It would have been far more satisfactory to the court, if the original documents themselves had been introduced in evidence, instead of mere photographic copies, or if the court could have been permitted to inspect the originals, but this could not be done without compulsion, or upon such conditions, as respondent and her counsel, themselves, saw fit to prescribe, and to which the court could not submit. We have done the best we could, in view of the disadvantages under which we labored, in this particular, and if the respondent has suffered from a want of inspection of the originals by the court, and nearly all the witnesses-all except the witness Piper-it is the result of her own, and her counsel's acts. The inference that must be drawn from withholding an inspection, is, that their production would be injurious to respondent's case, and this inference only makes more certain the correctness of our conclusion, which is, sufficiently, obvious without its aid. I am satisfied, after a most laborious and careful consideration of the evidence, that the instrument in question, the so-called "Dear Wife" letter in ink, and the other "Dear Wife" letters, the latter, at least, as to the word "wife," are not genuine; that they are forged and fraudulent, and that the alleged declaration of marriage set out in the bill ought to be canceled and annulled as a forgery, and a fraud.

The analysis of the evidence by my associate is so searching, exhaustive, and satisfactory, and his reasoning so convincing, that no further discussion can be desired. I feel, that I can add nothing of interest, or that will give additional force to the argument, and but for the great importance of the case, and the widespread public interest manifested in it, I should have remained silent. Without further observations, therefore, I concur in the conclusions on the material points, reached, in the line of reasoning by which they are established, and in the decree ordered.

As the case was argued and submitted during the life-time of complainant, who has since deceased, the decree will be entered nunc pro tunc, as of September 29, 1885, the date of its submission, and a day prior to the decease of complainant.

UNITED STATES v. CURTNER.

January 18, 1886.

RIGHT OF UNITED STATES TO VACATE PATENT TO LAND.-Where the United States is under an obligation to make a title to a portion of the public lands, they have such an interest in the lands as entitles them to maintain a suit in equity to vacate a prior patent improperly issued by mistake to a party not entitled to it.

PARTIES TO SUIT.-Where lands have been improperly listed by the officers of the United States land department by mistake to the state of California, and the state has subsequently patented them to private parties, the state is not an indispensable party to a suit by the United States against the several patentees to annul such patents. Nor is the party entitled to the lands by right fully vested prior to such listing to the state an indispensable party.

SAME-MULTIFARIOUSNESS.-A bill in equity filed by the United States to vacate the patents to several parties of several distinct parcels of land, the several defendants having no joint interest in any portion of the land, depending upon the same facts and the same evidence, is not objectionable as being multifarious.

Before SAWYER, Circuit Judge.

S. G. Hilborn, United States attorney, and Shafter, Parker & Waterman, for the complainant.

L. D. Latimer, for the defendants.

SAWYER, Circuit Judge, orally. This is a bill filed by the United States to set aside listings of certain lands to the state of California, and certain patents therefor, issued to defendants by the state.

The ground is, that the lands, listed and patented, are odd sections within the limits of the grant made by the United States to the Central Pacific Railroad Company; and that no other right had attached to them, at the time of filing the definite location of the road, and that the road having been completed pursuant to the act of congress the title vested; that the lands were listed over to the state by mistake; the right of the railroad company to a patent having before the listing fully vested and become perfect.

The state, after such listing over, patented them to the several defendants or their grantors in this case. This suit is brought by the United States, under direction of the attorney-general, to annul the listing and these patents, on the ground, that they were issued by mistake, when there was no right, except the bare, naked, legal title left in the United States, and no authority in the officers of the United States to list them over to the state of California.

There is a demurrer to the bill.

In the first point, counsel follow the suggestions in the case of United States v. Minor, 114 U. S. 233, as to whether the right to the lands having already passed out of the United States, the complainants have any interest in the suit. They suggest the points, therein indicated, and rely upon them.

I think the United States have such an interest in the lands, or that they stand in such relation to them, as entitles them to maintain a suit. Under the allegations of the bill, the right to a patent to the lands was fully vested and perfected in the railroad company before the listing to the state. The officers of the government, therefore, acted wholly without authority in listing them to the state; but they did list them over, and the state has patented them, to the several defendants, and their grantors, and thereby a conflict has arisen, and the government recognizes the right of the railroad company. There has been a conflict for years over these lands, the railroad company seeking a patent. The government, after a due consideration of the subject, recognizes the fact that these lands belong to the railroad company, but declines to complicate the matter by issuing another patent. It prefers to vacate the title issued, in order that it may give a perfect title, which I think is a very proper mode of procedure on the part of the United States. It is much better than issuing another and second patent, thereby complicating

the title and leaving the railroad company a long litigation with each individual defendant on its hands. It was through the wrongful acts of the officers of the government that this conflict arose, and the listing to the state stands in the way of issuing the patent to the proper party. As the wrong resulted from the mistake of the government officials, the government of the United States is under obligation to perfect the title for its first grantee. The United States have an interest, therefore, in the litigation, because they are morally and legally boundalthough there may be no remedy in the courts against the government to see that this title is made perfect, and they, therefore, stand in such relation to the lands in this case as gives them a right to intervene to set aside the listing to the state, and the patents issued in pursuance of such listing in order that they may perform their duty, and discharge their legal and moral obligation to the railroad company.

