Such a distinction was relied on in French v. Barber Asphalt Paving Co. 181 U. S. 324, 344, 45 L. ed. 879, 889, 21 Sup. Ct. Rep. 625, to reconcile the decision in that case with Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19 Sup. Ct. Rep. 187.

not be valid for the more serious expenses at the most, to the remaining portions, beinvolved in the taking of land. fore the improvement was made. These lots were assessed $650 less said $92, or $558, and $550 less said $75, or $475. It is most improbable that the widening of an alley could have nearly trebled the value of each lot. We think it apparent, as was assumed by the court of appeals,* that the jury understood their duty to be to divide the whole cost among the landowners, whether the benefit was equal to their share of the cost or not. It must be ad

more or less lent itself to that understanding. There is nothing in the record sufficient to show that the jury took a different view, or that they limited the assessment to the benefit actually conferred on these lots. For this reason the assessment must be quashed, and it will not be necessary to consider the special objections of the mortgagee.

And yet it is evident that the act of Congress under consideration is very like earlier acts that have been sustained. That passed upon in Wight v. Davidson, it is true, dealt with a special tract, and so re-mitted that the language of the statute quired the hypothesis of a legislative determination as to the amount of benefit conferred. But the real ground of the decision is shown by the citation (181 U. S. 378, 379, 45 L. ed. 904, 21 Sup. Ct. Rep. 616) of Bauman v. Ross, 167 U. S. 548, 42 L. ed. 270, 17 Sup. Ct. Rep. 966, when the same principle was sustained in a general law. 167 U. S. 589, 590, 42 L. ed. 288, 17 Sup. Ct. Rep. 966. It is true again that in Bauman v. Ross the land benefited was to be ascertained by the jury instead of being limited by the statute to a square; but it was none the less possible that the sum judgment. charged might exceed the gain. As only half the cost was charged in that case it may be that, on the practical distinction to which we have adverted in connection with Louisville & N. R. Co. v. Barber Asphalt Paving Co. the danger of such an excess was so little that it might be neglected, but the decision was not put on that ground.

In view of the decisions to which we have

referred it would be unfortunate if the present act should be declared unconstitutional after it has stood so long. We think that without a violent construction of the statute it may be read in such a way as not to raise the difficult question with which we have been concerned. It is true that the jury is to apportion an amount equal to the amount of the damage ascertained, but it is to apportion it "according as each lot or part of lot of land in such square may be benefited by the opening, etc." Very likely it was thought that in general, having regard to the shortness of the alleys, the benefits would be greater than the cost. But the words quoted permit, if they do not require, the interpretation that in any event the apportionment is to be limited to the benefit, and if it is so limited all serious doubt as to the validity of the statute disappears.

It is clear, however, from the petitions and the returns that the jury did not ad

Judgments reversed.

Mr. Justice Harlan, Mr. Justice White, and Mr. Justice McKenna concur in the

(205 U. S. 122) NORTHERN PACIFIC RAILWAY COMPANY, John A. Miller and Anna Miller, His Wife, and Washington Grain & Milling Company, Plffs. in Err.,

V.

JACOB SLAGHT.

Judgment-res judicata.

1. A decree rendered on demurrer, distrust in certain lands in favor of a railway missing, on the merits, a suit to establish a company, which set up, as a basis of its alleged title in fee simple, the railroad land grant act of July 2, 1864 (13 Stat. at L. 365, chap. 217), prevents the successor in interest of such railway company from asserting, in an action of ejectment involving the same property, brought by the defendant in the former suit, that such company had acquired title under the act of March 3, 1875 18 Stat. at L. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), or under the state statute of limitations. Limitation of actions-when statute begins to run.

2. A state statute of limitations for the recovery of real property does not begin to run in favor of a railway company as against a settler under the homestead laws of the United States until patent has issued.

[No. 152.]

minister the statute in the way in which Argued and submitted January 11, 1907. De

we have determined that it should be read. About one fifth of each lot was taken, and

cided March 11, 1907.

N ERROR to the Supreme Court of the

was valued at $92 and $75 respectively. State of Washington to review a judg

That would give a value of $368 and $300,

Ed. Note.-For cases in point, see vol. 33, Cent. Dig. Limitation of Actions, § 223.

125

ment which affirmed a judgment of the Su-, an. Defendant in error established his resperior Court in and for the County of Whit-idence upon the land in 1883. man, in that state, in favor of plaintiff in an action of ejectment. Affirmed.

