
 chased 7 
 
 2. The word "lands" has the same mean- 
 
 ing in the restrictive provisos as it has 
 in the granting clauses of the granting 
 acts 7 
 
 3. "Land" ordinarily comprehends not 
 
 only the surface, but also the timber 
 growing on it and minerals beneath 
 it 9 
 
 4. To exclude by construction the timber 
 
 and minerals from the operation of 
 the restrictive conditions would defeat 
 the latter 10 
 
 5. According to the decision of this court 
 
 the timber and minerals are a part of 
 
 the lands 12 
 
 6. This court having decided that the re- 
 
 strictive provisos relate to the timber 
 and minerals as well as the surface, 
 
 the question is res judicata 15 
 
 C. Section 3 is valid 16 
 
 D. Section 4 is valid 17 
 
 E. Section 5 is valid 18 
 
 F. Section 6 is valid 19 
 
 (i) 
 
n 
 
 AEGUMENT— Continued. Page. 
 
 G. Why the lower court deemed it necessary to 
 
 specifically mention timber and minerals 
 
 and to prohibit their disposition except as 
 
 a part of and in conjunction with the area 
 
 containing them 19 
 
 H. When the trial court assessed costs against 
 the defendants it was acting within its 
 
 power under the mandate 20 
 
 II. The Chamberlain -Ferris Act is a proper ex- 
 ercise of power by Congress 23-48 
 
 A. Congress had power to revest the title 23-31 
 
 1. Power reserved in the Act of 1866 25 
 
 2. Power of eminent domain 27 
 
 3. Equity always has power to grant ade- 
 
 quate relief _ 28 
 
 B. Appellants have no cause for complaint 
 
 against the act 31 
 
 C. The Chamberlain-Ferris Act secures to the 
 
 appellants "all the value" conferred by 
 
 the granting acts upon the railroads 32-48 
 
 1. Certain rights claimed by appellants. _ _ 40 
 
 2. Cases cited by appellants 43 
 
 3. The Union Trust Company 45 
 
 4. " Uncompensated services " 47 
 
 HI. The court has power to determine the 
 
 validity of the Chamberlain- Ferris Act in 
 connection with this appeal 48-51 
 
 CASES CITED. 
 
 B. 
 
 Beard v. Knox, 5 Cal. 252 24 
 
 Brewster v. Lanyon Zinc Co., 140 Fed. 801 29 
 
 C. 
 
 Cherokee Nation v. Kansas Railway Co. 135 U. S. 641 . 28 
 Clark Distilling Co. v. Western, etc. Ry. Co. (Decided 
 
 Jany. 7, 1917) 49 
 
 Cromwell v. County of Sac, 4 Otto 351 __ 16, 19 
 
Ill 
 
 ^' Page. 
 
 Dowellv. Applegate, 152 U. S. 327 r ... 15,19 
 
 F. 
 Fletcher v. Peck, 6 Cranch 87 43, 45 
 
 G. 
 
 Green Bay <& M. Canal Co. v. TelulaJi Paper Co., 140 
 
 Wis. 417 10 
 
 H. 
 
 Higgins Fuel & Oil Co. et al. v. Snow et al., 113 Fed. 
 
 433 9 
 
 Hill v. Sumner, 132 U. S. 118 24 
 
 I. 
 
 In re Potts, 166 U. S. 263 50 
 
 In re Sanford Fori & Tool Co., 160 U. S. 247 16 
 
 K. 
 
 King v. Ackerman, 2 Black 408 24 
 
 Kinsley v. Holbrook, 45 N. H. 313 10 
 
 M. 
 
 McCulloch v. Maryland, 4 Wheat. 315 24 
 
 Missouri, K. cfc T. Trust Co. v. Krumseig, 172 U. S. 
 351 29 
 
 N. 
 
 Nesbit v. Riverside Independent District, 144 U. S. 610. 15, 19 
 Northern Pacific R. Co. v. Slaght, 205 U. S. 122 15, 19 
 
 O. 
 
 Oregon & California R. R. Co. v. United States, 238 U. 
 
 S. 393. 7,10,11,12,17,18,19,23,27,29,30,31,41,42,46 
 
 P. 
 
 Payne v. Hook, 7 Wall. 425... 29 
 
 Pearre & Co. v. Hawkins, 62 Tex. 434 24 
 
 Phelps v. Harris, 101 U. S. 370. 24 
 
 Philadelphia Trust, etc., Co. v. Merchantville, 74 
 
 N. J. Eq. 330 10 
 
IV 
 
 S. 
 
 Page. 
 
 Sage v. Central Railroad Co., 9 Otto 334 29 
 
 Schulenberg v. Harriman, 21 Wall. 44 43 
 
 Sharon v. Tucker, 144 U. S. 533 28 
 
 Sinking Fund Cases, 99 U. S. 700 26 
 
 Southern Oregon Co. v. United States, C. C. A.-9, Feb. 
 
 13*1917 13,14 
 
 State v. Jones, 143 la. 398 10 
 
 Sweet y. Rechel, 159 U. S. 380 28 
 
 T. 
 Tyler Min. Co. v. Sweeney, 79 Fed. 277 21 
 
 U. 
 
 United States v. Gettysburg Electric Railway, 160 
 
 U.S. 668 ---- 27 
 
 United States v. Gratiot, 14 Pet. 526 24 
 
 United States v. Jones, 109 U. S. 513 26 
 
 United States v. Mormon Church, 150 U. S. 145 49 
 
 V. 
 
 Virginia- Carolina Chemical Co. v. Kirven, 215 U. S. 
 252 16, 19 
 
 W. 
 
 Williams, lessee, v. Veatch, 17 Ohio 171 24 
 
 Woodbridge v. Jones, 103 Mass. 549 24 
 
 TEXTBOOKS CITED. 
 
 Bispham's Principles of Equity, sec. 7 28 
 
 2 Bl. Comm. 16-18. 10 
 
 CokeLitt. 4a 10 
 
 1 Pom. Eq. Jur., sec. 170 28 
 
 1 Washburn, Keal Property, p. 3 9 
 
 STATUTES CITED. 
 
 14 Stat. 239 7,8,25,41 
 
 15 Stat., 340 13 
 
 16 Stat. 47 7,8,41 
 
 16 Stat. 94 '. 7,8,41 
 
 Act of June 9, 1916 (Chamberlain Ferris Act), 39 Stat. 
 
 218 23-51, passim 
 
October Term, 1916. 
 
 Oregon & California Railroad Com- 
 pany et al., appellants, 
 v. 
 The United States. 
 
 No. 492. 
 
 ON A CERTIFICATE FROM AND CERTIORARI TO THE UNITED 
 STATES CIRCUIT COURT OF APPEALS FOR THE NINTH 
 CIRCUIT. 
 
 BRIEF FOR THE UNITED STATES. 
 
 STATEMENT. 
 
 This court reversed the above entitled case and 
 sent it back to the lower court with instructions to 
 enter a decree in accordance with the court's opinion, 
 which was embodied in the mandate. It also by 
 necessary implication referred to Congress the dis- 
 position within stated limits of the land involved. 
 For the purpose of this statement the pertinent parts 
 of the opinion are: 
 
 This, then, being the situation resulting from 
 conditions now existing, incident, it may be, 
 to the prolonged disregard of the covenants 
 (i) 
 
by the railroad company, the lands invite now 
 more to speculation than to settlement, and 
 we think, therefore, that the railroad com- 
 pany should not only be enjoined from sales 
 in violation of the covenants, but enjoined 
 from any disposition of them whatever or of 
 the timber thereon, and from cutting or 
 authorizing the cutting or removal of any of 
 the timber thereon, until Congress shall have 
 a reasonable opportunity to provide by legis- 
 lation for their disposition in accordance with 
 such policy as it may deem fitting under the 
 circumstances and at the same time secure 
 to the defendants all the value the granting 
 acts conferred upon the railroads. 
 
 If Congress does not make such provision 
 the defendants may apply to the District 
 Court within a reasonable time, not less than 
 six months, from the entry of the decree herein, 
 for a modification of so much of the injunction 
 herein ordered as enjoins any disposition of 
 the lands and timber until Congress shall act, 
 and the court in its discretion may modify the 
 decree accordingly. 
 
 Decree reversed and cause remanded to the 
 District Court for further proceedings in ac- 
 cordance with this opinion. (238 U. S. pp. 
 438-439.) 
 
 The decree entered by the trial court and the one 
 proposed by the defendants are given below in paral- 
 lel columns. What appears in the one but not in the 
 other is italicized; thus is marked the difference be- 
 tween the two. 
 
(Decree of the Court, title, attestation 
 clause, and name of judge, omitted.) 
 
 In pursuance of the mandate of 
 the Supreme Court of the United 
 States, filed in this court on the 8th 
 day of December, 1915, in the above 
 entitled cause, counsel for the re- 
 spective parties being present, it is 
 by the Court ordered, adjudged and 
 decreed, as follows: 
 
 1. That the decree heretofore en- 
 tered in said cause, so far as it affects 
 the defendants Oregon and California 
 Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, indi- 
 vidually and as trustee, Union Trust 
 Company, individually and as trus- 
 tee, hereinafter called "the defend- 
 ants," be, and the same is hereby 
 set aside, and held for naught, but is 
 adhered to in all repects as to the 
 defendants and cross-complainants, 
 hereinafter called the "cross-com- 
 plainants," and the interveners. 
 
 2. That the defendants and their 
 respective officers and agents be, 
 and each is hereby, enjoined from 
 selling the lands or any part thereof 
 granted either by the Act of Congress 
 approved July 25, 1866, as amended 
 by the Act of Congress of April 10, 
 1869, or by the Act of Congress ap- 
 proved May 4, 1870, whether the 
 said lands be situated within the 
 place or indemnity limits of the 
 grants thereby made, to any person 
 not an actual settler on the land sold 
 to him, or in quantities greater than 
 one-quarter section to one purchaser, 
 or for a price exceeding $2.50 per 
 acre: and from selling any of the 
 timber on said lands, or any mineral 
 or other deposits therein, except as a 
 part of and in conjunction aith the 
 land on which the timber stands or in 
 which the mineral or other deposits are 
 found; and from cutting or removing 
 or authorizing the cutting or removal of 
 
 83047—17 2 
 
 (Decree requested by appellants, title 
 and attestation clause omitted.) 
 
 In pursuance of the mandate of the 
 Supreme Court of the United States, 
 
 filed in this court on the day of 
 
 December, 1915, in the above en- 
 titled cause, counsel for the respect- 
 ive parties being present, it is by the 
 Court ordered, adjudged and de- 
 creed, as follows: 
 
 1. That the decree heretofore en- 
 tered in said cause, so far as it affects 
 the defendants Oregon and Cali- 
 fornia Railroad Company, Southern 
 Pacific Company, Stephen T. Gage, 
 individually and as trustee, Union 
 Trust Company, individually and as 
 trustee, hereinafter called the "de- 
 fendants," be, and the same is hereby 
 set aside, and held for naught, but 
 adhered to in all respects as to the 
 defendants, and cross-complainants, 
 hereinafter called the "cross-com- 
 plainants," and the "interveners." 
 
 2. That the said defendants and 
 their respective officers and agents 
 be and each is hereby enjoined from 
 selling the lands, or any part thereof, 
 granted either by the Act of Congress 
 approved July 25, 1866, as amended 
 by the Act of Congress of April 10, 
 1869, or by the Act of Congress ap- 
 proved May 4, 1870, whether the 
 said lands be situated within the 
 place or indemnity limits of the 
 grants thereby made, to any person 
 not an actual settler, or in quantities 
 greater than one-quarter section to 
 one purchaser, or for a price exceed- 
 ing two dollars and a half ($2.50) per 
 acre. 
 
any of the timber thereon; or from 
 removing or authorizing the removal 
 of mineral or other deposits therein, 
 except in connection with the sale of the 
 land bearing the timber or containing 
 the mineral or other deposits. 
 
 3. That the defendants and their 
 respective officers and agents be, and 
 each is hereby, enjoined from making 
 or agreeing to make, either directly or 
 indirectly, any disposition whatso- 
 ever of said lands or of any part there- 
 of, or of the timber thereon or any 
 part thereof, or of any mineral or other 
 deposits therein; from cutting, remov- 
 ing, or authorizing the cutting or 
 removal of the timber thereon or any 
 part thereof ; from removing or author- 
 izing the removal of mineral or other 
 deposits therein; and from disposing of, 
 receiving or exerting any control over 
 any money which arose, or may here- 
 after arise, from said lands, either 
 through sales thereof or of timber 
 thereon, or through condemnation pro- 
 ceedings or otherwise, and now on de- 
 posit, or which may hereafter be placed 
 on deposit, with any bank, clerk of 
 of court, or other institution or person, 
 to await the final decision of the Su- 
 preme Court of the United States in 
 this case, until Congress shall have a 
 reasonable opportunity to make pro- 
 vision by legislation for the disposi- 
 tion of said lands, timber, money, 
 mineral or other deposits, in accord- 
 ance with such policy as Congress 
 may deem fitting, under the circum- 
 stances, and at the same time secure 
 to the defendant all the value that the 
 said granting acts conferred upon the 
 grantees. 
 
 4. That if Congress does not make 
 provision for the disposition as afore- 
 said of said lands, money, timber, 
 mineral or other deposits, the defend- 
 ants may apply to the Court within 
 
 3. That the said defendants and 
 their respective officers and agents 
 be, and each is hereby enjoined from 
 any disposition of the said lands, or 
 any part thereof, or of the timber 
 thereon, and from cutting, or author- 
 izing the cutting, or removal of any 
 of the timber thereon, until Congress 
 shall have a reasonable opportunity 
 to provide by legislation for the dis- 
 position of said lands, in accordance 
 with such policy as it may deem fit- 
 ting under the circumstances, and at 
 the same time secure to the defend- 
 ants, all the value the granting acts 
 conferred upon the grantees; 
 
 but if Congress does not make such 
 provision, the defendants may ap- 
 ply to this Court, within a reason- 
 able time, not less than six (6) 
 months from the entry of the decree 
 
a reasonable time, but not less than herein, for a modification of so much 
 
 six months from the entry of this of the injunction herein ordered as 
 
 decree, for a modification of so much enjoins any disposition of the lands 
 
 of the injunction herein ordered as and timber until Congress shall act. 
 
 forbids any disposition of the said 
 
 lands, timber, money, mineral or 
 
 other deposits, or any part thereof, 
 
 until Congress shall act, and the Court 
 
 hereby reserves the right to modify this 
 
 decree in that regard if, in its opinion, 
 
 good cause shall then exist for doing so. 
 
 5. That this decree shall apply not 
 only to all said grant lands unsold at 
 the time this action was instituted, 
 but also to all such grant lands sold 
 prior to the institution of the action 
 which have since reverted or shall here- 
 after revert to the defendants or any 
 one of them. 
 
 6. That this decree shall be without 
 prejudice to any other suits, rights, or 
 remedies which the Government may 
 have by law or under the Joint Reso- 
 lution of Congress passed April 30, 
 1908, or under the Act of Congress 
 passed August 30, 1912, against the 
 defendants or any of them. 
 
 7. That the complainant have and 
 recover from the defendants, Oregon 
 and California Railroad Company, 
 Southern Pacific Company, Stephen 
 T. Gage, individually and as trustee, 
 and Union Trust Company, individ- 
 ually and as trustee, and each of them, 
 its lauful costs and disbursements 
 herein, taxed at $6,249.02, and that 
 execution issue therefor. 
 
 Assignments of error were filed by the defendants 
 in which they complained of the decree generally, 
 although it contains much that was requested by 
 them. Many of the assignments relate to questions 
 that had been decided by this court adversely to 
 the defendants. In due time defendants appealed to 
 the Circuit Court of Appeals, which certified cer- 
 
6 
 
 tain questions to this court. Afterwards, upon the 
 application of the Government, the appellants con- 
 senting, this court ordered up the entire case for 
 final disposition. 
 
 Congress, pursuing what it believed to be its duty 
 under the opinion of reversal, passed the act approved 
 June 9, 1916 (Chamberlain-Ferris Act, 39 Stat. 218, 
 ch. 137), for the purpose of providing for the disposition 
 of the land involved in the action "and at the same 
 time secure[ing] to the defendants all the value the 
 granting acts conferred upon the railroads" (238 U. S. 
 439). 
 
 Two general questions are presented for decision. 
 
 First, is the decree of the lower court in harmony 
 with the mandate, and, 
 
 Second, is the Chamberlain-Ferris Act a proper 
 exercise of power by Congress? 
 
 ARGUMENT. 
 
 THE DECREE OF THE LOWER COURT IS IN EXACT HAR- 
 MONY WITH THE MANDATE. 
 
 A. SECTION 1 IS VALID. 
 
 The first paragraph of the decree differs from the 
 corresponding paragraph of the one proposed by the 
 defendants only in the use of the italicized word "is," 
 but the meaning of both is the same. 
 
B. SECTION 2 IS VALID. 
 
 (1) AN ACTUAL SETTLER IS ONE WHO HAS ESTABLISHED AN HABITA- 
 
 TION ON THE LAND PURCHASED. 
 
 In paragraph two of the decree the italicized words 
 "on the lands sold him" are objected to. Clearly the 
 actual settler referred to in the restrictive provisos of 
 the granting acts (16 Stat. 47, 94) declaring that the 
 lands shall be sold only "to actual settlers" is an 
 actual settler on the identical land sold, not on some 
 other lands. Any other interpretation is utterly 
 untenable. The trial judge said that "There could 
 be no actual settler until an actual habitation was 
 established upon some specific parcel of this land," 
 and this court approved his view. (238 U. S. 434.) 
 
 (2) THE WORD "LANDS" HAS THE SAME MEANING IN THE RESTRICTIVE 
 PROVISOS AS IT HAS IN THE GRANTING CLAUSES OF THE GRANT- 
 ING ACTS. 
 
 The next objection to the same paragraph is 
 predicated upon the conception that the word " land" 
 or " lands," as employed in the granting acts (14 
 Stat, 239; 16 Stat. 47; 16 Stat. 94) and the opinion 
 of this court interpreting them (238 U. S. 393) does 
 not comprehend within its meaning timber growing 
 on the lands or minerals therein. In other words, 
 that the provisos in the granting acts forbidding the 
 sale of the "lands" except "to actual settlers only, 
 in quantities not greater than one-quarter section to 
 one purchaser, and for a price not exceeding two 
 dollars and fifty cents per acre" (16 Stat. 47), apply 
 to the surface alone, and that appellants are free to 
 sell the timber and mineral apart from the surface 
 
8 
 
 for any price they choose and to any person in any 
 quantity they may select, irrespective of whether 
 the purchaser is an actual settler or not. 
 
 This position is revealed in the 15th assignment of 
 errors, as well as in other places, where it is stated, 
 "the court erred in not holding * * * that the 
 railroad company * * * had the right to sell, 
 cut, remove, or authorize the cutting or removal of 
 the timber thereon, and the court erred similarly in 
 not so holding * * * with reference to any min- 
 eral or other deposits in or products out of said lands" 
 (Record this appeal, p. 32). The same contention 
 is given much importance in their briefs. 
 
 Is it correct 1 ? The granting clause of the act of 
 1866 says, " That there be, and hereby is, granted to 
 the said companies * * * every alternate sec- 
 tion of public land." (Sec. 2.) In the restrictive 
 proviso of the act of 1869, which is amendatory of 
 the act of 1866, we read, " that the lands granted by 
 the act aforesaid (meaning the act of 1866) shall be 
 sold to actual settlers," etc. Section 1 of the act of 
 1870 conveys "each alternate section of the public 
 lands," while in section 4 it is said "That the said 
 alternate sections of land granted by this act [with 
 some exceptions immaterial here] shall be sold by 
 the company only to actual settlers." (14 and 16 
 Stat, supra, 7.) [Italics ours.] 
 
 Obviously the word is used in exactly the same 
 sense in the provisos as in the granting clauses. This 
 being so, unless it is broad enough in the former to 
 embrace the minerals and timber, it was not broad 
 enough in the latter to convey to appellants title 
 
to the timber or minerals. Consequently they must 
 either concede that the word " lands" in the provisos 
 embraces the timber and minerals or else that they 
 have no title to them. If they have no title, they 
 have of course no ground for complaint as to the 
 disposition made of them in the decree. 
 
 Appellants' position as we apprehend it is that if A 
 is granted a piece of land under the condition that he 
 shall sell it at a price not to exceed $2.50 an acre, 
 he can separate its elements into three parts, the 
 timber, the minerals, and the surface, and sell the 
 timber for as much as he can get, the minerals for as 
 high a price as he can obtain, and the surface for a 
 price not to exceed $2.50 per acre, and thus comply 
 with his contract. In other words, that he satisfies 
 his obligation by observing the restriction as to one 
 part of the property and disregarding as to two other 
 parts. This will not do. {Infra p. 40.) 
 
 (3) "LAND" ORDINARILY COMPREHENDS NOT ONLY THE SURFACE, BUT 
 ALSO THE TIMBER GROWING ON IT AND MINERALS BENEATH IT. 
 
 Washburn says : 
 
 Land is always regarded as real property, 
 and, ordinarily, whatever is erected or growing 
 upon it, as well as whatever is contained within 
 it or beneath its surface, such as minerals and 
 the like, upon the principle that cujus est solum, 
 ejus est usque ad caelum in one direction, and 
 usque ad Orcum in the other (vol. 1, p. 3). 
 
 In Higgins Oil & Fuel Co. et al. v. Snow et al. 
 (113 Fed. 433, Circuit Court of Appeals for the Fifth 
 Circuit) it was contended that a life tenant of land 
 was not entitled to any interest in the oil produced 
 
10 
 
 therefrom, "her estate being limited to the surface." 
 Answering this, the court said : 
 
 The life estate is given, not in surface of the 
 land, but in the land as land, and it is elemen- 
 tary that the land itself in legal contemplation 
 extends from the sky to the depths (p. 438). 
 
 "Land" includes earth, waters, and every natural 
 condition, including minerals and growing trees. 
 (Coke Litt. 4a; 2 Bl. Comm. 16-18; Philadelphia 
 Trust, etc. Co. v. Merchantville, 74 N. J. Eq. 330; 
 State v. Jones, 143 la. 398; Green Bay & M. Canal 
 Co. v. Telulah Paper Co., 140 Wis. 417; Kinsley v. 
 Holbrook, 45 N. H. 313.) 
 
 The restrictive provisos therefore apply with equal 
 force to the timber and minerals as to the surface 
 of the ground. 
 
 (4) TO EXCLUDE BY CONSTRUCTION THE TIMBER AND MINERALS FROM 
 THE OPERATION OF THE RESTRICTIVE CONDITIONS WOULD DEFEAT 
 THE LATTER. 
 
 That Congress intended the lands should be sold 
 to actual settlers only in quantities not to exceed 160 
 acres to one person and for a price not exceeding 
 $2.50 per acre, is definitely settled by the decision 
 of this court. We take the following excerpts from 
 its opinion: 
 
 "The sales are to be made only to certain persons 
 and not exceeding a specified maximum in quantities 
 and prices." The language of the provisos "certainly 
 imposes an obligation not to violate the limitations 
 and prohibitions when sales were made" (238 U. S. 
 421). "But neither the provisos nor the other parts 
 of the granting acts make a distinction between the 
 
11 
 
 lands, and we are unable to do so. The language of 
 the grants and of the limitations upon them is 
 general. We can not attach exceptions to it. The 
 evil of an attempt is manifest. The grants must be 
 taken as they were given. Assent to them was 
 required and made, and we can not import a different 
 measure of the requirement and the assent than 
 the language of the act expresses. It is to be re- 
 membered that the acts are laws as well as grants 
 and must be given the exactness of laws." (Id. 422.) 
 "We agree with the Government that the company 
 <* * * might sell for any price not exceeding 
 $2.50 an acre.'" (Id. 434.) " Judgment is inde- 
 pendent of them. It is determined by the simple 
 words of the acts of Congress, not only regarded as 
 grants but as laws and accepted as both; granting 
 rights but imposing obligations — rights quite definite, 
 obligations as much so." (Id. 435.) "We can only 
 enforce the provisos as written, not relieve from 
 them." (Id. 436.) [Italics ours.] 
 
 Undoubtedly the provisions just quoted make 
 it very clear that according to this court's opinion 
 the maximum amount which Congress intended the 
 railroad to receive out of the grants is $2.50 per 
 acre. In no place is there warrant for any other 
 conclusion. "The sales are to be made * * * 
 not exceeding a specified maximum in quantities 
 and prices," "we can not attach exceptions to it" 
 (the language of the proviso), the company can sell 
 for any price "not exceeding $2.50 an acre," embody 
 thoughts iterated and reiterated throughout thf> 
 
 83047—17 3 
 
12 
 
 opinion. If, however, the position of the de- 
 fendants that the timber and minerals may be 
 sold by the railroad company apart from the lands 
 and without any regard to the restrictive provisos 
 be correct, the railroad would receive a great deal 
 more than $2.50 per acre as the following discloses: 
 The record on the former hearing shows a stipu- 
 lation by the parties that the value of the 2,300,000 
 acres involved in this suit " exceeds the sum of 
 $30,000,000." (Statement case for Govt, former 
 hearing, p. 83.) That number of acres at $2.50 
 an acre would amount to $5,750,000, leaving a 
 balance of $24,250,000. Assuming that this balance 
 represents the value of the timber and minerals, 
 and it is not far from it, the railroad company would 
 receive upon their theory $24,250,000 in addition 
 to $2.50 an acre. No ingenuity can torture from 
 the grants as construed by this court any warrant 
 for a result so extraordinary. 
 
 (5) ACCORDING TO THE DECISION OF THIS COURT THE TIMBER AND 
 MINERALS ARE A PART OF THE LANDS. 
 
 In the opinion this court said : 
 
 The lands invite now more to speculation 
 than to settlement, and we think, therefore, that 
 the railroad company should not only be enjoin- 
 ed from sales in violation of the covenants, but 
 enjoined from any disposition of them what- 
 ever or of the timber thereon and from cutting 
 or authorizing the cutting or removal of any 
 of the timber thereon, etc. (238 U. S., 438). 
 [Italics ours.] 
 
13 
 
 This means that the timber is subject to the re- 
 strictive provisos. If not, why forbid its disposi- 
 tion? There is no authority for doing so unless the 
 provisos are applicable. Yet the word " timber" 
 does not occur in either of them. The prohibition, 
 then, must rest on the theory that the term "land" 
 is to be taken in its usual sense, and since the re- 
 strictions relate to it, they must of necessity bear 
 on all its component parts, including timber and min- 
 erals. 
 
 A similar view of this court's opinion was taken by 
 the United States Circuit Court of Appeals for the 
 Ninth Circuit in Southern Oregon Company v. United 
 States, decided February 13, 1917, but not yet pub- 
 lished. That case involved the construction of a 
 grant made March 3, 1869 (15 Stat. 340) to the State 
 of Oregon which provided among other things that 
 the lands "shall be sold to any one person only in 
 quantities not greater than one quarter section and 
 for a price not exceeding $2.50 per acre." The grant 
 was subsequently conveyed to the Coos Bay Wagon 
 Road Company subject to all the conditions embodied 
 in the granting act. This was in accordance with 
 section 2 of the act. The Wagon Road Company 
 disposed of the land in violation of the restrictive 
 proviso, the title passing through many grantees until 
 it found lodgment in the appellant, Southern Oregon 
 Company. Suit was brought by the Government 
 asking for similar relief to that for which it prayed in 
 this case. The decree of the lower court was, so far 
 
14 
 
 as applicable, in substantially the same terms as the 
 decree in this case. The court of appeals, consisting 
 of Gilbert, Ross, and Hunt, circuit judges, filed two 
 opinions, one by Judge Gilbert and a concurring 
 opinion by Judges Ross and Hunt. Both opinions 
 are based upon the decision of this court in the case 
 at bar, and unite in affirming the decree of the lower 
 court. In the concurring opinion it is recited that 
 the lower court refused a decree of forfeiture of the 
 land — 
 
 but enjoined the defendant, its officers and 
 agents, from selling or making any disposition 
 thereof, or of the timber, materials, or other 
 deposits thereon or therein "until Congress 
 shall have a reasonable opportunity to make 
 provision by legislation for the disposition of 
 said lands, timber, mineral, or other deposits 
 in accordance with such policy as Congress 
 may deem fitting under the circumstances, 
 and at the same time secure to the defendant 
 all the value that the granting act conferred 
 upon the state of Oregon or the Wagon Road 
 Company," with a provision to the effect that 
 should Congress fail to act in the premises 
 within a stated period the defendant might 
 apply to the court for a modification of the 
 decree, the court reserving jurisdiction for 
 that purpose. The main basis of the court's 
 ruling, as appears from its opinion, was the 
 decision of the Supreme Court in the case of 
 Oregon & California R. R. v. United States, 
 238 U. S. 393. A careful examination of the 
 opinion in that case satisfied us that its doc- 
 trine, applied to the facts of the present case, 
 
15 
 
 authorized and required the decree that was 
 entered by the court below, which was per- 
 missible under the prayer for general relief. 
 (Italics ours.) 
 
 (6) THIS COURT HAVING DECIDED THAT THE RESTRICTIVE PROVISOS 
 RELATE TO THE TIMBER AND MINERALS AS WELL AS THE SURFACE, 
 THE QUESTION IS RES JUDICATA. 
 
 Assuming, without conceding, that the applicability 
 of the covenants to the timber and minerals was not 
 presented by defendants on the former hearing, may 
 they do so now? 
 
 In Nesbit v. Riverside Independent District, 144 U. S. 
 610, it was said that (618) : 
 
 When the second suit is upon the same cause 
 of action, and between the same parties as the 
 first, the judgment in the former is conclusive 
 in the latter as to every question which was or 
 might have been presented and determined in 
 the first action. 
 
 In Dowell v. Applegate, 152 U. S. 327, speaking of 
 the effect of a former decree, it was said (343) : 
 
 And that decree, never having been modified 
 by the court that rendered it nor by this court 
 upon appeal, necessarily concludes every matter 
 that Daniel W. Applegate was entitled, under 
 the pleadings, to bring forward in order to pre- 
 vent the sale of the lands claimed by him, by 
 whatever title. 
 
 In Northern Pacific R. Co. v. Slaght, 205 U. S. 122, 
 130-131, we read: 
 
 The general rule of the extent of the bar is 
 not only what was pleaded or litigated, but 
 what could have been pleaded or litigated 
 (Italics in each case ours.) 
 
16 
 
 (To the same effect are Cromwell v. County of Sac, 4 
 Otto 351, and Virginia- Carolina Chemical Co. v. 
 Kirven, 215 U. S. 252.) 
 
 The case when here before turned chiefly on the 
 meaning of the restrictive covenants. Union Trust 
 Company sought to limit them "to lands susceptible 
 of cultivation," and to exclude from their scope 
 "timberlands" (its brief, p. 103); while the rail- 
 road company and Gage urged that because (as they 
 alleged) the lands were unfit for settlement the cove- 
 nants did not apply (their brief point 21, p. IV). 
 There were, of course, other contentions touching the 
 same subject. But the foregoing is sufficient to 
 illustrate the point we make, which is that since the 
 scope of the covenants was properly under discussion 
 at that time, if defendants failed to advance all that 
 might have been said on the subject, they can not 
 supplement their argument now. The matter is 
 irrevocably decided. {In re Sanford Fork & Tool Co., 
 160 U. S. 247, 255.) 
 
 C. SECTION 3 IS VALID. 
 
 The objection to this section, so far as it forbids 
 the removal of mineral, is unsound for the same 
 reason, as a like objection to a similar prohibition in 
 section two, just considered. 
 
 The only difference between the section proposed 
 by defendants and this section, except some imma- 
 terial verbal ones, consists of the circumstance that, 
 in addition to restraining the disposition of the lands, 
 it forbids the withdrawal of certain moneys on deposit 
 
17 
 
 in Portland banks. This money was derived from 
 the land after the first decree had been entered, and 
 by direction of the trial court was placed on deposit 
 to await the final outcome of the suit. A large part 
 of it represents the proceeds of a sale of timber 
 ordered by the court and takes the place of the 
 timber. It is subject, we say, to the same disposi- 
 tion by Congress as the timber would be if the latter 
 had not been removed. 
 
 D. SECTION 4 IS VALID. 
 
 The last 11 lines of section 3 of the decree pro- 
 posed by the defendants does not differ materially 
 from section 4 of the decree entered by the court, 
 save that the latter recognizes the right of Con- 
 gress to dispose of the money, timber, minerals, 
 or other deposits, and reserves to the court the 
 right to modify for good cause the temporary in- 
 junction granted. We have sufficiently discussed 
 the power of the court to restrain the disposition 
 of the timber and minerals as well as the other part 
 of the lands. The part reserving to the court the 
 power to modify the temporary injunction for 
 good cause is in clear accord with the opinion, 
 but what was proposed by the defendants is 
 not. The opinion says: "And the court in its dis- 
 cretion may modify the decree accordingly." (238 
 U. S., 439.) The decree provides: "The court 
 reserves the right to modify the decree if in its 
 opinion good cause shall then exist for doing so." 
 There is no substantial difference between the 
 opinion and the decree. 
 
18 
 
 E. SECTION 5 IS VALID. 
 
 Clearly the purpose of the opinion was to au- 
 thorize and require the application of both the per- 
 manent and temporary injunctions provided for to 
 all the unsold lands. It says the defendants shall 
 "be enjoined from sales in violation of the cove- 
 nants" (238 U. $., 438). No warrant anywhere 
 for the thought that the railroad company could in 
 the future legally violate the covenants with respect 
 to any of the grant lands whether they were in- 
 cluded in the suit or not. The relief sought and 
 granted are permanent as to all such land. 
 
 The only part of the grants excluded from the 
 suit was that which the railroad company had sold 
 (238 U. S., pp. 436-437), and all lands covered by 
 executory contracts of sale were treated as sold. 
 (Statement, case for Govt., former hearing, p. 28.) 
 It was the purpose of the bill to reach all lands in 
 which third parties had or claimed no interest by 
 way of contract with the railroad company. The 
 bill was so construed by the lower court and all the 
 parties, for the first decree includes, as this one 
 does, all lands which had reverted at the date of the 
 decree or which might thereafter revert to the com- 
 pany. (Old Record VIII, p. 1301, sec. 3, sub. d.) 
 To this no objection was made in any of the briefs 
 or oral arguments. Even if reverted lands are not 
 covered, no prejudice can result to defendants, be- 
 cause the judgment in this suit as to the meaning 
 of the covenants would be binding on them in any 
 suit hereafter brought by the Government to affect 
 
19 
 
 those lands. The subject and the parties would be 
 the same, and defendants would not be heard to say 
 in such a suit that this judgment is wrong in any 
 respect. (Cromwell v. Sac County, supra; Nesbit v. 
 Riverside Independent District, supra; Dowell v. Ap- 
 plegate, supra; Northern Pacific R.Co.v. Slaght, supra; 
 Virginia- Carolina Chemical Co. v. Kirven, supra.) 
 
 F. SECTION 6 IS VALID. 
 
 This provision is authorized by that part of the 
 opinion which says, in effect, that the decree shall 
 be without prejudice to any other suits which the 
 Government may have with respect to the granted 
 lands (Id., 437). 
 
 G. WHY THE LOWER COURT DEEMED IT NECESSARY TO SPE- 
 CIFICALLY MENTION TIMBER AND MINERALS AND TO 
 PROHIBIT THEIR DISPOSITION EXCEPT AS A PART OF AND 
 IN CONJUNCTION WITH THE AREA CONTAINING THEM. 
 
 The railroad companies and Gage, after the opinion 
 had been handed down, but before the decree of the 
 lower court was entered, served upon the Government 
 a paper entitled a " Petition * * * for modifica- 
 tion of opinion rendered." In this they argued that 
 under the grants they were " authorized to remove 
 stone from the lands and use it to build a railroad 
 bridge or a station house, or * * * farm a patch 
 of arable area and turn the farm products into money " 
 and then said: 
 
 If all this be true there is no reason apparent 
 to us upon the face and terms of the statute 
 why the right of the grantee in a like way to 
 
 83047—17 — -4 
 
20 
 
 make use of the timber upon the lands should 
 be differentiated (p. 8) : 
 
 Again : 
 
 But the removal of the timber upon this land 
 would not go in defeat of the settlement policy 
 of the act, but would be directly in aid of such 
 policy (p. 9). 
 
 The Government believed that the defendants, 
 holding these views, might attempt to remove the 
 timber from the lands without regard to the restric- 
 tive clauses even after Congress had acted. If they 
 did, the Government undoubtedly would feel con- 
 strained to commence proceedings to enjoin them. 
 To save the necessity of this, as well as the costs and 
 delays attendant upon it, the Government asked the 
 lower court to make the decree so specific that there 
 could be no doubt in the minds of the defendants or 
 anybody else concerning its meaning. 
 
 H. WHEN THE TRIAL COURT ASSESSED COSTS AGAINST THE 
 DEFENDANTS IT WAS ACTING WITHIN ITS POWER UNDER 
 THE MANDATE. 
 
 The mandate directs a general reversal of the lower 
 court's decree. This put the case where it was be- 
 fore the decree had been entered. Thereupon the 
 lower court, in obedience to the mandate, entered a 
 new decree in favor of the complainant and against 
 the defendants upon the record as it had been made. 
 
 Suppose the trial court in the first instance, instead 
 of entering a decree declaring a forfeiture, had entered 
 such a decree as the mandate required, would there 
 be any doubt about the complainant's right to costs'? 
 
21 
 
 Surely not. It had prevailed, and the prevailing 
 party is always entitled to recover his costs unless 
 there be some special reason appealing to the sound 
 discretion of the court for not allowing them. 
 
 In Tyler Min. Co. v. Sweeney, 79 Fed. 277, the 
 court said (281) : 
 
 In equity cases and in other cases where 
 there are no statutory provisions or rules of 
 practice, the award of costs, as well as the 
 taxation thereof, rests in the sound discretion 
 of the trial court, and will not be reviewed 
 in the appellate court, except in cases of a 
 manifest abuse of such discretion. 
 
 This discretion, of course, is judicial, not arbitrary. 
 Is there any reason in this case why the appellants 
 should not be compelled to pay the complainant its 
 costs? The illegal action of the defendants forced 
 the complainant to go into court for relief. It plead 
 the granting acts — the law — and showed that they 
 had been violated by the defendants. This the latter 
 denied. In consequence of the denial much testi- 
 mony was taken. The court found that the granting 
 acts had been violated, that the railroad company 
 was guilty of a " prolonged disregard of the cov- 
 enants." Where, then, is there any equitable cause 
 for relieving the lawbreaker from the consequence of 
 its acts? 
 
 Appellants place themselves on the proposition 
 that this court did not order them to pay costs. 
 Neither did it make any order with respect to them. 
 Yet it was necessary for the lower court to pass some 
 
22 
 
 order relative to the payment of the costs. A vast 
 amount of testimony had been taken before a 
 stenographer — examiner — appointed by the court. 
 His fees had to be paid. Equity rule 50 provides 
 that such fees shall be taxed "ultimately as costs;" 
 but to which party ? That of course is for the court. 
 Without some order with respect to the costs the 
 record would be incomplete. Therefore we say that 
 when this court directed the lower court to enter a 
 decree in accordance with the opinion it impliedly 
 directed that the court award costs in accordance 
 with the usual rules of equity. Hence the court was 
 within its rights in directing that the losing parties 
 should pay the costs. 
 
 Were the defendants the losing parties'? It is 
 true the Government was defeated in its conten- 
 tion that the restrictive provisos constituted con- 
 ditions subsequent, but so were the defendants 
 defeated in their position that these provisos 
 were only " unenforceable covenants" (238 U. S., 
 412). That the Government was successful in the 
 main is made evident by these facts: The value 
 of the land "exceeds thirty millions," according 
 to our stipulation. The Government claimed alL 
 So did the railroad companies. By the judgment 
 of the court the railroad is entitled to a maximum 
 of $2.50 per acre only, or $5,750,000 for the 2,300,- 
 000 acres involved. Deduct this sum from the 
 total value of thirty millions and there results 
 a remainder of $24,250,000 which, by the judg- 
 ment of the court, goes to the Government. To 
 
23 
 
 that extent the Government was successful, and 
 hence, as we have just observed, is entitled to its 
 costs. 
 
 II. 
 
 THE CHAMBERLAIN-FERRIS ACT IS A PROPER EXERCISE 
 OF POWER BY CONGRESS. 
 
 A. CONGRESS HAD POWER TO REVEST THE TITLE. 
 
 In the opinion and mandate the court directed 
 that the defendants be — 
 
 enjoined from any disposition of them (the 
 lands) whatever or of the timber thereon 
 and from cutting or authorizing the cutting 
 or removal of any of the timber thereon, 
 until Congress shall have a reasonable oppor- 
 tunity to provide by legislation for their dis- 
 position in accordance with such policy as it 
 may deem fitting under the circumstances 
 and at the same time secure to the defendants 
 all the value the granting acts conferred 
 upon the railroads." (238 U. S. supra, 438- 
 439.) [Italics ours.] 
 
 Congress understood this to mean that in the 
 judgment of the court it had power to dispose of 
 the lands in question in any way that it might see 
 fit, subject only to the one condition, namely, that 
 it secure to the defendants "all the value that the 
 granting acts conferred upon the railroads." 
 
 To be sure, the court did not say specifically that 
 Congress had power to make disposition of the lands, 
 but this is necessarily implied in what it did say. 
 The court's action is open to no other meaning. 
 Surely the court did not refer to Congress the disposi- 
 
24 
 
 Hon of the lands without holding at the same time 
 
 that Congress had the power to make the disposition. 
 Webster's Dictionary says that "to dispose of" 
 
 means "to part with; to relinquish; to get rid of; as, 
 
 to dispose of a house." 
 
 In Phelps v. Harris, 101 U. S. 370, 380-381, we 
 
 read: 
 
 The expression "to dispose of" is very 
 broad, and signifies more than "to sell." Sell- 
 ing is but one mode of disposing of property. 
 * * * Taking the words in their ordinary 
 sense, a general power to dispose of land or 
 real estate and to take in return therefor such 
 proceeds as one thinks best will include the 
 power of disposing of them in exchange for 
 other lands. It would be a disposal of the 
 lands parted with, and the lands received 
 would be the proceeds. 
 
 (See also Hill v. Sumner, 132 U. S. 118; United 
 States v. Gratiot, 14 Pet. 526; King v. Ackerman, 2 
 Black 408; Woodbridge v. Jones, 103 Mass. 549; Beard 
 v. Knox, 5 Cal. 252; Williams, lessee, v. Veatch, 17 
 Ohio 171; Pearre & Co. v. Hawkins, 62 Tex. 434.) 
 
 The power to dispose of the lands implies the 
 power to do all things necessary to the full exercise 
 of that power. (McCulloch v. Maryland, 4 Wheat. 
 315, 409.) This is axiomatic. 
 
 Therefore, Congress must have had the power to 
 revest title in the Government, for without the title 
 the Government could not make "disposition" of 
 the lands. 
 
25 
 
 An additional reason for this is found in the fact 
 that what is to be secured to the railroad company 
 under the opinion is the "value" — not the rights — 
 conferred by the grants. In other words, Congress 
 had authority according to the opinion to take the 
 rights and pay their "value." Congress so inter- 
 preted the court's opinion, and in consequence passed 
 the Ferris Act. 
 
 It is not, of course, for us to attempt to defend the 
 decision of this court to the effect that Congress had 
 power to revest the title. To do so would be an im- 
 pertinence. Besides, it needs no defense. It is the 
 law of the case and binding irrevocably upon all — the 
 Government and appellants alike. 
 
 1. POWER RESERVED IN THE ACT OF 1866. 
 
 But if defense were necessary it is at hand. The 
 act of 1866 reserved to Congress the power to amend 
 it at any time "having due regard for the rights" of 
 the railroad companies. (Sec. 12.) 
 
 This is sufficient authority for the passage of the 
 Chamberlain-Ferris Act so far as it affects the lands 
 granted by the act of 1866, and most of those here 
 involved — all but 53,000 of the 2,300,000 acres— were 
 granted by that act. Congress had that power in 
 mind when it passed the Chamberlain-Ferris Act. 
 (Preamble to act, 39 Stat., par. 4, p. 218.) 
 
