138 U.S. 134 (1891), Tubbs v. Wilhoit

Citation:138 U.S. 134, 11 S.Ct. 279, 34 L.Ed. 887
Party Name:TUBBS v. WILHOIT et al.
Case Date:January 26, 1891
Court:United States Supreme Court

Page 134

138 U.S. 134 (1891)

11 S.Ct. 279, 34 L.Ed. 887



WILHOIT et al.

United States Supreme Court.

January 26, 1891


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[11 S.Ct. 279] Henry Beard, for plaintiff in error.

A. F. Britton and A. B. Browne, for defendants in error.



This is an action for the possession of a parcel of land of about 80 acres in the county of San Joaquin, Cal., being substantially the S. 1/2 of the S. E. 1/4 of section 11, in township 4, of that county. The plaintiff in the court below, and in error here, asserted title to the premised under a patent of the United States issued to him in due form on the 1st of October, 1879, upon a homestead entry made by him in May, 1873, and commuted to a cash entry in November following. The original defendant below, Joseph Kile, now deceased, and in whose place his executors, Wihoit and Thompson, have been substituted, claimed the premises under a patent of California,

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bearing date the 5th of August, 1865, conveying to him the premises as swamp and overflowed lands, and as part of the land granted to the state by the act of congress of September 28, 1850, (9 St. 519.) The action was brought in the superior court of the county of San Joaquin, where the issue was tried without the intervention of a jury, by stipulation of the parties. Special findings of fact were filed, upon which judgment for the plaintiff was rendered. On appeal to the supreme court of the state the judgment was reversed, and judgment ordered in favor of the defendants for the lands, and for the rents and profits thereof. To review this judgment the case is brought here on a writ of error. The question presented is the validity of this title under the patent of California. If the claim thereto were abandoned or overthrown, the right of the plaintiff to recover under the patent of the United States would be conceded. To determine this question, a consideration must be had of the various proceedings taken to obtain the patent of the state, and the law bearing upon them. The act of congress of September 28, 1850, granted to the several states of the Union all the swamp and overflowed lands within their limits which on the passage of the act remained unsold, to enable them to construct the necessary levees and drains for the reclamation of such lands, and made it the duty of the secretary of the interior, as soon as practicable, to make out an accurate list and plats of the lands described and transmit the same to the governors of the states, and upon their request to cause patents to be issued to the states therefor.

Soon after the passage of the act, the question arose in each state 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 its governor after the list and plats of the lands had been made out by the secretary of the interior, and transmitted to him. After much consideration by the officers of the department of the government under whose supervision the act was to be carried out, and by the courts of the several states in which such lands existed, it was held that the words

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'are hereby granted' in the act imported a present grant, and not a promise of one in the future; and that the title to the lands, therefore, passed to the state at once, their identification to be made by the action of the secretary of the interior, but, when identified the title to relate back to the date of the act. In the recent case of Wright v. Rose berry, 121 U.S. 488, 7 S.Ct. 985, the rulings of the officers of the land department, and of the courts of the states in which swamp and overflowed lands existed, by which the conclusion mentioned was reached, are stated with much fullness, and it is unnecessary to repeat what is there said. It is sufficient to observe that the construction thus given to the act is now the accepted law of the country. But the enjoyment of the grant was greatly impeded by the delay of the interior department to make out and certify the lists required. This delay arose from [11 S.Ct. 280] many causes, some of which the secretary could not control, such as the insufficiency of the force under his command to make the required surveys and the necessary identification of the lands. The decision of this court in Railroad Co. v. Smith, 9 Wall. 95, tended in some degree to lessen the evil effects of the delay, in holding that when that officer had neglected or failed to make the identification it was competent for the grantees of the state, in order to prevent their rights from being defeated, to identify the lands in any other approopriate mode which would effect that object. And in Wright v. Roseberry it was suggested that such mode of identification by the state was also permissible where the secretary declared his inability to certify the lands from any other cause than a consideration of their character,--a suggestion followed in the decision of that case. 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

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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. 10 St. p. 634, c. 147; 11 St. p. 251, c. 117.

The inconvenience and conflicts mentioned were especially annoying and injurious to the state of California, for the great emigration to that state in 1850, and the years immediately following, created a call for lands of this description, not only because they were easily reclaimed, but because of their extraordinary fertility after reclamation. Accordingly, as early as 1855, its legislature, asserting her ownership of such lands, provided for their survey and sale, and for the issue of patents. Legislation was also had on that subject in 1857, 1858, and 1859. As great confusion had from the causes mentioned arisen in the title to such lands, and also to other lands in California claimed under grants of the United States, congress, on July 23, 1866, passed an act, entitled 'An act to quiet land titles in California,' by which, among other things, the provisions of the original act of 1850 for the identification of swamp and overflowed lands in that state were changed. Their identification was no longer left to the secretary of the interior, but was made subject to the joint action of the state and the federal authorities. The fourth section, which related to those lands, provided as follows: '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 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

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adopted by the United States, he shall construct and approve township plats accordingly, and forward to the general land-office for approval: provided, that in segregating...

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