is the one here submitted to the court was provable against her husband in bankruptcy, an estate ample to pay her, and without any outranking privilege, and against a husband who might thereafter acquire nothing, might be administered in bankruptcy, and distributed to her exclusion. It would seem that the congress must have intended such a debt should be provable. If the debt is provable, it is extinguished by the discharge. 14 St. U. S. pp. 525, 533, §§ 19, 34. My conclusion is that a decree must be entered that the bill be dismissed at the complainant's cost.

UNITED STATES v. SOUTHERN PAC. R. Co. et al., (three cases.) SAMB v. COLTON MARBLE AND LIME Co. et al.

(Circuit Court, S. D. California. May 27, 1889.)

1. PUBLIC LANDS-DONATIONS-RAILROAD COMPANIES.

Act Cong. July 27, 1866, granted to the A. & P. Co. every alternate section of public land by odd numbers to the amount of 10 sections on each side of the road wherever it might pass through a state. If any of these sections should be already granted, reserved, etc., before the map of the proposed route should be filed, other odd sections might be selected in lieu thereof within 10 miles on either side of the limits so granted. Whenever and as often as a portion of the road 25 miles long should be completed patents were to issue for the lands so granted, opposite to and coterminous with the portion or portions completed. The odd sections so granted were withdrawn from entry, etc. By section 18 the S. P. Co. was granted the same amount of lands, under similar restrictions, and it was provided that neither the present nor prospective rights of the A. & P. Co. should be thereby impaired. Held, that only the odd sections in the strip absolutely granted, and not those in the indemnity strip, were withdrawn from the public domain, and that the A. & P. Co., not having complied with the conditions of the grant, had neither a present nor prospective right to any lands in the last-mentioned strip, which were therefore still subject to grant.

2. SAME.

Act Cong. March 3, 1871, granted certain lands to the S. P. Co., to aid it in the construction of a branch line, and provided that if its route, when designated, should be found to be on the line of another road to which land had also been granted, the amount theretofore granted should be deducted from the quantity thereby granted to the S. P. Co. so far as their routes should be on the same general line. The map of the route of the A. & P. Co. was afterwards filed, and the routes of both roads were for some distance on the same general line. The S. P. Co's route included in its 10-mile limit part of the indemnity strip of the A. & P. Co., at points where the A. & P. Co. would have had the right to make selections of lands in lieu of others already taken up. Held, that the S. P. Co. acquired no rights as to lands in said indemnity strip so far as the two routes were on the same general line.

8. SAME-MEXICAN GRANTS.

Lands claimed to be included in a Mexican grant of a specific boundary, which grant was sub judice at the time of the grant of March 3, 1871, were not public land at that date, and did not pass by the grant though they were afterwards held not to be embraced by the Mexican grant.

4. SAME-RELIEF AGAINST MISTAKE-LIMITATION OF ACTIONS.

A bill filed by the United States as real and not merely nominal complainant. to repeal patents improperly issued, is not barred by the statute of limitations or by laches.

In Equity. Bill to repeal patents.

George J. Denis, U. S. Dist. Atty., and Joseph H. Call, Special Asst. U. S. Dist. Atty., for complainants.

Joseph D. Redding, J. D. Bicknell, Anderson, Fitzgerald & Anderson, W. D. Gould, Edwin Baxter, J. L. Murphey, and J. S. Chapman, for defend

ants.

Ross, J. By the bill filed in this case the United States seek to annucertain patents issued by them to the Southern Pacific Railroad Company on March 29, 1876, April 4, 1879, and December 27, 1883, respectively, for lands situated in Los Angeles county, Cal., and to quiet plaintiffs' alleged title thereto. To the bill, as amended, demurrers have been interposed which raise the question of the sufficiency of the matters alleged to entitle the plaintiffs to the relief sought. The allegations, in substance, are that congress by an act approved July 27, 1866, entitled "An act granting lands to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast," granted to the Atlantic & Pacific Railroad Company, for the purpose of aiding in the construction of said railroad, etc., "every alternate section of public land, not mineral, designated by odd numbers, to the amount of twenty alternate sections per mile on each side of said railroad line, as said company may adopt, through the territories of the United States, and ten alternate sections of land per mile on each side of said railroad whenever it passes through any state, and whenever on the line thereof the United States have full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights at the time the line of said road is designated by a plat thereof filed in the office of the commissioner of the general land-office, and whenever prior to said time any of said sections or parts of sections shall have been granted, sold, reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of, other lands shall be selected by said company in lieu thereof, under the direction of the secretary of the interior, in alternate sections and designated by odd numbers, not more than 10 miles beyond the limits of said alternate sections, and not including the reserved numbers: provided, that if said route shall be found upon the line of any other railroad route, to aid in the construction of which lands have been heretofore granted by the United States, as far as the routes are upon the same general line, the amount of land heretofore granted shall be deducted from the amount granted by this act." That by section 4 of the same act it is provided that whenever said Atlantic & Pacific Company shall have 25 consecutive miles of any portion. of said railroad and telegraph line ready for the service contemplated, the president shall appoint three commissioners to examine the same, and if it shall appear that 25 consecutive miles of the road and telegraph line have been completed as required by the act, the commissioners shall so report to the president, and patents shall be issued to said company, confirming thereto "the right and title to said lands situated opposite to and coterminous with said completed section of said road;"