 Appellants take issue with this proposition and say 
 that the power reserved was not broad enough to 
 warrant a revestment of the title. In support of this 
 position several authorities are brought forward; 
 
26 
 
 none of them sustain it. Take, for instance, the 
 opinion in the Sinking Fund Cases (99 U. S. 700). 
 The court, speaking of such a reservation as we have 
 here, said (720) : 
 
 Congress not only retains, but has given 
 special notice of its intention to retain, full and 
 complete power to make such alterations and 
 amendments of the charter as come within 
 the just scope of legislative power. 
 
 And quotes with approval from other decisions of this 
 court the following : 
 
 It may safely be affirmed that the reserved 
 power may be exercised, and to almost any 
 extent, to carry into effect the original pur- 
 poses of the grant; or to secure the due 
 administration of its affairs, so as to protect the 
 rights of stockholders and of creditors, and 
 for the proper disposition of its assets. 
 
 Again, the power to amend may be exercised to 
 
 protect the rights of the public and of the 
 corporators, or to promote the due adminis- 
 tration of the affairs of the corporation. 
 
 But (721) 
 
 the alterations must be reasonable ; they must 
 be made in good faith, and be consistent with 
 the object and scope of the act of incorpora- 
 tion. Sheer oppression and wrong can not be 
 inflicted under the guise of amendment or 
 alteration. (Italics ours.) 
 
 The power has been used in this case "to carry 
 into effect the original purposes of the grant" and 
 "to protect the rights of the public." 
 
27 
 
 There is nothing to the contrary in the other 
 cases cited by appellants. Therefore, we pass them 
 without further notice. 
 
 2. POWER OF EMINENT DOMAIN. 
 
 The Chamberlain-Ferris Act may also be justified as 
 a legitimate exercise of the power of eminent domain 
 (L r . S. v. Jones, 109 U. S., 513, 518). In taking the 
 lands Congress was bent upon serving one of the public 
 purposes for which the grants were made, namely, 
 the settlement of the country (238 U. S. 417). The 
 railroad company had unlawfully refused for almost 
 40 years to advance that purpose, and in consequence 
 Congress recalled the title to the end that it might 
 achieve what the railroad company had refused to do. 
 
 In addition, the proceeds of the sales of the lands 
 are to go to purposes undoubtedly public — 25 per 
 cent for irreducible school fund; 25 per cent for com- 
 mon schools, roads, highways, bridges, and post dis- 
 tricts; 40 per cent for reclamation purposes, and 10 
 per cent for general fund of the Treasury (Chamber- 
 lain-Ferris Act, 39 Stat., sec. 10, p. 222). 
 
 This court has decided (United States v. Gettysburg 
 Electric Railway, 160 U. S. 668) that (681)— 
 
 When the legislature has declared the use or 
 purpose to be a public one, its judgment will 
 be respected by the courts, unless the use be 
 palpably without reasonable foundation. 
 
 There was no formal declaration here that the pur- 
 pose was public, but that, we apprehend, is not nec- 
 essary when its character is evident, as in this case. 
 
28 
 
 The value of the land to the railroad company 
 under the granting acts was appraised by this court 
 when the case was here before — an action to which 
 appellants were parties — and compensation accord- 
 ing to the value thus fixed is secured by the Chamber- 
 lain-Ferris Act. No more is needed. (Sweet v. Rechel, 
 159U.S. 380,401; Cherokee Nation v. Kansas Railway 
 Co., 135 U. S. 641, 658.) 
 
 3. EQUITY ALWAYS HAS POWER TO GRANT ADEQUATE RELIEF. 
 
 But apart from and entirely independent of this, 
 the Chamberlain-Ferris Act is sustainable upon the 
 ground that it is a part of the remedy given to the 
 Government by the judgment of this court. It is 
 rudimentary law that a court of equity always has 
 the right to create any remedy it may think necessary 
 for the purpose of affording proper relief in any case. 
 
 The case of Sharon v. Tucker, 144 U. S. 533, quotes 
 with approval the following (544-545) : 
 
 It is absolutely impossible to enumerate all 
 the special kinds of relief which may be 
 granted or to place any bounds to the 
 power of the courts in shaping the relief in 
 accordance with the circumstances of partic- 
 ular cases. As the nature and incidents of 
 proprietary rights and interests and of the 
 circumstances attending them, and of the 
 relations arising from them, are practically 
 unlimited, so are the kinds and forms of 
 specific relief applicable to these circumstances 
 and relations. (1 Pom. Eq. Jur., sec. 170.) 
 
 Bispham observes that : 
 
 This capacity of moulding a decree to suit 
 the exact exigencies of a particular case is 
 
29 
 
 indeed one of the most striking advantages 
 which procedure in chancery enjoys over that 
 at common law. (Bispham's Principles of 
 Equity, sec. 7.) 
 
 In Brewster v. Lanyon Zinc Co., 140 Fed. 801, 
 Judge Van Devanter, speaking for the eighth circuit, 
 quoted the following with approval (818) : 
 
 The flexibility of decrees of a court of 
 equity will enable it to meet ever)^ emergency. 
 
 (See also Payne v. Hook, 7 Wall. 425, 432, and 
 Missouri, K. & T. Trust Co. v. Krumseig, 172 U. S. 
 351, 361.) 
 
 In Sage v. Central Railroad Co., 9 Otto 334, it was 
 said (342): 
 
 The specific relief sought was a strict fore- 
 closure; but under the prayer for general 
 relief it is not questioned that the decree for 
 a sale was appropriate. 
 
 One of the prayers of the bill in the case at bar was 
 for general relief. There was also a prayer for the 
 sale of the lands. (Statement case for Govt., former 
 hearing, p. 34-35.) 
 
 The adaptability of decrees in equit}^ to the par- 
 ticular facts of a case is touched upon in the opinion 
 herein (238 U. S. 422). 
 
 The railroad company had violated with impunity 
 its contracts — the grants — with the Government. 
 From the very beginning it paid no attention to the 
 restrictive provisos thereof. (Statement case for 
 Govt., former hearing, p. 88.) The court found that 
 
30 
 
 it had been guilty of " prolonged disregard of the cov- 
 enants" (238 U. S. 438) and that an injunction against 
 violations of them in the future would not be enough. 
 What then? Having power to fit the relief to the 
 situation, did it not have power to refer the disposition 
 of the lands to Congress, with the admonition that if 
 the latter made disposition of them it must secure to 
 the defendants "all the value the granting acts con- 
 ferred upon the railroads." 
 
 It seems to be the argument of the appellants that 
 although the railroad company was guilty of a " pro- 
 longed disregard of the covenants," and that re- 
 straint from future violations would not be enough 
 (238U. S. 438), still there was no power anywhere to 
 do more than restrain the company from such viola- 
 tions; that neither the title nor the possession of the 
 company could be disturbed ; that if it was good in the 
 future, its past delinquencies with all their baneful 
 consequences must be forgotten, or at least that there 
 was no power in the courts to grant the Government 
 any other relief. Why should this be so? Are not 
 other corporations amenable to the law for their 
 breaches of contract? Then, why not this one? 
 "Upon what meat doth this" corporation feed that it 
 "has grown so great" as to be free from the conse- 
 quences of its illegal conduct? Is the court impotent 
 to grant any relief except that which harmonizes with 
 the company's will? May it not coerce the company 
 into law obedience by any means which it adjudges 
 proper? 
 
 The contract breached in this case is different 
 from those which appear in most other cases, be- 
 
31 
 
 cause it is not only a contract, but also a law. (238 
 U. S. 432.) Adequate relief, in the judgment of the 
 court, required a change in that law. For instance, it 
 would not do to sell 160 acres at $2.50 an acre — 
 $400 — which are worth, because of the timber on 
 them, $18,000. To do this, said the court, would in- 
 vite "more to speculation than to settlement" (238 
 U. S. 438), but none the less it would have to be done 
 unless the law could be altered. Consequently the 
 matter was referred to Congress, the only body having 
 power to make the change, and through whose assist- 
 ance alone the secondary and only remaining purpose 
 of the grants — settlement — could be carried out at this 
 time. If this puts the appellants in a situation they 
 do not like, it is because the railroad company failed 
 to keep its contract and obey the law. 
 
 But, however all that may be, the decision of this 
 court, as we have heretofore observed, that Congress 
 had the power to dispose of the lands and hence to 
 revest the title in the Government, is not open for 
 examination here— it is conclusive. 
 
 B. APPELLANTS HAVE NO CAUSE FOB, COMPLAINT AGAINST 
 
 THE ACT. 
 
 For nearly forty years prior to the commencement 
 of this action, the railroad company had ignored its 
 contracts with the Government (238 U. S. pp. 425, 
 438). It is not in a position to insist that those 
 contracts shall not now be disturbed even though its 
 violation of them renders their disturbance necessary 
 in order that the rights of the other contracting 
 
32 
 
 party — the Government — be protected. Especially 
 is this so since all the railroad company's interest 
 under the contracts — the grants* — as found by this 
 court, are adequately preserved in the Chamberlain- 
 Ferris Act, as we shall presently show. 
 
 C. THE CHAMBERLAIN-FERRIS ACT SECURES TO THE APPEL- 
 LANTS "ALL THE VALUE" CONFERRED BY THE GRANTING 
 ACTS UPON THE RAILROADS. 
 
 It consists of a preamble and 12 sections. In 
 the former, reference is made to the Granting Acts; 
 the restrictive covenants and the violations of them; 
 the decision of this court referring the disposition of 
 the lands to Congress; the power of amendment 
 reserved in the granting act of 1866 (sec. 12); the 
 receipt by the railroad of large sums of money from 
 sales of the land, leases, interest, contracts, etc., in 
 excess of $2.50 per acre; and the terms of the grants 
 fixing the maximum price at $2.50 per acre. Only 
 sections 1, 7, 8, 9, and part of 10 relate to the interest 
 of the railroad company. The others deal with the 
 handling of the lands after the title thereto has been 
 revested in the Government, and are immaterial here. 
 
 The first-mentioned sections read : 
 
 Be it enacted by the Senate and House of 
 Representatives of the United States of America 
 in Congress assembled, That the title to so 
 much of the lands granted by the Act of 
 July twenty-fifth, eighteen hundred and sixty- 
 six, entitled "An Act granting lands to aid 
 in the construction of a railroad and telegraph 
 line from the Central Pacific Railroad in 
 California to Portland, in Oregon, " as amended 
 
33 
 
 by the Acts of eighteen hundred and sixty- 
 eight and eighteen hundred and sixty-nine, 
 for which patents have been issued by the 
 United States, or for which the grantee is 
 entitled to receive patents under said grant, 
 and to so much of the lands granted by the 
 Act of May fourth, eighteen hundred and 
 seventy, entitled "An Act granting lands 
 to aid in the construction of a railroad and 
 telegraph line from Portland to Astoria and 
 McMinnville, in the State of Oregon," for 
 which patents have been issued by the United 
 States, or for which the grantee is entitled 
 to receive patents under said grant, as had 
 not been sold by the Oregon and California 
 Railroad Company prior to July first, nine- 
 teen hundred and thirteen, be, and the same 
 is hereby, revested in the United States: 
 Provided, That the provisions of this Act 
 shall not apply to the right of way to the 
 extent of one hundred feet in width on each 
 side of the railroad and all lands in actual 
 use by said railroad company on December 
 ninth, nin teen hundred and fifteen, for depots, 
 sidetracks, wood yards, and standing grounds. 
 Sec. 7. That the Attorney General of the 
 United States be, and he is hereby, authorized 
 and directed to institute and prosecute any 
 and all suits in equity and actions at law 
 against the Oregon and California Railroad 
 Company, and any other proper party which 
 he may deem appropriate, to have determined 
 the amount of moneys which have been re- 
 ceived by the said railroad company or its 
 predecessors from or on account of any of 
 
34 
 
 said granted lands, whether sold or unsold, 
 patented or unpatented, and which should be 
 charged against it as a part of the " full value" 
 secured to the grantees under said granting 
 Acts as heretofore interpreted by the Supreme 
 Court. In making this determination the 
 court shall take into consideration and give 
 due and proper legal effect to all receipts of 
 money from sales of land or timber, forfeited 
 contracts, rent, timber depredations, and in- 
 terest on contracts, or from any other source 
 relating to said lands; also to the value of 
 timber taken from said lands and used by said 
 grantees or their successor or successors. In 
 making this determination in the aforemen- 
 tioned suit or suits the court shall also deter- 
 mine, on the application of the Attorney Gen- 
 eral, the amount of the taxes on said lands 
 paid by the United States, as provided in this 
 Act, and which should in law have been paid 
 by the said Oregon and California Railroad 
 Company, and the amount thus determined 
 shall be treated as money received by said 
 railroad company. 
 
 Sec. 8. That the title to all money arising 
 out of said grant lands and now on deposit to 
 await the final outcome of said suit commenced 
 by the United States in pursuance of said joint 
 resolution of nineteen hundred and eight is 
 hereby vested in the United States, and the 
 United States is subrogated to all the rights 
 and remedies of the obligee or obligees, and 
 especially of Louis L. Sharp as commissioner, 
 under any contract for the purchase of timber 
 on the grant lands. 
 
35 
 
 Sec. 9. That the taxes accrued and now un- 
 paid on the lands revested in the United States, 
 whether situate in the State of Oregon or 
 State of Washington, shall be paid by the 
 Treasurer of the United States, upon the order 
 of the Secretary of the Interior, as soon as may 
 be after the approval of this Act, and a sum 
 sufficient to make such payment is hereby 
 appropriated, out of any money in the Treas- 
 ury not otherwise appropriated. 
 
 Sec. 10. That all moneys received from or 
 on account of said lands and timber under the 
 provisions of this Act shall be deposited in 
 the Treasury of the United States in a special 
 fund, to be designated "The Oregon and Cali- 
 fornia land-grant fund," which fund shall be 
 disposed of in the following manner: The Sec- 
 retary of the Interior shall ascertain as soon 
 as may be the exact number of acres of said 
 lands, sold or unsold, patented to the Oregon 
 and California Railroad Company, or its pre- 
 decessors, and the number of acres of unpat- 
 ented lands which said railroad company is 
 entitled to receive under the terms of said 
 grants, and the value of said lands at $2.50 
 per acre. From the sum thus ascertained he 
 shall deduct the amount already received by 
 the said railroad company and its predecessors 
 in interest on account of said lands, and which 
 should be charged against it as determined 
 under section seven of this Act; and a sum 
 equal to the balance thus resulting shall be 
 paid, as herein provided, to the said railroad 
 company, its successors or assigns, and to 
 those having liens on the land, as their re- 
 
36 
 
 spective interests may appear. The amount 
 due lien holders shall be evidenced either by 
 the consent, in writing, of the railroad com- 
 pany or by a judgment of a court of compe- 
 tent jurisdiction in a suit to which the railroad 
 company and the lien holders are parties. 
 Payments shall be made from time to time, 
 as the fund accumulates, by the Treasurer of 
 the United States upon the order of the Sec- 
 retary of the Interior: Provided, however, That 
 if, upon the expiration of ten years from the 
 approval of this Act, the proceeds derived 
 from the sale of lands and timber are not suf- 
 ficient to pay the full amount which the said 
 railroad company, its successors or assigns, are 
 entitled to receive, the balance due shall be 
 paid from the general funds in the Treasury 
 of the United States, and an appropriation 
 shall be made therefor. After the said rail- 
 road company, its successors or assigns, and 
 the lien holders, shall have been paid the 
 amount to which they are entitled, as pro- 
 vided herein, an amount equal to that paid 
 for accumulated taxes, as provided in section 
 nine hereof, shall be deposited in the Treasury 
 to the credit of the United States; thereafter 
 all other moneys received from the sales of 
 land and timber shall be distributed as fol- 
 lows: (Remainder of section not material 
 here.) (39 Stat., 218.) 
 
 A word of explanation with regard to these sec- 
 tions, except the first and tenth which need none. 
 
 The railroad company has sold about 800,000 
 acres, the proceeds of which, together with moneys 
 derived from other sources connected with the 
 
37 
 
 grants, reach about $5,506,870.97, or $3,506,870.97 
 more than the company would be entitled to at $2.50 
 an acre (statement, case for Govt, former hearing, 
 p. 83). 
 
 Under section 9 the Government is to pay to Oregon 
 and Washington the taxes due on the lands, totaling 
 about $1,300,000. Whether the excess over $2.50 
 an acre received by the railroad company, as just 
 stated, constitutes, in the words of the opinion, an 
 " illegal emolument" (238 U. S. p. 436) and should 
 be deducted, together with the taxes paid, from what 
 would otherwise be coming to the railroad company 
 in the Government's settlement with it, are questions 
 referred to the courts by section 7. 
 
 The money mentioned in section 8 is the same as 
 that mentioned in section 3 of the decree. Its re- 
 lation to the granted lands is shown in the discussion 
 with respect to that part of the decree. (Supra, 
 p. 16.) 
 
 Stated otherwise, the act revests the title in the 
 United States to all the unsold lands and provides 
 for the payment to the railroad company within ten 
 years of the balance that may be coming to it on a 
 basis of $2.50 an acre for the total acreage covered 
 by the two grants after making all proper deductions. 
 Thus the railroad company is assured the maximum 
 amount — $2.50 per acre — which under any circum- 
 stances, no matter how favorable, it would be entitled 
 to receive under the grants as construed by this court. 
 This is far more than it could possibly receive if it 
 sold the lands under the terms of the restrictive 
 
38 
 
 provisos. In such case it could receive no more, as 
 we have just said, than $2.50 an acre; but in many 
 cases it would not obtain that sum or even a fair 
 share of it. This is so because considerable of the 
 land is without merchantable timber and is also un- 
 cultivable. The appellants urged in effect at the 
 former hearing that a great deal of it "was nothing 
 but a wilderness of mountain and rock" (238 U. S. 
 p. 422). While we do not admit this contention to 
 its full extent, we must concede that it is true in part. 
 In providing, therefore, that the railroad company 
 shall receive $2.50 per acre for all the land, whether 
 good or bad, Congress has been more than just — it 
 has been very generous. 
 
 Payment of the amount due the railroad company 
 is amply secured. Section ten says that payments 
 shall be made from time to time as the funds accu- 
 mulate and if after the expiration of ten years the 
 proceeds from the sales are not sufficient to discharge 
 the full amount due, the balance shall be paid out of 
 the general funds in the Treasury. The railroad 
 company has no ground for complaint here. In a 
 little more than ten years, it is assured of all the 
 money rightfully coming to it, and in the meantime 
 it is free from any obligation to pay taxes. It is safe 
 to say that in this way it will receive not only more 
 money by far, but will receive it much sooner, than 
 if the Chamberlain-Ferri§ Act had not been enacted. 
 
 Did the granting acts confer upon the railroads any 
 other " value" than that flowing from the right to sell 
 the land for a sum not to exceed $2.50 an acre, and if 
 
39 
 
 so, is it secured to the appellants by the Chamberlain- 
 Ferris Act? The granting act of 1866 gave to the 
 railroad the right "to take from the public lands 
 adjacent to the line of said road, earth, stone, tim- 
 ber, water, and other materials for the construction 
 thereof," also a right of way through the public 
 lands "to the extent of one hundred feet in width 
 on each side of said railroad * * * including all 
 necessary grounds for stations, buildings, workshops, 
 depots, machine shops, switches, sidetracks, turn- 
 tables, water stations, or any other structures re- 
 quired in the construction and operating of said 
 road" (Sec. 3, 14 Stat. 239, 240). 
 
 Like rights were conferred by the grant of 1870 
 upon the grantee (sec. 1, 16 Stat. 94). 
 
 The right to take materials from the public lands 
 for constructing the road has, of course, been ex- 
 hausted because the line of road contemplated by 
 section 1 of each act has been built long since. 
 Besides, the Chamberlain-Ferris Act does not dis- 
 turb it. The rights of way, station grounds, etc., 
 appropriated by the defendants from the granted 
 lands are saved to them by the proviso to section 1 
 of the Chamberlain-Ferris Act, which reads: 
 
 That the provisions of this Act shall not 
 apply to the rights of way to the extent of 
 one hundred feet in width on each side of the 
 railroad and all land$ in actual use by said 
 railroad company on December ninth, nineteen 
 hundred and fifteen, for depots, sidetracks, 
 wood yards, and standing grounds. 
 
40 
 
 [December 9 was taken because it is the date of the 
 decree now before the court for review.] 
 
 1. CERTAIN RIGHTS CLAIMED BY APPELLANTS. 
 
 There is, as we have noticed (supra, p. 8), a conten- 
 tion on the part of appellants that the railroad com- 
 pany had the right under the granting acts to cut the 
 timber, or mine the coal, if there be any, and sell it 
 irrespective of the provisos, or use it as fuel in its lo- 
 comotives; that it also had the right to farm the 
 land, sell the crops, and apply the proceeds on its 
 debt; and that the Chamberlain-Ferris Act does not 
 provide for the value of any of those rights. There 
 are several answers at hand : 
 
 (a) The questions thus raised have become res ju- 
 dicata (supra, p. 15). 
 
 (b) The railroad company's charter does not au- 
 thorize it to engage in farming, mining, or logging 
 (R. Vol. I, p. 89, former hearing) and besides, there 
 is no warrant in the granting acts, or the debates at 
 the time they were enacted, for saying that Congress 
 intended that the railroad company could put the 
 lands to any such purpose. 
 
 (c) Even if the granting acts conferred those rights, 
 they are, when judged by the conduct of the railroad 
 company, of practically no value. During the long 
 period of the company's ownership of the lands it 
 had never mined a ton of coal, cultivated an acre of 
 land, or used a piece of timber taken from the lands 
 save only to the value of $18,850.25. (Statement, Case, 
 Govt., former hearing, p. 83.) x\nd this small value 
 
41 
 
 is more than compensated for in the $2.50 an acre 
 allowed by the Chamberlain-Ferris Act, for, as we 
 have shown and the record amply discloses, there 
 are thousands of acres for which the company could 
 not receive any thing if their right to sell had not 
 been disturbed by the Chamberlain-Ferris Act (supra, 
 p. 37), because they are mountain sides, barren rocks, 
 without timber, and uncultivable. For each such 
 acre the Chamberlain-Ferris Act allows the company 
 $2.50. In this connection, let us repeat, that under 
 the opinion of the court, Congress is not to secure 
 rights, but "the value" of the rights, to the railroad 
 company (238 U. S. 429). 
 
 (d) The purposes of the granting acts according to 
 the interpretation of this court were two, namely (1) 
 the building of the railroad, and (2) the settlement of 
 the country. And " the secondary purpose," says the 
 court "was regarded and provided for in the provisos 
 under review. Both purposes must be considered. 
 It may be that it was not expected that actual settlers 
 would crowd into 'the vast unpeopled territory' but 
 the existence of such settlers at some time must have 
 been actually contemplated. Both purposes, we 
 repeat, were to be subserved, and how to subserve 
 them is the problem of the case." (238 U. S. supra, 
 417.) Again, referring to the granting acts, the 
 court mentions "the accomplishment of their pur- 
 poses — either of the construction of the road, or sale 
 to actual settlers" (420). The secondary purpose, it 
 is clear, would be defeated if the railroad company 
 had the right to farm the land. Such a use would be 
 
42 
 
 inconsistent with the idea of small tracts — 160 acres — 
 dotted with homes belonging to the occupants — " A 
 bold peasantry their country's pride." This was the 
 character of settlement which Congress contemplated, 
 not an immense area owned by an absentee landlord 
 and cultivated by a poor tenantry — the curse of older 
 countries. It was to prevent just such a condition as 
 that, that the restrictive provisos were adopted. 
 This was shown in the former argument (brief, 
 p. 42 et seq), which is noticed in the opinion of the 
 court (414). 
 
 (e) According to appellants' witnesses, it would 
 cost from $50 to $500 to clear the stumps from an 
 acre of land. (Reduced summary of testimony 
 attached to Government's statement of case, 
 former hearing.) Uncleared land of that char- 
 acter would have no attractions for settlers — it 
 would on the contrary repel settlement and thus 
 defeat the secondary purpose of the grants. If, on 
 the other hand, the land had not been denuded of 
 its timber, the settler could sell the timber, and thus 
 realize enough to clear the land and otherwise im- 
 prove it. 
 
 But we deny that the railroad company had any 
 right to farm, log, or mine the lands ; it had no right to 
 take anything from them save perhaps a right of way 
 and depot grounds — which are preserved by the Cham- 
 berlain-Ferris Act. This View is not inconsistent with 
 the finding of the court that "there was a complete 
 and absolute grant to the railroad company with 
 power to sell, limited only as prescribed" (434) — 
 
43 
 
 " limited only as prescribed," but " there's the rub." 
 Nothing was contemplated which would collide with 
 the limitations — the settlement provisos — and the 
 claims we are now discussing would do so. There- 
 fore, they must be rejected. 
 
 Finally, as we have before remarked, there is no 
 authority in the railroad company to divide the 
 lands into three parts — soil, mineral, and timber — 
 and then free two from the burden of the limitations 
 imposed by the restrictive provisos. 
 
 2. CASES CITED BY APPELLANTS. 
 
 Appellants, railroad company and Gage, cite a 
 number of cases and argue at some length to the effect 
 that a grantee of lands from the Government may 
 dispose of them as he pleases, subject to such restric- 
 tions as the granting act imposes. These cases illus- 
 trate no point of controversy in the case at bar. 
 Schulenberg v. Ilarriman (21 Wall. 44) and Fletcher v. 
 Peck (6 Cranch, 87) may be taken as types of all the 
 others. In the first case the grant was upon a condition 
 subsequent. The condition was broken. After this 
 had happened, and before any action was taken by 
 the grantor to reenter and reclaim the title, Schulen- 
 berg, a stranger to the title, went upon the lands 
 and cut therefrom some timber. The grantee through 
 its agent, Harriman, seized the logs that Schulenberg 
 had cut, and thereupon the latter sued to recover 
 them through a replevin action: Thus was presented 
 the question as to whether he or the grantee had title. 
 The decision was, of course, that, since the grantor 
 
44 
 
 had never taken any action to enforce the condition 
 subsequent, the title to the land remained in the 
 grantee, and, consequently, it had a title to the 
 logs. "The title to the land remaining in the State" 
 (the grantee), said this court, "the lumber cut upon 
 the land belonged to the State." This is elemen- 
 tary law with respect to conditions subsequent. 
 But what has it to do with the case at bar? Is it 
 cited for the purpose of showing that title to the 
 timber as well as to the surface of the land was, 
 by virtue of the granting act, conveyed to the 
 grantee? If so, we admit it. Of course, in such 
 circumstances, the title to the timber passed to the 
 grantee with the surface of the land, because it was 
 a pari of the land. 
 
 What we are here dealing with, however, is the 
 remedy which the court has given the Govern- 
 ment because the grantee railroad company had 
 for nearly forty years violated its contracts — the 
 granting acts — with the Government. "The play's 
 the thing." And so here the remedy is the point 
 of controlling interest. Where an execution has 
 been issued upon a judgment rendered against a 
 man for a breach of contract for the purchase of a 
 tract of land, it is too late for him when opposing the 
 execution of the writ to ask the court to reexamine 
 the contract for the purpose of dt termini rig whether 
 or not it had been bread *hj. The same is true here. 
 We have passed the stage when it was proper to 
 consider whether the railroad company had violated 
 its contract with the Government. This court has 
 
45 
 
 adjudged that it had, and now we are dealing, as 
 just observed, with the remedy awarded by the court. 
 Nor is there any question here, as in Fletcher v. 
 Peck (supra, p. 43), of the right of Congress to recall 
 a grant where there has been no breach of the con- 
 tract upon which it was made. Here, as we have 
 said, there was a breach and a grave one long per- 
 sisted in. None of the cases cited is authority for 
 the proposition that property may not be taken in 
 satisfaction of a judgment rendered by a court of 
 competent jurisdiction. Whether the taking is done 
 through an act of Congress, or a sale by a master, or 
 in any other way, can make no difference. The court, 
 as we have shown (supra, p. 28), has a right to select 
 the means most appropriate to the end in view — 
 compensation for the breach. 
 
 3. THE UNION TRUST COMPANY. 
 
 In its brief this company seems to proceed upon 
 the hypothesis that the contract between the Gov- 
 ernment and the railroad was faithfully kept by 
 the latter. No account whatever is taken of the 
 important fact that for nearly forty years that con- 
 tract was in large part utterly ignored. A stranger 
 to the record reading the brief would be led to 
 conclude that the malefactor in the case was the 
 Government, not the railroad company. Of course, 
 starting from such a premise the conclusion must 
 be erroneous. The rights of the Trust Company 
 are measured by those of the railroad company. 
 They can be no greater. This court said in the 
 
46 
 
 opinion under review that the railroad company 
 might choose the grants as a means of credit — 
 
 subject ultimately to the restrictions imposed; 
 we say "restrictions imposed" to reject the 
 contention of the railroad company that an im- 
 plication of the power to mortgage the lands 
 carries a right to sell on foreclosure divested 
 of the obligations of the provisos. (238 U. S. 
 supra, 435.) (Italics ours.) 
 
 The Trust Company, and also the railroad company, 
 seem to overlook this statement. After enumerating 
 certain pertinent facts, the court said (438) : 
 
 This, then, being the situation resulting 
 from conditions now existing incident, it may 
 be, to the prolonged disregard of the covenants 
 by the railroad company the lands invite now 
 more to speculation than to settlement. 
 
 In other words, the railroad company, by its many 
 breaches of the contract between it and the Gov- 
 ernment, had brought about a condition of things 
 which tended to prevent the accomplishment of the 
 second purpose of the grants, namely, settlement 
 of the country. This being so, an adequate remedy 
 required the interposition of Congress, and so the 
 court decreed. Neither the railroad company, there- 
 fore, nor the trust company, is in a position to com- 
 plain of the consequence which the conduct of the 
 former has brought upon both. 
 
 Moreover, the trust c<\hpany fails to attach any 
 significance, apparently, to that all-important part 
 of the judgment of this court, i?v which it says, in 
 effect, that defendants shall be restrained— 
 
47 
 
 until Congress shall have a reasonable oppor- 
 tunity to provide by legislation for their (the 
 lands) disposition in accordance with such 
 policy as it may deem fitting under the cir- 
 cumstances (238 U. S., supra, 438). (Italics 
 ours.) 
 
 These words have weighty meaning and can not be 
 ignored. It is largely upon their import the case 
 must turn. 
 
 (Note. — The trust company has ample security 
 outside of the lands in question. Government's 
 Brief, former hearing, p. 183.) 
 
 4. "UNCOMPENSATED SERVICES." 
 
 Again and again appellants speak of the " uncom- 
 pensated services rendered and to be rendered by the 
 railroad company through all the years in transport- 
 ing Government troops and materials." While this, 
 like many other statements in appellants' brief, is 
 not now open for discussion, it may not be deemed 
 inappropriate to invite attention to the grave mis- 
 conception of the contract with the Government 
 which it discloses. It is in no sense correct to say 
 that the services mentioned are " uncompensated.' ' 
 They are already paid for in advance by the grants. 
 The railroad company agreed, by accepting the grants, 
 to render those services as a part of the consideration 
 of the grants. The maximum value of the grants was 
 $2.50 per acre. That, as fore* have seen, was the 
 highest amount the riilroad companies were permitted 
 to receive out of the^sale of the lands. The Chamber- 
 lain-Ferris Act secures that sum to them. In return 
 
48 
 
 for it, they agreed to render the service mentioned and 
 to do other things. How utterly out of accord with 
 the facts, then, is it to say that such services are 
 " uncompensated . " Is the contract between the Gov- 
 ernment and the railroad company regarded by the 
 latter as nothing more than a mere " scrap of paper" ? 
 We see, therefore, that every existing right given 
 to the railroads by the two granting acts is amply 
 taken care of in the Chamberlain-Ferris Act. Con- 
 sequently Congress has secured to the defendants 
 "all the value conferred upon the railroads by the 
 granting acts." 
 
 III. 
 
 THE COURT HAS POWER TO DETERMINE THE VALIDITY 
 OF THE CHAMBERLAIN-FERRIS ACT IN CONNECTION 
 WITH THIS APPEAL. 
 
 The mandate, as we have seen, directed the lower 
 court to enter a decree and referred the disposition of 
 the lands to Congress. Although Congress was not, of 
 course, commanded to act, it was not only invited to 
 do so, but its duty to act was made very clear. The 
 preamble to the Chamberlain-Ferris Act in effect 
 declares that Congress accepted the invitation and 
 admitted the duty. The act is as much a part of 
 the execution of the judgment of this court as the 
 decree. Both are necessary to give it full effect. 
 If Congress had failed tp act, mi. £fr of the potency of 
 the judgment would b ! wasted. I Appellants deny that 
 the Chamberlain-Ferris Act is in consonance with the 
 judgment, and predicate the sam i thing of the decree. 
 Thus is presented the question as to whether, by the 
 congressional act and court decree, the judgment 
 
49 
 
 has been carried out in harmony with its terms. 
 Why, then, is it not proper, as indeed it is very desir- 
 able, that the validity of the act should be decided 
 in conjunction with that of the decree? True the 
 validity of the former is not here on appeal. But is 
 that material? 
 
 In Clark Distilling Company v. Western Maryland 
 Railway Company et al., decided Jan. 8, 1917, this 
 court considered and gave effect to a statute of 
 West Virginia passed after the case had reiched 
 the court on appeal, saying: 
 
 As the relief sought is the permanent right 
 to ship in the future, the meaning of the 
 statute now, that is, as amended, is the 
 test by which we must consider the questions 
 requiring solution. 
 
 United States v. Mormon Church (15G, U. S. 145) 
 was a case in which this court held that Congress 
 had the power to "dispose" of the property of a 
 defunct corporation (145) . And the mandate directed 
 the lower court to enter a judgment in conformity 
 with the opinion of this court "unless in the mean- 
 time Congress should otherwise order." (147.) A 
 decree was entered and from it an appeal taken 
 to this court. Pending the appeal, Congress, as 
 in the case at bar, took action resulting in a disposi- 
 tion of the property This was brought to the atten- 
 tion of the court, wUich hob asked to consider it in 
 connection with the appeal. It did so, saying: 
 
 It will be -perceived that judicial action is 
 not sought to be controlled by the resolution 
 
50 
 
 [of Congress], but that this court having 
 indicated the mode to be pursued to ascertain 
 and define the particular charitable uses, 
 lawful in their character, to which the property 
 should be devoted, in the absence of legisla- 
 tion upon the subject, and this appeal from 
 the decree of the court below to that end 
 having been taken, Congress has now declared 
 such uses. (149.) 
 
 In the present case this court also indicated the 
 course to be taken by the lower court "in the ab- 
 sence of legislation upon the subject." (238, U. S. 
 439, supra.) 
 
 Since it was proper to consider and give effect to 
 the action of Congress in the Mormon Church case, it 
 is equally proper, we submit, to consider and give 
 effect to it here. 
 
 Besides, the power of the court to determine 
 whether its mandate was obeyed is not appellate 
 only. It could be invoked by a direct application 
 for a mandamus. (In re Potts, 166 U. S. 263.) The 
 power is an incident of the jurisdiction which the 
 court exercised in deciding the original case. In ask- 
 ing the court to judge the validity of the Chamber- 
 lain-Ferris Act we call for an exercise of the same 
 jurisdiction. 
 
 The only question then left is one of procedure, 
 and as the Government and appellants unite in asking 
 the court to decide tljs ^ilidity of the act in connec- 
 tion with this appeal, that ques**on is waived. 
 
 Assuming the existence of the ■■ x , .<asver, we trust the 
 court will not decline to exercise it, for it is of great 
 
51 
 
 importance to the public interest in Washington 
 and Oregon that the validity of the act should be 
 determined soon. Until it is, the appellants will 
 resist any attempt on the part of the Government to 
 deal with the lands, and the appellants are restrained 
 from meddling with them. The lands constitute 
 the greater part of the taxable property in many of 
 the counties. For several years, as we have already 
 stated, none of the taxes levied upon them have 
 been paid and in consequence counties affected have 
 been pushed to the verge of bankruptcy. The Gov- 
 ernment is ready to pay those taxes as soon as the 
 validity of the act is adjudged. 
 
 In conclusion, permit us to urge that the decree 
 of the lower court and the Chamberlain-Ferris Act 
 are in strict accordance with the opinion and decision 
 of this court and are therefore valid. 
 
 Respectfully submitted. 
 
 John W. Davis, 
 
 Solicitor General. 
 
 CONSTANTINE J. SMYTH, 
 
 Special Assistant to the Attorney General. 
 March 3, 1917. 
 
 o 
 
 * « 
 
 \4. 
 
No. 492. 
 
 Office Supreme Court, U. S. 
 
 FILED 
 
 P£B 23 1917 
 
 IN THE 
 
 Supreme Court of the United States. 
 
 October Term, 1916. 
 
 OREGON & CALIFORNIA RAILROAD COMPANY, a corpo- 
 ration, et al., 
 
 Defendants and Appellants, 
 
 against 
 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 BRIEF FOR UNION TRUST COMPANY OF 
 
 NEW YORK, DEFENDANT AND 
 
 APPELLANT. 
 
 DOLPH, MALLORY, SIMON & GEARIN, 
 MILLER, KING, LANE & TRAPFORD, 
 Solicitors for Union Trust Company 
 of New York. 
 
 PERRY D. TRAFFORD, 
 
 Counsel. 
 
 B. H. TYRREL. PRINTER, 206-8 FULTON STREET, NEW YOBK. 
 
SUBJECT INDEX. 
 
 PAGE 
 
 STATEMENT 1-6 
 
 Land grant 2 
 
 Mortgage to Union Trust Co 3 
 
 Sale of lands 3 
 
 Suit for forfeiture 4 
 
 Decree upon the mandate 5 
 
 Legislature by Congress — Summary of 5 
 
 ASSIGNMENT OF ERRORS 6 
 
 ARGUMENT 8-73 
 
 Position of Union Trust Company, Trustee 
 
 of the Mortgage 8 
 
 POINT I. — The Act of Congress approved June 9, 
 
 1916, is invalid 10-51 
 
 A. — The Act is not within the powers given to the 
 Congress by the Constitution. 
 
 (1) Relation of Government and railroad is 
 contractual 10 
 
 (2) Contract must be given its fair mean- 
 ing 11 
 
 (3) Congress cannot impair contracts even 
 between citizens 11 
 
 (4) On general principles, Congress cannot 
 
 take back lands sold by it 11 
 
 (5) Enforcement of the contract is within 
 
 the province of a court 15 
 
 (6) Act is not within express or implied 
 powers of Congress 17 
 
 B. — The Act of June 9, 1916, is in violation of the 
 Fifth Amendment of the Constitution. 
 
 (1) The taking of property by legislation is 
 
 expressly prohibited 18 
 
11 
 
 PAGE 
 
 (2) Act is squarely within the meaning of 
 
 the Fifth Amendment 19 
 
 (3) Railroad has absolute title and every in- 
 cident of ownership 20 
 
 (4) Vested rights as well as title are taken 
 
 by the Act 21 
 
 (5) Railroad is deprived of the right to use 
 
 the lands as a basis of credit 22 
 
 (6) Theory of the Government that Rail- 
 road has no property rights is un- 
 founded 22 
 
 (7) Railroad has property rights (in addi- 
 tion to right to timber) 23 
 
 (8) Railroad is entitled to use the coal and 
 
 iron 23 
 
 (9) Lands are not taken under ''due process 
 
 of law" but directly contrary thereto. . 24 
 
 C. — The Act of June 9, 1916, is unconstitutional 
 because it cancels the lien of the mortgage of 
 the Union Trust Company, as trustee for 
 bondholders, and takes away its vested rights 
 as trustee under said mortgage. 
 
 (1) Mortgagee has rights in addition to 
 those now possessed by railroad 25 
 
 (2) Railroad had power to mortgage 26 
 
 (3) Mortgage is valid and for valuable con- 
 sideration 26 
 
 (4) Security other than that bargained for 
 cannot be substituted 27 
 
 (5) Right to foreclose, etc., is essential part 
 
 of mortgage 27 
 
 (6) List of rights conveyed by this mort- 
 gage 28 
 
in 
 
 PAGE 
 
 (7) Effect of Act on mortgagee's vested 
 rights 28 
 
 (8) Substitutes for vested rights offered by 
 
 Act are inadequate 29 
 
 (9) Moneys now on deposit cannot be 
 seized 32 
 
 (10) Eights conveyed by mortgage are 
 vested rights 32 
 
 (11) Summary as to mortgage, lien, etc.. . . 34 
 
 D. — The taking of the lands by the Government 
 and the cancellation of the lien and other 
 rights secured to the Union Trust Company 
 by the mortgage cannot be supported under 
 the reservation contained in the Act of July 
 25, 1866, to alter, amend, etc. 
 
 (1) No power to amend is reserved in grant 
 
 of 1870 35 
 
 (2) Limitation on power to amend is ex- 
 pressed in Act itself 35 
 
 (3) Implied limit even to power of Govern- 
 ment to amend charters 36 
 
 (4) Very definite limitation on power of 
 Government to take back property 
 from its own grantee 36 
 
 (5) Certainly rights acquired by mort- 
 gagee and other purchasers cannot be 
 divested by ' ' amendment ' ' 39 
 
 E. — The Act of Congress of 1916 is not a valid 
 exercise of the power of eminent domain. 
 
 (1) Act purports to be only an exercise of 
 power to amend, etc 40 
 
 (2) Lands are part of territory of Oregon. 40 
 
IV 
 
 PAGE. 
 
 (3) Purpose of Act is not within powers of 
 Congress 40 
 
 (4) Lands are not taken for a public use. . 41 
 
 (5) Condemnation is warranted only by 
 public necessity or expediency 43 
 
 (6) Condemnation is not authorized for use 
 
 to which lands already dedicated 44 
 
 (7) Compensation must be determined by 
 
 a court 44 
 
 (8) Government is not entitled to posses- 
 sion until lands paid for 45 
 
 F. — The language of this Court in reference to this 
 case (238 U. S. 393, 411-439) does not furnish 
 any justification for the seizure of the lands by 
 the Government or for the destruction or im- 
 pairment of the mortgage. 
 
 (1) Decision of this Court 45 
 
 (2) Objects of the land grant 46 
 
 (3) Contemplated "aid" not received "by 
 railroad 47 
 
 (4) Contemplated settlement made impossi- 
 ble by provisos 47 
 
 (5) This Court has refused to enlarge in 
 
 any way the terms of the provisos .... 48 
 
 (6) Purpose of reference to the Congress. . 49 
 
 (7) Scope of legislation which might have 
 been anticipated 50 
 
 (8) Act as passed disregards rights of own- 
 er and mortgagee 51 
 
 (9) This court has held that railroad has 
 
 full ownership not bare power of sale . . 51 
 
PAGE. 
 POINT II. — The owner of these lands has the unquali* 
 tied right to their use (including the right to use 
 the timber thereon) at least so far as such use will 
 not prevent the sale of the lands to actual settlers. 52-72 
 
 (1) Much of the lands are not now sus- 
 ceptible of cultivation 52 
 
 (2) Decision of this Court was made with 
 knowledge of character of lands 52 
 
 (3) Question as to timber; how presented 
 
 and importance thereof to mortgagee. 53 
 
 A. This Court certainly did not decide that the 
 owner could not use the timber, but, on the 
 contrary, intimated that it could do so. 
 
 (1) Comparison in parallel columns of lan- 
 guage of Opinion with that of Decree . . 55 
 
 (2) Some important variations between 
 Opinion and Decree 59 
 
 (3) The direction of a permanent injunc- 
 tion against sale of lands, and tempo- 
 rary injunction only against disposition 
 of lands and Umber, appear in sharp 
 contrast in the Opinion, showing plain- 
 ly the conclusion of this Court as to 
 right, in general, to use of timber 60 
 
 B. — The right of an owner to use his property 
 should not be destroyed in any way or even 
 restricted except for a most compelling reason. 
 
 (1) If not decided already, the right to 
 use the. timber follows necessarily from 
 construction given to the covenant and 
 the laws of property 62 
 
VI 
 
 PAGE. 
 
