The grant of swamp and overflowed lands to the several states by
Act of September 28, 1850, is one
in praesenti, passing
title to the lands of the character therein described from its
date, and requiring only identification thereof to render such
title perfect.
Such identification by the Secretary of the Interior is
conclusive against collateral attack as being the judgment of the
special tribunal on which such duty was imposed.
On neglect or failure of that officer to make such designation,
it is competent for the grantees of the state to identify the lands
in any other appropriate mode to prevent their rights from being
defeated.
After segregation of the lands by the state and adoption of the
segregation surveys by the proper federal officers, the right of
the state's grantees to maintain an action for recovery thereof
cannot be defeated because such lands have not been certified or
patented to the state.
The issue of patents for these lauds to defendants or their
grantors under the preemption laws upon claims initiated subsequent
to the swamp grant to the state is not conclusive at law as against
parties claiming under such grant, and in an action for their
possession, evidence is admissible to determine whether or not the
lands were in fact swamp and overflowed at the date of the swamp
land grant; if proved to have been such, the rights of subsequent
claimants under other laws are subordinate thereto.
The provisions contained in § 1 of the Act of July 23, 1866, "to
quiet land titles in California," do not relate to the swamp lands
granted to the state by the Act of September 8, 1850; the
provisions in §§ 4 and 5 relate to swamp lands.
The legislation of Congress respecting swamp lands, the
Departmental construction of that legislation, the line of
decisions by this Court respecting it, and the decisions of the
highest courts of many of the states concerning it stated.
This is an action to recover possession of a tract of land
situated in the County of Yolo, in the State of California,
Page 121 U. S. 489
consisting, according to the public surveys, of portions of
sections 24, 25, and 36, of township 11 north, range 2 east, in
that county, and embracing 560 acres. The land is particularly
described as follows: The north half of the southeast quarter, and
the southeast quarter of the southeast quarter of section
twenty-four (24), the east half of the northeast quarter and the
southwest quarter of the northeast quarter of section twenty-five
(25), and the northeast quarter of section thirty-six (36), all in
township eleven (11) north, range two (2) east, Mount Diablo base
and meridian. It is alleged to be swamp and overflowed land, which
was granted to the state by the Act of Congress of September 28,
1850, "to enable the State of Arkansas and other states to reclaim
the swamp lands within their limits." 9 Stat. 519. The complaint is
in the usual form in such actions, alleging the plaintiff's seizing
in fee of the land and his right of possession, the unlawful entry
thereon of the defendants, and their ousting him therefrom, and
their continued withholding of the possession, to his damage of
$1,000. It also alleges that the rents and profits of the land are
of the value of $560 a year. The prayer is for judgment of
restitution of the premises and for the damages, rents, and profits
claimed.
Two of the defendants united in their answer, one of them being
a tenant of the other; the other defendants answered separately.
All denied the allegations of the complaint, and, except in the
case of the tenant, asserted ownership in fee of portions of the
demanded premises, which they described in their respective
answers, and all set up the statute of limitations in bar of the
action.
The action was twice tried by the state district court in which
it was commenced, and, by stipulation of parties, without a jury.
At both trials the plaintiff asserted title to the premises as
swamp and overflowed lands by conveyance from parties who had
purchased them from the state. The defendants claimed the premises
through patents of the United States, issued under the preemption
laws to them or to parties from whom they derived their interest.
On the first trial, the
Page 121 U. S. 490
court found that 160 acres were swamp and overflowed land on the
28th of September, 1850, within the meaning of the act of Congress
of that date, and gave judgment in favor of the plaintiff for their
possession, but as to the other portions of the premises, the court
failed to find whether or not the plaintiff was the owner thereof
or entitled to their possession. For this failure the supreme court
of the state, on appeal, reversed the judgment and remanded the
cause to the district court with directions to find upon those
issues from the evidence already taken and such further evidence as
might be adduced, and to render judgment upon the whole case. Upon
the second trial thus ordered, further testimony was accordingly
taken. The court thereupon set aside its previous findings, found
on all the issues in favor of the defendants, and gave judgment in
their favor. On appeal to the supreme court, this judgment was
affirmed.
Page 121 U. S. 494
MR. JUSTICE FIELD, after making the foregoing statement of the
case, delivered the opinion of the Court.
It does not distinctly appear what caused the district court to
change its first decision with respect to those lands, which it had
originally held to be swamp and overflowed, but as it admitted in
evidence the patents of the United States and held that they passed
the title to the defendants, it probably had reached the conclusion
which the supreme court subsequently announced -- that the
plaintiff could not maintain an action upon the title to swamp and
overflowed lands until they had been certified as such to the
state, pursuant to the fourth section of the Act of Congress of
July 23, 1866, "to quiet land titles in California." For want of
such certificate, the court decided that the title to the demanded
premises never vested in the state, and that she could not convey a
title to the plaintiff upon which he could maintain an action of
ejectment against persons in possession under patents of the United
States. This ruling constitutes the alleged error for which a
reversal is sought. To determine its correctness, it will be
necessary to consider the nature of the grant to the state of the
swamp and overflowed lands, the proceedings
Page 121 U. S. 495
taken under the laws of the state and of the United States to
ascertain and define their boundaries, and the effect of the Act of
July 23, 1866 and of § 2488 of the Revised Statutes as confirmatory
of previous segregations by the state. The following is the Swamp
Land Act of September 28, 1850.
"
An act to enable the State of Arkansas and other
states"
"
to reclaim the "swamp lands" within their limits"
"
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled, that to
enable the State of Arkansas to construct the necessary levees and
drains to reclaim the swamp and overflowed lands therein, the whole
of those swamp and overflowed lands made unfit thereby for
cultivation, which shall remain unsold at the passage of this act,
shall be, and the same are hereby, granted to said state."
"SEC. 2.
And be it further enacted 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 the lands shall vest
in the said State of Arkansas, subject to the disposal of the
legislature thereof,
provided however that the proceeds of
said lands, whether from sale or by direct appropriation in kind,
shall be applied exclusively, as far as necessary, to the purpose
of reclaiming said lands by means of the levees and drains
aforesaid."
"SEC. 3.
And be it further enacted that in making out a
list and plats of the land 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."
"SEC. 4.
And be it further enacted that the provisions
of this act be extended to, and their benefits be conferred upon,
each of the other states of the union in which such swamp
Page 121 U. S. 496
and overflowed lands, known and designated as aforesaid, may be
situated."
