Atlantic & Pacific Railroad v. Mingus

after stating the case, delivered the opinion of the court.

While the value of the land involved in this case is small, the question at issue between the parties affects the validity of the entire land grant of the company adjacent to and coterminous with all that part of the main line of the road not completed. on July 6, 1886. - The case turns wholly upon the validity of the act of that date, forfeiting that portion of the land grant.

Plaintiff claims in this connection that the act was invalid, inasmuch as the United States had failed to perform their own .obligations in two particulars: First, that they not only failed to extinguish the Indian title to lands along the prescribed route of the road, but had since further encumbered the grant by the creation of additional Indian reservations, carved out of the granted lands. , Second, that they also largely "failed to survey the lands as required by the sixth section, although repéatedly urged and requested to do só by the railroad' company.

1. The reservéd rights of the United States with respect to this land grant are contained in the eighth, ninth and twentieth sections of the original act, and are as.follows: By § 8 the grant was made subject to the condition that the company ■ should commence work within two years from the approval of the act, and should complete not less than fifty-miles a year after the second year,, and should complete the main line of' *427 the whole road by July 4, 1878. By § 9, a “ further condition ” was imposed: that if the company made any breach of the conditions of the act, and allowed the same to continue for upwards of one year, the United States might do anything which-might be needful and necessary to secure the speedy completion of the road. And by § 20 the general power was reserved to Congress to alter, amend or repeal the act, subject only to á due regard for.the rights of the company.

The position of the plaintiff is .that the rights of the United States were fixed and limited by § 9; that Congress did not intend that the grant should ever be forfeited, but that, upon a breach of any of the conditions, the United States could only take steps itself to insure the speedy completion of the road.

What steps the government could take in that direction, and what the effects of its action upon the land grant might be, it is difficult to decide. It would seem highly inequitable, however, that if the government.were compelled to go on and complete the road at its own expense the company should yet be able to retain the land grant, the condition of which was the completion of the road at its expense. The act makes no provision- whatever for the disposition of the land grant in this'.contingency. What remedy the government would have had in case it had elected itself to go on and complete the road is left entirely to conjecture. Some further action on the part of Congress would seem to have been necessary.

Aside from this difficulty, however, we are clearly of opinion that Congress intended to impose this simply as a “further condition,” consequent upon a breach by the railroad company of its stipulations, and to reserve to the United States the. option of forfeiting the grant entirely, or of taking measures to insure the speedy completion of the road. This further condition was obviously intended for the benefit of the government, and with no. purpose of merging other con- . ditions,' or-of superseding.other remedies to which it might be entitled. While, by the act of July 27, 1866, like other similar acts passed about the same time, it - was doubtless -intended that .the grant should operate m prcesenti% it certainly never could have? befen contemplated, that, in case the *428 company took no steps toward the completion of the road, the government, could not forfeit'the grant,, and, could resort to no other remedy than building the road itself.', It certainly would be highly inequitable as well ns impolitic that the company should retain the land grant and do nothing, toward the construction of the road, or that the lands granted should be permanently avithdrawn from the public domain. A more reasonable interpretation would be to say that Congress contemplated a possibility that the company might proceed in'good faith with the construction of the road, and might so nearly approach its completion that it would be for the best, interests of the government to go on itself and complete it rather than to insist upon an- entire forfeiture of the grant. Even.if § 9 were intended as a limitation upon the. power of Congress, which might otherwise be inferred from § 8,- the power reserved by § 20 to alter, amend or repeal the act,' except so far as its exercise might interfere with the just rights of the company, being the latest- expression of the legislative will, may properly be construed to dominate the others.

