In ejectment, plaintiff claimed title to certain parcels of land
by purchase from the State of California under its selection of
lands as part of the Agricultural College grant from Congress of
July 2, 1862, 12 Stat. 503, c. 130, certification thereof by the
United States Land Department thereunder, and subsequent patent
from the state to him. Defendant claimed legal title by a prior
purchase from the state under prior state selections, [1] by
purchase and location of state land warrants issued by the state
under the grant of 500,000 acres made to it by section eight of Act
of September 4, 1841, 5 Stat. 453, c. 16, and [2] by purchase of
indemnity land, selected in lieu of school sections sixteen and
thirty-six, granted by the act of Congress of March 3, 1853, 10
Stat. 244, c. 145, and lost by inclusion within Mexican grants
subsequently confirmed, further claiming that both selections were
confirmed by the first section of the Act of Congress of July 23,
1866, 14 Stat. 218, c. 219, passed before the selection,
certification and patenting under which plaintiff claims.
Held:
(1) That the first section of the Act of July 23, 1866, must be
construed in connection with section two of that act, and, as thus
construed, it did not confirm the selections under the 500,000 acre
grant, those selections not having been made of lands previously
surveyed by authority of the United States, but said section, thus
construed, did confirm the lands selected in lieu of the school
sections taken by the Mexican grants, such selected lands having
been previously surveyed by authority of the United states and
notice of such selection having been given to the register of the
local land office, and the lands having been sold to a
bona
fide purchaser in good faith under the laws of the state.
(2) That confirmation to the state of its title enured to the
benefit of its grantee without any further action by the Land
Department or by the state.
A legislative confirmation of a claim to land with defined
boundaries, or capable of identification, perfects the title of the
claimant to the tract, and a subsequent patent is only documentary
evidence of that title.
No title to lands under the Agricultural College grant of 1862,
under which plaintiff claims, vested in the state until their
selection and listing to the state, which was subsequent to the
time at which the title of the United States passed to the
defendant.
No trust was created by such grant which prevented land subject
to selection thereunder from being taken under prior selections in
satisfaction
Page 142 U. S. 588
of other grants. No trust could arise against the state
thereunder until its receipt of all or a portion of the proceeds
arising from the sale of the property, and no disposition of such
proceeds could affect the title acquired by other parties from the
sale of such lands thereunder.
Defendant having, after his general denial of the allegations of
the complaint, for a further separate answer and defense, set up
his claim of title to demanded premises by cross-complaint and
prayed affirmative relief thereon by cancellation of the state's
patent to the plaintiff, or by charging him as trustee of the title
and compelling him to convey the premises to the defendant, such a
mode of setting up an equitable defense to an action for the
possession of land being allowable under the system of civil
procedure prevailing in California, the judgment of the Supreme
Court of that state, declaring such trust and directing such
conveyance, is affirmed.
The Court stated the case as follows:
This is an action for the possession of certain parcels of land
in the County of Santa Clara, California, embracing 106 acres and a
fraction of an acre, and constituting, according to the United
States survey, lots 1 and 2 of section 26, township 6 south, range
1 west, Mt. Diablo meridian. It was brought in the superior court
of that county. The plaintiff, in his complaint, alleges ownership
of the lands, and right of possession, on the 16th of June, 1882,
and ever afterwards; the wrongful and unlawful entry thereon, on
that day, by the defendant, and his exclusion of the plaintiff
therefrom, to the latter's damage of $5,000, and that the value of
their use and occupation is $2,000 a year. He therefore prays
judgment for their possession, for the damages sustained, and for
the value of their use and occupation until final judgment.
The defendant, in his answer, denies the material allegations of
the complaint, and then, as a separate defense, by way of a
cross-complaint, sets up various matters upon which he claims to
have acquired the equitable title of the premises, and prays that a
patent of the state for them to the plaintiff, and upon which he
relies for a recovery in this case, may be adjudged null and void,
or that he hold the legal title under it in trust for the
defendant, and be decreed to convey the premises to him.