9 Stat. 519.
Soon after the passage of this act, the question arose as to the
time the grant took effect -- whether at the date of the act or on
the issue of the patent to the state upon the request of the
governor, after the list and plats of the lands were made out by
the Secretary of the Interior and transmitted to him. The question
was one of great importance to all the states in which there were
swamp and overflowed lands. These lands amounted to many millions
of acres. In California alone, there were, according to the reports
of the Land Department, nearly two millions of acres.
The object of the grant, as stated in the act, was to enable the
several states to which it was made to construct the necessary
laves and drains to reclaim the lands, and the act required the
proceeds from them, whether from their sale or other disposition,
to be used, so far as necessary, exclusively for that purpose. The
early reclamation of the lands was of great importance to the
states not only on account of their extraordinary fertility when
once reclaimed, but for the reason that until then, they were the
cause of malarial fevers and diseases in the neighborhood.
The language of the first section of the act indicates a grant
in praesenti to each state of lands within its limits of
the character described. Its words "shall be and are hereby
granted" import an immediate transfer of interest, not a promise of
a transfer in the future. It was only when the other sections of
the act were read that a doubt was raised as to the immediate
operation of the act. On the one hand it was contended that these
sections postponed the vesting of title in the state until the
lands granted were identified, and a patent of the United States
for them was issued. On the other hand it was insisted that effect
must be given to the clear words of the granting clause of the
first section, which,
ex vi termini, import the passing of
a present interest, and that, in consistency with them, the other
provisions of the act should be regarded as simply providing the
mode of identifying the lands and furnishing documentary evidence
of their
Page 121 U. S. 497
identification, and not as a limitation upon vesting the right
to them in the state, as this would make the investiture dependent
upon the request of the governor, and not upon the act of Congress.
It was also urged that identification of the lands could be made in
a majority of instances from simple examination of them, and that
no policy of the government could be advanced by postponing the
passing of the title until the identification by the Secretary of
the Interior, and that the clause providing that upon the issue of
the patent, the fee should pass, was merely declaratory of the
nature of the title, the patent operating merely by way of further
assurance.
The question thus brought to the attention of the department,
under whose supervision the act was to be carried into effect, was
one upon which men might very well differ; but after its solution
had been reached, and the conclusion was acted upon, necessarily
affecting titles to immense tracts of land, there should be the
clearest evidence of error, as well as the strongest reasons of
policy and justice controlling, before a departure from it should
be sanctioned.
There are numerous cases in the history of the country where
Congress, after confirming to parties title to lands, has directed
that patents of the United States should be issued to them; yet it
has been held that the patent in such cases operated merely as
record evidence of the title, and added nothing to the title
itself. An illustration of this is presented in the case of claims
confirmed to lands in the Northwest Territory which originated
previously to its cession to the United States. By the Act of
Congress of March 26, 1804, 2 Stat. 277, c. 35, every person
claiming lands within certain designated limits of that territory
by virtue of a legal grant made by the French government prior to
the Treaty of Paris of the 10th of February, 1763, or by the
British government subsequent to that period, and prior to the
treaty of peace between the United States and Great Britain on the
3d of September, 1783, or by virtue of any resolution or act of
Congress subsequent to that treaty, was required to deliver, on or
before the first of January, 1805, to the register of the land
office of the district in which the land was situated, a notice
stating the
Page 121 U. S. 498
nature and extent of his claim, together with a plat of the
tract or tracts claimed. The register of the land office and the
receiver of public moneys were constituted commissioners within
their respective districts for the purpose of examining the claims.
It was made their duty to hear in a summary manner all matters
respecting them, to examine witnesses, and to take any testimony
that might be adduced before them, and decide thereon according to
justice and equity, and to transmit a transcript of their decisions
in favor of claimants to the Secretary of the Treasury, who was
required to lay it before Congress at the ensuing session.
Among the claims presented under this act was one by the heirs
of Jean Baptiste Tongas for lands in the neighborhood of Vincennes,
the claim being founded upon an ancient grant to their ancestor.
The commissioners decided in favor of the heirs and confirmed their
claim, and transmitted a transcript of their decision to the
Secretary of the Treasury, who laid the same before Congress. By
the Act of March 3, 1807,2 Stat. 446, c. 47, this and other
decisions in favor of persons claiming lands in the same district
of Vincennes, transmitted to the Secretary of the Treasury, were
confirmed. The act declared that every person, or his legal
representative, whose claim was confirmed and who had not
previously obtained a patent therefor from the governor of the
territory northwest of Ohio, or of Indiana territory, should,
whenever his claim was located and surveyed, have a right to
receive from the register of the land office at Vincennes a
certificate which should entitle him to a patent for his land, to
be issued to him in like manner as is provided by law "for the
other lands of the United States." A survey of the tract thus
confirmed was made in 1820, but no patent was issued until 1872,
when one was issued reciting the confirmation by the act of 1807 of
the decision of the commissioners under the act of 1804. The patent
purported "to give and grant" to the heirs of Tongas the tract in
question in fee. A party claiming under the heirs brought ejectment
for the premises. The defendant claimed as tenant under one who had
been in actual possession under claim and color of title for thirty
years. The
Page 121 U. S. 499
question for decision was when did the title to the land vest in
the heirs of Tongas? The court below held that it vested, by the
act of confirmation of 1807, when the land was located and surveyed
in 1820, and that the patent was not itself the grant of the land
by the United States, but merely evidence that a grant had been
made to the heirs of Tongas. The defendant therefore had judgment.
The case being brought to this Court, the judgment was affirmed.
Langdeau v.
Hanes, 21 Wall. 521. In deciding the case, the
Court said:
"In the legislation of Congress, a patent has a double
operation. It is a conveyance by the government when the government
has any interest to convey; but where it is issued upon the
confirmation of a claim of a previously existing title, it is
documentary evidence, having the dignity of a record, of the
existence of that title, or of such equities respecting the claim
as justify its recognition and confirmation. The instrument is not
the less efficacious as evidence of previously existing rights
because it also embodies words of release or transfer from the
government. In the present case, the patent would have been of
great value to the claimants as record evidence of the ancient
possession and title of their ancestor and of the recognition and
confirmation by the United States, and would have obviated, in any
controversies at law respecting the land, the necessity of other
proof, and would thus have been to them an instrument of quiet and
security. But it would have added nothing to the force of the
confirmation. The survey required for the patent was only to secure
certainty of description in the instrument and to inform the
government of the quantity reserved to private parties from the
domain ceded by Virginia."
