by a measure proportionate to the purpose and not leave it to be accomplished in a piece-meal and precarious way— not by confirming a few conveyances which may have been made or legalizing trespasses which may be made.

But if it could be conceded that the act of June 24 was intended as an amendment of the charters of the companies, the question would still occur as to its effect-as to what time it should be considered as applying, whether to the past or the future. That question we have decided. Judgment reversed and cause remanded with directions to sustain the demurrer to the answer.

MR. JUSTICE HUGHES dissents.

MR. JUSTICE HOLMES, MR. JUSTICE LURTON, and MR. JUSTICE PITNEY, took no part in the decision.

UNION PACIFIC RAILROAD COMPANY v. SNOW.

ERROR TO THE SUPREME COURT OF THE STATE OF

COLORADO.

No. 682. Submitted October 14, 1913.-Decided December 1, 1913.

Courts will not enforce a literal interpretation of a statute if antecedent rights are affected or human conduct given a consequence the statute did not intend.

Union Pacific Railroad Co. v. Laramie Stock Yards, ante, p. 190, followed to effect that the act of June 24, 1912, c. 181, 37 Stat. 138, permitting state statutes of limitation to apply to adverse possession of portions of the right of way granted to railroads under the act of July 1, 1862, did not have retroactive effect.

Courts are repelled from giving such a construction to a statute as will raise grave doubts of its legality as well as of its justice.

The act of June 24, 1912, did not amount to a forfeiture of that part of the right of way granted under the act of July 1, 1862, not actually occupied by the railroads; quare whether such a construction of the act of 1912 would not render it illegal.

133 Pac. Rep. 1037, reversed.

231 U. S.

Argument for Defendants in Error.

THE facts, which involve the construction and application of the Railroad Land Grant Act of July 1, 1862, and the act of June 24, 1912, and the extent of rights claimed to have been acquired under the latter act by adverse possession in a railroad right of way, are stated in the opinion.

Mr. N. H. Loomis, Mr. C. C. Dorsey and Mr. E. I. Thayer for plaintiff in error.

Mr. Milton Smith, Mr. Charles R. Brock and Mr. W. H. Ferguson for defendants in error:

Any title which plaintiff or its predecessors ever had in or to the premises in controversy emanated from the act of July 1, 1862, and was a limited or determinable fee conditioned upon the continued use of said right of way for railroad purposes. Stuart v. Un. Pac. R. R. Co., 227 U. S. 342; M., K. & T. R. Co. v. Kan. P. R. Co., 97 U. S. 491, 494; United States v. Kan. P. R. Co., 99 U. S. 455; Nor. Pac. Ry. Co. v. Smith, 171 U. S. 260; Nor. Pac. Ry. Co. v. Townsend, 190 U. S. 267, 271; Nor. Pac. Ry. Co. v. Ely, 197 U. S. 1; Oregon Short Line v. Quigley, 10 Idaho, 770; Universalist Society v. Boland, 155 Massachusetts, 171; Greenleaf's Cruise on Real Property, Tit. 13, c. 2, § 64; 2 Blackstone, 155; 4 Kent's Comm. (13th ed.), 134; D. & S. F. Ry. Co. v. School District, 14 Colorado, 327.

Under the allegations contained in the second defense of the answers, the title or ownership of the land in controversy was claimed by or through adverse possession of the character and duration prescribed by the laws of Colorado, and the Supreme Court of Colorado in these cases held that the allegations of said second defense were sufficient under the state statutes to establish title by adverse possession. Snow v. Un. Pacific R. R. Co., 133 Pac. Rep. 1037; Sides v. Un. Pacific R. R. Co., 133 Pac. Rep. 1040; Laas v. Newkirk, 39 Colorado, 78; Hurd v. McLellan, 1 Colo. App. 327; Latta v. Clifford, 47 Fed. Rep.

Argument for Defendants in Error.

231 U. S.

614, 619; Elder v. McClaskey, 70 Fed. Rep. 529; Scott v. Mineral Development Co., 130 Fed. Rep. 497; S. C., certiorari denied, 196 U. S. 640; Harending v. Reformed Dutch Church, 16 Pet. 455; Santee River Cyprus Co. v. Jones, 60 Fed. Rep. 360; United States v. One Lot of Land, 178 Fed. Rep. 334; Green v. Neal, 6 Pet. 291.