But little light is to be gained in the consideration of this question by referring to the conditions for forfeiture or reinvestment of title under other railway land grant acts. There is no such uniformity in the terms of their conditions subsequent as to lead us to give'any different construction to the three sections in question than such as their language plainly requires. It cannot be. supposed'that Congress intended to vest a title in the railway company to this enormous grant of lands without contemplating that the Government might in some way reacquire it in case of a failure of the company to comply with the conditions of the grant. No express provision for a forfeiture was required to fix the rights of the Government. If an estate be granted upon a condition subsequent, no express words of forfeiture or reinvestiture of title are necessary to authorize the grantor to reenter in case of a breach of such conditions. Stanley v. Colt, 5 Wall. 119 ; Mead v. Ballard, 7 Wall. 290; Ruch v. Rock Island, 97 U. S. 693; Hayden v. Stoughton, 5 Pick. 528 ; Jackson v. Allen, 3 Cowen, 220; Gray v. Blanchard, 8 Pick. 283. And the fact that *429 Congress imposed as a further condition the right to complete the road itself, did not deprive it of the power of resorting to other remedies to which the breach of such conditions entitled it.

2. As to the proper construction of the act of April 20,1871. This act, in general terms, authorized the railroad company to make and issue its bonds in such sums as it pleased, and to mortgage its road, etc., to secure them, with a proviso that if the Company should thereafter suffer any breach of the conditions of its act of organization, the rights of those claiming under the mortgage of the land grant should extend only to-so much thereof as should be “ coterminous with or appertain to that part of said road which shall have been constructed at the time of the foreclosure of said mortgage.” Conceding that, with respect to the rights of the mortgagees, at least, this act was a condonation of the breach of any condition which had previously occurred, it left the rights of the Government unimpaired with respect' to any breach which should thereafter occur, and expressly limited the rights of the mórt-gagées to such land as should appertain to and be coterminous with the completed portion of the road at the time of the foreclosure. It is insisted by the plaintiff that the final words of this act indicate an intention on the part of Congress to extend the time for the construction of the road until such time as the mortgagees might see fit- to foreclose. But we do not so read it. There is nothing in the act evincing an intention on the part of Congress to waive any of the conditions of the act of 1866, except so far as such conditions .had already been broken. Congress doubtless anticipated that the mortgage might be foreclosed, and desiring to provide against the possible contingency that the mortgagees might claim the right to sell the entire .land grant upon the foreclosure, declared that it should operate only upon that part of the.grant, appertaining to the completed portion. If there were any ambiguity in this act we should feel bound, upon familiar principles, to give the Government the benefit of the doubt, Dubuque & Pacific Railroad v. Litchfield, 23 How. 66, 88; Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733, 740 ; Coosaw Mining Co. v. South Carolina, 144 *430 U. S. 550, 562. But in our view there is no case made calling for .the application of this rule, as the intention of Congress to simply limit the remedy of the mortgagees seems entirely clear. Th'e original act being silent upon the subject of mortgaging the grant,- there is reason to suppose that Congress passed the act for. the purpose of resolving any doubts that ^capitalists-may hate‘.entertained with.respect to such power. The mortgagees,- standing in the place of the mortgagor, had no greater rights than it had, and must be held to have known that they .were-taking an estate which was defeasible upon condition- broken. It cannot be supposed that Congress intended to postpone indefinitely, or until the mortgagees chose to foreclose, any -remedy it might have against the mortgagor for.a breach-oí its .covenants. The-plain meaning bi the proviso is-to permit any foreclosure of the mortgage to operate only upon such lands-as are opposite and appurtenant to that part of the road which shotíld be constructed at the time' of the foreclosure, but not to extend for a day the time within which the road should be completed. The act also had a purpose in its assurance to mortgagees that no forfeiture would be insisted, upon for conditions already broken, and that, they might safely advance their money, if no breach should thereafter occur. Except to -this extent there was no intention by this act to alter, amend or repeal the act of 1866. ,