The grants by the United States of land to aid in the
construction of railroads, in relation to which we have had many
cases before us, are in many particulars analogous to the grant by
the Swamp Land Act. They are usually of a specified number of
sections of land on each side of the proposed route of the road,
with a reservation of certain sales or of other disposition made
before such road becomes definitely fixed. The usual words of grant
in such cases are similar to those in the
Page 121 U. S. 500
Swamp Land Act -- "there is hereby granted." Though it is
impossible to locate the land granted until the route is fixed, yet
when that is fixed, the grant takes effect as of the date of the
act. This would be equally the case were the mode prescribed to fix
the boundaries more complicated and difficult. Thus, in the case of
Leavenworth, Lawrence & Galveston Railroad Company v.
United States, 92 U. S. 733, the
language was: "There be, and is hereby, granted to the State of
Kansas," and in reference to it the Court said:
"It creates an immediate interest, and does not indicate a
purpose to give in future. 'There be, and is hereby, granted,' are
words of absolute donation, and import a grant
in
praesenti. This Court has held that they can have no other
meaning, and the Land Department, on this interpretation of them,
has uniformly administered every previous similar grant. They vest
a present title in the State of Kansas, though a survey of the
lands and a location of the lands are necessary to give precision
to it and attach it to any particular tract. The grant then becomes
certain, and by relation has the same effect upon the selected
parcels as if it had specifically described them."
See also Railroad Company v. Baldwin, 103 U.
S. 426;
Missouri, Kansas & Texas Railway Company
v. Kansas Pacific Railway Company, 97 U. S.
491;
Schulenberg v.
Harriman, 21 Wall. 44,
88 U. S. 60;
Rutherford v. Greene's
Heirs, 2 Wheat. 196.
It is plain that the difficulty of identifying the swamp and
overflowed lands could not defeat or impair the effect of the
granting clause, by whomsoever such identification was required to
be made. When identified, the title would become perfect as of the
date of the act. The patent would be evidence of such
identification, and declaratory of the title conveyed. It would
establish definitely the extent and boundaries of the swamp and
overflowed lands in any township, and thus render it unnecessary to
resort to oral evidence on that subject. It would settle what
otherwise might always be a mooted point, whether the greater part
of any legal subdivision was so wet and unfit for cultivation as to
carry the whole subdivision into the list. The determination of the
secretary upon these matters, as shown by the patent, would
Page 121 U. S. 501
be conclusive as against any collateral attacks, he being the
officer to whose supervision and control the matter is especially
confided. The patent would thus be an invaluable muniment of title,
and a source of quiet and peace to its possessor. But the right of
the state under the first section would not be enlarged by the
action of the Secretary except as to land, not swamp or overflowed,
contained in a legal subdivision, as mentioned in the fourth
section; nor could it be defeated, in regard to swamp and
overflowed lands, by his refusal to have the required list made out
or the patent issued, notwithstanding the delays and embarrassments
which might ensue.
The conclusion which the Land Department reached upon its
examination of the character of the grant soon after the passage of
the act was that the title passed to the state at the date of the
act. In a communication to the Commissioner of the General Land
Office under date of December 23, 1851, Mr. Stuart, then Secretary
of the Interior, referring to the act of 1850 and the act of 1849,
to aid Louisiana to drain her swamp lands, and stating that the
first question involved was as to the period when the grants took
effect -- whether at the date of the law or at the date of the
approval of the selections by the Secretary -- said:
"In each case, the granting clause is in the first section, and
the words employed,
viz., 'are hereby granted,' seem to me
to import a grant
in praesenti. They confer the right to
the land, though other proceedings are necessary to perfect the
title. When the selections are made and approved, or the patent
issued, the title therefor becomes perfect, and has relation back
to the date of the grant. And further:"
"As the grants are regarded as taking effect from the date of
the laws making them respectively, and as vesting the inchoate
title in the states, it follows that any subsequent sale or
location of swamp or overflowed lands must be held illegal, and the
purchase money refunded or a change of location ordered."
Lester's Land Laws 549, No. 578.
This construction of the grant has been followed by the
Secretary's successors to this day. In a communication to the
Commissioner of the General Land Office April 19, 1877, Secretary
Schurz said:
"The legal character of this grant [of
Page 121 U. S. 502
1850] has often been passed upon by the courts, and it has been
uniformly held that the act was a present grant, vesting in the
state,
proprio vigore from the day of its date, title to
all the land of the particular description therein designated,
wanting nothing but the definition of the boundaries to make it
perfect."
And therefore he held that swamp lands were not, in March, 1853,
when the preemption laws were extended to California, public lands,
and for that reason could not be entered and sold under those laws.
"The Act of September 28, 1850," he added,
"was notice to the world that all of the swampy lands in
California were thereby granted
in praesenti to the state,
and were not subject to preemption, entry, or sale thereafter, and
the person who files a declaratory statement on lands actually
swampy does so with full notice that they are not public lands, and
that he cannot obtain any right thereby."
Copp's Public Land Laws, vol. 2, p. 1048.
In a communication to the Commissioner of February 25, 1886,
Secretary Lamar said:
"The principle has been formerly established by the decisions of
the courts and of this Department that the grant of swamp lands
made to the several states was a grant
in praesenti, and
conferred a present vested right to such lands as of the date of
the grant, and that the field notes of survey may be taken as a
basis in determining the character of the laud if the state so
selects."
Decisions of Dept.Interior, vol. 4, 415.