In 1886 and the first half of 1887 the Spokane & Palouse Railway Company con

See same case below, 39 Wash. 576, 81 structed and completed, at great expense, Pac. 1062.

a railroad over lots 10 and 11, conforming to the survey previously made and staked

The facts are stated in the opinion. Messrs. Charles W. Bunn and James B. out, and from and after its completion it Kerr for plaintiffs in error.

Messrs. U. L. Ettinger, Thomas Neill, and W. E. McCroskey for defendant in er

ror.

Mr. Justice McKenna delivered the opinion of the court:

This is an action of ejectment brought by defendant in error against plaintiffs in error in the superior court in and for the county of Whitman, state of Washington, for land situate in the town of Palouse.

was operated daily and continuously in the carrying of freight, passengers, and mail. The right of way claimed was 100 feet wide on either side of the main line of railroad. It would be possible for plaintiff in error, who is the successor of the Spokane company, to carry freight, passengers, and mail over a right of way not exceeding 25 feet in width, and a space of 100 feet square would permit of the erection of a depot at the town of Palouse. But great inconvenience would result to the citizens of that The trial court adjudged defendant in er- town and vicinity and the railway company. ror the owner in fee simple of the land For the convenient, prompt, and expeditious sued for, and that the plaintiffs in error handling of freight and the erection of elewere in the possession and occupation of vators for storing grain and wheat a right the portions thereof described in their an- of way of 200 feet is necessary. At the swers against the will and consent of the time the railroad was surveyed and conplaintiff (defendant in error), and were oc- structed defendant in error resided upon cupying and in possession thereof without said lands and knew of its construction and right, except that the Northern Pacific the expenditure of large sums of money! Railway Company, as a public carrier, had therefor. About the time of the survey het a right to hold the possession of a strip published a notice in the Palouse News, a of land 25 feet wide, "being 12% feet on newspaper published in the vicinity of the each side of the center line between the land, forbidding all persons from trespassrails of its main track over and across said ing thereon. This is the only objection he land, and also a tract 100 feet square." made. In the month of August, 1887, the This tract was described. Defendant in er- Northern Pacific Railroad Company, claimror was adjudged entitled to recover "all ing to be the owner of lots 10 and 11, the rest of the land described in the amend- conveyed the same to William S. Powers, ed complaint." And that a writ issue to put and he, on the 14th of September of the him in possession thereof, but not until same year, conveyed to the Spokane & ninety days from the date of the judgment, Palouse Railway Company a right of way and, if an appeal should be taken and pro- 200 feet wide over lots 10 and 11, being ceedings stayed, then not until ninety days the same then claimed by that company and from the time the remittitur from the su- now claimed by plaintiff in error, the preme court affirming the judgment should Northern Pacific Railroad Company. On be filed; and if, in the meantime, the railway the 12th of May, 1897, the Spokane & Pacompany should commence proceeding in the louse Railway Company, Powers, and others, proper court to condemn the land claimed by as successors in interest of Powers under it and described in its answer, for railroad the above deed of conveyance from the purposes, then said writ should not be is- Northern Pacific Railroad Company, brought sued as to such land as it might seek to a suit against the defendant in error which condemn, unless the company should after-will hereafter be referred to and described. wards dismiss such proceedings or fail to The complaint was amended. The date of prosecute the same to final judgment and pay the award that might be made therein. The supreme court affirmed the judgment. 39 Wash. 576, 81 Pac. 1062.

its filing as amended does not appear. It was sworn to February 19, 1898. A demurrer to the amended complaint was sustained and, the plaintiffs declining to plead The facts, as far as necessary to be further, a judgment was entered June 24, stated, are that after proceedings in the 1898, dismissing the suit. The judgment land office, to which the railway company was affirmed successively by the supreme was a party, a homestead patent was is- court of the state and by this court. No sued to defendant in error April 20, 1897, suit of any kind was commenced by defendto lots 10, 11, 14, and 15 of section 1, town-ant in error to enjoin the construction of, ship 16 N., range 45 E., Willamette meridi- or the maintenance of, said railroad over

128

said right of way, except the suit at bar, which was brought shortly after the decision of this court above mentioned. The summons was served on the Northern Pacific Railway Company on the 9th of October, 1901, and the complaint was filed on the 4th of June, 1902.