and that from time to time, whenever 25 additional consecutive miles shall have been constructed, completed, and in readiness, upon like report patents shall be issued conveying to the company additional sections of the land. That by section 6 of the act it is provided that the president shall cause the lands to be surveyed for 40 miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad, "and the odd sections of land hereby granted shall not be liable to sale or entry or pre-emption before or after they are surveyed, except by said company, as provided in this act." That by section 18 of the same act the Southern Pacific Railroad Company was authorized to connect with the said Atlantic & Pacific Railroad at such point near the boundary line of the state of California as they should deem most suitable for a railroad line to San Francisco, and was required to have a uniform guage and rate of freight and fare with the Atlantic & Pacific road, and was given similar grants of land, subject to all the conditions and limitations provided in the act, and was required to construct its road on the like regulations as to time and manner as provided in respect to the Atlantic & Pacific road. It is alleged that the Atlantic & Pacific Company duly accepted the said grant, and proceeded to construct its road, and on or about March 12, 1872, did designate the line of said road by a plat thereof filed in the office of the commissioner of the general land-office, and that all the odd sections on each side of said road for 30 miles were thereupon withdrawn from market and reserved from sale.

The bill, as amended, further alleges that by section 23 of an act of congress approved March 3, 1871, entitled "An act to incorporate the Texas Pacific Railroad Company, and to aid in the construction of its road, and for other purposes," it was provided as follows:

"That for the purpose of connecting the Texas Pacific Railroad with the city of San Francisco, the Southern Pacific Railroad Company of California is hereby authorized (subject to the laws of California) to construct a line of railroad from a point at or near Tehachapa Pass, by way of Los Angeles, to the Texas Pacific Railroad at or near the Colorado river, with the same rights, grants, and privileges, and subject to the same limitations, restrictions, and conditions as were granted to said Southern Pacific Railroad Company of California by the act of July 27, 1866: provided, however, that this section shall In no way affect or impair the rights, present or prospective, of the Atlantic & Pacific Railroad Company, or any other railroad company."

The bill, as amended, alleges that the Southern Pacific Company accepted this grant, and on April 3, 1871,. did designate the line of its said road by a plat thereof which it on that day filed in the office of the commissioner of the general land-office, and did construct and complete. the same in the manner and within the time prescribed, except that it did not connect with the Texas & Pacific Railroad. It is averred that on or about March 29, 1876, April 4, 1879, and December 27, 1883, respectively, the commissioner of the general land-office, without any authority of law therefor, caused certain patents to be signed by the president and by the recorder of the general land-office, and issued the same to the Southern Pacific Railroad Company for certain lands situated in

the county of Los Angeles, state of California, in odd-number sections, within 10 miles of the route of the road of said Southern Pacific Company, as shown by its designated route of location filed in the office of the commissioner of the general land-office pursuant to said act of congress of March 3, 1871, and which said lands are also within 30 miles of, but more than 20 miles from, the line of road of the said Atlantic & Pacific Railroad Company, as designated by its plat filed in the office of the commissioner of the general land-office pursuant to the act of July 27, 1866. The amended bill also avers "that at the time the route of location of said Atlantic & Pacific Railroad was filed, on March 12, 1872, there was within the twenty-mile or primary limits of said road, situated opposite to the tracts described in said pretended patents, a large amount of land which had previous to that time been granted, sold, reserved, and otherwise appropriated, which amounted to more in the aggregate than the amount of the lands described in said pretended patents, but no indemnity land has been selected in lieu thereof by the government or said railroad company;" and that the lands described in the patents have at all times been "agricultural lands, and of greater value than other lands in the indemnity limits of said Atlantic & Pacific Railroad Company," and "have never been granted, sold, reserved, occupied by homestead settlers, pre-empted, or otherwise disposed of by the United States, or by the Mexican or Spanish governments, or any other government or authority, in whole or in part, or any estate or interest therein, otherwise than as set forth herein."