A similar construction of the grant was given by Attorney
General Black in an official communication to the Secretary of the
Interior under date of November 10, 1858. In February, 1853,
Congress had made a grant of land to the States of Arkansas and
Missouri to aid in the construction of a railroad, and under this
grant a part of the lands previously granted to the State of
Arkansas by the Act of September 28, 1850, under the designation of
"swamp lands," was included, and the question asked of the Attorney
General was which of the two acts gave the better title? In reply,
he said:
"Where there is a conflict between two titles derived from the
same source, either of which would be good if the other were out of
the way, the elder one must always prevail;
prior
Page 121 U. S. 503
in tempore potior est in jure. This difficulty,
therefore, is solved if the mere grant [of 1850], as you call it,
gave the state a right to the land from the day of its date. That
it did so there can be no doubt. In an opinion which I sent you on
the 7th of June, 1857, concerning one of the same laws now under
consideration, I said that a grant by Congress does of itself,
proprio vigore, pass to the grantee all the estate which
the United States had in the subject matter of the grant, except
what is expressly excepted. I refer you to that opinion for the
reasons and authorities upon which the principle is grounded. It is
not necessary that the patent should issue before the title vests
in the state under the act of 1850. The act of Congress was itself
a present grant, wanting nothing but a definition of boundaries to
make it perfect, and to attain that object, the Secretary of the
Interior was directed to make out an accurate list and plat of the
lands and cause a patent to be issued therefor. But when a party is
authorized to demand a patent for land, his title is vested as much
as if he had the patent itself, which is but evidence of his
title."
9 Opinions Attorneys General 254.
The same view of the act as a present grant, vesting in the
state from its date the title to all the land within its limits of
the particular description designated, wanting only a definition of
boundaries to render the title perfect, was taken at an early
period by the highest courts of several states within which swamp
and overflowed lands existed. It was so held by the Supreme Court
of Arkansas in 1859, in
Fletcher v. Pool, 20 Ark. 100; in
1866, in
Branch v. Mitchell, 24 Ark. 431, 444, and in
1874, in
Ringo's Executor v. Rotan's Heirs, 29 Ark.
56.
In
Fletcher v. Pool, the court said:
"That the act was a present grant, vesting in the state,
proprio vigore, from the day of its date, title to all the
land of the particular description therein designated, wanting
nothing but the definition of boundaries to make it perfect, no
doubts can be entertained. The object of the second section was not
to postpone the vestiture of title in the state until a patent
should issue, but was to provide for the ascertainment of
boundaries and to prevent
Page 121 U. S. 504
a premature interference with the lands by the state legislature
before they were so designated as to avoid mistake and
confusion."
In
Branch v. Mitchell, the court said:
"We continue satisfied with the decisions heretofore made, and
again hold that all the lands in the state which were really and in
fact swamp and overflowed and thereby unfit for cultivation passed
to and vested in the state on the 28th of September, 1850. The case
is the same as if the grant had been of all the prairie land, or
all the woodland, or all the alluvial land, in the state, the
difficulty of ascertainment of its character not affecting the
question. The words of grant -- the operative words -- are direct
and positive -- 'shall be, and the same are hereby, granted to the
state,' and the provision of the second section that the Secretary
of the Interior should make out and transmit to the governor a list
and plats of the land described, and at the request of the governor
cause a patent to issue to the state, and that 'on that patent the
fee simple to said lands shall vest in the said state,' can no more
be held to limit the effect of the present grant in the first
section than if, in a deed, after immediate and express conveyance
of lands by some general description, it should be provided that
when the numbers should be ascertained, another deed should be made
'on which the fee simple should vest.' This would make the title of
the state to any of the land depend on the request of the governor
for a patent. The words of the second section must be held to be
simply a definition of the nature of the title which the state took
under the grant, and not a postponement of the period at which the
title should vest."
24 Ark. 444, 445.
And in
Ringo's Executor v. Rotan's Heirs, the court
held that the title of the state to the swamp and overflowed lands
granted to her by the Act of September 28, 1850, accrued from the
date 28, 1850, accrued from the date the state took precedence over
a grant by the United States subsequent to that time.
The same view was held by the Supreme Court of California in
1858 in
Owens v. Jackson, 9 Cal. 322, and in
Summers
v. Dickinson, 9 Cal. 554, and in 1864, in
Kernan
v.
Page 121 U. S. 505
Griffith, 27 Cal. 87, and in 1882 was assumed to be the
correct view in
Sacramento Valley Reclamation Co. v. Cook,
61 Cal. 342. In the first of these cases, which was an action for
the possession of swamp and overflowed lands held under a patent of
the state, the defendant demurred to the complaint on the ground
that it did not show that the land had been surveyed and patented
to the state. The demurrer was sustained in the court below, but
the supreme court reversed the decision, holding that the state had
the right to dispose of lands of that character granted to her by
the act of 1850, prior to the patent of the United States. "The act
of Congress," said the court,
"describes the land not by specific boundaries, but by its
quality, and is a legislative grant of all the public lands within
the state of the quality mentioned. The patent is matter of
evidence and description by metes and bounds. The office of the
patent is to make the description of the lands definite and
conclusive as between the United States and the state."
The same conclusion was reached in 1861 by the Supreme Court of
Iowa in
Allison v. Halfacre, 11 Ia. 450, which was
subsequently followed in all its decisions on the subject.
At a later day the Supreme Courts of Missouri and Oregon held
the same doctrine.
Clarkson v. Buchanan, 53 Mo. 563;
Campbell v. Wortman, 58 Mo. 258;
Gaston v. Stott,
5 Or. 48. The Supreme Court of Illinois in 1863 expressed the same
view in
Supervisors v. State's Attorney, 31 Ill. 68, then
receded from it in
Grantham v. Atkins, 63 Ill. 359, and in
1873, in
Thompson v. Prince, 67 Ill. 281, but returned to
its first conclusion in 1875 in
Keller v. Brickey, 78 Ill.
133.
The question came before this Court at the December term, 1869,
in
Railroad Company v.
Smith, 9 Wall. 95, and the same doctrine as to the
character of the grant was affirmed. On the 10th of June, 1852,
Congress had made to the State of Missouri a grant of land to aid
in the construction of certain railroads, and the legislature of
the state had conveyed the land to the Hannibal and St. Joseph
Railroad Company. One Smith held certain swamp and overflowed lands
which he
Page 121 U. S. 506
had obtained from the state, and the question presented was
whether the grant to the state in aid of the railroads covered the
swamp and overflowed lands granted to her by the Act of September
28, 1850, the latter not having been certified to the state by the
Secretary of the Interior, not patented to her. After referring to
the first section, the court said:
"Here is a present grant by Congress of certain lands to the
states within which they lie, but 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 become certain
by the location of the road."
And after stating that it was the duty of the Secretary of the
Interior to ascertain the character of the lands as swamp and
overflowed, and to furnish the state with evidence of it, the Court
continued:
"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, 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."
The Court added that as the Secretary of the Interior had no
satisfactory evidence under his control to enable him to make out
these lists, he must, if he attempted, it, rely on witnesses whose
personal knowledge would enable them to report as to the character
of the tracts claimed to be swamp and overflowed;
"that the matter to be shown was 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."
