Opinion of the Court.

laws; the criminal laws; and in admiralty cases. bar falls under none of these heads.

The case at

By the fifteenth section it was provided that the Circuit Courts of Appeals in cases in which the judgments or decrees of those courts were made final by the act, should have the same appellate jurisdiction by writ of error or appeal to review the judgments, orders, and decrees of the Supreme Courts of the several Territories, as by the act they might have to review the judgments, orders, and decrees of the District and Circuit Courts. This section does not apply to this case because it is not one of the cases in which the judgments or decrees of the Circuit Courts of Appeals are made final by the

act.

By the fourteenth section, section 691 of the Revised Statutes, and section three of the act of February 16, 1875, 18 Stat. 315, c. 77, were expressly repealed, and also "all acts and parts of acts relating to appeals or writs of error inconsistent with the provisions for review by appeals or writs of error in the preceding sections five and six of this act."

There was no provision for appeals or writs of error in cases not made final by section six from the Supreme Courts of the Territories to the Circuit Courts of Appeals, and there was no express repeal of the provisions of the prior acts regulating appeals or writs of error in such other cases from those courts to this. There is nothing to indicate an intention that the judgments and decrees of the Supreme Courts of the Territories should not be susceptible of review in the class of cases in which there was no appeal or writ of error to the Circuit Courts of Appeals.

The result is that, as the acts regulating appeals or writs of error from or to the Supreme Courts of the Territories to or from this court were not repealed, except to the extent specified, an appeal or writ of error lies to this court from the judgments or decrees of those courts, except in cases where. the judgments of the Circuit Courts of Appeals are made final.

The motion to dismiss the appeal will therefore be denied.

Statement of the Case.

CARR v. QUIGLEY.

ERROR TO THE SUPREME COURT OF THE STATE OF CALIFORNIA.

Argued April 26, 27, 1893.- Decided May 15, 1893.

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. 489, 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 day 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 one thousand dollars; and that the value of the annual rent of the premises is three hundred and twenty dollars. He therefore prays judgment for the restitution of the premises, for the damages sustained, and for the rents and profits.

Statement of the Case.

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 José 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 preëmptor 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 defence 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 preëmption 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

Opinion of the Court.

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 was brought here on writ of

error.

Mr. A. B. Browne, (with whom were Mr. A. T. Britton and Mr. F. H. Waterman on the brief,) for plaintiff in error.

Mr. Michael Mullany for defendant in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.

The defence upon which the defendant below relied on both trials, was that the land patented to the railroad company was within the boundaries of a Mexican grant, the validity of which was at the time under consideration by the Federal tribunals and was, therefore, reserved from sale when the patent was issued. Evidence to establish this fact was offered on the first trial, but rejected by the court, and for this alleged error the judgment recovered by the plaintiff was reversed.

On the second trial the evidence rejected on the first trial was received, and it was shown that the land patented to the railroad company was within the exterior bounds of the Mexican grant, and that its validity was then under consideration by the tribunals of the United States; and the court held that it was, for that reason, reserved from sale and that the patent therefor was unauthorized and void. The defendant having taken up a preëmption claim on the land, judgment was rendered in his favor.

Opinion of the Court.

The Supreme Court of the State sustained this view of the reservation of the land from sale and consequent appropriation to the satisfaction of the Congressional grant to the railroad company. The question for our determination is whether, at the time of the issue of the patent, the land was thus reserved. The act of July 1, 1862, 12 Stat. 489, c. 120, provided for the incorporation of the Union Pacific Railroad Company, and made a grant of land to that company to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean. Its provisions apply in terms to that company, but the construction of other railroads is included within the objects contemplated by the act, and the clauses relating to the Union Pacific Railroad Company are made applicable to them. The ninth section authorizes the Central Pacific Railroad Company, a corporation of California, to construct a railroad and telegraph line from the Pacific Coast, at or near San Francisco, or the navigable waters of the Sacramento River, to the eastern boundary of the State, upon the same terms and conditions which were provided for the construction of the railroad and telegraph line of the Union Pacific. A similar grant of land, of the same extent and upon like conditions, was made to the Central Pacific, and the rights and obligations of the company were determined by the same law.

By the provisions of the third section, thus applied, there was granted to that company, to aid in the construction of its road and telegraph line, every alternate section of public land, designated by odd numbers, to the amount of five alternate sections per mile on each side of its road on the line thereof and within the limits of ten miles on each side "not sold, reserved, or otherwise disposed of by the United States, and to which a preemption or homestead claim may not have attached at the time the line of the road is definitely fixed:" Provided, That all mineral lands were excepted from the operation of the act, but where they contained timber, that timber was granted to the company.

By the fourth section of the act, as amended by section six of the act of 1864, it was provided: "That whenever said.