The swamp land grant of September 28, 1850, to the several
states was
in praesenti, and upon identification of the
lands thereunder in lawful mode, title thereto related back to the
date of the grant.
The identification originally prescribed by the action of the
Secretary of the Interior was changed as to such lands in
California by the Act of July 23, 1866, 14 Stat. 219, section four
thereof prescribing new and additional modes of identification.
That act provided, among other things, that (1) all lands
represented as swamp and overflowed on township plats, the surveys
and plats of which townships had been made under the authority of
the United States and approved, were to be certified to the state
by the Commissioner of the General Land Office within prescribed
periods, and (2) existing state segregation maps and surveys of
such lands found by the United States Surveyor General to conform
to the existing system of the United States were directed to be
made the basis of township plats, to be thereafter constructed and
approved by that officer, and forwarded to the Commissioner of the
General Land Office for approval.
In 1864, United States subdivisional survey of the township
embracing the land in controversy in this suit was made and
approved by the United States Surveyor General, and a copy of the
plat thereof, also approved by him, was filed in the proper local
land office. On such approved plat certain parts were colored
green, and marked "swamp and overflowed land," and excluded from
the estimated aggregate area of public lands shown thereon, and
were included in the estimated area of swamp and overflowed land in
that township. In August and September, 1864, under authority of
state law, one Kile applied to purchase the land in controversy
from the state under the swamp land grant, secured the requisite
survey and the approval thereof by the state Surveyor General, and
in August, 1865, having made full payment to the state received the
state's patent therefor.
Held that the title of the state
was confirmed by the act of 1866, by the return of the land as
swamp and overflowed on the survey of the United States and the
township plat, approved by the United States Surveyor General and
filed in the local land office in 1864.
Prior to executive instructions of April 17, 1879, the
Commissioner's approval of the public surveys and plats was not
required before filing thereof in the local offices of sale by the
United States Surveyor General, and on such filing the land became
subject to sale, selection and disposal. Power to correct fraud or
error therein existed in the Commissioner, but where the survey and
plat were correct, they became final and effective when approved
and filed in the local land office by the Surveyor General.
Page 138 U. S. 135
Temporary withdrawal of the township plat prior to the passage
of the act of 1866 did not defeat confirmation prescribed by that
act in the present case, a certified copy of such plat having been
substituted in its place and the survey thereof never having been
disapproved nor changed otherwise than by the erasure of the words
"swamp and overflowed" as to this and other tracts and the
substitution on the plat of the words "public lands," under
direction of the Commissioner of the General Land Office given
after his control over the matter had ceased. Official acceptance
of the survey by the Commissioner may be inferred from its adoption
in making sales and issuing patents, if such approval be in fact
necessary.
The homestead entry of plaintiff in error made subsequent to the
making of the survey and filing of such township plat thereof in
the local office, and subsequent to the state segregation survey,
sale and patent of the land to Kile, and subsequent to the
confirmatory act of 1866, was ineffectual against the right
acquired by the state and its patentee.
Alleged inadvertence of the state court in entering judgment
below for defendant for rents and profits cannot be reviewed here.
Any inadvertence of the kind is only matter for consideration by
the court below.
This was an action for the possession of land. The federal
questions are stated in the opinion.
MR. JUSTICE FIELD delivered the opinion of the Court.
This is an action for the possession of a parcel of land of
about eighty acres in the County of San Joaquin, California, being
substantially the south half of the southeast quarter of section
11, in township 4 of that county.
The plaintiff in the court below, and in error here, asserted
title to the premised under a patent of the United States issued to
him in due form on the 1st of October, 1879, upon a homestead entry
made by him in May, 1873, and commuted to a cash entry in November
following.
The original defendant below, Joseph Kile, now deceased, and in
whose place his executors, Wilhoit and Thompson, have been
substituted, claimed the premises under a patent of California,
Page 138 U. S. 136
bearing date the 5th of August, 1865, conveying to him the
premises as swamp and overflowed lands, and as part of the land
granted to the state by the act of Congress of September 28, 1850,
9 Stat. 519.
The action was brought in the Superior Court of the County of
San Joaquin, where the issue was tried without the intervention of
a jury, by stipulation of the parties. Special findings of fact
were filed, upon which judgment for the plaintiff was rendered. On
appeal to the supreme court of the state, the judgment was
reversed, and judgment ordered in favor of the defendants for the
lands, and for the rents and profits thereof. To review this
judgment the case is brought here on a writ of error. The question
presented is the validity of this title under the patent of
California. If the claim thereto were abandoned or overthrown, the
right of the plaintiff to recover under the patent of the United
States would be conceded.
