The Act of September 28, 1850, c. 84, granting swamp lands to
the several states, was a grant
in praesenti, passing
title to all lands which at that date were swamp lands, but leaving
to the Secretary of the Interior to determine and identify what
lands were, and what lands were not, swamp lands.
Whenever the granting act specifically provides for the issue of
a patent, the legal title remains in the government until its
issue, with power to inquire into the extent and validity of rights
claimed against the government.
Although a survey had been made of the lands in controversy
which indicated that they were swamp lands, it was within the power
of the land office at any time prior to the issue of a patent to
order a resurvey and to correct mistakes made in the prior
survey.
The facts in this case clearly show an adjustment of the grant
upon the basis of the resurveys, and their acceptance by the
officer of the state charged by the act of Congress with the duty
of so doing, and this makes such adjustment final and
conclusive.
The Act of March 3, 1857, c. 117, did not operate to confirm to
the Michigan the title to all lands marked on the approved and
certified list of January 13, 1854, as swamp and overflowed lands,
and direct the issue of a patent or patents therefor, but it simply
operated to accept the field notes finally approved as evidence of
the lands passing under the grant, leaving to the Land Department
to make any needed corrections in the surveys and field notes.
The decision in
Martin v. Marks, 97 U. S.
345, does not conflict with this construction of the act
of 1857.
This was an action of ejectment, commenced in the Circuit Court
of the United States for the Eastern District of Michigan, on
February 11, 1888. On November 28, 1892, the case came on for trial
before the court and a jury. At the close of the testimony, the
jury, under the instructions of the court, returned a verdict for
the defendant. On May 7, 1895, this judgment was affirmed by the
court of appeals, 31 U.S.App. 731, and to review such judgment, the
case was brought
Page 168 U. S. 590
here on writ of error. The land in dispute is situated in Clare
County, being the S.E. 1/4 of S.E. 1/4 of sec. 20, N.W. 1/4 of S.W.
1/4 of sec. 21, N.W. 1/4 of S.E. 1/4 of S.E. 1/4 of sec. 22, N.W.
1/4 of N.W. 1/4 of sec. 28, N. 1/2 of S.W. 1/4 of sec. 29, N. 1/2
of N.E. 1/4 of sec. 35, township 18, range 3 W., and E. 1/2 of S.W.
1/4 of sec. 1, township 18, range 4 W., and amounting to 400 acres,
the undivided half of which only was claimed by plaintiff.
The contention of the plaintiff, generally speaking, is that
this was swamp land, and granted to the State of Michigan by the
Act of Congress of date September 28, 1850, c. 84, 9 Stat. 519,
granting swamp lands to the several states; that it was included in
a list of such lands in the Ionia Land District, approved by the
Secretary of the Interior, and forwarded to the Governor of
Michigan on January 13, 1854; that the Act of March, 3, 1857, c.
117, 11 Stat. 251, confirmed the action of the Secretary of the
Interior, and thereby passed the title to the State of Michigan, by
which state it was, on October 14, 1887, conveyed to plaintiff's
grantor.
The defendant, on the other hand, contends that the original
surveys of the public lands in the State of Michigan were
erroneous; that at the instance of the state, Congress ordered
resurveys, which resurveys were carried on from the years 1842 to
1857; that, while it is true this land was by the original surveys
classed as swamp land, and included in the Ionia land district list
approved and certified to the State of Michigan, the resurveys
showed that it was not land of that description; that a new list
for that district, not including this land, was in 1886 made out
and certified to the state; that such new list was accepted by the
state as correct, and a patent for the lands described therein
issued to and received by it; that, after all this had taken place,
and in 1870, the land in question was sold by the officers of the
United States at auction, after public advertisement, and that
patents were duly issued upon such sale, under which patents the
defendant claims title.
Page 168 U. S. 591
MR. JUSTICE BREWER, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This case involves questions of the power of the Land Department
over the matter of the identification of the particular lands
passing under the Swamp Land Act of 1850, of the finality of the
action of the Secretary of the Interior in approving and certifying
to the governor of the state a list of such lands, and of the
effect of the confirmatory act of 1857. There is no testimony
showing what was in fact the condition of the land, whether swamp
or not at the time of the passage of the act of 1850, and the case
turns wholly upon the documentary evidence.
