for that company to make a selection before it made the concession to the Southern Pacific Company. The company was not bound to wait indefinitely for the years to elapse before moving in the enterprise it was to undertake, and to further which Congress had afforded assistance. The condition attached to the concession was not an exception from the grant of any lands that the Atlantic and Pacific Railroad Company might claim under its grant without performing its conditions. It merely rendered the concession to the Southern Pacific Company subordinate and subject to any rights that the Atlantic and Pacific Company may then have acquired or might thereafter acquire under its grant, upon the performance of its conditions. What, then, were those rights, present or prospective, which werereserved to the Atlantic and Pacific Company? Plainly they were the right to construct a railroad and telegraph to the Pacific Coast, from the Colorado River, by the most practicable route, with a right of way two hundred feet in width, and to use certain lands granted for that purpose to aid in their construction, and, when constructed, the right to operate the road and use the telegraph line. They were permissive rights, and not compulsory. Have they been affected or impaired by the concession to the Southern Pacific Company? In no respect whatever. They were affected and impaired by the company's failure to perform the conditions annexed to its grant, and in no other way, until its forfeiture was declared. It never did anything towards a compliance