3. Coming -now to .the act of 1886, forfeiting the ’guant, it is claimed-in the first place that Congress has no right by-simple act to forfeit a title already vested, without providing for á judicial inquiry as to whether there has been a breach of a condition on the part of the grantee, and the legal effect of such breach; and, also, whether there has not been a-breach on the part of the United States which would estop them from claiming a forfeiture. There, is no doubt that, where an estate .is granted'subject to a condition subsequent, the mere fact that there has been a breach of such condition will not revest the title in the grantor without some act or declaration upon his part. Ruck v. Rock Island; 97 U. S. 693, 696. In this case'it was said by Mr. Justice Swayne that .fit was not denied by the plaintiff that the title had passed, and that the *431 estate had vested by the dedication. If the condition subsequent were broken, that did not, ipso fado, produce a reverter of the title. . The' estate continued in full force until the proper step was taken to consummate the forfeiture.' This act can only be done by the grantor during his lifetime, and after his death by those in privity of blood with him.” In the case of a private' grant this is ordinarily done by reentry on the part of the grantor, although, as was said in this case, bringing suit for the premises by the proper party is sufficient to authorize a recovery without actual entry or a previous demand of possession.” Cowell v. Springs Co., 100 U. S. 55; Austin v. Cambridgeport Parish, 21 Pick. 215; Jackson v. Crysler, 1 Johns. Cas. 125; Hosford v. Ballard, 39 N. Y. 147; Cruger v. McLaury, 41 N. Y. 219; Cornelius v. Ivins, 2 Dutch. 376.

But where the grant is a public one,- this court has held in a series of cases that the remedy of the Government is by an inquest of office or office found, a judicial proceeding but little used in this country, or by a legislative act directing the possession and appropriation of the land.

Blackstone defines an inquest of office as “ an inquiry made by the king’s officer, his sheriff, coroner or escheator, virtute officii, or by writ to them sent for that purpose, or by commissioners specially - appointed, concerning any matter that entitles the king to the possession of lands or tenements, goods' or chattels. This is done by a jury of. no determinate number p being either twelve, or less, or more. . . . These inquests of office were devised by law, as an authentic means to. give the king his right by solemn matter of record; without which he, in general, can neither take nor part from anything.” 3 Black. Com. 258, 259.

The necessity of an inquest of office was considered by this court at an early day in two cases. In Smith v. Maryland, 6 Cranch, 286, it was held that, by the confiscation act of Maryland, passed in 17S0, before the adoption of the Constitution, interests in land were completely divested by operation of lawx without office found.- The validity of the act was apparently not considered.

*432 The case of Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, involved the title to a large-tract of land in- Yirginia, granted to. Lord Fairfax. ' The lands were devised by will to Denny' Fairfax, a British subject, who never became a citizen of the United States, but always resided in England, and was an alien enemy. In 1789, the governor of the Commonwealth of Yirginia granted the lands by patent to Hunter, a citizen of Yirginia, who entered into possession prior to the institution of the action. It was the opinion of the court that the title acquired by an alien by purchase is not divested until office found, although it was contended that the common law as to inquests of office had been dispensed with by statute, so as to make the grant to Hunter complete and perfect. As to this point Mr. Justice Story observed, p. 622: “ We will not say that it was not competent for the legislature (supposing no treaty in the way), by a special act, to have vested the land in the Commonwealth without an inquest of office for the cause of alienage. But such an effect ought not, upon principles of public policy, to be presumed upon light grounds; that an inquest of office should be made in cases of alienage, is a useful and important restraint upon public proceedings. . . . It' prevents individuals from being harassed by numerous suits introducedt by litigious grantees. It enables the owner to contest the question of alienage directly by a traverse of the office. It affords an opportunity for the public to know the nature, the value and the .extent of its acquisitions, fro defectu hmredis/ and above all it operates as a salutary suppression of that corrupt influence which the avarice of speculation might otherwise urge upon the legislature. The common law, therefore, ought not to be deemed to be Repealed, unless the language of a statute be clear and explicit for this purpose.” It was further held that ’.during the war the lands in controversy were never, by any public law, vested in- the Commonwealth. It was also, held that the treaty of 1794 with Great Britain completely protected and confirmed the title of Denny Fairfax. Mr. Justice Johnson; dissenting, was of opinion that the interest acquired by Denny Fairfax, under. the devise was a mere scintilla juris, and that that. *433 scintilla was extinguished by the grant, of the -State vesting the tract in Hunter; that it was competent for the State to assert its rights ovfer an alien’s property by other means than by an inquest of office; that in Great Britain, in the case of treason, an inquest ¡of office had been expressly dispensed’ with by the statute of 33 II. -VIII, c. 30, and that he saw no .reason why it was not competent for the legislature of Virginia to do the same..

