Swamp lands in Michigan which were not embraced in the list of
such lands made by the Surveyor General February 12, 1853, as
coming within the provisions of the grant to the September 28,
1850, 9 Stat. 514, c. 84, which list was approved by the Secretary
of the Interior January 11, 1854, and which lands were patented to
the state March 3, 1856, as so listed and approved, were not
included within the said grant of September 28, 1850.
These several official acts, by the proper officers, operated as
an adjudication as to what were swamp lands within the grant of
September 28, 1850, and to exclude contradictory parol
evidence.
The grant by the state, May 25, 1855, of the land in controversy
here, operated to convey it to the grantee, whether the state's
title was acquired under the Swamp Land Act, or under the grant of
August 6, 1852, 10 Stat. 35, c. 92, for the purpose of building a
ship canal.
Railroad Co. v.
Smith, 9 Wall. 95, explained, qualified and
distinguished from this case.
This was an action of ejectment brought by the plaintiff in
error, a citizen of Illinois, against the defendant in error, a
Michigan corporation, to recover a tract of forty acres of land in
Houghton County, Michigan, particularly described as the "southeast
quarter of the northwest quarter of section 23, township 56 north,
range 33 west."
Both parties to the controversy derive their title from the
State of Michigan, the plaintiff under a patent of the state,
issued to him on November 3, 1887, and the defendant by various
mesne conveyances, under a state patent issued to the St. Mary's
Falls Ship Canal Company, a New York corporation, on May 25, 1855.
The material and uncontroverted facts of the case on which the
questions involved depend are the following: by the Act of Congress
approved September 28, 1850, 9 St. p. 519, c. 84, known as the
"Swamp-Land Act," there
Page 149 U. S. 80
was granted to the State of Michigan the whole of the swamp and
overflowed lands, made unfit thereby for cultivation within the
state, and it was made the duty of the Secretary of the Interior to
make lists and plats of such lands, and transmit them to the
governor of the state, and cause patents therefor to issue
conveying such lands in fee simple. After the passage of this act,
the Commissioner of the General Land Office, by correspondence with
the authorities of the state, suggested, through the surveyor
general thereof, as a mode or method of selecting or segregating
the swamp from the other public lands, that the field notes of the
United States surveys of lands should be accepted by the state as
the basis of identification of the swamp lands which were intended
to be granted by Congress. An act of the Legislature of Michigan
passed June 28, 1851, accepted the grant, and adopted, as suggested
by the Secretary of the Interior, or the Commissioner of the
General Land Office, the field notes of the United States surveys
as a basis upon which the swamp lands should be identified and
segregated. The surveyor general, on February 12, 1853, made lists
of lands which he ascertained to be swamp, and within the
provisions of the grant, from the field notes so agreed upon. Those
lists were transmitted to the Secretary of the Interior and by him
approved January 11, 1854, and under date of February 24, 1854, a
copy of said lists was certified by the Commissioner of the General
Land Office to the governor of the state, and thereafter, on March
3, 1856, a patent was issued to the state for the lands described
in said lists. The lists of the lands so selected and approved to
the state were lodged in the Michigan land office. The lands thus
selected and patented to the state, while embracing some portion of
township 56 north, range 33 west, did not include the land in
controversy.
By an Act of Congress approved August 26, 1852, 10 St. p. 35, c.
92, there was granted to the State of Michigan for the purpose of
building a ship canal around the falls of St. Mary's
"seven hundred and fifty thousand acres of public lands, to be
selected in subdivisions, agreeable to the United States surveys,
by an agent or agents to be appointed by the governor
Page 149 U. S. 81
of said state, subject to the approval of the Secretary of the
Interior, from any land within said state subject to private
entry."