And it was held that the grant in aid of the railroads did not
include the swamp and overflowed lands.
In
French v. Fyan, 93 U. S. 169, which
was before this Court at October term, 1876, the same view was
taken of the grant, and the effect to be given to a patent of the
United
Page 121 U. S. 507
States for swamp lands was stated. That was an action of
ejectment for such lands for which a patent had been issued to the
State of Missouri under the act of 1850. The lands had been
conveyed to the Missouri Pacific Railroad Company by the state as
part of the land granted to aid in the construction of its road by
the Act of June 10, 1862, and the plaintiff had by purchase become
vested with the title of the company. To overcome the
prima
facie case made by him, the defendant gave in evidence the
patent of the state under the Swamp Land Act of 1850, from which he
traced title by regular conveyances. The plaintiff then offered to
prove by witnesses who had known the character of the land from
1849 down to the time of the trial that the land was not swamp and
overflowed, and made unfit thereby for cultivation, and that, since
1849, the greater part was not, and never had been, in that
condition. The court below held that the question was concluded by
the patent of the United States to the state for the land as swamp
land under the Act of September 28, 1850, and rejected the
testimony. The admissibility of the testimony was thus presented
for determination. In giving our decision, we said:
"This Court has decided more than once that the Swamp Land Act
was a grant
in praesenti, by which the title to those
lands passed at once to the state in which they lay, except as to
the states admitted into the union after its passage. The patent,
therefore, which is the evidence that the lands contained in it had
been identified as swamp lands under that act, relates back and
gives certainty to the title of the date of the grant. As that act
was passed two years prior to the act granting lands to the State
of Missouri for the benefit of the railroad, the defendant had the
better title on the face of the papers, notwithstanding the
certificate to the railroad company for the same land was issued
three years before the patent to the state under that act of 1850,
for while the title under the Swamp Land Act, being a present
grant, takes effect as of the date of that act, or of the admission
of the state into the union when this occurred afterwards, there
can be no claim of an earlier date than that of the act of 1852,
two years later, for the inception of the title of the railroad
company."
And
Page 121 U. S. 508
upon the admissibility of parol testimony to show that the land
in the patent was not swamp land, the court said that, by the
second section of the act, the power and duty were conferred upon
the Secretary of the Interior, as the head of the department which
administered the affairs of the public lands, of determining what
lands were of the description granted, and made his office the
tribunal whose decision on that subject was to be controlling. The
parol evidence therefore was held to be inadmissible.
93 U. S. 93
U.S. 172.
In commenting upon the case of
Railroad Co. v. Smith,
upon which reliance was placed for the admission of the parol
testimony, the Court said:
"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 selections or lists whatever, and would issue
no patents, although many years had elapsed since the passage of
the act."
"There was no means," it added,
"as this Court has decided, to compel him to act, and if the
party claiming under the statute 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 of the state might be defeated by
this neglect or refusal to do his duty."
This view of the character of the grant was recognized in
Rice v. Sioux City & Saint Paul Railroad Company,
110 U. S. 695,
decided at the October term, 1883. The question there was whether
the Swamp Land Act extended to territories upon their subsequent
admission as states into the union. It was held that it did not.
Said the Court, speaking by THE CHIEF JUSTICE:
"That the Swamp Land Act of 1850 operated as a grant
in
praesenti to the states then in existence of all the swamp
lands in their respective jurisdictions is well settled,"
citing the cases of
Railroad Company v.
Smith, 9 Wall. 95;
French v. Fyan,
93 U. S. 169, and
Martin v. Marks, 97 U. S. 345. And
again:
"The grant under the act of 1850 was to Arkansas and the other
states of the union. Arkansas was an existing state, and the grant
was to all the states
in praesenti. It was to operate upon
existing things,
Page 121 U. S. 509
and with reference to an existing state of facts. . . . It was
to take effect at once, between an existing grantor and several
separate existing grantees."
The result of these decisions is that the grant of 1850 is one
in praesenti, passing the 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 it rusted, 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 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.
The legislation of Congress subsequent to the act of 1850, for
the purpose of giving it effect, has been in consonance with the
view stated of the nature of the grant. It has uniformly recognized
the paramount character of the state's title, and has endeavored to
correct the evils which in many cases followed from the delay of
the Secretary of the Interior in identifying the lands, and
furnishing to the state the required lists and plats. The
legislatures of the several states in which such lands existed very
generally themselves undertook to identify the lands, and to
dispose of them, and for that purpose passed appropriate
legislation for their survey and sale, and the issue of patents to
the purchasers. Much inconvenience, and in many instances conflicts
of title, arose between those claiming under the state and those
claiming directly from the United States. To obviate this, on the
second of March, 1855, Congress passed an act "for the relief of
purchasers and locators of swamp and overflowed lands." 10 Stat.
634, c. 147. The act provided that the President of the United
States should cause patents to be issued to purchasers and locators
who had made entries of the public lands claimed as swamp and
overflowed lands with cash or land warrants, or scrip, prior to
the
Page 121 U. S. 510
issue of patents to states under the act of 1850,
"
provided that in all cases where any state, through
its constituted authorities, may have sold or disposed of any tract
or tracts of such land to any individual or individuals, and prior
to the entry, sale, or location of the same under the preemption or
other laws of the United States, no patent shall be issued by the
President for such tract or tracts until such state, through its
constituted authorities, shall release its claim thereto in such
form as shall be prescribed by the Secretary of the Interior."
The act also provided
"That, upon due proof by the authorized agent of the state or
states before the Commissioner of the General Land Office that any
of the lands purchased were swamp lands within the true intent and
meaning of the act aforesaid, the purchase money shall be paid over
to said state or states, and when the lands have been located by
warrant or scrip, the said state or states shall be authorized to
locate a quantity of like land upon any of the public lands subject
to entry at $1.25 an acre or less, and patents shall issue therefor
upon the terms and conditions enumerated in the act aforesaid."
There is here a plain recognition of the prior right of the
state to the swamp lands within her limits by the declaration that
no patent of the United States shall be issued to purchasers from
them of such lands without a release from the state, and that in
case of completed purchases from them, the purchase money shall be
paid to the state, or if the purchase was made by warrant or in
scrip, the state may locate an equal quantity of land upon any
other public lands subject to entry. By Act of March 3, 1857, 11
Stat. 251, c. 117, "to confirm to the several states the swamp and
overflowed lands selected under the Act of September 28, 1850, and
the Act of March 2, 1849," the Act of March 2, 1855, was continued
in force, and extended to all entries and locations of lands
claimed as swamp made since its passage.
