UNITED STATES SUPREME COURT DECISIONS ON-LINE

Lands within the exterior limits of a Mexican grant, sub judice at the date of the definite location of the Central Pacific railroad, were not "reserved" within the meaning of that word as used in section three of the Act of July 1, 1862, 12 Stat. 459, c. 120, but inured to the road as a portion of its land grant and were properly patented to it as such.

Newhall v. Sanger, 92 U. S. 761, explained. United States v. McLaughlin, 127 U. S. 428, approved.

This was an action of ejectment brought by W. B. Carr against John Quigley for the possession of one hundred and sixty acres of land situated in the County of Alameda, State of California. The land is a portion of an unnumbered odd section granted to the Central Pacific Railroad Company of California by the Act of Congress of July 1, 1862, as amended by the Act of July 2, 1864, and which, by the consolidation of the Western Pacific Railroad Company with the Central Pacific Railroad Company, under the laws of California, in June, 1870, inured to the latter company, and to it a patent of the United States for the land mentioned was issued, bearing date on the 17th day of May, 1874.

The plaintiff claimed title to the demanded premises under a conveyance to him by the Central Pacific Railroad Company on the 10th of June, 1871.

The complaint alleges that the plaintiff was the owner in fee, and entitled to the possession of the premises on the 22d of December, 1877, and that on that day, the defendant, without right or title, against the will of the plaintiff, entered upon the premises and ejected the plaintiff therefrom, and has ever since withheld the possession from him to his damage of $1,000, and that the value of the annual rent of the premises is $320. He therefore prays judgment for the restitution of the premises, for the damages sustained, and for the rents and profits. clubjuris

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The defendant, in his amended answer, in addition to a general denial of the allegations of the complaint, sets up 1st that at the date of the patent to the railroad company the land patented was not subject to the disposal of Congress, but was land reserved to answer the calls for land of a grant from the Mexican government to Jose Noriega and Robert Livermore, bearing date the 10th of April, 1839, and that by reason of such reservation the patent was issued without authority of law, and consequently was void; that since October, 1877, the defendant has been in rightful possession of the land as a preemptor under the laws of the United States, and 2d that the land was not sold by the grantee, the railroad company, within three years after the completion of its road.

A demurrer to this last defense was sustained by the court, and its ruling was acquiesced in.

It was agreed that the annual value of the rents and profits of the land was fifty dollars.

The case was tried twice. On the first trial, in the district court of Alameda County, the plaintiff put in evidence the patent of the United States of the land to the Central Pacific Railroad, and a conveyance of the same by that company to the plaintiff. The defendant then offered to prove that the land was within the exterior boundaries of the Mexican grant mentioned, and therefore reserved from the congressional grant to the railroad company. The plaintiff objected to the offered proof on the ground that the land was not subject to preemption when the defendant entered upon it, the patent of the United States having been previously issued, which was conclusive in an action of ejectment. The objection was sustained, to which the defendant excepted, and judgment was rendered for the plaintiff. Thereupon an appeal was taken by the defendant to the Supreme Court of California, and in January, 1881, the judgment was reversed and the cause remanded for a new trial. In April, 1883, the case again came on for trial in the Superior Court of Alameda county, the successor to the district court of that county, under the new Constitution of California, which went into operation on the 1st of January, 1880. On that trial, the evidence offered clubjuris

Page 149 U. S. 654

by the defendant, which was excluded on the previous trial, was admitted and new testimony given bearing upon the question of the reservation of the land in controversy. The defendant obtained a judgment, the court holding that the land was claimed as a part of the Mexican grant mentioned and was reserved for its satisfaction. A motion for a new trial was denied. An appeal was then taken from the order denying the motion, and also from the judgment, to the supreme court of the state, which affirmed both the order denying a new trial and the judgment for the defendant, and for a review of the judgment the case is brought here on writ of error.