The state accepted this grant by acts of its legislature
approved, respectively, February 5 and February 12, 1853, and
authorized commissioners of the state to enter into a contract for
the building of such canal. In pursuance of this authority a
contract was entered into between the state and certain designated
parties for the construction of the ship canal, by the terms of
which the parties undertaking its construction, or their assignees,
were to receive from the State of Michigan 750,000 acres of land at
$1.25 per acre, to be located under the provisions of the Act of
August 26, 1852. The terms of this contract need not be specially
set forth, as no question arises thereon.
The parties undertaking the construction of the canal
subsequently assigned and transferred all their rights and
privileges in the contract to the St. Mary's Falls Ship Canal
Company. By the act of the legislature authorizing the contract for
the construction of the canal, the state undertook the selection of
the lands under said grant, and the contractors were to receive the
lands so selected in payment for the work of building the canal.
The fifth section of the act of the state legislature provided
that
"when and as fast as the lands shall have been selected and
located, an accurate description thereof, certified by the persons
appointed to select the same, shall be filed in the office of the
commissioner of the state land office, whose duty it shall be to
transmit to the Commissioner of the General Land Office a true copy
of said list and to designate and mark upon the books and plats in
his office the said lands as 'St. Mary's Canal Lands.'"
By section 6 it was provided that after the completion of the
canal within the time specified, to the satisfaction of and the
acceptance thereof by the commissioners, the governor, and
engineer, and a certificate of that fact filed in the office of the
state land office, it was made the duty of said commissioner
"forthwith to make certificates of purchase for so much of said
lands as by the terms of the contract for the construction
Page 149 U. S. 82
of said canal are to be conveyed for the purpose of defraying
its costs and the expenses hereinbefore provided for, which
certificates shall run to such persons and for such portions of
said lands so selected and to be conveyed as the contractor may
designate, and shall forthwith be delivered to the Secretary of
State, and patents shall immediately be issued thereon, as in other
cases."
The St. Mary's Falls Ship Canal Company, as the assignee of the
construction contract, completed the canal and became entitled to
the consideration which the state was to pay therefor.
The agents appointed by the state to select and locate the lands
granted for the purpose of building the canal made selections to
the amount required, the list of which was filed in the General
Land Office of the state, and was certified to the Secretary of the
Interior, who, under date of January 24, 1855, duly approved the
same to the State of Michigan under the Act of Congress of August
26, 1852. The list of selected lands under this grant, and so
approved by the Department of the Interior, included the demanded
premises, and on May 25, 1855, the governor of the state, in
pursuance of the foregoing legislation and contract on the subject,
issued a patent to the St. Mary's Falls Ship Canal Company for a
large portion of these selected lands, including therein, by
particular description, the premises in controversy, which by mesne
conveyances passed to the defendant in error, which entered into
possession of the same and was in actual possession thereof at the
commencement of the present suit. This conveyance was duly
recorded, and after the expiration of five years from the date of
the patent, during which they were exempt from taxation, the lands
so patented to the canal company have been continually subject to
taxes by the state.
It is shown from the foregoing statement of facts, and it is
conceded, that the demanded premises had never been selected as a
part of the swamp lands granted to the state, nor had the same ever
been approved to the state as such, and that no list or plat of
swamp lands in Michigan made by or by the authority of the
Secretary of the Interior contained or
Page 149 U. S. 83
described the tract in question as swamp land, although a
portion of the land in the vicinity thereof, and in the same
township, was included in the lists of such lands which were
selected and approved by the Secretary of the Interior.
It thus appears that the plaintiff and the defendant have each a
conveyance from the State of Michigan for the particular tract of
land in controversy, and that the conveyance to the defendant in
error was prior in time to the conveyance to the plaintiff in
error. The latter, however, claims that the demanded premises were
a part of the swamp and overflowed lands granted to the state by
the Act of Congress of September 28, 1850, and as such were
conveyed to him by the patent of the state issued on November 3,
1887, and that he thereby acquired a title to the same superior to
that which the defendant in error acquired under the prior patent
to the canal company, through which the defendant in error derives
its title. In support of this contention, it is urged that the
Swamp Land Act was in effect a grant
in praesenti, so that
the title of the state to such lands dated from the date of that
act, and consequently the state did not and could not acquire title
to the tract in question under the Act of August 26, 1852.