The Spokane & Palouse Railway Company conveyed the right of way in controversy and all of its property on the 21st of February, 1899, to the Northern Pacific Railway Company, which has ever since maintained and operated said road from Spokane, Washington, to Lewiston, Idaho, and intervening points.

with great particularity. It was averred that the Spokane & Palouse Railway Company and other plaintiffs asserted and claimed title to certain portions of the land under and by virtue of certain instruments duly made and delivered by Powers and his grantees. And it was also averred that the questions involved were of common and general interest to many persons whom it was impracticable to make parties, and that such persons and the plaintiffs were the owners in fee simple and had an indefeasible title, and were in possession of lots 10, 11, 14, and 15 of section 1, township 16 N., range 45 E., Willamette meridian, and that Slaght claimed an interest or estate therein adverse to the plaintiffs, which claim was without any right whatever and that he had no estate, right, title, or interest whatever in the land or any part thereof. And it was averred that he threatened to commence suits in ejectment, and, with

plaintiffs from said premises or a portion thereof unless enjoined. An injunction was prayed restraining him from selling the land and doing the acts described; that he be required to set forth the nature of his claim, and that his claim be determined; that he be adjudged to have no title or interest whatever to the land or any part thereof, and be enjoined from ever assert

The Northern Pacific Railway Company (we shall follow counsel's example and treat the Northern Pacific Railway Company as the sole plaintiff in error, the individuals named being its lessees) assigns as error in its brief the ruling of the supreme court of the state, that the company "had no right of way under the act of Con-out suit, forcibly to dispossess and eject gress of March 3, 1875" (18 Stat. at L. 482, chap. 152, U. S. Comp. Stat. 1901, p. 1568), and the ruling, "that the statute of limitations of Washington could not, because the laws of the United States forbade, commence to run until patent issued." The limitation of the statute is ten years. The defendant in error opposes as a bar to these defenses the judgment in his favor in the suit brought by the Spokane & Pa-ing any; "that the title of plaintiffs be delouse Railway Company and William S. creed good, valid, indefeasible fee simple, Powers and others, which judgment was af- and free from all claims of said defendant;" firmed by this court. 180 U. S. 173, 45 that the patent be declared to have issued L. ed. 479, 21 Sup. Ct. Rep. 319. Plaintiff under a misconstruction of law, that he be in error is the successor in interest of the held to be a trustee for the plaintiff, WilSpokane & Palouse Railway Company, and liam L. Powers, and his grantees, both diis estopped by the judgment if that com-rect and through mesne conveyance, and pany would be.

that Slaght be required to convey the land

murred to the complaint and the demurrer was sustained. The plaintiffs electing to stand on the demurrer, judgment was entered dismissing the suit. This judgment was affirmed by the supreme court of the state and by this court, as we have seen.

The object of the suit in which the judg-to Powers and his grantees. Slaght dement was rendered, as appears from the findings of fact of the trial court, was to have Slaght, defendant in error, “declared a trustee, and as holding the land in trust" for the plaintiffs in the suit, and to require a conveyance from him to them, and to enjoin him from bringing any action to oust them. The amended complaint, which is made part of the findings, averred that the patent to Slaght was "issued under a misconstruction and misinterpretation of the law," and that, at the date of the issuance of said patent, the land was not, nor was it at the time he applied to enter the same, public land, subject to settlement or entry under the land laws of the United States, other than the act of Congress approved July 2, 1864 [13 Stat. at L. 365, chap. 217], granting land to the Northern Pacific Railroad Company. The facts and circumstances from which these conclusions were deduced and justified were set forth

The complaint in the suit did not show what land or interest Powers deeded to the Spokane & Palouse Railway Company, but it appears from the findings that the Northern Pacific Railroad Company conveyed lots 10 and 11 to Powers in August, 1887, and in September, 1887, Powers conveyed to the Spokane & Palouse Railway Company the tract of land then used as its right of way, and that it is the same tract which was occupied by the plaintiff in error as its right of way. The basis of the title alleged in the suit was the grant to the Northern Pacific Railroad Company by act of Congress of July 2, 1864. Rights under the act of Congress of March 3, 1875, or

*131

tions is useful to observe. Herman, Estup pel, § 92. It is there said: "Although there may be several different claims for the same thing, there can be only one right of property in it; therefore, when a cause of action has resulted in favor of the de

erty of a certain thing there can be no other action maintained against the same party for the same property, for that would be to renew the question already decided; for the single question in litigation was whether the property belonged to the plaintiff or not; and it is of no importance that the plaintiff failed to set up all his rights upon which his cause of action could have been maintained; it is sufficient that it might have been litigated."