The plaintiff answered the cross-complaint, and the case was
tried by the court without the intervention of a jury. After
finding the facts, it held as a conclusion of law that the
defendant was entitled to a judgment, that the plaintiff take
nothing by his action, that the defendant was entitled at the
commencement of the action, and was still entitled, to the
possession of the premises, and was their equitable owner, and that
the plaintiff holds the legal title, under a patent by the State of
California, bearing date June 18, 1882, in trust for the defendant,
and should execute and deliver a conveyance of the premises to him.
Judgment in conformity with this conclusion was accordingly
entered. On appeal to the supreme court of the state, it was
affirmed, and the case is brought to this Court on writ of error by
the plaintiff.
Page 142 U. S. 589
MR. JUSTICE FIELD, after stating the facts in the foregoing
language, delivered the opinion of the Court.
Under the system of procedure in civil cases which obtains in
California, an equitable defense as well as a legal defense may be
set up to an action for the possession of land. It is required in
such case that the grounds of equitable defense be stated
separately from the defense at law. The answer, to that extent, is
in the nature of a cross-complaint, and must contain substantially
the allegations of a bill in equity. It must set forth a case which
would justify a decree adjudging that the title held by the
plaintiff should be conveyed to the defendant, or that his action
for the possession of the premises should be enjoined. Wherever the
two defenses are presented in this way, the equitable one should,
as a general rule, be disposed of before the legal remedy is
considered. Its disposition may, and generally will, render
unnecessary any further proceeding with the action at law.
Gibson v.
Chouteau, 13 Wall. 92,
80 U. S. 103;
Quinby v. Conlan, 104 U. S. 420;
Estrada v. Murphy, 19 Cal. 248, 273.
Page 142 U. S. 590
The controversy in this case involves a consideration of
different acts of Congress granting lands to the State of
California. The question to be determined is to which of the
parties the title of the United States passed. The plaintiff claims
title under a grant made by the Act of Congress of July 2, 1862, 12
Stat. 503, "donating public lands to the several states and
territories which may provide colleges for the benefit of
agriculture and the mechanic arts," and amendatory and
supplementary acts, contending that the premises in controversy
were selected as part of such lands apportioned to the State of
California, and patented by the state to him.
The defendant claims title to the premises from two sources, one
from the eighth section of the Act of Congress of September 4,
1841, 5 Stat. 453, c. 16, granting five hundred thousand acres of
lands for purposes of internal improvement to each new state upon
her admission into the union, alleging that the parcels in
controversy are a part of such lands, the other, from the sixth and
seventh sections of the Act of Congress of March 3, 1853, granting
to the State of California sections sixteen (16) and thirty-six
(36) of each township for the purposes of schools, and providing
for the selection in certain cases of other lands in their stead,
the parcels in controversy having been selected in part
satisfaction of such school sections. 10 Stat. 244, c. 145.
It will facilitate the apprehension of the questions presented
for determination if the claims of the defendant be first
considered, and therefore to them we now direct our attention.
The Act of Congress of September 4, 1841, to appropriate the
proceeds of the sales of the public lands, and to grant preemption
rights, designates in its first section several states to which ten
percent of the net proceeds of the sales of the public lands made
after a certain date within their limits shall be paid. Its eighth
section is as follows:
"And be it further enacted that there shall be granted to each
state specified in the first section of this act five hundred
thousand acres of land for purposes of internal improvement,
provided that to each of said states which has already
received grants for said purposes there is hereby granted no more
than a quantity of land
Page 142 U. S. 591
which shall, together with the amount such state has already
received as aforesaid, make five hundred thousand acres, the
selections in all of the said states to be made within their
limits, respectively, in such manner as the legislature thereof
shall direct, and located in parcels conformably to sectional
divisions and subdivisions, of not less than three hundred and
twenty acres in anyone location, on any public land except such as
is or may be reserved from sale by any law of Congress or
proclamation of the President of the United States, which said
locations may be made at any time after the lands of the United
States in said states, respectively, shall have been surveyed
according to existing laws. And there shall be, and hereby is,
granted to each new state that shall be hereafter admitted into the
union, upon such admission, so much land as, including such
quantity as may have been granted to such state before its
admission, and while under a territorial government, for purpose of
internal improvement, as aforesaid, as shall make five hundred
thousand acres of land, to be selected and located as
aforesaid."
