1. The Act of June 10, 1852, concerning swamp and overflowed
lands, confirmed a present vested right to such lands, though the
subsequent identification of them was a duty imposed upon the
Secretary of the Interior.
2. These lands were excepted from the subsequent railroad grants
to Iowa and Missouri.
Page 76 U. S. 96
3. In a suit to recover lands which the plaintiff claims under
one of the railroad grants, it is competent to prove by witnesses
who know the lands sued for that they were swamp and overflowed
within the meaning of the swamp land grant, and therefore excluded
from the railroad grant.
The Hannibal & St. Joseph Railroad Company brought ejectment
against Smith in one of the county courts of Missouri to recover
possession of certain lands.
The title of the railroad company was deduced from an act of
Congress, entitled "An act granting the right of way to the state
of Missouri, and a portion of the public lands to aid in the
construction of certain railroads in said state," approved June 10,
1852. This act granted to the State of Missouri, for the purpose of
making the railroad, every alternate section of land designated by
even numbers on each side of the road.
The Legislature of Missouri, in September, 1852, accepted the
grant and by statute vested the land granted in the railroad
Such was the title of the plaintiff.
That of the defendant, Smith, was deduced from the same "swamp
land grant," the act of Congress, namely, which is set out in the
statement of the last reported case, approved September 28, 1850,
by which Fremont County in that case held its lands. But in this
case the railroad interest was the actor -- not as in the last one
a defending party merely, with a swamp land grantee in the position
On the trial below of the present cause, the defendant
introduced evidence against objection tending to prove that the
lands in suit were wet and unfit for cultivation at the date of the
swamp land act of 1850, and this was his title. No evidence was
introduced by him tending to show that the land in suit was ever
certified as swamp land by the Secretary of the Interior or that
the same was ever patented as such to the State of Missouri. Nor
was this pretended. In fact, the correspondence of the Land
Department of the United States showed that the Secretary had no
sufficient evidence to enable him to make such certificates.
The court in which the suit was brought gave judgment for Smith,
the defendant, and the railroad company appealed to the Supreme
Court of Missouri. That court affirmed the judgment
Page 76 U. S. 97
of the court below, and the railroad company now brought the
MR. JUSTICE MILLER delivered the opinion of the Court.
The grants of lands by Congress to the states in aid of
railroads have generally been made with reference to the lands
through which the roads were to pass, and, as the line of the road
had to be located after the grant was made, it has been usual in
the acts making the grant to describe them as alternate sections of
odd numbers within a certain limit on each side of the road when it
should be located.
This, of course, left it to be determined by the location of the
road what precise lands were granted. So far as this uncertainty in
the grant was concerned, it was one which might remain for a
considerable time, but which was capable of being made certain, and
was made certain, by the location of the road. But as Congress
could not know on what lands these grants might ultimately fall,
and as the roads passed through regions where some of the lands had
been sold, some had been granted for other purposes, and some had
been reserved for special uses, though the title remained in the
United States, these statutes all contained large exceptions from
the grant, as measured by the limits on each side of the road and
as determined by the odd numbers of the sections granted.
We have had before us two cases growing out of the construction
to be given to the language of these exceptions in the grant of May
15, 1856, to the State of Iowa. The first of these was the case of
Wolcott v. Des Moines Company.
] The other is the case of Railroad
Company v. Fremont County,
decided at this term. [Footnote 2
The case before us arises under a similar grant to the State of
Missouri, with like reservations in the act, but it raises a
question somewhat different from that presented by the other two
In the last of those cases, it was determined that a proviso
which excluded from the grant
"all lands heretofore reserved by
Page 76 U. S. 98
any act of Congress or in any manner by competent authority for
the purpose of aiding in any object of internal improvement or for
any other purpose whatever,"
excluded the lands granted to the states by the Act of September
28, 1850, known as the swamp land grant. In that case, the County
of Fremont, claiming under the swamp land grant, was plaintiff, and
the railroad company, claiming under the grant to the state for
railroads, was defendant, and the main point in it related to the
evidence which might be necessary to establish the fact that the
lands claimed by plaintiff were swamp and overflowed within the
meaning of the act of 1850.
In the present case, the position of the parties is reversed,
the plaintiff claiming under the Act of June 10, 1852, granting
lands to the State of Missouri for railroad purposes and the
defendant claiming under the swamp land grant.