The act of 1850 made a grant
in praesenti -- in other
words, the title then passed to all lands which at that date were
swamp lands, and the only matters thereafter to be considered were
those of identification.
Railroad Company v.
Smith, 9 Wall. 95;
French v. Fyan,
93 U. S. 169;
Martin v. Marks, 97 U. S. 345;
Rice v. Sioux City & St. Paul Railroad, 110 U.
S. 695;
Wright v. Roseberry, 121 U.
S. 488;
Tubbs v. Wilhoit, 138 U.
S. 134. But, while the act operated as a grant
in
praesenti, the determination of what lands were swamp lands
was entrusted to the Secretary of the Interior. Section 2 contains
this provision:
"That it shall be the duty of the Secretary of the Interior, as
soon as may be practicable after the passage of this act, to make
out an accurate list and plats of the lands described as aforesaid,
and transmit the same to the Governor of the State of Arkansas, and
at the request of said governor, cause a patent to be issued to the
state therefor, and on that patent, the fee simple to said lands
shall vest in said State of Arkansas, subject to the disposal of
the legislature thereof. "
Page 168 U. S. 592
It may be remarked in passing that while the first and second
sections refer specifically to the State of Arkansas, section 4 of
the act makes it applicable to all the states. It is true that, in
the first section, Congress defines the lands granted as "swamp and
overflowed lands, made unfit thereby for cultivation;" and section
3, referring to the lists and plats ordered by section 2 to be made
out by the Secretary of the Interior, contains this further
specification as to the character of the lands granted:
"That in making out a list and plats of the lands aforesaid, all
legal subdivisions, the greater part of which is 'wet and unfit for
cultivation' shall be included in said list and plats, but when the
greater part of a subdivision is not of that character, the whole
of it shall be excluded therefrom."
But while Congress thus defined what it intended to grant as
swamp and overflowed lands, it entrusted, as appears from section
2, the identification of those lands to the Secretary of the
Interior.
It will be perceived that the act contemplated the issue of a
patent as the means of transferring the legal title. In
Rogers
Locomotive Works v. American Emigrant Co., 164 U.
S. 559,
164 U. S. 574,
it was said, speaking in reference to this matter, and after a full
review of the previous authorities:
"When he [that is, the Secretary of the Interior] made such
identification, then, and not before, the state was entitled to a
patent, and 'on such patent' the fee simple title vested in the
state. The state's title was at the outset an inchoate one, and did
not become perfect, as of the date of the act, until a patent was
issued."
Generally speaking, while the legal title remains in the United
States, the grant is in process of administration, and the land is
subject to the jurisdiction of the Land Department of the
government. It is true a patent is not always necessary for the
transfer of the legal title. Sometimes an act of Congress will pass
the fee.
Strother v.
Lucas, 12 Pet. 410,
37 U. S. 454;
Grignon's Lessee v.
Astor, 2 How. 319;
Chouteau
v. Eckhart, 2 How. 344,
43 U. S. 372;
Glasgow v.
Hortiz, 1 Black 595;
Langdeau
v. Hanes, 21 Wall. 521;
Ryan v.
Carter, 93 U.S.
Page 168 U. S. 593
78. Sometimes a certification of a list of lands to the grantee
is declared to be operative to transfer such title, Rev.Stat. ยง
2449;
Frasher v. O'Connor, 115 U.
S. 102; but wherever the granting act specifically
provides for the issue of a patent, then the rule is that the legal
title remains in the government until the issue of the patent,
Bagnell v.
Broderick, 13 Pet. 436,
38 U. S. 450,
and while so remaining, the grant is in process of administration,
and the jurisdiction of the Land Department is not lost.
It is, of course, not pretended that when an equitable title has
passed, the Land Department has power to arbitrarily destroy that
equitable title. It has jurisdiction, however, after proper notice
to the party claiming such equitable title, and, upon a hearing, to
determine the question whether or not such title has passed.
