United States v. California & Oregon Land Co., 192 U.S. 355 (1904)

MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN and MR. JUSTICE BROWN, dissenting:

It will be assumed that the lands in controversy had been reserved for the Indians prior to the taking effect of the grant, "except so far as it may be necessary to locate the route of said road through the same, in which case the right of way is granted."

The act of 1866 made provision for supplying deficiencies "occasioned by any lands sold or reserved, or to which the rights of preemption or homestead have attached, or which for any reason were not subject to said grant."

March 2, 1889, Congress directed the Attorney General to cause a suit or suits to be brought against all persons, firms, and corporations claiming interests in lands granted to the State of Oregon, by three enumerated acts of Congress, including that under consideration:

To determine the questions of the seasonable and proper completion of said roads in accordance with the terms of the granting acts, either in whole or in part, the legal effect of the several certificates of the governors of the State of Oregon of the completion of said roads, and the right of resumption of such granted lands by the United States, and to obtain judgments, which the court is hereby authorized to render, declaring forfeited to the United States, all of such lands as are coterminous with the part or parts of either of said wagon roads which were not constructed in accordance with requirements of the granting acts, and setting aside patents which have issued for any such lands, saving and preserving the rights of all bona fide purchasers of either of said grants or of any portion of said grants for a valuable consideration, if any such there be. . . .

By the second section of the act, it was provided that the state or any person or corporation claiming under the grant might intervene and defend his interest therein, and might

also put in issue and have adjudicated and determined any other question, whether of law or of fact, which may be in dispute between said intervener and the United States, and affecting the right or title to any part of the lands claimed to have been embraced within the grants of lands by the United States to or for either of said wagon roads. Should the lands embraced within said grants or either of them or any portion thereof be declared forfeited by the final determination of said suit or suits, the same shall be immediately restored to the public domain, and become subject to disposal under the general land laws, and should the final determination of said suit or suits maintain the right of the aforesaid wagon road grantees or their assigns to the lands embraced in said grants, the Secretary of the Interior shall forthwith adjust said grants in accordance with such determination,

etc.

The act related to three wagon road grants, only one of which was involved in this case. This bill sought a forfeiture of the entire grant for reasons stated, and no other matter was put in issue. The bill covered the lands in the reservation and many thousands of acres besides. It seems to me clear that Congress did not intend that the United States should ask a forfeiture and at the same time litigate exceptions from the grant. The second section is wholly inconsistent with such a theory. The issue was a single issue, and defendants did not seek to have it expanded. The suit was decided in favor of defendants, 148 U.S. <<|148 U.S. 31|>31, and the present bill having been filed in respect of the lands of the Indian reservation, it is now contended that the former decree is a bar to its prosecution.

I do not think so. The former case sought a forfeiture of the entire grant. This bill, accepting the conclusion that there could be no forfeiture, simply sought relief as to particular lands which had not been embraced in the grant and did not pass thereby, but which had been patented in error. Conceding that Congress may pass title subject to Indian occupancy, it did not do so; but these lands were reserved from the grant, while in terms the right of way through the reservation was granted. Had the decree in the prior case been for the government, this right of way would have been declared forfeited with other lands included in the grant, but, as the case turned out, the right of way passed while the reservation remained unaffected. The cause of action in this suit is entirely different, and governed by entirely different considerations from the cause of action in the prior suit. And I think the decree in the former suit operates as an estoppel only as to the point or question actually litigated and determined.

There is no hardship involved in this view, as while the United States were shut up to the question of forfeitures, defendants were permitted to raise any questions they chose, and did not see fit to bring any other into the case.

My brothers HARLAN and BROWN concur in this dissent.