Subsequent cases 'in this court have asserted this power to exist beyond -any- controversy. As was said in United States v. Repentigny, 5 Wall. 211, 268: “The mode of asserting or of assuming the forfeited grant is subject- to the legislative authority of the Government.- It may be after judicial investigation, or by taking possession directly, under the authority of the Government, without these preliminary proceedings.” Practically the same language is used in Schulenberg v. Harriman, 21 Wall. 44, 63. In Farnsworth v. Minnesota & Pacific Railroad Co., 92 U. S. 49, 66, we said: 6 A forfeiture by the’ State of an interest in lands and connected franchises, granted for the construction of a public work, may be declared for non-compliance with the conditions annexed to their grant or to their possession when the forfeiture is .provided by statute, without;.-judicial proceedings to ascertain and determine’ the failure of the grantee to’perform the conditions. Such mode of ascertainment and determination — that isrby judicial proceedings — is attended with many .conveniences and advantages over vany’ other mode, as it establishes as-matter of record, importing verity against the grantee,-the facts-upon which the forfeiture depends, and thus avoids uncertainty in pities and consequent litigation. But that .mode is not essential to the divestiture of the interest -where the grant-is for .the accomplishment of an object in which the public is concerned, and is made by a law which .expressly provides .for the forfeiture when that., object is not accomplished. Where land and franchises are thus held, any public assertion by legislative act of the ownership of the Stake, after default of the grantee- — such as an act resuming control of them vand appropriating them to particular uses, or granting -them to *434 others to carry out the original object — will be equally effectual and operative.”

These cases were all quoted with approval, and the doctrine reasserted in McMicken v. United States, 97 U. S. 204, 217; Van Wyck v. Knevals, 106 U. S. 360, 368.

These cases are not put upon the ground that the United States reserved the right to declare a forfeiture, or even provided expressly for a reversion of title in case of a breach, but upon the general ground that the Government was vested, with the same right as a private grantor, upon breach of a condition subsequent, though such right was, from the necessities of the case, to be exercised in a somewhat different manner, viz., by legislative act instead of reentry.

But while we think the practice of forfeiting, by legislative act is too well settled to be now disturbed, we do not wish to be understood as saying that this power may be arbitrarily exercised, or that the grantee may not set up in defence any facts which he might lay before a jury in a judicial inquisition. It would comport neither with the dignity of the Government nor with the constitutional rights of the grantee, to hold that the Government by an arbitrary act might devest the latter of his title when there had been' no breach of the conditions subsequent, or when the Government itself had been manifestly in default in the performance of its stipulations. The inquiry in each case is a judicial one, whether there has been, upon either side, a failure to perform, and it makes but little practical difference whether s.uch inquiry precedes or follows the reentry or act of forfeiture.

The charge, in this connection, is that the Government not only failed in its legal obligation' to extinguish the Indian titles and to survey the lands, but, upon the contrary, has still further burdened these titles'with the very cloud it stipulated to remove by additional reservations in favor of the Indians. The main contest in the case has been upon this point. In locating the road between Springfield, in Missouri, and Albuquerque, in New Mexico, the most direct route lay,, for 350 miles, through the Indian Territory. To determine whether the Government has been derelict in this particular, it is nec *435 essary to compare the. several sections of the act to ascertain exactly what the grant covered, and to what extent the legal rights of the grantee wpre impdired by the non-action of the Government. By the third section of the act a grant was made of twenty sections per mile on each side of the line through the Territories, and ten sections per mile through the States, subject to the conditions that “ whenever, on the line thereof, the United States shall have full title not reserved, ,sold, granted or otherwise appropriated, and free from preemption -or other claims, or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the Commissioner of ,the General Land Office, and whenever, prior to said time, ahy of said sections or part of sections shall have béen granted, sold, reserved, occupied by homestead settlers, or preempted or otherwise disposed of, other lands shall be selected by said company'in lieu thereof.” If the grant stood upon this language alone, there could be no doubt that, as the lands in the Indian Territory had been set apart for the sole use and occupation of various Indian tribes, they were reserved lands within the meaning of that section’. Leavenworth, Lawrence &c. Railroad v. United States, 92 U. S. 733. It was held in this case that a grant of lands, in similar terms-to the one under consideration, did not applyto lands which had been reserved" to the Osage tribe of Indians within the State of Kansas, whether-the Indian right-'were extinguished before or after the definite location-of the route. See also Kansas Pacific Railway v. Dunmeyer, 113 U. S. 6.29; Bardon v. Northern Pacific Railroad, 145 U. S. 535.