Cornelius v. Kessel, 128 U. S. 456;
Orchard v. Alexander, 157 U. S. 372,
157 U. S. 383;
Parsons v. Venzke, 164 U. S. 89. In
other words, the power of the department to inquire into the extent
and validity of the rights claimed against the government does not
cease until the legal title has passed.
"A warrant and survey authorize the proprietor of them to demand
the legal title, but do not in themselves constitute a legal title.
Until the consummation of the title by a grant, the person who
acquires an equity holds a right subject to examination."
Miller v. Kerr,
7 Wheat. 1,
20 U. S. 6. After
the issue of the patent, the matter becomes subject to inquiry only
in the courts and by judicial proceedings.
United
States v. Stone, 2 Wall, 525,
69 U. S. 535;
Moore v. Robbins, 96 U. S. 530;
United States v. Schurz, 102 U. S. 378,
102 U. S. 396;
Bicknell v. Comstock, 113 U. S. 149,
113 U. S. 151;
Iron Silver Mining Co. v. Campbell, 135 U.
S. 286;
Williams v. United States, 138 U.
S. 514. This jurisdiction of the department has been
maintained in cases of preemption where the entire purchase money
has been paid and a receiver's final certificate issued.
Orchard v. Alexander, 157 U. S. 372, and
cases cited in the opinion;
Parsons v. Venzke,
164 U. S. 89.
In
Knight v. United States Land Association,
142 U. S. 161, is
a full discussion by Mr. Justice Lamar of the power of the
Secretary of the Interior over proceedings in respect to the
Page 168 U. S. 594
disposition of public lands, and on page
142 U. S. 178,
it is said, as illustrative of the scope of that power:
"For example, if, when a patent is about to issue, the secretary
should discover a fatal defect in the proceedings, or that, by
reason of some newly ascertained fact, the patent, if issued, would
have to be annulled, and that it would be his duty to ask the
Attorney General to institute proceedings for its annulment, it
would hardly be seriously contended that the secretary might not
interfere and prevent the execution of the patent. He could not be
obliged to sit quietly and allow a proceeding to be consummated
which it would be immediately his duty to ask the Attorney General
to take measures to annul."
And, again, on page
142 U. S. 181,
is this language:
"The secretary is the guardian of the people of the United
States over the public lands. The obligations of his oath of office
oblige him to see that the law is carried out, and that none of the
public domain is wasted or is disposed of to a party not entitled
to it. He represents the government, which is a party in interest
in every case involving the surveying and disposal of the public
lands."
See also Orchard v. Alexander, 157 U.
S. 372,
157 U. S.
381-382;
Warner Valley Stock Company v. Smith,
165 U. S. 28,
165 U. S. 34.
This jurisdiction extends to the ordering of new surveys whenever
in the judgment of the department there has been error or fraud in
those already made.
Cragin v. Powell, 128 U.
S. 691. In
Tubbs v. Wilhoit, 138 U.
S. 134,
138 U. S. 143,
the court quoted with approval this passage from a letter of the
Secretary of the Interior:
"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."
And in
New Orleans v. Paine, 147 U.
S. 261, the question was presented as to the power of
the department to order a new survey, and on page
147 U. S. 266,
the rule was thus stated:
"If the department was not satisfied with this survey, there was
no rule of law standing in the way of its ordering another. Until
the matter is closed by final action, the proceedings of an officer
of a department are as much open to review or reversal by
himself
Page 168 U. S. 595
or his successor as are the interlocutory decrees of a court
open to review upon the final hearing."
So notwithstanding that a survey had been made, and that such
survey indicated that the land in controversy was swamp land, and
therefore passing, under the act of 1850, to the State of Michigan,
it was within the power of the Land Department at any time prior to
the issue of a patent, of its own motion, to order a resurvey, and
correct by that any mistakes in the prior survey.
