Oliver Wendell Holmes, Jr.

“ What a railroad is to be indemnified for may be fixed as of the moment of the grant, but what it may elect when its right to indemnity is determined depends on the state of the lands selected at the moment of choice. Of course, the railroad is limited in choosing by the terms of the indemnity grant, but the so-called grant is rather to be described as a power. Ordinarily no color of title is gained until the power is exercised. ”

“ A more delicate question is presented by the appeal of the Southern Pacific. It is this: A part of the lands in controversy were not only within the main line indemnity limits of the Southern Pacific and the primary limits of the Atlantic & Pacific, but also within the indemnity limits of the Southern Pacific branch-line grant. ”

“ It is said, and we do not understand it to be disputed, that in oral argument and printed brief before the circuit court of appeals the counsel for the government repeated that title under the main-line grant was not involved, and that if that question ever arose there would be pleadings and proof upon it. ”