The first clause of this section, it will be observed, uses the
words "there shall be granted," and not that "there is hereby
granted," and they import, as held in
Foley v.
Harrison, 15 How. 433,
56 U. S. 447,
only that a grant shall be made in future. It was accordingly
adjudged in that case that a patent of Louisiana for lands selected
by her officers from the grant to the state under the act of 1841
did not pass the title to the patentee, the Court observing:
"It could not have been the intention of the government to
relinquish the exercise of power over the public lands that might
be located by the state. The same system was to be observed in the
entry of the lands by the state as by individuals, except the
payment of the money, and this was necessary to give effect to the
act and to prevent conflicting entries."
The authorities of California gave a different construction to
the latter clause of the eighth section of the act of 1841. The
words there used are, "there shall be, and hereby is, granted to
each new state," which they treated as a present grant of the
quantity designated, and not as the promise of
Page 142 U. S. 592
one in the future, construing the concluding words "to be
selected and located as aforesaid" as referring merely to the form
of selection and the quantity of the several parcels, and not as
limiting the location to lands previously surveyed. And they did
not see any policy or interest of the general government to be
subserved by postponing the possession and enjoyment of its bounty,
so long as conformity was ultimately secured in the locations made
with the public surveys. In
Doll v. Meador, the supreme
court of the state said:
"Conformity in the locations with the sectional divisions and
subdivisions is required to preserve intact the general system of
surveys adopted by the federal government and to prevent the
inconvenience which would ensue from any departure therefrom. When,
therefore, any location is made by the state previous to the survey
of the United States, it must be subject to change, if
subsequently, upon the survey's being made, it be found to want
conformity with the lines of such survey. With this qualification
and the further qualification of a possible reservation by a law of
Congress or a proclamation of the President previous to the survey
-- which may require further change, or the entire removal of the
location -- we do not perceive either in the language of the act or
the object to be secured any limitation upon the right of the state
to proceed at once to take possession and dispose of the quantity
to which she is entitled by the grant. It would hardly be pretended
that she would be deprived of the bounty of the general government
if no surveys were ever directed by its authority, or that the
enjoyment of the estate vested in her would be suspended
indefinitely by reason of its inaction in the matter."
16 Cal. 295, 315, 327.
The state legislated upon a similar construction of the latter
clause of the act of Congress. Surveys of the public lands in
California were not directed by any law of Congress until the year
1853, and were not made to any large extent for years afterwards,
but in May, 1852, in advance of such surveys, the legislature of
the state passed an act providing for the sale of the 500,000
acres. It authorized the governor to issue land-warrants for not
less than one hundred and sixty and not
Page 142 U. S. 593
more than three hundred and twenty acres in one warrant, to the
amount of the 500,000 acres, and the treasurer to sell them at two
dollars per acre, and the purchasers and their assigns to locate
them, on behalf of the state, upon any vacant and unappropriated
lands belonging to the United States within the State of California
subject to such location, but it declared that no such location
should be made except in conformity to the law of Congress, in not
less than three hundred and twenty acres in one body. The fifth
section provided that the location should secure to the purchaser
the right to the possession of the land until the government
survey, after which the lines of the location should be made to
conform to the lines of sections, quarter sections, and fractional
sections of such survey.