But in this case, it is not necessary to rely alone on the
general power vested in the Land Department, for as early as 1842,
the attention of the Legislature of Michigan was called to the fact
that there had been errors in the surveys of public lands within
the state, and a resolution was passed by it in these words:
"Whereas it has been satisfactorily made to appear to this
legislature that large districts of lands lying within the limits
of the State of Michigan have been returned by some of the deputy
United States surveyors to the General Land Office as surveyed,
where no surveys whatever have been made, or where the surveys have
been so imperfectly done as to be utterly valueless, and whereas
the United States surveyor general of this land district has caused
the lands so represented as surveyed to be offered for sale, to the
very great injury of the State of Michigan and the citizens
thereof: therefore,"
"
Be it resolved by the Senate and House of Representatives
of the State of Michigan, that the President of the United
States be requested to cause the subdivisions of the following
townships of land, situate within the State of Michigan, and which
have been represented to have been surveyed, but which have either
not been surveyed or have been so imperfectly surveyed that said
work is valueless, to be surveyed at as early a day as may be
consistent,
viz.:"
"
* * * *"
"
Resolved, that the governor be requested to transmit
the foregoing preamble and resolution to the President of the
United States."
A letter enclosing a copy of this resolution was forwarded to
the Commissioner of the General Land Office, and by him
Page 168 U. S. 596
referred to the President, who endorsed it as follows:
"Let the matter be referred to the surveyor general, with
instructions as indicated, and let the Governor of Michigan be
informed of the measures to be adopted."
Thereupon, proceedings for new surveys were taken by the Land
Department, of which fact the governor of the state was duly
informed. It is true that, in the resolutions of the Michigan
Legislature, 81 townships were specifically named, and that the
land in controversy was not included within those townships; but it
appears that, on the strength of the information thus furnished,
the Land Department proceeded to make new surveys of other lands
than those specifically mentioned by the legislature, and, the
attention of Congress having been called to the matter, it, from
1845 to 1856, inclusive, made appropriations for correcting surveys
in the State of Michigan. Act of March 3, 1845, c. 71, 5 Stat. 752,
762; Act of March 3, 1849, c. 100, 9 Stat. 354, 365; Act of
September 30, 1850, c. c. 90, 9 Stat. 523, 530; Act of March 3,
1851, c. 32, 9 Stat. 598, 611-612; Act of March 3, 1853, c. 97, 10
Stat. 189, 204; Act of August 4, 1854, c. 242, 10 Stat. 546, 565;
Act of March 3, 1855, c. 175, 10 Stat. 643, 660; Act of August 18,
1856, c. 129, 11 Stat. 81, 86. The last three appropriations were
made after the sending of the approved list for the Ionia land
district to the governor, on January 13, 1854.
It may be noticed here, in passing, that in the adjustment of
the swamp land grant for the State of Michigan, the Land Department
did not include in one list all the swamp lands within the state,
but made out several lists, apparently one at least, for each land
district.
Not only was there general knowledge on the part of the
authorities of the state, as of those at Washington, of the
existence of errors and mistakes in the original surveys of public
lands in the State of Michigan, but also was there particular
information as to supposed errors in the surveys of the land in
controversy. After the passage of the act of 1850, the Commissioner
of the General Land Office instructed the surveyor general of the
State of Michigan to examine the
Page 168 U. S. 597
field notes of the surveys on file in his office, and report
therefrom a list of the lands which were swamp or overflowed. From
time to time, the surveyor general forwarded to the Land Department
lists in accordance with these instructions. On March 29, 1852, he
forwarded a list containing the land in question, and in the letter
accompanying is found this language: "The districts reported by
Judge Burt and Hiram Burnham to be fraudulent are embraced in this
list, and marked
F,'" and in that list the district containing
the land in controversy is marked with the letter "F," so that,
upon the records of the General Land Office was to be found
information that the survey of this particular land was reported to
be erroneous, and, as such, was likely to be included in resurveys
then pending. The report of the commissioner of the state land
office to the legislature of the state for the year ending November
30, 1856, contains this statement:
"Patents are now received for all these lands in the state
except those situate in the Ionia Land District, comprising about
1,200,000 acres, and for these we are assured the patents will soon
be forwarded, the making of which have been delayed in consequence
of extensive resurveys by the general government, which, in some
instances, changes the amount and character of the land."
