by John Marshall Harlan

“ Sickles, that, to the end that rights might be secured, and the repose of society preserved, and that limits might be imposed upon the faculties of litigation, the presumption had been adopted that the thing adjudged by a court of competent jurisdiction, under definite conditions, shall be received in evidence 'as irrefragable truth,' such a presumption being a guaranty of the future efficiency and binding operation of the judgment ”

“ But that precise issue, we have seen, was made in the former suit, and was determined for the United States. And to establish that fact the United States introduced the former record as evidence in its behalf. To say that the government lost the benefit of its former judgment, covering this issue or question, because it did not amend its bill, and plead the judgment as an estoppel, is to say that it was required to set out in its pleading what was merely evidence to support its title to the lands in controversy. The forty-fifth equity rule is not to be so interpreted. ”

“ No power but that of congress could interfere with this right of the Atlantic & Pacific. No one but the grantor can raise the question of a breach of a condition subsequent. Congress, by the act of forfeiture of July 6, 1886, determined what should become of the lands forfeited. It enacted that they be restored to the public domain. The forfeiture was not for the benefit of the Southern Pacific. It was not to enlarge its grant as it stood prior to the act of forfeiture. It had given to the Southern Pacific all that it had agreed to in its original grant ”

“ This contention is based upon the forty-fifth rule in equity, providing: 'No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without payment of costs, as the court, or a judge thereof, may in his discretion direct.' Under this rule, it is said, the United States had an opportunity to amend its bill, and in that mode to have met the allegations of the amended answer of 1893 ”

“ One other matter deserves attention. The learned counsel for the railroad company, in their extended comments upon the evidence in the present record, insist that, under the proof now before the court, it is indisputable that the Atlantic & Pacific Railroad Company did nothing more than file in the interior department 'a map of general or preliminary route for the purpose of securing a preliminary withdrawal of lands'; that the maps of 1872 were neither filed nor accepted as maps of definite location ”

“ This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. ”

“ It means, at most, that a general replication is always sufficient to put in issue every material allegation of an answer or amended answer, unless the rules of pleading imperatively require an amendment of the bill. ”

“ And thereafter, on or about March, 1872, said company filed in said office, as aforesaid, its several other maps, designating its route from said point last named to Springfield, in the state of Missouri, making altogether a continuous line, designating its entire route, and showing the general features of the country from said town of Springfield, Missouri, by way of the points named in said act of congress of July 27, 1866, to the Pacific, at San Buenaventura, and from there to San Francisco, and in the manner provided in said act; and such designation was accepted by the United States. ”

“ This defendant denies that the Atlantic & Pacific fime, in California, either in whole or in part, said maps, acquired the right to any lands of the United States lying opposite to the lines or route marked on said maps, and denies that said company acquired the right to select any public lands along said routes or lines as 'other lands' in lieu of sections within twenty miles that had been granted, sold, 'reserved, occupied by homestead settlers, or pre-empted, or otherwise disposed of' by the United States. ”

“ Hillyer of March 9, 1872, reads 'four maps of the definite location,' not 'four maps of the preliminary location.' The government also refers to the fact that when the commissioner of the land office received the letter from the secretary of the interior, the indorsement placed on the back of the map was in these words: 'Map of definite location of the Atlantic and Pacific Railroad through the county of Los Angeles and part of San Bernardino, Cal. ”