To determine this question, a consideration must be had of the
various proceedings taken to obtain the patent of the state, and
the law bearing upon them. The act of Congress of September 28,
1850, granted to the several states of the union all the swamp and
overflowed lands within their limits which on the passage of the
act remained unsold, to enable them to construct the necessary
levees and drains for the reclamation of such lands, and made it
the duty of the Secretary of the Interior, as soon as practicable,
to make out an accurate list and plats of the lands described and
transmit the same to the governors of the states, and upon their
request to cause patents to be issued to the states therefor.
Soon after the passage of the act, the question arose in each
state as to the time the grant took effect -- whether at the date
of the act or on the issue of the patent to the state upon the
request of its governor after the list and plats of the lands had
been made out by the Secretary of the Interior, and transmitted to
him. After much consideration by the officers of the department of
the government under whose supervision the act was to be carried
out, and by the courts of the several states in which such lands
existed, it was held that the words
Page 138 U. S. 137
"are hereby granted" in the act imported a present grant, and
not a promise of one in the future, and that the title to the lands
therefore passed to the state at once, their identification to be
made by the action of the Secretary of the Interior, but, when
identified the title to relate back to the date of the act.
In the recent case of
Wright v. Roseberry, 121 U.
S. 488, the rulings of the officers of the Land
Department, and of the courts of the states in which swamp and
overflowed lands existed, by which the conclusion mentioned was
reached, are stated with much fullness, and it is unnecessary to
repeat what is there said. It is sufficient to observe that the
construction thus given to the act is now the accepted law of the
country.
But the enjoyment of the grant was greatly impeded by the delay
of the Interior Department to make out and certify the lists
required. This delay arose from many causes, some of which the
secretary could not control, such as the insufficiency of the force
under his command to make the required surveys and the necessary
identification of the lands. The decision of this Court in
Railroad Co. v.
Smith, 9 Wall. 95, tended in some degree to lessen
the evil effects of the delay, in holding that when that officer
had neglected or failed to make the identification it was competent
for the grantees of the state, in order to prevent their rights
from being defeated, to identify the lands in any other appropriate
mode which would effect that object. And in
Wright v.
Roseberry, it was suggested that such mode of identification
by the state was also permissible where the secretary declared his
inability to certify the lands from any other cause than a
consideration of their character -- a suggestion followed in the
decision of that case.
In consequence of the delays in certifying the lists and the
inconveniences which followed, the legislatures of several states
in which such lands existed undertook to identify the lands and
dispose of them, and for that purpose passed various acts for their
survey and sale and the issue of patents to purchasers. The
conflicts which thus arose between parties
Page 138 U. S. 138
claiming under the state and parties claiming directly from the
United States led to various acts of Congress for the relief of
purchasers and locators of swamp and overflowed lands. Act of March
2, 1855, 10 Stat. 634, c. 147; Act of March 3, 1857, 11 Stat. 251,
c. 117.
The inconvenience and conflicts mentioned were especially
annoying and injurious to the State of California, for the great
emigration to that state in 1850 and the years immediately
following created a call for lands of this description not only
because they were easily reclaimed, but because of their
extraordinary fertility after reclamation. Accordingly, as early as
1855, its legislature, asserting her ownership of such lands,
provided for their survey and sale, and for the issue of patents.
Legislation was also had on that subject in 1857, 1858, and 1859.