And again, after speaking of the application for the purchase of
particular tracts, he says they have been denied, because
"no valid sale could be made until after a compliance with the
law requiring advertisement of a public offering to be published in
each county of the state, and such public sale or offering has not
been deemed advisable until after the title of the state to the
grant should be wholly confirmed by the issue of the patents, and
the numerous corrections and restatements of the lists necessary to
be previously made by the department at Washington."
And still again:
"It is well known that many tracts, and sometimes almost entire
sections, are now considered as among the best of farming lands, or
extensively covered with pine and other valuable timber."
Upon the resurveys, the land in controversy was shown not to be
swamp and overflowed land, and lists conforming to these new
surveys were duly approved and certified by the
Page 168 U. S. 598
Secretary of the Interior and forwarded to the Governor of the
State of Michigan. The receipt of such lists was acknowledged, and
a request made for patents for the lands described therein, and
patents were issued and accepted conveying such lands.
These facts indicate very clearly an adjustment of the grant
upon the basis of the resurveys. Undoubtedly the beneficiary of
such a grant is interested in its adjustment, and may properly be
heard before the officers of the grantor in determining what lands
are embraced within it, and any assent by the grantee to a
determination made by the officers of the grantor as to the lands
passing within the grant would be binding upon it. In this case,
the grant was for the benefit of the State of Michigan, but in the
act of 1850, making the grant, Congress, as it had a right to do,
clearly indicated the officer of the state, to-wit, the governor,
whose action in the premises should be the action of the grantee.
Under these circumstances, it being known that there were errors in
the surveys, and the legislature of the state having requested
action to be taken to correct these errors, and resurveys having
been undertaken, and while they were being prosecuted for the
purpose of correcting such errors, a list of lands which by the
original surveys appeared to be swamp and overflowed was made out
and forwarded to the governor. Upon the records of the Land
Department, the original survey of the district containing the land
in controversy was at that time challenged as fraudulent. After the
list containing this land had been forwarded to the governor, and
his request for a patent returned to the Land Department, a patent
was issued, not including this land. Subsequently the resurveys
were finished, and, according to them, this land was excluded from
the grant. Thereupon a new and corrected list containing the lands
which by the resurveys were shown to be swamp and overflowed was
made out, approved by the Secretary of the Interior, and forwarded
to the governor. Upon its receipt, the governor requested patents
to be issued, and patents were issued conveying the lands specified
therein. This clearly shows an acceptance by the officer of the
state, charged under the act of Congress with the duty of so doing,
of the resurveys as within the
Page 168 U. S. 599
authority of the Land Department, and makes the adjustment of
the grant upon the basis of such resurveys final and conclusive.
The act of the state in accepting the new and corrected survey as
the basis of adjustment is tantamount to a waiver of any claims
under the prior and erroneous survey, for it cannot be that a
grantee accepting a patent for lands which according to a final and
correct survey are shown to be within the terms of the grant can
thereafter be heard to say,
"Notwithstanding I have taken all the lands shown to belong to
me by this correct survey, I also claim lands which by a prior and
erroneous, if not fraudulent, survey, appeared to pass under the
grant."
He cannot in that way enlarge the scope of the grant, and, after
taking lands which are finally determined to pass under the grant,
say,
"I also insist upon lands which upon such final survey are shown
not to be within the grant, simply because under a prior erroneous
survey they appeared to be within its terms."
We come now to consider the effect of the Act of March 3, 1857,
c. 117, 11 Stat. 251, which provided:
"That the selection of swamp and overflowed lands granted to the
several states by the act of Congress . . . heretofore made and
reported to the Commissioner of the General Land Office, so far as
the same shall remain vacant and unappropriated, and not interfered
with by an actual settlement under any existing law of the United
States, be and the same are hereby confirmed, and shall be approved
and patented to the said several states, in conformity with the
provisions of the act aforesaid, as soon as may be practicable
after the passage of this law,
provided, however, that
nothing in this act contained shall interfere with the provisions
of the act of Congress entitled 'An act for the relief of
purchasers and locators of swamp and overflowed lands,' approved
March the second, eighteen hundred and fifty-five, which shall be
and is hereby continued in force, and extended to all entries and
locations of lands claimed as swamp lands made since its
passage."