The Act of Congress of March 12, 1860, 12 Stat. 3, c. 5,
extending the provisions of the Swamp Land Act to Minnesota
Page 121 U. S. 511
and Oregon, recognizes in its second section their right and
that of other states to make selections of the swamp lands, or
rather to provide for their identification, without waiting for the
action of the Secretary of the Interior. That section provides that
the selection to be made from lands already surveyed in each of the
states should be made within two years from the adjournment of the
legislature of the state at its next session after the date of the
act, and, as to all lands thereafter to be surveyed, within two
years from such adjournment at the next session, after notice by
the Secretary of the Interior to the governor of the state that the
surveys have been completed and confirmed.
By an act passed on the 23d of July, 1866, entitled "An act to
quiet land titles in California," 14 Stat. 219, c. 21, Congress
changed the provisions of law for the identification of swamp and
overflowed lands in that state. It no longer left their
identification to the Secretary of the Interior, but provided for
such identification by the joint action of the state and federal
authorities.
As early as 1855, the Legislature of California undertook to
control and dispose of those lands. The Secretary of the Interior
had neglected to make out any list and plats of the lands of this
character and to transmit them to the governor of the state, as
required by the second section of the act of 1850. The state
therefore proceeded in 1855 to assert her ownership over the lands
by providing for their survey and sale and the issue of patents to
the purchasers. Further legislation was also had on the subject in
1858 and 1859, and in 1861 an act was passed providing for their
reclamation and segregation, making it the duty of the county
surveyors to segregate these lands in their respective counties
from the high lands and to make a complete map of the lands in
legal subdivisions of sections and parts of sections, and to
transmit a duplicate thereof to the surveyor general of the state.
Cal.Laws of 1861, 355.
The Act of Congress of 23d of July, 1866, was intended to effect
the purpose indicated in its title. Previously to its passage there
had been great confusion and uncertainty in
Page 121 U. S. 512
relation to land titles in California. This arose with respect
to other lands than swamp and overflowed lands, principally from
the delay in extending the public surveys of the government, and
the action of the state authorities in attempting to select and
dispose of the lands granted to her in advance of such surveys.
With respect to the swamp and overflowed lands, the confusion had
arisen principally from the delay of the Secretary of the Interior
in listing such lands to the state, and from inaccuracies of
description arising from the want in many parts of the country of
the public surveys. The Act of July 23, 1866, tended to remove this
uncertainty and confusion, principally by recognizing the action of
the state in disposing of the lands granted to her, in cases where
such disposition was made to parties in good faith, and did not
interfere with previously acquired interests, and by providing a
mode for identifying the swamp and overflowed lands in the future
without the action of the Secretary of the Interior. The first
section of the act declared that in all cases where the State of
California had made selections of any portion of the public domain,
in part satisfaction of any grant made to her by 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, subject to certain exceptions. This section does not,
as supposed by counsel, apply to the swamp and overflowed lands. It
was not in satisfaction of a grant of those lands that the state
could select lands from any part of the public domain. All she
could do was to ascertain where those lands were. She had no power
of selection, though that term is sometimes used when merely the
power of ascertainment or identification is intended. Secretary
Schurz, in
Kile v. Tubbs, July 15, 1879, 6 Copp 108;
Secretary Teller in
State of California, December 21,
1883, 2 L.D. 643;
Sutton v. Fassett, 51 Cal. 12. It is the
fourth section of that act which applies to swamp and overflowed
lands. That section, among other things, provides
"That in all cases where township surveys have been or shall
hereafter be made under authority of the United States and the
plats thereof approved, it shall be the
Page 121 U. S. 513
duty of the Commissioner of the General Land Office to certify
over to the State of California as swamp and overflowed all the
lands represented as such upon such approved plats within one year
from the passage of this act or within one year from the return and
approval of such township plats. The Commissioner shall direct the
United States Surveyor General for the State of California to
examine the segregation maps and surveys of the swamp and
overflowed lands made by said state, and where he shall find them
to conform to the system of surveys adopted by the United States,
he shall construct and approve township plats accordingly, and
forward [them] to the General Land Office for approval."
As thus seen, lands represented as swamp and overflowed on the
approved plats of township surveys, made under authority of the
United States, were after that date to be certified to the state,
and lands were to be represented as swamp and overflowed on the
township plats which were found on the state segregation maps and
surveys of such lands, the approval to the township plats to be
made by the Land Office.
Under the act of California of 1861, the Surveyor of the County
of Yolo, in 1862, segregated the swamp and overflowed lands in that
county and made a map thereof, entitled "Supplemental Segregation
of Swamp and Overflowed Land in Yolo County, by Amos Matthews,
County Surveyor," on which all the lands in controversy were
designated as swamp and overflowed lands, and deposited the same in
the state surveyor general's office. A copy of such segregation
map, duly certified by the surveyor general of the state, was given
in evidence, accompanied with the following certificate of the
Surveyor General of the United States:
"U.S. SURVEYOR GENERAL'S OFFICE"
"SAN FRANCISCO, CALIFORNIA"
"I hereby certify that this diagram has been compared with the
original by me, and that the same is a correct transcript of a plat
embracing townships eleven north, range two east; twelve north, two
east; twelve north, one east,
Page 121 U. S. 514
(fractional); and eleven north, one east, Mount Diablo meridian,
said plat having been filed in this office between the 22d of March
and 4th of April, 1872, and being plat of survey made by the County
Surveyor of Yolo County, under and in pursuance of the statutes of
the State of California then in force, and showing the segregation
lines of the swamp and overflowed land in said townships, and
further that the whole of that portion of said plat is designated
thereon as swamp and overflowed land, that I have compared the
certificate of approval of said plat with the original endorsed
thereon, and that the same is a full, true, and correct transcript
thereof."
"Witness my hand and the seal of this office this 22d day of
September, A.D. 1873."
"[Seal] J. R. HARDENBURGER"
"
U.S. Surveyor General California"
Objection was taken to a copy of this map because the one
deposited in the office of the surveyor general of the state was
not marked as filed. If such was the case, the omission was one of
that officer, and could not affect the validity of the map as
evidence. It was in proof that the county surveyor deposited the
map in that office, and that ever since, it had remained there. No
other segregation map was ever in the office.