It is further averred that on or about March 27, 1837, Ignacio Palomares and Ricardo Vejar presented a petition to Juan B. Alvarado, then governor of Upper California under the Mexican government, for a grant of the place known by the name of "San José." That thereupon, after investigation, such grant was, on April 15, 1837, duly made by Governor Alvarado to said Palomares and Vejar of the place called "San José," in conformity with the plat attached to the petition, and within the boundaries therein expressed. That thereafter, and on or about December 16, 1839, one Louis Arenas and said Ignacio Palomares and Ricardo Vejar presented their petition to the prefect of the district for a grant for the land called "San José," ceded by the decree of April 15, 1837, and one additional league of grazing land. That subsequently, to-wit, March 14, 1840, the then governor of the department of the Californias granted the land so petitioned for to said Arenas, Palomares, and Vejar, and that thereafter said grant was duly approved by the departmental assembly, and juridical possession of said land given to the said grantees. That on or about September, 1852, Henry Dalton, Ignacio Palomares, and Ricardo Vejar each severally filed his claim for confirmation of one-third of the place called "San José," granted as aforesaid, with the board of land commissioners, pursuant to the act of congress of March 3, 1851, entitled "An act to ascertain and settle the private land claims in the state of California," and thereafter, and on or about January 31, 1854, the said board rendered and entered its three several decrees confirming to each of said claimants the land applied for. That on appeal to the

district court, that court at its December term, 1854, rendered its decree in each case, affirming that of the board of land commissioners confirming to Dalton, Palomares, and Vejar an equal undivided one-third each "of the lands of San José, granted by Juan B. Alvarado, governor of California, to Ignacio Palomares and Ricardo Vejar on April 15, 1837, and regranted by said governor on March 14, 1840, to said Palomares and Vejar and to Louis Arenas, as described in the grant first mentioned and the map to which the same refers, and which boundaries fully appear from the act of juridical possession," (described substantially as follows:) "Commencing at the foot of a black walnut tree; thence westerly 9,700 varas to the foot of hills called 'Los Lomas de la Puente,' to a large walnut tree on the slope of a small hill on the side of the road which passes from San José to Puente; thence northerly 10,400 varas to the creek (arroyo) San José, opposite a high hill at a large oak; thence easterly 10,600 varas to the arroyo San Antonio, to two young cottonwood trees; thence southerly 9,700 varas to the place of beginning,"-from which decree there was no appeal, and the same became final. That under the direction and on behalf of the United States surveyor general for California, one George H. Thompson, deputy United States surveyor, did, in August, 1868, so survey and locate the said grant as to include as a part thereof all the lands described in the patents in question, and thereafter, and in the same year, such survey was duly approved by said surveyor general, and the same was then spread upon the records of the general land-office and of the office of said surveyor general. That subsequent to May 1, 1871, the said surveyor general made another survey of said San José grant, upon which the United States did on January 20, 1875, issue its patent to said Dalton, Vejar, and Palomares, which patent was duly accepted by said claimants, and which said patent and final survey did not include any of the lands described in the patents in question, but that all the said lands "were claimed and occupied by said Henry Dalton, Ignacio Palomares, and Ricardo Vejar, their heirs and assigns, as a part of said San José grant, as petitioned for, granted, and confirmed, located and surveyed, from August, 1868, till March 1, 1872." The bill, as amended, also alleges that by the act of congress approved July 6, 1886, entitled "An act to forfeit the lands granted to the Atlantic & Pacific Railroad Company to aid in the construction of a railroad and telegraph line from the states of Missouri and Arkansas to the Pacific coast, and to restore the same to settlement, and for other purposes," all the lands and rights to lands in California theretofore granted and conferred upon said Atlantic & Pacific Railroad Company were forfeited, resumed, and restored to entry for non-completion of that portion of said railroad to have been constructed in California.

By an amendment to the amended bill it is alleged that the plaintiffs have elected and do elect "to hold, select, reserve, and set apart all the lands in suit herein as a part of said twenty sections per mile granted to said Alantic & Pacific Railroad Company by said act of congress of July 27, 1866, and which were deducted and excluded from said grant to said Southern Pacific Railroad Company on account of said grant to said