On the other hand, the defendant in error insists that the act
of the state and of the Department of the Interior in the selection
of lands under the Swamp Land Act amounted to an adjudication or a
determination on the part of the Department of the Interior that
the parcel of land in question was not embraced within the
provisions of the act of 1850, and that the same, having been
affirmatively and particularly selected and certified to the state
under the grant of August 26, 1852, was a direct adjudication that
it came properly within the canal grant; that the legal effect and
operation of the two selections, considered together, made with the
consent and concurrence of the state, was to exclude, by
implication, the particular premises here involved from the
operation of the former grant, and to expressly include the same
within the latter grant, and that this adjudication or
determination of the department cannot be collaterally attacked or
called in question in an action at law. The defendant in error
further
Page 149 U. S. 84
contends that, even conceding that the title of the state to the
lands in question was derived under the act of 1850, it acquired
the superior title thereto, under and by virtue of the conveyance
made to the St. Mary's Falls Ship Canal Company by the state's
patent of May 25, 1855, which operated to pass to said company
whatever title the state had to the premises in question,
independently of the source from which it had derived its
title.
On the trial of the case by the court and jury, the plaintiff,
to maintain the issues on his part, introduced his patent from the
state and offered oral evidence to prove that the tract conveyed
thereby, and involved in the suit, with the exception of about
seven acres thereof, was in fact swamp and overflowed land, being
wet and unfit for cultivation within the meaning of the Swamp Land
Act of Congress, and was so at the time of the approval of the act.
To this evidence the defendant objected, and the court, reserving
its ruling thereon until after the defendant had introduced its
proof, sustained the objection and refused to allow the evidence to
go to the jury, to which ruling the plaintiff excepted.
After all the evidence in the case had been introduced, the
plaintiff, by his counsel, requested the court to direct the jury
to return a verdict in his favor. This the court refused to do, and
instructed the jury to bring in a verdict for the defendant, which
was accordingly done, and judgment was entered thereon, to which
the plaintiff excepted, and to reverse this judgment the present
writ of error is prosecuted.
The opinion of the court below is reported in 36 F. 665, and its
action in rejecting the oral testimony and in directing a verdict
for the defendant was rested upon two grounds: first, that after
the Secretary of the Interior had discharged his duty and approved
the list of swamp lands, made, in accordance with his suggestion,
from field notes of government surveys with the consent of the
state, which selection and identification did not include the
parcel of land in question, although embracing other lands in the
same township, there was in effect a determination that the land in
controversy was not covered by or embraced within the swamp
Page 149 U. S. 85
land grant; and secondly that the state, having accepted the
parcel of land in question under the grant of 1852 and having
conveyed the same to the canal company, was estopped from
thereafter asserting any title thereto.
Page 149 U. S. 88
MR. JUSTICE JACKSON delivered the opinion of the Court.
The plaintiff has assigned for errors (1) that the trial court
improperly excluded the oral evidence offered to show that the
demanded premises were in fact swamp lands when the Act of
September 28, 1850, was passed, and (2) that the court should have
directed a verdict for the plaintiff instead of for the
defendant.
In support of the first proposition, the plaintiff in error
relies upon the case of
Railroad Co. v.
Smith, 9 Wall. 95, in which oral evidence was
admitted to establish the fact that the parcel of land there in
dispute was swamp and overflowed land at the date of the Swamp Land
Act. But in that case, there was no selection or identification of
the land under either the Swamp Land Act or under the subsequent
grant for railroad purposes. The selection and identification under
each of said acts was left open and undetermined when the
respective titles involved therein were acquired. It also further
appeared in that case that the state neither made any selection of
the lands granted for railroad purposes nor conveyed to the
railroad company any particular lands, but simply assigned or
transferred generally the lands granted to the state by Congress,
which were at the time only "a float," requiring identification and
selection to make the grant operative to pass title to any portion
of the public domain.