under the statute of limitations of the, tion between personal actions and real acstate, were not set up. The Spokane & Palouse Railway Company, however, alleged that it and the other plaintiffs in the suit had a title in fee simple, and prayed, in the most comprehensive and detailed way, to have it quieted against the claims of the defendant in error, which, it was al-fendant, when the plaintiff claims the propleged, were threatened to be asserted by suits and by force without suit. The question now to be decided is, Is the decree in the suit res judicata? Against this effect of the decree the railway company urges that it was rendered on demurrer and "the estoppel extends only to the very point raised in the pleading, and does not bar another action based upon other facts." The effect of the decree, it is insisted, was only to decide against the title specially set forth in the pleading. And further, "in this action [that at bar] the right asserted is a perpetual easement or way by virtue of the act of 1875 through the lands involved in the former suit. Not only was this right not pleaded in the former complaint, but under it the title now asserted could not have been proved." To sustain these conclusions the following authorities are cited: Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 410, 35 L. ed. 1055, 1060, 12 Sup. Ct. Rep. 188; Gilman v. Rives, 10 Pet. 298, 9 L. ed. 432; Freeman, Judgm. 4th ed. 267; Van Fleet, Former Adjudication, § 306 and following.

In United States v. California & O. Land Co. 192 U. S. 355, 48 L. ed. 476, 24 Sup. Ct. Rep. 266, this principle was applied. In that case a decree rendered upon a bill in equity brought under an act of Congress to have patents for land declared void, as forfeited, and to establish the title of the United States to the land, was held to be a bar to a subsequent bill brought against the same defendants to recover the same land, on the ground that it was excepted from the original grant as an Indian reservation. And, speaking of the two suits, we said, by Mr. Justice Holmes: "The best that can be said, apart from the act just quoted, to distinguish the two suits, is that now a the United States puts forward a new ground for its prayer. Formerly it sought

Now it seeks the same conclusion by a different means; that is to say, by evidence that the lands originally were excepted from the grant. But in this, as in the former suit, it seeks to establish its own title to the fee." And further: "But the whole tendency of our decisions is to require a plaintiff to try his whole cause of action and his whole case at one time. He cannot even split up his claim (Fetter v. Beale, 1 Salk. 11; Trask v. Hartford & N. H. R. Co. 2 Allen, 331; Freeman, Judgm. 4th ed. §§ 238, 241); and, a fortiori, he cannot divide the grounds of recovery."

The citations are not apposite to the present controversy. It is well established that a judgment on demurrer is as conclusive as one rendered upon proof. Gould v. Evans-to avoid the patents by way of forfeiture. ville & C. R. Co. 91 U. S. 526, 23 L. ed. 416; Bissell v. Spring Valley Twp. 124 U. S. 225, 31 L. ed. 411, 8 Sup. Ct. Rep. 495; Freeman, Judgm. § 267. The question as to such judgment when pleaded in bar of another action will be necessarily its legal identity with such action. The general rule of the extent of the bar is not only what was pleaded or litigated, but what could have been pleaded or litigated. There is a difference between the effect of a judgment as a bar against the prosecution of a second action for the same claim or demand, and its effect as an estoppel in another action between the same parties This doctrine has illustrations in suits to upon another claim or demand (Cromwell quiet title. It was decided in Parrish v. v. Sac County, 94 U. S. 351, 24 L. ed. 195; Ferris (Doe ex dem. Parrish v. Ferris) 2 Bissell v. Spring Valley Twp. supra; New Black, 606, 17 L. ed. 317, that the judgment Orleans v. Citizens' Bank, 167 U. S. 396, in an action to quiet title is conclusive of 42 L. ed. 210, 17 Sup. Ct. Rep. 905; Southern the title, whether adverse to the plaintiff in P. R. Co. v. United States, 168 U. S. 1, 42 L. the action or to the defendant. In other ed. 355, 18 Sup. Ct. Rep. 18; Gunter v. At- words, determines the merits of the plainlantic Coast Line R. Co. 200 U. S. 273, 50 tiff's title as well as that of the defendant. L. ed. 477, 26 Sup. Ct. Rep. 252; Deposit In Indiana, B. & W. R. Co. v. Allen, 113 Ind. Bank v. Frankfort, 191 U. S. 499, 48 L. ed. 581, 15 N. E. 446, it was held that the rail276, 24 Sup. Ct. Rep. 154); and a distinc-way company could not assert against a

judgment decreeing title in the plaintiff in | mence to run before the patent issued, and such an action the right to construct and we have also assumed that rights under it maintain a railway over it. And in Davis V. Lennen [125 Ind. 185, 24 N. E. 885], it was decided that every possible interest of a defendant is cut off. And necessarily every possible interest of the plaintiff is cut off if the judgment is in favor of the defendant. Parrish v. Ferris, supra.