On the first of July, 1861, the swamp and overflowed lands in
the county, in controversy in this case and designated as such on
this map, subsequently made, were purchased by different parties
from the state, as shown by certificates of purchase issued to them
bearing that date, which were produced in evidence. These
certificates were assigned to the plaintiff. They are made by
statute
prima facie evidence of legal title in the holders
thereof, and upon them ejectment can be maintained for the land
described. Act April 13, 1859;
Richter v. Riley, 22 Cal.
639.
On the 10th of January, 1866, a plat or map of the township, in
which the lands in controversy are situated, was
Page 121 U. S. 515
approved by L. Upson, United States Surveyor General for
California, on which map only one parcel of the lands was
designated as swamp and overflowed land. The map showed on its face
that the survey of the township was made in the field in 1864. On
the 4th of April, 1872, J. R. Hardenburgh, United States Surveyor
General for California, who had succeeded Mr. Upson, compared this
map with the segregation map of swamp and overflowed lands in the
township, made by the surveyor of the county under the laws of the
state, which conformed to the system of surveys adopted by the
United States, and amended the township plat in accordance with the
segregation, and forwarded the same to the General Land Office,
where it was officially used as an approved plat. Upon this amended
map all the lands in controversy are designated as swamp and
overflowed. The following letter of the surveyor general
accompanied the map:
"U.S. SURVEYOR GENERAL'S OFFICE"
"SAN FRANCISCO, April 19, 1872"
"Hon. Willis Drummond"
"
Commissioner General Land Office, Washington,
D.C."
"SIR: I transmit in a separate roll, by today's mail, certified
plats, also certified descriptive lists, of the following
townships, showing all tracts which the State of California claimed
as swamp and overflowed prior to July 23, 1866; also showing the
segregation of swamp and overflowed lands made by the United
States,
viz., township eleven north, range one east;
township eleven north, range two east; township twelve north, range
two east, Mount Diablo meridian. The list of said tracts contain
annotations in red ink, made by the Register of the U.S. Land
Office at Marysville, stating all titles to said lands adverse to
the claims of the State of California, together with the register's
certificate testifying to the correctness of such annotations, as
appears from the records of this office. These plats and lists are
sent you in accordance with the instructions contained in your
letter of July 7, 1871, which enclosed
Page 121 U. S. 516
for my guidance a copy of a letter addressed to L. Upson, U.S.
Surveyor General, dated September 13, 1866."
"Very respectfully, your obedient servant,"
"J. R. HARDENBURGER"
"
U.S. Surveyor General for California"
The Commissioner, Mr. Williamson, who succeeded Mr. Drummond in
office, certifies, under date of January 12, 1878, to a copy of
this plat of township eleven north, range two east, of Mount Diablo
meridian, as one received with the surveyor general's letter of
April 19, 1872, and "since which time it has been officially used
as approved plat made in accordance with § 2488, U.S. Revised
Statutes." This section declares that
"It shall be the duty of the Commissioner of the General Land
Office to certify over to the State of California, as swamp and
overflowed lands, all the lands represented as such upon the
approved township surveys and plats, whether made before or after
the 23d day of July, 1866, under the authority of the United
States."
Subsequently, in July 1877, the state surveyor general forwarded
to the Commissioner of the Land Office certified copies of certain
swamp land surveys, with a statement that the lands described in
them were all sold by the state in good faith as swamp and
overflowed lands prior to July 23, 1866, and requested that the
lands not already listed, which included those in controversy, be
certified to the state. The Commissioner replied that the lands in
the township had all been disposed of, and patents issued to
settlers under the laws of the United States, and upon that ground
alone he refused the application. This refusal was approved by Mr.
Schurz, Secretary of the Interior, the latter observing in
justification of it that it had been decided by the Supreme Court
of the United States that a patent, when issued and delivered to
and accepted by the grantee, passed the legal title to the land,
and all control of the executive department over it ceased. "If any
lawful reason exists," said the Secretary in his communication to
the Commissioner,
"why the patent should be cancelled or annulled, such as fraud
on the part of the
Page 121 U. S. 517
grantee or mistake or misconstruction of the law on the part of
your office, the appropriate remedy is by a bill in chancery, and
an action may be maintained by the United States, or any contesting
claimant; but you are not authorized to reconsider the facts on
which a patent was issued, and to recall or rescind it, or to issue
one to another party for the same tract,"
citing
United States v.
Hughes, 11 How. 552;
United
States v. Stone, 2 Wall. 525;
Hughes v.
United States, 4 Wall. 232, and
Moore v.
Robbins, 96 U. S. 530. There
was no suggestion by either the Commissioner or the Secretary that
the lands were not swamp and overflowed as designated upon the
township plat.
The question, therefore, is whether, upon the proof thus
presented for the segregation of the lands in controversy as swamp
and overflowed lands by the authorities of the State of California
and their designation as such lands on a plat of the township made
by the Surveyor General of the United States, and approved by him,
and forwarded to the General Land Office pursuant to the fourth
section of the act of 1866, and approved by the Commissioner, as
shown by its official use, the plaintiff can maintain an action for
the recovery of the lands, they never having been certified over to
the state as required by § 2488 of the Revised Statutes or patented
to her under the act of 1850. According to the decisions we have
cited, the holders of the certificates of purchase had a good title
to the lands if in fact they were swamp and overflowed lands on the
28th of September, 1850.
The certificates were conclusive as evidence against the state
that they were such lands. The statute of California, as already
stated, makes them
prima facie evidence of legal title to
the premises in the holders, and upon them ejectment can be
maintained in the state courts. The case of the plaintiff was
therefore
prima facie established by the production of the
certificates and showing their assignment to him.
Richter v.
Riley, 22 Cal. 639, cited above.