 (2) Restrictions upon use of lands will not 
 be implied ; and here only claim for re- 
 striction is based on the covenant 62 
 
 (3) Certainly the United States has parted 
 
 with all ownership in timber 63 
 
 (4) Granting Acts show recognition of the 
 value of the timber, and make certain 
 express exceptions, but refraim from 
 
 any exception covering timber 63 
 
 (5) The Government asks for extremely 
 important additions to terms of cove- 
 nant; but this Court has determined 
 that covenant shall not be added to by 
 implication 65 
 
 (6) There is no authority for this conten- 
 tion of the Government, which limits 
 property rights 66 
 
 C. — The owner, having all the burdens and obliga- 
 tions, should have all rights and privileges of 
 ownership. 
 
 (1) Railroad is prevented from selling 
 lands, and only advantage which it can 
 derive is from their use 66 
 
 (2) Railroad has paid heavy taxes and 
 all the expenses of protecting, etc., 
 
 the lands 67 
 
 (3) The tax liens upon timber which it is 
 claimed can not be used, are superior 
 
 to the lien of the mortgage 68 
 
Vll 
 
 PAGE. 
 
 D. — The main purpose of the grant would be de- 
 feated if the railroad should be deprived of 
 the right to use the timber while it remains 
 the owner of the lands. 
 
 (1) Since the lands cannot be sold and 
 since the burdens of the railroad have 
 been, and are, great, if not allowed 
 to use lands, it will receive no "aid" 
 
 at all 69 
 
 (2) Thus the main purpose of the grant is 
 defeated 70 
 
 E. — The covenant relating to the sale of the lands 
 is restrictive only; the railroad is not com- 
 pelled to sell the lands. 
 
 (1) This Court has held that the covenant 
 
 is restrictive 70 
 
 (2) Even if there is an affirmative obliga- 
 tion to sell to settlers, the railroad may 
 use lands in any way which will not pre- 
 vent such sales 71 
 
 POINT III. — The decree should not have awarded costs 
 against the Union Trust Company individually 
 and as Trustee 72 
 
 CONCLUSION 73 
 
 APPENDIX A.— ACT OF CONGRESS OF JUNE 9, 
 
 1916 (FERRIS ACT) 75 
 
Vlll 
 
 TABLE OF AUTHORITIES CITED AND 
 REFERRED TO. 
 
 PAGE. 
 
 Bauman v. Ross, 167 U. S. 548, 598 45 
 
 Bienville Water Co. v. Mobile, 186 U. S. 212 37 
 
 Bienville Water Co. v. Mobile, 186 U. S. 222 39 
 
 Burke v. Southern Pacific Co., 234 U. S. 669 11 
 
 Burke v. Southern Pacific Co., 234 U. S. 679 63 
 
 Burke v. Southern Pacific Co., 234 U. S. 679-680. . . 11 
 
 Cary Library v. Bliss, 151 Mass. 364 44 
 
 Charles River Bridge v. Warren Bridge, 11 Peters 
 
 420, 571 45 
 
 Charles River Bridge v. Warren Bridge, 11 Peters 
 
 574 12 
 
 Charles River Bridge v. Warren Bridge, 11 Peters 
 
 575 15 
 
 Charles River Bridge v. Warren Bridge, 11 Peters 
 
 589-590 11 
 
 Charles River Bridge v. Warren Bridge, 11 Peters 
 
 642 41 
 
 Cherokee Nation v. Southern Kansas Ry. Co., 135 
 
 U. S. 641-657 40 
 
 Cherokee Nation v. Southern Kansas Ry. Co., 135 
 
 U. S. 659 45 
 
 Chicago B. & Q. R. R. v. Chicago, 166 U. S. 226, 
 
 235-236 16 
 
 Chicago B. & Q. R. R. v. Chicago, 166 U. S. 247- 
 
 248, 251 33 
 
 Chicago M. & St. P. Ry. v. Wisconsin, 238 U. S. 
 
 491 37 
 
 Chicago M. & St. P. Ry. v. Wisconsin, 238 U. S. 
 
 501 39 
 
 Cleveland C. C. & St. L. Ry. v. Drainage District, 
 
 213 111. 83 41 
 
IX 
 
 PAGE, 
 
 Cleveland C. C. & St. L. Ry. v. Drainage District, 
 
 213 111. 85 42 
 
 Coke II Inst. 272 24 
 
 Cooley: Constitutional Law, p. 345 11 
 
 Cooley: Constitutional Law, p. 350 16 
 
 Cooley: Constitutional Law, p. 351 33 
 
 Cooley: Constitutional Law, p. 375 45 
 
 Cooley: Constitutional Limitations, p. 756 43 
 
 Dartmouth College v. Woodward, 4 Wheaton 518, 
 
 581 24 
 
 Dartmouth College v. Woodward, 4 Wheaton 627. 10 
 
 Davidson v. New Orleans, 96 U. S. 97, 101 24 
 
 Davidson v. New Orleans, 96 U. S. 102 19, 20 
 
 Davis v. Gray, 83 U. S. 203, 232 10 
 
 Faraton v. Green, 108 No. Car. 339 66 
 
 Fletcher v. Peck, 6 Cranch 87 12 
 
 Fletcher v. Peck, 6 Cranch 135 12, 33 
 
 Fletcher v. Peck, 6 Cranch 137 10, 11 
 
 Gannon v. Peterson, 193 111. 372 66 
 
 Hepburn v. Griswold, 8 Wall 603, 623 11 
 
 Hoke v. Henderson, 4 Dev. (N. C.) 1, 15 24 
 
 Kent's Commentaries, Vol. I, star, p. 414 37 
 
 Kohl v. United States, 91 U. S. 367, 372 40, 41 
 
 Lake Shore, etc., Ry. v. Chicago, etc., Ry., 97 111. 
 
 506, 512 44 
 
 Legal Tender Cases, 12 Wall 457 12 
 
 Miller v. Tfte £We, 15 Wall 478 37 
 
 Miller v. The State, 15 Wall 498 39 
 
 Monongahela Navigation Co. v. U. S., 148 U. S. 
 
 312, 327 45 
 
 Murray's Lessee v. Hoboken Land Co., 18 Howard 
 
 272 24 
 
X 
 
 PAGE. 
 
 New Jersey v. Wilson, 7 Cranch 164, 166 10 
 
 Nichols: Power of Eminent Domain, Sec. 291 43 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 393 1,2,76 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 407 3 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 408 3,4,47 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 410 4 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 411-439 45 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 418 20 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 422 49 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 423 48 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 432 51,61,65 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 434 17, 51, 61, 65 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 434-435 20, 22, 26 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 435 28,47,49 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 436 49 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 437-438 30, 53 
 
 Oregon & Cal. R. R. Co. v. United States, 238 U. S. 
 
 438 4,53,55 
 
 Pearsall v. Great Northern Ry., 161 U. S. 646, 673 . . 33, 34 
 People v. O'Brien, 111 N. Y. 1 37 
 
XI 
 
 PAGE. 
 
 People v. O'Brien, 111 N. Y. 51 33, 34 
 
 Peterson v. First Division, St. Paul, etc. Ry., 27 
 
 Minn. 218 67 
 
 Railroad Land Co. v. Courtwright, 21 Wall 310 . ... 66 
 Reeves' Law of Real Property, Sec. 243 62 
 
 Schulenburg v. Harriman, 21 Wall 44 66 
 
 Sinking Fund Cases, 99 U. S. 700 19, 37 
 
 Sinking Fund Cases, 99 U. S. 718 10, 12, 39 
 
 Sinking Fund Cases, 99 U. S. 719 15, 37, 39 
 
 Sinking Fund Cases, 99 U. S. 718-719 19, 37 
 
 Sinking Fund Cases, 99 U. S. 720 37, 39 
 
 Sinking Fund Cases, 99 U. S. 720-721 37 
 
 Sinking Fund Cases, 99 U. S. 721 38 
 
 Sinking Fund Cases, 99 U. S. 737 24 
 
 State Bank v. Knoop, 16 Howard 369, 380 10 
 
 Story on The Constitution, Sec. 1956 43, 45 
 
 Stroud v. Missouri River, etc., R. R., 4 Dillon 396, 
 
 403 67 
 
 Terrett v. Taylor, 9 Cranch 43, 50-51 12, 13 
 
 Terrett v. Taylor, 9 Cranch 52 13 
 
 Union Pacific R. R. v. United States, 104 U. S. 662 . 10 
 
 United States v. Budd, 144 U. S. 154, 167, 168 67 
 
 United States v. Central Pacific Ry., 118 U. S. 235 . . 12, 19 
 United States v. Central Pacific Ry., 118 U. S. 238 . . 10, 12 
 
 I r nited States v. Louglircy, 172 U. S. 206 66 
 
 United States v. Minn. & N. W. R. R. Co., 1 Minn. 
 
 127 19, 23 
 
 United States v. Minn. & N. W. R. R. Co., 1 Minn. 
 
 131 14 
 
 United States v. Minn. & N. W. R. R. Co., 1 Minn. 
 
 132 11, 14 
 
 United States v. Minn. & N. W. R. R. Co., 1 Minn. 
 
 132-133 12 
 
Xll 
 
 PAGE. 
 
 United States v. Minn. & N. W. R. R. Co., 1 Minn. 
 
 133 18 
 
 United States v. Tennessee & Coosa R. R., 176 U. 
 
 S. 242 66 
 
 United States v. Union Pacific R, R., 91 U. S. 72 . . . 10 
 
 United States v. Union Pacific R. R., 161 U. S. 1 . . . . 38 
 United States v. Union Pacific R. R., 160 U. S. 33. . 37, 38 
 
 United States v. Union Pacific R. R., 160 U. S, 33-34 11 
 
 United States v. Union Pacific R. R., 160 U. S. 34. . 15 
 
 Washburn Real Property, 6th Ed., Sec. 2050 41, 42 
 
 Wilcox v. Jackson, 13 Peters 498, 517 17, 40 
 
No. 492. 
 
 IN THE 
 
 Supreme Court of the United States, 
 
 OCTOBER TERM, 1916. 
 
 OREGON & CALIFORNIA RAILROAD COM- 
 PANY, a corporation, et al., 
 
 Defendants and Appellants, 
 
 against 
 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 BRIEF FOR THE UNION TRUST COM- 
 PANY OF NEW YORK, DEFEND- 
 ANT AND APPELLANT. 
 
 STATEMENT. 
 
 Prom the decree of the District Court of the 
 United States for the District of Oregon, entered 
 upon the mandate of this Court which issued after 
 the decision of this suit (reported 238 U. S. 393- 
 
439), an appeal was taken by the defendants to 
 the United States Circuit Court of Appeals for 
 the Ninth Circuit, which, under Section 239 of the 
 Judicial Code, has certified seven questions or 
 propositions of law to this Court. This Court has 
 ordered that the whole record and cause be sent 
 up to it for its consideration, and the whole mat- 
 ter therefore is now here for decision in the same 
 manner as if it had been brought up for review 
 by writ of error or appeal. 
 
 Since the decree was entered an Act of Con- 
 gress, commonly known as the Ferris Act, has 
 been passed (approved June 9, 1916), which the 
 Attorney General contends (and we concede) will, 
 if held valid, render "moot every specific question 
 presented by the certificate save the question of 
 costs". (See Motion to advance the cause, p. 12). 
 
 We shall therefore urge not only that the de- 
 cree is not according to the decision of this Court 
 or the law, but also that the said Act of Congress 
 is invalid. 
 
 Land Grant. 
 
 To aid in the construction of a railroad the 
 Congress, by Acts of July 25, 1866 (14 Statutes at 
 Large, p. 239), and May 4, 1870' (16 Statutes at 
 Large, p. 94), made grants of public lands in the 
 State of Oregon. By a clause in an Act approved 
 April 10, 1869 (16 Statutes at Large, p. 47), which 
 amended the said Act of 1866 by enlarg- 
 ing the time for beginning the work of con- 
 struction, it was provided: "That the lands 
 granted by the act aforesaid shall be sold to actual 
 settlers only in quantities not greater than one- 
 quarter section to one purchaser and for a 
 
price not exceeding two dollars and fifty cents per 
 acre. ' ' A clause in the Act of 1870 provided that 
 the granted lands "shall be sold by the Company 
 only to actual settlers, in quantities not exceeding 
 one hundred and sixty acres or a quarter section 
 to any one settler, and at prices not exceeding two 
 dollars and fifty cents per acre." The predeces- 
 sor of the defendant Oregon & California Railroad 
 Company accepted the grants, built a railroad in 
 accordance with its terms, and obtained patents 
 to most of the lands thus granted. 
 
 Mortgage to Defendant Union Trust Company. 
 
 Very little of the granted lands were sold in the 
 early days (238 U. S. at p. 408) and the Railroad 
 got into financial difficulties (238 U. S. at pp. 407, 
 435; Stipulation, Record Vol. 4, p. 1564). In 1887 
 it mortgaged all the lands covered by the grants 
 (together with its railroad, etc.) to the defendant 
 Union Trust Company, as Trustee for bondhold- 
 ers (Ex. H, Record, Vol. 1, p. 197), the money thus 
 obtained being used to continue the construction 
 of the railroad and to redeem bonds which had 
 theretofore been issued to raise funds for con- 
 struction purposes. (Stipulation, Record, Vol. 4, 
 p. 1575.) Many of these bonds were negotiated 
 and are now held abroad, especially in Holland 
 and Germany (Stipulation, Record Vol. 4, pp. 
 1574-5). 
 
 Sale of Lands. 
 
 After a while some of the granted lands were 
 sold in larger quantities and for higher prices than 
 were specified in the granting acts (238 U. S. at p. 
 
408). This was done with the knowledge of, and 
 without any objection by, the Government of the 
 United States (238 U. S. at p. 410). The timber on 
 these lands finally became valuable, and, as 
 a result, many persons sought to obtain the lands 
 not for settlement but for the profits to be de- 
 rived from the sale of the timber. (238 U. S. at 
 p. 438, Record Vol. IV, pp. 2014-5; Vol. VI, 2774.) 
 
 Suit by the United States for a Forfeiture. 
 
 The attempts of individuals to get possession 
 of the valuable timber for a nominal price were 
 insignificant compared with the attempt of the 
 Government to obtain the lands without paying 
 anything whatever. The suit which it brought 
 was based upon the claim that, because of the 
 sale of some of the lands contrary to the provisos 
 above referred to, the lands had become forfeited 
 to it. It prayed, therefore, that the court would 
 declare that these lands belonged to it or, if that 
 relief were denied, that a receiver should be ap- 
 pointed to sell the lands in accordance with the 
 provisos or that the Railroad should be directed 
 to make the sales, etc., etc. (Record, Vol. I, p. 
 78-80). This court decided (we submit) that the 
 grant to the railroads could not be forfeited, that 
 the provisos were covenants, not conditions, and 
 that they should be construed literally; and (since 
 the provisos as thus interpreted were harsh in 
 their operation), it enjoined any disposition of 
 the lands or timber until Congress should have a 
 reasonable time in which to pass appropriate 
 legislation. 
 
5 
 Decree Upon the Mandate. 
 
 It having been thus decided that the lands be- 
 longed to the Railroad and were not forfeited to 
 the Government, the Government proposed the 
 decree which was entered by the District Court 
 (Certificate of U. S. Cir. Ct. of Appeals, pp. 13- 
 16), which decree, in effect, prevents the Railroad 
 forever from using the lands and deprives it for- 
 ever of the right to cut the timber growing upon 
 the lands. 
 
 Legislation by Congress. 
 
 Although the Government had thus obtained 
 the entry of a decree which, if valid, destroyed 
 much of the value of the lands in the hands of the 
 Railroad and, although an appeal was pending 
 from this decree, the Congress proceeded to en- 
 act legislation, intended to transfer to itself the 
 title and all control of the lands and to enable the 
 Government to sell, first the timber and after- 
 wards the lands. The Ferris Act, which was ap- 
 proved June 9, 1916, stated, among other recitals, 
 that this court had in this suit ordered that the 
 Railroad be enjoined "from making further sales 
 of lands in violation of the law" and further en- 
 joined from "making any sales whatever of either 
 the lands or the timber thereon until Congress 
 should have a reasonable opportunity to provide 
 for the disposition of said lands, etc.," and en- 
 acted that the title of all the lands be ' ' revested in 
 the United States" (Sec. 1) ; that they be divided 
 into three classes : power sites, timber lands, and 
 agricultural lands (Sec. 2) ; that the timber should 
 be sold by the Secretary of the Interior at such 
 
6 
 
 times and in such manner as might seem best, 
 and that the lands from which it was removed 
 should thereafter be classed as agricultural lands 
 (Sec. 4) ; that the lands classed as agricultural 
 should be subject to entry under the homestead 
 laws but that patents should not issue until the 
 lands had been cultivated for three years (Sec. 
 5) ; that the proceeds of the timber and the lands 
 should be deposited in the Treasury of the United 
 States and be paid to the Railroad or the lien 
 holders as the fund accumulated, and, that at the 
 end of ten years, an appropriation should be made 
 from the general funds of the Treasury of the 
 United States to pay any balance which might 
 be due to the Railroad (Sec. 10) ; that the profits 
 derived from the transaction should be paid one- 
 quarter to the State of Oregon, and one-quarter 
 to the counties where the lands were situated, 
 while one-half should be retained by the Govern- 
 ment (Sec. 10). 
 
 [The Act referred to is quoted in full in Ex- 
 hibit "A", annexed to this brief at pp. 75^88.] 
 
 ASSIGNMENTS OF ERROR. 
 
 The assignments of error of the Union Trust 
 Company, twenty-eight in number, are printed in 
 full in the Certificate of the United States Circuit 
 Court of Appeals to this court at pages 52 to 62. 
 It seems unnecessary to set forth all of these as- 
 signments in this place, but we print below certain 
 of the assignments with a reference by number to 
 other assignments which present substantially the 
 same points. 
 
(As we have said above, the decree entered in 
 the District Court does not raise moot questions, 
 since the Act of June 9, 1916, is invalid.) 
 
 "23. The Court erred in not making and 
 entering a decree herein responsive to the 
 mandate of the Supreme Court of the United 
 States, without modification or enlargement, 
 and in the terms of the opinion to which the 
 said mandate referred, and which was expres- 
 sive of the mandate itself." 
 
 (See also assignments numbered 1 to 4 
 and 22). 
 
 "8. The Court erred in its said decree in in- 
 corporating into and making part of the gen- 
 eral injunction therein injunctive matter 
 touching the sale of the timber on said lands, 
 except as a part of and in conjunction with 
 the land on which the timber stands; and 
 touching the cutting or removal, or the 
 authorizing of the cutting or removal, of any 
 of the timber thereon, except in connection 
 with the sale of the land bearing such timber ; 
 likewise touching the sale of any mineral or 
 other deposits in said lands, except as part of 
 and in conjunction with the land in which the 
 mineral or other deposits are found ; and also 
 touching the removal or the authorizing of 
 the removal of mineral or other deposits in 
 said land, except in connection with the sale 
 of the land containing such mineral or other 
 deposits." 
 
 (See also assignments numbered 5 to 
 
 7). 
 
 "15. The Court erred in not holding and 
 decreeing that the railroad company, so long 
 as the granted lands were not sold by it but 
 remained unalienated, had a complete and 
 absolute title thereto, and under such circum- 
 stances, and as the owner of such a title, had 
 the right to sell, cut, remove, or authorize the 
 
8 
 
 cutting or removal of the timber thereon; 
 and the Court erred similarly in not so holding 
 and decreeing with reference to any mineral 
 or other deposits in or products out of said 
 lands — subject to such qualification as may 
 arise from the limited injunction referable to 
 the period of six months, as expressed in the 
 opinion of the Supreme Court." 
 
 (See also assignments numbered 16 to 
 21). 
 
 "24. The Court erred in adjudging and de- 
 creeing that the complainant have and recover 
 from the defendants, Oregon and California 
 Railroad Company, Southern Pacific Com- 
 pany, Stephen T. Gage, individually and as 
 trustee, and Union Trust Company, individ- 
 ually and as trustee, and each of them, or from 
 any or either of them, any costs or disburse- 
 ments herein, and in adjudging and decreeing 
 that execution issue against the said defend- 
 ants or any or either of them, for any costs or 
 disbursements herein." 
 
 (See also assignments numbered 26 and 
 27). 
 
 ARGUMENT. 
 
 Position of the Defendant Union Trust 
 Company, as Trustee of the 
 
 Mortg"a^e. 
 
 It is at least probable that the Railroad could 
 not "have been built if the land grant had not been 
 mortgaged. At any rate, it has been settled in 
 this case that the use of the lands to obtain credit 
 was contemplated and that the mortgage to the 
 Union Trust Company (instead of being a cause 
 for forfeiture as claimed by the Government) was 
 
within the powers of the Railroad and valid, al- 
 though the interest of the mortgagee was sub- 
 ject, like that of the Railroad itself, to the "re- 
 strictions imposed" upon sales by the provision 
 on that subject contained in the granting acts. 
 Thus the Union Trust Company, as Trustee of 
 the mortgage, has a prior claim or first lien upon 
 the lands and their proceeds and it acts under a 
 valid mortgage in a trust capacity for the bond- 
 holders who partly upon the security of these 
 lands contributed their money to build the rail- 
 road. 
 
 To these bondholders, many of whom live in 
 Holland and Germany, the Union Trust Company 
 is accountable. Its position is in very large part 
 the same as that of the defendant railroad, for 
 any decision establishing that the railroad has 
 valuable rights in these lands will be directly for 
 its benefit; but it contends, in addition and es- 
 pecially, that even if it is possible for the Gov- 
 ernment now to take away rights once conveyed 
 to the railroad, it cannot take them except subject 
 to the lien of the mortgage. 
 
 A list of the points urged by the mortgagee is 
 set forth in the "Subject Index", prefixed to this 
 Brief. 
 
10 
 POINT I. 
 
 The Act of Congress of June 9, 1916, 
 is invalid. 
 
 A. 
 
 The act of June 9, 1916, is not within the powers 
 given to the Congress by the Constitution. 
 
 1. The relation between the Government and the 
 Railroad in reference to these lands is contractual. 
 
 As this Court said in Davis v. Gray, 83 U. S. 203, 
 at p. 232 : 
 
 ''That the act of incorporation and the land 
 grant here in question were contracts is too 
 well settled in this court to require discus- 
 sion." (Italics ours.) 
 
 See also Fletcher v. Peck, 6 Cranch. 87, at p. 137. 
 New Jersey v. Wilson, 7 Cranch. 164, at p. 
 
 166. 
 Dartmouth College v. Woodward, 4 Wheat. 
 
 518 at p. 627. 
 State Bank v. Knoop, 16 Howard 369, at p. 
 
 380. 
 U. S. v. Central Pac. Ry., 118 U. &., 235, at 
 
 p. 238. 
 
 In the case last cited (U. S. v. Central Pac. Ry.) 
 this Court said (p. 238), referring to certain sec- 
 tions quoted from several land grant acts, that 
 they "taken together constitute the contract be- 
 tween the United States and the appellee" (i. e., 
 Railroad) and cited U. S. v. Union Pacific R. R., 
 91 U. S. 72, Sinking Fund Cases, 99 U. S. 700, 
 718, Union Pacific R. R. Co. v. U. 8., 104 U. S. 662. 
 

 11 
 
 2. Moreover the contract is no longer executory, 
 it is executed (Fletcher v. Peck, 6 Cranch. 87, at p. 
 137). What the Railroad agreed to do to earn the 
 grant has been done ; what the Government sought 
 to obtain, it has obtained; and the price agreed 
 upon has been paid. The conveyance of the lands 
 to the Railroad — for there can be no question that 
 the title is in the Railroad — was not a gift but a 
 sale; 
 
 Burke v. Southern Pacific R. R. Co., 234 
 U. S. 669, 679-80, 
 
 and the terms of the granting acts which re- 
 main to be carried out should therefore be con- 
 strued according to their fair meaning. 
 
 U. S. v. Minnesota & Northwestern R. R. 
 
 Co., 1 Minn. 127, at p. 132. 
 Charles River Bridge v. Warren Bridge, 
 
 11 Peters 420, 589-90. 
 
 3. It is at least doubtful if Congress has the 
 power to enact laws directly impairing the obliga- 
 tions of contracts made between citizens or be- 
 tween a citizen and a State. Certainly "it was 
 never intended that Congress should exercise that 
 tyrannical power" of impairing the obligation of 
 contracts. 
 
 Cooley: Constitutional Law, p. 345. 
 Hepburn v. Griswold, 8 Wall. 603, at p. 623. 
 Sinking Fund Cases, 99 U. S. 700, 718, 
 U. S. v. Union Pacific Ry. Co., 160 U. S. 1, 
 at pp. 33-34. 
 
 4. However this may be, where the effect of 
 legislation by a government would be to repudiate 
 
12 
 
 its own contractual obligation, or to take back 
 property which it has conveyed for a valid con- 
 sideration, such legislation would be — on general 
 principles — beyond its power, unless it were an 
 absolute despotism. 
 
 (Of course the indirect lessening of the value of 
 a contract by general legislation is an entirely 
 different matter — as has been pointed out by 
 this court. Legal Tender Cases, 12 Wall. 457.) 
 
 Fletcher v. Peck, 6 Cranch. 87, at p. 135. 
 
 Terrett v. Taylor, 9 Cranch. 43, 50-51. 
 
 U. S. v. Minnesota & N. W. R. R. Co., 1 
 
 Minn. 127, 132-3. 
 Sinking Fund Cases, 99 U. S. 700, 718. 
 Charles River Bridge v. Warren Bridge, 11 
 
 Peters, 420, 574. 
 U. S. v. Central Pacific Ry. Co., 118 U. S. 
 
 235. 
 
 In the case last cited (U. S. v. Central Pacific 
 Railway Company) this court, after stating (as 
 pointed out above) that sections in certain land 
 grant acts taken together constituted a contract 
 between the United States and the railroad, de- 
 clared (p. 238) : 
 
 ''This contract is binding on the United 
 States and they cannot, without the consent 
 of the company, change its terms by any sub- 
 sequent legislation." 
 
 In Fletcher v. Peck, 6 Cranch. 87, the State of 
 Georgia granted certain lands and one year later 
 passed an act revoking the grant. Marshall, C. 
 J., said (p. 135) : 
 
 "Is the power of the legislature competent 
 to the annihilation of such title and to a re- 
 
13 
 
 sumption of the property thus held ''. The 
 principle asserted is, that one legislature is 
 competent to repeal any act which a former 
 legislature was competent to pass; and that 
 one legislature cannot abridge the powers of 
 a succeeding legislature. The correctness of 
 this principle, so far as respects general 
 legislation, can never be controverted. But, 
 if an act be done under a law, a succeeding 
 legislature cannot undo it. The past cannot 
 be recalled by the most absolute power. 
 When, then, a law is in its nature 
 a contract, when absolute rights have vested 
 under that contract, a repeal of the law can- 
 not divest those rights; and the act of an- 
 nulling them, if legitimate, is rendered so by 
 a power applicable to the case of every indi- 
 vidual in the community. 
 
 It may well be doubted, whether the nature 
 of society and of government does not pre- 
 scribe some limits to the legislative power; 
 and if any be prescribed, where are they to 
 be found, if the property of an individual, 
 fairly and honestly acquired, may be seized 
 without compensation? * * *" 
 
 In Terrett v. Taylor, 9 Cranch. 43, Story, J. 
 said (pp. 50-51, 52) : 
 
 "If the legislature possessed the authority 
 to make such a grant and confirmation, it is 
 very clear to our minds that it vested an in- 
 defeasible and irrevocable title. AYe have no 
 knowledge of any authority or principal 
 which could support the doctrine that a legis- 
 lative grant is revocable in its own nature, 
 and held only durante bene placito. Such 
 a doctrine would uproot the very foun- 
 dations of almost all the land titles in 
 Virginia, and is utterly inconsistent with 
 a great and fundamental principle of a 
 republican government, the right of the 
 citizens to the free enjoyment of their 
 
14 
 
 property legally acquired. * * But 
 
 that the legislature can repeal statutes 
 creating private corporations, or confirming 
 to their property already acquired under the 
 faith of previous laws, and by such appeal 
 can vest the property of such corporations ex- 
 clusively in the state, or dispose of the same to 
 such purposes as they may please, without the 
 consent or default of the corporators, we are 
 not prepared to admit ; and we think ourselves 
 standing upon the principles of natural jus- 
 tice, upon the fundamental laws of every free 
 government, upon the spirit and the letter of 
 the constitution of the United States, and 
 upon the decisions of most respectable judicial 
 tribunals, in resisting such a doctrine." 
 
 In U. 8. v. Minnesota & N. W. R. R. Co., 1 Minn. 
 127, the court said (pp. 131, 132) : 
 
 ''An interest in or right to lands, franchises, 
 etc. once vested cannot be divested by any act 
 of the grantor, unless by agreement of the 
 parties to the grant. 
 
 Every grant of a franchise (says Judge 
 Story) is necessarily exclusive, so far as the 
 grant extends, and cannot be resumed or in- 
 terferred with. The Legislature cannot re- 
 call its grant nor destroy it. In this respect, 
 the grant of a franchise does not differ from 
 the grant of lands. In each case the partic- 
 ular franchise or particular land is withdrawn 
 from legislative operation, and the subject 
 matter has passed from the hands of the gov- 
 ernment. ' ' 
 
 "But, independent of the Constitutional 
 provision referred to, the Repealing Act is 
 invalid. There is a principle inherent in the 
 nature of society, as old as civil government 
 itself, which sets bounds to the powers of 
 legislation. It is the principle which protects 
 the life, liberty and property of the citizen 
 
15 
 
 from violation in the unjust exercise of legis- 
 lative powers." 
 
 In the Sinking Fund Cases, 99 U. S. 700, it was 
 said (p. 719) : 
 
 "The United States are as much bound by 
 their contracts as individuals. If they re- 
 pudiate their obligations, it is as much re- 
 pudiation, with all the wrong and reproach 
 that term implies, as it would be if the re- 
 pudiator had been a State or a municipality or 
 a citizen. No change can be made in the title 
 created by the grant of the lands, or in the 
 contract for the subsidy bonds, without the 
 consent of the corporation. All this is indis- 
 putable." (Italics ours.) 
 
 The above extract was quoted with approval in 
 U. S. v. Union Pac. Ry. Co., 160 U. S. 1, 34. 
 
 In Charles River Bridge v. Warren Bridge, 11 
 Peters 420, it was said (p. 575) : 
 
 ' ' The principle is admitted that the grantor 
 can do nothing that shall destroy his deed; 
 and this rule applies as well to the state as to 
 an individual. And the same principle oper- 
 ates with equal force on all grants, whether 
 made by the state or individuals." 
 
 5. In this country all governmental power is not 
 vested in Congress. Our plan of government is 
 based upon the conception that Congress shall 
 make laws of a general character and also may 
 make contracts, while to the courts is entrusted 
 the duty of passing upon the rights of parties 
 under the laws thus passed and the contracts thus 
 made. It has never been contemplated that Con- 
 gress might decide its own rights under a con- 
 tract by passing such an act as should properly 
 
16 
 
 be embodied in the decree of a court ; and certain- 
 ly it cannot be tolerated that Congress, after re- 
 ferring to the court the question of its rights un- 
 der the contract in question and after obtaining 
 a decision, should pass an act in effect overruling 
 that decision. 
 
 The rule is stated by an eminent authority as 
 follows : 
 
 "The legislature makes the laws, but can- 
 not pass judgments or decrees or make a law 
 that is such in substance. ' ' 
 
 Cooley: Constitutional Law, p. 350. 
 
 Yet that is precisely what has happened in this 
 case. This Court has rendered its decision de- 
 clining to forfeit the granted land because, as 
 there had been no violation of a condition subse- 
 quent, the lands could not legally be forfeited; 
 and thereupon, the Congress has nevertheless 
 passed an Act declaring that he lands are forfeit- 
 ed! 
 
 If the course adopted in reference to these 
 lands is available in this case, it can be followed in 
 all controversies to which the Government is a 
 party. If a decree of this Court should be sat- 
 isfactory, it may be allowed to stand ; but if not, it 
 will only remain for the Congress to pass an act 
 reversing the decision of this Court and in effect 
 directing such judgment as it has desired. 
 
 In Chicago, B. d Q. R. R. v. Chicago, 166 U. S. 
 226, referring to a statute which would transfer 
 certain property from one person to another, this 
 Court said (pp. 235-6) : 
 
 ''Such an enactment would not receive 
 judicial sanction in any country having a 
 written constitution distributing the powers 
 
17 
 
 of government among three coordinate de- 
 partments, and committing to the judiciary, 
 expressly or by implication, authority to en- 
 force the provisions of such constitution. It 
 would be treated not as an exertion of legis- 
 lative power, but as a sentence — an act of 
 spoliation. Due protection of the rights of 
 property has been regarded as a vital princi- 
 ple of republican institutions." (Italics 
 ours.) 
 
 6. The power of the Congress to pass laws is 
 limited. Its action is confined to the express pow- 
 ers given it by the Constitution and to such inci- 
 dental powers as may be implied from those ex- 
 pressly given. The Act of June 9, 1916, cannot be 
 brought within the scope of any of the express or 
 implied powers of Congress. Certainly this legis- 
 lation cannot be upheld under Article IV, Sec. 3, 
 clause 2 of the Constitution giving Congress pow- 
 er to make "regulations respecting the territory 
 or other property of the United States." To be 
 sure these lands were once a part of the public 
 domain, but long ago they were conveyed to the 
 Railroad for a valuable consideration and title to 
 these lands in the Railroad is now absolute as this 
 Court has held (238 U. S. 393, 434). It follows 
 that Congress has no more power to legislate con- 
 cerning these lands, or to confiscate them, than it 
 would have in the case of any other lands where- 
 ever situated. 
 
 Wilcox v. Jackson, 13 Peters, 498, 517. 
 
 In U. S. v. Minnesota & N. W. B. B. Co. (1 Minn. 
 127), the court said (p. 133) : 
 
 "The government of the United States is 
 one of limited powers. It is only sovereign 
 
18 
 
 in a qualified sense. Congress can do what 
 the Constitution authorizes it to do, and no 
 more. Certain powers undoubtedly arise by 
 implication, but no power can be implied au- 
 thorizing the Legislative department to take 
 a man's property without compensation and 
 without due course of law. This power is not 
 included in any general grant of legislative 
 powers. A power to do an act which has been 
 regarded as dishonest among individuals 
 from time immemorial in all civilized coun- 
 tries, cannot be implied from any of the 
 powers granted by the Constitution ; and, as 
 such a power is not expressly given, it can- 
 not be exercised." 
 
 B. 
 
 The Act of June 9, 1916, is in violation of the Fifth 
 Amendment of the Constitution. 
 
 1. Except perhaps for the sake of emphasis it is 
 unnecessary to argue (as in "A" above), that 
 the Act in question is beyond the powers conferred 
 upon the Congress ; for the Congress is expressly 
 prohibited from passing such an Act by the Fifth 
 Amendment to the Constitution which provides 
 that "no person * * * shall be deprived of 
 life, liberty, or property without due process of 
 law." 
 
 Under this point we plan to discuss the effect 
 of this prohibition upon the attempt of the Gov- 
 ernment to take back to itself the lands which have 
 been paid for by, and conveyed to, the Railroad, 
 and which have been mortgaged to the Union Trust 
 Company. In the following point (Point III, 
 infra), we shall refer to the effect of this prohi- 
 bition on the attempt to take from the Union Trust 
 
19 
 
 Company its vested rights under the said mort- 
 gage. 
 
 2. That the lands in question belong to the Rail- 
 road cannot be disputed, and that the Government 
 is seeking to take them away, by legislative enact- 
 ment, appears expressly from the terms of the Act 
 itself. Certainly the lands are property, and there 
 is no distinction in principle between the taking- 
 back of lands once owned by the United States 
 and the taking of lands derived from some other 
 source — except that the former seems the greater 
 offense. While the citation of authorities is, 
 therefore, unnecessary, we point to a few de- 
 cisions against the power of Congress to seize 
 property the title to which has vested in its gran- 
 tees. 
 
 Sinking Fund Cases, 99 U. S. 700. 
 Davidson v. New Orleans, 96 U. S. 97, 102. 
 United States v. Central Pacific Ry., 118 
 
 U. S. 235. 
 United States v. Minnesota <& N. W. R. R. 
 
 Co., 1 Minn., 127. 
 
 In the Sinking Fund Cases (99 U. S. 700), where 
 the question arose as to the power of the Con- 
 gress to direct the deposit of certain funds which 
 were to become due from the Union Pacific Rail- 
 road Company in the Treasury of the United 
 States to secure the payment of subsidy bonds is- 
 sued by the United States in aid of the railroad, 
 this Court said (pp. 718-9) : 
 
 ''The United States cannot, any more than 
 a State, interfere with private rights, except 
 for legitimate governmental purposes. They 
 are not included within the constitutional pro- 
 
20 
 
 hibition which prevents States from passing 
 laws impairing the obligation of contracts, 
 but, equally with the States, they are pro- 
 hibited from depriving persons or corpora- 
 tions of property without due process of law. 
 They cannot legislate back to themselves, 
 without making compensation, the lands they 
 have given this corporation to aid in the con- 
 struction of its railroad. Neither can they by 
 legislation compel the corporation to dis- 
 charge its obligations in respect to the sub- 
 sidy bonds otherwise than according to the 
 terms of the contract already made in that 
 connection." 
 
 In Davidson v. New Orleans, above cited (96 
 U. S. 97,), it was said (at p. 102) that 
 
 "a statute which declares in terms, and with- 
 out more, that the full and exclusive title of a 
 described piece of land, which is now in A., 
 shall be and is hereby vested in B., would, if 
 effectual, deprive A. of his property without 
 due process of law, within the meaning of the 
 constitutional provision. ' ' 
 
 3. By the strict and harsh terms of the granting 
 acts the railroad could not sell the lands to any one 
 other than actual settler, nor could it sell in quan- 
 tities exceeding 160 acres nor for a price greater 
 than $2.50 an acre. But its title was absolute and, 
 except for the above qualifications, it had every 
 incident of ownership. This court in its opinion 
 in this case referred to "the Government's ad- 
 mission that there was no obligation imposed 
 upon the railroad to sell" (238 U. S. at p. 418), 
 and later (pp. 434-5), defined the rights of the 
 railroad as follows : 
 
 "There was a complete and absolute grant 
 to the railroad company with power to sell, 
 
21 
 
 limited only as prescribed, and we agree with 
 the Government that the company 'might 
 choose the actual settler; might sell for any 
 price not exceeding $2.50 an acre, might sell 
 in quantities of 40, 60 or 100 acres, or any 
 amount not exceeding 160 acres.' And we 
 add, it might choose the time for selling or its 
 use of the grants as a means of credit, subject 
 ultimately to the restrictions imposed." 
 
 4. Under the Act of June 9, 1916, if valid, not 
 only is the title to the lands taken away from the 
 Railroad; but it is deprived of the right to choose 
 the actual settlers, the right to decide what quan- 
 tity it will sell, and the right to decide the price 
 for which it will sell. Moreover, it is deprived of 
 the right to choose the time for selling, and is cut 
 off from all opportunity to use the lands as a basis 
 of credit. 
 
 The effect of the Act in question might there- 
 fore be summarized as follows : 
 
 Whereas, in a suit to which the United States 
 was a party it has been adjudged that the title of 
 the Railroad to these lands is absolute, that it may 
 use them as a basis of credit, that the only re- 
 striction upon the Railroad is contained in the 
 covenant relating to sales, that, limited only by 
 the terms of that covenant, the Railroad may 
 choose the actual settlers to whom it will sell, the 
 amounts of land which it will sell, the price it will 
 ask, and the times for selling; 
 
 Be it enacted (i. e., adjudged and decreed ?) that 
 the title of the Railroad is not absolute and is 
 hereby transferred to the United States; that it 
 cannot, therefore, be used as a basis of credit; 
 that the covenant as to sales shall not be carried 
 out; that such sales as shall be made shall be to 
 
22 
 
 settlers chosen by the government, at prices fixed 
 by it and at such times as it shall select. 
 
 5. The loss of the ability of the Railroad to use 
 these lands as a basis of credit in consequence of 
 this seizure by the Government is a point of im- 
 portance. The right to mortgage the lands was 
 passed upon by this court which said (238 U. S. 
 pp. 434-5) as stated above: "It might choose 
 the time for selling or its use of the grants 
 as a means of credit. * * * To use the grant 
 for credit might become, indeed did become, a 
 necessity." It may become necessary or at least 
 expedient for the Railroad to raise further funds, 
 or to raise funds for the retirement of the mort- 
 gage now in force, by mortgaging these granted 
 lands — a course from which it is cut off by the Act 
 in question. 
 
 6. It would seem to be the theory of the Act in 
 question — so far as it is based on any theory — 
 that the Railroad has only the bare legal title to 
 these lands, that the restrictive covenant is the 
 only clause of the granting act which confers any- 
 thing at all upon the Railroad, and that the said 
 covenant gives the Railroad only a power of sale 
 without beneficial interest. 
 
 We have tried to point out above that since the 
 title is vested in the railroad it cannot be taken 
 away by legislative act; and further, that from 
 the plain meaning of the granting acts, as well as 
 the decision of this court, it appears that there is 
 vested in the railroad not only ownership of the 
 lands (for which it has paid a full price) but every 
 incident of ownership — save as modified by the 
 covenant as to sales. 
 
23 
 
 7. It is not to be supposed that the granting act 
 contemplated an immediate sale of the granted 
 lands. As soon as the title to the lands passed to 
 the railroad they became subject to taxation by 
 the State and Local authorities (U. S. v. Minn. 
 & N. W. R. R. f 1 Minn. 127) ; and they became a 
 cause of other expenses and a source of care and 
 responsibility to the railroad. Having thus all 
 the burdens of complete ownership, the railroad 
 is, of course, entitled to all the benefits of such 
 ownership — except as these may be expressly and 
 clearly cut down by the covenant as to sales. 
 What these benefits may be, need not be defined, 
 for that there are benefits of ownership may be 
 assumed. Without referring now to the right to 
 cut the timber (which will be taken up below — 
 see Point II) the railroad would have the right 
 so long as the lands remained unsold to take 
 ice in winter and fish and game in summer, to use 
 the lands for pasturage and to raise crops, to 
 take such timber and stone as might be needed 
 for the construction or maintenance of the rail- 
 road, to build buildings upon the land, to lease 
 the land as well as buildings, etc. Certainly there 
 is a vast difference and a vital distinction between 
 the ownership of the land with the rights incident 
 to such ownership and a bare power to receive the 
 proceeds of the sales of the lands when disposed of 
 by another in his discretion. 
 
 8. Moreover, while by the terms of the granting 
 acts the railroad did not receive any mineral 
 lands, it did receive such lands as contained coal 
 and iron. Deposits of coal and iron were not in- 
 tended for the use of "actual settlers" (i. e., agri- 
 culturists) and the paramount purpose of these 
 
24 
 
 grants was to aid the railroad. The deposits of 
 coal and iron, therefore, belong to the railroad and 
 cannot be taken from it by the Act in question — 
 which provides for the entry of mineral lands not 
 under the homestead laws but under the mineral 
 laws of the United States. 
 
 9. The claim should not be made that an Act of 
 Congress declaring that property which has be- 
 longed to a citizen shall thereafter belong to the 
 United States is ''due process of law" as used in 
 the Constitution. This provision has come down 
 to us from Magna Charta and has always been 
 construed to mean the law of the land as deter- 
 mined by a court of competent jurisdiction. 
 
 Murray v. Hoboken Land Co., 18 Howard 
 
 272- 
 Davidson v. New Orleans, 96 U. S. 97, 101 ; 
 Mr. Webster in Dartmouth College Case, 4 
 
 Wheat. 518 at p. 581. 
 
 A clear statement of the law is contained in the 
 dissenting opinion of Mr. Justice Strong in the 
 Sinking Fund Cases (99 U. S. at p. 737), as fol- 
 lows: 
 
 "What is due process of law is well under- 
 stood. It is law in regular course of admin- 
 istration through courts of justice. Coke, 2 
 Inst. 272; Murray's Lessee v. The Hoboken 
 Land and Improvement Co., 18 How. 272. 'The 
 terms "the law of the land", said Chief Jus- 
 tice Euffin (Hoke v. Harderson, 4 Dev. (N. 
 C.) 1), do not mean merely an act of the Gen- 
 eral Assembly. If they did, every restriction 
 upon legislative authority would be at once 
 abrogated, and private property would be at 
 the mercv of the legislature.' p. 15." 
 