Indeed, it is open to serious doubt whether that large tract' of. land, known distinctively as the Indian Territory, is a Ter-: ritory of the United States within the meaning of the act. While, for certain purposes, such for instance as the enforcement of the criminal and internal revenue laws, it has beery recognized as such, and within the jurisdiction of the United States, United States v. Rogers, 4 How. 567; The Cherokee Tobacco, 11 Wall. 616, a reference to some of the treaties, under which it is held by the Indians, indicates that it stands in an entirely different relation to the United States from other *436 Territories^ and that for most purposes it is to be considered as an independent country. Thus in the treaty of December 29, 1835, 7 Stat. 478, with'the Cherokees, whereby the United \ States granted and conveyed by patent -to the Cherokees a ^portion of this territory, the United States, iri article 5, covenanted and agreed that the land ceded to the Cherokees should “ in no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory ”; and by further treaty of August 16,1846, 9 Stat. S71, provided (Art. 1) “that the lands now occupied by the Cherokee Nation.shall be secured .to the whole Cherokee people for their common use and benefit, and a patent shall be issued for the same.” So, toó, by treaty with the Choctaws of September 27, 1830, 7 Stat. 333, granting a portion of the Indian Territory to them, the-United States (Art. 4) secured to the “ Choctaw Nation of Ned People the .jurisdiction and government of all the persons and property that may be within their limits west, so that no Territory or State shall ever have the right to pass laws for the government of the Choctaw Nation of Ned People and their descendants, and that no part of- the land granted shall ever be embraced in any Territory or State; but the United States shall. forever secure said Choctaw Nation from, and' against, all laws except such as from time to time may be enacted in their own national councils, not incon: sistent,” etc.' And in a treaty of March 24, 1832, 7 Stat. 366, with the Creeks (Art. 14),' the Creek country west of the Mississippi was solemnly guaranteed to these Indians, “nor shall any State or Territory ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves, so far as may be compatible with the general jurisdiction which Congress may think proper to exercise over them.”

Under the guaranties of these and other similar treaties the Indians have proceeded to establish and carry on independent governments.of their own, enacting and executing their own laws, punishing their, own -criminals, appointing, their own officers, raising and expending théir own revenues. Their position, as early as 3855, is indicated by the following extract *437 from the opinion of this court in Mackey v. Cox, 18 How. 100, 103:

“ A question has been suggested whether the Cherokee people should be considered or treated as a foreign state or territory. The fact that they are under the Constitution of the Union,- and subject to acts of Congress regulating trade, is a sufficient answer to the suggestion. They are not only within our jurisdiction, but the faith of the nation is pledged-for-their protection. In some respects they bear the same relation to the Federal Government as a Térritory did in its second grade of government under the ordinance of 1787. Such Territory passed its own laws, subject to the approval of Congress, and its inhabitants were subject to the Constitution and acts of Congress. The principal difference consists in the fact that the Cherokees enact their own ^ laws, under the restriction-stated, appoint their own officers, and pay their own expenses. This, however, is.no reason -why the laws and proceedings of the Cherokee territory, so far as relates to rights claimed under them, should not be placed upon the same footing as other Territories in-the Union. It is not a foreign,-but a domestic territory — a Territory which’originated under our Constitution and laws.”

Similar language is used with reference to these Indians in Holden v. Joy, 17 Wall. 211, 242. Under these circumstances it could scarcely be expected that.the United States should be. called upon to extinguish, for the benefit of a.railroad company, which had chosen to locate its route through this Territory, a title guaranteed to the Indians by solemn treaties and which had been possessed -by them for upwards of forty years with the powers of an almost independent government.