In the former case, it was necessary for the plaintiff, who must
succeed on the strength of her own title, to show satisfactory
evidence that the title of the United States had, under the swamp
land grant, become vested in Fremont County. The opinion of the
court shows how this was successfully done in that case.
In the present action, it was incumbent on the railroad company
to show that the title of the United States had become vested in
the company under the grant for railroad purposes.
It is admitted that this has been done unless the land is of
that class reserved from the grant as swamp land, for the act under
which plaintiff claims has an exception in precisely the same terms
with the act for the benefit of the Iowa railroads.
In the former case, the plaintiff, claiming under the swamp land
grant, was bound to establish his title by such evidence as
Congress may have determined to be necessary to make the title
complete in the state, or the grantee of the state, to which the
lands were supposed to be granted; otherwise the plaintiff
established no legal title. In the present case, it is not
necessary to defeat the title under the railroad grant to show that
all the steps prescribed by Congress to vest a complete title in
defendant under the swamp land grant have been taken. It is
sufficient to show that this land which is now claimed under the
railroad grant was reserved out of that grant, and this is done
whenever it is proved by appropriate testimony to have been swamp
and overflowed land as described in the act of 1850.
In order to determine the character of the testimony which
Page 76 U. S. 99
will prove this, it may be useful to look at the statute which
granted these swamp lands.
The first section of the act, after declaring the inducements to
its passage, says that the whole of these swamp and overflowed
lands, made thereby unfit for cultivation and unsold, are hereby
granted to the states.
The third section, for further description, says that all legal
subdivisions the greater part of which is wet and unfit for
cultivation shall be included as swamp lands, but when the greater
part is not of that character, the whole of it shall be
Congress has here given a criterion, apparently not difficult of
application, by which to determine what was granted, to-wit such
legal subdivisions of the public lands the greater part of which
were so far swamp and overflowed as to be too wet for cultivation.
Now here is a present grant by Congress of certain lands to the
state within which they lie, but it is by a description which
requires something more than a mere reference to their townships,
ranges, and sections to identify them as coming within it. In this
respect it is precisely like the railroad grants, which only became
certain by the location of the road. In fact, in this regard the
swamp land grant was the more specific, for all the lands of that
description were granted, and they have remained so granted ever
since, while no particular land was described by the railroad
grant, which was a float, to be determined by the choice of the
line of the road in future. No act of Congress has ever attempted
to take back this grant of the swamp lands, or to forfeit it, or to
give it to any other grantee, or modified the description by which
they were given to the states. It was protected by positive
reservation in the grant under which plaintiff claims. Now when a
party claiming under that grant sues to recover a particular piece
of land which is excepted out of the grant by appropriate language,
is it not competent to show by parol proof that it was of the class
covered by the first grant and excepted from the second -- namely
so swampy, overflowed, and wet as that the major part of the tract
was unfit for cultivation?
By the second section of the act of 1850, it was made the duty
of the Secretary of the Interior to ascertain this fact and furnish
the state with the evidence of it. Must the state lose the land,
though clearly swamp land, because that officer has neglected to do
this? The right of the state did not depend on his action,
Page 76 U. S. 100
but on the act of Congress, and though the states might be
embarrassed in the assertion of this right by the delay or failure
of the Secretary to ascertain and make out lists of these lands,
the right of the states to them could not be defeated by that
delay. As that officer had no satisfactory evidence under his
control to enable him to make out these lists, as is abundantly
shown by the correspondence of the Land Department with the state
officers, he must, if he had attempted it, rely, as he did in many
cases, on witnesses whose personal knowledge enabled them to report
as to the character of the tracts claimed to be swamp and
overflowed. Why should not the same kind of testimony, subjected to
cross-examination, be competent, when the issue is made in a court
of justice, to show that they are swamp and overflowed, and so
excluded from the grant under which plaintiff claims, a grant which
was also a gratuity?
The matter to be shown is one of observation and examination,
and whether arising before the Secretary, whose duty it 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.
Any other rule results in this, that because the Secretary of
the Interior has failed to discharge his duty in certifying these
lands to the states, they therefore pass under a grant from which
they are excepted beyond doubt, and this when it can be proved by
testimony capable of producing the fullest conviction that they
were of the class excluded from plaintiff's grant.