In July, 1853, one James T. Ewing purchased of the Treasurer of
California, under this act, two land warrants issued by the
governor of the state, each for one hundred and sixty acres. These
warrants, by various transfers, came in September, 1853, into the
possession and ownership of one Stephen Franklin, who during that
month located them upon three hundred and twenty acres of land in
Santa Clara County in one body, embracing the premises in
controversy. The land located was sufficiently designated by lines,
distances, and courses in the field. The entry of the location was
made in the office of the clerk of the county, and the lands were
surveyed by its surveyor, who gave the locator a certificate
setting forth its bounds and the number of acres it included. The
clerk thereupon recorded the certificate in the book of records of
school land warrants in his office. The county surveyor afterwards
made out a duplicate of the survey and certificate of the location
and forwarded them to the office of the surveyor general of the
state. The location was made in conformity with the law of the
state. The lands were unappropriated public lands of the United
States, and were vacant except as occupied by Franklin, the
locator, and were located as part of the 500,000 acres granted to
the state by the Act of September 4, 1841. Franklin was then in the
actual possession of the 106.84 acres in controversy and other
lands adjacent thereto, making
Page 142 U. S. 594
altogether 578 acres, which were cultivated and improved by him
as a single farm. He occupied the whole tract until 1862, when his
interest was purchased by James Donahue, now deceased, who went
into possession of the premises and continued in their use until
his death, in 1864 or 1865, when his interest passed by devise or
descent to his son, the defendant.
But notwithstanding that in locating the state warrants,
Franklin complied with the requirements of the state law and both
he and his successor, James Donahue, continued in the possession
and use of the land, their claim of title to the 106.84 acres under
the location was not recognized by the Land Department of the
general government. A great number of similar locations were
treated in like manner. The right of the state to make any
selections in advance of the public surveys of the United States
was denied by the department upon its construction of the act of
Congress, and even when official surveys had preceded the location,
the transfer of any title by the state authorities to the land
located was also denied, the department taking the position that
until the lands selected were listed over or patented to the state,
no title passed from the United States.
Under this conflict of opinion between the authorities of the
state and of the Land Department as to the title to the land
located under the land warrants issued by the governor, great
embarrassment was experienced by holders of lands thus located, and
interests of vast magnitude, which had grown up under the action of
the state, were believed to be endangered. In this condition of
affairs, it is not surprising that the holders of the lands
resorted to various measures to strengthen their title, and also
sought relief from Congress.
There were several other grants of lands by Congress to the
state, and for their sale provision was also made by different acts
of the legislature. The Act of Congress "to provide for the survey
of the public lands in California, the granting of preemption
rights therein, and for other purposes," passed March 3, 1853,
granted sections sixteen and thirty-six in each to township to the
state, as already mentioned, for school
Page 142 U. S. 595
purposes. And the same act, among other things, provided that
where those school sections were taken by private claims, other
lands might be selected in their place by the proper authorities of
the state. Those sections in one of the townships in Santa Clara
County were included within the exterior limits of Mexican grants,
subsequently confirmed. Accordingly, in 1862, the state authorities
took measures, pursuant to an act of the legislature passed for
such cases, to obtain other lands in lieu of them, and selected the
106.84 acres in controversy in this action, and other lands
adjoining them, making in all 225.80 acres, in lieu of a portion of
the school sections. The state then sold the lands to James
Donahue, mentioned above, at the time a citizen of the United
States, and he paid the full purchase price therefor, the last
installment on the 20th of January, 1864, and the state issued to
him a certificate of purchase. In May, 1866, the township in which
the lien lands selected were situated was surveyed by the
authorities of the United States, and the plat of the survey was
returned and filed in the United States local land office of the
district embracing the township. After the survey, and on the 30th
of May, 1886, the state authorities again, and in part satisfaction
of the grant by Congress of the school sections, selected and
relocated the same 106.84 acres of land with the other lands
adjoining, and on the same day notified, in writing, the register
of the United States land office for the district of such selection
and relocation. Act relating to indemnity school selections in the
State of California, 19 Stat. 267, c. 81.