The title acquired by defendants under the adversepossession statutes of Colorado was precisely equivalent in contemplation of law to such title as they would have acquired had the railroad company expressly granted to them all its right, title, and interest in the premises. Nor. Pac. Ry. Co. v. Ely, 197 U. S. 1; Sharon v. Tucker, 144 U. S. 533, 543; Toltec Ranch Co. v. Cook, 191 U. S. 532, 538; 3 Washburn on Real Property (5th ed.), 176.

The implication of a grant from the railroad company arising out of the adverse possession of the defendants is conclusive evidence of a voluntary abandonment of the premises by the railroad company. Stevens v. Norfolk, 42 Connecticut, 377; Livermore v. White, 74 Maine, 452; Myers v. Spooner, 55 California, 257; Davis v. Perley, 30 California, 630; North American Co. v. Adams, 104 Fed. Rep. 404.

The act of June 24, 1912, was equivalent to a reëntry or declaration of forfeiture or reverter upon the part of the United States of the land in controversy, because of its abandonment and non-user as a railroad right of way, and had the effect of confirming in the defendants the title acquired by them by adverse possession and under the patent issued by the United States to their predecessor in title on November 5, 1878. Nor. Pacific Ry. Co. v. Ely, 197 U. S. 1; Atl. & Pac. R. R. Co. v. Mingus, 165 U. S. 413, 430; Schulenberg v. Harriman, 21 Wall. 44; Spokane & B. C. Ry. Co. v. Washington &c. Ry. Co., 219 U. S. 166.

A legislative act passed subsequent to the entry of a judgment in a lower court, and while a case is pending in an appellate court on appeal or writ of error, may be con

sidered and applied by the appellate court. Pennsylvania v. Wheeling Bridge Co., 18 How. 421, 430; Nor. Pac. Ry. v. Ely, 197 U. S. 1; United States v. Schooner Peggy, 1 Cr. 103, 110; Am. Sugar Co. v. New Orleans, 119 Fed. Rep. 691; Canal Co. v. Western Md. R. R. Co., 99 Maryland, 570.

MR. JUSTICE MCKENNA delivered the opinion of the court.

This case was submitted at the same time as No. 570, just decided. It is ejectment for lands, part of the right of way granted to the Leavenworth, Pawnee & Western Railroad Company by the act of July 1, 1862, c. 120, 12 Stat. 489, to which right of way plaintiff in error (designated herein as plaintiff) is the successor. The action was brought in the District Court of Arapahoe County, State of Colorado.

The sufficiency of the complaint is not questioned, and it is enough to say that it is, in legal effect, the same as in case No. 570, with only such differences as are necessary.

The answer of defendants in error (called herein defendants) set up three defenses and a counter claim. The first answer admits the incorporation of plaintiff and denies all other allegations of the complaint. The second defense alleges that under certain acts of Congress, subsequent to the act of 1862 and prior to the incorporation of the companies, the right of way of the companies was made 200 feet wide instead of 400 feet, that is, 100 feet from the center line of the railroad track. That the land sued for, which is in possession of the defendants, is more than 100 feet from such center line; that neither plaintiff nor any of its predecessors have been in possession of any portion thereof and have not used the same, nor has it needed to use the same for railroad purposes. That defendants, and those under and through whom they claim title, acquired the title under and by virtue of a patent from the

United States issued November 5, 1878, and various mesne conveyances and have been in the adverse possession of all of the property described continuously since the patent was issued, which is more than the full period of seven years next before the institution of the action; have paid and caused to be paid taxes thereon, and that defendants now plead and rely upon the statute of limitations of the State of Colorado.

The third defense alleges that the right received by the corporation which was created by the act of Congress of 1862 or by its successors or assigns was at most, the grant of a limited fee and made on the condition that the prop erty should revert to the United States if it should not be appropriated and used for a railroad within a reasonable time or should cease to be used for railroad purposes. That thereafter, before the land was used for such purposes, the right of reverter which was retained by the United States, was conveyed by the United States to defendants and their grantors by a patent which was issued by the United States to the vendor of defendants in 1878. That neither plaintiff nor any of its predecessors used or occupied the land for railroad purposes or for any purposes whatever and on account thereof lost any and all right thereto and the property reverted to the United States and to defendants; that neither plaintiff nor any of its predecessors ever needed the property or any part thereof for railroad purposes and can never use the same for such purposes. That on account of failure to use or occupy the land for a period which now approximates fifty years next ensuing after the approval of the act of 1862, the limited fee which may have been granted to plaintiff ceased and determined and the property reverted to the United States and its grantees.

The counter claim repeats some of the allegations in regard to the width of the right of way and defendants' adverse possession of the land outside of the 100 feet on