25 
 
 Here, of course, there has been no semblance of 
 a "due process of law" under which the title to 
 these lands has been taken away from the rail- 
 road and the mortgagee. In fact the most strik- 
 ing feature of this case is that although there has 
 been "due process of law", yet under that 
 "process" it has been determined by this Court 
 that the government is not entitled to seize these 
 lands. 
 
 C. 
 
 The Act of June 9, 1916, is unconstitutional be» 
 cause it cancels the lien of the mortgage to the Union 
 Trust Company, as trustee for bondholders, and takes 
 away its vested rights as trustee under said mortgage. 
 
 1. We have urged in the preceding point that, be- 
 cause of the Fifth Amendment to the Constitution, 
 the railroad cannot be divested of ownership in 
 the granted lands. But whatever theory may be 
 advanced in support of a claim by the Govern- 
 ment that the lands may be taken from the rail- 
 road, it cannot meet our contention that the rail- 
 road, having the unquestioned power to do so, 
 has, by its mortgage, for a valuable consideration, 
 conveyed to the Union Trust Company, as trustee 
 for bondholders, certain vested rights which are 
 now sought to be, but which cannot be, divested 
 by the Act in question. 
 
 Surely it will not be claimed that the lands con- 
 veyed by the railroad many years ago to "actual 
 settlers", in strict compliance with the provisions 
 of the granting acts, can now be seized by the Gov- 
 ernment. The rights conveyed to the mortgagee 
 
26 
 
 by the mortgage which the railroad had power 
 to make are just as inviolable. 
 
 2. The principal purpose of the Government in 
 making the land grants was to obtain the construc- 
 tion of a railroad and an essential part of that 
 purpose was the giving of aid to the railroad. It 
 has been decided accordingly, in this very case, 
 that the railroad had power to mortgage these 
 lands. Moreover this court has pointed out that 
 the use of the grant for credit became actually 
 necessary. It said (238 U. S. at pp. 434-435) : — 
 
 "It (i. e. the railroad) might choose the 
 time for selling or its use of the grants as a 
 means of credit, subject ultimately to the 
 restrictions imposed; and we say 'restrictions 
 imposed' to reject the contention of the rail- 
 road company that an implication of the pow- 
 er to mortgage the lands carried a right to 
 sell on foreclosure divested of the obligations 
 of the provisos." 
 
 ' ' To use the grant for credit might become, 
 indeed did become, a necessity. The con- 
 struction of the road halted for funds. They 
 were raised by trust deeds, as we have seen." 
 
 3. The mortgage to the Union Trust Company 
 dated July 1, 1887, (Exhibit H, I Transcript of 
 Record 197) is unquestionably valid. (Stipula- 
 tion as to Facts, IV Transcript of Record Items 16- 
 18, pp. 1573-4). The bonds issued under it were 
 used in large part to retire the bonds issued under 
 earlier mortgages for the construction of the rail- 
 road and to provide additional funds for the com- 
 pletion of the railroad. There are $17,745,000 in 
 amount of these bonds still outstanding. Most of 
 the bonds were negotiated abroad and are now 
 owned abroad, especially in Holland and Germany. 
 
(Stipulation as to Facts IV Transcript of Record, 
 Items 19, 20, 21). 
 
 4. It may be claimed that, even if the security of 
 the lands is taken away, the bondholders will 
 eventually be paid in full because of the value 
 of the other property of the Oregon & California 
 Railroad Company or because of the guarantee of 
 the Southern Pacific Company. However plausi- 
 ble this conjecture may seem, the fact remains 
 that the Congress has no power to deprive the 
 bondholders of the security for which they bar- 
 gained, and to substitute another security which 
 may be, in its judgment, equally good. 
 
 Certainly if the business of railroads generally, 
 or that of these defendant railroads in particular, 
 should become unprofitable, the bondholders 
 would not be able to collect their indebtedness 
 without resorting to the land grants. 
 
 5. The fact that the railroad owned the lands 
 would not, of course, be sufficient to enable it to 
 raise money on its mere promise to pay. To raise 
 funds for such an enterprise, it was necessary to 
 pledge the lands themselves — to substitute, so to 
 speak, the obligation of the lands to make repay- 
 ment (in addition to the promise of the railroad), 
 in place of the obligation of the Railroad Company. 
 But mortgages invariably contain, and must neces- 
 sarily contain, the grant of power to the mortgagee 
 to make the security available in case of default 
 in the payment of principal or interest. Moreover 
 in the mortgage of large tracts of land like these 
 there must be provisions preventing the sale of 
 the lands except at prices satisfactory to the mort- 
 gagee, and insuring the deposit of the funds thus 
 
28 
 
 realized with the mortgagee as a preliminary to 
 the release of its lien. Except with such terms 
 a mortgage could not be made. 
 
 6. The mortgage to the Union Trust Company, 
 therefore, conferred upon it the usual rights as 
 follows : 
 
 (a) A lien upon the lands. 
 
 (b) The Right upon default etc. to take posses- 
 sion of the security. 
 
 (c) The right upon default to sell the security at 
 public auction. 
 
 (d) The right upon default to foreclose, and (in- 
 cidentally) to obtain a Receiver and to buy in 
 the property for the bondholders. 
 
 (e) The right to prevent private sales of lands 
 at a sacrifice. 
 
 (f ) The right to receive the proceeds of sales be- 
 fore releasing its lien. 
 
 These rights then were conveyed to the mort- 
 gagee in trust for bondholders by the railroad 
 which had power to convey them. Of course, as 
 this Court has intimated, no right was conferred 
 to sell on foreclosure "divested of the obligations 
 of the provisos"; (238 U. S. at p. 435) but we 
 urge that, subject only to the limitations con- 
 tained in the provisos, the trustee has a vested 
 right upon default to sell the mortgaged prop- 
 erty. 
 
 7. Having noticed some of the rights secured to 
 the bondholders by the terms of the mortgage, 
 the effect of the Act of June 9, 1916, upon these 
 rights should be examined. 
 
29 
 
 In the first place, the lien upon the lands (i. e. 
 the obligation of the property itself to pay in 
 case of default) without which these bondholders 
 would never have advanced their money to be 
 applied to the construction of the road — although 
 such construction was sought by the Government 
 of the United States — is taken away. 
 
 The right of the mortgagee upon default of the 
 Railroad, to sell the lands to a purchaser with all 
 the powers conferred upon the railroad and thus 
 to obtain promptly the full value of its lien, is 
 destroyed. 
 
 Moreover the right of the mortgagee in case of 
 foreclosure to buy in the lands itself and to raise 
 funds for that purpose by a new mortgage upon 
 the lands — the ordinary practice in cases of re- 
 organization — is taken away. It may be sug- 
 gested that this right to continue to use the 
 lands as a basis of credit is not of very great 
 value, in view of the present attitude of the Gov- 
 ernment; but that is not the question. The 
 ability to mortgage these lands might determine 
 the success or failure of a plan of reorganization 
 favorable to the bondholders. Moreover, as a 
 guide to the value of these lands as a basis of 
 credit, it should be noted that in all probability 
 the present mortgage could not have been obtained 
 without the pledge of these lands. 
 
 8. Since the Congress cannot lawfully destroy 
 the lien and the vested rights of the mortgagee, 
 it is of comparatively small importance to in- 
 quire what the Act provides as a substitute for 
 the rights which it seeks to destroy. This sub- 
 stitute, however, amounts only to an undertaking 
 by the Government (of course, unenforcible), 
 
30 
 
 if there should be any proceeds of the sales of 
 these lands by it during ten years, to turn over 
 such proceeds to the mortgagee ("lien-holder"), 
 provided the Railroad consents, but otherwise in 
 accordance with the judgment of a court after li- 
 tigation between the railroad and lien-holders; 
 while the balance which, according to the compu- 
 tation of the Government, may be due at the end 
 of ten years is to be paid from an appropriation 
 by Congress which this Act declares "shall be 
 made therefor". 
 
 It should be noted in this connection that there 
 is good reason to assume that very little of these 
 lands are agricultural in character (238 U. S. at 
 pp. 437-438). Moreover, this Act of 1916 provides 
 that no patent is to issue to purchasers of these 
 lands until from three to five years after entry; 
 that some lands, whose character is undefined, 
 shall be withdrawn from entry altogether for two 
 years; that only such of these lands as can be 
 sold for $2.50 an acre shall be thus disposed of— 
 thus destroying the right of the railroad 
 (pledged to the mortgagee) to sell such lands at 
 less prices; that the timber lands (the great bulk 
 of the lands) are not to be disposed of until the 
 timber has been removed, whereupon they are to 
 be given away; that the Secretary of the Interior 
 (in co-operation with the Secretary of Agricul- 
 ture etc.) is to sell the timber "at such times" as 
 in his judgment will "produce the best results", 
 and further that the time of the timber speculator 
 to remove the timber is not limited, but is to be 
 fixed by the Secretary of the Interior. 
 
 Thus it will be seen that these lands are not 
 to be sold in accordance with the contract between 
 the Government and the railroad — a contract in 
 
31 
 
 which the mortgagee has vested rights. Lands 
 which the railroad might wish to have peopled by 
 actual settlers at once, the Government may never 
 open for settlement; lands which the railroad 
 might be willing to sell for $1.00 an acre to set- 
 tlers of its own choosing, the Government will 
 sell only for $2.50 an acre; timber lands, which the 
 railroad might wish to sell for $2.50 an acre 
 the Government proposes to give away. Above 
 all the proceeds of sales which, under the mort- 
 gage have to pass into the hands of the mort- 
 gagee before the lien of the mortgagee is required 
 to be released, are to go under this Act into the 
 Treasury of the United States free from any lien 
 whatever. 
 
 Still further, there can be little doubt but that 
 the right of the mortgagee to receive anything of 
 importance in satisfaction of its lien upon these 
 lands is likely to amount only to the privilege of 
 urging upon the Congress of ten years hence, its 
 moral obligation to make some sort of an appro- 
 priation for the mortgagee's benefit upon the lines 
 suggested in the Act in question. 
 
 But if the Congress may now take from the 
 trustee the property and vested rights which were 
 pledged to it as security, and substitute something 
 else, it may ten years hence take away all rights 
 under the Act of 1916, and substitute still other 
 alleged rights instead. At any rate against mere 
 non-action of the Congress, the mortgagee will 
 have no remedy. Under this Act of 1916 the Gov- 
 ernment is not required to turn over to the mort- 
 gagee the full proceeds which may have been re- 
 ceived from the sale of lands now subject to the 
 lien of the mortgage. The Act provides only for 
 the payment of such proceeds lessened by large 
 
32 
 
 sums claimed to have been received by the rail- 
 road and which the Government claims it has a 
 right to offset against the railroad! 
 
 9. The provisions of Section 8 of the Act of 
 1916, after all, go only one step further. This sec- 
 tion declares that "the title to all money arising 
 ont of said grant lands and now on deposit to 
 await the final outcome of said suit" (i. e. this 
 suit) is "hereby vested in the United States". 
 But this suit was brought to decide whether the 
 lands belonged to the United States or the rail- 
 road and it has been decided that they belong to 
 the railroad; and it would seem, therefore, that 
 the railroad is now entitled to receive such money, 
 or at least, to have the matter decided by the 
 Court. Certainly such moneys, whether pro- 
 ceeds of sales of the granted lands or of the tim- 
 ber groiving thereon (presumably sold with the 
 consent of the Government), are subject to lien 
 of the mortgage of the Union Trust Company. 
 
 10. The rights of the Union Trust Company as 
 trustee for bondholders under the mortgage made 
 to it by the railroad are vested rights. We have 
 said above that if there is anything which can be 
 considered "property" under the Constitution it 
 is land granted by the Government and for a valid 
 consideration. Certainly if anything less tangi- 
 ble than land is to be considered "property" it is 
 the vested rights of the trustee of this mortgage. 
 To it the legal title to the lands has been con- 
 veyed, with (in substance) all the rights which the 
 railroad enjoyed and powers to take possession, 
 sell, etc. Moreover, for these rights the bond- 
 holders have paid $20,000,000 which has been ap- 
 plied to the construction of the railroad. 
 
33 
 
 If any citation of authorities should be neces- 
 sary to establish that such rights are " property" 
 the Court is referred to : 
 
 Cooley: Constitutional Law, p. 351. 
 Fletcher v. Peck, 6 Cranch. 87, 135. 
 People v. O'Brien, 111 N. Y. 1, 51. 
 Pearsall v. Great Northern Ry., 161 U. S. 
 
 646, 673. 
 Chicago B. & Q. R. R. Co. v. Chicago, 166 
 
 U. S. 226, 247-248, 251. 
 
 "The test of unlawful interference with 
 property is that vested rights are abridged 
 or taken away. Rights are vested, in con- 
 tradistinction to being expectant or contin- 
 gent. They are vested when the right to en- 
 joyment, present or prospective, has become 
 the property of some particular person or 
 persons as a present interest." 
 
 Cooley: Constitutional Law, p. 351. 
 
 In Fletcher v. Peck, 6 Cranch, 87, this Court 
 said (p. 135) :— 
 
 ' ' But, if an act be done under a law, a suc- 
 ceeding legislature cannot undo it. The past 
 cannot be recalled by the most absolute power. 
 Conveyances have been made; those convey- 
 ances have vested legal estates, and, if those 
 estates may be siezed by the sovereign au- 
 thority, stiil, that they originally vested is a 
 fact, and cannot cease to be a fact. 
 
 When, then, a law is in its nature a contract, 
 when absolute rights have vested under that 
 contract, a repeal of the law cannot divest 
 those rights; and the act of annulling them, 
 if legitimate, is rendered so by a power ap- 
 plicable to the case of every individual in the 
 community. 
 
34 
 
 In People v. O'Brien, 111 N. Y. 1, the court said 
 (P- 51) : 
 
 ''If it is possible to conceive the idea of a 
 repealable grant, certainly such a grant, ac- 
 companied with power to convey or pledge 
 the interest granted, must, on the execution 
 of the power, necessarily preclude a resump- 
 tion by the grantor of the subject of the grant, 
 or any right of property acquired under it. 
 An express reservation by the legislature of 
 power to take away or destroy property law- 
 fully acquired or created would necessarily 
 violate the fundamental law, and it is equally 
 clear that any legislation which authorizes 
 such a result to be accomplished indirectly, 
 would be equally ineffectual and void." 
 
 In Pearsall v. Great Northern Ry. Co., 161 U. S. 
 646, this Court — speaking of vested rights — said 
 (p. 673): 
 
 "As applied to railroad corporations, it 
 may reasonably be contended that the term 
 extends to all rights of property acquired by 
 executed contracts, as well as to all such 
 rights as are necessary to the full and com- 
 plete enjoyment of the original grant, or of 
 property legally acquired subsequent to such 
 grant. ' ' 
 
 11. By way of a summary, we urge that the mort- 
 gage is unquestionably a valid contract between 
 the railroad and the bondholders; that this con- 
 tract was one which the railroad had power to 
 make and which did not contravene the terms of 
 the land grants; that for the obligations of the 
 mortgage contract the bondholders gave valuable 
 consideration ; and that the property rights which 
 they thus acquired are as inviolable as it is pos- 
 sible for any rights in property to be. 
 
35 
 D. 
 
 The taking of the lands by the Government and 
 the cancellation of the lien and other rights secured 
 to the Union Trust Company by the mortgage cannot 
 be supported under the reservation contained in the 
 Act of July 25, 1866, to alter, amend, etc. 
 
 1. The twelfth section of the land grant Act of 
 July 25, 1866, reads as follows: "That Congress 
 may at any time, having due regard for the rights 
 of the said Oregon & California Railroad Com- 
 panies, add to, alter, amend or repeal this act." 
 
 This section is stated in one of the several re- 
 citals of the Act of June 9, 1916 ; but that it was not 
 put forward seriously as authorizing such legisla- 
 tion appears sufficiently from the fact that that Act 
 seeks to take back the lands received under the 
 Act of May 4, 1870 (the West Side Grant) al- 
 though the latter act contained no such clause! 
 The lands received under this West Side Grant 
 which remained unsold at the time this suit was 
 brought amounted to 68,682 acres (Record, Vol. 
 I, pp. 273, 508). 
 
 2. Since the Act of July 25, 1866 expressly pro- 
 vided that the power to alter, amend, etc., should 
 be exercised only with "due regard for the rights 
 of the Oregon & California Railroad Companies," 
 it is hardly necessary to point out the limitations 
 upon the exercise of such powers which are nec- 
 essarily implied. These rights of the railroad 
 have been conveyed to the mortgagee (See "C" 
 above) and these rights by the very terms of the 
 granting act cannot be taken away. 
 
36 
 
 3. Most of the cases relating to the implied limi- 
 tations upon the reserved power of a legislature 
 to "alter, amend," etc., relate to the amendments 
 of charters of corporations. In such cases the 
 question is only as to the right of a legislature to 
 alter the privileges which it has conferred upon, 
 and the rules which it has made for the control 
 of, one of its own creatures. Yet, even in such 
 cases, it is well settled that the legislature cannot, 
 under the guise of amending a charter, pass an 
 act which will deprive the corporation of its prop- 
 erty without due process of law, or take away 
 vested rights. 
 
 4. Here we are not concerned with an amend- 
 ment of a charter; for the charter of the Oregon 
 and California Railroad was granted by the State 
 of Oregon. 
 
 The power reserved is contained in the Act of 
 July 25, 1866 by which the United States conveyed 
 lands to the Railroad for a good consideration. 
 Some of these lands have been sold strictly within 
 the terms of the provisos of the granting act, and 
 all the lands now owned by the Railroad have been 
 mortgaged to the Union Trust Company as trus- 
 tee for the bondholders. 
 
 Whatever may be the rule as to the amendment 
 of charters, it is perfectly well settled that the 
 power reserved in a granting act to "alter, 
 amend," etc., is subject to certain well settled 
 restrictions. Assuredly Congress cannot, in the 
 form of an amendment, deprive its grantee of 
 his property without due process of law, nor can 
 it take vested rights away from its grantee, 
 nor — above all — can it take away the vested 
 rights of third persons who have dealt in good 
 
37 
 
 faith with the grantee and have parted with a 
 valuable consideration to acquire such rights. 
 
 Such power, at least if applied to the rights ac- 
 quired by third parties before the amendment, 
 would amount to a power to nullify the constitu- 
 tional guarantees which protect property rights. 
 
 Sinking Fund Cases, 99 U. S. 700, 718-19, 
 
 720-1. 
 U. S. v. Union Pacific Uy. Co., 160 U. S. 
 
 1, 33. 
 Bienville Water Co. v. Mobile, 186 U. S. 
 
 212. 
 Chicago, M. & St. P. R. R. Co. v. Wisconsin, 
 
 238 U. S. 491. 
 People v. O'Brien, 111 N. Y. 1 (and cases 
 
 cited). 
 1 Kent's Commentaries, star. p. 414. 
 Miller v. The State, 15 Wall. 478. 
 
 In the Sinking Fund Cases, 99 U. S. 700 (cited 
 above) the Act incorporating the Union Pacific 
 Railway Company and granting lands to it to aid 
 in the construction of its road, contained a reser- 
 vation of power to "alter, amend", etc., substan- 
 tially as in the Act of 1866 granting lands to the 
 Oregon & California Railroad Company. Speak- 
 ing of the power of Congress under that reserva- 
 tion, this Court said (p. 720) : 
 
 "That this power has a limit, no one can 
 doubt. All agree that it cannot be used to 
 take away property already acquired under 
 the operation of the charter, or to deprive the 
 Corporation of the fruits actually reduced 
 to possession of contracts lawfully made; 
 
38 
 
 Again the Court said (p. 721) : 
 
 "In so doing it cannot undo what has al- 
 ready been done, and it cannot unmake con- 
 tracts that have already been made, but it 
 may provide for what shall be done in the 
 future, and may direct what preparation 
 shall be made for the due performance of 
 contracts already entered into. It might 
 originally have prohibited the borrowing of* 
 money on mortgage, or it might have said 
 that no bonded debt should be created with- 
 out ample provision by sinking fund to meet 
 it at maturity. Not having done so at first, 
 it cannot now by direct legislation vacate 
 mortgages already made under the poivers 
 originally granted, nor release debts already 
 contracted. A prohibition now against con- 
 tracting debts will not avoid debts already 
 incurred. An amendment making it unlaw- 
 ful to issue bonds payable at a distant day, 
 without at the same time establishing a fund 
 for their ultimate redemption, will not in- 
 validate a bond already out. All such legis- 
 lation will be confined in its operation to the 
 future." (Italics ours.) 
 
 In United States v. Union Pacific Railway Co., 
 160 U. S. 1 (cited above) a case involving the 
 amendment of a charter contained in a statute 
 granting lands to the Railroad by the United 
 States, Mr. Justice Harlan, delivering the opinion 
 of this Court said (p. 33) : 
 
 "It would not be competent for Congress, 
 under the guise of altering and amending the 
 act in question, to impose upon the railroad 
 company duties wholly foreign to the objects 
 for which it was created or for which the 
 governmental aid was given. Neither could 
 it, by such alteration or amendment, destroy 
 rights actually vested, nor disturb transac- 
 tions fully consummated. We may here, not 
 
39 
 
 inappropriately, repeat what was said in the 
 Sinking Fund Cases, 99 U. S. 700, 718, 719, 
 720", 
 
 continuing with quotations from the Sinking Fund 
 Cases, set forth above (pp. 19-20 of this brief.) 
 
 In writing the opinion of this court in Bienville 
 Water Co. v. Mobile, 186 U. S. 212 (cited above), 
 Mr. Justice Brewer said (p. 222) : 
 
 "It has been held that the right of revoca- 
 tion or amendment carries with it no right to 
 appropriate the tangible property belonging 
 to the corporation." 
 
 In the recent case of Chicago M. & St. P. R. B. 
 Co. v. Wisconsin, 238 U. S. 491 (cited above), Mr. 
 Justice Lamar, writing the opinion of this court, 
 referred (p. 501) to two decisions of the Wiscon- 
 son court where it was held that "the right to 
 amend a charter does not authorize the taking of 
 the company's property without just compensa- 
 tion", and added: "The same view has been 
 repeatedly expressed in the decisions of this 
 court. ' ' 
 
 In Miller v. The State, 15 Wall. 478 (cited 
 above), it was said by Mr. Justice Clifford (p. 
 498): 
 
 "Power to legislate, founded upon such a 
 reservation in a charter to a private corpora- 
 tion, is certainly not without limit, and it may 
 well be admitted that it cannot be exercised 
 to take away or destroy rights acquired by 
 virtue of such a charter, and which by a legiti- 
 mate use of the powers granted have become 
 vested in the corporation . . ." 
 
 5. The point, however, upon which the defend- 
 ant Union Trust Company, as trustee for bond- 
 
40 
 
 holders, wishes to lay the very greatest stress is 
 that, whatever may be done by the Congress in the 
 direction of altering or amending the granting 
 acts, it cannot, by amendment, take away from 
 purchasers the lands conveyed to them by the rail- 
 road in compliance with the provisos in the 
 grants; nor can Congress, for exactly the same 
 reasons, by an amendment take away the lien of 
 the mortgagee or the rights conferred upon it by 
 the mortgage. 
 
 [See quotation from the Sinking Fund Cases on 
 page 38 above.] 
 
 E. 
 
 The Act of Congress of 1916 is not a valid exercise 
 of the power of eminent domain. 
 
 1. The Act in question is entitled "An Act to 
 alter and amend" the granting acts and does not 
 purport to be, and therefore should not be con- 
 strued as, an attempted exercise of the power of 
 eminent domain. 
 
 2. Moreover, the lands sought to be seized are 
 the property of a corporation organized under the 
 laws of the State of Oregon and are a part of the 
 territory of Oregon, and the power to legislate con- 
 cerning them is vested in that state. 
 
 Wilcox v. Jackson, 13 Peters, 498, 517. 
 
 3. At any rate the Government of the United 
 States can only take them "for such objects as 
 are germane to the execution of powers granted 
 to it" (Cherokee Nation v. Kansas Railway Co., 
 135 U. S. 641, 657; Kohl v. United States, 91 U. S. 
 
41 
 
 367, 372). To seize and sell the timber for its 
 own profit and the division of the lands among 
 farmers of its own choosing is not within any of 
 the powers of Congress; for these are no longer 
 public lands. 
 
 4. The most decisive answer to any claim that 
 the Act of 1916 can be considered as an exercise of 
 the power of eminent domain, lies in the provis- 
 ions of the Constitution, and in the fact that the 
 seizure of these lands is not for a public use. 
 
 The Fifth Amendment to the Constitution after 
 providing that no person shall be deprived of his 
 property without due process of law (that is to 
 say in accordance with the law of the land as de- 
 fined by the Courts) goes on to state the only case 
 where private property may be seized by the State 
 as follows: "Nor shall private property be taken 
 for public use without just compensation." 
 
 Although not stated expressly, this clause has 
 always been held to mean that private property 
 shall not be taken for any purpose which is not 
 a public purpose. 
 
 Charles River Bridge v. Warren Bridge, 11 
 
 Peters 420, 642. " 
 Cleveland C. C. & St. L. Ry. v. Drainage 
 
 Dist., 213 HI. 83. 
 Washburn Real Property, 6th Ed. Sec. 2050. 
 
 In Charles River Bridge v. Warren Bridge, 11 
 Peters 420, McLean, J., made the statement fre- 
 quently quoted (p. 642) : 
 
 "Although the sovereign power in free 
 governments may appropriate all the prop- 
 erty public as well as private for public pur- 
 poses making compensation therefor, yet it 
 
42 
 
 has never been understood, at least, never in 
 our republic, that the sovereign power can 
 take the private property of A and give it to 
 B by the right of ' eminent domain ' or, that it 
 can take it at all except for public purposes, 
 or that it can take it for public purposes with- 
 out the duty and responsibility of making 
 compensation for the sacrifice of the private 
 property of one, for the good of the whole." 
 
 In Cleveland, C. C. & St. L. Ry. v. Drainage 
 Dist., 213 111. 83, cited above, it was said (p. 85) : 
 
 ''Private property cannot be condemned by 
 a person or corporation on the ground that 
 general prosperity of the state or commun- 
 ity would be promoted thereby, if the title 
 to the property so taken is to be vested in 
 such person or corporation as private prop- 
 erty, to be used and controlled as other prop- 
 erty. ' ' 
 
 Washburn, in his book on Real Property (Sec. 
 2050 cited above), speaking of the right of emi- 
 nent domain, says : 
 
 "But this power does not imply any right 
 on the part of the State to take the property 
 of one citizen and give it to another, whether 
 with or without compensation." 
 
 Here plainly the lands are not taken for a pub- 
 lic purpose, and we believe that no case can be 
 found in the books which would justify a claim 
 that the proposed taking is for a public use. 
 
 An important purpose of the Act is obviously 
 to enable the Government to raise a large sum 
 from the sale of timber, keeping half for its own 
 use and dividing the other half between the State 
 and several of the Counties of Oregon. This, in a 
 sense, might be said to be for the public or at least 
 
43 
 
 for local benefit, for the money will be used to pay 
 expenses of government. But, regarded in this 
 light, the Act of 1916 amounts plainly to illegal 
 taxation. 
 
 The lands themselves will come eventually 
 into the ownership of private individuals; but 
 that is exactly what the Constitution prohibits. 
 It is the taking of the private property of A 
 for the purpose of turning it over (to be used 
 as private propert} r ) to B. To be sure, all of the 
 property of the Oregon & California B. R. Co. is 
 not to be given to one individual — probably it will 
 be distributed to many private persons — but the 
 cutting up of the property makes no difference in 
 principle. 
 
 5. To justify the seizure of lands under the tre- 
 mendous power of eminent domain, there must be 
 a public necessity or expediency for such a course. 
 Otherwise the seizure is invalid. 
 
 Nichols : The Power of Eminent Domain, 
 
 Sec. 291. 
 Story on the Constitution, Sec. 1956. 
 Cooley: Constitution Limitations, p. 756. 
 
 Here there is no necessity whatever for the 
 seizure of the lands except to enable the Govern- 
 ment to sell the timber for its own profit. As for 
 the division of the land among actual settlers — 
 perhaps a duty imposed by the granting acts, but 
 certainly the right of the railroad — that object, in 
 so far as it can be carried out at all, may be ef- 
 fected by the railroad, the owner of the lands, pos- 
 sibly under the direction of the Court, possibly 
 even subject to the directions of the Congress. 
 Seizure of the lands by the Government can only 
 
44 
 
 be desired therefore in order to enable the Gov- 
 ernment to dispose of the lands contrary to the 
 terms of its contract with the railroad! 
 
 6. It is perhaps only as a corollary to the rule 
 just referred to — that private property cannot be 
 seized even for a public purpose unless such a 
 course is necessary — that the courts have held 
 that private property cannot be taken by con- 
 demnation to be used for a purpose to which it 
 has been dedicated already. It amounts merely 
 to the transfer of property from one party to 
 another. 
 
 Gary Library v. Bliss, 151 Mass. 364. 
 Lake Shore etc. Ry. v. Chicago etc. Ry., 97 
 111. 506, 512. 
 
 The Act in question attempts to take lands from 
 the Railroad for the purpose (among others) of 
 enabling the Government to sell it to actual 
 settlers — in other words, what the Railroad might 
 otherwise do itself. 
 
 7. That the Act in question was not intended as 
 an exercise of the power of eminent domain ap- 
 pears further from the fact that no provision is 
 made for the ascertainment of the "just compen- 
 sation" required by the Constitution. It is not a 
 function of the legislative branch of the Govern- 
 ment to fix the amount of compensation due to the 
 owner of property taken for governmental pur- 
 poses. 
 
 Monongahela Nav. Co. v. U. S., 148 U. S. 
 
 312, 327. 
 Story: The Constitution, Sec. 1956. 
 
45 
 
 This question must be determined by an impar- 
 tial tribunal which will give the owner of the prop- 
 erty taken a chance to be heard. 
 
 Cooley: Constitutional Law, p. 375. 
 Monongahela Nav. Co. v. U. S., supra, 
 Charles River Bridge v. Warren Bridge, 11 
 Peters, 420, 571. 
 
 "Just compensation" means of course the fair 
 value of the property taken; and that the mort- 
 gagee does not accept the opinion of the Congress 
 respecting the value of these lands appears suf- 
 ficiently in the earlier parts of this brief. 
 
 8. By the terms of the Act in question, the title 
 to the lands is vested at once in the United States, 
 although the assumed value may not be paid for 
 many years. It has been held that compensation 
 must be made within a reasonable time, and that 
 "the United States are not entitled to possession 
 of the land until the damages have been assessed 
 and actually paid." 
 
 Bauman v. Ross, 167 U. S. 548, 598. 
 Cherokee Nation v. Southern Kansas Ry. 
 Co., 135 U. S. 641, 659. 
 
 F. 
 
 The language of this Court in reference to this 
 case (238 U. S. 393, 411=439) does not furnish any 
 justification for the seizure of the lands by the Gov- 
 ernment or for the destruction or impairment of the 
 mortgage. 
 
 1. The question presented to this Court when 
 this case was argued before was whether the 
 
46 
 
 provisos in the granting acts were conditions sub- 
 sequent, for the breach of which the grants could 
 be forfeited, or only covenants. This court de- 
 cided that the provisos were restrictive cove- 
 nants and stated that they applied to all the lands 
 whether capable of settlement or not. That was 
 as far as this court could go ; but from its examina- 
 tion of the case it must have become apparent that 
 here was a situation of great hardship, affecting 
 not only the railroad but the United States as well, 
 and that the way it should be remedied, and per- 
 haps the only way it could be remedied, was by the 
 action of Congress. It therefore enjoined (tem- 
 porarily) any changes in the property and com- 
 mended the situation to Congress. It seems need- 
 less to add that, under the circumstances (which 
 will be referred to below) there was every reason 
 to suppose that Congress, while perhaps accom- 
 plishing certain purposes for the benefit of the na- 
 tion, would relieve the situation of the railroad 
 and the mortgagee. Certainly there was no reason 
 to expect that the Congress would, by way of rem- 
 edial legislation, confiscate the lands and destroy 
 the lien of the mortgage and the rights which had 
 vested thereunder. 
 
 2. In making the land grant the Government (1) 
 intended to give very substantial aid to the rail- 
 road in order that it might (2) obtain a railroad 
 which would benefit the nation and carry its mails, 
 supplies, troops, etc., and (3) that it might, inci- 
 dentally, get the lands settled and cultivated. The 
 railroad on the other hand expected (1) to receive 
 very substantial aid from the lands and (2) with 
 that aid to build its road and (3) get the lands in 
 
47 
 
 the neighborhood of its road settled and culti- 
 vated. 
 
 3. As a matter of fact when the railroad came 
 to patent its lands all the good lands in the valleys 
 had been taken up already (Defendant's Ex. 258, 
 Record, Vol. 13, 6691; Ex. 259, Record, Vol. 13, 
 p. 6698) ; and the lands which it obtained were 
 in the main covered with timber and unfit for set- 
 tlement. (Record, Vol. IV, 2010, 1946, 1947; Ex. 
 260, Vol. XIII, 6696). Some lands were sold prior 
 to 1887, but they were small in amount (238 U. S. 
 at p. 408). However, by mortgages covering these 
 lands and especially by the mortgage to the Union 
 Trust Company in 1887, funds were obtained for 
 the completion of the road (238 U. S. at p. 435; 
 Stipulation Item 21, Record, Vol. IV, p. 1575). 
 
 Thus the great end desired by the Government 
 was obtained; but the anticipated "aid" to the 
 railroad had not been given. In later years some 
 of the timber lands were sold in rather large tracts 
 (238 U. S. at p. 408) — the only possible way — but 
 the expenses of taking care of the lands and the 
 taxes have been great (Ex. 320, Record, Vol. 13, 
 p. 7167), while the railroads have been carrying, 
 and must continue to carry, the troops, etc., of 
 the United States without compensation (Record, 
 Vol. 5, p. 2405-11, 2146). 
 
 The "aid" expected from the government has 
 not been received and the mortgage upon the lands, 
 representing the loan made by foreign investors 
 remains unpaid! 
 
 4. Although the government lias thus obtained 
 its main purpose, its incidental purpose has not 
 been accomplished. Why? 
 
48 
 
 Because most of the lands are covered with tim- 
 ber and are incapable of cultivation and settle- 
 ment, at least before the timber is removed; and 
 therefore the lands cannot be sold to "actual set- 
 tlers." Thus the ill considered provisos in the 
 grants are preventing the government from ob- 
 taining its purpose and depriving the railroad of 
 the "aid" to which it is entitled. 
 
 5. Since the "provisos" of the land grant which 
 this court was asked to construe were, if read lit- 
 erally and strictly, entirely inapplicable to a grant 
 of timber lands, and because the literal reading 
 of them would lead to a result more or less unsat- 
 isfactory to all the parties, this Court was urged 
 to add to their terms qualifications and limitations 
 which as a practical matter would make them work- 
 able. The railroad claimed that the restriction of 
 sales of "lands" to "actual settlers" upon the 
 terms defined should be construed as referring to 
 "lands susceptible of settlement" — that it should 
 not be supposed that Congress in an act to "aid" 
 the railroad would insert a clause preventing the 
 railroad from disposing of a large part of its lands 
 at all; the Government of the United States ar- 
 gued for an addition to the terms of these provisos 
 in effect that upon a breach of the covenant the 
 United States might re-enter and forfeit the lands ; 
 the interveners and cross complainants asked for 
 an amplification of the terms of the provisos which 
 would constitute the railroad not the absolute 
 owner of the lands but a trustee thereof. 
 
 All of tliese contentions the court rejected and 
 it construed the provisos strictly and literally say- 
 ing (238 U. S. at p. 422) : 
 
 "The grants must be taken as they were 
 given. Assent to them, was required and 
 
49 
 
 made and we can not import a different 
 measure of the requirement and the assent 
 than the language of the act expresses." 
 
 This Court referred to the more or less obvious 
 hardships which this construction might impose 
 upon the railroad but said (238 U. S. at p. 423) : 
 
 "Granting the obstacles and infirmities, 
 they were but promptings and reasons for an 
 appeal to Congress to relax the law"; 
 
 and again (at p. 435) : 
 
 "Whatever the difficulties of performance, 
 relief could have been applied for and, it might 
 be, have been secured through an appeal to 
 Congress." 
 
 This Court referred to its own inability to 
 grant relief, saying (238 U. S. at p. 436) : 
 
 "We can only enforce the provisos as 
 written, not relieve from them." 
 
 and adding (p. 436) : 
 
 ' ' For the same reason we cannot at the in- 
 stance of the Government give a greater sanc- 
 tion to them than Congress intended, nor give 
 to cross complainants and intervenors a right 
 which the granting acts did not confer upon 
 them. ' ' 
 
 6. This Court, being thus constrained to give an 
 interpretation to the provisos which was unsat- 
 isfactory to all the parties (and which in effect 
 might prevent the settlement of the lands — the 
 incidental purpose of the Government — and pre- 
 vent the railroad from receiving the "aid" from 
 the Government upon the promise of which the 
 railroad was built) very naturally referred the 
 
50 
 
 questions presented to Congress — having first 
 pointed out that the railroad should have appeal- 
 ed to Congress "to relax the law" long before. 
 The object of this Court was, we believe, to afford 
 the Congress an opportunity to relax the law and 
 to provide a method by which the granted lands 
 could be administered for the greater advantage 
 of all concerned. 
 
 7. The scope of legislation which the Congress 
 might have been expected to enact would of course 
 depend largely upon the disposition of that power- 
 ful body. It would be supposed, however, that the 
 Congress would either (1) change the contract of 
 the Government with the railroad and take away 
 the vested rights of the railroad and the mortgagee 
 but only upon condition that the Act be consented 
 to by the railroad and the mortgagee, or (2) at- 
 tempt to change the terms of the covenants, but 
 only in such a way as not to effect the purpose of 
 the grant or take away vested rights. 
 
 Such legislation would naturally provide for a 
 classification of the lands, determining what lands 
 if any are now ready to be sold to "actual 
 settlers ' ' and what lands can be sold thus only after 
 the timber is removed; defining who should be 
 considered to be "actual settlers"; providing for 
 the removal of the timber by the railroad (the 
 owner) from such lands as would thus be render- 
 ed capable of actual settlement, and the subse- 
 quent sale of the lands to "actual settlers"; and 
 further providing for the disposition of those 
 lands owned by the railroad which can never, be- 
 cause of their character, be sold to actual settlers. 
 
51 
 
 8. Instead of proceeding on any such lines, the 
 Congress has passed an Act one of the main pur- 
 poses of which (if not the main purpose) is to se- 
 cure large sums of money for itself, and which dis- 
 poses of the problems presented to it in almost 
 complete disregard not only of the moral rights, 
 but of the indefeasible property rights of the rail- 
 road and the mortgagee, trustee for bondholders. 
 
 9. Perhaps the claim will be made by the Govern- 
 ment that this court in suggesting legislation 
 which would "secure to the railroad company all 
 the value conferred by the granting acts ' ' has ad- 
 judged that "all the value" does not exceed $2.50 
 an acre. This Court decided nothing of the sort. 
 It did not hold that the railroad had nothing but 
 a power of sale, but on the contrary that it had 
 the full ownership of the lands without any im- 
 plied limitations and including the power of sale 
 although with certain restrictions upon that 
 power. This Court said (238 U. S. at p. 434) : 
 
 "There was a complete and absolute grant 
 to the railroad company with power to sell, 
 limited only as prescribed, and we agree with 
 the Government that the company 'might 
 choose the actual settler; might sell for any 
 price not exceeding $2.50 an acre; might sell 
 in quanties of 40, 60 or 100 acres, or any 
 amount not exceeding 160 acres." 
 
 And again (238 II. S. at p. 432) : 
 
 "The Acts of Congress omit regulation. 
 Their language is not directive; it is restric- 
 tive only. With this exception the grant is 
 unqualified." (Italics ours.) 
 
52 
 POINT II. 
 
 THE OWNER OF THESE LANDS 
 HAS THE UNQUALIFIED RIGHT TO 
 THEIR USE, INCLUDING THE RIGHT 
 TO THE TIMBER THEREON, AT 
 LEAST SO FAR AS SUCH USE WILL 
 NOT PREVENT THE SALE OF THE 
 LANDS TO ACTUAL SETTLERS. 
 
 1. Practically all of the granted lands which re- 
 main unsold are covered with timber, and it is 
 the purpose of the Government under the act of 
 June 9, 1916, first to strip these lands of the 
 timber and subsequently to offer them for settle- 
 ment. The evidence shows (1) that a large part 
 of these lands would not be fit for cultivation even 
 if cleared of the timber, and (2) that another 
 large part of these lands, although susceptible of 
 cultivation after the timber is removed, cannot 
 be settled upon and cultivated until after such 
 removal. 
 
 (See brief for Union Trust Company upon the 
 first argument in this Court, pages 31-77). 
 
 As to just how much of the land can never be 
 cultivated and how much cannot be settled until 
 the timber has been removed, there is room for 
 dispute, but that there is a considerable quantity 
 of lands of both kinds must be conceded. 
 
 2. That these lands were chiefly valuable for 
 timber was clearly recognized by this Court upon 
 the former appeal, for it wrote : 
 
 4 ' It is however clear even from the Govern- 
 ment 's summary of the evidence that lands 
 which may be fit for cultivation have a greater 
 value on account of the timber which is upon 
 
53 
 
 them. Besides for our present purposes we 
 may accept the assertion of the defendants." 
 (238 U. S. at p. 438.) 
 
 The "assertion of the defendants" thus re- 
 ferred to appears just before (pp. 437-8) in the 
 opinion, as follows : 
 
 "In answering, the defendants averred 
 * * * that the lands were chiefly and in most 
 instances solely of value because of the 
 timber thereon and are not fit for actual set- 
 tlement. And, further, that the lands capa- 
 ble of actual settlement and the establish- 
 ment of homes thereon at no time 'exceeded 
 (approximately) 300,000 acres, consisting of 
 small and widely separated tracts, all of 
 which were sold to actual settlers,' etc." 
 
 It was with a full understanding, therefore, 
 that a large part of the lands could not be sold 
 to actual settlers, that this Court decided that the 
 restrictive covenants must be held to apply to all 
 the lands — in other words that some of these lands 
 could not be sold for a very long time, and others 
 not at all. 
 
 3. The question now presented is whether the 
 Railroad can use the timber upon these lands un- 
 til such times as they may be sold. 
 
 This question is of the greatest importance to 
 the Union Trust Company as trustee for bond- 
 holders, for all the rights of the railroad in the 
 lands have been mortgaged to it, and, if the timber 
 can be used by the present owner or by a pur- 
 chaser upon foreclosure sale, then the bonds 
 which it represents will surely be paid — without 
 dependence upon the financial situation or pros- 
 perity of the railroads. These bondholders who 
 
54 
 
 advanced their money to construct this road upon 
 the security of these lands, are, we respectfully 
 urge, entitled to every bit of value which belongs 
 to the security. 
 
 This question — the right of the owner to use the 
 timber — received very little consideration at the 
 time of the decision of the first appeal in this case. 
 It seems to have been taken for granted that the 
 right to use the timber was an incident of owner- 
 ship, and the question argued at length was as to 
 which party was entitled to own the land, the 
 railroad or the United States. 
 
 Now however the question is sharply presented 
 in two ways : 
 
 (a) By the decree of the District Court upon 
 the mandate of this Court, which permanently en- 
 joins the cutting of timber, and 
 
 (b) By Act of Congress of June 9, 1916, by 
 which the Government has attempted to seize the 
 lands and sell the timber for its own profit. 
 
 If the owner of the lands has the right to cut 
 the timber, it follows, not only that the decree 
 entered in the District Court is erroneous, but 
 also that the Act of Congress is invalid. 
 
 We shall proceed therefore to discuss the ques- 
 tion as to whether the owner of the lands or the 
 Government has the right to use the timber, as 
 it is of vital importance upon both points. 
 
