Opinion of the Court.

person appointed by the court for the service of this process, and who made no affidavit of service.

Before considering the question of service, a preliminary matter is worthy of mention. This is an application to a court of equity, to set aside deliberate proceedings of a court of superior jurisdiction; and is made more than eleven years after the matters complained of took place. There is no allegation that the subpoena was not in fact delivered to the plaintiff, or that he was ignorant of the proceedings in court, or of the pos session taken and held by the defendant. While the bill alleges that plaintiff was at the time of the filing a citizen of Kansas, it does not show how long.he had been such. It is averred that the plaintiff's mother, sister and brother, joint owners with himself of the property, were made parties defendant to the foreclosure proceedings; and it is not averred that they were not duly served with process. It is shown that the defendant entered into possession immediately after the sale, and has continued in possession, receiving the rents and profits. From what is stated in the bill, as well as from what is omitted, it is a fair inference that this plaintiff received the subpoena at the time the original suit was commenced; that he was aware of all the proceedings in the court; that he knew of the change in possession; and that he remained in Louisville for years thereafter, with full knowledge that the defendant had the possession, claimed it under the decree, supposed he was owner, and received the rents and profits as owner, and yet during all those years made no complaint, and took no steps to assert any rights as against the decree and sale.

Now, it is a rule of equity, that an unreasonable delay in asserting rights is a bar to relief. A familiar quotation from Lord Camden, in Smith v. Clay, 3 Bro. Ch. 638, is that "nothing can call forth this court into activity but conscience, good faith and reasonable diligence." Is not the delay disclosed by this bill such laches as to defeat plaintiff's claim? For eleven years he was inactive, and, as may be fairly inferred from the bill, with the full knowledge of his rights, and nothing to hinder their assertion. No excuses for this are given the bill is absolutely silent as to any reasons for delay.

Opinion of the Court.

But if this long delay will not of itself bar plaintiff's claim, it at least compels any reasonable construction of language which will sustain the decree. Now, it is not averred in the bill that service was not made by the marshal, nor that Hays was not a general deputy. What relations he sustained to the marshal, what position he held under him, are not disclosed otherwise than by the return on the subpoena. While from that it may be inferred that he was a special bailiff, with only such powers as were given by the designation written on the subpoena, yet it is consistent with all that appears that he was also a general deputy, who was by the marshal designated for this special service. More than that, it is a fair question from the return as to who in fact made the service. The return is signed

If it were not for the designation above the return, it would not be doubted that the latter was to be construed as showing service by the marshal, and the name of the special bailiff would be disregarded as surplusage. Giving to the designation all the force that fairly belongs to it, it is a reasonable construction of the return that the service was made by the marshal and the bailiff, either jointly or severally. And if severally, then on the two defendants, respectively, in the order in which they are named, which would make that on this plaintiff service by the marshal himself. Further, the District Court is one of superior jurisdiction, in favor of the validity of whose proceedings when collaterally attacked is every intendment. Its jurisdiction in any case will be presumed, unless it appears

Statement of the Case.

affirmatively on the face of the record that it had not been acquired.

Putting, therefore, these things together, to wit, the unexplained delay, the reasonable inferences from what is stated and what is omitted, the presumptions in favor of jurisdiction and the different constructions of which the language of the return is susceptible, we are of the opinion that the ruling of the Circuit Court sustaining the demurrer to the bill was correct, and its decree is

Affirmed.

DESERET SALT COMPANY v. TARPEY.

ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 96. Argued and submitted November 24, 1891.- Decided December 21, 1891. The grant of public land to the Central Pacific Railroad Company by the acts of July 1, 1862, 12 Stat. 489, c. 120, and July 2, 1864, 13 Stat. 356, c. 216, was a grant in præsenti; and the legal title to the granted lan, as distinguished from merely equitable or inchoate interests, passed when the identification of a granted section became so far complete as to authorize the grantee to take possession.

Rutherford v. Greene, 2 Wheat. 196 cited and followed.

Patents were issued, not for the purpose of transferring title, but as evidence that the grantee had complied with the conditions of the grant, and that the grant was, to that extent, relieved from the possibility of forfeiture for breach of its conditions.