The representation of the lands as swamp and overflowed on the
approved township plat would be conclusive, as against the United
States, that they were such lands if they had not
Page 121 U. S. 518
been patented before the return of such township plat to the
land office. The act of Congress intended that the segregation maps
prepared by authority of the state, and filed in the state surveyor
general's office, if found upon examination by the United States
Surveyor General to be made in accordance with the public surveys
of the general government, should be taken as evidence that the
lands designated thereon as swamp and overflowed were such in fact
except where this would interfere with previously acquired
interests. In this case, the defendants trace title by patents of
the United States purporting to be issued to settlers under the
preemption laws, in 1866, 1867, 1868, and 1871, upon declaratory
statements made in 1864, three years after the purchase from the
state by the grantors of the plaintiff and two years after a map
segregating these lands had been made by the surveyor of the county
pursuant to the law of the state and deposited in the surveyor
general's office. These patents were evidence that whatever title
the United States then held passed to the patentees, and as against
a mere intruder without claim of title from a paramount source were
conclusive that the lands were of the character which by the
patents they were represented to be. This was the case in
Ehrhardt v. Hogaboom, 115 U. S. 67.
There, the plaintiff claimed by a patent issued to his grantor
under the preemption laws. The defendant admitted he was in
possession of twenty acres, and contended that these were swamp and
overflowed lands which passed to the state under the act of 1850.
It appeared, however, that the certificate of purchase which he
produced did not embrace the lands in controversy, and his offer to
prove the character of the land as swamp and overflowed by parol
was rejected. The Court said:
"He was, as to the twenty acres, a mere intruder without claim
or color of title. He was therefore in no position to call in
question the validity of the patent of the United States for those
acres and require the plaintiff to vindicate the action of the
officers of the Land Department in issuing it."
And again:
"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
Page 121 U. S. 519
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."
But this doctrine has no application where a party, whether
plaintiff or defendant, asserts title to premises in controversy
from a paramount source, or by a prior conveyance from a common
source. The doctrine that all presumptions are to be indulged in
support of proceedings upon which a patent is issued, and which is
not open to collateral attack in an action of ejectment, has no
application where it is shown that the land in controversy had,
before the initiation of the proceedings upon which the patent was
issued, passed from the United States. The previous transfer is a
fact which may be established in an action at law as well as in a
suit in equity.
As we said in
Smelting Co. v. Kemp, 104
U. S. 641:
"When we speak of the conclusive presumptions attending a patent
for lands, we assume that it was issued in a case where the
Department had jurisdiction to act and execute it -- that is to
say, in a case where the lands belonged to the United States and
provision had been made by law for their sale. If they never were
public property or had previously been disposed of, or if Congress
had made no provision for their sale or had reserved them, the
Department would have no jurisdiction to transfer them, and its
attempted conveyance of them would be inoperative and void no
matter with what seeming regularity the forms of law may have been
observed. The action of the Department would in that event be like
that of any other special tribunal not having jurisdiction of a
case which it had assumed to decide. Matters of this kind,
disclosing a want of jurisdiction, may be considered by a court of
law. In such cases, the objection to the patent reaches beyond the
action of the special tribunal and goes to the existence of a
subject upon which it was competent to act."
And again, in the same case, we said, p.
104 U. S.
646:
"A patent may be collaterally impeached in any action, and its
operation as a conveyance defeated, by showing that the Department
had no jurisdiction to dispose of the lands -- that is, that the
law did not provide for selling them, or that they had been
reserved from sale or dedicated to special purposes, or
Page 121 U. S. 520
had been previously transferred to others. In establishing any
of these particulars, the judgment of the Department upon matters
properly before it is not assailed, nor is the regularity of its
proceedings called into question, but its authority to act at all
is denied, and shown never to have existed."
"There are cases," said Chief Justice Marshall,
"in which a grant is absolutely void, as when the state has no
title to the thing granted or when the officer had no authority to
issue the grant. In such cases, the validity of the grant is
necessarily examinable at law."
Polk's Lessee v.
Wendall, 9 Cranch 87,
13 U. S. 99.
Indeed it may be said to be common knowledge that patents of the
United States for lands which they had previously granted, reserved
for sale, or appropriated are void.
Easton v.
Salisbury, 21 How. 426;
Reichart
v. Felps, 6 Wall. 160;
Best v.
Polk, 18 Wall. 112. It would be a most
extraordinary doctrine if the holder of a conveyance of land from a
state were precluded from establishing his title simply because the
United States may have subsequently conveyed the land to another,
and especially from showing that years before they had granted the
property to the state, and thus were without title at the time of
their subsequent conveyance. As this Court said in
New Orleans
v. United States,
"It would be a dangerous doctrine to consider the issuing of a
grant as conclusive evidence of right in the power which issued it.
On its face it is conclusive, and cannot be controverted, but if
the thing granted was not in the grantor, no right passes to the
grantee. A grant has been frequently issued by the United States
for land which had been previously granted, and the second grant
has been held to be inoperative."
10 Pet.
35 U. S. 663,
35 U. S.
731.
The court below held, and placed its decision upon the ground,
that because the Commissioner of the General Land Office had not
certified the lands in controversy to the state as swamp and
overflowed when this action was commenced in 1870, there was no
title in the state by the grant of 1850 which could be enforced,
thus making the investiture of title depend upon the act of the
Commissioner, instead of the act of Congress, whereas the
certificate of that officer, when the
Page 121 U. S. 521
previous requirements of the law have been complied with, is
only an official recognition that the lands are of the character
designated and of the completeness of their segregation. The
decision is in conflict with its previous decisions and with the
adjudged cases to which our attention has been called.
In
Sacramento Valley Reclamation Co. v. Cook, 61 Cal.
341, decided as late as 1882, that court recognized the swamp land
grant of 1850 as one
in praesenti. Its language was:
"It is as well settled as anything can be by the courts that the
donation of swamp and overflowed lands by the United States to the
states in which such lands were situated at the date of the passage
of the Act of September 28, 1850,"
"was a grant
in praesenti, by which the title to those
lands passed at once to the states in which they lay, except as to
states admitted into the union after its passage,"
citing
French v. Fyan, 93 U. S.
169.
For the error in holding that the certificate of the
Commissioner was necessary to pass the title of the demanded
premises to the state, the case must go back for a new trial, when
the parties will be at liberty to show whether or not the lands in
controversy were in fact swamp and overflowed on the day that the
Swamp Land Act of 1850 took effect. If they are proved to have been
such lands at that date, they were not afterwards subject to
preemption by settlers. They were not afterwards public lands at
the disposal of the United States. Parties settling upon such lands
must be deemed to have done so with notice of the title of the
state, and, after the segregation map was deposited with the
surveyor general of the state, with notice also that they were
actually segregated and claimed by the state as such lands.
Judgment reversed and cause remanded for further proceedings
not inconsistent with this opinion.