In 1864, the Supreme Court of California changed its previous
ruling as to the power of the state to make selections from the
grant in advance of the surveys of the general government, receding
from its decision in
Doll v. Meador, cited above, and
holding that no title to any portion of the land granted vested in
the state until such survey was made, thus giving no effect to the
character of the grant as one
in praesenti, and making the
immediate enjoyment of the bounty of the government dependent upon
the action of the surveying officers, rather than the will of
Congress.
Terry v. Megerle, 24 Cal. 609. This decision,
whether or not subject to
Page 142 U. S. 596
criticism, was subsequently adhered to, and has been since so
constantly followed by that court as to be no longer open to
question, and the title of the state to the lands covered by the
grant in question has been adjusted upon its assumed correctness.
For the time, however, it served to increase the embarrassments
previously existing of holders of locations made in advance of such
surveys. It left them without any protection except that arising
from their possession.
As stated above, relief was sought by an appeal to Congress from
the embarrassments following this state of affairs, which was asked
not only for holders under the selections and locations mentioned,
but also for holders under other grants to the state, and such
appeal resulted in the passage on July 23, 1886, of the Act to
quiet land titles in California, 14 Stat. 218, c. 219. Upon this
law, the defendant relies for the confirmation of his title to the
lands located under the land warrants by his predecessor in
interest, Stephen Franklin, as part of the 500,000-acre grant, and,
that defense failing, upon the confirmation of his title to the
indemnity lands selected in part satisfaction of the school
sections taken by Mexican grants.
The first section of the act declared that in all cases where
the State of California had previously made selections of any
portion of the public domain in part satisfaction of a grant made
to the state by an act of Congress, and had disposed of the same to
purchasers in good faith under her laws, the lands so selected
should be, and were thereby, confirmed to the state. The words of
the section are "the lands so selected shall be, and hereby are,
confirmed to said state." From this confirmation were excepted
selections of lands to which any adverse preemption, homestead, or
other right had, at the date of the passage of the act, been
acquired by a settler under the laws of the United States, and of
lands reserved for naval, military, or Indian purposes, and of
mineral lands, or of lands claimed under a valid Mexican or Spanish
grant, or of land which, at the passage of the act, was included
within the limits of any city, town, or village, or within the
County of San Francisco.
The second section provided that where the selections mentioned
in the first section had been made of land which had
Page 142 U. S. 597
been surveyed by authority of the United States, it should be
the duty of the authorities of the state, where it had not already
been done, to notify the register of the United States land office
for the district in which the land was located of such selections,
and that the notice should be regarded as the date of the state's
selection, and it required the Commissioner of the General Land
Office, immediately after the passage of the act, to instruct the
several local registers to forward to the general land office,
after investigation and decision, all such selections, which, if
found to be in accordance with section 1 of this act, the
Commissioner should certify over to the state in the usual
manner.
The third section provided that where the selections named in
the first section had been made of land which had not been surveyed
by authority of the United States, but which had been surveyed by
authority of and under the laws of the state, and the land sold to
purchasers in good faith, such selections should, from the date of
the passage of the act, when marked off and designated in the
field, have the same force and effect as preemption rights of a
settler on unsurveyed public lands.