-The terms of the second section, of the land grant act' indicate that' nothing of this kind was contemplated. The United States did not agree to extinguish the Indian title absolutely but only “as rapidl} as may be’ consistent with public policy and the welfare of the Indians, and only by their voluntary cession.” Whether an extinguishment of an Indian title at all was consistent with public policy and the welfare of the Indians could only be determined by Congress, or the execra- *438 tive officers of the Government; whether it could be obtained by voluntary cession could only be determined by the acts of the Indians themselves.

In Bultz v. Northern Pacific Railroad, 119 U. S. 55, wherein a grant to the Northern Pacific Railroad, with a similar provision for the extinguishment of Indian titles, was under consideration,. it was held that,- under the principal treaties applicable to that case, the grant operated to convey the fee to the. company, subject to the right of occupancy by. the Indians, but that the right of the Indians could not be interfered with or determined, except by.the United States;' that no private individual could invade it, and the manner, .time and conditions of its extinguishment were matters solely for the consideration of the Government, and were not' open to contestation in the judicial tribunals. It appeared in .that case that the United States had full title to the lands, subject to a mere right of occupancy on thé part of the Indians.

With respect to the power of the United States to extinguish the Indian titles, it was observed in Beecher v. Wetherby, 95 U. S. 517, 525: “ It is to be presumed that in this matter the United States would be governed by such considerations of justice as'would control a Christian people in their treatment of an- ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians, with respect to their'lands is a question' of governmental policy, and is not a matter opere to discussion in a controversy between third parties, neither of whom derives title from the Indians.”

The railroad company was in no position to insist that the Government should extinguish these titles, at least without affirmatively proving that the Indians were willing to- make the cession, and that it was consistent with public; policy and their own general welfare to permit them to do áo. It made the Government its arbiter in this particular. Indeed, it is doubtful if the engagement of the Government -amounted to anything more than an expression of its willingness to assist the company in acquiring Indian titles, if the company could per---suadethe Indians to relinquish such titles, and'the Government *439 considered it consonánt with their welfare to do so. The stipulation should be read in connection with the seventeenth section of the act which authorized the company to accept grants from “ any Indian tribe or nation through Whose reservation the road herein provided for may pass,” provided that any such grant or donation, power, aid or assistance from any Indian tribe or nation should be subject to the approval of the President of the United States. This proviso is obviously inconsistent with any general undertaking on the part of the Government to extinguish all Indian titles. That it required the United States absolutely and at all hazards to extinguish such titles, and to take from the Indians a strip of land forty miles in width through the entire Territory, and open it to settlement, is not only inconsistent with their treaties and with their agreement with the company, but one which involved a grave disturbance, if not practically the upsetting of a long established Indian government. In fact, Congress promised nothing in this particular from ■ which the company could claim a legal breach of their agreement, without at least showing that the Indians were willing to cede that portion of their territory^ and that public policy and their own welfare required this to be done.

Plaintiff admits that there was a reserved discretion in the Government as to the circumstances under which the Indian titles should he extinguished, but insists that, so long as that discretion was exércised and performance withheld, the Government was in- no position to assert a right of forfeiture- — -in other words, that so long as fulfilment by the company remained impossible, by reason of the failure; of the Government to keep its promises, no matter for what reason, the power to insist upon perforvnance. by the railroad was postponed. We consider this construction of the compact unsound. The railroad company took its chances with the Government in this particular. The latter might not deem it sound policy or for the welfare of the Indians to extinguish their title, or it might not procure their assent. Under neither contingency would the company have the right to complain nor to set up this non-performance as a defence to its own failure'to build *440 the road. Knowing the title under "which the Indians held this territory, the company should, when it contemplated' the .'construction of the road, have obtained some positive assurances from the Indians that they would permit the road to be built. It seems that by treaties made in 1866 with the Semi-nóles, the Choctaws and Chickasaws, the Creeks, the Delawares and the Cherokees, 14 Stat. 755-799, provision was made for a right of way for certain railways from north to south, and from east to west, through the Indian Territory ; but the very fact that these treaties made no provision for a grant of lauds to the railvvays through this Territory as appurtenant to their line of road was notice to the companies that no such grant was contemplated. Indeed, these very treaties made additional provisions for the exercise.of legislative power by the several Indian nations, and contained additional guaranties for their legislative independence and self-government — guaranties quite inconsistent with'a grant to the railway of alternate sections of land forty miles in width, and the opening of the other alternate sections to purchase as public lands. All of these treaties were entered.into prior to the land grap't act of July 27, 1866; and both parties must have had them in view at that time.

