The single question is whether these lands were, between the dates of the two surveys, sub judice, and therefore not passing under the grant to the railroad company. The map of definite location was filed and approved in 1874, and at that time, which was between the dates of the two surveys, the grant took effect. The description of the lands in the Mexican grant and in the decree of confirmation was not in the language of the United States land legislation, by section, township, and range, nor was it such that, without a survey, the exact boundaries could be determined. No one could say from reading this description whether the true north boundary was shown by the first or the second survey. The regular land surveys made by the government, establishing section, township, and range lines, would not locate the boundaries of the grant, nor would they identify either of those lines with any particular boundary. There was that generality of description which required a special survey to locate the grant. It is said that the patentee never claimed the land north of the boundary line established by the second survey, and therefore that it was in no just sense sub judice. But the boundaries being uncertain, he applied to the department authorized by Congress to determine them. It acted upon his application, and, by its survey, located the boundaries. He made no challenge of its action, but, so far as the record shows, was content therewith. While a new survey was subsequently ordered, it was not at his instance. So, at least until the first survey was set aside, it was the measure of his claim, and the lands within the boundaries established by it were sub judice. No affirmative declaration that he insisted upon his right to them was essential to make them a part of his claims.

But the special contention of the appellants is that the first survey was without any authority of law, because the statute provides that upon final confirmation of the claim a survey may be ordered, and it is insisted that there was no final confirmation until the order made by this court in 1875; that, although the confirmation by the district court was in 1861, yet an appeal was allowed which transferred the case to this court, and held the question of confirmation in abeyance until the order here made in 1875. The state (§ 13) provides:

' . . . and for all claims finally confirmed by the said commissioners, or by the said district or Supreme Court, a patent shall issue to the claimant upon his presenting to the General Land Office an authentic certificate of such confirmation, and a plat or survey of the said land, duly certified and approved by the surveyor general of California, whose duty it shall be to casue all private claims which shall be finally confirmed to be accurately surveyed, and to furnish plats of the same.'

Hence it is contended that the entire proceedings under the first survey were void and may be put out of consideration in determining whether the lands were sub judice. But this ignores the fact that, anterior to the first survey, the United States had practically abandoned its appeal from the order of the district court. It had for ten years failed to file any transcript in this court, and the petitioner had been entitled to the formal entry of docket and dismissal which he obtained in 1875,—an entry implying an abandoned appeal, and made to place that fact upon record. The government, which was the party interested against the petitioner, and the party taking the appeal, did not, when the application was made in 1869 to the surveyor general of California, question the right to a survey. It did not suggest that there had been no final order of confirmation, nor has it at any time raised any question of the right to that survey, and the Land Department ordered the second only upon a doubt of the accuracy of the first. It does not lie within the mouth of a third party to say that the government had a right to appeal, could have insisted on that right, and could have objected to the first survey on the ground of a failure to obtain a final order of confirmation. It is enough that the government recognized that it had abandoned its appeal, and was willing that proceedings should be taken looking to a survey and patent. Nor were the proceedings so absolutely void that it can be said that no claim was pending. The surveyor general was the official of the government, placed in charge of surveys, who, on application, was to determine whether the conditions had arisen which justified him in acting. If he decided erroneously his action could be set aside on review, but it was not a nullity. Even between individuals, if one brings a suit in a Federal court to quiet his title to a tract of land, and obtains a decree in accordance with his bill, and on appeal this court sets aside the decree and orders the suit to be dismissed for lack of proper allegations in respect to divers citizenship,—while it may be that the proceedings are ineffectual to determine the title, yet, can it be said that no suit was pending, no claim was made? Put the question in another aspect: Suppose no challenge of the first survey had been made, and the Land Department, acting on that survey, had caused a patent to be issued,—could the government obtain a decree setting it aside upon that showing alone, and without a disclosure of equities? In Williams v. United States, 138 U. S. 514, 34 L. ed. 1026, 11 Sup. Ct. Rep. 457, and Germania Iron Co. v. United States, 165 U. S. 379, 41 L. ed. 754, 17 Sup. Ct. Rep. 337, something more than premature action in certificate and patent was shown,—something which presented an equity entitling the United States to maintain its suit for cancelation.

Another matter; at the time the map of definite location was filed and approved, this first survey had been made and approved by the surveyor general of California, and by that survey the lands in dispute were included within the Mexican grant. The railroad company, therefore, took title to its land grant with this fact apparent on the records of the Land Department. In an early case in this court (Kansas P. R. Co. v. Dunmeyer, 113 U. S. 629, 28 L. ed. 1122, 5 Sup. Ct. Rep. 566) in which the question of the relative rights of railroads to granted lands and individuals claiming rights to separate tracts within the place limits was presented, we said (p. 641, L. ed. p. 1126, Sup. Ct. Rep. p. 571):

'It is not conceivable that Congress intended to place these parties as contestants for the land, with the right in each to require proof from the other of complete performance of its obligation. Least of all is to be supposed that it was intended to raises up, in antagonism to all the actual settlers on the soil whom it had invited to its occupation, this great corporation, with an interest to defeat their claims, and to come between them and the government as to the performance of their obligations.

'The reasonable purpose of the government undoubtedly is that which is expressed; namely, while we are giving liberally to the railroad company, we do not give any lands we have already sold, or to which, according to our laws, we have permitted a preemption or homestead right to attach. No right to such land passed by this grant.'

And this proposition has been repeatedly reaffirmed in later cases. Hastings & D. R. Co. v. Whitney, 132 U. S. 357, 33 L. ed. 363, 10 Sup. Ct. Rep. 112; Sioux City & I. F. Town Lot & Land Co. v. Griffey, 143 U. S. 32, 36 L. ed. 64, 12 Sup. Ct. Rep. 362; Whitney v. Taylor, 158 U. S. 85, 39 L. ed. 906, 15 Sup. Ct. Rep. 796.

One thing more; it appears from a stipulation of counsel that within the indemnity limits of the grant to the Southern Pacific Railroad there remain more than 50,000 acres of surveyed public lands for which there has been no selection or application to select by the company. So that there is no such equity in favor of the company as was suggested in the case of United States v. Winona & St. P. R. Co. 165 U. S. 463, 482, 41 L. ed. 789, 797, 17 Sup. Ct. Rep. 368.

The decree of the Court of Appeals is affirmed.