Under the provision of the first section of this act, the
defendant contends, and the court below ruled to that effect, that
the lands selected from the grant by the act of 1841 -- that is,
from the 500,000 acres donated to the state -- were confirmed, and
the title of the state thereto perfected. The confirmation, it was
argued, operated as a present grant, and perfected the state's
title from the date of the act. That construction would undoubtedly
be correct if the provisions of the first section were not modified
by those of the second section. The first section declares in
general terms that where selections of any portion of the public
domain have been made by the state in part satisfaction of a grant
of Congress to her, and she has disposed of the same to purchasers
in good faith under her laws, the lands so selected are confirmed
to the state. The object of the section is to confirm the title to
lands thus selected and sold by the state. But the second section
declares that when the selections have been made of lands surveyed
by authority of the United States, it shall be
Page 142 U. S. 598
the duty of the state authorities, when it has not already been
done, to notify the register of the United States local land office
of such selections, and that this notice shall be regarded as the
date of the state's selection. It follows, therefore, that the
lands confirmed by the first section are those selected from lands
previously surveyed by authority of the United States, and of which
selection notification had been or should thereafter be given to
the register of the local land office. Now it does not appear from
the record that any lands under consideration in this case were
selected from the grant of 1841 -- that is, from the grant of
500,000 acres -- after the lands had been surveyed by authority of
the United States, and of course no notification had been or could
be given of any such selection. The selections made under that
grant -- that is, the locations upon the state warrants possessed
by Franklin -- were of lands surveyed only by authority of the
state, and such selections, when marked off and designated on the
field, could, by the third section of the act of 1886, only have
the force and effect of preemption rights of a settler on
unsurveyed public lands. Such recognition could be of no benefit to
the defendant in establishing his defense in the present case. It
is therefore upon the effect of the act of 1866 on the lieu lands
selected in place of the school sections covered by the Mexican
grants that he must rely. Notification of such selections was made
to the register of the local land office after the survey in May,
1866, of the township in which the selected lands were
situated.
It follows that, by the first section of the act of 1866 as
modified by the second section, the lieu lands selected in place of
the school sections, after the survey of the township, were
confirmed, and the title of the state thereto was perfected from
the date of the act. The legislative confirmation was not only a
recognition of the validity of the claim of the state, but it
operated as effectually in perfecting her title as a grant or
quitclaim from the government. As held in
Langdeau
v. Hanes, 21 Wall. 521,
88 U. S.
530,
"if the claim be to land with defined boundaries or capable of
identification, the legislative confirmation perfects the title to
the particular tract, and a subsequent
Page 142 U. S. 599
patent is only documentary evidence of that title."
The tract confirmed here was of specific boundaries, and after
the confirmation, no further evidence of the title of the confirmee
was needed. As this Court said in
Whitney v. Morrow,
112 U. S. 693,
112 U. S.
695:
"If, by a legislative declaration, a specific tract is confirmed
to anyone, his title is not strengthened by a subsequent patent
from the government. That instrument may be of great service to him
in proving his title, if contested, and the extent of his land,
especially when proof of its boundaries would otherwise rest in the
uncertain recollections of witnesses. It would thus be an
instrument of quiet and security to him, but it could not add to
the validity and completeness of the title confirmed by the act of
Congress."
The confirmation of the state's title inured immediately to the
benefit of her grantee, the father of the defendant, without any
further action of the Land Department or of the state.
The plaintiff contends, against this conclusion, that he
obtained a better right to the demanded premises under the grant of
July 2, 1862, to the state of land for the establishment of an
agricultural college of college for the mechanic arts, alleging
that such premises were a part of the land apportioned to the state
under that grant. To the consideration of that position we now turn
our attention.
On the second of July, 1862, Congress passed an act "donating
public lands to the several states and territories which may
provide colleges for the benefit of agriculture and the mechanic
arts." 12 Stat. 503, c. 130. The first section provides as
follows:
"That there be granted to the several states, for the purposes
hereinafter mentioned, an amount of public land, to be apportioned
to each state a quantity equal to thirty thousand acres for each
senator and representative in Congress to which the states are
respectively entitled by the apportionment under the census of
eighteen hundred and sixty,
provided that no mineral lands
shall be selected or purchased under the provisions of this
act."
Under this section, the State of California became entitled to
150,000 acres for the purposes designated.
The second section of the act provides as follows:
"That
Page 142 U. S. 600
the land aforesaid, after being surveyed, shall be apportioned
to the several states in sections or subdivisions of sections, not
less than one-quarter of a section, and whenever there are public
lands in a state subject to sale at private entry at one dollar and
twenty-five cents per acre, the quantity to which said state shall
be entitled shall be selected from such lands within the limits of
such state, and the Secretary of the Interior is hereby directed to
issue to each of the states in which there is not the quantity of
public lands subject to sale at private entry at one dollar and
twenty-five cents per acre, to which said state may be entitled
under the provisions of this act, land scrip to the amount in acres
for the deficiency of its distributive share."