As great confusion had from the causes mentioned arisen in the
title to such lands, and also to other lands in California claimed
under grants of the United States, Congress, on July 23, 1866,
passed an act, entitled "An act to quiet land titles in
California," by which, among other things, the provisions of the
original act of 1850 for the identification of swamp and overflowed
lands in that state were changed. Their identification was no
longer left to the Secretary of the Interior, but was made subject
to the joint action of the state and the federal authorities. The
fourth section, which related to those lands, provided as
follows:
"That in all cases where township surveys have been or shall
hereafter be made under authority of the United States and the
plats thereof approved, it shall be the duty of the Commissioner of
the General Land Office to certify over to the State of California,
as swamp and overflowed, all the lands represented as such, upon
such approved plats, within one year from the passage of this act,
or within one year from the return and approval of such township
plats. The Commissioner shall direct the United States Surveyor
General for the State of California to examine the segregation maps
and surveys of the swamp and overflowed lands made by said state,
and where he shall find them to conform to the system of
surveys
Page 138 U. S. 139
adopted by the United States, he shall construct and approve
township plats accordingly, and forward to the General Land Office
for approval,
provided that in segregating large bodies of
land notoriously and obviously swamp and overflowed, it shall not
be necessary to subdivide the same, but to run the exterior lines
of such body of land. In case such state surveys are found not to
be in accordance with the system of United States surveys, and, in
such other townships as no survey has been made by the United
States, the Commissioner shall direct the survey or general to make
segregation surveys, upon application to said Surveyor General by
the governor of said state, within one year of such application, of
all the swamp and overflowed land in such townships, and to report
the same to the General Land Office, representing and describing
what land was swamp and overflowed under the grant, according to
the best evidence he can obtain. If the authorities of said state
shall claim as swamp and overflowed any land not represented as
such upon the map or in the returns of the surveyors, the character
of such land at the date of the grant, September twenty-eight,
eighteen hundred and fifty, and the right to the same, shall be
determined by testimony, to be taken before the Surveyor General,
who shall decide the same, subject to the approval of the
Commissioner of the General Land Office."
14 Stat. 219, c. 219, sec. 4.
By this section, rules or methods were established for the
identification of swamp and overflowed lands in California which
superseded all previous rules or methods for that purpose. It first
enacted that in all cases where township surveys had been or should
thereafter be made under the authority of the United States, and
the plats thereof be approved, it should be the duty of the
Commissioner of the General Land Office to certify over to the
state, as swamp and overflowed, all the lands represented as such
upon the approved plats within one year from the passage of the act
or within one year from the return and approval of such township
plats.
The section then provided for the construction of township plats
where none previously existed. It required the
Page 138 U. S. 140
Commissioner of the General Land Office of direct the United
States Surveyor General for California to examine the segregation
maps and surveys of the swamp and overflowed lands made by the
state, and directed that when he should find them to be in
conformity with the system of surveys adopted by the United States,
he should construct and approve township plats accordingly and
forward them to the General Land Office for approval. But in case
such surveys should be found not in accordance with the system of
United States surveys, and in other townships where no survey had
been made by the United States, the Commissioner was required to
direct the Surveyor General to make segregation surveys, upon
application of the governor of the state, within one year, of all
the swamp and overflowed lands in the township, and report the same
to the General Land Office, representing and describing what land
was swamp and overflowed according to the best evidence he could
obtain. The section further provided that if the state should claim
as swamp and overflowed any land not so represented upon such map
or in the returns of the surveyors, then the character of such land
at the date of the grant, and the right of the state thereto, were
to be determined by testimony to be taken before the Surveyor
General, subject to the approval of the Commissioner of the General
Land Office.
With this brief review of the Act of September 28, 1850, and of
the fourth section of the Act of July 23, 1866, we proceed to state
what was done by the original defendant, Joseph Kile, to secure the
title of the state. In April, 1864, the United States subdivisional
survey of township 4 north of range 5 east of Mt. Diablo meridian,
in the County of San Joaquin, was made, and the field and
descriptive notes, together with the map or plat of the survey,
were examined and approved, and the approval certified by the
United States Surveyor General for California. On the first of July
following (1864), a copy of this examined and approved map or plat
was filed in the United States district land office at Stockton,
California, which district included the lands of that township, and
a copy was returned to the General Land Office of the United States
at Washington. The certificate of approval by the United States
Page 138 U. S. 141
surveyor of the plat of the survey, written upon its margin, was
as follows:
"The above map of township No. 4 north, range No. 5 east, Mount
Diablo meridian, is strictly conformable to the field notes of the
survey thereof on file in this office, which have been examined and
approved. Surveyor General's Office, San Francisco, California,
June 30, 1864."
"L. UPSON,
Sur.Gen. Cal."
Upon this approved map or plat the greater part of the lands of
the township, including all of section 11, was colored green, and,
upon the face of the part thus colored, the words "swamp and
overflowed land" were written. The lands thus colored and marked
were excluded from the estimated aggregate area of public lands and
included in the estimated aggregate area of swamp and overflowed
land.