It is contended by the plaintiff that the purpose and effect of
this act were to confirm to the State of Michigan the title to all
lands marked on the approved and certified list of January
Page 168 U. S. 600
13, 1854, as swamp and overflowed land, and to direct the issue
of a patent or patents therefor. Whatever question might have
existed, were it not for this act, as to whether any of the lands
marked on such lists were swamp and overflowed lands, and whatever
authority there might otherwise be in the Land Department to make
corrections, Congress, which had full power over the matter, by it
in terms granted to the state these lands. Such action by Congress
was a finality. Thereafter no inquiry could be made as to the
character of the lands; no correction of the list, and the full
equitable title passed to the state, beyond the possibility of
challenge. It is insisted that Congress must have known of the
alleged irregularities in the surveys, known of the approval by the
Secretary of the Interior of this list, that it had been forwarded
to the governor, that the governor had accepted and requested the
issue of patents, and with this knowledge passed this act,
intending thereby to remove all question as to the character of the
lands, to put an end to the necessity for any further examination,
and to make this list the single and absolute evidence of the lands
it was granting to the State of Michigan. There would be force in
this contention if the act of 1850 contained simply a grant to the
State of Michigan, and there were but a single list of swamp lands
in that state. It might then well be said that this act was passed
with reference solely to the conditions existing in respect to this
attempted selection of swamp and overflowed lands in that state;
but the act of 1850 was a grant to all the states, and the act of
1857 must therefore be construed as applicable to the conditions
existing in all of the states. It is contended by the defendants
that it applies only to those states in which the state authorities
had attempted to make selections of swamp and overflowed lands
within their limits, and had communicated such selections to the
Land Department, and that its purpose was simply to confirm to the
states lists which constituted selections made by them, and with
reference to which the Secretary of the Interior had delayed and
neglected to act, and they refer to the opinion of this Court in
Tubbs v. Wilhoit, 138 U. S. 134,
138 U. S. 137,
it is said:
Page 168 U. S. 601
"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 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 March 2, 1855, 10 Stat. 634, c. 147; Act
March 3, 1857, 11 Stat. 251, c. 117."
This argument is entitled to consideration because the word
"selection" applies more naturally to the action of the grantee in
reporting to the Land Department the lands which it claims than to
the action of the land officers in identifying from the field notes
what are and what are not swamp and overflowed lands. The term
"selection" is not an apt word to describe the identification of
certain lands according to evidence presented of their character.
But we need not rest on this. Conceding that the statute applies
not merely to those cases in which affirmative action had been
taken by the states, but also to those in which, without any such
action, the only proceedings had been those in the Land Department
of the United States, still we think that it cannot be held that
this act is to be construed as expressing a purpose to make the
list in this case, approved and certified to the state, a finality
as to the lands passing under the grant, and an absolute transfer
of the equitable title.
In order to fully understand the matter, attention must be
called to the act of 1850. That granted, as has been seen, swamp
and overflowed lands, and directed the Secretary of the Interior,
as soon as practicable, to make an accurate list and plats of such
lands and transmit the same to the governor, and thereafter, at his
request, cause a patent to be issued. The manner in which the
secretary should discharge this duty, the evidence that should be
required by him as to the character of the lands, were not
prescribed by the act. The matter was left to his discretion. The
secretary sent out
Page 168 U. S. 602
instructions to the surveyor general of the State of Michigan to
make lists of the unsold swamp lands, as shown by the field notes
on file in his office. From these instructions we quote this
passage:
"The only reliable data in your possession from which these
lists can be made out are the field notes of the surveys on file in
your office, and, if the authorities of the state are willing to
adopt these as the basis of those lists, you will so regard them;
if not, and those authorities furnish you satisfactory evidence
that any lands are of the character embraced by the grant, you will
so report them."