55 
 A. 
 
 This court certainly did not decide that the owner 
 could not use the timber, but, on the contrary, in- 
 timated that it could do so. 
 
 1. To establish that the Decree of the District 
 Court did not follow the decision of this Court, 
 but on the contrary contained very important pro- 
 visions in no way sanctioned by this Court, needs 
 no argument whatever. It is only necessary to 
 arrange side by side (1) the carefully framed 
 conclusions of this Court as stated in the opinion 
 and (2) the provisions of the decree as entered. 
 
 [We omit from the comparison, Sections 1, 5, 6 
 and 7 of the decree.] 
 
 Opinion of Supreme 
 Court 
 
 (238 U. S. 393, 438) 
 
 "That 
 company 
 
 the railroad 
 
 Decree as Entered 
 
 "2. That the defend- 
 ants and their respec- 
 tive officers and agents 
 
 "should not only be "be and each is hereby 
 
 "enjoined from sales 
 (referring to "lands") 
 
 "enjoined from selling 
 the lands or any part 
 thereof granted either 
 by the Act of Congress 
 approved July 25, 1866, 
 as amended by the Act 
 of Congress of April 10, 
 1869, or by the Act of 
 Congress approved May 
 4, 1870, whether the said 
 lands be situated within 
 
56 
 
 i l in violation 
 covenants, 
 
 of the 
 
 "but" the 
 Company 
 
 Bail road 
 
 the place or indemnity 
 limits of the grants 
 thereby made, 
 
 "to any person not an 
 actual settler on the 
 land sold to him, or in 
 quantities greater than 
 one-quarter section to 
 one purchaser, or for a 
 price exceeding $2.50 
 per acre ; 
 
 "and from selling any 
 of the timber on said 
 lands, or any mineral 
 or other deposits there- 
 in, except as a part of 
 and in conjunction with 
 the land on which the 
 timber stands or in 
 which the mineral or 
 other deposits are 
 found ; and from cutting 
 or removing or author- 
 izing the cutting or re- 
 moval of any of the tim- 
 ber thereon ; or from re- 
 moving or authorizing 
 the removal of mineral 
 or other deposits there- 
 in, except in connection 
 with the sale of the land 
 bearing the timber or 
 containing the mineral 
 or other deposits." 
 
 "3. That the defend- 
 ants and their respec- 
 tive officers and agents 
 
 should be 
 
 ! be, and each is hereby 
 
57 
 
 "enjoined from any 
 disposition of them 
 whatever" (referring to 
 the lands) 
 
 "enjoined from making 
 or agreeing to make, 
 either directly or indi- 
 rectly, any disposition 
 whatsoever of said 
 lands or of any part 
 thereof 
 
 "and from cutting or 
 authorizing the cutting 
 or removal of any of the 
 timber thereon. 
 
 ' ' or of the timber there- " or of the timber there- 
 on on 
 
 ' ' or any part thereof 
 
 "or of any mineral or 
 other deposits therein; 
 
 1 ' from cutting, remov- 
 ing or authorizing the 
 cutting or removal of 
 the timber thereon 
 
 "or any part thereof 
 
 "from removing or au- 
 thorizing the removal of 
 mineral or other de- 
 posits therein ; and 
 from disposing of, re- 
 ceiving or exerting any 
 control over any money 
 which arose, or may 
 hereafter arise, from 
 said lands, either 
 through sales thereof or 
 of timber thereon, or 
 through condemnation 
 proceedings or other- 
 wise, and now on de- 
 posit, or which mav 
 hereafter be placed on 
 deposit, w T ith any bank, 
 clerk of court, or other 
 institution or person, to 
 
58 
 
 wait the final decision of 
 the Supreme Court of 
 the United States in this 
 
 case 
 
 "until congress shall 
 have a reasonable 
 opportunity to provide 
 by legislation 
 
 "for their disposition 
 
 "in accordance with 
 such policy as it may 
 deem fitting under the 
 circumstances and at the 
 same time secure to the 
 defendants all the value 
 the granting acts con- 
 ferred upon the rail- 
 road. 
 
 "If Congress does not 
 make such provision 
 
 "until Congress shall 
 have a reasonable op- 
 portunity to make pro- 
 vision by legislation 
 
 "for the disposition of 
 said lands, timber, 
 
 ' ' money, mineral or 
 deposits 
 
 ' ' in accordance with 
 such policy as Congress 
 may deem fitting, under 
 the circumstances, and 
 at the same time secure 
 to the defendants all the 
 value that the said 
 granting acts conferred 
 upon the grantees. 
 
 "4. That if Congress 
 does not make provision 
 for the disposition as 
 aforesaid of said lands 
 timber. 
 
 "the defendants may 
 aprnv to the District 
 Court within a reason- 
 able time, not less than 
 six months, from the 
 entrv of the deoree here- 
 in, for a modification of 
 
 "money, timber, min- 
 eral or other deposits 
 
 ' ' the defendants may 
 apply to the court with- 
 in a reasonable time, but 
 not less than six months 
 from the entry of this 
 decree, for a modifica- 
 tion of so much of the 
 
59 
 
 so much of the injunc- 
 tion herein ordered as 
 enjoins any disposition 
 
 injunction herein or- 
 dered as forbids any 
 disposition 
 
 "of the lands and tim- "of the said lands, 
 ber timber 
 
 "money, mineral or 
 other deposits, or any 
 part thereof 
 
 "until Congress shall "until Congress shall 
 act. act 
 
 4 ' and the court in its dis- 
 cretion may modify the 
 decree accordingly" 
 
 "and the court hereby 
 reserves the right to 
 modify this decree in 
 that regard if, in its 
 opinion, good cause 
 shall then exist for do- 
 ing so." 
 
 2. From the comparison above, it is obvious that 
 to the permanent injunction against sales of the 
 lands, contrary to the terms of the covenant, as 
 directed by this Court, there has been added a 
 permanent injunction against the use of said lands 
 at least so far as relates to the taking of timber 
 and minerals; also that to the temporary injunc- 
 tion against any sales of the lands (whether con- 
 trary to the covenant or not) or the timber there- 
 on, as directed by this Court, there has been 
 added an injunction against the removal of any 
 mineral or other deposits in the land, and further 
 an injunction against disposing of, receiving or 
 exerting any control over any moneys received 
 
60 
 
 from sales of land or timber (although not in vio- 
 lation of any covenant). 
 
 3. It is not necessary to refer to the briefs sub- 
 mitted or to the earlier parts of the opinion of this 
 Court to show that this Court was fully aware of 
 the fact that the timber on these lands is valuable 
 and that it understood perfectly that it would be 
 quite possible, if the lands were not sold, to use and 
 cut timber and remove minerals and other deposits 
 therefrom ; it is sufficient to refer to its conclusions 
 as stated at the end of the opinion. It there ap- 
 pears that in order to preserve the lands exactly 
 as they were pending legislation, this Court di- 
 rected that not only should the Railroad perman- 
 ently "be enjoined from sales" {i. e., of the lands, 
 which had been the subject under consideration) 
 "in violation of the covenants, but enjoined from 
 any disposition of them" (i. e., the lands just re- 
 ferred to) "whatever, or of the timber thereon, 
 and from the cutting or authorizing the cutting or 
 removal of any of the timber thereon, until, etc." 
 
 Thus so far as the permanent injunction was 
 concerned — the determination of the rights of the 
 parties as limited by the covenants — this Court, 
 having immediately in mind the possibility of re- 
 moving timber, enjoined sales of the lands only, 
 making no limitation except temporarily upon the 
 right to use the timber. 
 
 This followed naturally from the keynote of 
 the opinion: that the covenant must be given its 
 literal meaning, harsh as the effect might be upon 
 the railroad, and unsatisfactorily as such a con- 
 struction might be to the Government and also to 
 the cross-complainants and intervenors all of whom 
 wished to have its terms added to or enlarged; 
 
61 
 
 that although Congress might relax the severity 
 of the covenant this Court could not; that the rail- 
 road could not sell any lands except in accordance 
 with the terms of this restrictive covenant, but 
 that "there was a complete and absolute grant to 
 the Railroad Company with power to sell, limited 
 only as prescribed" (italics ours) and that "with 
 this exception the grant is unqualified" (238 U. S. 
 at pp. 434, 432, Record, Vol. 1, pp. 154, 151). 
 
 If Congress should not legislate on the subject, 
 it was contemplated, we submit, that the tem- 
 porary injunction against "any disposition" of 
 lands or timber would be vacated. There would 
 then remain as the final judgment (if the decree 
 of the District Court had been entered in compli- 
 ance with the opinion of this court) a permanent 
 injunction against a sale of the lands except in ac- 
 cordance with the covenant, but with no restraint 
 upon the use of the lands, or the preparation of 
 the lands for sale. 
 
 If this Court had intended in its carefully 
 framed conclusions to decide that the railroad 
 should be permanently enjoined from any sales of 
 the lands and also from any use of the timber or 
 minerals (i. e., as has now been adjudged in the 
 decree) hoiv simple it would have been to say so! 
 Instead, in very sharp contrast, and in the very 
 next clause, this Court has pointed out that the 
 temporary injunction should be against any dis- 
 position of land or timber. The conclusion 
 seems irresistable that this Court has decided, in 
 effect, that the covenant which restricts the sale 
 of the lands does not affect the rights of the 
 owTier to use the timber. 
 
62 
 B. 
 
 The right of an owner to use his property should 
 not be destroyed in any way or even restricted except 
 for a most compelling reason. 
 
 1. If it can be said that the right of the owner to 
 cut timber has not been decided already by this 
 Court, we believe there can be little doubt as to 
 its decision now in view of the construction which 
 it has given already to the covenant, and in view 
 of the law denning a person's right to the use of 
 his property. 
 
 2. The Railroad paid the price for these lands 
 and became the absolute owner thereof. The pro- 
 visos were a restriction upon the power of sale, 
 but, except as its power to dispose of the lands 
 was thus limited, its rights in the lands became the 
 same as those of other owners of real property. As 
 often as has been necessary, courts have declared 
 that the rights of an owner in his property are 
 unlimited — except by the maxim which requires 
 that one must not use his own property in such 
 a way as to injure another. (Reeves' Law of 
 Real Property, Sec. 423.) Here the Railroad is 
 bound, in addition, to use its lands in such a way 
 as not to violate the proviso, but, except as the 
 proviso may require that the timber shall not be 
 cut, its rights as an owner are unlimited. It fol- 
 lows that if the covenant was restrictive, as we 
 believe this court has determined, then the Rail- 
 road may use the lands in any way and cut the 
 timber therefrom until such times as the lands 
 shall be sold. If, on the other hand, it could be 
 
63 
 
 said that the covenants are not "restrictive only" 
 but impose an affirmative obligation on the Rail- 
 road to sell, then, at the least the Railroad may 
 use the timber unless such use would prevent its 
 compliance with the covenant. 
 
 The situation is somewhat similar to that of a 
 tenant for life or for a term of years who holds 
 under an implied covenant to surrender the land 
 at the end of the term in as good condition as 
 when he received it. Except as limited by the 
 implied covenant, the tenant may use the land as 
 he pleases and remove timber therefrom. 
 
 3. Unquestionably the grant of lands by the 
 Government vested in the grantee all the rights of 
 complete ownership. Among such rights are in- 
 cluded, of course, the right to cut the timber. 
 
 Certainly the United States has not retained any 
 rights in the timber. It has parted with the lands 
 by an absolute grant and for a valuable considera- 
 tion. {Burke v. Southern Pacific R. R. Co., 234 U. 
 S., at p. 679). If it can be argued that the timber 
 belongs to any one other than the Railroad Com- 
 pany, the argument must relate to the claims of 
 prospective settlers, but this court has expressly 
 decided that the prospective settlers (intervenors 
 and cross-complainants in this case) have no 
 rights in the timber. 
 
 4. The granting acts are clear enough in their 
 terms so far as timber is concerned. They grant 
 lands to the Railroad (which, of course, includes 
 the timber) ; and whereas, if it had been intended 
 to cut down the grant by taking away its possible 
 use, the acts might have excepted from the op- 
 eration of the grants the timber upon the lands. 
 
64 
 
 yet it is noticeable that there is no sign whatever 
 of any such exception of the timber from the 
 grant. It should be noticed, further, in this con- 
 nection, that the Acts which it passed show that 
 the Congress had clearly in mind (1) the possibil- 
 ity of making exceptions from the grant and (2) 
 the value of timber ; for it expressly excepted min- 
 eral lands from the grants and conveyed to the 
 Railroad the right to use for the construction of 
 the road timber taken from such mineral lands. 
 
 If the Congress had intended to except the tim- 
 ber from the grant, it could only have been ac- 
 complished by an exception similar to that applied 
 to the mineral lands. 
 
 It should be noticed in this connection that al- 
 though mineral lands were excepted from the 
 land grants, it was expressly provided that "the 
 term mineral lands shall not include lands con- 
 taining coal and iron". That such lands could 
 not be sold to actual settlers — tillers of the soil 
 — but might be very valuable in the construction 
 and subsequent operation of the Railroad is obvi- 
 ous, and the only possible conclusion is that the 
 Congress in accomplishing the primary purpose 
 of the grants to aid the construction of the Rail- 
 road, intended and expected that the Railroad 
 should have the use of all valuable things in or 
 upon the land excepting only the minerals (pre- 
 cious metals) which were especially excepted. 
 
 A sidelight on how an Act should be framed, 
 which is intended to deprive the owner of land of 
 the use of timber upon it, is found in Section 3 of 
 the Act of Congress of June 9, 1916, relating to 
 this very land, which provides that any person 
 entering mineral lands "shall not acquire title to 
 timber." 
 
65 
 
 5. We have said above that the only term of the 
 land grant (the contract between the Government 
 and the Railroad) which can be claimed to cut 
 down the right to use the lands is the covenant 
 which has been construed already by this Court; 
 and that no construction of the covenant warrants 
 the reading into it of a clause depriving the owner 
 of the right to use or sell the timber. In addition, 
 we should point out that this Court has already 
 in construing this covenant held firmly that it 
 would not permit any qualification or addition to 
 its terms, (although a literal construction might 
 and probably would, involve great hardship.) This 
 Court has said (238 U. S. at pp. 434, 432) that the 
 grants constitute "a complete and absolute grant 
 to the Railroad Company with power to sell lim- 
 ited only as prescribed", and (referring to the re- 
 strictive language of the provisos) that "with this 
 exception the grant is unqualified. (Italics ours.) 
 Yet the Government would now have this Court 
 insert in the covenant contained in the granting 
 acts, another restrict ion of great importance. In 
 brief, to the proviso which reads : 
 
 "And provided further that the lands 
 granted by the act aforesaid shall be sold to 
 actual settlers only in quantities not greater 
 than one-quarter section to one purchaser and 
 for a price not exceeding $2.50 per acre;" 
 
 the Government seeks to have added something 
 like the following: 
 
 And provided further that until such times 
 us the hinds are sold hy the Railroad, even if 
 they arc never sold, the Railroad shall not. 
 use the lands in any way or the timber, coal, 
 iron and stone thereon! 
 
66 
 
 6. An examination of the authorities will dis- 
 close cases illustrating the limitation upon the 
 rights of a tenant for life, etc., to use timber; and 
 there are well considered cases in this Court es- 
 tablishing the rights to the timber of those to 
 whose estate a condition subsequent is annexed. 
 
 Schulenberg v. Harriman, 21 Wall, 44. 
 Railroad Land Co. v. Court right, 21 Wall, 
 
 310. 
 United States v. Loughrey, 172 U. S. 206. 
 United States v. Tennessee d Coosa R. R., 
 
 176 U. S. 242. 
 
 There are also cases in the State courts holding 
 that the owner of a determinable fee is entitled to 
 use the products of the lands. 
 
 Gannon v. Peterson, 193 111. 372. 
 Faraton v. Green, 108 N. C. 339. 
 
 The books, however, will be searched in vain, 
 we believe, for any case which will justify the 
 claim now made by the Government that the owner 
 of a "complete and absolute grant" can be de- 
 prived of the right to use the timber growing upon 
 his lands. 
 
 C. 
 
 The owner, having all the burdens and obligations, 
 should have all the rights and privileges of proprietor^ 
 ship. 
 
 1. An "actual settler" is one who actually re- 
 sides upon the land and for agricultural purposes. 
 
67 
 
 (Peterson v. First Division, St. Paul, etc., R. R. 
 Co., 27 Minn. 218; Stroud v. Missouri River, 
 etc., R. R. Co., 4 Dillon 396, 403). 
 
 There is a large amount of these lands which 
 can never be used for agricultural purposes and 
 which, therefore, can never be sold under the terms 
 of the provisos. There are, moreover, other lands 
 which are very heavily timbered, from which the 
 timber cannot be removed except at great cost, 
 and which cannot be sold, therefore, to actual set- 
 tlers under the terms of the provisos until the 
 timber has first been removed. (Under the Act 
 of June 9, 1916, the Government proposes to sell 
 this timber and have it removed as a preliminary 
 to disposing of the lands.) Moreover, it is no 
 small matter to remove this timber; for 
 
 4k Xo man would be willing to subjugate this 
 piece of forest for the mere sake of cultivating 
 it"; (See United States v. Budd, 144 U. S., 
 154, at pp. 167, 168). 
 
 and these lands can be cleared from timber only 
 when the lands or timber thereon are sold in large 
 quantities. 
 
 It follows from the above that the railroad hav- 
 ing constructed its line at the instance and for 
 the benefit of the United States, will be prevented 
 from selling these lands in compliance with the 
 provisos ; and, in so far as it may receive any ben- 
 efit whatever from their ownership, it must be 
 only such incidental advantages as are derived 
 from the occupation of the lands and the use of 
 the timber, coal, iron, etc. 
 
 2. During the forty years or more that the Rail- 
 road has owned them, these lands have been sub- 
 
68 
 
 jected to heavy taxation in the State of Ore- 
 gon. Had the lands been owned by the 
 United States there could have been no taxation 
 by the State, and if the timber thereon (the only, 
 value) had belonged to the United States, the Rail- 
 road would have been spared most of these ex- 
 penses. Moreover, during all these years the 
 Railroad has had the duty of watching over these 
 lands and protecting them from fire and trespass. 
 If the Railroad had not thus defended its lands 
 against depredations and destruction, much of the 
 timber would have been destroyed already. The 
 cost of such protection for a small tract may not 
 be considerable ; for this great tract of land it has 
 amounted to great sums. Yet it is now claimed 
 that this timber which was conveyed by the Gov- 
 ernment for a valuable consideration to the Rail- 
 road and over which the Railroad has ever since 
 performed all the duties of ownership, including 
 the payment of taxes, is now of no value whatever 
 to the railroad as it cannot be permitted in any 
 way to use its own property ! 
 
 3. Without regard to the provisos of the land 
 grants, it would seem only a matter of simple jus- 
 tice to permit the one who must bear the bur- 
 dens of ownership of real property to receive the 
 advantages therefrom. To the mortgagee a con- 
 trary ruling seems especially harsh because the 
 taxes, based upon the value of the lands with tim- 
 ber thereon, have been accumulating for some time 
 and they are a lien prior to that of the mortgage ; 
 so that it follows that, if the Railroad, being pre- 
 vented from selling the lands by the provisos, can- 
 not make any use of them, the security, upon which 
 in large part the bondholders advanced their 
 
69 
 
 money for the construction of the Railroad, will 
 be lost. 
 
 D. 
 
 The main purpose of the grant would be defeated 
 if the railroad should be deprived of the right to use 
 the timber while it remains the owner of the lands. 
 
 1. As this Court has already determined, the 
 paramount purpose of the land grants was to ob- 
 tain the construction of the Railroad, and it should 
 follow that (since the Railroad could hardly have 
 been constructed without the land grants) a 
 most important part of that purpose was to 
 furnish aid to the Railroad. A small amount of 
 lands only have been sold in accordance with the 
 provisos, and, although some lands have been sold 
 in greater quantities and for greater prices than 
 required by the provisos, it is apparent, from the 
 terms of the Act of 1916, that the Government 
 intends to claim against the Railroad all amounts 
 received for the lands in excess of $2.50 an acre. 
 Meanwhile, the cost of taking care of the lands 
 and preserving the timber, together with the 
 taxes which have been paid, have amounted to 
 very great sums. The lands now remaining, be- 
 cause covered by timber or otherwise, cannot be 
 sold in compliance with the covenant. It fol- 
 lows necessarily that, unless the timber on these 
 lands can be cut by the Railroad, it can derive 
 no substantial profit from the lands, although 
 obliged to continue payment of taxes to the State 
 
70 
 
 and to transport munitions, troops, etc., for the 
 Government without charge. 
 
 2. If this result is reached, the Government will 
 have obtained what it sought to purchase ; but the 
 railroad will never receive the price which the 
 Government undertook to pay (to wit, "aid" 
 through the granted lands), but will be saddled 
 instead with a permanent burden. 
 
 E. 
 
 The covenant relating to the sale of lands is re- 
 strictive only; the railroad is not compelled to sell the 
 lands. 
 
 1. This Court has decided already, we under- 
 stand, that the terms of the proviso limiting the 
 exercise of the power of sale are restrictive. It 
 has said (238 U. S. at p. 432; italics ours) : 
 
 "The acts of Congress omit regulation. 
 The language is not directive ; it is restrictive 
 only. With this exception, the grant is un- 
 qualified. ' ' 
 
 and (at p. 416) : 
 
 "There was also the purpose to restrict 
 the sale of the granted lands to actual set- 
 tlers." 
 
 and (at p. 418) : 
 
 "The contention encounters the Govern- 
 ment's admission that there was no obliga- 
 tion imposed upon the Railroad to sell." 
 
71 
 
 and (at p. 434) : 
 
 "When the granted lands were withdrawn 
 from those laws (public land laws) and prim- 
 arily devoted to anotner purpose they were 
 committed to another power to be admin- 
 istered for such purpose, and a discretion in 
 the exercise of the power, within the restric- 
 tion imposed, was necessarily conferred." 
 
 and (at p. 434): 
 
 "There was a complete and absolute grant 
 to the Railroad Company with power to sell 
 limited only as prescribed and we agree with 
 the Government that the Company 'might 
 choose the actual settler and sell for any 
 price not exceeding $2.50' an acre ; might sell 
 in quantities of 40, 60, or 100 acres, or any 
 amount not exceeding 160 acres.' " 
 
 That a covenant to sell to "actual settlers 
 only," — like a deed to use land for a certain pur- 
 pose only — does not imply an affirmative obliga- 
 tion to sell the lands or use the property, seems 
 too plain for argument. 
 
 See Madore's Appeal, 129 Penn St., 15, 25. 
 
 2. We urge therefore that since the covenants are 
 restrictive and there is no obligation upon the 
 railroad to sell the lands, it may use them, until 
 they are sold, in any way for its advantage. It 
 is important however to notice that, even if 
 there is an affirmative obligation upon the rail- 
 road to sell the lands, it should be within its 
 power, not only to do whatever will be of as- 
 sistance in selling the lands (as for instance the 
 clearing of the timber from the lands), but also 
 to exercise every right of ownership over the 
 
72 
 
 lands which will not prevent sales thereof in ac- 
 cordance with the provisos. If the removal of 
 any of the timber would prevent compliance with 
 the terms of the covenant, the burden should be 
 upon the Government to establish that fact. This, 
 it would seem, they are estopped from doing by 
 the very terms of the Act of June 9, 1916, which 
 provides for the cutting of the timber in order to 
 prepare the lands for sale — thus confirming the 
 evidence, which is to be found in the record of 
 this case, as to the desirability of removing the 
 timber. 
 
 POINT III. 
 
 Tlie decree should not have award- 
 ed costs ag-ainst the Union Trust 
 Company individually and as Trus- 
 tee. 
 
 At the time this suit was brought the Govern- 
 ment would not have been satisfied with strict 
 compliance with the provisos in the grants; the 
 purpose of the suit was to have the lands for- 
 feited and the lien of the mortgage cancelled. 
 Except for this purpose, it was unnecessary to 
 make the Union Trust Company a party at all. 
 The Trust Company was, of course, bound to re- 
 sist this claim and did so successfully, the decree 
 of the District Court being reversed by this Court. 
 
 The decree entered upon the mandate of this 
 Court, to be sure, enjoins all the defendants from 
 selling the lands, but in this respect it departs 
 from the opinion of this Court, which directed 
 
73 
 
 only an injunction against the defendant railroad 
 company. Upon such a record there was no jus- 
 tification for the imposition of costs upon the de- 
 fendant Union Trust Company. 
 
 CONCLUSION. 
 
 For the reasons stated above, the Act of June 9, 
 1916, should be adjudged invalid; and the decree ap= 
 pealed from should be modified so as to conform to the 
 mandate of this Court, and especially so as to enjoin 
 only sales of the lands contrary to the terms of the 
 covenants, without prejudice to the rights of the 
 railroad and the mortgagee to use the lands and the 
 timber thereon and the coal and iron therein. 
 
 Dolph, Mallory, Simon & G-earin, 
 Miller, King, Lane & Trafford, 
 Solicitors for Defendant and Appel- 
 lant, Union Trust Company of 
 New York. 
 
 Perry D. Trafford, 
 Of Counsel. 
 
75 
 Appendix A. 
 
 ACT OF CONGRESS OF JUNE 9, 1916, COMMON- 
 LY KNOWN AS THE FERRIS ACT. 
 
 [Public — No. 86 — 64th Congress.] 
 [H. R. 14864.] 
 
 An Act To alter and amend an Act entitled "An 
 Act granting lands to aid in the construction of a 
 railroad and telegraph line from the Central Pa- 
 cific Railroad, in California, to Portland, in Ore- 
 gon," approved July twenty -fifth, eighteen hun- 
 dred and sixty-six, as amended by the Acts of 
 eighteen hundred and sixty-eight and eighteen 
 hundred and sixty-nine, and to alter and amend 
 an Act entitled "An Act granting lands to aid in 
 the construction of a railroad and telegraph line 
 from Portland to Astoria and McMinnville, in the 
 State of Oregon," approved May fourth, eighteen 
 hundred and seventy, and for other purposes. 
 
 Whereas by the Acts of Congress approved April 
 tenth, eighteen hundred and sixty-nine (Four- 
 teenth Statutes at Large, page two hundred and 
 thirty-nine), and May fourth, eighteen hundred 
 and seventy (Sixteen Statutes at Large, page 
 ninety-four), it was provided that the lands 
 granted to aid in the construction of certain 
 railroads from Portland, in the State of Oregon, 
 to the northern boundary of the State of Cali- 
 fornia, and from Portland to Astoria and Mc- 
 Minnville, in the State of Oregon, should be sold 
 to actual settlers only, in quantities not exceed- 
 ing one hundred and sixty acres to each person 
 and at prices not greater than $2.50 per acre; 
 and 
 
7G 
 
 Whereas the Oregon and California Railroad 
 Company, beneficiary of said acts, has violated 
 the terms under which the said lands were 
 granted by selling certain of said lands to per- 
 sons other than actual settlers, by selling in quan- 
 tities of more than one-quarter section to each 
 person, by selling at prices in excess of $2.50 
 per acre, and by refusing to sell any further 
 portions of such lands to actual settlers at any 
 price, and in so doing has willfully violated the 
 terms of the statutes by which the said lands 
 were granted; and 
 
 Whereas in the suit instituted by the Attorney- 
 General of the United States, pursuant to the 
 authority and direction contained in the joint 
 resolution of April thirtieth, nineteen hundred 
 and eight (Thirty-fifth Statutes at Large, page 
 five hundred and seventy-one), the Supreme 
 Court of the United States, in its decision ren- 
 dered June twenty-first, nineteen hundred and 
 fifteen (Two hundred and thirty-eighth United 
 States, page three hundred and ninety-three), 
 ordered that the Oregon and California Rail- 
 road Company be enjoined from making further 
 sales of lands in violation of the law, and that 
 the said railroad company be further enjoined 
 from making any sales whatever of either the 
 land or the timber thereon until Congress 
 should have a reasonable opportunity to provide 
 for the disposition of said lands in accordance 
 with such policy as Congress might deem fitting 
 under the circumstances and at the same time 
 secure to the railroad company all the value con- 
 ferred by the granting Acts ; and 
 
 Whereas it was expressly provided by section 
 twelve of the Act of July twenty-fifth, eighteen 
 hundred and sixty-six (Fourteenth Statutes at 
 
77 
 
 Large, page two hundred and thirty-nine), that 
 Congress might at any time, having due regard 
 for the rights of the grantee railroad company, 
 add to, alter, amend, or repeal the Act making 
 the grant ; and 
 
 Whereas the Oregon and California Railroad 
 Company and its predecessors in interest re- 
 ceived a large sum of money from sales of said 
 land for prices in excess of $2.50 per acre, and 
 from leases, interest on contracts, and so forth ; 
 and 
 
 Whereas the aforesaid granting Acts conferred 
 upon the said railroad company the right to re- 
 ceive not more than $2.50 per acre for each acre 
 of land so granted : Therefore 
 
 Be it enacted by the Senate and House of Rep- 
 resentatives of the United States of America in 
 Congress assembled, That the title to so much of 
 the lands granted by the Act of July twenty-fifth, 
 eighteen hundred and sixty-six, entitled "An Act 
 granting lands to aid in the construction of a rail- 
 road and telegraph line from the Central Pa- 
 cific Railroad in California to Portland, in Ore- 
 gon," as amended by the Acts of eighteen hun- 
 dred and sixty-eight and eighteen hundred and 
 sixty-nine, for which patents have been issued by 
 the United States, or for which the grantee is en- 
 titled to receive patents under said grant, and to 
 so much of the lands granted by the Act of May 
 fourth, eighteen hundred and seventy, entitled 
 "An Act granting lands to aid in the construc- 
 tion of a railroad and telegraph line from Port- 
 land to Astoria and McMinnville, in the State of 
 Oregon," for which patents have been issued by 
 
78 
 
 the United States, or for for which the grantee 
 is entitled to receive patents under said grant, as 
 had not been sold by the Oregon and California 
 Railroad Company prior to July first, nineteen 
 hundred and thirteen, be, and the same is hereby, 
 revested in the United States: Provided, That 
 the provisions of this Act shall not apply to the 
 right of way to the extent of one hundred feet in 
 width on each side of the railroad and all lands 
 in actual use by said railroad company on De- 
 cember ninth, nineteen hundred and fifteen, for 
 depots, sidetracks, wood yards, and standing 
 grounds. 
 
 Sec. 2. That the Secretary of the Interior, in 
 cooperation with the Secretary of Agriculture, 
 or otherwise, is hereby authorized and directed, 
 after due examination in the field, to classify 
 said lands by the smallest legal subdivisions there- 
 of into three classes, as follows : 
 
 Class one. Power-site lands, which shall in- 
 clude only such lands as are chiefly valuable for 
 water-power sites, which lands shall be subject to 
 withdrawal and such use and disposition as has 
 been or may be provided by law for other public 
 lands of like character. 
 
 Class two. Timberlands, which shall include 
 lands bearing a growth of timber not less than 
 three hundred thousand feet board measure on 
 each forty-acre subdivision. 
 
 Class three. Agricultural lands, which shall 
 inclde all lands not falling within either of the 
 two other classes : 
 
 Provided, That any of said lands, however 
 classified, may be reclassified, if, because of a 
 change of conditions or other reasons, such ac- 
 
79 
 
 tion is required to denote properly the true char- 
 acter and class of such lands: Provided further, 
 That all the general laws of the United States 
 now existing or hereafter enacted relating to the 
 granting of rights of way over or permits for the 
 use of public lands shall be applicable to all lands 
 title to which is revested in the United States 
 under the provisions of this Act. All lands dis- 
 posed of under the provisions of this Act shall 
 be subject to all rights of way which the Secre- 
 tary of the Interior shall at any time deem neces- 
 sary for the removal of the timber from any 
 lands of class two. 
 
 Sec. 3. That the classification provided for by 
 the preceding section shall not operate to exclude 
 from exploration, entry and disposition, under the 
 mineral-land laws of the United States, any of 
 said lands, except power sites, which are chiefly 
 valuable for the mineral deposits contained there- 
 in, and the general mineral laws are hereby ex- 
 tended to all of said lands, except power sites : 
 Provided, That any person entering mineral lands 
 of class two shall not acquire title to the timber 
 thereon, which shall be sold as hereinafter pro- 
 vided in section four, but he shall have the right 
 to use so much of the timber thereon as may be 
 necessary in the development and operation of 
 his mine until such time as such timber is sold by 
 the United States. 
 
 Sec. 4. That nonmineral lands of class two shall 
 not be disposed of until the Secretary of the In- 
 terior has determined and announced that the 
 merchantable timber thereon has been removed, 
 and thereupon said lands shall fall into class three 
 
80' 
 
 and be disposed of in the manner hereinafter pro- 
 vided for the disposal of lands of that class. 
 
 The timber on lands of class two shall be sold 
 for cash by the Secretary of the Interior, in co- 
 operation with the Secretary of Agriculture, or 
 otherwise, to citizens of the United States, asso- 
 ciates of such citizens, and corporations organized 
 under the laws of the United States, or any State, 
 Territory, or District thereof, at such times, in 
 such quantities, and under such plan of public 
 competitive bidding as in the judgment of the 
 Secretary of the Interior may produce the best 
 results: Provided, That said Secretary shall 
 have the right to reject any bid where he has rea- 
 son to believe that the price offered is inadequate, 
 and may reoffer the timber until a satisfactory 
 bid is received : Provided further, That upon ap- 
 plication of a qualified purchaser that any legal 
 subdivision shall be separately offered for sale 
 such subdivision shall be separately offered be- 
 fore being included in any offer of a larger unit, 
 if such application be filed within ninety days 
 prior to such offer: And provided further, That 
 said timber shall be sold as rapidly as reasonable 
 prices can be secured therefor in a normal market. 
 
 The Secretary of the Interior shall as soon as 
 the purchase price is fully paid by any person 
 purchasing under the provisions of this section 
 issue to such a purchaser a patent conveying the 
 timber and expressly reserving the land to the 
 United States. The timber thus purchased may 
 be cut and removed by the purchaser, his heirs or 
 assigns, within such period as may be fixed by the 
 Secretary of the Interior, which period shall be 
 designated in the patent; all rights under said 
 patent shall cease and terminate at the expira- 
 
81 
 
 tion of said period: Provided, That in the event 
 the timber is removed prior to the expiration of 
 said period the Secretary of the Interior shall 
 make due announcement thereof, whereupon all 
 rights under the patent shall cease. 
 
 No timber shall be removed until the issuance of 
 patent therefor. All timber sold under this Act 
 shall be subject to the taxing- power of the States 
 apart from the land as soon as patents are issued 
 as provided for herein. 
 
 Sec. 5. That nonmineral lands of class three 
 shall be subject to entry under the general pro- 
 visions of the homestead laws of the United 
 States, except as modified herein, and opened to 
 entry in accordance with the provisions of the 
 Act of September thirtieth, nineteen hundred and 
 thirteen (Thirty-eighth Statutes at Large, page 
 one hundred and thirteen). Fifty cents per acre 
 shall be paid at the time the original entry is 
 allowed and $2 per acre when final proof is made. 
 The provisions of section twenty-three hundred 
 and one, Revised Statutes, shall not apply to any 
 entry hereunder and no patent shall issue until 
 the entryman has resided upon and cultivated the 
 land for a period of three years, proof of which 
 shall be made at any time within five years from 
 date of entry. The area cultivated shall be such 
 as to satisfy the Secretary of the Interior that 
 the entry is made in good faith for the purpose of 
 settlement and not for speculation: Provided, 
 That the payment of $2.50 per acre shall not be 
 required from homestead entrymen upon lands of 
 class two when the same shall become subject to 
 entry as agricultural lands in class three : Pro- 
 vided further, That during the period fixed for the 
 
82 
 
 submission of applications to make entry under 
 this section any person duly qualified to enter 
 such lands who has resided thereon, to the same 
 extent and in the same manner as is required un- 
 der the homestead laws, since the first day of De- 
 cember, nineteen hundred and thirteen, and who 
 has improved the land and devoted some portion 
 thereof to agricultural use, and who shall have 
 maintained his residence to the date of such ap- 
 plication, shall have the preferred right to enter 
 the quarter section upon which he was so residing 
 whether such lands shall be of class two or class 
 three and where such quarter section does not con- 
 tain more than one million two hundred thousand 
 feet board measure of timber, and where the quar- 
 ter section contains more than the said quantity 
 of timber such person may enter the forty-acre 
 tract, or lot or lots containing approximately 
 forty acres, upon which his improvements, or the 
 greater part thereof, are situated : Provided fur- 
 ther, That a prior exercise of the homestead right 
 by any such person shall not be a bar to the exer- 
 cise of such preference rights : And provided 
 further, That all of the following described lands 
 which may become revested in the United States 
 by operation of this Act, to-wit: Township one 
 south, range five east, sections twenty-three and 
 thirty-five; township one south, range six east, 
 sections three, five, seven, nine seventeen, nine- 
 teen, twenty-nine, thirty-one, and thirty-three; 
 township two south, range five east, sections one 
 and three; township two south, range six east, 
 sections one, three, five, seven, nine, and eleven; 
 township two south, range seven east, section 
 seven; township three south, range three east, 
 section fifteen; township four south, range four 
 
83 
 
 east, sections eleven and thirteen; township four 
 south, range five east, sections nineteen and twen- 
 ty-nine; and township twelve south, range seven 
 west, sections fifteen, twenty-one, twenty-three, 
 twenty-seven, thirty three, and thirty-five, Will- 
 amette meridian and base, State of Oregon, shall 
 be withheld from entry or other disposition for a 
 period of two years after the approval hereof. 
 
 Sec. 6. That persons who purchase timber on 
 lands of class two shall be required to pay a com- 
 mission of one-fifth of one per centum of the pur- 
 chase price paid, to be divided equally between 
 the register and receiver, within the maximum 
 compensation allowed them by law; and the reg- 
 ister and receiver shall receive no other compensa- 
 tion whatever for services rendered in connection 
 with the sales of timber under the provisions of 
 section four of this Act. 
 
 Sec. 7. That the Attorney General of the 
 United States be, and he is hereby, authorized and 
 directed to institute and prosecute any and all 
 suits in equity and actions at law against the Ore- 
 gon and California Railroad Company, and any 
 other proper party which he may deem appropri- 
 ate, to have determined the amount of moneys 
 which have been received by the said railroad 
 company or its predecessors from or on account 
 of any of said granted lands, whether sold or un- 
 sold, patented or unpatented, and which should be 
 charged against it as a part of the "full value" 
 secured to the grantees under said granting Acts 
 as heretofore interpreted by the Supreme Court. 
 In making this determination the court shall take 
 into consideration and give due and proper legal 
 
84 
 
 effect to all receipts of money from sales of land 
 or timber, forfeited contracts, rent, timber depre- 
 dations, and interest on contracts, or from any 
 other source relating to said lands ; also to the 
 value of timber taken from said lands and used by 
 said grantees or their successor or successors, hi 
 making this determination in the aforementioned 
 suit or suits the court shall also determine, on the 
 application of the Attorney General, the amount 
 of the taxes on said lands paid by the United 
 States, as provided in this Act, and which should 
 in law have been paid by the said Oregon and 
 California Railroad Company, and the amount 
 thus determined shall be treated as money re- 
 ceived by said railroad company. 
 
 Sec. 8. That the title to all money arising out of 
 said grant lands and now on deposit to await the 
 final outcome of said suit commenced by the 
 United States in pursuance of said joint resolu- 
 tion of nineteen hundred and eight is hereby vest- 
 ed in the United States, and the United States is 
 subrogated to all the rights and remedies of the 
 obligee or obligees, and especially of Louis L. 
 Sharp, as commissioner, under any contract for 
 the purchase of timber on the grant lands. 
 
 Sec. 9. That the taxes accrued, and now unpaid 
 on the lands revested in the United States, whether 
 situate in the State of Oregon or State of Wash- 
 ington, shall be paid by the Treasurer of the Unit- 
 ed States, upon the order of the Secretary of the 
 Interior, as soon as may be after the approval of 
 this Act, and a sum sufficient to make such pay- 
 ment is hereby appropriated, out of any money in 
 the Treasury not otherwise appropriated. 
 
85 
 
 Sec. 10. That all moneys received from or 
 on account of said lands and timber un- 
 der the provisions of this Act shall be de- 
 posited in the Treasury of the United 
 States in a special fund, to be designated 
 "The Oregon and California land-grant fund," 
 which fund shall be disposed of in the following 
 manner : The Secretary of the Interior shall ascer- 
 tain as soon as may be the exact number of acres 
 of said lands, sold or unsold, patented to the Ore- 
 gon and California Railroad Company, or its 
 predecessors, and the number of acres of unpat- 
 ented lands which said railroad company is enti- 
 tled to receive under the terms of said grants and 
 the value of said lands at $2.50 per acre. From 
 the sum thus ascertained he shall deduct the 
 amount already received by the said railroad com- 
 pany and its predecessors in interest on account 
 of said lands and which should be charged against 
 it as determined under section seven of this Act; 
 and a sum equal to the balance thus resulting shall 
 be paid, as herein provided, to the said railroad 
 company, its successors or assigns, and to those 
 having liens on the land, as their respective in- 
 terests may appear. The amount due lien holders 
 shall be evidenced either by the consent, in writ- 
 ing, of the railroad company or by a judgment of 
 a court of competent jurisdiction in a suit to 
 which the railroad company and the lien holders 
 are parties. Payments shall be made from time 
 to time, as the fund accumulates, by the Treasurer 
 of the United States upon the order of the Secre- 
 tary of the Interior: Provided, however, That if, 
 upon the expiration of ten years from the ap- 
 proval of this Act, the proceeds derived from the 
 sale of lands and timber are not sufficient to pay 
 
the full amount which the said railroad company, 
 its successors or assigns, are entitled to receive, 
 the balance due shall be paid from the general 
 funds in the Treasury of the United States, and 
 an appropriation shall be made therefor. After 
 the said railroad company, its successors or as- 
 signs, and the lien holders shall have been paid 
 the amount to which they are entitled, as provid- 
 ed herein, an amount equal to that paid for ac- 
 cumulated taxes, as provided in section nine here- 
 of, shall be deposited in the Treasury to the credit 
 of the United States, thereafter all other moneys 
 received from the sales of land and timber shall 
 be distributed as follows : 
 
 A separate account shall be kept in the General 
 Land Office of the sales of land and timber within 
 each county in which any of said lands are sit- 
 uated, and, after deducting from the amount of 
 the proceeds arising from such sales in each 
 county a sum equal to that applied to pay the ac- 
 crued taxes in that county and a sum equal to 
 $2.50 per acre for each acre of such land therein 
 title to which is revested in the United States un- 
 der this Act, twenty-five per centum of the re- 
 mainder shall be paid to the State treasurer of 
 the State in which the land is located, to be and 
 become a part of the irreducible school fund of 
 the State; twenty-five per centum shall be paid 
 to the treasurer of the county for common schools, 
 roads, highways, bridges, and port districts, to be 
 apportioned by the county courts for the several 
 purposes above named ; forty per centum shall be 
 paid into, reserved, and appropriated as a part of 
 the fund created by the Act of Congress approved 
 June seventeenth, nineteen hundred and two, 
 known as the reclamation Act; ten per centum 
 
87 
 
 shall become a part of the general fund in the 
 Treasury of the United States ; and of the balance 
 remaining in said Oregon and California land 
 grant fund from whatsoever source derived twen- 
 ty-five per centum shall be paid to the State treas- 
 urer of the State in which the land is located, to 
 be and become a part of the irreducible school 
 fund of the State ; twenty-five per centum shall be 
 paid to the treasurer of the county for common 
 schools, roads, highways, bridges, and port dis- 
 tricts, to be apportioned by the county courts for 
 the several purposes above named; and the re- 
 mainder shall become a part of the general fund 
 in the Treasury of the United States. The pay- 
 ments herein authorized shall be made to the 
 treasurers of the States and counties, respective- 
 ly, by the Treasurer of the United States, upon 
 the order of the Secretary of the Interior, as soon 
 as may be after the close of each fiscal year dur- 
 ing which the moneys were received: Provided, 
 That none of the payments to the States and coun- 
 ties and to the reclamation fund in this section 
 provided for shall be made until the amount due 
 the Oregon and California Railroad Compny, its 
 successors or assigns, has been fully paid, and the 
 Treasury reimbursed for all taxes paid pursuant 
 to the provisions of section nine of this Act. 
 