In August, 1864, Kile made application in accordance with the
provisions of the acts of the Legislature of California to purchase
from the state the southeast quarter of section 11, as being part
of the swamp and overflowed lands granted by the act of Congress,
and on the 18th of that month, the county surveyor of the County of
San Joaquin made a survey, and recorded in his office a plat and
field notes thereof, and certified and reported the same to the
state surveyor general, in whose office they were filed and
recorded on the 30th of September following. On that day, and after
the state surveyor general had approved the survey, plat and field
notes, the State of California issued and delivered to Kile a
certificate of purchase of the southeast quarter of section 11,
founded upon his application and the approved survey. The
certificate set forth that Kile had made part payment of the
purchase price, and was the purchaser of the land, and that, on
making full payment and surrendering the certificate, he should
receive a patent from the state.
On the 5th of August, 1865, Kile, having paid the residue of the
purchase money and surrendered the certificate, received from the
state a patent for the land. The patent recites that
Page 138 U. S. 142
all the requirements of the act of Congress, as well as of the
acts of the legislature of the state in relation to swamp and
overflowed lands, had been complied with, and that the governor, by
virtue of the authority vested in him, thereby bargained, sold, and
conveyed to Kile the lands with the appurtenances.
These proceedings having been taken, and the patent issued, the
first clause of section four of the Act of Congress of July 23,
1866, operated to confirm the title of the patentee. That clause,
as already stated, provided that in all cases where township
surveys had been made or should afterwards be made under the
authority of the United States, and the plats thereof approved, it
should be the duty of the Commissioner of the General Land Office
to certify over to the state, as swamp and overflowed, all the
lands represented as such upon the approved plats, within one year
from the passage of the act, or within one year from the return and
approval of such township plats. The only objection urged against
the operation of this provision is that the township plat was not
in terms approved by the Commissioner of the General Land Office.
The clause mentioned requires no such approval of township plats
which had then been made and approved by the Surveyor General of
the United States for California. The township surveys were made
under the authority of the United States, and the plat thereof was
approved by that authority when they were made and approved by that
officer. Only such township plats were to be submitted to the
approval of the Commissioner as should be subsequently made by that
officer from the segregation maps and surveys of swamp and
overflowed lands of the state after he had found the surveys to be
in conformity with the system of surveys adopted by the United
States, and such township plats as should be made by him when the
segregation maps and surveys of the state were not in accordance
with the United States system of surveys, or were of townships
where no surveys at all had been made. Until April 17, 1879, it had
not been the practice of the Land Department to require any
specific approval by the Commissioner, either of surveys of the
public lands or of plats of townships in accordance therewith, made
by the surveyor general of the
Page 138 U. S. 143
state, before they were deemed so far final as to sanction sales
or selections of the lands surveyed and platted. It is true that
wherever fraud or error existed in the action of the United States
surveyor general for the state, the power of correction was vested
in the Commissioner, but where the survey was itself correct and
the township plat conformed thereto, they become final and
effective when filed in the local land office by that officer.
In speaking of the laws and of the practice of the department on
this subject, the late Secretary of the Interior, Mr. Schurz, in a
communication to the Commissioner of the General Land Office under
date of August 7, 1877, said:
"By the Act of Congress approved May 18, 1796, 1 Stat. 464,
'providing for the sale of the lands of the United States in the
territory northwest of the River Ohio and above the mouth of the
Kentucky River,' the Surveyor General was authorized to prepare
plats of the townships surveyed, to keep one copy of the same in
his office for public information, and to send other copies to the
'places of sale,' and to the Secretary of the Treasury. The present
local land offices are equivalent to the 'places of sale' mentioned
in the act of 1796, and, as a matter of practice from that date to
the present time the township plats prepared by the Surveyor
General have been filed by him with the local officers, who
thereupon proceeded to dispose of the public lands according to the
laws of the United States. There is nothing in the act of 1796 or
in the subsequent acts which requires the approval of the
Commissioner of the General Land Office before said survey becomes
final and the plats authoritative. Such a theory is not only
contrary to the letter and spirit of the various acts providing for
the survey of the public lands, but is contrary to the uniform
practice of this department. There can be no doubt but that under
the Act of July 4, 1836, reorganizing the General Land Office, the
Commissioner has general supervision over all surveys, and that
authority is exercised whenever error or fraud is alleged on the
part of the Surveyor General. But when the survey is correct, it
becomes final and effective when the plat is filed in the local
office by that officer. "
Page 138 U. S. 144
This view of the Secretary was referred to and held to be
correct in
Frasher v. O'Connor, 115 U.
S. 102,
115 U. S. 114.
This practice was changed by the Land Department in April, 1879,
and communicated in its instructions to surveyor generals on the
17th of that month. It was not until after such instructions that
the duplicate plats filed in the local land offices were required
to be previously approved by the Commissioner of the General Land
Office.