The act also contains various provisions intended to secure the
proper application of the proceeds of the sale of the lands donated
to the purposes intended. It also declares that no state shall be
entitled to its benefits unless the state expresses her acceptance
of the act within two years from the date of its approval -- a
period which was, by a subsequent act, extended for two years more.
California, however, expressed her acceptance within the time
required, and on the 23d of March, 1868, passed an act to create
and organize the University of California, which embraced
provisions for a college for the benefit of agriculture and the
mechanic arts.
By subsequent acts, the state was allowed to select the lands
granted from any lands within her limits subject to preemption,
settlement, entry, sale, or location under any laws of the United
States. 15 Stat. 67, c. 55, ยง 4, p. 68; 16 Stat. 581, c. 126,
On the 10th of September, 1873, one William W. Johnstion made
application to the Regents of the University of California to
purchase the one hundred and six acres and a fraction of an acre in
controversy in this case under the Act of Congress of July 2, 1862,
and his application was accepted. On the following day, September
11, 1873, the land agent of the university proceeded to select and
locate several parcels of land in the office of the register of the
United States for the district, including the lands which Johnston
had applied to
Page 142 U. S. 601
purchase, and gave him a certificate, he at the time paying
$111.84, that being all that was then required of him. On the
second of November, 1874, the parcels of land selected were
certified by the Commissioner of the General Land Office as being
subject to selection under the Act of July 2, 1862, and free from
conflict, and the list was approved by the Secretary of the
Interior, subject to any valid interfering rights existing at the
date of the selection. On the 24th of April, 1879, Johnston
assigned and transferred his certificate of purchase to the
plaintiff, and he paid to the regents of the university the balance
of the purchase price. At the time of his application to purchase,
and of payment on account, Johnston had notice of the defendant's
rights and interests in the premises, and the plaintiff also had
such notice at the time of the assignment to him, and his payment
of the balance of the purchase money. On the first of June, 1882,
the United States listed over the lands to the state, and on the
17th of that month, the state executed her patent to the plaintiff
for the premises in controversy. Upon this patent the plaintiff
asserts title to the premises and claims their recovery. The
proceedings taken for the acquisition of the land appear to have
been regular in form, and to have been sufficient to transfer the
title to the state, had not the property been previously vested in
the defendant by the purchase by his father of the lands selected
in place of the school sections covered by Mexican grants.
Our conclusion is that after the confirmation by the first
section of the Act of July 23, 1866, of the lands in controversy
selected in place of the school sections, the township in which the
selected lands are situated having been previously surveyed by
authority of the United States, the premises were not subject to
the grant to the state for the establishment of an agricultural
college. No title to lands under that grant vested in the state
until their selection and listing to the state, which was some
years subsequent to the time at which the title of the United
States passed to the defendant.
There was no such trust created by the act making the grant of
July 2, 1862, and its acceptance by the state, as to
Page 142 U. S. 602
prevent land, which might otherwise have been selected for the
establishment of the college intended, from being previously
selected by other grantees of the United States of unlocated
quantities of land. No trust against the state could arise until
proceeds from the sale of the property granted, or some portion of
it, had been obtained and come into her possession. Whatever
disposition she might subsequently make of the proceeds in carrying
out the object intended or in defeating it could have no bearing
upon the title acquired by other parties from the sale of the
lands.
Mills County v. Railroad Companies, 107 U.
S. 557;
Emigrant Co. v. County of Adams,
100 U. S. 61;
Cook County v. Calumet & Chicago Canal Co.,
138 U. S. 635,
138 U. S.
655.
The judgment must therefore be
Affirmed.