were complete in the Spokane & Palouse Railway Company at the time of its suit against Slaght. Lest the latter assumption be questioned it may be well to determine whether the other assumption be true. The supreme court decided against it on the authority of Gibson v. Chouteau, 13 Wall. 92, 20 L. ed. 534, and Redfield v. Parks, 132

83; that is, decided that the statute did not commence to run until the patent issued to Slaght, and that, therefore, this action was not barred. The ruling, we

The Spokane & Palouse Railway Com-U. S. 239, 33 L. ed. 327, 10 Sup. Ct. Rep. pany alleged a title in fee simple, and the truth of the allegation could be determined as well by demurrer as by proof, and the same legal consequences followed from it. Clearwater v. Meredith (Ferguson v. Mere-think, was right. The act of Congress of dith) 1 Wall. 25, 17 L. ed. 604; Goodrich 1875 and the statute of limitations are inv. Chicago, 5 Wall. 566, 18 L. ed. 511; dependent defenses, and, being so, the latAurora v. West, 7 Wall. 82, 19 L. ed. 42; ter comes within the rule announced. Of Black, Judgm. § 707; Freeman, Judgm. course, if the act of Congress of 1875 was 267, and cases herein before cited. The rec- a grant of the right of way in præsenti, ord shows that the demurrer was not upon "conveying a good title when the road was merely formal or technical defects, but went completed," as contended, it needs no aid to the merits. It was directed to the sec- from the statute of limitations, and would ond amended complaint of the plaintiffs. be an effectual defense if it were not They elected to stand on that complaint, barred by the judgment which we have conand declined to plead further. They assert-sidered.

ed its sufficiency by an appeal to the supreme court of the state and again to this court, and met defeat in both, as we

have seen. Whether the Spokane & Palouse

Judgment affirmed.

(205 U. S. 134)

PANY et al.
7.

ARGARET SLAGHT.

Railway Company could have pleaded, in NORTHERN PACIFIC RAILWAY COM. addition to the right it alleged under the deed from Powers, the rights that plaintiffs in error contend it acquired under the act of Congress of 1875, or the statute of limitations of the state, we need not determine. See $$ 97, 120, 14 L. ed. 942 et seq.; Story, Eq. Pl.; Smith v. Swormstedt, 16 How. 288, 14 L. ed. 942. It elected be

Northern P. R. Co. v. Slaght, ante, p. 442.
This case is governed by the decision in

[No. 153.]

cided March 11, 1907.

IN ERROR to the Supreme Court of the

IN

State of Washington to review a judg ment which affirmed a judgment of the Superior Court in and for the County of Whitman, in that state, in favor of plaintiff in an action of ejectment. Affirmed.

tween those rights and rights under the Argued and submitted January 11, 1907. DePowers deed, and we think its grantee is now bound by that election. The interest that the Spokane & Palouse Railway Company derived from Powers was of the right of way, which is now claimed by plaintiff in error. In other words, plaintiff in error, a successor of the Spokane & Palouse Railway Company, again asserts title to the very property that was the subject of the other suit, the source of title, only, being different. If this may be done, how often may it be repeated? If defeated upon the new title, may plaintiff in error assert still another one, either in its predecessor or in itself, and repeat as often as it may This case was submitted with No. 152, vary its claim? The principle of res judi- the questions being identical. On the aucata and the cases enforcing and illustrat-thority of that case the judgment is afing that principle declare otherwise.

In the discussion thus far we have assumed, as contended by plaintiff in error, that the statute of limitations could com

Messrs. Charles W. Bunn and James B. Kerr for plaintiffs in error.

No counsel for defendant in error.

Mr. Justice McKenna delivered the opinion of the court:

firmed.

Mr. Justice Brewer took no part in the decision of these cases.