 Sec. 11. That the Secretary of the Interior is 
 hereby authorized to perform any and all acts and 
 to make such rules and regulations as may be nec- 
 essary and proper for the purpose of carrying the 
 provisions of this Act into full force and effect ; 
 and any person, applicant, purchaser, entryman, 
 or witness who shall swear falsely in any affidavit 
 or proceeding required hereunder or under the 
 
88 
 
 regulations issued by the Secretary of the In- 
 terior shall be guilty of perjury and liable to the 
 penalties prescribed therefor. 
 
 Sec. 12. That the sum of $100,000 be, and the 
 same is hereby, appropriated, out of any moneys 
 in the Treasury not otherwise appropriated, to 
 enable the Secretary of the Interior, in coopera- 
 tion with the Secretary of Agriculture, or other- 
 wise, to complete the classification of the lands as 
 herein provided, which amount shall be immedi- 
 ately available and shall remain available until 
 such classification shall have been completed. 
 
 Approved, June 9, 1916. 
 
No. 1(BP 492 
 
 N o. 2TB4 
 
 (Eirruti (Eoitrt of AppMa 
 
 Jar tip Nttittj GItrrmt. 
 
 OREGON AND CALIFORNIA RAILROAD COM- 
 PANY, a Corporation, et al., 
 
 Defendants and Appellants, 
 
 vs. 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 Upon Appeal from the District Court of the United 
 
 States for the District of Oregon, from the 
 
 Decree Entered December 9, 1915. 
 
 Certificate of the United States Circuit Court of Appeals 
 
 for the Ninth Circuit, Certifying Certain Questions 
 
 or Propositions of Law to the Supreme Court 
 
 of the United States, Under Section 239 
 
 of the Judicial Code (36 Stat. 1157). 
 
No. 2754 
 
 (ftirrmi (tort of Apjrcate 
 
 Jor % Nmtff GlimttL 
 
 OREGON AND CALIFORNIA RAILROAD COM- 
 PANY, a Corporation, et al., 
 
 Defendants and Appellants, 
 
 vs. 
 UNITED STATES OF AMERICA, 
 
 Appellee. 
 
 Upon Appeal from the District Court of the United 
 
 States for the District of Oregon, from the 
 
 Decree Entered December 9, 1915. 
 
Oregon dc California R. R. Co. et al. 
 
 Names and Addresses of Solicitors upon This 
 
 Appeal. 
 
 For Appellants, Oregon and California Railroad 
 Company, et al. : 
 WM. F. HEREIN, San Francisco, Cal. 
 P. F. DUNNE, San Francisco, Cal. 
 WM. D. FENTON, Portland, Oregon. 
 
 For Appellant, Union Trust Company: 
 
 DOLPH, MALLORY, SIMON & GEARIN, 
 
 Portland, Oregon. 
 MILLER, KING, LANE & TRAFFORD and 
 
 JOHN C. SPOONER, New York. 
 
 For Appellee : 
 
 THOMAS W. GREGORY, Attorney-General, 
 JOHN W. DAVIS, Solicitor-General. 
 CONSTANTINE J. SMYTH, Special Assist- 
 ant to Attorney-General. 
 CLARENCE L. REAMES, United States Dis- 
 trict Attorney for Oregon. 
 
vs. United States of America. . 3 
 
 Certificate of the United States Circuit Court of 
 Appeals for the Ninth Circuit Certifying Cer- 
 tain Questions or Propositions of Law to the Su- 
 preme Court of the United States, Under Sec- 
 tion 239 of the Judicial Code (36 Stat., 1157). 
 In this case, this Court heretofore, under Section 
 239 of the Judicial Code, certified to the Supreme 
 Court of the United States certain questions or 
 propositions of law concerning which it desired the 
 instruction of that court for its proper decision ; and 
 thereupon the Supreme Court required that the 
 whole record and cause be sent up to it for its con- 
 sideration, and the same having been done, the 
 Supreme Court decided the whole matter in contro- 
 versy as appears from the decision of the court re- 
 ported in 238 U. S. at pages 393-439. 
 
 On December 8th, 1915, the mandate of the 
 Supreme Court was filed in the District Court, as 
 follows : 
 
 "MANDATE OF UNITED STATES SUPREME 
 
 COURT. 
 
 United States of America, — ss. 
 The President of the United States of America, to 
 the Honorable, the JTudges of the District Court 
 of the United States for the District of Oregon, 
 Greeting : 
 (Seal, United States Supreme Court) 
 
 WHEREAS, lately in the District Court of the 
 United States, for the District of Oregon, before 
 you, or some of you, in a cause between The United 
 States of America, complainant, and Oregon & Cali- 
 
4 Oregon & California R. R. Co. et al. 
 
 fornia Railroad Company, Southern Pacific Com- 
 pany, Stephen T. Gage, individually and as trustee, 
 Union Trust Company, individually and as trustee, 
 John L. Snyder et al., defendants; John L. Snyder, 
 Julius F. Prahl, Albert E. Thompson et al., com- 
 plainants, and Oregon & California Railroad Com- 
 pany, Union Trust Company, and S. T. Gage, 
 defendants, in cross-complaint, and William F. 
 Slaughter et al., interveners, in Equity, No. 3340, 
 wherein the decree of the said District Court entered 
 in said cause on the 1st day of July, A. D. 1913, is 
 in the following words, viz. : 
 
 (Here follows copy of said decree of said Dis- 
 trict Court, as the same is contained in Volume 
 III, pages 1296-1550 of printed transcript of 
 the record on the former appeals taken in this 
 case from said decree of July 1, 1913, and which 
 said transcript of the record is on file in the 
 clerk 's office of the Circuit Court of Appeals for 
 the Ninth Circuit, the case being numbered 
 therein 2400, and in the clerk's office of the 
 Supreme Court of the United States, the case in 
 the latter court being numbered 679, October 
 Term, 1914.) 
 as by the inspection of the transcript of record of 
 the United States Circuit Court of Appeals for the 
 Ninth Circuit, which was brought into the Supreme 
 Court of the United States by virtue of a writ of 
 certiorari agreeably to the act of Congress in such 
 case made and provided, fully and at large appears. 
 AND WHEREAS, in the present term of Octo- 
 ber, in the year of our Lord one thousand nine hun- 
 
vs. United States of America. 5 
 
 dred and fourteen, the said cause came on to be 
 heard before the said SUPREME COURT, on the 
 said transcript of record, and was argued by coun- 
 sel: 
 
 OX CONSIDERATION WHEREOF, it is now 
 here ordered, adjudged, and decreed by this Court 
 that the decree of the District Court of the United 
 States for the District of Oregon in this cause be, 
 and the same is hereby, reversed. 
 
 AND IT IS FURTHER ORDERED that this 
 cause be, and the same is hereby, remanded to the 
 said District Court for further proceedings in ac- 
 cordance with the opinion of this Court. 
 
 June 21, 1915. 
 
 You, therefore, are hereby commanded that such 
 further proceedings be had in said cause, in con- 
 formity with the opinion and decree of this Court, 
 as according to right and justice, and the laws of the 
 United States, ought to be had, the said writ of cer- 
 tiorari notwithstanding. 
 
 Witness the Honorable EDWARD D. WHITE, 
 Chief Justice of the United States, the 7th day of 
 August in the year of our Lord one thousand nine 
 hundred and fifteen. 
 
 JAMES D. MAHER, 
 Clerk of the Supreme Court of the United States." 
 
 Thereupon, and on December 8th, 1915, the fol- 
 lowing proceedings were had, and the same were 
 embodied in a statement of the case, approved by the 
 Judge of the District Court — such statement and the 
 order approving the same, being as follows : 
 
6 Oregon & California B. R. Co. et al. 
 
 "STATEMENT OF THE CASE. 
 
 Be it remembered that on the 8th day of Decem- 
 ber, 1915, the above cause, No. 3340, in Equity, came 
 on for hearing before the above-named court upon the 
 form of the decree to be entered therein under and in 
 pursuance of the mandate theretofore issued from the 
 Supreme Court of the United States on the opinion 
 and decree of said Supreme Court reversing the de- 
 cree made and entered by the above-entitled court, in 
 said cause, on the first day of July, 1913, and re- 
 manding the cause for further proceedings in ac- 
 cordance with said opinion. Mr. Constantine J. 
 Smyth, special assistant to the Attorney-General, 
 and Mr. Clarence L. Reames, United States District 
 Attorney for the District of Oregon, represented the 
 complainant. Mr. Peter F. Dunne and Mr. Wm. D. 
 Fenton represented the defendants, Oregon and Cali- 
 fornia Railroad Company, Southern Pacific Com- 
 pany and Stephen T. Gage, individually and as 
 trustee, and Mr. John M. Gearin, represented the 
 defendant, Union Trust Company of New York, in- 
 dividually and as trustee, and the cross-complainants 
 and interveners in said cause were represented by 
 their respective counsel, Mr. A. W. Lafferty and Mr. 
 L. C. Garrigus. 
 
 On motion of counsel for the complainant, the 
 Court ordered that said mandate of the Supreme 
 Court be filed and the same was thereupon filed with 
 the clerk of this court. 
 
 The complainant, through its counsel, then sub- 
 mitted to the Court the following form of decree as 
 
vs. United States of America. 7 
 
 being in conformity with said opinion and mandate 
 of the Supreme Court of the United States, viz. : 
 
 'In the District Court of the United States, for the 
 District of Oregon. 
 
 THE UNITED STATES OF AMERICA, 
 
 Complainant, 
 
 vs. 
 
 OREGON AND CALIFORNIA RAILROAD 
 COMPANY et al., 
 
 Defendants, 
 JOHN L. SNYDER et al., 
 
 Defendants and Cross-Complainants, 
 WILLIAM F. SLAUGHTER et al., 
 
 Interveners. 
 DECREE. 
 
 In pursuance of the mandate of the Supreme Court 
 
 of the United States filed in this court on the 
 
 day of in the above-entitled cause, counsel 
 
 for the respective parties being present, it is by the 
 Court ordered, adjudged and decreed as follows: 
 
 1. That the decree heretofore entered in said 
 cause so far as it affects the defendants, Oregon 
 and California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as trus- 
 tee, Union Trust Company, individually and as trus- 
 tee, hereinafter called "the defendants," be, and the 
 same is hereby, set aside and held for naught, but 
 is adhered to in all respects as to the defendants and 
 cross-complainants, hereinafter called the "cross- 
 
8 Oregon & California R. R. Co. et al. 
 
 complainants," and the interveners. 
 
 2. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined from 
 selling the lands or any part thereof granted either 
 by the Act of Congress approved July 25, 1866, as 
 amended by the Act of Congress of April 10, 1869, 
 or by the Act of Congress approved May 4, 1870, 
 whether the said lands be situated within the place 
 or indemnity limits of the grants thereby made, to 
 any person not an actual settler on the land sold to 
 him, or in quantities greater than one-quarter sec- 
 tion to one purchaser, or for a price exceeding $2.50 
 per acre ; and from selling any of the timber on said 
 lands, or any mineral or other deposits therein, ex- 
 cept as a part of and in conjunction with the land 
 on which the timber stands or in which the mineral 
 or other deposits are found; and from cutting or re- 
 moving or authorizing the cutting or removal of any 
 of the timber thereon ; or from removing or author- 
 izing the removal of mineral or other deposits 
 therein, except in connection with the sale of the 
 land bearing the timber or containing the mineral 
 or other deposits. 
 
 3. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined from 
 making or agreeing to make, either directly or in- 
 directly, any disposition whatsoever of said lands 
 or of any part thereof, or of the timber thereon or 
 any part thereof, or of any mineral or other deposits 
 therein; from cutting, removing, or authorizing the 
 cutting or removal of the timber thereon or any part 
 thereof; and from removing or authorizing the re- 
 
vs. United States of America. 9 
 
 moval of mineral or other deposits therein; from 
 disposing of, receiving or exerting any control over 
 any money which arose, or may hereafter arise, from 
 said lands, either through sales thereof or of timber 
 thereon, or through condemnation proceedings or 
 otherwise, and now on deposit, or which may here- 
 after be placed on deposit, with any bank, clerk of 
 court, or other institution or person, to await the 
 final decision of the Supreme Court of the United 
 States in this case, until Congress shall have a rea- 
 sonable opportunity to make provision by legisla- 
 tion for the disposition of said lands, timber, money, 
 mineral or other deposits, in accordance with such 
 policy as Congress may deem fitting, under the cir- 
 cumstances, and at the same time secure to the de- 
 fendant all the value that the said granting acts con- 
 ferred upon the grantees. 
 
 4. That if Congress does not make provision for 
 the disposition as aforesaid of said lands, money, 
 timber, mineral or other deposits, the defendants 
 may apply to the Court within a reasonable time, but 
 not less than six months from the entry of this de- 
 cree, for a modification of so much of the injunction 
 herein ordered as forbids any disposition of the said 
 lands, timber, money, mineral or other deposits, or 
 any part thereof, until Congress shall act, and the 
 Court hereby reserves the right to modify this decree 
 in that regard if, in its opinion, good cause shall 
 then exist for doing so. 
 
 5. That this decree shall apply not only to all said 
 grant lands unsold at the time this action was insti- 
 tuted, but also to all such grant lands sold prior to 
 
10 Oregon & California R. R. Co. et al. 
 
 the institution of the action which have since re- 
 verted or shall hereafter revert to the defendants 
 or any one of them. 
 
 6. That the complainant shall have the right to 
 apply to the Court at any time hereafter for an ac- 
 counting as to all moneys received by the defendant 
 from or on account of the lands covered by said grant- 
 ing acts, and the Court retains jurisdiction over the 
 action for the purpose of granting such application 
 if good cause therefor appears. 
 
 7. That this decree shall be without prejudice to 
 any other suits, rights or remedies which the govern- 
 ment may have by law or under the Joint Resolution 
 of Congress passed April 30, 1908, or under the Act 
 of Congress passed August 20, 1912. 
 
 8. That the complainant have and recover from 
 the defendants, Oregon and California Railroad 
 Company, Southern Pacific Company, Stephen T. 
 Gage, Union Trust Company, the cross-complainants 
 and interveners, and each of them, its lawful costs 
 
 and disbursements herein, taxed at $ , and that 
 
 execution issue therefor. 
 
 Done in open court this day of December, 
 
 1915. 
 
 BY THE COURT, 
 
 Judge. ' 
 And the counsel for the complainants asked the 
 Court to adopt the aforesaid form of decree sub- 
 mitted by them as the form of decree to be entered 
 upon said mandate. 
 
vs. United States of America. 11 
 
 The defendants, Oregon and California Railroad 
 Company, Southern Pacific Company, Stephen T. 
 Gage, individually and as trustee, and the defend- 
 ant, Union Trust Company of New York, individ- 
 ually and as trustee, then submitted to the Court the 
 following form of decree as being in conformity with 
 said opinion and mandate of the Supreme Court of 
 the United States, viz. : 
 
 1 [Title of Court and Cause as contained in foregoing 
 Form of Decree submitted by the Complain- 
 ant.] 
 In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this court on 
 the day of December, 1915, in the above- 
 entitled cause, counsel for the respective parties be- 
 ing present, it is by the Court ordered, adjudged and 
 decreed, as follows : 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants Oregon and 
 California Railroad Company, Southern Pacifie 
 Company, Stephen T. Gage, individually and as 
 trustee, Union Trust Company, individually and as 
 trustee, hereinafter called the "defendants," be, and 
 the same is hereby set aside, and held for naught, but 
 adhered to in all respects as to the defendant, and 
 cross-complainants, hereinafter called the "cross- 
 complainants," and the "interveners." 
 
 2. That the said defendants and their respective 
 officers and agents be and each is hereby enjoined 
 from selling the lands, or any part thereof, granted 
 either by the Act of Congress approved July 25, 
 
12 Oregon & California R. R. Co. et al. 
 
 1866, as amended by the Act of Congress of April 10, 
 
 1869, or by the Act of Congress approved May 4, 
 
 1870, whether the said lands be situated within the 
 place or indemnity limits of the grants thereby 
 made, to any person not an actual settler, or in quan- 
 tities greater than one-quarter section to one pur- 
 chaser, or for a price exceeding two dollars and a 
 half ($2.50) per acre. 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby enjoined 
 from any disposition of the said lands, or any part 
 thereof, or of the timber thereon, and from cutting, 
 or authorizing the cutting, or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands, in accordance with such 
 (policy as it may! deem fitting under the circum- 
 stances, and at the same time secure to the defend- 
 ants, all the value the granting acts conferred upon 
 the grantees; but of Congress does not make such 
 provision, the defendants may apply to this Court, 
 within a reasonable time, not less than six (6) 
 months from the entry of the decree herein, for a 
 modification of so much of the injunction herein 
 ordered as enjoins any disposition of the lands and 
 timber until Congress shall act. 
 
 Done in open court this day of , 
 
 1915, 
 
 BY THE COURT, 
 
 Judge. ' 
 
vs. United States of America. 13 
 
 And the counsel for said defendants asked the 
 Court to sign and to order the entry of a decree in 
 the form submitted by them as being the proper 
 form of decree to be entered upon said mandate. 
 
 After arguments had by the respective counsel, 
 the Court took under advisement the matter of the 
 form of the decree to be entered upon said mandate ; 
 and on the 9th day of December, 1915, the Honor- 
 able Charles E. Wolverton, Judge of this Court, 
 presiding on the aforesaid hearing, signed the fol- 
 lowing form of decree, viz. : 
 
 1 [Title of Court and Cause as contained in foregoing 
 Form of Decree submitted by the Complain- 
 ant.] 
 In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this court on 
 the 8th day of December, 1915, in the above- 
 entitled cause, counsel for the respective parties be- 
 ing present, it is by the Court ordered, adjudged and 
 decreed, as follows : 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants Oregon and 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as 
 trustee, Union Trust Company, individually and as 
 trustee, hereinafter called "the defendants," be, and 
 the same is hereby set aside, and held for naught, but 
 adhered to in all respects as to the defendant, and 
 cross-complainants, hereinafter called the "cross- 
 complainants," and the interveners. 
 
 2. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined 
 
14 Oregon & California R. E. Go. et al. 
 
 from selling the lands or any part thereof granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 
 10, 1869, or by the Act of Congress approved May 4, 
 1870, whether the said lands be situated within the 
 place or indemnity limits of the grants thereby 
 made, to any person not an actual settler on the land 
 sold to him, or in quantities greater than one- 
 quarter section to one purchaser, or for a price ex- 
 ceeding $2.50 per acre: and from selling any of the 
 timber on said lands, or any mineral or other de- 
 posits therein, except as a part of and in conjunc- 
 tion with the land on which the timber stands or in 
 which the mineral or other deposits are found; and 
 from cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon ; or from re- 
 moving or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land bearing the timber or containing the 
 mineral or other deposits. 
 
 3. That the defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined 
 from making or agreeing to make, either directly or 
 indirectly, any disposition whatsoever of said lands 
 or of any part thereof, or of the timber thereon or 
 any part thereof, or of any mineral or other deposits 
 therein; from cutting, removing, or authorizing the 
 cutting or removal of the timber thereon or any part 
 thereof; from removing or authorizing the removal 
 of mineral or other deposits therein; and from dis- 
 posing of, receiving or exerting any control over any 
 money which arose, or may hereafter arise, from 
 
vs. United States of America. 15 
 
 said lands, either through sales thereof or of timber 
 thereon, or through condemnation proceedings or 
 otherwise, and now on deposit, or which may here- 
 after be placed on deposit, with any bank, clerk of 
 court, or other institution or person, to await the 
 final decision of the Supreme Court of the United 
 States in this case, until Congress shall have a rea- 
 sonable opportunity to make provision by legisla- 
 tion for the disposition of said lands, timber, money, 
 mineral or other deposits, in accordance with such 
 policy as Congress may deem fitting, under the cir- 
 cumstances, and at the same time secure to the de- 
 fendant all the value that the said granting acts 
 conferred upon the grantees. 
 
 4. That if Congress does not make provision for 
 the disposition as aforesaid of said lands, money, 
 timber, mineral or other deposits, the defendants 
 may apply to the Court within a reasonable time, 
 but not less than six months from the entry of this 
 decree, for a modification of so much of the injunc- 
 tion herein ordered as forbids any disposition of the 
 said lands, timber, money, mineral or other deposits, 
 or any part thereof, until Congress shall act, and the 
 court hereby reserves the right to modify this de- 
 cree in that regard if, in its opinion, good cause shall 
 then exist for doing so. 
 
 5. That this decree shall apply not only to all 
 said grant lands unsold at the time this action was 
 instituted, but also to all such grant lands sold prior 
 to the institution of the action which have since 
 reverted or shall hereafter revert to the defendants 
 or any one of them. 
 
16 Oregon & California R. R. Co. et al. 
 
 6. That this decree shall be without prejudice 
 to any other suits, rights or remedies which the 
 Government may have by law or under the Joint 
 Resolution of Congress passed April 30, 1908, or 
 under the Act of Congress passed August 30, 1912, 
 against the defendants or any of them. 
 
 7. That the complainant have and recover from 
 the defendants, Oregon and California Eailroad 
 Company, Southern Pacific Company, Stephen T. 
 Gage, individually and as trustee, and Union Trust 
 Company, individually and as trustee, and each of 
 them, its lawful costs and disbursements herein, 
 taxed at $6,249.02, and that execution issue therefor. 
 
 Done in open court this 9th day of December,, 
 1915. 
 
 BY THE COURT, 
 (Signed) CHARLES E. WOLVERTON, 
 
 Judge. ' 
 
 And said decree was thereupon on said 9th day 
 of December, 1915, entered as the judgment and de- 
 cree of this Court. 
 
 The defendants, Oregon and California Railroad 
 Company, Southern Pacific Company, Stephen T. 
 Gage, individually and as trustee, and Union Trust 
 Company of New York, individually and as trustee, 
 duly excepted to the entry of said form of decree last 
 mentioned, and also to the failure of said Judge to 
 sign a decree in the aforesaid form submitted by 
 them. 
 
 Said defendants now present to the Court this their 
 Statement of the Case, and ask the Court to approve 
 of the same and to direct that it be filed in the clerk's 
 
vs. United States of America. 17 
 
 office of this court and that it become a part of the 
 record for the purposes of the appeal, taken by said 
 defendants on January 8th, 1916, from said judgment 
 and decree of this Court entered December 9, 1915, 
 as aforesaid. This statement is not intended to be 
 and is not a statement of the case or agreed statement 
 under federal equity rule seventy-seven but is sub- 
 mitted as a statement analogous to the statement of 
 the evidence provided for in federal equity rule 
 seventy-five. 
 
 WM. F. HERRIN, 
 P. F. DUNNE and 
 WM. D. FENTON, 
 Attorneys for Appellants, Oregon and California 
 Railroad Company, Southern Pacific Company, 
 and Stephen T. Gage, individually and as trus- 
 tee. 
 
 MILLER, KING, LANE & TRAFFORD, 
 DOLPH, MALLORY, SIMON & GEARIN, 
 Attorneys for Appellant, Union Trust Company of 
 New York, individually and as trustee. 
 
 District of Oregon, 
 County of Multnomah, — ss. 
 
 Due service of the within statement of the case is 
 admitted this 1st day of February, 1916. 
 
 CLARENCE L. REAMES, 
 Of Solicitors for Complainant. 
 Filed February 1, 1916. G. H. Marsh, Clerk." 
 
 And afterwards, to wit, on Tuesday, the 1st day of 
 February, 1916, the same being the 80th judicial day 
 of the regular November, 1915, term of said Court ; 
 
18 Oregon & California R. R. Co. et al. 
 
 present, the Honorable CHARLES B. WOLVER- 
 TON, United States District Judge presiding, the 
 following proceedings were had in said cause, to wit : 
 
 ORDER APPROVING STATEMENT OE THE 
 
 CASE. 
 
 This cause came on to be heard this day upon the 
 application of the appellants, Oregon and California 
 Railroad Company, Southern Pacific Company, Ste- 
 phen T. Gage, individually and as trustee, and Union 
 Trust Company, individually and as trustee, defend- 
 ants, for an order approving the statement of the case 
 prepared and presented by the appellants, and now 
 tendered to be filed herein, the appellants appearing 
 by their attorneys Wm. D. Fenton and John M. 
 Gearin, and the complainant appearing by Clarence 
 L. Reames, United States District Attorney for the 
 District of Oregon, representing himself and Thomas 
 W. Gregory, Attorney-General of the United States, 
 and C. J. Smyth, special assistant to the Attorney- 
 General of the United States, attorneys for said com- 
 plainant; and it appearing to the Court that said 
 statement is correct and that there is no objection to 
 the approval thereof by this Court, 
 
 It is ordered that said Statement of the Case now 
 tendered to be filed is hereby approved and the same 
 is now directed to be filed in the clerk's office of this 
 court as of this date and to become a part of the 
 record, for the purposes of the appeal heretofore 
 taken by said defendants from the judgment and 
 decree of this Court entered December 9, 1915. 
 
vs. United States of America. 19 
 
 Dated : February 1st, 1916. 
 
 CHAS. E. WOLVERTON, 
 Judge of said District Court. 
 District of Oregon, 
 County of Multnomah, — ss. 
 
 Due service of the within order approving state- 
 ment of the case is admitted this 1st day of February, 
 1916. 
 
 CLARENCE L. REAMES, 
 Of Solicitors for Complainant. 
 Filed February 1, 1916. G. H. Marsh, Clerk. 
 
 From the decree of the District Court, of Decem- 
 ber 9th, 1915, set out in the above statement the appel- 
 lants, Oregon and California Railroad Company, 
 Southern Pacific Company, Stephen T. Gage, in- 
 dividually and as trustee, and Union Trust Company 
 of New York, individually and as trustee, duly took 
 and perfected their appeals to this court and accom- 
 panied the same with their assignments of error, duly 
 filed on January 8th, 1916, as follows : 
 
 DEFENDANT OREGON AND CALIFORNIA 
 
 RAILROAD COMPANY'S ASSIGNMENT 
 
 OF ERRORS. 
 
 The defendant, Oregon and California Railroad 
 Company, complains of errors in the proceedings in 
 this case in the District Court of the United States 
 for the District of Oregon, in the above cause, 
 No. 3340 in Equity, and in the decision, judgment and 
 decree rendered, made and entered therein on the 
 9th day of December, 1915, under and in alleged pur- 
 suance of the mandate of the Supreme Court of the 
 
20 Oregon & California R. B. Co. et al. 
 
 United States theretofore filed in said cause on 
 December 8th, 1915, and assigns the following as the 
 errors complained of: 
 
 1. The Court erred in making and entering the 
 said decree of December 9th, 1915. 
 
 2. The Court erred in not pursuing the mandate 
 of the Supreme Court of the United States thereto- 
 fore filed in said cause on December 8th, 1915. 
 
 3. The said decree of December 9th, 1915, is not 
 in pursuance of the said mandate, and the Court ac- 
 cordingly erred in making and entering such decree. 
 
 4. The Court erred in making and entering the 
 said decree of December 9th, 1915, and each and every 
 paragraph thereof. 
 
 5. The Court erred in adjudging and decreeing, 
 as in paragraph 2 of its decree set forth, "that the 
 defendants and their respective officers and agents 
 be, and each is hereby, enjoined from selling the 
 lands or any part thereof granted either by the Act 
 of Congress approved July 25, 1866, as amended by 
 the Act of Congress of April 10, 1869, or by the Act 
 of Congress approved May 4, 1870, whether the said 
 lands be situated within the place or indemnity 
 limits of the grants thereby made, to any person not 
 an actual settler on the land sold to him, or in quan- 
 tities greater than one-quarter section to one pur- 
 chaser, or for a price exceeding $2.50 per acre ; and 
 from selling any of the timber on said lands, or any 
 mineral or other deposits therein, except as a part 
 of and in conjunction with the land on which the 
 timber stands or in which the mineral or other de- 
 posits are found ; and from cutting or removing or 
 
vs. United States of America. 21 
 
 authorizing the cutting or removal of any of the tim- 
 ber thereon; or from removing or authorizing the 
 removal of mineral or other deposits therein, except 
 in connection with the sale of the land bearing the 
 timber or containing the mineral or other deposits." 
 
 6. The Court erred in adding to the term "actual 
 settler," in said paragraph 2, the qualifying phrase 
 "on land sold to him." 
 
 7. The Court erred in adjudging and decreeing 
 that the defendants and their respective officers and 
 agents be and are by said decree enjoined from sell- 
 ing any of the timber on said lands, except as a part 
 of and in conjunction with the land on which the 
 timber stands; also from cutting or removing, or 
 authorizing the cutting or removal of any timber 
 thereon, except in connection with the sale of the 
 land bearing the timber ; also from selling any min- 
 eral or other deposits in said lands, except as a part 
 of and in conjunction with the land in which the 
 mineral or other deposits are found; also from re- 
 moving or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land containing the mineral or other 
 deposits. 
 
 8. The Court erred in its said decree in incorpo- 
 rating into and making part of the general injunc- 
 tion therein injunctive matter touching the sale of 
 the timber on said lands, except as a part of and in 
 conjunction with the land on which the timber 
 stands; and touching the cutting or removal, or the 
 authorizing of the cutting or removal of any of the 
 timber thereon, except in connection with the sale of 
 
22 Oregon & California R. R. Co. et al. 
 
 the land bearing such timber ; likewise touching the 
 sale of any mineral or other deposits in said lands, 
 except as a part of and in conjunction with the land 
 in which the mineral or other deposits are found; 
 and also touching the removing or the authorizing 
 of the removal of mineral or other deposits in said 
 land, except in connection with the sale of the land 
 containing such mineral or other deposits. 
 
 9. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant in this 
 case to the railroad company, with power to sell, 
 limited only as prescribed by the Granting Act and 
 Acts. 
 
 10. The Court erred in not holding and decreeing 
 that the language of the grants herein and of the 
 limitations upon them is general, and that it was not 
 competent to the said Court to attach exceptions 
 thereto in its decree. 
 
 11. The Court erred in not holding and decreeing 
 that the terms of the settlers' proviso or clause in 
 the Granting Act and Acts are prohibitive and not 
 compulsory; and in not holding and decreeing that 
 the observance of such terms would consist in re- 
 fraining from making sales to other than actual 
 settlers in quantities exceeding 160 acres to any one 
 purchaser, for a price exceeding $2.50 an acre. 
 
 12. The Court erred in not holding that the com- 
 pany, under a complete and absolute grant to it, with 
 power to sell, limited only as prescribed, might 
 choose the actual settler, might sell for any price not 
 exceeding $2.50' an acre, and might sell in quantities 
 
vs. United States of America. 23 
 
 of 40, 60, or 100 acres, or any amount not exceeding 
 160 acres. 
 
 13. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant to the 
 railroad company, with power to sell, limited only 
 as prescribed in the Granting Act and Acts; and 
 erred in not holding and decreeing that there was no 
 obligation imposed upon the railroad company to 
 sell. 
 
 14. The Court erred in not holding and decree- 
 ing that the Granting Act and Acts did not impose 
 an affirmative obligation on the railroad company to 
 sell the lands, and in not holding and decreeing that 
 the so-called settlers' proviso or clause in the Grant- 
 ing Act and Acts had application only as and when 
 the railroad company made sales of the land. 
 
 15. The Court erred in not holding and decreeing 
 that the railroad company, so long as the granted 
 lands were not sold by it but remained unalienated, 
 had a complete and absolute title thereto, and under 
 such circumstances, and as the owner of such a title, 
 had the right to sell, cut, remove, or authorize the 
 cutting or removal of the timber thereon; and the 
 Court erred similarly in not so holding and decree- 
 ing with reference to any mineral or other deposits 
 in or products out of said lands — subject to such 
 qualifications as may arise from the limited injunc- 
 tion referable to the period of six months, as ex- 
 pressed in the opinion of the Supreme Court. 
 
 16. The Court erred in not holding and decreeing 
 that the language of the so-called settlers' clause or 
 proviso in the Granting Act and Acts is not direc- 
 
24 Oregon & California R. R. Co. et ah 
 tive, but restrictive only, and that with this excep- 
 tion, so far as the said timber or mineral deposits or 
 other products are concerned, or any or either of 
 them, the grant of the said lands was unqualified. 
 
 17. The Court erred in not holding and decreeing 
 that under the said Granting Act and Acts the rail- 
 road company had a discretion of sale and the choice 
 of time and settlers ; and further erred in not hold- 
 ing and decreeing that, pending the exercise of such 
 discretion by a sale in accordance with the require- 
 ments of the Granting Act and Acts, the said rail- 
 road company had a complete and absolute grant 
 of the lands; and was entitled, as of right, to the 
 timber thereon and to the mineral or other deposits 
 therein, and to the products of the soil thereof; and 
 was entitled, as of right, to sell, cut, and remove such 
 timber, or to authorize the cutting or removal of the 
 same, and to remove, sell or otherwise enjoy mineral 
 or other deposits therein, or any products of the soil 
 thereof — subject to any qualifications arising out of 
 the limited injunction referable to the six months' 
 period above mentioned. 
 
 18. The Court erred in not holding and decree- 
 ing that the railroad company, so long as it occupied 
 the status of an owner of unalienated lands within 
 the limits of the grant and grants, had all the rights 
 therein of a grantee in fee simple, including the 
 rights of such grantee to the timber thereon or to 
 the mineral or other deposits therein, or to the pro- 
 ducts of the soil thereof — subject to any qualifica- 
 tion as aforesaid, arising out of said limited in- 
 junction. 
 
vs. United States of America. 25 
 
 19. The Court erred in not holding and decreeing 
 that the provisions of the so-called settlers' proviso 
 and clause in the Granting Act and Acts were not 
 directive, but restrictive only ; and erred in not hold- 
 ing and decreeing that, subject to the restriction, the 
 railroad company took the grant and grants with 
 the right to cut timber thereon, or open and work 
 mines therein, or cultivate the soil thereof, and 
 own, sell, use and enjoy such timber, or the products 
 of such mines, or the cultivation of such soil — sub- 
 ject to any qualification as aforesaid arising out of 
 said limited injunction. 
 
 20. The Court erred in not holding and decree- 
 ing that timber cut upon the granted lands, while 
 the same remained unalienated in the railroad com- 
 pany, belonged to said railroad company; and like- 
 wise as to any minerals extracted therefrom, or any 
 products of the soil cultivated thereon — subject to 
 any qualification arising out of said limited injunc- 
 tion, referable to the aforesaid period of six months. 
 
 21. The Court erred in not holding and decree- 
 ing that the railroad company took the lands in ques- 
 tion in fee and was accordingly entitled to make any 
 use thereof not in violation of the restrictive coven- 
 ants found in the so-called settlers' proviso and 
 clause in the Granting Act and Acts, and not in vio- 
 lation of the limited injunction as aforesaid. 
 
 22. The Court erred in making and entering a 
 decree herein in modification and enlargement of the 
 terms of the mandate from the Supreme Court of 
 the United States. 
 
 23. The Court erred in not making and entering 
 
26 Oregon & California R. R. Co. et al. 
 
 a decree herein responsive to the mandate of the 
 Supreme Court of the United States, without modi- 
 fication or enlargement, and in the terms of the 
 opinion to which the said mandate referred, and 
 which was expressive of the mandate itself. 
 
 24. The Court erred in adjudging and decreeing 
 that the complainant have and recover from the de- 
 fendants, Oregon and California Railroad Company, 
 Southern Pacific Company, Stephen T. Gage, indi- 
 vidually and as trustee, and Union Trust Company, 
 individually and as trustee, and each of them, or 
 from any or either of them, any costs or disburse- 
 ments herein; and in adjudging and decreeing that 
 execution issue against the said defendants, or any 
 or either of them, for any costs or disbursements 
 herein. 
 
 25. The Court erred in not holding and decreeing 
 that no costs or disbursements should be recovered 
 herein from the Oregon and California Railroad 
 Company, or the Southern Pacific Company, or 
 Stephen T. Gage, individually and as trustee, or 
 Union Trust Company, individually and as trustee, 
 or any or either of them. 
 
 26. The Court erred in not holding and decreeing 
 that the main contention of the Government, and 
 the one insisted upon in its bill of complaint and at 
 the trial of the cause, was the contention that the 
 so-called settlers' clause and proviso in the Granting 
 Act and Acts was a condition subsequent; and in not 
 holding and decreeing that the said defendants last 
 named, and each and every of them, were justified 
 and acted of right in resisting such contention, both 
 
vs. United States of America. 27 
 
 below and on appeal; and in not holding and decree- 
 in u; that inasmuch as the said defendants had pre- 
 vailed in resisting such contention, it was not equi- 
 table to tax them, or either of them, with costs and 
 disbursements herein in favor of the complainant. 
 
 27. The Court erred in not holding and decreeing 
 that it was inequitable to impose costs herein in 
 favor of complainant on the said defendants ; and in 
 not holding and decreeing that the case here should 
 be disposed of without adjudging costs in favor 
 either of said defendants or of the complainant, leav- 
 ing each to bear the costs of his or its own side of the 
 litigation. 
 
 28. The Court erred in not making and entering 
 as and for its decree in this cause, and in place and 
 stead of the decree made and entered by it as afore- 
 said, the decree in the form tendered to it by the said 
 last-named defendants and each and every of them 
 — that is to say, in not making and entering as its 
 decree in said cause, the following decree : 
 
 "In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this court on the 
 8th day of December, 1915, in the above-entitled 
 cause, counsel for the respective parties being pres- 
 ent, it is by the Court ordered, adjudged and decreed 
 as follows: 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Oregon and 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as 
 trustee, Union Trust Company, individually and as 
 trustee, hereinafter called the 'defendants' be, and 
 
28 Oregon & California R. R. Co. et al. 
 
 the same is hereby, set aside and held for naught, 
 but is adhered to in all respects as to the defendants 
 and cross-complainants, hereinafter called the 
 'cross-complainants' and 'interveners.' 
 
 2. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from selling the lands, or any part thereof, granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 10, 
 
 1869, or by the Act of Congress approved May 4, 
 
 1870, whether the said lands be situated within the 
 place or indemnity limits of the grants thereby made 
 to any person not an actual settler, or in quantities 
 greater than one-quarter section to one purchaser, 
 or for a price exceeding two dollars and a half 
 ($2.50) per acre. 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from any disposition of the said lands or any part 
 thereof, or of the timber thereon, and from cutting 
 or authorizing the cutting or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands in accordance with such 
 policy as it may deem fitting under the circum- 
 stances, and at the same time secure to the defend- 
 ants all the value the granting acts conferred upon 
 the grantees; but if Congress does not make such 
 provision, the defendants may apply to this Court, 
 within a reasonable time, not less than six (6) 
 months from the entry of the decree herein, for a 
 modification of so much of the injunction herein or- 
 
vs. United States of America. 29 
 
 derod as enjoins any disposition of the lands and 
 timber until Congress shall act." 
 
 WHEREFORE, this defendant, Oregon and Cali- 
 fornia Railroad Company, prays that the aforesaid 
 judgment and decree which was made, rendered and 
 entered herein by the above-entitled Court in said 
 cause No. 3340 in Equity, on the 9th day of Decem- 
 ber, 1915, and that each of said paragraphs of said 
 judgment and decree be reversed, excepting para- 
 graph 1 thereof, wherein it is provided: 
 
 "That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Ore- 
 gon & California Railroad Company, South- 
 ern Pacific Company, Stephen T. Gage, indi- 
 vidually and as trustee, Union Trust Company, 
 individually and as trustee, hereinafter called 
 the 'defendants,' be, and the same is hereby set 
 aside and held for naught, but is adhered to 
 in all respects as to the defendants and cross- 
 complainants, hereinafter called the 'cross- 
 complainants,' and the interveners," 
 
 and particularly that paragraph 2 and that para- 
 graph 7 of said judgment and decree be reversed, 
 and for such other relief to this defendant, 'said 
 Southern Pacific Company, said Stephen T. Gage, 
 individually and as Trustee, and said Union Trust 
 Company, individually and as Trustee, as may be 
 proper. 
 
 WM. F. HERRIN, 
 P. F. DUNNE, 
 WM. D. FENTON, 
 Solicitors and Attorneys for said Oregon and Cali- 
 fornia Railroad Company. 
 
30 Oregon & California R. R. Co. et al. 
 
 Service of the foregoing Assignments of Errors 
 admitted this 8th day of January, 1916. 
 
 JOHN W. DAVIS, 
 Solicitor General of the United States. 
 
 C. J. SMYTH, 
 Special Assistant to the Attorney General. 
 Solicitors and Attorneys for Appellee. 
 CLARENCE L. REAMES, 
 United States Attorney. 
 Filed January 8, 1916. G. H. Marsh, Clerk. 
 And afterwards, to wit, on the 8th day of January, 
 1916, there was duly filed in said court and cause, an 
 Assignment of Errors, by the defendant, the South- 
 ern Pacific Company, in words and figures as fol- 
 lows, to wit: 
 
 DEFENDANT SOUTHERN PACIFIC COM- 
 PANY'S ASSIGNMENT OF ERRORS. 
 The defendant, Southern Pacific Company, com- 
 plains of errors in the proceedings in this case in the 
 District Court of the United States for the District 
 of Oregon, in the above cause, No. 3340 in Equity, 
 and in the decision, judgment and decree rendered, 
 made and entered therein on the 9th day of Decem- 
 ber, 1915, under and in alleged pursuance of the man- 
 date of the Supreme Court of the United States 
 theretofore filed in said cause on December 8th, 
 1915, and assigns the following as the errors com- 
 plained of: 
 
 1. The Court erred in making and entering the 
 said decree of December 9th, 1915. 
 
 2. The Court erred in not pursuing the mandate 
 of the Supreme Court of the United States thereto- 
 
vs. United States of America. 31 
 
 fore filed in said cause on December 8th, 1915. 
 
 3. The said decree of December 9th, 1915, is not 
 in pursuance of the said mandate, and the Court ac- 
 cordingly erred in making and entering such decree. 
 
 4. The Court erred in making and entering the 
 said decree of December 9th, 1915, and each and 
 every paragraph thereof. 
 
 5. The Court erred in adjudging and decreeing, 
 as in paragraph 2 of its decree set forth, "that the 
 defendants and their respective officers and agents 
 be, and each is hereby, enjoined from selling the 
 lands or any part thereof granted either by the Act 
 of Congress approved July 25, 1866, as amended by 
 the Act of Congress of April 10, 1869, or by the Act 
 of Congress approved May 4, 1870, whether the said 
 lands be situated within the place or indemnity lim- 
 its of the grants thereby made, to any person not an 
 actual settler on the land sold to him, or in quanti- 
 ties greater than one-quarter section to one pur- 
 chaser, or for a price exceeding $2.50 per acre; and 
 from selling any of the timber on said lands, or any 
 mineral or other deposits therein, except as a part 
 of and in conjunction with the land on which the 
 timber stands or in which the mineral or other de- 
 posits are found; and from cutting or removing or 
 authorizing the cutting or removing of any of the 
 timber thereon ; or from removing or authorizing the 
 removal of mineral or other deposits therein, except 
 in connection with the sale of the land bearing the 
 timber or containing the mineral or other deposits. " 
 
 6. The Court erred in adding to the term " actual 
 settler," in said paragraph 2, the qualifying phrase 
 
32 Oregon & California R. B. Co. et al. 
 
 1 'on the land sold to him." 
 
 .7. The Court erred in adjudging and decreeing 
 that the defendants and their respective officers and 
 agents be and are by said decree enjoined from sell- 
 ing any of the timber on said lands, except as a part 
 of and in conjunction with the land on which the 
 timber stands; also from cutting or removing, or 
 authorizing the cutting or removal of any timber 
 thereon, except in connection with the sale of the 
 land bearing the timber; also from selling any min- 
 eral or other deposits in said lands, except as a part 
 of and in conjunction with the land in which the 
 mineral or other deposits are found; also from re- 
 moving or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land containing the mineral or other 
 deposits. 
 