Wisconsin Central Railroad Co. v. Price County, 133 U. S. 496, 510 approved. The provision in the statute, requiring the cost of surveying, selecting and conveying the land to be paid into the treasury before a patent could issue, does not impair the force of the operative words of transfer in it. The railroad company could maintain an action for the possession of land so granted before the issue of a patent, and could transfer its title thereto by lease, so as to enable its lessee to maintain such an action.

THE Court stated the case as follows:

This is an action of ejectment by D. P. Tarpey, the plaintiff below, against the Deseret Salt Company, a corporation created under the laws of Utah, for certain parcels of land in that Territory, described in the complaint as the northwest quarter of fractional section nine (9), in township eleven (11)

VOL. CXLII-16

Statement of the Case.

north, range nine (9) west, Salt Lake base and meridian, and the northeast quarter and the southwest quarter of said section, in part covered with water; in all, three hundred and eighty acres, more or less. The greater part of these lands lie on the border of Great Salt Lake, a body of water in that Territory of nearly ninety miles in extent, and in breadth varying from twenty to thirty miles, which holds in solution a large quantity of common salt. The remaining lands in the section are covered by the lake.

In 1875 one Barnes took possession of a portion of these lands and began the construction of improvements and the erection of machinery to raise the water of the lake and conduct it into ponds or excavations, partly natural and partly made by him, for the purpose of evaporating the water by exposing it to the sun, and thus producing salt. He commenced manufacturing salt in this way in 1876 or 1877, and continued in the business until September, 1883, when he sold and transferred the lands and improvements to the defendant, The Deseret Salt Company, which at once went into possession and continued in the manufacture.

The plaintiff derives his title from the Central Pacific Railroad Company, a corporation of California, to which a grant of land was made by the act of Congress of July 1, 1862, embracing the premises in controversy. A greater part of its lands lying in Utah was leased by the company to the plaintiff, on the 7th of August, 1885, for five years, for the annual rent of five thousand dollars, and in consideration of certain covenants in relation to the property which he undertook to perform. By one of these covenants he stipulated to begin to reduce the premises to possession, and to continue in that effort until he should be in the actual possession of the whole, and for that purpose to commence and prosecute any necessary or proper actions at law, or other legal proceedings. This lease covered the premises in controversy.

On the 20th of October, 1868, the map of the definite location of the line of the railroad of the company, to be constructed under the above grant, was filed in the Interior Department and accepted, as required by the act of Congress.

Statement of the Case.

The premises in controversy constitute an alternate section of the land within ten miles of the road, and its east, west and north lines were surveyed by the United States in 1871. Its southern line, lying in the lake, had not been rua. The selection list of lands for patent by the company, filed in the land office at Salt Lake City, which was produced in evidence, included the surveyed lands of the section, and showed that the costs of selecting, surveying and conveying them had been paid. There was no evidence of any application for any other lands in the section, and no costs were paid or tendered for their selection, survey and conveyance.

The plaintiff also proved the incorporation in June, 1861, of the Central Pacific Railroad Company of California; its amalgamation and consolidation in June, 1870, with the Western Pacific Railroad Company, and, in August, 1870, with the California and Oregon Railroad Company, the San Francisco, Oakland and Alameda Railroad Company, and the San Joaquin Valley Railroad Company. In the different articles of amalgamation a conveyance was made by the parties of their several interests to the new amalgamated company, as follows: "And the said several parties, each for itself, hereby sells, assigns, transfers, grants, bargains, releases and conveys to the said new and consolidated company and corporation, its successors and assigns, forever, all its property, real, personal, and mixed, of every kind and description." These instruments were all properly recorded.

The court informed the jury of the general nature of the grant to the company by the act of Congress of July 1, 1862, and the amendatory act of July 2, 1864, and instructed them, substantially, that the line of the road, which the company was to construct under the grant, became definitely fixed upon its filing with the Department of the Interior its map of definite location, designating the general route of the road; and that thereupon the beneficial interest in the land vested in the company, by relation back to the date of the act of Congress; and that as it was agreed that the lands in controversy were a portion of an odd alternate section, within the twenty mile limit of the grant, they passed to and vested in the company,