'Phis is an appeal by the defendants from a decree of the Circuit Court, Southern district of California, annulling a patent issued by tlie United States to the defendant Southern Pacific Railroad Company for certain lands in the state of California.

The bill of complaint alleges, and the agreed statement of facts shows, that part of the land so patented is situated within the primary and part within the indemnity limits of the grant of land made to the Atlantic & Pacific Railroad Company by the act of Congress approved July 27, I860, c. 278, 11 Stat. 292 . The Atlantic & Pacific Railroad Company did not construct any portion of the road located by it in the state of California, as contemplated by that act, and Congress on July 6, .1886, c. 637, 24 Stat. 123 , passed an act forfeiting the lands granted to that company, in so far as they were “adjacent to and coterminous with tiie uncompleted portions of the main line of said road, embraced within both the granted and indemnity limits as contemplated to be constructed under and by the provisions” of the act making the grant. The lands in controversy are within the indemnity limits of the grant made to the Southern Pacific Railroad Company by Act March 3, 3 8 7l, c. 122, 3 6 Stat. 573 , and were selected by that company as indemnity lands after their restoration to the public domain by the act of July 6, 1886, forfeiting the grant previously made to the Atlantic & Pacific Railroad Company. It is not claimed by the United States that the Southern Pacific Railroad Company did not earn the lands granted to it, nor that it was not entitled to make indemnity selections to take the place of odd-numbered sections within the primary limits of the grant to which it failed to acquire title. But the objection urged to the validity of the. selections in controversy is that the lands were not subject to selection by that company, because they are all either within the primary or within the indemnity limits of the prior grant made to the Atlantic & Pacific Railroad Company, and this was the view taken by the Circuit Court.

1. The contention of the Southern Pacific Railroad Company on this appeal is that, as the lands were public lauds, open to settlement and entry, at the date of selection, such selection was valid. Section 23 of Act March 3, 1871, 16 Stat. 573 , under which the appellant claims, reads:

In discussing the effect of the proviso contained in this section, the Supreme Court, in the case of United States v. Colton Marble & Lime Co., 146 U. S. 615 , 13 Sup. Ct. 163, 36 L. Ed. 1104 , said:

It is' true that in the case just cited the question before the court was not precisely the same as that which is presented here, the controversy in that case relating to lands within the granted limits of the Southern Pacific Railroad Company under its grant of March 3, 1871, and the indemnity limits of the prior grant to the Atlantic & Pacific Railroad Company. But in the later case of Southern Pacific Railroad Company v. United States, 168 U. S. 1 , 18 Sup. Ct. 18, 42 L. Ed. 355 , part of the lands in controversy were indemnity selections made by the Southern Pacific Railroad Company under the act of March 3, 1871, of lands within both the primary and indemnity, limits of the grant made to the Atlantic & Pacific Railroad Company by the act of July 27, 1866; and in affirming the decree of the Circuit Court which annulled patents based upon such indemnity selections the court must necessarily have held, upon the record, before it, that such selections were invalid and the patents issued thereon void for that reason; and this seems to have been the construction placed upon the decision in that case by the Supreme Court, in Southern Pacific Railroad Company v. United States, 189 U. S. 447 , 23 Sup. Ct. 567, 47 L. Ed. 896 , in which the court, in speaking of the contention of the Southern Pacific Railroad Company that it had the right, under its grant of March 3, 1871, to make indemnity selections of land within the place limits of the grant made to the Texas Pacific Railroad by the same act, used this language :

The conclusion reached by the Circuit Court is in harmony with the two cases last cited, and the decree is therefore affirmed.