 8. The Court erred in its said decree in incor- 
 porating into and making part of the general injunc- 
 tion therein injunctive matter touching the sale of 
 the timber on said lands, except as a part of and in 
 conjunction with the land on which the timber stands ; 
 and touching the cutting or removal, or the author- 
 izing of the cutting or removal of any of the timber 
 thereon, except in connection with the sale of the 
 land bearing such timber; likewise touching the sale 
 of any mineral or other deposits in said lands, except 
 as a part of and in conjunction with the land in which 
 the mineral or other deposits are found; and also 
 touching the removing or the authorizing of the re- 
 moval of mineral or other deposits in said land, ex- 
 cept in connection with the sale of the land containing 
 
vs. United States of America. 33 
 
 such mineral or other deposits. 
 
 9. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant in this 
 case to the railroad company, with power to sell, 
 limited only a prescribed by the Granting Act and 
 Acts. 
 
 10. The Court erred in not holding and decreeing 
 that the language of the grants herein and of the 
 limitations upon them is general, and that it was not 
 competent to the said Court to attach exceptions 
 thereto in its decree. 
 
 11. The Court erred in not holding and decreeing 
 that the terms of the settlers ' proviso or clause in the 
 Granting Act and Acts are prohibitive and not com- 
 pulsory; and in not holding and decreeing that the 
 observance of such terms would consist in refraining 
 from making sales to other than actual settlers in 
 quantities exceeding 160 acres to any one purchaser,, 
 for a price exceeding $2.50 an acre. 
 
 12. The Court erred in not holding that the com- 
 pany, under a complete and absolute grant to it, with 
 power to sell, limited only as prescribed, might choose 
 the actual settler, might sell for any price not exceed- 
 ing $2.50 an acre, and might sell in quantities of 40, 
 60, or 100 acres, or any amount not exceeding 160 
 acres. 
 
 13. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant to the 
 railroad company, with power to sell, limited only as 
 prescribed in the Granting Act and Acts ; and erred 
 in not holding and decreeing that there was no obliga- 
 tion imposed upon the railroad company to sell. 
 
34 Oregon & California R. R. Co. et al. 
 
 14. The Court erred in not holding and decreeing 
 that the Granting Act and Acts did not impose an 
 affirmative obligation on the railroad company to sell 
 the lands, and in not holding and decreeing that the 
 so-called settlers' proviso or clause in the Granting 
 Act and Acts had application only as when the rail- 
 road company made sales of the land. 
 
 15. The Court erred in not holding and decreeing 
 that the railroad company, so long as the granted 
 lands were not sold by it but remained unalienated, 
 had a complete and absolute title thereto, and under 
 such circumstances, and as the owner of such a title, 
 had the right to sell, cut, remove, or authorize the 
 cutting or removal of the timber thereon; and the 
 Court erred similarly in not so holding and decreeing 
 with reference to any mineral or other deposits in or 
 products out of said land — subject to such qualifica- 
 tion as may arise from the limited injunction refer- 
 able to the period of six months, as expressed in the 
 opinion of the Supreme Court. 
 
 16. The Court erred in not holding and decreeing 
 that the language of the so-called settler's clause or 
 proviso in the Granting Act and Acts is not directive, 
 but restrictive only, and that with this exception, so 
 far as the said timber or mineral deposits or other 
 products are concerned, or any or either of them, the 
 grant of the said lands was unqualified. 
 
 17. The Court erred in not holding and decreeing 
 that under the said Granting Act and Acts the rail- 
 road company had a discretion of sale and the choice 
 of time and settlers ; and further erred in not holding 
 and decreeing that, pending the exercise of such dis- 
 
vs. United States of America. 35 
 
 eretion by a sale in accordance with the requirements 
 of the Granting Act and Acts, the said railroad com- 
 pany had a complete and absolute grant of the lands ; 
 and was entitled, as of right, to the timber thereon 
 and to the mineral or other deposits therein, and to 
 the products of the soil thereof ; and was entitled, as 
 of right, to sell, cut, and remove such timber, or to 
 authorize the cutting or removal of the same, and to 
 remove, sell or otherwise enjoy mineral or other de- 
 posits therein, or any products of the soil thereof — 
 subject to any qualification arising out of the lim- 
 ited injunction referable to the six months' period 
 above mentioned. 
 
 18. The Court erred in not holding and decreeing 
 that the railroad company, so long as it occupied the 
 status of an owner of unalienated lands within the 
 limits of the grant and grants, had all the rights 
 therein of a grantee in fee simple, including the 
 rights of such grantee to the timber thereon or to 
 the mineral or other deposits therein, or to the pro- 
 ducts of the soil thereof — subject to any qualification 
 as aforesaid, arising out of said limited injunction. 
 
 19. The Court erred in not holding and decreeing 
 that the provision of the so-called settlers' proviso 
 and clause in the Granting Act and Acts were not 
 directive, but restrictive only ; and erred in not hold- 
 ing and decreeing that, subject to the restriction, the 
 railroad company took the grant and grants with the 
 right to cut timber thereon, or open and work mines 
 therein, or cultivate the soil thereof, and own, sell, 
 use and enjoy such timber, or the products of such 
 mines, or the cultivation of such soil— subject to any 
 
36 Oregon & California R. R. Co. et al. 
 
 qualification as aforesaid arising out of said limited 
 injunction. 
 
 20. The Court erred in not holding and decreeing 
 that timber cut upon the granted lands, while the 
 the same remained unalienated in the railroad com- 
 pany, belonged to said railroad company; and like- 
 wise as to any minerals extracted therefrom, or any 
 products of the soil cultivated thereon — subject to 
 any qualification arising out of said limited injunc- 
 tion, referable to the aforesaid period of six months. 
 
 21. The Court erred in not holding and decreeing 
 that the railroad company took the lands in question 
 in fee and was accordingly entitled to make any use 
 thereof not in violation of the restrictive covenants 
 found in the so-called settlers' proviso and clause in 
 the Granting Act and Acts, and not in violation of the 
 limited injunction as aforesaid. 
 
 22. The Court erred in making and entering a de- 
 cree herein in modification and enlargement of the 
 terms of the mandate from the Supreme Court of the 
 United States. 
 
 23. The Court erred in not making and entering a 
 decree herein responsive to the mandate of the Su- 
 preme Court of the United States, without modifica- 
 tion or enlargement, and in the terms of the opinion 
 to which the said mandate referred, and which was 
 expressive of the mandate itself. 
 
 24. The Court erred in adjudging and decreeing 
 that the complainant have and recover from the de- 
 fendants, Oregon and California Railroad Company, 
 Southern Pacific Company, Stephen T. Gage, in- 
 dividually and as trustee, and Union Trust Company, 
 
vs. United States of America. 37 
 
 individually and as trustee, and each of them, or from 
 any or either of them, any costs or disbursements 
 herein; and in adjudging and decreeing that execu- 
 tion issue against the said defendants, or any or 
 either of them, for any costs or disbursements herein. 
 
 25. The Court erred in not holding and decreeing 
 that no costs or disbursements should be recovered 
 herein from the Oregon and California Eailroad 
 Company, or the Southern Pacific Company, or 
 Stephen T. Gage, individually and as trustee, or 
 Union Trust Company, individually and as trustee, 
 or any or either of them. 
 
 26. The Court erred in not holding and decreeing 
 that the main contention of the Government, and the 
 one insisted upon in its bill of complaint and at the 
 trial of the cause, was the contention that the so- 
 called settlers ' clause and proviso in the Granting Act 
 and Acts was a condition subsequent ; and in not hold- 
 ing and decreeing that the said defendants last 
 named, and each and every of them, were justified 
 and acted of right in resisting such contention, both 
 below and on appeal ; and in not holding and decree- 
 ing that inasmuch as the said defendants had pre- 
 vailed in resisting such contention, it was not equi- 
 table to tax them, or either of them, with costs and 
 disbursements herein in favor of the complainant. 
 
 27. The Court erred in not holding and decreeing 
 that it was inequitable to impose costs herein in favor 
 of complainant on the said defendants; and in not 
 holding and decreeing that the case here should be 
 disposed of without adjudging costs in favor either 
 of said defendants or of the complainant, leaving each 
 
38 Oregon & California R. R. Co. et al. 
 
 to bear the costs of his or its own side of the litiga- 
 tion. 
 
 28. The Court erred in not making and entering 
 as and for its decree in this cause, and in place and 
 stead of the decree made and entered by it as afore- 
 said, the decree in the form tendered to it by the said 
 last-namd defendants and each and every of them — 
 that is to say, in not making and entering as its de- 
 cree in said cause, the following decree : 
 
 "In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this Court on 
 the 8th day of December, 1915, in the above-entitled 
 cause, counsel for the respective parties being pres- 
 ent, it is by the Court ordered, adjudged and decreed 
 as follows: 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Oregon and 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as trus- 
 tee, Union Trust Company, individually and as trus- 
 tee, hereinafter called the 'defendants' be, and the 
 same is hereby, set aside and held for naught, but 
 is adhered to in all respects as to the defendants and 
 cross-complainants, hereinafter called the 'cross- 
 complainants' and 'interveners.' 
 
 2. That said defendants and their respective offi- 
 cers and agents be, and each is hereby, enjoined from 
 selling the lands, or any part thereof, granted either 
 by the Act of Congress approved July 25, 1866, as 
 amended by the Act of Congress of April 10, 1869, 
 or by the Act of Congress approved May 4, 1870, 
 whether the said lands be situated within the place 
 
vs. United States of America. 39 
 
 or indemnity limits of the grants thereby made to 
 any person not an actual settler, or in quantities 
 greater than one-quarter section to one purchaser, 
 or for a price exceeding two dollars and a half 
 ($2.50) per acre. 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from any disposition of the said lands or any part 
 thereof, or of the timber thereon, and from cutting 
 or authorizing the cutting or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands in accordance with such pol- 
 icy as it may deem fitting under the circumstances, 
 and at the same time secure to the defendants all 
 the value the granting acts conferred upon the gran- 
 tees ; but if Congress does not make such provision, 
 the defendants may apply to this Court, within a 
 reasonable time, not less than six (6) months from 
 the entry of the decree herein, for a modification of 
 so much of the injunction herein ordered as enjoins 
 any disposition of the lands and timber until Con- 
 gress shall act." 
 
 WHEREFORE, this defendant, Southern Pacific 
 Company, prays that the aforesaid judgment and de- 
 cree which was made, rendered and entered herein 
 by the above-entitled Court in said No. 3340 in 
 Equity, on the 9th day of December, 1915, and that 
 each of said paragraphs of said judgment and decree 
 be reversed, excepting paragraph 1 thereof, wherein 
 it is provided : 
 
40 Oregon & California R. B. Co. et ah 
 
 "That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Ore- 
 gon & California Railroad Company, Southern 
 Pacific Company, Stephen T. Gage, individu- 
 ally and as trustee, Union Trust Company, 
 individually and as trustee, hereinafter called 
 'the defendants,' be, and the same is hereby 
 set aside and held for naught, but is adhered 
 to in all respects as to the defendants and cross 
 complainants, hereinafter called the 'cross- 
 complainants,' and the interveners," 
 
 and particularly that paragraph 2 and that para- 
 graph 7 of said judgment and decree be reversed, 
 and for such other relief to this defendant, said Ore- 
 gon and California Railroad Company, said Stephen 
 T. Gage, individually and as trustee, and said Union 
 Trust Company, individually and as Trustee, as may 
 
 be proper. 
 
 WM. F. HERRIN, 
 
 P. F. DUNNE, 
 
 WM. D. FENTON, 
 
 Solicitors and Attorneys for said Southern Pacific 
 
 Company. 
 
 Service of the foregoing Assignments of Errors 
 
 admitted this 8th day of January, 1916. 
 
 JOHN W. DAVIS, 
 
 Solicitor General of the United States. 
 
 C. J. SMYTH, 
 
 Special Assistant to the Attorney General, 
 
 Solicitors and Attorneys for Appellee. 
 
 CLARENCE L. REAMES, 
 
 United States Attorney. 
 
 Filed January 8, 1916. G. H. Marsh, Clerk. 
 
vs. United States of America. 41 
 
 And afterwards, to wit, on the 8th day of January, 
 1916, there was duly filed in said court and cause, an 
 Assignment of Errors by Stephen T. Gage (individu- 
 ally and as trustee), in words and figures as follows, 
 to wit: 
 
 DEFENDANT STEPHEN T. GAGE'S (Individ- 
 ually and as Trustee) ASSIGNMENT OF 
 ERRORS. 
 The defendant, Stephen T. Gage, individually and 
 as trustee, complains of errors in the proceedings in 
 this case in the District Court of the United States 
 for the District of Oregon, in the above cause, No. 
 3340 in Equity, and in the decision, judgment and 
 decree rendered, made and entered therein on the 
 9th day of December, 1915, under and in alleged pur- 
 suance of the mandate of the Supreme Court of the 
 United States theretofore filed in said cause on De- 
 cember 8th, 1915, and assigns the following as the 
 errors complained of: 
 
 1. The Court erred in making and entering the 
 said decree of December 9th, 1915. 
 
 2. The Court erred in not pursuing the mandate 
 of the Supreme Court of the United States thereto- 
 fore filed in said cause on December 8th, 1915. 
 
 3. The said decree of December 9th, 1915, is not 
 in pursuance of the said mandate, and the Court ac- 
 cordingly erred in making and entering such decree. 
 
 4. The Court erred in making and entering the 
 said decree of December 9th, 1915, and each and 
 every paragrah thereof. 
 
 5. The Court erred in adjudging and decreeing, 
 
42 Oregon & California R. R. Co. et al. 
 
 as in paragraph 2 of its decree set forth, "that the 
 defendants and their respective officers and agents 
 be, and each is hereby enjoined from selling the lands 
 or any part thereof granted either by the Act of Con- 
 gress approved July 25, 1866, as amended by the Act 
 of Congress of April 10, 1869, or by the Act of Con- 
 gress approved May 4, 1870, whether the said lands 
 be situated within the place or indemnity limits of: 
 the grants thereby made, to any person not an actual 
 settler on the land sold to him, or in quantities greater 
 than one-quarter section to one purchaser, or for a 
 price exceeding $2.50 per acre ; and from selling any 
 of the timber on said lands, or any mineral or other 
 deposits therein, except as a part of and in conjunc- 
 tion with the land on which the timber stands or in 
 which the mineral or other deposits are found; and 
 from cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon; or from 
 removing or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land bearing the timber or containing the 
 mineral or other deposits." 
 
 6. The Court erred in adding to the term ' ' actual 
 settler," in said paragraph 2, the qualifying phrase 
 "on the land sold to him." 
 
 7. The Court erred in adjudging and decreeing 
 that the defendants and their respective officers and 
 agents be and are by said decree enjoined from sell- 
 ing any of the timber on said lands, except as a part 
 of and in conjunction with the land on which the 
 timber stands ; also from cutting or removing, or au- 
 thorizing the cutting or removal of any timber 
 
vs. United States of America. 4B 
 
 thereon, except in connection with the sale of the 
 land bearing the timber; also from selling any min- 
 eral or other deposits in said lands, except as a part 
 of and in conjunction with the land in which the min- 
 eral or other deposits are found; also from remov- 
 ing or authorizing the removal of mineral or other 
 deposits therein, except in connection with the sale 
 of the land containing the mineral or other deposits. 
 8. The Court erred in its said decree in incorpo- 
 rating into and making part of the general injunc- 
 tion therein injunctive matter touching the sale of 
 the timber on said lands, except as a part of and in 
 conjunction with the land on which the timber 
 stands ; and touching the cutting or removal, or the 
 authorizing of the cutting or removal of any of the 
 timber thereon, except in connection with the sale of 
 the land bearing such timber; likewise touching the 
 sale of any mineral or other deposits in said lands, 
 except as a part of and in conjunction with the land 
 in which the mineral or other deposits are found; 
 and also touching the removing or the authorizing of 
 the removal of mineral or other deposits in said land, 
 except in connection with the sale of the land con- 
 taining such mineral or other deposits. 
 
 9. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant in this 
 case to the railroad company, with power to sell, 
 limited only as prescribed by the Granting Act and 
 Acts. 
 
 10. The Court erred in not holding and decree- 
 ing that the language of the grants herein and of the 
 limitations upon them is general, and that it was not 
 
44 Oregon & California R. R. Co. et al. 
 
 Competent to the said Court to attach exceptions 
 thereto in its decree. 
 
 11. The Court erred in not holding and decree- 
 ing that the terms of the settlers' proviso or clause 
 in the Granting Act and Acts are prohibitive and 
 not compulsory; and in not holding and decreeing 
 that the observance of such terms would consist in 
 refraining from making sales to other than actual 
 settlers in quantities exceeding 160 acres to any one 
 purchaser, for a price exceeding $2.50 an acre. 
 
 12. That the Court erred in not holding that the 
 company, under a complete and absolute grant to it, 
 with power to sell, limited only as prescribed, might 
 choose the actual settler, might sell for any price 
 not exceeding $2.50 an acre, and might sell in quan- 
 tities of 40, 60 or 100 acres, or any amount not ex- 
 ceeding 160 acres. 
 
 13. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant to the 
 railroad company, with power to sell, limited only 
 as prescribed in the Granting Act and Acts; and 
 erred in not holding and decreeing that there was 
 no obligation imposed upon the railroad company 
 to sell. 
 
 14. The Court erred in not holding and decree- 
 ing that the Granting Act and Acts did not impose 
 an affirmative obligation on the railroad company 
 to sell the lands, and in not holding and decreeing 
 that the so-called settlers' proviso or clause in the 
 Granting Act and Acts had application only as and 
 when the railroad company made sales of the land. 
 
 15. The Court erred in not holding and decree- 
 
vs. United States of America. 4'5 
 
 ing that the railroad company, so long as the granted 
 lands were not sold by it but remained unalienated, 
 had a complete and absolute title thereto, and under 
 such circumstances, and as the owner of such a title; 
 had the right to sell, cut, remove, or authorize the 
 cutting or removal of the timber thereon; and the 
 Court erred similarly in not so holding and decree- 
 ing with reference to any mineral or other deposits 
 in or products out of said land — subject to iSuch 
 qualification as may arise from the limited injunc- 
 tion referable to the period of six months, as ex- 
 pressed in the opinion of the Supreme Court. 
 
 16. The Court erred in not holding and decree- 
 ing that the language of the so-called settlers' clause 
 <or proviso in the Granting Act and Acts is not 
 directive, but restrictive only, and that with this ex- 
 ception, so far as the said timber or mineral deposits 
 or other products are concerned, or any or either of 
 them, the grant of the said lands was unqualified. 
 
 17. The Court erred in not holding and decree- 
 ing that under the said Granting Act and Acts the 
 railroad company had a discretion of sale and the 
 choice of time and settlers; and further erred in not 
 holding and decreeing that, pending the exercise of 
 such discretion by a sale in accordance with the re- 
 quirements of the Granting Act and Acts, the said 
 railroad company had a complete and absolute grant 
 of the lands; and was entitled, as of right, to the 
 timber thereon and to the mineral or other de- 
 posits therein, and to the products of the soil there- 
 of; and was entitled, as of right, to sell, cut, and 
 
46 Oregon & California R. B. Co. et al. 
 
 remove such timber, or to authorize the cutting or 
 removal of the same, and to remove, sell or other- 
 wise enjoy mineral or other deposits therein, or any 
 products of the soil thereof — subject to any qualifi- 
 cation arising out of the limited injunction referable 
 to the six months' period above mentioned. 
 
 18. The Court erred in not holding and decree- 
 ing that the railroad company, so long as it occupied 
 the status of an owner of unalienated lands within 
 the limits of the grant and grants, had all the rights 
 therein of a grantee in fee simple, including the 
 rights of such grantee to the timber thereon, or to 
 the mineral or other deposits therein, or to the pro- 
 ducts of the soil thereof — subject to any qualifica- 
 tion as aforesaid, arising out of said limited in- 
 junction. 
 
 19. The Court erred in not holding and decree- 
 ing that the provisions of the so-called settler's pro- 
 viso and clause in the Granting Act and Acts were 
 not directive, but restrictive only; and erred in not 
 holding and decreeing that, subject to the restric- 
 tion, the railroad company took the grant and 
 grants with the right to cut timber thereon, or open 
 and work mines therein, or cultivate the soil 
 thereof, and own, sell, use and enjoy such timber, 
 or the products of such mines, or the cultivation of 
 such soil — subject to any qualification as aforesaid 
 arising out of said limited injunction. 
 
 20. The Court erred in not holding and decree- 
 ing that timber cut upon the granted lands, while 
 the same remained unalienated in the railroad com- 
 pany, belonged to said railroad company; and like- 
 
vs. United States of America. 47 
 
 wise as to any minerals extracted therefrom, or any 
 products of the soil cultivated thereon — subject to 
 any qualification arising out of said limited injunc- 
 tion, referable to the aforesaid period of six months. 
 
 21. The Court erred in not holding and decree- 
 ing that the railroad company took the lands in ques- 
 tion in fee and was accordingly entitled to make 
 any use thereof not in violation of the restrictive 
 covenants found in the so-called settlers' proviso 
 and clause in the Granting Act and Acts, and not 
 in violation of the limited injunction as aforesaid. 
 
 22. The Court erred in making and entering a 
 decree herein in modification and enlargement of 
 the terms of the mandate from the Supreme Court 
 of the United States. 
 
 23. The Court erred in not making and entering 
 a decree herein responsive to the mandate of the 
 Supreme Court of the United States, without modi- 
 fication or enlargement, and in the terms of the 
 opinion to which the said mandate referred, and 
 which was expressive of the mandate itself. 
 
 24. The Court erred in adjudging and decreeing 
 that the complainant have and recover from the de- 
 fendants, Oregon and California Eailroad Company, 
 Southern Pacific Company, Stephen T. Gage, indi- 
 vidually and as trustee, and Union Trust Company, 
 individually and as trustee, and each of them, or 
 from any or either of them, any costs or disburse- 
 ments herein; and in adjudging and decreeing that 
 execution issue against the said defendants, or any 
 or either of them, for any costs or disbursements 
 herein. 
 
48 Oregon de California R. E. Co. et al. 
 
 25. The Court erred in not holding and decree- 
 ing that no costs or disbursements should be recov- 
 ered herein from the Oregon and California Rail- 
 road Company, or the Southern Pacific Company, 
 or Stephen T. Gage, individually and as trustee, or 
 Union Trust Company, individually and as trustee, 
 or any or either of them. 
 
 26. The Court erred in not holding and decree- 
 ing that the main contention of the Government, 
 and the one insisted upon in its bill of complaint 
 and at the trial of the cause, was the contention that 
 the so-called settlers' clause and proviso in the 
 Granting Act and Acts was a condition subsequent ; 
 and in not holding and decreeing that the said de- 
 fendants last named, and each and every of them, 
 were justified and acted of right in resisting suck 
 contention, both below and on appeal; and in not 
 holding and decreeing that inasmuch as the said de- 
 fendants had prevailed in resisting such contention, 
 it was not equitable to tax them, or either of them, 
 with costs and disbursements herein in favor of the 
 complainant. 
 
 27. The Court erred in not holding and decree- 
 ing that it was inequitable to impose costs herein in 
 favor of complainant on the said defendants ; and in 
 not holding and decreeing that the case here should 
 be disposed of without adjudging costs in favor 
 either of said defendants or of the complainant, 
 leaving each to bear the costs of his or its own side 
 of the litigation. 
 
 28. The Court erred in not making and entering 
 as and for its decree in this cause, and in place and 
 
vs. United States of America. 4'9 
 
 stead of the decree made and entered by it as afore- 
 said, the decree in the form tendered to it by the said 
 last-named defendants and each and every of 
 them — that is to say, in not making and entering as 
 its decree in said cause, the following decree : 
 
 "In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this Court on the 
 8th day of December, 1915, in the above-entitled 
 cause, counsel for the respective parties being pres- 
 ent, it is by the Court ordered, adjudged and decreed 
 as follows: 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Oregon and 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as 
 trustee, Union Trust Company, individually and as 
 trustee, hereinafter called the 'defendants' be, and 
 the same is hereby, set aside and held for naught, 
 but is adhered to in all respects as to the defendants 
 and cross-complainants, hereinafter called the 
 'cross-complainants' and * interveners. ' 
 
 2. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from selling the lands, or any part thereof, granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 
 10, 1869, or by the Act of Congress approved May 4, 
 1870, whether the said lands be situated within the 
 place or indemnity limits of the grants thereby 
 made to any person not an actual settler, or in quan- 
 tities greater than one-quarter section to one pur- 
 
50 Oregon & California R. E. Co. et al. 
 
 chaser, or for a price exceeding two dollars and a 
 half ($2.50) per acre. 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from any disposition of the said lands or any part 
 thereof, or of the timber thereon, and from cutting 
 or authorizing the cutting or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands in accordance with such 
 policy as it may deem fitting under the circum- 
 stances, and at the same time secure to the defend- 
 ants all the value the granting acts conferred upon 
 the grantees; but if Congress does not make such 
 provision, the defendants may apply to this Court, 
 within a reasonable time, not less than six (6) 
 months from the entry of the decree herein, for a 
 modification of so much of the injunction herein 
 ordered as enjoins any disposition of the lands and 
 timber until Congress shall act." 
 
 WHEREFORE, this defendant, Stephen T. 
 Gage, individually and as trustee, prays that the 
 aforesaid judgment and decree which was made, 
 rendered and entered herein by the above-entitled 
 Court in said cause No. 3340 in Equity, on the 9th 
 day of December, 1915, and that each of said para- 
 graphs of said judgment and decree be reversed, ex- 
 cepting paragraph 1 thereof, wherein it is provided : 
 "That the decree heretofore entered in said 
 cause, so far as it affects the defendants, Ore- 
 gon & California Railroad Company, Southern 
 
vs. United States of America. 51 
 
 Pacific Company, Stephen T. Gage, individu- 
 ally and as Trustee, Union Trust Company, 
 individually and as trustee, hereinafter called 
 'the defendants,' be, and the same is hereby 
 set aside and held for naught, but is adhered 
 to in all respects as to the defendants and cross- 
 complainants, hereinafter called the 'cross- 
 complainants,' and the interveners," 
 and particularly that paragraph 2 and that para- 
 graph 7 of said judgment and decree be reversed, 
 and for such other relief to this defendant, said 
 Oregon and California Railroad Company, said 
 Southern Pacific Company, and said Union Trust 
 Company, individually and as Trustee, as may be 
 
 proper. 
 
 WM. F. HEREIN, 
 
 P. F. DUNNE, 
 
 WM. D. FENTON, 
 
 Solicitors and Attorneys for said Stephen T. Gage, 
 individually and as Trustee. 
 Service of the foregoing Assignments of Errors 
 admitted this 8th day of January, 1916. 
 JOHN W. DAVIS, 
 Solicitor General of the United States. 
 C. J. SMYTH, 
 Special Assistant to the Attorney General, 
 Solicitors and Attorneys for Appellee. 
 CLARENCE L. REAMES, 
 United States Attorney. 
 Filed Jan. 8, 1916. G. H. Marsh, Clerk. 
 And afterwards, to wit, on the 8th day of January, 
 1916, there was duly filed in said Court, and cause, 
 an Assignment of Errors by the Union Trust Com- 
 
52 Oregon cfr California R. R. Co. et al. 
 
 pany (individually and as trustee), in words and 
 figures as follows, to wit: 
 
 DEFENDANT UNION TRUST COMPANY'S 
 (Individually and as Trustee) ASSIGNMENT 
 OF ERRORS. 
 
 The defendant, Union Trust Company, individu- 
 ally and as trustee, complains of errors in the pro- 
 ceedings in this case in the District Court of the 
 United States for the District of Oregon, in the 
 above cause, No. 3340 in Equity, and in the decision, 
 judgment and decree rendered, made and entered 
 therein on the 9th day of December, 1915, under and 
 in alleged pursuance of the mandate of the Supreme 
 Court of the United States theretofore filed in said 
 cause on December 8th, 1915, and assigns the follow- 
 ing as the errors complained of: 
 
 1. The Court erred in making and entering the 
 said decree of December 9th, 1915. 
 
 2. The Court erred in not pursuing the mandate 
 of the Supreme Court of the United States thereto- 
 fore filed in said cause on December 8th, 1915. 
 
 3. The said decree of December 9th, 1915, is not 
 in pursuance of the said mandate, and the Court ac- 
 cordingly erred in making and entering such decree. 
 
 4. The Court erred in making and entering the 
 said decree of December 9th, 1915, and each and 
 every paragraph thereof. 
 
 5. The Court erred in adjudging and decreeing, 
 as in paragraph 2 of its decree set forth, "that the 
 defendants and their respective officers and agents 
 be, and each is hereby, enjoined from selling the 
 
vs. United States of America. 53 
 
 lands or any part thereof granted either by the Act 
 of Congress approved July 25, 1866, as amended by 
 the Act of Congress of April 10, 1869, or by the Act 
 of Congress approved May 4, 1870, whether the said 
 lands be situated within the place or indemnity 
 limits of the grants thereby made, to any person not 
 an actual settler on the land sold to him, or in quan- 
 tities greater than one-quarter section to one pur- 
 chaser, or for a price exceeding $2.50 per acre ; and 
 from selling any of the timber on said lands, or any 
 mineral or other deposits therein, except as a part of 
 and in conjunction with the land on which the tim- 
 ber stands or in which the mineral or other deposits 
 are found ; and from cutting or removing or author- 
 izing the cutting or removal of any of the timber 
 thereon; or from removing or authorizing the re- 
 moval of mineral or other deposits therein, except 
 in connection with the sale of the land bearing the 
 timber or containing the mineral or other deposits. ' ' 
 
 6. The Court erred in adding to the term "actual 
 settler," in said paragraph 2, the qualifying phrase 
 "on the land sold to him." 
 
 7. The Court erred in adjudging and decreeing 
 that the defendants and their respective officers and 
 agents be and are by said decree enjoined from sell- 
 ing any of the timber on said lands, except as a part 
 of and in conjunction with the land on which the 
 timber stands; also from cutting or removing, or 
 authorizing the cutting or removal, of any timber 
 thereon, except in connection with the sale of the 
 land bearing the timber; also from selling any min- 
 eral or any other deposits in said lands, except as a 
 
54 Oregon & California R. R. Go. et ah 
 
 part of and in conjunction with the land in which 
 the mineral or other deposits are found; also from 
 removing or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land containing the mineral or other de- 
 posits. 
 
 8. The Court erred in its said decree in incorpo- 
 rating into and making part of the general injunc- 
 tion therein injunctive matter touching the sale of 
 the timber of said lands, except as a part of and in 
 conjunction with the land on which the timber 
 stands; and touching the cutting or removal, or the 
 authorizing of the cutting or removal, of any of the 
 timber thereon, except in connection with the sale 
 of the land bearing such timber; likewise touching 
 the sale of any mineral or other deposits in said 
 lands, except as part of and in conjunction with the 
 land in which the mineral or other deposits are 
 found ; and also touching the removal or the author- 
 izing of the removal of mineral or other deposits in 
 said land, except in connection with the sale of the 
 land containing such mineral or other deposits. 
 
 9. The Court erred in not holding and decreeing 
 that there was a complete and absolute grant in this 
 case to the railroad company, with power to sell, 
 limited only as prescribed by the Granting Act and 
 Acts. 
 
 10. The Court erred in not holding and decree- 
 ing that the language of the grants herein and of the 
 limitations upon them is general, and that it was not 
 competent to the said Court to attach exceptions 
 thereto in its decree. 
 
vs. United States of America. 55 
 
 11. The Court erred in. not holding and decreeing 
 that the terms of the Settlers' Proviso or clause in 
 the Granting Act and Acts are prohibitive and not 
 compulsory; and in not holding and decreeing that 
 the observance of such terms would consist in re- 
 fraining from making sales to other than actual set- 
 tlers in quantities exceeding 160 acres to any one 
 purchaser, for a price exceeding $2.50 an acre. 
 
 12. The Court erred in not holding that the com- 
 pany, under a complete and absolute grant to it, with 
 power to sell, limited only as prescribed, might 
 choose the actual settler, might sell for any price 
 not exceeding $2.50 an acre, and might sell in quan- 
 tities of 40, 60, or 100 acres, or any amount not ex- 
 ceeding 160 acres. 
 
 13. The Court erred in not holding and decree- 
 ing that there was a complete and absolute grant to 
 the railroad company, with power to sell, limited 
 only as prescribed in the Granting Act and Acts; 
 and erred in not holding and decreeing that there 
 was no obligation imposed upon the railroad com- 
 pany to sell. 
 
 14. The Court erred in not holding and decree- 
 ing that the Granting Act and Acts did not impose 
 an affirmative obligation on the railroad company to 
 sell the lands, and in not holding and decreeing that 
 the so-called Settlers Proviso or clause in the Grant- 
 ing Act and Acts had application only as and when 
 the railroad company made sales of the land. 
 
 15. The Court erred in not holding and decree- 
 ing that the railroad company, so long as the granted 
 lands were not sold by it but remained unalienated, 
 
56 Oregon & California B. R. Co. et al. 
 
 had a complete and absolute title thereto, and under 
 such circumstances, and as the owner of such a title, 
 had the right to sell, cut, remove, or authorize the 
 cutting or removal of the timber thereon; and the 
 Court erred similarly in not so holding and decree- 
 ing with reference to any mineral or other deposits 
 in or products out of said lands — subject to such 
 qualification as may arise from the limited injunc- 
 tion referable to the period of six months, as ex- 
 pressed in the opinion of the Supreme Court. 
 
 16. The Court erred in not holding and decree- 
 ing that the language of the so-called Settlers Clause 
 or proviso in the Granting Act and Acts is not direc- 
 tive, but restrictive only, and that with this excep- 
 tion, so far as the said timber or mineral deposits or 
 other products are concerned, or any or either of 
 them, the grant of the said lands were unqualified. 
 
 17. The Court erred in not holding and decree- 
 ing that under the said Granting Act and Acts the 
 railroad company had a discretion of sale and the 
 choice of time and settlers ; and further erred in not 
 holding and decreeing that, pending the exercise of 
 such discretion by a sale in accordance with the 
 requirements of the Granting Act and Acts, the said 
 railroad company had a complete and absolute grant 
 of the lands ; and was entitled as of right, to the tim- 
 ber thereon and to the mineral or other deposits 
 therein, and to the products of the soil thereof ; and 
 was entitled, as of right, to sell, cut and remove such 
 timber, or to authorize the cutting or removal of the 
 same, and to remove, sell or otherwise enjoy min- 
 eral or other deposits therein, or any products of 
 
vs. United States of America. 57 
 
 the soil thereof — subject to any qualification arising 
 out of the limited injunction referable to the six 
 months' period above mentioned. 
 
 18. The Court erred in not holding and decree- 
 ing that the railroad company, so long as it occupied 
 the status of an owner of unalienated lands within 
 the limits of the grant and grants, had all the rights 
 therein of a grantee in fee simple, including the 
 rights of such grantee to the timber thereon, or to 
 the mineral or other deposits therein, or to the pro- 
 ducts of the soil thereof — subject to any qualifica- 
 tion as aforesaid, arising out of said limited injunc- 
 tion. 
 
 19. The Court erred in not holding and decree- 
 ing that the provisions of the so-called Settlers Pro- 
 viso and clause in the Granting Act and Acts were 
 not directive, but restrictive only ; and erred in not 
 holding and decreeing that, subject to the restric- 
 tion, the railroad company took the grant and grants 
 with the right to cut timber thereon, or open and 
 work mines therein, or cultivate the soil thereof, and 
 own, sell, use and enjoy such timber, or the products 
 of such mines, or the cultivation of such soil — sub- 
 ject to any qualification as aforesaid arising out of 
 said limited injunction. 
 
 20. The Court erred in not holding and decree- 
 ing that timber cut upon the granted lands, while the 
 same remained unalienated in the railroad company, 
 belonged to said railroad company ; and likewise as 
 to any minerals extracted therefrom, or any pro- 
 ducts of the soil cultivated thereon — subject to any 
 qualification arising out of said limited injunction, 
 
58 Oregon <& California R. R. Co. et al. 
 
 referable to the aforesaid period of six months. 
 
 21. The Court erred in not holding and decree- 
 ing that the railroad company took the lands in ques- 
 tion in fee and was accordingly entitled to make any 
 use thereof not in violation of the restrictive coven- 
 ants found in the so-called Settlers Proviso and 
 clause in the Granting Act and Acts, and not in vio- 
 lation of the limited injunction as aforesaid. 
 
 22. The Court erred in making and entering a 
 decree herein in modification and enlargement of 
 the terms of the mandate from the Supreme Court 
 of the United States. 
 
 23. The Court erred in not making and entering 
 a decree herein responsive to the mandate of the 
 Supreme Court of the United States, without modi- 
 fication or enlargement, and in the terms of the opin- 
 ion to which the said mandate referred, and which 
 w T as expressive of the mandate itself. 
 
 24. The Court erred in adjudging and decreeing 
 that the complainant have and recover from the de- 
 fendants, Oregon and California Railroad Company, 
 Southern Pacific Company, Stephen T. Gage, indi- 
 vidually and as trustee, and Union Trust Company, 
 individually and as trustee, and each of them, or 
 from any or either of them, any costs or disburse- 
 ments herein, and in adjudging and decreeing that 
 execution issue against the said defendants or any 
 or either of them, for any costs or disbursements 
 herein. 
 
 25. The Court erred in not holding and decreeing 
 that no costs or disbursements should be recovered 
 herein from the Oregon and California Railroad 
 
vs. United States of America. 59 
 
 Company, or the Southern Pacific Company, or 
 Stephen T. Gage, individually and as trustee, or 
 Union Trust Company, individually and as trustee, 
 or any or either of them. 
 
 26. The Court erred in not holding and decreeing 
 that the main contention of the Government, and the 
 one insisted upon in its bill of complaint and at the 
 trial of the cause, was the contention that the so- 
 called Settlers Clause and proviso in the Granting 
 Act and Acts was a condition subsequent; and in not 
 holding and decreeing that the said defendants last 
 named, and each and every of them, were justified 
 and acted of right in resisting such contention, both 
 below and on appeal; and in not holding and decree- 
 ing that inasmuch as the said defendants had pre- 
 vailed in resisting such contention, it was not equi- 
 table to tax them or either of them with costs and 
 disbursements herein in favor of the complainant. 
 
 27. The Court erred in not holding and decreeing 
 that it was inequitable to impose costs herein in 
 favor of complainant on the said defendants ; and in 
 not holding and decreeing that the case here should 
 be disposed of without adjudging costs in favor 
 either of said defendants or of the complainant, 
 leaving each to bear the costs of his or its own side 
 of the litigation. 
 
 28. The Court erred in not making and entering 
 as and for its decree in this cause, and in place and 
 stead of the decree made and entered by it as afore- 
 said, the decree in the form tendered to it by said 
 last-named defendants and each and every of them : 
 — that is to say, in not making and entering as its de- 
 
60 Oregon & California R. R. Co. et al. 
 
 cree in said cause the following decree: 
 
 "In pursuance of the mandate of the Supreme 
 Court of the United States, filed in this court on the 
 8th day of December, 1915, in the above-entitled 
 cause, counsel for the respective parties being pres- 
 ent, it is by the Court ordered, adjudged and decreed 
 as follows: 
 
 1. That the decree heretofore entered in said 
 cause, so far as it affect the defendants Oregon and 
 California Railroad Company, Southern Pacific 
 Company, Stephen T. Gage, individually and as trus- 
 tee, Union Trust Company, individually and as trus- 
 tee, hereinafter called the 'defendants,' be and the 
 same is hereby set aside and held for naught, but is 
 adhered to in all respects as to the defendants and 
 cross-complainants, hereinafter called the 'cross- 
 complainants' and 'interveners.' 
 
 2. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from selling the lands, or any part thereof, granted 
 either by the Act of Congress approved July 25, 
 1866, as amended by the Act of Congress of April 10, 
 
 1869, or by the Act of Congress approved May 4, 
 
 1870, whether the said lands be situated within the 
 place or indemnity limits of the grants thereby made 
 to any person not an actual settler, or in quantities 
 greater than one-quarter section to one purchaser, 
 or for a price exceeding two dollars and a half 
 ($2.50) per acre. 
 
 3. That the said defendants and their respective 
 officers and agents be, and each is hereby, enjoined 
 from any disposition of the said lands or any part 
 
vs. United States of America. 61 
 
 thereof, or of the timber thereon, and from cutting 
 or authorizing the cutting or removal of any of the 
 timber thereon, until Congress shall have a reason- 
 able opportunity to provide by legislation for the 
 disposition of said lands in accordance with such pol- 
 icy as it may deem fitting under the circumstances, 
 and at the same time secure to the defendants all the 
 value the granting acts conferred upon the grantees; 
 but if Congress does not make such provision, the 
 defendants may apply to this Court, within a reason- 
 able time, not less than six (6) months from the 
 entry of the decree herein, for a modification of so 
 much of the injunction herein ordered as enjoins 
 any disposition of the lands and timber until Con- 
 gress shall act." 
 
 WHEREFORE, this defendant, Union Trust 
 Company, individually and as trustee, prays that the 
 aforesaid judgment and decree which was made, 
 rendered and entered herein by the above-entitled 
 court in said cause No. 3340 in Equity, on the 9th 
 day of December, 1915, and that each of said para- 
 graphs of said judgment and decree be reversed, ex- 
 cepting paragraph 1 thereof, wherein it is provided: 
 "That the decree heretofore entered in said 
 cause so far as it affects the defendants, Ore- 
 gon & California Railroad Company, Southern 
 Pacific Companj^, Stephen T. Gage, individually 
 and as trustee, Union Trust Company, individu- 
 ally and as trustee, hereinafter called 'the 
 defendants,' be, and the same is hereby, set 
 aside and held for naught, but is adhered to in 
 all respects as to the defendants and crosscom- 
 
62 Oregon & California B. R. Co. et al. 
 
 plainants, hereinafter called the 'cross-com- 
 plaiants' and the interveners," 
 and particularly that paragraph 2 and that para- 
 graph 7 of said judgment and decree be reversed, 
 and for such other relief to this defendant, said Ore- 
 gon & California Railroad Company, said Southern 
 Pacific Company, and said Stephen T. Gage, indi- 
 vidually and as trustee, as may be proper. 
 
 MILLER, KING, LANE & TRAFFORD, 
 DOLPH, MALLORY, SIMON & GEARIN, 
 JOHN C. SPOONER, JOHN M. GEARIN, 
 Solicitors for said Union Trust Company, Individu- 
 ally and as Trustee. 
 Service of the foregoing Assignments of Errors 
 admitted this 8th day of January, 1916. 
 
 JOHN W. DAVIS, 
 Solicitor-General of the United States. 
 C. J. SMYTH, 
 Special Assistant to the Attorney-General, 
 Solicitors and Attorneys for Appellee. 
 CLARENCE L. REAMES, 
 United States Attorney. 
 Filed January 8, 1916. G. H. Marsh, Clerk. 
 
 The following stipulation, relative to the record 
 on appeal was made and the following order entered: 
 
 STIPULATION RELATIVE TO RECORD ON 
 
 APPEAL. 
 
 IT IS HEREBY STIPULATED by and between 
 the complainant. United States of America, and the 
 defendants above named, and each of them, as fol- 
 lows: 
 
 1. That on the appeal taken by the above-named 
 
vs. United States of America. 63 
 
 defendants on the 8th day of January, 1916, to the 
 United States Circuit Court, of Appeals for the 
 Ninth Circuit from the judgment and decree made 
 and entered in the United States District Court for 
 the District of Oregon in said cause No. 3340 in 
 Equity, on December 9, 1915, said United States Cir- 
 cuit Court of Appeals may, in so far as the same may 
 be relevant or material, consider the printed tran- 
 script of the record filed in said Circuit Court of 
 Appeals on the former appeals taken in said cause 
 No. 3340 from the decree of said United States Dis- 
 trict Court, entered July 1, 1913, and may consider 
 any part or portions of said transcript, including the 
 pleadings in the cause, the statement of the evidence 
 and the exhibits or any of them contained in said 
 printed transcript of record. 
 