On receipt of a letter containing notice of this from the
surveyor general, the governor replied that he did not have
authority to incur any expense in the matter, and afterwards
referred it by message to the legislature, which body, by Act
passed June 28, 1851, Laws of Michigan, 1851, p. 322, adopted the
surveys on file in the surveyor general's office as the basis of
adjustment. The effect of this legislative action was not to make
an erroneous survey conclusive, nor to preclude the Land Department
from the exercise of its unquestioned jurisdiction to correct
surveys, but simply to accept the field notes finally approved as
the evidence of the lands passing under the grant, leaving to the
Land Department to make any needed corrections in the surveys and
field notes. In other states, different action was taken by the
state authorities, as appears from the opinion of this Court in
Tubbs v. Wilhoit, supra. Now the obvious purpose of this
act of 1857 was to ratify and confirm the various steps taken by
the Secretary of the Interior in the selection of swamp and
overflowed lands. It was general in its terms, reaching to all the
states, and the different modes by which identification of the
swamp and overflowed lands had been attempted to be accomplished.
It cannot fairly be construed as intending to put an end to all
further inquiry in the Land Department, nor to oust that department
of jurisdiction to inquire into and correct any frauds or mistakes,
but was a general ratification and confirmation of the methods
pursued. It cannot be supposed that Congress intended by this act
to condone all frauds, to prevent the correction of errors or
mistakes, to take everything
Page 168 U. S. 603
as it then appeared on the records of the Land Department, and,
forbidding any further inquiry, declare that lands which by such
records, through error or fraud, appeared to be swamp and
overflowed, should be granted to the state. It was not an act to
enlarge the grant of 1850. It was not an act to oust the Land
Department of its ordinary jurisdiction to inquire into and
ascertain what were swamp and overflowed lands, but was an act
confirming and ratifying the methods thus far pursued. Congress
must have been aware of the fact that there were charges of fraud
or mistake in reference to the surveys in the State of Michigan. It
had appropriated large sums for resurveys. They had partially been
made, and mistakes, if not frauds, had been found. It does not
appear that such charges existed in reference to the surveys in
other states. At any rate, it is not to be presumed that all
surveys in all the states were fraudulent or erroneous, and it
would require very clear and direct language before the intent
could be imputed to Congress to ignore the existence of alleged
frauds and errors in the one state and to confirm titles to lands
in that state based upon such fraudulent or erroneous surveys, and
thereby enlarge, perhaps, very materially, the amount of the grant
to such state. The language of the act does not compel any such
conclusion as to the intent of Congress.
The decision in
Martin v. Marks, 97 U. S.
345, does not conflict with this construction of the act
of 1857. It is true this language is found in the opinion: "After
the passage of that act, the Land Department had no right to set
aside the selections." But in that case, there was no question of
the power of the Land Department to correct errors or mistakes. The
plaintiff relied on a list made by the surveyor general of
Louisiana of swamp and overflowed lands, which list, containing the
land in dispute, had been forwarded to the General Land Office and
there filed. It did not appear that this list had been formally
approved by the Secretary of the Interior, as contemplated by the
act of 1850. The defendant relied on a patent from the United
States issued long thereafter. It was held that the act of 1857
dispensed with the formal approval by the Secretary of the
Interior, and confirmed the lists made
Page 168 U. S. 604
and filed with the Commissioner of the General Land Office. And
in view of that fact, and as no question had been made in the Land
Department of the correctness of the survey, it was adjudged that
the equitable title of the state to the land was perfect. So in
this case, if there had been no challenge of the original surveys,
no attempt at a resurvey or to correct errors or mistakes, and
there had been simply a lack of the formal approval of the list by
the Secretary of the Interior, that case would have compelled an
adjudication that the full equitable title had passed to the State
of Michigan, and would have invalidated the patent subsequently
issued by the United States directly to the parties under whom the
defendants claim. But that is far from deciding that all power in
the Land Department to inquire into frauds or errors in the surveys
was taken away, and all frauds upon the government in such surveys
condoned. It was merely a decision that, as the identification by
the surveyor general of the land as swamp land had not been
challenged for fraud or mistake, it was binding on the question of
title, and the approval by the Secretary of the Interior and the
issue of the patent were simply ministerial acts.
See also Blanc v.
Lafayette, 11 How. 104.
We see no error in the judgment of the court of appeals, and it
is therefore
Affirmed.