The facts of the present case present the direct converse of the
situation which existed in the case of
Railroad Co.
Page 149 U. S. 89
v. Smith. But aside from this, the rule as to oral
evidence recognized in that case was afterwards explained and
limited in its operation to cases in which there had been nonaction
or refusal to act on the part of the Secretary of the Interior in
selecting lands granted, as appears in the subsequent cases of
French v. Fyan, 93 U. S. 169,
93 U. S. 173,
and
Ehrhardt v. Hogaboom, 115 U. S.
67,
115 U. S. 69, where
parol evidence was offered to show that patented lands were not of
the character described.
In
French v. Fyan, the Court, speaking by Mr. Justice
Miller, said in reference to such evidence:
"The case of
Railroad Co. v. Smith, 9
Wall. 95, is relied on as justifying the offer of parol testimony
in the one before us. In that case, it was held that parol evidence
was competent to prove that a particular piece of land was swamp
land within the meaning of the act of Congress. But a careful
examination will show that it was done with hesitation, and with
some dissent in the Court. The admission was placed expressly on
the ground that the Secretary of the Interior had neglected or
refused to do his duty; that he had made no selection or lists
whatever, and would issue no patents, although many years had
elapsed since the passage of the act. The Court said:"
"The matter to be shown is one of observation and examination,
and whether arising before the Secretary, whose duty in was
primarily to decide it, or before
the court, whose duty it
became, because the Secretary had failed to do it, this was
clearly the best evidence to be had, and was sufficient for the
purpose."
There was no means, as this Court has decided, to compel him to
act, and if the party claiming under the state in that case could
not be permitted to prove that the land which the state had
conveyed to him as swamp land was in fact such, a total failure of
justice would occur and the entire grant to the state might be
defeated by this neglect or refusal of the Secretary to perform his
duty. There is in this no conflict with what we decide in the
present case, but, on the contrary, the strongest implication that
if, in that case, the Secretary had made any decision, the evidence
would have been excluded.
In the case of
French v. Fyan, it was held that while
the swamp land grant was a grant
in praesenti, by which
the title
Page 149 U. S. 90
to such lands passed at once to the state in which they lay, it
was made the duty of the Secretary of the Interior to identify
them, make lists thereof, and cause a patent to be issued therefor,
and that the patent so issued could not be impeached in an action
at law by showing that the land which it conveyed was not in fact
swamp and overflowed land, as the plaintiff in that case sought to
do.
In the subsequent case of
Ehrhardt v. Hogaboom,
115 U. S. 67,
115 U. S. 69, the
plaintiff deraigned title through a patent of the United States for
the demanded premises, bearing date June 10, 1875, which was given
in evidence, while the defendant claimed that twenty acres thereof
were swamp and overflowed lands which passed to the State of
California under the Act of Congress of September 28, 1850, and
offered parol evidence to establish this fact, but the evidence was
rejected. It did not appear in that case that the demanded premises
formed a part of any land selected by the state or claimed by her
as swamp and overflowed land. In that case this Court held,
speaking through MR. JUSTICE FIELD, that
"a patent of the United States, regular on its face, cannot, in
an action at law, be held inoperative as to any lands covered by it
upon parol testimony that they were swamp and overflowed, and
therefore unfit for cultivation, and hence passed to the state
under the grant of such land on her admission into the Union,"
and after citing and approving the decision made in
French
v. Fyan, above cited, proceeded as follows:
"In that case, parol evidence to show that the land conveyed by
a patent to Missouri under the act was not swamp and overflowed
land was held to be inadmissible. On the same principle, parol
testimony to show that the land covered by a patent of the United
States to a settler under the preemption laws was such swamp and
overflowed land must be held to be inadmissible to defeat the
patent. It is the duty of the Land Department, of which the
Secretary is the head, to determine whether land patented to a
settler is of the class subject to settlement under the preemption
laws, and his judgment as to this fact is not open to contestation
in an action at law by a mere intruder without title. As was said
in the case cited of the patent to
Page 149 U. S. 91
the state, it may be said in this case of the patent to the
preemptioner, it would be a departure from sound principle and
contrary to well considered judgments of this Court to permit in
such action the validity of the patent to be subjected to the test
of the verdict of a jury on oral testimony."