The decision of the case of the Railroad Company v. Fremont
disposes of all the errors alleged in this case but the
admission of the verbal testimony, and as we are of opinion that
the state court did not err in that,
The judgment is affirmed.
72 U. S. 5
The 76 U. S.
MR. JUSTICE CLIFFORD, dissenting.
Unable to concur in the judgment of the Court in this case, I
think it proper to state the reasons of my dissent.
Congress made provision, by the first section of the Act of the
twenty-eighth of September, 1850, that swamp and overflowed lands
"made unfit thereby for cultivation"
and which remained
unsold at the passage of the act should be granted to the states in
which the same were situated, to enable the states to construct
Page 76 U. S. 101
the necessary levees and drains to reclaim the lands so granted
and render them fit for cultivation. [Footnote 2/1
Such lands were a part of the public domain, and of course it
was necessary, before the title could vest in the states that the
land should be surveyed and designated, as lands not made unfit
thereby for cultivation were no more included in the first section
of the act than lands sold prior to its passage.
Taken literally, the first section, it is conceded, purports to
grant the whole of those swamp and overflowed lands, made unfit
thereby for cultivation, but the second section makes it the duty
of the Secretary of the Interior to make out an accurate list and
plats of the lands described as aforesaid, and the third section
provides that in making out said list and plats, whenever the
greater part of a subdivision is wet and unfit for cultivation, the
whole of it shall be included in the list and plats, which is a
matter to be ascertained and determined by the Secretary of the
Interior and which, under the act of Congress, cannot be
ascertained and determined by any other tribunal. Lands fit for
cultivation under those circumstances are to be included in the
list and plats, but the corresponding provision in the same section
is that if the greater part of a subdivision is not of that
character -- that is, not swamp and overflowed lands made unfit
thereby for cultivation -- then the whole of the subdivision shall
be excluded from the list and plats.
Special power is conferred upon the Secretary of the Interior to
make out an accurate list and plats of the lands, and it is quite
clear that a jury is no more competent to ascertain and determine
whether a particular subdivision should be included or excluded
from the list and plats required to be made under that section than
they would be to make the list and plats during the trial of a case
involving the question of title.
Courts and juries are not empowered to make the required list
and plats, nor can they determine what particular lands shall be
included in the list and plats before they are prepared by the
officer designated by law to perform that duty.
Support to that conclusion is derived from the subsequent
language of the same section, which makes it the duty of the
Secretary, when the list and plats are prepared, to transmit the
same to the governor of the state and to cause a patent to be
Page 76 U. S. 102
issued to the state for the lands. Unless the requirements were
such as is supposed, it is difficult to see how the affairs of the
Land Department can be administered, as the records and files of
the office would not furnish any means of determining whether a
given parcel of land belongs to the state in which it is situated
or to the United States.
Evidently the title to the lands remains in the United States
until these proceedings are completed, as the same section which
makes it the duty of the Secretary, when the list and plats are
prepared, to transmit them to the governor and to cause a patent to
be issued therefor also provides that when the patent is issued,
"the fee simple to said lands shall vest in the said state, . . .
subject to the disposal of the legislature thereof."
Prior to the issuing of the patent therefor, the fee simple to
the lands does not vest in the state, and the lands, prior to the
date of the patent, are not subject to the disposal of the
Strong confirmation that the construction of that act herein
adopted is correct is also derived from the subsequent legislation
of Congress upon the same subject. Selections of swamp and
overflowed lands were made by the states, in certain cases under
that act, before the required list and plats were made by the
Secretary, and Congress, on the third of March, 1857, passed an
amendatory act to remedy the difficulty in which it is provided to
the effect that such selections, if reported to the General Land
Office, should be confirmed provided the lands selected were vacant
and unappropriated and the selections did not interfere with actual
settlements under any existing laws of the United States. [Footnote 2/2
Such a law was certainly unnecessary if the construction of the
original act adopted in the opinion just read is correct, as in
that view, the original act vested a fee simple title in the states
without the necessity of waiting for any action on the part of the
land department, and if so then it follows that the states may
select for themselves, and if their title is questioned by the
United States or by individuals, they may claim of right that the
matter shall be determined by jury.
Anticipating that the decision will occasion embarrassment to
the land department, I have deemed it proper to state thus briefly
the reasons of my dissent.
9 Stat. at Large 519.
11 Stat. at Large 251.