Wilson v. Southern Pacific R.R. Co.

HENSHAW, J.

This is an action by plaintiff to recover from defendant moneys paid on account of the purchase of lands. In its nature it is like the cases of the

Southern Pacific R. R. Co.

v.

Lipman,

148 Cal. 480, [83 Pac. 445], and

Wilson

v.

Southern Pacific R. R. Co.,

135 Cal. 421, [67 PaC. 688], where the facts will be found sufficiently stated.

In-this case plaintiff contends that it has been finally determined that patent shall not issue to the defendant, and that therefore he is entitled to his recovery. This contention he charges in two counts, the first based upon decisions of the supreme court of the United States, the second upon the fact that patent has actually issued to him.

The first of these propositions is the only one that requires consideration. The court found that it had been finally adjudicated, and decided that patent was not to issue to the defendant. Its conclusion was based upon the decision of the supreme court of the United States in

Southern Pacific R. R. Co.

v.

United States,

168 U. S. 1, [18 Sup. Ct. 18]. By appellant it is contended that while it is true that a part of the land in controversy in that case was within the indemnity limits of the branch-line grant to the Southern Pacific, there was no discussion whatever of the question whether lands within the indemnity limits of a railroad grant, which were reserved at the time of the grant, but subsequently restored to the public domain, could, after such restoration, be selected by the railroad company in lieu of losses within the primary limits; that such was what was actually done in the case at bar, and the right of the railroad company so to do,

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