The following authorities, I think, sustain that position: United States v. Hughes, 11 How. 568; United States v. Hughes, 4 Wall. 235; United States v. Stone, 2 Id. 535; United States v. Robbins, 96 U. S. 533.

The United States is an injured party, it being placed in that position where it cannot fulfill its legal obligation. I think that objection, therefore, should be overruled.

The second objection, is, that there is a defect of parties plaintiffthe railroad company not having been made a party.

The railroad company, although it is interested in the land, is not a party to the transaction between the United States and the state of California, and it derived no title from the United States, subsequently, to this transaction. The right of the railroad company was vested, and perfected, before this transaction. It is not a subsequent claimant. It being no party to the transaction, and not claiming by title subsequent, I think it is not an indispensable, or necessary party to the suit. The sole duty to make a title is on the government. Whether it would be a proper party, it is not necessary now to determine. I think that objection should be overruled.

The next objection, is, that the state of California should be a party. The state of California has parted with all her interest in the lands, whatever it was, to the defendants in this case, and she now has no interest in them, to be affected. I do not think she is an indispensable, or a necessary party, to this suit. Besides, the state of California cannot be sued. She is not subject to be sued, and could not be made a party. As to whether she would be a proper party, it is not necessary to determine; but I do not think the state of California is an indispensable party, as to any suit between the United States and her grantees. The United States have no interest in any litigation between the state and her grantees, arising out of the transactions between themselves. The demurrer is, therefore, overruled on that point.

It is claimed that the action is multifarious, in that each of the parties defendant has a separate patent from the state.

These lands were listed to the state under one act. It is possible that they were listed at different times, but it was all done under one act, and the rights of the railroad company, the moving cause of this suit, is derived from the United States under one act. There are, therefore, two points of title common to all the parties. The same questions arise as to all of these defendants, and the case of each will be decided on the same issues, and the same testimony.

There is no difficulty, then, in litigating all the questions, and the rights of all the parties, in the same suit.

In this matter of multifariousness, in equity practice, there is no definite, absolute, unbending rule. It rests very much in the discretion of the court. The litigation in this suit will prevent a multiplicity of suits. A suit brought against each defendant, respectively, would be oppressive to the government, and to all parties, and be much more expensive to both.

I think the bill is unobjectionable in that particular.

The statute of limitations, and that the claim is stale, are set up as grounds of demurrer, but they do not appear to be relied upon in the argument. Indeed, nothing is said on these points. The statute of limitations, if applicable as such in equity cases in the national courts, does not apply to the United States.

As to staleness, the railroad company has, constantly, been pressing its claim before the proper officers, and awaiting for years on, the routine of, the land department of the government. The department has been considering it, and the claim having gone through all stages, the secretary of the interior has, finally, decided that the company was entitled to the lands, and directed the commencement of this suit. The proceedings have been as expeditious as is usual in such cases, and as the nature of the case admits.

I do not think the charge of stalement will lie in this matter. The case, I think, is within the rule on this point stated in United States v. Minor, already cited.

The demurrer will, therefore, be overruled, and the defendants allowed till the rule day in March to answer.

SUPREME COURT OF CALIFORNIA.
No. 11,092.

COUNTY OF FRESNO v. FOWLER SWITCH CANAL COMPANY.

Department One. Filed January 22, 1886.

CANAL CORPORATIONS-DUTY OF Constructing Bridges over HIGHWAYS.-Section 551 of the civil code, imposing the duty upon every ditch company to construct and keep in good repair, over their canals at points where they cross a public highway, the bridges which the board of supervisors may require, was not repealed by section 2737 of the political code, which authorizes the road overseer to construct such bridges upon the neglect of the persons excavating such ditches so to do, and to recover the cost of constructing from such persons.

THE SAME-MANDAMUS LIES TO COMPEL PERFORMANCE OF DUTY.-Upon the refusal of a ditch company to construct such bridge, it may be compelled so to do by mandamus.

APPEAL from a judgment of the superior court of Fresno county, entered in favor of the plaintiff, in a proceeding of mandamus to compel the defendant to construct and maintain a bridge over its canal where the public road of plaintiff intersects the same. The further facts appear in the opinion.

E. C. Winchell, for the appellant.

E. D. Edwards and Sayle & Harris, for the respondent.

MCKINSTRY, J. This was a proceeding in the court below to compel by mandamus the defendant, a water and canal corporation, to perform the duty imposed by section 551 of the civil code, which provides: "Every water or canal corporation must construct and keep in good repair, at all times, for public use, across their canal, flume, or waterpipe, all of the bridges that the board of supervisors of the county in which such canal is situated may require, the bridges being on the lines of public highways, and necessary for public use in connection with such highways; and all water-works must be so laid and constructed as not to obstruct public highways."

Appellant claims the section of the civil code to be no longer operative, because repealed by section 2737 of the political code: Amendments of 1883, 17.

The section of the civil code requires every such corporation to construct and keep in good repair, over their canals at points where they cross a public highway, the bridges which the board of supervisors may require.

The section of the political code reads: "All persons excavating.. ditches across public highways are required to bridge said ditches at such crossing, and on neglect to do so the road overseer for that road district shall construct the same and recover the cost of construction of such persons by action as provided in this section."

We think the word "persons" includes canal corporations. But the provisions of both codes are in force because they are not necessarily contradictory. The attention of the legislature was not addressed to the same subject. The section of the civil code is in a chapter which treats of corporations; that of the political code in a chapter which is