Nothing that was said or involved in
Wright v.
Roseberry, 121 U. S. 488,
where the subject of these grants was exhaustively considered by
the court, is in conflict with the rulings announced in these
cases. In
Wright v. Roseberry, patents for lands had been
issued to the defendants, or their grantors, by the United States
under the preemption laws upon claims initiated subsequently to the
swamp land grant to the state, and it was held that such patents
were not conclusive at law as against the parties claiming under
the latter grant, and that in an action for their possession,
evidence was admissible to determine whether or not the lands were
in fact swamp and overflowed at the date of the swamp land grant,
and that, if proved to have been such, the rights of subsequent
claimants under other laws would be subordinate thereto. In that
case, the lower court held that the title to the demanded premises
never vested in the state for want of a certificate by the
Department of the Interior that they were swamp and overflowed
lands, and that the state could not make title to the plaintiff
upon which he could maintain an action of ejectment against persons
in possession under a patent of the United States. This principle
was denied by this Court in an elaborate opinion announced by MR.
JUSTICE FIELD, fully reviewing all the decisions on the subject,
who said p.
121 U. S. 509,
that
"the result of these decisions is that the grant of 1850 is one
in praesenti, passing title to the lands as of its date,
but requiring identification of the lands to render the title
perfect; that the action of the Secretary in identifying them is
conclusive against collateral attack, as the judgment of a special
tribunal to which the determination of the matter is entrusted; but
when that officer has neglected or failed to make the
identification, it is competent for the grantees of the state, to
prevent their rights from being defeated, to identify the lands in
any other appropriate mode which will effect that object. A resort
to such
Page 149 U. S. 92
mode of identification would also seem to be permissible,where
the Secretary declares his inability to certify the lands to the
state for any cause other than a consideration of their
character."
Under the principle announced in that case, and under the
foregoing facts in the present case, it would seem that there had
been such affirmative action on the part of the Secretary of the
Interior in identifying the lands in this particular township
containing the lands in controversy as would amount to an
identification of the lands therein which passed to the state by
the swamp land grant, and that the selection by the state of the
demanded premises under the canal grant of 1852, with the approval
of the Secretary of the Interior, and the certification of the
department to the state that they were covered by the latter grant,
may well be considered such an adjudication of the question as
should exclude the introduction of parol evidence to contradict it.
The exclusion of the land in dispute from the swamp lands selected
and patented to the state, and its inclusion in the selection of
the state as land coming within the grant of 1852, with the
approval of such selection by the Interior Department and the
certification thereof to the state, operated to pass the title
thereto as completely as could have been done by formal patent,
Frasher v. O'Connor, 115 U. S. 102,
and, being followed by the state's conveyance to the canal company,
presented such official action and such documentary evidence of
title as should not be open to question by parol testimony in an
action at law. Under the facts of this case, we are of opinion that
the plaintiff in error could not properly establish by oral
evidence that the land in dispute was in fact swamp land for the
purpose of contradicting and invalidating the department's
certification thereof to the state, and the latter's patent to the
canal company.