There is no finding, nor even any allegation, that the survey
and plat of township 4, in the County of San Joaquin, were not
correct or that they were disapproved by the Land Department. The
only change made upon that plat consisted in an erasure of the
designation that some of the lands were swamp and overflowed and
the substitution of a designation of them as public lands, the
department having come to a different conclusion from that returned
by the Surveyor General years before, such conclusion being reached
upon an inquiry made long after the department had ceased to have
any control over the matter. The notes of the survey and the plat
of the township remained precisely as they were when filed in the
local land office on the 1st of July, 1864. But if an approval of
the township plat by the Commissioner of the General Land Office
was necessary, it is to be found in the recognition of its
correctness by the subsequent action of the Commissioner. In
Wright v. Roseberry, there was no approval of the township
plat in terms, but it was held to be an approved plat by the fact
that it was officially used as such. 121 U.S.
121 U. S.
516-517.
In this case, the original and official township plat was
prepared by the Surveyor General in triplicate, one of which was
returned to the General Land Office of the United States, where it
always remained, and one was filed in the local land office at
Stockton. It is true that the latter one was afterwards, in 1865,
withdrawn by the Surveyor General from the local land office by
order of the Commissioner, and was not returned and filed in that
office; but a copy of the plat which had been returned to the
General Land Office, certified by the Commissioner, and also by the
Surveyor General of California, as a
Page 138 U. S. 145
correct copy of the plat on file in that office, was
subsequently filed in the local land office at Stockton. It does
not appear in terms by whose order this subsequent filing was had,
but it must be presumed to have been by direction of the
Commissioner of the General Land Office. It is not to be presumed
that the parties in charge of the local land office would have
allowed a copy of the township plat, which had been taken from its
files by order of the Commissioner, to be refiled without the
authority of that officer. Besides, to that plat, thus returned,
the Commissioner referred, when he directed the register of the
land office at Stockton to make a change of the words "swamp or
overflowed lands," written upon it, to the words "public lands."
And subsequently, when a patent of the United States for the land
was issued to the plaintiff Tubbs, the land was described as
embracing eighty acres, "according to the official plat of the
survey of the same lands returned to the General Land Office by the
Surveyor General." The one thus returned was a duplicate of the one
originally filed in the local land office.
It is therefore conclusively established that such township plat
was recognized by the Land Department at Washington as a correct
plat, and used as such, which was the only approval of a similar
plat in
Wright v. Roseberry. This conclusion is
strengthened by the fact that when subsequently the state
authorities applied to the Commissioner of the General Land Office
to certify over to the state the lands represented upon the plat as
swamp and overflowed, the application was refused not on the ground
of any supposed error in such plat, but solely for the reason that
the Land Department had already divested itself of authority by the
issue of a patent to the plaintiff. If there had been any error in
the plat which would have justified the action of the department,
it would undoubtedly have been stated. When the plaintiff was
allowed to make a homestead entry, all control over the land had
passed from the Land Department, and the title by virtue of
proceedings under the state law had been confirmed by the act of
Congress of July 23, 1866, and become vested in the defendant. That
entry was not made until the 8th of May,
Page 138 U. S. 146
1873, several years after the official map of the township had
been filed in the local land office at Stockton and in the General
Land Office at Washington, and the issue of a patent by the State
of California to the defendant Kile, and the passage of the act of
Congress. Whether the township plat be considered as approved by
the action of the Surveyor General or by the subsequent recognition
of its correctness by the Commissioner of the General Land Office,
when approved, the duty of the Commissioner to certify over to the
state the lands represented thereon as swamp and overflowed was
purely ministerial. He could not defeat the title of the state by
withholding such certificate, nor could he add to the title by
giving it. Its only effect would have been to facilitate the proof
of the vesting of the title in the state by its additional
recognition of the land as that covered by the congressional grant
of 1850. It would not have added to the completeness of the title.
A strange thing it would be if the refusal of an officer of the
government to discharge a ministerial duty could defeat a title
granted by an act of Congress and enable him to transfer it to
parties not within the contemplation of the government. The
judgment of the court below must therefore be affirmed.
As to the alleged inadvertence of the entry of judgment in favor
of the defendant for rents and profits, we have only to say that if
there be any such inadvertence, it is not a matter for revision by
this Court, but only for consideration by the court below.
Judgment affirmed.