SOUTHERN PAC. R. CO. v. BROWN et al.

SOUTHERN PAC. R. CO. v. BROWN et al. (Circuit Court of Appeals, Ninth Circuit. October 26, 1896.) No. 258. Rehearing denied. 21 C. C. A. 236, 75 Fed. 85. Appeal from the Circuit Court of the United States for the Southern District of California. This was a suit by the Southern Pacific Railroad Company against David R. Brown and others to establish a claim to certain land. The circuit court dismissed the bill (68 Fed. 383), and the complainant appealed. This court, on June 1Í), 1806, filed an opinion affirming the decree below. 21 C. C. A. 236, 75 Fed. 85. The appellant has now moved for a rehearing. Before McKRNYA and GILBERT, Circuit Judges, and HAWLEY, District Judge. [MAJORITY — HAWLEY, District Judge.] HAWLEY, District Judge. Appellant petitions this court for a. rehearing herein upon the ground “that lots 1 and 2 of the lands in suit lie west of the Reynolds survey, as is dearly and unquestionably shown by the record.” It is claimed that this fact “was inadvertently overlooked by the court in rendering its decision.” The fact that such a point was made in counsels’ brief was not overlooked by the court. No reference thereto was made in the opinion because it was not made in the court below, and there was no assignment of error which raised any question upon this particular point, and for the further and more substantial reason that the respective counsel herein stipulated “that the lands involved in said case against Brown and in the said case against Bray are in the same situation and condition as respects the claimed limits of the Jurupa Rancho and Juapti Rancho and preliminary surveys of said ranchos.” For the same reasons a rehearing should not be allowed. Moreover, the record does not indisputably show, as claimed by the appellant, that lots 1 and 2, even if not included within the Reynolds survey, were public lands, which passed by the grant to appellant The petition for rehearing is denied.