But assuming that this parol testimony offered by the plaintiff
in error was competent, and that it would have established that the
land in controversy was swamp land that passed to the state by the
act of 1850, what, then, would be the rights of the parties to this
suit, under their respective
Page 149 U. S. 93
patents from the state? Can it be maintained that, because the
state acquired title thereto under the act of 1850, its patent
therefor to the canal company made in 1855 would be overreached and
superseded by its subsequent patent to the plaintiff in 1887? We
are at a loss to understand upon what principle this can be
asserted, for even conceding that the state, in patenting the
demanded premises to the canal company, acted under mistake or
misapprehension as to the character of the land so conveyed, still,
so long as that patent remains uncancelled and unrevoked by the
state, it must be held that its legal effect was and is to pass
whatever title the state had to the tract in question, however that
title may have been originally acquired by the state.
In the cases relied upon by the plaintiff in error, there had
been no particular lands conveyed by the state under grants
subsequent to the act of 1850, and there was no presumption of law
or fact that its patent was intended to convey lands which accrued
to it under the swamp land grant. But in the case under
consideration, even assuming that the state's title was acquired
under the latter grant, it had a title for any and all purposes to
which it might choose to apply or devote the property, and when it
applied it to the purpose of constructing the canal and actually
conveyed it to the canal company, it was not in a position
thereafter, so long as that conveyance remained in force, to
transfer the same land to another purchaser.
It is well settled that the state could have impeached the title
thus conveyed to the canal company only by a bill in chancery to
cancel or annul it either for fraud on the part of the grantee or
mistake or misconstruction of the law on the part of its officers
in issuing the patent, and until so cancelled or annulled, it could
not issue to another party any valid patent for the same land.
United States v.
Hughes, 11 How. 552;
Hughes v.
United States, 4 Wall. 232;
Moore v.
Robbins, 96 U. S. 530. This
is also the view taken of the question in
State v. Flint &
Pere Marquette Railroad, 89 Mich. 481, 494. In that case, the
prior patent of the state was held to estop it from subsequently
asserting title to
Page 149 U. S. 94
the parcel of land conveyed, while its patent for the same land
was outstanding. But whether there is any technical estoppel in the
ordinary sense or not, it cannot be maintained that the state can
issue two patents at different dates to different parties for the
same land, so as to convey by the second patent a title superior to
that acquired under the first patent. Neither can the second
patentee, under such circumstances, in an action at law, be heard
to impeach the prior patent for any fraud committed by the grantee
against the state, or any mistake committed by its officers acting
within the scope of their authority and having jurisdiction to act
and to execute the conveyance sought to be impeached.
The patent to the canal company is not shown to be void, because
the state acquired title to the parcel in question, if it did so
acquire it, under the swamp land grant, rather than under the act
of 1852. Neither the state nor its subsequent patentee is in a
position to cancel or annul the title which it had authority to
make, and which it had previously conveyed to the canal company.
The patent to the canal company did not, on its face or by its
terms, purport to convey only such lands and such title as the
state was entitled to under the grant of 1852. On the contrary, it
conveyed by accurate description the particular tract or parcel of
land in controversy. It is therefor wholly immaterial under which
of the two congressional grants the state acquired its title to
said lands.
The canal grant of 1852 did not, by its terms, make the state a
trustee, in any proper sense of the word, in reference to the lands
granted by that act; but if it did, the state, as a trustee, made
the selection of the lands covered by that grant, and in that
selection included the particular parcel in question, and
thereafter conveyed it to the canal company, and, having full
authority to so appropriate it, even if the title had previously
accrued to it under the Swamp Land Act of 1850, its conveyance of
the same to the canal company for a full and adequate consideration
cannot, upon any well settled principle, be held void either as to
the state or any subsequent grantee from the state. So that,
independently of any question arising upon the action of the court
in excluding the parol evidence
Page 149 U. S. 95
to show that the premises in controversy were in fact swamp
land, it is clear that under the facts in this case, the defendant
has shown a superior title to such premises, and that the court
below was correct in directing a verdict for it.
Our conclusion, therefore, upon the whole case is that the
judgment below should be
Affirmed.
MR. JUSTICE FIELD did not hear the argument in this case, or
take any part in its decision.
MR. JUSTICE BROWN, being interested in the result, did not sit
in this case, and took no part in its decision.
