David Josiah Brewer

“ In whatever way partition may be made, equity requires that the lands which the Southern Pacific has assumed to sell, and which were excepted by the circuit court from the decree in favor of the United States, and in respect to which they took their cross appeal, must be among those set off to the Southern Pacific, and thus the title of the purchasers be perfected. It is needless, therefore, to consider the merits of the cross appeal of the United States.
It is also unnecessary to determine the rights of the Southern Pacific to lands outside the limits of conflict. ”

“ Of course the decrees that were rendered in those cases are conclusive of the title to the property involved in them, no matter what claims or rights either party may have had and failed to produce; but as to property which was not involved in those suits they are conclusive only as to the matters which were actually litigated and determined. 'On principle, a point not in litigation in one action cannot be received as conclusively settled in any subsequent action upon a different cause, because it might have been determined in the first action.' Cromwell v. ”

“ By the 3d section a grant of lands was made to said company in these words:
'Sec. 3. And be it further enacted, That there be, and hereby is, granted to the Atlantic & Pacific Railroad Company, its successors and assigns, for the purpose of aiding in the construction of said railroad and telegraph line to the Pacific coast, . . . ”