 2. That in the even that said United States Cir- 
 cuit Court of Appeals should certify to the Supreme 
 Court of the United States any questions or ques- 
 tion or propositions or proposition of law upon 
 which it desires the instruction of that court for 
 its proper decision in passing upon the aforesaid 
 appeal or that said Supreme Court should require 
 that the whole record and cause be sent up to it 
 for its consideration, or in the event that an ap- 
 peal should be prosecuted to said Supreme Court 
 from any judgment rendered on the aforesaid ap- 
 peal of said cause taken on said 8th day of Janu- 
 ary, 1916, to said United States Circuit Court of 
 Appeals or that said appeal taken on January 8, 
 1916, should in any other manner be hereafter 
 
64 Oregon & California R. R. Co. et at. 
 
 brought on for hearing in said Supreme Court, said 
 Supreme Court of the United States may, in so far 
 as the same may be relevant or material, consider 
 the printed transcript of the record on the aforesaid 
 former appeals in said cause, which is now on file in 
 said Supreme Court, including the pleadings, the 
 statement of the evidence and the exhibits or any 
 of them contained in said printed transcript of 
 record. 
 
 3. Such printed transcript of the record on said 
 former appeals, as now on file in said Circuit Court 
 of Appeals and also on file in said Supreme Court, 
 shall be deemed a part of the record on the aforesaid 
 appeal taken on January 8, 1916, to said Circuit 
 Court of Appeals, and on any appeal which may be 
 taken to said Supreme Court from the judgment of 
 said Circuit Court of Appeals rendered on said last- 
 mentioned appeal or in any other hearing growing 
 out of said appeal which may be had before said 
 Supreme Court as in last above paragraph hereof 
 mentioned; and, as such, it may, in so far as the same 
 may be deemed relevant or material, be referred to 
 by counsel of any of the parties hereto, either in said 
 Circuit Court of Appeals or in said Supreme Court. 
 
 4. There shall not be included or printed in the 
 transcript of record on the aforesaid appeal taken 
 by defendants on January 8, 1916, to said United 
 States Circuit Court of Appeals, any of the plead- 
 ings, papers or documents filed, or proceedings had, 
 in said United States District Court in said cause 
 prior to December 8, 1915, and the clerk of the court, 
 in making, and directing the printing of, said tran- 
 
vs. United States of America. 65 
 
 script of record, shall omit therefrom any of said 
 pleadings, papers, documents or proceedings filed 
 or had in said court and cause prior to December 8, 
 1915 — provided, however, that it may be stated or 
 shown in said transcript on what date the mandate 
 issued by said Supreme Court upon its opinion ren- 
 dered June 21, 1915, on the former appeals in the 
 cause (No. 679 — October term, 1914) was received 
 by the clerk of said United States District Court. 
 Said clerk shall include, among the other papers, 
 documents, files and proceedings to be incorporated 
 in said transcript, a copy of said opinion of the Su- 
 preme Court and also a copy of the aforesaid man- 
 date of said Supreme Court filed in said cause in said 
 District Court on December 8, 1915, omitting, how- 
 ever, from the latter, any copy of the copy of the for- 
 mer decree of said United States District Court made 
 and entered July 1, 1913, which is embodied in and 
 forms a part of said mandate. A copy of said for- 
 mer decree shall not be printed in said transcript of 
 record as a part of said mandate, but in the copy of 
 the mandate as printed in said transcript, said for- 
 mer decree may be referred to by reference to the 
 volume and pages of the record on the former ap- 
 peals taken in said cause wherein a copy of said for- 
 mer decree is set out. 
 
 5. If any statement of the record or statement on 
 appeal which may be prepared by the appellants or 
 any of them they may wish to insert a copy of said 
 mandate in and as a part of said statement, they 
 need not incorporate in said statement of the record 
 
06 Oregon & California B. R. Co. et dl. 
 
 or statement on appeal or in any statement of the 
 record or statement on appeal which may be filed by 
 any of them in said cause, a copy of said former 
 decree in said District Court entered July 1, 1913, 
 but they may in said copy of the mandate simply re- 
 fer to said former decree by reference to the volume 
 and pages of the record on said former appeals 
 wherein a copy of said former decree is set out. 
 
 6. It is further stipulated that an order of this 
 court may be made upon this stipulation containing 
 the provisions and substantially in the language as 
 above set forth in paragraphs 4 and 5 hereof. 
 
 7. It is further understood and agreed that the 
 complainant denies the right of the defendants to 
 appeal to the Circuit Court of Appeals from the de- 
 cree entered by said United States District Court on 
 December 9, 1915, denies the jurisdiction of said 
 Circuit Court of Appeals to hear and determine said 
 appeal and reserves its right to object to the defend- 
 ants prosecuting said appeal and to the jurisdiction 
 of the Circuit Court of Appeals in the matter and 
 this stipulation shall not in any wise prejudice said 
 rights or any of them, or the right of the complain- 
 ant to insist upon them, but in the event that said 
 Circuit Court of Appeals takes jurisdiction the com- 
 plainant does not waive but reserves any right it 
 may have to confine the inquiry of the court on the 
 appeal to a consideration of said mandate of the 
 Supreme Court of the United States and the decree 
 of said District Court entered December 9, 1915. 
 
 8. It is further stipulated and agreed in this re- 
 gard that the sole purpose of this stipulation is to 
 
vs. United States of America. 67 
 
 save expense in the printing of the record and to 
 avoid any duplication of the record on the present 
 appeal. 
 Dated February 1st, 1916. 
 
 CLARENCE L. REAMES, 
 United States Attorney for Oregon for and by direc- 
 tion of the Attorney-General of the United 
 States, of Solicitors and Attorneys for Com- 
 plainant. 
 
 WM. F. HERRIN, 
 P. F. DUNNE and 
 WM. D. FENTON, 
 Solicitors for Oregon and California R. R. Co., 
 Southern Pacific Co. and Stephen T. Gage, in- 
 dividually and as trustee, 
 MILLER, KING, LANE & TRAFFORD, 
 DOLPH, MALLORY, SIMON & GEARIN, 
 Solicitors for Union Trust Company Individually 
 and as Trustee. 
 Filed February 1, 1916. G. H. Marsh, Clerk. 
 
 And afterwards, to wit, on Tuesday, the 1st day 
 of February, 1916 the same being the 80th judicial 
 day of the regular November, 1915, term of said 
 Court ; present : the Honorable Charles E. Wolverton, 
 United States District Judge presiding, the follow- 
 ing proceedings were had in said cause, to wit : 
 
 ORDER REGARDING PRINTING OF 
 RECORD. 
 
 This cause came on for hearing this day upon 
 stipulation of the respective parties, dated January 
 — , 1916, as to the printing of the record on the ap- 
 
68 Oregon &- California R. R. Co. et al. 
 
 peal of the defendants, taken to the United States 
 Circuit Court of Appeals for the Ninth Circuit, from 
 the decree of this court entered December 9, 1915, 
 and as to the use in said Circuit Court of Appeals 
 and in the Supreme Court of the United States, as a 
 part of the record on appeal, of the printed tran- 
 script of record of the former appeals taken in above 
 cause No. 3340 from the decree of said District Court 
 for the District of Oregon entered July 1, 1913, and 
 it appearing to the Court that the parties have made 
 and filed a written stipulation wherein it is provided, 
 among other things, that an order substantially to 
 the following effect may be made by this Court : 
 
 It is now therefore ordered that : 
 
 1. There shall not be included or printed in the 
 transcript of record on the aforesaid appeal taken by 
 defendants on January 8, 1916, to said United States 
 Circuit Court of Appeals any of the pleadings, 
 papers or documents filed, or proceedings had, in said 
 United States District Court in said cause prior to 
 December 8, 1915, and the clerk of the court, in mak- 
 ing, and directing the printing of, said transcript 
 of record, shall omit therefrom any of said plead- 
 ings, papers, documents or proceedings filed or had 
 in said court and cause prior to December 8, 1915 — 
 provided, however, that it may be stated or shown in 
 said transcript on what date the mandate issued by 
 said Supreme Court upon its opinion rendered June 
 21, 1915, on the former appeal of the cause (No. 679 
 — October term, 1914) was received by the clerk of 
 said United States District Court. Said clerk shall 
 include, among the other papers, documents, files and 
 
vs. United States of America. 69 
 
 proceedings to be incorporated in said transcript, a 
 copy of said opinion of the Supreme Court and also 
 a copy of the aforesaid mandate of said Supreme 
 Court filed in said cause in said District Court on 
 December 8, 1915, omitting, however, from the latter, 
 any copy of the copy of the former decree of said 
 United States District Court made and entered July 
 1, 1913, which is embodied in and forms a part of 
 said mandate. A copy of said former decree shall 
 not be printed in said transcript of record as a part 
 of said mandate, but in the copy of the mandate as 
 printed in said transcript, said former decree may 
 be referred to by reference to the volume and pages 
 of the record on the former appeals taken in said 
 cause wherein a copy of said former decree is set out. 
 
 2. If in any statement of the record or statement 
 on appeal which may be prepared by the appellants 
 or any of them they may wish to insert a copy of said 
 mandate in and as a part of said statement, they 
 need not incorporate in said statement of the record 
 or statement on appeal or in any statement of the 
 record or statement on appeal which may be filed by 
 any of them in said cause, a copy of said former de- 
 cree in said District Court entered July 1, 1913, but 
 they may in said copy of the mandate simply refer 
 to said former decree by reference to the volume and 
 pages of the record on said former appeals wherein a 
 copy of said former decree is set out. 
 
 3. This order is without prejudice to the right of 
 the complainant to object to the right of the defend- 
 ants to take said appeal and to the power of the court 
 of appeals to hear and determine it and is not to be 
 
70 Oregon & California R. R. Co. et al. 
 
 construed as a waiver of any right the complainant 
 has to object to the defendants taking said appeal or 
 to the Circuit Court of Appeals hearing and deter- 
 mining it or as a waiver of its right to have the court 
 of appeals confine its inquiry on the appeal to the 
 mandate of said Supreme Court and the decree of 
 this court, entered December 9, 1915. 
 
 Dated February 1st, 1916. 
 
 CHAS. E. WOLVERTON, 
 Judge of said District Court. 
 
 Filed February 1, 1916. G. H. Marsh, Clerk. 
 
 The costs which the decree of the District Court 
 provides for were fixed at $6,249.02, by order of the 
 District Court, as follows : 
 
 ORDER TAXING COSTS. 
 Heretofore and on the 16th day of December, 1915, 
 the complainant, the United States of America, filed 
 herein its duly verified cost bill claiming costs against 
 the defendants Oregon & California Railroad Com- 
 pany, Southern Pacific Company, Stephen T. Gage, 
 individually and as trustee, and Union Trust Com- 
 pany, individually and as trustee, in the sum of 
 $6,249.02 and thereafter and on the 18th day of 
 December, 1915, the defendants, Oregon & California 
 Railroad Company, Southern Pacific Company, Ste- 
 phen T. Gage, individually and as trustee, and the 
 Union Trust Company, individually and as trustee, 
 filed herein their duly verified objections to said cost 
 bill, by which said objections the said defendants ob- 
 jected to the allowance of $350.00 for the depositions 
 of seventy witnesses : 
 
vs. United States of America. 71 
 
 Thereafter, and on the 27th day of December, 1915, 
 the matter came on regularly to be heard, the object- 
 ing defendants being present and represented by 
 William D. Fenton and John M. Gearin of their at- 
 torneys, and the complainant being represented by 
 Clarence L. Reames, United States Attorney for the 
 District of Oregon, and the Court having sat and 
 heard the statements and arguments of counsel and 
 having taken the matter under advisement to be 
 passed upon at a later date, 
 
 Now, the Court being fully advised in the premises, 
 it is ordered and adjudged that said objections be 
 and the same hereby are overruled and the clerk is 
 directed to tax as costs and disbursements against 
 the said defendants, Oregon & California Railroad 
 Company, Southern Pacific Company, Stephen T. 
 Gage, individually and as trustee, and the Union 
 Trust Company, individually and as trustee, the 
 following items, to wit: 
 
 Clerk's fees $ 383.75 
 
 Marshal's fees 269.47 
 
 Attorney's fees 40.00 
 
 Depositions of 70 witnesses before special 
 
 examiner 350.00 
 
 Examiner's fees 1,942.50 
 
 Witness fees (as appears from the records 
 
 or the marshal's office and the clerk's office 
 
 showing payment) 3,263.30 
 
 Total taxed at $6,249.02 
 
72 Oregon & California R. R. Co. et al. 
 
 Done in open court this the 3d day of January, 
 1916. 
 
 CHAS. E. WOLVEKTON, Judge. 
 
 Filed January 3, 1916. G. H. Marsh, Clerk. 
 
 On May 8th, 1916, the appeals from the decree of 
 December 9th, 1915, came on before this court for 
 hearing. 
 
 The appellants contended in substance: 
 
 I. 
 
 The Court erred in adjudging and decreeing, as 
 in paragraph 2 of its decree set forth, "that the de- 
 fendants and their respective officers and agents be, 
 and each is hereby, enjoined from selling the lands 
 or any part thereof granted either by the Act of Con- 
 gress approved July 25, 1866, as amended by the Act 
 of Congress of April 10, 1869, or by the Act of Con- 
 gress approved May 4, 1870, whether the said lands 
 be situated within the place or indemnity limits of 
 the grants thereby made, to any person not an actual 
 settler on the land sold to him, or in quantities greater 
 than one-quarter section to one purchaser, or for a 
 price exceeding $2.50 per acre ; and from selling any 
 of the timber on said lands, or any mineral or other 
 deposits therein, except as a part of and in conjunc- 
 tion with the land on which the timber stands or in 
 which the mineral or other deposits are found; and 
 from cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon; or from 
 removing or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 sale of the land bearing the timber or containing the 
 mineral or other deposits." 
 
vs. United States of America. 73 
 
 II. 
 
 And more particularly, that the Court erred, in 
 said paragraph two of its decree, in enjoining the 
 defendants "from selling any of the timber on said 
 lands, or an t y mineral or other deposits therein, ex- 
 cept as a part of and in conjunction with the land 
 on which the timber stands, or in which the mineral 
 or other deposits are found, and from cutting or re- 
 moving, or authorizing the cutting or removal of any 
 of the timber thereon, or from removing or authoriz- 
 ing the removal of mineral or other deposits therein, 
 except in connection with the sale of the land bearing 
 the timber or containing the mineral or other de- 
 posits." 
 
 The Court erred in adding to the term "actual 
 settler," in said paragraph 2, the qualifying phrase 
 "on the land sold to him." 
 
 The Court erred in adjudging and decreeing that 
 the defendants and their respective officers and 
 agents be and are by said decree enjoined from sell- 
 ing any of the timber on said lands, except as a part 
 of and in conjunction with the land on which the 
 timber stands; also from cutting or removing, or 
 authorizing the cutting or removal of any timber 
 thereon, except in connection w T ith the sale of the 
 land bearing the timber ; also from selling any min- 
 eral or other deposits in said lands, except as a part 
 of and in conjunction w T ith the land in which the 
 mineral or other deposits are found; also from re- 
 moving or authorizing the removal of mineral or 
 other deposits therein, except in connection with the 
 
74 Oregon dc California E. R. Co. et al. 
 
 sale of the land containing the mineral or other 
 deposits. 
 
 The Court erred in its said decree in incorporat- 
 ing into and making part of the general injunction 
 therein injunctive matter touching the sale of the 
 timber on said lands, except as a part of and in con- 
 junction with the land on which the timber stands; 
 and touching the cutting or removal, or the authoriz- 
 ing of the cutting or removal of any of the timber 
 thereon, except in connection with the sale of the 
 land bearing such timber; likewise touching the sale 
 of any mineral or other deposits in said lands, except 
 as a part of and in conjunction with the land in which 
 the mineral or other deposits are found; and also 
 touching the removing or the authorizing of the re- 
 moval of mineral or other deposits in said land, 
 except in connection with the sale of the land con- 
 taining such mineral or other deposits. 
 
 The Court erred in not holding and decreeing that 
 there was a complete and absolute grant in this case 
 to the railroad company, with power to sell, limited 
 only as prescribed by the Granting Act and Acts. 
 
 The Court erred in not holding and decreeing that 
 the language of the grants herein and of the limita- 
 tions upon them is general, and that it was not com- 
 petent to the said Court to attach exceptions thereto 
 in its decree. 
 
 The Court erred in not holding and decreeing that 
 the terms of the settlers' proviso or clause in the 
 Granting Act and Acts are prohibitive and not com- 
 pulsory; and in not holding and decreeing that the 
 observance of such terms would consist in refrain- 
 
vs. United States of America. 75 
 
 ing from making sales to other than actual settlers 
 in quantities exceeding 160 acres to any one pur- 
 chaser, for a price exceeding $2.50 an acre. 
 
 The Court erred in not holding that the company, 
 under a complete and absolute grant to it, with power 
 to sell, limited only as prescribed, might choose the 
 actual settler, might sell for any price not exceeding 
 $2.50 an acre, and might sell in quantities of 40, 60, 
 or 100 acres, or any amount not exceeding 160 acres. 
 
 The Court erred in not holding and decreeing that 
 there was a complete and absolute grant to the rail- 
 road company, with power to sell, limited only as pre- 
 scribed in the Granting Act and Acts ; and erred in 
 not holding and decreeing that there was no obliga- 
 tion imposed upon the railroad company to sell. 
 
 The Court erred in not holding and decreeing 
 that the Granting Act and Acts did not impose an 
 affirmative obligation on the railroad company to sell 
 the lands, and in not holding and decreeing that the 
 so-called settlers' proviso or clause in the Granting 
 Act and Acts had application only as and when the 
 railroad company made sales of the land. 
 
 The Court erred in not holding and decreeing that 
 the railroad company, so long as the granted lands 
 were not sold by it but remained unalienated, had 
 a complete and absolute title thereto, and under such 
 circumstances, and as the owner of such a title, had 
 the right to sell, cut, remove, or authorize the cutting 
 or removal of the timber thereon; and the Court 
 erred similarly in not so holding and decreeing with 
 reference to any mineral or other deposits in or 
 products out of said lands — subject to such qualifi- 
 
76 Oregon & California R. R. Co. et al. 
 
 cations as may arise from the limited injunction re- 
 ferable to the period of six months, as expressed in 
 the opinion of the Supreme Court. 
 
 The Court erred in not holding and decreeing that 
 the language of the so-called settlers' clause or pro- 
 viso in the Granting Act and Acts is not directive, 
 but restrictive only, and that with this exception, so 
 far as the said timber or mineral deposits or other 
 products are concerned, or any or either of them, 
 the grant of the said lands was unqualified. 
 
 The Court erred in not holding and decreeing that 
 under the said Granting Act and Acts the railroad 
 company had a discretion of sale and the choice of 
 time and settlers; and further erred in not holding 
 and decreeing that, pending the exercise of such dis- 
 cretion by a sale in accordance with the requirements 
 of the Granting Act and Acts, the said railroad com- 
 pany had a complete and absolute grant of the lands ; 
 and was entitled, as of right, to the timber thereon 
 and to the mineral or other deposits therein, and 
 to the products of the soil thereof ; and was entitled, 
 as of right, to sell, cut, and remove such timber, or 
 to authorize the cutting or removal of the same, and 
 to remove, sell or otherwise enjoy mineral or other 
 deposits therein, or any products of the soil thereof — 
 subject to any qualifications arising out of the limited 
 injunction referable to the six months' period above 
 mentioned. 
 
 The Court erred in not holding and decreeing that 
 the railroad company, so long as it occupied the 
 status of an owner of unalienated lands within the 
 limits of the grant and grants, had all the rights 
 
vs. United States of America. 77 
 
 therein of a grantee in fee simple, including the 
 rights of such grantee to the timber thereon or to 
 the mineral or other deposits therein, or to the prod- 
 ucts of the soil thereof — subject to any qualification 
 as aforesaid, arising out of said limited injunction. 
 
 The Court erred in not holding and decreeing that 
 the provisions of the so-called settlers' proviso and 
 clause in the Granting Act and Acts were not di- 
 rective, but restrictive only; and erred in not hold- 
 ing and decreeing that, subject to the restriction, the 
 railroad company took the grant and grants with the 
 right to cut timber thereon, or open and work mines 
 therein, or cultivate the soil thereof, and own, sell, 
 use and enjoy such timber, or the products of such 
 mines, or the cultivation of such soil — subject to any 
 qualification as aforesaid arising out of said limited 
 injunction. 
 
 The Court erred in not holding and decreeing that 
 timber cut upon the granted lands, while the same 
 remained unalienated in the railroad company, be- 
 longed to said railroad company; and likewise as to 
 any minerals extracted therefrom, or any products 
 of the soil cultivated thereon — subject to any qualifi- 
 cation arising out of said limited injunction, refer- 
 able to the aforesaid period of six months. 
 
 The Court erred in not holding and decreeing that 
 the railroad company took the lands in question in 
 fee and was accordingly entitled to make any use 
 thereof not in violation of the restrictive covenants 
 found in the so-called settlers' proviso and clause in 
 the Granting Act and Acts, and not in violation of 
 the limited injunction as aforesaid. 
 
78 Oregon & California R. R. Go. et al. 
 
 The Court erred in making and entering a decree 
 herein in modification and enlargement of the terms 
 of the mandate from the Supreme Court of the 
 United States. 
 
 The Court erred in not making and entering a de- 
 cree herein responsive to the mandate of the Su- 
 preme Court of the United States, without modifi- 
 cation or enlargement, and in the terms of the opin- 
 ion to which the said mandate referred, and which 
 was expressive of the mandate itself. 
 
 The Court erred in adjudging and decreeing that 
 the complainant have and recover from the defend- 
 ants, Oregon and California Railroad Company, 
 Southern Pacific Company, Stephen T. Gage, indi- 
 vidually and as trustee, and Union Trust Company, 
 individually and as trustee, and each of them, or 
 from any or either of them, any costs or disburse- 
 ments herein; and in adjudging and decreeing that 
 execution issue against the said defendants, or any 
 or either of them, for any costs or disbursements 
 herein. 
 
 The Court erred in not holding and decreeing that 
 no costs or disbursements should be recovered herein 
 from the Oregon and California Railroad Company, 
 or the Southern Pacific Company, or Stephen T. 
 Gage, individually and as trustee, or Union Trust 
 Company, individually and as trustee, or any or 
 either of them. 
 
 The Court erred in not holding and decreeing that 
 the main contention of the Government, and the one 
 insisted upon in its bill of complaint and at the trial 
 of the cause, was the contention that the so-called 
 
vs. United States of America. 79 
 
 settlers' clause and proviso in the Granting Act and 
 Acts was a condition subsequent ; and in not holding 
 and decreeing that the said defendants last named, 
 and each and every of them, were justified and acted 
 of right in resisting such contention, both below and 
 on appeal ; and in not holding and decreeing that in- 
 asmuch as the said defendants had prevailed in re- 
 sisting such contention, it was not equitable to tax 
 them, or either of them, with costs and disbursements 
 herein in favor of the complainant. 
 
 The Court erred in not holding and decreeing that 
 it was inequitable to impose costs herein in favor of 
 complainant on the said defendants ; and in not hold- 
 ing and decreeing that the case here should be dis- 
 posed of without adjudging costs in favor either of 
 said defendants or of the complainant, leaving each 
 to bear the costs of his or its own side of the litigation. 
 
 The Court erred in not making and entering as and 
 for its decree in this cause, and in place and stead 
 of the decree made and entered by it as aforesaid, 
 the decree in the form tendered to it by the said last- 
 named defendants and each and every of them — that 
 is to say, in not making and entering as its decree 
 in said cause, the decree submitted by these appel- 
 lants to the District Court and set forth in the afore- 
 said approved statement of the case. 
 
 The appellee in substance contended: 
 
 1. 
 
 That the decree as entered by the lower court is 
 in all particulars in harmony with the mandate of 
 the Supreme Court. 
 
80 Oregon & California R. R. Go. et al. 
 
 2. 
 And in this connection that the word "land" or 
 "ljands" as used in the granting acts of 1866 and 
 1870, in the amendatory act of 1869, and in the 
 opinion of the Supreme Court has the same signifi- 
 cance, and that if it embraces the timber and min- 
 erals as well as the surface in the one case it must 
 in all the others; and further, that it does compre- 
 hend not only the surface, but also the timber and 
 minerals in each instance. 
 
 QUESTIONS OF LAW CONCERNING WHICH 
 THE CIRCUIT COURT OF APPEALS DE- 
 SIRES THE INSTRUCTION OF THE 
 SUPREME COURT FOR ITS PROPER 
 DECISION. 
 
 1. Was the decree of the District Court of De- 
 cember 9th, 1915, in accordance with the opinion of 
 the Supreme Court? 
 
 2. If not, should the District Court have made 
 and entered its decree in manner and form as pro- 
 posed to it by the defendants in the decree sub- 
 mitted by them and set forth in the approved state- 
 ment of facts* 
 
 3. During the continuance of the estate granted 
 by the acts of Congress mentioned in the opinion of 
 the Supreme Court and while the grantees thereof 
 and their successors in interest retain the same, have 
 such grantees or their successors in interest, within 
 the decision of the Supreme Court, the right to cut 
 ©r remove or to authorize the cutting or removal of 
 the timber thereon, or to remove or authorize the 
 
vs. United States of America. 81 
 
 removal of mineral or other deposits therein or to 
 sell the timber thereon or the mineral or other de- 
 posits therein, apart from the sale of the land bear- 
 ing the timber or containing the mineral or other 
 deposits — except as such right is suspended pending 
 the Congressional action referred to in the decision 1 
 
 4. Is the expression, "all the value the granting 
 acts conferred upon the grantees," or anything else 
 in the decision of the Supreme Court contained, to 
 be taken as meaning that said grantees and their 
 successors in interest have only an equity in the 
 proceeds of the sales of the lands in question to the 
 extent of the statutory selling price thereof. 
 
 5. Does the decree of the District Court conform 
 to the mandate of the Supreme Court in the inser- 
 tion in the second paragraph of such decree of the 
 following : 
 
 "And from selling any of the timber on said 
 lands, or any mineral or other deposits therein, 
 except as a part of and in conjunction with the 
 land on which the timber stands or in which the 
 mineral or other deposits are found, and from 
 cutting or removing or authorizing the cutting 
 or removal of any of the timber thereon, or 
 from removing or authorizing the removal of 
 mineral or other deposits therein, except in con- 
 nection with the sale of the land bearing the 
 timber or containing the mineral or other de- 
 posits?" 
 
 6. Does the decree of the District Court conform 
 to the mandate of the Supreme Court in failing to 
 
82 Oregon & California B. E. Co. et al. 
 
 make provision for the termination of the injunc- 
 tion contained in the decree in the event that Con- 
 gress shall make provision as therein provided ? 
 
 7. Were costs properly taxed in this case against 
 the defendants or any or either of them? 
 
 WM. B. GILBERT, 
 ERSKINE M. ROSS, 
 WM. H. HUNT, 
 Judges of the United States Circuit Court of Ap- 
 peals for the Ninth Circuit. 
 Dated at San Francisco, California, this 12th day 
 of May, A. D. 1916. 
 
No. 492. 
 
 October Term, 1916. 
 
 Oregon & California Railroad Company et al. 
 
 v. 
 United States. 
 
 UPON A CERTIFICATE FROM THE UNITED STATES CIRCUIT COURT OF 
 APPEALS FOR THE NINTH CIRCUIT. 
 
 MOTION FOR CERTIORARI AND TO ADVANCE HEARING. 
 
 WASHINGTON : GOVERNMENT PRINTING OFFICE : 1916 
 
Jitthc^upreme^oitrtofthclnt^d^tHtB. 
 
 October Term, 1916. 
 
 Oregon & California Railroad Co. et al., 
 
 v. 
 United States. 
 
 No. 492. 
 
 UPON A CERTIFICATE FROM THE UNITED STATES CIRCUIT 
 COURT OF APPEALS FOR THE NINTH CIRCUIT. 
 
 MOTION FOR CERTIORARI AND TO ADVANCE HEARING, 
 
 Comes now the Solicitor General and moves : 
 
 1. That a writ of certiorari issue to the Cir- 
 cuit Court of Appeals for the Ninth Circuit to 
 bring the case in its entirety before this court. 
 
 2. That the certificate of the said Circuit Court 
 of Appeals on file herein, dated May 12, 1916, to- 
 gether with the record upon which the cause was 
 formerly considered and decided by this court, 
 be taken as a sufficient return to such writ of 
 certiorari. 
 
 3. That thereupon the cause be advanced for 
 early hearing. 
 
 05057—16 
 
STATEMENT. 
 
 This suit was brought pursuant to a joint resolu- 
 tion of Congress for the purpose of determining 
 the respective rights of the United States and the 
 Oregon & California Railroad Co. and others in 
 and to large and valuable bodies of land in Oregon 
 and Washington, which, subject to certain restric- 
 tions, had been granted by Congress in aid of rail- 
 road construction and settlement. From a final de- 
 cree of forfeiture entered against them by the Dis- 
 trict Court, the Oregon & California Railroad Co. 
 and the other appellants whose claims are involved 
 in these present proceedings, as well as numerous 
 other parties whose claims have now been fully 
 disposed of, appealed to the Circuit Court of Ap- 
 peals for the Ninth Circuit. By certificate and 
 certiorari the whole cause came to this court, and 
 after full consideration was decided in June, 1915. 
 
 Oregon & California Railroad Co. v. 
 United States, 238 U. S. 393. 
 
 In disposing of the matter this court held that 
 the grants were not subject to forfeiture, and that 
 the decree of the District Court was therefore 
 erroneous, but that the restrictions set forth in the 
 granting acts, namely, that the grantee must sell 
 the land to actual settlers only in quantities not 
 greater than one-quarter section to one purchaser, 
 and at a price not exceeding $2.50 per acre, were 
 
obligatory and enforcible as covenants. Further- 
 more, it declared in its opinion (p. 438) : 
 
 This, then, being the situation resulting 
 from conditions now existing, incident, it 
 may be, to the prolonged disregard of the 
 covenants by the railroad company, the 
 lands invite now more to speculation than 
 to settlement, and we think, therefore, that 
 the railroad company should not only be en- 
 joined from sales in violation of the cove- 
 nants, but enjoined from any disposition of 
 them whatever or of the timber thereon and 
 from cutting or authorizing the cutting or 
 removal of any of the timber thereon, until 
 Congress shall have a reasonable oppor- 
 tunity to provide by legislation for their dis- 
 position in accordance with such policy as 
 it may deem fitting under the circumstances 
 and at the same time secure to the defend- 
 ants all the value the granting acts conferred 
 upon the railroads. 
 
 If Congress does not make such provision 
 the defendants may apply to the District 
 Court within a reasonable time, not less than 
 six months, from the entry of the decree 
 herein, for a modification of so much of 
 the injunction herein ordered as enjoins any 
 disposition of the lands and timber until 
 Congress shall act, and the court in its dis- 
 cretion may modify the decree accordingly. 
 
 Thereupon it ordered that the decree of the Dis- 
 trict Court be reversed and the cause remanded 
 for further proceedings in accordance with the 
 
opinion. The mandate was issued accordingly, and 
 on December 9, 1915, a decree was entered by the 
 District Court (R. 13) which purports to follow it. 
 The injunctive provisions of this decree, like the 
 mandate, aim at two distinct objects ; first, to forbid 
 further violations of the covenants, and, second, to 
 preserve the property wholly intact for a reason- 
 able time in order to afford opportunity for further 
 legislation by Congress. In carrying out the first of 
 these objects the decree (par. 2), in substance, for- 
 bids sales of the land to persons other than actual 
 settlers, or in quantities greater than one-quarter 
 section to one purchaser, or for prices exceeding 
 $2.50 per acre ; and also forbids the sale or cutting 
 or removal of any timber, and the sale or removal of 
 any mineral or other deposits except in conjunction 
 with legitimate sales of the lands upon which such 
 timber or deposits shall be found. 
 
 For attaining the second object — preserving the 
 status of the property until Congress might act — 
 the decree (par. 3) forbids any direct or indirect 
 disposition of lands, timber, or mineral, or other 
 deposits, the cutting of timber, the removal of it or 
 of mineral or other deposits, and all interference 
 and intermeddling with any moneys which arose or 
 ma}^ arise from the lands and which are or may be 
 on deposit awaiting the final decision of this court 
 in this case — 
 
 until Congress shall have a reasonable op- 
 portunity to make provision by legislation 
 
for the disposition of said lands, timber, 
 money, mineral or other deposits, in accord- 
 ance with such policy as Congress may deem 
 fitting, under the circumstances, and at the 
 same time secure to the defendant all the 
 value that the said granting acts conferred 
 upon the grantees. 
 
 The decree of the District Court also provides 
 that if Congress fails to make provision for the 
 disposition of the said lands, money, timber, min- 
 eral and other deposits, the defendants may apply 
 to that court within a reasonable time, not less than 
 six months from the entry of the decree, for a modi- 
 fication of so much of the injunction as forbids any 
 disposition of the said lands, timber, etc., until Con- 
 gress shall act, and the court reserves the right to 
 modify the decree in that regard and upon such 
 application if, in its opinion, good cause should 
 then exist for so doing. 
 
 The decree also taxed costs and disbursements 
 against appellants and in favor of the complainant 
 in the simi of $6,249.42. 
 
 From this decree the defendants and appellants, 
 on January 8, 1916, took an appeal to the Circuit 
 Court of Appeals. 
 
 The errors assigned and argued in the briefs filed 
 in the Circuit Court of Appeals include the follow- 
 ing questions, viz : 
 
 1. Whether the decree erroneously exceeds the 
 directions contained in the mandate. 
 
2. Whether in that portion of the decree which 
 forbids further violations of the covenants, it was 
 erroneous to forbid selling, cutting and removing 
 of timber and selling and removing of mineral or 
 other deposits, apart from the sale of the land bear- 
 ing or containing the same. 
 
 Here appellants argue that the timber (which 
 constitutes the chief value of the remaining 
 lands) is the absolute property of the railroad com- 
 pany and may be used or disposed of at its discre- 
 tion, with no limit or restriction whatsoever, save 
 possibly such as might be inferred to avoid dimin- 
 ishing the availability of the land for cultivation 
 by settlers. They make a similar argument re- 
 garding possible deposits of mineral. 
 
 3. Whether that portion of the decree (par. 3) 
 which, following the mandate, aims to afford rea- 
 sonable opportunity for legislation by Congress, 
 improperly included with the lands the timber and 
 minerals, etc., and such moneys as have been or 
 may be deposited to await the final decision of this 
 case by this court. 
 
 4. Whether, without regard to the scope of the 
 mandate, the District Court, or this court, had 
 jurisdiction to forbid disposition of timber for any 
 period of time to await legislation by Congress. 
 
 This question is raised in one of the briefs but not 
 specifically by the assignments of error. 
 
 5. Whether it was erroneous to impose costs on 
 the appellants. 
 
All of the foregoing questions, except the fourth,, 
 reappear, in various forms of statement, in the list 
 of questions certified by the Circuit Court of Ap- 
 peals (R. 80). 
 
 That court also asks (question 6) whether under 
 the mandate the District Court should have made 
 provisions " for the termination of the injunction 
 contained in the decree in the event that Congress 
 shall make provision as therein provided. ' ' 
 
 On June 9, 1916, six months from the entry of 
 the District Court 's decree, the President approved 
 an act of Congress (Public, No. 86, 64th Congress) 
 entitled "An act to alter and amend [the granting 
 and amendatory acts, naming them], and for other 
 purposes, ' ' of which act it is assumed the court will 
 take judicial notice. 
 
 This was the result of elaborate hearings before 
 the Committees of the House and Senate on Public 
 Lands, and full report made by those two bodies to 
 the two Houses respectively. In a series of re- 
 citals, it refers to the restrictions in the granting 
 acts, the wilful violation thereof by the railroad 
 company, the decree of this court, the provisions in 
 the granting act of July 25, 1866, allowing altera- 
 tion, amendment or repeal, and the fact that the 
 railroad company and its predecessors in interest 
 ' ' received a large sum of money from sales of said 
 land for prices in excess of $2.50 per acre, and from 
 leases, interest on contracts, and so forth "; al- 
 though " the aforesaid granting acts conferred 
 
8 
 
 upon the said railroad company the right to re- 
 ceive not more than $2.50 per acre for each acre of 
 land so granted." It thereupon provides, compre- 
 hensively and specifically : 
 
 1. For the immediate revesting in the United 
 States of the title to all the lands for which pat- 
 ents had been issued or earned under the granting 
 acts, except those which had been sold by the rail- 
 road company prior to July 1, 1913 (the date of 
 the District Court's original decree of forfeiture), 
 and except those constituting the railroad right of 
 way and those in actual use by the company prior 
 to December 9, 1915 (date of the District Court's 
 last decree), for depots and other specified rail- 
 road uses. 
 
 2. For the classification of the lands into power 
 site lands, timberlands, and agricultural lands, by 
 the Departments of Interior and Agriculture. 
 
 3. For the use and disposition of power site and 
 mineral lands in accordance with the general laws 
 concerning public lands of like character; for the 
 sale of the timber on the lands classified as timber- 
 lands through competitive bidding, " as rapidly 
 as reasonable prices can be obtained therefor in a 
 normal market;" for the settlement, cultivation, 
 and purchase at $2.50 per acre of the lands classi- 
 fied as agricultural, under the homestead laws as 
 modified by this act ; and for a similar disposition, 
 omitting the money charge, of the lands classified 
 as timberlands after the timber shall have been 
 removed from them. 
 
Certain of the lands affected by the act are de- 
 clared to be withheld from entry or other disposi- 
 tion for a period of 2 years after its approval 
 (sec. 5, bottom). These lands, we understand, con- 
 sist of sections necessary to protect the water sup- 
 ply of certain cities, and the withdrawal was in- 
 tended to afford them an opportunity to acquire 
 the lands. 
 
 4. For vesting in the United States forthwith of 
 " the title to all money arising out of said grant 
 lands and now on deposit to await the final out- 
 come " of this suit. 
 
 5. For the deposit of all moneys received from or 
 on account of the lands and timber under the act 
 in a special fund to be designated ' ' the Oregon and 
 California land-grant fund." 
 
 6. For the payment " as soon as may be after the 
 approval of this act " by the Treasurer, upon the 
 order of the Secretary of the Interior, of " the 
 taxes accrued and now unpaid on the lands revested 
 in the United States," for which purpose the act 
 appropriates the necessary money. 
 
 7. For the ascertainment and determination, 
 through judicial proceedings to be instituted by the 
 Attorney General, of " the amount of moneys which 
 have been received by the said railroad company or 
 its predecessors from or on account of any of said 
 granted lands, whether sold or unsold, patented or 
 unpatented, and which should be charged against it 
 as a part of the ' full value ' secured to the grantees 
 
10 
 
 under said granting acts as heretofore interpreted 
 by the Supreme Court," in the ascertainment of 
 which amount the court " shall take into consid- 
 eration and give due and proper legal effect to all 
 receipts for money from sales of land or timber, 
 forfeited contracts, rent, timber depredations, and 
 interest on contracts, or from any other source re- 
 lating to said lands; also to the value of timber 
 taken from said lands and used by said grantees 
 or their successor or successors," and shall also 
 determine " the amount of the taxes on said lands 
 paid by the United States, as provided in this act, 
 and which should in law have been paid by the said 
 Oregon & California Railroad Co., and the amount 
 thus determined shall be treated as money received 
 by said railroad company." 
 
 8. For the ascertainment by the Secretary of the 
 Interior, as soon as may be, of the acreage of the 
 lands, whether sold or unsold, which the beneficia- 
 ries have received or are entitled to receive under 
 the grants, and the value of such acreage at $2.50 
 per acre, and for the payment of that value, less 
 the amount chargeable to the railroad company and 
 its predecessors as found and determined in the 
 judicial proceedings, to the railroad company, its 
 successors or assigns, and to lienors as their re- 
 spective interest may appear, the payment to be 
 made in instalments from time to time, out of the 
 special fund as it accumulates, by the Treasurer of 
 the United States upon the order of the Secretary 
 
11 
 
 of the Interior; and it being further provided: 
 " That if, upon the expiration of ten years from 
 the approval of this act, the proceeds derived from 
 the sale of lands and timber are not sufficient to 
 pay the full amount which the said railroad com- 
 pany, its successors or assigns, are entitled to re- 
 ceive, the balance due shall be paid from the general 
 funds in the Treasury of the United States, and an 
 appropriation shall be made therefor. ' ' 
 
 9. For depositing the further proceeds from the 
 sales of land and timber, after so satisfying the 
 railroad company and the lienors, partly in the 
 State and county funds for schools, roads, etc., and 
 appropriating the remainder for the United States. 
 
 The above resume is general in character, aiming 
 only to explain the important features of the legis- 
 lation which bear relation to the issues involved in 
 this litigation. 
 
 On or about June 30, 1916, the appellants served 
 upon the Congress, through its presiding officers, 
 and upon the President, the Secretary of the Inte- 
 rior, the Secretary of Agriculture, the Attorney 
 General, and the Treasurer of the United States, 
 a notice in writing claiming and asserting that this 
 act is unconstitutional, null and void, declaring 
 that the appellants do not assent to or acquiesce 
 in any of its provisions, and protesting against the 
 assertion by the United States of any claim to the 
 lands or to any moneys derived therefrom, and the 
 taking by the United States of any action or pro- 
 
12 
 
 ceeding for the purpose of carrying out the act in 
 any of its provisions; and further protesting 
 against the making by the Secretary of the Interior 
 of any order for the payment of taxes on the lands, 
 and against the payment of any such taxes by the 
 Treasurer, as provided by said act, etc. 
 
 Since the passage of the act the work of classify- 
 ing the lands as thereby required has been proceed- 
 ing rapidly. The Land Department reports that 
 thousands of acres have already been classified, 
 and that numerous applications for sales of timber 
 are already on file and subject to be acted upon as 
 soon as the work of ascertaining the amounts of 
 accrued taxes (now well advanced) can be con- 
 cluded, and the taxes paid. The taxes claimed by 
 the States exceed a million dollars. 
 
 REASONS FOR THE MOTION. 
 
 1. The act of June 9, 1916, assuming it valid, 
 has rendered moot every specific question presented 
 by the certificate save the question of costs. By 
 its operation the Government has now taken over 
 the title to the land, with all its timber and other 
 resources, and also the moneys on deposit which are 
 mentioned in the District Court's decree. The in- 
 terest of the railroad company is no longer an in- 
 terest in these things, but an interest in obtaining 
 prompt adjudication, settlement and payment of 
 its monetary claim, through the methods, including, 
 
13 
 
 if necessary, the money appropriation, for which 
 the act provides. 
 
 2. The general questions certified, viz, whether 
 the decree of the District Court accords with the 
 mandate, and whether a decree should have been 
 entered in manner and form as proposed by the 
 appellants (R. 80, 11), though they amount to a 
 submission of the entire case as it was before the 
 act was passed, seem not to empower this court to 
 deal fully and finally with the existing situation. 
 Should those questions be answered without regard 
 to the act, new controversies concerning its validity 
 and meaning would be precipitated in the lower 
 courts which must finally come here after much 
 expensive and embarrassing delay. On the other 
 hand, should this court consider the validity and 
 effect of the act, but merely in connection with 
 a disposition of the questions certified, the ensuing 
 decree of the Circuit Court of Appeals would 
 doubtless be appealed from and the act and its 
 meaning would again become involved before this 
 tribunal. 
 
 3. If, as the Government insists, the act is valid, 
 probably a modified decree should now be directed, 
 so that the injunction may be made absolute and 
 the moneys on deposit be delivered to the proper 
 governmental depository. If it be in any regard 
 invalid, the nature and extent of such invalidity, 
 and the time during which the property may be 
 held intact pending further legislation, should be 
 
14 
 
 conclusively determined by this court without the 
 intervention of useless proceedings in the lower 
 courts. 
 
 4. The Government and the States and local com- 
 munities where the lands are situated are deeply 
 concerned in the prompt and conclusive dissipation 
 of any possible doubt concerning the validity of the 
 act of Congress. If the act be invalid, that fact 
 should be known before further important steps are 
 taken in its administration, before sales are made 
 or settlements allowed and the money of purchasers 
 and settlers is accepted, before large additional ex- 
 penditures of public money are incurred, in the 
 payment of taxes, or in work of investigation, and 
 before the institution of the new legal proceedings 
 which the act directs. 
 
 Respectfully submitted. 
 
 John W. Davis, 
 Solicitor General. 
 
 October, 1916. 
 
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