Fall v. State of Louisiana

• Citation: 287 F. 999
• Decision Date: 05 March 1923
• Docket Number: 3810.
• Parties: FALL, Secretary of the Interior, v. STATE OF LOUISIANA.
• Court: U.S. Court of Appeals — District of Columbia Circuit

287 F. 999

FALL, Secretary of the Interior, v. STATE OF LOUISIANA.

No. 3810.

United States Court of Appeals, District of Columbia.

March 5, 1923

Submitted December 12, 1922.

Appeal from the Supreme Court of the District of Columbia.

C. E Wright and E. S. Booth, both of Washington, D.C., for appellant.

F. W Clements, of Washington, D.C., for the State of Louisiana.

Before VAN ORSDEL, Associate Justice, and MARTIN and SMITH, Judges of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

The Secretary of the Interior of the United States appeals from a decree of the Supreme Court of the District of Columbia directing that a mandatory injunction issue requiring him to vacate a decision withholding title from the state of Louisiana to certain swamp and overflowed lands, because of their alleged mineral character, and restraining the Secretary from disposing of the lands, or taking any action affecting the same, excepting such action as may be necessary to the final recognition of the rights of the state to title therein.

It appears that under the Act of March 2, 1849, 9 Stat. 352 Congress enacted:

'That to aid the state of Louisiana in constructing the necessary levees and drains to reclaim the swamp and overflowed lands therein, the whole of those swamp and overflowed lands, which may be or are found unfit for cultivation, shall be, and the same are hereby, granted to the state.'

The act further provided:

'That as soon as the Secretary of the Treasury (afterwards Secretary of the Interior) shall be advised, by the Governor of Louisiana, that that state has made the necessary preparation to defray the expenses thereof, he shall cause a personal examination to be made, under the direction of the surveyor general thereof, by experienced and faithful deputies, of all the swamp lands therein which are subject to overflow and unfit for cultivation; and a list of the same to be made out, and certified by the deputies and surveyor general, to the Secretary of the Treasury, (Interior) who shall approve the same, so far as they are not claimed or held by individuals; and on that approval, the fee simple to said lands shall vest in the said State of Louisiana. subject to the disposal of the Legislature thereof.'

By Act of September 28, 1850, 9 Stat. 519 (Comp. St. Secs. 4958-4960), Congress made a similar grant to the state of Arkansas of the swamp and overflowed lands therein, providing that the Secretary should '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. ' Section 2 (Comp. St. Sec. 4959). By a further provision the act was extended to each of the states of the Union in which swamp and overflowed lands may be situated.

The lands in controversy were officially surveyed in 1871, and the Commissioner of the General Land Office and the Secretary of the Interior found, from the field notes of the survey, as follows:

'In conclusion: It is found from the field notes of the survey of 1871 that the lands hereinafter described are swamp or overflowed, and, if nonmineral in character, inure to the state under its grant.'

This amounted to an approval by the Secretary that they were swamp and overflowed lands, within the provisions of the acts of 1849 [287 F. 1001] and 1850, and would pass to the state, as therein provided, if nonmineral in character.

The Commissioner of the General Land Office, in a decision, under date of November 13, 1919, addressed to the register and receiver of the land office at Baton Rouge, La., not only found from the field notes of the survey of 1871 that the lands were swamp and overflowed, but instructed the register and receiver, that:

'The survey of 1871, having been duly made, approved, and accepted and being the latest and controlling survey of said T. 18 N.,R. 14 W., will be followed in the future, as it has heretofore been in the past, in the adjudication of claims to public lands shown therein.'

It therefore appears that the department has, at all times, recognized the finality of the approval of the survey of 1871, as settling the character of the lands as swamp and overflowed.

This brings us to the chief contention of the government, that the lands in question are subject to the mineral reservations generally affecting public lands. This is, of course, based upon the assumption that whatever rights Louisiana acquired were under the grant of 1850, and not of 1849, and that, since title under the later act could only pass by patent and, patent not having issued, the title is still in the government. To sustain this claim it is urged that the title acquired by the state, under the grant, was merely inchoate, and if the land is found to be valuable for mineral, before the perfection of title, it will not vest in the state.

This suggests the proposition whether or not, under the terms of the grant to the state, the question of the mineral or nonmineral character of the lands can be invoked by the government. The acts of 1849 and 1850 are in terms of present grant. In other words, the grant by the government to the state of Louisiana was a grant in praesenti. If, therefore the grant was made under the act of 1849, and not affected by the act of 1850, all that was necessary to confirm the title in the state of Louisiana was the...