4.. The defence that other reservations were made to these Indians‘after' this act-was passed stands upon a somewhat, different basis. So far as these Indian reservations were in the Indian' Territory they are immaterial, since we have already held that lands in that Territory did not pass, and it could make no difference whether they were reserved for one tribe or another. Of the reservations in New Mexico and Arizona most of them were made-after July 4, 1878, the time fixed for the completion of the road, and at a time when the Government had a right to declare the grant forfeited. All -thesé reservations, toó, ryere made opposite portions of the rqad which were actually built, and cannot be made available as an excuse for not' completing the other portions. None of them seem to affect in any way the lands coterminous with the unconstructed portion. ' There was no restriction upon the right of the Government to. dispose of public lands in any way *441 it saw-fit prior to the filing of the map of definite location; and if it assumed to dispose of lands within the grant, after the rights of the railroad company had attached, such action might be void, but it would be no answer to'the obligation of the company to complete its'road within the stipulated time. Some of these reservations, too, were made in pursuance of treaties made with the Indians prior to the land grant act, and were apparently made in pursuance of a plan to confine the Indians within designated boundaries of territories previously. occupied by them. These reservations did not seem to have seriously interfered with the company in the prosecution of its work, or, with the exception of those in the Indian Territory, ■to have been seriously insisted upon as an answer to the proposed forfeiture of its land grant.

.5. It is finally contended that the Government failed to ful-fil its obligation to survey the lands, and; that this was .a condition precedent to its right to declare a forfeiture. This obligation is contained in the sixth section in the following language: “That, the President of the United States shall cause-the lands’to be surveyed , for forty miles in width on both sides of the entire line of said road, after the general route shall be fixed, and as fast as may be required by the construction of said railroad.” Evidently the failure to do. this did not prevent the company from realizing the full value of the land granted by mortgaging the road, and it is open to doubt whether it could, under any circumstances, be insisted upon.as a defence to the forfeiture. It' is true that the railroad company offered to furnish the money for such surveys,, arid that the United States refused to accept it; but such offer was not made until 1881, three years after the time stipulated for the completion of the road, and’ at a time when the Government had a right to treat the. land grant as forfeited, although the act of forfeiture was not passed for five. years thereafter.

Upon the whole it does not seem to us that Congress exceeded its powers in forfeiting this grant. The plaintiff company seems to have undertakén its great enterprise in building a transcontinental railroad without' adequate appreciation of *442 the difficulties to be surmounted, which finally caused a total suspension of its work; and, when in 1880, after the panic of 1873 had spent its force, it resumed operations, the time had already expired for the completion of the road, and it was only by the' inaction or indulgence of Congress that it was permitted to proceed. So far .as the road was built and accepted by the Government after that time, it was probably entitled to receive its appropriate land grant, but this was rather a matter of. favor than of strict right. . During this long' period, from 1871 to 1880, it should, under its charter, have constructed at least fifty miles per year, and. should have completed the whole road by July 1, 1878. But it did nothing. After this . long, inaction of nine years and its practical abandonment of the work, the company was not in a position to demand of the Government a strict and literal performance of its obligations when it had so completely failed to meet its own. While the reservation of some of these lands for the benefit of the Indian tribes might not have been consistent with its obligations to extinguish Indian titles, if the company had been prosecuting its work according to its contract, we do not think that it is. entitled to complain that the Government did; not deal with it precisely as if it lived up to its undertaking. ?' ■

The judgment of the; court .below must, therefore, be

Affirmed.